DECISIONS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CONGRESSMAN DAVID E. BONIOR, ET AL., PLAINTIFFS,

V.

DAVID A. STOCKMAN, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, DEFENDANT

Civil Action No. 81-0979

February 9, 1982

MEMORANDUM OPINION OF UNITED STATES DISTRICT JUDGE CHARLES R.

RICHEY

This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. The backgroud of this case is as follows.

On March 31, 1980, former President Carter submitted his proposed budget to Congress for Fiscal Year 1981, requesting appropriations for the Veterans' Administration's medical care and research accounts with employment levels of 184,672 and 4,418 staff years, respectively. Congress, however, in the 1981 Appropriation Act, provided approximatly $61.4 million more for the Veterans' Administration's medical care account and $2.7 million more for the research account than had been requested by President Carter. See P.L. No. 96-526. The Joint Explanatory statement accompanying the Conference Report on the bill stated that $21,069,000 of the additional medical care account funds were provided for "1000 additional direct health care personnel (staff years)," and $6,000,000 were provided for the Veteran Center Outreach Program to cover 176 additional staff years for that program. The remainder of the $62 million was designated for non-personnel items. In short, Congress intended that the employment level for the Veterans' Administration ("VA") medical care account be some 1,176 staff years higher than the proposed Carter budget. Although Congress attempted to provide the additional budget authority necessary for the additional staff years, the nine percent federal pay raise which took effect in October of 1980, as well as the increase in physician bonuses, 2 were not taken into account by Congress, which left a deficiency in funds for the higher personnel levels. Without a supplemental appropriation, funds for medical care personnel would have run out prior to the end of Fiscal Year 1981 if the 1,176 staff years were added. However, the then Director of OMB certified to the

A staff year is authorization for one full-time employee to work one year; however, it may also be divided into two half-time employees working one year or two full-time employees working one-half year.

2 See P.L. 96-330, Aug. 26, 1980.

House and Senate Committees on Veterans' affairs that the personnel ceiling would include the additional staff years requested because of the Carter administration's plan to seek a supplemental appropriation to fund the deficiency. On January 15, 1981, the Carter administration recommended to Congress that supplemental appropriations be made so that personnel levels could be maintained for all four quarters of the fiscal year.

When the Reagan administration assumed office, the administration sought a supplemental appropriation for the VA's medical care and research accounts which was smaller than the one requested by the Carter administration. Had it been implemented, it would have resulted in a reduction of 1,280 medical care staff years and 74 research personnel staff years. The President, in conjunction with this amended request for supplemental appropriations, proposed to defer $29 million for the VA medical care account and $1.7 million for the research account from the third quarter of Fiscal Year 1981 to late in the fourth quarter. The purpose of the proposed deferral was to reapportion the funds which had originally been apportioned among the four quarters in anticipation of the larger appropriation. The deferral would have delayed the obligation of the funds by three months. Congress, however, subsequent to the filing of this lawsuit, disapproved this deferral, and rescinded all but $3.2 million of the $29 million which was to be deferred. The remaining $3.2 million has been made available by OMB for obligation by the VA. In addition, on January 20, 1981, President Reagan imposed a hiring freeze on all federal civilian personnel which prohibited the hiring of persons who had not been appointed to the federal government prior to January 20, 1981. OMB Director Stockman granted an exemption from the freeze to all direct care employees in the VA's health care facilities, but the Outreach technicians employed in the Veterans Center program did not receive such a blanket exemption.

On April 24, 1981, the plaintiffs, eleven Congressmen and the Vietnam Veterans of America, Inc. ("VVA"), filed this action challenging the President's proposed deferral of budget authority for the VA's medical care and research accounts as a violation of the VA Staffing Act, 38 U.S.C. § 5010. Plaintiffs' claims for relief are threefold. One, they seek a declaratory judgment concerning the legality of the President's hiring freeze of January 20, 1981, which ended in March of 1981.3 Two, they seek a declaration with respect to the legality of a proposed deferral of $29 million in budget authority for the VA medical care account, which was subsequently overridden by Congress. And three, they seek an injunction requiring the defendant to authorize the employment of certain VA health care and research personnel and to release the funds to accompany such employment for Fiscal Year 1981. That fiscal year has now passed, and that authorization was in fact given several months ago.

3 The legality of the hiring freeze has already been determined in the case of National Treas ury Employees Union v. Reagan, Nos. 1293 through 1298 (D.C. Cir. Aug. 11, 1981).

It appears, however, from the plaintiffs' opposition to the defendant's motion to dismiss and the proposed order attached thereto, that the plaintiffs are no longer seeking injunctive relief.

Defendant, in the instant motion, argues that this case should be dismissed on two grounds. First, defendant claims that there is no actual and present controversy between plaintiffs and defendant and therefore their claims for relief are moot. Secondly, defendant argues that neither the Congressional plaintiffs nor the VVA possess the requisite standing to maintain this action. The Court, upon careful consideration of the record, agrees that 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. Accordingly, the Court grants the defendant's motion to dismiss.

The test for determining whether an action should be dismissed for mootness is whether the case involves a "substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of declaratory judgments." Maryland Casualty Co. v. Pacific Coal & Oil Co., Inc., 312 U.S. 270, 273 (1941). This case does not present such a live controversy. The Supreme Court has held that "[t]he rule in all Federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974). An action for a declaratory judgment can be brought too late if there is no longer an actual controversy, and events subsequent to the filing of the action may render it moot by the time of the decision. See C. Wright & A. Miller, 10 Federal Practice and Procedure § 2757 (1973); Golden v. Zwicker, 394 U.S. 103, 108-10 (1969). A Federal Court does not have the power to render advisory opinions nor to decide questions that cannot affect the rights of the litigants in the case before them. Its judgments must resolve a real and substantial controversy admitting specific relief through a decree of a conclusive character. North Carolina v. Rice, 404 U.S. 244, 246, (1971).

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. Aluminium 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, not have they shown that the same plaintiffs would again be effected 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