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CAUSE OF ACTION 1. This action arises under the Soil Conservation and Domestic Allotment Act, as amended, creating REAP, secs. 7–15, 16(a) and 17, 16 USC secs. 590g-5900, 590p (a) and 590q, The Housing Act of 1949, as amended, creating FACE, secs. 115, 117 and 312, 42 USC secs. 1466, 1468 and 1452b, the Civil Rights Aet of 1871, sec. 1, 42 USC sec. 1983 and the Declaratory Judgment Act, 28 USC secs. 2201, et seq.

JURISDICTION 2. Jurisdiction of this Court is invoked under 28 USC secs. 1331 (federal question), 1332 (diversity), 1337 (Commerce Clause), 1361 (mandamus) and 5 USC secs. 701-06 (Administrative Procedure Act). The amount in controversy exceeds $10,000, exclusive of costs and interest. There is diversity of citizenship between the parties.

DEFENDANTS

3. Defendant Roy L. Ash is Director, Office of Management and Budget (OMB). In such capacity, he is charged with the administration of the Anti-Deficiency Act of 1951, 31 USC sec. 665.

4. Defendant Earl M. Butz is Secretary, United States Department of Agriculture (USDA). In such capacity, he is charged with the administration of the REAP program.

5. Defendant James T. Lynn is Secretary, United States Department of Housing and Urban Development (HUD). In such capacity, he is charged with the administration of the FACE program.

6. Each of the defendants performs his official acts (including the acts complained of herein) in, and is officially resident in, and a citizen of the District of Columbia.

PLAINTIFFS 7. Plaintiff W. M. (Bill) Scarbrough is a cattle rancher who grazes cattle on approximately 1400 acres of land in Meadville, Mississippi where he resides and is a citizen. Plaintiff Scarbrough has for 28 years, from 1944 until the termination of the REAP program by defendants ASH and BUTZ on December 22, 1972, received REAP benefits as is more particularly pleaded below in paragraph 23.

8. Plaintiffs Espinoza, Apana and Guadamuz are all low-income property owners who reside in a FACE area in San Francisco. Each of them has applied for FACE grants and loans and each has been advised that all that is delaying their receipt of funds is the impound of sec. 312 monies, as is more particularly pleaded below in paragraphs 48-50.

9. Plaintiffs Scarbrough, Espinoza, Apana and Guadamuz bring this action on behalf of themselves and all other persons similarly situated pursuant to Rule 23(b) (1) and (2) of the Federal Rules of Civil Procedure. The class consists of two proper sub-classes :

a. plaintiff Scarbrough represents all farmers throughout the nation who would have received REAP grants but for the impound placed upon appropriated REAP funds (approximately 820,000 farmers in fiscal year 1972); b. plaintiffs Espinoza, Apana and Guadamuz represent all property owners throughout the nation who would have received FACE benefits but for the impound placed upon funds appropriated for the purposes of sec. 312 rehabilitation loans (approximately 7,000 such loans were made in fiscal

year 1972). Each subclass is so numerous that joinder of all members is impracticable. There are common questions of law, namely, the legal authority of defendants to impound funds appropriated by Congress, affecting all members of the class. The claims of the representative plaintiffs are typical of the claims of the class. The representative plaintiffs will fairly and adequately protect the interests of the class. The prosecution of individual actions by members of the class would create a risk of inconsistent or varying adjudications and impose incompatible standards of conduct upon defendants. Adjudication with respect to representative plaintiffs would be dispositive of the interests of unnamed members of the class. Defendants have acted or refused to act on grounds generally applicable to the class. Absent a class action, defendants will benefit from their illegal conduct.

FIRST CLAIM

A. The REAP Program--Structure

10. REAP, the Rural Environmental Assistance Program, formerly known as the Agricultural Conservation Program, was enacted in 1936 as part of the soil Conservation and Allotment Act, 49 Stat. 1148, in response to the "dust bowl" conditions of much of rural America.

By providing a share of costs generally not in excess of 50 percent of the cost of performance, REAP encourages, especially on average to small size family farms, environmental improvement practices, the following of which have been the principal practices in recent years: (1) establishing or improving permanent vegetative cover; (2) planting trees and improving timber stands; (3) developing livestock watering facilities and constructing water terracing systems to control runoff ; (4) reorganizing irrigation systems; (5) establishing habitat, protective cover, and food plots for wildlife; (6) constructing mechanisms to reduce or prevent air and water pollution due to disposition of animal wastes; (7) preventing pollution by sediment runoff ; and, (8) disposing of farm residues and solid wastes so as to reduce or prevent air and water pollution. These practices are more fully described in Exhibit 1, attached hereto.

The goals of REAP, according to USDA, are to improve the quality of life for the general public by preventing or abating agriculture-related pollution and to conserve soil, water, woodland, and wildlife resources so as to improve man's total environment.

11. Within USDA, REAP is administered by the Agricultural Stabilization and Conservation Service (ASCS). ASCS, in conjunction with several other divisions of USDA, the Department of the Interior, the Environmental Protection Agency and specially formed state and county advisory groups, formulates a long range plan of national environmental needs called the Conservation Needs Inventory. On the basis of this plan, the total appropriated funds are supposed to be and, until 1972, have been, allocated each year to the several states for cost sharing.

12. Simultaneously with the allocation of funds, ASCS defines the activities or “practices" which it determines are in accord with the year's national priorities as well as the maximum cost-sharing percentages for such practice. Each state REAP committee, consisting of 3 or 5 members appointed by defendant Butz, with the advice of other state and federal agencies, together with private persons and organizations with agricultural and environmental interests, formulates a state REAP plan. This plan, subject to ASCS approval, may add additional practices and alter the percentage of cost sharing. Each state thus has the opportunity to form a REAP program tailored to its needs.

13. When the state plan is approved, it is submitted to the individual county REAP committees, which consist of 3 members who are elected by all the farmers in the county. The county plan can similarly vary the practices and cost sharing, subject to approval of the state REAP committee and ASCS.

14. Only after final approval by the state and county plans may individual farmers (defined as owners, tenants or sharecroppers engaged in farming or ranching) submit proposals to the county committees. Low-income farmers are given priority.

If an individual farmer's application is approved, USDA shares in the cost of executing the “practice" up to the applicable local percentage subject to an overall maximum contribution of $2,500. B. The REAP Program-Recent Budgetary History

15. Since its enactment in 1936 through fiscal year 1972, REAP has contributed $7.2 billion to the conservation and enhancement of the nation's natural resources, with at least 800,000 farmers each year receiving financial assistance to encourage their participation in conservation practices.

16. From FY 1959 to FY 1969, Congress each year appropriated, by overwhelming margins, at least $100,000,000 more than the amount requested by the President for the REAP Program as more fully appears in the following table :

[In millions)

Budget request

Congressional
appropria. Including votes on final

tion passage

Fiscal year

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250 House: Voice.

Senate: Voice. 250 House: Voice.

Senate: 74-10.
250 House: Voice.

Senate: 74-1.
House: 320-65.

Senate: Voice.
250 House: 346-41.

Senate: Voice.
House: 288-79.
Senate: 74-5.
House: 311-84.

Senate: Voice.
220 House: 354 41.

Senate: 86-2. 220 House: 366-23.

Senate: 77-2. 220 House: 357-38.

Senate: 88-3. 195.5 House: 317-71,

Senate: Voice.

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17. In the FY 1970 budget request, the president sought no funds for REAP. Congress, however, enacted obligational authority of $195,500,000, of which only $185,000,000 was released by OMB.

18. Similarly, in the FY 1971 budget request, the President requested no REAP monies. ('ongress, again, enacted obligational authority of $195,500,000. Of this amount, OMB authorized the release of only $150,000,000.

19. In the FY 1972 budget request, the President asked for only $140.000.000. Congress enacted obligational authority of $195,500,000. After this Congressional action, only $140,000,000 was released by OMB. In January, 1972, after considerable citizen and congressional pressure, the additional $55,500,000 was released.

20. In his FY 1973 budget, the President requested only $140,000,000 for REAP. Congress enacted obligational authorits of $225,000,000. Shortly after the funds were appropriated, OMB impounded $85,000,000 so that the amount released equalled that requested, $140,000,000.

21. By December 22, 1972, only $4,847,129 had been committed by county REAP committees throughout the nation because of the necessary delay involved in formulating the year's practices on the national, state and county levels. In Mississippi, where plaintiff Scarbrongh resides, $5.835,180 had been allocated, but only $14,423 had been committed by the county REAP committees.

22. On December 22, 1972, defendant Butz announced that all uncommitted funds had been impounded by OMB and that the REAP program was being terminated. See Exhibit 2, attached hereto. Defendant Butz stated that REAP was of low priority and could be eliminated without serious economic conse quences. He further stated that the action was taken as part of an effort to hold 1973 federal budget outlays to $250 billion. Defendant Butz said that the REAP program was no longer necessary because farmers' incomes would reach their highest levels this year and because he believed that farmers would undertake a significant number of the conservation practices without REAP aid. C. The REAP Program-Plaintiff

23. Plaintiff Scarbrough was, for approximately 15 years, a member of the Franklin County Agricultural Stabilization and Conservation Committee which planned the local REAP program and its predecessor, has been a recipient of cost-sharing under REAP and its predecessor program since 1944, and is, at present, a county commissioner of the Soil Conservation Program, whose principal purpose is to provide technical backup for REAP. He has, during that period of time, expanded funds to establish, improve or protect permanent vegetatire cover on his pasture and grazing land by liming, fertilizing and seedings, to con

struct terrace systems, and to build water impoundment reservoirs. In each case, lie had then been partially repaid upon the approval of his voucher submissions detailing his actual outlays. When he began to engage in these conservation practices, he was given the maximum $2,500 cost sharing for his farm. Over the years both Mississippi and Franklin County, where he resides, have had to impose their own maximum limitations on the program so that, for the past few years, he, like the approximately 38,000 other farmers in the state who engage in REAP practices, has been held to a $750 overall ceiling for all REAP-approved expenditures and even then is entitled to only a 30 percent Federal share of his costs in maintaining the vegetative cover on his land. Since it costs plaintiff Scarbrough approximately $7,000 a year to engage in these conservation practices and his ranch is only a marginal economic operation, making a small amount of money some years, while losing money in others, the loss of REAP cost-sharing benefits will be a significant economic factor affecting the income he derives from his ranch. D. The REAP Program-Duty

24. The impounding of REAP funds by defendant Ish has been done without statutory or constitutional authority.

25. Defendant Butz is without authority to terminate the REAP program, on the basis of the claimed grounds, or any other.

26. Said defendants, as officers in the executive branch of government, have a constitutional duty pursuant to Article II, Sec. 3, to take care that the laws are faithfully executed. The duty includes appropriation acts. Under this duty, defendant Ash can impound only within the terms of the Anti-Deficiency Act of 1951, 64 Stat. 765, Title XII, sec. 1211, 31 USC sec. 665(C) (2). Said statute permits impounding of appropriated funds only when :

a. to do so is necessary to allow for contingencies in program operations which may arise and which could not have been determined with certainty at the time (ongress appropriated the funds; and,

b. savings are made possible because the requirements of the object of the appropriation have changed, because the efficiency of program operations has increased, or other such developments occur, such that the same Congressional objective can be achieved with the expenditure of less funds.

27. In the case of the REAP obligational authority, the Anti-Deficiency Act of 1951 is inapplicable, and there is no other express or implied Congressional authorization to impound said funds.

28. The REAP impoundment thus represents unilateral action by defendants to implement their own social and economic goals and preferences by reallocating national resources in contravention of Congressional dictates.

29. In the absence of power to impound and in the face of laws passed by Congress which he must faithfully execute, defendant Ash must release the entire $225,000,000 obligational authority to defendant Butz who must, in turn, apportion the entire amount to the states.

SECOND CLAIM

A. The FACE Program-Structure

30. FACE, Federally Assisted Code Enforcement, is a composite of secs. 115, 117 and 312 of the Housing Act of 1949, as amended. It came into being in 1964. The broad objective of that Act, as stated in sec. 2, is to realize "a suitable living environment for every American family ; thus contributing to the development and redevelopment of communities and to the advance of the growth, wealth, and security of the nation." 42 USC sec. 1441. FACE assures the achievenent of this goal by providing Federal funds to enable low and middle income homeowners to repair and rehabilitate their houses to comply with housing codes and, ultimately, to forestall the necessity for urban renewal and the consequent destruction of neighborhoods and communities. In the absence of FACE, such homeowners would not have the financial ability to make the requisite repairs and would find their homes condemned or face criminal penalties or be forcibly ejected, while the housing stock deteriorated.

31. FACE is a tripartite program. The first leg of FACE, sec. 117 of the Act, P.L. 89-117, sec. 311(a), 79 Stat. 478, as amended, 42 USC sec. 1468, provides for grants to local governments of 2/3 (or 3/4, in the case of communities with a population of 50,000 or less) of the costs of concentrated housing code inspection and enforcement in deteriorated or deteriorating areas. Activities supported

under sec. 117 include assisting property owners to obtain necessary financing to make the repairs and improvements necessary to comply with the code, and the costs of planning and carrying out of the provision or repair of public streets, sidewalks, curbs, street lighting, traffic lights and signs and beautification.

32. The second FACE leg, sec. 115 of the Act, P.L. 89–117, sec. 106(a), 79 Stat. 457, as amended, 42 USC sec. 1466, was enacted at the same time as sec. 117. It provides for rehabilitation grants to low-income property owners in a FACE area to enable them to make the necessary repairs when their property is in violation of the housing code. The maximum grant is $3,500. The objective of sec. 115 grants is to assist in the greater achievement of the goals of a sec. 117 concentrated code enforcement program by reducing the necessity of, or preventing, displacement of low income residents in a FACE area (who cannot afford to make the repairs themselves), the consequent personal hardship to them and the costs of relocation to the government. Section 115 grants are often used in conjunction with sec. 312 rehabilitation loans in those cases where a property owner's income is so low that the loan payments would exceed 25% of his or her monthly income.

33. The third leg, sec. 312 of the Act, P.L. 88–560, sec. 312, 78 Stat. 790, as amended, 42 USC sec. 1452b, generally, provides for rehabilitation loans of up to $12,000, at 3% interest, payable over 20 years, subject to certain maximum income limits, to property owners within a FACE area. HUD has concluded that the default rate (400 out of 21,000, as of June 30, 1971) is especially low, considering that many beneficiaries present risk situations that are marginal to conventional loan operations. Approximately 33% of the sec. 312 borrowers also receive sec. 115 grants.

34. Because the authorization for the sec. 312 loan program will expire on June 30, 1973, no sec. 312 loan may be made thereafter except pursuant to a commitment entered into prior thereto. Section 312(h), 42 USC sec. 1452 (h).

35. Section 312 is the linchpin of the FACE program since a large majority of the property owners in a FACE area cannot qualify for sec. 115 grants because of excessive income. Of those who do qualify for sec. 115 grants, a very large majority must incur expenditures which are greater than $3500. Thus, without the availability of sec. 312 loans, a FACE program cannot operate in a poverty case.

36. As of June 30, 1972, the FACE program, by providing 28,336 sec. 312 loans and 39,314 sec. 115 grants has brought about the completed rehabilitation of 345,000 dwelling units, including both federally and non-federally aided, with 151,000 more presently in the process of rehabilitation.

37. The total federal cost per rehabilitated dwelling unit during the period 1965–72 was $700. Since the loans are repaid, the construction that they represent imposes no costs on the federal tax-payer. The costs of comparable new construction are at least 15 times greater.

38. As of January, 1973, the estimated present demand for sec. 312 loans was in excess of $250 million. B. The FACE Program-San Francisco

39. The first stage of the FACE program began in San Francisco in 1967 when four neighborhoods were designated as FACE areas: Arguello Park, Buena Vista Heights, Glen Park and Great Highway. The projects were completed in 1970. In the course of those projects, 5,773 dwelling units were inspected, of which 4.890 were determined to require rehabilitation and nearly 90€ of which were rehabilitated. This was accomplished with 612 sec. 312 loans and 230 sec. 115 grants.

40. The Glen Park FACE area exemplifies what FACE can achieve. Glen Park consists of one and two-family homes (98% of the 595 buildings). Seventysix percent of the homes are owner-occupied. Many of the homes in the area required extensive rehabilitation because they dated from in the 1870's and 1880's. The neighborhood had suffered rapid decline because of the construction of a nearby freeway. Of all the homes, 37% required federal FACE financing, with the remainder financed through private means. The average expenditure per building was $1,890.

41. The second stage of the FACE program began in San Francisco in March. 1969, when three new FACE areas were designated : Alamo Square, Bernal Heights and Duboce Triangle. Plaintiffs Espinoza, Apana and Guadamuz all reside in the Duboce Triangle FACE area. Thus far, all of the 4,563 dwelling units in these new FACE areas have been inspected; 31% have completed re

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