not be limited to, those involving "impeachment, expulsion proceedings, impoundment, and certain acts of the executive not subject to direct legislative redress or private challenge (e.g. the pocket veto in Kennedy v. Sampson, supra)." [Id. at 882] Finally, Judge Robb stated that even when legislative redress is available the courts should hear a Congressional plaintiff's case if a private plaintiff would not qualify for standing: When a congressional plaintiff brings a suit involving circumstances in which legislative redress is not available or a private plaintiff would likely not qualify for standing, the court would be counseled under our standard to hear the case. [Id. (emphasis in the original)] The court concluded this discussion by stating: In short, our standard would counsel dismissal of congressional plaintiff actions only in cases in which (i) the plaintiff lacks standing under the traditional tests, or (ii) the plaintiff has standing but could get legislative redress and a similar action could be brought by a private plaintiff. Nondiscriminatory application of standing principles warrants dismissal of the action in the former circumstance; non-interference in the legislative process counsels dismissal in the latter situation. We would welcome congressional plaintiff actions involving non-frivolous claims of unconstitutional action which, because they could not be brought by a private plaintiff and are not subject to legislative redress, would go unreviewed unless brought by a legislative plaintiff. In this last situation, there are no prudential considerations or separation-of-powers concerns which would outweigh the mandate of the federal courts to "say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). [Id.] Applying these standards to the instant case, the court concluded that although Senator Riegle probably had standing under the nonCongressional plaintiff test, the case should be dismissed. This conclusion, said Judge Robb was mandated by: (1) the fact that a private plaintiff, such as a large corporation, might qualify for standing to challenge the constitutionality of the procedures at issue in the present case; and (2) the fact that "Senator Riegle's congressional colleagues are capable of affording him substantial relief." [Id. at 882] Thus, the case was dismissed "on the ground that judicial action would improperly interfere with the legislative process.' [Id.] Status-The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. The time for filing a petition for writ of certiorari with the U.S. Supreme Court has not yet expired. The complete text of the October 26, 1979 opinion of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981. The complete text of the June 24, 1981 opinion of the circuit court is printed in the "Decisions" section of this report at page 395. Bonior v. Stockman Civil Action No. 81-0979 (D.D.C.) On April 24, 1981, Congressman David E. Bonior; six of his colleagues (Representatives Don Edwards, Ronald Mottl, Leon Panetta, Thomas Daschle, Tony Coelho, and Byron Dorgan); Senator Alan Cranston; the Vietnam Veterans of America, Inc. ("VVA”); and Robert O. Muller, the VVA's Executive Director, filed a complaint for declaratory and injunctive relief in the U. S. District Court for the District of Columbia against Director of the Office of Management and Budget ("OMB") David Stockman. The complaint alleged that the OMB Director had "unlawfully prevented the Veterans' Administration from hiring certain health-care personnel, including additional staffing for the readjustment counseling centers established to aid Vietnam-era veterans," despite the fact that Congress had "appropriated funds specifically for the hiring of such personnel in Public Law 96-526 and ha[d] specifically required the Director of [OMB] in 38 U.S.C. § 5010 (a)(4) to provide to the Veterans' Administration both the authority to hire them and the funds appropriated therefor." [Complaint, April 24, 1981, at 1] According to the two-count complaint, the defendant had improperly refused to exempt the health care personnel from the President's January 20, 1981 hiring freeze and had refused to release the funds for their employment. Under Count I, dealing with the defendant's refusal to exempt the health care personnel from the hiring freeze, the complaint asserted that the Veterans' Health Programs Extension and Improvement Act of 1979, Public Law 96-151, § 301, 38 U.S.C. § 5010 (a)(4) (the "VA Staffing Act") imposed an obligation on the ŎMB Director to provide for the employment of not less than the number of employees for which appropriations were made for fiscal year 1981. Despite the fact that OMB itself allowed for exemptions from the freeze when "necessary to assure that . . . applicable provisions of law are carried out" [ÖMB Bulletin No. 8-6 paragraph 7 (January 24, 1981)], the complaint averred that the defendant refused to exempt the health-care personnel whose employmant was provided for by the 1981 Appropriations Act. This failure to exempt, said the complaint, "caused irreparable injury to . . . certain members of Congress, including certain plaintiffs herein, by nullifying their votes in favor of the Vietnam-era Veterans Counseling Act, the VA Staffing Act and the 1981 Appropriations Act." [Id. 124] According to the complaint, the defendant persisted in his actions despite a formal opinion from the Comptroller General of the United States that he was violating the VA Staffing Act. Under Count II, involving the defendant's purported deferral of the expenditure of the funds at issue, the complaint asserted that the Impoundment Control Act of 1974, Public Law 93-344, 88 Stat. 297 (specifically, 31 U.S.C. §§ 665 (c)(2) and 1401-1407), permitting deferrals under certain conditions, did not apply to the VA Staffing Act. The complaint noted, inter alia, that the "Impoundment Control Act itself provides that it shall not be construed as 'superseding any provision of law which requires the obligation of budget authority or the making of outlays thereunder'. . . The VA Staffing Act is such a provision of law." [Id. 128] Again, the complaint said that the OMB Director had persisted in his actions despite a formal opinion from the Comptroller General that the defendant's deferral actions were unauthorized. As relief the plaintiffs asked the court to: (1) declare that the defendant's failure to exempt from the hiring freeze violated the VA Staffing Act; (2) declare that the defendant's purported deferral under the Impoundment Control Act violated the VA Staffing Act; and (3) mandatorily enjoin the defendant to provide the Veterans' Administration the authorization to employ the health-care personnel and the funds to do so in line with the 1981 Appropriations Act. On June 11, 1981, an amended complaint was filed by the plaintiffs. It added to the original complaint the allegation that the defendant had persisted in his refusal to exempt the VA health-care positions from the freeze despite "the agreement of both Houses of Congress that defendant's actions and omissions were unlawful." [First Amended Complaint, June 11, 1981, [28] It pointed in particular to the recently passed Conference Report on the bill for Supplemental Appropriations and Rescission, 1981, Public Law 9712 (127 Cong. Rec. H2652 and S5807 (June 4, 1981)), as supporting this position. It also cited similar agreement by both Houses that the defendant's deferral action was not lawful. [Id., 136] In the amended complaint, Congressman Bob Edgar and Senators Dennis DeConcini and Patrick Leahy were added as party plaintiffs. On June 26, 1981, defendant Stockman filed his answer to the amended complaint, asserting as defenses that: (1) the complaint failed to state a claim upon which relief could be granted; (2) the court lacked jurisdiction over the subject matter of the action; (3) the plaintiffs lacked standing to maintain the action; and (4) the complaint did not present a justiciable case or controversy because the action was moot. On August 3, 1981, the defendant filed a motion to dismiss the complaint or in the alternative for summary judgment. In a memorandum accompanying the motion, the OMB Director argued initially that the action was moot because the hiring freeze had been lifted before the suit was brought and the deferrals had been disapproved and specifically overridden by Congress on June 5, 1981. "[N]one of the actions challenged in this lawsuit are currently being implemented, and the VA has been provided with authorization and funds to employ medical care and research personnel at the levels desired by the plaintiffs," the memorandum contended. [Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or, In the Alternative, For Summary Judgment, August 3, 1981, at 8-9] The defendant also argued that the court should not render an essentially advisory opinion on the declaratory judgment request, particularly when the dispute involved two coordinate branches of government: It is apparent from the fact that eleven members of Congress have brought this action that there at one time existed at least a political dispute between the Administration and certain Congressmen with respect to the appropriate levels of personnel for the VA's medical care and research The defendant also asserted that, even if the case was not moot, the Congressional plaintiffs lacked standing to bring the action because they had suffered no injury in fact as a result of the OMB Director's actions. The memorandum disputed the plaintiffs' contention that the defendant had in some manner "nullified" their votes, thereby injuring them: The Congressmen's actual grievance instead concerns the manner in which the defendant has allegedly administered VA programs for which the Congressmen may have voted. However, because Congressmen retain no continuing legal interest in legislation for which they have voted, but merely share the generalized interest held by all citizens that the Executive properly execute such legislation, the "injury" which the congressional plaintiffs allege does not satisfy Article III's requirement of injury in fact. [Id. at 15-16] Finally, the memorandum argued that even if the plaintiff Congressmen had standing, the suit should be dismissed because Congressional remedies were available to them for the injuries which they perceived. In particular, the memorandum contended that the Impoundment Control Act could have been employed to overcome the hiring freeze and was also "not only available to Congressional plaintiffs to override the proposed deferrals challenged in this action, but has actually been utilized by the Congress to nullify those two proposed deferrals." [Id. at 20] With respect to the non-Congressional plaintiffs, the memorandum maintained that they also lacked standing because they had suffered no injury in fact. The defendant further claimed that the injury which they alleged was neither caused by the defendant nor would be redressed by the relief they sought. On August 12, 1981 the plaintiffs moved to amend the proposed briefing schedule, and the court granted the motion in an order filed on August 18. Status-The case is pending in the U.S. District Court for the District of Columbia. The plaintiffs' response to the defendant's dispositive motion is scheduled to be filed on September 28, 1981. Crockett v. Reagan Civil Action No. 81-1034 (D.D.C.) On May 1, 1981, eleven Members of the House of Representatives1 filed suit in the U.S. District Court for the District of Columbia against President Ronald Reagan, Secretary of Defense Caspar Weinberger, and Secretary of State Alexander Haig seeking a declaratory judgment, and a writ of mandamus and/or an injunction directing the defendants to "withdraw immediately all United States Armed Forces, weapons, military equipment and military aid to El Salvador and prohibiting them from sending additional armed forces, weapons, military equipment, and miliatry aid to El Salvador." [Complaint, May 1, 1981, ¶ 2] The plaintiffs sought to enforce the War Powers Clause of the U.S. Constitution (art. I, § 8, cl. 11), which gives Congress the power to declare war, the War Powers Resolution (50 U.S.C. §§ 1541, et seq.), which restricts the sending of American troops overseas to engage in military activities without Congressional approval, and section 502B of the Foreign Assistance Act of 1961 (22 U.S.C. § 2304), which prohibits the providing of military aid to governments engaged in consistent pattern of gross violations of internationally recognized human rights. Additionally, the plaintiffs sought to enforce the obligations of the U.S. Government and the defendants "under international law to abide by the laws of war and to promote the observance of universally recognized standards of human rights." [Id., 135] The Members sued in their representative capacities and as individual citizens, claiming standing because: (1) the defendants' actions violated the named constitutional and statutory provisions, and so threatened the "institutional interest of Congress and each member thereof in the exercise of the power explicitly allocated to... Congress thereby diminishing the powers of each Senator and Congressman to vote and participate in the determination of matters which the Constitution entrusts to the Congress." [Id., 1 5(c)]; (2) they represented the American people who had been made "accomplices to terror" in violation of international law [Id., ¶ 6]; and (3) they represented the American people who had been injured by unilateral actions not in compliance with "political, legal, and constitutional process." [Id., ¶7] 'The plaintiffs were Representatives George W. Crockett, Jr., Ronald V. Dellums, Mervyn M. Dymally, Don Edwards, Barney Frank, Tom Harkin, Mickey Leland, Barbara A. Mikulski, Anthony Toby Moffett, Richard L. Ottinger, and Theodore S. Weiss. |