132 F.3d 775 | D.C. Cir. | 1998
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.
I.
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
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 bythe 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, rale, 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.”
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, “[t]he Board of Education is authorized to delegate any of its authority to the Superintendent. The Superintendent is authorized to redelegate any of his or her authority subject to the approval of the Board.” 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 Superinten
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).
II.
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 1326,1339-40 (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, at 1182 (1996). We confess that we are uncertain as to what line Congress was drawing. It appears most likely that Congress meant the Control Board could not be challenged as to its basic authority to issue orders, rules, or regulations — it is an unpaid voluntary group that was to be recognized as exercising governmental powers — and that its internal decisionmaking process was not reviewable, but the actual content of individual orders could be challenged as exceeding its authority. The Control Board’s counsel bravely asserted that no Control Board order, no matter how outrageous (including, hypothetically, taking control of the Prince George’s County school system), could be challenged in federal court, but we simply do not believe that such an awesome delegation of unchecked authority can be drawn from Congress’ unclear statu
III.
Turning to the merits, appellants present both broad and narrow challenges to the Control Board’s order. The broad challenge — contesting the Control Board’s authority to encroach into the domain of the Board of Education — is based primarily on the claim that the Control Board’s power is limited vis-a-vis an independent agency of the District government. § 207(d), upon which the Control Board relied, authorizes the Control Board to issue directives “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.” It is clear that this section gives the Control Board enormous power vis-d-vis the Mayor, as well as all department and agency heads subordinate to the Mayor. It is also undisputed that § 207(d) does not grant the Control Board the same direct authority to act in the stead of the D.C. Council.
The Control Board responds that “any agency,” as a matter of simple English, includes “any independent agency,” because the greater includes the lesser. See Acron Inv. v. Federal Sav. & Loan Ins. Corp., 363 F.2d 236, 239 (9th Cir.1966) (“An ‘independent agency’ is no less an ‘agency’ in the ordinary sense of.the word....”). It also points to at least two places in the original FRMAA where the single word “agency” has been understood to include the Board of Education. In § 301(a)(1)(C), the District’s “budget” is defined to include “appropriations or loan or spending authority for all activities of all departments or agencies of the District of Columbia,” (emphasis added), and in § 302(a), the Chief Financial Officer is assigned the duty of “[m]aintaining custody of all public funds ... of the District government (or any department or agency of the District government)” (emphasis added). Both of these provisions have been administered without protest under the assumption that the Board of Education was a covered “agency,” and appellants do not claim that
Although there is no definitive indication in the statute itself as to Congress’ intent, the preamble to the FRMAA does include the finding that “the District of Columbia government fails to provide its citizens with effective and efficient services in areas such as education.” FRMAA § 2(a)(2). And turning again to the legislative history, we see no suggestion that Congress intended to exclude independent agencies, like the Board of Education, from the 207(d) power as one might expect to find if Congress had meant to draw the distinction. Indeed, the Conference Report accompanying the bill which includes § 207(d) expresses the conferees’ concern about the “severe mismanagement of the District of Columbia Public School System” and states that “strong'and immediate action must be taken to reverse this situation.” H.R. Conf. Rep. No. 104-863, at 1180 (1996) (emphasis added). It was “anticipate[d] that the [Control Board] will take such action to improve the management of the District of Columbia Public Schools.” Id. Appellants urge us to discount this language, pointing out that the conferees expressed their expectation in the section of the Conference Report dealing with the allocation of funds for “education facilities improvement,” and not the section explaining the 207(d) power. We think the language is significant, however, because it refers to the management of the schools generally rather than to the management of school facility improvements, which is discussed later in the same section of the Conference Report.
The only provision in the FRMAA thát could authorize the Control Board to take such immediate (and strong) action is § 207(d). Although the Control Board could implement recommendations for reorganizing administration of the schools under § 207(c), its action would not be immediate. The District government is given 90 days in which to respond to such recommendations, and if the Control Board’s recommendations are rejected, they can only be implemented after consultation with the appropriate congressional committees. While we find it a bit mystifying that the conferees included this important indication of their purpose in the wrong section of the conference report, we nevertheless think it evidences Congress’ understanding that the Control Board is able to use its 207(d) power to issue orders as if it were the Board of Education.
Even if the Control Board may use § 207(d) vis-d-vis the Board of Education, appellants argue that it may not displace the Board of Education entirely because that would be inconsistent with the District Charter which specifically provides that “[t]he control of the public schools in the District of Columbia is vested in [the] Board of Education.” D.C.Code Ann. § 31-101 (1981). The Charter, however, is simply an Act of Congress which can be modified either expressly or impliedly by Congress as it wishes. (§ 601 of the Home Rule Act specifically reserves that power.) In that regard, the FRMAA is- replete with modifications of the Charter. See, e.g., §§ 106(a)(4), 108(b)(2), 201, 202, 203, 204, 301, 302, 304. It seems rather obvious to us that once § 207(d) is interpreted to permit the Control Board to step into the shoes of the Board of Education, it can no longer be said that the Board of Education has unchallengeable “control” of the District school system.
Still, appellants contend that even our reading of § 207(d) merely gives the Control Board authority to issue orders, rules, or regulations
Once we recognize that Congress-has implicitly modified that section of the Charter vesting control of the schools in the Board of Education, it is apparent that appellants’ constitutional arguments are based upon a false premise. It is claimed that appellants have a fundamental right to vote for a functioning Board of Education that has been taken away without due process. (What process they claim is due is unclear.) They rely on several cases from our sister circuits holding that “once citizens are granted the right to vote on a matter, the exercise of that vote becomes protected by the Constitution even though the state was not obliged to allow any vote at all.” Hussey v. City of Portland, 64 F.3d 1260, 1263 (9th Cir.1995); see Duncan v. Poythress, 667 F.2d 691 (5th Cir. Unit B Sept.1981).
IV.
Appellants’ narrower challenge assumes, arguendo, that the Control Board can employ § 207(d) to put itself in the place of the Board of Education and assumes that it has done so by this order. According to appellants, the order is illegal, nevertheless, because it exceeds the Board of Education’s powers. It will be recalled that § 207(d) permits the Control Board to issue only those rules, regulations, or orders that are “within the authority of the ... head ... of any agency.” And under D.C. law, “[t]he Board of Education is authorized to delegate any of its authority to the Superintendent,” who in turn “is authorized to redelegate any of his or her authority subject to the approval of the Board.”
It is perfectly clear that, notwithstanding the Control Board’s citation of § 31-107 and the district court’s conclusion that the Control Board adhered to that section, the Control Board did not follow § 31-107. For one thing, the Control Board, acting in the stead
The Control Board’s order delegates to the newly designated CE O-Superintendent (we do not think there is any legal significance to the new title) the same broad authority the Board of Education had given to the prior Superintendent, November Order at ¶ 8. This seems unobjectionable. But the Control Board further delegates to the Board of Trustees, and not the Superintendent, “the immediate responsibility for operation and management of the District of Columbia public school system.” Id..at ¶2. In other words, the order recognizes the Superintendent as the chief executive but gives to the Board of Trustees the overall governing responsibility. Yet § 31-107 does not explicitly authorize the Board of Education to delegate to anyone but the Superintendent. The Control Board responds that § 31-107 does not expressly prohibit the Board of Education from delegating to another entity besides the Superintendent and therefore there is no reason to read into the statute an implied limitation. As expected, appellants rely on the ancient maxim of statutory interpretation expressio unius est exclusio alteri-us, “the mention of one thing implies the exclusion of another.” In Halverson v. Slater, 129 F.3d 180, 185 (D.C.Cir.1997), we recently applied, the maxim. There, Congress statutorily authorized the Secretary of Transportation to delegate certain powers to Coast Guard officials. The Secretary argued, however, that the statute did not prohibit him from delegating those powers to non-Coast Guard officials as well. We held that the statute was intended to exclude delegations to non-Coast Guard officials. Id. 129 F.3d at 189.
We have recognized, however, that this maxim is often misused. See Cheney R.R. Co. v. ICC, 902 F.2d 66, 68-69 (D.C.Cir. 1990) (reviewing misapplications of the maxim); but cf. Michigan Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1293 (D.C.Cir.), aff'd by an equally divided Court, 493 U.S. 38, 110 S.Ct. 398, 107 L.Ed.2d 277 (1989) (explaining an appropriate use of the maxim). Sometimes Congress drafts statutory provisions that appear preclusive of other unmentioned possibilities — just as it sometimes drafts, provisions that appear du-plicative of others — simply, in Macbeth’s words, “to make assurance double sure.” That is, Congress means to clarify what might be doubtful — that the mentioned item is covered — without meaning to exclude the unmentioned ones. Cf. United States v. Hansen, 772 F.2d 940, 946-47 (D.C.Cir.1985). The maxim’s force in particular situations depends entirely on context, whether or not the draftsmen’s mention of one thing, like a grant of authority, does really necessarily, or at least reasonably, imply the preclusion of alternatives. That will turn on whether, looking at the structure of the statute and perhaps its legislative history, one can be confident that a normal draftsman when he expressed “the one thing” would have likely considered the alternatives that are arguably precluded., For that reason, we think the maxim should be used as a starting point in statutory construction — not as a close-out bid.
Bearing in mind the structure that Congress created to run the D.C. schools, we think, in this case, that the maxim points to a correct conclusion. It is unlikely that Congress drafted § 31-107 to reassure doubters that a Superintendent could indeed be the beneficiary of some general power of delegation possessed by the Board of Education, so that particular reason to mistrust the ex-pressio canon is absent. Congress clearly expected — prior to passage of the FRMAA — that the Board of Education itself, as we have previously discussed, would “control” the schools. It is generally understood in the American administrative experience, however, that a multi-member body is better suited to policymaking than to administration. In our system of government, broadly speaking, Congress sets policy to be executed by the President; in the private world, a corporate Board of Directors is expected to set policy that is executed by a CEO. Surely drawing on that tradition, Congress provided that the Board of Education
The Control Board contends that even though the order is not phrased in appropriate terms we should consider it as if it provided that the Control Board delegated to the Superintendent under § 31-107, and then he redelegated his authority to the Board of Trustees. But for reasons we have already suggested, we do not see how that scheme would work either. The Control Board’s notion is inconsistent with the hierarchical framework Congress provided. We cannot read § 31-107 to permit the Superintendent to delegate the authority to supervise himself to another policymaking body. Surely it cannot be contemplated that the Board of Education could delegate to the Superintendent the power to hire and fire himself (a necessary predicate under the Control Board’s theory if the Superintendent is to redelegate that power to the Board of Trustees). The Control Board’s labored concept is thus at war with the statute’s organizational structure. The Board of Education (or the Control Board standing in the Board of Education’s shoes) is at the top of the hierarchy. The Superintendent is second, and anyone receiving a subdelegation from the Superintendent is no higher than third. We therefore conclude that insofar as the Control Board exercised the Board of Education’s authority, it could not have placed a third party in a position superior to the Superintendent.
There still remains the question, also raised by the Control Board, whether it can delegate its own § 207(d) authority to the Board of Trustees. This argument is premised on the notion that the Control Board has inherent delegation authority like other government agencies.
It would be implausible to describe the Board of Trustees in this instance as the Control Board’s subdelegee. (It should be noted that Congress did provide the Control Board with an Executive Director and staff, who are hired by the Executive Director with the approval of the Control Board’s chair.) While the Trustees must “report to the [Control Board],” and their powers over the appointment and removal of the Superintendent are subject to the Control Board’s approval, the Trustees are clearly neither part of the “small professional staff’ of the Gontrol Board, nor the “experts or consultants” contemplated in the legislative history of the FRMAA, see H.R. Rep, No. 104-96 (1995); most of their broad authority to set D.C. school policy is not even subject to the Control Board’s approval.
The Control Board’s power under § 207(d) to issue orders; rules, and regulations is, after all, quite extraordinary. The specific qualifications set forth in § 101(c) of the FRMAA for Control Board membership and the mechanism of Presidential appointment of the Control Board in § 101(b) indicate that Congress wanted the Control Board itself to exercise the powers of governance over the District.
We reject appellants’ broad challenge to the Control Board’s authority over the Board of Education, but we hold that those portions of the order that created and delegated to the Board of Trustees are ultra vires, and the provision permitting the Control Board to discharge the Superintendent at will is also contrary to law. Employing our remedial discretion, however, past acts of the Board of Trustees are accorded de facto validity. See Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Norton v. Shelby County, 118 U.S. 425, 440, 6 S.Ct. 1121, 1124-25, 30 L.Ed. 178 (1886). We see no benefit in plunging the District’s school system into further chaos by invalidating all actions taken by the Board of Trustees over the past year. .The judgment of the district court is hereby affirmed in part and reversed in part.
. The Board of Trustees is made up of five members appointed by the Control Board, a parent with at least one child in the District public schools (selected by the Control Board from a list of three parents provided by the Mayor), a teacher in the District public schools (selected by the Control Board from a list of three teachers provided by the Council), the CEO-Superintendent of the public school system, and the President of the Board of Education. November Order at 112.
. Other aspects of the FRMAA, however, greatly circumscribe the D.C. Council’s power. Most notably, § 203(a) provides that all non-emergency acts passed by the Council and signed by the Mayor or passed by the Council over the Mayor’s veto must be approved by the Control Board as consistent with both the District’s financial plan and budget before they may be submitted to Congress in accordance with § 602(c)(3) of the Home Rule Act. § 207(c)(1) also allows the Control Board, after consultation with Congress, to implement any of its own recommendations to ensure compliance with the District’s financial plan or to improve the delivery of public services over the objection of the Council.
. In a separate attack, on the November Order, appellants assert that we should interpret "order, rule, or regulation” in a manner consistent with the D.C. APA. See D.C.Code Ann.§ 1-1502
. In contrast to this case, both Duncan and Hus-sey involved abridgements of statutory rights to vote, which had never been repealed by state legislatures. In Duncan, the Fifth Circuit held that officials in the State of Georgia's executive branch had usurped the voters' statutory right to fill a seat on the Georgia Supreme Court. Duncan, 657 F.2d at 708. It seems to us, however,' that the question there was strictly one of state law. Hussey, on the other hand, is not really on point as it involved án equal protection challenge to a Portland city ordinance that the Ninth Circuit held impermissibly burdened 'a statutory right to vote on annexation granted by the Oregon state legislature. Hussey, 64 F.3d at 1262.
. Appellants point out that another provision of the Act, § 103(b), does actually give the Control Board authority to delegate the powers granted "by [that] section.” (§ 103 authorizes the Control Board to obtain information, issue subpoenas, dispose of gifts, and seek judicial enforcement of its orders.) Accordingly, again appellants brandish the expressio unius maxim. But here is a perfect example of a situation where the maxim by itself is unpersuasive because there is not much reason to think that the draftsmen were considering, when they drafted § 103(b), whether or not the Control Board should have or did have authority to delegate under other sections. They may well have been focusing only on ensuring that the Control Board did have delegation authority under § 103. Since we think the negative implication is weak, so is the maxim. It helps appellants but not very much.
. The Supreme Court's cases are not one-sided as to whether an agency officer has the inherent ability to delegate his powers to subordinates.
. In this context there is no need to be concerned about administrative efficiency, cf. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. at 123, 67 S.Ct. at 1135 (Jackson, J., concurring); SEC v. Arthur Young & Co., 584 F.2d at 1026, because of the Board of Education's and thus the Control Board's authority to delegate to the Superintendent, as well as the Control Board’s ability to utilize its own Executive Director.