1 

# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 19

- 5028 September Term, 2020

F ILED O N : F EBRUARY 1 2
, 2021

E UGENE M ARTIN L A V ERGNE , A PPELLANT

F REDERICK J OHN L A V ERGNE , ET AL ., A PPELLEES

v.

U

NITED S TATES H OUSE OF R EPRESENTATIVES , ET AL ., A PPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:17

- cv

- 00793)

Before: S RINIVASAN , Chief Judge

, H ENDERSON and M ILLETT , Circuit Judges

.

J U D G M E N T

This case was consi dered on the record from the United States District Court for the District of Columbia , as well as on the briefs of the parties. We have accorded the issues full consideration and determined that they do not warrant a published opinion. See D.C. C IR

. R. 36(d). It is

ORDERED AND ADJUDGED that th e judgment of the United States District Cou rt for the District of Columbia be AFFIRMED

.

I

Proceeding pro se , Eugene Martin LaVergne a rgues that the membership of the U nited States House of Representatives has been wrongly apportioned for at least the last 230 years. On La Vergne ’s reading of consti tutional history, a proposed constitutional amendment concerning apportionment (called “Article the First”) was, in fact, ratified in the first decade of the R epublic’s existence

. In addition, LaVergne claims to have uncovered a scrivener’s error in the first copies2 of that amendment that resulted in a fundamental misunderstanding of its meaning

. The combined result , according to LaVergne’s theory

, is that the House’s membership should now exceed 6,000 Representatives

— far more than its current 435 M e mbers

. According to LaVergne, th at longstanding mistaken understanding of the Constitution mean s that every act of Congress taken for more than a century has been invalid for lack of a quorum in the House.

One fatal problem for LaVergne’s theory

— and the only one we need address now

— is that LaVergne already litigated th e same arguments on the same issues before the United States District Court for the District of New Jersey and the United States Court of Appeals for the Third Circuit

. LaVergne v. Brys on , No. 11

- 7117, 2011 WL 13192893 (D.N.J. Dec. 16, 2011) ; LaVergne v. Bryson , 497 F. App’x 219 (3d Cir. 2012)

. He lost , as his claim presented a non

- justiciable political question and he lacked standing

. Id. Under well

- established principles of issue preclusion, LaVergne cannot relitigate justiciability under the political question doctri ne again here. So the district court properly dismissed the case.

II

Five years after the Third Circuit upheld the dismissa l of LaVergne’s first case invo k ing Article the First to challeng e the membership level of the House of Representatives, LaVergne and four co

- plaintiffs filed this suit against the House of Representatives and a number of congressional and Executive Branch officers (collectively, “governmental defendants”) before a three

- judge district court in the United States District Court for the District of Columbia. That court promptly dismissed LaVergne from the suit on issue preclusion (sometimes called collateral estoppel ) grounds. La V ergne v. United States House of Representatives , No. 1: 17

- cv

- 00 793 , 2018 WL 4286404 (D.D.C. Sept. 6, 2018)

. Although the claims of the remaining plaintiffs were still pending, LaVergn e filed a notice of appeal challenging his dismissal . T he g overnment al defendants moved to dismiss the appeal for lack of appellate jurisdiction. Doc. 1780529 (D.C. Cir. April 1, 2019). While that motion was pending, the district court entered a final judgment dismissing the rem aining plaintiffs’ claims and the case

. LaVergne v. United States House of Representatives , 392 F. Supp. 3d 108 (D.D.C. 2019). 1

T he district court ’s July 11, 2019 final judgment cured the prematurity of LaVergne’s notice of appeal and vest ed this court with jurisdiction over this appeal under 28 U.S.C. § 1291

. See Outlaw v. Airtech Conditioning & Heating

, Inc.
, 412 F.3d 156, 162 (D.C. Cir. 2005). Also, b e ca use the district court resolve d LaVergne’s constitutional claims on the basis of juri sdictional issue preclusion rather than on the merits , jurisdiction lies here rather than in the United States Supreme Court

. See MTM, Inc. v. Baxley , 420 U.S. 799, 804 (1975) (“[A] direct appeal will lie to this Court * * * from the order of a three

- judge federal court denying interlocutory or permanent injunctive relief only where such order rests upon resolution of the merit s[.] ” ) ; see also Gonzalez v. Automatic Emps

. Credit Union , 419 U.S. 90, 100 (1974). We therefore deny the governmental

1 Those plaintiffs have not appealed the dismissal of their claims, so only LaVergne’s dismissal is before us.3 defendant s ’ motion to dismiss for want of appellate jurisdiction.

We review the district court’s decision to dismiss LaVergne’s complaint on issue preclusion grounds de novo. GSS Grou p Ltd. v. Nationa l Port Auth. of Liberia , 822 F.3d 598, 605 (D.C. Cir. 2016) . As for the district court’s denial of LaVergne’s motion for reconsideration , we would ordinarily review it for an abuse of discretion. Ark Initiative v. Tidwell , 749 F.3d 1071, 1075 (D.C. Cir. 2014)

. But because LaVergne makes no argument that the district court abused its discretion

— nor any argument referencing the district court’s decision on reconsideration at all

— h e has forfeited any challenge to that ruling

. See United States e x rel. Totten v. Bombardier Corp.

, 380 F.3d 488, 497 (D.C. Cir. 2004) (“ Ordinarily, arguments that parties do not make on appeal are deemed to have been waived .”).

III

T he doctrine of issue preclusion means that a party cannot relitigate in a second laws uit an issue that (1) was contested by the parties and submitted for judicial determination in a prior case

, and (2) was actually and necessarily determined by a court of competent jurisdiction in the prior

case , unless (3) foreclosing relitigating would w ork a basic unfairness to the party otherwise bound by the first determination. See Martin v. Department of Justice , 488 F.3d 446, 454

– 455 (D.C. Cir. 2007). Under that test, the non

- justiciability of LaVergne’s constitutional claim was conclusively resol ved in the New Jersey litigation.

First , the threshold jurisdictional question of the justiciability of LaVergne’s clai m about the ratification and meaning of Article the First was contested and submitted for resolution to the Third Circuit in the prior case. See Brief of Appellees John A. Boehner and Karen L. Haas, LaVergne v. Bryson , No. 12

- 1171, 2012 WL 1649995, at *1 (3d Cir. April 18, 2012) (“ Is Mr. LaV ergne's claim that ‘ Article the First ’ actually was ratified a non

- justiciable political question? Answer: Yes. ”); id. at *35

– 38 ( detailed arguments regarding political question doctrine )

.
Second

, th at same justiciability issue was actually and necessari ly decided in the previous litigatio n . The Third Circuit squarely held that the political question doctrine bars adjudication of LaVergne’s claim that Article the First was properly ratified. LaVergne , 497 F. App’x at 222

. LaVergne suggest s that the issue was not actually and necessarily decided because the Third Circuit affirmed the dismissal of his complaint on two alternative grounds, either of which would have been sufficient to support the court’s ruling : (1) lack o f standing and (2) t he political question doctrine

. LaVergne , 497 F. App’x at 221

– 222. But a dismissal on alternate and independent grounds has preclusive effect with respect to both grounds when, as here, the appellate
court explicitly affirm s the dismissal on both grounds

. See Dozier v. Ford Motor Co. , 702 F.2d 1189, 1194 (D.C Cir. 1983 ); see also R ESTATEMENT (S ECOND ) OF J UDGMENTS § 27 cmt. o ( A M

. L AW

. I NST

. 1982)

. LaVergne separately objects that the Third Circuit did not “affirm” the lower court’s decision on politica l question grounds because the district court did not expressly rely on that doctrine

.4 That argument goes nowhere . T he Third Circuit’s express reliance on the political question doctrine is itself sufficient to trigger issue preclusion. See R ESTATEMENT (S ECOND ) OF J UDGMENTS § 27 cmt. o (preclusion available if “the losing party has * * * obtained an appellate decision on the issue”) ; LaVergne , 497 F. App’x at 222 (LaVergne’s claims were non

- justiciable because “[t]he issue of whether a consti tutional amendment has been properly ratified is a political question.”) (alteration in original ; quoting United States v. McDonald , 919 F.2d 146, 1990 WL 186103, at *3 (9th Cir. 1990) (table) ) ; see also App. 353 (district court explaining that the New Jer sey district court’s citation to Clemons v. United States Dep ’ t of Commerce , 710 F. Supp. 2d. 570 (N.D. Miss.)

, vacated and remanded by 562 U.S. 1105 (201 0), reflected its invocation of the political question doctrine)

.

Nor (even assuming it is legally relevant) did the Third Circuit’s issuance of the a dditional and a lternative jurisdictional holding that LaVergne lacked standing in any way discourage him from seeking further review of that court’s political question ruling

. Cf. Dozier , 702 F.2d at 1194 ( reasoning that preclusive effect might not apply to alternative holdings if to do so would discourage litigants from conceding the adequacy of one of them on appeal). Th e proof is in LaVergne’s own pen . He filed a petition for a writ of certiorari with the United States Supreme Court that sought review of both the Third Circuit’s standing and political question holdings

. Petition for Writ of Certiorari at ii

– iii, LaVergne v. Bryson , 568 U.S. 1161 (201 3 ) (No. 12

- 778), 2012 W L 6722086

.
Third , t he New Jersey district court and Third Circuit were courts of competent jurisdiction to adjudicate the justiciability of LaVergne’s Article the First arguments

. See 28 U.S.C. § § 1331 (federal district court jurisdiction over questions arising under the United States Constitution)

, 1291 (federal circuit court jurisdiction over appeals from final decisions of district court s ).

LaVergne contends that 28 U.S.C. § 2284, which governs actions challeng ing the constitutionality of the apportionment of congressional districts, required that his New Jersey complaint be heard before a three

- judge court , and so the single district court judge in New Jersey lacked jurisdiction to dismiss his case . LaVergne further argues th at that jurisdic tional foot fault deprived the Third Circuit of appellate jurisdiction

. LaVergne is mistaken. 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 court s [,] ” as was the case in New Jersey. Gonzalez , 419 U.S. at 100 . The Third Circuit, in turn, had appellate jurisdiction to determine “the correctness of the District Court’s view” on th e question of justiciability. See i d. at 101 ; see also MTM, Inc. , 420 U.S. at 80 3

– 80 4 (appeals of issues “short of the merits” in cases subject to a three

- judge district court requirement should be heard first by circuit courts of appeals).

LaVergne ’s argument that Article III’s “case or controversy” requiremen t preclu ded the political question doctrine ruling misunderstands the law

. T he New Jersey district court and Third Circuit’s determinations that he lacked standing did not deprive them of jurisdiction to decide that his action was also barred by the political que stion doctrine. B ecause b oth grounds for dismissal5 are jurisdictional , they could equally be addressed at the threshold of LaVergne’s case

. See Schlesinger v. Reservists Comm. to Stop the War , 418 U.S. 208, 215 (1974) (“[T] he concept of justiciability, w hich expresses the jurisdictional limitations imposed upon federal courts by the ‘case or controversy’ requirement of Art. III, embodies both the standing and political question doctrines [.]”).

F

inally , the application of issue preclusion in this case would work no unfairness to LaVergne. Indeed, LaVergne does not raise any discernible unfairness argument on appeal

, see LaVergne Br. at 46

– 55
, nor is any unfairness apparent on this record

.

IV

For all of those reasons, w e affirm the well

- reasoned decision of the district court that LaVergne is precluded from relitigating the prior determination that his constitutional claim is barred by the political question doctrine. Because that doctrine is jurisdicti onal, the district court properly dismissed LaVergne’s case. See National Ass’n of Home Builders v. EPA , 786 F.3d 34, 43 (D.C. Cir. 2015).

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See F ED

. R. A PP

. P. 41 (b); D.C. C IR

. R. 41(a)(1).

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ D aniel J. Reidy Deputy Clerk