W. VA. ASS'N OF COM. HEALTH CENTERS v. HECKLER

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This case arises under a federal block grant statute which provides financial assistance to States to support the delivery of health services to needy populations. In appealing from the District Court's denial of a preliminary injunction, appellants ask this court to hold that the Secretary of Health and Human Services ("HHS") unlawfully calculated the amount of funding to which the State of West Virginia is entitled under the federal block grant program. We conclude that, while appellants have standing to assert their claims, the legal issues with respect to fiscal year 1983 funding are now moot, inasmuch as all such funds have been awarded and disbursed by the Secretary. For the reasons set forth below, we also decline to reach the merits of appellants' claims with respect to fiscal year 1984 funds. We do, however, retain jurisdiction over this case to ensure that these latter claims are subject to prompt appellate review.

I.

Appellants are the West Virginia Association of Community Health Centers, Inc. ("WVACHC") and the Mountaineer Family Health Plan, Inc. ("Mountaineer"). WVACHC is a nonprofit organization consisting of eleven of West Virginia's 22 community health centers ("CHC's").1 Mountaineer is an individual West Virginia CHC that belongs to WVACHC.

On September 8, 1983, with the expiration of fiscal year 1983 looming only three weeks away, appellants filed suit against the Secretary of HHS, seeking both a preliminary injunction and permanent relief. Appellants alleged that the formula adopted by the Secretary for awarding block grants to participating States under the Primary Care Block Grant ("PCBG") statute, 42 U.S.C. § 300y,2 unlawfully deprived the State of West Virginia of monies to which it was entitled.3 The parties apparently agreed that if appellants' challenge to the Secretary's funding formula was sustained, West Virginia would be entitled to an additional $299,950 in fiscal year 1983 ("FY83") funding. See Plaintiff's Motion for Leave to Amend Complaint, at 1 n. 1 (filed with District Court Oct. 14, 1983) (seeking to amend complaint to reflect, inter alia, this mutual understanding). Appellants also sought relief against the Secretary's implementation of the challenged formula in FY84. It cannot be determined, however, what amount is at issue for the current fiscal year.

The District Court advised the parties at a hearing on September 30, 1983 that it would not grant a preliminary injunction as to FY83 funds; the court subsequently issued a formal order and accompanying memorandum opinion denying preliminary relief. WVACHC v. Heckler, C.A. No. 83-2651 (D.D.C. Oct. 17, 1983). The court grounded its holding upon its application of the four factors governing requests for interim, equitable relief in this Circuit. Memorandum Opinion at 7-14; see, e.g., Ambach v. Bell, 686 F.2d 974, 979 (D.C.Cir.1982) (per curiam) (citing Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958) (per curiam)); National Association of Farmworkers Organizations v. Marshall, 628 F.2d 604, 613 (D.C.Cir.1980); Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977).

The initial factor considered by the District Court was appellants' likelihood of success. Memorandum Opinion at 7-12. After extensively analyzing the PCBG statutory scheme, the court concluded that the Secretary's allocation formula was a reasonable one that did not appear inconsistent with the statute. Id. at 11. The court thus held that appellants had not demonstrated a sufficient likelihood of success to warrant issuance of a preliminary injunction. Id. at 12.

The court's analysis of the remaining three factors buttressed its decision. In the District Court's view, appellants' claim of irreparable injury was speculative because they could not demonstrate that the Secretary's actions were actually causing a denial of additional funding that they otherwise would receive. Id. Furthermore, the court concluded that a preliminary injunction should not issue in light of the harm that would thereby be caused to CHC's outside West Virginia. Specifically, the court found that an award of increased funding to West Virginia could not be made without totally denying funding to two CHC's in Michigan and California. Id. at 13. Finally, the court held that the issuance of a preliminary injunction would not serve the public interest. Id. at 14.

Appellants filed a timely notice of appeal and now seek reversal. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

II.

A.

The threshold issue before us is whether appellants have standing to prosecute this action. In denying preliminary injunctive relief, the District Court specifically left this question open. We must nevertheless decide this issue, inasmuch as it bears fundamentally upon our jurisdiction to decide the case. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 260, 97 S.Ct. 555, 560, 50 L.Ed.2d 450 (1977) (citing Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969) (plurality opinion)).

To invoke federal jurisdiction, a party must show at a minimum that the challenged actions have caused it injury that is likely to be redressed by a favorable judicial decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).4 The Secretary argues that appellants have not satisfied these requirements, inasmuch as they have failed to demonstrate that a judicial decision mandating an increase in West Virginia's PCBG funding would redound to their benefit. In this regard, the Secretary relies principally upon the fact that West Virginia would have complete discretion to award any additional funding it might receive to other CHC's within the State which are not parties to this lawsuit. In response to this line of reasoning, appellants argue that they have been injured by being denied an opportunity to compete for this increased funding, and that to have standing they need not demonstrate that they would actually receive the additional funding.5 Our examination of applicable law mandates the conclusion that appellants do indeed have standing to sue.

The Supreme Court decision in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), provides the logical starting point for this branch of our inquiry. In that case, a legal challenge was mounted against a local government's refusal to rezone a parcel of real estate to permit a private development concern to construct a townhouse complex for low-and moderate-income tenants. The Court held that the development firm had standing to bring its challenge, even though there was no guarantee that the project would ultimately be built if the rezoning request were granted. Id. at 261-62, 97 S.Ct. at 561-562. But, importantly for our case, the Court also considered the standing of an individual plaintiff, because it was questionable whether the developer would be allowed to advance the claim that the rezoning refusal resulted from racial prejudice. In a holding that has direct bearing upon the present case, the Court stated:

Id. at 264, 97 S.Ct. at 563 (citations omitted; emphasis added). The Court's language plainly indicates that the individual plaintiff's injury was the denial of an opportunity to obtain housing for which he would otherwise be qualified. Certainty of success in seeking to exploit that opportunity was not required.6

The Supreme Court's treatment of standing in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), lends additional support to our conclusion. In Bakke, the Regents argued that a rejected medical school applicant did not have standing to challenge the school's affirmative action admissions program, unless the applicant could show that he would have been admitted but for the challenged program. The Supreme Court squarely rejected this argument, stating:

Id. at 280-81 n. 14, 98 S.Ct. at 2743 n. 14 (opinion of Powell, J., for the Court) (citations omitted).7

Furthermore, this court has upheld standing in a case remarkably similar to the one at hand. In National Association of Neighborhood Health Centers, Inc. (NANHC) v. Mathews, 551 F.2d 321 (D.C.Cir.1976), a nationwide organization of community health centers sought, among other things, to compel the former Department of Health, Education and Welfare ("HEW") to recover certain funds that had allegedly been improperly expended. The plaintiff organization represented that some of its members would then compete for the recovered funds. This court held that NANHC had standing on behalf of its members, because "[t]he less that is recovered [by HEW] ..., the less will be available to the present applicants, including the NANHC members; these members are directly hurt by ... the sharp curtailment of their opportunities for funding." Id. at 329. The court further stated that "[w]hile it is not certain that NANHC members would be funded due to the extra recovery from their claim here, it is probable that the prospect of funding, itself substantial relief, would be enhanced." Id. See also Planned Parenthood Association of Chicago Area v. Kempiners, 700 F.2d 1115, 1118-23 (7th Cir.1983) (opinion of Cudahy, J.); id. at 1135-38 (opinion of Posner, J.).

Under this line of cases, once appellants demonstrated that they would qualify to receive these funds, they need not shoulder the additional burden of demonstrating that they are certain to receive funding. The situation in this case thus differs starkly from those cases in which a plaintiff's alleged injury flows from the actions of a third party not before the court. See, e.g., Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Von Aulock v. Smith, 720 F.2d 176 (D.C.Cir.1983); Common Cause v. Department of Energy, 702 F.2d 245 (D.C.Cir.1983). In such cases, a plaintiff may not be accorded standing based upon a speculative charge that the defendant's actions are encouraging the third party to act in a manner harmful to the plaintiff. As has been demonstrated, this case presents a markedly different situation. We therefore conclude that appellants have standing to seek relief that would allow them to compete for additional funding.

B.

The existence of standing to sue does not, of course, mean that events during the pendency of the lawsuit may not render effective relief impossible. The Secretary contends that appellants' lawsuit is moot insofar as it concerns FY83 funds, all of which have previously been awarded. While we decline to hold that appellants' entire lawsuit is moot, we conclude that equitable relief is no longer available with respect to FY83 funds.

It is an elementary principle of the federal budget process that, in general, a federal agency's budget authority lapses on the last day of the period for which funds were obligated. See 31 U.S.C. § 1502(a); National Association of Regional Councils v. Costle, 564 F.2d 583, 587 (D.C.Cir.1977). At that point, the unobligated funds revert back into the general Treasury. See 31 U.S.C. § 1552(a)(2). In the present case, the Secretary's budget authority with regard to FY83 funding lapsed on September 30, 1983, the last day of the fiscal year for which the funds were appropriated. See 42 U.S.C. § 300y-1.

Notwithstanding these basic principles of federal budgetary law, an equitable doctrine has been fashioned by the federal courts in recent years to permit funds to be awarded to a deserving plaintiff even after the statutory lapse date, as long as the lawsuit was instituted on or before that date. See, e.g., Connecticut v. Schweiker, 684 F.2d 979, 996-99 (D.C.Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct. 1197, 75 L.Ed.2d 440 (1983); National Association of Regional Councils, supra, 564 F.2d at 588; Jacksonville Port Authority v. Adams, 556 F.2d 52, 55-57 (D.C.Cir.1977); City of Los Angeles v. Adams, 556 F.2d 40, 51 (D.C.Cir.1977). See also 31 U.S.C. § 1502(b) ("A provision of law requiring that the balance of an appropriation or fund be returned to the general fund of the Treasury at the end of a definite period does not affect the status of lawsuits or rights of action involving the right to an amount payable from the balance."). The doctrine has been likened to the equitable principles of constructive trust and equitable lien. Jacksonville Port Authority, supra, 556 F.2d at 56.

Application of this equitable doctrine, however, assumes that funds remain after the statutory lapse date. See Connecticut v. Schweiker, supra, 684 F.2d at 999 ("we point out that the scope of that relief is limited to the amount of fiscal year 1981 funds which remain available"). In the present case, appellants concede that all FY83 PCBG funds have been awarded by the Secretary to various recipients. Although it might be argued that funds remain "available" where they have been awarded to a recipient who, in turn, has not yet expended them, another decision of this court appears to undercut that contention. See Ambach v. Bell, 686 F.2d 974, 986 (D.C.Cir.1982) (per curiam) ("Once the chapter 1 funds are distributed to the States and obligated, they cannot be recouped. It will [then] be impossible ... to award the plaintiffs the relief they request if they should eventually prevail on the merits."); see also International Union UAW v. Donovan, 570 F.Supp. 210, 220-23 (D.D.C.1983) (assuming the funds remain available only to the extent that they have not previously been obligated by the federal government to a recipient), appeal pending, Nos. 83-1918, 83-2082 (D.C.Cir. argued Jan. 25, 1984).

As a result, the equitable doctrine permitting a judicial award of funds after the statutory lapse date will ordinarily, as here, have no application to a case in which all funds have properly been awarded.8 Accordingly, we dismiss as moot appellants' claims regarding FY83 funds, and we vacate the District Court's order denying preliminary injunctive relief. See United States v. Munsingwear, 340 U.S. 36, 39-41, 71 S.Ct. 104, 106-107, 95 L.Ed. 36 (1950); Weaver v. UMWA, 492 F.2d 580, 587 & n. 36 (D.C.Cir.1973) (per curiam), cited with approval, Aviation Enterprises, Inc. v. Orr, 716 F.2d 1403, 1408 n. 35 (D.C.Cir.1983) (per curiam).

C.

While appellants' challenge to the allocation of FY83 funds is no longer cognizable, the Secretary plans to distribute West Virginia's FY84 funds in accordance with the same formula. Relying heavily upon this fact, appellants request this court to reach the merits of their statutory claim regardless of the availability of relief as to FY83 funds. According to appellants, a remand would needlessly tax the resources of the judiciary and the parties, inasmuch as the District Court provided no indication that it would be willing to reconsider its legal conclusion that the Secretary's allocation formula is consistent with the PCBG statute.9 We find this contention to be severely undermined by the Supreme Court's disposition of University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981), and incompatible, under the circumstances here, with the orderly administration of justice.

In Camenisch, a district court issued a preliminary injunction requiring the University of Texas to pay the costs of providing a sign language interpreter for the plaintiff, a deaf graduate student. The district court conditioned this preliminary injunction upon plaintiff's posting a security bond pending the outcome of the litigation. By the time the University's appeal from the grant of a preliminary injunction was heard by the United States Court of Appeals for the Fifth Circuit, plaintiff had already graduated. The Fifth Circuit nevertheless reached the merits of the dispute on the ground that the issue of which party should pay for the interpreter remained justiciable.

The Supreme Court vacated the Fifth Circuit's decision and remanded the case to the district court for trial on the merits. The Court held that the only issue properly before the Fifth Circuit was the correctness of the preliminary injunction, an issue mooted by plaintiff's graduation. 451 U.S. at 394, 101 S.Ct. at 1833. The Court rejected the argument that the district court's consideration of plaintiff's likelihood of success on the merits was tantamount to a decision on the merits. According to the Court, such an argument "improperly equates `likelihood of success' with `success,' and what is more important, ... it ignores the significant procedural differences between preliminary and permanent injunctions." Id. Stressing that the preliminary injunction was designed for the limited purpose of preserving the parties' relative positions prior to trial, the Court concluded that "it is generally inappropriate for a federal court at the preliminary injunction stage to give a final judgment on the merits." Id. at 395, 101 S.Ct. at 1834. The Court noted that Fed.R.Civ.P. 65(a)(2), which allows the preliminary injunction hearing to be collapsed into the trial on the merits, provides a method, where appropriate, of obtaining an expedited decision on the merits. Id.

The Supreme Court's teaching in Camenisch applies with full force here. In denying preliminary injunctive relief, the District Court's inquiry into the merits was limited to a determination whether appellants demonstrated that their claim was likely to meet with success.10 Furthermore, the denial of the preliminary injunction was also based upon the District Court's conclusions that appellants were not threatened with irreparable harm, that other CHC's would be harmed by the grant of a preliminary injunction, and that the public interest did not support a preliminary injunction.

We, of course, do not interpret Camenisch as erecting an insurmountable bar to an appellate court's issuing a final decision on the merits where the appeal is merely from the grant or denial of a preliminary injunction.11 But Camenisch plainly provides us with considerable pause in reaching out to address on the merits an important and complex issue of statutory interpretation.

Moreover, quite apart from Camenisch, this case as now before us provides an inappropriate setting in which to issue a final decision on the merits. As we have seen, the correctness vel non of the District Court's preliminary injunction denial is no longer cognizable because all FY83 funds have been awarded. Furthermore, the legal issues with respect to West Virginia's FY84 funding may be mooted by the State's recently announced intention to withdraw from the PCBG program. See Appellants' Supplement to Record (filed Feb. 29, 1984) (copy of Feb. 13, 1984 Letter from Governor John D. Rockefeller IV to West Virginia Department of Health instructing the initiation of action to terminate the State's participation in PCBG program). At present, it is unclear whether this impending withdrawal will be effectuated prior to the end of FY84 and, if so, whether appellants' claim that West Virginia is entitled to additional FY84 funding would thereby be mooted. In light of these considerations, we decline appellants' invitation to reach the merits of a complex statutory issue.

D.

While we do not reach the merits of appellants' statutory claim, we are not unsympathetic to appellants' lament that the inexorable march of time may result in their being denied an effective opportunity for appellate review of their claim as to FY84 funds.12 If we were simply to remand the case to the District Court, an appeal from whatever order the court entered on remand would likely not be heard until well into our September 1984 Term. At that point, if unsuccessful below, appellants would likely be faced with the same difficulties with regard to FY84 funds that they encountered here with respect to FY83 funds.

In light of these unusual circumstances, we will retain jurisdiction to ensure that appellants receive timely appellate consideration of their claims regarding any FY84 funding to which West Virginia may be entitled. See 16 C. WRIGHT, A. MILLER, E. COOPER & E. GRESSMAN, FEDERAL PRACTICE & PROCEDURE § 3937, at 109 (Supp. 1983) (an appellate court's "power to retain jurisdiction in [appropriate] circumstances is desirable, and it seems likely that it should be exercised profitably in more cases than present opinions reflect"); see also United States v. Simmons, 670 F.2d 365, 372 (D.C.Cir.1982) (per curiam), after remand, 699 F.2d 1250 (D.C.Cir.), cert. denied, 464 U.S. 835, 104 S.Ct. 121, 78 L.Ed.2d 119 (1983); United States v. American Telephone and Telegraph Co., 551 F.2d 384, 394-95 (D.C.Cir.1976), after remand, 567 F.2d 121 (D.C.Cir.1977); cf. Quincy Cable TV, Inc. v. FCC, 730 F.2d 1549 (D.C.Cir.1984) (per curiam) (retaining jurisdiction but remanding record to administrative agency for further proceedings).

In accordance with the normal procedures governing our retention of jurisdiction, see D.C.Circuit Rule 13(d), we will remand the record in this case to the District Court for further proceedings, including the development of facts bearing on the question of mootness vel non. In this regard, we respectfully direct the District Court to determine whether, notwithstanding West Virginia's announced intention to withdraw from the PCBG program, the State has received or will receive any FY84 funding pursuant to the challenged allocation formula. If West Virginia has received or will receive any FY84 funding in an amount less than it would have received under the allocation formula asserted by appellants to be statutorily mandated, a live controversy may remain regardless of whether West Virginia subsequently withdraws from the PCBG program.13

If the case is determined not to be moot, the District Court should thereupon decide whether West Virginia is entitled to additional FY84 funding.14 The District Court is further directed, in the interests of justice, to enter an appropriate order with respect to appellants' FY84 funding claim by no later than September 10, 1984.15 At that point, the losing party may bring its appeal before this panel, without filing a new notice of appeal, upon application to be filed no later than ten days after the District Court's entry of the order.

III.

For the reasons stated above, the record in this case is remanded to the District Court for further proceedings with respect to appellants' FY84 funding claim, including a determination of mootness vel non. This panel will retain jurisdiction of the matter in the interests of judicial economy, consistent with fairness to all parties to this proceeding.

It is so ordered.