Shook, Karen v. DC Fincl Respsble

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 1997 Decided January 6, 1998

No. 97-7087

Karen Shook, et al.,

Appellants

v.

District of Columbia Financial Responsibility

and Management Assistance Authority,

Appellee

Appeal from the United States District Court

for the District of Columbia

(96cv2601)

Barbara S. Wahl argued the cause for appellants, with

whom Evan S. Stolove and Ronald C. Jessamy were on the

briefs.

Daniel A. Rezneck argued the cause and filed the brief for

appellee.

Alan B. Morrison argued the cause for amici curiae

Missionary Baptist Ministers Conference for Washington

D.C. and Vicinity, et al.

Before: Silberman, Williams, and Garland, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: Appellants challenge an order

issued by the District of Columbia Financial Responsibility

and Management Assistance Authority (Control Board), di-

vesting the District of Columbia Board of Education of con-

trol over the District's public schools and transferring the

vast majority of the Board of Education's powers to an

Emergency Transitional Education Board of Trustees. The

district court dismissed appellants' claims that the order

exceeded the scope of the Control Board's statutory authority

and violated appellants' Fifth Amendment rights. We affirm

in part and reverse in part.

I.

The District of Columbia Board of Education was created

by Congress in 1906. At the time of its inception, its nine

members were appointed by the judges of the Supreme Court

of the District of Columbia (something of a forerunner to the

present federal courts). Congress placed "control" of the

District's public schools in the Board of Education, giving it a

wide range of powers, including determination of general

educational policy, appointment of teachers, and selection and

supervision of the Superintendent. In 1968, Congress

changed the method of selecting the Board of Education to

election by District citizens. Five years later, Congress

passed the District of Columbia Self-Government and Gov-

ernmental Reorganization Act (Home Rule Act), which grant-

ed greater rights of self-determination to District citizens and

set forth the structural framework of the District government

in the District Charter. Similar in certain respects to a state

constitution, the Charter established the Board of Education

as one of five independent agencies existing outside the

control of the executive or legislative branches of the District

government. Home Rule Act ' 495, D.C. Code Ann.

s 31-101 (1981). Under the Charter, the Board of Education

retained all authority that previously had been granted to it

by Congress, including "control of the public schools." The

Board of Education is required to appoint a Superintendent

who "shall have the direction of and supervision in all matters

pertaining to the instruction in all the schools under the

Board of Education." D.C. Code Ann. s 31-107 (1981). The

Superintendent may be removed at any time by the Board of

Education "for adequate cause affecting his character and

efficiency as Superintendent." D.C. Code Ann. s 31-110

(1981).

In 1995, 22 years after the advent of home rule, Congress

found that the District government was in the midst of a

"fiscal emergency," plagued by "pervasive" mismanagement

and "fail[ing] to deliver effective or efficient services" to

residents. District of Columbia Financial Responsibility and

Management Assistance Act of 1995, Pub. L. No. 104-8,

s 2(a)(1), (2) & (4), 109 Stat. 97, 98 (1995) (FRMAA). In

response, it established what is popularly known as the

Control Board. Composed of five members appointed by the

President of the United States, the Control Board has been

given wide-ranging powers to improve the District govern-

ment's operations.

In 1996, Congress amended the FRMAA to strengthen the

Control Board. Under section 207(d), it was given the ability

to issue:

such orders, rules, or regulations as it considers appro-

priate to carry out the purposes of this Act and the

amendments made by this Act, to the extent that the

issuance of such an order, rule, or regulation is within

the authority of the Mayor or the head of any depart-

ment or agency of the District government, and any such

order, rule, or regulation shall be legally binding to the

same extent as if issued by the Mayor or the head of any

such department or agency. (Emphasis added).

The Control Board, exercising power under that section,

issued an order on November 15, 1996, reorganizing adminis-

tration of the District's public schools. After finding what it

perceived as the alarming condition of the school system, the

November Order "established a 9-member Emergency Tran-

sitional Education Board of Trustees ... to assume immedi-

ate responsibility for the operation and management of the

District of Columbia public school system." 1 November Or-

der at p 2. The Board of Trustees was delegated "all the

authority, powers, functions, duties, responsibilities, exemp-

tions, and immunities of the Board of Education." Id. at p 6.

The Order also discharged the Superintendent and re-

designated his position as the CEO-Superintendent, an agent

of the Control Board. The Control Board asserted the power

to appoint the first CEO-Superintendent, but delegated the

responsibility to appoint his successors to the Board of Trust-

ees subject to the Control Board's approval. The Control

Board or the Board of Trustees with the approval of the

Control Board was empowered to remove the Superintendent

from office at will. Id. at pp 7, 21. The Board of Education

was left only with authority to license charter schools and to

provide advice to the Board of Trustees, although its Presi-

dent was made a member of the Board of Trustees.

The Control Board's order relied on authority under sec-

tion 207(d) to step into the shoes of the Board of Education,

and with that power it in turn relied on D.C. Code section

31-107, which reads in part, "[t]he Board of Education is

authorized to delegate any of its authority to the Superinten-

dent. The Superintendent is authorized to redelegate any of

his or her authority subject to the approval of the Board."

The order, however, provides for a direct delegation from the

__________

1 The Board of Trustees is made up of five members appointed

by the Control Board, a parent with at least one child in the District

public schools (selected by the Control Board from a list of three

parents provided by the Mayor), a teacher in the District public

schools (selected by the Control Board from a list of three teachers

provided by the Council), the CEO-Superintendent of the public

school system, and the President of the Board of Education. No-

vember Order at p 2.

Control Board to the Board of Trustees and a direct delega-

tion from the Control Board to the Superintendent to perform

all the duties theretofore performed by the old Superinten-

dent as well as any other powers delegated by the Board of

Trustees.

Appellants are 11 present and former members of the

Board of Education who voted in the November 1996 Board

of Education elections and sued in the district court seeking

declaratory and injunctive relief. They claimed for a number

of reasons that the order exceeded the Control Board's

authority and even violated the Constitution by abridging

their Fifth Amendment right to vote for school board mem-

bers. The district court rejected all of appellants' claims on a

motion to dismiss. Addressing appellants' argument that

even if the Control Board had the power to step into the

shoes of the Board of Education it surely could not, in that

capacity, delegate the Board of Education's responsibility to a

Board of Trustees--it could only delegate to the Superinten-

dent--the court said,

In promulgating the November Order, the Control Board

delegated nearly all of the Board of Education's authori-

ty to the Board of Trustees. Some of that power has

been re-delegated by the Board of Trustees to the CEO-

Superintendent. D.C. Code section 31-107 clearly con-

templates that such a delegation would be lawful if

undertaken by the Board of Education itself to the

Superintendent, and by the Superintendent to a third

party. Therefore, the delegation, when undertaken by

the Control Board, standing in the Board of Education's

shoes, must also be lawful under FRMAA section 207(d).

Shook v. D.C. Fin. Responsibility and Management Assis-

tance Auth., 964 F. Supp. 416, 429 (D.D.C. 1997) (emphasis

added).

II.

The Control Board contends, prompted by our own request

that both parties discuss the issue, that we lack jurisdiction to

review its action because section 207(d)(3) of the statute

creating the Control Board provides that: "[t]he decision by

the [Control Board] to issue an order, rule, or regulation

pursuant to this subsection shall be final and shall not be

subject to judicial review." We certainly respect congression-

al limitations of judicial review, see, e.g., Ayuda, Inc. v.

Thornburgh, 880 F.2d 1325, 1339-40 (D.C. Cir. 1989), vacated,

498 U.S. 1117 (1991), aff'd on remand, 948 F.2d 742 (D.C. Cir.

1991), vacated sub nom. Ayuda, Inc. v. Reno, 509 U.S. 916

(1993), aff'd on remand, 7 F.3d 246 (D.C. Cir. 1993), cert.

denied, 513 U.S. 815 (1994), but we are bound to follow the

Supreme Court's doctrine under which "[t]he presumption in

favor of judicial review may be overcome only upon a showing

of 'clear and convincing evidence' of a contrary legislative

intent." Traynor v. Turnage, 485 U.S. 535, 542 (1988) (citing

Abbott Lab. v. Gardner, 387 U.S. 136, 141 (1967) (citations

omitted)).

With that in mind, we note that the preclusion of review

language is rather peculiar. It does not say that an order

issued by the Control Board is immune from judicial review,

but rather that the decision to issue such an order is not

reviewable. Turning to the legislative history for clarifica-

tion, we find in the Conference Report accompanying the

1996 Amendments an explanation that the language was

designed to "waive[ ] all judicial review as to the authority of

the control board to issue orders, rules, or regulations but

does not waive judicial review as to the content of the orders,

rules, and regulations." H.R. Conf. Rep. No. 104-863, at 1182

(1996). We confess that we are uncertain as to what line

Congress was drawing. It appears most likely that Congress

meant the Control Board could not be challenged as to its

basic authority to issue orders, rules, or regulations--it is an

unpaid voluntary group that was to be recognized as exercis-

ing governmental powers--and that its internal decisionmak-

ing process was not reviewable, but the actual content of

individual orders could be challenged as exceeding its authori-

ty. The Control Board's counsel bravely asserted that no

Control Board order, no matter how outrageous (including,

hypothetically, taking control of the Prince George's County

school system), could be challenged in federal court, but we

simply do not believe that such an awesome delegation of

unchecked authority can be drawn from Congress' unclear

statutory wording (and an ambiguous Conference Report). If

we had any doubt as to that conclusion--which we do not--we

would have to consider that preclusion of judicial review is

particularly disfavored when applied to prevent a plaintiff

from asserting a constitutional claim. See Bowen v. Michi-

gan Academy of Family Physicians, 476 U.S. 667, 681 n.12

(1986).

III.

Turning to the merits, appellants present both broad and

narrow challenges to the Control Board's order. The broad

challenge--contesting the Control Board's authority to en-

croach into the domain of the Board of Education--is based

primarily on the claim that the Control Board's power is

limited vis-