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Judicial Watch • Council of the District of Columbia v. Bowser 7076 DC Budget

Council of the District of Columbia v. Bowser 7076 DC Budget

Council of the District of Columbia v. Bowser 7076 DC Budget

Page 1: Council of the District of Columbia v. Bowser 7076 DC Budget

Category:Legal Document

Number of Pages:21

Date Created:April 3, 2015

Date Uploaded to the Library:April 06, 2015

Tags:bowser, Autonomy, mayor, Budget, Columbia, Council, district, court


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USCA Case #14-7067
Document #1545780
Filed: 04/03/2015
[ORAL ARGUMENT HELD OCTOBER 17, 2014] THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
COUNCIL THE DISTRICT COLUMBIA,
Plaintiff-Appellant,
MURIEL BOWSER, al.,
Defendants-Appellees.
No. 14-7067
CLARICE FELDMAN MOTION FOR
LEAVE INTERVENE APPELLEE
Clarice Feldman, longtime taxpayer and resident the District
Columbia the District counsel, respectfully moves for leave intervene appellee this matter. Because the recent, startling change position
one the Appellees, intervention necessary protect Feldman interest
preventing the unlawful expenditure taxpayer money. grounds thereof,
Feldman states follows:1 the event that the Court grants this motion, proposed response Muriel
Bowser Suggestion Mootness and Motion Dismiss (filed Mar. 23, 2015) Bowser Motion Dismiss attached hereto Exhibit
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The Local Budget Autonomy Act 2012 Has Been Declared
Unlawful and Has Been Enjoined From Enforcement.
The Local Budget Autonomy Act 2012 Budget Autonomy Act was
enacted the Council the District Columbia Council signed the
District Mayor Vincent Gray and ratified District voters April 2013
referendum. Council the District Columbia Gray, Supp. 134, 2014
U.S. Dist. LEXIS 68055, (D.D.C. 2014). The Budget Autonomy Act
purportedly granted the District the right spend its local tax and fee revenue
without seeking appropriation from Congress. Id. After the Budget Autonomy
Act took effect, the District Attorney General issued formal opinion advising
Mayor Gray that should not enforce the law because violated the District
Home Rule Charter and therefore was unlawful. Id. *19. the advice the
Attorney General and their own accord, Mayor Gray and the District Chief
Financial Officer CFO Jeffrey DeWitt2 notified the Council that they
believed the Budget Autonomy Act unlawful and that they would not enforce
it. Id. *19-20.
The Council filed suit, seeking declaratory and injunctive relief against the
Mayor and the CFO their official capacities. Id. *3. Specifically, the Council
sought declaration that the Budget Autonomy Act valid and injunction all relevant times, DeWitt has been and continues the District
CFO.
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compelling the Mayor and the CFO enforce the law. Id. addition, the Mayor
and CFO asserted counterclaims against the Council, seeking declaration that the
Budget Autonomy Act unlawful and injunction preventing the Council from
enforcing the law. Defendants Answer Complaint, Affirmative Defenses, and
Counterclaims 39-40 (Joint Appendix 114-115). Subsequently, the parties
cross-moved for summary judgment, and the U.S. District Court for the District
Columbia District Court found the Budget Autonomy Act unlawful and
permanently enjoined all parties from enforcing the law. Council the District
Columbia, Supp. 134, 2014 U.S. Dist. LEXIS 68055 *59. The Council
immediately appealed the District Court ruling. Briefing concluded October
15, 2014, and oral argument was held October 17, 2014.
Subsequently, Muriel Bowser was elected the District Mayor, was
sworn into office, and was substituted appellee place Mayor Gray.
See Unopposed Motion Hold Appeal Abeyance for Days, and Notice
Withdrawal Attorneys from Representation Mayor Muriel Bowser (filed
Feb. 12, 2015) Upon being substituted in, Mayor Bowser request[ed] that
this Court hold the proceedings abeyance for days give her opportunity consider her views the issues presented this litigation, including the
possibility that she may take position and course action different from the
prior Mayor. Id. 1-2. The Court granted Mayor Bowser request and ordered
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her advise the [C]ourt, later than March 16, 2015, whether her position
this case differs from that her predecessor. Per Curiam Order (filed Feb. 20,
2015) response the Court order, Mayor Bowser advised the Court that
she believes the Budget Autonomy Act valid, and absent judgment restraining
her actions, intends comply with its requirements. Muriel Bowser Response the Court February 20, 2015 Order and Unopposed Motion for Leave File
Suggestion Mootness and Motion Dimiss (filed Mar. 16, 2015) Mayor
Bowser also requested that the Court permit her file motion dismiss this
appeal. Id. March 23, 2015, Mayor Bowser filed motion dismiss this
appeal for mootness. See generally Bowser Motion Dismiss. her motion, Mayor Bowser seeks avoid the District Court injunction.
Specifically, Mayor Bowser argues that the case moot and therefore should
dismissed and that the mootness result happenstance and therefore the
District Court judgment should vacated. support her argument that the
case moot, Mayor Bowser states that she agrees with the Council position that
the Budget Autonomy Act lawful. She therefore argues that actual
controversy exists and that both the claims against the Mayor well the
counterclaims asserted the Mayor are now moot. See Bowser Motion
Dismiss addition, because the CFO statutorily required prepare the
District budget under the direction the Mayor, (D.C. Code
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204.24d(26)), the claims against the CFO and the counterclaims asserted the
CFO are also rendered moot Mayor Bowser actions. With respect vacatur,
Mayor Bowser argues that the District Court determination must voided
because happenstance mooted the Council claim against the Mayor.3 Bowser
Motion Dismiss 11. The Council and the CFO have not yet filed responses,
which are due April 2015.
Simply put, Mayor Bowser disagrees with Mayor Gray and the District
Court about the legality the Budget Autonomy Act. The only way for Mayor
Bowser avoid the District Court injunction for this Court vacate the lower
court ruling. She therefore asks the Court so.
II.
Feldman Seeks Intervene Defend the District Court Injunction.
Feldman has been taxpayer and resident the District since 1969.
taxpayer, she has indisputable interest preventing the unlawful expenditure
taxpayer money. See Calvin-Humphrey District Columbia, 340 A.2d 795,
799 (D.C. 1975); see also District Columbia Common Cause District
Columbia, 858 F.2d (D.C. Cir. 1988); Ehm San Antonio City Council, 269
Fed. Appx. 375 (5th Cir. 2008). the District Court concluded, the Budget
Autonomy Act unlawful and Mayor Vincent Gray, CFO Jeffrey DeWitt,
Feldman does not agree that the change legal position the Mayor
office fact happenstance. However, this Court were grant Feldman
motion intervene, live controversy would remain. The Court therefore would
not need decide whether mootness was result happenstance.
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the Council the District Columbia, its officers, agents, servants, employees,
and all persons active concert participation with them who receive actual
notice the injunction, are hereby permanently ENJOINED from enforcing the
[law] pending further order this Court. Council the District Columbia, Supp. 134, 2014 U.S. Dist. LEXIS *58-59. Until this Court rules
otherwise, all money spent enforce the Budget Autonomy Act will done
unlawfully. All money appropriated under the Budget Autonomy Act will also
done unlawfully. Therefore, Feldman seeks defend the District Court
injunction prohibiting the District from enforcing the Budget Autonomy Act and,
thereby, from expending taxpayer money unlawfully.
III.
Feldman Should Permitted Intervene.4
This Court looks the standards applicable the district courts when
deciding whether grant intervention the appellate stage. Building and
Although the Federal Rules Appellate Procedure not provide for
intervention appeal except proceedings review agency action, the rules
also not expressly preclude intervention appeals from the district court.
Building and Construction Trades Department Reich, F.3d 1275, 1282 (D.C.
Cir. 1994). This Court has held that intervention appeals from the district court appropriate some circumstances. See id.; see also Public Citizen U.S.
District Court for the District Columbia, 2007 U.S. App. LEXIS 327, No. 065232 (D.C. Cir. Jan. 2007); Pitts Thornburgh, 2003 U.S. App. LEXIS 18345,
No. 88-5058 (D.C. Cir. May 28, 2003); Aerovias Mexico National Mediation
Board, 2002 U.S. App. LEXIS 14842, No. 02-5143 (D.C. Cir. Jul. 23, 2002);
Washington Properties Limited Partnership Resolution Trust Corporation, 1993
U.S. App. LEXIS 35576, No. 92-5230 (D.C. Cir. Sept. 29, 1993); Amalgamated
Transit Union International Donovan, 771 F.2d 1551 (D.C. Cir. 1985).
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Construction Trades Department, F.3d 1282 see reason relax the
standards for intervention applicable the district court. Therefore,
intervenor must satisfy the requirements either Fed. Civ. 24(a) for
intervention right Fed. Civ. 24(b) for permissive intervention. Public
Citizen, 2007 U.S. App. LEXIS 327 *2. addition, the intervenor did not
seek intervene the district court, the intervenor must also demonstrate that exceptional case and that imperative reasons exist support intervention. Id.
Feldman satisfies the requirements for intervention right and permissive
intervention. addition, this exceptional case and imperative reasons exist
support her intervention.
Intervention warranted under Fed. Civ. 24(a). motion intervene right turns four factors: (1) the timeliness the
motion; (2) whether the applicant claims interest relating the property
transaction which the subject the action; (3) whether the applicant
situated that the disposition the action may practical matter impair impede
the applicants ability protect that interest; and (4) whether the applicant interest adequately represented existing parties. Mova Pharm. Corp. Shalala, 140
F.3d 1060, 1074 (D.C. Cir. 1998) (citing Fed. Civ. 24(a)(2)). this case, factors one and four are closely related and easily satisfied.
Feldman interest was adequately represented until March 23, 2015, when Mayor
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Bowser moved dismiss the appeal and sought vacatur the District Court
ruling. Feldman interest was adequately represented the District Court
Mayor Gray defense the lawsuit and his assertion counterclaims against the
Council. Similarly, Feldman interest was adequately represented during briefing
and oral argument the appeal Mayor Gray defended the District Court
injunction. this Court grants intervention, Feldman will not request the merits
the case re-briefed re-argued. However, because Mayor Bowser will not
defend the District Court ruling and seeks avoid the court injunction,
Feldman interest preventing the unlawful expenditure taxpayer money
longer being adequately represented. addition, because the CFO must prepare
the budget under the direction the Mayor (D.C. Code 1-204.24d(26)),
cannot defend the District Court ruling because doing contrary the
position the Mayor.
For the same reasons, Feldman motion timely. was not until March
23, 2015 that Mayor Bowser confirmed her position this case. Until then,
Feldman had need intervene. Feldman files this motion within the time
permitted for all parties submit their responses Mayor Bowser motion.
Feldman also has interest relating the property transaction which
the subject the action. Fund for Animals, Inc. Norton, 322 F.3d 728, 735
(D.C. Cir. 2003) (internal citation omitted). She has significant, legally protected
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interest preventing the unlawful expenditure taxpayer money. Until this
Court says otherwise, the Budget Autonomy Act has been declared unlawful and
the District has been enjoined from enforcing it. Any expenditure enforce the
law and any money appropriated under it, therefore, will unlawful.
There dispute that taxpayers the District have interest
preventing the unlawful expenditure taxpayer money. Calvin-Humphrey, the
D.C. Court Appeals permitted the intervention individual taxpayers even
though the issue before involved the assessment and collection taxes from
commercial property owners. 340 A.2d 799. Although the government action issue did not directly affect individual taxpayers, the court concluded [t]here
can doubt but that the instant litigation concerns the [individual taxpayers]:
[they have] economic interest some magnitude the outcome the suit,
since perceive distinct and substantial possibility that [they] will incur higher
taxes suffer diminution municipal services the commercial property
owners paid less taxes. Id. Feldman interest clear.
Importantly, not only does Feldman have legally recognized interest this
case, she also has well-established cause action. See District Columbia
Common Cause, 858 F.2d (holding that District taxpayer has the right
initiate suit prevent the unlawful expenditure taxpayer funds); see also Ehm,
269 Fed. Appx. 375. Feldman different from Mayor Gray, who asserted
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counterclaim prevent the Council from enforcing the Budget Autonomy Act.
She also can defend the District Court injunction. Feldman therefore also
satisfies the second factor for intervention right. order this Court granting Mayor Bowser motion dismiss and
vacating the District Court ruling would impair impede Feldman ability
protect her interest ensuring the lawful expenditure taxpayer money. Fund for
Animals, Inc., 322 F.3d 735 (Courts should look practical consequences
denying intervention, even where the possibility future challenge the
regulation remains available. Mayor Bowser has explicitly stated that she
intends spend the District local tax and fee revenue without seeking
appropriation from Congress. Bowser Motion Dismiss Unless this Court
says otherwise, taxpayer money unequivocally will expended unlawfully.
that point, prevent the unlawful expenditure taxpayer money, Feldman will
required initiate new proceeding the District Court against the District.
Regardless how the District Court rules, the losing party will most likely appeal
the ruling. Therefore, due time, the identical legal issue will back before this
Court. require additional litigation when this case has been briefed and argued
would inefficient. addition, the mere fact that Feldman could bring
separate lawsuit not reason deny intervention. Fund for Animals, Inc., 322
F.3d 735. Feldman satisfies the four factors for intervention right. (Page Total)
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Intervention appropriate under Fed. Civ. 24(b).
Alternatively, Feldman seeks this Courts permission intervene pursuant
Fed. Civ. 24(b)(2). Under this rule, the Court has discretion allow
intervention when the proposed intervenor makes timely application
demonstrating that the applicants claim defense and the main action have
question law fact common. Fed. Civ. 24(b)(2).
For all the reasons supporting Feldman intervention right, permissive
intervention appropriate. Feldman has significant, legally protected interest
preventing the unlawful expenditure taxpayer money. Unless this Court says
otherwise, the Budget Autonomy Act has been declared unlawful, and the District
has been enjoined from enforcing it. Any expenditure spent enforce the law
any money appropriated under the law, therefore, will unlawful.
There dispute that taxpayers the District have interest
preventing the unlawful expenditure taxpayer money. See Calvin-Humphrey,
340 A.2d 799. They also have right initiate suit prevent the unlawful
expenditure taxpayer money. See District Columbia Common Cause, 858
F.2d 10; see also Ehm, 269 Fed. Appx. 375. Plainly, whether the Budget
Autonomy Act lawful question law common this case well any
potential future litigation against the District seeking prevent the unlawful
expenditure taxpayer money. addition, Feldman motion timely because (Page Total)
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was not until March 23, 2015 that Mayor Bowser confirmed that she seeks avoid
the District Court injunction. Intervention also will not unduly delay prejudice
Mayor Bowser, the CFO, the Council because briefing and argument the
merits has already concluded. Nothing left done the parties. The Court positioned rule.
Additionally, this Court should grant intervention because would enable
the Court resolve substantial unsettled question law. Associated Builders
and Contractors, Saginaw Valley Area Chapter Perry, 115 F.3d 386, 391 (6th
Cir. 1997). the Court were dismiss the appeal and vacate the District Court
ruling, Feldman will required initiate new proceedings, and this Court will
again called upon decide whether the Budget Autonomy Act lawful.
Because that precise legal question has already been briefed and argued this case,
the interest justice and judicial efficiency strongly favor permissive intervention.
This exceptional case and imperative reasons
support intervention.
This Court permits intervention the appellate stage where none was
sought the district court only exceptional case for imperative reasons.
Amalgamated Transit Union International, 771 F.2d 1551 (quoting Landreth
Timber Company Landreth, 731 F.2d 1348, 1353 (9th Cir. 1984)). This such
case.
Until March 23, 2015, Feldman interest was adequately represented. (Page Total)
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that date, Mayor Bowser notified the Court that she believes the Budget Autonomy
Act lawful and seeks avoid the District Court injunction.
Until this Court rules otherwise, the Budget Autonomy Act unlawful, and
the District has been enjoined from enforcing it. prevent the unlawful
expenditure taxpayer money, this Court must rule the merits this appeal.
should not dismiss this case and vacate the District Court ruling. permitting
Feldman intervene appellee, the Court will have the jurisdiction resolve
whether the Budget Autonomy Act lawful. this case does not satisfy the
exceptional case for imperative reasons standard, case would.
IV.
Conclusion.
For the reasons set forth above, Feldman should granted intervention appellee this matter.
Dated: April 2015
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Proposed
Intervenor-Appellee (Page Total)
USCA Case #14-7067
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CERTIFICATE SERVICE hereby certify that this 3rd day April 2015, filed via the CM/ECF
system the foregoing CLARICE FELDMAN MOTION FOR LEAVE
INTERVENE APPELLEE with the Clerk the Court. Participants the
case are registered CM/ECF users and service will accomplished the
Appellate CM/ECF system. also certify that caused the original and four (4) copies delivered
the Clerk Court via hand delivery.
/s/ Michael Bekesha (Page Total)
USCA Case #14-7067
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Filed: 04/03/2015
ADDENDUM
CERTIFICATE PARTIES AND AMICI CURIAE
Except for the following, all parties, intervenors, and amici appearing before
the district court and this Court are listed the Brief for Defendants-Appellees:
Clarice Feldman, Proposed Intervenor-Appellee
Dated: April 2015
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Proposed
Intervenor-Appellee
(Page Total)
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Exhibit
(Page Total)
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[ORAL ARGUMENT HELD OCTOBER 17, 2014] THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
COUNCIL THE DISTRICT COLUMBIA,
Plaintiff-Appellant,
MURIEL BOWSER, al.,
Defendants-Appellees
No. 14-7067
INTERVENOR-APPELLEE CLARICE FELDMAN
RESPONSE MURIEL BOWSER SUGGESTION MOOTNESS AND MOTION DISMISS
Intervenor-Appellee Clarice Feldman, taxpayer and resident the District Columbia the District since 1969, counsel, respectfully submits this
response Mayor Muriel Bowser Suggestion Mootness and Motion
Dismiss Bowser Motion Dismiss grounds thereof, Feldman states
follows:
ARGUMENT actual controversy still exists. Mayor Bowser entire argument hinges the simple fact that she shares the Council view that the Act valid.
Bowser Motion Dismiss She therefore argues that this Court longer
has jurisdiction because actual controversy does not exist. Id. 2-3,
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Although her argument may have been correct before Feldman was permitted
intervene Feldman does not concede that point the argument longer holds
water.
There indisputable, actual controversy between Feldman and all parties this case. The U.S. District Court for the District Columbia District Court
found the Local Budget Autonomy Act 2012 Budget Autonomy Act
unlawful and enjoined the Mayor and the Chief Financial Officer CFO their
official capacities, the Council the District Columbia Council its officers,
agents, servants, employees, and all persons active concert participation with
them who receive actual notice the injunction from enforcing it. Council the
District Columbia Gray, Supp. 134, 2014 U.S. Dist. LEXIS 68055, (D.D.C. 2014). The Mayor and the Council seek avoid the injunction and
enforce the law. Because the CFO must prepare the budget under the direction
the Mayor (D.C. Code 1-204.24d(26)), cannot defend the District Court
ruling and injunction because doing contrary the position the Mayor.
Feldman, the other hand, seeks defend the District Court ruling and the
injunction. Feldman position clearly odds with those the parties. clear, Feldman has significant, legally protected interest
preventing the unlawful expenditure taxpayer money. Calvin-Humphrey
District Columbia, 340 A.2d 795, 799 (D.C. 1975), the D.C. Court Appeals
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permitted the intervention individual taxpayers even though the issue before
involved the assessment and collection taxes from commercial property owners.
Although the government action issue did not directly affect individual
taxpayers, the court concluded [t]here can doubt but that the instant
litigation concerns the [individual taxpayers]: [they have] economic interest
some magnitude the outcome the suit, since perceive distinct and
substantial possibility that [they] will incur higher taxes suffer diminution
municipal services the commercial property owners paid less taxes. Id.
Because the District Court found the Budget Autonomy Act unlawful, until
this Court rules otherwise, any expenditure enforce the law and any money
appropriated under will unlawful.
Importantly, not only does Feldman have legally recognized interest this
case, she also has well-established cause action. See District Columbia
Common Cause District Columbia, 858 F.2d (D.C. Cir. 1988) (holding
that District taxpayer has the right initiate suit prevent the unlawful
expenditure taxpayer money); see also Ehm San Antonio City Council, 269
Fed. Appx. 375 (5th Cir. 2008). Feldman different from Mayor Gray, who
asserted counterclaim prevent the Council from enforcing the Budget
Autonomy Act. She also can defend the District Court injunction. This Court
therefore has jurisdiction decide this case because there actual controversy
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between the parties and Intervenor-Appellee Feldman.
CONCLUSION
For the reasons set forth above, Mayor Muriel Bowser motion
dismiss should denied.
Dated: April 2015
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Intervenor-Appellee
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CERTIFICATE SERVICE hereby certify that this 3rd day April 2015, filed via the CM/ECF
system the foregoing INTERVENOR-APPELLEE CLARICE FELDMAN
RESPONSE MURIEL BOWSER SUGGESTION MOOTNESS
AND MOTION DISMISS with the Clerk the Court. Participants the
case are registered CM/ECF users and service will accomplished the
Appellate CM/ECF system. also certify that caused the original and four (4) copies delivered
the Clerk Court via hand delivery.
/s/ Michael Bekesha
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