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Court Cases - Pending Matters
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4520499
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Court Cases - Pending Matters
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Philip W. Buchen Files
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The original documents are located in Box 8, folder "Court Cases - Pending Matters" of
the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 8 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
September 16, 1974
Dear Mr. Lerch:
Thank you for your letter of August 30, 1974, in which you
requested a meeting to discuss the matters referred to in
your letter to former President Nixon dated April 3, 1974.
I have reviewed that letter and the correspondence sent to
you by Mr. Roger Semerad. Because the matters about
which you have exhibited concern are presently before the
United States Court of Appeals for the District of Columbia
in a proceeding in which you are a party, I believe that a
meeting between ourselves would be inappropriate at this
time.
Sincerely,
Thily W. Bucher
Counsel to the President
Mr. Henry F. Lerch
Lerch, Pillote and Lerch
Bowen Building
815 15th Street, N. W.
Washington, D. C. 20005
cc: Mr. Roger Semerad
Dr. Theodore Marrs
FORD is LIBRARY BERALD
September 16, 1974
Dear Mr. Lerch:
Thank you for your letter of August 30, 1974, in which you
requested a meeting to discuss the matters referred to in
your letter to former President Nixon dated April 3, 1974.
I have reviewed that latter and the correspondence sent to
you by Mr. Roger Semerad. Because the matters about
which you have exhibited concern are presently before the
United States Court of Appeals for the District of Columbia
in a proceeding in which you are a party, I believe that a
meeting between surselves would be inappropriate at this
time.
Sincerely,
Philip W. Buchen
Counsel to the President
Mr. Henry F. Lerch
Lerch, Pillote and Lerch
Bowen Building
815 15th Street, N. W.
Washington, D. C. 20005
CCI Mr. Roger Semerad
Dr. Theodore Marrs
FORD is LIBRARY GERALD
September 16, 1974
Dear Mr. Lerch:
Thank you for your letter of August 30, 1974, in which you
requested a meeting to discuss the matters referred to in
your letter to former President Nixon dated April 3, 1974.
I have reviewed that latter and the correspondence sent to
you by Mr. Roger Semerad. Because the matters about
which you have exhibited concern are presently before the
United States Court of Appeals for the District of Columbia
in a proceeding in which you are a party, I believe that a
meeting between surselves would be inappropriate at this
time.
Sincerely,
Philip W. Buchen
Counsel to the President
Mr. Henry F. Lerch
Lerch, Pillote and Lerch
Bowen Building
815 15th Street, N. W.
Washington, D. C. 20005
CC: Mr. Roger Semerad
Dr. Theodore Marrs
FORD is LIBRARY 038870
September 16, 1974
Dear Mr. Lerch:
Thank you for your letter of August 30, 1974, in which you
requested a meeting to discuss the matters referred to in
your letter to former President Nixon dated April 3, 1974.
I have reviewed that latter and the correspondence sent to
you by Mr. Roger Semerad. Because the matters about
which you have exhibited concern are presently before the
United States Court of Appeals for the District of Columbia
in a proceeding in which you are a party, I believe that a
meeting between surselves would be inappropriate at this
time.
Sincerely,
Philip W. Buchen
Counsel to the President
Mr. Henry F. Lerch
Lerch, Pillote and Lerch
Bowen Building
815 15th Street, N. W.
Washington, D. C. 20005
CC: Mr. Roger Semerad
Dr. Theodore Marrs
LIBRARY GERALD F. FORD
9/12
Skip -
Could you tell
me what your opinion
olthis is- - and what
action is appropriate
for our office!
Jay
42 USLW 4313
FORD & 018870 LIBRARY
LAW OFFICES
LERCH, PILLOTE & LERCH
BOWEN BUILDING
815 - 15TH STREET, N. W.
WASHINGTON, D. C. 20005
(202) 393-1404
HENRY F. LERCH
30 August 1974
SUBURBAN TRUST BUILDING
ROBERT L. PILLOTE
7316 WISCONSIN AVENUE, SUITE 300
HARRY W. LERCH
BETHESDA, MARYLAND 20014
(301) 656-1803
Phillip Buchen, Esq.
General Counsel
The White House
Washington, D. C.
Dear Mr. Buchen:
My letter of April 3, 1974 (enclosed) has reached
the desk of Dr. Theodore Marrs: Before the transition to
President Ford, Dr. Marrs and I were working on a solution
to this problem. The appointment of a Veterans Administrator
also impeded a prompt solution, but now this has been resolved.
A further development is that the Administration Law Section
of the American Bar Association, at its recent meeting in
Hawaii, passed its resolution dated August 13, 1974 (enclosed)
confirming its earlier stand to the effect that the Veterans
Administrator should be subject to Judicial Review like all
other governmental officials.
A copy of this letter and the ABA resolution is going
to Dr. Marrs, who also has additional data on the fee question.
I would very much appreciate your attention to the matter,
including a possible conference when it could be discussed in
greater detail.
Sincerely,
Hanry FLuck
Henry F. Lerch
Enclosures
cc: Dr. Theodore Marrs, White House
FORD & G7VU33 LIBRARY
3 April 1974
Mr. President
The White House
Washington, D. C.
Dear Mr. President:
I write this letter both as an attorney in private
practice in Washington since 1940 (except World War II service)
and also as Senior GOP Chairman in Montgomery County (Precinct 7-21).
You and I knew each other casually when you were a Senator, and we
were members of the Columbia Country Club of which I am still a
member.
The matter concerns the Veterans Administration, and I
urge that you not refer this letter to that Administration or to the
Department of Justice for reply -- I know their position as stated
below and I feel it needs correcting.
The matter stems from a series of cases in the United States
District Court for the District of Columbia in which I and several
other local attorneys accepted appointments by the court to represent
indigent widows of Philippine veterans, killed in World War II, or who
subsequently died from injuries due to service-connected disabilities.
These were unsolicited actions, where plaintiffs filed pro se
complaints. I believe I was the first attorney to be appointed in one
of these cases in 1956 (de Cartas V. Veterans Administrator). That,
and the other early cases involved claims under 38 U.S. Code 784,
(gratuitous life insurance). The Veterans Administrator took the
position that if the widow cohabited or committed any other act which
was in his opinion morally wrong after the husband's death, he refused
to pay the insurance. The late Judge Holtzoff ruled that common law
marriage was illegal in the Philippines, that the widow had not
"remarried" and that she should receive the gratuitous insurance.
Many insurance cases were handled successfully for the widows before
the U. S. District Court in the early 1960's. The court decided that
R.
GERALO
FORD
LIBRARY
3 April 1974
Mr. President
Page -2-
the Administrator was arbitrary and capricious and his actions
illegal; many widows received their $5000. insurance. The fee
provided by that statute was 10% of the unpaid insurance, which
was payable monthly, so none of the lawyers handling that type of
case received any substantial remuneration. (monthly checks
approximately $2. or less)
A second benefit is provided by 38 USC 101(14), namely,
dependency and indemnity compensation for the widow and/or surviving
children for life; the sums awarded are relatively modest (but more
substantial than insurance) and are in the nature of a pension which
has been called a "gratuity" by the Congress and by the Veterans
Administrator. The local lawyers again accepted a series of unsolicited
court-appointed cases for these benefits in the 1960's and early 70's.
These were pro se complaints from indigent widows. Again, the Veterans
Administrator took the position that if in his opinion the widow had
committed any immoral acts, he could arbitrarily deny her these benefits
and he did 80 in hundreds of cases which went to court. However, our
United States District Court for the District of Columbia in a series
of decisions from many different judges, rendered verdicts restoring
the widows to the rolls and also awarded the court appointed attorneys
a 25% fee for theirservices, the fee rate used in Federal Tort Claim
and Social Security litigated cases. This series of decisions came
in 1969-70 but so far the Administrator has failed and refused to pay
out any of the fees to the attorneys, taking the position that the
Statute makes his word "final and conclusive" and that he is not
subject to judicial review either on the defending or fee awards.
The widows have been receiving their 75% but the 25% in each case
still remains in the Treasury, awaiting disposition.
Now for the crux!
Prior to August 1972, the Administrator already had very
broad decision-making powers in this field. However, on that date
and during the pendency of the key case in the Court of Appeals, you
signed into law a provision (a rider on the V. A. appropriation bill)
which amended 38 U.S.C. 211(a) to read as follows:
"(a) On and after October 17, 1940, except as provided
in sections 775, 784 and as to matters arising under
chapter 37 of this title, the decisions of the
Administrator on any question of law or fact under FOR
any law administered by the Veterans' Admini tration
GERALD
LIBRARY
3 April 1974
Mr. President
Page -3-
providing benefits for veterans and their dependents
or survivors shall be final and conclusive and no
other official or any court of the United States shall
have power or jurisdiction to review any such decision
by an action in the nature of mandamus or otherwise."
This statute (retroactive to 10/17/40) makes the Administrator
immune from judicial review; it was under attack in the case of
Robison V. Johnson, Administrator, No. 72-1297. On March 4, 1974,
the Supreme Court entered its decision upholding the validity of
the statute!
In our great Democracy, we do not feel that any government
official, dispensing public funds, be they gratuities or monies
payable under a contract, should be immune from judicial review,
particularly when the question of eligibility is one of morality.
We feel that the judgment of such official should be subject to
judicial scrutiny, particularly when the decision involves alleged
immoral conduct of widows of veterans who are, at the whim of the
Administrator, deprived of the benefits which Congress has provided.
(When Eisenhower was President, and discovered that contracting
officers awarding government construction contracts enjoyed such
immunity, he promptly signed legislation terminating such immunity.)
As a matter of policy, past Presidents have appointed former presidents
of the VFW, DAV, the American Legion, or some other veterans'
organization to be the Administrator of Veterans Affairs, and apparently
the veterans have had some degree of confidence that the appointee would
give them beneficial consideration. We do not quarrel with this policy.
However, this policy should not immunize the Administrator from judicial
review, in matters involving the morality of the claimant.
My recommendation would be to except morality cases from
the scope of 38 USC 211(a).
********
As stated above, no fees have been paid by the Administrator
in these dependency and indemnity cases, even though the court-
appointed attorneys have been successful. The brief, filed by the
Department of Justice in Rodulfa V. Administrator, #22,947 in the
United States Court of Appeals, (Cert. den.) summarizes the benefits
and fees of 132 judgments as follows:
LIBRARY GERALD FORD
3 April 1974
Mr. President
Page -4-
Total Government Liability
$3,463,649.30
Total fees awarded on 25% basis
$ 855,541.82
The courts decline to order the payment of the fees, stating that
the above quoted statute removes jurisdiction; the Department of
Justice declines to recommend the payment, claiming it is an
"administrative" matter for the Administrator to decide; and
the Administrator has failed and refused, and continues to fail
and refuse to pay any fee to the attorneys, or to pay the 25%
to the widows, even though the money has been appropriated and is
awaiting disbursement!!
My office is only three blocks from the White House:
I respectfully request the honor of a conference with you or one
of your top assistants who would be empowered to research and
correct the above self-evident inequities. I feel it is appropriate
at this time, when you have publicly expressed concern over treatment
the Veterans are receiving.
Respectfully yours,
Heng Fruel
Henry F. Lerch
is
FORD
:
LIBRARY
AMERICAN BAR ASSOCIATION
SECTION OF
LERCH, PILIME LERCH
1155 EAST 60TH ST. CHICAGO ILLINOIS-60637 TELEPHONE 312 493-0533
ADMINISTRATIVE
LAW
August 27, 1974
DIEL
AUG28'974
CHAIRMAN
Frank M. Wozencraft
3006 One Shell Plaza
Houston, TX 77002
The following Motion was adopted unanimously at a meeting
CHAIRMAN-ELECT
Marior Fdwyn Harrison
Suite 500
1701 Pennsylvania Ave
of the ABA Section of Administrative Law held on August 13,
Washington, DC 20006
SECRETARY
Willis B. Snell
1974:
1666 K St., N.W
Washington. DC 20006
BUDGET OFFICER
WHEREAS, the Section of Adminis-
Charles Effinger Smoot
2006 Columbia Rd N.W.
trative Law, American Bar Association,
Washington. DC 20009
SECTION DELEGATE TO
has a continuing interest in the judicial
HOUSE OF DELEGATES
Franklin M. Schultz
review of decisions of the Administrator
Suite 800
888-17th St. NW
of Veterans Affairs, and
Washington DC 20006
COUNCIL MEMBERS
Louis J Hector
WHEREAS, on February 24, 1958,
Miami, FL
the American Bar Association adopted a
Neil B Kabatchnick
Washington DC
resolution sponsored by the Section of
Jack L. Lahr
Washington, DC
Administrative Law supporting the en-
Jerre S Williams
actment of H.R. 272, 85th Congress,
Austin TX
Frederick Davis
1st Session, a bill to permit judicial re-
Columbia MO
Herbert E Forrest
view of decisions of the Administrator
Washington DC
of Veterans Affairs, which resolution is
Carroll L Gilliam
Washington DC
still in effect, and
Victor G Rosenblum
Chicago IL
William F Cottrell
WHEREAS, Section 8(a), Public Law
Chicago, IL
Roger C. Cramton
91-376, 84 Stat. 787, 790, amended 38
Ithaca NY
Joel E Hoffman
U.S.C. S211 (a) as follows:
Washington, DC
Richard E Wiley
Washington. DC
On and after October 17, 1940,
LAST RETIRING
except as provided in sections 775,
CHAIRMAN
John T Miller Jr
784, and as to matters arising un-
Washington DC
CHAIRMAN DIVISION OF
der chapter 37 of this title, the de-
STATE ADMINISTRATIVE
cisions of the Administrator (of
LAW
Geoffrey C Hazard Jr
Veterans' Affairs) on any question
New Haven CT
of law or fact under any law admin-
Chairman Legislative
Activity Committee
William H Allen
istered by the Veterans' Adminis-
Washington DC
tration providing benefits for veter-
Editor-in-Chief
Administrative
ans and their dependents or surviv-
Law Review
Daniel J Baum
ors shall be final and conclusive and
Toronto Canada
no other official or any court of the
United States shall have power or
jurisdiction to review any such de-
cision by an action in the nature of
mandamus or otherwise.
and
WHEREAS, Public Law 91-376 was
intended to overrule Tracy V. Gleason,
GERALD
AMERICAN BAR ASSOCIATION
SECTION OF
1155 EAST 60TH ST., CHICAGO. ILLINOIS 60637 TELEPHONE (312) 493-0533
ADMINISTRATIVE
LAW
Page Two
CHAIRMAN
Frank M. Wozencraft
379 F. 2d 469, 126 U.S. App. D.C. 415
3006 One Shell Plaza
Houston, TX 77002
(1967), which held that the action of the
CHAIRMAN-ELECT
Administrator of Veterans Affairs inre-
Marion Edwyn Harrison
Suite 500
1701 Pennsylvania, Ave
fusing to continue paying previously
Washington, DC 20006
awarded monetary benefits to a disabled
SECRETARY
Willis B. Snell
veteran was not barred from judicial re-
1666 K St., N.W
Washington, DC 20006
view by the provisions of 38 U.S. C. S211
BUDGET OFFICER
(a) then in effect, and
Charles Effinger Smoot
2006 Columbia Rd., N.W.
Washington, DC 20009
WHEREAS, Public Law 91-376 was
SECTION DELEGATE TO
HOUSE OF DELEGATES
enacted without public hearings and
Franklin M Schultz
Suite 800
without affording the American Bar As-
888-17th St., N.W
Washington, DC 20006
sociation an opportunity to present its
COUNCIL MEMBERS
views, and
Louis J. Hector
Miami, FL
Neil B Kabatchnick
Washington, DC
WHEREAS, the Supreme Court in
Jack L. Lahr
Johnson V. Robison, 94 S. Ct. 1160, 39
Washington, DC
Jerre S. Williams
L. Ed 2d 389, and Hernandez V. Ad-
Austin, TX
ministrator, 94 S. Ct. 1177, 39 L. Ed
Frederick Davis
Columbia, MO
2d 412, both decided March 4, 1974,
Herbert E. Forrest
Washington, DC
upheld 38 USC 211(a) unless a constitu-
Carroll L. Gilliam
Washington, DC
tional challenge to veterans' benefits is
Victor G. Rosenblum
involved, and
Chicago. IL
William F. Cottrell
Chicago, IL
WHEREAS, itis the view of the Sec-
Roger C. Cramton
Ithaca. NY
tion of Administrative Law that judicial
Joel E Hoffman
Washington, DC
review of decisions of the Administrator
Richard E. Wiley
of Veterans Affairs is appropriate and
Washington, DC
LAST RETIRING
desirable;
CHAIRMAN
John T. Miller, Jr
Washington, DC
NOW, THEREFORE, BE IT RE-
CHAIRMAN, DIVISION OF
STATE ADMINISTRATIVE
SOLVED, that the Section of Adminis-
LAW
Geoffrey C Hazard, Jr
trative Law reaffirms its position that
New Haven, CT
judicial review of decisions of the Ad-
Chairman, Legislative
Activity Committee
ministrator of Veterans Affairs is ap-
William H. Allen
Washington DC
propriate and desirable; and
Editor-in-Chief
Administrative
Law Review
BE IT FURTHER RESOLVED, that
Daniel J. Baum
Toronto, Canada
the Section of Administrative Law,
American Bar Association, opposes the
limitation on judicial review contained
in Public Law 91-376, 84 Stat. 797, 790,
38 USC 211(a).
Wills R. Succe BERAL FORD
Willis B. Snell, Secretary
LIBRARY
LAW OFFICES
PM DC 200
We hold these Truths
We hold these Truths
LERCH, PILLOTE & LERCH
BOWEN BUILDING
30 AUG
815 . 15TH STREET, N. W
1974
WASHINGTON, D. C. 20005
E
DD :
UNITED STATES
10
UNITED STATES
P AUG S1 & SEC 1574 CRICY
Phillip Buchen, Esq.
General Counsel
The White House
GERAL
Washington, D. C.
Processed of
saves
Pleading
feled ca
November 15, 1974
top drawer
of of
representation Justice Dept
MEMORANDUM FOR:
Don Lowits
for employees govt
FROM:
Phil Buchen
SUBJECT:
Court Pleadings Received from
Herod E. McLeod, Plaintiff per se,
Naming Donald Rumsfeld
To provide you with record of delivery of
McLeod's pleadings to the Department of Justice by me
on November 8, 1974.
Attachment
PWBuchen:ed
FORD i LIBRARY 070870
=
III
THE WHITE HOUSE
WASHINGTON
November 5, 1974
MEMORANDUM
TO:
FROM:
SUBJECT:
DONALD PHIL Court BUCHEN Pleadings RUMSFELD fill McLeod,
Plaintiff per se, Naming Donald Rumsfeld
Attached as Tab A are purported pleadings I have received in the
mail from a Herod E. McLeod. I have no knowledge who he is or
what matter he is referring to in the pleadings. Obviously, from
these documents one can not even be certain that a court action is
pending. However, this should be checked out since it has to do
with my government tenure. If my representation is necessary, I
presume it will be handled by the Office of Legal Counsel in the
Justice Department. Therefore, I would appreciate your taking
the necessary steps to have this matter forwarded to the Justice
Department.
I call your attention to the fact that in all of the documents I am
referred to as Rumfeld or Rumfield, instead of Rumsfeld. You
will also notice that this matter is supposedly set for hearing on
Friday, November 15th at 9:00a. m.
I would appreciate your keeping me advised of what happens in this
matter.
Justice Attachments 11/8/74 Wenderedter made capy
GERALO FORD LIBRARY
Monday 9/22/75
2:15 Mark Martin, an attorney in Dallas, called to
(214) 747-9211
talk with Mr. Buchen. He had with him on
the phone his co-counsel in a case -- Warren Whitham.
They represent the Dallas Independent School District.
The rea son for the call is that the constitutionality
of the Education Opportunity Act of 1974 that the
President has made some reference to recently has
been called into question in the Supreme Court.
They have done what is called for in their view by
the Presidential statute and Supreme Court rule in that
they have notified the Solicitor General that the constitutionality
of this has been called into question. This leaves it with the
Solicitor General to intervene or participate in whatever way
he sees fit. However, since it has obvious political
implications, they thought it would be wise if they alerted
the President's counsel and tell him about the situation.
Mr. Whitham will stay in Mr. Martin's office for a time --
and if someone will be getting back to them later, he
will arrange to return to Mr. Martin's office at a convenient
time.
I called Ken Lazarus but he was unavailable; checked
with Bobbie; she will call the Solicitor General and then
call Messrs. Martin and Whitham. I called to let them
know she would be back to them within half an hour or
the secretary would call to let them know otherwise.
Tuesday 9/23/75
9:45
Checked with Bobbie; she did call and talk for a long
time with both gentlemen.
She will call Keith Jones in Bob Bork's office this
morning.
Messrs. Martin and Whitham had properly
notified the Solicitor's office.
CERTS FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
November 24, 1975
MEMORANDUM FOR:
DICK CHENEY
FROM:
PHIL BUCHEN
P.
The Attorney General has called to advise us that
antitrust suits are about to be filed against Lockheed
Corporation and Bechtel Corporation for allegedly
conspiring with subcontractors to effectuate the Arab
boycott. You may want to pass this information on to
the President.
LIBRARY