Chavous and Catania v. Control Board
Lawsuit
April 30, 2001

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Council of the District of Columbia

David A. Catania
Councilmember, At-Large

PRESS RELEASE

CATANIA AND CHAVOUS FILE LAWSUIT AGAINST CONTROL BOARD OVER D.C. GENERAL
Seek Temporary Restraining Order & Preliminary Injunction to Stop Privatization Contract of D.C. General

In their suit, the Councilmembers contend that the Control Board acted "without statutory authority and over the objection of the Council of the District of Columbia ...As a result, the District of Columbia stands on the brink of a health-care crisis that will immediately impact the lives of D.C. General's patients, its staff, the other D.C. hospitals and the thousands of residents, employees, and visitors to the Nation's Capital who rely on D.C. General."

The Councilmembers contend that the Privatization Contract is unlawful and the action of the Control Board in signing the contract and enacting the enabling legislation without Council approval went beyond their statutory authority and are unconstitutional. Therefore, the plaintiffs are seeking a temporary restraining order and a preliminary injunction to prevent the Control Board from signing the contract and passing the enabling legislation, and to prevent the Control Board, the District government, and Greater Southeast Community Hospital Corp. from implementing the Privatization Contract and the enabling legislation.

In the suit, the Councilmembers state the Congress did not authorize the Control Board to enter into contracts such as the Privatization Contract. The plaintiffs' filing reads, "As a general matter, the types of powers exercised by the Control Board here, agreeing to enter an $500 million five-year contract and enacting and repealing legislation, are powers reserved for the Council." Additionally, the plaintiffs contend that only the Council can authorize contracts in excess of $1 million. The law creating the Control Board "gives the role to approve such contracts exclusively to the Council and nowhere provides the Control Board the power to enter into such contracts without approval of the Council."

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KEVIN P. CHAVOUS and DAVID A. CATANIA, individually and in their capacity as MEMBERS of the COUNCIL OF THE DISTRICT OF COLUMBIA, and THE COMMITTEE OF INTERNS AND RESIDENTS, Plaintiffs, v. 

DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY, GREATER SOUTHEAST COMMUNITY HOSPITAL CORPORATION I AND THE DISTRICT OF COLUMBIA, Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF COMBINED MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

PRELIMINARY STATEMENT

The Control Board signed the Privatization Contract despite the fact that on Friday, April 27, 2001, the Council, the citizens' elected representatives, unanimously voted against it. See Exhibit 1, ¶14. It was the view of the Council, upon listening to evidence from the medical community, from community leaders, and from their constituents, that entering into the Privatization Contract will be disastrous for the public health system in the District and against the interest of the people they represent. See Affidavit of David A. Catania, ¶12, attached as Exhibit 6. Also, currently before the Council, is legislation introduced by Mayor Anthony Williams ("Mayor Williams") on April 23, 2001, to enable the Privatization Contract to go into effect ("the enabling legislation"). The Council has not even had the opportunity to take action on this proposed legislation. Nevertheless, today, the Control Board entered into the Privatization Contract and enacted the enabling legislation on its own.

The Privatization Contract is unlawful and the actions of the Control Board in signing the contract and enacting the enabling legislation were ultra vires and unconstitutional. Plaintiffs seek a temporary restraining order and a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 to prevent the Control Board, the District of Columbia Government, and Greater Southeast from implementing the Privatization Contract and the enabling legislation. A temporary restraining order or preliminary injunction is essential to uphold the laws of the District of Columbia and the United States, to preserve the constitutional rights of Plaintiffs Chavous and Catania, to protect the health and welfare of the citizens of the District of Columbia represented by Plaintiffs Chavous and Catania,¹ to prevent the termination of the jobs of hundreds of employees, including those represented by Plaintiff Committee of Interns and Residents, and to prevent the Control Board from committing irreparable harm through its unlawful and unconstitutional actions.

BACKGROUND

The PBC was established in 1996 as a nonprofit public benefit corporation to provide comprehensive community-centered health care for the benefit of District of Columbia residents. D.C. Code §§ 32-261.1 and 32-262.1- 262.20, et sea. The health care functions performed by D.C. General and the community clinics of the Commissions of Public Health of the Department of Human Services were transferred to the PBC. D.C. Code § 32-261.1. Except as provided in D.C. Code §§ 32-262.4(e), 32-262.8 and 32-262.12, the PBC is subject to all laws applicable to offices, agencies, departments, and instrumentalities of the District of Columbia government.

In 1995, Congress passed the District of Columbia Financial Responsibility and Management Assistance Act of 1995 ("FRMAA"), which created the Control Board. Provisions regarding the Control Board axe codified at D.C. Code §§ 47-391.1 et. seq. The Control Board is established as an entity within the District of Columbia government, and consists of 5 members who are appointed by the President of the United States. Id.

As part of the appropriations for the District of Columbia for the fiscal year ending September 30, 2001, Congress allocated $90,000,000 "for the purpose of restructuring the delivery of health services in the District of Columbia." H.R. 5633, 106th Cong., 2d Sess. (2000). The appropriations act further provided that, "such restructuring shall be pursuant to a restructuring plan approved by the Mayor of the District of Columbia, the [Council], the [Control Board], and the Board of Directors of the [PBC]." Id. In an effort to respond to this Congressional requirement and begin the process of working together with the Control Board, the Mayor, and the PBC, on November 3, 2000, Councilmembers Chavous and Catania, along with D.C. Councilmember Sandy Allen, submitted a proposal to develop a comprehensive urban healthcare campus on the grounds of D.C. General Hospital. See Exhibit 6, ¶4.

Rather than following the Congressional mandate to work together with the Council, the Control Board, on December 4, 2000, issued a Resolution, Recommendations and Orders Concerning the Public Benefit Corporation ("Control Board Resolution"). See Exhibit A to the Complaint. The Control Board Resolution was distributed to the Members of the Council on December 6, 2000. See Exhibit 1, ¶¶4-6.

Just nine days later, on December 15, 2000, a Request for Proposal ("RFP") was issued by the Control Board seeking to "obtain the services of one qualified health care provider or team of qualified health care providers to provide comprehensive, integrated and coordinated health care services to the uninsured population of the District of Columbia." See Exhibit B to the Complaint. The stated closing date for response to the RFP was January 16, 2001, but was later extended. Id. The RFP included an "Anticipated Proposal Schedule" setting forth dates for the events that were to take place prior to the implementation of the selected contract. Those events, as listed in the RFP, included submission of the contract to both the Mayor and the Council for review prior to the contract being finalized.

On January 30, 2001, Greater Southeast presented its proposal to the Control Board. A second proposal was submitted by Urban Healthcare Associates, LLC on February S, 2001. The committee designated to assist with the RFP process recommended the acceptance of the proposal submitted by Greater Southeast. Once Greater Southeast was recommended, the Control Board moved forward in negotiating a contract with Greater Southeast, refusing to allow the Council or its representatives to participate any further in the contracting process. At the insistence of the Council, the Control Board hired PriceWaterhouseCoopers to conduct a multi week due diligence on Greater Southeast and its subcontractors. However, as of Friday April 27, 2001, the Control Board had refused to turn over that report to the Council, despite written and public requests for its release. It was not until last week that the Council was even made aware of the terms of the contract.

On March 6, 2001, the Council unanimously adopted Resolution 14-55, titled the "Sense of the Council on the District of Columbia Health and Hospitals Public Benefit Corporation and D.C. General Hospital Emergency Resolution of 2001." See Exhibit C to the Complaint. In that Resolution, the Council expressed its many concerns regarding the proposal submitted by Greater Southeast and the impact a contract arising out of that proposal would have on the health care services in the District of Columbia.

On April 12, 2001, the Council approved a Fiscal Year 2001 supplemental Appropriation Act which, in part, provided $21 million in additional funding in order to fund the PBC through September 2001, the end of the fiscal year. See Exhibit 6, ¶13. This legislation was subsequently vetoed by Mayor Williams, and the veto was overridden by the Council. Greater Southeast submitted a written contract to the Control Board on April 12, 2001. See Exhibit 1, ¶¶12. A copy of the contract was transmitted to Mayor Williams on April 13, 2001. See Exhibit D to the Complaint. Alice Rivlin, Chairman of the Control Board, wrote to Mayor Williams on April 18, 2001, requesting that he transmit the Privatization Contract "to the Council of the District of Columbia for action." In that letter, Ms. Rivlin stated that "it is essential that this proposed contract and the enabling legislation are approved before May 1, 2001." See Exhibit E to the Complaint. Mayor Williams provided a copy of the contract submitted by Greater Southeast to the Council on April 23, 2001. See Exhibit 1, ¶13. On that same date, Mayor Williams submitted to Linda Cropp, Chairman of the Council, proposed legislation entitled the "Health Care Privatization Emergency Amendment Act of 2001" providing for, inter alia, the abolishment of the PBC and providing the Mayor with the authority to contract for the delivery of medical services to the District of Columbia's uninsured residents. See Exhibit F to the Complaint. The Council rejected the contract submitted by Greater Southeast by unanimous vote on April 27, 2001. See Exhibit 1, ¶14. The Council has not yet acted on the proposed legislation.

ARGUMENT

1. There is a Substantial Likelihood that Plaintiffs Will Succeed on the Merits

The Complaint seeks a declaratory judgment that the actions of the Control Board in entering into the Privatization Agreement and enacting the enabling legislation were ultra vires and violated the constitutional rights of Councilmembers Catania and Chavous, making the contract illegal and, thus, void. A review of the evidence, the Control Board's statutory authority, and case law demonstrates that there is a substantial likelihood that Plaintiffs will succeed on the merits of these claims.

A. The Control Board's Actions Were Ultra Vires

As a general matter, the types of powers exercised by the Control Board here, agreeing to enter into an $500 million five-year contract and enacting and repealing legislation, are powers reserved for the Council. In particular, pursuant to Pub. L. 104-8 (HR 1345) § 304(a)(3) (codified at D.C. Code § 1-1130), the Privatization Contract could not be made without the approval of the Council.² Accordingly, the Control Board must identify some statutory authority that allows it to act on its own in order to justify its actions. There are only two sources of statutory authority potentially implicated by the Control Board's actions. These are the Control Board's FRMAA section 103(g), D.C. Code 47391.3(g) power to contract and its FRMAA 207(c), D.C. Code 47392.7 authority to, in certain circumstances, take action with regard to recommendations it made to the Council and which the Council disapproved.³ A close examination of each of these provisions reveals that neither provided authority to the Control Board to enter into the Privatization Contract or to enact the enabling legislation.

The Control Board's FRMAA 103(g) Power

First, FRMAA 103(g) sets out the only authority the Control Board has to enter into contracts. It states that "[t]he Executive Director may enter into such contracts as the Executive Director considers appropriate (subject to the approval of the Chair) to carry out the Authority's responsibilities under this Act." This language is clearly referring to contracts to allow the Control Board to carry out its day-to-day operations, such as hiring lawyers to defend its actions, or hiring accountants. This is evidenced by the fact that the Executive Director may enter into such contracts with merely the approval of the Chair and without a vote of the entire Control Board. Moreover, the regulations promulgated by the Control Board for its procurement support this understanding. They define the types of contracts covered by the regulations to include professional services and day-to-day operations. See Control Board Procurement Regulations at Exhibit 7. Under the FRMAA, the Control Board must review certain types of special contracts approved by the Council, but there is no similar authority to review and approve contracts rejected by the Council. See D.C. Code §47-392.3(b)(4). Therefore, the Control Board certainly cannot enter into a $500 million contract in its own name, on behalf of the District, pursuant to this limited contracting authority.

The Control Board's FRMAA 207(c) Power

The Control Board is not permitted to enter into the Privatization Contract or enact the enabling legislation pursuant to its recommendation authority in FRMAA §207(c). Pursuant to FRMAA §207, the Control Board does have the authority to make recommendations to the Council and the Mayor. Upon such a recommendation to it, the Council has 90 days to give notice to the Control Board, Congress, and the President that it approves the recommendation or that it does not. If it approves the recommendation, the Council is to submit a plan and schedule for implementing the recommendation. If the Council does not approve the recommendation, it is to give an explanation as to its rejection. If the Council gives notice that it will not adopt a recommendation, "the Authority may by a majority vote of its members take such action concerning the recommendation as it deems appropriate," after consulting with specified Congressional committees. 

As noted above, on December 5, 2000, the Council did issue what purported to be Recommendations to the Council. Those "Recommendations" were as follows:

1. The Authority recommends, pursuant to Section 207 ..., that the Council, pursuant to its statutory authority under the Home Rule Act, repeal D.C. Act 13454, "District of Columbia Health and Hospitals Public Benefit Corporation Emergency Amendment Act of 2000"...;
2. The Authority recommends, pursuant to Section 207 ..., that the Council, pursuant to its statutory authority under the Home Rule Act, repeal D.C. Act 11389, codified at Title 32 of the D.C. Code §§ 261.1 and 262.1 through 262.20, et. seq.
3. The Authority recommends, pursuant to Section 207 ..., that the Council work with the Mayor to prepare and approve a plan to establish an alternative publicly financed health care delivery system in the District of Columbia that a) is consistent with the current multi-year financial plan and budget for the District of Columbia, b) provides for equivalent volumes and types of services as currently provided by the PBC to uninsured District residents, and c) ensures that the services meet standards of quality and accessibility;
4. The Authority recommends, pursuant to Section 207 ..., that the Council, pursuant to its statutory authority under the Home Rule Act, approve and/or enact legislation, regulations, and reprogramming, and take any and all other actions necessary to authorize and implement an alternative publicly-financed health care delivery system;
5. The Authority recommends, pursuant to Section 207 ..., that the Council, pursuant to its statutory authority under the Home Rule Act, act to approve the restructuring plan required by Public Law 106-522 . . .
6. All of the above Recommendations must be enacted by the Council and approved by the Mayor within 90 calendar days of the adoption of these Recommendations and Orders by the Authority.
7. If the Council and the Mayor fail to adopt these Recommendations, pursuant to Section 207 of Public Law 104-8, the Authority will enact and implement them in accordance with the provisions of Section 207 after consultation with the appropriate Committees of Congress.

The Control Board's Resolution was not a "Recommendation" Within the Meaning of Section 207

Even if the Control Board's Resolution was intended to encompass the Privatization Contract and the enabling legislation, the "Recommendations" made to the Council in that document were ultra vires and null and void ab initio. While couched as "Recommendations," a closer look at the seven items reveals that they were not recommendations at all, but rather were orders to the Council to act, including orders to repeal specific pieces of legislation, and to approve and enact an as yet undetermined plan to implement an alternative publicly-financed health care delivery system. Nothing was even stated that the alternative plan would be to privatize public health services, reduce medical services and drastically curtail the eligibility criteria for recipients. The Control Board has no authority to issue orders to the Council.⁴

Under Section 207, the Council has 90 days to consider whether to adopt any recommendation submitted by the Control Board and to notify the Control Board, the President and Congress of its decision. Such notification is to include a plan for implementation, including performance measures and a schedule.

In contrast to section 207, the Control Board Resolution provides at subsection (6) that "[a]11 of the above Recommendations must be enacted by the Council and approved by the Mayor within 90 calendar days of the adoption of these Recommendations and Orders by the Authority." (emphasis added). According to subsection (7), if the Council fails to act, the Control Board "will enact and implement them." Based on this language, the Council was being required by the Control Board, not only to consider the recommendation within 90 days and come up with a plan for implementation, but the Recommendations "must be enacted" by the Council within 90 days. The Control Board had no authority to order the Council to enact specific legislation within 90 days. Because the Control Board's Resolution exceeded the authority of the Control Board, it is void and the Control Board cannot now rely on it to justify its current actions.

The Control Board's Resolution Was Too Broad to Give the Control Board the Authority to Sign the Privatization Contract and Pass the Enabling Legislation

The Control Board can not simply make sweeping unspecific recommendations like "implement an alternative publicly financed health care delivery system" and then use that as an excuse to take absolutely whatever action they want. Using section 207 in this manner would completely usurp the legislative authority of the Council in violation of the Charter and, as will be discussed below, the United States Constitution.

The Control Board Admitted That Its December 5, 2000 Action Did Not Encompass the Privatization Contract and Enabling Legislation

Any argument by the Control Board that it was acting pursuant to §207(c) when it decided to execute the Privatization Contract is contradicted by its own actions and statements. In an April 13th letter from Alice Rivlin to Mayor Williams, the Control Board, instructed Mayor Williams to submit the Privatization Contract and the enabling legislation to the Council. Moreover, Ms. Rivlin, wrote to Mayor Williams on April 18, 2001, and acknowledged in that letter that it was "essential" that the Council approve the Privatization Contract and the enabling legislation before the contract went into effect. Mayor Williams then did submit the Privatization Contract and the enabling legislation to the Council on April 23. The Council unanimously voted down the contract⁵ and has yet to act on the enabling legislation.

Nowhere in this correspondence does Ms. Rivlin mention that the Control Board can enter into the Privatization contract without the approval of the Council or without the enactment of the enabling legislation. It is hard to understand how the Council's approval by May 1, 2001 could possibly be "essential" if that were the case. Nevertheless, the Control Board purports to have the authority to enter into the Privatization Contract and enact the enabling legislation. These statements constitute an admission that the Control Board is not acting pursuant to § 207(c) or alternatively a waiver of any right to argue that the Control Board is acting pursuant to that section.

By Statute, Only The Council Has Authority to Approve Contracts In Excess of $1 Million and for Terms of More Than One Year

Even if the Control Board had submitted the Privatization Contract to the Council pursuant to § 207, or the Privatization Contract is deemed to have been submitted as part of the Control Board Resolution, § 207(c) does not give the Control Board authority to implement a contract in excess of $ 1 million without the approval of the Council. Congress passed Pub. L. 104-8 (HR 1345) § 304(a)(3) (codified at D.C. Code § 1-1130) at the same time it passed section 207. Both provisions were part of an effort to reorganize the government and operations of the City government. These provisions must be read together, in pari materia. Reading the provisions together, if Congress had intended to permit the Control Board to enter into contracts in excess of $1 million pursuant to its section 207(c) authority, Congress would have specifically enumerated such authority. Instead, §1-1130 gives the role to approve such contracts exclusively to the Council and nowhere provides the Control Board the power to enter into such contracts without approval of the Council.

Moreover, there is simply no authority anywhere in the statute permitting the Control Board to enter into contracts, in its own name, on behalf of the District. The Council could not grant the Control Board such authority pursuant to any recommendation. Rather, such authority would have to come from Congress. This is supported by the fact that Congress has explicitly given the Control Board the power to contract in the past. Specifically, Congress gave the Control Board the authority to contract with private entities to carry out a program of school facility repairs. See Section 5201 of Pub. L. 104-208, 110 Stat. 3009 [14501. This strongly supports the argument that absent specific Congressional action, the Control Board has no power to contract for services on behalf of the District. Therefore, § 207 does not provide adequate authority to the Control Board to enter into the Privatization Contract.

Additionally, the Privatization Contract is unlawful because defendant, Greater Southeast, failed to obtain a certificate of need. See generally, D.C. Code §32-356. This deficiency is noted in the April 23, 2001 letter from Mayor Williams to the Council, attaching proposed legislation to enable the Privatization Contract. One of the provisions he asks the Council to act on so as to "enable finalization of the contract negotiated with Greater Southeast Community Hospital" is to "[t]emporarily exempt the contractor, the District government, and the PBC from certificate of need requirements regarding proposal to offer or develop new institutional health services or terminate health services pursuant to the Contract." Any attempt by the Control Board to enact this proposed legislation on its own is ultra vires. Legislation to eliminate certificate of need requirements is certainly not within the Control Board's Resolution, and the Control Board cannot act without submitting a recommendation to the Council regarding the certificate of need and waiting 90 days.

B. Defendants Violated Plaintiffs' Constitutional Rights

The Control Board also violated the Separation of Powers set forth in the Constitution. The Control Board consists of officers appointed by the Executive Branch (appointments are made by the President without the advice and consent of the United States Senate). By entering into the contract and passing the enabling legislation without statutory authority to do so, the Control Board impermissibly expanded its legislative powers to usurp those of the Council, which Congress created and authorized to act as the Legislative Branch on behalf of the District of Columbia. The Control Board, who are inferior officers under the Appointments Clause in Article 11 of the Constitution, did not have the authority to sua sponte amend the District of Columbia Charter and displace the Council, which is given specific and exclusive authority in the Charter to approve contracts in excess of $1 million. D.C. Code §1-1130.

II. Defendants' Actions Will Cause Irreparable Harm

If the Privatization Contract goes into effect at midnight tonight, there will be immediate and substantial harm. See Exhibit 1, ¶15. In particular, management of the hospital will immediately transfer to Greater Southeast. Id. Switching management back to the PBC after Greater Southeast begins to make changes, including staffing cuts will be extremely difficult. Hiring back lost employees, re-obtaining sold equipment, and changing policies implemented by Greater Southeast could prove impossible once the change over occurs.

Changes in medical services could have an immediate and dangerous impact. Patients currently admitted may have to be moved. There is a significant likelihood that D.C. General will lose a substantial number of medical personnel to other employers immediately following the execution of the Privatization Contract because these employees are aware most of them will ultimately be losing their jobs. A reduction in staff may result in an inability to serve the needs of new or existing patients. Also, the number of Intensive Care Unit ("ICU") beds will be reduced by 26, which represents more than 10% of the ICU beds in the District. See Exhibit 2, ¶12. See also Affidavit of Alan Sager, Ph.D., attached as Exhibit 8. Members of the Plaintiff Committee of Interns and Residents stand to lose their jobs under this Privatization Contract. See Exhibit 5, ¶9.

Moreover, the parent company of Greater Southeast, Doctors Community Healthcare Corporation ("DCHC") has well-documented and substantial financial difficulty. See Exhibit 6, ¶7. DCHC is a for profit company that is deeply in debt and has posted large annual losses for the last three years. DCHC also has a reputation in the business community nationwide for its inability to complete deals and its eleventh hour demands in negotiations. Id.

Awarding the contract to this financially strapped company would occur in violation of the votes of Councilmembers Chavous and Catania, as well as the Council as a whole, not to permit the contract. Thus, there would also be irreparable harm to the constitutional rights of Plaintiffs.

Turning the operations of D.C. General over to the dangerously cash-strapped Greater Southeast at midnight tonight, pursuant to an unlawful contract, entered into by the ultra vires acts of an unelected body, in direct contravention of the will and the constitutional rights of the Council and Plaintiffs will bring about immediate and irreparable harm. 

III. No Substantial Injury Will Occur to Other Interested Parties

An order by this court granting the motion for a temporary restraining order or preliminary injunction will not result in substantial injury to other interested parties. First, the PBC is fully funded through June. Granting this order will therefore not negatively impact on the services at the hospital. Second, implementation of this contract has been delayed repeatedly over the last two months. For instance, the RFP issued on December 15, 2000 indicates that the contract was to be finalized by February 28, 2001. See Exhibit B to the Complaint, p. 7. A January 30, 2001 letter to Representative Joe Knollenberg, Chairman of the House Appropriations Subcommittee on the District of Columbia, indicates that the date for the contractor taking over operations was moved from March 13, 2001 to April 2, 2001. See Letter to Representative Knollenberg at Exhibit 9. As evidenced by the Control Board's anticipated actions today, this date has now been moved to May 1. There is no evidence to suggest that further delay will have any additional impact on the contracting parties, the city, or any other potentially interested parties. Accordingly, this prong also weighs in favor of granting the temporary restraining order or injunction. 

IV. The Public Interest Will Be Furthered

The public has a substantial interest in ensuring that D.C. General continues to provide medical services to the public and especially the members of the community surrounding the hospital and that employees of the hospital and the PBC do not wrongly lose their jobs. As discussed above, there will be immediate changes that occur at the hospital as a result of privatization that will have a substantial impact on the people served by the hospital, including the availability of ICU beds in the District and medical and technical staff departures. Such changes could have an immediate effect on services at hospitals throughout the city. Moreover, the public has a substantial interest in ensuring that the right of its elected officials to exercise their voting powers is protected. Finally, the public has a substantial interest in ensuring that the laws of the District of Columbia and the United States are followed. 

V. A Temporary Restraining Order or Preliminary Injunction Are Not Barred 

D.C. Code 47-391.5 purports to limit the authority of a court to issue injunctive relief against the Control Board. Specifically it provides that:

[n]o order of any court granting declaratory or injunctive relief against the Authority, including relief permitting or requiring the obligation, borrowing, or expenditure of funds, shall take effect during the pendency of the action before such court, during the time appeal may be taken, or (if appeal is taken) during the period before the court has entered its final order disposing of such action. 

To the extent this provision would be interpreted to bar the requested relief, and to prevent a court from issuing an order to enjoin an unlawful, unconstitutional act that is causing immediate and irreparable harm, the provision is an unconstitutional violation of the separation of powers and should not be followed by this court. See D.C Lottery Board Chairman, Ken Brewer v. D.C Financial Responsibility and Management Assistance Authority, 953 F. Supp. 406, 411 (D.D.C. 1997) (in dicta, the court said it found the anti-injunction provision "startling" and questioned whether the provision could withstand a "demonstrated need for injunctive relief to prevent imminent, irreparable constitutional injury."). Moreover, this provision would not bar the court from issuing the requested relief against the other Defendants. The provision is quite specific in referring to injunctive relief "against the Authority." Cf. Shook, 132 F.3d at 778-79 (narrowly construing limitation on judicial review related to FRMAA §207(d) orders).⁶ Therefore, it does not apply to the other defendants at all.

CONCLUSION

Dated: April 30, 2001

Respectfully submitted,
Elizabeth B. Sandza (DC Bar No. 415283)
John M. Collins (DC Bar No. 440356)
David M. Ross (DC Bar No. 461733)
LeBoeuf, Lamb, Greene & MacRae, LLP
1875 Connecticut Avenue, N.W.
Washington, D.C. 20009-5728
(202) 986-8000
Counsel for Plaintiffs

1. Councilmember Chavous represents Ward 7 and Councilmember Catania is at-large, representing a city-wide constituency.

No contract involving expenditures in excess of $ 1,000,000 during a 12-month period may be made unless the Mayor submits the contract to the Council for its approval and the Council approves the contract (in accordance with criteria established by act of the Council).

4. Under Section 207(d), the Control Board does have the specific authority to issue orders to the Mayor. Interestingly, immediately following its Recommendations to the Council, the first line in the Control Board's Orders to the Mayor begins: "It is further ORDERED ..." By its own admission, the Control Board was issuing orders to the Council, not recommendations.

5. Any argument that this act constitutes a rejection of a §207 Recommendation that may be acted upon by the Control Board also fails. This was not submitted in the form of a Recommendation from the Control Board, but rather was submitted to the Council through Mayor Williams. Moreover, it was submitted by the Mayor pursuant to D.C. Code §1-1181.5a(j)(2). Under that provision, the Council must act within 96 hours to disapprove a contract or it will be deemed approved. It cannot be that the 90 day review period established in § 207 can be circumvented by the Control Board by creating a "Catch 22" situation where the Council either must act to disapprove, thereby giving up its 90 days to review and carefully consider the contract, or must approve the contract.

6. FRMAA §207 purports to limit judicial review of the decision by the Control Board to issue an order, rule, or regulation. This provision is inapplicable to the present matter because the purported limitation is specific to the Control Board's FRMAA §207(d) order authority, which is not relevant here. Moreover, this provision has been quite narrowly construed. See Shook, 132 F-3)d at 778-79.