« ForrigeFortsett »
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. at 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 con-
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
minished 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.
The Appropriations Act states in pertinent part:
[N]one of the funds made available in this paragraph
approval of the Committees on Appropriations. The House Report accompanying the Appropriations Bill provides guidance as to Congress' intent in including a specific proviso in the Appropriations Act. H.R. Report No. 97-720 states in pertinent part:
The Committee is concerned with personnel actions
personnel action. House Report 97-720 to Accompany H.R. 6956 of the House Committee on Appropriations, 97th Cong., 2d Sess. 10 (August 10, 1982).
The Court also finds Secretary Pierce's statement in his letter of September 15, 1982 to David Stockman, Director, Office of Management and Budget (“OMB”) instructive. The letter provides the budget and program estimates of HUD for fiscal year 1984, including re-estimates for fiscal year 1983. See Plaintiff's Attachment H. Secretary Pierce states that "The reduction in 1983 is principally related to the proposed field reorganization, but also includes reductions at Headquarters based upon some organizational restructuring and management and procedural improvements, as well as the performance of selection functions by contractors in lieu of inhouse staff." (Emphasis added.) Id. at 3.
Finally, the Court notes the definition of reorganization found in 5 C.F.R. 351.203(F) which states as follows:
“Reorganization” means the planned elimination, addi-
zation. Based on the House Report accompanying the Appropriations Act, Secretary Pierce's letter to OMB, and the definition of "reorganization," this Court finds that Secretary Pierce was attempting to effectuate a reorganization through the RIF of HUD employees in violation of the Appropriations Act. By taking this action, the Secretary has circumvented the statutory requirement that the Committees on Appropriations approve any reorganization which is to occur prior to January 1, 1983 and has deprived Congressman Sabo of an opportunity to vote on this matter. Accordingly, the Court de
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-
be dropped if what is left is fully operative as a law. In this case, the House Report accompanying the Appropriations Act makes it clear that the Committee was concerned about the proposed RIF actions in the central office and sought to avoid the use of appropriated funds for "any reorganization" prior to January 1, 1983. Given the legislative history, it is not evident that Congress would not have enacted this provision without the “prior approval" clause, thus, the alleged invalid clause may be dropped because the remaining part is fully operative as a law. An appropriate order is attached.
JUNE L. GREEN,
United States District Judge. November 15, 1982.
697 F.2d 303 (1982)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
SAMUEL R. PIERCE, SECRETARY OF DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, APPELLANT
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 Ow103
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. 2. Constitutional Law Om60
Statutes On 23
United States Ow53(9) 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 O 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.
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 HÚD employees. 1 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. 8 351.801(b) ("notice shall not be issued more than 90-days before release"); Federal Personnel Manual, ch. 351, 1 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 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.