The complete text of the July 2, 1982 memorandum of the district court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1982.

The complete text of the February 4, 1983 per curiam judgment of the circuit court and Judge Wald's concurring statement is printed in the “Decisions” section of this report at page 648. American Federation of Government Employees v. Pierce

No. 82–2372 (D.C. Cir.) On October 29, 1982, the American Federation of Government Employees ("AFGE"), two employees of the Department of Housing and Urban Development, and U.S. Representative Martin O. Sabo of Minnesota filed a three count class action complaint in the U.S. District Court for the District of Columbia (Civil Action No. 823111] Named as sole defendant was the Secretary of HUD, Samuel R. Pierce.

The complaint stated that the action was being brought on behalf of all HUD employees who received Reduction In Force (“RIF”) notices in September 1982 and who were scheduled to be either terminated or transferred by November 1982. The gravamen of the complaint was that the RIF notices violated the Housing and Urban Development-Independent Agencies Appropriations Act of 1983 (Pub. L. 97-272) (“Appropriations Act") which became effective on October 1, 1982. Under the terms of the Appropriations Act, HUD was prohibited from planning, designing, implementing or administering, prior to January 1, 1983, "any reorganization of the Department without the prior approval of the Committees on Appropriations." The proposed RIFs, said the plaintiffs, constituted a "reorganization” which neither the House nor Senate Appropriations Committee had approved. With respect to Rep. Sabo, the complaint stated that the Congressman was a member of the House Appropriations Committee and as such “has the right to review any plan, design, or implementation of any reorganization prior to its adoption by Defendant.” (Complaint, October 29, 1982, s 25] Rep. Sabo would therefore be irreparably harmed, said the plaintiffs, if the defendant was allowed to carry out its reorganization in definance of the express statutory mandate. The complaint further alleged that the defendant, by ignoring the Appropriations Act's restrictions on the use of appropriated monies, usurped Congress' power to fix appropriations and thus violated the separation of powers doctrine of the U.S. Constitution.

By way of relief, the plaintiffs requested the issuance of: (1) temporary, preliminary, and permanent injunctions prohibiting the defendant from implementing the RIF's; (2) a writ of mandamus commanding the defendant to submit HUD's reorganization plans to the House and Senate Appropriations Committees; and (3) a declaratory judgment describing the rights and duties of the defendant and plaintiffs under the Appropriations Act.

On the afternoon of October 29, District Judge June Green entered a temporary restraining order against the defendant. A hearing on the plaintiffs' motion for a preliminary injunction was set for November 10.

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On November 5, 1982, the plaintiffs filed a memorandum in support of their motion for a preliminary injunction. This memorandum both outlined the plaintiffs' case and responded to many of the arguments that had been made by the defendant during the October 29th oral argument on the plaintiffs' motion for a temporary restraining order. During that oral argument the defendant had assested, among other things, that the Appropriations Act was an unconstitutional “legislative veto” and that Rep. Sabo lacked standing. The plaintiffs, in their November 5th memorandum, responded to those assertions by arguing first, with respect to the constitutionality of the Appropriations Act, that

Upon close analysis, it is easy to see that the government is in fact arguing another case that is not before the court and which may never come into existence. If, after January 1, 1983, HUD implements the RIF with funds then available to it for that purpose, and if Congress then takes action to prevent the RIF, perhaps the government could argue that Congress has assumed the prerogatives of the Executive Branch. But that is not this case: at this point Congress has done no more than refuse to appropriate funds to the Executive Branch. Far from exercising an unconstitutional "legislative veto, Congress has not vetoed any action committed to the Executive Branch at all. (Indeed, it is Secretary Pierce who seeks to veto Congress' undisputed right to refuse to appropriate funds.) Until Congress in fact nullifies some lawful activity of the Executive Branch-which Congress may or may not do during the three month status quo period provided in the Appropriations Act-no question of legislative veto comes into play. [Memorandum in Support of Preliminary Injunc

tion, November 5, 1982, at 10-11] Citing Clark v. Valeo, 559 F.2d 642 (D.C. Cir.), affirmed, 431 U.S. 950 (1977), the plaintiffs argued that since no veto had occurred the legislative veto issue did not present a ripe case or controversy. The plaintiffs further argued:

Even if the government's claim were ripe for decision in advance of any Congressional action, it would lose. For Congress has not exercised any unconstitutional legislative veto in this case. The legislative veto issue only comes into play where Congress "invades a power specifically granted to the President in the Constitution." See Atkins v. United States, 556 F.2d at 1067, not, as here, where Congress merely exercises its own constitutional power. Id. See also, Consumer Energy Council of America, supra, at 450, 47072. Moreover, under the best interpretation (for defendants) of the Appropriations Act, the most Congress has done is to delay the Executive's ability to implement a reorganization for a short and specific period of time, pending Congressional review. The Supreme Court and the D.C. Circuit have already determined that such “lying-over provisions" are presumptively constitutional. Sibbach v. Wilson & Co., 312 U.S. 1 (1941) See also, Clark v. Valeo,

559 F.2d at 648; Atkins v. United States, 556 F.2d at 1060,

n. 21. (Id. at 14) With respect to standing, the plaintiffs asserted that in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) and Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977) it was made clear that a Congressman has standing whenever his ability to carry out his official responsibilities has been impaired. In the present case, said the plaintiffs, "the Secretary has in effect nullified Congressman Sabo's vote on the Appropriations Act. The Secretary has appropriated Congressman Sabo's prerogative as a Congressman to make appropriations decisions. The Secretary has deprived him of the right to consider and vote on legislation regarding the proposed reorganization before it occurs . . ." [Id. at 18]

On November 9, 1982, the defendant filed a motion to dismiss and a memorandum: (1) in opposition to the plaintiff's request for a preliminary injunction; and (2) in support of the defendant's motion to dismiss. The injunction, said the defendant, should be denied because one of the prerequisites to the granting of a preliminary injunction—that there be a likelihood of imminent irreparable injury to the plaintiff-was absent in this case. According to the defendant, it was well settled that neither loss of wages, difficulty in finding new employment, nor possible damage to reputation constituted “irreparable injury.” Moreover, argued the defendant, another prerequisite to the granting of a preliminary injunction—that the plaintiff have a likelihood of success on the meritswas also absent in that the court lacked subject matter jurisdiction over the case:

Congress has enacted a comprehensive scheme for the review of such personnel matters first by the Merit Systems Protection Board ("MSPB” or “Board"), with judicial review exclusively lodged in the newly created United States Court of Appeals for the Federal Circuit. Plaintiffs have simply bypassed the prescribed statutory procedures, and have come to this Court claiming that the MSPB lacks jurisdiction over their claim without first giving the Board or the new Federal Circuit (the bodies specifically charged by Congress with the responsibility in this area) the opportunity to determine whether the Board does in fact have jurisdiction. [Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for a Preliminary Injunction and in Support of Defendant's Motion to Dismiss, No

vember 9, 1982, at 3] Likewise, said the defendant, there was no irreparable injury to Rep. Sabo because the committee review provision of the Appropriations Act was unconstitutional and, in any event, Congress had created no private cause of action to remedy his alleged "injury. With respect to the constitutionality of the Appropriations Act, the defendant maintained: (1) that under Chadha v. Immigration and Naturalization Service, Consumer Energy Council of America v. Federal Energy Regulatory Commission, and Consumers Union v. Federal Trade Commission (see pages 312, 322 and 327, respectively, of this report for a discussion of those cases) legislative vetoes of executive action were clearly unconstitutional; and (2) that the Committee approval provision was unquestionably a legislative veto. The defendant explained:

21-618 0-83--23

Clearly, the Committee approval device in the HUD Appropriation Act purports to have the same binding effect on the Executive Branch and the public at large as the legislative vetoes struck down by the D.C. Circuit in Consumers Union and Consumers Energy Council and by the Ninth Circuit in Chadha. All these provisions share the same constitutional infirmity: they purport to permit Congress (or, in this case, committees of Congress) to take binding legal action to block an otherwise authorized executive decision without permitting the President to exercise his constitutionally required veto prerogative. Indeed, the legislative history of this section indicates that Congress' purpose was to exercise authority to review the wisdom of a decision of an Executive Branch agency. As the House Report notes, Congress intended to review proposed personnel actions to ensure that the "advantages of the proposal outweight the disadvantages.” H.R. 97–720, 97th Cong., 2nd Sess. at 10. This is precisely what the Constitution for

bids Congress from doing. (Id. at 21] Finally, the defendant argued that even if the Appropriations Act were constitutional, it would not prohibit HUD from conducting a RIF, since a RIF was not a “reorganization.”

On November 10, 1982, Judge Green granted the plaintiffs' motion for a preliminary injunction and denied the defendant's motion to dismiss. In a memorandum-opinion and order issued on November 15, Judge Green discussed the reasons for her decision. Preliminarily, however, the court found that Rep. Sabo had standing to challenge HUD's attempted reorganization. Said the court:

At the outset, the Court confers standing on Congressman Sabo to challenge HUD's attempted reorganization. See, e.g., Kennedy v. Sampson 511 F.2d 430 (D.C. Cir. 1974); Mitchell v. Laird 488 F.2d 611 (D.C. Cir. 1973). In Kennedy v. Sampson, supra, a United States Senator sought a declaratory judgment that bill became law without the signature of the President. The D.C. Circuit stated that Senator Edward Kennedy had standing to maintain a suit seeking a declaration that the Family Practice of Medicine Act, S. 3418, 91st Cong. 2d Sess. (1970), became law on December 25, 1970. Id. at 432-33. Congress passed this legislation in the fall of 1970. On December 24, 1970. the President announced that he would withold his signature from S. 3418 but took no further action. Id. at 432. Appellants, Administrator of the General Services Administration and the Chief of White House Records, maintained that the President had effected a “pocket veto” of the bill under article I, section 7 of the United States Constitution. The Senator contended that the bill became law without the President's signature at the end of the ten-day period following its presentation to him. Id. The court conferred standing on

Senator Kennedy “to maintain this suit in his capacity as an individual United States Senator who voted in favor of S. 3418.” Id. at 433. The court found a “logical nexus” between the Senator's status and "the claims sought to be adjudicated.Id. According to the court, "an individual legislator has standing to protect the effectiveness of his vote with or without the concurrence of other members of the majority.Id. 435. As in Kennedy v. Sampson, supra, the instant case involves legislative power and threatened "diminution of congressional influence in the legislative process." Id.

Unlike the situation in Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977), the injury to Congressman Sabo is not speculative or remote. Id. at 212. See part II Infra. In Harrington, a member of the House of Representatives sought a declaration that certain activities of the Central Intelligence Agency were illegal and an injunction prohibiting the Agency from using the funding and reporting provisions of the Central Intelligence Agency Act of 1949, 50 U.S.C. $ 403a et seq in connection with the alleged illegal activities. Id. 193. The D.C. Circuit found that Congressman Harrington lacked standing in his capacity as a Congressman to bring this action. In so ruling, the court distinguished Kennedy:

In Kennedy [The "concrete adverseness" which is
the concern of the standing doctrine) was assured
because of the direct nullification of the Senator's
vote; here the illegality has not been traced into a
"discrete factual context in which . . . concrete
injury [has] occurred or is threatened, and any

injury remains speculative and remote. Id. at 212 (footnotes omitted). Moreover, Harrington can be distinguished from the instant case. In Harrington, the court stated:

The assumed illegal Agency activities and the
misuse of the funding and reporting provisions do
not affect the legal status of the appropriations
bills for which appellant has voted. The abuse of
delegated authority does not invade the lawmak-
ing power of Congress or appellant ... Appellant's
votes have not been nullified or diminished in

force because of the post-enactment illegality. Id. at 213. In the instant case, however, Secretary Pierce has invaded the lawmaking power by utilizing funds for a reorganization, albeit disguised as a RIF, in direct violation of the Appropriations Act. As a result, Congressman Sabo has standing to enjoin this action and seek declaratory relief from this Court. Because the Court confers standing on Congressman Sabo, the Court will not address the issue of whether AFGE or the HUD employees have standing in this case. (American Federation of Government

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