IN THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Twenty Citizens of the District of Columbia,
Plaintiffs
versus | Civil Action No: 98-1665 LFO
William Jefferson Clinton, et al,
Defendants
PLAINTIFFS' REPLY TO
DEFENDANTS HOUSE OFFICERS' CHALLENGE TO
STANDING VIS- -VIE THE HOUSE OFFICERS
On August 4, 1998, the Defendants Carle in her official capacity as Clerk of the House
of Representatives and Livingood in his official capacity as Sergeant at Arms of the House
of Representatives (together, "House Officers") filed their Opposition to
Plaintiffs' Application for a Three-Judge District Court (House Officers'
"Opposition"). On pages 4-6 of the House Officers' Opposition, they challenge
whether these twenty Plaintiffs have "standing," especially vis- -vie the
House Officers. Since the question of standing cannot be addressed until the question
whether this case is under the jurisdiction of a three-judge district court is decided,
see McLucas v. DeChamplain, 421 U.S. 21, 28, 95 S.Ct. 1365, 1370, 43 L.Ed.2d 699, 707
(1975); Armour v. State of Ohio, 925 F.2d 987, 989 (6th Cir. 1991) (en banc); Ryan v.
State Bd. of Elections of State of Ill., 661 F.2d 1130, 1134-35 (7th Cir. 1981),
Plaintiffs submit this separate memorandum to address the question of standing, as raised
in the House Officers' Opposition.
Since the factual and legal criteria of standing vis-…-vie Defendant Clinton are
similar to those vis-…-vie the House Officers, this memorandum will refer to standing
vis-…-vie both (but Plaintiffs reserve the right to reply to any specific challenge
to standing Defendant Clinton might lodge).
The question of standing has already been raised in the Motion of Defendant District of
Columbia Financial Responsibility and Management Assistance Authority to Dismiss the
Complaint as to It ("Control Board's Motion" at 2-6). The Plaintiffs have
responded to the question in the Plaintiffs' Opposition to the [Control Board's Motion]
("Plaintiffs' Opposition" at 3-38). As set forth in the Plaintiffs' Opposition,
the Plaintiffs must be able to satisfy the following elements to demonstrate that they
have standing:
First, the plaintiff[s] must have suffered an "injury in fact"--an invasion of a
legally protected interest which is (a) concrete and particularized and (b) "actual
or imminent, not 'conjectural' or 'hypothetical.'" Second, there must be a causal
connection between the injury and the conduct complained of--the injury has to be
"fairly . . . trace[able] to the challenged action of the defendant, and not . .
.th[e] result [of] the independent action of some third party not before the court."
Third, it must be "likely," as opposed to merely "speculative," that
the injury will be "redressed by a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 2136, 119 L.Ed.2d
2136 (1992).
The House Officers present no issue or argument which requires the Plaintiffs to revisit
in depth their discussion of the first (dual) element of standing
("particularization" to them and "actual" injury) or the phantom
fourth element ("prudential limitations" on standing) which, while not included
by Lujan, is frequently addressed (see Plaintiffs' Opposition at 28-37). The House
Officers do question standing as to them as Defendants, however (House Officers'
Opposition at 5), so the Plaintiffs must address the second and third elements of the
Lujan test for standing ("causation" and "redressability"), which
concern standing vis- -vie a particular defendant. Thus, the Plaintiffs incorporate
pages 3-13 and 28-38 of their August 4 Opposition to the Control Board's Motion by
reference, for the purposes of the instant memorandum, summarizing their standing under
the first two Lujan elements by paraphrasing the Supreme Court's opinion in Baker v. Carr:
These [twenty Plaintiffs] seek relief in order to protect or vindicate an interest of
their own, and of those similarly situated. Their constitutional claim[s include], in
substance, that [their exclusion from apportionments for representation in Congress and
other things] constitutes arbitrary and capricious state action, offensive to the [equal
protection provisions of the Constitution] in its irrational disregard of the standard of
apportionment prescribed [in the United States] Constitution [and in all formal Acts of
Congress and opinions of the Supreme Court], effecting a [total exclusion] of
representation to voting population. The injury which [the twenty Plaintiffs] assert is
that this classification disfavors the voters in [the District of Columbia], placing them
in a position of constitutionally unjustifiable inequality vis-…-vis voters in
irrationally favored [areas, including the former portion of the District of Columbia
south-west of the Potomac River and including the federal enclaves]. A citizen's right to
a vote free of arbitrary impairment by state action has been judicially recognized as a
right secured by the Constitution . . . . [Thus, these twenty Plaintiffs] are asserting
"a plain, direct and adequate interest in maintaining the effectiveness of this
votes," not merely a claim of "the right possessed by every citizen 'to require
that the government be administered according to law . . .'." They are entitled to a
hearing and to the District Court's decision on their claims. "The very essence of
civil liberty certainly consists in the right of every individual to claim the protection
of the laws, whenever he receives an injury."
369 U.S. 186, 207-08, 82 S.Ct. 691, 705, 7 L.Ed.2d 663 (1962) (quoting Coleman v. Miller,
307 U.S. 433, 438, 59 S.Ct. 972, 975, 83 L.Ed. 1385 (1939); Fairchild v. Hughes, 258 U.S.
126, 129, 42 S.Ct. 274, 275, 66 L.Ed. 499 (1922); and Marbury v. Madison, 5 U.S. (1
Cranch) 137, 163, 2 L.Ed. 60, 69 (1803)).
Second Lujan Element:
Did the House Officers Cause the Injuries Complained of?
Assuming that these twenty Plaintiffs adequately demonstrated that they are injured
(Plaintiffs' Opposition at 5-13), they must be able to show, as a prima facie matter, that
the House Officers (and Clinton) might have caused the injury to these plaintiffs. The
gist of this element (the "causation" element) is "a causal
connection" between the injury and the defendants' actions; in other words, "the
injury has to be fairly traceable to the challenged action of the defendant[s]."
Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926,
48 L.Ed.2d 450 (1976)), quoted in Lujan, supra, 504 U.S. at 559-60, 112 S.Ct. at 2136. The
nexus must be such that, but for the action or inaction of the defendant, there would be a
substantial probability that the plaintiffs would not have suffered the injury of which
they complain. See Warth v. Seldin, 422 U.S. 490, 504, 95 S.Ct. 2197, 2208, 45 L.Ed.2d 343
(1975).
So long as the plaintiff can demonstrate a "chain of causation" from the injury
to the defendant's action and so long as the "links that comprise the chain" are
"plausible," it doesn't matter one way or another how long that chain is. Public
Citizen v. Lockheed Aircraft Corp.. 565 F.2d 708, 717 n.31 (D.C. Cir. 1977). Thus, even
indirect causation supports standing. See Warth, supra, 422 U.S. at 504-05, 95 S.Ct. at
2208.
Discussion & Answer: Yes
One of the fundamental issues in this case is apportionment. Presently, these twenty
Plaintiffs are not included in any apportionment of representation in Congress,
whatsoever. See Complaint at 30, 68, 105, 106 [FOOTNOTE 1: Paragraph symbols
("") used in this memorandum refer to paragraphs of the Complaint.] (see
also Plaintiffs' Opposition at 11-13; Memorandum of Points and Authorities in Support of
Plaintiffs' Application for a Three-judge District Court (filed June 30, 1998) at 8-9).
The Defendants House Officers and Clinton play instrumental roles in enforcement of the
current apportionment of representation in the House of Representatives. See
8-11, 74-77, 79-83, 85-86, 113-116; see generally Com. of Mass. v. Mosbacher, 785 F.Supp.
230, 248-49 (D.Mass.), rev'd on other grounds sub nom Franklin v. Mass., 505 U.S. 788, 112
S.Ct. 2767, 120 L.Ed.2d 636 (1992) (detailed history and explanation of current
apportionment procedure); Federation for Am. Imm. Reform v. Klutznick, 486 F.Supp. 564,
566 (D.D.C.), app. dismissed, 447 U.S. 916, 100 S.Ct. 3005, 65 L.Ed.2d 1109 (1980).
Defendant Clinton is responsible, among other things, 7, to enforce that portion of
the current procedure which actually results in a functionally final count of citizens in
each State and he is responsible for making the actual calculations, according to the
method of equal proportions, how many representatives each State will receive in Congress,
according to the whole population of the State. 8; 2 U.S.C. 2a(a). Defendant
Carle is responsible to enforce that portion of the current procedure which is the
official notification of each State of its numerical apportionment and Defendant Carle is
responsible to enforce that portion of the current apportionment procedure which results
in enrollment of the elected Representatives for seating in Congress. 9-10; 2
U.S.C. 2a(b); Rules III(1) & III(5) of the Rules of the House of Representatives
- 105th Congress. Defendant Livingood is responsible for admitting only those
Representatives apportioned to each State and no others to the sessions of Congress.
11; Rule IV(4) of the Rules of the House of Representatives - 105th Congress.
Thus, these Defendants play key, dispositive roles (their roles are not subject to
ministerial judgment or discretion of other officers or agents in the federal government
to alter their decisions after they are made) in the apportionment process defined by
Congress, which results in each decennial reapportionment of Congress. See Franklin,
supra, 505 U.S. at 796, 198-99, 112 S.Ct. at 2773-75 (the President's report to Congress
of the States' populations, with calculations of how many Representatives each shall have
according to the method of "equal proportions," is the first point at which
States might claim an "entitlement to a particular number of Representatives");
Franklin, supra, 505 U.S. at 796-99, 112 S.Ct. at 2773-75. The role that Defendants
Clinton and House Offices play, therefore, is sufficiently important that, but for their
actions, Warth, supra, 422 U.S. at 504, 95 S.Ct. at 2208, each decennial reapportionment
of Congress could not be enforced or sustained; apportionment would not happen but for
their actions.
The current apportionments of representation in Congress violate the Plaintiffs' rights.
See 78, 84, 87, 105-106, 117-118. Thus, insofar as the present
malapportionment--the present apportionment which excludes the Plaintiffs from
apportionments of any representation in the House of Representatives--is enforced, in
part, by the Defendants Clinton and House Officers, the Plaintiffs' injuries are
"fairly traceable," Simon, supra, 426 U.S. at 41-42, 96 S.Ct. at 1926, to the
actions of these defendants. Thus, the second Lujan element is must be answered in the
affirmative.
It should be noted that the Plaintiffs do not allege that the House Officers are the
authors of the policy of malapportionment or that they are responsible in their official
capacity for legislatively enacting the policies whereby the citizens of the federal
enclaves are not apportioned representation while the Plaintiffs are excluded from
apportionment. But the Plaintiffs are not required to make such a showing to have
standing. They need only show that these Defendants are in the "chain of
causation" of the injury. Public Citizen, supra, 565 F.2d at 717 n.31.
Further, these House Officers are sued in their official capacities, not their personal
capacities, so it is not material to the case that Robin Carle personally has only been
the Clerk of the House of Representatives since 1995. (House Officers' Opposition at 5
n.4). But it is also true that the Complaint states that she, referenced by her personal
name, "in her official capacity as the Clerk . . . has certified to the chief
executive of each State the number of Representatives apportioned to the State . . .
." 79.
Insofar as Paragraph 79 of the Complaint and other similar references to Defendants acting
in official capacity might create confusion, the Plaintiffs will gladly and promptly file
a motion to amend their Complaint to provide that, at every point where any defendant is
named in official capacity, the language of the Complaint would be amended to add the
following phrase after the title ascribed to the Defendant in official capacity: "or
his or her predecessors or successors in the same official capacity." For now,
however, the Plaintiffs will defer filing such a motion and amended complaint, unless any
Defendant or the Court itself deems it necessary, to obviate any technical difficulty
which might be presented by connection with a person's specific name with the official
capacity (which official capacity is as issue in the case) or for any other reason.
Third Lujan Element:
Can the Court Redress the Injuries as Against the House Officers?
Even if the plaintiffs are injured and even if the defendants caused the injury, then the
plaintiffs must still demonstrate that the court might redress the injury
("redressability element"). The question of redressability need not be answered
with absolute finality. In this regard, it might be remembered that, "a plaintiff is
entitled to any relief appropriate to the facts alleged in the bill and supported by the
evidence, even where [the plaintiff] has not prayed for such relief." Dann v.
Studebaker-Packard Corp., 288 F.2d 201, 216 (6th Cir. 1961), quoted in Adams v. Bell, 711
F.2d 161, 203 (D.C. Cir. 1983), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d
678 (1984) (other citations omitted); Fed. R. Civ. P. 54(c). Thus, the requirement can be
fulfilled with a showing that a favorable decision "is likely to redress" the
injury complained of, Natural Resources Defense Council, Inc. v. Jamison, 787 F.Supp. 231,
234-35 (D.D.C. 1990) (citing National Wildlife Federation v. Hodel, 839 F.2d 694, 705
(D.C. Cir. 1988) or that a plaintiff "personally would benefit in a tangible way from
the court's intervention," Warth, supra, 422 U.S. at 509, 95 S.Ct. at 2210.
Again, if a "plaintiff is himself [or herself] an object of the action (or foregone
action) at issue [in the case,] . . . there is ordinarily little question . . . that a
judgment preventing or requiring the action will redress it." Lujan, supra, 504 U.S.
at 561-62, 112 S.Ct. at 2137. In such a case, an order barring enforcement of an
unconstitutional statute or action would be "of immense benefit" to anyone who
would be subject to the unconstitutional statute or action, Bland v. Fessler, 88 F.3d 729,
738 (9th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 513, 136 L.Ed.2d 403 (1996), so
declaratory relief can satisfy the "redressability" element of standing. In
fact, "[p]ublic policy should encourage a person aggrieved by laws he considers
unconstitutional to seek a declaratory judgment against the arm of the state entrusted
with the state's enforcement power[.]" Mobil Oil Corp v. Attorney General of the
Commonwealth of Virginia, 940 F.2d 73, 75 (4th Cir. 1991) (emphasis added); Bland v.
Fessler, 88 F.3d 729, 737 (9th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 513, 136
L.Ed.2d 403 (1996).
Thus, it is not required that the remedy sought in the case constitute some positive
quantum which might swell a plaintiff's pocket-book, such as monetary relief. It is
enough, when a party is challenging some act or policy of the government which stands
between her and the status or condition she would wish to achieve, that the relief she
seeks would simply deactivate or nullify that act or policy. Such nullification might come
from a declaration that the act or policy is unconstitutional. See Miller v. Christopher,
96 F.3d 1467, 1470 (D.C. Cir. 1996), (specific principle of standing) aff'd sub nom Miller
v. Albright, ___ U.S. ___, 118 S.Ct. 1428, 1436, ___ L.Ed.2d ___ (1998).
The "redressability" element of standing has arisen in many of the cases where
plaintiffs have brought claims of denial of equal protection of the laws, such as these
twenty Plaintiffs present in Count One of their Complaint. See, e.g., Heckler v. Mathews,
465 U.S. 728, 737-40, 104 S.Ct. 1387, 1394-96, 79 L.Ed.2d 646 (1984). In such a case, the
courts have found no impediment to remedying the situation.
[W]e have frequently entertained attacks on discriminatory . . . practices even when the
government could deprive a successful plaintiff of any . . . relief by withdrawing . . .
benefits from both the favored and the excluded class. . . . Accordingly, as Justice
Brandeis explained, when the "right invoked is that to equal treatment," the
appropriate remedy is a mandate of equal treatment, a result that can be accomplished by
withdrawal of benefits from the favored class as well as by extension of benefits to the
excluded class. Consistent with Justice Brandeis' explanation of the appropriate relief
for a denial of equal treatment, we have often recognized that the victims of a
discriminatory government program may be remedied by an end to preferential treatment for
others.
Mathews, supra, 465 U.S. at 740 & 740 n.8, 104 S.Ct. at 1395 & 1395 n.8 (quoting
Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 247, 52 S.Ct. 133, 136, 76 L.Ed.
265 (1931) (per Brandeis, J.); other citations omitted). In short, "the injury caused
by the unequal treatment allegedly suffered by [a group of plaintiffs] may "be
redressed by a favorable decision" and [the plaintiffs] therefore ha[ve] standing to
prosecute" the case. Mathews, supra, 465 U.S. at 740, 104 S.Ct. at 1396.
Discussion & Answer: Yes
In this case, generally, the Plaintiffs complain that they are the subjects of
unconstitutionally discriminatory action and that they are the subjects of denials of
certain duties and privileges. 37-118. The Plaintiffs demand both declaratory
judgments and injunctions against the Defendants Clinton and the House Officers as
remedies for their injuries. In drastically truncated form, these remedies are as follows:
To issue declaratory judgments that . . .
1. The Plaintiffs ... have the right to the equal protection of the laws, also expressed
as the right to stand on an equal footing with all other citizens of the United States,
and
2. The Plaintiffs ... have the right to enjoy republican forms of government, such as are
inherent in a federal system, which means that:
a. The[y] ... have the right to be apportioned to a congressional district or districts,
such that they will participate in the government of the United States ... and that
b. The[y] ... have the right to participate through duly elected representatives in a
state government ..., and
3. The Plaintiffs ... have the privilege of relying upon the obligation of [Defendants
Clinton and House Officers, among others] to guarantee republican forms of government to
them, which obligation "to guarantee" means taking overt steps forthwith to
enable, facilitate, and apportion representation in such governments; and
to issues further declaratory judgments that: ...
2. The failure of the Congress of the United States to apportion the citizens of the
District of Columbia to a congressional district or districts ... violates the Plaintiffs'
rights to the equal protection of the laws under the United States Constitution, and
4. The failure of the Congress of the United States to take steps to insure that the
citizens of the District of Columbia will be apportioned to congressional districts ...
violates the Plaintiffs' rights to republican forms of government ... and violates the
Plaintiffs' privilege of relying upon the obligation of all members of the federal
government to guarantee to them republican forms of government; and
To issue mandatory and perpetual injunctions ... that:
1a. Defendant ... Clinton ... shall not [enforce] any Act ... of Congress [which uniquely
concerns the District of Columbia, at least until a certain "sunset" provision
obtains] ... ,
1b. Defendant ... Clinton ... shall not [enforce current malapportionments in Congress
until the malapportionment is remedied or until a certain "sunset" provision
might obtain] ...,
2.a.&b. Defendant Robin H. Carle in her official capacity as the Clerk of the United
States House of Representatives shall not [enforce present, unconstitutional
apportionments which violate the Plaintiffs' rights],
3. Defendant Wilson Livingood in his official capacity as the Sergeant at Arms of the
United States House of Representatives shall not [enforce present, unconstitutional
apportionments which violate the Plaintiffs' rights].
Complaint at pp. 22-28.
Therefore, at the most, the Plaintiffs demand nullification or cessation of these actions,
through the remedies they frame or such other relief as the court finds appropriate. See
Dann, supra, 288 F.2d at 216 ("a plaintiff is entitled to any relief appropriate to
the facts alleged in the bill and supported by the evidence, even where [the plaintiff]
has not prayed for such relief."); Fed. R. Civ. P. 54(c). Such nullification would
arise directly, as a legal principle, from a declaration that the actions or policies are
unconstitutional, see Miller, supra, 96 F.3d at 1470; Mobil Oil, supra, 940 F.2d at 75
("[p]ublic policy should encourage a person aggrieved by laws he considers
unconstitutional to seek a declaratory judgment against the arm of the state entrusted
with the state's enforcement power[.]"), but the injunctions demanded would effect
the same ends directly and forcefully, in that the Defendants have shown no inclination to
act on their own to rectify the Plaintiffs' injuries.
For instance, exclusion of the Plaintiffs from apportionment violates the Plaintiffs
rights to equal treatment under the law. The Plaintiffs are among those who are completely
excluded from apportionment of representation in Congress, 30, 68, 80, 105,
114, so they are themselves "objects of the [unconstitutional] action . . . at
issue" in the case, so there should be "little question . . . that a judgment
preventing . . . the action will redress it." Lujan, supra, 504 U.S. at 561-62, 112
S.Ct. at 2137; NRDC, 787 F.Supp. at 234-35. As to such violations, it is well-established
that "the appropriate remedy is a mandate of equal treatment, a result [which] can be
accomplished by withdrawal of benefits from the favored class . . . . [Thus, this]
discriminatory government program may be remedied by an end to preferential treatment for
others." Mathews, supra, 465 U.S. at 740 & 740 n.8, 104 S.Ct. at 1395 & 1395
n.8. The injunction framed by the Plaintiffs would certainly "withdraw the
benefits" from the "favored class." [FOOTNOTE 2: The Plaintiffs maintain a
sincere hope that such extreme measures might not remain necessary, but that, as this case
proceeds, it might become apparent that the declaratory judgements alone might suffice to
remedy their injuries, allowing the court to hold the injunctions in abeyance pending
governmental action in response to the declaratory judgements.]
An order barring enforcement of unconstitutional exclusions from apportionments, such as
the injunction demanded (or anything else which the court might deem would be a proper
remedy, once the merits have been examined and decided, Dann, supra, 288 F.2d at 216; Fed.
R. Civ. P. 54(c)), would, therefore, be "of immense benefit" to the Plaintiffs,
precisely because they are the subjects of the unconstitutional actions complained of in
the case. Bland, supra, 88 F.3d at 738. In fact, anything the court might do to restrain
violations of the rights of these twenty Plaintiffs would be a "personal,
tangible" benefit to these Plaintiffs. Warth, supra, 422 U.S. at 509, 95 S.Ct. at
2210. Since the injury caused by the unequal treatment suffered by these twenty Plaintiffs
may "be redressed by a favorable decision," the plaintiffs have standing to
prosecute the case. Mathews, supra, 465 U.S. at 740, 104 S.Ct. at 1396.
CONCLUSION
For all these reasons, the Plaintiffs have standing to prosecute this case.
Respectfully submitted,
George S. LaRoche