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.
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.
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.
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 should, however, be hesitant to infer a restriction upon the President's removal power where none has been explicitly set forth by Congress and where board members have not been explicitly endowed with any tenure protection.
Moreover, the present case differs from those in which the President's removal power has been constrained by the courts. For instance, in Wiener v. United States, the Supreme Court inferred a removal restriction. It thus rejected the President's attempt to remove a Commissioner of the War Claims Commission "merely because he wanted his own appointees on [the] Commission." Id. at 356,
and therefore inferred a removal restriction. Commissioners were appointed by the President, with the advice and consent of the Senate, but Congress made no provision for the removal of the Commissioners. The Commissioners were entrusted by Congress with adjudicatory powers that were to be exercised entirely free from congressional or executive control. As a result, "Congress did not wish to hang over the Commission the Damocles' sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing." Id. In Morrison, the Supreme Court upheld an express limitation on the President's ability to remove an independent counsel under the Ethics in Government Act. Under the Act, an independent counsel could only be removed for "good cause." Id. at 686. Unlike Mr. Swan, however, the independent counsel in Morrison lacked policymaking or significant administrative authority. Id. at 691.
The functions of the NCUA Board are substantially different from those of the War Claims Commission. The War Claims Commission's raison d'etre was to adjudicate claims in a manner similar to an Article III court. Weiner v. United States, 357 U.S. at 350, 355. The NCUA, on the other hand, performs a wide variety of policy-making and administrative functions. The NCUA Board is charged with prescribing rules and regulations for the administration of federal credit unions; it can grant credit union charters; it can suspend or revoke the charter of any federal credit union or place the same in involuntary liquidation: it can investigate and report problems relating to the ability of obtaining credit at reasonable rates; it can pursue counseling programs to serve the poor: and it can conduct studies designed to promote the effective operation of credit unions. See 12 U.S.C. Section 1766. These functions are more properly characterized as executive functions rather than judicial ones.
The NCUA Board does perform certain adjudicatory functions. Specifically it is authorized to adjudicate issues relevant to the exercise of its authority; to terminate the insured status of a credit union; to issue cease and desist orders; to remove or suspend credit union officials from office; and to asses civil money penalties. 12 U.S.C. Section 1786 (b), (f), (g), (i), (k). However, the NCUA Board's decisions are subject to judicial review. 12 U.S.C. Section 1786(j). In contrast, the War Claims Commission's decisions were not subject to further administrative or judicial review. More importantly, the Commissioners were given adjudicatory powers that were to be exercised free from executive control. Congress, however, did not similarly insulate the NCUA from executive control. See S. Rep. No. 91-518, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 2479, 2480. In fact, the NCUA was established "in the executive branch of the Government." Pub. L. No. 91-206 Section 3, 82 Stat. 49, 50 (1970). Furthermore, the NCUA is managed by a single Administrator who serves at the pleasure of the President. Pub. L. No. 91-206 Section 3, 82 Stat. 49, 50 (1970). Consequently, the court declines to infer a restriction upon the President's power to remove NCUA Board members where none was expressly provided for by Congress.
C. Declaratory Relief
Having concluded that injunctive relief cannot be issued against the President, the court must now determine whether the plaintiff's purported injury may nevertheless be redressable in some fashion. Specifically, the plaintiff seeks declaratory relief against the President and the other two individuals involved in Mr. Swan's removal: Mr. Nash, Assistant to the President, and Mr. Hoyle, Executive Director of the NCUA.
Mr. Swan was removed by the President, and as such, only relief against the President can redress his alleged injury. The court, however, declines the plaintiff's request for declaratory relief against the President for the same considerations that make injunctive relief inappropriate in this case. See Samuels v. Mackell, 401 U.S. 66, 69-73, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971).
Accordingly, it is this 21 day of June 1996,
ORDERED that defendants' motion for summary judgment be and is hereby granted; and it is,
FURTHER ORDERED that the above-captioned matter be and is hereby dismissed with prejudice from this court's docket.
Ricardo M. Urbina
United States District Judge