National Treasury Employees Union v. Nixon, No. 72-1929.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation492 F.2d 587
Decision Date25 January 1974
PartiesNATIONAL TREASURY EMPLOYEES UNION, Appellant, v. Richard M. NIXON, Individually and as President of the United States.
Docket NumberNo. 72-1929.

492 F.2d 587 (1974)

NATIONAL TREASURY EMPLOYEES UNION, Appellant,
v.
Richard M. NIXON, Individually and as President of the United States.

No. 72-1929.

United States Court of Appeals, District of Columbia Circuit.

Argued June 7, 1973.

Decided January 25, 1974.


492 F.2d 588
COPYRIGHT MATERIAL OMITTED
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George H. Cohen, Washington, D.C., with whom Robert M. Tobias, Washington, D.C., was on the brief for appellant

Eloise E. Davies, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U. S. Atty. and Morton Hollander, Atty., Dept. of Justice, were on the brief for appellee.

Before ROBINSON and WILKEY, Circuit Judges, and KAUFMAN,* United States District Judge for the District of Maryland.

FRANK A. KAUFMAN, District Judge:

At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia.
No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the court is founded.
These principles have been, on the side of the applicant very ably argued at the bar. In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that argument.
In the order in which the court has viewed this subject, the following questions have been considered and decided.
1st. Has the applicant a right to the commission he demands?
2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
3d. If they do afford him a remedy, is it a mandamus issuing from this court?

Those words, written in February, 1803, comprise the opening paragraphs of Mr.

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Chief Justice John Marshall's landmark opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 154, 2 L.Ed. 60 (1803). The Chief Justice, writing for a unanimous Court, answered the first two questions in the affirmative,1 concluding with regard to the first question
To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. Id. at 162.

Justice Marshall's discussion of the second question included the following:

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. Id. at 163.
* * * * * *
It follows, then, that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.
If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction.
In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule.
By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.
But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.
The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a
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right to resort to the laws of his country for a remedy. Id. at 165-166.
* * * * * *
It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct would be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. Id. at 170-171.

The third question in Marbury v. Madison, relating to the existence of the mandamus powers of the Supreme Court of the United States, is not present in this case, in which the National Treasury Employees Union (NTEU), a public employee union, seeks declaratory and injunctive relief and mandamus to require President Nixon to perform what is alleged to be a ministerial act under the Federal Pay Comparability Act (FPCA), 5 U.S.C. § 5301 et seq. (1970) NTEU filed this suit in the United States District Court for the District of Columbia, contending that under Section 5305(a) of the FPCA2 the President

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was required to implement a comparability pay adjustment for federal employees effective in October, 1972, or to have submitted to the Congress by September 1, 1972 an alternative plan concerning federal pay adjustments; and that President Nixon without legal justification failed to take either course of action. NTEU, on September 14, 1972, originally filed a motion for a preliminary injunction. The District Court dismissed the complaint for lack of jurisdiction, referring to the separation of powers doctrine and also stating that in this case the President's performance of his duty depends upon the "construction and application" of the statutes involved. NTEU continues to seek injunctive, declaratory and mandamus relief herein

Jurisdiction was originally asserted by NTEU under 28 U.S.C. § 1331(a),3 § 13614 and § 2201.5 However, in oral argument in this Court, counsel for NTEU admitted that Section 1331(a) jurisdiction is lacking because no individual plaintiff has a claim which exceeds $10,000. Thus, since aggregation of individual claims is not permitted under Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969)6 for purposes of meeting the $10,000 requirement, Section 1331(a) jurisdiction is lacking herein. Accordingly, subject matter jurisdiction exists only if NTEU has stated a proper claim for mandamus under Section 1361 measured by traditional criteria.

In this case, the same issues posed by the first two of the three questions presented to and answered by Mr. Chief Justice Marshall more than 170 years ago are present, with one most important difference — in this case the President of the United States, not the Secretary of State as in Marbury v. Madison, is the defendant. Precisely put, the two questions raised in this case are:

1. Were the members of plaintiff organization entitled to have the President put into effect their pay raise, as of October, 1972?

2. If the answer to that first question is "Yes", do the laws of this country afford plaintiff a remedy in this case in this Court?

I

Enacted on January 8, 1971, the FPCA departed from the previously established congressional pattern of dealing ad hoc with federal pay adjustments from time to time and provided a mechanism pursuant to which pay rates for federal employees are adjusted by the President7 in October of each year beginning in 1972 based upon a survey conducted by the Bureau of Labor Statistics (BLS) relating federal pay scales

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to rates of pay for the comparable levels of work in private enterprise.8 One of the...

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92 practice notes
  • U.S. v. City of Philadelphia, No. 80-1348
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 19, 1981
    ...may not decline to follow a congressional mandate within its proper legislative competence, see National Treasury Employees v. Nixon, 492 F.2d 587 (D.C.Cir.1974) (writ of mandamus lies for Executive's failure to grant pay adjustments required by act of Congress), it is questionable, to say ......
  • Karnoski v. Trump, No. 18-35347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2019
    ...relief), vacated as moot , ––– U.S. ––––, 138 S. Ct. 377, 199 L.Ed.2d 275 (2017), and National Treasury Employees Union v. Nixon , 492 F.2d 587, 609 (D.C. Cir. 1974) (noting that "no immunity established under any case known to this Court bars every suit against the President for injun......
  • National Wildlife Federation v. U.S., No. 78-1976
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 11, 1980
    ...the federal official at issue is the President of the United States. National Treasury Employees Union v. Nixon, 160 U.S.App.D.C. 321, 492 F.2d 587 That the statute permits the issuance of mandamus does not require its issuance. Mandamus is issued at the discretion of the court. Hayakawa v.......
  • Cook v. Arentzen, No. 76-1359
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 19, 1978
    ...under § 1361. McGaw v. Farrow, 472 F.2d 952, 956 (4th Cir. 1973); National Treasury Employees Union v. Nixon, 160 U.S.App.D.C. 321, 326, 492 F.2d 587, 592 (1974); Billiteri v. United States Board of Parole, 541 F.2d 938, 946-947 (2d Cir. 1976); City of Milwaukee v. Saxbe, supra. See also Ka......
  • Request a trial to view additional results
90 cases
  • U.S. v. City of Philadelphia, No. 80-1348
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 19, 1981
    ...may not decline to follow a congressional mandate within its proper legislative competence, see National Treasury Employees v. Nixon, 492 F.2d 587 (D.C.Cir.1974) (writ of mandamus lies for Executive's failure to grant pay adjustments required by act of Congress), it is questionable, to say ......
  • Karnoski v. Trump, No. 18-35347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 14, 2019
    ...relief), vacated as moot , ––– U.S. ––––, 138 S. Ct. 377, 199 L.Ed.2d 275 (2017), and National Treasury Employees Union v. Nixon , 492 F.2d 587, 609 (D.C. Cir. 1974) (noting that "no immunity established under any case known to this Court bars every suit against the President for injunctive......
  • National Wildlife Federation v. U.S., No. 78-1976
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 11, 1980
    ...the federal official at issue is the President of the United States. National Treasury Employees Union v. Nixon, 160 U.S.App.D.C. 321, 492 F.2d 587 That the statute permits the issuance of mandamus does not require its issuance. Mandamus is issued at the discretion of the court. Hayakawa v.......
  • Cook v. Arentzen, No. 76-1359
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 19, 1978
    ...under § 1361. McGaw v. Farrow, 472 F.2d 952, 956 (4th Cir. 1973); National Treasury Employees Union v. Nixon, 160 U.S.App.D.C. 321, 326, 492 F.2d 587, 592 (1974); Billiteri v. United States Board of Parole, 541 F.2d 938, 946-947 (2d Cir. 1976); City of Milwaukee v. Saxbe, supra. See also Ka......
  • Request a trial to view additional results
2 books & journal articles
  • ADMINISTRATIVE SABOTAGE.
    • United States
    • Michigan Law Review Vol. 120 Nbr. 5, March 2022
    • March 1, 2022
    ...Perhaps the closest that a court has come to affirmatively enforcing the Take Care Clause is National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974). That case involved President Nixon's failure to implement a pay raise for federal employees that had been approved by Congr......
  • ELECTION LAW VIOLATIONS
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...local elections), superseded by constitutional amendment, U.S. CONST. amend. XXVI, as recognized in Nat’l Treasury Emps. Union v. Nixon, 492 F.2d 587, 612 n.51 (D.C. Cir. 1974); Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir. 1981). 270. See United States v. O’Dell, 462 F.2d 224, 232 n.10 ......

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