While I dissent from the majority opinion’s holding that the Tennessee Valley Authority is immune from suit, I have to agree that appellants cannot recover in this lawsuit as it was cast by the pleadings in the Alabama State Court and recast after removal to the United States District Court for the Northern District of Alabama.
The majority holds that the TVA was immune from liability because its disposition of the funds appropriated by Congress was a discretionary function, relying chiefly upon J.H. Rutter Rex Manufacturing Co., Inc. v. United States, 515 F.2d 97 (5th Cir.1975). This latter case was based upon the Federal Torts Claims Act. The discretionary function as applied in FTCA case is different from that relied in determining the liability of an agency for failure to expend funds appropriated by Congress. In Springdale Convalescent Center v. Mathews, 545 F.2d 943 (5th Cir.1977), the court held the following:
In appropriating these funds Congress has directed that they be used by the Secretary to fulfill his statutory obligations and achieve the declared purposes of the Medicaid Act. An action to compel a federal officer to distribute an annual appropriation made by Congress, as here, is not barred by sovereign immunity. See Train v. City of New York, 420 U.S. 35, 95 S.Ct. 839, 43 L.Ed.2d 1 (1975); National Council of Community Health Centers, Inc. v. Weinberger, 361 F.Supp. 897 (D.D.C.1973).
Id. at 950-51.
Train v. City of New York, cited by the Fifth Circuit in the foregoing opinion is somewhat analogous to the present case. There, Congress appropriated funds for controlling and abating water pollution. The agency refused to allot among the states the maximum amounts provided by the indicated appropriation. The Supreme Court held that the agency did not have the discretion to reduce the amount appropriated and held in effect that there was no government immunity.
The best statement in support of the right to sue a government agency under circumstances such as this is contained in National Council of Community Mental Health Centers, Inc. v. Weinberger, 361 F.Supp. 897 (D.D.C.1973), cited with approval by the Fifth Circuit in Springdale Convalescent Center. The district court in the mental health case had the following to say:
To say that persons immediately and seriously affected by failure to commit funds authorized by the Legislature can-mot go to court is to ignore the democratic base of our society. Indeed, it is only when the three equal and coordinate branches of government function that a stable government can be assured. Cf Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). The rule of law dictates calm judicial determination rather than political confrontation____
These cases should move to higher courts for prompt, definitive determination shorn of the confusing inconsequential defenses so typical of Government legalese these days. The defendants’ motion to dismiss is denied.
361 F.Supp. at 901.
The funds in controversy here derive from the 1980 appropriation to the Tennessee Valley Authority Fund which in its gross amount was $269,563,000. The one line item under the Community Development Fund of $16,827,000 was the following: “Triana, Ala. Pollution Mitigation $1,500,000.” S.Rep. No. 927, 96th Cong., 2d Sess. 162 (1980). The House committee report with respect to this particular allotment stated the following:
“Triana, Alabama Pollution Mitigation — The committee has received extensive testimony on the, environmental and social problems facing the residence of *687Triana, Alabama, caused by DDT contamination of the surrounding water. The committee recommends an appropriation of $1,500,000 to assist the commercial fishermen in the area, other business and labor development activities as well as design and construction of a sanitary sewer system and a commercial greenhouse.”
H.R.Rep. No. 1093, 96th Cong., 2d Sess. 150 (1980).
I conclude from the previously mentioned legal precedents that the TVA was amenable to a lawsuit based upon its apparent failure to expend the funds as appropriated. The appropriation was for community development. There was no reference to loans. Appropriations for governmental loan programs which contemplate reimbursement to the government are appropriated pursuant to a different methodology. Nevertheless, in the context of the current lawsuit, the appellants cannot prevail. As discussed in the majority opinion, the TVA contracted with Peoples National Bank of Huntsville, Alabama by the terms of which the agency deposited $350,000 in the bank which was to be used by the bank to make loans to various businessmen, including the fishermen, in the Triana, Alabama area, such loans to be subject to TVA approval. It is these loans which are the subject matter of this litigation. The appellants are defending lawsuits brought by the bank with an affirmative defense that the money belongs to the TVA, not the bank, and that TVA is estopped from permitting the bank to sue on such loans because of the nature of the appropriation previously described and certain oral statements made by TVA employees. It is apparent on the face of the facts that the borrowers cannot vary their written loan agreements with the bank based upon such an affirmative defense. For this reason I think the district court was correct in refusing the appellants the offer of such evidence of oral statements at the trial of the case and the district court judgment based upon the jury’s answers to written interrogatories is due to be affirmed.