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April 11, 1973

Howard J. PHILLIPS, both Individually and in his capacity as Acting Director, Office of Economic Opportunity, Defendant. WEST CENTRAL MISSOURI RURAL DEVELOPMENT CORP. et al., Plaintiffs, v. Howard PHILLIPS, Individually and as Acting Director, Office of Economic Opportunity, Defendant. NATIONAL COUNCIL OF O.E.O. LOCALS, A.F.G.E., AFL-CIO, et al., Plaintiffs, v. Howard J. PHILLIPS, Acting Director of the Office of Economic Opportunity, et al., Defendants

William B. Jones, District Judge.

The opinion of the court was delivered by: JONES

These three consolidated actions have been brought to declare unlawful and enjoin what the plaintiffs alleged to be the unlawful dismantlement of the Office of Economic Opportunity (OEO) by the defendant, Howard J. Phillips, Acting Director of OEO. The plaintiffs in Local 2677, American Federation of Government Employees, et al. v. Phillips, Civil Action No. 371-73 (hereinafter Local 2677), by an amended complaint, are the labor organization-bargaining agent for the Washington, D.C. headquarters employees of OEO, and two individual OEO headquarters employees. Suit is brought on behalf of all OEO employees throughout the country who have been or are about to be adversely affected by the alleged unlawful acts of the defendant. The plaintiffs in West Central Missouri Rural Development Corp., et al. v. Phillips, Civil Action No. 375-73 (hereinafter West Central), are four Community Action Agencies (CAAs) as designated pursuant to 42 U.S.C. § 2790 (1970), which bring their suit on behalf of all 930 CAAs receiving funds from OEO under section 221 of the Economic Opportunity Act of 1964, as amended, 42 U.S.C. § 2808 (1970). In the third suit, National Council of O.E.O. Locals, A.F.G.E., AFL-CIO, et al. v. Phillips, et al., Civil Action No. 379-73 (hereinafter National Council), the plaintiffs are the exclusive agency-wide representative for all nonsupervisory OEO employees, an association of CAA executive directors, three CAAs, two headquarters employees of OEO, several CAA employees, and several beneficiaries of programs funded by OEO through CAAs. National Council is likewise brought as a class action on behalf of all OEO employees, all CAAs and their employees, and all beneficiaries of CAA programs. *fn1" Jurisdiction is based on 28 U.S.C. §§ 1331, 1343, 1361 and 2201-2202 (1970), as well as for review of administrative action under 5 U.S.C. §§ 701-706 (1970).

 At a hearing on March 2, 1973, the Court granted the defendant's uncontested motion for consolidation and allowed the plaintiffs certain limited expedited discovery of Phillips by interrogatories and set a timetable for the filing of motions. At that time the defendant filed an affidavit indicating his intention not to take any action, prior to March 15, 1973, relating to transferring or discontinuing any OEO program which would finally and irrevocably adversely affect the rights of OEO employees. The terms of that affidavit were extended to March 23, 1973, at the Court's request. Subsequently, on March 7, 1973, the application for a temporary restraining order in Local 2677 was argued and denied. The case is now before the Court on the plaintiffs' *fn2" motions for preliminary injunction, the defendant's motion to dismiss or in the alternative for summary judgment, and the plaintiffs' cross-motions for summary judgment, which supercede and incorporate the prior motions for preliminary injunction.

 The plaintiffs' statements of material facts as to which there is no genuine dispute, filed in accordance with Local Rule 9(h), have not been controverted by the defendant, except as they may contain legal conclusions. Those material facts in turn are merely an elaboration of the Rule 9(h) statement submitted by the defendant, and thus the Court finds that there are no material facts in dispute and the case is ripe for summary judgment.

 On March 20, 1973, two days before the oral hearing in this case, the plaintiffs in National Council moved to voluntarily dismiss their suit under Fed. R. Civ. P. 41(a) so that they could join in a similar suit brought by other parties in the United States District Court for the Northern District of Illinois. Dismissal under Rule 41(a)(1) would not be proper because of the class nature of the suit and the filing of a motion for summary judgment by the defendant. The Court, in the exercise of its discretion under Rule 41(a)(2), will refuse to grant the voluntary dismissal. Although the Court is aware of the alleged financial burden of pursuing this action further, the motion for dismissal was not filed until the case was ready for final disposition by summary judgment. Dismissal at this time, especially of a class action, would not best facilitate the orderly and swift administration of justice. *fn3"

 Consideration was also given at oral argument to transferring National Council to the Northern District of Illinois for possible consolidation with the suit plaintiffs sought to join there. The defendant's counsel objected, noting that argument was scheduled for four days later on the motion for preliminary injunction in that suit. In view of that circumstance, the Court decided that a transfer would be untimely.

 Statement of the Case

 The plaintiffs assert that the defendant has been acting illegally for several reasons. It is sufficient for the disposition of these cases to consider only three of their contentions. First, the plaintiffs claim that the Economic Opportunity Amendments of 1972 (hereinafter 1972 Amendments), Pub. L. No. 92-424, 86 Stat. 688 (1972), in particular sections 2(a), 3(c)(2), and 28, forbid the defendant from taking the actions he has to terminate OEO funding of CAAs. Second, the claim is made that the activities of the defendant regarding the alleged termination of CAA functions is an illegal reorganization because the terms of the Reorganization Act, 5 U.S.C. §§ 901-913 (1970) have not been complied with. Finally, the plaintiffs contend that the defendant's directives are illegal and of no effect because he failed to publish them in the Federal Register as required by section 22 of the 1972 Amendments, 42 U.S.C.A. § 2971b. The defendant has raised several technical defenses in addition to his defenses on the merits. The Court finds against the defendant on these points for reasons set forth below.

 The Court finds for the plaintiffs on all three of these basic substantive theories.

 Case or Controversy

 The defendant argues that these cases are brought prematurely and thus fail to present a justiciable case or controversy. An examination of the uncontroverted facts reveals that this contention is totally unfounded and that the present cases present a justiciable case or controversy.

 On January 29, 1973, President Nixon submitted his 1974 Budget Message to Congress. That budget message set forth the administration's plan to transfer responsibility for certain OEO functions to other agencies. The message specifically notes that

No funds are requested for . . . [OEO] for 1974. Effective July 1, 1973, new funding for . . . [CAAs] will be at the discretion of local communities. . . . With Community Action concepts now incorporated into ongoing programs and local agencies [if the budget proposals are approved], the continued existence of OEO as a separate Federal agency is no longer necessary. *fn4"

 The defendant has attached this excerpt from the budget message to his affidavit filed in support of his motion for summary judgment as an indication of the plan he is pursuing as Acting Director of OEO.

 Thus, as stated in the uncontroverted West Central statement of material facts not in issue, all program evaluations and processing of CAA applications for purposes other than phasing out CAA activities have stopped. CAAs have been instructed to stop purchasing or repairing essential equipment. The day-to-day business operations of CAAs have been hindered if not halted by the unwillingness of third parties to deal with CAAs because of the announcement by the defendant of the termination of funding. The orderly continuation of CAA functions, discussed in more detail infra, has been halted or severely disrupted by the requirements imposed by OEO regarding termination. Finally, CAA employees are leaving their jobs in anticipation of the cessation of funding in compliance with OEO directives.

 The defendant asserts that the complaint of the plaintiffs is premature because the defendant's compliance with his statutory duties regarding CAAs cannot be determined until June 30, 1973. The basic theory underlying this assertion is that until that time the defendant will be in compliance with all applicable statutes because the OEO's CAA function will not cease before that date and because he will reserve and make available for obligation to CAAs in fiscal year 1973 the $328,900,000 mandated by section 3(c)(2) of the 1972 Amendments. *fn5"

 Article III of the Constitution does limit the jurisdiction of this Court to actual cases or controversies, and forbids the adjudication of hypothetical questions upon which the Court would render only an advisory opinion. Golden v. Zwickler, 394 U.S. 103, 108, 110, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969). A case or controversy in the constitutional sense "must be definite and concrete, touching the legal relations of parties having adverse legal interests." Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-241, 57 S. Ct. 461, 464, 81 L. Ed. 617 (1937). In the absence of an immediate adverse effect on parties in a concrete situation, a dispute is too hypothetical for the proper exercise of the judicial function. Longshoremen's Union v. Boyd, 347 U.S. 222, 223-224, 74 S. Ct. 447, 98 L. Ed. 650 (1954).

 The application of these general principles to the instant suit demonstrates that it readily meets the case or controversy requirement. The plaintiffs are challenging the current practices of the defendant as they affect the day-to-day operations of the CAAs. There is no doubt but that the directives of the defendant, in requiring the CAAs to phase out their operations and in setting a timetable for that purpose, have presented a judicially cognizable controversy that is having severe, intended, and immediate adverse consequences upon all the class plaintiffs in these suits. Moreover, the defendant has announced in Instruction 6730-3 that each CAA must decide by June 30, 1973, whether to continue in existence and notify OEO of that decision.

 In determining whether a dispute has matured to the point at which it becomes a case or controversy, a court may look to the announced intentions of the defendant to take adverse action against a plaintiff. Younger v. Harris, 401 U.S. 37, 42, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). If a plaintiff is "either presently or prospectively subject to the regulations, proscriptions, or compulsions that he . . . [is] challenging," then he has presented a case or controversy for judicial resolution. Laird v. Tatum, 408 U.S. 1, 11, 92 S. Ct. 2318, 2325, 33 L. Ed. 2d 154 (1972). The plaintiffs here are subject to both presently effective orders and those which require them to take action in the future which they challenge as unlawful. The defendant has left no doubt of his intention to act in accord with those orders.

 Surely it cannot be maintained that the plaintiffs must wait until the CAAs have gone out of existence before they may challenge acts of the defendant which they claim are illegal. Courts do not require that an injury be complete before they will adjudicate the issues. The present case is no abstract disagreement over policies which have not as yet affected the plaintiffs in a concrete way. The controversy is so concrete that a delay in judicial consideration would work extreme hardship on the plaintiffs. Cf. National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 443 F.2d 689 (1971).

 In rebuttal the defendant argues that no case or controversy can exist until Congress appropriates money for OEO to operate in fiscal 1974. The plaintiffs, however, do not argue that OEO must spend new funds in fiscal year 1974 which have not been appropriated. Rather they challenge as unlawful the current and announced practices of the defendant as they affect the plaintiffs today, even though those practices will affect them as well after June 30, 1973. In that context, this case is justiciable.

 Political Question

 The defendant contends further that this case is not justiciable because it involves a political question. That theory is bottomed on the assumption that what the plaintiffs really ask of this Court is for it to interject itself between the Executive and Legislative branches of the federal government regarding the Executive budget proposals for OEO for fiscal year 1974. If that were the circumstance, the defendant would clearly be correct. But the Court holds that not to be the circumstance and that this case does not present a nonjusticiable political question.

 As will be elaborated in the discussion of the merits of this case, the plaintiffs are challenging the defendant's exercise of his statutory powers as Acting Director of OEO as unlawful and in direct violation of certain statutory obligations. The plaintiffs do not seek to force Congress to appropriate any funds or to require the defendant to spend any funds which have not been appropriated. Rather they seek to enjoin the defendant from acting in a manner other than that consistent with laws already passed by the Congress and signed by the President. It is their contention that Congress has already spoken through law on the manner in which the OEO, and in particular the CAA program of OEO, must be operated and that the defendant is acting contrary to that mandate.

 Therefore this dispute is one which readily is within the judicial power. It is the type of case which the federal courts regularly encounter and decide. See, e.g., Ringer v. Mumford, 355 F. Supp. 749 (D.D.C. 1973). Thus there is no problem with formulating "judicially discoverable and manageable standards for resolving" the dispute. Powell v. McCormack, 395 U.S. 486, 518, 89 S. Ct. 1944, 1962, 23 L. Ed. 2d 491 (1969), quoting Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Briefly, the Court must determine whether an executive official is following the explicit mandates of the Congress and the Constitution, which is the judicial function in our tripartite government. Baker v. Carr, supra, at 211, 82 S. Ct. 691. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803).

 No problem of a clear textual commitment to another branch of government of the matter under consideration here is present. Powell v. McCormack, supra, 395 U.S. at 518, 89 S. Ct. 1944; Baker v. Carr, supra, 369 U.S. at 211, 217, 82 S. Ct. 691. The textual commitment most apposite to the instant case is that of the President under Article II, section 3, of the Constitution to "take Care that the Laws be faithfully executed." The plaintiffs claim that the defendant, an executive official, is in violation of his duties under 42 U.S.C. § 2808 (1970) to implement the Economic Opportunity Act, in particular as last amended by the Congress. No nonjusticiable political question is presented in this case.

 Sovereign Immunity

 The defendant argues that in reality these are unconsented suits against the United States which must be dismissed because of sovereign immunity. In support of this theory, it is contended that enjoining the defendant would be a judgment which would draw upon the Treasury because it would require the expenditure of funds not yet appropriated, and further that it would interfere with the public administration of the laws. Thus the well known rule that a suit nominally against a government official is in actuality an unconsented suit against the United States would require dismissal. Land v. Dollar, 330 U.S. 731, 738, 67 S. Ct. 1009, 91 L. Ed. 1209 (1947).

 The defendant would be right if the characterization of the issues were correct. But this argument proceeds on a fundamentally incorrect premise. The relief which the plaintiffs seek would not be a drain on the public purse. No injunction to spend unappropriated funds is sought. What the plaintiffs do demand is that the defendant be enjoined from acting in a manner which violates his statutory duties under the Economic Opportunity Act or that he be declared to be acting unconstitutionally. Thus this suit clearly falls within the exception to the doctrine of sovereign immunity which allows suits against federal officials who have allegedly acted beyond their statutory powers or have exercised their statutory powers in a constitutionally void manner. Dugan v. Rank, 372 U.S. 609, 621-622, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963); Larson v. Domestic & Foreign Corp., 337 U.S. 682, 689, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949). *fn6" Even though a judgment of this Court will require that funds be expended in its implementation, there is no draw upon the public treasury. It is undisputed that Congress has appropriated monies for the operation of OEO through June 30, 1973. Pub. L. No. 92-607, 86 Stat. 1503. Therefore any order of this Court requiring the defendant to act in accordance with the mandate of Congress would draw upon funds appropriated for that purpose.

 Sovereign immunity has also been waived in a second manner. Jurisdiction in this suit is partially based on the review of administrative action pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1970). In cases in which the Administrative Procedure Act is applicable, it is the law of this Circuit that that Act serves as a waiver of sovereign immunity. Scanwell Laboratories, Inc. v. Shaffer, 137 U.S. App. D.C. 371, 385, 424 F.2d 859, 873 (1970); Constructores Civiles de Centroamerica, S.A. v. Hannah, 148 U.S. App. D.C. 159, 459 F.2d 1183 (1972). As the Court of Appeals recently held in Knox Hill Tenant Council v. Washington, 145 U.S. App. D.C. 122, 129, 448 F.2d 1045, 1052 (1971):

There is nothing new about judicial entertainment of suits which charge that federal officials are acting outside of, or in conflict with, the responsibilities laid upon them by the Congress or the Constitution. Whether such charges are true, and, if so, what remedial action the court should or may direct, are questions partaking of the merits, and not of jurisdiction to explore the merits. (Footnote omitted.)

 Thus this Court has jurisdiction to interfere with the public administration in cases in which it is charged that the administrator has violated his statutory and constitutional responsibilities.

 Standing in Local 2677 and National Council

 The plaintiff OEO employees in Local 2677 and National Council complain of the defendant's actions in terminating CAA funding and functions as an unlawful exercise of his statutory powers as Acting Director of OEO and as violative of the Reorganization Act, 5 U.S.C. §§ 901-913 (1970). They argue that the abolition of OEO itself, the avowed goal of the defendant, see supra will adversely affect them in that they will be and are losing their jobs either through reductions in force or outright firings. The defendant argues that the unions lack standing to assert these claims on behalf of their employees and that, in any event, they have failed to exhaust their administrative remedies and thus are precluded from bringing suit at this time. These contentions are without merit and the Court finds that the union plaintiffs in Local 2677 and National Council have standing and are not barred by the doctrine of exhaustion of remedies.

 No general discussion of the evolving law of standing is needed to demonstrate that the union plaintiffs have asserted the required claim of injury in fact to an interest arguably within the zone of interests to be protected or regulated by the statutes which they claim the defendant is not carrying out. See Sierra Club v. Morton, 405 U.S. 727, 733, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). The loss of jobs is certainly a claim of injury in fact. Although the union plaintiffs may not be the primary intended beneficiaries of the statutes which they claim the defendant's actions violate, they need only be intended beneficiaries to have standing. Constructores Civiles de Centroamerica, S.A. v. Hannah, 148 U.S. App. D.C. 159, 165, 459 F.2d 1183, 1189 (1972); Peoples v. United States Department of Agriculture, 138 U.S. App. D.C. 291, 293, 427 F.2d 561, 563 (1970). The plaintiffs' interest in continued employment is one that the statutory and constitutional provisions which they claim are being violated were intended to protect.

 This case is strikingly analogous to Lodge 1858, A.F.G.E. v. Paine, 141 U.S. App. D.C. 152, 436 F.2d 882 (1970). In Lodge 1858 the Court of Appeals held that civil service employees of the National Aeronautical and Space Administration (NASA) through their union had standing to contest as violative of a statute the action of the NASA administrator in hiring outside workers at a federal installation. The statute placed specific limitations on the administrator in using outside workers. The situation is the same in the instant case. The union plaintiffs assert that their members will lose their jobs because their administrator, the defendant, is acting outside the scope of his statutory authority.

 Lodge 1858 also dictates that this case not be dismissed for failure to exhaust administrative remedies. The exhaustion requirement contemplates an effective remedy before it comes into play. In Lodge 1858, the employees could not challenge the statutory validity of the outside contracts in a civil service proceeding and thus it would have been futile to require them to exhaust that "remedy" before challenging the administrator's action in court. In the present case, it would likewise be outside the scope of civil service authority to determine whether the defendant was acting within his statutory duties in terminating the CAA function of OEO and OEO itself. Id. at 166-167, 436 F.2d at 896-897.

 Having rejected the defenses to jurisdiction of the defendant as inapplicable to the present proceeding, the Court now turns to the substantive consideration of the plaintiffs' claims.

 Termination of CAA Funding as Violative of the Economic Opportunity Act of 1964, as Amended

 As set forth earlier, *fn7" on January 29, 1973, President Nixon submitted his 1974 Budget Message to Congress. The budget message requests that no funds be appropriated OEO in fiscal year 1974. CAA functions are to be transferred to local agencies through the use of special revenue sharing. The existence of OEO as a federal agency is to cease. On the same date, the defendant issued a memorandum to all OEO regional offices, regarding the "termination of section 221 [CAA, 42 U.S.C. § 2808 (1970)] funding." *fn8" Before discussing this termination program in more detail, a brief outline of the CAA function of OEO will help place this controversy in the proper perspective.

 A CAA is a state, a political subdivision of a state, a combination of political subdivisions, or a public or private non-profit agency formally designated as a CAA by a state or appropriate political subdivision. The CAA designation is official for purposes of receiving funds and administering ...

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