Feldman v. Bowser Feldman opposition to dismiss 01967
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Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA CLARICE FELDMAN, Plaintiff, MURIEL BOWSER, her official capacity Mayor the District Columbia, and JEFFREY DeWITT, his official capacity Chief Financial Officer for the District Columbia, Defendants. Civil Action No. 15-cv-01967-EGS PLAINTIFF OPPOSITION DEFENDANTS MOTIONS DISMISS Plaintiff Clarice Feldman, counsel, respectfully submits this memorandum points and authorities opposition Defendant Muriel Bowser Motion Dismiss and Defendant Jeffrey DeWitt Motion Dismiss. addition, pursuant LCvR 7(f), Plaintiff requests oral hearing Defendants motions. grounds therefor, Plaintiff states follows: MEMORANDUM POINTS AND AUTHORITIES Introduction. Regardless whether sound policy for the District Columbia District D.C. have budget autonomy, Defendant Muriel Bowser Defendant Bowser Mayor the District Columbia Mayor and Defendant Jeffrey DeWitt Defendant DeWitt Chief Financial Officer the District Columbia CFO cannot ignore the law. Yet, they do. Since October 2015, Defendants have been illegally incurring obligations and expending local Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page taxpayer funds pursuant the Fiscal Year 2016 Budget Request Act 2015 FY16 Budget Request that have not been appropriated Congress and presented the President for signing. District taxpayer since 1979, Plaintiff challenges Defendants lawlessness. This case properly before the Court. Pursuant the well-established doctrine taxpayer standing, Plaintiff challenges the illegal expenditure taxpayer funds. Plaintiff also unequivocally raises federal question. The funds are being spent purportedly pursuant the process established the Local Budget Autonomy Amendment Act 2012 Budget Autonomy Act which fundamentally altered the roles the President and Congress with respect the local portion the District budget. addition, every dollar currently being spent violation the Antideficiency Act, federal statute. This Court therefore the most appropriate court resolve these issues federal law. Defendants motions dismiss are baseless. The Court should deny them. Legal and Factual Background. The District budget process. The Constitution vests Congress with the power exercise exclusive legislation over the District. See U.S. Const. art. cl. 17. Pursuant this authority, Congress enacted the District Columbia Self-Government and Governmental Reorganization Act the Home Rule Act later codified D.C. Code 1-201.01, seq. The Home Rule Act constitutes limited delegation Congress authority over the District its residents. Id. 1-201.02. Among the provisions the Home Rule Act the Charter the District Columbia the Charter which establish[es] the means governance the District and sets forth the basic organizational structure the District government. D.C. Code 1-203.01. The Charter -2- Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page codified D.C. Code 1-204.1 through 1-204.115. The Charter mandates that each year the Mayor prepare and submit proposed budget the Council the District Columbia Council Id. 1-204.42. For purposes both the Charter and the Home Rule Act, the term budget defined the entire request for appropriations and loan spending authority for all activities all agencies the District financed from all existing proposed resources and shall include both operating and capital expenditures. Id. 1-201.03(15). The Charter also mandates that the Council adopt budget for the District, majority vote or, the Mayor disapproved the budget adopted the Council, two-thirds majority vote, within certain period time after receipt the Mayor budget proposal. See, e.g., id. 1-204.46(a). The Charter further mandates that the Mayor submit the District adopted budget the President for transmission Congress. Congress, turn, considers the District budget part the annual federal appropriations process. other words, enactment the District annual budget requires not only approval majority two-thirds vote the Council, but also affirmative appropriation passed both Houses Congress and presented the President for signing. Congress has full authority amend, adopt, ignore the budget adopted the District, open-ended timeframe, with without consulting with the District. addition, the Charter expressly provides that amount may obligated expended any officer employee the District Columbia government unless such amount has been approved Act Congress, and then only according such Act. Id. 1-204.46(c). Federal law also prohibits the Mayor and CFO from spending monies that have not been appropriated Congress and presented the President for signing. See U.S.C. 1341(a) officer employee the District Columbia government may not make authorize -3- Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page expenditure obligation exceeding amount available appropriation fund for the expenditure obligation. The Budget Autonomy Act. December 18, 2012, the Council passed the Budget Autonomy Act, which was signed then-Mayor Vincent Gray January 18, 2013. Because the Budget Autonomy Act purported amend the Charter, was required ratified the District voters referendum order become law. The District voters ratified the Budge Autonomy Act April 23, 2013 referendum. The Budget Autonomy Act purports make two significant changes the Charter. First, divides the District budget into two components local portion and federal portion and changes the process which the budget becomes law. Although the terms local portion and federal portion are not defined either the Budget Autonomy Act the Home Rule Act, appears that local portion refers that segment the District budget derived from local sources, including District Columbia income, sales, and property tax revenues and fees. Approximately two-thirds the District budget stems from such local revenues and fees. Instead the Mayor submitting the entire budget the President for transmission Congress and both Houses Congress passing appropriation for presentment the President, the Budget Autonomy Act purports authorize the Council Chairman submit the local portion the budget the Speaker the House Representatives. Congress does not pass joint resolution disapproving the local portion the budget within days, becomes law. Only the federal portion the budget submitted the President the Mayor for transmission Congress. The federal portion only becomes law when both Houses -4- Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page Congress pass appropriation that presented the President for signing. Second, pursuant this revised process, the Budget Autonomy Act purportedly grants the District with the authority incur obligations and expend local tax and fee revenue without appropriation passed both Houses Congress and presented the President for signing. relevance this lawsuit, the Mayor responsible for all financial transactions[,] for having custody all public funds belonging under the control the District[,] and for apportioning all appropriations and funds made available during the fiscal year for obligation. D.C. Code 204.48(a)(1), (7). The Mayor also required apportion all appropriations and funds made available during the fiscal year for obligation. Id. 204.48(a)(9). Similarly, the CFO required certify and approve payment all bills, invoices, payrolls, and other evidences claims, demands, charges against the District government, and determin[e] the regularity, legality, and correctness such bills, invoices, payrolls, claims, demands, charges. Id. 204.24d(16). Consequently, the Budget Autonomy Act purportedly authorizes the Mayor and the CFO spend taxpayer monies without appropriation passed both Houses Congress and presented the President for signing. Council the District Columbia Gray. After the Budget Autonomy Act took effect, the District Attorney General issued formal opinion advising then-Mayor Gray that should not enforce the law because violated the Home Rule Act and therefore was unlawful. the advice the Attorney General and their own accord, then-Mayor Gray and Defendant DeWitt notified the Council that they believed the Budget Autonomy Act unlawful and would not enforce it. April 17, 2014, the Council filed suit, seeking declaratory and injunctive relief against then-Mayor Gray and -5- Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page Defendant DeWitt their official capacities. Specifically, the Council sought declaration that the Budget Autonomy Act valid and injunction compelling the enforcement the law. The parties subsequently cross-moved for summary judgment, and, May 19, 2014, this Court found the Budget Autonomy Act unlawful and permanently enjoined all parties from complying with it. Council the District Columbia Gray, Supp. 134 (D.D.C. 2014). The Council immediately appealed the Court ruling the U.S. Court Appeals for the District Columbia Circuit D.C. Circuit After briefing and oral argument, but prior opinion being issued the D.C. Circuit, Defendant Bowser was elected Mayor the District, sworn into office, and substituted appellee place Mayor Gray. Upon being substituted in, February 23, 2015, Defendant Bowser advised the D.C. Circuit that, contrary this Court ruling, she believed the Budget Autonomy Act valid, and, absent judgment restraining her actions, intended comply with its requirements. March 24, 2015, Defendant Bowser filed motion dismiss the appeal for mootness and requested that the appellate court vacate the Court judgment that she could adhere the Budget Autonomy Act. May 27, 2015, the D.C. Circuit dismissed the appeal and vacated this Court judgment mootness grounds. Council the District Columbia Bowser, 2015 U.S. App. LEXIS 8881 (D.C. Cir. May 27, 2015) Upon consideration Mayor Bowsers suggestion mootness and motion dismiss the appeal, the responses thereto, and the reply, ORDERED that the motion granted. The FY16 Budget Request. Although this Court the only court rule the merits the Budget Autonomy Act found the law unlawful, the District enacted its Fiscal Year 2016 Budget through the process -6- Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page established the Budget Autonomy Act. The FY16 Budget Request, which includes both the federal and local portions the District budget, was introduced April 2015. See Bill History (available http://lims.dccouncil.us/Legislation/B21-0157?FromSearchResults=true). The first reading occurred May 27, 2015. Id. The final reading occurred June 10, 2015. Id. The FY16 Budget Request was subsequently submitted the Mayor July 2015 and approved her that day. Id. Defendant Bowser subsequently submitted the federal portion the FY16 Budget Request President Barack Obama. the transmittal letter, Defendant Bowser stated, This the first time have passed budget under the provisions our Budget Autonomy Act. Unlike previous Budget Request Acts, this year act has been reviewed and voted twice our Council. Letter from Muriel Bowser Barack Obama (Jul 2015, available http://lims. dccouncil.us/Download/33642/B21-0157-Mayor-s-transmittal-letter-to-the-President14.pdf). addition, Defendant Bowser wrote, recognize the continued need for appropriation the federal payment portions our budget but believe that the provisions relating the local portion our budget will into effect without separate appropriation following legislative-day period passive Congressional review. Id. Similarly, the Council Chairman transmitted the local portion the FY16 Budget Request the Speaker the House Representatives and the President the Senate. Letter from Phil Mendelson John Boehner and Joseph Biden, Jr. (Jul. 17, 2015, available http://lims.dccouncil. us/Download/33642/B21-0157-Chairman-s-transmittal-letter-to-Congress13.pdf). the transmittal letter, the Council Chairman stated, behalf the government and residents the District Columbia, submit you the local portion the Fiscal Year 2016 Budget Request Act -7- Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page 2015, D.C. Act 21-99, Div. tit. II-III, tit. IV, 101-104, 106, accordance with section 602(c)(l) the District Columbia Self-Government and Governmental Reorganization Act, P.L. 93-198. Id. Congress subsequently did not pass within days joint resolution disapproving the local portion the FY16 Budget Request. Therefore, the local portion the FY16 Budget Request purportedly became effective September 29, 2015. See Notice, D.C. Law 21-27 (Sept. 29, 2015, available http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx? NoticeID=5684702). The Notice, its entirety, states: required Section 412(a) the District Columbia Home Rule Act, P.L. 93-198 (the Charter), the Council the District Columbia adopted Bill 21-157 first and second readings May 27, 2015, and June l0, 2015, respectively. Following the signature the Mayor July 2015, required Section 404(e) the Charter, the bill became Act 21-99 and was published the July 17, 2015 edition the D.C. Register (Vol. 62, page 9658). Act 21-99 was transmitted Congress July 17, 2015 for 30-day review, accordance with Section 602(c)(1) the Home Rule Act. The Council the District Columbia hereby gives notice that the 30-day Congressional review period has ended, and Act 2l-99 now D.C. Law 21-27, effective September 29, 2015. Since Fiscal Year 2016 began October 2015, the District has been incurring obligations and expending taxpayer funds that have not been appropriated Congress and presented the President for signing. III. Standard Review. Defendants move dismiss purportedly pursuant both Rule 12(b)(1) (lack subject matter jurisdiction) and Rule 12(b)(6) (failure state claim upon which relief may granted) the Federal Rules Civil Procedure. However, their motions solely raise the issue whether this Court has jurisdiction hear this case and, so, whether the Court should so. There are two types motions dismiss under Rule 12(b)(1): facial attack and factual -8- Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page attack. Kursar Transportation Security Administration, 581 Supp. 13-14 (D.D.C. 2008). facial attack challenges the factual allegations the complaint that are contained the face the complaint. Al-Owhali Ashcroft, 279 Supp. 13, (D.D.C. 2003). When such attack made, the court must accept true the allegations the complaint and consider the factual allegations the complaint the light most favorable the non-moving party. Erby United States, 424 Supp. 180, 182 (D.D.C. 2006). factual attack, the other hand, challenges the underlying facts contained the complaint. Al-Owhali, 279 Supp. 20. such instance, the court must beyond the pleadings and resolve any disputed issues fact the resolution which necessary ruling upon the motion dismiss. Phoenix Consulting, Inc. Republic Angola, 216 F.3d 36, (D.C. Cir. 2000) (citations omitted). The court must allow the nonmoving party ample opportunity secure and present evidence relevant the existence jurisdiction. Prakash American University, 727 F.2d 1174, 1180 (D.C. Cir. 1984). This includes the opportunity for discovery, plaintiffs must given opportunity for discovery facts necessary establish jurisdiction. Ignatiev United States, 238 F.3d 464, 467 (D.C. Cir. 2001). Defendants challenge Plaintiff standing well this Court jurisdiction through facial attacks under Rule 12(b)(1). Defendants challenge whether live controversy remains through factual attack, however. IV. Argument. Plaintiff plainly has standing. have standing under Article III the Constitution, plaintiff must demonstrate three familiar requirements: (1) injury-in-fact; (2) causal connection between the asserted -9- Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page injury-in-fact and the challenged action the defendant; and (3) that the injury will redressed favorable decision. See Lujan Defenders Wildlife, 504 U.S. 555, 560-561 (1992). satisfy the injury requirement municipal taxpayer case, plaintiff must show good-faith pocketbook action. District Columbia Common Cause District Columbia, 858 F.2d (D.C. Cir. 1988) Common Cause (citing Doremus Board Education, 342 U.S. 429, 434 (1952)). Specifically, the Common Cause court stated that, because the sufficiently close relationship the municipality, municipal taxpayer satisfies the injury requirement standing establishing that the challenged activity involves measurable appropriation loss revenue. 858 F.3d The municipal taxpayer does not need show that her taxes will reduced result favorable judgment. Id. With respect causation and redressability, municipal taxpayer only needs show that court order enjoining the challenged activity will stop the illegal expenditure taxpayer funds. Id. The injury misuse public funds redressed order prohibiting the expenditure. her Complaint, Plaintiff asserted that since Fiscal Year 2016 began October 2015, the District has been illegally incurring obligations and expending taxpayer monies pursuant the local portion the FY16 Budget Request. Complaint 39. Because the entire local portion issue, the obligations being incurred and the taxpayer monies being expended are obviously measurable. Common Cause, 858 F.2d The local portion the budget approximately seven billion dollars. See FY2016 Budget Request addition, Plaintiff, part, requests that the Court declare the local potion the FY16 Budget Request unlawful and enjoin Defendants from incurring further illegal, unlawful, and ultra vires obligations making further illegal, unlawful, and ultra vires expenditures required the local portion the FY16 Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page Budget Request. Complaint Plaintiff plainly has standing. Defendants make three arguments why Plaintiff does not have standing. First, Defendant DeWitt argues that Plaintiff lacks personalized injury.1 Second, both Defendants argue that Plaintiff has not asserted the illegal expenditure taxpayer monies. Third, Defendant DeWitt argues that the doctrine municipal taxpayer standing longer good law. Each argument fails. the Common Cause court clearly concluded, municipal taxpayer has sufficiently close relationship the municipality suffer injury-in-fact municipal taxpayer monies are spent illegally. municipal taxpayer shows that the challenged program involves measurable appropriation public funds, the Court will recognize standing. Common Cause, 858 F.2d Plaintiff has therefore satisfied the injury element standing sufficiently pleading that Defendants are making measurable appropriation taxpayer monies. Defendant DeWitt first argument simply without merit. Plaintiff also has sufficiently challenged the expenditure taxpayer funds. See Complaint 39. Plaintiff sued Defendant Bowser because she responsible for all financial transactions[,] has custody all public funds belonging under the control the District[,] and required apportion all appropriations and funds made available during the fiscal year for obligation. D.C. Code 204.48(a)(1), (7), (9). Plaintiff also sued Defendant DeWitt because required certify and approve payment all bills, invoices, payrolls, and other evidences claims, demands, charges against the District government, and determin[e] the regularity, legality, and correctness such bills, invoices, payrolls, claims, demands, charges. Defendants not assert that Plaintiff has not satisfied the causation and redressability requirements standing. Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page Id. 204.24d(16). Plaintiff challenging each obligation being incurred and every taxpayer dollar being expended Defendants. Because the local portion the FY16 Budget Request has not been appropriated Congress and presented the President for signing, Defendants are spending approximately seven billion dollars local taxpayer funds violation the Antideficiency Act. U.S.C. 1341(a) officer employee the District Columbia government may not make authorize expenditure obligation exceeding amount available appropriation fund for the expenditure obligation. arguing that Plaintiff not challenging specific expenditures, Defendants misconstrue Plaintiff lawsuit, which clearly challenges all expenditures being made and all obligations being incurred pursuant the process established the Budget Autonomy Act. Because those two arguments fail, Defendant DeWitt suggests that not even clear that the doctrine municipal taxpayer standing remains valid because D.C. court has ruled the issue since 1988. DeWitt Mem. 13. Binding precedent does not have expiration date, however. Nor does lose its validity over time. Neither the D.C. Circuit sitting banc nor the Supreme Court has expressly impliedly overruled Common Cause. remains good law. fact, less than years ago, the Supreme Court reaffirmed the doctrine municipal taxpayer standing. See DaimlerChrysler Corporation Cuno, 547 U.S. 332, 349 (2006) The Frothingham Court noted with approval the standing municipal residents enjoin the illegal use the moneys municipal corporation, relying the peculiar relation the corporate taxpayer the corporation distinguish such case from the general bar taxpayer suits. (internal quotations and citation omitted)). Numerous other federal courts appeal have reaffirmed the doctrine well. See e.g., Ehm San Antonio City Council, 269 Fed. Appx. 375, Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page 377 (5th Cir. 2008); ACLU-NJ Township Wall, 246 F.3d 258, 262-263 (3rd Cir. 2001); and Cammack Waihee, 932 F.2d 765, 769-771 (9th Cir. 1991). The doctrine municipal taxpayer standing still valid, and Plaintiff plainly has satisfied its elements. This Court has federal question jurisdiction and should exercise it. Contrary Defendant Bowser assertion, this case does not concern exclusively local question. issue this case whether Defendants illegally have incurred obligations and expended taxpayer monies pursuant the FY16 Budget Request because such obligations and expenditures have not been appropriated Congress and presented the President for signing. This case, like the case before it, unequivocally presents federal question whether the Council can unilaterally amend the District Charter fundamentally alter the roles the President and Congress with respect the locally funded portion the District budget. Council the District Columbia, Supp. 144-145. addition, the budget process for the District necessarily includes federal entities, namely the President and Congress, the latter which has active role appropriating the District budget. The Budget Autonomy Act thus far from the type purely local legislation that the D.C. Circuit has found does not confer federal jurisdiction. Id. 145.2 Because this Court has federal question jurisdiction hear the case, should so. The mere fact that the Superior Court the District Columbia Superior Court may rule the legality the Budget Autonomy Act inconsequential. The pendency action the state court bar proceedings concerning the same matter the Federal court having The D.C. Circuit dismissed the appeal Council the District Columbia mootness grounds. did not explicitly implicitly decide whether the case presented federal question. Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page jurisdiction. Reiman Smith, F.3d 222, 223 (D.C. Cir. 1993) (emphasis added) (quoting McClellan Carland, 217 U.S. 268, 282 (1910)).3 The subject matter the two cases not the same. this case, Plaintiff challenging Defendants action illegally incurring obligations and expending taxpayer monies pursuant the FY16 Budget Request that have not been appropriated Congress and presented the President for signing. the Superior Court, the Council and now the Mayor seeks declaration that the Budget Autonomy Act valid and injunction compelling the CFO comply with the law. Simply put, that case not about whether the Mayor and CFO are illegally incurring obligations and expending monies. addition, Plaintiff has not sued the Council. Abstention not proper. See Sheehan Koonz, 102 Supp. (D.D.C. 1999) (Abstention may appropriate where resolution similar action pending between the parties state court may effectively resolve the dispute between the parties. (emphasis added)). Nonetheless, the extent finds the two cases the same, the Court may exercise its discretion decline jurisdiction for the purpose judicial economy only [a] truly exceptional circumstance. Handy, 325 F.3d 352 (citing Moses Cone Memorial Hospital Mercury Construction Corporation, 460 U.S. (1983)); see also Phillips Mabus, 894 Supp. 71, (D.D.C. 2012) Federal district courts have virtually unflagging obligation ... exercise the jurisdiction given them. (quoting Colorado River Water Conservation District United States, Congress created the D.C. courts and unequivocally distributed the judicial power the [District] between the federal courts and the [D.C.] courts, allotting each its own sphere and making neither subservient the other. M.A.P. Ryan, 285 A.2d 310, 313 (D.C. 1971). Because this distribution power, the standard applicable parallel state court proceeding[s] applies. Handy Shaw, Bransford, Veilleux Roth, 325 F.3d 346, 351 (D.C. Cir. 2003). Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page 424 U.S. 800, 817 (1976). exercise such discretion, the Court must conduct deliberative balancing the following factors: (1) the inconvenience the federal forum; (2) the order which the courts assumed jurisdiction; (3) the desirability avoiding piecemeal litigation; (4) whether federal state law controls; and (5) whether the state forum will adequately protect the interests the parties. Handy, 325 F.3d 353-354. addition, the Court cannot rest mechanical checklist, but careful balancing the important factors they apply given case, with the balance heavily weighted favor the exercise jurisdiction. Moses Cone, 460 U.S. 16; see also Handy, 325 F.3d 453 (stating that one factor necessarily determinative Reiman, F.3d 224; Sheehan, 102 Supp. The application these five factors does not result truly exceptional circumstance that warrants abstention. favors this Court hearing the case before it. First, this forum convenient for all parties. This factor neutral and does not favor either party. Second, although the Superior Court proceeding was filed first, not all clear and when the court will reach determination the merits. The status hearing previously set for March 2016 was rescheduled for March 23, 2016, and oral argument date has not yet been set. addition, any ruling will most likely appealed. This factor inconclusive. Third, noted above, the cases seek different relief and involve different parties. Unlike the Council and the Mayor the Superior Court case, Plaintiff challenges the ongoing expenditure taxpayer monies and seeks injunction preventing Defendants from continuing spend the funds illegally. Similarly, Plaintiff not party the Superior Court case, and the Council not party this case. Because the claims and parties are different there piecemeal litigation. addition, Defendants have not demonstrated that the two cases will severely prejudice one the parties. Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page Sheehan, 102 Supp. Fourth, whether Defendants are illegally expending District monies implicates D.C. budget process, which necessarily includes the President and Congress. Because the ultimate question one that involves the proper role the federal government the affairs the District prescribed the U.S. Constitution, federal law controls. Similarly, Defendants are currently violating the Antideficiency Act, federal statute. See U.S.C. 1341(a). This factor therefore favors the Court exercising its jurisdiction. Moses Cone Memorial Hospital, 460 U.S. [T]he presence federal-law issues must always major consideration weighing against surrender. Fifth, the Superior Court case will not adequately protect Plaintiff interests. Plaintiff not party below. Nor there party fully representing her interests. When this Court heard the original case, Plaintiff interests were adequately represented Mayor Gray defense the lawsuit and his assertion counterclaims against the Council. Similarly, Plaintiff interests were adequately represented during briefing and oral argument the appeal Mayor Gray defended this Court injunction. However, because Defendant Bowser decided not defend the Court injunction and joined with the Council the current proceedings before the Superior Court, Plaintiff interests preventing the unlawful expenditure taxpayer monies are longer being adequately represented. CFO, Defendant DeWitt not and cannot represent the interest all taxpayers. must prepare the budget under the direction the Mayor. D.C. Code 1-204.24d(26). therefore not entirely clear that the case properly before the Superior Court that Defendant DeWitt can, fact, take position contrary that the Mayor. Importantly, Defendant DeWitt truly believed that the Budget Autonomy Act unlawful and all Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page obligations incurred and all monies expended pursuant the FY16 Budget Request are illegal, would refuse pay all bills, invoices, payrolls, and other evidences claims, demands, charges against the District government. D.C. Code 204.24d(16). also would not moving dismiss Plaintiff case. live controversy remains. Whether Plaintiff claims have been mooted intervening events fact intensive. Defendant Bowser argues that this case moot because, addition passing the FY16 Budget Request pursuant the process established the Budget Autonomy Act, the District also complied with the process required the Home Rule Act. addition, Defendant Bowser argues that Congress passed and the President signed legislation approving the District FY16 Budget Request. The limited, admissible evidence available suggests otherwise. demonstrated above, both the Mayor and the Council acted pursuant the process established the Budget Autonomy Act when enacting the local portion the FY16 Budget Request. Defendant Bowser explicitly stated that [t]his the first time have passed budget under the provisions our Budget Autonomy Act, and that the provisions relating the local portion our budget will into effect without separate appropriation following legislative-day period passive Congressional review. The Council submitted the local portion the FY16 Budget Request directly Congress, and, after days, declared that the budget was transmitted Congress July 17, 2015 for 30-day review, accordance with Section 602(c)(1) the Home Rule Act. The Council the District Columbia hereby gives notice that the 30-day Congressional review period has ended and the FY16 Budget Request became D.C. law, effective September 29, 2015. Just because circumstances allegedly made difficult for the Mayor submit just the Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page federal portion the FY16 Budget Request the President does not mean that the local portion was properly submitted the President and Congress for review. Similarly, just because Congress enacted legislation that suggests appropriation the District budget occurred does not mean that actually did so. Defendant Bowser and the Council asserted and acted though the FY16 Budget Request was enacted pursuant the process established the Budget Autonomy Act. Defendants cannot now disavow their previous statements and actions merely because convenient. They cannot have both ways. minimum, there factual dispute that cannot resolved this motion without jurisdictional discovery. any event, this Court retains jurisdiction because the issue before this Court capable repetition, yet evading review. For case fall within the capable repetition, yet evading review doctrine, the challenged action must too short duration fully litigated before cessation expiration. Federal Election Commission Wisc. Right Life, 551 U.S. 449, 462 (2007). There also must reasonable expectation that the same complaining party would subjected the same action again. Id. With respect the first prong, the D.C. Circuit has held that agency actions less than two years duration cannot fully litigated prior cessation expiration, long the short duration typical the challenged action. Del Monte Fresh Produce Company United States, 570 F.3d 316, 322 (D.C. Cir. 2009). addition, the Del Monte court concluded that the important consideration not whether the precise facts underlying the case will recur, but whether the legal wrong complained the plaintiff reasonably likely recur. Id. 324. Plaintiff claim clearly satisfies this first prong. Plaintiff challenges the obligations being incurred and the monies being expended pursuant the FY16 Budget Request, which only valid Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page for one year. Because Defendants can only incur obligations and expend monies pursuant yearly budget, the challenged action will conclude before Plaintiff has opportunity fully litigate the issue within two year period. With respect the second prong, the challenged action will occur every year. The Council fully intends continue enacting its yearly budgets pursuant the process established the Budget Autonomy Act. All future obligations incurred and monies expended pursuant the local portion the District yearly budgets will done without being appropriated Congress and presented the President for signing. Importantly, the Council has already indicated that intends enact the Fiscal Year 2017 budget pursuant the process established the Budget Autonomy Act. See dccouncil.us/budget/2017. addition, the process has already begun. Defendant Bowser required submit the proposed budget for Fiscal Year 2017 March 24, 2016. See Council District Columbia Notice Public Hearings (available http://dccouncil.us/files/user_uploads /event_testimony/(1-19-16)%20FY2017%20Budget%20Oversight%20Schedule(final)%20(3).pd f). Once the budget process completed, October 2016, Defendants will once again illegally spending taxpayer funds. live controversy clearly remains. Similarly, although Defendants did not voluntarily cease the illegal expenditure taxpayer funds, the basic reasoning behind the doctrine voluntary cessation provides persuasive rationale why this case not moot. Friends the Earth, Inc. Laidlaw Environmental Services, Inc., the Supreme Court reaffirmed that well settled that defendant voluntary cessation challenged practice does not deprive federal court its power determine the legality that practice. 528 U.S. 167, 189 (2000) (quoting City Case 1:15-cv-01967-EGS Document Filed 03/09/16 Page Mesquite Aladdin Castle, Inc., 455 U.S. 283, 289 (1982)). addition, case becomes moot only when impossible for court grant any effectual relief whatever the prevailing party. City Erie Pap M., 529 U.S. 277, 287 (2000). Moreover, defendant claiming that its voluntary compliance moots case bears formidable burden showing that absolutely clear the alleged wrongful behavior could not reasonably expected recur. 528 U.S. 189 (emphasis added) (citing United States Concentrated Phosphate Export Association, 393 U.S. 199 (1968)). noted above, without court order preventing them from doing so, starting October 2016 and for every year subsequent, Defendants will once again begin incurring obligations and expending taxpayer monies without the local portion the budget being appropriated Congress and presented the President for signing. This Court should not dismiss this case only have return shortly thereafter.4 Conclusion. For the foregoing reasons, Plaintiff respectfully requests that Defendant Muriel Bowser Motion Dismiss and Defendant Jeffrey DeWitt Motion Dismiss denied. Dated: March 2016 Respectfully submitted, /s/ Michael Bekesha Michael Bekesha D.C. Bar No. 995749 JUDICIAL WATCH, INC. 425 Third Street SW, Suite 800 Washington, 20024 Phone: (202) 646-5172 Counsel for Plaintiff Clarice Feldman the extent that the Court believes that this case moot, Plaintiff requests the opportunity amend the Complaint allege the forthcoming illegal expenditure taxpayer funds pursuant the local portion the Fiscal Year 2017 budget. Case 1:15-cv-01967-EGS Document 15-1 Filed 03/09/16 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA CLARICE FELDMAN, Plaintiff, MURIEL BOWSER, her official capacity Mayor the District Columbia, and JEFFREY DeWITT, his official capacity Chief Financial Officer for the District Columbia, Defendants. Civil Action No. 15-cv-01967-EGS [PROPOSED] ORDER Upon consideration Plaintiff Opposition Defendants Motions Dismiss and the entire record herein, hereby ORDERED that: Defendant Muriel Bowser Motion Dismiss DENIED; and Defendant Jeffrey DeWitt Motion Dismiss DENIED. ORDERED. DATE:________________ _______________________________ The Hon. Emmet Sullivan, U.S.D.J.