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IN THE Supreme Court of the United States October Term, 2001 NATIONAL COALITION TO SAVE OUR MALL, WORLD WAR II VETERANS TO SAVE THE MALL, COMMITTEE OF 100 ON THE FEDERAL CITY, AND D.C. PRESERVATION LEAGUE, Petitioners, v. GALE NORTON, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, COMMISSION OF FINE ARTS, NATIONAL CAPITAL PLANNING COMMISSION, AND AMERICAN BATTLE MONUMENTS COMMISSION, Respondents. _________________________ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _________________________ The National Coalition to Save Our Mall, World War II Veterans to Save the Mall, Committee of 100 on the Federal City, and D.C. Preservation League hereby petition this Court for issuance of a writ of certiorari to review the decision of the United States Court of Appeals for the District of Columbia Circuit entered in this proceeding on November 6, 2001. OPINIONS BELOW The opinion of the United States Court of Appeals for the District of Columbia Circuit is reported at 269 F.3d 1092 (D.C. Cir. 2001), and is reprinted in the Appendix, at 1a-9a. The decision of the United States District Court for the District of Columbia is reported at 161 F. Supp.2d 14 (D.D.C. Aug. 16, 2001), and is reprinted in the Appendix, at 11a-31a. The order denying Petitioners' request for rehearing en banc is reprinted in the Appendix, at 10a. STATEMENT OF JURISDICTION The decision of the United States Court of Appeals for the District of Columbia Circuit was entered on November 6, 2001. On December 21, 2001, Petitioners filed a timely request for panel rehearing and rehearing en banc. The petitions for panel rehearing and rehearing en banc were denied by orders dated February 6, 2002. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). CONSTITUTIONAL
PROVISIONS AND STATUTES United States Constitution, Article III, § 1 provides, in pertinent part: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Public Law 107-11,115 Stat. 19 (May 28, 2001), provides:
The Commemorative Works Act, 40 U.S.C. §§ 1001, 1007, is reprinted in pertinent part in the Appendix at 32a-33a. The National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(C), reprinted in pertinent part in the Appendix, at 34a-36a. The National Historic Preservation Act, 16 U.S.C. § 470f, is reprinted in the Appendix, at 37a. The Federal Advisory Committee Act, 5 U.S.C. App. II, Sec. 10(a), is reprinted in pertinent part in the Appendix, at 38a. SUMMARY
At issue in this case is the constitutionality and interpretation of Public Law 107-11, 115 Stat. 19, "An Act to expedite the construction of the World War II Memorial in the District of Columbia," which was passed by Congress and signed into law by the President in May 2001. This law was passed for the express purpose of withdrawing the jurisdiction of the federal courts over a pending lawsuit filed by Petitioners in October 2000, challenging the various agency decisions approving the location and design of the World War II Memorial on the National Mall in Washington, D.C. Section 3 of Public Law 107-11 retroactively strips the federal district court of jurisdiction over Petitioners' pending lawsuit, thereby precluding the court from exercising its constitutionally assigned function of interpreting the laws made by Congress, including Public Law 107-11 itself. In doing so, Congress has arrogated to itself the essential function of interpreting and applying the laws of Congress to pending cases. As a result, Public Law 107-11 violates the constitutional principle governing the separation of powers between Congress and the federal judiciary set forth in United States. v. Klein, 80 U.S. 128 (1872). The D.C. Circuit decision failed to apply or understand this Court's decision in U.S. v. Klein, which is controlling precedent in this case. If allowed to stand, the D.C. Circuit's decision will establish an unlimited precedent for future extra-judicial actions by the legislative and executive branches to dispose of cases pending before the federal judiciary, against which the Courts and aggrieved parties would have no recourse. Such a result would undermine the U.S. Constitution's system of checks and balances by encroaching on the functions assigned to the federal judiciary by Article III of the U.S. Constitution. STATEMENT OF THE CASE
A. Factual Background. In a series of decisions made between 1995 and 2000, the Department of the Interior and National Park Service, the Commission of Fine Arts, the National Capital Planning Commission, and the American Battle Monuments Commission (collectively, "the Government"), approved the location and design of a new World War II Memorial at the Rainbow Pool at the east end of the Lincoln Memorial Reflecting Pool at the great cross-axis of the National Mall in Washington, D.C. The approved Memorial design calls for the destruction of the historic Rainbow Pool and the creation of a football-field-size walled plaza, enclosing the Mall's historically open space with enormous walls, 56 seventeen- foot-high granite pillars, and four-story-high triumphal arches. Plans for the Memorial also include a ranger station, a new roadway, and public restrooms. The World War II Memorial's location on the dedicated Lincoln Memorial grounds will have serious and unresolved adverse effects on the preeminent historic and cultural character of the National Mall, and forever block free public assemblies at the Rainbow Pool site, which is historically associated with demonstrations for civil rights and other civic and patriotic activities. As the federal Advisory Council on Historic Preservation determined in September 2000, in formal comments to the Secretary of the Interior: The National Mall is a site unique in American history. It is an architectural and landscape expression of great beauty, rich with historical association. But more than that, it has come to symbolize our Nation's democratic ideals. Its open vistas and traditional uses have enabled it to serve as truly common ground for all Americans. . . . Certain adverse effects of this proposal became inevitable upon its selection: the demolition and reconstruction of the Rainbow Pool, the dedicated use of existing open spaces in the premier historic landscapes, and permanent alteration of significant vistas and views of the McMillan Plan, in particular the axial vista from the Washington Monument to the Lincoln Memorial. On February 28, 2001, Petitioners filed a motion for a preliminary injunction to enjoin the Government from executing a contract to construct the World War II Memorial. On March 8, 2001, the district court granted Petitioners' request for a temporary restraining order, preventing the government from removing or damaging any of the historic Olmsted elms flanking the Rainbow Pool site of the World War II Memorial. Consideration of the pending motion for a preliminary injunction was then stayed at the request of the Government, following the decision by one of the Defendant agencies – the National Capital Planning Commission – to reconsider its prior approval of the Memorial, and the Government's agreement to refrain from any steps to proceed with construction of the Memorial in the interim. Soon after the litigation was stayed, Congress passed legislation, signed by the President on May 28, 2001. See Pub. L. 107-11, 115 Stat. 19 (May 28, 2001) ("Pub. L. 107-11"). On May 29, 2001, the day after the President signed the bill into law, the Government filed a motion to dismiss Petitioners' lawsuit. The Government argued that Public Law 107-11 withdrew the Court's jurisdiction over the entirety of Petitioners' lawsuit by precluding judicial review of all administrative decisions concerning the location and design of the World War II Memorial. B. Decisions Below. By Memorandum Opinion dated August 16, 2001, the district court granted the Government's motion to dismiss the case. The district court held that Section 3 of Public Law 107- 11 provides "clear and convincing evidence that Congress intended to preclude court review of those agency decisions concerning the location and design of the WWII Memorial." National Coalition to Save Our Mall v. Norton, 161 F. Supp.2d 14, 18 (D.D.C. 2001). App. 11a. The Court then rejected the Petitioners' argument that Congress' action violates the constitutional separation of powers principle articulated in United States v. Klein, 80 U.S. (13 Wall.) 128 (1872) The Petitioners appealed this decision, and filed a motion to enjoin construction of the Memorial until this appeal could be heard. The Court of Appeals for the D.C. Circuit denied Petitioners' motion for an injunction pending appeal. At the same time, the Court of Appeals directed that the case be set for oral argument solely on the question of whether Public Law 107-11 violates constitutional separation of powers restrictions. The Court did not permit the parties to submit any additional briefs on this issue.2 By decision dated November 6, 2001, a panel of the D.C. Circuit affirmed the district court's dismissal of the Petitioners' lawsuit, holding "We find that [Public Law 107-11] withdrew our subject matter jurisdiction over the [Petitioners'] statutory claims, and therefore that we lack jurisdiction to entertain them." National Coalition to Save Our Mall v. Norton, 269 F.3d 1092, 1096 (D.C. Cir. 2001). App. 3a. Petitioners motion for panel rehearing and petition for rehearing en banc were denied by the Court of Appeals on February 6, 2002. REASONS FOR GRANTING THE
WRIT I. The Decision of the Court of Appeals Conflicts with this Court's Decision in United States v. Klein, Which Bars Congress From Directing the Outcome of A Pending Case By Retroactively Withdrawing the Court's Subject Matter Jurisdiction. The constitutional parameters of Congress' authority to manipulate the jurisdiction of federal courts over pending cases is set forth in United States v. Klein, 80 U.S. 128 (1872). The congressional legislation at issue in Klein changed the rule of law concerning the effect of a presidential pardon, which had previously been considered evidence of loyalty in an action to recover property seized during the Civil War, to instead constitute evidence of disloyalty in such an action. In addition, the legislation also provided that "in all cases where judgment shall have been heretofore rendered in the court of claims in favor of any claimant, on any of the proof of loyalty then such as is above required and provided, . . . the Supreme Court shall, on appeal, have no further jurisdiction of the cause, and shall dismiss the same for want of jurisdiction." Klein, 80 U.S. at 141-44. This Court found that this statute was an unconstitutional congressional usurpation of the judicial power to adjudicate cases or controversies. The decision of the Court of Appeals, which conceded that it viewed the "exact meaning" of Klein as "far from clear," National Coalition to Save Our Mall v. Norton, 269 F.3d at 1095 (App. 6a), evidences a fundamental misunderstanding of both the facts and the holding in Klein. For example, the Court of Appeals erroneously distinguished Klein from the present case on the grounds that the legislation in Klein directed the outcome of a pending case "without amending the substantive law." Id. at 1096. App. 8a. In fact, the legislation at issue in Klein, like Public Law 107-11, both changed the applicable law, and then, through a retroactive withdrawal of jurisdiction, precluded the court from any role in interpreting the new law or applying it to the pending case. Thus, Klein is controlling precedent in this case. The Court of Appeals erred in conflating Section 1 and Section 3 of Public Law 107-11 in its analysis of whether the law violates separation of powers principles. In fact, the two Sections must be viewed separately in order to understand the constitutional flaw of Public Law 107-11. Section 1 directs a change in law, stating that, "[n]otwithstanding any other provision of law, the World War II Memorial . . . shall be constructed expeditiously at the Rainbow Pool site, subject to design modifications, if any, approved in accordance with applicable laws and regulations." Section 3, however, goes a crucial step further and provides that the various agency decisions approving the location and design of the World War II Memorial, decisions that were the subject of the pending lawsuit, "shall not be subject to judicial review," thereby barring the court from interpreting Section 1 or applying it to Petitioners' case. As the Court of Appeals properly recognized, Congress can of course change the laws in a manner that affects the outcome of a pending case: Klein "cannot be read as a prohibition against Congress's changing the rule of decision in a pending case, or (more narrowly) changing the rule to assure a pro-government outcome." National Coalition to Save Our Mall v. Norton, 269 F.3d at 1096 (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (App. 7a); see also Robertson v. Seattle, 503 U.S. 429 (1992) (finding legislation constitutional where it effects "a change in law, not specific results under old law."). However, while these decisions make clear that Congress may alter substantive law to affect the outcome of a pending case, Klein provides that Congress must allow the courts to exercise their essential function of interpreting and applying the change in law. Here, Congress went beyond merely changing the law that previously applied to the World War II Memorial, and also precluded the Court from applying or interpreting the scope or intent of this new law to Petitioners' pending case. Because Section 3 prevents the court from even determining what the requirements of Section 1 are and whether they have been met, Congress has in effect decided the case itself. This is precisely the outcome found to violate separation of powers principles in U.S v. Klein. Accordingly, the Court of Appeals erred by viewing Public Law 107-11 in its entirety as a permissible exercise of Congress' power to amend the substantive law pertaining to the World War II Memorial. Section 3 is manifestly nothing more than a jurisdiction-stripping provision that, by definition, cannot constitute a change of law. Rather, its sole function is to prevent the courts, in a pending case, from interpreting and applying the new law, in contravention of the principles set forth in U.S. v. Klein. II. Considered Apart from Section 3, Section 1 of Public Law 107-11 Would Not Have Preempted All the Claims Asserted in Petitioners' Lawsuit. The ultimate outcome of the litigation would not necessarily have been the same if Section 3's jurisdiction-stripping provision had not barred the courts from interpreting the statutory language and legislative history of Section 1 of Public Law 107-11. The legislative text of Section 1, on its face, does not clearly dispose of all of the claims in Petitioners' lawsuit. While Section 1 purports to expedite the construction of the Memorial, "notwithstanding any other provision of law," the legislative text itself plainly indicates that Congress did not intend for the Memorial to be exempted from all applicable laws and regulations. Rather, Section 1 contains a savings proviso that specifically acknowledges the continued applicability of some (albeit unspecified) "laws and regulations," normally followed during the course of a project's development and construction, which may require "design modifications" to the Memorial.3 Section 1 fails to specify which laws remain applicable and which are no long applicable because they might stand in the way of "expeditious" construction, and which laws that might require "design modifications" remain applicable. However, a plain reading of the text of Section 1 suggests that Congress intended to exempt the World War II Memorial from substantive legal requirements that might otherwise bar construction at the selected site, such as the Commemorative Works Act, 40 U.S.C. § 1007(b), while procedural laws that might result in design modifications remain applicable. By contrast, the view expressed by the Court of Appeals that because Section 1's savings clause referred to design "modifications," it was intended to apply only to decisions that "might follow the specified approvals and permits," App., at 5a (emphasis in original), is not supported by the plain language of Public Law 107-11. This interpretation cannot be squared with Section 2 of Public Law 107-11, which expressly provides that the Commemorative Works Act is applicable only to "Elements of the memorial design and construction not approved as of the date of enactment of this Act." If the saving proviso of Section 1 only applied, as the Court of Appeals suggests, to decisions that "might follow the specified approvals and permits," then Section 2 would simply be redundant of this provision. Instead, a fair reading of the statute that gives meaning to both Section 1 and Section 2 is that Congress intended to keep in place laws normally followed during the course of development and construction that might lead to modifications of the Memorial's design, including changes that would lessen the Memorial's impact on the National Mall. 4 The National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, a purely procedural statute which Petitioners' lawsuit sought to enforce in connection with the Memorial, is such a law. There is no principled distinction between design modifications that might be warranted by compliance with the Clean Water Act, which the Government concedes applies, and design modifications that might result from compliance with NEPA. To the contrary, the design modifications required by the Clean Water Act may be quite extensive, due to the need to treat and dispose of large amounts of arsenic-contaminated soils and groundwater removed from the site during excavation. Indeed, Section 1's savings clause is no different from that interpreted by the Court of Appeals in D.C. Federation of Civic Associations v. Volpe, 434 F.2d 436 (D.C. Cir. 1970). In that case, the Court of Appeals held that a similar savings proviso permitted a lawsuit to enforce environmental laws in connection with a controversial highway project in the District of Columbia to go forward, despite Congress' enactment of legislation containing similar language expediting construction of project "notwithstanding any other provision of law." The legislative history concerning the scope of what laws remain applicable to the World War II Memorial is, at best, conflicting. While isolated statements from certain members of Congress viewed the purpose of Public Law 107-11 in its entirety (i.e., including Section 3) as disposing of the claims asserted in Petitioners' lawsuit, these assertions by and large do not specifically focus on the effect of the substantive amendments to otherwise applicable law enacted by Public Law 107-11. 5 The important point here, however, is that interpreting the scope and applicability of Section 1 to the issues raised in Petitioners' lawsuit, based on the applicable legislative text and history and applying accepted principles of statutory construction, is precisely the function constitutionally assigned to the judicial branch. The constitutional flaw of Public Law 107-11 lies in the fact that, as a result of Section 3's retroactive withdrawal of jurisdiction from the courts, the Courts are foreclosed from performing this essential function. At bottom, Section 3 reflects Congress' distrust of the courts' ability to interpret the congressional directive in Section 1 and to apply it to the pending case. However, under our system of separation of powers, which provides checks on unlimited power by any one branch of government, Congress must trust the courts to give effect to the clear language and intent of new legislation and apply it to pending cases. Congress may not attempt to preempt the courts from exercising this essential judicial function by retroactively stripping the court of jurisdiction over a pending case, without violating the separation of powers requirement of the U.S. Constitution. Review by this Court is warranted due to the clear conflict between the circuit court's decision and this Court's decision in United States v. Klein. III. The D.C. Circuit's Holding That Section 3 of Public Law 107-11 Does Not Violate Separation of Powers Lacks Support In Any Decisions of This Court or Any Other Court. The Court of Appeals also erred in finding that Public Law 107-11 is similar to the congressional actions in the two other cases in which this Court addressed the scope of Congress' authority to enact legislation that affects pending cases, Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), and Pennsylvania v. Wheeling and Belmont Bridge, 59 U.S. 421 (1855). See National Coalition to Save Our Mall v. Norton, 269 F.3d at 1096. App. 8a. Those cases, however, are not on point since the legislation involved did not contain any legislative effort to strip the courts of jurisdiction over a pending case, such as that contained in Section 3 of Public Law 107-11, and in the legislation found unconstitutional in U.S. v. Klein. For example, in Robertson, environmental groups had challenged the U.S. Forest Service's decision to permit timber sales in areas known to contain northern spotted owls, an endangered species. In response, Congress passed new legislation adopting new guidelines for the future management of national forests, and then deemed the Forest Service's management plan for logging in these forests to be "adequate . . . for the purpose of meeting the statutory requirements that are the basis for the consolidated cases" brought by the environmental groups. Robertson, 503 U.S. at 435 While the statute involved in Robertson precluded judicial review of the new management guidelines adopted by Congress, id. at 435, the new law expressly permitted the judicial review of the lawfulness of individual timber sales authorized under the new law. Id. at 434. Thus the legislative text at issue lacked any jurisdiction-stripping provision such as that contained in Section 3 of Public Law 107-11. As a result, this Court held that the congressional action merely "compelled changes in law, not findings or results under old law." Id. at 438-39. 6 Similarly, the legislation at issue in Pennsylvania v. Wheeling and Belmont Bridge, 59 U.S. 421 (1855), did not attempt to withdraw the jurisdiction of this Court to enjoin a railroad's construction of a bridge across the Ohio River. Instead, the legislation simply declared the bridges to be "lawful structures, . . . anything in any law or laws of the United States to the contrary notwithstanding." Id. This legislation, too, is analogous only to Section 1 of Public Law 107-11. It contained no jurisdiction- stripping provision such as the one found in Section 3, or the one found to violate the separation of powers principle in United States v. Klein. The present case should also be distinguished from a number of lower court decisions addressing whether federal legislation enacted in response to environmental lawsuits violates separation of powers concerns by retroactively exempting the challenged projects from otherwise applicable federal environmental laws. While in those cases, the challenged legislation exempted specific projects from otherwise applicable laws, the legislation did not retroactively strip the federal courts of jurisdiction to review the new law. Instead, in each of those cases, the courts retained their constitutionally assigned function of applying the new federal law. For example, in Stop H-3 Ass'n v. Dole, 870 F.2d 1419 (9th Cir. 1989), Congress passed legislation to expedite a controversial highway project, the construction of which had been enjoined by a federal court, by exempting the project from the specific federal law that was the subject of the lawsuit. Again, the congressional legislation did not strip the court of jurisdiction to hear the pending legal challenge to the highway project. To the contrary, the Court specifically distinguished the case from U.S. v. Klein, stating "[n]or is this a case in which Congress has passed a law providing that, upon proof of certain facts, a court must summarily dismiss for want of jurisdiction a pending claim based on a federal statute." Stop H-3 Ass'n v. Dole, 870 F.2d at 1438 n. 26. Instead, the Court specifically noted that "the courts retain jurisdiction to review Executive branch compliance . . . wherever that statute applies." Id. at 1437. Again, the key point of difference is that the legislation in the above cases includes no jurisdiction-stripping provision. Thus, the courts were able to interpret and apply the change in law to the merits of the case. In contrast, Section 3 of Public Law 107-11, by simultaneously withdrawing the court's jurisdiction to decide the pending case, completely prevents the court from exercising its constitutionally- prescribed function of interpreting the scope of Section 1 and applying it to the pending case. In sum, Congress has overstepped its constitutional bounds in enacting Public Law 107-11, and specifically Section 3, not by changing the rule of law affecting a pending case, but by simultaneously withdrawing the jurisdiction of the federal courts over the pending case, so that the courts are no longer free to exercise their constitutional function under Article III to decide justiciable controversies. No court has ever held that such jurisdiction-stripping provisions are constitutional, and United States v. Klein confirms that they are not. Moreover, in Section 1 Congress clearly contemplates the continued applicability of certain unspecified laws and regulations, which may well include some of the laws at issue in Petitioners' pending lawsuit. The constitutional vice of Section 3 is that it prevents the federal courts from even attempting to interpret the scope of Section 1 and its applicability to the claims raised in Petitioners' pending lawsuit. Review by this Court is warranted and necessary due to this clear conflict with established constitutional principles of separation of powers. CONCLUSION The petition for a writ of certiorari should be granted. May 3, 2002 1 This lawsuit also alleged violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(C), the National Historic Preservation Act, 16 U.S.C. § 470f, and the Federal Advisory Committee Act, 5 U.S.C. App. II, Sec. 10(a).
2 As a result, the D.C. Circuit's decision on the merits had the
benefit of only the very brief legal memoranda submitted in connection with
Petitioners' motion for an injunction pending appeal. Because these filings
also addressed equitable and statutory arguments, only three pages of legal
argument in Petitioners' memoranda addressed the important constitutional
argument to which the D.C. Circuit's decision was ultimately devoted.
3 For example, the Government has conceded that laws such as
the Clean Water Act, 33 U.S.C. § 1251 et seq., remain applicable to the
World War II Memorial, which will require the excavation, treatment, and
disposal of arsenic contaminated soil and groundwater.
4 As one legislator stated:
The bill permits the National Capital Planning
Commission to proceed with its plans to view an
on-site mock-up of the memorial and to consider
modifications to the design that will ensure that the
memorial respects the open, historic character of
the Mall, that significant vistas are not obstructed,
and that the height and mass of this memorial are
appropriate for the site.
5 For example, one member of Congress explained, "Through
sections one and three, the site and design for the World War II Memorial
are finalized, expeditious construction is directed, and the prospect of
further delay through judicial challenges or other re-considerations of the
selected site and design are eliminated." 147 Cong. Rec. S5261 (May 21,
2001) (emphasis added). App. 18a.
6 The D.C. Circuit posited that the only difference between Pub.
L. 107-11 and the legislation in Robertson is that Section 1 of Pub. L. 107-
11, which purports to change the rule of law applicable to a single federal
project — the World War II Memorial — is narrower than the legislation at
issue in Robertson, which involved a broader programmatic change to
federal logging policies in 13 national forests. National Coalition to Save
Our Mall v. Norton, 269 F.3d at 1096. App. 8a. However, the
constitutional deficiency in Pub. L. 107-11 lies not in the fact that Section 1
effects a change in law that is "narrow," i.e., project-specific as opposed to
program-specific, or in the retroactive nature of the change in law. Rather,
as noted above, the constitutional defect of Pub. L. 107-11 lies in Section 3,
which retroactively withdraws the jurisdiction of the courts over the
Coalition's pending case, thereby preventing the Court from applying or
interpreting this change in law. |
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