dissenting.
I understand from the record that the facts taken as true for purposes of the motion for summary judgment in the court below are as follows: The plaintiff in this case is an admittedly frugal and deserving but impoverished woman who lives with her several minor children in her own, paid-for home in a deteriorating neighborhood scheduled for urban renewal in the city of Detroit. Without any support from her divorced husband, she receives aid to dependent children payments in order to maintain her family. Section 312 of the Housing Act of 1964 provides for low interest rate loans to poor people in slum clearance and urban renewal areas so that they can repair their homes and bring them up to building code standards. The legislation is intended to preserve the home and prevent demolition and displacement of families in urban renewal areas. The mother’s monthly welfare check would be increased by approximately $20, the amount of her monthly mortgage payments, if she receives the loan. She is eligible and would receive the loan under § 312, except for one fact: HUD insists that the state welfare office send the check for the monthly mortgage payments directly to HUD. HUD knows that she is willing to comply with this request but cannot do so because HEW funds the welfare program and has regulations that prevent the welfare office from making payments directly to HUD. Under HEW rules, the welfare office must send the check to the mother and not to HUD. The effect of this is intentionally to single out welfare mothers as a class who are ineligible for housing loans for the poor in urban renewal areas — because HUD insists on a condition which HEW refuses to permit.
If the facts assumed by the District Court in ruling on the summary judgment motion are true, this case represents an isolated instance of federal bureaucratic irrationality that I do not believe responsible executive officials should stand for or that this Court can afford to sanction. However unpopular and unworthy welfare mothers may be in today’s climate of opinion, and however stringent the test of arbitrarinéss may be in matters of welfare economics under the Administrative Procedure Act and equal protection, this is beyond the pale. It offends the equal protection clause as recently interpreted by the Supreme Court. Compare United States Department of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973) (exclusion of certain households from food stamp assistance simply to burden and stigmatize politically unpopular groups unconstitutional); New Jersey Welfare Rights Organization v. Cahill, 411 U.S. 619, 621, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973) (denial of public assistance to families with illegitimate children invalid); Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) (durational residency requirements for receipt of welfare invalid); Smith v. Cahoon, 283 U.S. 533, 51 S.Ct. 582, 75 L.Ed. 1264 (1931) (under-inclusive statute exempting agricultural transportation from regulation of transportation companies invalid as irrational); with Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (absolute welfare limit of $250 per month per family regardless of family size valid); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) (welfare scheme allotting less to AFDC families than blind, disabled and elderly not stigmatizing and therefore valid, but see Mr. Justice Marshall’s dissent); and City of New York v. Miln, 36 U.S. (11 Pet.) *551102, 142, 8 L.Ed. 888 (1837), poverty a sign of “moral pestilence” and moral and mental deficiency; thankfully, a case that is now overruled, Goldberg v. Kelly, 397 U.S. 254, 265, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
I would reverse the action of the court below granting summary judgment for the government on these issues and remand the case for trial.