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BORDERS v. REAGAN

July 7, 1981

William A. BORDERS, Jr., Plaintiff,
v.
Ronald REAGAN, President, United States of America, Alexander Haig, Government of the District of Columbia, District of Columbia Judicial Nomination Commission and Philip A. Lacovara, Defendants



The opinion of the court was delivered by: PENN

The plaintiff, William A. Borders, Jr., was appointed to the District of Columbia Judicial Nomination Commission (Commission), pursuant to Section 434 of the District of Columbia Self-Government and Governmental Reorganization Act (Act) *fn1" , 11 D.C.Code App. § 434 (Supp. IV 1977), by President Carter in July 1980. The term of the appointment was five years or until July 1985. On May 16, 1981, President Reagan purported to appoint Philip A. Lacovara in place of plaintiff. On that same date the President advised the plaintiff by letter that he had appointed a successor to his position on the Commission and advised him that the plaintiff's "membership on that Commission is terminated as of this date". He thanked plaintiff for his "dedicated service". *fn2"

The plaintiff now brings this action for a permanent injunction and declaratory relief and asks, among other things, that the Court enter an injunction compelling the President and the Secretary of State *fn3" to withdraw the certificate purporting to appoint Mr. Lacovara to the Commission.

 I

 Underlying Facts

 There are no factual issues in this case. The plaintiff, a well-known and respected member of the bar, a practicing attorney in the District of Columbia and the current President of the National Bar Association, a national professional organization, was duly appointed to the Commission by President Carter on July 2, 1980, for a term of five years or until July 1985, at the expiration of the term of President Ford's appointee. Mr. Borders' predecessor, Mr. Willie F. Leftwich, had been named by President Ford in 1975, and had served a full term. President Carter was defeated in his bid for reelection by President Reagan in November 1980. Although it is undisputed that Mr. Borders has given dedicated service to the Commission, President Reagan decided to replace Mr. Borders with a representative of his own choosing. Accordingly he appointed Mr. Lacovara, also a distinguished practicing attorney in the District who is well respected in the local legal community. The President makes no contention that Mr. Borders has not faithfully and ably fulfilled his Commission duties. The decision to appoint Mr. Lacovara in place of Mr. Borders results simply from the desire of the President to exercise what he feels to be his right to appoint the Commission member who represents the President.

 The letter purporting to terminate Mr. Borders' position on the Commission was delivered to plaintiff on May 16, 1981, and he filed the instant action on June 8, 1981.

 The Posture of This Case

 At the time he filed his complaint, the plaintiff also filed a motion for a temporary restraining order and a motion for a preliminary injunction. Since it appeared that this case would require expedited treatment and consideration in view of an anticipated vacancy on the Superior Court of the District of Columbia, the Court, sua sponte, scheduled the case for a Status Hearing on June 10, 1981. The plaintiff advised the Court at the Status Hearing that since no Commission meetings were scheduled in the near future, he did not wish to pursue his motion for a temporary restraining order, and it was agreed by the parties that they would present arguments on the motion for preliminary injunction on June 18, 1981. The Court entered an order setting that date for the hearing and establishing a briefing schedule. See Order filed June 10, 1981.

 The Court heard oral arguments on June 18, 1981. Just prior to the arguments, all parties agreed that the hearing on the motion should be consolidated with the trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2). The motion hearing was consolidated with the trial on the merits since there were no outstanding genuine issues of material fact and the legal issues had been fully briefed by the parties, taking into consideration the expedited treatment accorded this case.

 Position and Alignment of the Parties

 The President, the Secretary of State, and Mr. Lacovara, sometimes hereinafter referred to as the federal defendants, argue that the removal of Mr. Borders and the appointment of Mr. Lacovara were within the power of the President and they ask that this action be dismissed.

 The District of Columbia (District) was joined as a party defendant since it "grants special rights, privileges and emoluments, to the members of the Judicial Nomination Commission pursuant to P.L. 93-198 (the Act)". Compl. P 7. However, the District favors the relief requested by the plaintiff and argues that the members of the Commission do not serve at the pleasure of the appointing authority and may not be removed at will. The District bases its argument on the Constitution, Article I, Section 8, Clause 17, which provides in part that Congress shall "exercise exclusive Legislation in all Cases whatsoever, over (the) District ". It contends that Congress, pursuant to the authority granted by the Constitution, properly delegated certain of its powers to the local government and the Commission, pursuant to the Act and the District of Columbia Court Reform and Criminal Procedure Act of 1970 (Court Reform Act), P.L. 91-358, 84 Stat. 473, and thereby circumscribed the power of the President. The District further urges that Congress intended that the "Commission maintain an independent status ... free from the potential for disruption posed by serving at the will of the appointing authority". District of Columbia Response at 2-3. According to the District, the members of the Commission are not officers of the United States, see U.S.Const., art. I, § 2, cl. 2, but are merely agents of the Congress. The District interprets Section 434 of the Act as not limiting the term of the federal appointee to the Commission to five years, but rather, establishing a term of five years. *fn4"

 The final named defendant is the Commission. The Commission in a letter dated June 17, 1981, signed by its chairperson, Frederick B. Abramson, and concurred in by five members, with one abstaining *fn5" , takes no position at this time "with respect to the varying contentions made by the parties or the merit of the issues involved in the lawsuit". The Commission was also unanimously of the view

 
that Congress, in creating the Commission, intended to institute a merit selection process for the appointment of judges to the nonfederal courts of the District of Columbia, and that, in order to carry out this function, the Commission as a whole through its individual Members should have a high degree of independence from political control.

 Time Constraints

 There are certain time constraints in this case which necessitate expedited consideration of the not insubstantial issues raised herein. In an effort to render a decision at the earliest time, it is necessary for the Court to shorten its discussion of the applicable law.

 The work of the Commission and the time frame in which it must be accomplished is more fully set forth in Part II, infra. Suffice it to say however, that once a vacancy occurs on either of the two local courts, the Superior Court or the District of Columbia Court of Appeals, the Commission "shall, within thirty days following the occurrence of such vacancy submit to the President, for possible nomination and appointment a list of three persons for every vacancy". Act, § 434(d)(1).

 Recently there were four vacancies on the local courts, three in the Superior Court and one in the Court of Appeals. President Reagan, after securing the lists from the Commission in accordance with Section 434(d)(1) nominated three persons for the Superior Court and one for the Court of Appeals. The person named for the Court of Appeals, Judge James A. Belson, is presently a judge on the Superior Court and when he is appointed yet another vacancy will exist on that court thereby setting into motion the Commission's consideration of other names to submit to the President. The Court is advised that Judge Belson has been confirmed, thus the Commission will be required to submit a list of names for the upcoming vacancy on the Superior Court within slightly more than thirty days.

 II

 In considering whether the President has the power to remove the plaintiff prior to the expiration of his term, the Court must first address the language of Section 434 of the Act which established the Commission. If the Act grants such power then there is no need to consider the other arguments made by the parties.

 The members of the Commission are appointed by different persons. One member is appointed by the President, two by the Board of Governors of the Unified District of Columbia Bar, two by the Mayor, one of whom shall not be a lawyer, one by the City Council, who shall not be a lawyer, and one by the Chief Judge of the United States District Court for the District of Columbia, who shall be an active or retired Federal Judge serving in the District. Act, § 434(b)(4). Except for the Federal judicial member of the Commission who serves without additional compensation, the other members receive "the daily equivalent at the rate provided by Grade 18 of the General Schedule, established under Section 5332 of title 5 of the United States Code, while actually engaged in service for the Commission". Act, § 434(b)(5).

 In the event of any vacancy on either of the local courts, the Commission is required to submit to the President, three names for each vacancy for possible nomination and appointment. Any nomination made by the President is with the advice and consent of the United States Senate. If the President fails to nominate one of the persons on the list submitted by the Commission within 60 days after receiving the list, the Commission "shall nominate, and with the advice and consent of the Senate, appoint one of the persons named on the list". Act, § 434(d)(1).

 With respect to the term each member of the Commission shall serve, the statute provides:

 
§ 434. District of Columbia Judicial Nomination Commission.
 
(a) There is established for the District of Columbia the District of Columbia Judicial Nomination Commission (hereafter in this section referred to as the "Commission"). The Commission shall consist of seven members selected in accordance with the provisions of subsection (b). Such members shall serve for terms of six years, except that the member selected in accordance with subsection (b)(4)(A) shall serve for five years; of the members first selected in accordance with subsection (b)(4)(B), one member shall serve for three years and one member shall serve for six years; of the members first selected in accordance with subsection (b)(4)(C), one member shall serve for a term of three years and one member shall serve for five years; the member first selected in accordance with subsection (b)(4)(D) shall serve for six years; and the member first appointed in accordance with subsection (b)(4)(E) shall serve for six years. In making the respective first appointments according to ...

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