National Treasury Employees Union v. United States

That clearly do violate quite bearing here. no has question District Court argue

Appellants the Government ignored evidence also evenhandedly. Al Act applying has that the Government they claim though clinic escorts abortion prosecute

refused threaten who assault employees no make protesters, anti-abortion com in their allegation enforcement selective their com amended

plaint, ruling a claim. state such

plaint to motion, 12(c) the district Rule

Government’s evidence to consider refused properly complaint. See scope of the outside Miller, F.2d

Haynesworth 12(c) (Rule 1(D.C.Cir.1987) 1 n. no show, pleadings, at close of

movant be remains material fact issue of

genuine

resolved). of the district judgment affirm

court. ordered.

So EMPLOYEES TREASURY

NATIONAL

UNION, al., Appellants et America, Appellee. STATES

UNITED 96-5217.

No. Appeals, Court

United States Circuit. of Columbia

District 25, 1996.

Argued Oct. Dec.

Decided activity union as collective

traditional labor grievance arbitration. How- bargaining and ever, public nature of sector because sets law employment, in which employment in key conditions of most of the workforce, protect also seeks to the NTEU employment-related its members’ interests process. legislative appropriations Counsel, O’Duden, ar- Gregory General whom appellants, "with gued cause for provides Act that “the The Line Item Veto Counsel, Kaplan, Deputy General D. Elaine any or may, respect bill President with Atkin, General A. Associate and Barbara signed joint that has been into law resolution DC, Counsel, on Washington, were I, pursuant to of the Consti- Article section briefs. States, tution of the United cancel whole Preston, Attorney, (1) discretionary budget United Stephen any W. dollar amount of Justice, (2) argued the any spend- Department authority; item of new direct States (3) Frank W. whom appellee, ing; any limited tax benefit.” U.S.C. cause General, Attorney 691(a). Eric H. notify Hunger, § President must Assistant The Con- Jr., Attorney, and Holder, any pow- United States of his cancellation gress of exercise Counsel, Letter, Litigation days Unit- N. Act five calendar Douglas er under the within Justice, Washing- Department Sundays) of the (excluding ed of the enactment States ton, DC, Id. containing were on the brief. the canceled item. law 691(a)(3)(B). nullify § then SENTELLE, and HENDERSON Before: by passing cancellation the President’s ROGERS, Judges. Circuit 691b(a). § “disapproval Id. Because bill.” by may be vetoed bill disapproval filed Opinion for the court Circuit President, can- exercise of his President’s Judge SENTELLE. stand, practical as a mat- cellation will ter, supported by plus if one-third one of concurring in Part II B filed Opinion Congress. House of members of either Judge ROGERS. Circuit terms, Item Act will SENTELLE, By its the Line Veto Judge: Circuit of the enact until the earlier not take effect Treasury Employees Union The National seven-year budget bill or balanced ment of a (“NTEU” “Union”), two president, its and § note. Neverthe January 1997. Id. appeal from the of its dismissal members 9, 1996, less, day the Line Item April constitutionality of challenging the their suit law, appellants signed into Act was Veto Act, Pub.L. No. Item Veto the Line brought the United States suit (codified §§ 691- U.S.C. 100 Stat. asking the court to de federal district (1996)), Article for lack of III enjoin and its unconstitutional clare the Act affirm, holding appellants’ According appellants, enforcement. im- neither concrete separation of Act violates Item Veto controversy. justiciable create a minent to I, 7, 8, Ap §§ art. powers, Const. Clause, 9,§ cl. and the propriations Background I. Congress of the grant to each House attempt by the out of an This case arises Rules of its Pro power to “determine Tobias, NTEU, and two president Robert its § ceedings,” id. challenge members to of its individual allege complaint, appellants sever- In their constitutionality of the Line Item Veto are sufficient injuries contend representing al NTEU is a labor requirement standing satisfy III 140,000 agencies the Article employees in federal various First, alleges that NTEU “injury in fact.” within the executive departments modify Act, must NTEU unions, a result of the “[a]s NTEU private sector branch. Like to devote addi- activities its employees through representational such represent works time, including money, pellants’ Complaint tional Finally, Amended at 9. resources — support gain the effort —to Executive President Tobias and the two individual Branch measures that allege will benefit its members of the Union that the Line Appellants’ Complaint injures members.” Amended Item Act capacity Veto them “in their Second, alleges “the Act in that representa- voters” “their elected ability interferes with NTEU’s to influence tives’ vote has value in lawmaking lost passage legislation” by rulemaking process.” of favorable “mak[ing], it more difficult for NTEU to The United States moved to dismiss this legislative achieve favorable treatment grounds action on the alternative appel- securing constituents without the advance lants lack under Article III of the support of the Executive Branch” for such Constitution and that the matter was “cur- legislation. allegations 9. These nonjusticiable.” rently 3, 1996, July On supported by by an affidavit filed Robert M. granted government’s district court mo- Tobias, NTEU, stating National President of tion to dismiss for lack of Article III stand- that ing, reasoning plaintiffs’ alleged injuries that enactment of the Line Item Veto Act has speculative are “too and remote” to consti- dramatically changed landscape “injury tute an sufficient to confer thus, legislative process necessarily, and plaintiffs.” on the Treasury National Em- way affects the NTEU does business re- States, ployees v. Union United F.Supp. garding appropriations measures of inter- (D.D.C.1996) (mem.) (hereinafter By est to our members.... transferring NTEU). recognizing While that Act “the. spending to make decisions from may change way [NTEU] chooses to Congress President, to the regime es- members,” represent its the court concluded by tablished the Line Item Veto Act most that the Act perceptibly “does not impair certainly impairs ability the Union’s to ac- representation [NTEU’s] efforts.” Id. The complish key purpose of representing distinguished court recogniz- the line of cases effectively its members’ interests in the ing “a concrete and demonstrable aris- appropriations process. NTEU’s work is ing purportedly illegal from action [that] impeded so because the unlawful Act cre- group increases the resources the must de- ates a new scheme under which benefits programs independent vote to of its suit chal- though legislative process achieved can lenging the action” ground on the that entirely negated through the be. Presi- each of purportedly those cases the illegal power.... dent’s item [T]o veto counter by action taken log- defendants “was at regime the new established the Act and gerheads “squarely with” and countered the protect against the threat of an item plaintiffs’ organizational objective.” Id. at veto, NTEU expend must now additional 488-89. money time and ... help ensure that The district court further reasoned that the President does not legisla- thwart our alleged injury to NTEU was not “real advocacy tive through the item veto. immediate,” and but “wholly instead was ¶¶ 12, 13. Tobias Aff. speculative.” According Id. at 489. to the court, addition to the upon inflicted “plaintiffs’ ultimate concerns will be Union, alleges President Tobias that the only realized in the event that the President injures Item Act Veto him an “as individual” exercises the authority cancellation with re- by impairing ability his “as the spect particular elected Na- appropriation to a affecting tional President of NTEU to advance the them” and pass is unable to ¶ interests of Similarly, the Union.” Id. 16. disapproval bill to override the item veto. two individual allege members of the rejected Union argument The court injured” that “will be injured because the Line that it was the fact that the item Item Veto Act ability reduces NTEU’s authority “places appropriations advocate its members’ process views and under the Sword of Damocles” to NTEU to away divert resources from respond other which NTEU must now in order to union services of interest to Ap- represent members. adequately. its members Id. Be- (a) particularized and is concrete and has a veto which presently the President cause imminent, (b) conjectural the detri- “to actual authority may be exercised that id., members,” “fairly hypothetical” (2) the district traceable” which NTEU ment of — act, (3) “likely” challenged the addition of to be to the was not convinced “perceptibly im- by a decision.” Id. at would “redressed favorable an item veto efforts,” 560-61, 112 quotations representation pair plaintiffs’ omitted). requirements citations at 490. These asserts stand apply whether challenges the district court’s appeal This behalf, sue; ing on its or on either own complaint for lack of appellants’ dismissal Realty Corp. members. of its Havens behalf argue purport to While Coleman, 363, 378, 102 S.Ct. plaintiffs as the individual as well . (1982) 71 L.Ed.2d sue, argument standing to have NTEU has stand seriously advanced is that “injury in fact” respect With Therefore, we behalf. ing to sue its own organization suing on its requirement, an Alabama question. See consider it has behalf must demonstrate own (D.C.Cir. Gorsuch, 1, 7 Power Co. “concrete demonstrable suffered curiam) (“Courts 1982) long de (per [its] activities.” important ques decisions on clined to render A mere “setback far-reaching which significance tions of inadequate to abstract social interests” might argued by party who been the Further, standing. injury the establish therefrom.”). benefit “ ‘conjectural’ ‘hypothet alleged cannot be ” ical,’ City Angeles Lyons, U.S. Los v. 461 Analysis of II. 1660, 1665, 95, 102, 75 L.Ed.2d 675 103 S.Ct. III of federal Constitution Article the Seldin, (1983), “remote,” v. 422 U.S. Warth judicial the United Power of “[t]he vests 2197, 2209-10, 490, 507, 45 L.Ed.2d 95 S.Ct. Court, in such supreme one States (1975), “speculative,” Eastern Simon v. 343 Congress may ... as the inferior Courts 26, 42-46, Ky. Rights Org., 426 U.S. Welfare III, § 1. art. This U.S. Const. establish.” 1926-28, 1917, 450 48 L.Ed.2d 96 S.Ct. to “Cases” extends Littleton, “abstract,” (1976), 414 v. O’Shea attempt § In an “Controversies.” 675, 488, 494, 669, L.Ed.2d 94 38 S.Ct. U.S. meaning III’s case-or-eontro- give to Article (1974). “certainly Rather, it must be 674 versy requirement,' courts devel Arkansas, v. 495 impending.” Whitmore “justicia- termed oped principles of a series 1717, 1725, 149, 158, 109 110 S.Ct. U.S. doctrines,” standing bility among which are (1990) quotations omit 135 L.Ed.2d mootness, question political ripeness, and the ted). 737, 750, Wright, v. 468 U.S. Allen doctrine. (1984). 3324, 3315, 82 L.Ed.2d 556 104 S.Ct. spoken of as while Ripeness, often pru composed both of These doctrines from stand justiciability doctrine distinct a “Congress is free which elements dential require ing, in fact shares constitutional override,” Employment Council see Fair of injury in fact be standing that of ment Wash., Mktg. Corp., 28 Inc. v. BMC Greater Power Co. v. certainly impending. See Duke (D.C.Cir.1994), 1268, and “core F.3d 1278 59, Study Group, 438 U.S. Envtl. Carolina and un component^]” are “essential which 2620, 2634-35, 81, L.Ed.2d 595 57 98 S.Ct. case-or-controversy changing part[s] of the Fund, Agency (1978); Ltd. v. Mem’l DKT III,” Lujan Article v. requirement of Defend (D.C.Cir. 275, Dev., 297 F.2d Int’l 887 for 555, 560, 112 Wildlife, 504 S.Ct. ers 1989) re (holding constitutional that “the (1992). 2136, 2130, Two of L.Ed.2d fact”). It injury in ripeness for is quirement standing and justiciability doctrines — ripeness— prudential aspect present in the case. ripeness implicated —are of the “the fitness a court balances where hardship judicial decision and standing that a issues Article III (1) withholding consider parties of “injury in fact— the plaintiff have suffered an Gardner, 387 U.S. ation,” Abbott Labs. legally protected interest an invasion of a 136, 1507, 149, 1515-16, 18 L.Ed.2d 87 S.Ct. setback to the abstract social (1967) beyond standing’s extends interests.” Id. —that Power, Duke constitutional core. See Recently, Supreme Court revisited the 81-82, U.S. at 98 S.Ct. at 2634-35. In other organizational standing issue of in Metropoli- words, if a threatened Airports tan Wash. Auth. v. Citizens standing, “imminent” to establish consti Noise, Inc., Abatement of Aircraft ripeness requirements tutional doc (1991). 2298, 111 S.Ct. 115 L.Ed.2d 236 necessarily trine will be satisfied.1 At that There, the Court considered whether an or- point, only prudential justiciability con ganization primary purpose whose towas ripeness can act to bar cerns consideration “implement transportation policy for the of the claim. We share with the district Washington area that would ... reduc[e] court the conclusion that lack operations [Airport] at National and allevi- standing, Article III at least on present noise, safety, pollution problems ate] and air record; utterly we are convinced that their operations,” associated with such id. at prudentially ripe. claim is not standing had to chal- lenge constitutionality Congress’ dele- A. Standing Article III gation to a Board Review the starting point analysis The for our airport planning decisions made alleged injury standing under the Airports Authority Directors, Board of id. at Supreme rubric opinion is the Court’s in 255, 111 recognized 2301. The Court Coleman, Realty Corp. Havens supra. arising existence of two harms from this Havens, the Court considered whether a scheme sufficient to establish Article III nonprofit organization purpose whose was “to The first was the increase equal opportunity housing reality make noise, “in pollution, danger of accidents.” Metropolitan in the Richmond Area” had 111 S.Ct. at 2305-06. The Court bring suit on own behalf “fairly concluded that this tracea- realty company viola ble” to power the unexereised veto “because Housing tions of the Fair Act. 455 U.S. at knowledge plan subject that the ... was (internal at quotations S.Ct. 1118-19 power undoubtedly influenced [the] omitted). organization alleged The that the Board of up Directors when it drew defendant’s housing practices unlawful “frus plan.” 265, Second, Id. at 111 S.Ct. at 2306. organization’s trated” the efforts “to assist recognized the Court power the veto equal 379, housing.” access to Id. at organization by harmed “making it more (internal omitted). quotations S.Ct. at 1124 difficult” for the to reduce noise Further, organization alleged that it “had activity airport. and at the Id. The Court significant to devote identify resources to further organization’s concluded that counteract housing the defendant’s” unlawful claim “ripe” despite review (internal omitted). practices. quotations Id. the fact that the veto had not been Accepting allegations true, these organization’s exercised to the detriment. organization’s Court concluded that the “abil 13, Id. at 265 n. 111 S.Ct. at 2306 n. 13. As ity provide counseling and referral ser explained, the Court “[t]he threat of the veto vices for low- and moderate-income home- hangs over the Board Directors like the “perceptibly seekers” had impaired,” been Damocles, sword creating over a here-and- creating thus an pur sufficient for now subservience to the Board of Review poses standing. According Id. to the sufficient to questions.” raise constitutional Court, “[s]ueh concrete and demonstrable in omitted). quotations Id. jury organization’s activities —with the consequent drain on important re It is to note that it was not the far simply sources —constitutes more than a mere existence of the unconstitutional veto course, 1. may Of the converse particularized,” is not true. One "fairly “concrete and traceable” be able to action, demonstrate that an is “immi- challenged "likely to be re- (i.e., constitutionally nent'' ripe), that the claim is dressed a favorable decision.” but be unable demonstrate that the agen- practices employment of an placement that constituted Metropolitan in (“BMC”). (or cy, Marketing F.3d at BMC fact,” the increased rather “injury in but alleged “BMC’s decreased) 1270. FEC discrimina- noise, activity, and least not tory [FEC’s ... com- actions interfered from the unconstitution danger that resulted outreach, munity counseling, and research explained As the Court power. al veto programs required projects] and Wildlife, Lujan in next term Defenders expend Council to resources to counteract inadequate to estab injury” is “procedural alleged discrimination.” Id. at 1276. BMC’s inju alleged “discrete an lish absent allegations these indicated We concluded that violation. procedural ry” flowing from made that BMC’s discrimination at 2142-43. 112 S.Ct. 504 U.S. - task more difficult.” Id. As FEC’s “overall involving procedural However, in those cases explained, alleged discrimination we of re- standing requirements injuries, people “might increase the number of BMC immediacy applied to the dressability and counseling; similarly, in need of to the extent right procedural present violation actions made it that BMC’s harder ],” someday injure “concrete interest jobs Washing- greater in minorities to find injury which the discrete rather than the ton, they may have reduced the effectiveness any cer cannot “with plaintiff often establish any given level of outreach efforts.” n. tainty.” at 572 n. said, This, “perceptible] constituted we programs impair[ment]” of the FEC suffi- organizational previously found (inter- “injury cient to establish in fact.” Id. to those under facts similar standing to exist omitted). However, quotations we went nal example, in in Havens. For that existed in- explain expenses the FEC on to Inc., Village, Spann v. Colonial discriminatory detecting prac- curred denied, (D.C.Cir.), cert. “self-inflicted” harms tices of BMC were (1990), two non 112 L.Ed.2d 521 budgetary “own stemming from the FEC’s .ensuring organizations “dedicated profit any of BMC. choices” rather than conduct through edu housing opportunity equality of harm, held, did not consti- Id. This latter brought efforts” suit cation and other “injury” purposes an tute advertising agency and the owner devel manager a residential condominium noted, rightly As the district court dis alleging that the defendants ran opment, Havens, Spann, and FEC — as well as what in the criminatory housing advertisements is that Metropolitan common —have Fair Washington violation of the Post log “was at challenged in those cases action Housing Id. at'26. Plaintiffs further plain stated mission of the gerheads with the discriminatory ads re alleged that these NTEU, We, F.Supp. at 489. of tiff.” quired plaintiffs to “devote scarce resources course, a de recognize that conflict between adver identify and counteract defendants’ to mis organization’s conduct and an fendant’s in also tising practices” and “necessitated Article insufficient to establish sion is alone pub to inform the creased education efforts” organiza of an standing. III Frustration in discrimination prohibiting lic about laws objectives type con “is the of abstract tion’s that, housing. Id. at 28. We held because standing.” Na impart not cern that does plausibly be re programs “could educational Union, v. United Taxpayers tional Inc. quired” counteract defendants’ conduct (D.C.Cir.1995); States, 1428, 1433 see act as a programs would and because these Havens, at also resources,” organizations’ on the “drain injury “organiza (distinguishing to an plaintiffs’ allegations were sufficient estab orga to the from “a setback tion’s activities” standing lish to sue. interests”). Indi abstract social nization’s Employment review Similarly, persons in Fair Council vidual cannot obtain of simply Mktg. non-justiciable claims Washington, Inc. v. BMC of otherwise Greater statement, drafting incorporating, Fair a mission supra, concluded that Corp., (“FEC”) newly formed suing behalf of the had and then Employment Council organization. extremely interested discriminatory challenge allegedly However, government in an those eases where ditions of workers or rather is unnecessary constituting alleges a defendant’s con alarmism a self-in- injury. flicted organization’s activities duct has made difficult, presence of a direct con more that, purposes It is true “[f]or conduct and the flict between the defendant’s ruling on a motion to dismiss for want of necessary—though is organization’s mission standing, reviewing both the trial and courts establish not alone sufficient—to accept allegations must as true all material If does not conflict a defendant’s conduct complaint.” Metropolitan, goals, directly organization’s an stated it with quotations entirely speculative whether the defen omitted). and citations But there is a differ impeding organization’s dant’s conduct is accepting plaintiffs allega ence between a Moreover, in those cases where activities. accepting fact tions of as true and as correct challenged, gov if governmental action is plaintiff the conclusions would draw from directly ernment’s conduct does not conflict accept such facts. would us NTEU mission, alleged expended true not the fact that it has organization likely will be one attempt lobby additional funds in an by large that is shared class of citizens and effectively, spec President more but also the thus insufficient establish fact. expenditures ulative conclusion that such Warth, 422 U.S. at 95 S.Ct. at 2205. necessary achieving organiza link in purpose. ultimate tion’s This we decline to alleged link NTEU a direct causal between do. the enactment of the Item Veto Act and expenditure increased funds now need- Ripeness B. organizational ed to achieve NTEU’s mission 1. Article III improving employment the terms of government allege workers. NTEU did not accept Even were we to appropriations that an bill which would have alleged conclusion that the Line Item Veto improved employment conditions for Act lobbying necessitates increased efforts government subjected workers was President, directed at the we do not believe power. President’s item veto Nor did this imminent to allege appropriations that such an bill justiciable create a current controversy. As in Congress was modified as a result of clear, Lujan makes Article III power. threatened exercise of the item veto alleged injury that an be “concrete and Indeed, allege NTEU did not even that such particularized,” but also that it be “immi appropriations through bill moved Con- Havens, nent.” In Metropolitan, Spann, gress under this “Sword of Damocles.” Council, Employment and Fair allegedly allege only expend-

Plaintiffs injurious unlawful already act had oc money lobbying ed more the President brought. curred the time suit injuries. potential order to avoid these Havens, plaintiff organization brought challenging steering” practices suit “racial plaintiffs But the mission is not to influ- already engaged. which defendants had See rights ence the President’s views on the 366, 455 U.S. at 102 S.Ct. at 1117-18. The government workers. NTEU’s mission is to Spann, same was true in both 899 F.2d at 26 improved obtain worker conditions—a mis- (challenging discriminatory ads run in the necessarily sion not inconsistent with the Washington January through Post from myriad Item Veto Act. For a of rea- 1986), spring the Employment of and Fair sons, given may President be disinclined to Council, (challenging 28 F.3d at 1270 defen exercise item govern- the veto as to provide dants’ failure to referrals for black employee ment benefits. We do not and 1990). employees in December point. cannot know at this Absent a direct conflict between recognize NTEU’s mission and the We that in eases like this one Act, Line Item asserted, Veto we are unsure whether a procedural where violation is the expenditure NTEU’s additional applied require- funds is courts have the imminence truly necessary improve working violation, to the con- procedural ment not the lives discrete such. was traceable voted airport Board suit was until Court tional imminent nized President power is not unavailable. gress. subservience’ cised veto President the State subject 11-12. While It tion ure ing to adjacent to the site statement, pleted for In this and even cause U.S. enough Similarly, Metropolitan, January not that the existence of at 2306 n. concluded questions,” 501 of a to Lujan, 504 U.S. any certainty that the to the item veto plan and the Board injury that the license n. 7. challenge the at to brought, prepare an environmental ease, Directors had ... cannot exercise submits his of the Union federally though the may “creat[e] many disapprove even January 1 do not Nor is an ... sufficient to an For say NTEU concedes that increased 1997.” Metropolitan though he cannot establish years. 13, in unexercised, might to be that NTEU’s example, a 111 S.Ct. unexercised licensed licensing agency’s fail- mean to at dam at 572 budget pending before Con- Appellants’ Brief at withheld will this proposed construc- someday flow from formalized appropriations bill adopted a master address when on the at to raise constitu- a ‘here-and-now even an will plan dam of Review at his veto be statement n. case the veto plaintiff who but airport noise 111 S.Ct. Court 2305-06, not be com- 7, 112 claim is imply that “[t]he where has stand- evening n. Congress. is as the time altered, unexer- impact power, recog- S.Ct. will had the yet at judicial decision and we EPA, ticular Id. ward crete immediate lants, evaluating' bott parties ing in the ways had a alleged hardship to the outweigh side one—on broad upon differently between current unspoken element this their “fully crystallized,” retical role this now, last cial decisions 3325. Article at the ripeness doctrine: resources, resort. rationale one Labs., case is of the scale be as which we effects way by the 149, allegedly, will legal theory advanced case budget' making process as ever —on of' questions fitness Further may never hand, and unless often testing this 87 S.Ct. withholding court consideration.” judicial “[1] complete and their “effects prudentially meet in a other. Whatever as the Allen, veto, protect resolution but it 156, 166 light the fitness of the issues applied U.S. concrete supporting our decision that whether the need not be III that standard challenging parties.” Ab —still review is at but now their governmental branch of need reverse comports with our ^[2] courts hardship. As for the at 1515; divide If we do not parties withholding do the it ever (D.C.Cir.1988). unripe is the the 148-49, 87 rationale virtually may depend are not President —who al expenditure of lobbying way. to. to. two-part analysis, review, accord NRDC v. should hardship their has a that the order, is on the other facts of a very heavy to felt in a con Not by appellants will, as involved underlying efforts resources while not make ripeness, the facts stronger the decide it S.Ct. usually to appel theo Tak judi does only par feel the to at subject we ripe, particularly when now Employ- in Fair opinion Relying on our aspect analysis prudential under the claim Council, agree parties seem ment ripeness doctrine. justiciability limitations do not bar prudential Line Item challenge to the of a consideration 2. Prudential Council, Employment In Fair Veto permitted statute which federal Prudentially, ripeness doctrine held by an claiming aggrieved’ “any ‘person to be wasting from our prevent exists .courts suit,” employment to file 28 practice entangling our unlawful by prematurely resources § 2000e- and, where, U.S.C. (quoting F.3d disagreements, selves abstract anyone 5(f)(1)), to who “open[ed] the courts here, government are other branches of requirements” of involved, satisfie[d] from constitutional protect the branches other Act; III, Line Item Veto In their decisions are Article judicial interference until any likely Congress specified appealed that individual ad- would have been to this court. may versely by bring an [the Act] affected We would then have been forced to render a action, in District the United States Court might decision that well amount to a consti- Columbia, for a declarato- the District tutionally suspect advisory opinion ques- ry injunctive judgment and relief on the authority speak tionable since it would in an ground any provision part that of this vio- by Congress area never intended to be with- 692(a)(1). § lates the U.S.C. Constitution.” jurisdiction. in our context, Although taken out of when words, controversy this other provision parallel the one we con- seems by time, unfit for decision this court at this it Council, Employment fur- sidered in Fair ripe for never be us to decide. There- reveals otherwise. ther examination fore, deciding controversy would be at 692(b) provides any § U.S.C. order resources, judicial best a waste of and at judicial pursuant to the provi- entered review usurpation. way, ripeness worst a Either appeal sion of the Act is reviewable direct considerations dictate that affirm the dis- Court, Supreme not this court. We trict court’s dismissal of the action. provision congres- constitutes a this believe sionally ap- to our created barrier review of III. Conclusion pellants’ Congress may claim. Just as over- may, future, at some time in the prudential judicial review, ride barriers to suffer an imminent concrete Council, Employment Fair 28 F.3d at fairly traceable to the Line Item Veto Act. too, may deny authority so it a court the yet reached, point Because that has not been review a ease or class of cases otherwise we hold that claim is neither consti- judicial power. within Article III As the tutionally justiciable. prudentially Supreme has stated: Court judicial power [T]he of the United States ROGERS, Judge, concurring: Circuit dependent is ... for its distribution conclude, I Because for the reasons set organization, and for the modes of its

exercise, entirely upon opinion, forth Part II B of the the action Court’s of con- gress, possess who the sole the issue ripe, creat- raised is not I (inferior ing supreme the tribunals affirming concur dismissal the com- court) pow- exercise of the plaint. er, investing jurisdiction and of them with limited, concurrent, exclusive, either withholding jurisdiction

and of from them degrees

in the exact and character which congress may proper pub- seem for the good. lic COMPANY, APPALACHIAN POWER Curtis, (3 How.) Cary 236, 245, Petitioner (1845); III, L.Ed. 576 U.S. Const. art. cf. (“the 2,§ supreme cl. Court shall have FEDERAL ENERGY REGULATORY Jurisdiction, appellate both as to Law and COMMISSION, Respondent. Fact, Exceptions, with such and under such make.”). Regulations as the shall Virginia, Richlands, Town of Thus, supporting our decision that this case al., et Intervenors. prudentially ripe is not congressionally is the Nos. 95-1612. mandated applicable any route review brought action constitutionality to test Appeals, United States Court of the Act. District of Columbia Circuit. Appellants’ suit seeks a declaration that Argued November the Line Item Veto Act is unconstitutional Decided December injunction and an its enforcement.

Had the district court ruled the merits of

appellants’ granted injunctive claim and re- it, dismissing

lief instead of the decision

Case Details

Case Name: National Treasury Employees Union v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 13, 1996

Citation: 101 F.3d 1423

Docket Number: 96-5217

Court Abbreviation: D.C. Cir.