American Federation of Government Employees, AFL-CIO v. Pierce, AFL-CIO

• Decision Date: 08 December 1982
• Docket Number: No. 82-2372,AFL-CIO,82-2372
• Citation: 697 F.2d 303,225 U.S.App.D.C. 61
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,, et al. v. Samuel R. PIERCE, Secretary of Department of Housing and Urban Development, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 303

697 F.2d 303

225 U.S.App.D.C. 61

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al. v. Samuel R. PIERCE, Secretary of Department of Housing and Urban Development, Appellant.

No. 82-2372.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 7, 1982.

Decided Dec. 8, 1982.

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.

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.

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 HUD 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 Employees, AFL-CIO), and Congressman Martin Sabo, a member of the House Appropriations Committee. They allege that the proposed RIF was a "reorganization of the Department" of the type Congress meant to block through a provision in the HUD Appropriation Act precluding use of funds "prior to January 1, 1983, to plan, design, implement, or administer any reorganization without the prior approval of the Committees on Appropriations." Department of Housing and Urban Development--Independent Agencies Appropriation Act, 1983, Pub.L. No. 97-272, 96 Stat. 1160, 1164 (1982).

The district court ruled that Congressman Sabo had standing to challenge the Secretary's action, did not decide whether the union or the HUD employees could pursue the case, assumed arguendo the unconstitutionality of the clause lifting the funding prohibition upon "the prior approval of the Committees on Appropriations," severed the approval clause, and applied the provision, as trimmed, to enjoin the RIF. Thus, under the order we review in this expedited appeal, the Secretary is estopped from using appropriated funds before December 31, 1982, to "plan, design, implement, or administer any reorganization of the Department." We agree that Congressman Sabo has standing to commence this lawsuit, pretermit the question whether the district court was the appropriate forum for the employees' complaint, find the approval clause unconstitutional and not severable from the preceding portion of the sentence in which it is contained, and hold the provision invalid in its entirety.

STANDING

Congressman Sabo asserts that he has standing both in his capacity as a legislator and as a member of the House Appropriations Committee. The district court found standing based on his membership in Congress, but did not explicitly consider the significance of his membership on the House Appropriations Committee. We address the two grounds separately. For purposes of the standing issue, we accept as valid Congressman Sabo's pleaded legal theory. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); Goldwater v. Carter, 617 F.2d 697, 701-02 (D.C.Cir.) (en banc), vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979). Essentially, his claim of injury rests on the premise that, under the governing law, a reorganization of HUD could not commence prior to January 1, 1983, without the approval of the Appropriations Committees.

Congressman Sabo's membership in the House of Representatives

With respect to this basis for standing, we disapprove the district court's reliance upon Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974), and find Harrington v. Bush, 553 F.2d 190 (D.C.Cir.1977), the controlling precedent. In Harrington, a congressman requested that the court examine the conduct of the Central Intelligence Agency, declare that it had misused funds, and enjoin such further conduct. Id. at 202. There, as here, the congressman's stake as a legislator was merely an interest in having laws executed properly. It was not, as in Kennedy, an interest in the process by which a bill becomes a law. Any interest that a congressman has in the execution of laws would seem to be shared by all citizens equally. Injury to that interest is a "generalized grievance[ ] about the conduct of government," Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1955, 20 L.Ed.2d 947 (1968), which lacks the specificity to support a claim of standing. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 762, 70 L.Ed.2d 700 (1982).

Congressman Sabo's membership on the House Appropriations Committee

This basis for standing, however, is controlled by Kennedy, which involved a challenge to President Nixon's alleged abuse of the pocket veto. Senator Kennedy asserted that a bill passed by both Houses of Congress had become law without signature of the President. We found that the Senator had standing because the President's actions had denied him the effectiveness of his vote in enacting the statute. He claimed an interest which he, as a senator, had in the legislative process, different from any interest that he, like any other citizen, may have had in the execution of the bill once enacted.

In the present case, the Appropriation Act gave Congressman Sabo the right, as a member of the Appropriations Committee, to participate in approval of any reorganization of HUD conducted before January 1, 1983. The Secretary's actions injured him by depriving him of that specific statutory right to participate in the legislative process. ³ That right, unique to members of the Appropriations Committees, is not a general interest in the faithful execution of laws, but rather a particular interest in the law as it relates to their authority. Under currently governing precedent, therefore, Congressman Sabo has a sufficient "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), to ensure that the dispute sought to be adjudicated will be presented in "a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge, supra, 454 U.S. at 472, 102 S.Ct. at 758.

CONSTITUTIONALITY OF THE PROVISO

The challenged provision of the HUD Appropriation Act can be interpreted in two ways. First, it may be regarded as creating a power in either Appropriations Committee to prevent otherwise-authorized expenditures of funds. This reading would make the provisions a legislative veto in the usual sense, in this case a veto power placed by law in a single committee of the House or the Senate. ⁴ Second, the passage may be seen (perhaps more naturally) as prohibiting HUD from using appropriated funds for certain purposes but empowering both Appropriations Committees, acting together, to lift the prohibition and authorize HUD to make such use of the funds. We examine both readings of the statute under the law established by Consumer Energy Council v. FERC, 673 F.2d 425 (D.C.Cir.1982), appeals docketed, Nos. 81-2151 etc., 50 U.S.L.W. 3949 (U.S. May 21, 1982), which was unanimously adopted by the en banc court in Consumers Union, Inc. v. FTC, 691 F.2d 575 (D.C.Cir.1982), jurisdictional statement filed (U.S. Dec. 6, 1982).

Consumer Energy holds that a one-house veto of otherwise permitted executive action is an act of legislative power, 673 F.2d at 464-70, and violates the Constitution in three respects. Legislative power may be exercised only as provided in article I, section 7 of the Constitution, id. at 464. A one-house veto impermissibly makes law without a vote by both Houses of Congress and circumvents the President's power to veto. Legislative vetoes also violate the principle of separation of powers. They provide a means for Congress to control the executive without going through the full lawmaking process, thus unconstitutionally enhancing congressional power at the expense of executive power. Consumer Energy, 673 F.2d at 476; Consumers Union, 691 F.2d at 577. As a one-house veto, the power contained in the HUD Appropriation Act is thus violative of the Constitution and void. That conclusion is only reinforced by the fact that the Act does not even provide a one-house veto but a one-committee veto.

The provision can also be taken as granting the Appropriations Committees the power to lift a congressionally-imposed restriction on the use of appropriated funds. In this light, the directive is nothing more or less than a grant of legislative power to two congressional committees. It is plainly violative of article I, section 7, which prescribes the only method through which legislation may be enacted and which "restrict[s] the operation of the legislative power to those policies which meet the approval of three constituencies, or a supermajority of two." Consumer Energy, 673 F.2d at 464 (footnote omitted). Although bicameralism is in a sense present under the contested procedure--a committee of each house is involved--it is in the more significant sense lacking, since neither house itself is fully involved in the legislative act. In any event, the lack of presentment of the "legislation" to the President is enough to invalidate the provision. Separation-of-powers principles are offended because Congress has attempted to enlarge its powers in relation to the...