UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EUGENE MARTIN LAVERGNE, et al.,

Plaintiffs,

v. Civil Action No. 17-793 (CKK-CP-RDM) UNITED STATES HOUSE OF REPRESENTATIVES, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

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,

(D.N.J. Dec. 16,

2011), and the Court of Appeals for the Third Circuit summarily affirmed that decision,

LaVergne v. Bryson,

(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.

2 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

1 LaVergne argued in the Bryson litigation and argues in his motion for summary judgment in this case that it is permissible to “round[] down” the number of states necessary to reach the “three fourths” threshold. Memorandum of Law in Support of Motion for Preliminary Injunction at 58–61, LaVergne v. Bryson, No. 11-7117 (D.N.J. Dec. 16, 2011) [hereinafter Bryson PI Mem.]; see also Mot. Summ. J. 16–17 n.1, 19, ECF No. 54.

3 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,

, at *1. Second, it declined to convene a three-judge 4 court on the ground that LaVergne’s claims were “wholly insubstantial or completely without

merit.”

(quoting United States v. Saint Landry Par. Sch. Bd.,

(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,

(2010) (mem.) (vacating and remanding

(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.

(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,

(3d Cir. 2012) (No.

12-1171) [hereinafter Bryson Appellant’s Br.]. By this time, moreover, LaVergne had refined

5 his theory regarding the alleged ratification of Article the First, arguing that both Kentucky and

Connecticut had ratified the proposed constitutional amendment.

at 4–5.

The Third Circuit summarily affirmed the district court’s dismissal in a per curiam

opinion. LaVergne v. Bryson,

(3d Cir. 2012). As an initial matter, the

panel agreed with the district court that LaVergne lacked standing.

. 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.”

Moreover, “at most” LaVergne “allege[d] ‘a type of institutional injury’ . . .

‘which necessarily damages’ all United States voters ‘equally.’”

(quoting Raines v. Byrd,

(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,

,

(table), at *3 (9th Cir. 1990) (per curiam) (citing Coleman v. Miller,

(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.”

. See also Luther v. Borden,

(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,

, 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,

(1922), and Coleman,

.

6

(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.

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,

at 223 (quoting Skretvedt v. E.I. DuPont De Nemours,

,

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[].”

LaVergne filed a timely petition for writ of certiorari, which the Supreme Court denied.

LaVergne v. Blank,

(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

merits of Plaintiff’s claim; rather, as the Third Circuit affirmed, predicated on a lack of standing

and justiciability.” LaVergne v. Bryson, No. 11-7117, slip op. at 2 (D.N.J. Apr. 2, 2018).

7 C. Procedural History

Plaintiffs filed this action on April 28, 2017, Compl., ECF No. 1, and they filed an

amended complaint on May 9, 2017, Am. Compl. The amended complaint names as defendants

the United States, various federal officials, the House, the Senate, every member of the House

and Senate (collectively, the “Federal Defendants”), and delegations from each of the fifty states

(collectively, the “State Defendants”). See id. at 1–16. Plaintiffs include Eugene Martin

LaVergne and his co-plaintiffs, Frederick LaVergne, Leonard Marshall, Scott Neuman, and

Allen Cannon. Id. at 1. They seek the following relief: (1) mandamus against state officials in

Kentucky, Connecticut, and Virginia to provide “official notice” of their states’ “unreported

ratification” of Article the First, id. at 36–37; (2) mandamus against the Archivist of the United

States to “immediately declare, certify and publish that Article the First []as having become valid

. . . as a part of the Constitution of the Un[ited] States,” id.; (3) an order “correct[ing]” the

language of Article the First under the “Scrivener’s Error Doctrine” by replacing the second

“less” with “more,” id. at 40; (4) a declaratory judgment that the apportionment statute, 2 U.S.C.

§ 2a, is unconstitutional, id. at 59; (5) mandamus against various state and federal officials to

create, transmit, and implement an amended apportionment scheme, id. at 59–66; (6) a

declaratory judgment that all actions by the 115th Congress are invalid because the requisite

quorum was not present, id. at 67; and (7) an injunction preventing any member of the House of

Representatives from conducting business until the requisite number of representatives under

Article the First are sworn in, id. at 67, 73–74, 76–77.

Now before the Court are the State and Federal Defendants’ motions to dismiss

LaVergne’s claims on grounds of claim and issue preclusion. See Mot. Dismiss (State Defs.),

ECF No. 64; Mot. Dismiss (Fed. Defs.), ECF No. 65. Also before the Court is LaVergne’s 60(b)

motion “collaterally attacking” the New Jersey district court’s 2011 order dismissing LaVergne’s 8 suit and the Third Circuit’s 2012 decision affirming that order, 60(b) Mot., ECF No. 69, and

LaVergne’s motion for the imposition of Rule 11 sanctions against Defendants for “filing and

pursuing legally frivolous . . . motion[s] to dismiss,” Sanctions Mot., ECF No. 104. Because

Eugene Martin LaVergne is barred from bringing suit under the doctrine of issue preclusion, this

Court will grant the Federal and State Defendants’ motions and will dismiss all of LaVergne’s

claims. The Court will also deny LaVergne’s Rule 60(b) motion and his motion for sanctions.

II. ANALYSIS

The pending motions pose the following question: Having unsuccessfully pursued his

Article the First claim in federal court over six years ago, is LaVergne entitled to try again?

According to Defendants, the answer to that question is no. In their view, he previously filed suit

alleging that Article the First was ratified by 1792; he was unsuccessful for two reasons—non-

justiciability and lack of standing—and he is not entitled to relitigate those issues. LaVergne

disagrees, principally for two reasons. First, he contends that the district court in the Bryson case

lacked jurisdiction because it was not constituted as a three-judge court as required by statute,

and the Third Circuit lacked jurisdiction to consider any question on appeal other than whether

the district court exceeded its jurisdiction. Second, he argues that he never had the opportunity

fully and fairly to litigate his earlier claims. In addition, LaVergne separately requests that this

Court set aside the district court’s judgment and the Third Circuit’s affirmance in Bryson on the

ground that neither court had jurisdiction to address any issue other than the need to convene a

three-judge court.

A. Motions to Dismiss

The doctrine of issue preclusion, or collateral estoppel, “bars successive litigation of ‘an

issue of fact or law’ that ‘[was] actually litigated and determined by a valid and final judgment,

9 and [that was] essential to the judgment.’” Bobby v. Bies,

(2009) (quoting

Restatement (Second) of Judgments § 27 (1980) [hereinafter Restatement]). By promoting

“judicial finality,” Yamaha Corp. of Am. v. United States,

(D.C. Cir. 1992),

the doctrine reduces unnecessary expense to litigants, conserves judicial resources, and “fosters

reliance on judicial action by minimizing the possibility of inconsistent decisions,” Montana v.

United States,

, 153–54 (1979). To invoke the defense, the moving party must

show that (1) “the same issue now being raised [was] contested by the parties and submitted for

judicial determination in the prior case”; (2) “the issue [was] actually and necessarily determined

by a court of competent jurisdiction in that prior case”; and (3) “preclusion in the second case

[will] not work a basic unfairness to the party bound by the first determination.” Martin v. Dep’t

of Justice,

(D.C. Cir. 2007) (quoting Yamaha,

). In

considering the preclusive effect of a prior litigation, “it is the prior judgment that matters, not

the court’s opinion explicating the judgment.” Yamaha,

.

Defendants contend that the Bryson litigation resolved two issues that also dispose of

LaVergne’s claims in this case; in their view, the Bryson judgment precludes “LaVergne from

establishing . . . the justiciability of his claims [and from establishing] his standing to litigate

them.” Mem. Supp. Fed. Defs.’ Mot. Dismiss 9, ECF No. 65-1. As an initial matter, the Court

notes that it is far from clear that Bryson precludes LaVergne from arguing that he has standing

in the present case. The Third Circuit premised its finding of lack of standing on two grounds:

LaVergne failed to allege facts sufficient to show that his vote was diluted by the failure of

Congress and the states to implement Article the First, and LaVergne failed to allege “a

sufficiently personal injury to establish standing.” Bryson,

. In the present

case, in contrast, LaVergne identifies particular legislation that he contends has been, or is likely

10 to be, enacted in the absence of the expanded quorum that he claims Article the First requires,

and he alleges that that legislation has, or will, cause him particularized injury. See Am. Compl.

69–70, 75–77. Although this theory of standing faces substantial hurdles, issue preclusion is not

necessarily one of them. Under the “curable defect” exception to issue preclusion, a litigant

“whose claim[] [was] dismissed on jurisdictional grounds” is not precluded from re-litigating

that dismissal “if a material change following dismissal cured the original jurisdictional

deficiency.” Nat’l Ass’n of Home Builders v. EPA,

(D.C. Cir. 2015). That is at

least arguably the case here.

The Court need not, however, decide that question because there is not even a suggestion

that the Third Circuit’s justiciability holding turned on any fact or circumstance that has changed

since 2012. See Dozier v. Ford Motor Co.,

(D.C. Cir. 1983) (explaining

that the “curable defect” exception is available only where “occurrences subsequent to the

original dismissal” have “remedied” the “jurisdictional deficiency” (emphasis omitted)). To the

contrary, the Third Circuit relied solely on the proposition that “whether a constitutional

amendment has been properly ratified is a political question” and thus non-justiciable. Bryson,

(quoting McDonald,

,

(table), at *3). The

Court will, accordingly, focus exclusively on the question whether LaVergne is precluded from

relitigating that determination. 2

1. Was the Same Issue Raised, Contested, and Submitted for Determination?

The first issue preclusion factor asks whether “the same issue now being raised [was]

contested by the parties and submitted for judicial determination.” Martin,

2 In light of the Court’s holding, it also need not—and will not—address the State Defendants’ separate claim preclusion, or res judicata, argument. See Mem. Supp. St. Defs.’ Mot. Dismiss 6– 8, ECF No. 64-1.

11 (quoting Yamaha,

). Although the political question doctrine is a jurisdictional

limitation “imposed upon federal courts by the ‘case or controversy’ requirement of Art[icle]

III,” Gonzalez-Vera v. Kissinger,

(D.C. Cir. 2006) (alteration in original)

(quoting Schlesinger v. Reservists Comm. to Stop the War,

(1974)); see also

DaimlerChrysler Corp. v. Cuno,

(2006) (“The doctrines of mootness,

ripeness, and political question all originate in Article III’s ‘case’ or ‘controversy’ language.”),

that makes no difference for purposes of issue preclusion. At least in the absence of intervening

changes in the factual predicate, issue preclusion “applies to threshold jurisdictional issues” to

the same extent it applies to merits determinations. Nat’l Ass’n of Home Builders,

; see also 18A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 4436

(2d ed. 2008) (“Dismissals for want of justiciability are controlled by the same principles as

apply to want of subject-matter jurisdiction.”). “The judgment ordering dismissal” for lack of

jurisdiction, accordingly, will “preclude relitigation of the precise issue of jurisdiction that led to

the initial dismissal.” GAF Corp. v. United States,

(D.C. Cir. 1987)); see also

Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass’n,

(1982); Coll. Sports Council v. Dep’t of Educ.,

, 22–23 (D.C. Cir. 2006);

Dozier,

; Patock v. U.S. Dep’t of the Interior,

(D.D.C.

2012).

The critical question, instead, is whether the same issue raised in the present litigation

was “actually litigated” by the parties in the previous action. See Restatement § 27. An issue

was “actually litigated,” in turn, if it was “contested by the parties and submitted for

determination by the court.” Otherson v. Dep’t of Justice, I.N.S.,

(D.C. Cir.

1983). Here, there is no doubt that the Bryson defendants “contested” the justiciability of

12 LaVergne’s Article the First claim and that they “submitted” the issue “for determination by the

court.” One need look no further than the “Statement of Issues” section of the Bryson defendants

Third Circuit brief, which raised the issue in unmistakable terms: “Is Mr. LaVergne’s claim that

‘Article the First’ actually was ratified a non-justiciable political question? Answer: Yes.” See

Brief of Appellees John A. Boehner & Karen L. Haas at 1, LaVergne v. Bryson,

(3d Cir. 2012) (No. 12-1171) [hereinafter Bryson Appellees’ Br.]. They then devoted an

entire section of their brief to the contention that LaVergne’s Article the First claim raised a non-

justiciable political question.

at 35–38. In doing so, moreover, they invoked the relevant

authority, including Baker v. Carr,

(1962), which sets forth the governing test for

the political question doctrine, and Coleman,

, which held that the question

whether a constitutional amendment has been ratified “should be regarded as a political question

pertaining to the political departments.” Bryson Appellees’ Br. 35–38 (quoting Coleman,

).

The fact that LaVergne offered, at best, an incomplete and oblique response to this

argument, moreover, is immaterial. See Appellant’s Reply Brief at 2, LaVergne v. Bryson,

(3d Cir. 2012) (No. 12-1171) (asserting that his Article the First claim “is a factual

and legal claim entitled to an Article III forum”). He was on clear notice that the defendants had

raised the issue; he did not by any means concede or admit it, and, indeed, continued to press the

Third Circuit for a decision on the merits of his Article the First claim; and he simply chose not

to—or was unable to—offer a substantial response to the argument. See

The doctrine of

issue preclusion would have little force, and would not serve its purposes, if a party could avoid

the preclusive effect of a judgment by continuing to press for relief while glossing over difficult

counterarguments. See Restatement § 27 cmt. e (“When an issue is properly raised, by the

13 pleadings or otherwise, and is submitted for determination, and is determined, the issue is

actually litigated.”).

There is also no question that this case raises the “same” justiciability issue raised in

Bryson. In this case, as in Bryson, LaVergne’s claims stand on the premise that the states ratified

Article the First no later than 1792. And, as in Bryson, this Court cannot resolve that question

without first deciding whether the claim is justiciable. As a result, there is a “total identity”

between the justiciability issue raised in Bryson and the justiciability issue raised here.

Restatement § 27 cmt. c (explaining that, although “total identity” is not required, “difficult

problems” may be presented when “delineat[ing] the issue on which litigation is, or is not,

foreclosed”). Indeed, as far as we can discern, LaVergne does not argue otherwise.

We, therefore, conclude that the same issue now being raised was contested and

submitted for judicial resolution in the Bryson case.

2. Was the Issue Necessarily Determined by a Court of Competent Jurisdiction?

The second preclusion factor considers whether the issue was “actually and necessarily

determined by a court of competent jurisdiction in [the] prior case.” Martin,

(quoting Yamaha,

). LaVergne does not, nor could he, question that the Third

Circuit actually decided the issue. The court wrote in unmistakable terms that LaVergne’s claim

failed on grounds of justiciability, and it explained its rationale by relying, as the Bryson

defendants did in their brief, on the Supreme Court’s decision in Coleman. See Bryson,

.

The question whether the Bryson case “necessarily” decided the issue is slightly more

complicated. As explained above, both the district court and the Third Circuit premised their

decisions on multiple grounds. The Third Circuit, in particular, was clear that the district court

14 lacked jurisdiction to consider LaVergne’s Article the First claim because LaVergne did not have

standing and because his claim raised a non-justiciable political question. Bryson, 497 F. App’x

at 221–22. One might, as a result, argue that the Third Circuit’s non-justiciability holding was

not necessary to its judgment, and thus LaVergne is not precluded from relitigating that issue. In

other words, is a holding necessary to support a judgment when the court identifies an

independently sufficient alternative holding?

As the D.C. Circuit has observed, “[t]he cases and commentators are divided on this

issue—and understandably so, since a real dilemma is presented.” Dozier, 702 F.2d at 1193–94

(footnote omitted). On the one hand, a rule declining to give preclusive effect to alternative

grounds for a decision would mean that a case that “is doubly inadequate can be” relitigated,

while “a case inadequate in only one respect cannot.” Id. at 1194. But, on the other hand, a rule

that gives preclusive “effect to both grounds leaves the losing party who concedes the adequacy

of one [ground of decision] no appellate remedy for the patent invalidity of the other except [to

file] a frivolous appeal.” Id.

The Restatement (Second) of Judgments and the D.C. Circuit have offered a set of rules

to help navigate this dilemma. 3 To avoid the risk that a losing party might decline to appeal a

3 There is some question as to whether the precedent of the circuit in which a three-judge district court sits is binding on that court. See Joshua Douglas & Michael Solimine, Precedent, Three- Judge District Courts, and the Law of Democracy, 107 Geo. L. J. (forthcoming 2018), available at https://ssrn.com/abstract=3099771. A three-judge court’s decision is generally subject to review only by the Supreme Court,

, and the doctrine of stare decisis “commands that lower courts follow the precedent of courts who review their decisions.” Parker v. Ohio,

, 1112 n.3 (S.D. Ohio 2003) (Gwin, J., concurring). Under this framework, “logic suggests that we are not bound by circuit authority.”

Congress, however, created this structure “not [as] a grant of authority with elevated precedential stature but a withdrawal of power from a single judge.” Russell v. Hathaway,

(N.D. Tex. 1976). Moreover, failure to follow circuit law may create a lack of uniformity within the circuit.

This Court need not, however, weigh in on this debate. Even if precedent of the D.C. Circuit is not binding on this Court, it is highly persuasive.

15 dubious ground of decision because an alternative ground of decision is unquestionably sound,

the commentary to the Restatement provides: “If a judgment of a court of first instance is based

on determinations of two issues, either of which standing independently would be sufficient to

support the result, the judgment is not conclusive with respect to either issue standing alone.”

Restatement § 27 cmt. i. But, to avoid the prospect that a decision rejecting a claim as “doubly

inadequate” might lack preclusive effect, the Restatement provides: “If [a] judgment of the court

of first instance was based on a determination of two issues, either of which standing

independently would be sufficient to support the result, and the appellate court upholds both of

these determinations as sufficient, . . . the judgment is conclusive as to both determinations.”

Restatement § 27 cmt. o. Although the D.C. Circuit has yet to decide whether both prongs of

this approach are required, it has held that, if the losing party pursues an appeal that fails on both

grounds, the dilemma is avoided and “the dismissal on each ground” is entitled to preclusive

effect. Dozier,

; see also Malyutin v. Rice,

(D.D.C.

2012) (noting that Dozier uses “‘res judicata’ as the umbrella term for preclusion”).

This framework resolves the question presented here. The Third Circuit was not the

court of first instance, and it based its determination on two independently sufficient grounds.

LaVergne was not dissuaded from appealing the district court’s judgment, and he was not

dissuaded from filing a petition for a writ of certiorari seeking review of the Third Circuit’s

justiciability determination, see Petition for a Writ of Certiorari, LaVergne v. Blank,

(2013) (No. 12-778). The only wrinkle is that it is not entirely clear that the district court

dismissed LaVergne’s complaint on the same two grounds as the Third Circuit, at least raising

the possibility that the Court of Appeals was in a sense the “court of first instance” with respect

to the justiciability issue.

16 On balance, we conclude for two reasons that the district court did rely on the political

question doctrine. First, the district court held that it was not required to constitute a three-judge

court in light of the Supreme Court’s order in Clemons, which directed that the three-judge court

in that case “dismiss the complaint for lack of jurisdiction,”

. Bryson,

, at *2. Although the Supreme Court did not provide reasons for that order, the sole

jurisdictional argument that the government pressed before the three-judge district court was the

political question doctrine, and, the three-judge court addressed that jurisdictional issue (and no

other jurisdictional issue) at length. 4 See Clemons, 710 F. Supp. 2d at 573–75. Against this

backdrop, it is reasonable to infer that the Supreme Court relied on this ground, and, in any

event, it is more than reasonable to infer that the Bryson court cited Clemons for just this reason.

That conclusion, moreover, finds further support in the Bryson court’s reference to “our

republican form of government,” Bryson,

, at *2, language that evokes the

Guarantee Clause of the Constitution, U.S. Const. art. IV, § 4 (“The United States shall

guarantee to every State in this Union a Republican Form of Government”), and case law

holding that claims that rest on the Guarantee Clause are non-justiciable, see Baker,

.

But, even if we were to conclude that the district court did not base its decision on the

political question doctrine, we would still conclude that the Third Circuit’s clear reliance on that

doctrine is entitled to preclusive effect. Had the Third Circuit relied on this ground alone, there

would be no doubt that the determination would be preclusive, and we fail to see why the Third

Circuit’s alternative determination that LaVergne lacked standing should change that result. The

4 The government initially moved to dismiss on four grounds—statute of limitations, standing, laches, and the political question doctrine—but, by the time of oral argument, it “had abandoned” all of these arguments “except for the last.” Clemons,

.

17 political question defense was subject to careful consideration by the Third Circuit, see

Restatement § 27 cmt. o (preclusion available if “the losing party has . . . obtained an appellate

decision on the issue”), and there is no reason to believe that the court’s alternative holding

discouraged LaVergne from seeking further review of the court’s justiciability decision. To the

contrary, LaVergne filed a cert petition raising the issue. Under these circumstances, “the

balance tips in favor of preclusion.” Id.; see also Dozier,

(declining to decide

the “more general question” because, in that case, “the losing party did pursue an appeal”).

In LaVergne’s view, the fundamental problem is not that the Third Circuit failed to

decide the issue or that it rested its decision on alternative grounds; rather, he asserts, the

problem is that the issue was not decided “by a court of competent jurisdiction.” Martin,

(quoting Yamaha,

). In support of this contention, LaVergne relies

on

, which provides that “[a] district court of three judges shall be convened . . .

when an action is filed challenging the constitutionality of the apportionment of congressional

districts.”

(a). He argues that, under this statute, the single district court judge

who dismissed his claims in the Bryson case lacked jurisdiction, and he argues that the Third

Circuit’s appellate jurisdiction was limited to deciding whether the district court had exceeded its

jurisdiction. See Pl.’s Mem. Opp’n Mot. Dismiss 19–22, 25–27, ECF No. 70. As a result,

LaVergne continues, any conclusions that either court may have made regarding the justiciability

of his Article the First claim was made without jurisdiction and, accordingly, cannot provide a

basis for preclusion.

at 31–42. We are unpersuaded.

LaVergne ignores a long line of precedent holding that “[a] three-judge court is not

required where the district court itself lacks jurisdiction [over] the [plaintiff’s claims] or [those

claims] are not justiciable in the federal courts.” Gonzalez v. Automatic Emps. Credit Union,

18

(1974); see also Wertheimer v. FEC,

(D.C. Cir. 2001);

LaRouche v. Fowler,

(D.C. Cir. 1998); Reuss v. Balles,

, 464 n.8

(D.C. Cir. 1978); Lion Mfg. Corp. v. Kennedy,

, 840–41 (D.C. Cir. 1964). In the

words of the D.C. Circuit, Section 2284

assumes jurisdiction in the District Court over the controversy, and its provisions come into play only when that jurisdiction exists. It remains for the judge who is asked to convene a three-judge court to determine whether jurisdiction exists in the District Court; and, if he properly concludes there is no jurisdiction, his power to dismiss the complaint, as well as to deny the motion to convene a three-judge tribunal, is in no way circumscribed by Section 2284.

Lion Mfg., 330 F.2d at 840–41. That conclusion, moreover, finds support in the text of Section

2284, which precludes “[a] single judge” from “enter[ing] judgment on the merits” but does not

include a similar proscription on dismissing an action for lack of jurisdiction or as non-

justiciable.

(b)(3) (emphasis added). Nor has this understanding of Section

2284 been overtaken by more recent precedent. To the contrary, as recently as 2015, the

Supreme Court explained that the rule permitting a single district court judge to dismiss a

“wholly insubstantial or frivolous” claim implicating Section 2284 is premised on the notion

that, “[a]bsent a substantial federal question, even a single-judge district court lacks jurisdiction,

and [thus] ‘[a] three-judge court is not required.’” Shapiro v. McManus,

(2015) (quoting Gonzalez,

, with approval).

Although the district court’s decision is not crystal clear, the Third Circuit had no

difficulty in concluding that the district court had dismissed LaVergne’s claims for lack of

standing. Bryson,

. We agree and would add that other portions of the

district court’s decision further support the notion that it dismissed the action for lack of

jurisdiction. Thus, in addition to addressing standing, the district court invoked the “wholly

19 insubstantial” standard, which is itself a jurisdictional standard, see Shapiro,

,

and, as noted above, it relied on the Supreme Court’s order in Clemons, directing that a three-

judge district court dismiss that reapportionment action “for lack of jurisdiction,”

. Bryson,

, at *1–2. Our conclusion that the district court dismissed

LaVergne’s claims for lack of jurisdiction also disposes of LaVergne’s contention that the Third

Circuit lacked jurisdiction to decide any issue other than whether the district court had exceeded

its jurisdiction. As the Supreme Court has explained, “[i]t is now well settled that refusal to

request the convention of a three-judge court” and “dismissal of a complaint by a single judge”

for lack of jurisdiction “are reviewable in the courts of appeals.” Gonzalez,

&

n.19.

LaVergne’s arguments to the contrary are insubstantial. He cites LaRouche and Shapiro,

arguing that those cases demonstrate that he was entitled to a three-judge court “due to the nature

of his claims.” Pl.’s Mem. Opp’n Mot. Dismiss 41–42. In both cases, however, the court held

that the single-judge district court lacked jurisdiction to consider the merits of the claim. See

LaRouche,

(reversing the single-judge district court because it “lack[ed]

jurisdiction to decide the merits of [the] issue because the question properly belong[ed] before a

three-judge district court.” (emphasis added)); Shapiro,

(reversing “because

[the single-judge district court] concluded that the allegations failed to state a claim for relief on

the merits.” (emphasis added)). That proposition has no bearing on Bryson, which rejected

LaVergne’s claims on jurisdictional grounds.

We, accordingly, conclude that the justiciability issue was actually and necessarily

determined by a court of competent jurisdiction.

20 3. Would Preclusion Work a Basic Unfairness to the Party Bound?

The final preclusion factor requires that the Court consider whether barring LaVergne

from relitigating the justiciability of his Article the First claim would work a basic unfairness.

Martin,

. The fairness prong is implicated when the “prior proceeding[] [was]

seriously defective,” Yamaha,

(quoting Blonder-Tongue Labs., Inc. v. Univ. of

Ill. Found.,

(1971)), “when the losing party clearly lacked any incentive to

litigate the point in the first trial [and] the stakes of the second trial are of a vastly greater

magnitude,”

or when the losing party otherwise lacked the “opportunity to have his challenge

heard,” Martin,

. Although LaVergne raises several arguments why it would be

unfair to preclude him from relitigating the justiciability issue in this case, none is substantial.

First, LaVergne contends that the failure to appoint a three-judge court in the Bryson

action violated his Fifth Amendment due process rights. Pl.’s Mem. Opp’n Mot. Dismiss 44–45.

To this, LaVergne adds the contention that the Supreme Court’s decision in Shapiro constitutes

an “intervening change in the law” regarding the convening of three-judge courts.

at 46–47.

For the reasons explained above, both arguments are unfounded. A single district court judge

may dismiss a reapportionment action for lack of jurisdiction, and Shapiro merely confirmed the

settled rule that a single district court judge may not act in lieu of a three-judge court with respect

to the merits of the plaintiff’s claim.

.

Second, he argues that there exist “differences in the quality or extensiveness of the

procedures” applied in this circuit and in the Third Circuit for deciding when to convene a three-

judge court. Pl.’s Mem. Opp’n Mot. Dismiss 46; see Restatement § 28(3) (“[R]elitigation . . . is

not precluded [when] . . . [a] new determination of the issue is warranted by differences in the

quality or extensiveness of the procedures followed in the two courts”). This argument is wrong

21 for various reasons. As an initial matter, as the Court has explained at length, well-established

law from the D.C. Circuit and the Supreme Court support the approach taken by the district court

and the Third Circuit in Bryson: “A three-judge court is not required where the district court

itself lacks jurisdiction of the complaint or the complaint is not justiciable in the federal courts.”

Gonzalez,

. That was not a case, moreover, in which LaVergne received any less

process than he claims he would have—or should have—received in this circuit. Indeed, as he

requested in his appellate brief in Bryson, Bryson Appellant’s Br. 38–39, that case was decided

by three judges—albeit judges sitting as an appellate court rather than a three-judge court—and

those judges unanimously held that his Article the First Claim was non-justiciable. In short,

LaVergne received no less overall process than he claims he would have received in this circuit.

Indeed, he received three levels of review (or potential review), as opposed to the two levels of

review that come with a three-judge court.

Third, LaVergne argues that, because the district court “never at any time so much as

uttered the words or phrases Justiciable, Non-Justiciable, or Justiciability,” the court “[n]ever

[m]ade [a]ny [a]ctual [r]uling on [j]usticiability.” Pl.’s Mem. Opp’n Mot. Dismiss 49 (internal

quotation marks omitted). As a result, LaVergne asserts, justiciability was not an issue “within

the limited Subject Matter Jurisdiction of the Third Circuit.” Id. at 50. That contention is also

wrong. As explained above, the district court’s decision is best construed to have relied on the

political question doctrine as a basis for dismissal. But, even if that is not correct, the political

question doctrine was properly raised in the Third Circuit, and that defense was plainly “within

the subject matter jurisdiction” of that court. See, e.g., Momenian v. Davidson,

(D.C. Cir. 2017) (“[A]n appellate court can affirm . . . even if on different grounds than

those assigned in the decision under review.”) (quoting Danielsen v. Burnside-Ott Aviation

22 Training Ctr., Inc.,

(D.C. Cir. 1991)); Wilburn v. Robinson,

(D.C. Cir. 2007) (noting that courts of appeals may affirm “on alternative grounds, if

applicable”). Indeed, because the political question doctrine implicates the court’s Article III

jurisdiction, Zivotofsky v. Clinton,

(2012) (explaining that federal courts

“lack[] the authority to decide” a dispute implicating political questions); DaimlerChrysler,

(noting that the political question doctrine “originate[s] in Article III’s ‘case’ or

‘controversy’ language”); Schlesinger,

(explaining that the “political question

doctrine[]” is a “jurisdictional limitation imposed upon federal courts by the ‘case or

controversy’ requirement of Art[icle] III”), the Third Circuit would have had a duty to consider

the issue sua sponte, see Gonzalez v. Thaler,

, 141 (2012) (“When a requirement

goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the

parties have disclaimed or have not presented.”); Endeley v. U.S. Dep’t of Def.,

, 176–78 (D.D.C. 2017) (applying political question doctrine sua sponte); Mahorner v.

Bush,

(D.D.C. 2002) (same).

Fourth, LaVergne argues that because the Third Circuit summarily affirmed the district

court’s dismissal without permitting oral argument, he was “denied the right to fully and fairly

litigate the issues of [s]tanding and [j]usticiability” and therefore, applying issue preclusion here

is “inappropriate.” Pl.’s Mem. Opp’n Mot. Dismiss 50. The Third Circuit’s decision not to have

oral argument in Bryson in no way undermines the preclusive effect of the judgment. As the

Third Circuit explained, it “summarily affirm[ed] the judgment of the District Court” because

LaVergne’s appeal did “not raise a substantial question.” Bryson,

. Before

reaching that decision, the court reviewed the extensive briefs filed by the parties, and, as shown

by the court’s opinion, it carefully considered the arguments. The Third Circuit’s conclusion that

23 LaVergne’s arguments were insubstantial, and thus did not warrant oral argument, cannot

plausibly undercut the preclusive force of the court’s decision.

Finally, LaVergne argues that the result in Bryson is “[ad]verse to the [p]ublic interest”

and therefore should be given no preclusive effect. Pl.’s Mem. Opp’n Mot. Dismiss 51–53. That

contention hardly merits discussion. The public interest is furthered by applying settled law,

and, here, that law precludes LaVergne from bringing to this Court an issue that was raised and

decided in a prior case in which LaVergne had every opportunity to contest the issue. The

judicial process requires finality and consistency. LaVergne’s efforts to relitigate his case where

nothing has changed but the forum would serve neither of those objectives.

We accordingly conclude that application of issue preclusion in these circumstances

would not work a “basic unfairness” but, to the contrary, would serve the public interest.

* * *

It follows from the foregoing considerations that LaVergne is precluded from disputing

that his Article the First claim is non-justiciable. As a result, the Court will grant Defendants’

motions to dismiss LaVergne’s claims in this action, each of which takes his Article the First

claim as a necessary predicate. The Court will also deny LaVergne’s motion for sanctions,

which is based entirely on his preposterous assertion that Defendants’ motions are “legally

frivolous.” Sanctions Mot. 2.

B. Rule 60(b) Motion

LaVergne also styles his opposition to Defendants’ motions to dismiss as a motion to

“collaterally attack” the district court’s judgment (and the Third Circuit’s affirmance of that

judgment) in Bryson pursuant to Federal Rule of Civil Procedure 60(b)(4). See Pl.’s Mem.

Opp’n Mot. Dismiss 11–12. In making this extraordinary request, LaVergne once again returns

24 to his contention that the district court’s judgment in Bryson is “void” because a single judge, as

opposed to a three-judge court, resolved that case. His request fails for multiple reasons. For

present purposes, two reasons will suffice.

First, LaVergne previously filed a Rule 60(b)(4) motion in the Bryson case, which was

denied by the District Court for the District of New Jersey. Bryson, slip op. at 2. He is,

accordingly, precluded from seeking—once again—to relitigate an issue that was raised and

decided by another court. The district court in New Jersey has now twice decided that LaVergne

was not entitled to a three-judge court, and LaVergne is not entitled to yet a third bite at the

apple. See Restatement § 12 (explaining that “[w]hen a court has rendered a judgment in a

contested action, the judgment precludes the parties from litigating the question of the court’s

subject matter jurisdiction in subsequent litigation,” except under circumstances not present

here).

Second, even apart from that defect, LaVergne’s Rule 60(b)(4) motion misconceives the

relationship between district courts—even when one of those courts is constituted as a three-

judge court. Where a party has reason to believe that an existing judgment is void, “[t]he normal

procedure is to file a motion in the court that rendered the judgment.” In re Lodholtz,

(7th Cir. 2014). And, even if that “bar is not absolute, . . . it is to be lifted only in

‘egregious’ cases.”

Here, we need not determine the reaches of this exceedingly narrow

exception, because the Bryson court’s decision to dismiss LaVergne’s Article the First claim

without first convening a three-judge court was far from “egregious.” To the contrary, for the

reasons explained above, that decision was entirely consistent with Section 2284 and Supreme

Court precedent.

25 The Court will, accordingly, deny LaVergne’s motion under Rule 60(b)(4) collaterally

attacking the decisions of the District of New Jersey and Third Circuit in LaVergne v. Bryson.

CONCLUSION

The State and Federal Defendants’ motions to dismiss the claims of Eugene Martin

LaVergne, ECF Nos. 64–65, are hereby GRANTED, and Eugene Martin LaVergne is hereby

DISMISSED from this action. It is further ORDERED that Eugene Martin LaVergne’s motion

collaterally attacking the decision of the District of New Jersey and Third Circuit in LaVergne v.

Bryson, ECF No. 70, is DENIED. It is further ORDERED that Eugene Martin LaVergne’s

motion for sanctions, ECF No. 104, is DENIED.

SO ORDERED.

/s/ Cornelia T.L. Pillard CORNELIA T.L. PILLARD United States Court of Appeals Judge

/s/ Colleen Kollar-Kotelly COLLEEN KOLLAR-KOTELLY United States District Judge

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: September 6, 2018

26