Before Garland, Circuit Judge, and Kollar-kotelly and
Oberdorfer, District Judges.
The opinion of the court was delivered by: Per Curiam.
On September 14, 1998, the District of Columbia and fifty-seven
of its residents filed a complaint in Alexander v. Daley,
challenging the lack of full representation for the District in
the United States House of Representatives. Plaintiffs also filed
a motion for the appointment of a three-judge district court,
invoking the statutory requirement that such a court be convened
"when an action is filed challenging the constitutionality of the
apportionment of congressional districts." 28 U.S.C. § 2284(a).
After this suit was consolidated with a related case
brought by other District of Columbia residents, Adams v.
Clinton, a three-judge court was convened to hear both cases. See
Adams v. Clinton, 26 F. Supp.2d 156 (D.D.C. 1998). Defendants in
these consolidated cases include the United States and Executive
Branch officials (represented by the Department of Justice),
officers of the House of Representatives (represented by the
House's Office of General Counsel), and officers of the Senate
(represented by the Senate Legal Counsel).
Pursuant to D.C. CODE ANN. § 1-361 (1992), the D.C.
Corporation Counsel has represented the District throughout this
litigation. On October 21, 1998, however, the President signed
into law the Omnibus Consolidated and Emergency Supplemental
Appropriations Act of 1998, legislation that includes the
District of Columbia Appropriations Act for fiscal year 1999. See
Pub.L. No. 105-277, 112 Stat. 2681, 2681-121 (1998). Section 151
of the D.C. Appropriations Act (the "budget rider") provides
None of the funds contained in this Act may be used
by the District of Columbia Corporation Counsel or
any other officer or entity of the District government
to provide assistance for any petition drive or civil
action which seeks to require Congress to provide for
voting representation in Congress for the District of
Id. at 2681-145. An agent of the District of Columbia government
is generally prohibited from spending money unless authorized by
an Act of Congress, "and then only according to such Act." D.C.
CODE ANN. § 47-304.
On November 13, 1998, in response to the passage of the budget
rider, the District of Columbia filed a Motion for Leave to
Continue Representation by the Corporation Counsel. The District
argues that the rider violates the First Amendment by
discriminating on the basis of viewpoint against proponents of
D.C. voting rights, and that it violates the equal protection
principle embodied in the Fifth Amendment by uniquely burdening
District residents. The District "requests that the Court (1)
declare the rider unconstitutional and, therefore, void, and (2)
grant the District leave to continue in this case with full and
unfettered representation by its Corporation Counsel." D.C. Mem.
(Amended), at 2-3. In the alternative, the District requests an
order interpreting the rider so as to permit continued
participation by the Corporation Counsel in a pro bono
capacity — i.e., without the expenditure of any government funds.
For the reasons stated below, the District's alternative request
is granted, and the motion otherwise dismissed for lack of
We first consider the District's alternative request that the
Corporation Counsel be permitted to proceed pro bono. In the
District's view, the budget rider does not completely bar the
Corporation Counsel from appearing on its behalf. Rather, the
District interprets the rider as merely prohibiting government
employees from spending appropriated funds in pursuit of the
litigation — through the use of "government paper, pens, law
books, computers, fax machines, copiers, telephones, office space
or furniture, heat or lights," as well as official work time.
D.C. Mem. (Amended), at 6 n. 8; see also id. at 10 n. 9, 16. The
District argues that Congress intended the rider to halt the
expense of this litigation, not the litigation itself. See id. at
18 (quoting 144 CONG. REC. H7360-61 (daily ed. Aug. 5, 1998)).
Accordingly, it contends that the Corporation Counsel — whose
staff has volunteered for the task, see id. at 16 n. 17 — should
at least be permitted to continue as pro bono counsel. The
District represents that any costs incurred in connection with
the litigation will be borne by the law firm of Covington &
Burling, which is serving as counsel for the individual District
residents in Alexander v. Daley.
None of the defendants disputes the District's reading of the
budget rider. See Executive Branch Defs. Opp., at 2 ("The
District correctly reads the statute . . . Senate Defs. Opp., at
5 (noting that the District's understanding is "plain from the
text of the provision"); House Defs. Opp., at 2 (noting that
rider is "easily construed" as District interprets it). Nor do
they oppose the Corporation Counsel's continued participation on
a pro bono basis. See Executive Branch Defs. Opp., at 21; Senate
Defs. Opp., at 6; House Defs. Opp., at 2 & n. 1. Being unopposed,
the District's request that the Corporation Counsel be permitted
to proceed pro bono is granted.
The District's request for a declaratory judgment that the
budget rider is unconstitutional, and its associated request for
leave to continue representation without fiscal limitations, are
not so easily resolved. Both implicate the jurisdiction of this
court. There is no doubt, of course, that a federal district
court would ordinarily have subject-matter jurisdiction over the
kind of constitutional challenge presented here. The difficult
question is whether a three-judge district court like this one,
constituted under 28 U.S.C. § 2284(a), has such jurisdiction.
None of the parties addresses the jurisdictional issue at any
length. The Executive Branch defendants "assume" that Judge
Oberdorfer, to whom both Alexander
and Adams were initially assigned, will decide the District's
motion alone. Exec. Defs. Opp., at 2 n. 1. The District does
not contest that Judge Oberdorfer "may" decide it. D.C. Reply,
at 3 n. 3. Neither indicates whether they think that in so doing,
Judge Oberdorfer would be sitting as a single district judge or
as a member of the three-judge court. See 28 U.S.C. § 2284(b)(3)
("A single judge [of the three-judge court] may enter all orders
permitted by the rules of civil procedure except as provided
. . . ."). As with other jurisdictional issues, however, we have
an obligation to consider this question before we may proceed to
the merits of the District's claim. See, e.g., Rosado v. Wyman,
397 U.S. 397, 402, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).
The District of Columbia's constitutional attack on the budget
rider is not a challenge to the constitutionality of the
apportionment of congressional districts, the issue that this
three-judge court was convened to decide and over which we have
original jurisdiction. See 28 U.S.C. § 2284(a). That is not
necessarily fatal. The Supreme Court has indicated that under
certain circumstances three-judge district courts have ancillary
jurisdiction over matters extending beyond their original
jurisdiction, see Allee v. Medrano, 416 U.S. 802, 812, 94 S.Ct.
2191, 40 L.Ed.2d 566 (1974) — just as single-judge district courts
have ancillary and pendent jurisdiction (known, since 1990, as
"supplemental jurisdiction") to hear claims over which they would
otherwise lack jurisdiction, see 28 U.S.C. § 1367. See
generally Turner Broad. Sys., Inc. v. FCC, 810 F. Supp. 1308,
1312 (D.D.C. 1992) (three-judge district court) (assuming without
deciding that § ...