Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 1 of 16 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 1 of 16 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EUGENE MARTIN LAVERGNE, et al., Plaintiffs, v. Case 1:17-cv CKK-CP-RDM UNITED STATES HOUSE OF REPRESENTATIVES, et al., Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE FEDERAL DEFENDANTS MOTION TO DISMISS THE CLAIMS OF EUGENE MARTIN LAVERGNE JESSIE K. LIU United States Attorney DANIEL F. VAN HORN Chief, Civil Division November 13, 2017 JOHNNY H. WALKER Assistant United States Attorney 555 4th Street, N.W. Washington, District of Columbia Telephone: johnny.walker@usdoj.gov

2 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 2 of 16 CONTENTS Table of Authorities... ii INTRODUCTION...1 BACKGROUND...1 A. Mr. LaVergne s Unconventional Constitutional Theory...1 B. Mr. LaVergne s Prior Unsuccessful Attempt to Litigate His Theory...6 ARGUMENT...8 I. Collateral Estoppel Bars Mr. LaVergne from Demonstrative Justiciability...9 II. Collateral Estoppel Also Bars Mr. LaVergne from Establishing Standing...11 CONCLUSION...12 i

3 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 3 of 16 AUTHORITIES Cases Allen v. McCurry, 449 U.S. 90 (1980)... 8 American Iron & Steel Inst. v. EPA, 886 F.2d 390 (D.C. Cir. 1989)... 8 Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313 (1971)... 9 Coleman v. Miller, 307 U.S. 433 (1939)... 7, 11 Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987) Dozier v. Ford Motor Co., 702 F.2d 1189 (D.C. Cir. 1983) Gonzalez-Vera v. Kissinger, 449 F.3d 1260 (D.C. Cir. 2006)... 9, 10 LaVergne v. Bryson, 497 Fed. App x 219 (3d Cir. 2012)... 7, 10, 11 LaVergne v. Bryson, No , 2011 WL (D.N.J. Dec. 16, 2011)... 7, 10 McLaughlin v. Bradlee, 803 F.2d 1197 (D.C. Cir. 1986)... 8 Montana v. United States, 440 U.S. 147 (1979)... 9 Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)... 9 Raines v. Byrd, 521 U.S. 811 (1997)... 7 Safadi v. Novak, 574 F. Supp. 2d 52 (D.D.C. 2008) Scaffer v. Clinton, 240 F.3d 878 (10th Cir. 2001) ii

4 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 4 of 16 Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974) United States v. McDonald, 919 F.2d 146 (9th Cir. 1990) Other Authorities 18 Moore s Federal Practice - Civil [b][ii] (2017) A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 4436 (2d ed.) iii

5 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 5 of 16 INTRODUCTION Eugene LaVergne is one of five plaintiffs in this case who contend that a provision in the United States Constitution called Article the First recognized only by them requires that the House of Representatives contain at least 6,230 members, thereby invalidating nearly everything that body has done in recent history for failure to achieve a quorum. Mr. LaVergne made the same claim in an earlier federal court case he brought in 2011, which was sua sponte dismissed as insubstantial by the district court and summarily affirmed in the court of appeals. Those courts (noting the clear meritlessness of Mr. LaVergne s claims) held that Mr. LaVergne lacked standing to contend that Article the First had been ratified and that the issue presented a nonjusticiable political question. Having failed on those issues in those courts, Mr. LaVergne is precluded by the doctrine of collateral estoppel from prevailing on them in this one. Accordingly, his claims must be dismissed. BACKGROUND A. Mr. LaVergne s Unconventional Constitutional Theory. Mr. LaVergne contends that there is a provision in the United States Constitution known only to him and his coplaintiffs that requires the House of Representatives to be apportioned such that there be at least one representative for every 50,000 persons in the United States. Given that the United States had a population of some million people as of the 2010 census, the current House should, by Mr. LaVergne s math, have at least 6,230 members. See Am. Compl. 19 1, ECF No. 4. For a House that size to achieve the quorum necessary to conduct business, 3,116 members would need to be present. Id. at But the current House of the 115th Congress contains a total of only 435 members. Thus, Mr. LaVergne says, each and every action taken by the House of the 115th Congress and presumably every other Congress in recent history lacked the necessary quorum and must be declared illegal and void ab initio. Id. at 67 J. This would

6 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 6 of 16 seemingly cover many hundreds of laws and other legislative actions, but Mr. LaVergne notes only three specific examples: the election of Paul Ryan to be Speaker of the House on January 3, 2017, id.at 67 I, the enactment of a joint resolution disapproving a broadband-privacy regulation on March 28, 2017, id. at 71 10, and the passage by the House of the American Health Care Act of 2017 on May 4, 2017, id. at Mr. LaVernge s novel theory arises from a constitutional amendment that was proposed in 1789 but never ratified by a necessary number of states. As Mr. LaVargne notes, the ten amendments that make up the Bill of Rights were initially proposed by Congress as twelve amendments styled Article the First through Article the Twelfth. See id., Ex. F, National Archives, The National Archives Presents the ORIGINAL Bill of Rights with 12 Amendments!, ECF No. 4. Article the Frist, as engrossed by Congress, read as follows: Article the First. 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 proposition shall be so regulated by Congress, that there shall be not less than 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., Ex. J. 1 If fully ratified, this amendment would have modified the language in Article I requiring that the number of Representatives shall not exceed one for every thirty Thousand. Art. I, 2, 1 All the other proposed amendments were eventually adopted. Article the Third through Article the Twelfth became the first ten amendments known as the Bill of Rights. Article the Second remained pending for over two hundred years, but was eventually ratified in 1992 as the Twenty- Seventh Amendment. It provides, No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. See id., Ex. F. 2

7 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 7 of 16 cl. 3. In other words, the maximum number of representatives would have be lowered from one for every 30,000 persons to one for every 50,000 persons. On its face, of course, the language of Article the First does not support Mr. LaVergne s theory. The proposed amendment would have set a high ceiling (which the current House does not violate), whereas Mr. LaVergne advocates a high floor. Recognizing this, Mr. LaVergne contends that there was a scrivener s error in the engrossed version of Article the First and that the last more in the amendment should have read less :... nor less than one representative for every fifty thousand persons. Id. at Though Mr. LaVergne acknowledges that the word more was apparently included on the copies of the amendment sent to and ratified by those states that approved it, he urges the Court to retroactively rewrite the engrossed version of the amendment and the ratifications of those states that approved it so that they all fit what he contends to have been the correct language. Id. at Mr. LaVergne s next problem is that Article the First was not ratified by the required number of states. Here, he contends that history simply has it wrong. Mr. LaVergne claims that his own research has revealed that Article the First was fully ratified on account of heretofore unknown actions by Connecticut and Kentucky, a matter of fact that was lost in history for over 220 years but will be documented and presented in detail at time of trial. Id. at But it appears that Mr. LaVergne s theory relies not on any newly uncovered facts (the facts he relies upon are known), but on his novel and bizarre construction of Article V, which provides the process by which the Constitution may be amended. Specifically, Mr. LaVergne claims to have discovered proof that Connecticut ratified Article the First in 1789 or Id. at The history of Article the First in Connecticut s legislature, however, is known and has been reported to Congress. See Thomas H. LeDuc, 3

8 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 8 of 16 Connecticut and the First Ten Amendments of the Federal Constitution, S. Doc. No (1937) (Exhibit 1 hereto). The lower house of the Connecticut legislature voted to ratify Article the First (with the other eleven proposed amendments) in October 1789, but the upper house did not complete the process. Id. at 2. A new legislature then took the matter back up in May This time, the lower house voted to ratify only the latter ten amendments (those that are now the bill of rights) but not Articles the First and Second. Id. at 3. The upper house, however, voted to ratify all twelve amendments. Id. The matter was therefore again deferred for the next legislature. In that legislature, the lower house voted to reject all of the amendments, and the matter appears never to have been taken up again. Id. Mr. LaVergne contends that this history resulted in ratification. He argues, without much explanation, that Article V does not require legislatures to act as they usually do. Am. Compl. at Therefore, apparently, Connecticut should be deemed to have ratified Article the First when its lower house alone voted to do so in See id. at 28 6 (contending that the Connecticut legislature ratified Article the First by... Article V standards in October 1789). If not then, then the Article should be deemed ratified when the upper house of a later-constituted legislature voted to do so in Id. (contending, alternatively, that Article the First should be deemed ratified in May 1790 if the Upper House Council is part of the Legislature for Article V purposes ). In other words, Mr. LaVergne appears to contend that for Article V purposes a bicameral legislature may act unicamerally when it comes to ratification of constitutional amendments. He offers no support for that notion. As for Kentucky, it is no revelation that its legislature ratified Article the First (among others) in 1792, but it never reported that ratification to the federal government. See David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, , at 464 & n.9 4

9 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 9 of 16 (noting that Kentucky s ratification appears not to have been officially reported to Congress and was therefore almost totally overlooked ). In any event, whether or not Kentucky s unreported ratification counts does not matter because, as Mr. LaVergne concedes, at the time of its ratification there were fifteen states in the union and only eleven (excluding Connecticut) had ratified Article the First, one short of the three-quarters required for full ratification. See Am. Compl. at The remedy sought by Mr. LaVergne is immodest to say the least. He asks that this Court to, among other things: (1) declare the current apportionment statute unconstitutional, id. at 59 A; (2) order state officials in Connecticut, Kentucky, and Virginia to notify the Archivist of the United States that they have ratified Article the First (using Mr. LaVergne s language, not the language they actually voted on), id. at 36 A; (3) order the Secretary of Commerce to report to the President that the House of Representatives must contain 6,230 members according to the 2010 census, id. at C; (4) order the President to report to the Clerk of the House that the House must contain 6,230 members, id. at D; (5) order the Clerk of the House to report the new number of representatives to every state governor, id. at E; (5) order state officials in each of the 50 states to hold new elections for members of the House, id. at F; and (6) declare every action by the House of Representatives of the 115th Congress illegal and invalid, id. at 67 J. Mr. LaVergne filed his complaint in this case on April 28, 2017, and amended it on May 2, See ECF Nos. 1, 4. It names several hundred defendants, including numerous federal officials as well as officials in each of the fifty states. On July 17, 2017, the Court noted that the docket did not reflect that Mr. LaVergne had served any of those defendants and ordered him to file proofs of service by July 27, 2017, or risk dismissal. ECF No. 11. On August 17, 2017, acting on motions by Mr. LaVergne and some state defendants, the Court extended Plaintiffs time to 5

10 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 10 of 16 serve the defendants and to file proof thereof to October 6, 2017, and it set a telephone conference for October 20, 2017, to set a schedule for proceedings. ECF No. 38. In filings submitted in anticipation of that conference, defendants noted that one of the bases under which they would move for dismissal was that Mr. LaVergne is collaterally estopped from pursuing it, having unsuccessfully litigated the same issue in ECF No. 45. During the conference, the Court requested that the federal and state defendants brief the issue of collateral estoppel as a threshold issue, before addressing other bases for dismissal. It entered a minute order to that effect on October 20, 2017, following the conference. B. Mr. LaVergne s Prior Unsuccessful Attempt to Litigate His Theory. This is not the first time that Mr. LaVergne has tried to get a court to declare Article the First ratified. On December 6, 2011, Mr. LaVergne filed a similar claim in the United States District Court for the District of New Jersey. See Compl., LaVergne v. Bryson, et al., No (D.N.J.), ECF No. 1. In his complaint in that case, he advanced two theories for recognizing Article the First: (1) that the amendment was fully ratified when Kentucky s legislature voted to approve it on June 24, 1792 (not counting Connecticut), because Article V s requirement that three-fourths of state legislatures ratify an amendment should be rounded down whenever the number of states is not a multiple of four, id , 59; and (2) that the number of states needed to ratify an amendment is fixed at the time that the amendment is proposed and does not change as new states are added to the union, id. 27, 59. Mr. LaVergne also advanced some other constitutional theories, apart from the claimed ratification of Article the First, for why he thought the apportionment of representatives was unconstitutional. Id Along with his New Jersey complaint, Mr. LaVergne filed a motion for a preliminary injunction. See Mot. for Prelim. Inj., LaVergne v. Bryson, et al., No (D.N.J.), ECF No. 1-6

11 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 11 of The court denied Mr. LaVergne s motion and sua sponte dismissed his case. See LaVergne v. Bryson, No , 2011 WL (D.N.J. Dec. 16, 2011). The court concluded that Mr. LaVergne s standing is questionable and that long standing principles establishing representation in our republican form of government have been thoroughly evaluated since the Constitutional Convention. Id. at *2. One month later, Mr. LaVergne appealed and sought a preliminary injunction from the United States Court of Appeals for the Third Circuit. In his motion, Mr. LaVergne added to his arguments concerning Article the First, contending that Connecticut should be deemed to have ratified it. See Mot. for Prelim. Inj. At 8 17, LaVergne v. Bryson, et al., No (3d Cir.). The Third Circuit denied Mr. LaVergne s motion and ultimately affirmed the district court. See LaVergne v. Bryson, 497 Fed. App x 219 (3d Cir. 2012). In a per curiam opinion, the court held that Mr. LaVergne s Article the First claim was properly dismissed on grounds of standing and justiciability. Id. at 221. With respect to standing, the court noted that Mr. LaVergne at most alleges a type of institutional injury an allegedly unconstitutionally low number of representatives which necessarily damages all United States voters equally. Id. (quoting Raines v. Byrd, 521 U.S. 811, 821 (1997)). As for justifiability, the court noted that [p]utting aside the considerable factual and historical problems with [Mr. LaVergne s] argument, 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. Id. (quoting Coleman v. Miller, 307 U.S. 433, 450 (1939)). Mr. LaVergne sought a writ of certiorari from the Supreme Court of the United States, but the Court denied his petition. 7

12 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 12 of 16 ARGUMENT Having tried and failed to litigate his claims about Article the First once, Mr. LaVergne is barred by the doctrine of collateral estoppel from trying to litigate them again. Under collateral estoppel also known as issue preclusion once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. Allen v. McCurry, 449 U.S. 90, 94 (1980). The standards for establishing the preclusive effect of a prior holding are: First, the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case.... Third, preclusion in the second case must not work a basic unfairness to the party bound by the first determination. Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (citing McLaughlin v. Bradlee, 803 F.2d 1197, 1201 (D.C. Cir. 1986)); see also Restatement (Second) of Judgments 27 (1982) ( When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. ). For purposes of issue preclusion, it is the judgment that matters, not the court s written reasons for that judgment. Thus, [e]ven in the absence of any opinion a judgment bars relitigation of an issue necessary to the judgment. American Iron & Steel Inst. v. EPA, 886 F.2d 390, 397 (D.C. Cir. 1989) (emphasis in original). Furthermore, once an issue is raised and determined, it is the entire issue that is precluded, not just the particular arguments raised in support of it in the first case. Yamaha, 961 F.2d at 254 (citing Restatement (Second) of Judgments 27 cmt. c (if previously litigated issue was one of law, new arguments may not be presented to obtain a different determination of that issue )). Additionally, alternative grounds on which a decision is 8

13 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 13 of 16 based should be regarded as necessary for purposes of determining whether the plaintiff is precluded by the principles of res judicata or collateral estoppel from relitigating in a subsequent lawsuit any of those alternative grounds. 18 Moore s Federal Practice - Civil [b][ii] (2017); id. n.120 (noting that the District of Columbia Circuit follows this view and citing Yamaha, 961 F.2d at 255). Collateral estoppel serves the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979) (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, (1971); see also Montana v. United States, 440 U.S. 147, (1979) ( To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions. ). Here, the doctrine of collateral estoppel applies on two fronts. It prohibits Mr. LaVergne from establishing whether the justiciability of his claims or his standing to litigate them. I. Collateral Estoppel Bars Mr. LaVergne from Demonstrating Justiciability. The United States District Court for the District of New Jersey and the United States Court of Appeals for the Third Circuit dismissed Mr. LaVergne s claims concerning Article the First in part because they presented a nonjusticiable political question. Those decisions preclude Mr. LaVergne from establishing the justiciability of his claims here. A dismissal based upon the political question doctrine is not an adjudication on the merits. Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1262 (D.C. Cir. 2006). It is a jurisdictional limitation[ ] imposed upon federal courts by the case or controversy requirement of Art[icle] 9

14 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 14 of 16 III. Id. (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974)). The doctrine of collateral estoppel, however, applies to dismissal for lack of jurisdiction as well as for other grounds. Safadi v. Novak, 574 F. Supp. 2d 52, 55 (D.D.C. 2008) (citing Dozier v. Ford Motor Co., 702 F.2d 1189, 1191 (D.C. Cir. 1983)); see also 18A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 4436 (2d ed.) ( Dismissals for want of justiciability are controlled by the same principles as apply to want of subject-matter jurisdiction. The decision should preclude relitigation of the very issue of justiciability actually determined, but does not preclude a second action on the same claim if the justiciability problem can be overcome. ). Thus, Mr. LaVergne s claims will be precluded by the doctrine of collateral estoppel to the extent that they raise the same issues of justiciability as his prior case. Collateral estoppel applies here. Each and every one of Mr. LaVergne s claims in this matter his request to invalidate the apportionment statute, to void all of the actions of the House of Representatives for the 115th Congress, and his demand for every state to hold elections for 6,230 new House members arise from the same fundamental contention as his prior case: that Article the First has been duly ratified and is part of the United States Constitution. Consequently, his claims in this case implicate the same justiciability issue that led to the failure of his claims in New Jersey and the Third Circuit: he cannot litigate the question of whether an amendment to the constitution has been ratified because it is a nonjusticiable political question. See LaVergne, 2011 WL , at *2 ( [T]he long standing principles establishing representation in our republican form of government had been thoroughly evaluated since the Constitutional Convention. ); LaVergne, 497 Fed. App x at 222 ( LaVergne s claims also fail on other grounds including lack of justiciability.... Putting aside the considerable factual and historical problems with his argument, [t]he issue of whether a constitutional amendment has been properly ratified is a political 10

15 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 15 of 16 question. ) (quoting United States v. McDonald, 919 F.2d 146 (9th Cir. 1990) and citing Coleman v. Miller, 307 U.S. 433, 450 (1939)). Accordingly, Mr. LaVergne is collaterally estopped from overcoming the argument that his claims are nonjusticiable. Those claims must therefore be dismissed. II. Collateral Estoppel Also Bars Mr. LaVergne from Establishing Standing. The same decisions by the District Court of New Jersey and the Third Circuit preclude Mr. LaVergne from establishing standing. Principles of collateral estoppel clearly apply to standing determinations. Cutler v. Hayes, 818 F.2d 879, 889 (D.C. Cir. 1987). In its order denying Mr. LaVergne s motion for a preliminary injunction and sua sponte dismissing his case, the District Court of New Jersey held that Mr. LaVergne lacked standing to bring his claims, including his claim that Article the First has been duly ratified, LaVergne, 497 F.ed. App x at 221 ( The District Court concluded that LaVergne lacked standing because, among other reasons, he did not suffer the injury he complained about. ), and the court of appeals affirmed in part on that basis, id. ( [LaVergne] has not suffered a sufficiently personal injury to establish standing. ) (quoting Scaffer v. Clinton, 240 F.3d 878, 885 (10th Cir. 2001)). Accordingly, Mr. LaVergne is collaterally estopped from establishing the standing necessary to bring the same claim here. * * * 11

16 Case 1:17-cv CKK-CP-RDM Document 65-1 Filed 11/13/17 Page 16 of 16 CONCLUSION For the foregoing reasons all of Plaintiff Eugene LaVergne s claims should be dismissed. Dated: November 13, 2017 Respectfully submitted, JESSIE K. LIU, D.C. Bar # United States Attorney DANIEL F. VAN HORN, D.C. Bar # Chief, Civil Division By: /s/ Johnny Walker JOHNNY H. WALKER, D.C. Bar # Assistant United States Attorney 555 4th Street, N.W. Washington, District of Columbia Telephone: johnny.walker@usdoj.gov Counsel for the Federal Defendants 12