Dennis v. Luis

ADAMS, Circuit Judge,

concurring in part and dissenting in part.

As I see the matter before us, there are two questions this Court must address. The first is a justiciability concern that invariably arises when courts are confronted with disputes between the legislature and the executive. Second, we must decide whether the Governor of the Virgin Islands may, after a candidate for appointment to a cabinet position has been rejected by the Senate, appoint the self-same individual to the same position in an acting capacity.

Although I agree with the majority that Arnold Golden may properly be enjoined from serving as the Acting Commissioner of Commerce of the Virgin Islands, I reach that conclusion by a considerably different route. Thus I write separately not only because I am concerned about the majority’s approach to adjudicating a conflict between the executive and legislative branches of the Virgin Islands, but also because I am persuaded that, on the merits, the majority has misapplied provisions of the Virgin Islands Code that are applicable to this case. Rather than rely on a questionable construction of the ambiguous language of 3 V.I.C. § 64(a), I would hold more narrowly that under §§ 64(b)(3) and (c) Mr. Golden could not legally servé as acting commissioner after the Senate had rejected his appointment as permanent commissioner. Insofar as the majority suggests that even a portion of Mr. Golden’s tenure as acting commissioner was proper under the Code, I must respectfully dissent.

I.

Before explaining his decision on the merits, the district judge in this case observed:

I might say at the outset [that this lawsuit] has all the earmarks and trappings of one of our not infrequent clashes between two of our coordinate branches of government, which, with a little discussion, some cooperation and a little give on each side, might be resolved without the intervention of the third coordinate branch.

But it appears that there is more willingness to litigate than to discuss, and so this case is here before the court.

Dennis v. Luis, Civ. No. 83-322, Tr. at 2 (D.V.I. Dec. 23, 1983); App. at 125. Having said that, however, the district judge announced his decision without discussing the advisability of a judicial resolution of the intrabranch dispute. Given the lack of guidance from our Court on the subject, the omission is not surprising.

Underlying the case law on the subject of legislator plaintiffs is a conviction embodied in the separation-of-powers doctrine: the vigorous functioning of democratic institutions is best served when political clashes are settled by political officials, and not by judges. Thus, the courts have attempted to articulate doctrines of justicia-bility to provide principled meaning to a strong presumption against judicial resolution of intrabranch disputes. Unfortunately, this philosophy of judicial restraint has sometimes been submerged in a debate over legal labels. Courts have sought to analyze the issue in terms of “legislator standing,” “remedial discretion,” “ripeness,” and “political questions.” But despite the controversy about the proper analytic categories, there is no disagreement about the core meaning of these doctrines: courts should not cut short the political process by awarding a judicial victory to a legislator who has lost, or has not attempted to prevail, in the political sphere.

As is shown by the experience of the District of Columbia Circuit with congres *639 sional plaintiffs, the fundamental problem is to develop workable legal criteria for exercising judicial restraint. Before the Supreme Court’s decision in Goldwater v. Carter, 444 U.S. 996 , 100 S.Ct. 533 , 62 L.Ed.2d 428 (1979) (mem. op.), the District of Columbia Circuit treated the justiciability problem as a question of “legislator standing.” In the mid-1970’s, the Court of Appeals applied a rather pliable rule of legislator standing, permitting, for example, Senator Kennedy to challenge President Nixon’s pocket veto of a health care bill, simply because the Senator sought to “vindicate the effectiveness of his vote.” Kennedy v. Sampson, 511 F.2d 430, 436 (D.C.Cir.1974). By the late 1970’s, however, the Court of Appeals had developed a stricter rule, grounded in the separation-of-powers doctrine. See Goldwater v. Carter, 617 F.2d 697, 702 (D.C.Cir.) (per curiam) (en banc), judgment vacated on other grounds, 444 U.S. 996 , 100 S.Ct. 533 , 62 L.Ed.2d 428 (1979); Harrington v. Bush, 553 F.2d 190 (D.C.Cir.1977). The en banc Goldwater Court provided the clearest pronouncement of the restrictive test for legislator standing:

To be cognizable for standing purposes, the alleged diminution in congressional influence must amount to a disenfranchisement, a complete nullification or withdrawal of a voting opportunity; and the plaintiff must point to an objective standard in the Constitution, statutes or congressional house rules, by which disenfranchisement can be shown.

617 F.2d at 702 .

After the Supreme Court’s decision in Goldwater, a panel of the District of Columbia Circuit developed a two-step approach to determine the justiciability of actions brought by congressional plaintiffs. In Riegle v. Federal Open Market Comm., 656 F.2d 873 (D.C.Cir.1981), the Court declared that the standing of congressional plaintiffs should be analyzed under traditional doctrines of private party standing. Relying on an article by Judge McGowan, Congressmen in Court, 15 Ga.L.Rev. 241 (1981), Riegle held that separation-of-powers problems should be dealt with through the exercise of the court’s “remedial discretion.” When legislator-plaintiffs have available “in house” or “collegial remedies” in the political process, courts should refrain from using their equitable powers lest they “improperly interfere with the legislative process.” 1 Riegle, supra, 656 F.2d at 882 .

In my view, the Riegle analysis would appear acceptable, as long as the en banc Goldwater criteria for legislator standing are incorporated in that analysis. 2 Keeping in mind that the essential point of these doctrines is to encourage political solutions to political problems, I believe a two-part test should be applied. First, to establish standing, legislator-plaintiffs must allege injury unique to their status as legislators by showing, in Goldwater 1 s terms, “a complete nullification [of a past vote] or withdrawal of a voting opportunity.” 617 F.2d at 702 . Legislators who claim withdrawal of an opportunity to vote must show a clearly vested right to vote. But if they claim nullification of a past vote, they must distinguish their interest as legislators *640 from the general interest of citizens in “governmental observance of the Constitution.” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 482 , 102 S.Ct. 752, 763 , 70 L.Ed.2d 700 (1982). The legislators may show, as in Coleman v. Miller, 307 U.S. 433 , 59 S.Ct. 972 , 83 L.Ed. 1385 (1939), that as an aggregate they constitute a controlling bloc of the legislative branch. In Coleman , the Kansas Senate had split evenly over ratification of a constitutional amendment, but the tie had been broken and the amendment approved because of the vote of the Lieutenant Governor. Suit was filed by the twenty senators who voted against ratification, and the Supreme Court held that the group had standing:

Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.

307 U.S. at 438 , 59 S.Ct. at 975 . As a bloc, the Coleman plaintiffs could identify an injury to the legislative branch. Their aggregate injury was therefore unlike the injury inflicted on all citizens when the law is violated, since it was grounded in their status as members of the state senate.

Once legislator-plaintiffs have properly alleged standing, they must show that judicial resolution of the dispute would not prematurely terminate the political process. This may be determined by pointing to “an objective standard in the Constitution, statutes or congressional house rules.” Goldwater, supra, 617 F.2d at 702 . When there is no such clearly established law, then usually either the political branches have failed to enact definite rules or the issue is committed to the discretion of the executive. Thus, if legislator plaintiffs are unable to point to clear law, they should be required to produce evidence that the political process has run its course.

Admittedly, this proposed two-step approach is not comprehensive. But it is at least a first step in supplying standards of restraint by which courts can encourage political resolutions of intrabranch disputes. Although the majority’s approach may produce similar results, I am concerned by two sources of open-endedness in its analysis. First, the majority declines to adopt the Riegle doctrine of “remedial discretion;” yet it follows the Riegle Court’s decision to employ conventional standing doctrine. This partial borrowing ignores the fact that the District of Columbia Circuit moved away from its more restrictive doctrine of legislator standing only because it decided to address separation-of-powers problems at the “remedial discretion” stage of the Riegle approach. Second, the majority gives no content to its view of how the separation-of-powers doctrine can be preserved in adjudicating intrabranch disputes. Instead, the majority simply distinguishes Riegle from the facts of the case before us. I fear that this approach will, in the future, leave district courts with little more guidance than has been provided in the present case.

II.

Approaching this controversy with the caution informed by a concern for the separation-of-powers, I am persuaded that the claim made by the eight senators in the present case overcomes the strong presumption against judicial interference in an intrabranch dispute.

In a 1978 amendment to 3 V.I.C. § 64, the legislature filled an important gap in the statute governing appointment of temporary commissioners:

Nothing in this section shall be interpreted to permit a recess appointee to serve in any capacity, other than an acting capacity, prior to his confirmation by the Legislature. No recess appointee may hire or dismiss personnel, significantly alter department or agency programs established prior to his appointment, or in *641 stitute new programs prior to his confirmation by the Legislature.

3 V.I.C. § 64(c) (as amended April 19, 1978, No. 4130, § 1, Sess.L. 1978, p. 81).

This provision eliminated two critical deficiencies in the Virgin Islands Code. First, § 64(c) makes clear that whether temporary commissioners are called “acting” commissioners or “recess” commissioners is not determinative; in either case, they are limited to the minimal role of caretaker for the department. 3 Second, § 64(c) provides the Governor with a strong incentive to obtain confirmation of a permanent commissioner as soon as possible, for until then, the Governor is, because of the limits on an acting commissioner, frustrated in any effort to implement new departmental policy.

In light of § 64(c), it becomes apparent that another provision — forbidding a recess appointment of a rejected nominee— squarely applies to the case before us. Under 3 V.I.C. § 64(b)(3) (emphasis added):

No money shall be paid from the treasury of the Virgin Islands, as compensation, to any person appointed during the recess of the Legislature to fill a vacancy in an office which is required by law to be filled with the advice and consent of the Legislature if the vacancy existed while the Legislature was in session, until such appointee has been confirmed by the Legislature. The provisions of this subsection shall not apply if ... (3) a nomination for such office was rejected within ten days prior to the termination of the session and a person other than the one whose nomination was rejected thereafter receives a recess appointment.

Although this section of the Code is expressed in terms of compensation, it is nonetheless a substantive limitation on the appointment powers of the Governor. Thus, the convoluted structure of § 64(b)(3) should not be permitted to obscure its relevance to Golden’s situation: whatever else the Governor could do to fill the vacancy at the Commerce Department pending approval of a permanent commissioner, he could not fill that vacancy with a recess commissioner — or, as § 64(c) shows, an acting commissioner — whose nomination had been rejected by the legislature. 4 Once rejected for a permanent appointment, Golden could not validly serve as head of the Commerce Department, unless his nomination had been duly confirmed upon resubmission of his name to the legislature.

Given the plain command of §§ 64(b)(3) and (c), I believe that the legislator-plaintiffs in this case had standing and could rely on clearly established law. Because the plaintiffs are eight of the ten senators who voted against Golden’s appointment, they constitute a controlling bloc in the same sense as the twenty senators in Coleman . As in Coleman , the senators in the case before us had votes “sufficient to defeat [the challenged action]”; thus their votes, as a bloc, were “held for naught.” The senators could base standing on the withdrawal of a voting opportunity, since Golden’s name had to be resubmitted to the legislature before he could validly head the Commerce Department in any capacity. Additionally, there can be no question that the political process had run its course, since §§ 64(b)(3) and (c) provide an unambiguous rule governing this case. Finally, it is of crucial importance that the governor's appointee was precisely the individual rejected by the legislators. Thus this dispute is not an attempt to force the courts to intervene in a purely political controversy between coordinate branches of government, but rather involves an allegation that *642 the constitutional authority of the legislature had been preempted.

III.

The majority concludes, as do I, that Golden must be removed from office, but relies on a different statutory provision, namely 3 V.I.C. § 64(a). This section requires that a recess appointment “shall expire at the end of the next session of the Legislature.” Reasoning that the word “session” in § 64(a) must include only “regular” sessions, and not the “special” sessions called by the Governor or the Senate President, the majority looks to the senate rules to determine when Golden’s recess appointment expired. 5 Since Golden was appointed during a recess on November 22, 1983, and since the next regular legislative session commenced “on the second Monday in January,” the majority concludes that Golden could no longer serve as the acting commissioner after the January session. The majority apparently assumes that the January session ends “four calendar weeks” after “the first Monday in March.” In 1984, that day fell on April 2. The majority therefore seems to hold that Golden validly served as acting commissioner for the 4V2 month period from November 22, 1983 to April 2, 1984. I see three flaws in such an analysis. First, under the majority’s theory, the plaintiffs in this case failed to state a claim until April 2, 1984. Thus, at all times prior to that date — when suit was filed on December 7, 1983, when the district court granted injunctive relief on December 23, 1983, and when argument took place before our Court on February 27, 1984 — Golden was, according to the majority, acting legally as the Commissioner of Commerce. I have considerable doubt whether a court may, simply through the passage of time pending appellate disposition, salvage an otherwise inadequate claim.

Another shortcoming in the majority’s analysis is its reliance on a broad construction of a highly ambiguous section of the Code, despite the ready basis for a narrow holding predicated on the plain meaning of another provision. The majority interprets the term “session” in § 64(a) as including only “regular” sessions, not “special” ones. This conclusion rests solely on the conjecture that a different conclusion would produce “utter chaos” in the government of the Virgin Islands, Maj.Op. at 637, a matter about which we, as appellate judges operating primarily on the mainland, have little expertise. Having construed “session” to mean “regular session,” the majority then concludes that the Senate Rules define “regular session” to mean any one of the four-week or six-week periods specified as times when a session “shall continue.” As I read the Senate Rules, this language could just as sensibly be interpreted to mean that a “regular session” extends over a full year — as is the case in the United States Congress — beginning annually in January, with the Senate convening mandatorily during three specified periods. The majority’s assumption that a “session” consists of some subpart of the year demarked by the Senate Rules is unnecessarily speculative because a more narrow holding, based on the clear command of §§ 64(b)(3) and (c), is readily at hand. 6

My final concern with the majority’s analysis is jurisprudential. In the ordinary civil case, it may be appropriate for a court to engage in the interstitial interpretation necessary to give meaning to language as ambiguous as that of § 64(a). See generally, Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527 (1947). But this case does not arise out of a clash between two private parties, or between a private party and the government. Rather, it involves a political struggle between the executive and legislative branches. When courts deal with the deli *643 cate working relationship between two coordinate branches, they should hesitate before devising solutions that may alter the balance of political power. I fear that the majority’s solution to the ambiguities of § 64(a) will establish an unfortunate precedent for future clashes between the Governor and the Senate of the Virgin Islands. 7 Were we forced to rely on § 64(a) to resolve this case, I would contend that the law is unclear and that the legislators must come forward with evidence of an attempted political solution before invoking the aid of the courts. Thus, I join in the conclusion that judicial relief is appropriate in this case not because of the open-ended language of § 64(a), but because the political branches have already defined a clear rule in the terms of §§ 64(b)(3) and (c).

IV.

The majority has proposed a solution to one of the lacunae in the provisions of the Virgin Islands Code governing appointment of departmental commissioners. Were I a member of the Virgin Islands Senate, I might possibly consider voting in favor of such a proposal. But as members of the federal bench, our role is obviously quite different from that of the legislative branch. Most importantly, respect for the separation-of-powers doctrine counsels against judicial intervention in disputes between the legislative and the executive branches, unless the legislators seeking judicial redress have alleged injury peculiar to their status as legislators and have shown that methods of political resolution have run their course. Here, I believe, the political branches have spoken clearly and have by statute prohibited a rejected nominee, such as Golden, from serving as a caretaker commissioner, no matter what title is used for his position. Accordingly, I join the result reached by the majority insofar as it affirms the district court’s order enjoining Golden from further service as Acting Commissioner of Commerce. But te the extent that the majority holds that Golden could properly serve as acting commissioner following the rejection of his nomination, I must respectfully dissent.

. Judges Bork and Scalia have expressed vigorous opposition to Riegle's two-step analysis. See Crockett v. Reagan, 720 F.2d 1355 , 1357 (D.C. Cir.1983) (Bork, J., concurring); Van Der Jagt v. O’Neill, 699 F.2d 1166, 1177-85 (D.C.Cir. 1982) (Bork, J., concurring); Moore v. U.S., 723 F.2d 946 (D.C.Cir. 1984) (Scalia, J., concurring). They contend that the justiciability of a legislator’s lawsuit turns on the power of the court to hear the case under Article III of the Constitution and must therefore be addressed in terms of the mandatory rules of the standing doctrine, rather than the discretionary rules of equitable restraint.

. The views expressed by a majority of the Justices in the Supreme Court’s Goldwater decision are not inconsistent with the Court of Appeals criteria. Both Justice Powell’s theory that the case would not be "ripe” until political avenues of redress had been exhausted. 444 U.S. at 997-98, 100 S.Ct. at 533 -534 and Justice Rehnquist’s theory (joined by Chief Justice Burger, and Justices Stewart and Stevens) that the case involved a "nonjusticiable political question,” 444 U.S. at 1002-04, 100 S.Ct. at 536-537 , focus on the same concerns identified somewhat more precisely by the District of Columbia Circuit.

. Thus, even assuming that Golden was properly appointed as acting commissioner, he appears to have been performing functions outside the proper scope of his authority under § 64(c). The district court twice noted the Governor’s concession that Golden was performing all the duties of the Commissioner of Commerce. Dennis, supra, Tr. at 6, 14; App. at 129, 137.

. Although § 64(b) speaks in terms of money being paid from the treasury, rather than general legality of a recess appointment such as Golden’s, I do not think the drafters of the provision intended to suggest that a rejected nominee should continue to serve as a recess appointee as long as he is willing to work without pay.

. The Rules of the Senate for the Virgin Islands Fifteenth Legislature, Chapter 2, Section 201(a).

. In his oral opinion, the district judge expressly relied on § 64(b)(3) as an alternative basis for his decision. See Dennis, supra, Tr. at 12, 15; App. at 135, 138. The majority does not explain why it has not employed the district court's alternative rationale.

. Thus I believe that the majority overlooks the open-endedness of § 64(a) when it asks: "Should legislators be able to use the court to implement a victory that was won in the legislative hall and ignored in the executive mansion”? Maj. Op. at 632. This question assumes the existence of clearly established laws.