Employees v. Pierce, Civil Action No. 82-3111 (D.D.C. No-
vember 15, 1982) Memorandum Opinion at 2-4].

Turning to the merits, Judge Green found it unnecessary to decide whether the committee approval provision was unconstitutional, since even if it was unconstitutional the defendant would lack authority to implement the proposed RIF's. In reaching this conclusion Judge Green reviewed the legislative history of the Appropriations Act and found that the approval provision was severable from the rest of the statute and that the Appropriations Act, without the disapproval provision, precluded the defendant from implementing or planning a reorganization. By way of relief, Judge Green entered an injunction, effective through December 31, 1982, preventing the defendant from going forward with the proposed RIF's.

On November 12, 1982, the defendant filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. [No. 82-2372].

On December 8, 1982, the court of appeals issued its decision, reversing the judgment of the district court. [American Federation of Government Employees v. Pierce, 697 F.2d 303 (D.C. Cir. 1982)] In a per curiam opinion released on December 28 the court of appeals found that Judge Green had misread the legislative history of the Appropriations Act. According to the court of appeals, the legislative history cast "grave doubt on any supposition that the Senate would have agreed to an absolute prohibition . . . which would have precluded HUD from making personnel decisions that ordinarily accompany an agency's programmatic authority." [697 F.2d at 307] Accordingly, the court found that the committee approval provision was "inextricably bound" to the provision prohibiting reorganizations.

Turning to the constitutionality of the committee approval provision, the court of appeals stated that the provision could be viewed in two ways. First, it could be seen as giving either Appropriations Committee the power to veto the expenditure of authorized funds. Second, it could be seen as a means whereby funds that are not otherwise available to HUD could be released upon approval by the committees. According to the court, however, the provision was unconstitutional under either interpretation. Said the court:

Consumer Energy holds that a one-house veto of otherwise permitted executive action is an act of legislative power, 673 F.2d at 464-70, and violates the Constitution in three respects. Legislative power may be exercised only as provided in article I, section 7 of the Constitution, id. at 464. A one-house veto impermissibly makes law without a vote by both Houses of Congress and circumvents the President's power to veto. Legislative vetoes also violate the principle of separation of powers. They provide a means for Congress to control the executive without going through the full lawmaking process, thus unconstitutionally enhancing congressional power at the expense of executive power. Consumer Energy, 673 F.2d at 476; Consumers Union, 691 F.2d at 577. As a one-house veto, the power contained in the HUD Appropriation Act is thus violative

of the Constitution and void. That conclusion is only rein-
forced by the fact that the Act does not even provide a
one-house veto but a one-committee veto.

The provision can also be taken as granting the Appropriations Committee has power to lift a congressionally-imposed restriction on the use of appropriated funds. In this light, the directive is nothing more or less than a grant of legislative power to two congressional committees. It is plainly violative of article I, section 7, which prescribes the only method through which legislation may be enacted and which "restrict[s] the operation of the legislative power to those policies which meet the approval of three constituencies, or a super-majority of two." Consumer Energy, 673 F.2d at 464 (footnote omitted). Although bicameralism is in a sense present under the contested procedure-a committee of each house is involved-it is in the more significant sense lacking, since neither house itself is fully involved in the legislative act. In any event, the lack of presentment of the "legislation" to the President is enough to invalidate the provision. Separation-of-powers principles are offended because Congress has attempted to enlarge its powers in relation to the President's by making him subject to committee lawmaking.

[Id. at 306]

The court of appeals did agree with the lower court's decision to confer standing on Rep. Sabo-but for a different reason. It was necessary, said the court, to distinguish between Rep. Sabo's standing as a Member of Congress and his standing as a member of the House Appropriations Committee. As a Member of Congress, continued the court, Rep. Sabo did not have standing, and it was error for Judge Green to confer standing on him simply because of his membership in Congress. Said the court:

With respect to this basis for standing, we disapprove the district court's reliance upon Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), and find Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977), the controlling precedent. In Harrington, a congressman requested that the court examine the conduct of the Central Intelligence Agency, declare that it had misused funds, and enjoin such further conduct. Id. at 202. There, as here, the congressman's stake as a legislator was merely an interest in having laws executed properly. It was not, as in Kennedy, an interest in the process by which a bill becomes law. Any interest that a congressman has in the execution of laws would seem to be shared by all citizens equally. Injury to that interest is a "generalized grievance about the conduct of government," Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1955, 20 L.Ed.2d 947 (1968), which lacks the specificity to support a claim of standing. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 762, 70 L.Ed.2d 700 (1982). [Id. at 305]

The court, however, found that Rep. Sabo, as a member of the House Appropriations committee, did have standing to sue. After noting that the instant case was controlled by the holding in Kennedy v. Sampson, supra the court stated:

In the present case, the Appropriation Act gave Congressman Sabo the right, as a member of the Appropriations Committee, to participate in approval of any reorganization of HUD conducted before January 1, 1983. The Secretary's actions injured him by depriving him of that specific statutory right to participate in the legislative process. That right, unique to members of the Appropriations Committees, is not a general interest in the faithful execution of laws, but rather a particular interest in the law as it relates to their authority. Under currently governing precedent, therefore, Congressman Sabo has a sufficient "personal stake in the outcome of the controversy, "Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), to ensure that the dispute sought to be adjudicated will be presented in "a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge, supra, 454 U.S. at 472, 102 S.Ct. at 758. [Id. (footnote omitted)]

Between the date of the decision (December 8) and the date opinion was issued (December 28) the court of appeals, sua sponte, requested the taking of a vote to decide whether the case should be reheard en banc. A majority of the judges on the U.S. Court of Appeals for the District of Columbia Circuit did not endorse the suggestion and accordingly the case was not reheard by the full panel. Judges Wright, Wald, and Mikva, however, issued a statement, which was appended to the December 28th opinion of the court, in which they argued that the case should have been reheard en banc. According to those judges, "important issues to executive-legislative relations [were] articulated too broadly and explored inadequately in the panel opinion." [67 F.2d at 308] The legislative veto in the instant case, wrote the judges, was "easily distinguishable" from the legislative vetoes in the Chadha, Consumer Energy Council, and Consumers Union cases and therefore a “different analysis of the constitutional interplay between the two branches of government" was required here. The judges thus called on their colleagues not to "lump together for automatic rejection under the rubric of 'legislative vetoes' several different kinds of statutory provisions, each entailing a distinct accommodation between the executive and legislative branches" [Id.]

Status-The case is closed.

The complete text of the November 15, 1982 memorandum opinion of the district court is printed in the "Decisions" section of this report at page 560.

The complete text of the December 28, 1982 opinion of the circuit court, along with the statement of judges Wright, Wald, and Mikva, is printed in the "Decisions" section of this report at page

564.

American Foreign Service Association v. McPherson

Civil Action No. 81-2073 (D.D.C.)

On September 2, 1981, the American Foreign Service Association. ("AFSA") filed a complaint for declaratory and injunctive relief in the U.S. District Court for the District of Columbia. Named as sole defendant was M. Peter McPherson, the Administrator of the Agency for International Development ("AID")

In its complaint, AFSA described itself as the exclusive labor representative for foreign service employees who work for AID. The complaint then proceeded to explain that in 1978 Congress enacted the International Development and Food Assistance Act (Pub. L. 95-424) and that under section 401 of the Act (22 U.S.C. § 2385a), the so-called "Obey Amendment," the President was required to promulgate regulations establishing a unified personnel system for all employees of AID.1 Moreover, the Obey Amendment gave either House of Congress the right to veto the regulations within 90 days of their submission to Congress.

The complaint further stated that on May 1, 1979 the President submitted to Congress regulations implementing the Obey Amendment. Ninety days then passed without any action being taken by either house of Congress. Then, on August 25, 1981, continued the complaint, AID published a final rule amending the regulations. According to AFSA, this rule, which increased the number of nonForeign Service personnel in program development positions at AID, was in direct violation of the original regulations, which specifically precluded AID from implementing any regulation modifying or revoking the original regulations, and was contrary to Congressional intent. Moreover, said the complaint, by amending the regulations without first submitting the amendments to Congress, AID unlawfully denied Congress the opportunity to veto the amended regulations. Accordingly, the plaintiff asked that the court declare that the defendant was without authority to amend the original regulations and to enter an injunction preventing the defendant from enforcing the amended regulations.

On October 30, 1981, AFSA filed a motion for summary judgment. In its accompanying memorandum, AFSA argued that: (1) the August 25th final rule was arbitrary and capricious and not authorized by statute; (2) the regulations themselves precluded any further amendments; and (3) the regulations were amended in a

1 Section 401 (the Obey Amendment) provides, in pertinent part, as follows: "(a)... the President shall submit to the Congress, and publish in the Federal Register, regulations establishing a unified personnel system for all employees of [AID]. In preparing such regulations, the President shall keep the appropriate committees of the Congress fully and currently informed and shall consult with them on a regular basis, concerning the nature of the unified personnel system to be established.

"(b) The regulations submitted to the Congress pursuant to subsection (a) of this section"(1) may not become effective until after the end of the 90-day period beginning on the date of such submission in order to provide the appropriate committees of the Congress an opportunity to review them; and

"(2) shall not become effective then if, during such 90-day period, either House of Congress adopts a resolution stating in substance that it disapproves the personnel system proposed to be established by the regulations.

"(c) Regulations which take effect pursuant to this section shall have the force and effect of law, notwithstanding any inconsistent provision of law unless that provision of law specifically states that it supersedes regulations issued under this section."

manner violative of the statute. With regard to this last point, AFSA stated:

Even assuming the statute contemplated amendment of the regulations, AID did not have authority to amend the regulations without the approval of Congress. The statute called for extensive congressional participation in the rulemaking process establishing AID's new personnel system. Congress delegated to AID the task of drafting the regulations, but retained the responsibility of overseeing the drafting process and reviewing the regulations, and the right ultimately to approve or disapprove the regulations. In unilaterally amending the regulations, AID circumvented the requirements of the statute. 22 U.S.C. § 2385a(a), (b). [Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment, October 30, 1981, at 6]

On December 11, 1981, the defendant filed a motion to dismiss. In his accompanying memorandum, the defendant argued, inter alia, that the Obey Amendment clearly constituted a legislative veto and that in Chadha v. Immigration and Naturalization Service, 634 F.2d 408 (1980) the Ninth Circuit had declared the legislative veto unconstitutional. (See page 312 of this report for a discussion the Chadha case.)

On February 4, 1982, the defendant filed a supplemental memorandum of points and authorities in support of his motion to dismiss. In this memorandum, the defendant pointed out that a legislative veto similar to the one contained in the Obey Amendment had recently been declared unconstitutional by the U.S. Court of Appeals for the District of Columbia Circuit in Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (1982). (See page 322 of this report for a discussion of the Consumer Energy case.)

On November 30, 1982, District Judge Harold Green issued an order and memorandum denying the plaintiff's motion for summary judgment and granting the defendant's motion to dismiss. In his memorandum, Judge Green stated that since AFSA had conceded (apparently, at oral argument) that the retention of veto power over the regulations was unconstitutional and severable, the only questions remaining were whether AID had authority to modify its regulations and whether the August 25, 1981 amendments were arbitrary or capricious. The court answered the first question in the affirmative and the second question in the negative.

On December 8, 1982, AFSA filed a motion to alter or amend the judgment. AFSA argued that the court should have severed the legislative veto provision but let stand the "constitutionally permissible provision requiring that regulations implementing the Obey Amendment be submitted to the Congress and lay over for 90 days to provide Congress an opportunity to review the regulations." The plaintiff therefore asked the court to order the defendant to submit the challenged regulations to Congress.

On December 21, 1982, the defendant filed a memorandum of points and authorities in opposition to the plaintiff's motion to alter or amend. According to the defendant, the Obey Amendment