Изображения страниц
PDF
EPUB

In that capacity I am, as instructed by the President, discharging you, effective at once, from your position as Special Prosecutor, Watergate Special Prosecution Force.

Very truly yours,

ROBERT H. BORK,
Acting Attorney General.

Thereafter, on October 23, Mr. Bork rescinded the underlying Watergate Special Prosecutor regulation, retroactively, effective as of October 21.9

The issues presented for declaratory judgment are whether Mr. Cox was lawfully discharged by defendant on October 20, while the regulation was still in existence, and, if not, whether the subsequent cancellation of the regulation lawfully accomplished his discharge. Both suppositions will be considered.

It should first be noted that Mr. Cox was not nominated by the President and did not serve at the President's pleasure. As an appointee of the Attorney General,10 Mr. Cox served subject to congressional rather than Presidential control. See Myers v. United States, 272 U.S. 52 (1926). The Attorney General derived his authority to hire Mr. Cox and to fix his term of service from various Acts of Congress.11 Congress therefore had the power directly to limit the circumstances under which Mr. Cox could be discharged, see United States v. Perkins, 116 U.S. 483 (1886), and to delegate that power to the Attorney General, see Service v. Dulles, 354 U.S. 363 (1957). Had no such limitations been issued, the Attorney General would have had the authority to fire Mr. Cox at any time and for any reason. However, he chose to limit his own authority in this regard by promulgating the Watergate Special Prosecutor regulation previously described. It is settled beyond dispute that under such circumstances an agency regulation has the force and effect of law, and is binding upon the body that issues it. Accardi v. Shaughnessy, 347 U.S. 260 (1954) ("Accardi I"); Bonita v. Wirtz, 369 F.2d 208 (D.C. Cir. 1966); American Broadcasting Co. v. F.T.C., 179 F.2d 437 (D.C. Cir. 1949); United States v. Chapman, 179 F. Supp. 447 (E.D. N.Y. 1959). As the Ninth Circuit observed in United States v. Short, 240 F.2d 292, 298 (9th Cir. 1956) :

An administrative regulation promulgated within the authority granted by statute has the force of law and will be given full effect by the courts.

Even more directly on point, the Supreme Court has twice held that an Executive department may not discharge one of its officers in a manner inconsistent with its own regulations concerning such discharge. See Vitarelli v. Seaton, 359 U.S. 535 (1959); Service v. Dulles, supra. The firing of Archibald Cox in the absence of a finding of extraordinary impropriety was in clear violation of an existing Justice Department regulation having the force of law and was therefore illegal.

Defendant suggests that, even if Mr. Cox's discharge had been unlawful on October 20, the subsequent abolition of the Office of Water38 F.R. 29466 (Oct. 23, 1973).

10 See 38 F.R. 14688 (June 4, 1973).
"5 U.S.C. § 301; 28 U.S.C. § § 509-10.

11

gate Special Prosecutor was legal and effectively discharged Mr. Cox at that time. This contention is also without merit. It is true that an agency has wide discretion in amending or revoking its regulations. United States v. O'Brien, 391 U.S. 367, 380 (1968). However, we are once again confronted with a situation in which the Attorney General voluntarily limited his otherwise broad authority. The instant regulation contains within its own terms a provision that the Watergate Special Prosecutor (as opposed to any particular occupant of that office) will continue to carry out his responsibilities until he consents to the termination of that assignment.12 This clause can only be read as a bar to the total abolition of the Office of Watergate Special Prosecutor without the Special Prosecutor's consent, and the Court sees no reason why the Attorney General cannot by regulation impose such a limitation upon himself and his successors.

Even if the Court were to hold otherwise, however, it could not conclude that the defendant's Order of October 23 revoking the regulation was legal. An agency's power to revoke its regulations is not unlimited-such action must be neither arbitrary nor unreasonable. Kelly v. United States Dept. of Interior, 339 F. Supp. 1095, 1100 (E.D. Čal. 1972). Cf. Grain Elevator, Flour and Feed Mill Workers v. N.L.R.B., 376 F.2d 774 (D.C. Cir.), cert. denied, 389 U.S. 932 (1967); Morrison Mill Co. v. Freeman, 365 F.2d 525 (D.C. Cir. 1966), cert. denied, 385 U.S. 1024 (1967). In the instant case, the defendant abolished the Office of Watergate Special Prosecutor on October 23, and reinstated it less than three weeks later under a virtually identical regulation.13 It is clear that this turnabout was simply a ruse to permit the discharge of Mr. Cox without otherwise affecting the Office of the Special Prosecutor-a result which could not legally have been accomplished while the regulation was in effect under the circumstances presented in this case. Defendant's Order revoking the original regulation was therefore arbitrary and unreasonable, and must be held to have been without force or effect.

These conclusions do not necessarily indicate that defendant's recent actions in appointing a new Watergate Special Prosecutor are themselves illegal, since Mr. Cox's evident decision not to seek reinstatement necessitated the prompt appointment of a successor to carry on the important work in which Mr. Cox had been engaged. But that fact does not cure past illegalities, for nothing in Mr. Cox's behavior as of October 23 amounted to an extraordinary impropriety, constituted consent to the abolition of his office, or provided defendant with a reasonable basis for such abolition.

Plaintiffs have emphasized that over and beyond these authorities the Acting Attorney General was prevented from firing Mr. Cox by the explicit and detailed commitments given to the Senate, at the

12

See 38 F.R. 14688 (June 4, 1973): "The Special Prosecutor will carry out these responsibilities with the full support of the Department of Justice, until such time as, in his judgment, he has completed them or until a date mutually agreed upon between the Attorney General and himself."

13 The two regulations are identical, except for a single addition to the new regulation which provides that the Special Prosecutor may not even be discharged for extraordinary improprieties unless the President determines that appropriate. Compare 38 F.R. 30738 (Nov. 9, 1973) with 38 F.R. 14688 (June 4, 1973).

time of Mr. Richardson's confirmation, when the precise terms of the regulation designed to assure Mr. Cox's independence were hammered out. Whatever may be the moral or political implications of the President's decision to disregard those commitments, they do not alter the fact that the commitments had no legal effect. Mr. Cox's position was not made subject to Senate confirmation, nor did Congress legislate to prevent illegal or arbitrary action affecting the independence of the Watergate Special Prosecutor.

The Court recognizes that this case emanates in part from congressional concern as to how best to prevent future Executive interference with the Watergate investigation. Although these are times of stress, they call for caution as well as decisive action. The suggestion that the Judiciary be given responsibility for the appointment and supervision of a new Watergate Special Prosecutor, for example, is most unfortunate. Congress has it within its own power to enact appropriate and legally enforceable protections against any effort to thwart the Watergate inquiry. The Courts must remain neutral. Their duties are not prosecutorial. If Congress feels that laws should be enacted to prevent Executive interference with the Watergate Special Prosecutor, the solution lies in legislation enhancing and protecting that office as it is now established and not try following a course that places incompatible duties upon this particular Court. As Judge Learned Hand warned in United States v. Marzano, 149 F.2d 923, 926 (1945):

Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge.

This Memorandum contains the Court's findings of fact and conclusions of law. The rulings made are set out in the attached Final Order and Declaratory Judgment.

November 14, 1973.

GERHARD A. GESELL, United States District Judge.

FINAL ORDER AND DECLARATORY JUDGMENT

On the basis of findings of fact and conclusions of law set forth in an accompanying Memorandum filed this day, it is hereby

ORDERED and DECREED that:

(1) Plaintiff's motion for leave to file an Amended Complaint and add additional plaintiffs is granted.

(2) Plaintiff's motion for preliminary injunction is denied, and the trial of the action on the merits is advanced and consolidated with the hearing on said motion.

(8) Mr. Ralph Nader is dismissed as plaintiff for lack of standing. (4) All injunctions prayed for in the Amended Complaint are

denied.

(5) The Court declares that Archibald Cox, appointed Watergate Special Prosecutor pursuant to 28 C.F.R. § 0.37 (1973), was illegally discharged from that office.

November 11, 1973.

GERHARD A. GESELL, United States District Judge.

[merged small][merged small][merged small][graphic][merged small][merged small][merged small][merged small][merged small][merged small]
[merged small][ocr errors][merged small][merged small][merged small]

56

106

APPEAL from a judgment of the Court of Claims rejecting a claim for salary. Appellant's intestate, Frank S. Myers, was reappointed by the President, by and with the advice and consent of the Senate, as a postmaster of the first class. The Act of July, 1876, § 6, c. 179, 19 Stat. 80, provides that such postmasters shall hold office for four years, unless sooner removed or suspended according to law, and provides that they may be removed by the President "by and with the advice and consent of the Senate.' Myers was removed, before the expiration of his term, by an order of the Postmaster General, sanctioned by the President. The removal was not referred to the Senate, either directly or through nomination of a successor, during the four year period. Judgment of the Court below that Myers could not claim salary for the part of that period following the removal, was based on the view that there had been laches in asserting the claim. The appeal was argued and submitted by counsel for the appellant, on December 5, 1924. On January 5, 1925, the Court restored the case for reargument. It invited the Honorable George Wharton Pepper, United States Senator from Pennsylvania, to participate as amicus curiae. The reargument occurred on April 13, 14, 1925.

MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

This case presents the question whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.

Myers, appellant's intestate, was on July 21, 1917, appointed by the President, by and with the advice and consent of the Senate, to be a postmaster of the first class at Portland, Oregon, for a term of four years. On January 20, 1920, Myers' resignation was demanded. He refused the demand. On February 2, 1920, he was removed from office by order of the Postmaster General, acting by direction of the President. February 10th, Myers sent a petition to the President and another to the Senate Committee on Post Offices, asking to be heard, if any charges were filed. He protested to the Department against his removal, and continued to do so until the end of his term. He pursued no other occupation and drew compensation for no other service during the interval. On April 21, 1921, he brought this suit in the Court of Claims

• Page numbers of the United States Reports appear in the margins for reference, at the point where the page begins. + Portions of this decision have been omitted by the editor.

for his salary from the date of his removal, which, as claimed by supplemental petition filed after July 21, 1921, the end of his term, amounted to $8,838.71. In August, 1920, the President made a recess appointment of one Jones, who took office September 19, 1920.

The Court of Claims gave judgment against Myers, 107 and this is an appeal from that judgment. The Court held that he had lost his right of action because of his delay in suing, citing Arant v. Lane, 249 U. S. 367; Nicholas v. United States, 257 U. S. 71, and Norris v. United States, 257 U. S. 77. These cases show that when a United States officer is dismissed, whether in disregard of the law or from mistake as to the facts of his case, he must promptly take effective action to assert his rights. But we do not find that Myers failed in this regard.

By the 6th section of the Act of Congress of July 12, 1876, 19 Stat. 80, 81, c. 179, under which Myers was appointed with the advice and consent of the Senate as a first-class postmaster, it is provided that

"Postmasters of the first, second and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law."

The Senate did not consent to the President's removal of Myers during his term. If this statute, in its requirement that his term should be four years unless sooner removed by the President by and with the consent of the Senate, is valid, the appellant, Myers' administratrix, is 108 entitled to recover his unpaid salary for his full term, and the judgment of the Court of Claims must be reversed. The Government maintains that the requirement is invalid, for the reason that under Article II of the Constitution the President's power of removal of executive officers appointed by him with the advice and consent of the Senate is full-and complete without consent of the Senate. If this view is sound, the removal of Myers by the President without the Senate's consent was legal and the judgment of the Court of Claims against the appellant was correct and must be affirmed, though for a different reason from that given by that court. We are therefore confronted by the constitutional question and can not avoid it.

The relevant parts of Article II of the Constitution are as follows:

"Section 1. The executive Power shall be vested in a President of the United States of America.

"Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of

3

« ПредыдущаяПродолжить »