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MID-OHIO FOOD BANK v. LYNG

July 20, 1987

Mid-Ohio Food Bank, et al., Plaintiffs,
v.
Richard E. Lyng, Secretary of Agriculture, et al., Defendants



The opinion of the court was delivered by: GASCH

 I. INTRODUCTION

 This case initially came before the Court on plaintiffs' motion for a temporary restraining order. Plaintiffs challenged defendants' deferral of $ 28 million of the $ 50 million Congress appropriated for the Temporary Emergency Food Assistance Program ("TEFAP") in fiscal year 1987. *fn1" On February 6, 1987, this Court denied plaintiffs' motion for temporary injunctive relief for failure to establish irreparable harm. The Court set a hearing date for argument on plaintiffs' demand for a preliminary injunction. Prior to the hearing, however, the President signed a bill restoring all appropriated funds to the TEFAP program for the remainder of fiscal year 1987. The matter presently before the Court is the viability of plaintiffs' request for declaratory relief in light of the fact that their request for injunctive relief is now moot.

 II. BACKGROUND

 In the first paragraph of their complaint, plaintiffs plainly state they are bringing "an action for declaratory and injunctive relief to compel the defendants Secretary of Agriculture and Director of the Office of Management and Budget ("OMB") to make available to state governments the full $ 50 million Congress appropriated to fund [TEFAP] for fiscal year 1987." The plaintiffs' actual prayer for relief is as follows:

 
WHEREFORE, plaintiffs pray that the Court enter an Order:
 
1. Temporarily restraining defendants from refusing to make available all TEFAP funds Congress appropriated;
 
2. Declaring that the deferral provision of the Impoundment Control Act, 2 U.S.C. § 684, provides the sole statutory ground for defendants to implement deferrals for policy reasons, and, because that provision is invalid, the deferral of TEFAP or any other funds for policy reasons is without legal basis;
 
3. Declaring that TEFAP's authorization and appropriations statutes provide defendants no legal authority to defer funds Congress appropriated for TEFAP;
 
4. Preliminarily and permanently enjoining the defendants from refusing to make available for obligation in a timely manner the full amount of funds Congress appropriated for TEFAP;
 
5. Granting plaintiffs their costs and disbursements in this action, including reasonable attorneys' fees, pursuant to 28 U.S.C. § 2412; and
 
6. Granting plaintiffs such other and further relief as may be just and proper.

 Complaint at 15-16 (emphasis added).

 It is undisputed that the injunctive portion of plaintiffs' claim is no longer alive. Plaintiffs concede that President Reagan, by signing H.R. Joint Resolution 162 on February 12, 1987, restored all of the TEFAP funds at issue in this case. Plaintiffs' Motion for Summary Judgment at 1. Plaintiffs, nevertheless, contend that a live question of declaratory relief remains: (1) whether the President may continue to make "policy deferrals" of any funds following the recent case of City of New Haven v. United States, 258 U.S. App. D.C. 59, 809 F.2d 900 (D.C. Cir. 1987), wherein the D.C. Circuit invalidated the deferral provisions in the Impoundment Control Act ("ICA"), 2 U.S.C. § 684. *fn2" Plaintiffs assert that they have requested declaratory relief not only with respect to TEFAP funds, but also to "any other funds." Complaint at 15, para. 2 (quoted above).

 Defendants raise arguments of justiciability as well as arguments on the merits. In brief, defendants claim that the merits need not be addressed as plaintiffs' claims are both moot and unripe for adjudication and, further, that plaintiffs lack standing to maintain this action. Alternatively, on the merits, defendants aver that the Court, in its equitable discretion, should dismiss the complaint or should find that the executive branch retains the authority to defer funds apart from the Impoundment Control Act, e.g., through the Pay Act provision of the Continuing Resolution for 1987, § 144(a)(3)(A), Pub. L. No. 99-591, 100 Stat. 3341-3353. The 1987 Pay Act increased pay and benefits for ...


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