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SWAN v. CLINTON

June 21, 1996

Robert H. Swan, Plaintiff,
v.
William J. Clinton, et. al., Defendants.



The opinion of the court was delivered by: URBINA

 Granting Defendants' Motion for Summary Judgment

 I. Background

 On April 23, 1996, Mr. Robert H. Swan filed a motion for a preliminary injunction seeking that this court require the President of the United States, William J. Clinton to reinstate him as a member of the National Credit Union Administration (NCUA) Board. Mr. Swan further sought an injunction that would prevent the President from removing him from his position as a member of the NCUA Board. Pursuant to Fed.R.Civ.P. 65(a)(2), the court consolidated the motion for a preliminary injunction with the trial on the merits. The parties have since filed cross-motions for summary judgment.

 The following facts are uncontroverted by the parties. The Federal Credit Union Act, Pub. L. No. 73-467, 48 Stat. 1216 (June 26, 1934), authorized federal charters and federal regulation and supervision of credit unions. The Act, as amended and codified, created "an independent agency to be known as the National Credit Union Administration." 12 U.S.C. Sections 1751-1795K. Congress vested the power to manage the NCUA with the NCUA Board. 12 U.S.C. Section 1752a (a). The NCUA Board promulgates rules and regulations necessary to supervise and regulate federal credit unions. 12 U.S.C. Section 1752a(d). The NCUA Board is composed of three members appointed by the President, with the advice and consent of the Senate, to staggered, six-year terms. 12 U.S.C. Section 1752a(b). "A member may continue to serve as such after the expiration of said member's term until a successor has qualified." 12 U.S.C. Section 1752a(c).

 On April 5, 1990, Mr. Swan was appointed as a member of the NCUA Board by President George Bush. After the expiration of his term of office, the plaintiff continued to serve on the NCUA Board in a holdover capacity, pursuant to 12 U.S.C. Section 1752a(c). By letter dated April 8, 1996, Mr. Nash, Assistant to the President, informed Mr. Swan that President Clinton had decided to terminate his service on the NCUA Board. Mr. Swan's termination became effective on April 9, 1996. Subsequently, Mr. Hoyle, Executive Director of the NCUA, ordered Mr. Swan to vacate his office at the NCUA. The United States Senate adjourned its session from March 29, 1996, until April 15, 1996. On April 12, 1996, the President issued a recess appointment to Ms. Yolanda Wheat; she succeeded Mr. Swan as a member of the NCUA Board. Mr. Swan subsequently initiated this action to require the President to reinstate him and to enjoin the defendants from removing him as a member of the NCUA Board.

 II. Analysis *fn1"

 A. Summary Judgment

 Fed.R.Civ.P. 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings...show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." When the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Crain v. Board of Police Comm'rs of Metro. Police Dep't, 920 F.2d 1402, 1405-1406 (8th Cir. 1990). Such issues include matters turning on statutory interpretation. Edwards v. Aguillard, 482 U.S. 578, 594-597, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987). Presently, there are no material facts in dispute. Rather, the issues to be resolved are strictly legal ones. The court must determine whether President Clinton lawfully removed Mr. Swan from the NCUA Board. For the reasons set forth below, the court concludes that injunctive relief against the President is inappropriate. Having thus concluded, the court need not determine whether the President validly exercised his recess appointment power by replacing Mr. Swan with Ms. Wheat.

 B. Injunctive Relief

 Although injunctive relief against executive officials, such as cabinet-level officials, is within the court's spectrum of discretion, a district court's "grant of injunctive relief against the President himself is extraordinary, and should...raise judicial eyebrows." Franklin v. Massachusetts, 505 U.S. 788, 802, 120 L. Ed. 2d 636, 112 S. Ct. 2767 (1992) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 96 L. Ed. 1153, 72 S. Ct. 863 (1952)). In general, courts have no jurisdiction to enjoin the President in the performance of his official duties. Mississippi v. Johnson, 71 U.S. 475, 4 Wall. 475, 501, 18 L. Ed. 437 (1867). There are, however, two narrow contexts in which the courts may have the authority to enjoin the President. The President may be subject to a subpoena to provide information relevant to an ongoing criminal prosecution. See United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). In addition, the Supreme Court has left open the question of whether the President may be subject to an injunction requiring him to perform a purely ministerial duty. Mississippi v. Johnson, 4 Wall. at 498-499; see also NTEU v. Nixon, 492 F.2d 587, 160 U.S. App. D.C. 321 (D.C.Cir. 1974) (holding that an injunction could be issued against the President to require the performance of a purely ministerial duty imposed upon the President by the express terms of the applicable statutes). The court must therefore determine whether injunctive relief against the President is available to the plaintiff, and if not, whether the plaintiff's alleged injuries are nonetheless redressable in some fashion, such as through declaratory relief. Franklin v. Massachusetts, 505 U.S. at 803.

 The plaintiff has not demonstrated that the President violated a ministerial duty. *fn2" A ministerial duty "is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist and imposed by law." Mississippi v. Johnson, 71 U.S. 475, 4 Wall. 475, 498, 18 L. Ed. 437 (1866). Mandamus is the vehicle pursuant to which a court compels the performance of a ministerial duty. Wilbur v. United States, 281 U.S. 206, 218, 74 L. Ed. 809, 50 S. Ct. 320 (1929). However, the duty to be enforced must be so plainly prescribed as to constitute a positive command. Id. at 218-219. "The law must not only authorize the demanded action, but require it; the duty must be clear and undisputable." 13th Regional Corp. v. Department of Interior, 210 U.S. App. D.C. 43, 654 F.2d 758, 760 (D.C.Cir. 1980) (citing United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 75 L. Ed. 1148, 51 S. Ct. 502 (1931)). Where the duty, however, "is not thus plainly prescribed but depends upon a statute...the construction or application of which is not free from doubt, it is regarded as involving the character of judgment or discretion which cannot be controlled by mandamus." Id. (internal citations omitted). The court has carefully reviewed the NCUA statute and has found no express restriction on the President's authority to remove members of the NCUA Board.

 Moreover, the court is not persuaded a restriction should be inferred. "When Congress decides purposefully to enact legislation restricting or regulating presidential action, it must make its intent clear. The Supreme Court has recognized that 'in traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in decision.'" Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 289 (D.C.Cir. 1991) (quoting United States v. Bass, 404 U.S. 336, 349, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971)).

 Congress has neither explicitly nor implicitly constrained the President's authority to remove NCUA Board members. *fn3" As a result, the court must ascertain what legal significance it should attach to Congress' silence on this matter. Wiener v. United States, 357 U.S. 349, 352, 2 L. Ed. 2d 1377, 78 S. Ct. 1275 (1958). The Supreme Court has made clear that the most salient concern in removal cases is that the President's exercise of his "executive power" and his constitutional duty to "take care that the laws be faithfully executed" under Article II not be infringed upon. Morrison v. Olson, 487 U.S. 654, 689-690, 101 L. Ed. 2d 569, 108 S. Ct. 2597 (1988). The court's emphasis should therefore not be entirely placed on whether the official in question is categorized as one who is "purely executive." Id. at 689. *fn4" Plaintiff, for his part, would have the court infer a duty on the part of the President requiring him not to remove an NCUA Board member serving in a holdover capacity absent good cause. A court ...


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