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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 19-5028 September Term, 2020

FILED ON: FEBRUARY 12, 2021

EUGENE MARTIN LAVERGNE,

APPELLANT

FREDERICK JOHN LAVERGNE, ET AL.,

APPELLEES

v.

UNITED STATES HOUSE OF REPRESENTATIVES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-00793)

Before: SRINIVASAN, Chief Judge, HENDERSON and MILLETT, Circuit Judges.

J U D G M E N T

This case was considered 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. CIR. R. 36(d). It is

ORDERED AND ADJUDGED that the judgment of the United States District Court for the 

District of Columbia be AFFIRMED.

I

Proceeding pro se, Eugene Martin LaVergne argues that the membership of the United States 

House of Representatives has been wrongly apportioned for at least the last 230 years. On 

LaVergne’s reading of constitutional history, a proposed constitutional amendment concerning 

apportionment (called “Article the First”) was, in fact, ratified in the first decade of the Republic’s 

existence. In addition, LaVergne claims to have uncovered a scrivener’s error in the first copies 
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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 Members. According to LaVergne, 

that longstanding mistaken understanding of the Constitution means 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 the 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. Bryson, 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 doctrine again 

here. So the district court properly dismissed the case.

II

Five years after the Third Circuit upheld the dismissal of LaVergne’s first case invoking 

Article the First to challenge 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. LaVergne v. United States House of Representatives, No. 1:17-cv-00793, 2018 WL 

4286404 (D.D.C. Sept. 6, 2018). Although the claims of the remaining plaintiffs were still 

pending, LaVergne filed a notice of appeal challenging his dismissal. The governmental 

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 remaining plaintiffs’ claims and the case. LaVergne v. United States House of 

Representatives, 392 F. Supp. 3d 108 (D.D.C. 2019).1

 

The district court’s July 11, 2019 final judgment cured the prematurity of LaVergne’s notice 

of appeal and vested 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, 

because the district court resolved LaVergne’s constitutional claims on the basis of jurisdictional 

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 merits[.]”); 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.
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defendants’ 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 Group Ltd. v. National 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—

he has forfeited any challenge to that ruling. See United States ex 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

The doctrine of issue preclusion means that a party cannot relitigate in a second lawsuit 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 work 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 resolved in the New Jersey litigation. 

First, the threshold jurisdictional question of the justiciability of LaVergne’s claim 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. LaVergne'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, that same justiciability issue was actually and necessarily decided in the previous 

litigation. 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 suggests 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 of standing and (2) the 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 affirms the dismissal on both grounds. See Dozier v. Ford Motor Co., 702 F.2d 

1189, 1194 (D.C Cir. 1983); see also RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. o (AM.

LAW. INST. 1982). 

LaVergne separately objects that the Third Circuit did not “affirm” the lower court’s decision 

on political question grounds because the district court did not expressly rely on that doctrine. 
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That argument goes nowhere. The Third Circuit’s express reliance on the political question 

doctrine is itself sufficient to trigger issue preclusion. See RESTATEMENT (SECOND) OF 

JUDGMENTS § 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 constitutional 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 

Jersey 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 (2010), reflected its invocation of the 

political question doctrine). 

Nor (even assuming it is legally relevant) did the Third Circuit’s issuance of the additional 

and alternative 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). The 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 (2013) (No. 12-778), 

2012 WL 6722086.

Third, the 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 courts).

LaVergne contends that 28 U.S.C. § 2284, which governs actions challenging 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 that that jurisdictional 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 courts[,]” 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 the question of 

justiciability. See id. at 101; see also MTM, Inc., 420 U.S. at 803–804 (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” requirement precluded the 

political question doctrine ruling misunderstands the law. The 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 question doctrine. Because both grounds for dismissal
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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, which 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[.]”). 

Finally, 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, we 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 jurisdictional, 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 FED. R. APP. P. 41(b); D.C. CIR. R. 41(a)(1).

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk