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June 11, 1973

Senator Harrison A. WILLIAMS, Jr., et al., Plaintiffs,
Howard J. PHILLIPS, Acting Director, Office of Economic Opportunity, Defendant

William B. Jones, District Judge.

The opinion of the court was delivered by: JONES

William B. Jones, District Judge.

This action is brought by four United States Senators to remove the defendant, Howard J. Phillips, from his position as Acting Director of the Office of Economic Opportunity [OEO] because he has not been appointed by the President, and confirmed by the Senate, as Director of OEO, as is required by 42 U.S.C. § 2941(a) (1970). The plaintiffs, Senators Harrison A. Williams, Jr., Claiborne Pell, Walter F. Mondale, and William D. Hathaway are all members of the Senate Labor and Public Welfare Committee, with Senator Williams serving as Chairman of that Committee, which has legislative jurisdiction over OEO. Jurisdiction is based on the federal question statute, 28 U.S.C. § 1331(a) (1970). The case is now before the Court on the plaintiffs' motion for summary judgment *fn1" and the defendant's motion to dismiss for failure to meet the jurisdictional amount of $10,000, for lack of standing, and for failure to state a claim upon which relief may be granted. For the reasons set forth below, the Court finds no merit to the jurisdictional defenses of the defendant, and holds that the defendant is not serving validly in office and enjoins him from taking any action as Acting Director of OEO.

 The defendant urges that the plaintiffs have failed to show that their complaint meets the jurisdictional amount of $10,000 required by 28 U.S.C. § 1331(a) (1970). In support of this argument the defendant contends that the injury alleged by the plaintiffs in their complaint, the denial of their opportunity to consider the defendant's qualifications for the position of Director of OEO (Complaint para. 10), is not measurable in dollars and cents and thus cannot meet the jurisdictional amount. McGaw v. Farrow, 472 F.2d 952 (4th Cir. 1973); Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir.), cert. denied, 400 U.S. 960, 91 S. Ct. 353, 27 L. Ed. 2d 270 (1970). The plaintiffs, however, do not disagree with the $10,000 requirement, but assert they have met the test.

 In cases in which purely injunctive relief is sought, the amount in controversy may be measured either by the value of the relief sought by the plaintiff or the cost of enforcing that right to the defendant. Tatum v. Laird, 144 U.S. App. D.C. 72, 444 F.2d 947 (1971), rev'd on other grounds, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972) (dictum); Hedberg v. State Farm Mutual Automobile Insurance Co., 350 F.2d 924 (8th Cir. 1965) (dictum). Although the Supreme Court has not spoken definitively on the issue, Flast v. Cohen, 392 U.S. 83, 103, 88 S. Ct. 1942, 1954, 20 L. Ed. 2d 947 (1968), in discussing standing, noted that "the challenged program involves a substantial expenditure of federal tax funds," without reference to the value of the plaintiff's claim. In this case, the plaintiffs challenge the legal right of the defendant to administer a program with an appropriation of over 790 million dollars for fiscal 1973. Pub. L. No. 92-607, ch. 4, 86 Stat. 1503. Under these circumstances, the plaintiffs are found to have met the $10,000 requirement. *fn2"

 The plaintiffs have brought this action in their capacity as United States Senators who are entitled to pass upon the qualifications of the Director of OEO in the confirmation process, both as members of the Labor and Public Welfare Committee and as members of the Senate as a whole (Complaint para. 10). The defendant challenges the standing of the plaintiffs to bring the action in that context because their interest as legislators in the subject matter of the controversy allegedly is not an injury in fact within the terms of Sierra Club v. Morton, 405 U.S. 727, 734-735, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). The Court holds that the plaintiffs have the requisite standing.

 Six days after this suit was filed the Court of Appeals for the District of Columbia decided Mitchell v. Laird, 476 F.2d 533 (1973). In affirming the dismissal by the District Court of a suit brought by 13 members of the House of Representatives to enjoin the war in Indo-China, the Court of Appeals decided that the plaintiffs did have standing to assert that claim. The Court held that assuming that the war was illegal, that declaration would bear upon the duties of the plaintiffs as members of the House to impeach the defendants as well as their duties to consider and act on appropriations bills, or other legislative matters, such as raising an army, or the enactment of other civil or criminal legislation. In this case, a declaration that the defendant is unlawfully serving in office would bear upon the plaintiffs' duties to consider appropriations for OEO, or other legislative matters affecting OEO or the position of OEO Director. Moreover, the service by the defendant as Acting Director of OEO, rather than Director, does not remove the direct injury to the plaintiffs' alleged right to pass on the individual nominated to be Director. The injury is aggravated, if anything, because the Acting Director is performing the duties of the Director without the advice and consent which the plaintiffs would have been able to assert over an individual whose name had been submitted to the Senate for confirmation. Having rejected these jurisdictional defenses, the Court now turns to the merits of the case.

 The Economic Opportunity Act of 1964, the substantive legislation creating OEO, requires that OEO "shall be headed by a Director who shall be appointed by the President, by and with the advice and consent of the Senate." 42 U.S.C. § 2941(a) (1970). In addition, the Deputy Director and five Assistant Directors are all to be appointed by the President with Senate confirmation. Id.

 It is undisputed that the defendant Phillips was appointed Acting Director of OEO on January 31, 1973, by the President. *fn3" On that same date, Phillip V. Sanchez, then OEO Director, in anticipation of the acceptance of his resignation, signed a delegation of his powers to the defendant pending the appointment of Sanchez's successor. *fn4" Phillips had been serving as an OEO Associate Director for Program Review, a post not subject to Senate confirmation. The defendant's name has not been submitted to the Senate for its advice and consent on an appointment as Director of OEO. *fn5" No provision is made anywhere in the Economic Opportunity Act of 1964, as amended, for the appointment of an Acting Director. From these undisputed facts it is urged that the defendant is illegally serving in office.

 Article II, section 2, of the United States Constitution, provides that the President


shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.


The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

 Thus, the plaintiffs argue, the Constitution dictates that all federal officers not otherwise provided for in the Constitution shall be nominated by the President and appointed with the advice and consent of the Senate except as the Congress may otherwise provide by law for that power in the President or others. The OEO director is an officer of the United States and the Congress has not provided specifically for the position to be filled in any manner other than the nomination and confirmation process described in Article II. The plaintiffs would, however, find the authority to fill the vacancy created by Sanchez's resignation in the general law dealing with the filling of vacancies in office by the President (the Vacancies Act of 1868, as amended, 5 U.S.C. §§ 3345-49 (1970)). *fn6" But the plaintiffs assert that because the terms of that Act limit the term of appointments under it to 30 days, 5 U.S.C. § 3348, the defendant Phillips has been serving unlawfully in office since March 3, 1973, 30 days after his January 31, 1973, appointment as Acting Director.

 The defendant counters with two different arguments: first, that the President has the constitutional power to appoint officers of the United States without Senate confirmation deriving from his obligation under Article II, section 3, to "take Care that the Laws be faithfully executed;" and, second, that the Vacancies Act is inapplicable on its face to the Director of OEO and thus was not required to be followed, as it was not, in this case. Because the main thrust of the defendant's argument has gone to the inapplicability of the Vacancies Act, that argument will be treated first.

 The basic argument is that because the Vacancies Act on its face is applicable only to Executive and military departments, the office of Director of OEO is not subject to its strictures because OEO is not an Executive or military department as those terms are defined in 5 U.S.C. §§ 101 and 102 (1970). *fn7" Certainly it is true that OEO is not an Executive or military department as those terms are defined. OEO is what section 104 of title 5 defines as an independent establishment -- one in the Executive branch other than, with enumerated exceptions, an Executive or military department. But the facial inapplicability of the Vacancies Act to the appointment in question does not establish the legality of the appointment. The question remains, by what authority does the defendant serve in office if he was not appointed pursuant to the Vacancies Act.

 The constitutional provision governing the appointment of federal officials is clear in its mandate. Unless Congress has vested the power of appointment of an officer in the President, the Courts, or a Department head, he may be appointed only with the advice and consent of the Senate, unless that body is in recess. Although no clear case interpreting this provision has arisen, there are several sources which favor that interpretation.

 In Ex parte Siebold, 100 U.S. 371, 25 L. Ed. 717 (1880), the Court upheld the validity of an Act of Congress authorizing the appointment of supervisors of elections by circuit courts of the United States notwithstanding the claim that the duties of the supervisors were executive in character. The Court recognized that under Article II, section 2, of the Constitution, Congress had the power to vest by law the appointment of inferior officers of the federal government in the President alone, in the Courts, or in the heads of Departments. And it declared, with respect to the appointment of the supervisors, that "as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress." Id. at 397-398. See also United States v. Eaton, 169 U.S. 331, 343, 18 S. Ct. 374, 42 L. Ed. 767 (1898).

 Two opinions of the Attorney General contain similar language indicating that the President must obtain the advice and consent of the Senate on all appointments of officers of the United States *fn8" whose appointments have not been otherwise vested by Congress in the President, the Courts, or a Department head. In early 1885 a question arose as to whether the President or the Secretary of the Treasury had the power to appoint the assistant collector at the port of New York. Congress had provided previously that the office be filled by the Secretary. In the revision of the statutes, however, the provision was omitted and thus repealed, so that the office of assistant collector remained but without any statutory provision on the manner in which it was to be filled. The Attorney General advised the President that in the absence of any statutory provision, the power of appointment lay in the President with the advice and consent of the Senate as set forth in Article II, section 2, of the Constitution. 18 Op. Att'y Gen. 98 (1885).

 Similarly, in 1886 the question was who should appoint the chief examiner of the Civil Service Commission. The act creating the position did not specify who had that power. The Attorney General reasoned that because the chief examiner of the commission would be an officer of the United States established by law, the power to fill the position would rest in the President subject to Senate confirmation. 18 Op. Att'y Gen. 409 (1886).

 Ex parte Siebold, supra, and the opinions of the Attorney General give strong indication that in the absence or repeal of a statute vesting an appointment outside the nomination and confirmation process, that process is the exclusive means for appointing federal officers.

 The defendant, however, would answer the question of by what authority he does serve in office by finding in the President a direct constitutional power to appoint officers temporarily without restriction to Executive branch positions outside the Executive and military departments. This argument is premised on the words of Article II, section 3, of the Constitution, which obligate the President to "take Care that the Laws be faithfully executed." In support of that proposition two opinions of the Attorney General are cited. Neither supports the finding of such a temporary appointive power.

 The first opinion, 6 Op. Att'y Gen. 357 (1854), concerned the appointment of Navy pursers in the "distant service." Two acts of Congress created a new requirement that all Navy pursers be appointed by the President by and with the advice and consent of the Senate except those in the emergency circumstance of "distant service." The Attorney General concluded that these two acts gave the President the power to issue regulations concerning such appointments in the "distant service," independently of the power to issue regulations for the Navy granted the President by a third act. He did not conclude, as the defendant asserts, that the President has the inherent authority to make temporary appointments to all positions requiring nomination and confirmation.

 The second opinion of the Attorney General cited by the defendant, 25 Op. Att'y Gen. 258 (1904), dealt with the power of the President to fill vacancies temporarily while the Senate was not in session by assigning one officer to perform the duties of another. The opinion concluded that the President had both the constitutional power and the statutory authority temporarily to fill a vacancy occurring during a Senate recess. The opinion was not directed to the appointment during a Senate session, as here, of one who was not an officer to hold the position and, as in the previous opinion, was addressed to an emergency situation.

 Whatever the merits of the argument finding an interim appointment power in the President may be, it is clear from the defendant's own citation of authority that that power, if it exists at all, exists only in emergency situations. No claim has been made that the appointment of Phillips was necessitated by any emergency situation and the Court finds that there was none, and thus expresses no view on the existence or scope of such a power.

 Several constitutional problems are presented by a temporary appointive power of the President as interpreted by the defendant. If the President has an inherent (or more properly, derivative) power to make temporary appointments of federal officers under his obligation to faithfully execute the laws, then the Vacancies Act would be unconstitutional. If the President has a constitutional power to make temporary appointments, then Congress cannot limit the exercise of that power as it has through the Act. But the defendant himself claims the power to temporary appointment only for those officers not covered by the Vacancies Act. For this Court to hold that the President has the constitutional authority to appoint temporary officers only if they are not covered by the Vacancies Act or similar legislation, see infra, would place a strange construction indeed on a constitutional power.

 Moreover, a Presidential power to appoint officers temporarily in the face of statutes requiring their appointment to be confirmed by the Senate, such as is required for the OEO director by 42 U.S.C. § 2941(a)(1970), *fn9" would avoid the nomination and confirmation process of officers in its entirety. Constitutional provisions cannot be given such an interpretation.

 The plaintiffs urge that the Vacancies Act be held to apply to all Executive agency temporary appointments, as was the original Congressional intent. *fn10" This construction would avoid a potential constitutional conflict between the requirement that all officers be nominated by the President and confirmed by the Senate in the absence of contrary legislation, and the possible emergency power of the President to make temporary appointments argued for by the defendant. The position urged by the plaintiffs is unsound. *fn11"

 The codification of title 5 of the United States Code in 1966, Pub. L. No. 89-554, 80 Stat. 378, which contains the Vacancies Act, was enacted into law two years after the passage of the Economic Opportunity Act of 1964, Pub. L. No. 88-452, 78 Stat. 519. The definition in 5 U.S.C. § 101, note 7, supra, of Executive department as used in the Vacancies Act did not include OEO. The Congress has amended section 101 twice since the codification and has not included OEO on either occasion. *fn12" Thus it cannot be assumed that Congress failed to include OEO in the terms of the Vacancies Act by mere oversight, and that Congress intends that the Act cover the OEO Director. The more reasonable interpretation is that Congress intended to foreclose the possibility of the Executive making a temporary appointment of the OEO Director.

 Congress has shown through legislation other than the Vacancies Act that it knows how to provide for an acting administrator of Executive agencies not contained within the Executive departments. The Administrator of Veterans' Affairs, the head of the Veterans' Administration, is nominated by the President and confirmed by the Senate. 38 U.S.C. § 210(a) (1970). Section 210(d) of that title provides for the appointment of a Deputy Administrator by the Administrator, and further that:


The Deputy Administrator shall perform such functions as the Administrator shall delegate and, unless the President shall designate another officer of the Government, shall be Acting Administrator of Veterans' Affairs during the absence or disability of the Administrator or in the event of a vacancy in the Office of Administrator.

 Section 210(d) was added by Pub. L. No. 89-361, 80 Stat. 29, only six months prior to the codification of the Vacancies Act in title 5.

 The Comptroller General, the head of the General Accounting Office, and the Deputy Comptroller General, are appointed by the President by and with the advice and consent of the Senate. 31 U.S.C. § 42 (Supp. I, 1971). In the event of the absence or incapacity of the Comptroller General, or during a vacancy in that office, the Deputy Comptroller General shall act as Comptroller General. Id. In addition to this method of temporarily filling vacancies, the Congress has provided in 31 U.S.C. § 43a (1970) that:


The Comptroller General shall designate an employee of the General Accounting Office to act as Comptroller General during the absence or incapacity of the Comptroller General and the Assistant Comptroller General [now called the Deputy Comptroller], or during a vacancy in both of such offices.

 In these statutes the Congress has provided a detailed ordering of authority in the event of a vacancy, and thus must it be presumed to know how to provide for that contingency outside the Vacancies Act. *fn13" The defendant contends in his post argument memorandum that these statutes are a Congressional recognition of the President's inherent temporary power of appointment. But Article II, section 2, supra, clearly vests all appointments in the President subject to the advice and consent of the Senate, unless the Congress vests that power elsewhere by law. The vacancies statutes cited are clear examples of the vesting by the Congress of an appointive power in the President or Department head alone that would not otherwise exist. Congress has merely exercised the power conferred upon it by the Constitution.

 Thus the failure of the Congress to provide legislation for an acting director must be regarded as intentional. The Court holds that in the absence of such legislation or legislation vesting a temporary power of appointment in the President, the constitutional process of nomination and confirmation must be followed. *fn14" Therefore, the Court finds that the defendant Phillips was not appointed lawfully to his post as Acting Director of OEO. An injunction will issue to restrain him from taking any actions as Acting Director of OEO.

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