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SPENCE v. CLINTON

October 9, 1996

FLOYD SPENCE, Member of the U.S. House of Representatives, et al., Plaintiffs,
v.
WILLIAM J. CLINTON, President of the United States, and WILLIAM J. PERRY, Secretary of Defense, Defendants.



The opinion of the court was delivered by: SPORKIN

 This matter is before the Court on Defendants' motion to dismiss and Plaintiff's opposition thereto. The Court heard oral argument from the parties on October 3, 1996.

 Plaintiffs are forty-one members of the U.S. House of Representatives seeking injunctive and declaratory relief. Plaintiffs claim that the President, acting through the Secretary of Defense, has violated his Constitutional duties by failing to comply with the statutory mandates of Title II of the National Defense Authorization Act for Fiscal Year 1996, Subtitle C, §§ 231-238, 110 Stat. 228 (February 10, 1996) (the "Ballistic Missile Defense Act") and by refusing to spend or obligate funds appropriated by the Department of Defense Appropriations Act of 1996 (the "Defense Appropriations Act").

 Defendants move to dismiss on jurisdictional grounds, claiming that Plaintiffs lack standing and that the lawsuit should be dismissed under the political question doctrine. Defendants also argue that there is no right of action under the Ballistic Missile Defense Act and that Plaintiffs have not established their entitlement to the relief of mandamus.

 After considering the motion, all opposition thereto, and the arguments by the parties, the Court grants Defendants' motion to dismiss, without prejudice.

 BACKGROUND

 A ballistic missile is any missile that does not rely upon aerodynamic surfaces to produce lift and consequently follows a ballistic trajectory when thrust is terminated. Ballistic missiles are capable of carrying conventional explosives, nuclear warheads, chemical or biological warfare agents and radiological agents. A ballistic missile defense system is one designed to intercept ballistic missiles or their payloads and destroy them before they reach their targets.

 For decades the United States have been working to develop ballistic missile defenses of various kinds. These efforts have been fraught with political, technical and legal disputes. Thus far, the United States has placed in service only versions of the Patriot, an air defense system, with improvements designed to protect only the point immediately around its own site against ballistic missiles. Theater missile defense systems, systems with greater range than the Patriot and the capability to defend areas rather than just points, are still in research and development.

 In the Ballistic Missile Defense Act, Congress announced the policy of the United States "to deploy affordable and operationally effective theater missile defenses to protect forward-deployed and expeditionary elements of the Armed Forces of the United States and to complement the missile defense capabilities of forces of coalition partners and of allies of the United States." Id., § 233(1). To implement this policy, Congress directed the Secretary of Defense to "restructure the core theater missile defense program" to achieve certain capabilities for four theater defense systems." Id., § 234(a). Among the four systems and at issue here are the U.S. Army's Theater High-Altitude Area Defense ("THAAD") and the U.S. Navy's Theater-wide Defense ("NTW"). Both the THAAD and NTW systems are "upper tier" defense systems which are designed to defeat long-range ballistic missiles and to defend areas beyond the capabilities of lower-tier systems. *fn1"

 Under the Ballistic Missile Defense Act, the THAAD system is to have a user operational evaluation system ("UOES") by fiscal year 1998 and a first unit equipped ("FUE") by fiscal year 2000. The NTW system is to have a UOES by fiscal year 1999 and an initial operational capability ("IOC") during fiscal year 2001. Id., §§ 234(a)(3), (4). *fn2" To accomplish these objectives, the Ballistic Missile Defense Act directs the Secretary of Defense to detail annually "the technical milestones, the schedule, and the cost of each phase of development and acquisition for each theater missile defense program" as well as "any variance in the technical milestones, program schedule milestones, and costs for the program compared with the information relating to that program in the report submitted in the previous year and in the report submitted in the first year in which that program was covered." Id., § 234(e)(1), (2).

 Congress subsequently appropriated a total of $ 9,411,057,000 for research, development, test and evaluation in the Defense Appropriations Act. These are the funds out of which the THAAD and NTW systems are to be financed and will remain available for obligation until September 30, 1997. The Defense Appropriations Act does not specify the amounts that must be spent on each such program to meet the deadlines mandated in § 234(a) of the Ballistic Missile Defense Act, although it does specify that "not less than $ 200,442,000" must be spent on the NTW system.

 On February 16, 1996, the Secretary of Defense released the results of a comprehensive review of the ballistic missile defense program led by Dr. Paul G. Kaminski, the Under Secretary of Defense for Acquisition and Technology (the "Kaminski Review"). As a result of the Kaminski Review, the Secretary announced that the Department of Defense intended to restructure the development of the THAAD and NTW systems. The restructuring would result in a delay for certain programmatic milestones for the THAAD and NTW programs, beyond those envisioned in the Ballistic Missile Defense Act. See News briefing by Secretary William Perry and Under Secretary Paul Kaminski, Department of Defense (February 16, 1996), available in Westlaw, 1996 WL 67375.

 Congress held hearings on the Kaminski Review beginning on March 6, 1996. At the hearing on March 6, 1996, Under Secretary Kaminski acknowledged that the Department of Defense intended to "roll back" the schedule for THAAD and NTW. He noted that the Department of Defense would honor the UOES for the THAAD system, but did not intend to meet the FUE milestone for THAAD or the IOC milestone for Navy Upper Tier. See Draft copy of The 1996 Ballistic Missile Defense Update Review: Hearings before the Senate Committee on Armed Services, 104th Cong., 2nd Sess. 80 (1996) (statement of Paul Kaminski, Under Secretary of Defense for Acquisition and Technology). On March 7, 1996, Lieutenant General Malcolm R. O'Neill, Director of the Department of Defense Office of Ballistic Missile Defense, testified that the Department of Defense had moved the FUE date for the THAAD system to the year 2006. Id. at 68. The Department of Defense also informed Congress that it had not restructured the NTW program to meet any particular UOES or IOC date. Amended Cmplt. P 64.

 Plaintiffs claim that Defendants' announced refusal to restructure the THAAD and NTW systems in accordance with the statutorily mandated milestones violates § 234(a) of the Ballistic Missile Defense Act and that Defendants' refusal to spend or obligate funds for the systems violates the Defense Appropriations Act. Plaintiffs claim further that such refusals violate the President's Constitutional duty to "take Care that the Laws of the United States be faithfully executed." Art II, § 3. Said violations have precluded Congress from exercising various powers vested in it by the Constitution. *fn3" ...


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