Public Citizen v. U.S. Dist. Court, Dis., Columbia

• Decision Date: 29 May 2007
• Docket Number: No. 06-5232.,06-5232.
• Parties: PUBLIC CITIZEN, Appellant v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

486 F.3d 1342

PUBLIC CITIZEN, Appellant v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, Appellee.

No. 06-5232.

United States Court of Appeals, District of Columbia Circuit.

Argued February 9, 2007.

Decided May 29, 2007.

Appeal from the United States District Court for the District of Columbia (No. 06cv00523).

Allison M. Zieve argued the cause for appellant. With her on the briefs were Adina H. Rosenbaum, Brian Wolfman, and Scott L. Nelson.

Martha Jane Perkins was on the brief for amici curiae Representatives Henry R. Waxman, et al. in support of appellant urging reversal.

Alisa B. Klein, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Peter D. Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, Jonathan F. Cohn, Deputy Assistant Attorney General, and Mark B. Stern, Attorney. R Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Michael F. Altschul and Helgi C. Walker were on the brief for amicus curiae CTIA-The Wireless Association in support of appellee.

Before: TATEL and GARLAND, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge.

Article I of the United States Constitution requires that before proposed legislation may "become[] a Law," U.S. CONST. art. I, § 7, cl. 2, "(1) a bill containing its exact text [must be] approved by a majority of the Members of the House of Representatives; (2) the Senate [must] approve[] precisely the same text; and (3) that text [must be] signed into law by the President," Clinton v. City of New York, 524 U.S. 417, 448, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998). Public Citizen, a not-for-profit consumer advocacy organization, filed suit in District Court claiming that the Deficit Reduction Act of 2005, Pub.L. No. 109-171, 120 Stat. 4 (2006) ("DRA" or "Act"), is invalid because the bill that was presented to the President did not first pass both chambers of Congress in the exact same form. In particular, Public Citizen contends that the statute's enactment did not comport with the bicameral passage requirement of Article I, Section 7 of the Constitution, because the version of the legislation that was presented to the House contained a clerk's error with respect to one term, so the House and Senate voted on slightly different versions of the bill and the President signed the version passed by the Senate. Public Citizen asserts that it is irrelevant that the Speaker of the House and the President pro tempore of the Senate both signed a version of the proposed legislation identical to the version signed by the President. Nor does it matter, Public Citizen argues, that the congressional leaders' signatures attest that indistinguishable legislative text passed both houses.

The District Court held that Public Citizen's bicameralism claim is foreclosed by the Supreme Court's decision in Marshall Field & Co. v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892). See Public Citizen v. Clerk, U.S. Dist. Ct. for D.C., 451 F.Supp.2d 109 (D.D.C. 2006). In that case, the Court held that the judiciary must treat the attestations of "the two houses, through their presiding officers" as "conclusive evidence that [a bill] was passed by Congress." Marshall Field, 143 U.S. at 672-73, 12 S.Ct. 495. Under Marshall Field, a bill signed by the leaders of the House and Senate—an attested "enrolled bill"—establishes that Congress passed the text included therein "according to the forms of the Constitution," and it "should be deemed complete and unimpeachable." Id. at 672-73, 12 S.Ct. 495. Recognizing that Marshall Field's "enrolled bill rule" prohibited it from questioning the congressional pedigree of the bill signed by the Speaker and President pro tempore, the District Court dismissed Public Citizen's complaint and denied its motion for summary judgment. Public Citizen, 451 F.Supp.2d 109.

Public Citizen has appealed, arguing that while Marshall Field may prohibit the impeachment of an enrolled bill by reference to congressional journals, the decision does not bar a court from considering other evidence extrinsic to an enrolled bill. Public Citizen claims further that even if Marshall Field was not so restricted as originally decided, subsequent decisions of the Court have narrowed the enrolled bill rule. Appellee and CTIA—the Wireless Association ("CTIA"), appearing as amicus curiae, urge affirmance and contend that Public Citizen lacks standing to challenge the DRA.

We agree with the District Court that the enrolled bill rule of Marshall Field controls the disposition of this case. We therefore affirm the judgment of the District Court. We find it unnecessary to determine whether Public Citizen has standing to bring suit, because we conclude that the Marshall Field rule of dismissal "represents the sort of `threshold question' [that] . . . may be resolved before addressing jurisdiction." Tenet v. Doe, 544 U.S. 1, 6 n. 4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005).

I. BACKGROUND

A. "Engrossed Bills" and "Enrolled Bills" in the House and Senate

Congress has established specific procedures governing passage of a bill:

[1] Every bill . . . in each House of Congress shall, when such bill . . . passes either House, be printed, and such printed copy shall be called the engrossed bill . . . .

[2] Said engrossed bill . . . shall be signed by the Clerk of the House or the Secretary of the Senate, and shall be sent to the other House, and in that form shall be dealt with by that House and its officers, and, if passed, returned signed by said Clerk or Secretary.

[3] When such bill . . . shall have passed both Houses, it shall be printed and shall then be called the enrolled bill, . . . signed by the presiding officers of both Houses and sent to the President of the United States.

1 U.S.C. § 106. An "engrossed bill" is thus one that has passed one chamber of Congress, while an "enrolled bill" has passed both the House and the Senate.

B. Public Citizen's Challenge to the DRA

On February 8, 2006, President Bush signed a budget bill known as the Deficit Reduction Act of 2005. In ten titles, the DRA amends a variety of familiar statutes, including the Federal Deposit Insurance Act, the Communications Act of 1934, and the Social Security Act. The provisions of the DRA are sweeping: the Act, inter alia, effects extensive changes to Medicare and Medicaid laws, provides relief for victims of Hurricane Katrina, creates a program through which households may obtain coupons to defray the cost of digital-to-analog converter boxes for their televisions, and, significantly, for purposes of this law suit, amends the U.S. Code to increase the filing fee for civil actions in federal district courts from $250 to $350.

Approximately six weeks after the President signed the DRA, Public Citizen filed a complaint against the Clerk of the U.S. District Court for the District of Columbia ("Clerk"), arguing that as an organization that routinely files civil suits, it anticipated having to pay the $100 fee increase on a regular basis. Public Citizen asked the District Court to declare the Act unconstitutional and compel the Clerk to maintain the $250 filing fee.

The facts in this case are straightforward and largely undisputed. Nonetheless, on review of a motion to dismiss, we "must treat the complaint's factual allegations as true . . . and must grant [Public Citizen] the benefit of all inferences that can be derived from the facts alleged." Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir. 2003) (internal quotation marks omitted). We will therefore recite the facts underlying the complaint as they have been presented by Public Citizen.

According to the complaint, in the Fall of 2005, the House and Senate passed different versions of a budget bill referred to as S. 1932. To iron out the differences, the legislation was sent to a conference committee. The committee produced a conference report which failed to pass the Senate. Shortly thereafter the Senate passed an amended version of S. 1932 wherein § 5101 specified a 13-month duration of Medicare payments for certain durable medical equipment. However, when the Senate clerk transmitted the engrossed S. 1932 to the House, he mistakenly changed § 5101 of the bill to reflect a 36-month duration of payments for durable medical equipment rather than the 13-month duration actually approved by the Senate. The House voted on this engrossed bill, including the erroneous duration figure. Because the legislation originated in the Senate, the House returned it to the Senate for enrollment. The Senate clerk, recognizing the transcription error in the engrossed bill, altered the text of the enrolled bill so that it included a 13-month rather than a 36-month duration. The version of the DRA signed by the presiding officers contains the 13-month figure. Thus, since the 13-month duration term in the enrolled bill passed the Senate but not the House, the President signed legislation that did not actually pass both houses of Congress in precisely the same form.

After filing its complaint, Public Citizen moved for summary judgment. The Clerk lodged a motion to dismiss the case under Federal Rule of Civil Procedure 12(b)(6). The District Court denied Public Citizen's motion and granted dismissal, concluding that even if it accepted Public Citizen's allegations as true, the bicameralism challenge still "must fail" under the enrolled bill rule of Marshall Field. Public Citizen, 451 F.Supp.2d at 128. Public Citizen now appeals the dismissal of its complaint and denial of its motion for summary judgment.

II. ANALYSIS

A. Standard of Review

The District Court dismissed Public Citizen's complaint for failure to state a claim upon which relief may be granted, see FED. R. CIV. P. 12(b)(6), and denied its motion for summary judgment, see FED. R. CIV. P. 56. A dismissal for failure...