465 F.2d 844 (3rd Cir. 1972), 19277, Richardson v. United States

Docket Nº:19277.
Citation:465 F.2d 844
Party Name:William B. RICHARDSON, Appellant, v. UNITED STATES of America et al.
Case Date:July 20, 1972
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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465 F.2d 844 (3rd Cir. 1972)

William B. RICHARDSON, Appellant,

v.

UNITED STATES of America et al.

No. 19277.

United States Court of Appeals, Third Circuit.

July 20, 1972

Argued June 25, 1971.

Submitted En Banc May 11, 1972.

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[Copyrighted Material Omitted]

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William B. Richardson, pro se.

John F. Dienelt, Department of Justice, Washington, D. C., for appellees.

Before VAN DUSEN and MAX ROSENN, Circuit Judges, and KRAFT, District Judge.

Present SEITZ, Chief Judge, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, MAX ROSENN, JAMES ROSEN, and HUNTER, Circuit Judges, and KRAFT, District Judge.

OPINION

MAX ROSENN, Circuit Judge.

In contrast to the case frequently heard on appeal, in which the Government seeks an accounting from the taxpayer, here it is the taxpayer who seeks an accounting from the Government.

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Appellant, acting in propria persona, complained that the Government's consolidated statement, entitled "Combined Statement of Receipts, Expenditures and Balances of the United States Government," fails to show monies received and expended by the Central Intelligence Agency (CIA). He alleged that the Central Intelligence Agency Act relieving the Secretary of the Treasury from publishing such figures was repugnant to the Constitution and void. He sought a writ of mandamus to compel the Secretary of the Treasury to publish an accounting of the receipts and expenditures of the CIA and to enjoin any further publication of the Combined Statement which did not reflect them. His application for a three judge court was denied by the district court which subsequently dismissed the complaint on grounds of standing and justiciability. 1

We will vacate the order and remand.

After oral argument, this court deemed the issues raised by the case of sufficient importance to necessitate the appointment of amicus curiae, Professor

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Ralph S. Spritzer of the University of Pennsylvania Law School, formerly Acting Solicitor General of the United States. He has submitted a thoughtful brief to which all parties have responded.

THE CONSTITUTIONAL AND STATUTORY CONTEXT

Because appellant sought to challenge the system by which the Federal Government accounts for funds spent by the Central Intelligence Agency, a brief explanation of that system is necessary to put his action in appropriate context.

The Federal Government's spending powers, enumerated in article I, section 8 of the Constitution, are regulated by article I, section 9, clause 7, which provides:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

In accordance with this mandate, all federal agencies except the CIA receive an annual specific appropriation from the Congress. 31 U.S.C. § 696. The Secretary of the Treasury then prepares an annual statement by "head of appropriation" for the use of the Executive, the Congress and the public reflecting how much each agency has spent during the previous fiscal year. 31 U.S.C. §§ 66b(a), 1029. Since there is no specific appropriation for the CIA, its receipts and expenditures are not listed in the document.

The Central Intelligence Agency Act of 1949, 63 Stat. 208, 50 U.S.C. § 403a et seq. (1970), established a unique procedure for funding the CIA. Section 403f(a) permits the CIA to transfer and receive funds from other agencies with the approval of the Bureau of the Budget (now Office of Management and Budget) "without regard to any provisions of law limiting or prohibiting transfers between appropriations." Once the money has been spent, the CIA need not disclose its functions or personnel, 50 U.S.C. § 403g, and:

[t]he sums made available to the Agency may be expended without regard to the provisions of law and regulations relating to the expenditure of Government funds; and for objects of a confidential extraordinary, or emergency nature, such expenditures to be accounted for solely on the certificate of the Director and every such certificate shall be deemed a sufficient voucher for the amount therein certified. 50 U.S.C. § 403j(b).

This procedure creates a two-step system for disbursement of the Treasury's monies to the CIA. First, Congress appropriates money to some other agency, and then that agency transfers the funds to the CIA. The only accurate accounting for the funds is the certificate rendered by the Director of the CIA, but it does not appear that this certificate or its contents are made available to the public. Presumably the money actually spent is reflected in the Treasury Department's annual statement as a disbursement by the original agency to which Congress made the appropriation, although it may not be reflected at all.

Appellant Richardson, a citizen and taxpayer residing in Greensburg, Pennsylvania, wrote the Treasury Department, inquiring about the annual expenditures of the CIA. He was informed by defendant Sokol, the Treasury officer in charge of the publication of the annual statement, that the Treasury Department did not receive information on the CIA because of the congressional determination that such information should not be made public. He further stated that neither he nor the defendant Secretary of the Treasury had access to the information appellant desired. There was no further administrative relief available.

Appellant then brought this action alleging that the appellees have a constitutional and statutory obligation to set forth an accurate accounting of the expenditures of the United States. He contended that the Central Intelligence

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Agency Act of 1949, which creates an exception for the CIA, is repugnant to the Constitution because its prohibition against reporting the CIA's expenditures contravenes the mandate of article I, section 9, clause 7. He asked that a three judge court be convened to determine the constitutionality of the Central Intelligence Agency Act, and that a mandamus issue against the defendants requiring them to publish a financial statement which complies with the commands of the Constitution and the remaining acts of Congress.

Appellant also alleged that the constitutional duty to provide a regular account of receipts and expenditures of public money is one owed to the citizen and taxpayer, for its obvious design is to provide members of the electorate with information lying at the core of public accountability in a democratic society.

JURISDICTION

Appellant alleges several grounds for jurisdiction, only one of which is proper. 2 It is the relatively new Mandamus and Venue Act, 28 U.S.C.A. § 1361, which states:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

The legislative history of the mandamus statute reveals that the statute's construction turns upon traditional mandamus law. Davis, Administrative Law Treatise (1970 Supplement) § 23.10. In order for mandamus to issue, a plaintiff must allege that an officer of the Government owes him a legal duty which is a specific, plain ministerial act "devoid of the exercise of judgment or discretion." Clackamas County, Or. v. McKay, 94 U.S.App.D.C. 108, 219 F.2d 479, 489 (1954). ICC v. New York, New Haven & Hartford R. R., 287 U.S. 178, 204, 53 S.Ct. 106, 77 L.Ed. 248 (1932), Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218, 50 S.Ct. 320, 74 L.Ed. 809 (1930), United States v. Walker, 409 F.2d 477, 481 (9th Cir. 1969). An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt. United States v. Walker, supra. Additionally, plaintiff must have exhausted all other available means of relief. Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969) cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121 (1970).

What is the nature of the duty which appellant charges was breached? The duty alleged here arises under article I, section 9, clause 7 as implemented by the Congress under 31 U.S.C. §§ 66b(a) and 1029. 3 Appellant's position is that save for the existence of the Central Intelligence Agency Act, Congress would be required to appropriate money specifically for the CIA, and the Secretary of the Treasury would be required to give an accounting to the President, the Congress

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and the public for that agency's expenditures by that head of appropriation, as mandated by 31 U.S.C. § 1029.

The Government argues that no specific duty exists because the Congress has, by the Central Intelligence Agency Act, relieved the Secretary of the Treasury of the obligation to publish a statement pertaining to funds received and expended by the CIA. It also contends the Secretary cannot be under such an obligation because he does not possess the CIA's accounts. 4

We do not decide the constitutionality of the Central Intelligence Agency Act. However, for the purpose of determining whether mandamus will lie against him in the federal courts, an officer of the Government cannot deprive the court of jurisdiction to compel performance of an otherwise clear statutory duty by invoking the authority of what is challenged as an unconstitutional law. In re Ayers, 123 U.S. 443, 506, 8 S.Ct. 164, 31 L.Ed. 216 (1887); Board of Liquidation v. McComb, 92 U.S. 531, 541, 23 L.Ed. 623 (1875); National Association of Government Employees v. White, 135 U.S.App.D.C. 290, 418 F.2d 1126, 1129 (1969); cf. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 701-702, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). As a practical matter, this rule avoids the multiplicitous litigation that would arise if a party were first required to litigate the constitutionality of a statute in a separate action and then later secure specific relief in another...

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