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March 24, 1999


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 that:

  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 jurisdiction.


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.

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 § ...

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