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MORRISON v. CALLAWAY

January 8, 1974

Alan B. MORRISON, Plaintiff,
v.
Howard H. CALLAWAY and Alexander M. Haig, Jr., Defendants


John Lewis Smith, Jr., District Judge.


The opinion of the court was delivered by: SMITH, JR.

JOHN LEWIS SMITH, Jr., District Judge.

This is an action challenging the legality of defendant Alexander M. Haig, Jr., serving simultaneously as an Assistant to the President of the United States and as an officer of the Army holding the rank of General. The action further seeks to compel defendant Howard W. Callaway, Secretary of the Army, to remove the name of defendant Haig from the retired list of the Regular Army and correct pertinent military records to reflect that defendant Haig's military appointment was terminated before his announced retirement date. The case is now before the court on defendants' motion to dismiss.

 Plaintiff brings this suit in his capacity as a citizen and as a taxpayer. The record reflects that on May 4, 1973, the White House announced the interim appointment of defendant Haig, then currently Vice Chief of Staff of the Army, to be an Assistant to the President. On June 6, 1973, the White House announced the retirement of defendant Haig from active duty effective August 1, 1973. His retirement from active duty was subsequently confirmed by the Senate and on July 31, 1973, defendant Haig was placed on the retired list of the Regular Army with the grade of General. *fn1"

 The gravamen of the complaint is founded upon 10 U.S.C. § 973(b) which provides in pertinent part:

 
"(b) Except as otherwise provided by law, no officer on the active list of the Regular Army, . . . may hold a civil office by election or appointment, whether under the United States, a Territory or possession, or a State. The acceptance of such a civil office or the exercise of its functions by such an officer terminates his military appointment."

 and upon Art. I, § 9, cl. 7, of the Constitution:

 
"No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . ."

 Plaintiff contends that because the position of Advisor to the President is a "civil office" within the scope of § 973(b), defendant Haig effectively terminated his military appointment prior to retirement when he accepted the White House position on May 4, 1973. As a consequence, plaintiff argues that it was illegal for defendant Callaway to continue to furnish General Haig with salary and perquisites of his military office as well as to later recognize his retirement from a military appointment previously terminated by operation of law.

 Defendants have moved to dismiss on grounds, inter alia, that plaintiff lacks standing to maintain this suit. Plaintiff's position is that he has standing both as a taxpayer and as a citizen. For reasons set forth below, the court finds that plaintiff lacks standing to bring this action and accordingly grants defendants' motion to dismiss.

 Plaintiff urges taxpayer standing under Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). In Flast, the Supreme Court set forth the now famous two part "logical nexus" test for determining the existence of standing under a claim of taxpayer status. Under that standard, a taxpayer challenging a congressional enactment, must first establish a "logical link" between his status and the type of legislative enactment attacked by showing that the enactment was one made pursuant to the taxing and spending clause of Art. I, § 8, of the Constitution. Second, the taxpayer must show that the "challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8" Id. at 102-103, 88 S. Ct. at 1954.

 In the instant case, plaintiff is not challenging the constitutionality of a congressional enactment, rather he is attacking the legality of an executive appropriation. Plaintiff acknowledges this distinction, but nevertheless urges the court not to rely on a straitjacket interpretation of Flast. Instead, plaintiff argues for a more liberal construction on the grounds that Flast should not be read to preclude a taxpayer's suit in situations where an executive rather than a congressional violation of the Constitution is alleged.

  In support of this position, plaintiff relies on Richardson v. United States, 465 F.2d 844 (3d Cir. 1972), cert. granted, 410 U.S. 953, 93 S. Ct. 1420, 35 L. Ed. 2d 686 (Feb. 26, 1973), in which plaintiff, who sought an accounting from the Government of monies received and expended by the Central Intelligence Agency, claimed standing under the final provision of Art. I, § 9, cl. 7, of the Constitution which requires that ". . . a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." The court in Richardson noted:

 
"The Government argues that Flast must be limited to challenges to appropriations. That view attempts to confine the case to its facts without regard to its reasoning. Flast is concerned with adverseness and specificity of issues for 'standing, ' not spending per se. " Id. at 852 (Footnote omitted.)

 In passing upon plaintiff's request for a more expansive interpretation of Flast, this Court has carefully reviewed the history of taxpayer standing together with the language of Flast itself. As Judge Adams thoroughly recounts in his dissent to Richardson, the history of a taxpayer to challenge federal spending is in a sense one of no history at all. Until Flast lowered the "barrier", a taxpayer had been virtually without standing to challenge federal expenditures on the basis of his status as a taxpayer. Frothingham v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923). Consequently, the area of taxpayer ...


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