jurisdiction over Plaintiff's claim "against the United States" because exclusive jurisdiction lies in the Court of Claims, and in so arguing he construes Plaintiff's claim as really being one for money damages rather than declaratory, injunctive or mandamus relief as set forth in Plaintiff's complaint. This argument, too, is without merit. Plaintiff has Not instituted a suit Against the United States, but rather has instituted this action against the Defendant Administrator of the United States Environmental Protection Agency. This suit essentially requests the Court to direct the Defendant to pay § 206(a) reimbursement money to the Plaintiff Authority rather than to Pennsylvania. 28 U.S.C. § 1361, the jurisdictional basis cited by Plaintiff, specifically provides that "(T)he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the Plaintiff." Clearly jurisdiction lies under 28 U.S.C. § 1361 and Defendant's argument that subject matter jurisdiction lies only in the Court of Claims is erroneous. U. S. v. Commonwealth of Pennsylvania, 394 F. Supp. 261 (M.D.Pa.1975).
Defendant lastly argues that Pennsylvania is immune from unconsented suit by its citizens in federal court pursuant to the United States Constitution's Eleventh Amendment, and therefore Plaintiff should not be permitted to obtain declaratory, injunctive or mandamus relief which results in relief being afforded to the Plaintiff which is indirectly detrimental to Pennsylvania. This argument, too, does not withstand reason. Clearly Plaintiff's action is one which questions the Defendant's duty to pay Plaintiff money which the Plaintiff claims is owed to it pursuant to the unambiguous language of § 206(a). Insofar as this action pertains to still unpaid funds, it must be viewed as a classic mandamus action, particularly in light of a determination that § 206(a) is Not an ambiguous statute that authorizes the Defendant to utilize discretion in deciding to whom such funds should be directed. Again, if Pennsylvania desired to interject itself in this matter it has had every opportunity to do so.
Therefore, in respect to the $ 242,750 not yet paid by the Defendant to either Plaintiff or the Commonwealth pursuant to § 206(a), Defendant's motion for judgment on pleadings is denied.
Finally, the matter of $ 198,600 Already paid to Pennsylvania by the Defendant must be addressed. Defendant's last three arguments are without merit on this question for the same reasons as they are without merit as they concerned the $ 242,750 not yet appropriated. However, Defendant's first argument, that an adjudication here without Pennsylvania would deprive Pennsylvania of due process rights, is a most tenable one. Federal Rule of Civil Procedure 19(b) provides, Inter alia, that "(If) a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the Court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable." Among the factors denominated in F.R.C.P. 19(b) as those which the Court must consider in determining whether a party not before the Court is indispensable is "to what extent a judgment rendered in the person's absence might be prejudicial to him" and "whether a judgment rendered in the person's absence will be adequate". Pennsylvania, of course, already has had the money appropriated to it in its possession since May of 1974 and could possibly be hard pressed to repay it to anyone even if effectively so ordered.
Therefore, it is quite clear that Pennsylvania's interest in any adjudication involving the $ 198,600 Already paid to it is very real, direct and great.
Furthermore, it is quite questionable whether the Court can adjudicate this controversy so as to Effectively give Plaintiff the relief it seeks in relation to this money, that is the return of the $ 198,600 which the Defendant has already paid to Pennsylvania. As Plaintiff itself notes in its brief, Pennsylvania would not be bound by any determination here in its absence. Rather, what Plaintiff apparently seeks is an order directing the Defendant to direct Pennsylvania to repay the funds to him so that he can then pay it to the Authority. It is questionable, however, whether the Court has the ability to effectuate even this result in the absence of Pennsylvania's participation in this matter. The Court is cognizant, too, that pursuant to F.R.C.P. 19(b) it should not render an adjudication which would expose the Defendant to multiple liability or multiple litigation so as to require it to pay Plaintiff directly the $ 198,600 which it has already paid to Pennsylvania, while Pennsylvania has not yet repaid a like amount. Provident Tradesman Bank & Trust Company v. Patterson, 390 U.S. 102, 109-111, 88 S. Ct. 733, 19 L. Ed. 2d 936 (1968).
Under F.R.C.P. 19(b) the Court also must consider whether the Plaintiff will have an adequate remedy if this action is dismissed for non-joinder of an indispensable party, here the Commonwealth of Pennsylvania. Insofar as the $ 198,600 already paid to Pennsylvania by the Defendant is concerned, it appears that the Plaintiff has an available remedy at law pursuant to § 761 of the Pennsylvania Judicial Code, 42 Pa.C.S.A. § 761, which places original jurisdiction of all civil actions or proceedings against the Commonwealth of Pennsylvania or any officer thereof acting in his official capacity in the Commonwealth Court of Pennsylvania. Thus, insofar as Plaintiff alleges its right to the $ 198,600 already appropriated to Pennsylvania by the Defendant, Plaintiff has the opportunity to adjudicate this matter in a different forum. While such litigation in that court may well involve a duplication of efforts, the Court here views Pennsylvania's rights to be so direct and great in this matter concerning the funds already paid to it that it deems it an indispensable party.
In Schutten v. Shell Oil Company, 421 F.2d 869 (5th Cir. 1970), the Court set forth some of the reasoning required for any determination of whether to proceed to an adjudication without a party in interest:
"The plaintiff has the right to "control' his own litigation and to choose his own forum. This "right' is, however, like all other rights, "defined' by the rights of others. Thus the Defendant has the right to be safe from needless multiple litigation and from incurring avoidable inconsistent obligations. Likewise, the interests of the outsider who cannot be joined must be considered. Finally, there is the public interest and the interest the court has in seeing that insofar as possible the litigation will be both effective and expeditious."
As noted above, it is quite questionable whether the Court can effectively render an adjudication concerning the money already paid to the Commonwealth. Furthermore, if the Court were to attempt to grant Plaintiff the relief it seeks in respect to the money already so paid to the Commonwealth it may well require the Defendant to engage in further litigation in recovering such money already paid. For these reasons, as well as the others expressed above, Pennsylvania is deemed an indispensable party as far as the sum of $ 198,600 already paid to it is concerned. Therefore, Defendant's motion for a judgment on the pleadings will be construed as a motion to dismiss for failure to join an indispensible party pursuant to F.R.C.P. 19 concerning the $ 198,600 already paid to Pennsylvania and the Court will grant this part of Defendant's motion.
Based upon the foregoing the Court will enter an appropriate order which (a) denies Defendant's motion for judgment on the pleadings as far as it pertains to the $ 242,750 not yet paid to either the Plaintiff or Pennsylvania and (b) construes Defendant's motion, so far as it pertains to the $ 198,600 already paid to Pennsylvania, as a motion to dismiss for failure to join an indispensable party and will grant such motion.