The second alleged injury is that the presidential sequestration order which has already been issued pursuant to the automatic deficit reduction process permanently cancelled the 1986 COLA increases that otherwise would have been paid. Amended Complaint para. 17. This injury is clearly sufficient to constitute injury-in-fact for Article III purposes, and would be redressed by a declaration that the presidential sequestration order was without legal force and effect. See Synar, 626 F. Supp. at 1380-81. It is for this reason that we have granted plaintiffs' motion for summary judgment on their claim that the automatic deficit reduction process is unconstitutional. See supra at 338. But this injury cannot give plaintiffs standing to attack the fallback deficit reduction process. This court has already held that the automatic deficit reduction process can be severed from the fallback deficit reduction process and the rest of the Act. Synar, 626 F.2d at 1381 n. 6. We think it at least equally apparent that the fallback deficit reduction process can be severed from the automatic deficit reduction process and the rest of the Act. A declaration that the fallback deficit reduction process was unconstitutional therefore would in no way remedy the injury that the sequestration order issued pursuant to the automatic deficit reduction process has inflicted upon plaintiffs.
The same reasoning demonstrates the inadequacy of the third injury alleged by plaintiffs, to wit, that the automatic deficit reduction process might result in sequestration orders reducing or cancelling COLA increases in future fiscal years. Amended Complaint para. 16. A declaration that the fallback deficit reduction process was unconstitutional would have no effect on the future functioning of the automatic deficit reduction process.
The last injury identified by plaintiffs is that, if the automatic deficit reduction process is invalidated by the Supreme Court, the fallback deficit reduction process will be implemented in fiscal year 1986 and thereafter, and presidential sequestration orders issued pursuant to that process might permanently reduce or cancel COLA increases that would otherwise be payable in those fiscal years. Amended Complaint para. 16. But the issuance of a presidential sequestration order under the fallback deficit reduction process would require the passage of legislation, and we know of no case in which a plaintiff has successfully argued that he had standing because he was likely to be injured by legislation that had not yet been passed. Cf. Physicians' Education Network, Inc. v. HEW, 209 U.S. App. D.C. 366, 653 F.2d 621, 624 (D.C.Cir.1981) (per curiam) (court declined to "speculate on what Congress will do in the future"). Such allegations of injury are simply "conjectural" and "hypothetical," City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 1665, 75 L. Ed. 2d 675 (1983), and therefore insufficient to meet Article III's requirement that future injury be "real and immediate," id., and "'certainly impending,'" Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S. Ct. 2301, 2308, 60 L. Ed. 2d 895 (1979) (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S. Ct. 658, 663, 67 L. Ed. 1117 (1923)).
Because plaintiffs have failed to establish that the fallback deficit reduction process has caused, is causing or will cause them any injury that could be remedied by a declaration that that process was unconstitutional, we dismiss plaintiffs' challenge to that process for lack of standing. We do, however, grant plaintiffs' motion for summary judgment on their request for a declaration that the automatic deficit reduction process is unconstitutional, for the reasons given in this court's opinion in Synar, 626 F. Supp. at 1391-1404. These dispositions are reflected in the attached Order.
Upon consideration of the pending dispositive motions filed by the parties, the memoranda of points and authorities in support thereof and in opposition thereto, and the entire record herein, and for the reasons stated in the accompanying opinion, it is by the court this 6th of May, 1986,
ORDERED that, because no good cause has been shown why summary judgment ought not be granted to plaintiffs insofar as they challenge the "automatic deficit reduction process" established by the Balanced Budget and Emergency Deficit Reduction Control Act of 1985 and request declaratory relief identical to that granted by this court to the plaintiffs in Synar v. United States, 626 F. Supp. 1374, 1380-81 (D.D.C.) (three-judge court) (per curiam), prob. juris. noted sub nom. Bowsher v. Synar, 475 U.S. 1009, 106 S. Ct. 1181, 89 L. Ed. 2d 298 (1986), plaintiffs' request for such declaratory relief be and hereby is granted; and it is further
ORDERED that, because plaintiffs lack standing to challenge the "fallback deficit reduction process" established by the Balanced Budget and Emergency Deficit Reduction Control Act of 1985, defendant's motion to dismiss that challenge for lack of subject matter jurisdiction be and hereby is granted.
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