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GEORGE v. ISHIMARU

April 6, 1994

ROBERT P. GEORGE, Plaintiff,
v.
STUART J. ISHIMARU, "Acting" Staff Director of the United States Commission on Civil Rights. Defendant.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This matter comes before the court on plaintiff's motions for a preliminary injunction and for summary judgment, and defendant's cross-motions to dismiss and for summary judgment.

 The motions have been fully briefed and orally argued today.

 The court finds there are no genuine issues of any material facts which are in dispute.

 Because review by the Court of Appeals will be de novo, there is no reason to delay disposition of this matter for preparation of a formal written opinion. Therefore the court announces the following findings of fact and conclusions of law. A written order will be issued today granting plaintiff's motion for summary judgment and denying defendant's dispositive motions. In light of the court's final decision today on the merits of the controversy, plaintiff's motion for preliminary injunction will therefore be denied as moot.

 1. Plaintiff, Robert P. George, is one of eight commissioners of the United States Commission on Civil Rights.

 2. Defendant, Stuart J. Ishimaru, has been designated by President Clinton as the Acting Staff Director of the Commission on Civil Rights.

 3. When originally created by Congress as part of the Civil Rights Act of 1957, there were six Commissioners, each of whom was appointed by the President with the advice and consent of the Senate. P.L. 85-315 § 101(b), codified at 42 U.S.C. §§ 1975 - 1975(e). At that time, Congress also provided that the Commission's staff director would be appointed by the President with the advice and consent of the Senate. P.L. 85-315, § 105(a).

 4. The Commission was reorganized by Congress in 1983. There are now eight Commissioners. Four are appointed by the President; two are appointed by the President pro tempore of the Senate; and two are appointed by the Speaker of the House of Representatives. 42 U.S.C. § 1975 b(1). The Commissioners serve staggered six-year terms, pursuant to § 1975 b(2).

 5. The President has the power to designate a Chairperson and a Vice-Chairperson from among the eight Commissioners, but Congress expressly provided that to do so, the President had to act "with the concurrence of a majority of the Commission's members." 42 U.S.C. § 1975(e).

 6. The statute as enacted in 1983 also provides that "there shall be a full-time staff director for the Commission who shall be appointed by the President with the concurrence of a majority of the Commission." 42 U.S.C. § 1975 d(a)(1).

 7. When President Clinton took office, the staff director's position was vacant. One of the Commission's regional directors (Mr. Bobby Doctor) had to come to Washington from Atlanta to serve as "acting" staff director, and he had been named by the outgoing staff director on January 21, 1993, to be "acting" staff director.

 8. A majority of the Commission -- five of the eight members -- sent a letter to President Clinton on June 3, 1993, endorsing Mr. Doctor, then the "acting" staff director, to be appointed by the President as staff director.

 9. In late September 1993, the Chairperson of the Commission was advised by a Special Assistant to the President at the White House that President Clinton intended to appoint the defendant herein, Stuart Ishimaru, as staff director.

 10. On October 1, 1993, the Chairperson of the Commission sent a letter to the White House indicating that he would not concur in the appointment of Ishimaru as staff director, nor would a majority of the Commission.

 11. Thereafter, the President's nomination of Mary Frances Berry to be Chairperson of the Commission was confirmed by a majority of the Commissioners on November 19, 1993.

 12. Newly appointed Chairperson Berry then, on November 22, 1993, terminated Mr. Doctor's detail to Washington and he returned to his position as regional director of the Commission's staff in Atlanta.

 13. On November 26, 1993, plaintiff, Commissioner George, sent a memorandum to the acting general counsel of the Commission, Lawrence Glick, requesting an opinion as to the legality of the Chairperson's actions in terminating Mr. Doctor's detail.

 14. On November 29, 1993, the acting general counsel prepared a memorandum for the Commissioners concluding that the Chairperson did not have the authority to take such unilateral personnel actions. The same day, Mr. Glick was removed ...


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