not subject to the freeze because of her authority to appoint personnel under 5 U.S.C. § 1206(j). Defendant Eastwood notified the Office of Management and Budget of her position and proceeded to hire additional employees.
On July 8, 1980, the Supplemental Appropriations and Rescission Act, Pub.L.No.96-304, 94 Stat. 857 (1980), suddenly withdrew $ 2 million from the Special Counsel's $ 4.516 million appropriation for FY 1980. The report of the Senate Appropriations Committee which accompanied the bill expressly directed the Acting Special Counsel to "fully respect and abide" by the President's hiring freeze. When defendant Eastwood received this report on July 14, 1980, she immediately ceased all new hiring, and the only employee to enter on duty subsequently had been given a firm commitment by the Office before that date.
Meanwhile, Chairwoman Prokop ordered the Board's budget officer to determine the status of the Special Counsel's budget. Upon receiving a report that a significant over-obligation of funds by the Acting Special Counsel was imminent, the Chairwoman directed defendant Eastwood to cease any further expenditure of funds and advised her that the Chairwoman was responsible for any violation of the Anti-Deficiency Act caused by Eastwood's spending. Ms. Prokop formally communicated the possible deficiency to Congress on August 21, 1980.
On the same day, the Chairwoman wrote to defendant Eastwood in an effort to clarify the relationship between the Board and the Special Counsel. Specifically, Ms. Prokop informed the Acting Special Counsel that the Board would (1) be responsible for processing all hiring and other personnel actions in the Office of the Special Counsel except for selection of employees for that Office; (2) supervise the preparation and presentation of Special Counsel budget proposals; (3) regularly prepare and review Special Counsel accounts; (4) supervise contractual and other financial obligations incurred by the Special Counsel; (5) combine and supervise the public information, Congressional liaison, and interagency liaison activities of the Special Counsel and other Board offices; and (6) provide administrative supervision and services for the Special Counsel's headquarters and field offices. The Acting Special Counsel responded that she refused to comply with the Chairwoman's directives. When Ms. Prokop wrote a second letter demanding immediate implementation of the guidelines set forth in the August 21, 1980, letter, defendant Eastwood again objected and asserted that the Office of the Special Counsel was "independent of any supervision or control of, or direction by, the Board."
Despite the fears of the Chairwoman, there was no violation of the Anti-Deficiency Act. Ms. Prokop, however, remained concerned about her potential liability under that Act when the President signed a continuing resolution on October 1, 1980, which maintained the level of appropriations at the same reduced level as the preceding resolution. Supplemental Appropriations and Rescission Act, Pub.L.No.96-369, 94 Stat. 1351 (1980). The Board consequently filed this suit on November 21, 1980.
When the October 1, 1980, continuing resolution expired on December 15, 1980, it was succeeded by another resolution providing funding for the Office of the Special Counsel at the level of $ 4.2 million for FY 1981. Act of December 16, 1980, Pub.L.No.96-536, 94 Stat. 3166. The danger of an Anti-Deficiency Act violation was thereby obviated, and, as of the date of this Order, neither the Board nor the Special Counsel has been found in violation of the Act. Furthermore, on June 2, 1981, the Senate confirmed the nomination of Alex Kozinski as Special Counsel of the Board; thus, Ms. Eastwood no longer exercises the authority of the Acting Special Counsel.
It is well established that certain questions are inappropriate for judicial action. The reluctance of the courts to engage themselves in the resolution of such issues stems in part from the restriction on judicial power to "cases" and "controversies " in Article III of the U. S. Constitution and in part from policy considerations. See C. Wright, A. Miller, and E. Cooper, 13 Federal Practice and Procedure § 3529 (1975). This limitation applies to suits seeking damages, injunctions and declaratory judgments alike. Although there is no concrete definition of a "case" or "controversy" that is justiciable in the federal courts, the most famous effort was made by Chief Justice Hughes in Aetna Life Insurance Co. v. Haworth :
A "controversy" in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must have a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.
300 U.S. 227, 240-41, 57 S. Ct. 461, 463-464, 81 L. Ed. 617 rehearing denied, 300 U.S. 687, 57 S. Ct. 667, 81 L. Ed. 889 (1937) (citations omitted).
With respect to actions requesting declaratory relief, the Declaratory Judgment Act specifically requires "a case of actual controversy." 28 U.S.C. § 2201. Justice Murphy explained that:
the difference between an abstract question and a "controversy" contemplated by the Declaratory Judgment Act is necessarily one of degree.... Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.