Nader v. Bork

United States District Court for the District of Columbia · 1973 · Administrative Law

Administrative Lawstandingmootnessagency regulationsremoval of officialsstandingmootnessdeclaratory judgment

Facts

The Department of Justice promulgated a regulation creating the Office of Watergate Special Prosecutor and providing that the Special Prosecutor would remain in office until completion of his responsibilities or a mutually agreed date, and that he would not be removed except for extraordinary improprieties. Archibald Cox was appointed pursuant to that regulation. Acting Attorney General Robert Bork discharged Cox on the President's instruction even though it was admitted Cox had committed no extraordinary impropriety. Three days later Bork rescinded the regulation retroactively, temporarily abolishing the office, and less than three weeks later the office was reinstated under a virtually identical regulation.

Issue

Whether the congressional plaintiffs had standing and whether the controversy was moot, and on the merits whether Cox's discharge was lawful under the existing Justice Department regulation or was later made lawful by the subsequent rescission of the regulation and temporary abolition of the office.

Rule

Congressional plaintiffs have standing where a judicial declaration on the legality of executive conduct bears on their legislative and impeachment-related duties, and a case is not moot where the challenged conduct may recur and continues to affect pending legislation. On the merits, a regulation promulgated within statutory authority has the force of law and binds the issuing agency; thus an officer may not be removed in violation of the agency's own regulation, and a later revocation of the regulation is ineffective if the regulation itself bars abolition without consent or if the revocation is arbitrary and unreasonable.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Department of Housing Oversight in Washington, D.C. validly promulgated a regulation creating a Special Compliance Director and providing that the director could be removed only for "gross dereliction of duty." Six months later, the Acting Secretary fired Lena Ortiz because she publicly disagreed with the agency's litigation strategy, and the agency concedes she committed no gross dereliction.

Is the discharge most likely lawful?

Explanation. The majority held that when an agency, acting within statutory authority, promulgates a regulation governing appointment and removal, that regulation has the force and effect of law and is binding on the agency that issued it. Thus, removal contrary to the regulation's stated grounds is illegal, even though the agency might otherwise have had broader removal power absent the regulation. (Derived from Nader v. Bork (n.d.).)