Public Citizen v. Stockman

• Decision Date: 04 December 1981
• Docket Number: Civ. A. No. 81-2659.
• Citation: 528 F. Supp. 824
• Parties: PUBLIC CITIZEN, et al., Plaintiffs, v. David A. STOCKMAN, Director, Office of Management and Budget, Defendant.
• Court: U.S. District Court — District of Columbia

528 F. Supp. 824

PUBLIC CITIZEN, et al., Plaintiffs, v. David A. STOCKMAN, Director, Office of Management and Budget, Defendant.

Civ. A. No. 81-2659.

United States District Court, District of Columbia.

December 4, 1981.

David C. Vladeck, Alan B. Morrison, Public Citizen Litigation Group, Washington, D. C., for plaintiffs.

Whitney Adams, Asst. U. S. Atty., Civil Division, Washington, D. C., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

THOMAS A. FLANNERY, District Judge.

I. Introduction

This matter comes before the court on plaintiffs' motion for a preliminary injunction. Plaintiffs seek to enjoin the defendant, the Director of the Office of Management and Budget, from refusing to make available certain funds appropriated by Congress in its emergency Continuing Resolution for the first fifty-one days of fiscal year 1982, October 1 through November 20, 1981. For the reasons expressed below, the motion for preliminary injunction is denied.

II. Facts

On September 24, 1981, President Reagan transmitted to Congress a revised budget proposal for fiscal year 1982. Because Congress recognized it would not be able to fully evaluate the proposed budget by the October 1 deadline prescribed in the Congressional Budget and Impoundment Control Act of 1974, 31 U.S.C. § 1321, it passed the 1982 Continuing Resolution, Pub.L. 97-51, 95 Stat. 958 ("CR"). The CR, signed into law by the President on October 1, 1981, is an emergency mechanism for funding executive operations while Congress deliberates about a comprehensive appropriations package. The CR authorized agencies to incur obligations, in many instances, at levels higher than those Congress targeted in the Reconciliation Act, 31 U.S.C. § 1322 et seq. (1981), or in the President's revised budget request. Under the CR, funds spent during the fifty-one day period are to be deducted from the total amount subsequently appropriated for fiscal year 1982 in a comprehensive appropriations act.

On October 7, 1981, OMB issued Bulletin No. 82-1 ("Bulletin"), which provided agencies with instructions for preparing and submitting requests for appropriations. In relevant part, the Bulletin required that agencies propose deferrals of funds appropriated in the CR so as to limit spending rates to those prescribed in the President's revised budget proposal. The stated purpose of this portion of the Bulletin was to provide for the continued operation of the government in a manner that does not preclude Congressional options in formulating final appropriations actions for the fiscal year. The Congress has stated on many occasions that rates of operation under continuing resolutions are to be interpreted as mandatory spending levels. The Congress and the President expect departments and agencies to avoid the obligation of funds under continuing resolutions at rates that would impinge on discretionary decisions otherwise available to the Congress while the Congress is considering its options, including the President's budget request and its own targets established in the first concurrent budget resolution for fiscal year 1982.

Bulletin at 1.

In accordance with the policy expressed in the Bulletin and the Impoundment Control Act, 31 U.S.C. § 1400 et seq. (Supp. 1976) ("ICA"), six special "messages" have been sent to Congress detailing the deferrals proposed by the affected agencies. The defendant has submitted affidavits indicating that all proposed deferrals have been processed by OMB and forwarded to Congress. See Dame Affid. ¶¶ 9-11. Plaintiff maintains that certain deferrals have not been expressly declared but offers no evidence to support this contention.

The messages transmitted to Congress described the amounts deferred, the programs impacted and the sphere of program operations that would be affected by the deferral. In addition, each deferral message stated that the deferral would remain in effect for a period "not beyond the expiration of the Continuing Resolution or any extension thereof." The CR was originally scheduled to expire on November 20, 1981, but has recently been extended until December 15, 1981. Finally, consistent with the policy rationale voiced in the OMB Bulletin, the President stated that

these deferrals are intended to preserve Congressional options to act favorably on the proposals for reductions in fiscal year 1982 budget authority that I announced on September 24, 1981, and subsequently transmitted to the Congress. These deferrals recognize the intent of Congress, reaffirmed during House and Senate action on the Continuing Resolution, that amounts provided in Continuing Resolutions are ceilings, not mandatory spending levels.

Second Special Message of the President, October 20, 1981, at 1.

The special messages were sent on October 1, October 20, October 23, October 29, November 6, and November 13, 1981, reporting 192 deferrals totaling approximately two billion dollars. The central concern of the instant suit is deferrals described in the messages transmitted to Congress on October 20 and 23. On October 20, OMB notified Congress it was initiating 56 deferrals of fiscal year 1982 funds, totaling $95.1 million. On October 23, OMB notified Congress of deferrals covering 72 programs totaling $482.5 million. It is mainly as a result of this category of deferrals that plaintiffs claim they will be injured. The programs affected include funds withheld from the Department of Housing and Urban Development's Housing for the Elderly Fund, the National Park Service and the Department of Agriculture's flood control program.

The ICA directs the Comptroller General to analyze executive budget actions and report to Congress whenever he concludes that an executive action violates the terms of the Act. 31 U.S.C. § 1405(a). Specifically, the Comptroller General is directed to report to the Congress when an executive withholding has been erroneously classified as a deferral rather than a rescission. 31 U.S.C. § 1405(b). Further, the Comptroller General is authorized to bring suit to enforce the ICA twenty-five days after he/she submits an explanatory statement of the basis of such a suit to both houses of Congress. 31 U.S.C. § 1406. As of this writing, the Comptroller General has not reported to Congress that any of the deferrals enacted by the defendant violate the ICA and has expressed no intention to file an enforcement action in federal court.

III. Discussion

The factors to be considered in granting preliminary injunctive relief are set out in Virginia Petroleum Jobbers Assoc. v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958) as (1) the likelihood that the petitioner will prevail on the merits; (2) the irreparable injury to the petitioner if the injunction is denied; (3) the harm to other interested parties if the injunction is granted; and (4) the dictates of the public interest. See also Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977).

A) Likelihood of Success on the Merits

Plaintiffs contend that the OMB Bulletin and subsequent deferrals transmitted to Congress are not authorized by law and violate the letter and purpose of the ICA. The principal issue before the court, as plaintiffs' reply memorandum acknowledges, is whether the withholdings ordered by OMB in Bulletin No. 82-1 have properly been labeled deferrals or whether they are, in fact, rescissions under the provisions of the ICA. See Plaintiffs' Reply Memorandum at 1. Rescissions are permanent withholdings of appropriated funds and must be proposed by a special Presidential message to the Congress. Rescissions do not become effective unless Congress approves the proposal by enactment of a rescission bill. 31 U.S.C. § 1402. Deferrals, on the other hand, are temporary withholdings of budget authority. Deferrals must also be reported by a special Presidential message, 31 U.S.C. § 1403(a), but are automatically effective unless either house passes an impoundment resolution disapproving the withholding. 31 U.S.C. § 1403(b).

Plaintiffs have not demonstrated a substantial likelihood of success on the merits because (1) the court has serious doubts that the ICA creates a private right of action to challenge whether withholdings are deferrals or rescissions and, even if there is such a right of action, (2) the withholdings involved appear to be valid deferrals under the ICA.

1) The ICA Does Not Create a Private Right of Action

As noted, the gravamen of plaintiff's complaint is that the defendant has violated the Impoundment Control Act by treating certain withholdings as deferrals rather than rescissions. An analysis of the ICA and its underlying purposes, however, reveals that Congress did not intend to create a private right of action to police against transgressions of the Act by the executive.

The ICA does not expressly vest in any person besides the Comptroller General the right to bring suit to enforce the Act's provisions. The seminal case of Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975) delineated a number of relevant factors to be considered in determining whether a private remedy is implicit in a statute not expressly providing one. First, the court must consider whether plaintiff is "one of the class for whose especial benefit the statute was enacted." Id. (Emphasis in original), quoting Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916). Second, the court must discern whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one. Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy. Finally, the court should analyze whether the cause of action is one historically relegated to state law.

A number of recent Supreme Court cases have clarified the purpose of the four factor analysis described in Cort. The essential question to be answered is whether "Congress intende...