Shook v. District of Columbia Financial Responsibility and Management Assistance Authority
| Decision Date | 06 January 1998 |
| Docket Number | No. 97-7087,97-7087 |
| Citation | 132 F.3d 775,328 U.S. App. D.C. 74 |
| Parties | , 122 Ed. Law Rep. 1168 Karen SHOOK, et al., Appellants, v. DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (96cv2601).
Barbara S. Wahl, Washington, DC, argued the cause for appellants, with whom Evan S. Stolove and Ronald C. Jessamy were on the briefs.
Daniel A. Rezneck, Washington, DC, argued the cause and filed the brief for appellee.
Alan B. Morrison, Washington, DC, argued the cause for amici curiae Missionary Baptist Ministers Conference for Washington D.C. and Vicinity, et al.
Before: SILBERMAN, WILLIAMS, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Appellants challenge an order issued by the District of Columbia Financial Responsibility and Management Assistance Authority (Control Board), divesting the District of Columbia Board of Education of control over the District's public schools and transferring the vast majority of the Board of Education's powers to an Emergency Transitional Education Board of Trustees. The district court dismissed appellants' claims that the order exceeded the scope of the Control Board's statutory authority and violated appellants' Fifth Amendment rights. We affirm in part and reverse in part.
The District of Columbia Board of Education was created by Congress in 1906. At the time of its inception, its nine members were appointed by the judges of the Supreme Court of the District of Columbia (something of a forerunner to the present federal courts). Congress placed "control" of the District's public schools in the Board of Education, giving it a wide range of powers, including determination of general educational policy, appointment of teachers, and selection and supervision of the Superintendent. In 1968, Congress changed the method of selecting the Board of Education to election by District citizens. Five years later, Congress passed the District of Columbia Self-Government and Governmental Reorganization Act (Home Rule Act), which granted greater rights of self-determination to District citizens and set forth the structural framework of the District government in the District Charter. Similar in certain respects to a state constitution, the Charter established the Board of Education as one of five independent agencies existing outside the control of the executive or legislative branches of the District government. Home Rule Act § 495, D.C.CODE ANN.s 31-101 (1981). Under the Charter, the Board of Education retained all authority that previously had been granted to it by Congress, including "control of the public schools." The Board of Education is required to appoint a Superintendent who "shall have the direction of and supervision in all matters pertaining to the instruction in all the schools under the Board of Education." D.C.CODE ANN. § 31-107 (1981). The Superintendent may be removed at any time by the Board of Education "for adequate cause affecting his character and efficiency as Superintendent." D.C.CODE ANN. § 31-110 (1981).
In 1995, 22 years after the advent of home rule, Congress found that the District government was in the midst of a "fiscal emergency," plagued by "pervasive" mismanagement and "fail[ing] to deliver effective or efficient services" to residents. District of Columbia Financial Responsibility and Management Assistance Act of 1995, Pub.L. No. 104-8, § 2(a)(1), (2) & (4), 109 Stat. 97, 98 (1995) (FRMAA). In response, it established what is popularly known as the Control Board. Composed of five members appointed by the President of the United States, the Control Board has been given wide-ranging powers to improve the District government's operations.
In 1996, Congress amended the FRMAA to strengthen the Control Board. Under § 207(d), it was given the ability to issue:
such orders, rules, or regulations as it considers appropriate to carry out the purposes of this Act and the amendments made by this Act, to the extent that the issuance of such an order, rule, or regulation is within the authority of the Mayor or the head of any department or agency of the District government, and any such order, rule, or regulation shall be legally binding to the same extent as if issued by the Mayor or the head of any such department or agency. (Emphasis added).
The Control Board, exercising power under that section, issued an order on November 15, 1996, reorganizing administration of the District's public schools. After finding what it perceived as the alarming condition of the school system, the November Order "established a 9-member Emergency Transitional Education Board of Trustees ... to assume immediate responsibility for the operation and management of the District of Columbia public school system." 1 November Order at p 2. The Board of Trustees was delegated "all the authority, powers, functions, duties, responsibilities, exemptions, and immunities of the Board of Education." Id. at p 6. The Order also discharged the Superintendent and redesignated his position as the CEO-Superintendent, an agent of the Control Board. The Control Board asserted the power to appoint the first CEO-Superintendent, but delegated the responsibility to appoint his successors to the Board of Trustees subject to the Control Board's approval. The Control Board or the Board of Trustees with the approval of the Control Board was empowered to remove the Superintendent from office at will. Id. at pp 7, 21. The Board of Education was left only with authority to license charter schools and to provide advice to the Board of Trustees, although its President was made a member of the Board of Trustees.
The Control Board's order relied on authority under § 207(d) to step into the shoes of the Board of Education, and with that power it in turn relied on D.C.Code § 31-107, which reads in part, The order, however, provides for a direct delegation from the Control Board to the Board of Trustees and a direct delegation from the Control Board to the Superintendent to perform all the duties theretofore performed by the old Superintendent as well as any other powers delegated by the Board of Trustees.
Appellants are 11 present and former members of the Board of Education who voted in the November 1996 Board of Education elections and sued in the district court seeking declaratory and injunctive relief. They claimed for a number of reasons that the order exceeded the Control Board's authority and even violated the Constitution by abridging their Fifth Amendment right to vote for school board members. The district court rejected all of appellants' claims on a motion to dismiss. Addressing appellants' argument that even if the Control Board had the power to step into the shoes of the Board of Education it surely could not, in that capacity, delegate the Board of Education's responsibility to a Board of Trustees--it could only delegate to the Superintendent--the court said,
In promulgating the November Order, the Control Board delegated nearly all of the Board of Education's authority to the Board of Trustees. Some of that power has been re-delegated by the Board of Trustees to the CEO-Superintendent. D.C.Code § 31-107 clearly contemplates that such a delegation would be lawful if undertaken by the Board of Education itself to the Superintendent, and by the Superintendent to a third party. Therefore, the delegation, when undertaken by the Control Board, standing in the Board of Education's shoes, must also be lawful under FRMAA § 207(d).
Shook v. D.C. Fin. Responsibility and Management Assistance Auth., 964 F.Supp. 416, 429 (D.D.C.1997) (emphasis added).
The Control Board contends, prompted by our own request that both parties discuss the issue, that we lack jurisdiction to review its action because § 207(d)(3) of the statute creating the Control Board provides that: "[t]he decision by the [Control Board] to issue an order, rule, or regulation pursuant to this subsection shall be final and shall not be subject to judicial review." We certainly respect congressional limitations of judicial review, see, e.g., Ayuda, Inc. v. Thornburgh, 880 F.2d 1325, 1339-40 (D.C.Cir.1989), vacated, 498 U.S. 1117, 111 S.Ct. 1068, 112 L.Ed.2d 1174 (1991), aff'd on remand, 948 F.2d 742 (D.C.Cir.1991), vacated sub nom. Ayuda, Inc. v. Reno, 509 U.S. 916, 113 S.Ct. 3026, 125 L.Ed.2d 714 (1993), aff'd on remand, 7 F.3d 246 (D.C.Cir.1993), cert. denied, 513 U.S. 815, 115 S.Ct. 70, 130 L.Ed.2d 26 (1994), but we are bound to follow the Supreme Court's doctrine under which "[t]he presumption in favor of judicial review may be overcome only upon a showing of 'clear and convincing evidence' of a contrary legislative intent." Traynor v. Turnage, 485 U.S. 535, 542, 108 S.Ct. 1372, 1378, 99 L.Ed.2d 618 (1988) (citing Abbott Lab. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511-12, 18 L.Ed.2d 681 (1967) (citations omitted)).
With that in mind, we note that the preclusion of review language is rather peculiar. It does not say that an order issued by the Control Board is immune from judicial review, but rather that the decision to issue such an order is not reviewable. Turning to the legislative history for clarification, we find in the Conference Report accompanying the 1996 Amendments an explanation that the language was designed to "waive[ ] all judicial review as to the authority of the control board to issue orders, rules, or regulations but does not waive judicial review as to the content of the orders, rules, and regulations." H.R. CONF. REP . No. 104-863,...
To continue reading
Request your trial
-
Wilkinson v. Legal Services Corporation, Civil Action No. 91-0889 (JHG) (D. D.C. 1998)
...into analysis of whether a procedural violation calls for a judicial remedy. Cf. Shook v. District of Columbia Financial Responsibility and Mgmt. Assistance Auth., 132 F.3d 775, 784 (D.C. Cir. 1998) (exercising doctrine of remedial discretion to afford agency's ultra vires actions de facto ......
-
California v. U.S. Dep't of Interior
...than to exclude delegation to other officials." Id. ; 199 F.3d at 90 (citing Shook v. District of Columbia Financial Responsibility and Management Assistance Auth. , 132 F.3d 775, 782 (D.C. Cir. 1998) ). Applying these principles to this matter leads to the conclusion that Section 151.12(c)......
-
Kajmowicz v. Whitaker
...official has a particular power rather than to exclude delegation to other officials." (citing Shook v. D.C. Fin. Responsibility & Mgmt. Assistance Auth. , 132 F.3d 775, 782 (D.C. Cir. 1998) )). By asking courts to consider whether the relevant statute "require[s] ... the applicable officer......
-
In re Sealed Case
...does really necessarily, or at least reasonably, imply the preclusion of alternatives." Shook v. D.C. Fin. Responsibility & Management Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998). In the present context, however, it is clear that by authorizing departures with government motions, t......
-
SUBMERGED INDEPENDENT AGENCIES.
...based in part on "legislative silence" on the matter); Shook v. District of Columbia Fin. Resp. & Mgmt. Assistance Auth., 132 F.3d 775, 783 (D.C. Cir. 1998) ("We therefore conclude that under [the statute] the Board of Education could not have delegated executive functions or policymaki......