CRISAFULLI v. SIMON
USDC Cr. No.76-0471
Alessandro S. Crisafulli, et. al.,
Plaintiffs,
Civil Action 76-471
v.
WILLIAM E. SIMON, et al.,
Defendants. Filed May 21, 1976
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
curae 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
granted. These 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 cite 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 ofthe
United States Attorney and in compliance 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 withhold 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 Untied 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
tothe 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 Nicon 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 587 (D.C. Cir. 1974) stands in juxtaposition to that requested in
this 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 by the 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 by the
instant plaintiffs on constitutional grounds, to include high echelon federal
employees 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 NTEU 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 ofthe 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 Simon alone 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(a)(1) and/or Chairman ofthe 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 5305(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 the applicability of 28 U.S.C. §§ 2282, 2284. A three-judge court should
not be convened when the constitutional issue presented is insubstantial. Sec
Bailey v. Patterson, 368 U.S. 31 (1962); Ex parte Poresky, 290 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 this 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 I, section 8 of the Constitution due
tohte no-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 inequity 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 the Fifthe 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 100, 1976 will be hte
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
application 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 havemoved to join the United States as a defendant
under Rule 19 of the Federal Rules of Civil Procedure. Because defendant
Simon has not het technically filed a responsive pleading withinthe 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 defendant as well before the June 10 hearing, and plaintiffs should 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 28 fot he
United States Code. Plaintiffs have sought to amend their complaint as of right
under Rule 15(a). The amendment asserts other bases of jurisdiction not
addressed in Simon's motion to dismiss.]
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In accordance with the foregoing, is is, by this Court, this 21st day of
May, 1976,
ORDERED that the suggestion of the United States Attorney is adopted
and the Untied 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 oft he Untied States Attorney that plaintiffs'
motion for a rule to show cause why the Untied States Marshal should not be
held in contempt fo 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.
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