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.

On September 28, 1981, the plaintiffs filed a motion for summary judgment and a memorandum which argued that, based on the undisputed facts, the defendant's implementation of the President's hiring freeze and the attempted deferral of funds violated his mandatory duty under the VA Staffing Act. The memorandum did not address the standing and mootness issues raised by the defendant in his August 3rd filing, but focused on the merits of the action and the purported hiring freeze and deferral violations.

With respect to the hiring freeze, the plaintiffs asserted that the OMB Director was not empowered under the VA Staffing Act to condition in any way his provision to the VA of the authority to hire and the necessary funds to do so. In their view, the defendant should have exempted from the hiring freeze the ceilings covered by the VA Staffing Act, but he did not:

This intermeddling by defendant between the Congress and the VA is exactly what the Congress enacted the VA Staffing Act to avoid. Under the Act, Congress viewed the defendant as a conduit for the transfer of specific authority, and the defendant's interposition of these conditions plugged that conduit, enabling the defendant to "thwart the will of Congress" (125 Cong. Rec. H11645, supra, p. 3) just as the OMB Director had done in fiscal year 1979 when he used budget authority for the pay raise and not increased employment as Congress had intended. Supra, p. 3. It was not for the defendant to decide whether the VA was entitled to employ any particular number of employees in the relevant appropriation accounts; Congress had already made that judgment, and defendant's substitution of his own discretionary power in the process was completely inconsistent with the mandatory language of the statute. [Statement of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment, September 28, 1981, at 13-14]

The plaintiffs contended that the deferrals simply replaced the hiring freeze in their effect on VA hiring and continued the defendant's violation of the VA Staffing Act. According to the plaintiffs, the only difference between the freeze and the deferrals for purposes of analysis was that, "while by the freeze defendant withdrew VA's authority to employ the 'funded personnel ceiling' and vested it in himself, by the deferrals he not only reduced the authority to hire but also reduced the funds necessary to exercise that authority." [Id. at 15] In any event, the plaintiffs pointed out, as they had in their complaint, that the Impoundment Control Act itself contains a disclaimer which expressly declares that it does not supersede "any provision of law which requires the obligation of budget authority or the making of outlays thereunder." (31 U.S.C. § 1400(4))

On October 13, 1981, the defendant filed a memorandum in opposition to the plaintiffs' motion for summary judgment. Although the defendant reiterated his contention that the case was moot (because the hiring freeze had ended and the proposed deferrals had been overridden by Congress), and therefore no decision by the court could affect the rights of the parties or enhance the position of the plaintiffs, he proceeded to a discussion of the merits. In sum, the defendant argued that the plaintiffs' motion for summary judgment should be denied because: (1) neither of the challenged actions-the freeze or the deferrals-prevented the VA from employing personnel at the levels actually funded by Congress; and (2) the material facts asserted by the plaintiffs, and upon which their motion rested, were disputed by the defendant, thereby barring the granting of the motion under the Federal Rules of Civil Procedure. The bulk of the memorandum dealt with the first point and involved a technical discussion of the method for calculating the "funded personnel ceiling" (the number of VA health-care employees who were required to be hired). The defendant rejected the plainfiffs' view that Congressional intent was the pertinent question in determining the personnel requirements; instead, he claimed, it was the level of appropriations that Congress actually provided for medical care and medical research personnel. In this case, the defendant concluded, Congress actually funded a substantially lower figure than the plaintiffs claimed, and therefore the OMB Director had not acted improperly in limiting employment through the hiring freeze (because there was no shortfall between the freeze level and the properly calculated funded personnel ceiling).

Also on October 13, 1981, the defendant filed a second memorandum dealing with the issues of justiciability-mootness and standing-essentially restating the arguments made in his August 3rd motion to dismiss. He contended, first, that because the plaintiffs were challenging Executive branch actions which had ceased, and were seeking relief which would thus be meaningless, the action was moot. The defendant took particular pains to dispute the plaintiffs' argument that, despite the absence of a present controversy, the action might nevertheless be entertained by the court as a case "capable of repetition; yet evading review."

Although the plaintiffs' speculations concerning possible
future congressional and presidential actions are interest-
ing, and serve to highlight the political nature of the pres-
ent dispute, such speculations do not satisfy the Supreme
Court's test for cases "capable of repetition, yet evading
review."

Initially, it must be stressed that this test requires, in
part, that there be "a reasonable expectation that the same
complaining party would be subjected to the same action
again." Illinois State Board of Elections v. Socialist Work-
ers Party, 440 U.S. 173, 187 (1979), quoting Weinstein v.
Bradford, 423 U.S. 147, 149 (1975) (per curiam) (emphasis
added). It is pure speculation, at best, to presume that the
defendant will ever again act to implement a hiring freeze
or defer appropriations for the VA in the same manner as

he did in January and March 1981. Furthermore, even
were such actions attempted by the defendant at some
future time, it would be within Congress' power to prevent
any "harm" that might otherwise stem therefrom by fully
funding the VA personnel ceiling at a level acceptable to
Congress and by overriding any proposed deferrals. Final-
ly, even if such actions were undertaken by the defendant
at a future time, and Congress made no effort to block the
actions, it is unlikely that the same plaintiffs would be
harmed thereby. The congressional plaintiffs may no
longer be in Congress, while VVA members allegedly in-
jured in the Spring of 1981 may no longer be in need of
VA services or be otherwise similarly situated. There thus
can be no "reasonable expectation that the same complain-
ing party would be subjected to the same action again" if
this Court does not entertain the present case. [Defend-
ant's Reply. . . October 13, 1981, at 4-5]

Second, the OMB Director reiterated his contention that because the plaintiffs had suffered no injury in fact, nor satisfied other standing prerequisites, they could not maintain the action. The defendant rejected the plaintiffs' assertion that their need to expend additional effort to secure the adoption of Congressional disapproval of the deferrals constituted the required injury. He argued:

These plaintiffs, therefore, apparently ask this Court to
adopt a new test for congressional standing, a test under
which legislators could, in effect, create injury in fact after
the filing of a lawsuit merely by performing their legisla-
tive tasks. The plaintiff's proposed test for legislative
standing should be rejected by the Court, and the congres-
sional plaintiffs dismissed from this action due to their in-
ability to satisfy the congressional standing test enunci-
ated by the Court of Appeals for the District of Columbia
Circuit in Riegle v. Federal Open Market Committee, No.
80-1061 (D.C. Čir. June 24, 1981), petition for cert. filed, 50
U.S.L.W. 3156 (Aug. 29, 1981) (No. 81-398).

It is the congressional plaintiffs, themselves, who decid-
ed to work to override the proposed deferrals of VA appro-
priations, and they cannot now contend that their efforts,
undertaken after the filing of this action, constitute an
"injury" sufficient to satisfy the requirements of Article
III. Indeed, the Congressmen were merely performing the
duties of their offices in working to secure the passage of
the deferral resolutions in question. Rather than being "in-
jured" by these efforts, the Congressmen have thereby ob-
tained the relief which they originally sought in this
action and may have gained other, political, benefits as
well. [Id. at 7]

The defendant also maintained that the non-Congressional plaintiff (the VVA) had suffered no injury in fact and therefore did not have standing, and further that the injury asserted was neither caused by the defendant nor would be redressed by the relief sought.

On October 19, 1981, the plaintiffs filed a reply to the defendant's memorandum in opposition to their motion for summary judgment. This reply brief focused on the merits of the action and attempted to counter the defendant's contentions that there was a dispute about the issues of material fact and the challenged actions did not prevent the VA from employing personnel at the levels actually funded by Congress.

On February 9, 1982, U.S. District Judge Charles R. Richey issued a memorandum opinion and order dismissing the plaintiffs' complaint as moot. In the court's view, "this action does not present a live controversy, and, therefore, there is no jurisdiction to hear this matter, pursuant to Article III of the United States Constitution." [Memorandum Opinion, February 9, 1982, at 4] Holding that Federal courts do not have the power to render advisory opinions or to decide questions that cannot affect the rights of the parties in the case before them, Judge Richey reasoned:

In this case, the plaintiffs are challenging executive actions which have ceased being implemented. They are not seeking damages, rather the only relief which they request is that which they have received. This Court will not render an advisory opinion as to whether the past activities were valid or not, particularly when there is now "no reasonable expectation that the wrong will be repeated." United States v. Aluminum Co. of America, 148 F.2d 416, 448 (2d Cir. 1945). Plaintiffs have not shown a "demonstrated probability" that the actions in question will recur, nor have they shown that the same plaintiffs would again be affected even if such actions were repeated at some time in the future. See Weinstein v. Bradford, 423 U.S. 147, 149 (1979); State Highway Commission of Missouri v. Volpe, 479 F.2d 1099, 1106 (8th Cir. 1973).

The plaintiffs' argument that there is a continuing disagreement between the position of the defendant and plaintiffs regarding the legal interpretation of the VA Staffing Act may be correct, but it is not "of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). As defendant points out, there are presumably numerous other statutes for which the plaintiffs and defendant may have differing interpretations, but that does not necessarily present a "case or controversy" which belongs in Federal Court. [Id. at 4-5 (footnote omitted)]

On April 9, 1982, the plaintiffs filed a notice of appeal of Judge Richey's decision to the U.S. Court of Appeals for the District of Columbia Circuit. [No. 82-1426] On May 12, 1982, the plaintiffs-appellants filed an unopposed motion to dismiss the appeal in the case, and the motion was granted by the court in a per curiam order handed down on May 17.

Status-The case is closed.

The complete text of the February 9, 1982 memorandum opinion of the district court is printed in the "Decisions" section of Court

Proceedings and Actions of Vital Interest to the Congress, March 1, 1982.

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 military 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 a 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., ¶ 35]

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., ¶ 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., 17]

The complaint recited four causes of action, the first two of which alleged violations of the Constitution and the War Powers Resolution in that the defendants had "introduced at least 56 members of the United States Armed Forces in aid of the Salvadorian junta and its armed forces" [Id., ¶ 14] in the country's civil war. According to the plaintiffs, this action violated the War Powers Clause of the Constitution in that no declaration of war had been made, and violated the War Powers Resolution in that the U.S. armed forces had:

'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.