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PLAINTIFFS' REPLY
TO THE REPLY MEMORANDUM
OF DEFENDANT DISTRICT OF COLUMBIA FINANCIAL
RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY
TO THE PLAINTIFFS' OPPOSITION
TO THE AUTHORITY'S MOTION
TO DISMISS THE COMPLAINT AS TO IT
On July 21, 1998, Defendant District of Columbia Financial
Responsibility and Management Assistance Authority ("Control Board") filed a
Motion to Dismiss the Complaint as to It ("Motion") with a Memorandum of Points
and Authorities in Support of [the Motion] ("Memorandum"). On August 4, 1998,
the Plaintiffs filed their Opposition to the [Motion] ("Opposition"). On August
13, 1998, the Control Board filed a Reply Memorandum . . . in Support of [the Motion]
("Reply"). This memorandum is the Plaintiffs' Reply to various points and
arguments made in the Control Board's Reply memorandum.
On the Sequence for Addressing the Questions
In footnote 1 on page 1 of the Control Board's Reply, the Defendant
states that the Plaintiffs "are simply incorrect" in their belief that, if any
of the merits of this case are under the jurisdiction of a three-judge district court, all
are under the jurisdiction of a three-judge district court. The law, not surprisingly
however, is not so clear and unambiguous. There is authority for the position taken by the
Control Board and for the position taken by the Plaintiffs under the facts and arguments
as presented in the case, so the decision must rest on more than proof-texting.
The Plaintiffs' Application for a three-judge district court arose from
the fact that this case involves apportionment of representation in congress. Section
2284(a) of Title 28 of the United States Code commits this issue to the jurisdiction of a
three-judge district court (without regard for the Plaintiffs' preferences one way or the
other). There is good authority for the proposition that, once a case is before a
three-judge court for any reason, it's before a three-judge court for all claims or
issues, as argued on pertinent authority in previous memoranda. Thus, the Plaintiffs'
arguments are premised on the recognition of continuity of substantive jurisdiction.
The Control Board's position seems to be premised on the observation
that not all questions which the court might address are claims or issues in (the merits
of) the case at bar. Among these are "threshold" issues such as jurisdiction and
standing. Certainly, "a court has jurisdiction to determine whether it has
jurisdiction," Eastern States Petroleum Corp. v. Rogers, 265 F.2d 593, 597 (D.C. Cir.
1959) (per Prettyman, Chief Judge), and the Plaintiffs do not deny this principle.
The general principle, however, is not necessarily always easy to
apply. The distinction between "threshold" issues and the merits of the case is
frequently not very clear and, in some situations or contexts, can barely be drawn at all.
The Control Board's Motion to dismiss is such a situation or context. The Defendant
invites the court to just ski down a very steep, very slippery slope from evaluation of
"threshold" questions to decisions which necessarily take one position or
another on the merits of the Plaintiffs' claims.
In order to evaluate the Defendant's arguments as the Defendant
presents them, the court must be prepared to "adjudicate the merits of [the
Plaintiffs'] constitutional claim[s] at the jurisdictional threshold," which the
court cannot do. Kurtz v. Baker, 829 F.2d 1133, 1142 (D.C. Cir. 1987). Thus, the
Defendant's arguments cannot be taken not as arguments at the "threshold," but
must be reserved for consideration on the merits, which means by the court which has
ultimate jurisdiction of the merits in the first instance. Compare Kurtz, supra, 829 F.2d
at 1145-48 (Ginsburg dissenting, arguing that, "under current jurisprudence,"
Mr. Kurtz had "no tenable" claims to advance).
The Control Board cites Reuss v. Balles, 584 F.2d 461, 464 n.8 (D.C.
Cir.), cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978), in support of its
position, but tracing Reuss back to its sources supports the Plaintiffs' position as much
as it might support the Control Board's. Reuss cites four cases in support of the
proposition that "a single judge may first determine whether the court has
jurisdiction to hear the case before requesting a three-judge court," including
Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 100, 95 S.Ct. 289, 42 L.Ed.2d
249 (1974), ex parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 78 L.Ed. 152 (1933), Reuss
v. Balles, 73 F.R.D. 90, 92 (D.D.C. 1976), and Bryan v. Federal Open Market Comm., 235
F.Supp. 877, 880 (D.Mont. 1964), with no elaboration or explanation. Of these, Reuss at 73
F.R.D. 90 only states the same proposition and cites Gonzalez, while Bryan only states the
same proposition and cites cases which say nothing more than does Reuss at 584 F.2d.
Gonzalez, which appears to be the foundation of the holding in Reuss,
concerned 28 U.S.C. 2281, which was repealed in 1976, Pub. L. 94-381, 90 Stat. 1119
(1976), and is not at issue in this case. Gonzalez states that, while single judges were
"literally forbidden to 'dismiss the action, or enter a summary judgement or final
judgment' in any case required to be heard by three judges," a single district judge
could and should still review all cases "for want of general subject-matter
jurisdiction[.]" 419 U.S. at 96 n.14, 293-94 n. 14 (citation to much earlier,
repealed statutory provision concerning three-judge district courts omitted). Thus, the
Court observed that "[a] three-judge court is not required where the district court
itself lacks jurisdiction of the complaint or the complaint is not justiciable in the
federal courts [which includes 'standing' questions]." 419 U.S. at 100, 95 S.Ct. at
295-96, citing Poresky, supra, 290 U.S. at 31, 54 S.Ct. at 4, which is one of the same
cases cited by Reuss, cited by the Control Board.
The Control Board, along with the other Defendants, has previously made
much of the repeal of the earlier three-judge court provisions, arguing that the same Act
limited the application of Section 2284(a), despite the plain language of the statute. See
Response of Defendant District of Columbia Financial Responsibility and Management
Assistance Authority to Order to Show Cause Why Plaintiffs' Application for a Three-judge
Court Should Not be Granted (July 21) at 3-4. The Control Board (and other Defendants)
cited certain Senate and House committee reports on the 1976 (and an earlier, identical,
un-passed) Act in support of their argument on the scope of Section 2284(a). Those reports
make it clear that one of the major problems with Section 2281 and other repealed
provisions was the complex and contradictory pattern of case law which had arisen to
articulate procedural bars to creation of three-judge courts. See S.Rep. 94-204, 94th
Cong., 2d Sess. 3-8 (1976), reprinted in 1976 U.S. Code Cong. & Admin. News, 1988,
1990-95; H.Rep. 94-1379, 94th Cong., 2d Sess. (1976); S. Rep. 93-206, 93d Cong., 1st Sess.
(1973).
Gonzalez discussed and applied one of those procedural bars, crafted to
save the federal courts from the excessive burdens of three-judge courts called for in
Section 2281. But since Section 2281 was repealed in 1976, while Section 2284(a) was
specifically saved (i.e., it was not just overlooked, but was saved after being discussed
in the reports), it would appear that Congress dispensed with the reasons for more
strident attempts to avoid submitting cases to three-judge district courts under the guise
of extrapolated "threshold" questions. Thus, there is a question how far into
the merits of a case the court might delve under the authority of Gonzalez, when the whole
framework of three-judge courts has been so extensively altered.
Poresky (the authority cited by the Supreme Court in Gonzalez and also
cited by the D.C. Circuit in Reuss) concerned a statutory predecessor of 28 U.S.C.
2281 (much discussed in the instant case), providing for a three-judge district court to
hear demands for injunctions against enforcement of State laws. In Poresky, the Supreme
Court said that,
[I]f the [district] court was warranted in
taking jurisdiction and the case fell within [the statute providing for three-judge
district courts], a single judge was not authorized to dismiss the complaint on the
merits, whatever his opinion of the merits might be. But the provision requiring the
presence of a court of three judges necessarily assumes that the District Court has
jurisdiction. In the absence of diversity of citizenship, it is essential to jurisdiction
that a substantial federal question should be presented. . . . [The law] does not require
three judges to pass upon this initial question of jurisdiction.
The existence of a substantial question of
constitutionality must be determined by the allegations of the bill of complaint. The
question may be plainly unsubstantial, either because it is "obviously without
merit" or because "its unsoundness so clearly results from the previous
decisions of this court as to foreclose the subject and leave no room for the inference
that the question sought to be raised can be the subject of controversy."
While it is appropriate that a single District
Judge to whom application is made for [a three-judge district court] should carefully
scrutinize the bill of complaint to ascertain whether a substantial question is presented,
to the end that the complaint should not be denied opportunity to be heard in the
prescribed manner upon a question that is fairly open to debate, the District Judge
clearly has authority to dismiss for the want of jurisdiction when the question lacks the
necessary substance and no other ground of jurisdiction appears.
290 U.S. at 31-32, 54 S.Ct. at 4-5. Thus, Poresky indicates that the threshold
jurisdictional analysis of a case liable for submission to a three-judge district court is
limited to the obvious attributes of the case, such as diversity of citizenship (pertinent
to present-day 28 U.S.C. 1332(a)) and joinder of parties (the grounds on which the
District Court in Poresky had refused to convene a three-judge court and had dismissed the
suit). 290 U.S. at 31, 54 S.Ct. at 4.
If the threshold question is whether a "substantial" federal
(constitutional) question is presented, then the inquiry is limited to the prima facie
allegations in the Complaint. Construed in the totality of the Court's discussion, a
question is "substantial" if previous decisions of the Supreme Court do not
foreclose the subject, leaving "no room" for the inference that the question can
be the debated. Poresky, 290 U.S. at 31-32, 54 S.Ct. at 4. This must be
"obvious" in the case law and not in the "opinion" of the judge. This
is an identical examination as that required under the prevailing test whether the case
should be submitted to a three-judge district court. Police Officers' Guild, Nat'l. Union
of Police Officers v. Washington, 369 F.Supp. 543, 548-49 (D.D.C. 1973) (among the
elements is, "whether the constitutional question presented is substantial");
see also Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858-59, 35 L.Ed.2d 36 (1973);
Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Memorandum in
Support of Plaintiffs' Application for Three-judge District Court at 15-17.
The Plaintiffs' filings over the course of the case so far make it
completely clear that, at the very least, there is plenty of room for reasonable debate on
these questions. Further, no Defendant has presented a single case which
"forecloses" the Plaintiffs' claims. Thus, the Plaintiffs' case passes the
minimal, threshold tests for jurisdiction. Thus, the Control Board's Motion, which goes
well beyond these threshold questions, should be denied, if taken as limited to the
threshold questions, or treated as a Motion to Dismiss on the merits, in which case it
must be reserved and submitted for argument before--and resolution by--the three-judge
district court.Plaintiffs' Reply to Particular Substantive Arguments
The Control Board makes four substantive arguments in its Reply
memorandum, which the Plaintiffs will address in turn.
1: Whether the Plaintiffs
have suffered any cognizable injury
(Control Board's Reply
at 2-3)
On page 2, the Defendant cites Shook v. D.C. Fin. Resp. and Mgmt. Ass.
Auth., 132 F.3d 775 (D.C. Cir. 1998), as an example of a case involving a plaintiff which
had a "concrete, particularized injury," stating that the Control Board
"did not challenge the plaintiffs' standing in Shook." The fact that the Control
Board did not challenge "standing" in Shook, however, is irrelevant to the
question whether the plaintiffs in Shook did or did not have "standing," just as
the Control Board's challenge in this case only puts the question on the table and does
not therefore, as a challenge, determine the question.
Referring to Shook, however, the Control Board suggests that a truly
"concrete and particularized injury" would be "diminution of powers."
Certainly, however, the "powers" of these twenty plaintiffs to participate in
the national government on the same basis as do the citizens of the federal enclaves and
of the former portion of the District of Columbia south-west of the Potomac River have not
only been "diminished;" they have been denied outright and completely.
Certainly, the "powers" of these twenty Plaintiffs to govern their neighborhoods
on the same basis as do the citizens of the federal enclaves and of the former portion of
the District of Columbia south-west of the Potomac River have not only been
"diminished;" they have been denied outright and completely. If the plaintiffs
in Shook had any "concrete, cognizable injuries" because their
"powers" had been "diminished," then these twenty Plaintiffs have
suffered far worse injuries because their "powers" have been stripped, stolen,
trumped, and trashed.
Finally, the Defendant offers no legal authority supporting their
proposition that the Plaintiffs have not suffered any cognizable injury. The rights of
these Plaintiffs' to equal treatment under the laws are denied, and this is an injury. The
rights of these Plaintiffs' rights to republican forms of government are denied, and this
is an injury. "The burden alone is sufficient to establish standing." Orr v.
Orr, 440 U.S. 268, 273, 99 S.Ct. 1102, 1108, 59 L.Ed.2d 306 (1979) (equal protection case,
brought to challenge an incidence of sex-based discrimination). Sufficient authority has
been identified in previous filings by the Plaintiffs to substantiate these points. See,
e.g., Plaintiffs' Opposition to Control Board's Motion to Dismiss at 9-13.
Also on page 2, the Control Board construes the Plaintiffs' case as
"a request for the Court to write a political science essay on the proper governance
of the District of Columbia," citing Brewer v. D.C. Financial Responsibility and
Manag. Asst. Auth., 953 F.Supp. 406 (D.D.C.), aff'd, 132 F.3d 1480 (D.C. Cir. 1997) (mem),
as an example of a case in which a court declined to "write" such an
"essay" (the Plaintiffs can find no reference to "political science
essays" in Brewer, either as requests from the plaintiffs there or as something the
court declined to "write"). There is no reasonable source or foundation for this
assertion under any construction of any provision of the Plaintiffs' Complaint.
To the contrary, these twenty citizens of the District of Columbia
certainly do not want this court to "write a political science essay on the proper
governance of the District of Columbia," because any exposition of the "proper
governance" of the District of Columbia is the prerogative of the citizens of the
District of Columbia and of the citizens of the District of Columbia alone. It would be
improper for this Court to draft such an "essay."
But just as it would be improper for a court to opine on the
"best" governance of the District of Columbia, it is even less proper for the
Control Board to proffer such opinions or draft such an "essay," which is why
the Control Board is a proper defendant in this case. The Control Board has been asked to
draft just such declarations or opinions on the proper governance of the District of
Columbia, see, e.g., David A. Vise, Three Managers Proposed for D.C., Wash. Post, June 5,
1998, at B1 & B5; David A. Vise, D.C. Takeover May Not Go Far Enough, Brimmer Says,
Wash. Post, May 16, 1997, at A1 & A21, which violates the rights asserted in the
Plaintiffs' Complaint.
On page 3, the Control Board argues that the plaintiffs have no equal
protection claim because they "have made no allegation that some residents of the
District of Columbia receive more favorable treatment than [the Plaintiffs] do[.]"
This argument, however, is an example of "bait-and-switch." The Defendant
recites the undoubted rule that "a citizen has a constitutionally protected right to
participate in elections on an equal basis with other citizens in the jurisdiction,"
(quoting Dunn v. Blumstein, 405 U.S. 330, 336[, 92 S.Ct. 995, 31 L.Ed.2d 274] (1972)).
Then, lacking any discernable authority, basis in fact, or basis in the allegations made
by the Plaintiffs in this case, the Defendant transposes the very discriminatory
classification--according to which the Plaintiffs are stripped of their right to
participate on "an equal basis" with other citizens--as the definition of the
"jurisdiction" at issue in the Plaintiffs' equal protection claim.
These twenty Plaintiffs do not complain of invidious discrimination as
compared to their neighbors in the District of Columbia. They complain of invidious
treatment as compared to that of the citizens of the former portion of the District of
Columbia south-west of the Potomac River and as compared to the citizens who live in the
federal enclaves. [FOOTNOTE 1: By implication, their complaint also goes to their
invidious treatment as compared to all the citizens of the United States who reside
outside the District of Columbia (see Plaintiffs' Opposition at 33-36), at least in all of
the 47 States admitted after the original thirteen States joined to form the United States
of America and not in places within the original thirteen states which are or ever were
federal enclaves. The reason for this is that the 47 states were all
"territories" or "property" of the United States before they were
States, hence were under a kind and degree of power identical to the power Congress
exercises over the District. See Simms v. Simms, 175 U.S. 162, 168-69, 20 S.Ct. 58, 60
(1899); Late Corp. Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S.
1, 42-44, 10 S.Ct. 792, 802-03 (1890); Murphy v. Ramsey, 114 U.S. 15, 44-45, 5 S.Ct. 747,
763-64 (1885)] The "jurisdiction" at issue in the Plaintiffs' equal protection
claim (Count One of the Complaint), for all intents and purposes, such as application of
the rule stated in Dunn that "a citizen has a constitutionally protected right to
participate in elections on an equal basis with other citizens in the jurisdiction,"
(405 U.S. at 336) is the United States of America, not just the District of Columbia.
Remarkably, the Defendant quotes from Baker v. Carr, 369 U.S. 186,
207[, 82 S.Ct. 691, 7 L.Ed.2d 663] (1962), as a case in which "[t]he injury which
[the plaintiffs] assert[ed was] that [a certain] classification disfavor[ed] the voters in
the counties in which they reside[d], placing them in a position of constitutionally
unjustifiable inequality vis-a-vis voters in irrationally favored counties."
(emphasis added by Control Board removed). Likewise, the Defendant quotes from Kramer v.
Union School District, 395 U.S. 621, 627[, 89 S.Ct. 1886, 23 L.Ed.2d 583] (1969), as a
case supporting the proposition that, "if a challenged . . . statute grants the right
to vote to some bona fide residents . . . and denies the franchise to others, the Court
must determine whether the exclusions are necessary to promote a compelling [governmental]
interest." (emphasis added by Control Board removed; ellipsis by Plaintiffs).
The Plaintiffs rely on both cases and welcome reiteration of these
quotations, because both demonstrate that these Plaintiffs, as compared to other residents
of the jurisdiction--the United States, which embraces the former portion of the District
of Columbia south-west of the Potomac River and which embraces the federal enclaves, all
of which have been included in apportionments of representation in Congress--are subjected
to invidious discrimination. Thus, the Plaintiffs might paraphrase the passage from Baker
v. Carr which the Control Board quotes, saying,
[t]he injury which [these twenty plaintiffs] assert is that [their]
classification disfavors the voters in the [remaining portion of the District of Columbia]
in which they reside, placing them in a position of constitutionally unjustifiable
inequality vis-a-vis voters in irrationally favored [former portion of the District of
Columbia south-west of the Potomac River and in the federal enclaves, ruled under the same
provision of the Constitution].
Likewise, the Plaintiffs might paraphrase the passage from Kramer v. Union School District
which the Control Board quotes, saying,
[Since the] challenged [Congressional acts] grant[] the right to vote
to some bona fide residents [of the jurisdiction, i.e., to residents of the former portion
of the District of Columbia south-west of the Potomac River and of the federal enclaves]
and denies the franchise to other [residents of the jurisdiction, i.e., to residents of
the District of Columbia], the Court must determine whether the exclusions are necessary
to promote a compelling [governmental] interest.
Both statements are acceptable components of the Plaintiffs' equal protection claim, and
there is no reason (much less any reason provided by the Control Board) to construe these
cases as other than strong support for the Plaintiffs' claims. Thus, the Plaintiffs' have
a strong equal protection claim, under the very authority cited by the Control Board.
[FOOTNOTE 2: Were the Defendant's theory of equal protection viable, there might well be
little or no equal protection jurisprudence at all. Brown v. Board of Education, 347 U.S.
483, 74 S.Ct. 686, 98 L.Ed. 873, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), could
well have perpetuated the racial segregation which it terminated under now-prevailing
doctrine. In Brown, a group of black (African-American) students complained of invidious
discrimination against them as compared to white (Anglo-American) students, manifested in
the form of segregated schools. 347 U.S. at 487, 74 S.Ct. at 688. If the Control Board's
argument here had prevailed in Brown, the Supreme Court would have found no violation of
the plaintiffs' rights to the equal protection of the laws, saying that the black
plaintiffs had no claim because they were treated in the same way all black people were
treated. See id., 347 U.S. at 492, 74 S.Ct. at 690 (discussing, briefly, quality of
segregated schools for black children).]
Finally, on page 3, the Defendant discounts the Plaintiffs' reliance on
United States v. Classic, 313 U.S. 299[, 61 S.Ct. 1031, 85 L.Ed. 1368] (1941). The
Defendant's argument on this point begs the questions presented by the Plaintiffs.
Of course the District of Columbia is not a State or a part of a State.
But neither was the former portion of the District of Columbia south-west of the Potomac
River prior to 1846 nor were the federal enclaves before a few decades ago. See Evans v.
Cornman, 398 U.S. 419, 421, 90 S.Ct. 1752, 1754, 29 L.Ed.2d 370 (1970); Howard v. Comm'rs
of Sinking Fund, 344 U.S. 624, 626-27, 73 S.Ct. 465, 466-67, 97 L.Ed. 617 (1953); Cornman
v. Dawson, 295 F.Supp. 654, 655-56 (D. Md. 1969), aff'd sub nom Evans v. Cornman, 398 U.S.
419, 90 S.Ct. 1752, 29 L.Ed.2d 370 (1970). One question in this case is, why are the
citizens of those places now citizens of states, while the citizens of the District of
Columbia are not? (See also Plaintiffs' Reply to Responses of All Defendants to
Plaintiffs' Application for Three-judge District Court at 16-17). Thus, the Defendant's
statement that the District of Columbia "is not a State" invites the Court to
examine the very core of the merits of the Plaintiffs' claims. [FOOTNOTE 3: If the Control
Board's theory were viable, Brown v. Board of Education, supra, again, would likely have
turned out quite differently. Rather than weigh the plaintiffs' claims there on their
merits, the Court might just as well have said that the black plaintiffs had no claim
because they were not white, rather than addressing the true, legitimate question in that
case, which was whether segregation of black and white children in public schools solely
on the basis of case, even though the physical facilities might be identical, deprived the
black children of equal educational opportunities. 347 U.S. at 493, 74 S.Ct. at 691.]
2: Whether the Authority
caused any injury to the Plaintiffs
(Control Board's Reply
at 4-6)
3: Whether the Plaintiffs'
alleged injuries can be redressed by the Authority
(Control Board's Reply
at 6-7)
Plaintiffs will address these two arguments together, since the
arguments made for each by the Defendant overlap and since the Plaintiffs' replies also
overlap. These two issues, moreover, appear to be the true crux of the Defendant's
challenge to standing. In short, the Control Board asserts that it is not a proper
defendant to this suit.
On page 4, the Defendant attributes to the Plaintiffs an
"apparent[] belie[f] that the Constitution's mandate that the 'United States shall
guarantee to every state in this union a republican form of government' should be
interpreted as a responsibility assigned to every branch, department, agency,
instrumentality and creation of the United States government." (quoting U.S. Const.
Art. IV, 4). Indeed, this is the logical inference to be drawn from the opening
phrase of the clause: "[t]he United States shall guarantee . . . ." Where any
power, duty, obligation, or task is assigned to a specific branch or official, the
Constitution makes that assignment clear. Here, however, the obligation is laid in the
broadest terms.
Plaintiffs therefore do believe that "every branch, department,
agency, instrumentality, and creation of the United States government" is under the
obligation of the Guarantee Clause, which means that each entity must do whatever it can
to meet the obligation. Of course, the various "branches, departments, agencies,
instrumentalities, and creations of the United States government" have vastly
differing powers and abilities, and no entity can be expected to do more than it has power
or ability to do under the Constitution and (if created by statute and not by the
Constitution itself) under its enabling statutes. But each entity can and must do whatever
it can. As to its powers under the statutes which created it, the Control Board can
withdraw, retire, go home, or otherwise leave the citizens of the District of Columbia to
their own devices (to govern themselves, for all the Control Board need care or concern
itself).
The Control Board is also somewhat correct, as a theoretical matter, in
saying on page 4 that, "under the Plaintiffs' reasoning, the federal courts, every
federal administrative agency and every other federally created entity[ might] also be
proper parties to this lawsuit because they have equally failed in their purported
obligation" under the Guarantee Clause (ignoring, for the sake of the argument,
questions of immunity (for judges and courts, for instance), etc.). If the Defendant
believes that there are indispensable entities are not named in the Complaint, Federal
Rule of Civil Procedure 19 and other provisions of the law invite the Defendant to join
those entities as party defendants in this suit. But the Plaintiffs are content to proceed
with the parties named in the Complaint and believe that their remedies against those
parties, specifically the declaratory judgements demanded, will suffice as might concern
any entities not named in the suit.
On page 4, the Defendant reiterates its contention that it is immune
from the Constitution because it is not "a department, agency, establishment, or
instrumentality" of the United States Government. (quoting Pub. L. 104-8,
101(a)). This contention has been answered by the Plaintiffs (see Plaintiffs' Opposition
at 15-17). Further, the Control Board's conclusion that its actions are immune from
judicial review (including, logically, to a constitutional challenge to its existence) was
rejected by the District of Columbia Circuit. Shook , supra, 132 F.3d at 778-79.
On page 5, the Control Board turns its attention to the Plaintiffs'
equal protection claim. Still, it must be noted that the Control Board has not made the
slightest showing that any federal enclave or part of the former portion of the District
of Columbia south-west of the Potomac River is governed by an appointed board created by
Congress to rule citizens who do not elect any representatives to Congress or have other
fundamental political and civil rights.
Instead, the Control Board cites Kurtz v. Baker, [829] [FOOTNOTE 4: The
Defendant appears to have mistakenly cited to 265 F.2d.] F.2d 1133 (D.C. Cir. 1987), for
the proposition that the Court should dismiss this action because the Plaintiffs have
failed "to satisfy the traceability portion of the standing requirement[.]"
Kurtz was "[a] suit concern[ing a person's] attempt to compel the chaplains of the
Senate and the House to allow him to address secular remarks in their respective chambers
during the periods explicitly reserved for prayer[;]" the court concluded that the
plaintiff "ha[d] not alleged, and cannot plausibly allege, that the chaplains ha[d]
the authority to satisfy his requests, [so] the cognizable injury he alleges is not fairly
traceable to them." Id., 829 F.2d at 1145.
The Plaintiffs' case is completely different from Kurtz. In Kurtz, the
plaintiff demanded an order that the House and Senate chaplains take positive action to do
something for the plaintiff. The court determined, however, that the chaplains could not
bring about the action the plaintiff desired because the chaplains "had no discretion
to grant appellant's requests[.]" Id, 829 F.2d at 1142. In the instant case, the
Plaintiffs demand declarations that the existence of the Control Board as the government
of their city violates their rights and they demand an injunction against the continued
tenure of the Control Board. So long as the members of the Control Board are capable of
volunteering to sit on the Board, see Pub. L. 104-8, 101, 109 Stat. 97 (1995), they
are capable of declining to sit on the Board, which is to say, they have the discretion to
not govern the District of Columbia. It is simply untenable to suggest that any official
lacks the discretion to not do something which is unconstitutional. [FOOTNOTE 5: Of
course, whether it is unconstitutional is a question on the merits, and "the court
cannot adjudicate the merits of [plaintiffs'] constitutional claim at the jurisdictional
threshold[.]" Kurtz, supra, 829 F.2d at 1142.]
Next, on pages 5-6, the Defendant turns to a novel argument that it
cannot be part of the "chain of causation" of plaintiffs' injuries, Public
Citizen v. Lockheed Aircraft Corp.. 565 F.2d 708, 717 n.31 (D.C. Cir. 1977), because the
Plaintiffs' equal protection claim "existed, if valid at all, long before the
creation of the [Control Board] in 1995." This argument makes no sense.
"[H]istorical patterns cannot justify contemporary violations of constitutional
guarantees[.]" Marsh v. Chambers, 463 U.S. 783, 790, 103 S.Ct. 3330, 3335, 77 L.Ed.2d
1019 (1983).
The Control Board is currently governing the District of Columbia and
is not currently governing the federal enclaves or former portion of the District of
Columbia south-west of the Potomac River. Its current existence and actions, therefore,
violate the Plaintiffs' rights to equal protection of the laws. The fact that the rights
of these same Plaintiffs (all of whom, by the way, have lived in the District of Columbia
since before 1995) might have been violated in similar ways in the past by other entities
(or might even be violated in similar ways in the future by other entities, absent
remedial action by the courts) is not dispositive of whether this Defendant violates the
rights of these Plaintiffs now.
All the Defendant's argument on this point boils down to is an attempt
to elide the Plaintiffs' civil rights claims into an antiquated, nineteenth century
personal injury tort suit for money damages. If these Plaintiffs' were demanding monetary
damages (for the sake of the argument) on the basis of having been falsely imprisoned for
almost two hundred years, the Control Board's argument would amount to saying that,
because it only became the jailer in 1995, it could not be a proper defendant. But the
argument would fail even then, because the jailer who unjustly keeps a person imprisoned
is no less liable for false imprisonment than is the one who first locked the door. See W.
Page Keeton, ed., Prosser and Keeton on The Law of Torts, 51 (5th ed. 1984).
The inadequacy of the Defendant's argument on this point is illustrated
by its citation of Cal. Ass'n of Physically Handicapped v. F.C.C., 778 F.2d 823 (D.C. Cir.
1985) ("CAPH"). CAPH was a suit brought to block a summary transfer of over 50%
of the stock in certain television stations from public shareholders to the station owner
and a few others, which transfer had been approved by the Federal Communications
Commission (F.C.C.). The plaintiffs' cause of action arose under 47 U.S.C.
402(b)(6), which provided judicial review of any F.C.C. decision, such as approval of the
summary transfer of stock at issue, by any person "aggrieved or whose interests are
adversely affected by" an F.C.C. order. Quoted in id., 778 F.2d at 825 (emphasis
added).
The plaintiffs in CAPH alleged that they were injured by the television
station owner's "longstanding neglect of its responsibilities to the handicapped
public, particularly [its] failure to take reasonable steps to make television
understandable to the hearing impaired and its failure to exert reasonable efforts to hire
the handicapped." Id. The plaintiffs made no allegation that the F.C.C. was either
the author of the allegedly discriminatory practices of the television stations or that
the F.C.C. had been instrumental in executing allegedly discriminatory practices authored
by anyone else. The plaintiffs made no allegation that the transfer of stock at issue in
the case had been instrumental in perpetuation of the allegedly discriminatory practices.
On reviewing the facts in the record, the court found that the
plaintiffs could not "fairly trace its ongoing injury--either in origin or in
endurance--to the transfer in question." Id. The reason for this was that the court
also had found that "uncontroverted" evidence before the F.C.C. proved that the
same person who received the lion's share of the stock in the transfer at issue in the
case "had exercised de facto control of [the company] with F.C.C. approval for many
years[,]" so the F.C.C. had determined that "the shift from de facto to de jure
control [by the individual] entailed no 'substantial change' in ownership or
control[.]" Id, 778 F.2d at 824.
Therefore, the defendant in the case, the Federal Communications
Commission, had done nothing whatsoever in respect to the policies, good or bad,
discriminatory or not, of the private company running the television stations. The F.C.C.
merely approved a conversion from "de facto control" to "de jure
control," which had no effect on continuity of control, which was at issue in
causation. The entity which was responsible for the plaintiffs' injuries (if any entity
was responsible), "either in origin or in endurance," id., 778 F.2d at 825
(emphasis added), was the company owning the station and/or the individual to whom the
lion's share of the stock had been transferred. At most, the F.C.C. had only made a public
record (acknowledged as a legal reality) of the identity of the perpetrators of the
practices which injured the plaintiffs in CAPH.
Again, the claims brought by these twenty Plaintiffs are completely
different from those in CAPH. The Control Board is not a distant federal agency which
might have made a public signification that the rights of these plaintiffs have been
violated (see Control Board's Memorandum in support of its Motion to Dismiss at 4
("If Plaintiffs have a legitimate grievance . . . , it is with the branches of the
United States government which have not accorded the District of Columbia the right to
elect voting representatives to Congress or conferred statehood on the District.")).
The Defendant is the actual, current, government of the District of Columbia. Shook,
supra, 132 F.3d at 784. The Defendant decides how the taxes collected from these
Plaintiffs will be spent and decides who will do what to whom--whose ox will be gored and
whose ox will receive a juicy consultation contract--in the District of Columbia.
This Defendant decides whether the District of Columbia will spend any
money making public buildings accessible to persons such as Plaintiff Killingham, who uses
a wheelchair. This Defendant decides whether the District of Columbia will have programs
and what programs it will have for troubled young people, such as those who Plaintiff
Higgs works with to help them learn to cope and succeed. This Defendant decides whether
Plaintiff Rahim Jenkins, who works with men trying to return to law-abiding, productive
lives after incarceration, will be able to offer these men anything more than moral
support to stand firm against an overwhelming tide of drugs, poverty, ignorance, and
broken families.
Everywhere else in the United States of America, and particularly in
the former portion of the District of Columbia south-west of the Potomac River and in the
federal enclaves, such citizens could go to their local political representatives or to
their representatives in Congress and say, "I voted for you; I am one of your
constituents; I need this!" In the District of Columbia, they cannot do this, because
the "government" to which they must go is the Control Board, which is not
elected by the citizens of the District of Columbia and is specifically insulated from the
influence of the citizens of the District, Shook v. D.C. Fin. Respon. & Manag. Asst.
Auth., 964 F.Supp. 416, 426 (D.D.C. 1997). This is actual fact today, despite the fact
that the present fact fits a pattern of discriminatory treatment which antedates the
creation of the Control Board.
Since the injuries of which the Plaintiffs complain are present and
ongoing, despite the fact that they have been ongoing for a long time, and since there is
a direct causal connection between the actions and existence of the Control Board and the
Plaintiffs' injuries, the Plaintiffs have standing. See Marsh, supra, 463 U.S. at 786, 103
S.Ct. at 3333.
Finally, on page 6, the Control Board turns its attention to
"redressability," charging that the Plaintiffs
have failed to respond to the Authority's contention in its Motion to
Dismiss that it lacks the power to grant the two remedies sought by the Plaintiffs: (1) an
end to the alleged disparate treatment of District residents and (2) the institution of a
government in Washington, D.C., that would satisfy the Plaintiffs' definition of
'republican.'
Of course, the Plaintiffs won't respond to the second suggestion, because the Plaintiffs
do not seek that as a remedy. The court could not order it, nor would the Plaintiffs wish
the court to frame its exact form, which would be necessary if it was to be
"instituted." What the Plaintiffs do seek is removal of the Control Board from
their city because it is decidedly anti-republican in form, not according to any
definition authored by the Plaintiffs, but according to a definition authored by the
Supreme Court of the United States:
[The] distinguishing feature [of a republican form of government] is
the right of the people to choose their own offices for governmental administration, and
pass their own laws in virtue of the legislative power reposed in representative bodies,
whose legitimate acts may be said to be those of the people themselves[.]
Duncan v. McCall, 139 U.S. 449, 461, 11 S.Ct. 573, 577, 35 L.Ed. 219 (1891) (emphasis
added).
As previously noted, the Control Board can withdraw, resign, quit, go
home. Within the scope of its actual statutory and implied powers, this is as much,
perhaps, as it can do towards guaranteeing to these Plaintiffs a republican form of
government and that is all it needs to do.
In connection with the Plaintiffs' discussion of remedies, the
Plaintiffs used the word "might," of which the Defendant tries to make much
(pages 6-7), but the term means something different than suggested by the Control Board.
The citizens of the District of Columbia have begged and pleaded with Congress for decades
and decades for respect of their fundamental rights and Congress has ignored them at best
and insulted them for their troubles. Thus, the Plaintiffs have every expectation that, if
they prevail in this case, Congress will still exhaust every subterfuge to avoid even the
strongest statements of the court before they obtain justice. The Control Board actually
acknowledges this likelihood, saying that "if history is any guide, . . . Congress
[will] decide to impose a government less 'republican' than the current model[.]"
Thus, these Plaintiffs very well "might" be back before the
court, repeatedly, for ever stronger orders or injunctions to enforce their rights. This
is not unusual. Despite the "'inadmissib[ility of the] suggestion' that [a
defendant's] action might be taken in disregard of a judicial determination[,]"
Powell v. McCormack, 395 U.S. 486, 549 n.86, 89 S.Ct. 1944, 1978 n.86, 23 L.Ed.2d 491
(1969) (quoting McPherson v. Blacker, 146 U.S. 1, 24, 13 S.Ct. 3, 6, 36 L.Ed. 869 (1892)),
it happens. The malapportionment which gave rise to Baker v. Carr, 369 U.S. 186, 82 S.Ct.
691, 7 L.Ed.2d 663 (1962), for instance, was not rectified without further delay and
struggle, despite the earth-shaking notoriety of the Supreme Court's seminal opinion. See
Baker v. Carr, 222 F.Supp. 684 (M.D. Tenn. 1963), Baker v. Carr, 247 F.Supp. 629 (M.D.
Tenn. 1965). Quite simply, "[n]othing in [the Supreme Court's] cases requires a party
seeking to invoke federal jurisdiction to negate [all] speculative and hypothetical
possibilities" which could follow a ruling on the merits favorable to a plaintiff.
Duke Power Co. v. Carolina Environ. Study, 438 U.S. 59, 78, 98 S.Ct. 2620, 2633, 57
L.Ed.2d 595 (1978); see also Orr, supra, 440 U.S. at 272-73, 99 S.Ct. at 1108; Vill. of
Arlington Heights v. Metro Housing Dev., 429 U.S. 252, 261-62, 97 S.Ct. 555, 561, 50
L.Ed.2d 450 (1977).
The Control Board's conclusion that standing is defeated by the
ever-present possibility of abject recalcitrance of a defendant or even the possibility of
passing future resistance is unwarranted, however. "If history is any guide,"
the fact that the author of an injustice might flaunt judicial orders only means that
further judicial action might be required; the possibility does not defeat standing to
demand what would be a sufficient remedy in the first instance. [FOOTNOTE 6: Were the
Control Board's theory tenable, there would be no law suits, for every defendant would
learn to declare an intention to ignore anything the court might order, reducing every
remedy to something which only "might" be sufficient, in itself, to vindicate a
plaintiff's claim. Thus, every court would have to dismiss every case, because no
plaintiff could ever predict when a recalcitrant defendant "might" finally
submit to judicial authority.] Orr, supra, 440 U.S. at 272-73, 99 S.Ct. at 1108; Duke
Power, supra, 438 U.S. at 78, 98 S.Ct. at 2633; Arlington Heights, supra, 429 U.S. at
261-62, 97 S.Ct. at 561.
Summary: Whether the Control Board is a proper
defendant? Yes
The scope of "causation" and "redressability" as
elements of standing (see Plaintiffs' Opposition at 13-28) is not limited to the specific
acts of the Control Board to "cause" the injuries and acts it might take to
"redress" injuries, however. The scope embraces the existence of the Control
Board and exercise of its powers in the manner defined by Congress.
The Control Board is not the original author of its own enabling
statute, Pub. L. 104-8, 109 Stat. 97 (1995), or (we may assume), of subsequent Acts
augmenting its powers. Congress is the original author and the Control Board is the
specific agency charged with executing Congressional policy. See Shook, supra, 132 F.3d at
778, 784; Shook v. D.C. Fin. Respon. & Mgmt. Assist. Auth., 964 F.Supp. 416, 421-23
(D.D.C. 1997), rev'd on other grounds, 132 F.3d 775 (D.C. Cir. 1998); Brewer, supra, 953
F.Supp. at 410-11.
Since "it is commonplace in our system to sue implementing
officers," even when "they have . . . no 'discretion to grant [the suitor's]
requests[,]'" Kurtz, supra, 829 F.2d at 1150 (Ginsburg, Judge, dissenting; quoting
Judge Buckley's majority opinion in the case); compare Buckley v. Valeo, 424 U.S. 1, 117,
96 S.Ct. 612, 681, 46 L.Ed.2d 659 (1976); Powell, supra, 395 U.S. 486, 89 S.Ct. 1944, the
Control Board is a proper defendant in this suit. The members of the Control Board are the
"implementing" officers of Congressional enactments. In this case, moreover,
they do have the discretion to grant at least the most fundamental of the Plaintiffs'
requests: they can quit. Further, the Control Board is a proper defendant in this suit
precisely because it was created by Congress and its imposition on the Plaintiffs violates
their rights, as set forth in the Complaint.
Were [such] public officers not proper parties in [the Plaintiffs']
constitutional challenge to congressional measures . . . then [the challenged] actions of
Congress would be immune from judicial review. . . . Those who execute Congress' policy
are properly sued because they cause plaintiff[s] injur[ies which will be] remedied when
the judiciary declares the action unconstitutional.
Id, 829 F.2d at 1150-51 (emphasis added); see also Heckler v. Mathews, 465 U.S. 728, 104
S.Ct. 1387, 79 L.Ed.2d 646 (1984); Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77
L.Ed.2d 1019 (1983); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct.
863, 96 L.Ed. 1153 (1952) (all suits against officers charged with enforcing legislative
Acts or policies they had not drafted).
In short, the Control Board is a proper defendant because it is
comprised of individuals charged with "implementing" congressional policy.
Kurtz, supra, 829 F.2d at 1150. The Control Board "executes Congress' policy,"
so it is properly sued because it causes the plaintiffs' injuries which will be remedied
when the court declares the Control Board's action and existence unconstitutional. Id, 829
F.2d at 1150-51.
4: Whether the Plaintiffs
have stated a claim
(Control Board's Reply
at 7)
On page 7, the Control Board reiterates its argument that this case
should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure (see
Memorandum in Support of Control Board's Motion to Dismiss at 6). As framed in its Reply
memorandum, the argument is limited to the same points made by the Control Board as
components of its argument that the Plaintiffs lack standing because the Control Board
didn't cause any injury. Unlike analysis as a component of standing, however, where the
Plaintiffs bear the burden of making a prima facie showing, United States v. Hays, 515
U.S. 737, 742-43, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995); Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 2136 (1992); Natural
Resources Defense Council, Inc. v. Jamison, 787 F.Supp. 231, 235 n.1 (D.D.C. 1990), the
Control Board bears the burden of proving its argument under Rule 12(b)(6). Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed. 80 (1957) (citations omitted); see
also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59
(1984); In re Swine Flu Immunization Prod. Liability Lit., 880 F.2d 1439, 1442 (D.C. Cir.
1989).
As pertinent to Count One of the Complaint, the Control Board has not
offered the slightest hint--much less any showing--that the citizens of any federal
enclave or of the former portion of the District of Columbia south-west of the Potomac
River have been subjected by Congress to an appointed governing board of individuals who
are not only not elected by the citizens but who are insulated from all political
influence and responsibility to those citizens. The Control Board's statement of the
Plaintiffs' "burden" on this point (that the Plaintiffs must show some
differential treatment by the Control Board) is not supported by citation to any case or
doctrine supporting the proposition that such a showing is required under facts such as
those alleged by the Plaintiffs in this case. In fact, there is no such case or doctrine,
because the proposition, on its face, is irrelevant to the merits of the Plaintiffs'
claim.
The Plaintiffs make no claim that the Control Board "treats"
the citizens of the District differently than the Control Board "treats" the
citizens of the federal enclaves or on the citizens of the former portion of the District
of Columbia south-west of the Potomac river. The Plaintiffs do claim that the Control
Board is imposed upon the citizens of the District and is not imposed upon the citizens of
the other areas, and this imposition itself is a violation of the equal protection
provisions of the Constitution. The Control Board's argument is simply a shell game.
As pertinent to Count Two of the Complaint, the Control Board has
failed to demonstrate that its power arises from any source other than an Act of Congress.
Thus, the Control Board has not rebutted the Plaintiffs' allegation that the Control Board
is a component of the government of the United States for the purposes of Article IV,
Section 4, of the Constitution. The Control Board has made no showing that it does not
exercise powers of governance over the District of Columbia, or that it is comprised of
members elected by the citizens of the District. Absent such showings, the Plaintiffs'
allegations are uncontroverted: that the Control Board is the actual, present government
of the District of Columbia, that the Control Board is not a republican form of
government, and that the Control Board is obligated to take any steps within its power to
guarantee to the Plaintiffs a republican form of government (which is can do by
resigning).
For the reasons set forth in this memorandum and in the Plaintiffs'
Opposition to the Control Board's Motion to Dismiss, the Control Board's Motion must be
denied.
Respectfully submitted,
George S. LaRoche
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