Nat'l Coalition to save out Mall v. Norton, 01-5290

• Decision Date: 06 November 2001
• Docket Number: No. 01-5290,01-5290
• Citation: 269 F.3d 1092
• Parties: (D.C. Cir. 2001) National Coalition to Save Our Mall, et al., Appellants v. Gale A. Norton, in her official capacity as Secretary of the Interior, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1092

269 F.3d 1092 (D.C. Cir. 2001)

National Coalition to Save Our Mall, et al., Appellants v. Gale A. Norton, in her official capacity as Secretary of the Interior, et al., Appellees

No. 01-5290

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2001

Decided November 6, 2001

Appeal from the United States District Court for the District of Columbia (No. 00cv02371)

William T. Mayton argued the cause for appellants. With him on the pleadings was Andrea C. Ferster.

R. Justin Smith, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the pleadings were Andrew C. Mergen, Patricia L. Weiss and Sean H. Donahue, Attorneys.

Before: Sentelle and Tatel, Circuit Judges, and Williams, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge Williams.

Williams, Senior Circuit Judge:

A group of organizations, here collectively called the Coalition, filed suit in October 2000 seeking an injunction against the construction of a proposed World War II Memorial on the National Mall. The defendants were a variety of agencies--the Department of the Interior, the National Parks Service, the Commission of Fine Arts, the National Capital Planning Commission, and the American Battle Monuments Commission--responsible either for the construction of the Memorial or for some link in the chain of permitting and approval. The Coalition asserted that in approving the design and construction of the Memorial, the defendant agencies violated a variety of statutes: the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(2)(C), the Commemorative Works Act, 40 U.S.C. 1001 et seq., the National Historic Preservation Act, 16 U.S.C. 470f et seq., and the Federal Advisory Committee Act, 5 U.S.C. App. II, 10(a).

In May 2001, while the case was pending in district court, Congress enacted Public Law No. 107-11, 115 Stat. 19 (2001) (the "Act"), which appears to exempt construction of the Memorial from the possible statutory obstacles and to bar judicial review of agency decisions underlying the construction. The Act's full text is as follows:

Section 1. Approval of World War II Memorial Site and Design.

Notwithstanding any other provision of law, the World War II memorial described in plans approved by the Commission of Fine Arts on July 20, 2000 and November 16, 2000, and selected by the National Capital Planning Commission on September 21, 2000 and December 14, 2000, and in accordance with the special use permit issued by the Secretary of the Interior on January 23, 2001, and numbered NCR-NACC-5700-0103, shall be constructed expeditiously at the dedicated Rainbow Pool site in the District of Columbia in a manner consistent with such plans and permits, subject to design modifications, if any, approved in accordance with applicable laws and regulations.

Sec. 2. Application of Commemorative Works Act.

Elements of the memorial design and construction not approved as of the date of enactment of this Act shall be considered and approved in accordance with the requirements of the Commemorative Works Act (40 U.S.C. 1001 et seq.).

Sec. 3. Judicial Review.

The decision to locate the memorial at the Rainbow Pool site in the District of Columbia and the actions by the Commission of Fine Arts on July 20, 2000 and November 16, 2000, the actions by the National Capital Planning Commission on September 21, 2000 and December 14, 2000, and the issuance of the special use permit identified in section 1 shall not be subject to judicial review.

Pub. L. No. 107-11. In passing the statute, Congress acted on its October 2000 resolution to ensure that "the completed memorial will be dedicated while Americans of the World War II generation are alive." S. Con. Res. 145, 106th Cong. (2000); see also Declaration of William B. Owenby, Director of Procurement and Contracting, American Battle Monuments Commission p 2 (Aug. 27, 2001) ("Of the sixteen million citizens who served in uniform during World War II only five million are alive today and these veterans are dying at the rate of approximately 1,100 per day.").

The district court dismissed the action, explaining that it lacked subject matter jurisdiction. National Coalition to Save Our Mall v. Norton, No. Civ. A. 00-2371(HHK) (D.D.C. Aug. 16, 2001). On appeal the Coalition argues that the statute did not effect such a broad exemption for the Memorial, and that, if its language really did so, it encroached on the powers of the federal courts in violation of the separation of powers principles of Article III.

We find that the Act withdrew our subject matter jurisdiction over the statutory claims, and therefore that we lack jurisdiction to entertain them. We further find that it does not violate Article III.

* * *

The Coalition first contends that the strong presumption for judicial review of agency decisions, see, e.g., Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986), requires us to read the Act as not precluding judicial review of the statutory claims.

But the presumption is only that, and can be overridden by specific language or by clear and convincing evidence of legislative intent. Id. at 671-73. It is hard to see how Congress could make it clearer than it has here, providing that "[t]he decision to locate the memorial at the Rainbow Pool site[,] ... the actions [of the Agencies,] ... and the issuance of the special use permit ... shall not be subject to judicial review." Pub. L. No. 107-11, 3.

Section 3's preclusion of review of the relevant agency decisions, moreover, tracks 1's direction that the Memorial described in those decisions be "constructed expeditiously" in accordance with the named permits, "[n]otwithstanding any other provision of law." On its face, the phrase demonstrates Congress's clear intent to go ahead with the Memorial as planned, regardless of the planning's relation to pre-existing general legislation. This would be clear even if we disregarded the classical but sometimes forgotten purpose of such a non obstante clause, namely, to prevent courts from struggling to harmonize a statute with prior ones in the name of the presumption against implied repeal. See Caleb Nelson, "Preemption," 86 Va. L. Rev. 225, 237-42 (2000).

To counter the language of the Act, the Coalition relies chiefly on D.C. Federation of Civic Associations v. Volpe, 434 F.2d 436 (D.C. Cir. 1970). There we held that a bridge construction project of the Department of Transportation remained subject to pre-existing law despite a statute directing its construction "[n]otwithstanding any other provision of law, or any court decision or administrative action to the contrary." Id. at 437-38. But as we stressed in D.C. Federation, the statute had a savings clause providing that "[s]uch construction ... shall be carried out in accordance with all applicable provisions of title 23 of the United States Code." Id. at 437-38. We found that this left the construction subject to claims based on that title. Id. at 447. Public Law No. 107-11, in contrast, contains savings clauses directed entirely to changes in design or planning that might follow the specified approvals and permits: "design modifications" ( 1) (emphasis added), and "[e]lements ... not approved as of the date of enactment" ( 2).

Both the language of 3, the Act's purpose as shown in 1, and its overall structure evince an unequivocal intent to cut off judicial review of all the defendant agencies' past actions regarding the Memorial. Barring some constitutional infirmity, we lack jurisdiction over the Coalition's statutory claims.

The Coalition contends that if the Act's language withdrew jurisdiction over their statutory claims, then it infringes on judicial power under Article III. We find no such infringement.

First we note that the Act does not purport to bar our consideration of its own constitutionality. See Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 98-101 (1998) (holding that, absent special circumstances, a court may not reach a merits issue without having first found that it has jurisdiction). Here, 3 withdraws jurisdiction only over the "decision to locate the memorial" and "the actions by [various agencies]." Thus, just as Congress's withdrawal of jurisdiction over "decision[s]" of the Veterans' Administration left the courts free to adjudicate constitutional claims against the VA's enabling statute, Johnson v. Robison, 415 U.S. 361, 366-74 (1974), so the Act here does not touch our jurisdiction over its own constitutionality.

The Coalition argues that 3 violates the principles in United States v Klein, 80 U.S. 128 (1871). That decision dealt with a suit for the proceeds of property seized and sold by the army in the Civil War. The administrator of the deceased prior owner's estate sued under legislation allowing recovery by such owners under proof of loyalty, which the Supreme Court had held was satisfied by receipt of a presidential pardon. After the plaintiff recovered in the Court of Claims, Congress passed another statute, denying such pardons any effect in showing loyalty and providing that acceptance without...