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COMMUNITY ACTION PROGRAMS EXEC. DIRS. ASSN. OF NEW

August 28, 1973

COMMUNITY ACTION PROGRAMS EXECUTIVE DIRECTORS ASSOCIATION OF NEW JERSEY, INC., a nonprofit corporation of the State of New Jersey, et al., Plaintiffs,
v.
Roy L. ASH, Director of Office of Management and Budget, et al., Defendants


Garth, District Judge.


The opinion of the court was delivered by: GARTH

This action was commenced on June 25, 1973 by the filing of a Verified Complaint and an Order to Show Cause. Asserting jurisdiction under 28 U.S.C. §§ 1331 and 1361, plaintiffs -- on behalf of themselves and all those similarly situated -- allege that defendants have violated a duty to obligate and spend $270.7 million in summer Neighborhood Youth Corps ("NYC") funds appropriated by Congress for Fiscal 1973. *fn1"

 On June 28, 1973, the return date of the Order to Show Cause, plaintiffs moved for a preliminary injunction which would restrain the defendants from allowing the NYC funds to revert to the United States Treasury without having been spent. *fn2" Pursuant to 28 U.S.C. § 1361, plaintiffs further sought a writ of mandamus ordering defendants to comply with the Economic Opportunity Act of 1964 as amended ("EOA"), 42 U.S.C. § 2701 et seq., Pub.L. 88-452, with the First Supplemental Appropriations Act of 1973, Pub.L. 92-607, 86 Stat. 1498, and with Article II, section 3 of the United States Constitution.

 On June 28 I conducted an evidentiary hearing and considered the affidavits, briefs and oral argument submitted by both sides. Because there were no material issues of fact, other than the precise amount of the alleged congressional appropriation (Tr. 10-13), *fn3" the trial on the merits was consolidated with the hearing on the injunction. 65(a)(2). I made preliminary findings of fact and rendered an oral opinion and order on June 28, but reserved the right (Tr. 132), which I now exercise, to issue a written opinion upon receipt of complete sets of findings of fact and conclusions of law from the parties. *fn4"

 I. Standing

 As a preliminary matter, defendants argue that none of the plaintiff Community Action Agencies *fn5" have requested funding of their summer 1973 NYC programs, so that no case or controversy exists. It is uncontested that no funding request has been submitted to the Department of Labor. However, defendants have presented no evidence that the failure to request funding was improper, and I find that prior practice with regard to the NYC program involved the Department's inviting applications from the Community Action Agencies, with the Agencies only then submitting formal applications. No such invitations were made by the Department in 1973 (Tr. 28-30). Therefore, the failure of the Community Action Agencies to have requested funding is not a bar to this action.

 Defendants further argue that plaintiffs generally lack standing to maintain this action. The test to be applied in order to determine whether plaintiffs have standing under Article III of the Constitution is "whether the party has alleged such a 'personal stake in the outcome of the controversy' . . . as to ensure that 'the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.'" Sierra Club v. Morton, 405 U.S. 727, 732, 92 S. Ct. 1361, 1364, 31 L. Ed. 2d 636 (1972); Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 20 L. Ed. 2d 947, (1968); Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

 The individual plaintiffs Maryann Weston and Yvette Young would be receiving salaries from the summer NYC were it not for the defendants' actions, since they had been tentatively accepted into the NYC program and would have been finally accepted once the funds became available (Tr. 128-29). This direct economic injury resulting from defendants' actions gives these plaintiffs personal stakes in the outcome of the controversy, and therefore confers standing upon them. Scripps-Howard Radio v. FCC, 316 U.S. 4, 62 S. Ct. 875, 86 L. Ed. 1229 (1942); FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S. Ct. 693, 84 L. Ed. 869 (1940).

 The 22 plaintiffs who are the Executive Directors of Community Action Agencies of New Jersey designated to administer the summer NYC program, *fn6" are suing only in their official capacities. The Executive Directors have not alleged loss of their employment as a result of defendants' action. Compare American Federation of Gov't Employees v. Phillips, 358 F. Supp. 60 (D.D.C.1973). Indeed, since the United Community Corp. of Newark, the Paterson Task Force for Community Action and the Union County Anti-Poverty Council appear not to administer NYC funds (Exhibit 1 attached to Verified Complaint), their Directors are not adversely affected within the meaning of Sierra Club v. Morton, supra, 405 U.S. at 739, 92 S. Ct. 1361, and they do not have standing here. However, the remaining 19 are suing as Directors of agencies specifically established by the Executive Branch to administer funds appropriated by Congress for programs mandated by Congress. They have expended time and money fostering sponsorship of and encouraging applications for the NYC program. See Pennsylvania v. Lynn, 362 F. Supp. 1363 (D.D.C.1973). As such, these 19 have more than a mere interest in the relief sought by this action and are within the zone of interests adversely affected by defendants' action. ICC v. SCRAP, 412 U.S. 669, 686, 93 S. Ct. 2405, 2415, 2416, 37 L. Ed. 2d 254 (1973); Doe v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 745, 35 L. Ed. 2d 201 (1973); Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965). Cf. Sierra Club v. Morton, supra, 405 U.S. at 739, 92 S. Ct. 1361. These 19 Directors have standing.

 The plaintiff Community Action Programs Executive Directors Association of New Jersey and the plaintiff NYC Directors Association are not organizations whose members are injured as individuals. Compare NAACP v. Button, 371 U.S. 415, 418, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963); American Federation of Gov't Employees, supra. Nor are the organizations themselves adversely affected by defendants' action. They therefore lack standing to sue.

 II. Class Action Certification

 Pursuant to Fed.R.Civ.P. 23(b)(2), plaintiffs have established the prerequisites for two classes. One class consists of all individuals eligible, qualified and designated as participants in NYC programs for the summer of 1973. The other class comprises all Community Action Agencies established and qualified under the EOA, which sponsor summer NYC programs. For both of these classes joinder of all members is impractical, since Agencies in all 50 states sponsor programs which in 1972 employed over 600,000 youths. Questions of law and fact are common, and plaintiffs' claims are typical, since only one nation-wide program is involved. Plaintiffs will adequately protect the interests of the class, since the individual plaintiffs would be direct beneficiaries if they succeed here, and since the Agencies, in 1972, expended $3,398,227.46 for their own programs, and would spend a similar amount if they succeed here. *fn7" Defendants have refused to act on grounds generally applicable to the class, since all funds have been withheld throughout the entire nation. *fn8"

 III. Justiciability

 Defendants contend that the instant cause of action presents a political question or is otherwise not justiciable. Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663 (1962), ...


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