UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEXANDRO S. CHRISAFULLI, et al.,     )
                Plaintiffs,           )
                                      )   Civil Action No. 76-471
        v.                            )
                                      )            FILED
WILLIAM E. SIMON, et al.,             )        MAY 21, 1976
                Defendants.           )
______________________________________)       JAMES F. DAVEY, Clerk

ORDER

This matter is before the court on a variety of preliminary motions that must be considered to determine the posture in which the court should approach the pending motion to dismiss of defendant William E. Simon, Secretary of the Treasury. First, the plaintiffs have moved for a rule to show cause why the united States Marshal of the District of Columbia should not be held in contempt for failure to serve a summons and complaint upon The Honorable Gerald R. Ford, President of the United States, named as a defendant in the complaint. The United States Attorney for the District of Columbia has moved for leave to appear as an amicus curiae for the purpose of suggesting to the court that plaintiffs' motion for a rule to show cause should be denied. Further, the United States Attorney has moved for leave to appear as an amicus curiae for the purpose of suggesting to the court that, as to the President of the United States, the complaint should be dismissed and that process should be quashed. The matters shall be considered together, since they raise related issues.

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It is clear that there is no ground upon which to site the Marshal for contempt for failure to serve the President. He was not acting intentionally in derogation of his responsibility to the court. Rather, upon the advice of the United States Attorney and in comliance with the customary practice in cases where the President is named as a defendant, the Marshal delivered to the United States Attorney a copy of the summons and complaint plaintiff intended to be served upon the President. Service of process is being withheld pending a determination by the court of the propriety of the President as a defendant herein by way of the United States Attorney's suggestion that service upon the President is improper. The question remains whether the President should be served at this point.

The reason suggested by the United States Attorney for prohibiting service upon Mr. Ford is that plaintiffs can be afforded the complete relief they seek by suing individuals, such as Simon, or bodies other than the President. If this should be the case, then the court should not invoke the narrow exception to the rule that the President is immune from judicial process. This exception holds that only when the President alone has the power to carry out the relief sought in the complaint may he be included as a defendant. This rule was applied against President Nixon in Minnesota Chippewa Tribe v. Carlucci, 358 F. Supp. 973 (D.D.C. 1973), where the President was required by statute to make appointments to the National Advisory Council on Indian Education and he had not done so, nor had he delegated the power to do so.

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The relief sought in the case of National Treasury Employees Union v. Nixon, 492 F.2d 507 (D.C.Cir. 1974) stands in juxtaposition to that requested in htis action, which demonstrates the validity of the position taken by the United States Attorney. In NTEU the plaintiff sought a writ of mandamus requiring the President to grant pay adjustments as mandated bythe Federal Pay Comparability Act, 5 U.S.C 5501 et seq. This Act was amended on August 9, 1975 by Public Law 94-82 (89 Stat. 421), the very statute challenged bythe instant plaintiffs on constitutional grounds, to include high echelon federal employeees within the annual adjustment of salaries to compensate for any increase in the cost of living. Rather than compel the President, who is the only person who can actually adjust federal salaries under the FPCA, to take appropriate action under the Act, the plaintiff here is attempting to restrain enforcement of the August, 1975 amendment to the Act as a violation of the Constitution. In NTEY the plaintiff sought affirmative relief that only the President was empowered to undertake by statute. In the case now before the court, there are methods of restraining enforcement of the Executive Salary Cost of Living Adjustment Act of 1975 other than reaching the President's ultimate adjustment power. The United States Attorney suggests that relief against Secretary Simonalone would provide a sufficient restraint because Simon controls the distribution of salaries. Further, the president's

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designated agent under 5 U.S.C. 5305(n)(1) and/or the Chairman of the Advisory Commission on Federal Pay could be joined and restrained from submitting recommendations on pay adjustments to the President, a prerequisite to presidential action under section 5303(a)(2). Together with a declaratory judgment on the constitutionality of the Cost of Living Adjustment Act, an order enjoining the actions of necessary officials other than the President could effectively accord plaintiffs the full relief they now seek.. Therefore, the President should not be a defendant, and service should be quashed as to him.

plaintiffs also have filed an application for convening a three-judge court, citing hte applicability of 28 U.S.C. 2282, 2284. A three-judge court should not be convened when the constitutional issue presented is insubstantial. See Bailey v. Patterson, 368 U.S. 31 (1962); Ex parte Poresky, 2990 U.S. 30 (1934); C.A. Wright, Law of Federal Courts, 50, at 191-93 (2d Ed. 1970). A single judge may determine that the plaintiffs' challenge is so lacking in merit that the complaint should be dismissed for want of jurisdiction. Rosado v. Wyman, 397 U.S. 397, 403 (1970).

The court has some doubt as to the substantiality of the constitutional questions raised in htis suit. Two constitutional challenges to the Executive Salary Cost of Living Adjustment Act are discernible from the complaint. First, plaintiffs have alleged a violation of Article X, Section 8 of the Constitution due to the Non-uniform impact of an "inflation tax" caused by Congress' deficit spending policies. Since federal employees escape the effect of the tax through salary adjustments under the statute in question, the burden on U.S. citizens

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is not uniform, and the cause of the unequity must be removed. Defendant Simon has addressed this issue in his motion to dismiss, and plaintiffs should be given an opportunity to reply.

The second constitutional infirmity of Public Law 94-82 is alleged to be the violence it does to the Due Process Clause of th Fifth Amendment. The distinction, for purposes of cost of living adjustments, between citizens who are federal employees and those who are not is claimed to be arbitrary and unreasonable, requiring invalidation of the statute.

The focus of the hearing scheduled for June 10, 1976 will be the substantiality of these constitutional issues. 1/ If they are found totally lacking in merit, as it is permissible for this court sitting as a single judge to find, the applicaion for a three-judge court shall be denied and the case should be dismissed. If the issues prove substantial, then any further hearings in this case in all likelihood will be held before a panel of three judges.

Finally, plaintiffs have moved to join the United States as a defendant under Rule 19 of the Federal Rules of Civil Procedure. Because defendant Simon has not yet technically filed a responsive pleading within the meaning of Rule 15(a), plaintiffs are entitled to amend their complaint to add this defendant as a matter of right. The United States Attorney may wish to move for dismissal of this dfendant as well before the June 10 hearing, and plaintiffs shoudl be permitted the opportunity to add further defendants in light of the instant order.

1/ Defendant Simon's motion to dismiss also raises the issue that plaintiffs improperly premised jurisdiction on section 1346 and 1347(3) of Title 24 of the United States Code. Plaintiffs have sought to amend their complaint as of right under Rule 15(a). The amendment asserts other __ of jurisdiction onot addressed in Simon's motion to dismiss.

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In accordance with the foregoing, it is, in this court this 21st day of May, 1976,

ORDERED that the suggestion of the United States Attorney is adopted and the United States Marshal for the District of Columbia hereby is directed to withhold service of the summons and complaint herein on Gerald R. Ford, President of the United States; and it is further

ORDERED that the action be, and the same hereby is, dismissed as to the President; and it is further

ORDERED that the suggestion of the United States Attorney that plaintiffs' motion for a rule to show cause why the United States Marshal should not be held in contempt of court is adopted and plaintiffs' motion for a rule to show cause should be, and the same hereby is, denied; and it is further

ORDERED that the court's order of May 3, 1976 hereby is amended, in part, to the effect that plaintiffs shall respond to defendant's motion to dismiss no later than June 3, 1976 and that defendant Simon shall file a reply to plaintiffs' opposition no later than June 8, 1976.

Thomas A. Flannery
UNITED STATES DISTRICT JUDGE