With respect to the individual plaintiff and the union the standing issue is less clear. A number of decisions have found that government employees and unions have standing to challenge the legality of government actions that would lead to the termination of government employment. In several of these cases, the allegations involved illegality related to Civil Service laws or challenges to the authority to carry out the particular action under these laws. See, e.g., Local 2677, AFGE v. Phillips, 358 F. Supp. 60 (D.D.C. 1973); Local 1858, AFGE v. Paine, 141 U.S. App. D.C. 152, 436 F.2d 882 (D.C. Cir. 1970); AFGE Lodge 1858 v. Webb, 188 U.S. App. D.C. 233, 580 F.2d 496 (D.C. Cir. 1978); Andrade v. Lauer, 234 U.S. App. D.C. 384, 729 F.2d 1475 (D.C. Cir. 1984). The present case is somewhat different because plaintiffs are relying not upon the specific congressional enactment of a program but rather upon the more general legislation establishing DOE. For that reason, it may be that these plaintiffs have not established that they fall within the zone of interest established by the statute although, were the merits of this case more compelling or the legislative language more specific in establishing a program, the employee and the union could perhaps make the requisite showing. It is not necessary to reach a definitive conclusion in that regard, since the consumer groups do have standing.
The consumer groups allege that the DOE Organization Act mandates certain programs in the area of consumer affairs and competition; that they are direct beneficiaries of these programs; that these programs are being illegally terminated through the present RIF; and that issuance of an injunction preventing the RIF would ensure them the continued benefit of these programs. These allegations are sufficiently credible to give standing to sue to these plaintiffs and to allow the Court to reach the merits.
Substantively at issue in this case is the question whether the Department's decision to reduce the number of employees in the Office of Consumer Affairs and the Office of Competition is contrary to the DOE Organization Act. Plaintiffs concede that there is no language in the Act which explicitly requires the Department to maintain these offices at a particular staffing level;
they argue instead that the severely reduced staffing of these offices would violate the spirit of the Act and the legislative intent behind it. According to plaintiffs, Congress intended the functions of consumer protection and advancement of competition to be carried out wholeheartedly and with effectiveness, and that this congressional mandate requires more than token staffing levels. The government replies that the Act gives the Secretary of Energy full discretion with respect to the level of performance of the consumer and competition functions, provided only that each function is assigned to an Assistant Secretary.
This Court has conducted an extensive review of the legislative history, and it concludes that, although Congress did place an affirmative duty upon DOE to perform these functions (as opposed to merely assigning them to an Assistant Secretary), it also left the Department with flexibility as to how these functions were to be performed. Specifically, the Act does not set staffing levels, require the creation of "offices," establish specific mandatory programs, or otherwise dictate to the Department the exact parameters of each function.
Plaintiffs rely heavily upon an amendment proposed by Senator Kennedy which would have established an Assistant Secretary of Competition and Consumer Affairs, and which would have explicitly detailed the duties of that individual.
But the Kennedy amendment was not acted upon by the Congress, and the Senate version of the bill was reported out of committee without detailing the specific duties of the assistant secretaries. The Senate Report states:
The section does not statutorily name any of the Assistant Secretaries in keeping with the decision of the committee to allow the Secretary maximum flexibility in organizing the responsibilities of the Assistant Secretary level. Rather, it sets out the functions to be performed by Assistant Secretaries, leaving to the Secretary the decisions as to which should be performed by a single Assistant Secretary, or combined under an Assistant Secretary, or undertaken by more than one Assistant Secretary.
S. Rep. 95-164 at 21.
To be sure, Senator Kennedy later expressed his view that the new version essentially tracked his earlier amendment, but this does not detract from the clear statement in the Senate Report that the Secretary was to have substantial flexibility in carrying out the assigned functions.
Moreover, while the original Senate version of the bill would have placed considerable responsibility on the Assistant Secretary with oversight for competition and consumer affairs, requiring him not only to assist the Secretary in the formulation and review of relevant policies, but also "to acquire, analyze and disseminate information relating to competition and consumer affairs,"
this information function, too, disappeared from the bill during the House-Senate conference.
In sum, the legislative history indicates that Congress intended competition and consumer affairs to be significant concerns of the Department of Energy assigned to a high level official for oversight. The Court regards as entirely without merit the government's claim that this congressional mandate would be met by merely assigning the function to an Assistant Secretary without any staff support or actual implementation. In fact, it was the clear intent of Congress that advancement of competition and protection of consumers be ongoing, permanent elements of the Department's energy program, and that the Department organize and maintain programs to carry out these purposes.
But what Congress did not do was to mandate any particular organizational method for doing so. To the contrary; the legislative history indicates a congressional desire to give the Department flexibility in carrying out its required functions. Affidavits have been presented to this Court from DOE officials to the effect that they fully intend to carry out required functions, using different management techniques than heretofore, including the coordination of cross-departmental use of personnel, contracting-out studies, and use of computers. The affidavits clearly claim a commitment to perform these functions, albeit in a different mode than in the past.
While it appears to the Court that it is unlikely that the new "coordinating" mode of dealing with consumer and competition issues will be as effective as the assignment of sufficient personnel to carry out these functions directly, that is a decision which present law leaves to the Department. Under the law, the Department has flexibility, and it accordingly is not for this Court to overrule the Secretary's decision as to how the functions assigned to him should be carried out.
Plaintiffs have indicated congressional dissatisfaction with the Secretary's decision in this regard,
and it is obviously within Congress' power to remedy the problem. It is not within this Court's authority, however, to limit the discretion previously granted to the Department of Energy by the Congress because there may now be some dissatisfaction with the way this discretion is being exercised.
The motion to dismiss will accordingly be granted.