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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Legal Services Corporation
(2 of 4)
Box: 31
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
/
John:
Please feel free
to come over and
check my Legal
Services file.
Genny - 12/20
No. 82-1227
/
L
/
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
LEGAL SERVICES CORPORATION, ET AL.,
Appellants,
V.
HOWARD H. DANA, JR., ET AL.,
Appellees.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRIEF FOR THE APPELLEES
J. PAUL McGRATH
Assistant Attorney General
RICHARD K. WILLARD
Deputy Assistant Attorney General
STANLEY S. HARRIS
United States Attorney
ANTHONY J. STEINMEYER
ALFRED MOLLIN
Attorneys
Appellate Staff
Civil Division, Room 3617
Department of Justice
Washington, D.C. 20530
TABLE OF CONTENTS
Page
Question Presented
1
Statement of the Case
2
Nature of the Case
2
Statutory Scheme
3
District Court Proceedings
5
Argument
8
Standard of Review and Summary
8
I. PLAINTIFFS HAVE NOT SHOWN OR ATTEMPTED TO SHOW
THE IRREPARABLE INJURY NECESSARY TO SUPPORT THE
GRANT OF PRELIMINARY INJUNCTIVE RELIEF
13
II. PLAINTIFFS HAVE NOT SHOWN A STRONG LIKELIHOOD
OF SUCCESS ON THE MERITS OF THEIR CLAIM
16
A. Congress Intended The President To Have The
Authority To Make Recess Appointments To The
Board of Directors Of The Legal Services
Corporation.
16
1. The Legislative History Of The Legal
Services Corporation Act As Well As
Traditional Rules Of Statutory Construc-
tion Compel The Conclusion That The
Congress Intended The President To
Have The Power To Make Recess Appoint-
ments Of Board Members
17
2.
Neither The Intended "Independence"
Of the Corporation Nor The "Officers
and Employees" Clause Supports The
Contention That Congress Did Not
Intend The President To Have The Power
To Make Recess Appointments To The
Board
24
B.
Assuming Arguendo That Congress Intended
To Limit The Power Of The President To Make
Recess Appointments To The Board, The Act
Is An Unconstitutional Violation Of Article
II, §2, Which Governs The Mode Of Appointment
Of Officers Of The United States
30
- i -
Page
1. Buckley V. Valeo
31
2. Application of Buckley To This Case 33
3. Plaintiffs' Arguments Do Not Support
A Contrary Conclusion
35
III. GRANTING PLAINTIFFS PRELIMINARY RELIEF WOULD
CAUSE THE SAME INJURY TO DEFENDANTS WHICH
PLAINTIFFS WISH TO AVOID, AND THE PUBLIC
INTEREST WOULD BE SERVED BY DENYING PLAINTIFFS
PRELIMINARY INJUNCTIVE RELIEF
40
A.
Injury To The Defendants From The Granting
Of A Preliminary Injunction
40
B.
The Public Interest Will Be Served By Denying
The Request For Preliminary Injunctive Relief. 40
Conclusion
41
Certificate of Service
42
Addendum
CITATIONS
Cases:
A Quaker Action Group V. Hickel, 137 U.S.App.D.C. 176,
421 F.2d 1111 (1969)
8
Adams V. Vance, 187 U.S.App.D.C. 41, 570 F.2d 950
(1978)
2
*Buckley V. Valeo, 424 U.S 1 (1976)
passim
Cox V. Democratic Central Committee of the District of
Columbia, 91 U.S.App.D.C. 416, 200 F.2d 356 (1952)
8
Hendee V. United States, 22 Ct. Cl. 124 (1887)
25
Humphrey's Executor V. United States, 295 U.S 602 (1935)
28
McCulloch V. Maryland, 17 U.S. ( 4 Wheat.) 316 (1819)
...
37
National Treasury Employees Union V. Reagan,
U.S.App.
D.C.
,
663 F.2d 239 (1981)
25
- ii -
Cases (continued) :
Page
Society for Animal Rights, Inc. V. Schlesigner, 168 U.S.
App.D.C. 1, 512 F.2d 915 (1975)
8
Staebler V. Carter, 464 F. Supp. 585 (D.D.C. 1979)
....
21,29
Steele V. United States, 267 U.S. 505 (1925)
25
United States V. Germaine, 99 U.S. 508 (1879)
25
United States V. Thirty-Seven Photographs, 402 U.S. 363
(1971)
11,23
*Virginia Petroleum Jobbers Ass'n V. Federal Power Comm'n,
104 U.S.App.D.C. 106, 259 F.2d 921 (1958)
13,16,39
Washington Metropolitan Area Transit Comm'n V. Holiday
Tours, Inc., 182 U.S.App.D.C. 220, 559 F.2d 841
(1977)
9
Wiener V. United States, 357 U.S. 349 (1958)
28
Constitution and Statutes:
United States Constitution:
Article I
22
Artice II
passim
Article II, §2
6,29,30,32,
34,38
Communications Satellite Act:
47 U.S.C. 732
22
47 U.S.C. 733(a)
22
Legal Services Corporation Act, Public Law 93-355,
88 Stat. 452:
42 U.S.C. 2996
3
42 U.S.C. 2996c
17
42 U.S.C. 2996c (a)
4,7
42 U.S.C. 2996c (b)
4
42 U.S.C. 2996c (c)
4,23
42 U.S.C. 2996c (d)
4
42 U.S.C. 2996c (e)
4,28,33
42 U.S.C. 2996e (a)
33
42 U.S.C. 2996e (b) (1) (A)
5,33
42 U.S.C. 2996e (b) (1) (B)
5,33
42 U.S.C. 2996i
4,33
42 U.S.C. 2996j
5,33
-iii-
Constitution and Statutes (continued):
Page
5 U.S.C. 2104
25,27
5 U.S.C. 2105
25,27
12 U.S.C. 1749bbb-1 (D)
27
15 U.S.C. 203 (H)
27
18 U.S.C. 4351(d)
27
20 U.S.C. 1047 (c)
27
42 U.S.C. 286b-(A)(8)
27
42 U.S.C. 8104 (E)
27
42 U.S.C. 8713(c)
27
47 U.S.C. 396(d)
26
Miscellaneous:
117 Cong. Rec. 13785
17,26
117 Cong. Rec. 34737
18
119 Cong. Rec. 290693
20
119 Cong. Rec. 40460
19,20,28
120 Cong. Rec. 938
20
120 Cong. Rec. 1388
20,26
124 Cong. Rec. 7688
37
Economic Opportunity Amendments of 1971: Hearings on
Oversight Into Administration of The Economic Opportunity
Act Of 1964 and Consideration of H.R. 40, H.R. 6360,
H.R. 6394, and H.R. 8163 Before the Special Hearing
Subcommittee No. 2 of the House Committee on Education
and Labor, 92d Cong., 1st Sess. 5 (1971)
18
The Federalist Papers, No. 67 (Alexander Hamilton)
20
George, Development of the Legal Services Corporation,
61 Cornell L. R. 681 (1976)
19
H. R. Rep. No. 93-247, 93d Cong., 2d Sess. 2, [1974]
U.S. Code Cong. & Ad. News 3972
3,28
42 Op. Att'y Gen. 165 (Oct. 25, 1962)
22
- iv -
Miscellaneous (continued)
Page
The President's Advisory Council on Executive Organizations,
Establishment Of A Department of Natural Resources --
Organization For Social and Economic Programs (1971)
: .
passim
S. Rep. No. 92-792, 92d Cong , 2d Sess. 2 (1972)
19
7 Weekly Compilation of Presidential Documents 728
(May 10, 1971)
17,26
7 Weekly Compilation of Presidential Documents 1634
(December 21, 1971)
18
9 Weekly Compilation of Presidential Documents 664
(May 11, 1973)
19
*
/
Authorities chiefly relied upon are marked with an asterisk.
- V -
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 82-1227
LEGAL SERVICES CORPORATION, ET AL. ,
Appellants,
V.
HOWARD H. DANA, JR., ET AL.,
Appellees.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRIEF FOR THE APPELLEE
QUESTION PRESENTED
Whether the district court abused its discretion by not
granting a preliminary injunction to former members of the Board
of Directors of the Legal Services Corporation (which injunction
would have permitted the former Directors to continue to serve on
the Board in the place of their successors) on the ground that
the former Directors did not make a strong showing that they were
likely to prevail on the merits of their claim that the
President's recess appointments of their successors were invalid.
This case was previously before this Court upon plaintiffs'
motion for a stay pending appeal of the district court's denial
of preliminary injunctive relief. This motion was denied by a
panel of this Court (Wright, Ginsburg; Bork, not participating)
on March 4, 1982.
STATEMENT OF THE CASE
Nature of the Case.
This is an appeal from the district court's denial of
plaintiffs' application for a temporary restraining order. On
December 30, 1981, and January 22, 1982, during a recess of the
Senate, President Reagan made recess appointments of the ten
defendants in this case to the Board of Directors of the Legal
Services Corporation. Plaintiffs were the incumbent Directors
whose 3-year terms of office had expired and who were replaced by
the President's appointees. Plaintiffs filed a complaint in the
district court requesting temporary, preliminary and permanent
injunctive relief, seeking to prohibit the defendants from
exercising their duties as Board members. Although some of the
plaintiffs had themselves originally been recess appointees to
1/ In its March 4, 1982, Opposition To Appellants' Motion For An
Injunction Pending Appeal, defendants raised to the Court the
jurisdictional defects in plaintiffs' attempt to appeal from the
denial of a temporary restraining order. See, e.g., Adams V.
Vance, 570 F.2d 950 (D.C. Cir. 1970). For the same reasons set
forth in that Opposition, we renew here our argument that the
Court does not have jurisdiction over this appeal. For the
purposes of our brief on the merits, however, we have assumed
arguendo that the district court's denial may be treated as a de
facto denial of a motion for a preliminary injunction.
- 2 -
the Board, 2/ plaintiffs contended that the President has
neither statutory nor constitutional authority to make recess
appointments to the Board. They contended further that they
would be irreparably harmed if the defendants were allowed to
conduct a meeting of the Board on March 4-5, 1982, and continue
to act in their capacity as Board members.
The district court declined to grant a temporary restraining
order. Relying chiefly upon Buckley V. Valeo, 424 U.S. 1 (1976),
which held that officials performing tasks substantially
identical to those performed by the Board members in this case
must be appointed in accordance with Article II procedures (which
include the recess appointment power), the court ruled that
plaintiffs had not met their burden of showing a likelihood of
success on the merits. This appeal followed.
Statutory Scheme.
The Legal Services Corporation Act, 42 U.S.C. 2996, Public
Law 93-355, 88 Stat. 452, created a non-profit corporation,
independent of the Executive branch of the government, to
"replace the Legal Services Program [which had been administered
by] the Executive Office of the President." H.R. Rep. No. 93-
247, 93d Cong., 2d Sess. 2, [1974] U.S. Code Cong. & Ad. News
3872, 3873. As noted by the district court, the Legal Services
Corporation's core function is "the nationwide determination of
2/ Plaintiffs Cecilia Esquer, Steven Engelberg, Hillary Rodham,
and Richard Trudell were given recess appointments to the Board
by President Carter on January 19, 1978. See Exhibit 1 of
Defendants' Memorandum of Points and Authorities in Opposition to
Plaintiffs' Motion for a Temporary Restraining Order.
- 3 -
eligibility for congressional appropriations to finance the
provision of legal services to the poor." Mem. Opinion, p. 8,
note. The governing body of the Corporation is an 11-member
Board of Directors. The structure and status of the members of
the Board are set forth at 42 U.S.C. 2996c:
(a) The Corporation shall have a Board of
Directors consisting of eleven voting members
appointed by the President, by and with the advice
and consent of the Senate, no more than six of
whom shall be of the same political party
(b) The term of office of each member of the
Board shall be three years, except that five of
the members first appointed
shall serve for
a term of two years. Each member of the Board
shall continue to serve until the successor to
such member has been appointed and qualified
(c) The members of the Board shall not, by reason
of such membership, be deemed officers or
employees of the United States.
(d) The President shall select from among the
voting members of the Board a chairman, who shall
serve for a term of three years. Thereafter the
Board shall annually elect a chairman from among
its voting members.
(e) A member of the Board may be removed by a
vote of seven members for malfeasance in office or
for persistent neglect of or inability to
discharge duties, or for offenses involving moral
turpitude, and for no other cause.
The Corporation receives its funds by direct appropriation from
Congress, without the intermediation of any other government
agency. 42 U.S.C. 2996i. It may issue regulations, enforce
compliance with its rules and the Act by terminating funds to
- 4 -
recipients found out of compliance (42 U.S.C. 2996e(b) (1) (A) ) ; it
may conduct hearings pursuant to its own rules (42 U.S.C. 2996j ) ;
and it is the final administrative arbiter of questions
concerning eligibility for services funded under the Act. 42
U.S.C. 2996e(b) (1) (B).
District Court Proceedings.
(1) Proceedings Leading Up To This Appeal. Plaintiffs'
initial complaint was premised upon their contention that the
President did not have the power to make a recess appointment to
the Board. They contended that the statute creating the
Corporation provided only that appointments to the Board were to
be made by the President by and with the advice and consent of
the Senate, and that the statute did not, therefore, grant to the
President the recess appointment power. They contended further
that this was constitutionally permissible on the grounds that
the members of the Board were not "Officers of the United
States," as the Constitution defines that term. They concluded
that absent Senate confirmation, the defendants could not
lawfully assume their posts, notwithstanding that four of the
plaintiffs had themselves assumed their offices pursuant to
recess appointments by President Carter.
The district court's opinion denying plaintiffs temporary
injunctive relief was comprehensive. The court noted that
Congress had followed the Article II format in laying down the
- 5 -
procedures governing the appointment of Board members. It
concluded that there was no suggestion that the normal incidents
of the Article II format -- including the recess appointment
power contained in Article II, §2, cl. 3 -- were not intended by
Congress. However, even if the statutory argument of the
plaintiffs would have had merit, the district court noted that
(Mem. Opinion, p. 6)
[Plaintiffs] have not explained why it would not
be prudent for this Court to read [42 U.S.C.]
$2996c(c) in more restrictive manner in order to
avoid a possible constitutional conflict between
the parameters of congressional authority under
the Necessary and Proper Clause and the
functional breadth of the Article II appointment
power recognized in Buckley.
The court went on to note that in Buckley V. Valeo, supra, the
Supreme Court had taken an expansive, functional approach to
determining the scope of the constitutional term "Officers of the
United States." The court noted that the Board of Directors of
the Legal Services Corporation performed discretionary functions,
particularly regarding the determination of eligibility for
public funds, which were indistinguishable from those functions
that the Supreme Court held, in Buckley, could be performed only
by officers appointed in strict accordance with the procedures
mandated in Article II of the Constitution. The district court
concluded that "plaintiffs have not sufficiently explained why
the functional analysis in Buckley of the Article II appointment
power does not compel the conclusion that LSC Directors are
'Officers of the United States' within the purview of Article II,
- 6 -
§2, cl. 2." Mem. Opinion, p. 7 (emphasis supplied). On these
bases, the district court declined to grant temporary injunctive
relief to the plaintiffs.
An appeal from this denial was noted, and plaintiffs on
March 4, 1982, filed a motion with this Court seeking, as
preliminary injunctive relief pending appeal, the same temporary
relief denied by the district court, namely, an order to permit
them to continue to serve on the Board in the place of their
successors, until such time as their successors' nominations had
been confirmed by the Senate. This motion was denied by this
Court on the ground that plaintiffs "have not demonstrated the
requisite likelihood of success on the merits, generally for the
reasons stated by the district court
=
(2) Proceedings Subsequent To This Appeal. On March 22,
1982, plaintiffs filed an Amended Complaint, in which they added
two additional counts. They argue that whether or not the
President has the authority to make recess appointments to the
Board, the appointments in this case would be invalid because
there were no statutory "vacancies" which could be filled by
recess appointments. In addition, they argue that these
appointments fail to satisfy certain statutory provisions
requiring the Board to be appointed "so as to include eligible
clients, and to be generally representative of the organized bar,
attorneys providing legal assistance to eligible clients, and the
general public." 42 U.S.C. 2996c(a).
3/ The Court's March 4, 1982, order is reproduced in an Addendum
to this brief.
- 7 -
As of April 5, 1982, the date of the filing of this brief,
the district court had yet to rule upon plaintiffs' motion for a
preliminary injunction. Cross-motions for summary judgment were
filed by the parties and were pending before the district court.
ARGUMENT
Standard of Review and Summary.
It is well settled that a preliminary injunction constitutes
"extraordinary relief." Virginia Petroleum Job. Ass'n V. Federal
Power Com'n, 259 F.2d 921, 925 (D.C. Cir. 1958). The granting of
such extraordinary relief is within the sound discretion of the
district court. The role of the reviewing court is limited. The
Court "will not set aside the action of a District Court in
either denying or granting an application for a preliminary
injunction unless the action of the District Court was in clear
error or in abuse of discretion." Cox V. Democratic Central
Committee of the District of Columbia, 200 F.2d 356 (D.C. Cir.
1952). This presents to the reviewing court "a narrow question,
and a great burden on appellants." Society for Animal Rights,
Inc. V. Schlesinger, 512 F.2d 915, 917 (D.C. Cir. 1975). The
standards governing the district court's exercise of discretion
are (Virginia Petroleum Job. Ass'n V. Federal Power Com'n, supra,
259 F.2d at 925) : 4
(1) Has the petitioner made a strong showing
that it is likely to prevail on the merits of
Although Virginia Petroleum Jobbers involved a motion to stay
an administrative order, the factors set forth there also apply
to motions for preliminary injunctions. A Quaker Action Group V.
Hickel, 421 F.2d 1111 (D.C Cir., 1969).
- 8 -
its appeal? Without such a substantial indica-
tion of probable success, there would be no
justification for the court's intrusion into the
ordinary processes of
judicial review.
(2) Has the petitioner shown that without such
relief, it will be irreparably injured?
...
(3) Would the issuance of a stay substantially
harm other parties interested in the
proceedings?
(4) Where lies the public
interest?
...
[Emphasis supplied.]
Plaintiffs made none of these requisite showings, and the
district court did not therefore abuse its discretion in denying
plaintiffs preliminary injunctive relief.
I. Irreparable Injury. Plaintiffs have made no attempt to
show irreparable injury. Their only relevant assertion is that
if they are correct on the merits of this claim, they and not the
defendants should be administering the Corporation. While this
is certainly injury in fact sufficient to establish standing to
prosecute their claim, there is no indication that anything
"irreparable" will be occasioned should plaintiffs ultimately
prevail in this suit and at that time be restored to the offices
of Directors of the Corporation.
II. But, in any event, plaintiffs have failed to make a
strong showing that they are likely to prevail on the merits. To
the contrary, the defendants have demonstrated that Congress
5/ Instead of a "strong showing" of likely success, a movant
need only meet the lesser standard of making a "substantial case
on the merits," when the other three factors tip sharply in the
movant's favor. Washington Metropolitan Area, etc. V. Holiday
Tours, 559 F.2d 841, 843 (D.C. Cir. 1977). As the panel, in its
March 4, 1982, order denying plaintiffs' motion for a stay pend-
ing appeal has already noted, that lower standard has no applica-
tion in this case, since plaintiffs "have failed to demonstrate
that the relief requested will prevent irreparable harm to them
without causing similar harm to the other parties." See
Addendum.
- 9 -
intended for the President to have the power to make recess
appointments to the Board of Directors of the Legal Services
Corporation. The history of the enactment of the Legal Services
Corporation Act is marked by considerable debate over the make-up
of the Board of Directors of the Corporation and the manner of
their appointment. President Nixon insisted that the 11-member
Board be appointed "in the constitutional way," by the President,
with the advice and consent of the Senate. He vetoed an early
bill that would have restricted the appointment powers of the
President, and subsequent compromise proposals which contained
lesser restrictions on the President's power of appointment were
threatened with vetos and failed to win congressional passage for
that reason. Finally, the Congress acceded, and passed the
Administration's bill without change to the appointment
provisions, acknowledging that the President's appointment power
was "unfettered." Thus, the legislative history demonstrates
that the Congress intended, without restriction, to grant the
President the power to appoint members of the Board of Directors
"in the constitutional way". Because the power to make recess
appointments is an incident of the President's appointment power
under Article II of the Constitution, it follows that the
Congress intended the President to have this power.
This construction of the Act is solidly supported by
administrative practice. Without congressional objection, prior
administrations have made recess appointments to the Board of
- 10 -
Directors of the Legal Services Corporation, and to corporations
with similar statutory structures, such as COMSAT and the
Synthetic Fuels Corporation. This construction of the Act is
made all the more compelling by the serious constitutional
questions which arise if the Act is interpreted to deprive the
President of his recess appointment powers granted by Article II
of the Constitution. United States V. Thirty-seven Photographs,
402 U.S. 363, 369 (1971).
Plaintiffs' contentions to the contrary are insubstantial.
Plaintiffs rely almost exclusively upon that clause of the Act
which recites that Board members are not, by reason of their
membership, to be deemed "officers or employees of the United
States." However, there is not any support for the contention
that the term ("officers") was intended in its constitutional
sense, or that a further implication concerning the applicability
vel non of the President's recess appointment power was
contemplated. To the contrary, the context of this term as well
as the way in which similar phrases are used in comparable
statutory schemes suggests strongly that Congress had in mind the
statutory definition of these terms, by which eligibility for
certain statutory entitlements and privileges are determined. In
addition, plaintiffs' reliance on the intent of Congress that the
Corporation be independent of the Executive branch is mis-
placed. Congress intended the appointment process to be one
which insured accountability, not independence; moreover, the
full independence of the Board members is insured by virtue of
- 11 -
the inability of the President to remove them from office, and is
therefore not inconsistent with the President's exercise of the
recess appointment power.
Nonetheless, assuming arguendo that plaintiffs' construction
were correct, then the Act would be unconstitutional. This issue
is controlled by Buckley V. Valeo, 424 U.S. 1 (1976). Buckley
holds that officials whose powers include "rulemaking ...
and
[making] determinations of eligibility for funds," are "Officers
of the United States" in the Constitutional sense and must be
appointed in accordance with the requirements of Article II of
the Constitution. The Board members in this case have as their
"core function", as the district court noted, "the nationwide
determination of eligibility for public funds." Mem. Opinion, P.
8 note. Therefore, the Board members are "Officers of the United
States", and are subject to the President's Article II recess
appointment power. Plaintiffs' attempt to distinguish Buckley on
the ground that the rulemaking and funding-eligibility
determination functions only need to be performed by an Officer
of the United States when exercised in conjunction with executive
enforcement powers is incorrect. Not the least of the reasons
why this is wrong is the express language in Buckley that "each
of these functions also represents the performance of a
significant governmental duty exercised pursuant to a public
law
...
[and] may therefore be exercised only by persons who
are 'Officers of the United States. " 424 U.S. at 140, 141
(emphasis supplied).
- 12 -
III. Injury to the Defendants and the Public Interest.
Finally, whatever injury plaintiffs may be able to claim for
themselves, it is plain that granting them relief will cause
absolutely identical injury to the defendants; and, "[r]elief
saving one claimant from irreparable injury, at the expense of
similar harm caused another, might not qualify as the equitable
judgment that a stay represents." Virginia Petroleum Job. Ass'n
V. Federal Power Com'n, supra, 259 F.2d at 925. Moreover, the
public interest is best served by denying the preliminary
injunction. Should plaintiffs be granted their preliminary
relief and fail to prevail on the merits (or should their claim
become moot by virtue of the Senate's confirmation of their
successors), then the disruption occasioned by displacing one set
of Board members by another would needlessly occur twice: once
as a result of preliminary relief, and once again when the
defendants again assumed their offices. The public interest lies
in the constancy of Board membership, and the risk of double
disruption and the attendant consequences for the administration
of the Legal Services Program should not be undertaken absent the
most extraordinarily compelling showing by plaintiffs. This,
plainly, has not been made.
I
PLAINTIFFS HAVE NOT SHOWN OR ATTEMPTED TO SHOW
THE IRREPARABLE INJURY NECESSARY TO SUPPORT THE
GRANT OF PRELIMINARY INJUNCTIVE RELIEF
Plaintiffs have not attempted to make any showing whatsoever
of irreparable injury. Their sole representation on this matter
in their brief to this Court is that if the defendants have not
13 1 I
been lawfully appointed to their positions, then defendants'
"assertion of such control
...
irreparably injures the Corpor-
ation and the plaintiff directors, and ought to be enjoined. "
Appellants' Brief, p. 26. This confuses their claim on the
merits with the showing necessary to support a grant of
preliminary injunctive relief. It is true, of course, that if
defendants are correct in the contention that their recess
appointments by President Reagan are valid, then it is impossible
for plaintiffs to show any injury to themselves at all by
defendants' continuing to occupy their offices.
However, the converse does not logically follow. It is not
true that if the recess appointments are invalid, that
irreparable injury to plaintiffs will necessarily occur.
Plaintiffs, for example, have not shown what, if any, actions
defendants can or may intend to take in connection with their
administration of the Legal Services Corporation whose
consequences would be "irreparable" should plaintiffs regain the
offices of directors in the ordinary course of the judicial
consideration of their claim.
At p. 26, note 37 of their brief, plaintiffs appear to
incorporate by reference plaintiffs' discussion of "irreparable
injury" which was set forth in 11 17-27 of their Motion For
Injunction Pending Appeal. This, however, adds nothing to their
showing. That motion was concerned exclusively with the alleged
irreparable injuries which would happen if a March 4-5 meeting of
the Board were permitted to occur. The motion was denied and the
meeting was conducted. Minutes of the meeting were filed with
the district court and plaintiffs received copies. Plaintiffs
have not attempted to argue that their dire predictions concern-
ing the consequences of the meeting have occurred, or that this
meeting suggests any injuries which might continue to occur.
Their silence permits the inference that no such harm was
occasioned.
- 14 -
Indeed, plaintiffs virtually concede in their brief that
this appeal from the denial of a temporary restraining order is
primarily designed to obtain from this Court a decision on the
underlying merits of this claim. Plaintiffs state (Appellants'
Brief, p. 7):
Plaintiffs continue to press this appeal because
(1) they continue to believe that they are
entitled to interim injunctive relief pending
resolution of the merits, and (2) the public
interest in the prompt resolution of this
dispute will be served by an early determination
by this Court of the underlying legal issue as
to the requirement of Senate confirmation of
directors of the Legal Services Corporation.
[Emphasis supplied.]
However, plaintiffs' desire for an early resolution on the
underlying merits of their claim should not be a relevant element
of this appeal. 1/ This appeal concerns the denial of a
temporary restraining order and even considered as a de facto
denial of a preliminary injunction, such preliminary relief
requires as a threshold matter a showing of irreparable
injury. Plaintiffs have made no such showing, and their appeal
7/ In assessing the propriety of plaintiffs' suggestion that
this Court use this appeal as a vehicle to determine "the
underlying legal issue as to the requirement of Senate
confirmation, the Court may wish to consider (1) the issue of
Senate confirmation may lead to very significant constitutional
questions implicating the relation between Congress' authority
under the Necessary and Proper Clause and the President's
authority under Appointments Clause of Article II; and
(2) the plaintiffs are presently proceeding on the merits in the
district court on the basis of an amended complaint which
contains two additional counts that have no constitutional
dimension whatsoever. Thus, if plaintiffs should succeed on
either of these latter counts, and this Court were to follow
plaintiffs' suggestion and reach the constitutional issues, the
Court would have unnecessarily resolved questions of the utmost
moment, contrary to sound principles of judicial restraint.
- 15 -
should therefore be dismissed on this basis alone, without any
further consideration of the four factors set forth in Virginia
Petroleum Jobbers. However, as we discuss below, plaintiffs have
also failed completely to make the requisite showing regarding
likelihood of success, harm to others, and the public interest.
II
PLAINTIFFS HAVE NOT SHOWN A STRONG LIKELIHOOD OF
SUCCESS ON THE MERITS OF THEIR CLAIM
Congress adopted the Article II format in establishing the
procedures for the appointment of Board members. The power of
the President to make recess appointments is an incident of the
President's Article II powers, and absent a contrary expression,
must be assumed to be intended when the Congress adopts that
format. Moreover, a contrary construction which deprived the
President of this power, in light of the functions performed by
the Directors, would be unconstitutional and void.
Plaintiffs' contrary arguments are now asserted for the
third time. The district court found that they did not show any
likelihood of success and refused to grant a temporary restrain-
ing order. The plaintiffs then urged these same arguments before
a panel of this Court in support of their request for a stay
pending appeal, and the panel held that these arguments did "not
demonstrate[] the requisite likelihood of success on the merits,
generally for the reasons stated by the District Court in its
March 3, 1982, Memorandum Opinion." See Addendum. For the
same reasons, they should once again be rejected.
A.
Congress Intended The President To Have The
Authority To Make Recess Appointments To
The Board Of Directors Of The Legal
Services Corporation.
- 16 -
1. The Legislative History Of The Legal Services
Corporation Act As Well As Traditional Rules Of
Statutory Construction Compel The Conclusion That
The Congress Intended The President To Have The
Power To Make Recess Appointments Of Board Members.
In 1971, the President's Advisory Council on Executive
Reorganization, the Ash Commission, submitted a report
recommending the establishment of a non-profit Legal Services
Corporation.
Up to that time, the Legal Services Program had
been administered within the Executive Office of the President by
the Office of Economic Opportunity. Ash Commission Report, p.
61. However, the legal representation provided under this
program sometimes required that suits be brought against the
various departments of the government, generating actual or
apparent conflicts of interest. The Commission believed that
such conflicts jeopardized the effective operation of the
program, and suggested that the President propose "legislation to
establish a public corporation to administer the Legal Services
Program
modeled on the amendments to the Communications Act
of 1934 which established the Public Broadcasting Corporation."
Ash Commission Report, p. 135.
Subsequently, on May 5, 1971, the President proposed
legislation to Congress for the purpose of creating a Legal
Services Corporation. The President discussed specifically the
question of the appointment of the governing Board of Directors
of the Corporation, noting that "[t]rue independence for [the
8/ The President's Advisory Council on Executive Organization,
Establishment Of A Department Of Natural Resources--Organization
For Social And Economic Programs (1971) (hereinafter, the "Ash
Commission Report").
- 17 -
Corporation] demands a governing body drawn from a wide spectrum
and safeguarded against partisan interference after its
appointment." 7 Weekly Compilation of Presidential Documents 728
(May 10, 1971) (emphasis supplied). The legislation introduced
on behalf of the President in the House, H.R. 8163, contained
virtually all of the provisions ultimately enacted into law as 42
U.S.C. 2996c concerning the structure of the Board, the manner of
9/
its appointment, and the status of its members.
The bill
proposed an 11-member Board of Directors, appointed by the
President with the advice and consent of the Senate, who would be
removable only by vote of the members of the Board for specified
10/
causes.
However, the Congress initially resisted this
proposal, and the mode and manner of the appointment of the Board
became the subject of a protracted struggle.
In place of the administration bill, the House Committee on
Education and Labor reported to the floor H.R. 10351. This
compromise bill provided for a 17-member Board of Directors, six
of whom would be appointed by the President from members of the
public at large, the remainder of whom would be appointed by the
President from lists submitted from various interested
The text of H.R. 8163 is set forth at 117 Cong. Rec. 13788-90
(May 6, 1971). Compare Section 902 of H.R. 8163 with 42 U.S.C.
2996c.
10/ The administration bill also contained the provision that
Board members, on account of their membership, not be deemed
"officers or employees" of the United States. H.R. 8163,
902(c). None of the many bills proposed as alternatives to the
administration bill contained this language.
- 18 -
11/
organizations.
These provisions were ultimately passed by
12/
both the House and Senate.
This bill was vetoed by President Nixon. In his veto
message, the President stated (7 Weekly Compilation of
Presidential Documents 1634-35 (December 31, 1971) )
The restrictions which the Congress has
imposed upon the President in the selection of
directors of the Corporation is also an
affront to the principle of accountability to
the American people as a whole. Under
congressional revisions, the President has
full discretion to appoint only six of the
seventeen directors
The sole
constituency a Director of the Corporation
must represent is the whole American people.
The best way to insure this in this case is
the constitutional way--to provide a free hand
in the appointive process to the one official
accountable to, and answerable to, the whole
American people--the President of the United
States, and trust to the Senate of the United
States to exercise its advice and consent
function. [Emphasis supplied. I
After the President's veto was sustained, compromise bills
(H.R. 12350 and S. 3010) were introduced and passed in the
respective Houses of the 92d Congress. A conference committee
proposed adoption of the Senate version of the bill, which would
11/ H.R. 10351 reflected a compromise between the provisions of
H.R. 8163 and H.R. 6360, the so-called "bi-partisan" bill. H.R.
6360 would have given the President authority to appoint only 5
members of a 19-member Board; 6 members would serve ex officio,
the balance being appointed by other appointing authorities. See
H.R. 6360, $904 (reproduced at Economic Opportunity Amendments of
1971: Hearings on Oversight Into Administration Of The Economic
Opportunity Act Of 1964 and Consideration of H.R. 40, H.R. 6360,
H.R. 6394, and H.R. 8163 Before the Special Hearing Subcommittee
No. 2 of the House Committee on Education and Labor, 92d Cong.,
1st Sess. 5 (1971)).
12/ The actual bill passed by the House was S.2008, amended to
contain the provisions of H.R. 10351. 117 Cong. Rec. 34737
(October 1, 1971).
- 19 -
have allowed the President "full discretion to name ten members
of a 19-member Board, subject only to the constraint that six of
the ten must be attorneys and the remaining members would be
nominated by the President from the recommendations made to
him. All nominees must be confirmed by the Senate." S. Rep. No.
92-792, 92d Cong., 2d Sess. 2 (1972). However, this continued
limitation on the President's power of appointment led to the
threat of another veto, and the 92d Congress recessed without
passage of a Legal Services Bill. See generally George,
Development of the Legal Services Corporation, 61 Cornell L. R.
681, 693 (1976).
In 1973, the administration proposed legislation (H. R.
7824) to the 93d Congress regarding the Legal Services
Corporation. The provisions relating to the appointment, status
and make-up of the Board of Directors were virtually identical to
those proposed in 1971. See 9 Weekly Compilation of Presidential
Documents 664 (May 11, 1973). The Congress this time did not
contest the administration bill's provisions regarding
appointment of the Board members (119 Cong. Rec. 40460 (December
10, 1973) (remarks of Senator Mondale) )
For over 2 years, those of us who believe
strongly in the legal services program have
been insistent that there be some checks on
the President's discretionary appointment
power to the Legal Services Corporation Board
of Directors
In the committee-reported bill, the
President has complete discretion in his
appointments to the Board, subject only to
Senatorial advice and consent. This
represents a major concession on the part of
those favoring a strong, independent legal
services corporation.
- 20 -
The Congress acceded to President Nixon's insistance that he
be given power to appoint the members of the Board of Directors
"in the constitutional way," and passed H.R. 7824 which was
enacted into law. At every point during its consideration of
H.R. 7824, the Congress emphasized that it intended no
13/
restrictions whatsoever on this authority.
But the President's constitutional power to appoint officers
of the United States by and with the advice and consent of the
Senate includes as "a supplement" the power to make recess
appointments. The Federalist Papers, No. 67 (Alexander
Hamilton). Necessarily, therefore, in granting the President the
authority to appoint members of the Board of Directors of the
Legal Services Corporation "in the constitutional way," the
Congress impliedly granted him the power to make Article II
recess appointments. This construction is especially forceful in
light of the Congress' repreated expressions that it was not
attempting to restrict the President's appointment power.
Traditional rules of construction independently lead to this
same conclusion. First, in the thousands of pages of debate and
hearings over the provisions of the Legal Services Corporation
Act, the role of the President in the appointment process plays a
particularly leading role; yet, not one of the dozens of
13/ See, e.g., 119 Cong. Rec. 40461 (remarks of Sen. Kennedy):
119 Cong. Rec. 40476 (remarks of Sen. Javits: "the committee
bill[] follow[ [s] exactly the administration's proposal [regarding
appointment to the 11-man board]") ; 120 Cong. Rec. 1391 (remarks
of Sen. Kennedy); 119 Cong. Rec. 20693 (remarks of Cong.
Erlenborn) ; 120 Cong. Rec. 938 (remarks of Sen. Nelson:
appointment power of President is "unfettered").
- 21 -
congressmen and senators who spoke to this issue ever indicated
that the Congress intended to restrict the power of the President
to make recess appointments. As observed by Judge Harold Greene
in Staebler V. Carter, 464 F.Supp. 585, 592 (D.D.C. 1979)
[It is] difficult to believe that, had the
Congress intended to take the significant step
of attempting to curtail the President's
constitutional recess appointment power, or
even to legislate in the area of that power,
it would not have considered the matter with
more deliberation or failed to declare its
purpose with greater directness and
precision. No such deliberation or direction
can be found in this legislative history.
Likewise in this case, had the Congress intended the President
not to have the recess appointment power, it is inconceivable
that, in all of the available legislative history, that
proposition would not have found some mention.
Moreover, this construction is solidly supported by
administrative practice. On January 19, 1978, President Carter
made five recess appointments to the Board of Directors of the
Legal Services Corporation. Four of the plaintiffs were among
these recess appointees. See Exhibit A, Memorandum Of Points And
Authorities In Opposition To Plaintiffs' Motion For A Temporary
Restraining Order. President Carter sent the names of these
individuals to the Senate for confirmation when the Senate
returned to session, and the appointments were confirmed without
any indication by the Senate that it believed recess appointments
were inappropriate. Similarly, President Kennedy in 1962 made
recess appointments of incorporators of the Communications
- 22 -
Satellite Corporation 14/ (Id.), and on October 3, 1980,
President Carter made 5 recess appointments to the Board of
Directors of the United States Synthetic Fuels Corporation (Id.)
without subsequent objection by Congress.
This interpretation of the Act is made all the more
compelling by serious constitutional questions which would be
occasioned by the plaintiffs' construction. As is discussed in
detail below, for Congress to create a Board of Directors to
administer a significant federal grant program, and to attempt to
insulate these Board members from the full range of appointment
authority provided by the Constitution, would give rise to
fundamental separation of powers questions under Articles I and
II of the Constitution. In light of such serious questions, and
especially in circumstances where the legislative history gives
14/ The Communications Satellite Act, 47 U.S.C. 732, 733 (a),
provides that the incorporators of this profit-making corporation
(and 3 of 15 directors) are to be appointed by the President, by
and with the advice and consent of the Senate. No objection was
made to recess appointments of the incorporators by President
Kennedy. Moreover, an opinion of the Attorney General (42 OAG
165, Oct. 25, 1962), in the course of concluding that the
incorporators held private posts and were not Officers of the
United States, noted without objection that they had received
recess appointments. 42 OAG at 165 n.2. The basis of the
Attorney General's failure to object to the mode of appointment
can only have been that the adoption by the Congress of the
Article II format grants the recess appointment power to the
President. See 42 OAG at 166 ("The method of appointment
...
is, of course, derived from
Article II.")
This Attorney General Opinion is incorrectly cited by
plaintiffs at page 24 of their brief as standing for the
proposition that "the President has no power to make recess
appointments." [Emphasis supplied.] This reading confuses the
Opinion's holding on the question of whether the incorporators
(and directors) of this profit-making corporation are public
officers with the separate question of the President's statutory
powers of appointment.
- 23 -
not the slightest indication that Congress intended to provoke a
constitutional challenge, a sound respect for the principles of
judicial restraint requires a court, if fairly possible, to avoid
the constitutional issues: "[I]t is a cardinal principle that
this Court will first ascertain whether a construction of the
statute is fairly possible by which the [constitutional]
question[s] may be avoided." United States V. Thirty-seven
Photographs, supra, 402 U.S at 369 (emphasis supplied). An
interpretation affording the President a power to make recess
appointments is considerably more than "fairly possible."
Therefore, it is necessary for the Court to adopt that
construction which avoids resolution of difficult constitutional
issues involving the most sensitive relationships between coequal
branches of the Federal government.
2. Neither The Intended "Independence" of the
Corporation Nor The "Officers and Employees"
Clause Supports The Contention That Congress
Did Not Intend The President To Have The Power
To Make Recess Appointments To The Board.
Plaintiffs make two arguments in support of their contention
that Congress did not intend the President to have the power to
make recess appointments to the Board. They rely on 42 U.S.C.
2996c(c), which provides that the "members of the Board shall
not, by reason of such membership, be deemed officers or
employees of the United States," and also upon those portions of
the legislative history emphasizing the congressional intent that
the Board be independent of the Executive branch. Plaintiffs
argue the power to make recess appointments is inconsistent with
these two provisions.
- 24 -
(a) The "Officers and Employees" Clause. Plaintiffs'
argument appears to be that, by this clause, Congress displayed
its intent that Board members were not, for constitutional
purposes, to be considered "Officers of the United States," and
that it meant thereby to "limit Executive Branch control over the
Legal Services Program" by "modif[ying] the powers of appointment
the President would have had if the Corporation were part of the
government and its directors 'officers of the United States.
Appellants' Brief, pp. 10, 12. This is incorrect for several
reasons.
(i) First, the presence of this clause in the Act is due
solely to the insistence of the President. In none of the bills
introduced in Congress by which the Congress intended to limit
executive appointment authority is there any parallel to the
officer and employee clause. The fact that the President, in the
course of insisting upon his authority to make appointments to
the Board "in the constitutional way," deliberately insisted upon
the insertion of this clause in the administration bill which was
ultimately passed by Congress strongly suggests that the clause
was neither intended nor perceived as a limitation on the
appointment authority.
(ii) Moreover, the clause uses, as if interchangable, the
terms "officer" and "employee." It is plain that being an
"employee of the United States" has no constitutional
- 25 -
15/
significance whatsoever.
Therefore, in order to accept
plaintiffs' construction, it would be necessary to assume that
the President and Congress intended one segment of the clause to
have a constitutional dimension ("officers") while the remaining
segment ("employees") had only a statutory dimension. But this
is contrary to traditional rule of noscitur a sociis, which
16/
requires words to be construed with an eye to their context.
(iii) In addition, plaintiffs' construction is inconsistent
with what legislative history exists concerning the clause.
There is virtually no express comment upon the clause in the
15/ Both "Officer of the United States" and "Employee of the
United States" do have a statutory significance. Both terms are
defined at 5 U.S.C. 2104, 2105. As this Court has noted, in
order to "obtain the benefits of [the statutory protection due
federal employees and officers, individuals] must come within the
definition of employee [or officer] set forth in 5 U.S.C.
$2105(a)." National Treasury Employees Union V. Reagan, 663 F.2d
239, 246 (D.C. Cir. 1981).
16/ Plaintiffs claim to rely upon the "long-established rule that
when the term 'officer of the United States' is used in a
statute, it means officer in a constitutional sense unless
Congress explicitly states to the contrary." Appellants' Brief,
p. 9. There is no such rule. The two cases relied upon by
plaintiffs (United States V. Germaine, 99 U.S. 508 (1879) and
Steele V. United States, 267 U.S. 505 (1925)) were both cases
involving the construction of penal statutes. As noted in Hendee
V. United States, 22 Ct. Cl. 124, 140 (1887), Germaine thereby
"confined the Court to that technical accuracy in the meaning of
words which is required in penal statutes," and is of no
precedential value in construing a civil statute 22 Ct. Cl. at
140. Hendee recognized that the phrase "officer of the United
States" is "frequently used in a broader sense than the technical
one fixed by the constitutional method of appointment, and that
use of it is occasionally found in statutes." 22 Ct. Cl. at 142,
141.
- 26 -
Congressional hearings, reports and debates on the Act. 17,
But
it is several times mentioned that the mode of appointment of the
Board of Directors of the Legal Services Corporation was designed
on the model of the Public Broadcasting Corporation. See 117
Cong. Rec. 13785 (May 6, 1971) (remarks of Cong. Quie upon
introduction of administration bill); 7 Weekly Compilation of
Presidential Documents 728 (May 10, 1971) ; Ash Commission Report,
p. 135. The act establishing that Corporation contains a similar
provision regarding the members of its governing board (47 U.S.C.
396(d)):
(2) The members of the Board shall not, by
reason of such membership, be deemed to be
employees of the United States. They shall,
while attending meetings of the Board or while
engaged in duties related to such meetings or
in other activities of the Board pursuant to
this subpart[,] be entitled to receive
compensation at the rate of $100 per day
including travel time
While there is no legislative history directly concerned with
this provision, its context makes clear that the "employee"
language is intended to exclude Board members from the myriad of
statutory benefits afforded to federal employees -- i.e., job
protection, retirement benefits, promotion schedules and other
attendant job privileges -- in the course of establishing a
17/ The sole comment on the clause appears to be a question by
Senator Fannin, during the course of extended criticism of the
bill, asking whether this provision was connected with the
provision in the bill giving the Board members the right to
appoint their chairman. 120 Cong. Rec. 1388, 1389 (Jan 30,
1974). Senator Fannin was not concerned with the bill in
committee, and his questions were not responded to by the bill's
sponsors.
- 27 -
18/
limited, fixed compensation scheme for the members.
Because
the Public Broadcasting Act served as a model for the Legal
Services Corporation Act regarding the make-up and appointment of
the Corporation's Board of Directors, it may be assumed, in the
absence of any comment upon the subject at all, that the "officer
and employee" section of the Legal Services Corporation Act
intends, as does the Public Broadcasting Act, merely to exempt
the Board members from the statutory benefits and privileges
which obtain to those who meet the statutory definitions of
"Officer of the United States" (5 U.S.C. 2104) or "Employee of
the United States" (5 U.S.C. 2105).
Thus, in light of the indications that this clause refers
only to statutory entitlements, and in light of express
statements that Congress intended no limitations on the
President's appointment powers, this clause cannot be understood
as a limitation on the President's power to make recess
appointments.
(b) The Independence of the Corporation. Plaintiffs also
argue that the Congress intended that the Board members have
18/ More or less similar status provisions, always in the context
of some compensation scheme, are found in several statutory
schemes. See, e.g., Advisory Board of the National Institute of
Corrections, 18 U.S.C. 4351 (d) (Board members not "officers or
employees of the United States" in context of compensation
scheme) ; United States Metric Board, 15 U.S.C. 203 (H) (payments
to Board members do not render them "employees or officials" of
the United States); National Periodical System Corporation, 20
U.S.C. 1047 (c) Advisory Board, National Insurance Development
Program, 12 U.S.C. 1749bbb-1 (D) see also, National Cancer
Advisory Board, 42 U.S.C. 286b( (a) (2) (A) (8) National Neighborhood
Reinvestment Corporation, 42 U.S.C. 8104 (E) Synthetic Fuels
Corporation, 42 U.S.C. 8713(c).
- 28 -
certain qualifications, and that "the importance of these
provisions in protecting the independence of the Corporation
would be vitiated if the president could circumvent the Senate's
insistence on adherence to these standards by simply making
recess appointments.
II Appellants' Brief, p. 14. This
misses the mark. First, the appointment process was not designed
to insure the independence of the Corporation, but, to the
contrary, was insisted upon by the President and acknowledged by
the Congress to "provide[] strong elements of accountability [to
the Congress and the President]." 119 Cong. Rec. 40476 (Dec. 10,
1973) (remarks of Sen. Javits, emphasis supplied); H.R. Rep. No.
93-247, supra, 3, [1974] U.S. Code Cong. & Ad. News 3874. But,
in any event, the independence of the members of the Board is
guaranteed by 42 U.S.C. 2996c(e), which provides that "[a] member
of the Board may be removed by a vote of seven members for
malfeasance in office or for persistent neglect of or inability
to discharge duties, or for offenses involving moral turpitude,
and for no other cause." This is the principal and traditional
method of insuring the independence of an agency, commission or
corporation from the political influence of the Executive
branch. Humphrey's Executor V. United States, 295 U.S. 602
(1935) Wiener V. United States, 357 U.S. 349 (1958); Buckley V.
Valeo, supra, 424 U.S. at 136 (".
members of independent
agencies are not independent of the Executive with respect to
their appointments.") That the President's recess appointment
power is not perceived as a threat to independence is underscored
by the fact that the power extends even to Justices of the
- 29 -
Supreme Court, members of lower courts and the independent
regulatory agencies, appointees with needs for an extraordinary
degree of independence. Staebler V. Carter, supra, 464 F. Supp.
585; United States V. Allocco, 305 F.2d 704 (2d Cir. 1962), cert.
denied, 371 U.S. 964 (1963).
Thus, neither of the plaintiffs' arguments disturbs the
conclusion that Congress intended the President to have the
authority to make recess appointments to the Board. This
conclusion is firmly supported by Congress' expressed intent to
leave "unfettered" the President's authority to appoint to the
Board "in the constitutional way," and is confirmed by Congress'
acquiescence in recess appointments made to this and similar
boards during previous administrations.
B. Assuming Arguendo That Congress Intended To
Limit The Power Of The President To Make
Recess Appointments To The Board, The Act Is
An Unconstitutional Violation Of Article II,
$2, Which Governs The Mode Of Appointment Of
Officers Of The United States
Assuming arguendo that plaintiffs were correct and that
Congress intended in the Legal Services Corporation Act to divest
the President of the power to make recess appointments to the
Board, the Act would violate Article II, §2 of the
Constitution. Article II, §2 provides, in pertinent part:
[The President,] by and with the Advice and
Consent of the Senate, shall appoint
all
other Officers of the United States, whose
Appointments are not herein otherwise provided
for, and which shall be established by law:
but the Congress may by Law vest the
Appointment of such inferior Officers, as they
think proper, in the President alone, in the
Courts of Law, or in the Heads of
Departments.
- 30 -
The President shall have Power to fill up
all Vacancies that may happen during the
Recess of the Senate, by granting Commissions
which shall expire at the End of their next
Session.
Thus, the Constitution makes the recess appointment power extend
to all offices held by "Officers of the United States," which
require appointment by the President by and with the advice and
consent of the Senate. Buckley V. Valeo, supra, 424 U.S. 1,
establishes that, if an officer performs a function which can be
performed only by an Officer of the United States, he must be
appointed in accordance with the exclusive requirements of
Article II of the Constitution. The duties of the members of the
Board of Directors of the Legal Services Corporation, which
include the discretionary determination of eligibility for public
funds, can only be performed by Officers of the United States.
Therefore, the President's constitutional power under Article II
to make recess appointments extends to the offices of the Board
of Directors of the Legal Services Corporation, and any attempt
to restrict this power would be unconstitutional and void.
1. Buckley V. Valeo
The analyses and principles set forth in this Supreme Court
decision control the resolution of the constitutional issue in
this case. One of the central issues in Buckley concerned the
mode of appointment of members of the Federal Election
Commission. The members of this Commission were not appointed in
conformance with the provisions of Article II, which, the Court
held, was the sole permissible method of appointing "Officers of
- 31 -
19/
the United States" to their respective offices.
The term
"Officers of the United States" was held "to embrace all
appointed officers exercising responsibility under the public
laws of the Nation." 424 U.S. at 143. The principle taught by
Buckley, therefore, is that officials who are intended to
exercise the functions of Officers of the United States must be
appointed to office in accordance with the Article II methods of
appointment.
The application of this principle in Buckley is particularly
instructive. The Court noted that the Commission performed three
categories of functions (424 U.S. at 137)
[1] functions relating to the flow of
necessary information -- receipt, dissem-
ination, and investigation; [2] functions with
respect to the Commission's task of fleshing
out the statute -- rulemaking and advisory
opinions; and [3] functions necessary to
ensure compliance with the statute and rules
-- informal procedures, administrative
determinations and hearings, and civil
suits.
Functions of the first type, relating essentially to information
gathering, are of a type which could be [] performed by a
congressional committee and could therefore "be performed by
persons not 'Officers of the United States. " 424 U.S. at 139.
However, the latter two categories of functions, were not "merely
in aid of the legislative function of Congress." 424 U.S. at
19/ Of the six voting members of the Commission, two were
appointed by the President with the advice and consent of both
the Senate and the House of Representatives; two by the Speaker
of the House; and two by the President pro tempore of the
Senate. The Secretary of the Senate and the Clerk of the House
were ex officio, non-voting members. Buckley V. Valeo, supra,
424 U.S. at 113.
- 32 -
138. Some of the Commission's powers -- its discretionary power
to seek judicial relief -- were executive powers, entrusted to
the President and subject to his direction. 424 U.S. at 138.
The other administrative powers of the Commission were, like the
powers of the Legal Services Corporation in this case, somewhat
legislative or judicial in character, and of a kind "usually
performed by independent regulatory agencies or by some
department in the Executive Branch
"
424 U.S. at 141.
These powers included (424 U.S. at 140)
[1] rulemaking, [2] advisory opinions, and [3]
determinations of eligibility for funds and
even for federal elective office itself.
[Emphasis supplied.]
The Court ruled that each of these functions could only be
performed by an officer of the United States in the Article II
sense of the term (424 U.S. at 141) :
[E]ach of these functions also represents the
performance of a significant governmental duty
exercised pursuant to a public law
...
[N]one of them operates merely in aid of
congressional authority to legislate or is
sufficiently removed from the administration
and enforcement of public law to allow it to
be performed by the present Commission. These
administrative functions may therefore be
exercised only by persons who are "Officers of
the United States." [Emphasis supplied.]
Thus, the Court concluded that the appointment provisions
relating to the Commission members were unconstitutional, as they
did not conform to the exclusive provisions set forth in Article
II, §2.
2. Application of Buckley To This Case.
Buckley squarely applies to this case. Whether the members
of the Board of Directors of the Legal Services Corporation are
- 33 -
"Officers of the United States" and their appointment subject to
the provisions of Article II of the Constitution depends upon the
functions they perform. These functions are set principally
forth at 42 U.S.C. 2996e and 2996f. Most importantly, the
Corporation, under the direction of the Board, administers a
federal grant program previously administered by the Executive
Office of the President and funded by direct appropriations from
Congress. 42 U.S.C. 2996e, 2996i.
...
the Corporation is authorized -- (1)(A)
to provide financial assistance to qualified
programs furnishing legal assistance to
eligible clients, and to make grants to and
contracts with -- (i) individuals,
and
(ii) State and local governments
...
for the
purpose of providing legal assistance to
eligible clients under this subchapter and (B)
to make such other grants and contracts as are
necessary to carry out the purposes and
provisions of this subchapter. [42 U.S.C.
2996e(a) ]
In addition, the Corporation is authorized to issue regulations,
and it has the primary "authority to insure compliance of
recipients and their employees with the provisions of [the Act]
and the rules, regulations, and guidelines promulgated by [the
Corporation] 42 U.S.C. 2996e(b) (1) (A). The Corporation may
hold a hearing, conducted pursuant to its own rules and before
hearing examiners it has appointed, to determine questions of
compliance; it may terminate assistance to those found out of
compliance. 42 U.S.C. 2996j, 2996e(b) (1) (A). The Corporation is
also the final administrative arbiter of questions concerning
eligibility for services under the Act. 42 U.S.C.
2996e (b) (1) (B).
- 34 -
"[R] ulemaking
...
and determinations of eligibility for
public funds" were, in Buckley V. Valeo, supra, 424 U.S at 140-
41, held to constitute "performance of a significant governmental
duty exercised pursuant to a public law," and "may therefore be
exercised only by persons who are 'Officers of the United
States. The duties of the Board of Directors of the Legal
Services Corporation are of the same nature as the duties of the
Commission members in Buckley. Buckley therefore compels the
conclusion that the duties of the Board of Directors of the Legal
Services Corporation can only be performed by "Officers of the
United States." Consequently, they must be appointed in
accordance with the requirements of Article II, which includes
the power of the President to make recess appointment for "all
vacancies." Constitution, Article II, §2, cl. 3.
3. Plaintiffs' Arguments Do Not Support A
Contrary Conclusion
Plaintiffs' attempts to distinguish this case from the
decision in Buckley distort the analysis of that case and lead to
absurd results. Plaintiffs claim that the decision in Buckley
turned exclusively upon the fact that the Federal Election
Commission was given Executive enforcement functions. They claim
that the Commission's power to determine eligibility for public
funds was merely a power in the service of this enforcement
function, and that only because of this subordinate relation was
it necessary that this power be exercised by an Officer of the
United States. They conclude that if the discretionary
distribution of public funds is not subordinated to an
enforcement function, it need not be performed by an Officer of
- 35 -
the United States, but may be performed by anyone Congress
designates or even by Congress itself (Appellants' Brief, pp. 19-
20):
The District Court was wrong to apply
Buckley to this case because the Legal
Services Corporation's making of grants is not
a power that operates in aid of a basic
function of enforcement of public law, as was
the case with the Federal Election
Commission. On the contrary, the making of
grants is the chief activity and function of
the Corporation. That function, the
distribution of funds, is well within those
functions that Congress may carry out by
itself in furtherance of its spending power.
[Emphasis supplied.]
Plaintiffs' theory leads to the absurd result that, for example,
the Departments of Health and Human Services, Education, and the
Veterans' Administration, all of which are concerned almost
exclusively with the distribution of funds, may be removed from
the Executive Branch where they are administered by Officers of
the United States, and administered by congressional committees,
at the discretion of Congress; plainly this is wrong.
(a) First, even if enforcement were of signal importance, it
is only necessary to note that the Legal Services Corporation, at
the administrative level, has powers of enforcement at least as
important to its overall administration of the Act as were those
of the Federal Election Commission.
(b) More importantly, however, the decision in Buckley did
not turn upon the enforcement powers of the Commission and the
relation of other powers to it. Indeed, the Court took exactly
the opposite approach, noting that there were many powers which
the Commission could exercise, which were merely in aid of
- 36 -
congressional legislative authority, and others that it could not
exercise, since they constituted the exercise of significant
duties in the administration of public law. The Court treated
the powers individually. It concluded that the Commission's
enforcement power "may be discharged only by persons who are
'Officers of the United States' within the language [of Article
II of the Constitution]" (424 U.S. at 140), and then went on to
an independent consideration of administrative powers of
"rulemaking
...
and determinations of eligibility for funds,"
which the Court regarded as "more legislative and judicial in
nature than are the Commission's enforcement powers." 424 U.S.
at 140, 141. It came to the independent conclusion that "each of
these functions also represents the performance of a significant
governmental duty exercised pursuant to a public law
...
[and
t] hese administrative functions may therefore be exercised only
by persons who are 'Officers of the United States. 424 U.S. at
141 (emphasis supplied). Accordingly, the administration of a
federal program involving primarily the discretionary
distribution of annual congressional appropriations pursuant to a
public law is, in itself, a function which can only be performed
by an Officer of the United States.
(c) The judicial authorities cited by plaintiffs in support
of their argument that Congress may create offices "not
controlled by 'Officers of the United States' to carry out
Congress' spending and other powers" (Appellants' Brief, p. 20)
are remarkable in one respect: none of them discusses this
- 37 -
20/
issue.
For example, in support of the proposition that it
is constitutional for Congress to "create[] private corporations
whose purposes include the spending of federal funds even though
the corporate directors were not subject to the President's
Article II appointment powers," plaintiffs cite McCulloch V.
Maryland, 17 U.S. (4 Wheat.) 316 (1819). Appellants' Brief, p.
21. So far, however, from standing for this proposition is
McCulloch, that Chief Justice Marshall's opinion never even
discusses the appointment of the Board, let alone in connection
with the functions of the Board members. Indeed, the only part
of that opinion pertinent to this case is that, under the
Necessary and Proper Clause, Congress may employ a corporation to
carry into execution the powers of the government. 17 U.S. at
421-22. However, as the Court noted in Buckley, McCulloch does
not stand for more (424 U.S. at 132)
Congress has plenary authority in all areas in
which it has substantive legislative
20/ The only source cited by plaintiffs which actually bears upon
the constitutionality of recess appointments to the Board of the
Legal Services Corporation is a study conducted by the
Congressional Research Service, The President's Power To Make
Recess Appointments To Fill Vacancies On The Board Of Directors
Of The Legal Services Corporation, 124 Cong. Rec. 7688 (March 20,
1978). Appellants' Brief, p. 25. The study concluded that the
President could not make recess appointments to the Board of
Directors, because the Corporation had no authority to prosecute
violations of law and because "the functions of the Corporation
are not 'significant' governmental duties exercised pursuant to
public law." Id., 7690. This conclusion has no significance
because the report fails to note or consider the fact that the
functions of the Corporation include rulemaking, authority to
compel compliance with rules and statutes by administrative
means, authority to settle eligibility questions, and that the
Corporation was administering a federal grant program which had
previously been performed by an agency (the OEO) which was a part
of the Executive Branch.
- 38 -
jurisdiction, M'Culloch V. Maryland, 4 Wheat.
316 (1819), so long as the exercise of that
authority does not offend some other
constitutional restriction. [Emphasis
supplied.]
Here, of course, such a constitutional restriction does exist, in
the form of Article II, §2, which governs the mode of appointment
of Officers of the United States.
Moreover, as the Court in Buckley made clear, Congress has
the discretion to create offices not under the control and
direction of Officers of the United States "only in aid of those
functions that Congress may carry out by itself." 424 U.S. at
139 (emphasis supplied). But the only power, generally speaking,
that Congress has "by itself" is the legislative power. That is,
Congress may make laws about spending or other matters. But,
this legislative power does not extend to the administration of
those spending programs or other programs over which Congress has
legislative authority. Buckley V. Valeo, supra, 424 U.S. at
139. If Congress could, as plaintiffs assert, either assign to
itself or create offices not directed by Officers of the United
States for the purpose of "carry[ing] out Congress' spending and
other powers" (Appellants' Brief, p. 20), then the Executive and
Judicial Branches would no longer function as effective checks on
the exercise of power by Congress.
Thus, plaintiffs' arguments are wrong, and if the Act were
construed to allow for the appointment of the Board of Directors
of the Legal Services Corporation in a manner inconsistent with
the Constitution's mandated procedures, that Act is repugnant to
the Constitution and void.
- 39 -
III
GRANTING PLAINTIFFS PRELIMINARY RELIEF WOULD
CAUSE THE SAME INJURY TO DEFENDANTS WHICH
PLAINTIFFS WISH TO AVOID, AND THE PUBLIC
INTEREST WOULD BE SERVED BY DENYING PLAINTIFFS
PRELIMINARY INJUNCTIVE RELIEF
A.
Injury To The Defendants From The Grant-
ing Of A Preliminary Injunction.
Whatever injury plaintiffs would have been able to claim for
themselves, it is plain that granting them relief will cause
defendants to suffer precisely the same injury; and, "[r]elief
saving one claimant from irreparable injury, at the expense of
similar harm caused another, might not qualify as the equitable
judgment that a stay represents." Virginia Petroleum Job. Ass'n
V. Federal Power Com'n, supra, 259 F.2d at 925.
B.
The Public Interest Will Be Served By Denying
The Request For Preliminary Injunctive Relief.
The public interest in this case lies in the continued
smooth and efficient functioning of the Legal Services Program.
Constancy in the membership of the Board, which is the governing
body of the Corporation, is an evident and indispensable element
in this efficient operation. Obviously causing one set of Board
members to be replaced by another set will lead to considerable
disruption and jeopardize the ability of the Corporation to
perform its functions properly.
Should plaintiffs be granted their preliminary relief and
fail to prevail on the merits (or should their claim become moot
during the course of judicial review by virtue of the Senate's
confirmation of the nominations of their successors), then the
- 40 -
disruption occasioned by displacing one set of Board members by
another would needlessly occur twice: once as a result of
preliminary relief, and once again when the defendants again
assume their offices. This possibility of double disruption and
its attendant consequences for the administration of the Legal
Service Program, should not be risked absent the most
extraordinary and compelling showing by plaintiffs. This plainly
has not been made.
CONCLUSION
The plaintiffs' appeal from the denial of an application for
a Temporary Restraining Order should be dismissed on the grounds
that the order is not appealable. In the alternative, for the
foregoing reasons, the district court's judgment should be
affirmed.
J. PAUL McGRATH
Assistant Attorney General
STANLEY S. HARRIS
United States Attorney
RICHARD K. WILLARD
Deputy Assistant Attorney General
ANTHONY J. STEINMEYER
ALFRED MOLLIN
Attorneys
Civil Division, Room 3617
Department of Justice
Washington, D.C. 20530
Telephone: (202) 633-4027
April 1982
41 8 I
CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of April, 1982, I
served the foregoing Brief for the Appellees upon counsel
involved by causing copies to be mailed, postage prepaid, to:
Joseph M. Hassett
David S. Tatel
Jean S. Moore
Elliot C. Keeney, Jr.
Carol A. Melton
HOGAN & HARTSON
815 Connecticut Ave., N.W.
Washington, D.C. 20006
Attorneys for Appellants
Legal Services Corporation, et al.
Alfred R. R Mollin Mill
Attorney, Appellate Staff
- 42 -
ADDENDUM
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No.
82-1227
September Term, 19 81
Legal Services Corp., et al.
Civil Action No., 82-0542
Plaintiffs/Appellants
for the District of Columbia Circuit
V.
FILED MAR 41982
Howard H. Dana, Jr., et al.
Defendants/Appellees
GEORGE A. FISHER
CLERK
BEFORE: Wright, Ginsburg and Bork, Circuit Judges
ORDER
On consideration of appellants' motion for injunction
pending appeal and the opposition thereto, it is
ORDERED by the Court that the motion is denied. Appellants
have failed to demonstrate that the relief requested will prevent
irreparable harm to them without causing similar harm to the
other parties. See Virginia Petroleum Jobbers Ass'n V. F.P.C.,
259 F.2d 921, 925 (D.C. Cir. 1958) ("Relief saving one claimant
from irreparable injury, at the expense of similar harm caused by
another, might not qualify as the equitable judgment that a stay
represents. "). Therefore the lower standard for likelihood of
success on the merits, as set forth in W.M.A.T.C. V. Holiday Tours,
Inc., 559 F.2d 841 (D.C. Cir. 1977), does not apply. We find
that appellants have not demonstrated the requisite likelihood of
success on the merits, generally for the reasons stated by the
District Court in its March 3, 1982, Memorandum Opinion. Interim
relief is not appropriate at this time. It is
FURTHER ORDERED by the Court, sua sponte, that this case
shall be expedited. The parties are ordered to submit to the
Court within three days of the date of this order a suggested brief-
ing schedule.
Per Curiam
Circuit Judge Bork did not participate in the foregoing order.
RD SILVERS ALASKA
JURN L. STENNIS MISS.
LOWELL P. WEICKER JA., CONN
ROBERT C BYRO W VA
JAMES A Mc CLURE. IDAHO
WILLIAM PROXMIRE WIS.
PAUL LAKALT, NEV.
DANIEL K INDUYS HAWAR
JAKE GARN, UTAH
ERNEST F HOLLINGS S.C.
THAD COCHRAN, MISS
THOMAS F EAGLETON MO.
MARK ANDREWS. N DAK
LAWTON CHILES F.L.A.
United States Senate
JAMES ABDNOR S. DAK
3 BENNETT JOHNSTON LA
ROBERT W. KASTEN, Ja., WIS.
WALTER D HUDDLESTON KY.
COMMITTEE ON APPROPRIATIONS
ALFONSE M. D'AMATO, N.Y.
QUENTIN N. BURDICK, N. DAK
MACK MATTINGLY, GA.
PATRICK J LEAHY VT.
WASHINGTON, D.C. 20510
WARREN RUDMAN/N.H.
JIM SASSER TENN
ARLEN SPECTER. PA
DENNIS Dr CONCINI, ARIZ
PETE Y. DOMENICI, N. MEX.
DALE BUMPERS. ARK.
3. KEITH KENNEDY, STAFF DIRECTOR
FRANCIS 1 SULLIVAN. MINORITY STAFF DIRECTOR
October 8, 1984
Mr. Donald P. Bogard
President
Legal Services Corporation
733 Fifteenth Street, N.W.
Washington, D. C. 20005
Dear Mr. Bogard:
After polling the members, the majority of the members
the Commerce, Justice, State, the Judiciary and Related
Agencies Appropriations Subcommittee, denies the
reprogramming requests dated September 12, 1984 relating to
the following regulations:
45 CFR Part 1601: By-Laws of the Legal Services
Corporation
45 CFR Part 1612: Restrictions on Lobbying and
Certain Other Activities
45 CFR Part 1622: Public Access to Meetings Under
the Government in Sunshine Act
The Subcommittee expects the Corporation to take no
further action to enforce, implement, or operate in
accordance with these regulations as submitted. With
respect to 45 CFR Part 1612, the Subcommittee believes that
the restrictions contained in Public Laws 97-377, 98-166,
and 98-411 are self-explanatory and can be enforced in the
absence of implementing regulations. Thus, the Corporation
retains the ability to police illegal legislative and
administrative advocacy. The Subcommittee is, of course,
willing to entertain a new proposed regulation on the
subject and to discuss its specific concerns with the
Corporation at any time.
for the
Commerce, Justice, State, and
the Judiciary Subcommittee
WBR/tpm
MARK O HATFIELD OREG. CHAIRMAN
TED STEVENS. ALASKA
JOHN C STENNIS MISS
LOWELL P. WEICKER Ja., CONN.
ROBERT C BYRD W VA
JAMES A. Mc CLURE IDAHO
WILLIAM PROXMIRE WIS.
PAUL LAXALT, NEV
DANIEL K. INDUYE HAWAII
JAKE GARN, UTAH
ERNEST F HOLLINGS. S.C.
THAD COCHRAN MISS
THOMAS * EAGLETON MO.
MARK ANDREWS. N OAK
LAWTON CHILES FLA
Hnited States Senate
JAMES ABDNOR S DAK
J. BENNETT JOHNSTON LA
ROBERT W. KASTEN JA., WIS.
WALTER D HUDDLESTON KY.
COMMITTEE ON APPROPRIATIONS
ALFONSE M. O AMATO, N.Y.
QUENTIN N. BURDICK N DAK.
MACK MATTINGLY. GA
PATRICK J LEARY VT.
WASHINGTON, D.C. 20510
WARREN RUDMAN N.H.
JIM SASSER TENN
ARLEN SPECTER. PA.
DENNIS De CONCINE ARIZ
PETE V. DOMENICI, N. MEX
DALE BUMPERS ARK
October 8, 1984
J. KEITH KENNEDY, STAFF DIRECTOR
FRANCIS J. SULLIVAN, MINORITY STAFF DIRECTOR
Mr. Donald P. Bogard
President
Legal Services Corporation
733 Fifteenth Street, N.W.
Washington, D. C. 20005
Dear Mr. Bogard:
This is a partial response to the ten reprogrammings submitted to
the Committee on Appropriations relating to regulations promulgated by
the Corporation which went into effect after April 27, 1984.
No objections have been raised by members of the Subcommittee on
Commerce, Justice, State, the Judiciary and Related Agencies regarding
45 CFR Part 1611 (Revised Appendix) and 45 CFR Part 1629. The
Committee has concerns regarding 45 CFR Part 1600, 45 CFR Part 1628,
and 45 CFR Part 1629. While the Subcommittee has chosen not to deny
approval for the reprogrammings, its concerns are articulated below
and the Subcommittee would like these concerns addressed at the
earliest possible moment.
The Subcommittee believes the definition of "financial assistance"
enunciated in 45 CFR Part 1600 is inconsistent with other provisions
of the Legal Services Corporation Act and its relevant legislative
history. Financial assistance clearly applies to any grants or
contracts made by the Corporation relating to the provision of legal
assistance. The Subcommittee would note with special concern the
prospect that the Corporation, based on the proposed new and limited
definition of "financial assistance" would attempt to deny a recipient
a hearing pursuant to Section 1011 of the Act in a case where funding
was terminated or refunding denied. Although the Corporation has
raised questions regarding the scope of section 1011, the resolution
of that issue must be decided by Congress and the Corporation should
not attempt to narrow the scope through its regulatory authority.
The Subcommittee's second concern relates to the interaction of 45
CFR Part 1609 (Fee-Generating Cases) and 45 CFR Part 1628 (Recipient
Fund Balances). By including the fees received in a fee-generating
case in a recipient's fund balance the year in which the fee is
received (45 CFR Part 1609.6) and then imposing a somewhat arbitrary
10 percent ceiling on fund balances (45 CFR Part 1628.3), the
Corporation has created a situation where fees paid to a recipient,
particularly near the end of the recipient's fiscal year, would
ultimately be recovered by the Corporation itself. The Subcommittee
believes that such fees should be retained by the recipient.
Mr. Donald P. Board
October 8, 1984
Page 2
Since the Subcommittee supports both the concept of encouraging
recipients to refer fee-generating cases to qualified members of the
private bar and the effort to encourage recipients to manage their
funds better, it has chosen not to reject either regulation. However,
the interaction of the two regulations poses a serious problem which
the Corporation must address. We look forward to receiving your
comments on the subject.
WauBRulum WARREN B. RUDMAN
Sincerely,
for the
Commerce, Justice, State, and
the Judiciary Subcommittee
WBR/tpm
CHAIRMAN
NEAL SMITH
APPROPRIATIONS SUBCOMMITTEE FOR
MEMBER OF CONGRESS
DEPARTMENT OF COMMERCE
FOURTH DISTRICT. IOWA
DEPARTMENT OF JUSTICE
DEPARTMENT OF STATE
WASHINGTON OFFICE
Congress of the United States
FEDERAL JUDICIARY
SMALL BUSINESS ADMINISTRATION
2373 RAYBURN HOUSE OFFICE BUILDING
FEDERAL TRADE COMMISSION
WASHINGTON D.C. 20515
F.B.I.
PHONE: (202) 225-4426
house of Representatives
S.E.C.
F.C.C.
INTERNATIONAL TRADE COMMISSION
DISTRICT OFFICES:
Mashington, D.C. 20515
U.S. TRADE REPRESENTATIVE
544 INSURANCE EXCHANGE BUILDING
U.S. ARMS CONTROL AGENCY
UNITED NATIONS AGENCIES
DES MOINES, IOWA 50309
PHONE: (515) 284-4634
October 1, 1984
MEMBER
APPROPRIATIONS SUBCOMMITTEES FOR:
AGRICULTURE
P.O. Box 1748
DEPARTMENT OF HEALTH AND HUMAN
215 POST OFFICE BUILDING
SERVICES
AMES. IOWA 50010
DEPARTMENT OF LABOR
PHONE: (515) 232-5221
DEPARTMENT OF TRANSPORTATION
N.L.R.B.
R.R. RETIREMENT BOARD
NATIONAL INSTITUTES OF HEALTH
Honorable Donald P. Bogard
SOCIAL SECURITY
PUBLIC HEALTH SERVICE
President
MISCELLANEOUS RELATED AGENCIES
Legal Services Corporation
MEMBER
733 Fifteenth Street, NW
COMMITTEE ON SMALL BUSINESS
Washington, DC 20005
Dear Mr. Bogard:
This is in reply to your letter of September 17 in which you proposed a
change in the program structure of the Consolidated Operating Budget (C.O.B.)
of the Legal Services Corporation.
I understand that this proposal involves changes in budget categories
as follows:
o
The former "Provision of Legal Assistance" category would be separated
into two major budget categories: "Delivery of Legal Assistance" and
"Support for the Delivery of Legal Assistance". The purpose of this
separation is to reflect more accurately the disposition of the
Corporation's grant funds.
0
The former "Support for the Provision of Legal Assistance" would be
retitled "Corporation Management and Grant Administration". The
purpose of this change is to provide a name more descriptive of the
functions performed with the funding included in the category.
I also understand that no grantee will be affected by this reformatting of
the budget structure.
Since these changes in the program budget structure should help to describe
more accurately the use of funds appropriated to the Corporation and since no
grantee will be affected in any way by these changes, the Committee has no
objection to this proposal. We appreciate your keeping us informed of the
activities of the Legal Services Corporation.
Sincerely,
760 with
Neal Smith, Chairman
Subcommittee on the Departments of
Commerce, Justice and State, the
Judiciary and Related Agencies
TED STEVENS ALASKA
JOHN C STENNIS MISS.
LOWELL P. WEICKER JR., CONN.
ROBERT C BYRD W VA
JAMES A MC CLURE, IDAHO
WILLIAM PROXMIRE WIS
PAUL LAXALT, NEV.
DANIEL K INDUYE HAWAR
JAKE GARN UTAH
ERNEST HOLLINGS SC.
THAD COCHRAN MISS
THOMAS F EAGLETON MO
MARK ANDREWS N DAK
LAWTON CHILES FLA
Hnited States Senate
JAMES ABDNOR, $. DAK.
J. BENNETT JOHNSTON LA
ROBERT W KASTEN, Ja. wis
WALTER HUDDLESTON KY.
COMMITTEE ON APPROPRIATIONS
ALFONSE M D'AMATO N.Y.
QUENTIN N BURDICK, N. OAK
MACK MATTINGLY. GA
PATRICK J LEAHY, VT.
WASHINGTON, D.C. 20510
WARREN RUDMAN. N.M.
JIM SASSER TENN
ARLEN SPECTER PA.
DENNIS Dt CONCINI, ARIZ
PETE V. DOMENICI, N. MEX.
DALE BUMPERS. ARK.
J. KEITH KENNEDY. STAFF DIRECTOR
October 8, 1984
FRANCIS J. SULLIVAN. MINORITY STAFF DIRECTOR
Mr. Donald P. Bogard
President
Legal Services Corporation
733 Fifteenth Street, N.W.
Washington, D. C. 20005
Dear Mr. Bogard:
No objections have been raised by members of the
Subcommittee on Commerce, Justice, State, the Judiciary and
Related Agencies Appropriations in relation to your
reprogramming, submitted September 13, 1984, to shift
additional funds into the "Field Programs" budget category.
The Subcommittee notes, however, that if those funds are
used for the basic field programs, which most members would
feel is the preferred option, that the distribution of those
funds is governed by the statutory allocation formula. It
would be helpful to the Subcommittee if the Corporation
would inform the Subcommittee of the exact plans for the
distribution of those funds.
Sincerely,
WARREN B. RUDMAN
for the
Commerce, Justice, State, and
the Judiciary Subcommittee
WBR/tpm
CHAIRMAN
NEAL SMITH
APPROPRIATIONS SUBCOMMITTEE FOR:
MEMBER OF CONGRESS
DEPARTMENT OF COMMERCE
FOURTH DISTRICT, IOWA
DEPARTMENT OF JUSTICE
DEPARTMENT OF STATE
WASHINGTON OFFICE
Congress of the United States
FEDERAL JUDICIARY
SMALL BUSINESS ADMINISTRATION
2373 RAYBURN HOUSE OFFICE BUILDING
FEDERAL TRADE COMMISSION
WASHINGTON D.C. 20515
F.B.I.
PHONE: (202) 225-4426
house of Representatives
S.E.C.
F.C.C.
INTERNATIONAL TRADE COMMISSION
DISTRICT OFFICES:
Mashington, D.C. 20515
U.S. TRADE REPRESENTATIVE
U.S. ARMS CONTROL AGENCY
544 INSURANCE EXCHANGE BUILDING
UNITED NATIONS AGENCIES
DES MOINES, IOWA 50309
PHONE: (515) 284-4634
October 1, 1984
MEMBER
APPROPRIATIONS SUBCOMMITTEES FOR:
AGRICULTURE
P.O. Box 1748
DEPARTMENT OF HEALTH AND HUMAN
215 POST OFFICE BUILDING
SERVICES
AMES, IOWA 50010
DEPARTMENT OF LABOR
PHONE: (515) 232-5221
DEPARTMENT OF TRANSPORTATION
N.L.R.B.
R.R. RETIREMENT BOARD
NATIONAL INSTITUTES OF HEALTH
Honorable Donald P. Bogard
SOCIAL SECURITY
President
PUBLIC HEALTH SERVICE
MISCELLANEOUS RELATED AGENCIES
Legal Services Corporation
MEMBER
733 Fifteenth Street, NW
COMMITTEE ON SMALL BUSINESS
Washington, DC 20005
Dear Mr. Bogard:
This is in response to your letter of September 13 in which you proposed
a reprogramming of funds for the Legal Services Corporation.
I understand that you plan to reprogram $965,212 into the "Field Programs"
program for those field program grantees that are currently at the lower end of
the funding scale. I also understand that funding for field programs will be
augmented with an additional $252,251 through reallocations within the "Field
Programs" category to make the total increase for field programs $1,217,463.
I further understand that the $965,212 will be derived from the following
transfers:
o
$375,073 from Program Development and Experimentation. This amount,
currently earmarked for development of supplemental delivery systems,
will not be spent in FY 1984.
o
$90,139 from Regional Training Centers. This amount is available
through a discrepancy in the computations in establishing funding levels
for the centers. Each center will receive the funds in FY 1984 to which
it is entitled.
0
$500,000 from the Office of Field Services and Unallocated reserves.
These funds are available as a result of certain cost savings.
The Committee has no objection to this reprogramming. However, it is the
Committee's intent and understanding that this reprogramming of funds for one-time
grants to field programs will in no way affect the allocation of the FY 1985
appropriation for the Legal Services Corporation as specified in the funding
formula in Public Law 98-411. If your plans are different from this understanding,
you should consult with us before you begin this reallocation of funds.
Honorable Donald P. Bogard
October 1, 1984
Page Two
Thank you for keeping the Committee informed of the program changes
within the Legal Services Corporation.
Sincerely,
Meal bruth
Neal Smith, Chairman
Subcommittee on the Departments of
Commerce, Justice and State, the
Judiciary and Related Agencies
MAMA U. MATHELD, OMEU. CHAIMAN
TED STEVENS. ALASKA
JOHN CISTENNS MISS.
LOWELL P WEICKER Ja, CONN
ROBERT C BYRO W VA.
JAMES A Mc CLURE IDAHO
WILLIAM PROXMIRE WIS.
PAUL LAXALT, NEV.
DANIEL K INDUYE HAWAN
JAKE GARN. UTAH
ERNEST HOLLINGS S.C.
THAD COCHRAN MISS
THOMAS R EAGLETON MO.
MARK ANDREWS. N. DAK
LAWTON CHILES FLA
United States Senate
JAMES ABDNOR 5. OAK
J. BENNETT JOHNSTON LA
ROBERT W. KASTEN, JR., wis.
WALTER D HUDDLESTON, KY.
COMMITTEE ON APPROPRIATIONS
ALFONSE M. D'AMATO N.Y.
QUENTIN N BURDICK N. DAK.
MACK MATTINGLY, GA.
PATRICK J LEARY VT.
WARREN RUDMAN, N.H.
JIM SASSER TENN
WASHINGTON, D.C. 20510
ARLEN SPECTER PA.
DENNIS D: CONCINI, AREZ
PETE V. DOMENICI N. MEX
DALE BUMPERS. ARK
October 8, 1984
J. KEITH KENNEDY. STAFF DIRECTOR
FRANCIS J. SULLIVAN, MINORITY STAFF DIRECTOR
Mr. Donald P. Bogard
President
Legal Services Corporation
733 Fifteenth Street, N.W.
Washington, D. C. 20005
Dear Mr. Bogard:
Members of the Subcommittee on Commerce, Justice, State,
the Judiciary, and Related Agencies have raised no
objections to the reprogramming submitted on September 17,
1984, relating to the restructuring of Legal Services
Corporation's Consolidated Operating Budget (C.O.B.).
Concern was expressed, however, that the restructuring
not be used as a means to circumvent the statutory spending
ceilings on categories of the Corporation's budget contained
in Public Law 98-411. From the Subcommittee's perspective,
it is clear as a matter of law that those statutory spending
ceilings would apply to the same budget categories
irrespective of whether they have been renamed or relocated
in the C.O.B.
1
Implementation of the proposed new C.O.B. would be taken
to mean the Corporation concurs with this interpretation.
If you have any difficulty with this condition, please
inform the Committee on Appropriations immediately.
Sincerely,
WARREN B. RUDMAN
for the
Commerce, Justice, State, and
the Judiciary Subcommittee
WBR/tpm
THE WHITE HOUSE
WASHINGTON
October 15, 1984
NOTE FOR JOHN ROBERTS
This is an additional comment LSC just
received on several of their regulations,
this time from the House side. The letter,
unlike Senator Rudman's, does not purport to
deny LSC authority to enforce the regs in
question.
5G
Steve Galebach
NEAL
APPROPRIATIONS SUBCOMMITTEE FOR:
MEMBER OF CONGRESS
DEPARTMENT OF COMMERCE
FOURTH DISTRICT IOWA
DEPARTMENT OF JUSTICE
DEPARTMENT OF STATE
WASHINGTON OFFICE
Congress of the United States
FEDERAL JUDICIARY
SMALL BUSINESS ADMINISTRATION
2373 RAYBURN HOUSE OFFICE BUILDING
FEDERAL TRADE COMMISSION
WASHINGTON D.C. 20515
F.B.I.
PHONE: (202) 225-4426
house of Representatives
S.E.C.
F.C.C.
INTERNATIONAL TRADE COMMISSION
DISTRICT OFFICES
Mashington, D.C. 20515
U.S. TRADE REPRESENTATIVE
544 INSURANCE EXCHANGE BUILDING
U.S. ARMS CONTROL AGENCY
UNITED NATIONS AGENCIES
DES MOINES. IOWA 50309
PHONE: (5 15) 284-4634
MEMBER
APPROPRIATIONS SUBCOMMITTEES FOR:
P.O. Box 1748
AGRICULTURE
October 11, 1984
DEPARTMENT OF HEALTH AND HUMAN
215 POST OFFICE BUILDING
SERVICES
AMES, IOWA 50010
DEPARTMENT OF LABOR
PHONE: (515) 232-5221
DEPARTMENT OF TRANSPORTATION
N.L.R.B.
R.R. RETIREMENT BOARD
NATIONAL INSTITUTES OF HEALTH
SOCIAL SECURITY
Honorable Donald P. Bogard
PUBLIC HEALTH SERVICE
MISCELLANEOUS RELATED AGENCIES
President
MEMBER
Legal Services Corporation
COMMITTEE ON SMALL BUSINESS
733 Fifteenth Street, N.W.
Washington, D. C. 20005
Dear Mr. Bogard:
This is in response to your letter of September 12 in which you enclosed
copies of regulations of the Legal Services Corporation effective after
April 27, 1984 and which the Corporation intends to enforce and implement in
FY 1985.
We have reviewed these regulations and after consulting with other
committees sharing an interest in these matters, we believe that several of
them may be inconsistent with the intent of Congress as provided in the Legal
Services Corporation Act, and the language of the FY 1985 Appropriation Act
(P.L. 98-411) as applicable to the Corporation.
The regulations which concern us are:
1. Part 1612 Legislative and Administrative Advocacy.
This new regulation appears to impose restrictions on representation by
legal services attorneys that go beyond what Congress intended in the Legal
Services Corporation Act and the provisions of the FY 1984 and FY 1985 Appropria-
tion Acts. For example, the restriction that limits responses to public officials
to those instances where officials put their requests in writing appears to have
no statutory basis. In addition, we are concerned about restrictions in the
regulation on consultations with organizations, legal assistance to client groups,
communications with clients, recordkeeping, and administrative representation.
2. Part 1614 Private Attorney Involvement.
The Committee is concerned about this new regulation because it appears to
undermine the local control of legal services programs by mandating a minimum
requirement that may not have any relationship to a program's operations. In
addition, we note that most of the bar associations who commented on the regulation
opposed it and stated that there was no need to increase from 10% to 12.5%, the
percentage of a local program's funds that must be allocated to private attorney
programs.
Honorable Donald P. Bogard
-2-
October 11, 1984
3. Part 1620 - Priorities in Allocations of Resources.
The Committee is concerned that the new regulation may be inconsistent
with Section 1007 (a) (2) (C) of the Legal Services Corporation Act. This provision
requires all legal services programs to establish priorities concerning the
categories or kinds of cases which the program will undertake based on the needs
of the client community and the funds available. The new regulation requires
"substantially equal access to the same type of services and levels of represen-
tation, unless differences in level of services are based on differences in client
financial resources". The regulation does not define what "substantially equal
access" means.
Because of our concerns in these areas, we request that the Corporation not
implement these three regulations.
Sincerely,
neal Smith
Neal Smith, Chairman
Subcommittee on the Departments of
Commerce, Justice and State, the
Judiciary and Related Agencies
LEgAl SERV
THE WHITE HOUSE
WASHINGTON
December 6, 1982
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
ask
SUBJECT:
Resolution from County Judges and
Commissioners Association of Texas,
Calling for Abolition of Legal
Services Corporation
Bruce Coleman, Commissioner of Deaf Smith County, Texas, has
written the President to complain about Texas Rural Legal
Aid and its efforts to effect social change at great cost to
the county rather than serve the needs of indigent clients.
Commissioner Coleman transmitted with his letter a resolu-
tion adopted by the County Judges and Commissioners Asso-
ciation of Texas, noting abuses by Legal Services agencies
and calling upon the President and Congress to abolish the
Legal Services Corporation. I have prepared a reply for
your signature, based on previous letters you have signed on
the Legal Services Corporation.
Attachment
THE WHITE HOUSE
WASHINGTON
December 6, 1982
Dear Commissioner Coleman:
Thank you for your recent letter to the President,
transmitting a Resolution from the County Judges and
Commissioners Association of Texas. That Resolution noted
that many counties have found Legal Services Corporation
funded agencies to operate in a highly controversial manner,
increasing county costs rather than serving indigent client
needs. It concluded by calling upon the President and
Congress to abolish the Legal Services Corporation and send
two-thirds of the money directly to counties to be used to
meet the legal counsel needs of the indigent.
As you may know, the President generally has no authority
over most Legal Services Corporation matters. Neither the
President nor any other outside party may direct a Legal
Services attorney as to the handling of any particular case.
Although the President does appoint, with the advice and
consent of the Senate, members of the national Board of
Directors of the Legal Services Corporation, the law pro-
vides that the Board shall be independent in reaching its
decisions.
The President has, however, often expressed concern about
the potentials for abuse in Legal Services programs of the
sort noted in the Resolution. He proposed substantially
greater reductions in Federal funding for these programs
than the Congress was willing to adopt. The President has
also tried to appoint to the national Board persons who
share his concerns that publicly funded legal assistance
programs serve the needs of the indigent for legal counsel
and do not become vehicles for political and social lobbying
or other abuses of taxpayer dollars.
-2-
Thank you very much for making us aware of your views and
the views of the County Judges and Commissioners Association
on this important subject.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. Bruce Coleman
Commissioner, Precinct 3
County of Deaf Smith
Courthouse, Room 201
Hereford, Texas 97045
FFF:JGR:aw 12/6/82
CC: FFFielding
JGRoberts
Subj.
Chron
112655
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
Roberts
0 - OUTGOING
H INTERNAL
I . INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Bruce Coleman
MI Mail Report
User Codes: (A)
(B)
(C)
Subject:
Resolution Me Legal Services Corp.
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
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Code
YY/MM/DD
DD
Co Holland
ORIGINATOR 82,11,30
/ /
Referral Note:
CU AT 18
D 182 / 12101
58212114
Referral Note:
/ /
/ /
-
Referral Note:
/ /
/ /
I
Referral Note:
/ /
/ /
-
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I * Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R * Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
County of Deaf Smith
COURTHOUSE
ROOM 201
HEREFORD. TEXAS 79045
Hause BILL BRADLY
COUNTY JUDGE
COMMISSIONERS
W. GLEN NELSON
COMMISSIONERS
XXXXXXXXXXXX
AUSTIN ROSE, JR.
BRUCE COLEMAN
JAMES VOYLES
PRECINCT NO. 3
PRECINCT NO. 2
PRECINCT NO. 3
PRECINCT NO. 4
November 24, 1982
112655
The President of the United States
White House
1600 Pennsylvania Ave.
Washington, D. C. 20500
My Dear Mr. President:
For the countless reasons we could enumerate upon request, the Deaf
Smith County Commissioners' Court, the West Texas Commissioners' and Judges'
Association and the State Commissioners' and Judges' Association have passed
the enclosed resolution.
Through NACo we have been working to require Legal Services Corporation
to cause Texas Rural Legal Aid to work for our indigent's legal needs rather
than their practice of attempting to force their views of needed social change
upon local government. We have spent untold local funds defending ourselves
in Federal Court in poorly founded causes.
We call your attention that the enclosed resolution is the approved
position of the County Commissioners and Judges of Texas. Many other states
are of like mind.
We will send you NACo's position as it developes and is finalized in
July of next year.
Sincerely,
Bruce Coleman
Bruce Coleman
Commissioner, Precinct 3
Deaf Smith County, Texas
BC/ws
RESOLUTION
WHEREAS, the County Judges and Commissioners Association of Texas recog-
nizes the need for legal counsel by our indigent citizens; and
WHEREAS, counties are mandated to provide certain kinds of indigent legal
counsel without having an adequate source of tax funds to meet this need; and
WHEREAS, many counties have found Legal Services Corporation funded agencies
such as Texas Rural Legal Aid to operate in a highly controversial manner often
increasing county costs rather than serving indigent client needs; and
WHEREAS, the President and Congress in their New Federation thrust, are
advocating the return of programs and necessary funds to local government;
NOW, THEREFORE BE IT RESOLVED, that the County Judges and Commissioners
Association of Texas go on record asking the President and Congress to abolish
the Legal Service Corporation, and send 2/3 of the money directly to the counties
to be used to serve indigent legal counsel needs at the direction of combined
local bar association and local elected government; and
ADOPTED this 15th day of October, 1982.
PEGGY Leggy GARNER
Garner
Co-Chairman, Resolutions Committee
THE WHITE HOUSE
WAEHINGTON
December 6, 1982
Dear Commissioner Coleman:
Thank you for your recent letter to the President,
transmitting a Resolution from the County Judges and
Commissioners Association of Texas. That Resolution noted
that many counties have found Legal Services Corporation
funded agencies to operate in a highly controversial manner,
increasing county costs rather than serving indigent client
needs. It concluded by calling upon the President and
Congress to abolish the Legal Services Corporation and send
two-thirds of the money directly to counties to be used to
meet the legal counsel needs of the indigent.
As you may know, the President generally has no authority
over most Legal Services Corporation matters. Neither the
President nor any other outside party may direct a Legal
Services attorney as to the handling of any particular case.
Although the President does appoint, with the advice and
consent of the Senate, members of the national Board of
Directors of the Legal Services Corporation, the law pro-
vides that the Board shall be independent in reaching its
decisions.
The President has, however, often expressed concern about
the potentials for abuse in Legal Services programs of the
sort noted in the Resolution. He proposed substantially
greater reductions in Federal funding for these programs
than the Congress was willing to adopt. The President has
also tried to appoint to the national Board persons who
share his concerns that publicly funded legal assistance
programs serve the needs of the indigent for legal counsel
and do not become vehicles for political and social lobbying
or other abuses of taxpayer dollars.
-2-
Thank you very much for making us aware of your views and
the views of the County Judges and Commissioners Association
on this important subject.
Sincerely,
Orig. signed by FFF
Fred F. Fielding
Counsel to the President
Mr. Bruce Coleman
Commissioner, Precinct 3
County of Deaf Smith
Courthouse, Room 201
Hereford, Texas 97045
FFF:JGR:aw 12/6/82
CC: FFFielding
JGRoberts
Subj.
Chron
WASHINGTON
123 CANNON House c
STH DISTRICT. MICHIGAN
WASHINGTON, D.
(202) 225-
JUDICIARY
SUBCOMMITTEE ON CRIME,
RANKING PUBLICAN MEMBER
Congress of the United States
MARY F. LC
ADMINISTRATIVE
SUBCOMMITTEE ON COURTS,
CIVIL LIBERTIES AND
ADMINISTRATION OF JUSTICE
house of Representatives
HOME OFFI
VETERANS' AFFAIRS
158 FEDERAL D
SUBCOMMITTEE ON HOUSING AND
Washington, D.C. 20515
GRAND RAPIDS, MIC
MEMORIAL AFFAIRS
(616) 451-6
RANKING REPUBLICAN MEMBER
SUBCOMMITTEE ON OVERSIGHT AND
INVESTIGATIONS
DISTRICT REPRESE
December 17, 1982
JOHN R. WES
The President
The White House
Washington, D. C. 20500
Dear Mr. President:
The conduct of your recess appointees to the Legal Services
Corporation Board is an embarrassment to us and is becoming
a political liability to you. We are alarmed by the growing
public perception of the Administration's and our party's
lack of sensitivity for the poor and elderly which is
exacerbated by the recent actions of the Legal Services Corpora-
tion Board.
As you know, the recess appointees to the board have billed and
received from the corporation over $156,000 in consulting fees
over the last 11 months. This figure is double the amount of the
last board's consulting fees (which I feel was equally unjustified
It now appears that federal law prohibits the payment of any
salary to these board members who do not meet the requirements for
any payment for services under federal law limitations on payment
to recess appointees. These billings have all been at a rate of
$29 per hour. The Chairman, Harvey, who fears flying, bills this
rate for his full drive-time between Indianapolis and Washington.
The 23 year old college student, Rathbun, also bills his "consultin
at $29 per hour for over $1000 during his first partial month.
To make matters worse, Chairman Harvey recently disregarded a board
directive and negotiated a flagrantly excessive contract with the
person of his own choosing as president of the corporation (a forme
student of his). This contract includes $57,500 annual salary,
membership in a private club, one year's severence pay (including
fringes) regardless of the reason for dismissal and without reduc-
tion for other substitute earnings during the year, all living
expenses in Washington until June (with no test of reasonableness),
and two trips to Indianapolis per month until June. These activiti
highlight the lack of integrity and sensitivity of these persons
who should be donating their time on behalf of the destitute member
of our society who need access to the legal system.
These abuses are beyond defense. The only possible solution is the
immediate removal of all board members and the new president. The
board members must be required to repay the corporation the consult
fees, which were obtained in violation of federal law. The new Leg
Mr. President
Page Two
Services Corporation president's contract must be nullified bec
it is excessive and was negotiated in violation of the corporat
board directives.
Mr. President, we find your need to "beg" these persons to join
the board and their additional hours of service to be irrelevan
to the issue of consulting fees, in light of the fact that ther
are many conservative attorneys who are more highly qualified t
serve on the board than the current members and who would be ho:
to do so without any compensation. The board members of all 32:
donee agencies serve without either pay or expense reimbursement
We certainly cannot expect pro bono volunteerism from attorneys
in our localities when this Administration allows the Legal Serv
Board members to make a profit on the backs of a program designe
to help our poor and elderly. It appears to be the application
of a "suck up" as opposed to a "trickle down" theory.
We are even more distressed over the Administration's apparent
refusal to consider the names of attorneys that we have submitte
to you for consideration in the past. We are also aware that th
American Bar Association has also submitted names that have been
disregarded.
The Congress has mandated the continuation of the Corporation an
its funding level of $241 million. The $100 million block grant
program which the Administration prefers is not a viable option.
We urge you to accept the Corporation and work with us to obviate
the need for any legislation deemed necessary to protect the Corp
ation from mismanagement and harm. We are fearful that if the
problem is not corrected this issue will be used by all of our
opponents in the next election.
A delegation would like to meet with you regarding the removal of
the board, the repayment of the consulting fees, the removal of t
corporate president, the nullification of his contract, and the
selection and confirmation of qualified members of the Legal
Services Corporation Board. This meeting should be scheduled in
the immediate future.
Yours very truly,
Harold S. Sawyer
Member of Congress
Hamin Zuip
! Here
Tom Can
Thomas nindness
Bill McDllin
appointed
by
BOARD OF DIRECTORS OF THE
:
s
nonprofit corporation)
:
the President)
State
Term
NAME
Expires
Nominated
Confirmed
Commis-
sioned
Vice
(Certificates are ma Intained and prepared by the Records Office)
KUTAK, Robert J.
(B)
Neb.
7/13/81
1/18/79
5/2/79
5/3/79
Reappointment
RCCramton,
McCALPIN, F. William
(R)
Mo.
7/13/81
1/18/79
5/2/79
5/3/79
tm. exp.
ORTIQUE, Revius 0., Jr.
(D)
La.
7/13/81
1/18/79
5/2/79
5/3/79
Reappointment
JMBroughton, Jr.,
SACKS, Howard R.
(I)
Conn.
7/13/81
1/18/79
5/2/79
5/3/79
tm. exp.
GCStophel,
SHUMP, Ramona Toledo
(*)
Kans.
7/13/81
1/18/79
5/2/79
5/3/79
tm. exp.
ENGELBERG, Steven L.
(D)
Md.
7/13/83
6/23/80
NOT CONFIRMED
Reappointment
ESQUER, Cecilia Denogean (D)
Ariz.
7/13/83
6/23/80
NOT CONFIRMED
Reappointment
RODHAM, Hillary Diane
(D)
Ark.
7/13/83
6/23/80
NOT CONFIRMED
Reappointment
TRUDELL, Richard Allan
(D)
Calif.
7/13/83
6/23/80
NOT
CONFIRMED
Reappointment
WORTHY, Josephine Marie
(I)
Mass.
7/13/83
6/23/80
NOT CONFIRMED
Reappointment
*
Unaffiliated
U.S. GOVERNMENT PRINTING OFFICE
16-80236-1
:
INDETENDENT)
:
President
NAME
Term
State
Expires
Nominated
Confirmed
Commis-
sioned
Vice
(Certificates are maintained and prepared by the Records Office)
ENGELBERG, Steven L.
(D)
Md.
7/13/80
1/26/78
3/20/78
3/22/78
Recess
RODHAM, Hillary Diane
(D)
Ark.
7/13/80
1/26/78
3/20/78
3/22/78
Recess
TRUDELL, Richard Allan
(D)
Calif.
7/13/80
1/26/78
3/20/78
3/22/78
Recess
WORTHY, Josephine Marie
(I)
Mass.
7/13/80
1/26/78
3/20/78
3/22/78
Recess
/
RCCramton,
McCALPIN, F. William
(R)
Mo.
7/13/81
10/11/78
NOT CONFIRMED
tm. exp.
GSSmith, Jr.,
KANTOR, Michael
(D)
Calif.
7/13/81
10/11/78
NOT CONFIRMED
tm. exp.
/
KUTAK, Robert J.
(R)
Neb.
7/13/81
10/11/78
NOT CONFIRMED
Reappointment
/
ORTIQUE, Revius O., Jr.
(D)
La.
7/13/81
10/11/78
NOT CONFIRMED
Reappointment
JMBroughton,Jr.,
SACKS, Howard R.
(I)
Conn.
7/13/81
10/11/78
NOT
CONFIRMED
tm. exp.
GCStophel,
SHUMP, Ramona Toledo
()
Kans.
7/13/81
10/11/78
NOT
CONFIRMED
tm. exp.
GSSmith, Jr.
KANTOR, Michael
/
(D)
Calif.
7/13/81
1/18/79
5/2/79
5/3/79
tm. exp.
U.S. GOVERNMENT PRINTING OFFICE
16-80236-1
NAME
State
icm
Nominated
Confirmed
Expires
sioned
Vice
(Certificates are maints
and
prepared
by the Records Office)
RMontejano,
"ESQUER, Cecilia Denogean (D)
Ariz.
7/13/80
12/12/77
NOT CONFIRMED
term expired
3
SDThurman,
ENGELBERG, Steven L.
(D)
Md.
7/13/80
12/12/77
NOT CONFIRMED
term expired
WJJanklow,
RODHAM, Hillary Diane
(D)
Ark.
7/13/80
12/12/77
NOT CONFIRMED
resigned
MJBreger,
TRUDELL, Richard Allan
(D)
Calif.
7/13/80
12/12/77
NOT CONFIRMED
term expired
MWCook,
WORTHY, Josephine Marie
(I)
Mass.
7/13/80
12/12/77
NOT CONFIRMED
term expired
Order
RMontejano,
ESQUER, Cecilia Denogean (D)
Ariz.
RECESS
1/19/78
term expired
Order
SDThurman,
ENGELBERG, Steven L.
(D)
Md.
RECESS
1/19/78
term expired
Order
WJJanklow,
RODHAM, Hillary Diane
(D)
Ark.
RECESS
1/19/78
resigned
Order
MJBreger,
TRUDELL, Richard Allan
(D)
Calif.
RECESS
1/19/78
term expired
Order
MWCook,
WORTHY, Josephine Marie
(T)
Mass.
RECESS
1/19/78
term expired
ESQUER, Cecilia Denogean (D)
Ariz.
7/13/80
1/26/78
3/20/78
3/22/78
Recess
U.S. GOVERNMENT PRINTING OFFICE
16-80336-1
BOARD OF DIRECTORS OF THE
:
nonprofit corporation)
:
by President)
0
Term
Commis-
NAME
1
State
Expires
Nominated
Confirmed
sioned
Vice
By ORDER:
DONATELLI, Frank J.
(R)
Va.
7/13/83
RECESS
10/22/82
MSandstrom, rsgnd
By ORDER:
RATHBUN, Daniel M.
(I)
Va.
7/13/83
RECESS
10/22/82
JMWorthy
U.S. GOVERNMENT PRINTING OFFICE 1980-0-334-630
Term
Commis-
NAME
State
Expires
Nominated
Confirmed
sioned
Vice
(Certificates are maintained
& prepared by Executive Clerk's Office)
DeMoss, Harold R., Jr.
(R)
Texas
7/13/83
3/1/82
WITHDRAWN-12/8/82
Recess
McKEE, Clarence V.
(R)
D.C.
7/13/83
3/1/82
WITHDRAWN
-12/8/82
Recess
SANDSTROM, Marc
(R)
Calif.
7/13/83
3/1/82
WITHDRAWN
-5/18/82
Recess
DANA, Howard H., Jr.
(R)
Maine
7/13/84
3/1/82
WITHDRAW
-12/8/82
Recess
EARL, William L.
(D)
Fla.
7/13/84
3/1/82
WITHDRAWN
I-12/8/82
DESatterfield, III
HARVEY, William F.
(R)
Ind.
7/13/84
3/1/82
WITHDRAWN
1-12/8/82
Recess
OLSON, William J.
(R)
Va.
7/13/84
3/1/82
WITHDRAWN
I-12/8/82
Recess
PARAS, George E.
(D)
Calif.
7/13/84
3/1/82
WITHDRAWN
12/8/82
Recess
(D)
STUBBS, Robert Sherwood, II
Ga.
7/13/84
3/1/82
WITHDRAWN
I-12/8/82
Recess
SLAUGHTER, Annie Laurie
(I)
Mo.
7/13/83
4/19/82
WITHDRAWN
N-12/8/82
Recess
(MSandstrom resigned 5/6/
82, no eff. date;
acc. 6/30/
82, eff.
5/8/82.)
U.S. GOVERNMENT PRINTING OFFICE 1980-O-334-630
Term
Commis-
NAME
State
Expires
Nominated
Confirmed
sioned
Vice
(Certificates are maintained
& prepared by Executive
Clerk's Office)
By ORDER:
RATrudell,
SANDSTROM, Marc
(R)
Calif.
7/13/83
RECESS
12/30/81
tm. exp.
By ORDER:
DANA, Howard H., Jr.
(R)
Maine
7/13/84
RECESS
12/30/81
RJKutak, tm exp
By ORDER:
HARVEY, William F.
(R)
Ind.
7/13/84
RECESS
12/30/81
HRSacks, tm exp
By ORDER:
FWMcCalpin,
OLSON, William J.
(R)
Va.
7/13/84
RECESS
12/30/81
tm. exp.
By ORDER:
PARAS, George E.
(D)
Calif.
7/13/84
RECESS
12/30/81
MKantor, tm exp
(D)
in
By ORDER:
STUBBS, Robert Sherwood, II
Ga.
7/13/84
RECESS
12/30/81
RTShump, tm exp
(D)
By ORDER:
R00rtique,Jr.
SATTERFIELD, David E., III
Va.
7/13/84
RECESS
12/31/81
tm. exp.
By ORDER:
SLEngelberg,
DeMOSS, Harold R., Jr.
(R)
Texas
7/13/83
RECESS
1/22/82
tm. exp.
By ORDER:
HDRodham,
McKEE, Clarence V.
(R)
D.C.
7/13/83
RECESS
1/22/82
tm. exp.
By ORDER:
CDEsquer,
SLAUGHTER, Annie Laurie
(I)
Mo.
7/13/83
RECESS
1/22/82
tm. exp.
U.S. GOVERNMENT PRINTING OFFICE 1910-0-334-630