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with a view to keeping the Code of Federal Regulations as current as practicable. Each book shall be either supplemented or collated and republished at least once each calendar year.

(d) The Office of the Federal Register shall prepare and publish the codifications, supplements, collations, and indexes authorized by this section.

(e) The codified documents of the several agencies published in the supplemental edition of the Federal Register under this section, as amended by documents subsequently filed with the Office and published in the daily issues of the Federal Register shall be prima facie evidence of the text of the documents and of the fact that they are in effect on and after the date of publication.

(f) The Administrative Committee shall prescribe, with the approval of the President, regulations for carrying out this section.

(g) This section does not require codification of the text of Presidential documents published and periodically compiled in supplements to Title 3 of the Code of Federal Regulations. (Pub. L. 90-620, Oct. 22, 1968, 82 Stat. 1277.)

HISTORICAL AND REVISION NOTES

Based on 44 U.S. Code, 1964 ed., § 311 (July 26, 1935, ch. 417, § 11, 49 Stat. 503; June 19, 1937, ch. 369, 50 Stat. 304; 1939 Reorg. Plan No. II, § 202, eff. July 1, 1939, 4 F.R. 2732, 53 Stat. 1435; Dec. 10, 1942, ch. 717, § 2, 56 Stat. 1045; June 30, 1949, ch. 288, title I, § 104 (b), 63 Stat. 381; Aug. 5, 1953, ch. 333, 67 Stat. 388; Dec. 2, 1963, Pub. L. 88-190, § 1, 77 Stat. 343).

RETROACTIVE AND PROSPECTIVE APPLICATION

Section 2 of Pub. L. 88-190, Dec. 2, 1963, 77 Stat. 344, provided that: "[Former] Section 11 of the Federal Register Act [(now) this section], as amended by the first section of this Act [amending former subsecs. (b)-(d), (g) of former section 11 (now subsecs. (b)-(d), (g) of this section)], shall apply to the Code of Federal Regulations previously authorized and published as well as to future publications made pursuant to that section as so amended."

DELEGATION OF FUNCTIONS

For delegation of functions vested in the President by section 11(a) and (f) of the Federal Register Act [now subsecs. (a) and (f) of this section], to the Attorney General and Administrator of General Services, see section 6(b) of Ex. Ord. No. 10530, May 11, 1954, 19 F.R. 2709, set out as a note under section 301 of Title 3, The President.

CODIFICATION OF EXECUTIVE AND ADMINISTRATIVE DOCUMENTS

Under authority of section 11(d) of the Federal Register Act [now subsec. (d) of this section] the Administrative Committee of the Federal Register issued regulations for the codification of executive and administrative documents, approved by the President Nov. 10, 1937, and set out in F.R. 2849 D.I., 2450 B. V. Ex. ORD. No. 9930. PUBLICATION OF 1949 EDITION OF THE CODE OF FEDERAL REGULATIONS

Ex. Ord. No. 9930, Feb. 4, 1948, 13 F.R. 519, provided:

WHEREAS the act of December 10, 1942, 56 Stat. 1045, suspended the provision of section 11(a) of the Federal Register Act as amended by the act of June 19, 1937 (50 Stat. 304; 44 U.S.C.A. [former] 311 (a) [now subsec. (a) of this section]), requiring the quinquennial preparation and the filing with the Administrative Committee of the Federal Register of the codification of certain classes of documents "until such time after the termination of the present war as the Administrative Committee of the Federal Register shall determine"; and

WHEREAS section 3 of Public Law 239, 80th Congress, 1st session, approved July 25, 1947 [Act July 25, 1947, ch. 327, § 3, 61 Stat. 451], provides that in the interpretation of the said act of December 10, 1942, the war shall be deemed to be terminated; and

WHEREAS on November 12, 1947, the suspension of the above-mentioned provision of [former] section 11(a) of the Federal Register Act as amended [now subsec. (a) of this section] was formally terminated by the Administrative Committee of the Federal Register, effective December 31, 1948; and

WHEREAS the required codification of documents in force and effect on December 31, 1948, will, under present procedures, be on file with the Administrative Committee of the Federal Register on that date; and

WHEREAS [former] section 11(a) of the Federal Register Act as amended [now subsec. (a) of this section] provides that the President may, after report thereon to him by the Administrative Committee, authorize and direct the publication of the codification required by that section in special or supplemental editions of the Federal Register; and

WHEREAS the Administrative Committee of the Federal Register has made an appropriate report to me with the recommendation that I authorize and direct the publication of the said codification of documents in force and effect on December 31, 1948; and

WHEREAS it is in the public interest and in the interest of efficient government that such codification be published:

NOW, THEREFORE, by virtue of the authority vested in me by [former] section 11(a) of the Federal Register Act [now subsec. (a) of this section], and as President of the United States, and subject to the appropriation by the Congress of funds therefor, the publication of the said codification as it is in force and effect on December 31, 1948, is hereby authorized and directed to be made in a special edition of the Federal Register dated January 1, 1949, and designated "Code of Federal Regulations, 1949 Edition."

All Federal agencies coming within the purview of the Federal Register Act [this chapter] are requested to cooperate with the Division of the Federal Register, the National Archives, in carrying out the purposes of this order. This order shall be published in the Federal Register.

HARRY S. TRUMAN.

44 U.S.C. 1511. INTERNATIONAL AGREEMENTS EXCLUDED FROM
PROVISION OF CHAPTER

This chapter does not apply to treaties, conventions, protocols, and other international agreements, or proclamations thereof by the President. (Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1278.)

HISTORICAL AND REVISION NOTES

Based on 44 U.S. Code, 1964 ed., § 312 (July 26, 1935, ch. 417, § 12, 49 Stat. 503).

CIVIL ACTION NO. 1954-73

IN THE UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF COLUMBIA

Filed Nov. 14, 1973

Ralph Nader, Senator Frank E. Moss, Representative Bella S. Abzug and Representative Jerome R. Waldie, Plaintiffs v. Robert H. Bork, Acting Attorney General of the United States, Defendant.

MEMORANDUM

This is a declaratory judgment and injunction action arising out of the discharge of Archibald Cox from the office of Watergate Special Prosecutor. Defendant Robert H. Bork was the Acting Attorney General who discharged Mr. Cox. Plaintiffs named in the Amended Complaint are as listed above.

Some issues have already been decided. The matter first came before the Court on plaintiff's motion for preliminary injunction and a request that the trial of the action on the merits be consolidated with the preliminary injunction pursuant to Rule 65 (a) of the Federal Rules of Civil Procedure. Defendant filed opposition papers, and a hearing was held on the detailed affidavits and briefs filed by the parties. The Court determined that the case was in proper posture for a determination on the merits at that time.

All injunctive relief requested in the proposed preliminary injunction tendered at the hearing and in the Amended Complaint was denied from the bench. The effect of the injunction sought would have been to reinstate Mr. Cox as Watergate Special Prosecutor and to halt the Watergate investigation until he had reassumed control. It appeared to the Court that Mr. Cox's participation in this case was required before such relief could be granted. See Rule 19 (a) of the Federal Rules of Civil Procedure. Yet Mr. Cox has not entered into this litigation, nor has he otherwise sought to be reinstated as Special Prosecutor. On the contrary, his return to prior duties at Harvard has been publicly announced. Moreover, a new Watergate Special Prosecutor was sworn in on November 5, 1973, and the Court felt that the public interest would not be served by placing any restrictions upon his on-going investigation of Watergate-related matters.

Plaintiffs continue to press for a declaratory judgment on the only remaining issue to be resolved: the legality of the discharge of Mr. Cox and of the temporary abolition of the Office of Watergate Special Prosecutor. To this end, it must initially be determined whether plaintiffs have standing and whether a justiciable controversy still exists.

1

Defendant Bork contends that the congressional plaintiffs lack standing and that the controversy is moot. This position is without merit. The discharge of Mr. Cox precipitated a widespread concern, if not lack of confidence in the administration of justice. Numerous bills are pending in the Senate and House of Representatives which attempt to insulate the Watergate inquiries and prosecutions from Executive interference, and impeachment of the President because of his alleged role in the Watergate matter-including the firing of Mr. Cox-is under active consideration. Given these unusual circumstances, the standing of the three congressional plaintiffs to pursue their effort to obtain a judicial determination as to the legality of the Cox discharge falls squarely within the recent holding of the United States Court of Appeals for the District of Columbia Circuit in Mitchell v. Laird, No. 71-1510 (D.C. Cir. March 20, 1973). Faced with a challenge by a group of congressmen to the legality of the Indo-China War, the Court recognized standing in the following forceful terms:

If we, for the moment, assume that defendants' actions in continuing the hostilities in Indo-China were or are beyond the authority conferred upon them by the Constitution, a declaration to that effect would bear upon the duties of plaintiffs to consider whether to impeach defendants, and upon plaintiffs' quite distinct and different duties to make appropriations to support the hostilities, such as raising an army or enacting other civil or criminal legislation. In our view, these considerations are sufficient to give plaintiffs a standing to make their complaint. . . .

Id. at 4.

Unable to distinguish this holding, defendant Bork suggests that the instant case has been mooted by subsequent events and that the Court as a discretionary matter should refuse to rule on the legality of the Cox discharge. This view of the matter is more academic than realistic, and fails to recognize the insistent demand for some degree of certainty with regard to these distressing events which have engendered considerable public distrust of government. There is a pressing need to declare a rule of law that will give guidance for future conduct with regard to the Watergate inquiry.

While it is perfectly true that the importance of the question presented cannot alone save a case from mootness, Marchand v. Director, United States Probation Office, 421 F.2d 331, 333 (1st Cir. 1970), the congressional plaintiffs before the Court have a substantial and continuing interest in this litigation. It is an undisputed fact that pending legislation may be affected by the outcome of this dispute and that the challenged conduct of the defendant could be repeated with regard to the new Watergate Special Prosecutor if he presses too

1 At the injunction hearing, the Court dismissed Mr. Nader as a plaintiff from the bench, it being abundantly clear that he had no legal right to pursue these claims. Flast v. Cohen, 392, U.S. 83, 102 (1968).

2 Referring to various bills pending in the Senate, Senator Moss stated, "I am severely hampered in my ability to discharge my duties because of uncertainty which exists with respect to the legality of Special Prosecutor Cox's dismissal and the abolition of his office." Affidavit of Senator Frank E. Moss, dated October 29, 1973. Congressman Waldie is a member of the House Judiciary Committee and both he and Congresswoman Abzug have introduced resolutions calling for the impeachment of the President because of the Cox dismissal and other matters.

hard, an event which would undoubtedly prompt further congressional action. This situation not only saves the case from mootness, see United States v. Concentrated Phosphate Export Assoc., 393 U.S. 199, 203-04 (1968); Friend v. United States, 388 F.2d 579 (D.C. Cir. 1967), but forces decision. The Court has before it an issue that is far from speculative and a strong showing has been made that judicial determination of that issue is required by the public interest. Under these circumstances, it would be an abuse of discretion not to act.

Turning then to the merits, the facts are not in dispute and must be briefly stated to place the legal discussion in the proper context.

The duties and responsibilities of the Office of Watergate Special Prosecutor were set forth in a formal Department of Justice regulation as authorized by statute. 5 This regulation gave the Watergate Special Prosecutor very broad power to investigate and prosecute offenses arising out of the Watergate break-in, the 1972 Presidential election, and allegations involving the President, members of the White House staff or presidential appointees. Specifically, he was charged with responsibility to conduct court proceedings and to determine whether or not to contest assertions. of Executive privilege. He was to remain in office until a date mutually agreed upon between the Attorney General and himself, and it was provided that "The Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part."

On the same day that this regulation was promulgated, Archibald Cox was designated as Watergate Special Prosecutor. Less than four months later, Mr. Cox was fired by defendant Bork. It is freely admitted that he was not discharged for an extraordinary impropriety. Instead, Mr. Cox was discharged on the order of the President because he was insisting upon White House compliance with a Court Order which was no longer subject to further judicial review. After the Attorney General had resigned rather than fire Mr. Cox on this ground and the Deputy Attorney General had been discharged for refusing to do so, defendant Bork formally dismissed Mr. Cox on October 20, 1973, sending him the following letter.s

3

Dear Mr. Cox:

As provided by Title 28, Section 508 (b) of the United
States Code and Title 28, Section 0.132 (a) of the Code of
Federal Regulations, I have today assumed the duties of
Acting Attorney General.

The regulation from which the present Watergate Special Prosecutor, Mr. Leon Jaworski, derives his authority and his independence from the Executive branch is virtually identical to the original regulation at issue in this case. See note 13 infra. It is therefore particularly desirable to enunciate the rule of law applicable if attempts are made to discharge him.

438 F.R. 14688 (June 4, 1973). The terms of this regulation were developed after negotiations with the Senate Judiciary Committee and were submitted to the Committee during its hearings on the nomination of Elliot Richardson for Attorney General. Hearings Before the Senate Committee on the Judiciary, 93d Cong., 1st Sess. 144-46 (1973).

7

5 See 5 U.S.C. § 301.

Justice Department Internal Order 518-73 (May 31, 1973).

See Defendant's Brief in Opposition to Plaintiff's Motion for Preliminary Injunction, at 13.

8 Exhibit 12 to the Affidavit of W. Thomas Jacks.

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