clares this action null and void and enjoins defendant from planning, designing, implementing or adminstering a reorganization of the Department via a reduction-in-force in violation of the Appropriations Act. Assuming arguendo that the committee approval provision is unconstitutional, as defendant contends, the Court finds that this provision may be severed from the Act. However, the Court does not find it necessary to strike down the entire provision purporting to limit any reorganization of HUD. In Buckley v. Valeo, 424 U.S. 1, 108 (1976), the United States Supreme Court stated: Unless it is evident that the legislature would not have en- In this case, the House Report accompanying the Appropriations JUNE L. GREEN, United States District Judge. November 15, 1982. 697 F.2d 303 (1982) AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ET AL. V. SAMUEL R. PIERCE, SECRETARY OF DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, APPELLANT No. 82-2372 United States Court of Appeals, District of Columbia Circuit Argued Dec. 7, 1982 Decided Dec. 8, 1982 Secretary of Housing and Urban Development appealed from an order of the United States District Court for the District of Columbia, June L. Green, J., which enjoined him from carrying out a reduction-in-force. The Court of Appeals held that: (1) congressman did not have standing as a legislator but did have standing as member of House Appropriations Committee to challenge legality of HUD's proposed reduction-in-force which allegedly was a reorganization of the Department of the type Congress meant to block through a provision in HUD Appropriations Act; (2) clause contained in HUD Appropriation's Act lifting a funding prohibition upon approval of committees on appropriations was a one-house veto which was violative of Constitution and void; furthermore, the clause, which could also be taken as granting the committees the power to lift a congressionally imposed restriction on use of appropriated funds, was violative of Constitution as grant of legislative power to two congressional committees; and (3) unconstitutional clause was not severable from remainder of the legislation. Reversed. 1. Federal Civil Procedure 103 Congressman did not have standing as a legislator but did have standing as member of House Appropriations Committee to challenge legality of HUD's proposed reduction-in-force which allegedly was a reorganization of the department of the type Congress meant to block through a provision in HUD Appropriations Act. Department of Housing and Urban Development-Independent Agencies Appropriation Act, 1983, 96 Stat. 1160. Clause contained in HUD Appropriation's Act lifting a funding prohibition upon approval of committees on appropriations was a one-house veto which was violative of Constitution and void; furthermore, the clause, which could also be taken as granting the committee the power to lift a congressionally imposed restriction on use of appropriated funds, was violative of Constitution as grant of legislative power to two congressional committees. U.S.C.A. Const. Art. 1, §7; Department of Housing and Urban Development-Independent Agencies Appropriation Act, 1983, 96 Stat. 1160. 3. Statutes 64(1) Clause contained in HUD Appropriations Act lifting a funding prohibition on HUD reorganization upon approval of committees on appropriations, which was found unconstitutional, was not severable from remainder of the legislation. Department of Housing and Urban Development-Independent Agencies Appropriation Act, 1983, 96 Stat. 1160. Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-03111). Carolyn B. Kuhl, Deputy Asst. Atty. Gen., Dept. of Justice, of the Bar of the Supreme Court of California, Los Angeles, Cal., pro hac vice, by special leave of the Court, with whom Stanley S. Harris, U.S. Atty., Douglas N. Letter, Atty., Dept. of Justice, and Gershon M. Ratner, Associate Gen. Counsel, Dept. of HUD, Washington, D.C., were on the brief, for appellant. Robert E. Kopp, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellant. [304] Joseph Goldberg, Washington, D.C., for appellee. James R. Rosa, Washington, D.C., also entered an appearance for appellee. Before GINSBURG and BORK, Circuit Judges, and BAZELON, Senior Circuit Judge. Opinion PER CURIAM. PER CURIAM: 1 The Secretary of Housing and Urban Development (HUD) appeals from a November 15, 1982, district court order enjoining him from carrying out a reduction-in-force (RIF) involving approximately 181 HUD employees. The injunction was to remain in effect until December 31, 1982. For the reasons stated below, we reverse the district court's order and remand with instructions to enter judgment for the Secretary.2 Plaintiff-appellees are HUD employees affected by the personnel action, their union (American Federation of Government Employ 1 According to appellees, RIF notices were issued to "approximately 222 employees." Brief of Appellees at 3. 2 Appellees asset the near mootness of this suit; they contend that the general notice of reduction-in-force has expired, therefore the Secretary cannot implement the RIF, whatever the outcome of this appeal. The general notice, issued on August 20, 1982, states "[s]pecific RIF notices will be effective on or before 90 calendar days from the date of this general notice or from the date of extension of this notice." See Brief of Appellees at Appendix B, 2; see also 5 C.F.R. § 351.801(b) ("notice shall not be issued more than 90-days before release"); Federal Personnel Manual, ch. 351, ¶ 6-2(a) (90 days maximum for notice of reduction-in-force). The specific notices of reduction-in-force were issued on September 29, 1982, with an effective date of October 31, 1982. The Secretary never extended the general notice. Appelees maintain that the general notice expired 90 days after issuance, on November 18, 1982, thus new notices must precede any attempt to implement a RIF. The district court's stop order, however, made from the bench on November 10, 1982, and embodied in an injunction filed on November 15, 1982, must be deemed to have tolled the running of the 90-day notice period. Tolling would continue pending this court's decision. Therefore the notice issued on August 20 is still valid. Appellees' argument, were it accepted, would effectively insulate the district court's order from appellate review. We cannot embrace the argument. ees, AFL-CIO), and Congressman Martin Sabo, a member of the House Appropriations Committee. They allege that the proposed RIF was a "reorganization of the Department" of the type Congress meant to block through a provision in the HUD Appropriation Act precluding use of funds "prior to January 1, 1983, to plan, design, implement, or administer any reorganization without the prior approval of the Committees on Appropriations." Department of Housing and Urban Development-Independent Agencies Appropriation Act, 1983, Pub. L. No. 97-272, 96 Stat. 1160, 1164 (1982). The district court ruled that Congressman Sabo had standing to challenge the Secretary's action, did not decide whether the union or the HUD employees could pursue the case, assumed arguendo the unconstitutionality of the clause lifting the funding prohibition upon "the prior approval of the Committees on Appropriations," severed the approval clause, and applied the provision, as trimmed, to enjoin the RIF. Thus, under the order we review in this expedited appeal, the Secretary is estopped from using appropriated funds before December 31, 1982, to "plan, design, implement, or administer any reorganization of the Department." We agree that Congressman Sabo has standing to commence this lawsuit, pretermit the question whether the district court was the appropriate forum for the employees' complaint, find the approval clause unconstitutional and not severable from the preceding portion of the sentence in which it is contained, and hold the provision invalid in its entirety. STANDING [1] Congressman Sabo asserts that he has standing both in his capacity as a legislator and as a member of the House Appropriations Committee. The district court found standing based on his membership in Congress, but did not explicitly consider the [305] significance of his membership on the House Appropriations Committee. We address the two grounds separately. For purposes of the standing issue, we accept as valid Congressman Sabo's pleaded legal theory. See Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975); Goldwater v. Carter, 617 F. 2d 697, 701-02 (D.C. Cir) (en banc), vacated on other grounds, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1979). Essentially, his claim of injury rests on the premise that, under the governing law, a reorganization of HUD could not commence prior to January 1, 1983, without the approval of the Appropriations Committees. Congressman Sabo's membership in the House of Representatives. 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 a law. Any interest that a congressman has in the execu tion 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, 70 L.Ed.2d 700 (1982). Congressman Sabo's membership on the House Appropriations Committee This basis for standing, however, is controlled by Kennedy, which involved a challenge to President Nixon's alleged abuse of the pocket veto. Senator Kennedy asserted that a bill passed by both Houses of Congress had become law without signature of the President. We found that the Senator had standing because the President's actions had denied him the effectiveness of his vote in enacting the statute. He claimed an interest which he, as a senator, had in the legislative process, different from any interest that he, like any other citizen, may have had in the execution of the bill once enacted. 3 In the present case, the Appropriation Act gave Congressman Sabo the right, as a member of the Appropriation Committee, to participate in approval of any reorganization of HUD conducted before January 1, 1983. The Secretary's action injured him by depriving him of that specific statutory right to participate in the legislative process. That right, unique to members of the Appropriations Committee, is not a general interest in the faithful execution of laws, but rather a particular interest in the law as it related to their authority. Under currently governing procedent, 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 factural 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. CONSTITUTIONALITY OF THE PROVISO [2] The challenged provision of the HUD Appropriation Act can be interpreted [306] in two ways. First, it may be regarded as creating a power in either Appropriations Committee to prevent otherwise-authorized expenditures of funds. This reading would make the provisions a legislative veto in the usual sense, in this case a veto power placed by law in a single committee of the House or the Senate. Second, the passage may be seen (perhaps more naturally) The interest Congressman Sabo asserts here is closely analogous to the interest asserted in Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) (en banc), vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979). There, a group of senators challenged the President's authority to terminate a treaty without a vote of the Senate. We found standing because the President's action injured the senators' alleged constitutional right to vote on a treaty termination. Appellees suggest that if the provision is interpreted as a veto then this case is not ripe for adjudication because no veto has been cast by either committee. Brief of Appellees at 13-18. This does not help appellees' case. If one of the committees must act in order for the prohibition to be effective, the fact that no vote has been taken means that the President is free to reorganize HUD headquarters. Appellees have inadvertently provided an alternative ground for dismissing their suit. If they mean to suggest that committee inaction constitutes a veto, then a veto has in fact been cast. |