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NATIONAL ASSN. OF INTERNAL REVENUE EMPLES. v. NIXO

October 3, 1972

NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, Plaintiff,
v.
Richard M. NIXON, Individually and as President of the United States, Defendant


Richey, District Judge.


The opinion of the court was delivered by: RICHEY

RICHEY, District Judge.

 I. Introduction

 This cause came to be heard on September 29, 1972 on the plaintiff's Motion for a Preliminary Injunction which was made pursuant to a Complaint for Declaratory Judgment and Injunctive Relief seeking (1) a declaration that Section 3 of the 1971 Amendments to the Economic Stabilization Act of 1970 (hereinafter "ESA") does not supersede the Federal Pay Comparability Act of 1970 (hereinafter "FPCA") so as to excuse the President from the requirement under the latter Act that he either implement a comparability pay adjustment for federal employees effective October 1, 1972, or have submitted to Congress by September 1, 1972 an alternative plan which would have been subject to the legislature's right of review; (2) an order requiring the President to adjust the rate of pay of each statutory system affecting federal employees in accordance with the principles of comparability set forth in Section 5301(a), FPCA, effective the beginning of the first applicable pay period commencing on or after October 1, 1972; (3) an injunction preventing the President or his agents from taking any action which would apply Section 3 of the Amendments to the ESA in a manner which would supersede or limit the application of the FPCA.

 II. Facts

 The Act further provides that if, because of economic conditions affecting the general welfare, the President should in any year consider it inappropriate to make the pay adjustments required by other portions of the Act, he shall transmit to Congress before September 1 of that year an alternative plan with respect to a pay adjustment as he considers appropriate, in lieu of the scheduled pay adjustments. Either House may then adopt a resolution disapproving the alternative plan so submitted, in which case the pay adjustments for the statutory pay systems shall be made effective in accordance with the provisions of the Act. 5 U.S.C. § 5305(c)(1), (2).

 In December 1971, Congress enacted amendments to the Economic Stabilization Act. (Pub.Law 92-210, 85 Stat. 743). Section 3 of these Amendments provides that notwithstanding any provision of section 5305 of Title 5, U.S.C., such comparability adjustments in the rates of pay of each statutory pay system as may be required under section 5305 shall not be greater than the guidelines established for wage adjustments for the private sector that may be authorized under authority of any statute of the United States, including the Economic Stabilization Act of 1970 (Pub.Law 91-379, 84 Stat. 799).

 On August 31, 1972, President Nixon, relying on section 3 of the Amendments, denied his obligation to order an October 1 pay increase, and submitted no alternative plan to Congress. In his message to Congress, the President stated that the pay raise required by section 3 of the Amendments to the ESA was limited to the guideline that the Pay Board had established for pay increases throughout the economy. That guideline is 5.5 per cent a year. The President stated that since federal employees have received a 5.5 per cent increase in January 1972, they were not entitled to another increase this year. He further reasoned that the ESA Amendments precluded him from submitting an alternative plan under the FPCA.

 III. Issues and Contentions

 a. The plaintiffs argue generally that the ESA Amendments of 1971 do not supersede the federal pay adjustments provided for under the FPCA. They claim that the ESA Amendments merely place a limitation on the amount of the January, 1972, increase, but do not change the scheduled October 1, 1972, pay adjustments or otherwise limit the operation of the FPCA. They urge that this Court has jurisdiction to compel the President to act because his failure to do so did not involve any exercise of his discretion, but rather constituted a simple failure to perform a ministerial duty. As such the mandamus provision of 28 U.S.C. § 1361 is said to apply.

 b. The Government contends that plaintiffs have not met the requirements for obtaining a preliminary injunction. It further urges that the doctrine of separation-of-powers precludes jurisdiction in this Court over the President of the United States either officially or personally for his acts in the performance of his duties as Chief Executive of the United States.

 Initially, the Court notes that despite the plaintiff's lengthy citation of the legislative history surrounding the 1971 Amendments to the ESA, section 3, on its face, indicates that the Amendments are intended to supersede the FPCA in that Federal employee compensation shall not be greater than the guidelines established for wage and salary adjustments for the private sector. *fn1" As such, the plain meaning of the Amendments cannot be affected by resort to their legislative history. See Ex parte Collett, Ill. & Ky., 337 U.S. 55, 69 S. Ct. 944, 93 L. Ed. ...


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