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clude that the disposition of other issues raised by the motions of the defendants makes it unnecessary to dispose of the issues raised with respect to the standing of the plaintiff, Committee for the Survival of a Free Congress and the intervenors, Common Cause, David Cohen and Nan Waterman.
The appeal and the cross-appeal were consolidated by order of Circuit Judge Wright, sua sponte, on June 5, 1978.
On December 8, 1978, appellants moved to add Senator Mike Gravel as a party appellant.
On March 8, 1979, the Senate passed Senate Resolution 93 which postponed the effective date of Rule XLIV from January 1, 1979, to January 1, 1983.
On March 20, 1979, Senator Laxalt and other appellants, at the oral direction of the court, filed a memorandum with respect to Senate Resolution 93, in which they moved for dismissal of the case without prejudice on the ground that the validity of rule XLIV was not ripe for adjudication.
Also filed on March 20, 1979, was a brief by Senator Stevenson and Mr. Kimmitt contesting the appellants' efforts to have the action dismissed as moot.
On March 27, 1979 the court issued a per curiam order deferring further action on these appeals pending stabilization of the situation and further order of the court to be issued not later than December 1, 1982.
Status.-The case is still pending before the U.S. Court of Appeals for the District of Columbia Circuit.
The March 13, 1978 order of the District Court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, Part 4, May 15, 1978. Chadha v. Immigration and Naturalization Service
No. 77-1702 (9th Cir.)
This is a petition for review of an order of the Immigration and Naturalization Service (hereinafter “INS”). The INS had promulgated an order which exempted the petitioner, Jagdish Rai Chadha, from deportation as an alien. That order was subsequently vetoed by the passage of a resolution by the U.S. House of Representatives. A new order which required Chadha's deportation was then issued. The petition challenges the constitutionality of the “oneHouse veto" by which the original order was overturned.
As set out in petitioners' brief, the facts are these: Petitioner was born and raised in Kenya, although his race was East Indian. In 1966, he was issued a passport to the United Kingdom. He was lawfully admitted to the United States as a student in 1966 and continuously resided in the United States since that time, except for one short trip to Canada.
After obtaining B.S. and M.A. degrees from an Ohio university, he discovered that neither the United Kingdom nor Kenya would allow him to return because of his race. He moved to California in 1971 to seek work but was unable to obtain work because he did not have lawful status in the United States. However, the petition asserts, he was able to meet expenses from personal savings and from financial help from his family overseas.
Since his visa had expired in 1972, he was summoned to show cause why he should not be deported pursuant to § 241(a)(2) of the Immigration and Nationality Act (hereinafter “INA”), 8 U.S.C. § 1251(a)(2). A hearing was held before an immigration judge on January 11, 1974, at which Mr. Chadha requested a suspension of deportation pursuant to $ 244(a)(2) of the INA, 8 U.S.C. § 1254(a)(2). Evidence presented as to his good character was uncontested.
On June 25, 1974, the immigration judge issued his decision, ordering that the deportation be suspended pursuant to $ 244(a)(1) of the INA.
Section 244(a)(1) of the INA provides that suspensions may be granted when an alien (1) has been physically present in the United States for at least 7 years immediately preceding his application, (2) is of good moral character, and (3) would suffer extreme hardship if deported. (Although this authority is granted to the Attorney General, it has been delegated to the “immigration judges,” with an appeal to the Board of Immigration Appeals.)
Once the decision to suspend deportation is made, notice of the action is transmitted to Congress with a detailed explanation and justification for the decision. The suspension does not become effective until the close of the session of Congress following the one in which the decision is transmitted, and then it only becomes effective if during both sessions neither House has passed a simple resolution disapproving the decision, pursuant to 8 U.S.C. § 1254(c)(2).
Mr. Chadha and five aliens whose deportation had been suspended by immigration judges lost their suspensions when on December 12, 1975, the House of Representatives passed H. Res. 926, 94th Cong., 1st Sess. (1975).
On August 4, 1976, the immigration judge ordered Mr. Chadha deported in view of the House resolution, and on appeal to the Board of Immigration Appeals, the Board affirmed the order of deportation on February 11, 1977.
Mr. Chadha filed a petition for review of the deportation order with the U.S. Court of Appeals for the Ninth Circuit on July 18, 1977. The filing of the petition automatically stayed his deportation.
The petition challenges the constitutionality of the one-House veto. It argues that neither the constitutional provisions granting Congress the power to regulate immigration nor the "Necessary and Proper" clause empowers Congress to contravene other constitutional provisions, and it asserts that the one-House veto does this in three ways. First, it says, the one-House veto violates the separation of powers doctrine. Petitioner claims the constitutional history of this doctrine demonstrates that one branch cannot perform the functions or control the performance of another, and that since the one-House veto allows a single House of Congress to perform nonlegislative functions and control the actions of an executive agency, it is unconstitutional.
Next, Mr. Chadha argues, the one-House veto deprives the President of the opportunity to exercise his veto power under Article I, Section 7. The Framers of the Constitution intended that a single executive would be given the opportunity to veto every Congressional action having the effect of law, but, since the one-House veto is not subject to Presidential veto, it is unconstitutional.
Finally, Mr. Chadha asserts that the one-House veto provision violates the requirement of a bicameral legislature. According to Mr. Chadha, the Framers of the Constitution intended that every power of the legislative branch not expressly granted to a single House must be exercised by both concurrently. Therefore, since the one-House veto provision allows a single House to make law without the concurrence of the other, it is unconstitutional.
On October 27, 1977, respondent INS filed a suggestion to invite the submission of amici curiae briefs by the U.S. Senate and House of Representatives.
Clerk's letters were sent on November 17, 1977, inviting the President of the Senate and the Speaker of the House to file briefs amicus curiae within 30 days.
On February 27, 1978, an amicus curiae brief on behalf of the Senate, pursuant to Senate Resolution 338 of the 95th Congress, and a separate amicus curiae brief on behalf of Representative Frank Thompson, Jr., Chairman of the Committee on House Administration of the U.S. House of Representatives, were filed. Each of the briefs opposed Mr. Chadha's petition and contended, inter alia, that the one-House veto is constitutional and that Chadha lacked standing to challenge the constitutionality of the one-House veto.
The petition was argued on April 10, 1978.
Status. — The petition is pending before the U.S. Court of Appeals for the Ninth Circuit. No further action has been taken. Schwartz v. United States Department of Justice
No. 78-1334 (D.C. Cir.)
This suit was filed on November 4, 1976, under the Freedom of Information Act, 5 U.S.C. $ 3552 (hereinafter “FOIA”), by Robert Bennett Schwartz, to compel the release of materials relating to the investigation of the conduct of Peter R. Schlam, an Assistant United States Attorney for the Eastern District of New York, during the unsuccessful extortion and conspiracy prosecution of then-Representative Angelo Roncallo. Named as defendants in the complaint were the United States Department of Justice; Edward H. Levi, at that time Attorney General of the United States; and Peter A. Rodino, Jr., Chairman of the Judiciary Committee of the U.S. House of Representatives. Mr. Levi and Congressman Rodino were sued in their official capacities.
Mr. Schwartz alleged in the complaint that pursuant to the FOIA he was entitled to inspect and copy the documents in the possession of the Justice Department and the Judiciary Committee, and that he had exhausted all available administrative remedies in an attempt to secure such access. The complaint sought declaratory and injunctive relief providing for an order directing the defendants to produce the requested documents immediately, and expediting the complaint as provided in the FOIA.
Along with the complaint, Mr. Schwartz filed an application for leave to proceed in forma pauperis. On November 3, 1976, District Judge George L. Hart, Jr., granted the application and also dismissed the action under 28 U.S.C. § 1915(d), which provides for the
dismissal of an action in forma pauperis if the allegation of poverty is untrue, or if the court is satisfied that the action is frivolous or malicious.
On November 17, 1976, Mr. Schwartz filed a notice of appeal from the order dismissing the action. Leave to appeal without prepayment of costs was denied as frivolous and not taken in good faith by District Judge Hart on November 17, 1976.
The United States Court of Appeals for the District of Columbia Circuit granted the motion of Mr. Schwartz to proceed on appeal in forma pauperis on January 19, 1977.
On March 4, 1977, a per curiam order was issued, sua sponte, vacating the order of the District Court and remanding the case to the District Court with instructions to serve the defendants with summonses in accordance with Rule 4(a) of the Federal Rules of Civil Procedure.
On July 11, 1977, Defendants, Department of Justice and Griffin B. Bell, Attorney General, who was automatically substituted in place of Mr. Levi, filed an answer to the complaint. The answer claimed, inter alia, that: the complaint failed to state a claim upon which relief could be granted; the court lacked subject matter jurisdiction; and Griffin B. Bell was not a proper party to the action.
On July 11, 1977, Representative Rodino filed a motion to dismiss and a supporting memorandum of points and authorities, in which he asserted that as Chairman of the House Judiciary Committee, he was not a proper party to the action, that the court lacked subject matter jurisdiction and that the complaint failed to state a claim upon which relief could be granted.
Chairman Rodino argued in particular that neither he nor the House Judiciary Committee were within the perview of the FOIA. He noted that the act applied to “agencies” of the executive branch of the Federal Government and that the FOIA specifically excluded the Congress from its disclosure requirements.
Mr. Schwartz filed an affidavit in opposition to Congressman Rodino's motion to dismiss. In the affidavit, he requested that Representative Rodino be directed to appear and answer the complaint. The affidavit further stated that Congressman Rodino was sued under an asserted general common law right of plaintiff to inspect public records.
On August 30, 1977, District Judge Pratt issued a memorandum opinion denying the motion to dismiss. The memorandum opinion held that the historic common law right to inspect and copy public records has been recognized in the District of Columbia Circuit, that the general rule is that all three branches of Government are subject to the common law, and that Congressman Rodino had set forth no persuasive reason why Congress should be exempt from the common law rule. Judge Pratt stated that, absent a showing that the matters sought by plaintiff are not "public records" within the meaning of the common law rule or that Mr. Schwartz does not possess any "interest” required for application of the rule, the motion to dismiss could not be granted. He also noted that Congress could exempt itself from the common law rule if it so desired, but had not done so.
On September 30, 1977, Representative Rodino filed a motion to dismiss or, in the alternative, for summary judgment. The grounds put forth for the motion were that the court lacked subject matter jurisdiction and that there was no dispute as to any issue of mate rial fact. In an affidavit attached to the motion, Congressman Rodino stated that no investigation or inquiry of any kind relating to the matters alluded to in the complaint had ever been undertaken by the committee or any staff person employed by the committee. An affidavit of Edmund L. Henshaw, Clerk of the United States House of Representatives was also attached to the motion. Mr. Henshaw stated that a search failed to turn up any documents or papers relating to any investigaton of Peter Schlam by the committee.
A supplement to the motion to dismiss or, in the alternative, for summary judgment and a second affidavit of Congressman Rodino were filed on December 7, 1977. Attached to the affidavit were a number of documents related to statements made by former Representative Roncallo on the floor of the House of Representatives and in a letter to Representative Rodino. The supplement to the motion reiterated that there were no House records within the scope of Mr. Schwartz' request.
A Memorandum Order was issued by District Judge Pratt on December 12, 1977, granting the motion of Congressman Rodino for summary judgment, denying the motion of the Department of Justice for a protective order and directing the Department of Justice to answer plaintiff's first set of interrogatories on or before January 6, 1978. The memorandum order noted that Congressman Rodino had indicated by sworn affidavit that he had directed a thorough records search and filed and delivered copies of all material compiled by his committee. Judge Pratt stated that a reviewing court must grant summary judgment in defendant's behalf when the defendant, in candor and good faith, has indicated that all available records have been turned over to the plaintiff. In denying the motion of the Department of Justice for a protective order, the memorandum order noted that plaintiff, proceeding pro se, had filed the action in November of 1976 and had been delayed over 1 year in his efforts to secure the information at issue. The court also noted that the interrogatories did not strike the court as unduly burdensome and they might assist plaintiff in his attempt to locate additional relevant documents.
On January 6, 1978, the Department of Justice filed a response to Mr. Schwartz' interrogatories. The Department released some of the documents requested by Mr. Schwartz and refused to release other documents, asserting that they were exempt from disclosure under the Freedom of Information Act. Also filed by the Justice Department on January 6, 1978, was a motion for summary judgment on the grounds that there existed no genuine issue as to any material fact. In a "statement of material facts pursuant to local rule 19(h) as to which there is no genuine issue” and a memorandum of points and authorities in support of its motion, the Department of Justice argued that the withholding of those documents denied to Mr. Schwartz was proper under FOIA exemptions 5, 6, 7(c) and 7(d) 5 U.S.C. $ 552(b).