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June 13, 1973

Elizabeth HOLTZMAN, Individually and in her capacity as a Member of the United States House of Representatives, Plaintiff,
Elliot L. RICHARDSON, Individually and as Secretary of Defense and Robert C. Seamans, Jr., Individually and as Secretary of the Air Force, Defendants

Judd, District Judge.

The opinion of the court was delivered by: JUDD


JUDD, District Judge.

 Plaintiff, a member of the United States House of Representatives from a Brooklyn district, seeks a determination that the President of the United States and the military personnel under his direction and control may not engage in intensive combat operations in Cambodia and elsewhere in Indochina in the absence of congressional authorization.


 1. Plaintiff has moved for summary judgment declaring that the defendants may not order American military forces to combat in Cambodia and granting appropriate injunctive relief.

 2. Plaintiff has also moved to serve an amended and supplemental complaint adding as plaintiffs three Air Force officers stationed in Guam, none of whom are residents of the Eastern District of New York.

 3. Congressman Parren J. Mitchell of the Seventh Congressional District of Maryland, together with seven other Congressmen from districts not within the Eastern District of New York, have moved for leave to file a brief as amici curiae.

 4. Defendants have moved to dismiss the complaint for failure to state a valid claim for relief because (a) plaintiff lacks standing; (b) the court lacks jurisdiction over the subject matter; and (c) the complaint involves non-justiciable political questions on which relief cannot be granted. Defendants also assert that the motion for summary judgment is premature.

 No motion has yet been made to implement the statement that the complaint is brought on behalf of all similarly situated Congressmen. It is not yet necessary to determine whether the case may properly be treated as a class action.


 The complaint was filed on April 17, 1973. Plaintiff asserted among other things that her right to an undiluted vote upon the declaration of hostilities was impaired by presidential action in engaging in extensive combat in Cambodia without congressional authorization. She pointed out that a cease-fire had been negotiated in Vietnam, all American servicemen had been withdrawn, and all American prisoners of war had been released; and she asserted that no congressional authorization exists for committing American forces to combat in Cambodia.

 An order to show cause why the court should not declare continued military activities in Cambodia to be unlawful was signed on April 19 by Judge Dooling, to whom the case had been assigned as a related case. Before the return date of the motion, Judge Dooling determined that the case was not in fact related to prior matters before him, and directed that it be reassigned under this court's random assignment plan. On the return date of the order to show cause on April 26, 1973, the matter was adjourned at defendants' request until May 18, with answering papers to be served by May 16.

 The motion for summary judgment and injunctive relief was served and filed on May 8, 1973, accompanied by a statement of allegedly undisputed facts pursuant to Rule 9(g) of this court's General Rules. In particular, plaintiff asserted that the United States is currently engaged in large-scale combat air operations in Cambodia involving hundreds of war planes based in Thailand and Guam, and that United States war planes dropped 39,500 tons of explosives on Cambodia during March 1973 and flew 180 combat missions daily during the first three weeks of April. Plaintiff further asserts as undisputed material facts that the last American serviceman was withdrawn from Vietnam on March 28, 1973 and the last American prisoner of war was repatriated on April 1, 1973, and that although no Congressional authorization exists for the commitment of American forces to combat in Cambodia, the Executive has informed Congress that it is prepared to continue its miliatry activities whether or not the Congress appropriates funds for the Cambodian combat operations.

 Defendants' response asserts that there are still over 1,300 missing in action in the Vietnam hostilities who have not yet been accounted for. Defendants also assert by affidavit of the Chief of the Civil Division of the United States Attorney's office that "there may well be dispute as to assertions made in plaintiff's Rule 9(g) statement." They request time to submit papers addressed to the merits.

 The plaintiffs who are proposed to be added assert that they are being compelled to comply with unlawful orders, and to risk their lives in unauthorized bombing missions over Cambodia.

 The brief of the Protestant, Catholic and Jewish religious groups, which appear as amici, assert that the existence of Congressional authorization to make war is justiciable, and point out that participation in Cambodian hostilities may conflict with the Agreement on Ending the War and Restoring Peace in Vietnam.


 It is necessary to deal first with the question of the timing of the motions, then with the issue of plaintiff's standing and other jurisdictional questions, and finally with the particular motions of the several parties.


 The government relies on the provision of F.R. Civ. P. 12(a) that the United States or an officer or agency thereof has sixty days "after the service upon the United States attorney of the pleading" within which to answer a complaint.

 Rule 56, however, provides that a party may move for summary judgment "at any time after the expiration of 20 days from the commencement of the action." Plaintiff's motion for summary judgment was served 21 days after the complaint was filed.

 The difference between the two rules is significant. The time is computed in different ways. Since an action is commenced under F.R. Civ. P. 3 by the filing of a complaint, regardless of the time when it is served, the measure of time in Rule 56 is unrelated to the time in Rule 12. Moreover, Rule 56 does not provide for a longer time before a motion can be made against a government agency than one against a private party.

 Judge Charles E. Clark, a distinguished authority on procedure, criticized the original federal rule for not permitting the filing of a motion for summary judgment as soon as an action is brought. See his dissent in United States v. Adler's Creamery, Inc., 107 F.2d 987, 992 (2d Cir. 1939). The 1946 amendment, which permitted a motion for summary judgment in advance of answer, should be interpreted in a manner to expedite the disposition of litigation. There is no need to impart into it the 60-day period for government answer that was specified in old Rule 12. A plaintiff moving for summary judgment before answer may be required to face a somewhat higher standard, however. As Professor Moore has suggested, a motion before answer should not be granted "unless it is clear that an issue of material fact cannot be presented." 6 Moore's Federal Practice (2d ed. 1948, 1972) Para. 56.07, p. 2092.

 There has never been any requirement of any delay in the consideration of a preliminary injunction in an action against a United States officer or agency, except as the court in its discretion may find to be appropriate.

 The court therefore rejects the argument that the motion for summary ...

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