Dennis v. Luis

741 F.2d 628
CourtCourt of Appeals for the Third Circuit
DecidedAugust 10, 1984
DocketNo. 83-3633
StatusPublished
Cited by34 cases

This text of 741 F.2d 628 (Dennis v. Luis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dennis v. Luis, 741 F.2d 628 (3d Cir. 1984).

Opinions

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This case involves a suit for injunctive and declaratory relief brought by eight members of the Virgin Islands Fifteenth Legislature. These legislators challenged Governor Juan Luis’ (the “Governor”) appointment of Arnold M. Golden (“Golden”) as “acting” Commissioner of Commerce. The district court ruled that the Governor’s authority to make temporary appointments was controlled by 3 V.I.C. § 64(a) and that section 64(a) did not authorize the Governor to appoint an “acting” Commissioner of Commerce. Relying on section 64(a), the district court concluded that at the time Golden was appointed, the Governor was empowered only to make “recess” appointments, and not temporary appointments of any other sort. Thus, it held that under 3 V.I.C. § 64(a) Golden was a recess appointee. Because a recess appointee’s term is defined by statute and because the Governor was without the power to make any other temporary appointments including acting appointments, the district court ordered Golden to be removed from office after determining that Golden’s term as a recess appointee had expired as of December 12, 1983.

On appeal, both the Governor and Golden challenge the legislators’ standing to maintain the underlying action. In the alternative, they argue that the district court erred in not recognizing the Governor’s right to make any appointments other than recess appointments, and therefore, erred in ordering Golden’s removal from office. Moreover, they assert that, notwithstanding the above, equitable considerations warrant a dismissal under the Riegle doctrine.1

Although we agree with the district court’s conclusion that temporary appointments are governed by 3 V.I.C. § 64(a), we find that the district court erred in its determination of when a recess appointment expires pursuant to section 64(a), and we will therefore vacate the judgment of the district court so that it can be re-entered in conformance with this opinion.

I.

Golden’s name was submitted on April 21, 1983 to the Fifteenth Legislature for the position of Commissioner of Commerce in the Virgin Islands. Under the Revised Organic Act of 1954, § 16(c), 48 U.S.C. § 1597(c), the legislature’s advice and consent was necessary before an appointment to that position could be made. The legislature, however, on June 7, 1983 rejected Golden’s nomination. Notwithstanding this rejection, the Governor thereafter on November 22, 1983 appointed Golden “acting” Commissioner of Commerce.

Following this appointment, eight of the fifteen members of the legislature filed suit in order to remove Golden from office. They asserted that “[t]he effect of the ap[630]*630pointment ... is to usurp the doctrine of separation of powers and circumvent the process of advice and consent, thus violating a basic constitutional power conferred upon the Legislature ... by the United States Congress ____” Appendix (“App.”) at 5.

Without addressing the constitutional issues raised by the plaintiffs, the district court ruled that the Governor’s appointment powers are governed by 3 V.I.C. § 64(a). In the district court’s view, this statute contemplates only recess appointments for the time period in which Golden was appointed. The district court could find no authority permitting the Governor to make any other form of non-permanent appointments. Accordingly, it considered Golden a recess appointee and having then found that the time period for recess appointments had expired, it held Golden’s continued occupancy of the position of Commissioner of Commerce to be unlawful. The district court thus issued an injunction directing that the Governor remove Golden as “acting” Commissioner of Commerce. Golden’s removal was stayed pending this appeal.2

A.

Before turning to the merits of appellants’ claim that the district court erred in ordering Golden’s removal from office, we will consider appellants’ challenge to the legislators’ standing to maintain this action.3

The Governor and Golden argue that the legislators do not have standing because they have failed to allege a legally cognizable injury.

In making the determination as to whether the threshold requirements of standing are satisfied, we must “accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Moreover, throughout this standing inquiry, our focus will be “on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968).

Recently,. in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), the Supreme Court set forth the minimum constitutional requirements necessary to establish standing. In short, a party seeking standing must demonstrate: (i) an actual or threatened injury that was (ii) caused by the defendant’s actions and is (iii) capable of judicial redress. Id. at 472, 102 S.Ct. at 758.

In this case, the injury alleged by the legislators in their complaint is that the Governor’s appointment of Golden as “acting” Commissioner of Commerce after his nomination as a permanent appointee had [631]*631been rejected by the legislators “usurp[ed] the doctrine of separation of powers and eircumvent[ed] the process of advice and consent, thus violating a basic constitutional power conferred upon the Legislature of the Virgin Islands____” App. at 5. Thus, they argue that their votes rejecting Golden’s nomination were nullified by Golden’s subsequent appointment to “acting” Commissioner. The Governor and Golden, on the other hand, maintain that this alleged injury does not constitute a legally cognizable injury sufficient to confer standing. Specifically, they assert that “[pjlaintiffs may be more angry than the average person about this matter, but intensity of feelings ... does not confer standing, and they allege no personal injury.” Appellant’s Brief at 3.

In resolving this question, our analysis begins with the Virgin Islands Code which provides that the Commissioner of Commerce is to be “appointed by the Governor, with the advice and consent of the Legislature....” 3 V.I.C. § 332(b).

According to the legislators’ allegations, the interest sought to be protected by this action is their unique statutory right to advise the Governor on executive appointments and to confer their approval or disapproval in this regard. Assuming these allegations to be true, we conclude that they allege a personal and legally cognizable interest peculiar to the legislators. See Riegle v. Federal Open Market Committee, 656 F.2d 873, 878-79 (D.C.Cir.), cert, denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981).

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Bluebook (online)
741 F.2d 628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-v-luis-ca3-1984.