The opinion of the court was delivered by: GREENE
On September 13, 1984 this Court issued a temporary restraining order restraining the Secretary of Energy from effectuating a reduction in force (RIF) in the Office of Competition and the Office of Consumer Affairs. Plaintiffs are now seeking issuance of a preliminary injunction, and the government has filed a motion to dismiss. After consideration of the memoranda submitted by the parties, the arguments advanced at the hearing, and the entire record in this case, the Court has decided to deny the motion for a preliminary injunction and to grant the motion to dismiss.
On September 12, 1984, plaintiffs -- two consumer groups, the Ad Hoc Committee for Integrity in the Department of Energy (an unincorporated association of DOE employees), a Department of Energy employee subject to the RIF, and the National Treasury Employees Union -- filed this action for declaratory and injunctive relief. Plaintiffs alleged that the RIF which was scheduled to occur on September 14, 1984 would violate two provisions of the Department of Energy Organization Act, 42 U.S.C. §§ 7112, 7133(a)(7). According to plaintiffs, these sections of the Act mandate certain programs of consumer protection and competition; the RIF would make it impossible for the Department to comply with the congressional mandate; and that as a consequence of the RIF, they would suffer irreparable harm.
As noted, after a hearing on September 13, 1984, the Court issued a temporary restraining order. The parties have now had the opportunity to file additional briefs on the merits of the injunction request. In addition, the government has filed a motion to dismiss on the following grounds: lack of jurisdiction; failure to exhaust administrative remedies; lack of standing; ripeness; no private right of action and failure to state a claim upon which relief can be granted. All these issues have been fully briefed and argued, and the matter is now ripe for decision (see note 13 infra).
With respect to plaintiffs West and National Treasury Employees Union, the government contends that the Merit Systems Protection Board (MSPB) is empowered by statute to hear appeals related to reductions in force; that it has the authority to overrule agency decisions which are not "in accordance with law";
and that these two plaintiffs therefore could have and should have challenged the RIF through the MSPB system. This argument is not well taken.
The MSPB's jurisdiction is, of course, limited to subjects provided for by statute and regulation. Cowan v. United States, 710 F.2d 803, 805 (Fed. Cir. 1983). The relevant statute, 5 U.S.C. § 7512, does not include reduction in force actions in its coverage, and the only regulatory provision permitting appeal of RIF actions is contained in 5 C.F.R. § 351.901 (1984). That regulation states that an appeal may be taken by an employee affected by a RIF who believes that Part 351 of the regulations
has not been correctly applied. Since plaintiffs' claim goes not to any of the matters set forth in Part 351 of the regulation but to underlying questions of legality having no relation to RIF priorities and procedures, it is unlikely that the MSPB would have jurisdiction,
and the government's exhaustion argument must fail.
Standing to sue presents more serious problems for the plaintiffs. Standing, of course, subsumes both prudential and constitutional considerations, and the core component of the doctrine derives from the constitutional requirement of case or controversy. The Supreme Court and other tribunals have made it very clear that a plaintiff must allege a personal injury fairly traceable to the defendants' allegedly unlawful conduct which is likely to be redressed by the requested relief.
Allen v. Wright, 468 U.S. 737, , 52 U.S.L.W. 5110, 5114, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). On the basis of these principles, the government challenges the standing of all the plaintiffs to bring this suit. The Court finds this challenge to be well taken with respect to the "personnel" plaintiffs
but not with respect to the consumer groups.
The Ad Hoc Committee is described in the complaint as an unincorporated association of employees at the Department of Energy. It asserts that it will be "injured by the failure of DOE to abide by the legislative mandate and by the loss of [its] jobs and support staff." This allegation is clearly insufficient to establish standing. Just this term, the Supreme Court reiterated that "an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court." Allen v. Wright, supra, 468 U.S. at 754, 104 S. Ct. 3315 at 3326, 52 U.S.L.W. at 5115. DOE's alleged failure to abide by its legislative mandate thus does not provide standing to the Ad Hoc Committee. Since the further allegations of injury to the Ad Hoc Committee through loss of jobs and support staff are unsupported by any evidence on the record, the Committee lacks standing to bring this suit.
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 ...