The Court concludes that the $25 million appropriation for training, relocation, and job allowances was in addition to amounts appropriated that were to be spent according to the Secretary's exercise of reasoned discretion.
3. Judicial Review of the Secretary's Refusal to Allocate Money Other Than the $25 Million Appropriation
The Secretary argues that his decision not to spend money on training from the Employment and Training Administration (ETA) $3.8 billion appropriation is unreviewable as a decision committed to agency discretion by law under the Administrative Procedure Act, 5 U.S.C. § 701(a)(2) (1976). He points out that most of the cases cited by plaintiffs where courts ordered agencies to spend money involved appropriations for designated programs in specific amounts or program terminations. See, e.g., Commonwealth of Pennsylvania v. Weinberger, 367 F. Supp. 1378 (D.D.C. 1973); Guadamuz v. Ash, 368 F. Supp. 1233 (D.D.C. 1973).
The Secretary was not required to spend all funds appropriated to the Department of Labor in the continuing resolutions. This does not, however, endow him with the authority to use unfettered discretion as to when and how the monies may be used. A report from the Senate Appropriations Committee report in November 1981 stated, for example, that "the Committee expects the Secretary will use a reasonable amount of available funds for projects that will assist displaced workers return to self-sustaining productive employment through retraining, relocation and related activities . . ." S.Rep. No. 97-268, 97th Cong., 1st Sess. 10 (1981) (Report on Departments of Labor, Health and Human Services, Education, and Related Agencies Appropriations Bill, 1982).
The use of "may" in the authorization for appropriations and in the continuing resolutions, in light of the legislative history of the 1981 Trade Act amendments, did not give the Secretary discretion to refuse to make funds available for a congressionally mandated training program. See Commonwealth of Pennsylvania v. Lynn, 163 U.S. App. D.C. 288, 501 F.2d 848, 854 (D.C. Cir. 1974); State Highway Commission of Missouri v. Volpe, 479 F.2d 1099, 1109 (8th Cir. 1973); cf. United States v. Lucille Mitzi Bosco Rodgers, 461 U.S. 677, 103 S. Ct. 2132, 76 L. Ed. 2d 236, 51 U.S.L.W. 4621, 4629-30 (1983).
The agency discretion by law provision of the APA applies to the rare instances where there is no law to apply. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). That pragmatic determination is made by evaluating three factors: "the need for judicial supervision to safeguard the interests of the plaintiffs; the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role; and the appropriateness of the issues raised for judicial review." Natural Resources Defense Council v. Securities and Exchange Commission, 196 U.S. App. D.C. 124, 606 F.2d 1031, 1044 (D.C. Cir. 1979). The need to ensure that the Secretary exercises a reasoned discretion in funding and operating the training program enacted by Congress, together with the strong presumption of judicial review, compel the Court to reject the Secretary's argument of unreviewability.
Although the parties have not raised the issue of mootness, the Court addresses it since fiscal year 1982 has passed. Assuming arguendo that any funds available have lapsed, this action is not made moot because the Secretary's actions, in the context of the litigation process, are "capable of repetition, yet evading review." Roe v. Wade, 410 U.S. 113, 124-25, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973); Batterton v. Marshall, 208 U.S. App. D.C. 321, 648 F.2d 694, 699 (D.C. Cir. 1980). In addition, a court may grant a declaratory judgment even though it declines to issue an injunction or writ of mandamus. Powell v. McCormack, 395 U.S. 486, 499, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); State Highway Commission of Missouri v. Volpe, 479 F.2d at 1103. Defendant bears the burden of demonstrating that there is no reasonable expectation that the wrong will be repeated. Williams v. Barry, 228 U.S. App. D.C. 220, 708 F.2d 789 (D.C. Cir. 1983).
B. Injunctive Relief
Courts have power to order that funds be held available beyond their statutory lapse date if equity so requires. State of Connecticut v. Schweiker, 221 U.S. App. D.C. 457, 684 F.2d 979, 997 (D.C. Cir. 1982), cert. denied, 459 U.S. 1207, 103 S. Ct. 1197, 75 L. Ed. 2d 440 (1983). That power exists where, as here, suit was filed before budget authority lapsed. Id.; National Association of Regional Councils v. Costle, 184 U.S. App. D.C. 98, 564 F.2d 583, 588-90 (D.C. Cir. 1977).
By statute, the mandated return of an appropriation or fund to the Treasury at the end of a definite period "does not affect the status of lawsuits or rights of action involving the right to an amount payable from the balance." 31 U.S.C.A. § 1502(b) (1983). In fact, the head of an agency has the power to restore to the appropriate account part of a withdrawn, unobligated balance that has reverted to the Treasury where he decides that it is required "to pay obligations and make adjustments." Id. § 1552(a)(2).
The Secretary's answers to interrogatories and the affidavits of ETA Budget Officer Sandra T. King indicate that funds exist for Trade Act training from at least two sources.
The first source is the $89 million (less $4 million designated for the Job Corps by Congress) of unobligated federal funds in the ETA account for fiscal year 1982. The second source is the gap between the appropriated amount of $306 million for the Federal Unemployment Benefit Account (FUBA), and the total amount obligated to the States from the FUBA account -- $75 million. The Secretary's claim that FUBA money cannot be used or transferred to pay for training costs is belied by the legislative history of the Budget Act.
The $112 million proposed originally by the Secretary for training was contained in the FUBA account. The Secretary's representative told a Congressional committee in March 1981:
What we intend to do is this, if the Congress enacts the (Trade Act amendments), which we certainly hope it does, we would immediately move forward with a budget amendment. For now, the $112 million I mentioned is provided for in the Federal unemployment benefit account -- FUBA. We would probably reduce the FUBA account by that amount in budget amendment and go to some other authorization.
Trade Adjustment Assistance Hearings, at 36 (testimony of William B. Lewis, Administrator, Unemployment Insurance Service, Employment and Training Administration, Department of Labor). (emphasis added).
The Court permits plaintiffs to take the deposition of Budget Officer Sandra T. King and the deposition of any other appropriate budget officer of the Department of Labor within 10 days of the date of this order to ascertain the availability of fiscal year 1982 funds for training dislocated workers under the Trade Act.
The Court requires the Secretary, exercising his reasoned discretion, to provide to the Court within 25 days of the date of this order a plan of funding Trade Act training costs from available fiscal year 1982 funds other than the $21.4 million obligated in fiscal year 1982 for Trade Act training. The plan shall include a method of permitting applications by persons, such as plaintiffs James, Simmons, and Pompey, who obtained approval for training before October 1, 1981, and whose requests for payment of costs after October 1, 1981 were denied. The plan shall also include a method of permitting application by persons, such as plaintiff Jackson, and declarants Romero and Tucker, who were denied initial approval for training during fiscal year 1982 for lack of sufficient allocated funding.
The Secretary has carried over $5.4 million in unobligated fiscal year 1982 funds for training to fiscal year 1983. The same treatment is possible for funds that would have been obligated in fiscal year 1982 under a reasoned exercise of agency discretion. Since authorization for Trade Act training expires at the end of fiscal year 1983 under Section 2510 of the Budget Act, 19 U.S.C. § 2317 (Supp. V 1981), the Court will not grant extensions.
An appropriate order accompanies this opinion.
Upon consideration of defendant's motion for summary judgment, plaintiffs' reply and cross-motion for summary judgment, defendant's opposition, plaintiffs' reply, and the entire record in this action, for the reasons stated in the accompanying memorandum opinion, it is by the Court this 10th day of June 1983,
ORDERED that plaintiff Helen Vance is dismissed from this action for lack of standing; it is further
ORDERED that plaintiffs' motion is granted and the Secretary's motion is denied in that it is declared that the Secretary abused his discretion in refusing to allocate funds for Trade Act training from the continuing resolution appropriations of Congress in fiscal year 1982 for the Department of Labor; it is further
ORDERED that the stay of discovery in this action is vacated to permit plaintiffs to take the deposition of Sandra T. King, Budget Officer of the Employment and Training Administration of the Department of Labor, and the deposition of any other appropriate budget officer of the Department of Labor, within 10 days of the date of this order to ascertain the availability of fiscal year 1982 funds for Trade Act training; it is further
ORDERED that the Secretary, exercising his reasoned discretion, shall provide to the Court within 25 days of the date of this order a plan of funding training costs of dislocated workers under the Trade Act from available fiscal year 1982 funds other than the $21.4 million obligated in fiscal year 1982 for such training; and it is further
ORDERED that this action is dismissed with the Court retaining jurisdiction to enter appropriate injunctive relief upon submission of the Secretary's plan.
© 1992-2004 VersusLaw Inc.