                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2007

Russell v. Gov VI
Precedential or Non-Precedential: Precedential

Docket No. 07-1289




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                              PRECEDENTIAL


  IN THE UNITED STATES COURT
           OF APPEALS
      FOR THE THIRD CIRCUIT


            NO. 07-1289


       RONALD E. RUSSELL,
           Appellant

                  v.

 GOVERNOR JOHN P. DEJONGH, JR.




  On Appeal From the District Court
           of the Virgin Islands
 Division of St. Thomas and St. John
 (D.C. Civil Action No. 06-cv-00228)
 District Judge: Hon. Curtis V. Gomez


         Argued May 8, 2007

BEFORE: SLOVITER, STAPLETON and
  VAN ANTWERPEN, Circuit Judges
               (Opinion Filed: June 19, 2007)




Royette V. Russell (Argued)
P.O. Box 3259
Kingshill, St. Croix
USVI 00851
 Attorney for Appellant

Tiffany V. Robinson (Argued)
Office of the Attorney General of the Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
Charlotte Amalie, St. Thomas
USVI 00802
 Attorney for Appellee




                OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Senator Ronald E. Russell of the Legislature of the
Virgin Islands here challenges the validity of the nominations
and appointments of Judges Maria M. Cabret, Ive A. Swan, and

                              2
Rhys S. Hodge as justices of the Supreme Court of the Virgin
Islands. Governor Charles W. Turnbull submitted those
nominations to the Legislature and, at a special session called
for that purpose, the Legislature voted unanimously to confirm
Justices Cabret, Swan and Hodge.1 In his complaint, Senator
Russell sought, inter alia, a declaration from the District Court
that the justices’ commissions were void because the Governor
failed to comply with the statutory deadline for submitting his
nominations to the Legislature and because the Governor
exceeded his statutory authority under Section 7(a) of the
Organic Act, 48 U.S.C. § 1573(a), by calling the special session
at which the nominees were confirmed. Senator Russell appeals
from the District Court’s order dismissing his complaint. We
conclude that Senator Russell lacks standing to pursue both
counts of his complaint.

                                I

       On October 29, 2004, Governor Turnbull approved Act
No. 6687, which established the Supreme Court of the Virgin
Islands. Act No. 6687 provides that “[t]he Governor shall
appoint, with the advice and consent of the Legislature, three
justices and subject to the advice and consent of the Legislature,
appoint a qualified person to fill any vacancy occurring in the
office of justice in the Supreme Court.”


  1
   Governor Turnbull was the original defendant in this action.
On January 1, 2007, the Honorable John P. DeJongh was sworn
in as Governor of the Virgin Islands. He was thereafter
substituted for Governor Turnbull. See Fed. R. App. P. 43(c)(2).

                                3
       Section 3(a) of Act No. 6687 provides a time frame for
the Governor to submit his initial nominations to the
Legislature:

       “Notwithstanding title 4 Virgin Islands Code,
       chapter 2, as added by Section 2 of this Act, the
       Governor shall submit nominations for the
       associate justices of the Supreme Court to the
       Legislature within ninety days after the effective
       date of any act appropriating monies to fund the
       operations of the Supreme Court.”

       On December 15, 2005, the Legislature passed Act No.
6816 over Governor Turnbull’s veto. Section 2 of Act No. 6816
provides that “[t]he Virgin Islands Public Finance Authority
shall make available, forthwith, to the Superior Court of the
Virgin Islands the sum of 5.75 million dollars to construct and
establish the Virgin Islands Supreme Court on St. Croix.” 2


   2
    The location of the Supreme Court of the Virgin Islands is
the subject of separate litigation between the Governor and the
Legislature. Governor Turnbull sued the Legislature in the
Superior Court of the Virgin Islands, arguing that Act No. 6816
and Act No. 6730—a law relocating the Supreme Court to St.
Croix—are invalid in light of § 2(b) of the Organic Act, 48
U.S.C. § 1541(b), which provides that “[t]he capital and seat of
the Government of the Virgin Islands shall be located at the city
of Charlotte Amalie, in the island of Saint Thomas.” On
January 19, 2007, the Superior Court declared both acts null and
void. The Legislature appealed, and that case is currently

                               4
       On July 19, 2006, 216 days later, Governor Turnbull
submitted the nominations of Justices Cabret, Swan, and Hodge
to the Legislature. On October 24, 2006, Governor Turnbull
called a special session of the Legislature, which he scheduled
for October 27, 2006, for the purpose of considering his
nominees and a proposed bill regarding funding for the Supreme
Court. At the special session, Senator Russell made two
motions seeking to delay the vote on the nominees until
November 27, 2006, and to send them back to the Senate
Judiciary Committee. He lost both motions by close margins,
and the Legislature unanimously voted to confirm all three
nominees.

        Count I of Senator Russell’s complaint sought a
declaration that the nominations were null and void because they
were not submitted to the Legislature “within ninety days after
the effective date of any act appropriating monies to fund the
operations of the Supreme Court,” as required by Section 3(a) of
Act No. 6687. Count II sought a declaration that the Governor’s
act of calling a special session of the Legislature was a violation
of “the doctrine of separation of powers.” Specifically, Senator
Russell asserted that the Governor’s power to call special
sessions under § 7(a) of the Organic Act, 48 U.S.C. § 1573(a),
is limited to doing so for the purpose of considering legislation,
and that he may not call a special session for the purpose of
having his judicial nominees considered. The District Court


pending in the Appellate Division of the District Court.
Turnbull v. 26th Legislature of the Virgin Islands, No. 07-CV-
0025.

                                5
dismissed Senator Russell’s complaint. As to Count I, the Court
applied the principles set forth in Cort v. Ash, 422 U.S. 66
(1975), and held that the statute setting forth the deadline does
not confer a private right of action on Senator Russell. As to
Count II, the District Court held that Senator Russell lacked
standing under Article III of the Constitution because he had not
suffered an injury in fact. Senator Russell now appeals.

                                 II

        This appeal presents questions regarding the standing of
a legislator to sue another government official in court to redress
an injury the legislator claims to have suffered in his official
capacity, rather than as a private citizen. Legislators, like other
litigants in federal court, must satisfy the jurisdictional
prerequisites of Article III standing,3 including the requirement


  3
    Though the District Court of the Virgin Islands is an Article
IV court, see Parrott v. Gov’t of the Virgin Islands, 230 F.3d
615, 622-23 (3d Cir. 2000); Brow v. Farrelly, 994 F.2d 1027,
1032-34 (3d Cir. 1993), the source of its authority to exercise
jurisdiction over this case is 48 U.S.C. § 1612(a), which
authorizes the District Court to exercise “the jurisdiction of a
District Court of the United States.” See also United States v.
Gov’t of the Virgin Islands, 363 F.3d 276, 284-85 & n.3 (3d Cir.
2004). The District Court’s exercise of “the jurisdiction of a
District Court of the United States” within the meaning of 48
U.S.C. § 1612(a) is subject to the limitations of Article III of the
Constitution, which apply generally to the jurisdiction of Article
III District Courts. Article III, § 2 of the Constitution limits the

                                 6
that the plaintiff “must have suffered an ‘injury in fact,’”
constituting “an invasion of a legally protected interest that is (a)
concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical.” United States v. Hays, 515 U.S.
737, 742-43 (1995); see also Allen v. Wright, 468 U.S. 737, 751
(1984).

        Concerns for separation of powers and the limited role of
the judiciary are at the core of Article III standing doctrine and
the requirement that a plaintiff allege an injury in fact. See
DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1860-61
(2006); Allen, 468 U.S. at 750; Warth v. Seldin, 422 U.S. 490,
498 (1975). Those concerns are particularly acute in legislator
standing cases, and they inform the analysis of whether a
legislator plaintiff has asserted an injury in fact sufficient to
confer standing to sue. See Alaska Legislative Council v.
Babbitt, 181 F.3d 1333, 1337 (D.C. Cir. 1999); Chenoweth v.
Clinton, 181 F.3d 112, 114-15 (D.C. Cir. 1999); Goldwater v.
Carter, 617 F.2d 697, 702-04 (D.C. Cir.) (en banc), vacated on
other grounds, 444 U.S. 996 (1979); 13A Charles Alan Wright
et al., Federal Practice & Procedure, § 3531.11, at 4 (2d ed.
Supp. 2006) (describing the Supreme Court’s analysis of
legislator standing in Raines v. Byrd, 521 U.S. 811 (1997) as



jurisdiction of the federal courts to deciding “cases” or
“controversies.” See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 102 (1998); Flast v. Cohen, 392 U.S. 83, 97 (1968). A
necessary part of a “case” or “controversy” is that the plaintiff
must allege that he or she has suffered an “injury in fact.”


                                 7
“standing informed—and indeed virtually controlled—by
political question concerns.”). With these general principles in
mind, we turn to the specific injuries that Senator Russell alleges
in his complaint.

                                 A

       In the proceedings before the District Court, Senator
Russell testified that, in his view, the 90-day deadline in Act No.
6687 was intended to extinguish the Governor’s authority to
submit nominations after the deadline had passed. Senator
Russell argues that the Governor’s refusal to honor this deadline
injures him by “nullifying his vote” in favor of that law. We
disagree.

        The Supreme Court, this Court, and others have held that
legislators have a legally protected interest in their right to vote
on legislation and other matters committed to the legislature,
which is sometimes phrased as an interest in “maintaining the
effectiveness of their votes.” See Coleman v. Miller, 307 U.S.
433, 438 (1939) (“[T]hese senators have a plain, direct and
adequate interest in maintaining the effectiveness of their
votes.”); Babbitt, 181 F.3d at 1337 (“In narrow circumstances,
legislators have a judicially recognized, personal interest in
maintaining the ‘effectiveness of their votes.’”); Dennis, 741
F.2d at 631 (recognizing an injury to the legislators’ interest in
their “right to advise and consent”); Kennedy v. Sampson, 511
F.2d 430, 436 (D.C. Cir. 1974) (“[A]ppellee’s object in this
lawsuit is to vindicate the effectiveness of his vote. No more
essential interest could be asserted by a legislator.”). Not every
affront to a legislator’s interest in the effectiveness of his vote,

                                 8
however, is an injury in fact sufficient to confer standing to sue.
See Chiles v. Thornburgh, 865 F.2d 1197, 1205 (11th Cir. 1989)
(“A precise definition of what type of ‘loss of effectiveness’ of
a congressman’s vote is judicially cognizable is of crucial
significance to the standing inquiry. Too broad a definition
would allow a legislator to rush to court whenever he lost a vote
and too narrow a definition might allow abuses of the legislative
process to go unchecked.”).

        In particular, the authorities appear to hold uniformly that
an official’s mere disobedience or flawed execution of a law for
which a legislator voted—which appears to be the gravamen of
Count I of Senator Russell’s complaint—is not an injury in fact
for standing purposes. See id. at 1205-06 (rejecting the
argument “that the defendants’ failure to comply with these laws
deprived the Senator of the effectiveness of his vote on the
legislation and that the deprivation constitutes a legally
cognizable injury”); Goldwater, 617 F.2d at 702 (stating a test
for legislator standing that distinguishes between “complete
withdrawal or nullification of a voting opportunity” and “a
diminution in a legislator's effectiveness, subjectively judged by
him or her, resulting from Executive action withholding
information or failing to obey a statute enacted through the
legislator’s vote, where the plaintiff-legislator still has power to
act through the legislative process to remedy the alleged
abuses,” the latter of which is insufficient to confer standing on
the legislator); Daughtrey v. Carter, 584 F.2d 1050, 1057 (D.C.
Cir. 1978) (no legislator standing to challenge executive
nonenforcement of a law); Harrington v. Bush, 553 F.2d 190,
203-04, 210, 213-14 (D.C. Cir. 1977) (no legislator standing to
sue the executive for disobeying laws for which the legislator

                                 9
had voted); Harrington v. Schlesinger, 528 F.2d 455, 459 (4th
Cir. 1975) (no legislator standing to enjoin the President from
spending money in violation of legislation restricting the use of
certain appropriations).

        The principal reason for this is that once a bill has
become law, a legislator’s interest in seeing that the law is
followed is no different from a private citizen’s general interest
in proper government. See Chiles, 865 F.2d at 1205-06
(“Senator Chiles is basically arguing that as a Senator he has a
right to see that the laws, which he voted for, are complied with.
Such a claim of injury, however, is nothing more than a
generalized grievance about the conduct of the government.”)
(citation and internal quotation marks omitted); Bush, 553 F.2d
at 213-14 (“[S]ince the impact of the illegality is shared by all
citizens, appellant’s complaint about the administration of the
CIA Act becomes a generalized grievance about the conduct of
government, which lacks the specificity to support a claim of
standing.”); Schlesinger, 528 F.2d at 459 (“Once a bill has
become law, however, their interest is indistinguishable from
that of any other citizen.”); 13A Charles Alan Wright et al.,
Federal Practice & Procedure § 3531.11, at 37 & n.59 (2d ed.
1984) (collecting cases). The Supreme Court has “consistently
held that a plaintiff raising only a generally available grievance
about government—claiming only harm to his and every
citizen's interest in proper application of the Constitution and
laws, and seeking relief that no more directly and tangibly
benefits him than it does the public at large—does not state an
Article III case or controversy.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 573-74 (1992) (citing cases).


                               10
        The courts have drawn a distinction, however, between
a public official’s mere disobedience of a law for which a
legislator voted—which is not an injury in fact—and an
official’s “distortion of the process by which a bill becomes
law” by nullifying a legislator’s vote or depriving a legislator of
an opportunity to vote—which is an injury in fact. See United
Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375,
1382 (D.C. Cir. 1984) (quoting Moore v. U.S. House of
Representatives, 733 F.2d 946, 952 (D.C. Cir. 1984));
Goldwater, 617 F.2d at 702. In arguing that this case fits into
the latter category, Senator Russell relies primarily on our
decision in Dennis v. Luis, 741 F.2d 628 (3d Cir. 1984), the
Supreme Court’s decision in Coleman v. Miller, 307 U.S. 433
(1939), and the decision of the New York Court of Appeals in
Silver v. Pataki, 96 N.Y.2d 532 (N.Y. App. 2001). Those cases
are readily distinguishable from the present case, however, in
that the challenged actions in those cases left the plaintiffs with
no effective remedies in the political process.4 See Goldwater,


     4
      “Coleman stands, at most, . . . for the proposition that
legislators whose votes would have been sufficient to defeat (or
enact) a specific legislative Act have standing to sue if that
legislative action goes into effect (or does not go into effect) on
the ground that their votes have been completely nullified.”
Raines v. Byrd, 521 U.S. 811, 823 (1997).
        In Dennis, we held that a group of legislators had
standing to challenge the appointment by the Governor of the
Virgin Islands of an “acting” Commissioner of Commerce
without consulting them, where § 16(c) of the Organic Act, 48
U.S.C. § 1597(c), provided that the appointment of a

                                11
617 F.2d at 703 (stating, in finding legislator standing to
challenge the President’s decision to terminate a treaty, “[t]he
crucial fact is that, on the record before us, there is no
conceivable senatorial action that could likely prevent


Commissioner of Commerce was subject to the advice and
consent of the Legislature. The plaintiffs in Dennis thus alleged
that they possessed a specific right under § 16(c) of the Organic
Act that the Governor had violated, and they had no clear
recourse through the political process.
        Silver v. Pataki is closer to the present case, but it is not
helpful to Senator Russell’s cause. In Silver, the New York
Court of Appeals recognized an injury in fact when a state
assembly member alleged that the governor made illegal use of
his line item veto power by using it on bills that were not
lawfully subject to the line item veto. 96 N.Y.2d at 535. The
state assembly member had voted in favor of the bills in
question, and the New York Court of Appeals held that the
plaintiff had standing. The court rejected the argument that the
plaintiff lacked standing because he had the option of
persuading a supermajority of his colleagues to override the
governor’s veto. Id. at 541. In Silver, the Governor's veto
nullified the pending bills and forced the assembly member to
try persuade a supermajority of his colleagues to override the
governor’s veto if he wished to restore the status of the bills as
law.     Here, by contrast, the Governor’s submission of
nominations to the Legislature had no effect on the legal status
of Act No. 6687, nor did it impose any heightened burden on
Senator Russell or his colleagues.


                                 12
termination of the Treaty.”).

        Here, by contrast, Senator Russell concedes that the
Legislature was free to confirm, reject, or defer voting on the
Governor’s nominees.5 The consequence of the Governor’s late
submission of the nominations was thus not to circumvent the
Legislature, but to place the decision whether to confirm the
nominees directly in their hands. In our view, that fact takes this
case out of the category of “vote nullification” cases and places
it in the category of cases in which a legislator’s alleged injury
consists merely of an executive’s failure to comply with a law
for which he voted. As we have explained, this is not sufficient
to meet the requirement of an injury in fact.

        Senator Russell resists this conclusion by arguing that the
Governor’s failure to comply with the deadline in Act No. 6687
injured him, if not in his capacity as a legislator, then in his
capacity as “the main proponent of the Supreme Court bill.”
While it is true that Senator Russell participated in the drafting
of Act No. 6687 and may well have worked diligently to secure
its passage, we find these facts irrelevant to the question of his
standing. Senator Russell points to no authority giving him


   5
     Senator Russell argues that he and his colleagues were not
actually “free” to reject or defer vote on the nominees because
the Governor submitted the nominations shortly before a general
election, and the senators feared that they would not be reelected
if they failed to confirm the judges. Senator Russell points us to
no authority, however, entitling him to protection from
accountability to the voters on this issue.

                                13
special legal status or additional rights arising from his work on
Act No. 6687, and we have found none. Any injury to him due
to his status as the main proponent of Act No. 6687 is not
sufficiently objective to meet the injury-in-fact requirement. See
Metzenbaum v. Brown, 448 F. Supp. 538, 543 (D.D.C. 1978)
(rejecting the argument that two Senators had standing to
challenge the executive branch’s implementation of a bill for
which they voted, by virtue of their active participation in the
drafting and passage of the bill); cf. Chiles, 865 F.2d at 1206-07
(no standing where a senator’s asserted injury was not
“objectively discernible”); Goldwater, 617 F.2d at 702 (to show
an injury in fact, “the plaintiff must point to an objective
standard” embodying the harmed interest asserted, as opposed
to “a diminution in a legislator’s effectiveness, subjectively
judged by him or her”).

                                B

        In Count II, Senator Russell insists that the Governor’s
calling of a special session of the Legislature constituted “an
unconstitutional usurpation of legislative power by the executive
branch,” in violation of the separation of powers doctrine.
Reply Br. at 2. This is predicated on his contention that Section
7(a) of the Organic Act, 48 U.S.C. § 1573(a), the provision
under which the Governor acted, limits the Governor’s authority
to the calling of special sessions for the purpose of considering
legislation.6 In Senator Russell’s view, this leaves to the


   6
       Section 7(a) provides:


                                14
Legislature the exclusive power to schedule legislative sessions
for considering whether to confirm judicial nominations. It is
this legislative power that the Governor allegedly usurped.

        We stress at the outset of our standing analysis with
respect to Count II that Senator Russell cannot here maintain
that the Governor’s action in calling a special session impaired
his right, or that of his legislative colleagues, to advise and
consent regarding judicial nominees. That action afforded the
Legislature an additional opportunity to confirm or not confirm,
an opportunity of which the Legislature availed itself by
unanimously voting to confirm.

       Rather, the “usurpation of legislative power” of which
Senator Russell complains is the usurpation of the Legislature’s
power to schedule its own proceedings. Here, too, we perceive
no injury to Senator Russell or his colleagues. The Governor’s


               Regular sessions of the legislature shall be
       held annually, commencing on the second
       Monday in January (unless the legislature shall by
       law fix a different date), and shall continue for
       such term as the legislature may provide. The
       Governor may call special sessions of the
       legislature at any time when in his opinion the
       public interest may require it. No legislation shall
       be considered at any special session other than
       that specified in the call therefor or in any special
       message by the Governor to the legislature while
       in session.

                                15
call for a special session did not force the Legislature to confirm
the nominees; nor, as Senator Russell concedes, did it even force
them to vote on the nominees. Senator Russell stated at the
hearing before the District Court that, in his view, in addition to
voting to confirm or reject the nominees, the Legislature could
have adjourned immediately without considering the matters the
Governor placed before it, or it could have debated the merits of
the judicial nominees but ultimately deferred voting on whether
to confirm them. Indeed, Senator Russell made two motions
during the special session to defer consideration of the
nominees, but both motions were rejected by his colleagues.

        Senator Russell has one further arrow to his standing
bow. He insists that the Governor’s action resulted in unique
injury to him in his capacity as Chair of the Legislature’s
Committee on Rules and the Judiciary, who, he testified, has
“the discretion to set the confirmation hearing and to submit to
the committee a full report on the investigation.” JA at 118-19.
However, Senator Russell has failed to provide us with a
citation to the source of the authority he claims for himself.
Based on our research, we are satisfied that it does not arise
from the Organic Act or any other statute.7 While we are willing


   7
     This is not, therefore, a case like American Federation of
Government Employees v. Pierce, 697 F.2d 303, 305 (D.C. Cir.
1982). In that case, the D.C. Circuit recognized a legislator’s
standing to sue as a member of the House Appropriations
Committee. In Pierce, however, a Congressional statute
explicitly gave the Appropriations Committee the right to
participate in certain reorganizations of the Department of

                                16
to assume that the rules of the Legislature grant him the
authority to schedule hearings and investigate, we are not
willing to assume, without citation to a specific rule, that that
authority is not subject to the power of the full Legislature to set
its own agenda when it decides to do so. As we have explained,
the Legislature here decided to set its own agenda and
proceeded to advise and consent by unanimous vote. Under
these circumstances, we do not believe that Senator Russell had
any “legislative power” to be “usurped.” We therefore hold that
he has not alleged an injury in fact and that he lacks standing to
bring both counts of his complaint.

                                III

        Finally, we decline Senator Russell’s invitation to rule on
the dispute between the Governor and the Legislature regarding
the location of the Supreme Court. As explained above,8 that
dispute is the subject of a separate action that is being actively
litigated and is now pending in the Appellate Division of the
District Court. It is not part of Senator Russell’s complaint, and
this Court has already denied Senator Russell’s motion to



Housing and Urban Development (HUD). Id. The claim of the
members of the committee that the HUD Secretary unlawfully
proceeded with a reorganization without them was thus a claim
of injury to “a particular interest in law as it relates to their
authority.”


   8
       See fn.1 supra.

                                17
consolidate this appeal with any appeal that might come from
the Appellate Division. In arguing that this Court should
nonetheless address that issue, Senator Russell notes that the
District Court asked the lawyers in this case to be prepared to
discuss, at its hearing on the Governor’s motion to dismiss, all
issues related to the Supreme Court, and he argues that the
issues in the other case are “inextricably intertwined with the
issues on appeal herein.” We are unpersuaded. In light of our
disposition of this appeal, it is plainly not necessary to address
the legality of the legislation locating the Supreme Court on St.
Croix. Senator Russell’s request for a ruling from this Court
regarding the location of the Virgin Islands Supreme Court is a
request for an advisory opinion, which is beyond our authority
to grant. See Armstrong World Indus. v. Adams, 961 F.2d 405,
410 (3d Cir. 1992) (“Article III, section 2 . . . stands as a direct
prohibition on the issuance of advisory opinions.”).

                                IV

        For the foregoing reasons, we will affirm the January 4,
2007, order of the District Court insofar as it dismissed Count
II for want of jurisdiction. We will vacate that order insofar as
it dismissed Count I for failure to state a claim and remand with
instructions to dismiss that count as well for want of
jurisdiction.




                                18
