LITIGATION FELLUCA & CARSON. Baltimore, Md., February 12, 1971. Senator SAM J. ERVIN, Washington, D.C. DEAR SENATOR ERVIN: I am taking the liberty of sending you a photo copy of a Complaint for Injunction, Writ of Mandamus and Declaratory Judgment ic the case of Burns, et al vs. Secretary of Transportation and Director of the Ox of Management and Budget. The original of this pleading was filed this date in the United States District Court for the District of Maryland. My reason for sending you this is because of your interest, through the Sulcommittee on Separation of Powers of the Senate Judiciary Committee, in tië very sort of problem raised by the Plaintiffs in the enclosed legal action. It is my belief that the actions by the Defendants giving rise to the need to file this suit are flagrant examples of the abuse of executive powers to usurp fe legislative powers of the Congress of the United States of America. In effect, the Defendants have ignored the Mandate of the Congress. Under the provisiorS of the laws cited in the suit papers, Congress has exercised its Constitution... powers. Because of the improper actions of the Defendants, the clearly expressed will of Congress is being frustrated. We contend that the Executive Branch has no Constitutional power to act in this matter and that its actions in withholding funds appropriated by Congress are an attempt to by-pass the will of the people and of the Congress by administrative fiat, contrary to the law. Unfortunately, I must concede that my clients do not have clear assurance of success in their suit because of Constitutional law doctrines concerning seper. tion of powers and the doctrine of "political questions". In any event, I feel that it is the Congress of the United States, as the most direct representative of the American People and as the Legislative Branch of our Government, that must act to prevent this usurpation of its powers by the Executive Branch of Government. I would be most happy to furnish you and the Subcommittee any addition! information that is available to me that you might require; and either myself or any of my clients would be willing to appear and testify before the Subconmittee upon your request. I have also taken the liberty of sending a copy of the enclosed pleading to Mr. Edmisten, as counsel for the Subcommittee, along with a copy of this letter for his information. Very truly yours, FELLUCA & CARSON. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Civil Action, File No. Complaint for Injunction, Write of Mandamus and Declaratory Judgment ROBERT S. BURNS, PHILLIP DIAMOND, DONALD W. JAKLITSCH, WILLIAM K. JUDGE, Sr., DONALD I. PROPST, THOMAS F. SULLIVAN, SEYMORE TREIB, MARVIN WEINSTEIN, Individually and as a Class on behalf of all members of the United States Coast Guard Reserve, similarly situated, PLAINTIFFS v. JOHN A. VOLPE, and GEORGE T. SHULTZ, DEFENDANTS The Plaintiffs, for their complaint, allege: 1. That this action is of a civil nature, brought to require Defendants to de the duties prescribed for them by the Acts of Congress, acting in their capacities as officers of the Government of the United States, and to declare certain acts of Defendants herein described to be contrary to the Acts of Congress and o trary to the Constitution of the United States, and also to enjoin commission of these acts by Defendants. Jurisdiction is conferred on this Court by 28 USC 1361, 28 USC 1391(c) (4), and the existence of a Federal question. No real property is involved in this action, and three of the Plaintiffs reside within this District. This action also arises under the Constitution of the United States, Article I, Section 8, and under Chapter 11, Title 10, United States Code, as amended by Public Law 90-168, 81 STAT 521, December 1, 1987, cited as the "Reserve Forces Bill of Rights and Vitalization Act", and also under the following joint resolutions of Congress: Joint resolution approved June 29, 1970 (PL 91-294), amending joint resolutions approved August 1, 1970 (PL 91–370), October 15, 1970 (PL 91-454) and January 2, 1971 (PL 91–654). 2. Plaintiffs are citizens of the United States and are all members of the Selected or Ready Reserve of the United States Coast Guard. Plaintiffs Diamond, Jaklitsch, Judge and Propst are officers, warrant officers, or enlisted personnel participating in the Selected Reserve in a paid drill status. Plaintiffs Burns, Sullivan, Treib and Weinstein are members of the Ready Reserve. All Plaintiffs are patriotic citizens of the United States concerned about the security of this country. This action is brought by them in their individual capacities and also as representative parties on behalf of other members of the Coast, Guard Reserve under the provisions of Rule 23, Federal Rules of Civil Procedure. Plaintiffs allege: (a) The class is so numerous that joinder of all members is impractical; (b) There are questions of law or fact common to the class; (c) The claims of the representative parties are typical of the claims of the class; (d) The representative parties will fairly and adequately protect the interest of the class; and, (e) The prosecution of separate actions by individual members of the class would create a risk of adjudications with respect to individual members of the class which would, as a practical matter, be dispositive of the interest of the other members not parties to the adjudications and substantially impair or impede their ability to protect their interest. 3. Defendant, John A. Volpe, is Secretary of the Department of Transportation of the United States and as such is a Cabinet member and officer of the Executive Branch of the United States Government and is the "Secretary concerned" according to and under the provisions of Public Law 90-168. Defendant, George T. Shultz, is Director of the Office of Management and Budget within the Executive Office of the President of the United States and as such controls the apportionment and expenditure of funds appropriated by Congress. 4. Under the provisions of 10 USC 268, as amended by Public Law 90-168, the aforementioned "Reserve Bill of Rights and Vitalization Act", Congress provided: "(b) Within the Ready Reserve of each of the Reserve Components defined in Section 261 of this Title, there is a Selected Reserve consisting of units, and, as designated by the Secretary concerned, of Reserve, trained as prescribed in Section 270(a) (1) of this title, or Section 502 (a) of Title 32, United States Code, as appropriate. (c) The organization and unit structure of the Selected Reserve shall be approved (1) in the case of the Coast Guard Reserve, by the Secretary of Transportation upon the recommendation of the Commandant of the Coast Guard, . . ." (10 USC 261 (b) and (c)) And in the next to the last paragraph in the 1967 Amendment: “(c) Beginning with the fiscal year which begins July 1, 1968, and for each fiscal year thereafter, the Congress shall authorize the personnel strength of the Selected Reserve of each Reserve component of the Armed Forces; . . ." (81 STAT 526, Section 6(c)) 5. In February, 1970, the strength of the Selected Reserve was in excess of 15,000 men. Because of this and pursuant to the expressed intention of the Secretary to "phase out" the Coast Guard Selected Reserve, the Commandant of the Coast Guard, acting under the control of Defendant, Secretary of Transportation, ordered that all recruiting for the Coast Guard Reserve immediately cease. In a lawsuit involving the same Plaintiffs in this action and the Secretary of Transportation and Admiral Willard J. Smith, then Commandant of the Coast Guard, Admiral Smith filed an Affidavit in which he said, inter alia: "On February 2, 1970, I sent a message to all Coast Guard Districts which stated our policy for the Selected Reserve. It also gave other information concerning a proposed phase-out of the Selected Reserve which was contained in the President's budget message of the same day. As later clarified in my message of February 7 to all Coast Guard Districts, my February 2 message was intended to be informational only. "At the present time, we anticipate that there will be no input into the Selected Reserve because of the mandate of Congress that we reduce its strength by two thousand members by the end of fiscal year 1970. No action has been taken or is intended to be taken on the President's proposal to Congress for further phase-out of the Selected Reserve other than for planning purposes. Only in the event that Congress passes the proposed legislation do we anticipate any change in the present Selected Reserve." A photo copy of this Affidavit, which was filed in the United States District Court for the District of Columbia, Civil Action, File No. 559-70, is attached hereto as Plaintiffs' Exhibit “A”. 6. Pursuant to the provisions of Public Law 90-168, Congress acted. It rejected the proposal of the Secretary to "phase out" the Selected Reserve of the Coast Guard, and instead, the authorized personnel strength of the Selected Reserve of the Coast Guard was set by law at 15,000 for the fiscal year beginning July 1. 1970. Public Law 91-441 (84 STAT 908) passed October 7, 1970 provides, under Title III, Reserve Forces, Section 301: "For the fiscal year beginning July 1, 1970 and ending June 30, 1971, the Selected Reserve of each Reserve component of the Armed Forces will be programmed to attain an average strength of not less than (emphasis added) the following: (7) The Coast Guard Reserve, 15,000." 7. Congress provided the funding necessary to recruit and maintain a 15,000man Selected Coast Guard Reserve force by the joint continuing resolutions cited in paragraph 1 above. Thus, the factual situation existing now is that Congress has refused to accept any proposal to "phase out" the Selected Reserve of the Coast Guard, and instead has mandated its strength at 15,000 men. When the mandated strength was reached on or about July 1, 1970, recruiting should have been immediately resumed pursuant to Admiral Smith's Affidavit and the Acts of Congress. Upon information and belief, Plaintiffs allege that the Coast Guard has requested permission to resume recruiting in order to comply with the law. Plaintiffs allege that recruiting has not been resumed to this date because of the actions of Defendant, Secretary of Transportation, and Defendant, Director of the Office of Management and Budget, in refusing to allow the Coast Guard to recommence Reserve recruiting. As a result of this illegal action by Defendants. the strength of the Selected Reserve, as of December 31, 1970 was 13,920 men. The strength will continue to drop at the rate of about 180 or more per month so long as there is no recruiting. S. Upon information and belief, Plaintiffs aver that the present Commandant of the Coast Guard, Admiral Chester R. Bender, pursuant to the provisions of Public Law 90–168, has recommended to the Secretary of Transportation that the Selected Reserve of the Coast Guard consists of units and reserves to provide a Selected Reserve force of 15,000 men as mandated by Congress. 9. Plaintiffs further allege that the provisions of Title 14, USC, and Public Law 89-670, impose legally enforceable responsibilities and duties concerning national defense capabilities and the military readiness of the United States Coast Guard as one of the five Armed Forces of the United States upon Defendant, Volpe. Mr. Volpe is neglecting his duties in that he has refused to allow the Coast Guard to recruit reservists and take other necessary steps to maintain the Reserve needed by the Coast Guard as one of the Armed Forces of the United States to meet its national defense and military readiness responsibilities. All of this is in violation of the law and in dereliction of the Secretary's duties as prescribed by law. 10. Plaintiffs further allege that Defendant, George T. Shultz, in his capacity as Director of the Office of Management and Budget, and in cooperation with Defendant, John A. Volpe, in his capacity as Secretary of Transportation, has refused to apportion and release the funds provided by Congress for the Coast Guard Selected Reserve to the Coast Guard and Defendants have ordered and instructed the Commandant of the Coast Guard not to resume recruiting for the Coast Guard Reserve and this refusal to apportion and release funds necessary for the Coast Guard to recruit for the Reserve and order not to resume recruiting have occurred, even though, on the Plaintiff's information and belief, the Commandant has requested that the funds be apportioned and that he be allowed to recruit in order to comply with the provisions of Public Law 91-441. Defendants have pursued this course of action while, at the same time and under the same continuing resolutions, they have apportioned or authorized the expenditure of an excess of One Hundred Million ($100,000,000.00) Dollars on the controversial Supersonic Transport (SST) Program, and spent the full amounts authorized by Congress on other Department of Transportation programs. 11. The course of action now being followed by Defendant, Secretary of Transportation, and by Defendant, Director of the Office of Management and Budget, is contrary to the provisions of the "Reserve Forces Bill of Rights and Vitalization Act", contrary to the provisions of Public Law 91-441, and contrary to Article 1, Section 8 of the Constitution of the United States wherein Congress is given exclusive powers to raise and support armies, to provide and maintain a Navy and to provide for organizing, arming and disciplining the militia and for the governing such part of them as may be employed in the services of the United States. The course of action now being pursued by the Secretary and the Director is in dereliction of their duties as Secretary of Transportation and Director of the Office of Management and Budget. It is an attempt to usurp the powers of Congress and to do by administrative fiat what Congress has, by law, duly enacted and signed by the President, said shall not be done. All this is, therefore, improper, illegal and contrary to the expressed will and Acts of Congress and the provisions of the Constitution of the United States of America. 12. Plaintiffs in this action are officers and enlisted men of the Coast Guard Reserve specifically intended to be protected and benefited by the provisions of Public Law 90–168. In addition, Plaintiffs now serving in the Selected Reserve Units are charged by their oath and by the Acts of Congress with the duty of providing and participating in training for all members of the Selected Reserve and are entitled to pay and allowances as provided by law upon performing the required duties. If Defendants are allowed to continue on their present course of action, are allowed to continue to ignore their duties and are allowed to continue to prevent the Coast Guard from recruiting reservists, irrevocable harm and damage to the United States as a whole, to Plaintiffs individually and to Plaintiffs as a class in their capacities as reservists, will result; and the duties, rights and benefits specifically intended by Congress, provided by Public Law 90-168, will be denied to Plaintiffs by the actions of the Secretary of Transportation and the Director of the Office of Management and Budget. In addition, the continued moratorium on all recruiting for the Coast Guard Reserve will make it impossible to maintain the Selected Reserve Units as required by the Mandate of Congress. These actions are illegal, and are subject to a declaration of such by this Court and also to this Court's mandamus and injunctive powers. 13. Plaintiffs have no adequate remedy at law or other method of protecting their interest and rights as established by the Acts of Congress because there are no actions at law or other judicial remedies available to them except through this Complaint for Injunction, Mandamus and Declaratory Judgment. Likewise, there are no administrative or other procedures Plaintiffs can follow to protect their rights and interest except by this Complaint for Injunction, Mandamus and Declaratory Judgment. WHEREFORE, Plaintiff's pray: (1) That this Court declare the Secretary of Transportation and the Director of the Office of Management and Budget are without power or authority to take any action to "phase out" or destroy the Selected Reserve of the United States Coast Guard so long as the provisions of Public Laws 90-168, 91-441 and the Congressional appropriation providing the necessary funding to carry out these laws, are in full force and effect. (2) That this Court order the Secretary and the Director to do their duties as required by law and to apportion and release the funds for the Coast Guard to resume recruiting and carry the full Reserve program as established and funded by law. (3) That an injunction be granted permanently restraining and enjoining Defendants and each of them and any of their subordinates, officers, assistants and employees throughout the United States and anyone associated with or acting in concert with them and their successors in office and each of them and anyone associated with or acting in concert or participating with such successors from causing, or permitting to occur, any acts or actions to prevent the Commandant of the Coast Guard and the Coast Guard to recruit Selected Reservists as necessary to provide for a Selected Reserve of 15,000 men as required by law, or in the alternative that the Court enjoin the selective apportionment and expenditure of funds under the four continuing resolutions and enjoin Defendants. Secretary and Director, from authorizing any Department of Transportation expenditures, inelnding amounts for the SST, unless and fintil funds to commence recruiting for the Coast Guard Selected Reserve are apportioned and released; and that all acts or actions by Defendants to "phase out" or destroy the Selected Reserve be stopped so long as Public Law 90-168 and Public Law 91-441 are in full force and effect. (4) And for such other and further relief as the nature of their cause may require. JAMES B. CARSON, Attorney for Plaintiffs. MARCH 31, 1971. JAMES B. CARSON, Esq., Baltimore, Md. DEAR MR. CARSON: Thank you for your letter of February 12, 1971, and the copy of the complaint you filed in the case of Burns, et al. v. Secretary of Transportation and Director of the Office of Management and Budget. I regret that the press of Senate business has caused my delay in answering. The Subcommittee on Separation of Powers conducted hearings on March 23, 24, and 25, on the question of Executive impoundment of appropriated funds. While we tried not to discuss pending litigation during the course of the hearings, the arguments expressed in your complaint certainly bear directly on the problem we examined at length. I would like to publish the complaint in the record of the hearings, if I have your permission to do so. I will send you a copy of the record as soon as it is published. I appreciate your interest in this very important issue, and hope that you will keep me advised as to the progress of your case. With all kind wishes, I am Sincerely yours, SAM J. ERVIN, Jr. Chairman, Subcommittee on Separation of Powers. Re Burns, et al. v. Volpe, et al. Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Separation of Powers, U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: Thank you for your letter dated March 31, 1971, and for your continuing interest in this matter. I would be most pleased and honored to have the Complaint published in the record of the hearings of the Subcommittee. I will keep your office advised as matters develop regarding this important constitutional question. Very truly yours, JAMES B. CARSON. UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA, JACKSONVILLE DIVISION (No. 71-92-CIV-J-Filed on Feb. 12, 1971) THE CANAL AUTHORITY OF THE STATE OF FLORIDA, A BODY CORPORATE UNDER THE LAWS OF THE STATE OF FLORIDA, PLAINTIFF v. STANLEY R. RESOR, INDIVIDUALLY AND AS SECRETARY OF ARMY, ET AL., DE FENDANTS COMPLAINT JURISDICTION & DESCRIPTION OF PARTIES 1. This is a civil suit seeking equitable relief which arises under: A. The U.S. Constitution (a) Article I, Section 1 (delegation of legislative power to Congress) (b) Article I, Section 8, Clause 1 (Congressional power to provide for common defense and general welfare) |