LAVERGNE et al v. UNITED STATES HOUSE OF REPRESENTATIVES et al

Filing 127

MEMORANDUM OPINION AND ORDER GRANTING Defendants' Motions to Dismiss the Claims of Eugene Martin LaVergne 64 , 65 ; DENYING Plaintiff Eugene Martin LaVergne's Rule 60(b) Motion 70 ; and DENYING Plaintiff Eugene Martin LaVergne's Mot ion for Sanctions 104 . The Clerk of the Court shall mail a copy of this Memorandum Opinion and Order to Plaintiffs' addresses of record. Signed by Judge Cornelia T.L. Pillard, Judge Colleen Kollar-Kotelly, and Judge Randolph D. Moss on 9/6/2018. (lcrdm1, ) Modified on 9/7/2018 to change document type to opinion (kt).

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, 2011 WL 13192893 (D.N.J. Dec. 16,
2011), and the Court of Appeals for the Third Circuit summarily affirmed that decision,
LaVergne v. Bryson, 497 F. App’x 219 (3d Cir. 2012). The question currently before this Court

is whether LaVergne is precluded from re-litigating those same claims. For the reasons
explained below, the Court concludes that he is. The Court will, accordingly, DISMISS all
claims asserted by Eugene Martin LaVergne in this matter.
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.
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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, 2011 WL 13192893, at *1. Second, it declined to convene a three-judge
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court on the ground that LaVergne’s claims were “wholly insubstantial or completely without
merit.” Id. (quoting United States v. Saint Landry Par. Sch. Bd., 601 F.2d 859, 863 (5th Cir.
1979)). Third, it dismissed LaVergne’s complaint sua sponte. Id. at *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, 562 U.S. 1105 (2010) (mem.) (vacating and remanding 710 F. Supp. 2d 570 (N.D.
Miss. 2010))). The Bryson court continued:
Second, Plaintiff’s standing is questionable when his interest is considered in
relation to individuals such as New Jersey Governor Chris Christie, who
implemented the redistricting; Congresspersons whose seats were abolished;
and presidential candidates who may fear an election result like that of Vice
President Gore, who had won the popular vote but lost in the electoral college
vote to George Bush. Third, the ability of a pro se Plaintiff who is suspended
from the practice of law to professionally and adequately represent such a case
which [a]ffects every state is tenuous. Finally, the longstanding principles
establishing representation in our republican form of government have been
thoroughly evaluated since the Constitutional Convention.
Id. (footnote omitted).
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, 497 F. App’x 219 (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. Id. at 4–5.
The Third Circuit summarily affirmed the district court’s dismissal in a per curiam
opinion. LaVergne v. Bryson, 497 F. App’x 219, 220 (3d Cir. 2012). As an initial matter, the
panel agreed with the district court that LaVergne lacked standing. Id. at 221. The court rejected
LaVergne’s reliance on cases involving vote dilution as a basis for establishing standing, noting
that the remedy that LaVergne sought—an increase in representation for all of the states—would
not “change the size of New Jersey’s congressional delegation relative to the size of other states’
delegations.” Id. Moreover, “at most” LaVergne “allege[d] ‘a type of institutional injury’ . . .
‘which necessarily damages’ all United States voters ‘equally.’” Id. (quoting Raines v. Byrd, 521
U.S. 811, 821 (1997)).
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, 919 F.2d 146, 1990
WL 186103 (table), at *3 (9th Cir.1990) (per curiam) (citing Coleman v. Miller,
307 U.S. 433, 450 (1939)). In Coleman, the Supreme Court held that “the question
of the efficacy of ratifications by state legislatures . . . should be regarded as a
political question pertaining to the political departments, with the ultimate authority
in the Congress in the exercise of its control over the promulgation of the adoption
of the amendment.” 307 U.S. at 450. See also Luther v. Borden, 48 U.S. (7 How.)
1, 39 (1849) (holding that “the political department has always determined whether
the proposed constitution or amendment was ratified or not by the people of the
State, and the judicial power has followed its decision”); United States v. Foster,
789 F.2d 457, 463 n.6 (7th Cir. 1986) (holding that the issue of “the validity of an
amendment’s ratification [is] a non justiciable political question” and citing, among
other cases, Leser v. Garnett, 258 U.S. 130, 137 (1922), and Coleman, 307 U.S. at
450.

6

Id. (alterations in original). With respect to two other claims that LaVergne pressed in that case,
but does not press here—non-delegation and separation of powers—the panel held that, even if
justiciable, those claims failed on the merits. Id.
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, id. at 223 (quoting Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193,
202–03 (3d Cir. 2004)), but, to the extent LaVergne did raise the issue, he did “not seek reversal
on [that] basis, or remand, but rather” conceded that the panel’s review of his claims would
“suffice[].” Id.
LaVergne filed a timely petition for writ of certiorari, which the Supreme Court denied.
LaVergne v. Blank, 568 U.S. 1161 (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 threejudge 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
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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—nonjusticiability 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, 556 U.S. 825, 834 (2009) (quoting
Restatement (Second) of Judgments § 27 (1980) [hereinafter Restatement]). By promoting
“judicial finality,” Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (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, 440 U.S. 147, 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, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha, 961 F.2d at 254). 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, 961 F.2d at 254.
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, 497 F. App’x at 221. 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, 786 F.3d 34, 41 (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., 702 F.2d 1189, 1192 (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,
497 F. App’x at 222 (quoting McDonald, 919 F.2d 146, 1990 WL 186103 (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, 488 F.3d at 454
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.
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(quoting Yamaha, 961 F.2d at 254). 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, 449 F.3d 1260, 1262 (D.C. Cir. 2006) (alteration in original)
(quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974)); see also
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (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, 786 F.3d at
41; 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, 818 F.2d 901, 912 (D.C. Cir. 1987)); see also
Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass’n, 455 U.S.
691, 706 (1982); Coll. Sports Council v. Dep’t of Educ., 465 F.3d 20, 22–23 (D.C. Cir. 2006);
Dozier, 702 F.2d at 1191; Patock v. U.S. Dep’t of the Interior, 873 F. Supp. 2d 251, 255 (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., 711 F.2d 267, 273 (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, 497 F. App’x
219 (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 nonjusticiable political question. Id. at 35–38. In doing so, moreover, they invoked the relevant
authority, including Baker v. Carr, 369 U.S. 186 (1962), which sets forth the governing test for
the political question doctrine, and Coleman, 307 U.S. at 450, 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, 307
U.S. at 450).
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, 497
F. App’x 219 (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 id. 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, 488 F.3d at 454
(quoting Yamaha, 961 F.2d at 254). 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, 497 F.
App’x at 222.
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, ThreeJudge 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, 28 U.S.C. § 1253, and the doctrine of stare decisis
“commands that lower courts follow the precedent of courts who review their decisions.” Parker
v. Ohio, 263 F. Supp. 2d 1100, 1112 n.3 (S.D. Ohio 2003) (Gwin, J., concurring). Under this
framework, “logic suggests that we are not bound by circuit authority.” Id. 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, 423 F. Supp. 833, 835 (N.D.
Tex. 1976). Moreover, failure to follow circuit law may create a lack of uniformity within the
circuit. Id. 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, 702 F.2d at 1194; see also Malyutin v. Rice, 854 F. Supp. 2d 38, 47 (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, 568 U.S.
1161 (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,” 562 U.S. at 1105. Bryson, 2011 WL
13192893, 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, 2011 WL 13192893, 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, 369 U.S. at
209.
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, 710 F. Supp. 2d at 573.
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, 702 F.2d at 1194 (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, 488
F.3d at 454 (quoting Yamaha, 961 F.2d at 254). In support of this contention, LaVergne relies
on 28 U.S.C. § 2284, 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.” 28 U.S.C. § 2284(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. Id. 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

419 U.S. 90, 100 (1974); see also Wertheimer v. FEC, 268 F.3d 1070, 1072 (D.C. Cir. 2001);
LaRouche v. Fowler, 152 F.3d 974, 981 (D.C. Cir. 1998); Reuss v. Balles, 584 F.2d 461, 464 n.8
(D.C. Cir. 1978); Lion Mfg. Corp. v. Kennedy, 330 F.2d 833, 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 nonjusticiable. 28 U.S.C. § 2284(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, 136 S. Ct. 450, 455
(2015) (quoting Gonzalez, 419 U.S. at 100, 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, 497 F. App’x at 221. 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, 136 S. Ct. at 455,
and, as noted above, it relied on the Supreme Court’s order in Clemons, directing that a threejudge district court dismiss that reapportionment action “for lack of jurisdiction,” 562 U.S. at
1105. Bryson, 2011 WL 13192893, 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, 419 U.S. at 100 &
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, 152 F.3d at 981 (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, 136 S. Ct. at 455 (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, 488 F.3d at 454. The fairness prong is implicated when the “prior proceeding[] [was]
seriously defective,” Yamaha, 961 F.2d at 254 (quoting Blonder-Tongue Labs., Inc. v. Univ. of
Ill. Found., 402 U.S. 313, 333 (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,” id., or when the losing party otherwise lacked the “opportunity to have his challenge
heard,” Martin, 488 F.3d at 455. 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. Id. 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. 136 S. Ct. at 455.
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 threejudge 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, 419 U.S. at 100. 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, 878 F.3d 381,
390 (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., 941 F.2d 1220, 1230 (D.C. Cir. 1991)); Wilburn v. Robinson, 480 F.3d 1140,
1148 (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, 566 U.S. 189, 195 (2012) (explaining that federal courts
“lack[] the authority to decide” a dispute implicating political questions); DaimlerChrysler, 547
U.S. at 352 (noting that the political question doctrine “originate[s] in Article III’s ‘case’ or
‘controversy’ language”); Schlesinger, 418 U.S. at 215 (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, 565 U.S. 134, 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., 268 F. Supp. 3d
166, 173, 176–78 (D.D.C. 2017) (applying political question doctrine sua sponte); Mahorner v.
Bush, 224 F. Supp. 2d 48, 49 (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, 497 F. App’x at 223. 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 threejudge 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, 769 F.3d
531, 534 (7th Cir. 2014). And, even if that “bar is not absolute, . . . it is to be lifted only in
‘egregious’ cases.” Id. 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