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DABNEY v. REAGAN

October 20, 1982

LORRAINE DABNEY, et al., Plaintiffs,
v.
RONALD REAGAN, et al., Defendants


Haight, District Judge.


The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

 Plaintiffs move for an order compelling defendants to comply, in certain designated respects, with this Court's Order of June 29, 1982. Defendants contend that, in the light of present circumstances, the order of compliance should not issue. Defendants are correct, and the present motion is denied.

 The circumstances of the litigation are fully set forth in the Court's prior opinion, Dabney v. Reagan, 542 F. Supp. 756 (S.D.N.Y. 1982), familiarity with which is assumed. Rejecting the defendants' contention that the complaint gave rise to no basis for judicial supervision of their activities, the Court directed them "to expedite all [Solar Energy and Energy Conservation] Bank implementation activities, and to make those funds appropriated for Bank use FY1982 available for disbursement to qualified applicants, as quickly as good faith discharge of the said defendants' responsibilities under the Act will permit . . ." Id. at 768. Defendant Pierce or his designated representative was ordered to file by August 30, 1982 an affidavit setting forth the implementation steps that had been taken; the parties were directed to appear at a status conference on September 2, 1982. Oral argument was held, and a further round of briefs submitted.

 These additional submissions reveal that since this Court's Order of June 29, 1982, there have been significant developments.

 The Board of the Bank made two basic policy decisions. The first was to operate the Bank by distributing its funds to states, for use in their energy conservation and solar program, rather than distributing funds directly to financial institutions and end-users. The second was to defer final drafting of regulations until proposals from interested states have been received and evaluated.

 By Notice of Funding Availability ("NOFA") dated August 27, 1982, the Bank advised the states and territories that the Bank was in business and ready to receive proposals. A deadline of October 15, 1982 for the submission of proposals was given. Three states (Iowa, Pennsylvania and New Hampshire) and one territory (American Samoa) wrote to the Bank requesting an extension of that deadline. Under date of September 30, 1982, 20 members of Congress (including Messrs. Neal and McKinney, who are among the plaintiffs at bar) wrote to defendant Pierce to request a 30-day extension of the deadline, stating in part: "The States of California, Minnesota, Oregon, New Hampshire, Missouri and Ohio have informed us that this extension would result in substantially better programs being designed." This is also the general tenor of the appeals made directly to the Secretary. The Board has approved an extension for the submission of proposals to November 15, 1982.

 As appears infra, plaintiffs are not satisfied with defendants' progress in implementing the Bank and its programs. But they are not critical of the Board's decision to funnel Bank funds through existing or newly designed state programs; and the reasons given for that policy decision are perfectly plausible. *fn1"

 The advisory committees established by the Act were told of these policy decisions as a fait accompli. Their advice was not requested in advance. Insofar as appears from the latest papers, the Board does not presently contemplate asking the advisory committees for any advice.

 Another development relates to filling the office of President of the Bank. On September 28, 1982 President Reagan nominated Robert W. Karpe as President of the Bank and submitted that nomination to the Senate for confirmation. Mr. Karpe currently serves as President of the Government National Mortgage Association. Senate confirmation is pending.

 Against the background, plaintiffs move for compliance with the Court's prior Order, and pray that the Court do the following:

 
"1. Order defendants to properly convene both Advisory Committees of the Bank, pursuant to 12 U.S.C. 3606 and 45 Fed. Reg. 78236-7, within 30 days, direct the Advisory Committees to issue a report to defendants within 30 days of their first meeting that addresses alternative means to expedite operation of the Bank and other recommendations to ensure compliance with the statute and Court Order, to convene the Advisory Committees as many as four times to facilitate completion of this task, and to make this report available to the Court;
 
"2. Order defendants to submit to the Senate of the United States within 30 days the nomination of an individual for confirmation as President of the Bank and within 30 days filed with the Court by affidavit a verification specifying who will serve as the full-time President of the Bank, pursuant to 12 U.S.C. 3605, as well as specify what other staff have been hired at what salary levels and on what dates to staff the Bank, and including an itemization of what tasks remain to be performed to render the Bank operational and when these tasks will be performed and when the Bank is expected to disburse funds; and
 
"3. Order defendants to stipulate within 30 days a date certain not later than November 15, 1982, when regulations will be drafted ...

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