United States District Court, District of Columbia
March 24, 1999
LOIS E. ADAMS, ET AL., PLAINTIFFS
WILLIAM JEFFERSON CLINTON, ET AL., DEFENDANTS. CLIFFORD ALEXANDER, ET AL., PLAINTIFFS V. WILLIAM M. DALEY, ET AL., DEFENDANTS.
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 § 1367 applies to three-judge courts, but
expressing uncertainty). To entertain the District's request for
a declaratory judgment regarding the budget rider, however, would
extend such jurisdiction further than the Court has extended it
in the past.
The District's challenge is not, for example, a
non-constitutional attack on the same federal action that is the
basis of our original jurisdiction — the resolution of which would
allow us to avoid reaching the constitutional questions at issue
in the District's underlying quest for a seat in the House of
Representatives. See Rosado, 397 U.S. at 402, 90 S.Ct. 1207
(stating that three-judge court is required to adjudicate
non-constitutional claim "in preference to deciding the original
constitutional claim"); see also Allee, 416 U.S. at 812 n. 8, 94
S.Ct. 2191; Florida Lime & Avocado Growers, Inc. v. Jacobsen,
362 U.S. 73, 85, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960). Instead, the
District's challenge to the budget rider is a constitutional
attack on a "wholly different" congressional action than the one
we were convened to consider, see Allee, 416 U.S. at 812 n. 8, 94
S.Ct. 2191 — albeit a congressional action taken to prevent the
District from spending money on litigating this lawsuit. We have
doubts as to whether we have ancillary jurisdiction as a
three-judge court to consider an attack on such a distinct
congressional action. See Perez v. Ledesma, 401 U.S. 82, 86-87,
91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (holding that three-judge
court, authorized to hear actions to enjoin state laws on
constitutional grounds, did not have jurisdiction over a related
attack on a similar local ordinance); see also Public Serv.
Comm'n v. Brashear Freight Lines, 312 U.S. 621, 625, 61 S.Ct.
784, 85 L.Ed. 1083 (1941) (holding that motion for post-judgment
damages "raised questions not within the statutory purpose for
which the two additional judges had been called").
Nor does the District's challenge to the budget rider
"involv[e] detailed factual inquiries common with and ancillary
to the constitutional challenge . . . supporting the three-judge
court's jurisdiction." Allee, 416 U.S. at 812 n. 8, 94 S.Ct.
2191. To the contrary, there are no factual issues common to both
challenges. Hence, the attack on the budget rider would not
satisfy the statutory requirement for supplemental jurisdiction,
which incorporated the test
for pendent jurisdiction set forth in United Mine Workers v. Gibbs.
See 28 U.S.C. § 1367 (authorizing supplemental jurisdiction
"over all other claims that are so related to claims in the
action within such original jurisdiction that they form part
of the same case or controversy"); Gibbs, 383 U.S. 715, 725,
86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (requiring that both
claims "derive from a common nucleus of operative fact"); see
also Turner Broad., 810 P.Supp. at 1313 (noting that § 1367
incorporated Gibbs test); CHARLES ALAN WRIGHT, LAW OF FEDERAL
COURTS § 19, at 120-21 (5th ed. 1994) (same).
The District suggests that we have "inherent" authority to
resolve its challenge to the budget rider, because the issue is
ancillary to the court's supervision of attorney representation
during the course of the apportionment litigation. See, e.g.,
American Iron & Steel Inst. v. E.P.A., 115 F.3d 979, 986
(D.C.Cir. 1997) ("`[Q]uestions ancillary to, or growing out of,
the main action . . . may be taken cognizance of by the court and
determined, since such jurisdiction is in aid of its authority
over the principal matter.'") (quoting Morrow v. District of
Columbia, 417 F.2d 728, 737-38 (D.C.Cir. 1969)). When used in this
sense, the term "ancillary jurisdiction" extends to matters that
"must be settled to protect the integrity of the main proceeding
or to insure that the disposition in the main proceeding will not
be frustrated." Morrow, 417 F.2d at 740. But resolution of the
District's constitutional claim is not necessary to adjudicate
the apportionment challenge at the heart of this proceeding. No
one has moved to disqualify the Corporation Counsel from
representing the District, and we have granted its request to
proceed pro bono with the assistance of Covington & Burling. See
D.C. Mem. (Amended), at 26. The Corporation Counsel states that
continued representation on this basis, "while less than ideal,
is feasible." Id.
Finally, even if we do have authority to consider the
District's constitutional attack on the rider under a theory of
ancillary jurisdiction, that authority is discretionary. See
Hagans v. Lavine, 415 U.S. 528, 544, 94 S.Ct. 1372, 39 L.Ed.2d
577 (1974) (suggesting that even when three-judge court has
jurisdiction over ancillary claim, "the most appropriate course"
may be to remand it to single district judge rather than
"consum[e] the time of three federal judges in a matter that was
not required to be determined by a three-judge court") (quoting
Rosado, 397 U.S. at 403, 90 S.Ct. 1207); cf
28 U.S.C. § 1367(c); Diven v. Amalgamated Transit Union
Int'l & Local 689, 38 P.3d 598, 601 (D.C.Cir. 1994) (noting
that § 1367(c) "fairly exudes deference to judicial discretion");
Turner Broad., 810 F. Supp. at 1314. As noted above, resolution
of the District's attack on the budget rider is not necessary to
decide the apportionment dispute for which we were constituted,
and would not avoid decision on that dispute. To the contrary, to
decide the District's claim would be to reach constitutional questions
we need not reach, asserting authority we may not have. Under
these circumstances, we decline to exercise any discretionary
jurisdiction we may have over this claim.
Had the District's challenge to the constitutionality of the
budget rider been articulated in its complaint, we might have
severed and remanded it for assignment to a single district judge
by the U.S. District Court for the District of Columbia. See
Rosado, 397 U.S. at 402, 90 S.Ct. 1207; Turner Broad., 810 F.
Supp. at 1315. As a free-standing motion, however, there is no
cause of action for us to sever or remand. In its reply
memorandum, the District proposes that we consider its motion as
a request to amend or supplement the complaint by adding a count
challenging the constitutionality of the rider. See D.C. Reply,
at 5 n. 6. But the District has not appended such a proposed count
to its motion, and we decline to draft one on our own. See Kowal
v. MCI Communications
Corp., 16 F.3d 1271, 1280 (D.C.Cir. 1994) (affirming denial of
a "`bare request'" to amend complaint, unaccompanied by motion
or proposed amended complaint). If the District is dissatisfied
with the partial relief it has obtained, it remains free to file
a new complaint in the district court for assignment to a single
district judge. For the foregoing reasons, we grant the District
of Columbia's unopposed request that its Corporation Counsel be
permitted to continue representing the District without expending
government funds. In all other respects, we dismiss for lack of
jurisdiction the District's Motion for Leave to Continue
Representation by the Corporation Counsel.
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