Barnes v. Kline, 84-5155

• Decision Date: 12 April 1985
• Docket Number: No. 84-5155,84-5155
• Citation: 245 U.S.App.D.C. 1,759 F.2d 21
• Parties: , 53 USLW 2528 Michael D. BARNES, individually and as a member of U.S. House of Representatives, et al., and United States Senate, et al., Appellants, v. Ray KLINE, individually and in his capacity as Administrator, General Services Administration, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 21

759 F.2d 21

245 U.S.App.D.C. 1, 53 USLW 2528

Michael D. BARNES, individually and as a member of U.S House of Representatives, et al., and United States Senate, et al., Appellants, v. Ray KLINE, individually and in his capacity as Administrator, General Services Administration, et al.

No. 84-5155.

United States Court of Appeals District of Columbia Circuit.

Argued June 4, 1984.

Decided Aug. 29, 1984.

Opinions Filed April 12, 1985.

As Amended April 12, 1985.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-00020).

Michael Davidson, Washington, D.C., with whom M. Elizabeth Culbreth, Morgan J. Frankel, Michael Ratner, Washington, D.C., Morton Stavis, Hoboken, N.J., Peter Weiss and John Privitera, Washington, D.C., were on the brief, for appellants Michael Barnes, et al. and the United States Senate, et al. Steven R. Ross and Charles Tiefer, Washington, D.C., were on the brief, for appellants Speaker and Bipartisan Leadership Group of the United States House of Representatives.

Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., William Kanter and Marc Johnston, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before ROBINSON, Chief Judge, BORK, Circuit Judge, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

Separate dissenting opinion filed by Circuit Judge BORK.

McGOWAN, Senior Circuit Judge:

This appeal from the District Court ¹ requires us to determine when legislation presented to the President for his review is subject to a "pocket veto" under Article I, section 7, clause 2 of the United States Constitution. That clause provides, in part, that if the President disapproves of a bill but fails to return it to its originating house, with his objections noted, within ten days after presentment to him, the bill becomes a law "unless the Congress by their adjournment prevent its Return, in which Case it shall not be a law." The precise issue at stake is whether adjournment of the Ninety-eighth Congress at the end of its first session "prevented" return of a bill presented to the President on the day of adjournment and thus created an opportunity for a pocket veto of that bill.

Appellants are thirty-three individual members of the House of Representatives, ² joined by the United States Senate and the Speaker and bipartisan leadership of the House of Representatives. ³ Appellees are Ray Kline, Acting Administrator of General Services, ⁴ and Ronald Geisler, Executive Clerk of the White House. In the District Court, appellants sought declaratory and injunctive relief that would have nullified the President's attempted pocket veto in this case and required appellees to deliver and publish as law the bill that forms the subject matter of this litigation. On cross-motions for summary judgment, the court found for appellees on the ground that intersession adjournments ⁵ inherently prevent the return of disapproved legislation. Barnes v. Carmen, 582 F.Supp. 163 (D.D.C.1984). Our judgment was announced by order entered August 29, 1984, reversing the District Court's decision and remanding the case with instructions to enter summary declaratory judgment for appellants. 743 F.2d 45 (C.A.D.C.). The same order noted that this opinion would follow.

I

On September 30, 1983, the House of Representatives passed H.R. 4042, 98th Cong., 1st Sess. (1983). 129 Cong.Rec. H7777 (daily ed. Sept. 30, 1983). The purpose of the bill was to renew, for the fiscal year ending September 30, 1984, the human rights certification requirements of the International Security and Development Co-operation Act of 1981 ("ISDCA"), Pub.L. No. 97-113, Sec. 728, 95 Stat. 1519, 1555-57 (1981), reprinted as amended in 22 U.S.C. Sec. 2370 note, at 460-61 (1982) (Restrictions on Military Assistance and Sales to El Salvador). ⁶ On November 17th, the Senate passed the bill without amendment. 129 Cong.Rec. S16,468 (daily ed. Nov. 17, 1983). The following day, the Speaker of the House and the President Pro Tempore of the Senate signed the bill, see 1 U.S.C. Sec. 106 (1982), and the House Committee on Administration presented it to the President for his consideration. 129 Cong.Rec. H10,663 (daily ed. Dec. 14, 1983).

On the same day, November 18th, the Ninety-eighth Congress adjourned its first session sine die, ⁷ and agreed by joint resolution to convene for its second session on January 23, 1984. ⁸ By standing rule of the House of Representatives, the Clerk of the House is authorized to receive messages from the President whenever the House is not in session. See Rules of the House of Representatives, Rule III, cl. 5, reprinted in H.R.Doc. No. 271, 97th Cong., 2d Sess. 318 (1983); 129 Cong.Rec. H22 (daily ed. Jan. 3, 1983). Prior to adjourning, the Senate conferred similar, temporary authority on the Secretary of the Senate. 129 Cong.Rec. S17,192-93 (daily ed. Nov. 18, 1983).

The President took H.R. 4042 under consideration, but neither signed the bill into law nor returned it to the House of Representatives with a veto message. Instead, on November 30th, he issued a statement announcing that he was withholding his approval of the bill. 19 Weekly Comp.Pres.Doc. 1627 (Nov. 30, 1983). Taking the position that the President's action constituted a valid exercise of the pocket veto power, appellees failed to deliver and publish H.R. 4042 as a public law of the United States.

Five weeks later on January 4th, appellants filed suit in the District Court to overturn the President's attempted pocket veto as constitutionally invalid and to compel the delivery and publication of H.R. 4042 as law. After the District Court advanced and consolidated the trial on the merits with appellants' application for preliminary relief, the Senate and the Speaker and bipartisan leadership of the House joined the action as intervenors likewise opposed to the President's action. See supra note 3.

In the District Court, appellants contend: (1) that adherence to constitutional purpose requires limiting the opportunity for a pocket veto to final adjournments between Congresses or to adjournments during which the houses of Congress have prevented return by failing to appoint agents to receive presidential messages during their absence; (2) that consequently President Reagan's failure to return H.R. 4042 to the House of Representatives within ten days of its presentment to him had resulted in the bill's becoming law under the Constitution; and (3) that appellees therefore are under an obligation to deliver and publish the bill as law pursuant to 1 U.S.C. Secs. 106a, 112 (1982). In support of their position, appellants cited Wright v. United States, 302 U.S. 583, 58 S.Ct. 395, 82 L.Ed. 439 (1938), in which the Supreme Court held that no opportunity for a pocket veto arises when, on the tenth day after presentment, the originating house is in an intrasession adjournment of three days or fewer, and Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974), in which this circuit held Wright to apply to all intrasession adjournments by one or both houses of Congress, as long as a congressionally authorized agent remains to receive veto messages from the President. The Legislative Branch argued that, because intersession and intrasession adjournments are indistinguishable under modern congressional practice, Wright should be further extended to intersession adjournments.

Appellees responded that the appointment of congressional agents to receive presidential messages while Congress is in adjournment has no constitutional significance, and that in any case the Supreme Court's ruling in the Pocket Veto Case, 279 U.S. 655, 49 S.Ct. 463, 73 L.Ed. 894 (1929), which upheld a pocket veto during an intersession adjournment of the Sixty-ninth Congress, squarely governs this case. Moreover, while agreeing with appellants that no practical difference exists today between intersession and intrasession adjournments, appellees argued that there is a constitutionally significant distinction between adjournments for three days or less and those for a longer period, as evidenced by Article I, section 5, clause 4, under which neither house may adjourn for more than three days without the consent of the other. Any adjournment of over three days would, according to appellees, create an opportunity for a valid pocket veto. ⁹ Appellees contend that either construction of the congressional adjournment involved here--as an intersession adjournment or as one for more than three days--supports a finding that the President validly exercised his pocket veto power in this instance.

Accepting the first of the two alternative arguments raised by appellees, the District Court found the Pocket Veto decision "the only case directly in point" and concluded that "[u]nless and until the Supreme Court reconsiders the rule of that case," intersession adjournments would be deemed inherently to prevent the return of disapproved legislation to Congress. 582 F.Supp. at 168. Summary judgment was accordingly entered for appellees, whereupon the Legislative Branch filed its present appeal to this court. ¹⁰

II

Before examining the merits of this dispute, we address the question of whether appellants have standing to come before a federal court for resolution of the claims they press in the present litigation. In Kennedy v. Sampson, this court held that a single United States Senator had standing to challenge an unconstitutional pocket veto on the ground that it had nullified his original vote in favor of the legislation in question. ¹¹ At the same time, the court stated that either house of Congress clearly would have had standing to challenge the injury to its participation in the lawmaking process, since it is the Senate and the House of Representatives that pass legislation under Article I, and improper exercise of the pocket veto...