Lovett v. United States, 46026-46028.

Citation66 F. Supp. 142
Decision Date05 November 1945
Docket NumberNo. 46026-46028.,46026-46028.
CourtCourt of Federal Claims

Charles A. Horsky, of Washington, D. C. (Edward B. Burling, Amy Ruth Mahin, and Covington, Burling, Rublee, Acheson & Shorb, all of Washington, D. C., on the brief), for plaintiffs.

Rawlings Ragland, of Washington, D. C., and Francis M. Shea, Asst. Atty. Gen., (Donald B. MacGuineas and Henry Weihofen, both of Washington, D. C., on the brief), for the Atty. Gen.

John C. Gall, of Washington, D. C., (Dean Hill Stanley, William F. Howe, Karl M. Dollak, Jos. G. Butts, Jr., and John E. Ritzert, all of Washington, D. C., and Clark M. Robertson, of Milwaukee, Wis., on the brief), for the Congress of the United States.

Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.

WHALEY, Chief Justice.

On August 26, 1943, plaintiff Robert Morss Lovett was appointed Executive Assistant to the Governor of the Virgin Islands by the Secretary of the Interior, pursuant to authority granted in Section 23 of the Organic Act of the Virgin Islands of the United States, approved June 22, 1936, 49 Stat.1807, 1813, 48 U.S. C.A. § 1405v. He took the oath of office and entered upon the duties thereof October 12, 1943. He performed them thereafter through March 13, 1944, at which time his services ended. He has not been paid the salary of his office for the period November 15, 1943, through March 13, 1944, which amounts to $1,996.40, and this sum he sues to recover.

Plaintiff Goodwin B. Watson was appointed Chief of the Analysis Division, Foreign Broadcast Intelligence Service, Federal Communications Commission, November 16, 1941, by the Federal Communications Commission, and took the oath of office and entered upon the duties thereof on that date, and performed them thereafter through November 21, 1943, when his active services ended. His appointment was made under Section 4 of the Communications Act of 1934, approved June 19, 1934, 48 Stat. 1064, 1066, 47 U.S. C.A. § 154. He sues to recover the salary of his office from November 16, 1943, through November 21, 1943, amounting to $101.78, which he has not been paid.

Plaintiff William Ell. Dodd, Jr., was appointed Assistant News Editor, Foreign Broadcast Intelligence Service, Federal Communications Commission, December 22, 1942, by the Federal Communications Commission, under Section 4 of the Communications Act of 1934, immediately entering upon the duties of that office. He performed those duties thereafter through November 21, 1943. He has not been paid the salary attached to that office for the period from November 16, 1943, through November 21, 1943, which amounts to $59.83, and he sues herein for that amount.

None of the appointments here involved were made by the President of the United States and confirmed by the Senate.

The three cases have been submitted on stipulations, and they have been briefed and argued together. The general question raised has been the constitutionality of Section 304 of the Urgent Deficiency Appropriation Act, 1943, 57 Stat. 431, 450.

The plaintiffs assert that the section is unconstitutional, setting forth their reasons for that assertion. The Attorney General having heretofore also taken the position that the section was unconstitutional, and still adhering to that position, the Assistant Attorney General, appearing for the defendant, supports the plaintiffs. Special counsel appear in the cases as amici curiae, having been employed to defend the constitutionality of the disputed section. The special counsel are designated variously in the record as representing the House, the Congress, the United States. Their brief is entitled "Brief for the Congress of the United States," and they sign as "Special Counsel for the Congress of the United States." They will hereinafter be referred to as "special counsel."

Insofar as the law involved in these three cases is concerned, they are not to be distinguished one from the other.

Special counsel raise the question of jurisdiction. Section 145 of the Judicial Code, 28 U.S.C.A. § 250, governs. The general jurisdiction of this Court in pay cases is too well-known and established to justify re-examination. Section 304, which will be quoted verbatim, in no way indicates that this Court is without jurisdiction. There is not a line or word to that effect. Inferences will not be employed to go to the extent of holding that Congress went so far as to deny these plaintiffs their day in court. The jurisdictional statute is general, and Section 304 contains no exception.

Section 304 is as follows: "Sec. 304. No part of any appropriation, allocation, or fund (1) which is made available under or pursuant to this Act, or (2) which is now, or which is hereafter made, available under or pursuant to any other Act, to any department, agency, or instrumentality of the United States, shall be used, after November 15, 1943, to pay any part of the salary, or other compensation for the personal services, of Goodwin B. Watson, William E. Dodd, Junior, and Robert Morss Lovett, unless prior to such date such person has been appointed by the President, by and with the advice and consent of the Senate: Provided, That this section shall not operate to deprive any such person of payment for leaves of absence or salary, or of any refund or reimbursement, which have accrued prior to November 15, 1943: Provided further, That this section shall not operate to deprive any such person of payment for services performed as a member of a jury or as a member of the armed forces of the United States nor any benefit, pension, or emolument resulting therefrom."

If Section 304 is unconstitutional and of no effect, recovery follows. Special counsel argue that it is not severable. Their argument is not convincing. We are in no doubt about our jurisdiction.

If, on the other hand, Section 304 is a valid exercise of constitutional power, but notwithstanding that plaintiffs are entitled to recover, then it becomes a matter of indifference whether the section is valid or invalid as an exercise of constitutional power.

The Court will not reach out gratuitously to avail itself of questionable but inapplicable elements in an act and thereby hold it to be unconstitutional. There is always the presumption of validity. The Court will not undertake to say that, because provisions in Section 304, not here operative, are invalid, the whole of the section falls for invalidity.

Much of the argument presented seems to be based on a supposed lack of appropriation. But there was an appropriation. Section 304 refers to an actual appropriation, an "available" appropriation. If "available", the appropriation, as far as these cases are concerned, was available for the payment of these salaries. Availability of the appropriation for other purposes is beside the question. The disbursing agency could divert no part of an appropriation to purposes other than those for which that appropriation was made. Section 304 does not say "otherwise" available, and important words may not be put into the statute that Congress did not place there. There was an appropriation, it was available for the payment of these salaries. If it was not available for the payment of these salaries, then it was clearly not "available" to the administrative bureau. Congress did not limit the appropriation. What it did limit and what it was directed to, was the activities of the disbursing agency. There, and there only, did Congress apply the brake.

Section 304 is notable for what it did not do, as well as for what it did do.

It did not terminate plaintiffs' services. Special counsel insist that it did not work removal from office, and so stated on argument of the cases.

Removal from office is not made an item of damages here. The claim made is only for salary of the office during the time of service, and no longer. We are therefore not concerned with the cause of termination, or in what situation, except for lack of pay, the plaintiffs found themselves thereafter.

This limitation upon the claims made explains why it has not been necessary in reviewing the facts, to gather in many things that are of record, or of which judicial notice may be taken. Many of the circumstances are interesting only, and in no sense material to disposition of the cases.

There is nothing in Section 304 which disturbed plaintiffs' incumbency in office. Special counsel in their brief say: "All that the statute did was to say to the disbursing officers of the Government: After November 15, 1943, you shall not pay out any money to Watson, Dodd and Lovett unless prior to that date they have been appointed by the President and confirmed by the Senate. This was merely a direction to disbursing officers, and in itself created no legal rights in anyone."

We repeat, the Court, in passing upon the constitutional validity of a statute will not gratuitously reach out to make use of that which is irrelevant to the case in hand. It was said in Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L. Ed. 1416: "A law which is constitutional as applied in one manner may still contravene the Constitution as applied in another. Since all contingencies of attempted enforcement cannot be envisioned in advance of those applications, courts have in the main found it wiser to delay passing upon the constitutionality of all the separate phases of a comprehensive statute until faced with cases involving particular provisions as specifically applied to persons who claim to be injured."

Section 304 does comprehend more than a direction not to pay for the isolated services here rendered. But that "more" is here irrelevant. In terms the section extends to all available appropriations, all disbursing officers, all departments, agencies or instrumentalities of the United States, all personal services of the instant plaintiffs, and is without limitation in time. But in the cases before us we...

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