UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NATL CENTER FOR MFG

v.

DOD


98-5576a

D.C. Cir. 2000


*	*	*


Sentelle, Circuit Judge: Plaintiff-appellant National Cen- ter for
Manufacturing Sciences ("NCMS") appeals from a judgment of the
district court dismissing its complaint for failure to state a claim.
NCMS claims that appellees, De- partment of Defense ("DOD") and
Department of the Air Force ("Air Force") (along with various
officials), improperly held back approximately $15 million of funds
authorized and appropriated by Congress and earmarked for NCMS. Be-
cause we conclude that Congress rescinded the earmark in section 1006
of the National Defense Authorization Act for Fiscal Year 1995, we
affirm the district court's dismissal of the action. 


I. Background 


NCMS is a non-profit research and development manufac- turing
consortium that receives funding, in part, through congressional
appropriations earmarks. This dispute centers on whether NCMS is
entitled to approximately $15 million of an original $40 million
earmark appropriated for fiscal year 1994. 


On November 11, 1993, Congress appropriated $12,314,362,000 under the
heading "Research, Development, Test and Evaluation, Air Force," which
was "to remain available for obligation until September 30, 1995." One
ear- mark provision stated: "Provided further, That not less than
$40,000,000 of the funds appropriated in this paragraph shall be made
available only for [NCMS]...." Department of Defense Appropriations
Act, 1994, Pub L. No. 103-139, 107 Stat. 1418, 1431-33 (1993) ("1994
Appropriations Act"). La- ter that month, Congress passed the National
Defense Autho- rization Act for Fiscal Year 1994 ("1994 Authorization
Act"), Pub. L. No. 103-160, 107 Stat. 1547 (1993). Section 201 of this
act authorized $12,289,211,000 for the Air Force-- 


$25,151,000 short of the amount appropriated. 107 Stat. at 1583. The
Air Force and NCMS entered into a Cooperative Agreement on September
19, 1994, whereupon the Air Force released $24,125,000 of the 1994
funds. The remaining $15,875,000 of the original $40 million was not
released, although the agreement said a release could occur if funds
were made available for allotment. On October 5, 1994, Congress passed
the National Defense Authorization Act for Fiscal Year 1995 ("1995
Authorization Act"), Pub. L. No. 103-337, 108 Stat. 2663 (1994).
Section 1006, in particular subsection 1006(d), refers to the status
of 1994 defense appropriations. We set forth the text of the section


SEC. 1006. AUTHORITY FOR OBLIGATION OF CERTAIN UNAUTHORIZED FISCAL YEAR
1994 DEFENSE APPROPRIATIONS. 


(a) AUTHORITY.--The amounts described in subsection (b) may be
obligated and expended for programs, pro- jects, and activities of the
Department of Defense in accordance with fiscal year 1994 defense
appropriations except as otherwise provided in subsections (c) and


(b) COVERED AMOUNTS.--The amounts referred to in subsection (a) are the
amounts provided for programs, projects, and activities of the
Department of Defense in fiscal year 1994 defense appropriations that
are in excess of the amounts provided for such programs, projects, and
activities in fiscal year 1994 defense authorizations. 


(c) PROGRAMS NOT AVAILABLE FOR OBLI- GATION.--Amounts described in
subsection (b) which remain available for obligation on the date of
the enact- ment of this Act may not be obligated or expended for the
following programs, projects, and activities of the Department of
Defense (for which amounts were provid- ed in fiscal year 1994 defense
appropriations): [programs unrelated to NCMS] 


(d) MANUFACTURING TECHNOLOGY.--The Secre- tary of Defense may obligate
fiscal year 1994 defense appropriations under the Manufacturing
Technology De- velopment program which remain available for obligation
on the date of the enactment of this Act in accordance with the
competition and cost-sharing requirements of subsection (d) of section
2525 of title 10, United States Code, as amended by section 256 of
this Act, notwith- standing any other provision of law that specifies
(or has the effect of requiring) that a contract be entered into with,
or a grant be made to, a particular institution or entity. 


(e) DEFINITIONS.--For the purposes of this section: 


(1) FISCAL YEAR 1994 DEFENSE APPROPRIA- TIONS.--The term "fiscal year
1994 defense appropria- tions" means amounts appropriated or otherwise
made available to the Department of Defense for fiscal year    1994 in
the Department of Defense Appropriations Act,    1994 (Public Law
103-139). 


(2) FISCAL YEAR 1994 DEFENSE AUTHORIZA- TIONS.--The term "fiscal year
1994 defense authoriza- tions" means amounts authorized to be
appropriated for the Department of Defense for fiscal year 1994 in the
National Defense Authorization Act for Fiscal Year 1994 (Public Law
103-160). 


108 Stat. at 2835-36. 


A few weeks prior to the passage of the 1995 Authorization Act, NCMS
filed suit in the district court seeking the unpaid $15 million. The
complaint invoked the mandamus statute, 28 U.S.C. s 1361 (1994), the
Declaratory Judgment Act, 28 U.S.C. s 2201 (1994), the Administrative
Procedure Act, 5 U.S.C. ss 701-06 (1994), and requested specific
performance of the Cooperative Agreement. After preliminary injunctive
relief was denied, the Air Force filed a motion to dismiss, or in the
alternative, to transfer the claim to the Court of Federal Claims as a
contract action against the government under the Cooperative
Agreement. The district court grant- ed the transfer motion. NCMS
appealed to the Federal Circuit, who reversed and remanded to the
district court, holding that the action was not a contract action. See
Na- tional Ctr. for Mfg. Sciences v. United States, 114 F.3d 196 (Fed.


Upon return of the case to the district court, the district court
initially denied appellees' motion to dismiss. On recon- sideration,
however, the court granted the motion to dismiss in December of 1998.
Noting that the parties agreed that the $40 million had been both
authorized and appropriated, the court held that subsection 1006(d) of
the 1995 Authorization Act rescinded the unobligated $15 million. NCMS
appeals the dismissal, which we review de novo. See, e.g., Moore v.
Valder, 65 F.3d 189, 192 (D.C. Cir. 1995). 


Upon initial review of the record, it was unclear whether the Air Force
had retained funds with which NCMS's claim could be satisfied. We
therefore ordered supplemental brief- ing prior to oral argument on
the issue of mootness in light of City of Houston v. Department of
Hous. and Urban Dev., 24 F.3d 1421 (D.C. Cir. 1994). City of Houston
makes clear that once an appropriation lapses or the relevant funds
have been obligated, "a court cannot reach them in order to award
relief." Id. at 1426. Taking care to avoid such an "insupera- ble"
difficulty and ensure that we had the power to remedy appellees'
alleged wrong, we requested the additional brief- ing. 13A Charles
Alan Wright, et al., Federal Practice and Procedure s 3533.3 (2d ed.
1984). We find that the case is not moot. Appellees' brief clarifies
that while the specific funds referred to by subsection 1006(d) were
reallocated, there are sufficient remaining funds in the fiscal year
1994 Research, Development, Test, and Evaluation, Air Force ac- count
available to liquidate NCMS's claim. 


II. Discussion 


Section 114 of 10 U.S.C. states, in relevant part, that "[n]o funds may
be appropriated for any fiscal year to or for the use of any armed
force or obligated or expended for ... any research, development,
test, or evaluation, or procurement or production related thereto ...
unless funds therefor have been specifically authorized by law." 10
U.S.C. s 114(a)(2) (1994). Authorization acts limit the amount of
funds Con- gress can appropriate for a given purpose. See Office of
Management and Budget, The Budget System and Concepts 2- 


3 (1997). Because of the existence of 10 U.S.C. s 114, it is clear that
any monies appropriated for NCMS by Congress for research must be
authorized before they can be appropri- ated and distributed. The
parties agree that NCMS's $40 million earmark was both appropriated
and authorized. They dispute whether section 1006 rescinded the unpaid
portion of that earmark. We hold that it does. 


Section 1006(d) states that 1994 defense appropriations in NCMS's
research province "which remain available for obli- gation" may be
obligated by competition notwithstanding any specific grants
otherwise. The $15 million of unreleased funds, which was "available
for obligation" because it was already authorized, was thus freed from
its earmark status by this provision. Therefore, NCMS no longer has
any rights to the funds on which its claim is based. 


Attempting to avoid this result, NCMS claims that section 1006 only
applies to previously unauthorized funds (i.e., the $25 million
shortfall between the 1994 Authorization Act and 1994 Appropriation
Act) and thus had no effect on the unre- leased $15 million. It also
argues that funds are "available for obligation" when they are
appropriated. This is generally true because authorization acts
generally precede appropria- tions acts, and not all appropriations
require matching autho- rizations. But funds which must be authorized
by statute and are not so authorized cannot be "available for
obligation." Because 10 U.S.C. s 114(a)(2) requires authorization of
these funds before they become available, appropriation alone is
insufficient. Section 1006 itself is an authorization section which
would be unnecessary but for the authorization require- ment.
Therefore, the term "available for obligation" in the context of
section 1006 refers to funds that are authorized. Nothing limits the
operation of subsection 1006(d) to previ- ously unauthorized funds. 


Other subsections, and indeed the title of section 1006, refer to
unauthorized funds, but none of those various subsec- tions alter the
effect of subsection (d). A brief review of the sections makes this
clear. 


Subsection (a) provides "AUTHORITY" to "obligate[ ]" certain funds as
long as subsection (c) and (d) do not provide otherwise. This
subsection was necessary because authoriza- tion for defense spending
is required by statute. Conferring the required authority by stating
the funds "may be obligat- ed," subsection (a) demonstrates that funds
"available for obligation" in section 1006 are authorized. 


Subsection (b) describes which funds are authorized by subsection (a).
The language describes the funds that made up the $25 million
shortfall between the 1994 Authorization Act and 1994 Appropriations


Subsection (c) acts to limit the authority conferred by subsection (a).
It requires that the newly authorized funds "may not be obligated or
expended" on certain enumerated programs. Note that subsection (c), by
its terms, applies only to funds defined in subsection (b). 


Subsection (d) operates on its own. It refers to appropria- tions which
remain available for obligation, and it is not limited only to funds
authorized via subsection (a). While subsection (c) limits its
operation to amounts available for obligation under subsection (b),
subsection (d) contains no such limitation. It applies to all funds
and not only those freed up by subsection (a). 


Although subsection (b) refers to previously unauthorized funds, and
subsection (a) refers to what they can be spent on, neither of these
subsections modify subsection (d). NCMS argues that the mention of
subsection (d) in subsection (a) limits the application of subsection
(d) to only unauthorized funds. This has it backwards. Instead,
subsection (d) is limiting the operation of subsection (a). 


Perhaps the matter would have been clearer if Congress had enacted
subsection (d) as a freestanding section, but its placement is not
illogical. Instead of repeating the language of subsection (d) in
subsection (a), it was rational to merely reference subsection (d) and
retain it within section 1006. Further, the title of section 1006,
which suggests that the entire section addresses only previously
unauthorized funds, 


is also no impediment. The plain meaning of a statute cannot be limited
by its title, see Pennsylvania Dep't of Corrections v. Yeskey, 118 S.
Ct. 1952, 1956 (1998), and provisions in a statute do not always align
with its title, see Hadden v. The Collector, 72 U.S. (5 Wall.) 107,
110 (1866). There is no reason to cloud the plain meaning of
subsection (d) because of its placement in section 1006. 


Therefore, we hold that the operation of subsection 1006(d) is not
limited to funds authorized by subsection 1006(a). Subsection (d)
allowed the funds that NCMS seeks to be obligated pursuant to the
competition provisions of 10 U.S.C. s 2525, "notwithstanding" the
provision of the 1994 Appropri- ations Act that "specifie[d]" that "a
grant be made to" NCMS. Because NCMS no longer has a legal right to
the funds it seeks, it cannot state a claim upon which relief can be


III. Reconsideration Issue 


Appellant raises additional issues which are without merit. While there
is no need to comment on the majority of these arguments, we shall
devote a small amount of time to one of them. 


Appellant claims that the district court improperly granted appellees'
motion for reconsideration of the motion to dismiss because, in its
view, no clear errors of law existed in the initial ruling. It thus
contends that the district court could not reverse itself. Not only is
appellant's argument incorrect, it is pointless. 


True, a district court should not grant a motion for recon- sideration
unless the moving party shows new facts or clear errors of law which
compel the court to change its prior position. See, e.g., Moro v.
Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996); Assassination
Archives & Research Ctr. v. CIA, 48 F. Supp. 2d. 1, 13 (D.D.C. 1999).
But here the motion was correctly granted based upon on what the court
found to be clear errors of law. Even if the district court's finding
that clear errors of law existed were incorrect, there is nothing to
be gained by appealing that specific holding 


because an appeal of the underlying merits issue will dispose of the
question. If we had held that the district court erred in its
interpretation of section 1006, we would have reversed the ruling on
the motion to dismiss. It is a waste of time to go further and argue
that the district court also should not have granted the motion for
reconsideration. Because of the merger of the issues, our job is done.


IV. Conclusion 


We conclude that the district court correctly granted appel- lees'
motion to dismiss for failure to state a claim. We hold that
subsection 1006(d) of the 1995 Authorization Act rescind- ed the
unreleased portion of NCMS's funding earmark for fiscal year 1994.
Accordingly, NCMS has no legal entitle- ment to the funds claimed. The
district court's judgment is 


Affirmed.