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.] On August 29, 1981, Senator Riegle filed a petition for a writ of certiorari in the U.S. Supreme Court [No. 81-398-CFX], seeking review of the court of appeals decision. Noting that the appeals court had "formulated a new rule of law to govern the justiciability of actions brought by Members of Congress" [Petition for a Writ of Certiorari, August 29, 1981, at 8], Senator Riegle argued that the Supreme Court should grant the writ to settle this important question of Federal law. The Senator took issue with the court of appeals' emphasis on the adequacy of possible legislative redress and its concern about interfering in the legislative process, and maintained that the court's ruling was incorrect on both philosophical and practical grounds: The Court of Appeals recognized that when a litigant has presented a justiciable claim, a court ordinarily has a duty to go forward with the case. It held, however, that where the plaintiff is a Member of Congress and the injury is susceptible of legislative redress, the court can escape Philosophically, it is predicated on the same error that Pragmatically, the new rule guarantees that in the class of cases to which it applies, a key issue in the determination of justiciability will not receive an adversarial presentation. It forces the Congressional plaintiff to argue against private plaintiff standing, even though such a position may conflict with other important and legitimate interests of the litigant. The Government is in an even worse position. In order to defend against the Congressional plaintiff, it must supply the battle plan for a successful attack upon itself by private plaintiffs. The Department of Justice has an institutional interest in limiting suits against the Government in general, and the particular agency involved has an even more direct interest in protecting its own programs and personnel. Realizing this, as the Court of Appeals apparently did in the case at bar when it formulated the rule and applied it without any briefing or argument at all, a court may inadvertently base its decision on an assumption which is at odds with history and doctrine alike. [Id. at 11-12 (footnotes omitted)] On November 3, 1981, the defendants filed a brief in opposition to the petition for certiorari, arguing that the court of appeals correctly declined to hear Senator Riegle's claim. At the outset, the defendants contended that the Senator had demonstrated reason why "he should be allowed to assert the Senate's rights when the Senate as an institution has chosen not to do so." [Brief for Respondents in Opposition, November 3, 1981, at 6] In the defendants' view, the controversy could have been resolved through the legislative process, and intervention by a court would therefore be inappropriate. "When dealing with sensitive conflicts betweenor in this case within-coordinate branches of government, it is especially important that courts not intervene prematurely or unnecessarily." [Id. at 6-7] no Although the defendants opposed granting the writ of certiorari, they did criticize the reasoning-if not the result of the court of appeals. While the appeals court invoked its "equitable discretion" to affirm the dismissal of the complaint, the defendants asserted that the case should have been dismissed on the basis of Senator Riegle's lack of standing. However, the defendants concluded that: The mere fact that the court of appeals appears to have chosen a debatable pigeonhole here-as we believe is hasdoes not, however, justify this Court's review. Despite their shifting formulations, the District of Columbia Circuit and the other courts of appeals have achieved an underlying consistency of results, holding that a member of Congress has standing only where a specific legislative enactment was nullified by executive action. . . . There is no reason at this time to believe that that underlying consistency is threatened. In our view, the court of appeals' abstract expressions alone are not sufficient reason for this Court to intervene. Moreover, it is not clear how the District of Columbia Circuit intends to apply its new test in the numerous, diverse situations that are certain to arise. We suggest that it would be useful for this Court to have the benefit of the court of appeals' experience under its new formulation before determining whether the rule announced by the court below deserves further review. [Id. at 9] On November 6, 1981, Senator Riegle filed a reply brief noting that the defendants "concede that the use of the doctrine of equitable discretion is simply indefensible in the context of this case.' [Reply to Brief in Opposition, November 6, 1981, at 1] On November 30, 1981, the petition for a writ of certiorari was denied. [102 S. Ct. 636] Status-The case is closed. 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 Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981. 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, ¶ 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 OMB 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 employment 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. 1 24] 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. ¶ 28] 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., ¶ 36] 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. "[None 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 accounts. Equally apparent from the fact of the plaintiffs' own pleadings is the fact that this dispute was resolved through the normal processes of interaction between the Executive and the Congress, as are hundreds of other such controversies whether political or legal in nature. Moreover, an appropriate resolution of the controversy was reached without the aid of judicial intervention. The plaintiffs now seek to reopen this dispute by having the Court resolve important questions of public law and declare the rights of the parties to a moot controversy. However, as would be the case even if a live controversy did exist, the Court should decline to entertain an action for declaratory judgment where, as here, the controversy has become "so attenuated that considerations of prudence and comity for coordinate branches of government counsel the Court to withhold relief." Chamber of Commerce of the United States v. United States Department of Energy, 627 F.2d 289, |