WALLACE ROGERS, SOUTHEAST KANSAS COMMUNITY ACTION PROGRAM, INC.,
AND THE ECONOMIC OPPORTUNITY FOUNDATION, PETITIONERS V. UNITED STATES
OF AMERICA

   No. 88-1088

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Federal Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the United States Court of Appeals for the Federal
Circuit (Pet. App. A1-A2) is unreported.  The opinion of the United
States Claims Court (Pet. App. A3-A25) is reported at 14 Cl. Ct. 39.
The opinion of the United States District Court for the District of
Kansas dismissing petitioners' complaint (App., infra, 1a-17a) is
unreported.  The opinion of the United States Court of Appeals for the
Tenth Circuit (Pet. App. A26-A39) ordering the case transferred to the
Claims Court is reported at 766 F.2d 430.

                             JURISDICTION

   The judgment of the Federal Circuit (Pet. App. A1) was entered on
September 28, 1988.  The petition for a writ of certiorari was filed
on December 27, 1988.  The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1.  Whether the Claims Court correctly dismissed petitioners'
claims against the United States under the Fifth Amendment's
guarantees of equal protection and due process and under Section 601
of the Civil Rights Act of 1964, 42 U.S.C. 2000d.

   2.  Whether the Federal Circuit correctly rejected on the merits
petitioners' several challenges to the decision of the federal
Community Services Administration -- made in the course of winding up
its affairs before the agency terminated its functions at the end of
Federal Fiscal Year (FFY) 1981 -- not to fund the two petitioner
community action agencies for the part of their 1981 program years
that extended into FFY 1982.

                               STATEMENT

   As the successor to the Office of Economic Opportunity, the
Community Services Administration (CSA) distributed funds to local
community action agencies (CAAs) to serve low-income citizens.  42
U.S.C. 2790(a) (1976);  Pet. App. A4, A27.  On August 13, 1981,
Congress enacted the Omnibus Budget Reconciliation Act of 1981 (OBRA),
Pub. L. No. 97-35, 95 Stat. 357, which, effective October 1, 1981,
terminated CSA, repealed the statute (42 U.S.C. 2808 (1976)) under
which funds for CAAs were appropriated, and substituted a program of
block grants to States.  Pet. App. A5, A28.  Petitioners, two large
CAAs and one of their low-income clients, challenge the manner in
which CSA distributed funds in terminating its activities.  Id. at A3.

   1.  Many CAAs, including petitioners, were budgeted according to
program years that did not coincide with federal fiscal years (FFY).
In 1975, CSA adopted a plan for distributing funds that distinguished
small CAAs (those receiving less than $300,000 annually) from large
CAAs (those receiving more than that amount).  Pet. App. A4, A27-A28.
Small CAAs (by far the majority) received their funding in one yearly
grant taken from one federal fiscal year's appropriations.  Large
CAAs, by contrast, generally were funded by two separate grants:  one
for the period from the beginning of the CAA's program year to
September 30th (the end of the federal fiscal year);  another that
covered the period from October 1st (the beginning of the subsequent
federal fiscal year) to the end of the CAA's program year.  Pet. App.
A4-A5, A28.  /1/

   When Congress ended the program of grants to CAAs and substituted a
block grant program in OBRA (Pet. App. A5, A28-A29), /2/ CSA had six
weeks in which to wind up its affairs.  Rather than adopt a new
fund-distribution method, CSA chose to maintain its established
funding pattern during its waning days.  Pet. App. A7, A29-A30;  App.,
infra, 15a.  CSA made that decision with the aim of achieving an
equitable distribution of the remaining funds while minimizing
disruption.  App., infra, 15a.

   Most small CAAs already had been funded for their full program
years at the time Congress enacted OBRA.  Pet. App. A29;  App., infra,
14a.  The few remaining small CAAs whose applications were pending on
August 13, 1981, were given their full funding.  Pet. App. A29-A30.
The large CAAs also were funded according to the traditional pattern,
but that meant less than full funding for many of them.  Id. at A30.
Such CAAs could be financed only to the extent that FFY 1981
appropriated funds existed.  Fiscal year 1982 funds, which ordinarily
would have been the source of large CAAs' second infusion of revenue,
had not been appropriated for CSA.  Moreover, FFY 1981 funds that
remained after funding of the small CAAs were used to pay
administrative expenses of closing the agency (e.g., annual leave and
termination benefits for CSA's employees) or set aside to provide for
contingencies pursuant to the Anti-Deficiency Act, 31 U.S.C.
1515(c)(1)(a);  some of this money then reverted to the United States
Treasury on the final day of FFY 1981.

   2.  Petitioners filed this lawsuit in federal district court in
Kansas on September 30, 1981, one day before the end of FFY 1981.
Pet. 14.  They challenged the lack of funding on a variety of
statutory and constitutional grounds.  After denying requests for a
temporary restraining order and preliminary injunction, the district
court granted the government's motion to dismiss.  Ibid.; App., infra,
4a.  The court first held that petitioners' suit was premature because
the CAAs at that time were eligible to receive money under the block
grant program that replaced direct CSA funding.  App., infra, 4a-5a.
The court went on, however, to consider and to reject petitioners'
claims on the merits.

   The court concluded that CSA's manner of winding up violated
neither 42 U.S.C. 2812(a) (1976), which set a funding minimum for each
CAA, nor 42 U.S.C. 2967 (1976), which required disbursement of funds
equitably between rural and urban areas.  App., infra, 5a-6a.  The
court explained that those provisions were repealed effective the same
date that CSA ceased funding the petitioner CAAs (October 1, 1981, the
beginning of FFY 1982).  Ibid.  Similarly, the court ruled that,
because the CSA program was abolished entirely, the statutory and
regulatory requirements of notice and a hearing for denial of funding
or suspension of funding under the program (42 U.S.C. 2944(2) (1976);
45 C.F.R. Subpt. 1067.2 (1980)) were not applicable to this case and
hence were not violated;  moreover, the regulations expressly excluded
cases of reduced appropriations (45 C.F.R. 1067.2-4 (1980), an
exclusion that covered complete elimination of appropriations.  App.,
infra, 7a.  The court concluded that, because petitioners had "no
legitimate claim of entitlement to funds direct from the federal
government during fiscal year 1982" in the absence of any
appropriation of such funds to the CSA program (id. at 8a),
petitioners likewise had no property interest, for procedural due
process purposes, in receiving funds past the end of FFY 1981.  Id. at
8a-9a.  /3/

   Petitioners also contended that CSA's distribution violated a
statutory requirement that funds be distributed equitably, deprived
them of equal protection, and was arbitrary and capricious in
violation of the Administrative Procedure Act (APA).  App., infra,
11a.  The court rejected all of those contentions, finding that,
although a pro rata distribution among all CAAs might have been fairer
(id. at 13a), the policy followed by CSA in its final days was
entirely rational.  The policy continued the funding scheme that had
been in place since 1975, and the pro rata alternative would have
required CSA to retrieve funds from the many small CAAs that had
already been fully funded before the enactment of OBRA on August 13,
1981.  Id. at 13a-16a.

   3.  On appeal, the Tenth Circuit held that the case fell within the
Claims Court's exclusive jurisdiction and, without addressing the
merits, therefore ordered the case transferred pursuant to 28 U.S.C.
1631.  Pet. App. A26-A39.  The court reasoned that the Claims Court
had excllusive jurisdiction under the Tucket Act, 28 U.S.C.
1491(a)(1), if three conditions were met:  "(1) the action is against
the United States;  (2) the action seeks monetary relief in excess of
$10,000;  and (3) the action seeks is founded upon the Constitution,
federal statute, executive regulation, or government contract." Pet.
App. A33.  The court of appeals found that all three conditions were
met in this case.

   The court explained that the complaint in fact sought money from
the United States, although in form it sought only declaratory and
injunctive relief -- namely, a declaratory judgment that CSA's funding
decision was unlawful on various grounds, and an injunction requiring
the defendant federal officials (the head of CSA and the head of the
Office of Management and Budget) to pay to petitioner Southeast Kansas
Community Action Program, Inc. (SEK-CAP), the balance (eight months'
worth) of its program-year funds.  Pet. App. A33-A34.  /4/ The amount
requested was in excess of $200,000.  Id. at A34.  The court of
appeals explained that, because the underlying purpose of the suit was
to obtain more than $10,000 in money from the federal government, the
Claims Court had exclusive jurisdiction under the Tucker Act, and that
jurisdiction could not be avoided simply "by framing a complaint in
the district court as one seeking injunctive, declaratory or mandatory
relief." Pet. App. A34-A35.  The court also observed that, "(a)lthough
the United States was not a named party in this action, the effect of
suing defendants in their official capacities while seeking monetary
relief is to make the action one against the United States." Pet. App.
A37 (citing Dugan v. Rank, 372 U.S. 609, 620 (1963);  Larson v.
Domestic & Foreign Corp., 337 U.S. 682, 704 (1949);  Land v. Dollar,
330 U.S. 731, 738 (1947)).  Finally, the court determined that, in
addition to the constitutional, statutory, and regulatory grounds, the
action was based on a contract:  it sought "funds for the remainder of
SEK-CAP's 1981 program year on the basis of an alleged agreement that
once its grant was approved and the $114,222 payment was made on June
1, such funds would be provided." Pet. App. A38-A39.  Accordingly,
there was exclusive Claims Court jurisdiction because the action was
"in essence against the United States," sought "monetary relief," and
was based on an "alleged agreement" and on "other claims premised on
constitutional, statutory, and regulatory grounds." Ibid.

   4.  After the case was transferred and an amended complaint was
filed against the United States by all three petitioners, the Claims
Court granted the government's motion to dismiss and for summary
judgment.  /5/ The court concluded that the failure to provide the two
CAAs funding for the period after September 30, 1981, did not breach
an implied-in-fact contract and was not arbitrary and capricious (Pet.
App. A10-A18) and did not violate statutory and regulatory guarantees
of fair procedure and equitable treatment (id. at A20-A21).  The court
also ruled that the remaining claims were outside its jurisdiction --
the CAA petitioners' Fifth Amendment procedural due process and equal
protection claims (Pet. App. A22-A23), and petitioner Rogers'
statutory race discrimination claim (id. at A23-A24).

   On the merits, the court began by explaining that the dispute came
down to whether funds were available to pay the two CAAs for the part
of their 1981 program years extending into FFY 1982.  Pet. App. A11.
Plainly no FFY 1982 funds were available, because CSA, which was
terminated on October 1, 1981, received no FFY 1982 appropriations.
Id. at A12.  The court also concluded that there was no error in CSA's
decision not to distribute to the petitioner CAAs any of the FFY 1981
funds remaining in the agency on August 13, 1981, the day the
CSA-dismantling statute was enacted.  With those funds, CSA decided,
in accord with its past practice, to continue to fund small CAAs for
their full program years but to provide funding only up to September
30, 1981, for the large CAAs, expecting the FFY 1982 block grant funds
to make up the balance of the large CAAs' program years.  Pet. App.
A12.  After the re-funding of all small CAAs in petitioners' region,
$1.4 million in unobligated funds remained.  Id. at A13.  Rather than
distributing those funds to the large CAAs in the region.  CSA
decided, in late September 1981, to use the funds to cover expenses of
terminating the agency and to serve, pursuant to the Anti-Deficiency
Act, as a reserve to meet obligations of the agency that might come to
light later.  Ibid.  On September 30, 1981, $8 million of CSA
appropriations, the remainder of all funds held for close-out and
Anti-Deficiency Act purposes, lapsed into the Treasury.  Ibid.

   The Claims Court held that CSA's decisions after August 13, 1981,
regarding the distribution of the FFY 1981 funds had a rational basis
and were not arbitrary or capricious or an abuse of discretion.
First, continuing the small CAA/large CAA funding pattern was
rational:  CSA could not fully eliminate the distinction between small
and large CAAs without retrieving already distributed funds;  the
existing pattern had been established since 1975;  CSA reasonably
anticipated that FFY 1982 block grant funds would fill the gap for
large CAAs;  /6/ and CSA determined that there was insufficient time
and money to develop a new funding pattern in the waning months of
CSA's existence, without unduly interfering with the orderly closeout.
 Pet. App. A14-A15.  Second, the transfer of certain funds to the
contingency reserve was specifically authorized by the Anti-Deficiency
Act, 31 U.S.C. 1512(c)(1)(a), and the amount CSA set aside for that
purpose was hardly excessive.  Pet. App. A15-A16.  Third, CSA acted
reasonably in setting aside certain funds for administrative closeout
costs;  until October 1, 1981, the CSA director, who was concerned
about the need to meet the agency's obligations to its employees, had
solid grounds to believe that Congress would not appropriate any
additional money to cover these costs.  Id. at A16-A17.  The court
concluded:  "Faced with limited time and money, CSA attempted to dole
out its resources in such a way as to protect its employees and at the
same time to fund as many CAAs as possible." Id. at A17.  See also id.
at A14 ("the evidence suggests that CSA made every effort to fund all
CAAs to the maximum degree possible while at the same time attempting
to attend to an orderly close-out").

   The court similarly rejected the breach-of-contract claim that
there were "available" FFY 1981 funds that had to be given to the
petitioner CAAs:  "The fact that for the past two years CSA had
sufficient funds available to pay plaintiffs' second grants from * * *
funds remaining from the preceding FFY, does not obligate CSA to do so
in this case." Pet. App. A17-A18.  Moreover, the distribution of FFY
1981 funds to small CAAs and the application of the remaining funds to
termination expenses and to an Anti-Deficiency Act contingency reserve
were "within CSA's discretion." Pet. App. A18.  Hence, the court
concluded:  "At the close of FFY 1981, because of these obligations,
there were not sufficient * * * funds available with which to fund
(petitioners)." Ibid.  /7/

   The Claims Court next rejected petitioners' claims of statutory and
regulatory violations.  First, the court held that CSA did not violate
42 U.S.C. 2944 (1976) and 45 C.F.R. 1050.115-1 to 1050.115-8 (1980),
which required notice and an opportunity to be heard when re-funding
was "denied" or when funding was "terminated." See Pet. App. A20.
Petitioners conceded that re-funding had not been denied (ibid.);  and
the court explained that there had been no "termination of funding,"
because "(o)n the date the second grant payment was due * * * , CSA
did not have any funds available," and hence "(t)he condition
precedent to the (petitioners') contract with CSA 00 the availability
of funds -- did not occur" (ibid.).  Second, the court held that the
statutory requirements of equitable distribution of funds between
rural and urban areas, 42 U.S.C. 2967, 2833(b) (1976) were not
violated.  All CAAs received full funding during FFY 1981;  and on the
day that FFY 1982 began, the cited statutes were repealed.  Pet. App.
A21.  /8/

   The Claims Court then determined that it lacked jurisdiction under
the Tucker Act over the petitioners' due process and equal protection
claims and over petitioner Rogers' race discrimination claim under 42
U.S.C. 2000d.  Pet. App. A22-A24.  With respect to the constitutional
claims, the court explained that since the Tucker Act is merely
jurisdictional and does not grant substantive rights, it furnished
jurisdiction only if the constitutional guarantees relied on by
petitioners mandate monetary compensation.  Pet. App. A22.  The court
found that it lacked jurisdiction over the procedural due process and
equal protection claims because "these components of the Fifth
Amendment standing alone do not mandate payment of monetary damages."
Pet. App. A23.  The court found that it lacked jurisdiction over
petitioners Rogers' statutory claim of race discrimination for a
different reason.  The court stated that "(c)laims of racial
discrimination based upon a statute may only be brought in a United
States District Court." Id. at A23-A24.  /9/

   5.  The Federal Circuit affirmed.  Pet. App. A1-A2.  It found that
the Claims Court had convincingly explained that CSA, in "facing the
uncommon requirement to permanently close itself down, had acted in
all respects within its discretion and in accordance with law." Id. at
A2.  The court of appeals further ruled that the Claims Court "was
also correct in its determination that it had no jurisdiction over the
due process, equal protection, and discrimination claims." Ibid.

discriminate.  See Soberal-Perez v. Heckler, 717 F.2d 36 (2d

                               ARGUMENT

   1.  Petitioners challenge the Claims Court's holding that it lacked
jurisdiction over petitioners' equal protection, due process, and 42
U.S.C. 2000d claims.  Whatever the correctness of that holding, /10/
we believe that petitioners' challenge does not merit this Court's
review.  The jurisdictional ruling does not conflict with the decision
of any other court of appeals /11/ and raises no question of general
importance.  Moreover, the lower courts' rulings on the merits of
petitioners' other claims effectively dispose of the three unreviewed
claims, showing them to be insubstantial.

   Thus, it is clear from the district court's statutory and
constitutional due process rulings (App., infra, 7a-9a) and from the
Claims Court's rulings on the statutory and breach-of-contract claims
(Pet. App. A17-A21) that the petitioner CAAs had no property interest
in funding past the end of FFY 1981.  Their hope of receiving a second
grant payment from additional funds, just as it did not support a
claim for denial of statutorily mandated due process, would not
support a parallel claim of a Fifth Amendment due process violation.
See Richardson v. Belcher, 404 U.S. 78, 80-81 (1971).  Similarly, it
is clear from the district court's APA and equal protection rulings
(App., infra, 11a-16a) and from the Claims Court's APA rulings (Pet.
App. A14-A17) that CSA's funding decisions were entirely rational (and
not race-based).  Hence, there is no need for further litigation of
petitioners' equal protection claim.  See Bowen v. Gilliard, 107 S.
Ct. 3008, 3015 (1987).

   Petitioner Rogers' claim of race discrimination under Section 601
(Title VI) of the Civil Rights Act of 1964, 42 U.S.C. 2000d, also is
insubstantial.  That provision declares:  "No person in the United
States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
Federal financial assistance." Thus, the provision prohibits only the
recipients of federal funds from discriminating;  while the federal
government might have to cut off funds from a recipient who is
discriminating (42 U.S.C. 2000d-1), Section 601 does not impose any
independent non-discrimination obligation on the federal government
itself -- where no recipient of federal funds is alleged to

Cir. 1983), cert. denied, 466 U.S. 929 (1984);  compare Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. 794 (barring discrimination
"under any program or activity receiving Federal financial assistance
or under any program or activity conducted by any Executive agency or
by the United States Postal Service" (emphasis added)).  Here, Rogers'
claim focuses only on the federal agency's allegedly discriminatory
decision, in concluding its operations, to continue to differentiate
between large and small CAAs instead of adopting a new pro rata
method.  The claim thus falls outside the scope of Section 601.

   Rogers' Title VI claim is insubstantial for another reason as well.
 Rogers does not allege intentional discrimination.  /12/ Yet a
majority of this Court has stated that discriminatory intent is
required for a violation of 42 U.S.C. 2000d.  See Guardians Ass'n v.
Civil Service Comm'n, 463 U.S. 582, 610 (1983) (Powell, J., concurring
in the judgment);  id. at 612-613 (O'Connor, J., concurring in the
judgment);  id. at 639-642 (Stevens, J., dissenting).  As noted, both
the district court and the Claims Court found that CSA's funding
decisions were supported by rational policies unrelated to race.

   In short, the constitutional claims and the statutory racial
discrimination claim have no foundation independent of those already
addressed and rejected.  In these circumstances, there is no reason
for this Court to review the Claims Court's holding that it had no
jurisdiction over those claims.  /13/ For the same reason, review is
not warranted of petitioners' contention that, assuming that the
Claims Court lacked jurisdiction over the three claims, it should have
transferred them to the district court under 28 U.S.C. 1631:  it is
not "in the interest of justice" (28 U.S.C. 1631) to transfer for
additional litigation claims that are insubstantial and that have
effectively been adjudicated under other rubrics.  See Zinger Constr.
Co. v. United States, 753 F.2d 1053, 1055 (Fed. Cir. 1985).  /14/ In
sum, review of the Claims Court's dismissal of the equal protection,
due process, and Title VI claims is not warranted.  /15/

   2.  Petitioners also ask this Court to review the lower courts'
rejection of a number of their challenges on the merits.  For the
reasons given by the Claims Court, however (see pages 7-10, supra),
those challenges were correctly rejected.  Moreover, petitioners do
not suggest that the rejection of their claims conflicts with any
decision of this Court or of any other court.  Finally, there is no
continuing significance to the issues, as they concern the manner in
which one federal agency, now long defunct, chose to wind up its
affairs.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   RICHARD G. TARANTO

      Assistant to the Solicitor General

   WILLIAM KANTER

   ROBERT D. KAMENSHINE

      Attorneys

   APRIL 1989

   /1/ The plan was initially established to help provide funds for
the large CAAs during and after a period of reduced CSA
appropriations.  Pet. App. A4-A5.

   /2/ The State of Kansas, where the petitioner CAAs are located,
elected to participate for FFY 1982.  App., infra, 5a.  Under the
program, participating States had discretion to decide how to use
federal antipoverty funds, including discretion to make grants to
former CAAs.  Ibid.

   /3/ The next two contentions addressed and rejected in the court's
opinion, but not raised in the petition for a writ of certiorari, were
that CSA's actions constituted an illegal impoundment of unexpended
FFY 1981 funds, in violation of U.S. Const., Art. 2, section 3, and
the Impoundment Control Act of 1974, 2 U.S.C. 681 et seq., and
violated the agency's regulation stating that "whenever possible the
grantee's fundings will coincide with the grantee's program year" (45
C.F.R. 1067.30-5(8) (1980)).  App., infra, 9a-11a.

   /4/ Petitioner Economic Opportunity Foundation (EOF), the second
CAA plaintiff in the district court, was not a party to the appeal.
Pet. App. A29 n.4.  Petitioner Wallace Rogers was a low-income
resident of Kansas served by SEK-CAP.  Id. at A29.

   /5/ Although petitioner EOF had not appealed the final judgment
entered against it by the district court in Kansas, the government did
not object on res judicata grounds to EOF's renewing its claim in the
Claims Court.

   /6/ In fact, as petitioner SEK-CAP acknowledged in its brief in the
Tenth Circuit (at 15), SEK-CAP did receive a block grant from the
State of Kansas for FFY 1982.

   /7/ The Claims Court also rejected petitioners' contention, under
42 U.S.C. 2971b (1976) (requiring publication of all rules,
regulations, guidelines, and application forms), that the "failure to
publish specific guidelines in the Federal Register concerning the
mechanics of the split funding policy" rendered it void in this case.
Pet. App. A18-A19.  Although the court stated that "the details of the
policy probably should have been published," it pointed out that "not
only did (petitioners) have knowledge of a policy that had been going
on for six years, but (they) * * * initially benefited from the
policy." Id. at A19.  The court also pointed out that, "(r)egardless,
in this case, properly promulgated CSA regulations (45 C.F.R.
1067.30-5(8) (1980)), while expressing a preference for program year
funding, effectively state(d) a policy that CSA funding might not
coincide with the grantee's program year." Pet. App. A19.

   /8/ The court also rejected petitioners' argument that CSA violated
the regulation directing that funding should coincide with program
years "whenever possible." Pet. App. A21-A22.  Petitioners do not
renew that claim in this Court.

   /9/ Finally, the Claims Court rejected petitioners' claim that
CSA's failure to expend its entire FFY 1981 appropriation, and its
allowing of $8 million to revert to the Treasury, violated the
Impoundment Control Act of 1974, 2 U.S.C. 681 et seq.  Pet. App. A24.
Petitioners do not raise that issue before this Court.

   /10/ The Tucker Act "does not create any substantive right
enforceable against the United States for money damages." United
States v. Testan, 424 U.S. 392, 398 (1976).  See United States v.
Mitchell, 463 U.S. 206, 216 (1983).  The Act, instead, is a limited
waiver of sovereign immunity for substantive rights "found in some
other source of law, such as 'the Constitution, or any Act of
Congress, or any regulation of an executive department.'" Mitchell,
463 U.S. at 216 (quoting 28 U.S.C. 1491).  See Army & Air Force
Exchange Service v. Sheehan, 456 U.S. 728, 734 (1982).  The "asserted
entitlement to money damages depends upon whether any federal statute
'can fairly be interpreted as mandating compensation by the Federal
Government for the damage sustained.'" Testan, 424 U.S. at 400
(quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002,
1008-1009 (Ct. Cl. 1967)).

   How those principles apply in this case depends on whether the
required pay-mandating provisions must be the provisions creating the
allegedly breached duty (here, the Fifth Amendment due process clause
and 42 U.S.C. 2000d) or whether it is sufficient that the
program-creating statute itself (here, the CSA statute) is
pay-mandting.  Even if the latter approach is correct (as the
government has maintained in other cases), however, it remains unclear
whether the CSA statute was pay-mandating in the sense required for
the Tucker Act.  Cf. Bowen v. Massachusetts, 108 S. Ct. 2722, 2738 n.
42 (1988) (questioning pay-mandating character of Medicaid statute).
The Claims Court's jurisdiction over all three claims at issue is,
accordingly, at least uncertain.

   If the provisions creating the allegedly breached duty must
themselves be pay-mandating, then the Claims Court was correct,
because the due process clause and 42 U.S.C. 2000d do not mandate
compensation by the federal government.  As to the due process clause,
see Clark v. Library of Congress, 750 F.2d 89, 103 n.31 (D.C. Cir.
1984) ("The courts have uniformly held that jurisdiction under the
'founded upon the constitution' grant of the Tucker Act is limited to
claims under the 'takings clause' of the Fifth Amendment.");  Clemente
v. United States, 766 F.2d 1358,, 1363 (9th Cir. 1985), cert. denied,
474 U.S. 1101 (1986);  Radin v. United States, 699 F.2d 681, 685 n.8
(4th Cir. 1983);  Jaffee v. United States, 663 F.2d 1226, 1230-1231
(3d Cir. 1981), cert. denied, 456 U.S. 972 (1982);  Duarte v. United
States, 532 F.2d 850, 851-852 (2d Cir. 1976).  As to 42 U.S.C. 2000d,
the discussion at pages 14-15, infra, shows that the provision does
not impose a compensation obligation on the federal government for its
own discrimination independent of discrimination by a recipient of
federal funds.

   The Claims Court gave a different reason for its conclusion that it
had no jurisdiction over the claim under 42 U.S.C. 2000d.  It ruled
that the district courts have exclusive jurisdiction over statutory
race discrimination claims, pointing to 28 U.S.C. 1343.  Pet. App.
A23.  That provision, however, which grants the district courts
jurisdiction over certain statutory civil rights claims, does not
declare such jurisdiction to be exclusive.  Moreover, the decisions
cited by the Claims Court (ibid.) ultimately rely on this Court's
decision in Brown v. GSA, 425 U.S. 820 (1976), which holds that
employment discrimination claims against the federal government may be
brought exclusively under the specific jurisdictional provisions of
Section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16.

   Whatever the correct conclusion about Claims Court jurisdiction
over the statutory race discrimination claim, however, that claim, for
reasons stated in the text, is wholly insubstantial.

   /11/ The Tenth Circuit's determination that this case fell within
the exclusive jurisdiction of the Claims Court meant only that, if any
court had jurisdiction to award monetary relief against the United
States on the basis of petitioners' allegations, the Claims Court did.
 Thus, the Tenth Circuit decision does not conflict with the decision
below.

   /12/ Petitioner Rogers "alleges that black people suffered
disproportionately under the split funding policy" in that "(t)he
practical effect of the policy of CSA was to allow rural community
action agencies, which were generally small rural and white, to
continue through the transition to the block grant funding program
without any problems" whereas "urban agencies and large rural agencies
having significant segments of the black population among their
constituents and management staff were faced with a difficult
situation." Pet. 17-18.

   /13/ We note, too, that one of the two CAA petitioners, EOF, did
not appeal from the final judgment entered against it in the district
court of Kansas (see notes 4, 5, supra) and that the claims of damages
by petitioner SEK-CAP and its client petitioner Rogers are weakened by
the fact that SEK-CAP obtained block grant funding for its program in
FFY 1982 (see note 6, supra).

   /14/ Relevant to the possibility of transfer is the question
whether the district court in Kansas could hear any of the claims at
issue.  This Court recently held in Bowen v. Massachusetts, 108 S. Ct.
at 2740, that a district court had jurisdiction to reverse the
decision of the Secretary of Health and Human Services not to
reimburse a State for its expenditures under the Medicaid program.
Although the scope of the ruling is not clear, the case involved a
claim under a statute that expressly commanded the payment of money in
specified circumstances, in the context of a continuing financial
relationship between the federal government and a State.  In the
present case, the claims at issue were made not under a pay-directing
provision of the CSA statute itself, but under the Constitution and
Title VI;  moreover, there was no continuing financial relationship
between CSA and the CAAs, because the CSA program was repealed as of
the end of FFY 1981.  Whether Bowen would support jurisdiction in the
district court in Kansas is, accordingly, uncertain.  In addition, it
is by no means clear that the district court could today entertain a
request for an injunction directing the payment of FFY 1981 funds that
are no longer available.  Cf. Reeside v. Walker, 52 U.S. (11 How.)
272, 290-291 (1850) (under U.S. Const., Art. I, section 9, Cl. 7,
courts cannot order payment of funds unless appropriated by Congress
for that purpose).

   /15/ If this Court were to conclude otherwise, we suggest that an
appropriate disposition would be to vacate the decision of the Federal
Circuit and remand the case with instructions to remand to the Claims
Court for reconsideration of its jurisdictional determinations in
light of our present filing and in light of this Court's decisions in
Christianson v. Colt Industries Operating Corp., 108 S. Ct. 2166
(1988), and Bowen v. Massachusetts, supra.  In Colt Industries, the
Court held, among other things, that where a case is transferred,
law-of-the-case principles require that, "if the transferee court can
find the transfer decision plausible, its jurisdictional inquiry is at
an end." 108 S. Ct. at 2179.

   APPENDIX