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October 8, 1982

LIEM DUC NGUYEN, MINH CONG HA, KIM CHI THI LAM, DZU THUY DO, TAN HUY NGUYEN, VUI VAN LE, individually and on behalf of all persons similarly situated, Plaintiffs
THE UNITED STATES CATHOLIC CONFERENCE d/b/a THE SOUTHEAST ASIA REFUGEE RESETTLEMENT OFFICE IN PITTSBURGH and FRANK CHINH NGUYEN, individually and in his capacity as Supervisor and Director of the Southeast Asia Refugee Resettlement Office of Pittsburgh and Their Agents, Employees, Successors in office, and all other persons acting in Concert or Cooperation with them or at their directions or under their control, Defendants

The opinion of the court was delivered by: MANSMANN

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 Dismissal on jurisdictional grounds and for failure to state a claim are analytically distinct, implicating different legal principles and different burdens of proof. Johnsrud v. Carter, 620 F.2d 29, 32 (3d Cir. 1980). The former involves the right to be heard in court while the latter is a disposition of the case on the merits. Id. at 33.

 Motions which challenge subject matter jurisdiction may simply attack the facial sufficiency of the Complaint or they may attack the factual existence of subject matter jurisdiction. Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In a facial attack, the Court must take the allegations of the Complaint as true. *fn4" Id. Where, however, the Motion creates a factual issue regarding subject matter jurisdiction, "'no presumptive truthfulness attaches to Plaintiff's allegations and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims. Moreover, the Plaintiff will have the burden of proof that jurisdiction does in fact exist.'" *fn5" Enka B. V. of Arnhem, Holland v. E.I. DuPont Nemours & Co., 519 F. Supp. 356, 359 (D. Del. 1981), quoting Mortensen, supra at 891.

 With a Motion to Dismiss for failure to state a claim, the burden is on the moving party. Johnsrud v. Carter, supra at 33. Because a 12(b)(6) Motion results in a determination on the merits at an early stage of Plaintiff's case, the Plaintiff is afforded the safeguard of having all of its allegations taken as true. Mortensen, supra at 891. If the Court considers matters outside of the pleadings, the Motion is transformed into a Rule 56 Motion for Summary Judgment. Id.

 Under Fed. R. Civ. P. 56(c), summary judgment may be entered only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Court of Appeals for the Third Circuit has made clear that any doubts as to the existence of genuine issues of fact are to be resolved against the moving parties. Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982); Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). Further, the facts and the inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the Motion. Continental Ins. Co. v. Bodie, supra, 682 F.2d at 438; Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981).

 With the above standards in mind, the facts may be summarized as follows:

 Plaintiffs are Vietnamese who sought refuge in this country during the 1970s as a result of the Vietnam conflict. *fn6" Plaintiffs were "sponsored" by the Catholic Conference and several were additionally co-sponsored by private individuals. The Catholic Conference is a non-profit agency founded by the Roman Catholic Church in America. It maintains an office in Pittsburgh, Pennsylvania, having its principal place of business in Washington, D.C. One of the functions of the Catholic Conference has been the resettlement of thousands of Indochinese refugees in the United States.

 The Catholic Conference, under one name or another, has rendered assistance to refugees since at least 1938. Other voluntary organizations which have rendered assistance to refugees include the United Hebrew Immigrant Aid Society, the Lutheran Immigration and Refugee Service, the Church World Service and the International Rescue Committee. In the past, the United States Government did not provide any funds to defray the costs of these activities. In the 1960's, however, Congress authorized the first appropriation for refugee resettlement assistance. Grant agreements were subsequently executed under which per capita funds were provided to voluntary agencies.

 Since 1975, the Catholic Conference and the Department of State have executed a series of "grant agreements" pursuant to the Migration and Refugee Assistance Act of 1962 ("Refugee Act of 1962"), as amended, 22 U.S.C. § 2601 et seq.7 Under the terms of these agreements, the Catholic Conference is to receive an amount of money at a per capita rate in order to defray the costs incurred in the resettlement of Indochinese refugees. *fn8" The responsibilities of the Conference under the agreements include (1) pre-arrival services such as providing information to a local sponsor or resettlement office, (2) reception services such as providing a food allowance and temporary accommodations, if necessary, (3) counseling and referral services in the areas of health and employment, and (4) consultation with public agencies which may also offer services to the resettled refugees. The grant agreements provide that the Catholic Conference may also offer optional services to the refugees such as arranging grants or loans for their emergency needs. The agreements further state that the funds awarded thereunder shall be used not only to defray costs directly attributable to the resettlement of the refugees, but shall also be used to cover justifiable overhead costs of the Catholic Conference.

 Most of the Plaintiffs have resided in Pittsburgh since 1975 or 1979 *fn9" and have therefore dealt with the Conference's Pittsburgh office. *fn10" Defendant Frank Chinh was formerly employed as the Supervisor of the Pittsburgh office and is presently serving as its Director.

 Plaintiffs contend that the Catholic Conference's Pittsburgh Office failed to ensure that they were provided with the "basic essentials of life." Specifically, Plaintiffs assert that it was the practice of the Catholic Conference in the past to give individual refugees the unused portion of the $500 per capita grant. *fn11" Plaintiffs, however, maintain that they did not receive the money to which they were allegedly entitled. *fn12" As a result, Plaintiffs were allegedly deprived of basic necessities. Plaintiffs further contend that the Catholic Conference has acted in an arbitrary and capricious manner by awarding monetary grants to some refugees and not to others.

 Plaintiffs brought the present suit as a class action on behalf of all Indochina refugees residing in the Western District of Pennsylvania. *fn13" Plaintiffs allege that they were denied equal protection as well as substantive and procedural due process under the Fifth Amendment to the United States Constitution. They also allege a denial of rights under the Refugee Acts, 22 U.S.C. § 2601. Further, Plaintiffs allege that Defendants have breached their contract(s) with the Department of State, of which Plaintiffs are allegedly third-party beneficiaries. Plaintiffs seek injunctive relief as well as the payment of all monies wrongfully withheld. They predicate this Court's jurisdiction upon 28 U.S.C. §§ 1331 and 1361. *fn14"

 Defendants have filed a Motion to Dismiss or, in the alternative, for Summary Judgment, alleging both lack of subject matter jurisdiction and failure to state a claim under 28 U.S.C. §§ 1331 and 1361. *fn15" Their specific arguments are set forth infra.

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 Defendants contend that this Court has no subject matter jurisdiction over Plaintiffs' claim for mandamus because the Catholic Conference is not a federal agency nor is Frank Chinh a federal employee or officer. Lack of these prerequisites allegedly deprives the Court of jurisdiction to hear this claim. Plaintiffs concede that Defendants are not federal agencies or officers. They argue, however, that Defendants are engaged in federal action which, according to Plaintiffs, is sufficient to establish jurisdiction under 28 U.S.C. § 1361.

 Both Defendants and Plaintiffs rely upon Griffith v. Bell-Whitley Community Action Agency, 614 F.2d 1102 (6th Cir. 1980), cert. denied, 447 U.S. 928, 65 L. Ed. 2d 1122, 100 S. Ct. 3025 (1980), in support of their arguments. In that case, the United States Court of Appeals for the Sixth Circuit held that there was no subject matter jurisdiction to hear a claim for mandamus under § 1361 where the Defendant, a community action agency, was not a federal agency and where its employees were not officers or employees of the United States. The Court made clear in Griffith that the federal agency and federal employee elements are essential to a mandamus action. Id. at 1106.

  The Court in Griffith also discussed the distinction between federal control and federal action. The Court found that the control element is relevant in mandamus actions to the jurisdictional question of whether the Defendant is a federal agency or federal employee. Id. See also United States v. Orleans, 425 U.S. 807, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976) (The existence of federal control is determinative of the question of whether a community action agency is a federal agency and its employees are federal employees under the Federal Tort Claims Act). Federal action, however, may exist regardless of whether or not federal control is present. The absence of federal control, necessary for jurisdiction in a mandamus action, does not preclude the existence of federal action which could support a constitutional claim. Id. at 1107. Hence, the existence of federal action does not establish jurisdiction under § 1361.

 Accordingly, this Court finds that it lacks subject matter jurisdiction with respect to Plaintiffs' claim for mandamus. *fn16"

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 Defendants assert that this Court is without jurisdiction under the Fifth Amendment because the claim does not arise under the United States Constitution within the meaning of 28 U.S.C. § 1331. Specifically, Defendants maintain that they have not engaged in federal action which, according to their argument, is necessary for subject matter jurisdiction.

 Plaintiffs respond that this Court does have jurisdiction under § 1331. They contend that the presence or absence of federal action is not relevant to subject matter jurisdiction. Rather, according to Plaintiffs, the existence of federal action relates to the question of whether Plaintiffs have stated a claim upon which relief may be granted.

 The United States Supreme Court in Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946) stated:

Before deciding that there is no jurisdiction, the District Court must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and laws of the United States . . . Where the Complaint . . . is . . . drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court, but for two possible exceptions . . . must entertain the suit. 327 U.S. at 681-682. *fn17"

 We agree with Plaintiffs that the existence of federal action is not relevant to the threshold inquiry of subject matter jurisdiction. Thus, the presence or absence of federal action depends on the facts of the case and must be decided after the Court has assumed jurisdiction over the controversy. See Griffith v. Bell-Whitley Community Action Agency, supra at 1107. Such a determination goes to the merits of the case and calls for us ...

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