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Lavergne v. United States House of Representatives

United States District Court, District of Columbia

September 6, 2018

EUGENE MARTIN LAVERGNE, et al., Plaintiffs,


         Eugene Martin LaVergne (“LaVergne”) and four co-plaintiffs bring this action, proceeding pro se, alleging that a constitutional amendment that was proposed in 1789 was, unbeknownst to most, ratified over 225 years ago. That amendment, they further allege, worked a dramatic change to the structure of our government by requiring that the House of Representatives include at least one representative for every 50, 000 persons in the United States. If true, that would mean that the current House of Representatives should have at least 6, 230 members, and, under Plaintiffs' theory, it would mean that all of the acts of the current Congress are invalid for lack of a quorum in the House. It would also mean that the states would need to conduct new elections to fill thousands of additional seats.

         This is not the first time that LaVergne has asked a federal court to consider this claim. The last time he did so, the U.S. District Court for the District of New Jersey dismissed his complaint sua sponte, LaVergne v. Bryson, No. 11-7117, 2011 WL 13192893 (D.N.J. Dec. 16, 2011), and the Court of Appeals for the Third Circuit summarily affirmed that decision, LaVergne v. Bryson, 497 Fed.Appx. 219 (3d Cir. 2012). The question currently before this Court is whether LaVergne is precluded from re-litigating those same claims. For the reasons explained below, the Court concludes that he is. The Court will, accordingly, DISMISS all claims asserted by Eugene Martin LaVergne in this matter.

         I. BACKGROUND

         A. LaVergne's Claims

         For present purposes, the Court need only briefly describe the claims that LaVergne and his co-plaintiffs assert in this action. Their allegations start in 1789, when the First Congress proposed to the state legislatures twelve amendments to the recently ratified Constitution, ten of which would ultimately become the Bill of Rights. As reflected in “the original 14 hand engrossed Resolutions proposing” the amendments, Am. Compl. 37, ECF No. 4, “Article the First” provided:

After the first enumeration required by the first article of the constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less that one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand persons.

Id. at 156 (Ex. J). According to LaVergne, however, this text contained a “Scrivener's error.” Id. at 37. Although the final clause, as printed, stated that the House of Representatives must include no “more than one representative for every fifty thousand persons, ” LaVergne alleges that the version of the resolution approved by the House and Senate stated that the Congress must include no “less than one Representative for every fifty thousand persons.” Id. at 38-39 (emphasis added). He acknowledges, however, that the version including the word “more” was used in “the first official printing” of the resolution and in “all subsequent ‘corrected' printings thereafter.” Id. at 39.

         Under LaVergne's theory, this was just the first mistake. Article the First, according to most history books, was never ratified by three-fourths of the states and thus never became law. In LaVergne's view, however, that understanding of history is wrong for two reasons. First, he posits that the state of Connecticut, contrary to popular belief, ratified Article the First in 1789 or 1790. Id. at 28. He reaches this conclusion by arguing that actions taken by the upper and lower houses of the Connecticut legislature in different sessions were sufficient for purposes of Article V of the Constitution, which requires “ratifi[cation] by the Legislatures of three fourths of the several States.” U.S. Const. art. V. In particular, in 1789 the lower house of the Connecticut legislature ratified the proposed amendment but the upper house failed to act, and in 1790 the upper house ratified the amendment but the lower house did not. See Mot. Dismiss Ex. 1, ECF No. 65-4 (Thomas H. Le Duc, Connecticut and the First Ten Amendments to the Federal Constitution, S. Doc. No. 75-96 (1937)). Second, he argues that Kentucky ratified the proposed amendment in 1792, and that its ratification is effective, even though Kentucky never officially reported its action. Am. Compl. 26, 30. Thus, LaVergne argues, Article the First has been “ratified by the State Legislatures of three fourths of the States . . . since at least June 21, 1792, if not earlier.” Id. at 30.[1]

         Putting these pieces together, LaVergne contends that the proposed Article the First required a representative for every 50, 000 people in the United States and that it was ratified in 1790 or 1792. As a result, he further alleges, the actual “First Amendment” to the Constitution requires that there be at least 6, 230 members of the United States House of Representatives. The states must, accordingly, hold elections to fill these positions; the federal government must conduct a new apportionment; and the House cannot act without a quorum of at least 3, 116 members.

         B. Previous Litigation

         On December 6, 2011, LaVergne filed a similar complaint in the U.S. District Court for the District of New Jersey. That case, LaVergne v. Bryson, named some, but not all, of the same defendants named in this case. Compare Complaint at 1, LaVergne v. Bryson, No. 11-7117 (D.N.J. Dec. 16, 2011) [hereinafter Bryson Compl.], with Am. Compl. 1-16. As in the present case, LaVergne alleged in Bryson that Article the First was ratified and that, as a result, the decennial apportionment of the House and the statute authorizing that apportionment, 2 U.S.C. § 2a, are unconstitutional. See Bryson Compl. 25-31, 37-41. Along with his complaint, LaVergne filed a motion for an order to show cause why the district court should not issue a preliminary injunction, writ of mandamus, and declaratory judgment, and he requested that a three-judge court hear and determine his case. See Proposed Order Show Cause, LaVergne v. Bryson, No. 11-7117 (D.N.J. Dec. 16, 2011). Among other theories of relief, LaVergne argued, as he does here, that Article the First was fully ratified when the Kentucky legislature approved it on June 24, 1792. See Bryson PI Mem. 58-61; Am. Compl. 28-30. At that point, LaVergne did not make a similar argument with respect to Connecticut. See Bryson PI Mem. 58-61; see also Bryson Compl. 27-30.

         In response to LaVergne's motions, the district court did three things. First, it denied LaVergne's motion for an order to show cause, principally on the ground that LaVergne had failed to show that expedited consideration of events that occurred over two centuries ago was warranted. Bryson, 2011 WL 13192893, at *1. Second, it declined to convene a three-judge court on the ground that LaVergne's claims were “wholly insubstantial or completely without merit.” Id. (quoting United States v. Saint Landry Par. Sch. Bd., 601 F.2d 859, 863 (5th Cir.1979)). Third, it dismissed LaVergne's complaint sua sponte. Id. at *2.

         In explaining its decision, the district court identified four considerations: First, the court reasoned, “recent case law suggest[ed]” that the “convention of a three-judge panel [was] not required.” Id. The court then cited to the Supreme Court's 2010 order vacating the merits decision of a three-judge court in a reapportionment case and remanding the action with instructions to dismiss the complaint for lack of jurisdiction. Id. (citing Clemons v. U.S. Dep't of Commerce, 562 U.S. 1105 (2010) (mem.) (vacating and remanding 710 F.Supp.2d 570 (N.D. Miss. 2010))). The Bryson court continued:

Second, Plaintiff's standing is questionable when his interest is considered in relation to individuals such as New Jersey Governor Chris Christie, who implemented the redistricting; Congresspersons whose seats were abolished; and presidential candidates who may fear an election result like that of Vice President Gore, who had won the popular vote but lost in the electoral college vote to George Bush. Third, the ability of a pro se Plaintiff who is suspended from the practice of law to professionally and adequately represent such a case which [a]ffects every state is tenuous. Finally, the longstanding principles establishing representation in our republican form of government have been thoroughly evaluated since the Constitutional Convention.

Id. (footnote omitted).

         On appeal, LaVergne argued that the district court erred in concluding that it lacked jurisdiction, erred in declining to convene a three-judge court, and erred in dismissing his claims. Rather than seek a remand, however, he requested that the Court of Appeals “determine [his] [c]onstitutional claims de novo in a summary manner” and issue an injunction in the first instance. Brief of Appellant at 30, LaVergne v. Bryson, 497 Fed.Appx. 219 (3d Cir. 2012) (No. 12-1171) [hereinafter Bryson Appellant's Br.]. By this time, moreover, LaVergne had refined his theory regarding the alleged ratification of Article the First, arguing that both Kentucky and Connecticut had ratified the proposed constitutional amendment. Id. at 4-5.

         The Third Circuit summarily affirmed the district court's dismissal in a per curiam opinion. LaVergne v. Bryson, 497 Fed.Appx. 219, 220 (3d Cir. 2012). As an initial matter, the panel agreed with the district court that LaVergne lacked standing. Id. at 221. The court rejected LaVergne's reliance on cases involving vote dilution as a basis for establishing standing, noting that the remedy that LaVergne sought-an increase in representation for all of the states-would not “change the size of New Jersey's congressional delegation relative to the size of other states' delegations.” Id. Moreover, “at most” LaVergne “allege[d] ‘a type of institutional injury' . . . ‘which necessarily damages' all United States voters ‘equally.'” Id. (quoting Raines v. Byrd, 521 U.S. 811, 821 (1997)).

         With respect to LaVergne's Article the First claim, the Third Circuit also based its decision on the alternative ground that the claim was non-justiciable. Id. at 222. As the panel explained:

Putting aside the considerable factual and historical problems with [LaVergne's] argument, “[t]he issue of whether a constitutional amendment has been properly ratified is a political question.” United States v. McDonald, 919 F.2d 146, 1990 WL 186103 (table), at *3 (9th Cir.1990) (per curiam) (citing Coleman v. Miller, 307 U.S. 433, 450 (1939)). In Coleman, the Supreme Court held that “the question of the efficacy of ratifications by state legislatures . . . should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.” 307 U.S. at 450. See also Luther v. Borden, 48 U.S. (7 How.) 1, 39 (1849) (holding that “the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision”); United States v. Foster, 789 F.2d 457, 463 n.6 (7th Cir. 1986) (holding that the issue of “the validity of an amendment's ratification [is] a non justiciable political question” and citing, among other cases, Leser v. Garnett, 258 U.S. 130, 137 (1922), and Coleman, 307 U.S. at 450.

Id. (alterations in original). With respect to two other claims that LaVergne pressed in that case, but does not press here-non-delegation and separation of powers-the panel held that, even if justiciable, those claims failed on the merits. Id.

         Finally, the Third Circuit rejected LaVergne's contention that the district court erred in denying his request to convene a three-judge court. The panel concluded that LaVergne had waived this argument by failing to make anything more than “passing references to [the] issue” in his appellate brief, id. at 223 (quoting Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202-03 (3d Cir. 2004)), but, to the extent LaVergne did raise the issue, he did “not seek reversal on [that] basis, or remand, but rather” conceded that the panel's review of his claims would “suffice[].” Id.

         LaVergne filed a timely petition for writ of certiorari, which the Supreme Court denied. LaVergne v. Blank, 568 U.S. 1161 (2013).

         Years later, after Defendants moved to dismiss LaVergne's claims in the present action, LaVergne returned to the federal district court in New Jersey and filed a Rule 60(b)(4) motion. See Post Judgment Motion Under Rule 60(b)(4), LaVergne v. Bryson, No. 11-7117 (D.N.J. Apr. 2, 2018) [hereinafter Bryson Rule 60(b) Mot.]. That motion requested that the Bryson court vacate its previous decision on the ground that the court was empowered to act only as a three-judge court and thus, when acting through a single judge, it lacked subject-matter jurisdiction. See Bryson Rule 60(b) Mot. 7. The Bryson court denied LaVergne's motion, explaining that it had subject-matter jurisdiction to dismiss the case because its “2011 order was not based on the ...

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