199 F.3d 507 (D.C. Cir. 2000)
National Center for Manufacturing Sciences, Appellantv.Department of Defense, et al.,Appellees
No. 98-5576
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 1999Decided January 4, 2000

Appeal from the United States District Court for the District of Columbia(No. 95cv01817)
Stanley Yorsz argued the cause for appellant.  With him on  the briefs were Jeffrey J. Bresch and Attison L. Barnes, III.
Lisa Goldfluss, Assistant U.S. Attorney, argued the cause  for appellees. With her on the briefs were Wilma A. Lewis,  U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before:  Sentelle, Rogers and Tatel, Circuit Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
Plaintiff-appellant National Center 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, Department 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.  Because we conclude that Congress rescinded the earmark in  section 1006 of the National Defense Authorization Act for  Fiscal Year 1995, we affirm the district court's dismissal of  the action.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

2
NCMS is a non-profit research and development manufacturing 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.


3
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 earmark 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").  Later that month, Congress passed the National Defense Authorization 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.


4
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.


5
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 here:


6
SEC. 1006.  AUTHORITY FOR OBLIGATION OFCERTAIN UNAUTHORIZED FISCAL YEAR 1994DEFENSE APPROPRIATIONS.


7
(a) AUTHORITY.--The amounts described in subsection(b) may be obligated and expended for programs, pro-jects, and activities of the Department of Defense inaccordance with fiscal year 1994 defense appropriationsexcept as otherwise provided in subsections (c) and (d).


8
(b) COVERED AMOUNTS.--The amounts referred toin subsection (a) are the amounts provided for programs,projects, and activities of the Department of Defense infiscal year 1994 defense appropriations that are in excessof the amounts provided for such programs, projects, andactivities in fiscal year 1994 defense authorizations.


9
(c) PROGRAMS NOT AVAILABLE FOR OBLI-GATION.--Amounts described in subsection (b) whichremain available for obligation on the date of the enact-ment of this Act may not be obligated or expended forthe following programs, projects, and activities of theDepartment of Defense (for which amounts were provid-ed in fiscal year 1994 defense appropriations):  [programsunrelated to NCMS]


10
(d) MANUFACTURING TECHNOLOGY.--The Secre-tary of Defense may obligate fiscal year 1994 defenseappropriations under the Manufacturing Technology De-velopment program which remain available for obligationon the date of the enactment of this Act in accordancewith the competition and cost-sharing requirements ofsubsection (d) of section 2525 of title 10, United StatesCode, as amended by section 256 of this Act, notwith-standing any other provision of law that specifies (or hasthe effect of requiring) that a contract be entered intowith, or a grant be made to, a particular institution orentity.


11
(e) DEFINITIONS.--For the purposes of this section:


12
(1) FISCAL YEAR 1994 DEFENSE APPROPRIA-TIONS.--The term "fiscal year 1994 defense appropria-tions" means amounts appropriated or otherwise madeavailable to the Department of Defense for fiscal year1994 in the Department of Defense Appropriations Act,1994 (Public Law 103-139).


13
(2) FISCAL YEAR 1994 DEFENSE AUTHORIZA-TIONS.--The term "fiscal year 1994 defense authoriza-tions" means amounts authorized to be appropriated forthe Department of Defense for fiscal year 1994 in theNational Defense Authorization Act for Fiscal Year 1994(Public Law 103-160).


14
108 Stat. at 2835-36.


15
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. § 1361 (1994), the Declaratory Judgment Act, 28  U.S.C. § 2201 (1994), the Administrative Procedure Act, 5  U.S.C. §§ 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 granted 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 National Ctr. for Mfg. Sciences v. United States, 114 F.3d 196  (Fed. Cir. 1997).


16
Upon return of the case to the district court, the district  court initially denied appellees' motion to dismiss.  On reconsideration, 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).


17
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 briefing 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 "insuperable" difficulty and ensure that we had the power to remedy  appellees' alleged wrong, we requested the additional briefing.  13A Charles Alan Wright, et al., Federal Practice and  Procedure § 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 account available to liquidate NCMS's claim.

II. Discussion

18
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. § 114(a)(2)  (1994).  Authorization acts limit the amount of funds Congress 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. § 114, it is  clear that any monies appropriated for NCMS by Congress  for research must be authorized before they can be appropriated 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.


19
Section 1006(d) states that 1994 defense appropriations in  NCMS's research province "which remain available for obligation" 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.


20
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 unreleased $15 million.  It also argues that funds are "available  for obligation" when they are appropriated.  This is generally  true because authorization acts generally precede appropriations acts, and not all appropriations require matching authorizations.  But funds which must be authorized by statute and  are not so authorized cannot be "available for obligation."Because 10 U.S.C. § 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 requirement.  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 previously unauthorized funds.


21
Other subsections, and indeed the title of section 1006,  refer to unauthorized funds, but none of those various subsections alter the effect of subsection (d).  A brief review of the  sections makes this clear.


22
Subsection (a) provides "AUTHORITY" to "obligate[ ]"  certain funds as long as subsection (c) and (d) do not provide  otherwise.  This subsection was necessary because authorization for defense spending is required by statute.  Conferring  the required authority by stating the funds "may be obligated," subsection (a) demonstrates that funds "available for  obligation" in section 1006 are authorized.


23
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 Act.


24
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).


25
Subsection (d) operates on its own.  It refers to appropriations 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).


26
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).


27
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.


28
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.  § 2525, "notwithstanding" the provision of the 1994 Appropriations 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  granted.

III. Reconsideration Issue

29
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.


30
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.


31
True, a district court should not grant a motion for reconsideration 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

32
We conclude that the district court correctly granted appellees' motion to dismiss for failure to state a claim.  We hold  that subsection 1006(d) of the 1995 Authorization Act rescinded the unreleased portion of NCMS's funding earmark for  fiscal year 1994.  Accordingly, NCMS has no legal entitlement to the funds claimed.  The district court's judgment is


33
Affirmed.

