legislation overturning the HUD deferrals at issue in that case. Id. at 904-05. The Court found that the challenge to the President's reliance on the Impoundment Control Act survived since the executive branch foresaw continued reliance upon the challenged Act and plaintiffs were likely to be affected by such deferrals in the future. Id. In so holding, the Court followed its earlier decision in Better Government Association v. Department of State, 250 U.S. App. D.C. 424, 780 F.2d 86, 90-92 (D.C. Cir. 1986).
In Better Government, plaintiffs challenged both the specific denial of their entitlement to a waiver of search and copying fees in a Freedom of Information Act ("FOIA") request and the facial validity of the agencies' guidelines and regulations governing a denial of a fee waiver demand. Although, subsequent to suit, the agencies granted the fee waivers, the D.C. Circuit held that the challenge to the agencies' guidelines remained viable as the government had not disavowed reliance on the challenged policies and "clearly intend[ed] to apply [the] purportedly objectionable standards to FOIA fee waiver requests in the future." Id. at 91. The Court also noted that plaintiffs were frequent FOIA requesters.
In these cases cited above, claimants challenged the government's authority to proceed under a given statute or regulation. See City of New Haven, 809 F.2d at 904 (challenge to President's authority under section 1013 of ICA); Better Government, 780 F.2d at 91 (challenge to particular agency guidelines and regulations respecting FOIA fee waiver requests). In Super Tire Engineering Co. v. McCorkle, supra, another key case regarding extant claims for declaratory relief where a related claim for injunctive relief has been rendered moot, the Supreme Court found that the challenged government labor policy was continuing, was "fixed and definite" and was "not contingent upon executive discretion." 416 U.S. at 123-24. For those reasons, the Court held that injury to plaintiffs continued, a live case or controversy existed and thus, the claim for declaratory relief was not moot.
After these decisions, Super Tire, Better Government and City of New Haven, it is evident that a claim for declaratory relief may live beyond a mooted claim for injunctive relief where (1) the government indicates continued reliance on its challenged practice, (2) where plaintiffs will suffer continued injury from the government practice, and (3) where the government practice at issue is well-defined, "fixed and definite."
The Court finds that none of the above criteria exists in the case at hand. Simply put, there are too many contingencies inherent in plaintiffs' claim of continuing injury from future TEFAP deferrals. Before the possibility of another TEFAP deferral may be realized, Congress must first reauthorize the TEFAP program and the President must, in his discretion, decide to defer some or all of the reappropriated funds. The parties submit that the current TEFAP program expires on September 30, 1987. Plaintiffs note, however, that there is pending congressional action to reauthorize this program. It is difficult for this Court to estimate the likelihood of passage of the pending TEFAP legislation. Similarly, it is impossible to estimate whether the President will again defer TEFAP monies. Such a deferral is contingent entirely upon executive discretion.
Thus, the case at bar is unlike the situation in Better Government where the challenged government policies were "clearly" going to apply to future FOIA fee waiver requests or the situation in City of New Haven where the government conceded continued reliance on the challenged Impoundment Control Act. The challenged government policy in the instant case is also in direct contrast to the government labor policies at issue in Super Tire which were "fixed and definite" and "not contingent upon executive discretion." Super Tire, 416 U.S. at 124. In short, any future deferral of TEFAP funds rests upon several major events which may not ever occur.
Plaintiffs further argue that they will suffer continued injury which is "capable of repetition yet evading review" because there is a "reasonable expectation" that TEFAP funds will again be impounded. See Weinstein v. Bradford, 423 U.S. 147, 148, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975) (per curiam). In Super Tire, the Supreme Court stated that under a "capable of repetition" justiciability analysis, a litigant must "show the existence of an immediate and definite governmental action or policy that has adversely affected and continues to affect a present interest." 416 U.S. at 125-26. The Court fully understands that a deferral is considered to be a temporary withholding, not to last more than one year. See West Central Missouri Rural Development Corp. v. Donovan, 212 U.S. App. D.C. 153, 659 F.2d 199, 202 (D.C. Cir. 1981). The Court, however, is more concerned with the definiteness of a future TEFAP deferral, an event which, at this point in time, seems riddled with contingencies.
In sum, the Court finds that this action for declaratory relief is moot under the language of the Super Tire, Better Government and City of New Haven cases. In contrast to those cases, the circumstances of the case at bar suggest that the "government practice" at issue, i.e., deferral of future TEFAP funds, is not a reasonable certainty at this time. For this reason, this claim for declaratory relief lacks the constitutional requirement of a "case or controversy" for any judgment issued by a court must resolve "'a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'" Preiser v. Newkirk, 422 U.S. 395, 401, 45 L. Ed. 2d 272, 95 S. Ct. 2330 (1975) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 81 L. Ed. 617, 57 S. Ct. 461 (1957)).
Alternatively, the Court finds that this matter lacks justiciability for it is not ripe. Like mootness, the ripeness doctrine "overlaps" with Article III requirements of a case or controversy. See Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985). The basic rationale behind the doctrine
is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.