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Dennis v. Luis

August 10, 1984


On Appeal from the District Court of the Virgin Islands Division of St. Thomas and St. John.

Adams, A. Leon Higginbotham Jr., and Sloviter, Circuit Judges.

Author: Higginbotham


HIGGINBOTHAM, JR., Circuit Judge

This case involves a suit for injunctive and declaratory relief brought by eight members of the Virgin Islands Fifteenth Legislature. These legislators challenged Governor Juan Luis' (the "Governor") appointment of Arnold M. Golden ("Golden") as "acting" Commissioner of Commerce. The district court ruled that the Governor's authority to make temporary appointments was controlled by 3 V.I.C. § 64(a) and that section 64(a) did not authorize the Governor to appoint an "acting" Commissioner of Commerce. Relying on section 64(a), the district court concluded that at the time Golden was appointed, the Governor was empowered only to make "recess" appointments, and not temporary appointments of any other sort. Thus, it held that under 3 V.I.C. § 64(a) Golden was a recess appointee. Because a recess appointee's term is defined by statute and because the Governor was without the power to make any other temporary appointments including acting appointments, the district court ordered Golden to be removed from office after determining that Golden's term as a recess appointee had expired as of December 12, 1983.

On appeal, both the Governor and Golden challenge the legislators' standing to maintain the underlying action. In the alternative, they argue that the district court erred in not recognizing the Governor's right to make any appointments other than recess appointments, and therefore, erred in ordering Golden's removal from office. Moreover, they assert that, notwithstanding the above, equitable considerations warrant a dismissal under the Riegle doctrine.*fn1

Although we agree with the district court's conclusion that temporary appointments are governed by 3 V.I.C. § 64(a), we find that the district court erred in its determination of when a recess appointment expires pursuant to section 64(a), and we will therefore vacate the judgment of the district court so that it can be re-entered in conformance with this opinion.


Golden's name was submitted on April 21, 1983 to the Fifteenth Legislature for the position of Commissioner of Commerce in the Virgin Islands. Under the Revised Organic Act of 1954, § 16(c), 48 U.S.C. § 1597(c), the legislature's advice and consent was necessary before an appointment to that position could be made. The legislature, however, on June 7, 1983 rejected Golden's nomination. Notwithstanding this rejection, the Governor thereafter on November 22, 1983 appointed Golden "acting" Commissioner of Commerce.

Following this appointment, eight of the fifteen members of the legislature filed suit in order to remove Golden from office. They asserted that "the effect of the appointment . . . is to usurp the doctrine of separation of powers and circumvent the process of advice and consent, thus violating a basic constitutional power conferred upon the Legislature . . . by the United States Congress. . . ." Appenidx ("App.") at 5.

Without addressing the constitutional issues raised by the plaintiffs, the district court ruled that the Governor's appointment powers are governed by 3 V.I.C. § 64(a). In the district court's view, this statute contemplates only recess appointments for the time period in which Golden was appointed. The district court could find no authority permitting the Governor to make any other form of non-permanent appointments. Accordingly, it considered Golden a recess appointee and having then found that the time period for recess appointments had expired, it held Golden's continued occupancy of the position of Commissioner of Commerce to be unlawful. The district court thus issued an injunction directing that the Governor remove Golden as "acting" Commissioner of Commerce. Golden's removal was stayed pending this appeal.*fn2


Befre turning to the merits of appellants' claim that the district court erred in ordering Golden's removal from office, we will consider appellants' challenge to the legislators' standing to maintain this action.*fn3

The Governor and Golden argue that the legislators do not have standing because they have failed to allege a legally cognizable injury.

In making the determination as to whether the threshold requirements of standing are satisfied, we must "accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). Moreover, throughout this standing inquiry, our focus will be "on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Flast v. Cohen, 392 U.S. 83, 99, 20 L. Ed. 2d 947, 88 S. Ct. 1942, (1968).

Recently, in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982), the Supreme Court set forth the minimum constitutional requirements necessary to establish standing. In short, a party seeking standing must demonstrate: (i) an actual or threatened injury that was (ii) caused by the defendant's actions and is (iii) capable of judicial redress. Id. at 472.

In this case, the injury alleged by the legislators in their complaint is that the Governor's appointment of Golden as "acting" Commissioner of Commerce after his nomination as a permanent appointee had been rejected by the legislators "usurp[ed] the doctrine of separation of powers and circumvent[ed] the process of advice and consent, thus violating a basic constitutional power conferred upon the Legislature of the Virgin Islands. . . ." App. at 5. Thus, they argue that their votes rejecting Golden's nomination were nullified by Golden's subsequent appointment to "acting" Commissioner. The Governor and Golden, on the other hand, maintain that this alleged injury does not constitute a legally cognizable injury sufficient to confer standing. Specifically, they assert that "plaintiffs may be more angry than the average person about this matter, but intensity of feelings . . . does not confer standing, and they allege no personal injury." Appellant's Brief at 3.

In resolving this question, our analysis begins with the Virgin Islands Code which provides that the Commissioner of Commerce is to be "appointed by the Governor, with the advice and consent of the Legislature. . . ." 3 V.I.C. § 332(b).

According to the legislators' allegations, the interest sought to be protected by this action is their unique statutory right to advise the Governor on executive appointments and to confer their approval or disapproval in this regard. Assuming these allegations to be true, we conclude that they allege a personal and legally cognizable interest peculiar to the legislators. See Riegle v. Federal Open Market Committee, 211 U.S. App. D.C. 284, 656 F.2d 873, 878-79 (D.C. Cir.), cert. denied, 454 U.S. 1082, 70 L. Ed. 2d 616, 102 S. Ct. 636 (1981). The interest asserted is simply not a "generalized interest of all citizens in constitutional governance. . . ." Valley Forge Christian College, 102 S. Ct. at 769, quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 217, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1794). Since the right to advise and consent has been vested only in members of the legislature, and since only members of the legislature are bringing this action, the allegation that this right has been usurped by the Governor and Golden are sufficiently personal to constitute an injury in fact, thus satisfying the minimum constitutional requirements of standing. We therefore believe that it is reasonable to hold that the legislators have standing.


Having determined that the legislators have met the prerequisites for standing, we will next consider whether there are any prudential concerns which nonetheless require us to dismiss this suit.

Suits brought by legislators seeking to challenge executive actions and policies inevitably raise separation-of-powers concerns because of their political overtones. The Court of Appeals for the District of Columbia in Harrington v. Bush, 180 U.S. App. D.C. 45, 553 F.2d 190 (D.C. Cir. 1977), observed that:

The standing and political question doctrines are both facets of the broader concept of justiciability and ". . . either the absence of standing or the presence of a political question suffices to prevent the power of the federal judiciary from being invoked by the complaining party." Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 215, 94 S. Ct. 2925, 2929, 41 L. Ed. 2d 706 (1974).

Id. at 194, n.6.

Focusing on the tensions generated by litigation initiated by legislative plaintiffs, who were dissatisfied members of Congress, Judge McGowan wrote in his seminal article, Congressmen in Court: The New Plaintiffs, that the "use of the standing doctrine to address the separation-of-powers concerns arising when federal legislators sue the executive branch in federal court is fraught with difficulties both in theory and in application." 15 Ga. L. Rev. 241, 256 (1981)(emphasis added).

Moving the site of such litigation from Washington, D.C. to the Caribbean vacation retreat of St. Thomas does not decrease the tension nor does it make the problems in either theory of application less "fraught with difficulties" than those described by Judge McGowan.

In this case, it is obvious that the court is being asked to resolve an intense power dispute between the legislature and the executive branch. Any judicial resolution of such a dispute has significant political implications in the struggles for dominance of, control of, or impact on a government.

Obviously, when the United States Congress passed the Revised Organic Act of 1954 granting the Virgin Islands legislature the right to advise on and consent to executive appointments. 48 U.S.C. § 1597(c), it was intended that the democratically-elected legislative branch of the Virgin Islands act as a check and balance on the Governor's power. At the same time, by granting the Governor the right to make executive appointments, subject to the advice and consent of the Virgin Islands legislature, Congress intended to give the Governor substantial power in choosing those persons who would represent his views of how the key executive departments and the government should function.

Thus, our problem involves determining the court's role when these separate, independent branches of government -- the executive and the legislative -- clash and cannot resolve their difficulties on their own political turfs. Should legislators be allowed to use the judicial process to force the executive branch to comply with "the law of the land?" Or, phrased differently, 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?

Obviously, similar litigation in the District of Columbia involving Congressmen as plaintiffs must be our analogue in analyzing this difficult separation-of-powers issue and in defining the role of judicial review.*fn4

In 1981, having faced more than a decade of sensitive litigation, the United States Court of Appeals for the District of Columbia articulated a comprehensive jurisprudential theory defining the basis on which the courts should or should not dismiss suits filed by congressional plaintiffs against the executive branch. In Riegle v. Federal Open Market Committee, the court concluded that in those instances where Congressmen satisfy the traditional standing tests, the court may nevertheless dismiss the suit pursuant to the doctrine of "circumscribed equitable discretion." Riegle, 656 F.2d at 881. The Riegle court stated: "The most satisfactory means of translating our separation-of-powers concerns into principled decisionmaking is through a doctrine of circumscribed equitable discretion." Id. We shall refer to it as the "Riegle" doctrine.

By circumscribed equitable discretion, the court had in mind those situations "when a congressional plaintiff brings a suit involving circumstances in which legislative redress is not available or a private plaintiff would likely not qualify for standing . . ." Id. at 882. They further stated:

We would welcome congressional plaintiff actions involving non-frivolous claims of unconstitutional action which, because they could not be brought by a private plaintiff and are not subject to legislative redress, would go unreviewed unless brought by a legislative plaintiff. In this last situation, there are no prudential considerations or separation-of-powers concerns which would outweigh the mandate of the federal courts to "say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803).


In this case, the Governor and Golden urge that we apply the Riegle doctrine here and that upon fair application, we would be required to dismiss the complaint.

While we respect the thoughtful analysis in the opinion written by Judge Robb in Riegle, we are not bound by the articulated doctrine, and we decline at this time to adopt it. Furthermore, even if we were to apply the standard articulated in Riegle, we believe that we would not be required to dismiss this suit. For, in addition to directing the dismissal of congressional plaintiffs' suits where traditional concepts of standing are not satisfied. Riegel mandates dismissal only where "the plaintiff has standing but could get legislative redress and a similar action could be brought by a private plaintiff." Riegel, 656 F.2d at 882.

In Riegle, a legislator sought injunctive relief in the form of an absolute prohibition of voting by Reserve Board members of the Federal Open Market Committee ("FOMC"). This relief was sought because Congressmen had failed in previous attempts to have it required that the five representatives of the Reserve Bank seats be limited to bank presidents appointed by the President with the advice and consent of the Senate. Senator Riegle argued that 'by permitting the defendant individuals to act as officers of the United States when their nominations [had] never been submitted to the Senate,' [he was deprived] of his constitutional right to vote in determining the advice and consent of the Senate to the appointment of the five Reserve Bank members of the FOMC." Riegle, 656 F.2d at 877. Thus, in short, ...

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