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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

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

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 ...

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