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December 4, 1981

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

The opinion of the court was delivered by: FLANNERY


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

 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. PP 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 ...

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