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KENNEDY v. SAMPSON

August 15, 1973

Edward M. KENNEDY, Plaintiff,
v.
Arthur F. SAMPSON et al., Defendants


Waddy, District Judge.


The opinion of the court was delivered by: WADDY

WADDY, District Judge.

 This case is before the Court on defendants' motion to dismiss or in the alternative for summary judgment, and plaintiff's cross-motion for summary judgment. The case presents a question concerning the veto powers of the President of the United States under Article 1, Section 7 of the Constitution of the United States, specifically that portion involving what is known as the Pocket Veto.

 In this action plaintiff seeks a declaratory judgment declaring that the Family Practice of Medicine Act, S. 3418, 91st Cong., 2d Sess., (hereinafter S. 3418), became a validly enacted law of the United States on December 25, 1970, without the signature of the President, in accord with Article I, Section 7, Clause 2 of the Constitution. He also seeks the issuance of an order in the nature of mandamus or a permanent injunction requiring the defendants, the Acting Administrator of the General Services Administration, and Chief of White House Records, respectively, to publish S. 3418 as a validly enacted law of the United States, "in accord with their ministerial, non-discretionary duties under 1 U.S.C. 106a, 1 U.S.C. 112 and 1 U.S.C. 113."

 The following material facts are not disputed:

 1. Plaintiff is a taxpaying citizen of the United States, the Senior Senator from the Commonwealth of Massachusetts and the Chairman of the Subcommittee on Health of the Committee on Labor and Public Welfare of the United States Senate.

 2. On December 14, 1970, S. 3418 was presented to the President of the United States for his consideration. The legislation had been approved by the Senate, in which it had originated, by a vote of 64-1 and by the House of Representatives by a vote of 346-2. The Bill authorized the Congress to appropriate 225 million dollars for the fiscal years, 1971, 1972 and 1973 for grants to public and private non-profit hospital and medical schools to assist them in establishing special departments and programs in the field of family practice of medicine, and otherwise to encourage and promote the training of medical and paramedical personnel in the field of family medicine.

 3. Plaintiff was among the Senators voting in favor of the Bill.

 4. On December 22, 1970 the Senate and the House of Representatives adjourned for the Christmas Holidays. The Senate was in adjournment until December 28, 1970, and the House until December 29, 1970. The adjournments were consented to by the Senate and the House of Representatives. *fn1" During the recess of the Senate, the Secretary of the Senate was authorized by unanimous vote of the Senate to receive messages from the President of the United States and the House of Representatives and the President pro tempore or Acting President pro tempore was authorized to sign duly enrolled bills. *fn2"

 5. On Thursday, December 24, 1970, while both Houses of Congress were in the aforementioned adjournment the President of the United States issued a Memorandum of Disapproval, announcing that he was withholding his approval from S. 3418.

 6. Under the provisions of 1 U.S.C. § 106a, 1 U.S.C. § 112 and 1 U.S.C. § 113, it is the duty of the Administrator of the General Services Administration of the United States to receive bills that have become laws of the United States and to publish them in slip form and in the United States Statutes at Large.

 8. S. 3418 was not transmitted by the President or the Chief of White House Records to the Administrator of General Services Administration and it has not been published in slip form or in the Statutes at Large as a law of the United States.

 9. On December 15, 1971, by Pub.L.No. 92-184, Congress appropriated $100,000 to carry out the program set forth in S. 3418 for the fiscal year 1972. *fn3"

 10. Plaintiff is not within the class intended to be benefited by the Bill.

 With regards to the merits of the case, the question before this Court is whether the President's exercise of the Pocket Veto in this case was constitutionally valid, or, in other words, did S. 3418 become law without the signature of the President. Before reaching the merits, however, the Court must consider several preliminary issues raised by the defendants in their motion to dismiss and/or for summary judgment. They contend that the plaintiff lacks standing to maintain this action; that the President is an indispensable party who cannot be sued; that the issue before the Court does not present a substantial case or controversy because it is (1) a non-justiciable political question, and (2) the complaint seeks an advisory opinion.

 The Court holds that each of defendants' contentions is without merit.

 STANDING

 In Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968) the Supreme Court of the United States stated:

 
"The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. Baker v. Carr, 369 U.S. 186, 204 [82 S. Ct. 691, 703, 7 L. Ed. 2d 663] (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." 392 U.S. at 99, 88 S. Ct. at 1952.

 In Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970), the Supreme Court formulated a dual test for determining standing to sue. This test requires, first, that plaintiff allege that the challenged acts have caused him "injury in fact, economic or otherwise," 397 U.S. at 152, 90 S. Ct. at 829 and second, that "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." 397 U.S. at 153, 90 S. Ct. at 830. Or, as the Supreme Court stated in Flast, supra, a "logical nexus between the status asserted and the claim sought to be adjudicated." 392 U.S. at 102, 88 S. Ct. at 1953. This test for the determination of standing was re-affirmed by the Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972).

 When the above-mentioned test is applied to this action it becomes clear that this plaintiff has the requisite standing to sue. The precise injury of which he claims is that the President's exercise of the Pocket Veto to disapprove S. 3418 was an unconstitutional act that rendered plaintiff's vote in the Senate for the bill ineffective and deprived him of his constitutional right to vote to override the Presidential Veto in an effort to have the bill passed without the President's signature. This claim of nullification of his vote for the bill and deprivation of his right to vote to override the veto and thus inhibiting him in the performance of his Senatorial duties, is a clear allegation of injury in fact.

 The maintenance of the effectiveness of his vote in the Senate which plaintiff seeks to protect is certainly arguably within the zone of interests to be protected by Article I, Section 7 of the Constitution and supplies the logical nexus between his status as a Senator and the claim sought to be adjudicated.

 A finding of standing under the circumstances here presented is consistent with the above-mentioned cases and with the finding of the Supreme Court in Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385 (1939) and of the United States Court of Appeals for the District of Columbia Circuit in Mitchell v. Laird, 488 F.2d 611, 159 U.S. App. D.C. 344 (1973).

 In Coleman a proposed Child Labor Amendment to the Constitution of the United States was submitted to the Kansas State Legislature. In 1925, that Legislature adopted a resolution rejecting the amendment. Subsequently, in 1937, a resolution favoring ratification was introduced in the Senate of Kansas. When the resolution was considered by the State Senate 20 State Senators voted for ratification and 20 voted against. The Lieutenant Governor, the presiding officer, cast the deciding vote in favor of ratification. Thereafter, the resolution was approved by a majority of the Kansas House of Representatives. Twenty-one State Senators, including the twenty Senators who had opposed the resolution for ratification, and three members of the State House of Representatives, then brought a suit in the State Supreme Court contesting the validity of the resolution and alleging that the Lieutenant Governor had no power to cast his vote. Relief was denied and the Supreme Court of the United States granted certiorari.

 One of the principal contentions of the respondents before the United States Supreme Court was that the petitioners lacked interest to invoke the jurisdiction of the Court to review. Chief Justice Hughes, writing for the Court, squarely rejected that contention and stated:

 
"We find the cases cited in support of the contention, that petitioners lack an adequate interest to invoke our jurisdiction to review, to be inapplicable. Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes. Petitioners come directly within the provisions of the statute governing our appellate jurisdiction. They have set up and claimed a right and privilege under the Constitution of the United States to have their votes given effect and the state court has denied that right and privilege." 307 U.S. at 438, 59 S. Ct. at 975 (Footnote omitted) (Emphasis added).

 In Mitchell v. Laird, supra, thirteen members of Congress filed an action in this Court seeking to enjoin the prosecution of the war in Indo-China and a declaratory judgment that the carrying on of the war by the defendants was in violation of Article I, Section 8, Clause 11 of the United States Constitution. On appeal the United States Court of Appeals for the District of Columbia, citing Flast v. Cohen, supra, Data Processing v. Camp, supra, and Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970), found ...


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