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May 17, 1976

JOSEPH J. KENNEDY, et al., Plaintiffs,
F. DAVID MATHEWS, et al., Defendants

The opinion of the court was delivered by: FLANNERY


 This suit concerns the federally sponsored Nutrition Program for the Elderly. Plaintiffs allege that defendants are impounding funds which Congress intended to be available for the program during Fiscal Year 1976 and request preliminary and permanent injunctive relief. The parties came before the court on April 30, 1976 for a scheduled hearing on plaintiffs' motions for a preliminary injunction and class certification. Prior to the hearing, defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted, thereby placing the merits in full issue, and both parties agreed in open court that trial on the merits be advanced and consolidated with the hearing on plaintiffs' motions. Upon consideration of the motions, memoranda submitted in support thereof, oral argument thereon, and the entire record herein, the court makes the following findings of fact and conclusions of law.

 Findings of Fact

 The Nutrition Program for the Elderly, established under Title VII of the Older Americans Act, 42 U.S.C. §§ 3045, et seq., makes funds available to the states for the purpose of providing elderly persons with hot meals in pleasant surroundings. Although the Older Americans Act was signed into law in March, 1972, the nutrition program contained in Title VII did not get under way until July, 1973, due to Presidential vetoes of fiscal year (FY) 1973 appropriation bills. Title VII had authorized appropriations of $100,000,000 in FY 1973 and $150,000,000 in FY 1974. In addition to the FY 1974 appropriation for the program, Congress passed a supplemental appropriation giving the program the full $100,000,000 Congress had hoped would be spent for FY 1973. Since FY 1973 had completely gone by before the program had gotten under way in July, 1973, the program became an "advanced funded" or "forward funded" program, which spent funds in the year following that for which they were appropriated. In 1974, Congress extended the program for three more years, and provided for appropriations of $150,000,000 in FY 1974, $200,000,000 in FY 1975, and $250,000,000 in FY 1976. See 42 U.S.C. § 3405g. In FY 1974, a sufficient amount of money was appropriated to allow the program, when supplemented by the "advance funds", to operate at the $150,000,000 level.

 The instant case concerns the appropriation for FY 1976. Congress appropriated $125,000,000 in new funds for the program for that period, and in addition, provided, "The level of operations for nutrition services for the elderly program shall be $187,500,000 per annum." Labor-HEW Appropriations Act for Fiscal Year 1976, Public Law 94-206, 90 Stat. 3, 19 (1976). Congress also appropriated 25% of $187.5 million for the "Transition Quarter" following FY 1976 (July 1, 1976-September 30, 1976). Id. The appropriations bill was vetoed by President Ford in December, 1975, but the House overrode on January 27, 1976, and the Senate followed suit on January 28.

 Plaintiffs are elderly persons who qualify for the program, but are unable to participate because of inadequate funding. Plaintiffs purport to represent the class of "all impoverished individuals, 60 years of age or older, who are in need of, and who seek the benefits of the Nutrition Program for the Elderly [Title VII of the Older Americans Act, as set forth at 42 U.S.C. §§ 3405 et seq. ], but who are fully or partially denied such participation and aid as a result of the defendants' unlawful impoundment of between $26.5-$37.5 million in appropriated program funds." Memorandum in Support of Class Action Motion 1. *fn2" Plaintiffs allege that the Congressional mandate embodied in the FY 1976 appropriations act requires an actual expenditure of $187.5 million during the year, and that defendants' limitation of actual expenditures to approximately $160 million amounts to an illegal impoundment of funds. Plaintiffs further allege that Title VII of the Older Americans Act requires defendants to make all funds available to the parties in the year in which they were appropriated and to periodically reallocate funds during that same year in a manner which ensures that the entire appropriation will be spent.

 Conclusions of Law

 The court finds that Congress clearly and unequivocally intended the Labor-HEW Appropriations Act for Fiscal Year 1976 to result in the actual expenditure of $187.5 million during the 12 months to which it applied. Defendants' contention that Congress intended to mandate only a $187.5 million annualized rate of expenditure is completely at odds with the act's legislative history. Plaintiffs have cited to the court numerous statements by Senators and Congressmen, made both at the time the appropriations bill was voted on in December and the time the President's veto was overridden in January, which plainly indicate that the full $187.5 million was to be expended during FY 1976. *fn3"

 Representative Pepper, Chairman of the Select Committee on Aging's Subcommittee on Health and Long Term Care, stated,

[The] bill requires the Secretary of Health, Education and Welfare use carry-over funds so that the "level of operations for the nutrition program for the elderly shall be $187.5 million per annum." The benefit of this requirement that $187.5 million be spent in fiscal year 1976 will be felt by many of our elderly citizens who have not been able to take advantage of the nutrition benefits offered under title VII.

 121 Cong. Rec. H12014 (daily ed., Dec. 8, 1975) ...

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