United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
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.
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.
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.
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
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.
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
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
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).
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.
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)).
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
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.
filed a timely petition for writ of certiorari, which the
Supreme Court denied. LaVergne v. Blank, 568 U.S.
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