Friday, August 10, 2007

2d Circuit Holds a Court May Dismiss a Claim on the Basis of the Enrolled Bill Rule Before Assessing Plaintiff's Standing

Per OneSimpleLoan v. U.S. Secretary of Educ., --- F.3d ----, 2007 WL 2050852 (2d Cir.(N.Y.) Jul 19, 2007) (NO. 06-2770CVL, 06-2994CVCON, 06-3770CVCON):

We first consider whether it is necessary for a court to determine if a plaintiff satisfies the "irreducible constitutional minimum of standing" before deciding whether the enrolled bill rule applies. Lujan, 504 U.S. at 560. We agree with the District of Columbia Circuit that "[a]t a minimum, the Marshall Field rule is ... a non-merits threshold ground for dismissal" that cuts off judicial inquiry into a plaintiff's constitutional claims based on the alleged failure of Congress (whether one house or both) to pass the precise text of a statute. Public Citizen, 486 F.3d at 1349; see Marshall Field, 143 U.S. at 675 (recognizing that application of the enrolled bill rule will allow unconstitutional laws to survive). Like other rules that are "designed not merely to defeat the asserted claims, but to preclude judicial inquiry," Tenet v. Doe, 544 U.S. 1, 6 n. 4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005), or that "deny[ ] audience to a case on the merits," Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999), the enrolled bill rule may support dismissal of a claim before a court assesses its authority to hear that claim. See Public Citizen, 486 F.3d at 1345-49; cf. Sinochem Int'l Co. v. Malaysia, ---U.S. ----, 127 S.Ct. 1184, 1188, 167 L.Ed.2d 15 (2007) (permitting dismissal on the ground of forum non conveniens before consideration of jurisdictional issues); Tenet, 544 U.S. at 6 n. 4 (allowing dismissal of a suit involving covert espionage agreements on public policy grounds before consideration of jurisdictional issues); Ellis v. Dyson, 421 U.S. 426, 433-34, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975) (permitting abstention under Younger v. Harris, 401 U.S. 37 (1971), before consideration of whether there is an Article III case or controversy).

As the District of Columbia Circuit pointed out in Public Citizen, because the enrolled bill rule is a "non-merits threshold ground for dismissal," Public Citizen, 486 F.3d at 1349, it "does not authorize a merits dismissal for failure to state a claim" under Fed.R.Civ.P. 12(b)(6), id. at 1348. Consequently, a district court need not accept as true the facts alleged in a plaintiff's pleadings when a defendant moves to dismiss pursuant to the enrolled bill rule. Cf. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007) ("In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6) ..., we accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party."). Rather, the district court must determine (1) whether the presiding officers of the House and Senate in fact signed the enrolled bill, thereby attesting to its passage, and (2) whether the enrolled bill rule requires dismissal of a particular claim as a matter of law. A court of appeals would then review the district court's factual findings under a clearly erroneous standard and its legal conclusions de novo. Cf. Gualandi v. Adams, 385 F.3d 236, 240 (2d Cir.2004) ("In reviewing a district court's determination of whether it has subject matter jurisdiction, we review factual findings for clear error and legal conclusions de novo.").

In the instant case, there is no dispute as to whether the Speaker of the House of Representatives and the President Pro Tempore of the Senate signed the enrolled bill that would subsequently become the DRA. Thus, we need only review the District Court's legal conclusions regarding application of the enrolled bill rule to the particular claims at issue.


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