United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 4, 1997 Decided January 6, 1998
No. 97-7087
Karen Shook, et al.,
Appellants
v.
District of Columbia Financial Responsibility
and Management Assistance Authority,
Appellee
Appeal from the United States District Court
for the District of Columbia
(96cv2601)
Barbara S. Wahl argued the cause for appellants, with
whom Evan S. Stolove and Ronald C. Jessamy were on the
briefs.
Daniel A. Rezneck argued the cause and filed the brief for
appellee.
Alan B. Morrison argued the cause for amici curiae
Missionary Baptist Ministers Conference for Washington
D.C. and Vicinity, et al.
Before: Silberman, Williams, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Appellants challenge an order
issued by the District of Columbia Financial Responsibility
and Management Assistance Authority (Control Board), di-
vesting the District of Columbia Board of Education of con-
trol 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 Gov-
ernmental Reorganization Act (Home Rule Act), which grant-
ed 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
control of the executive or legislative branches of the District
government. Home Rule Act ' 495, D.C. Code Ann.
s 31-101 (1981). Under the Charter, the Board of Education
retained all authority that previously had been granted to it
by Congress, including "control of the public schools." The
Board of Education is required to appoint a Superintendent
who "shall have the direction of and supervision in all matters
pertaining to the instruction in all the schools under the
Board of Education." D.C. Code Ann. s 31-107 (1981). The
Superintendent may be removed at any time by the Board of
Education "for adequate cause affecting his character and
efficiency as Superintendent." D.C. Code Ann. s 31-110
(1981).
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,
s 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 by the
President of the United States, the Control Board has been
given wide-ranging powers to improve the District govern-
ment's operations.
In 1996, Congress amended the FRMAA to strengthen the
Control Board. Under section 207(d), it was given the ability
to issue:
such orders, rules, or regulations as it considers appro-
priate 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 depart-
ment or agency of the District government, and any such
order, rule, 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 adminis-
tration 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 Tran-
sitional Education Board of Trustees ... to assume immedi-
ate responsibility for the operation and management of the
District of Columbia public school system." 1 November Or-
der at p 2. The Board of Trustees was delegated "all the
authority, powers, functions, duties, responsibilities, exemp-
tions, and immunities of the Board of Education." Id. at p 6.
The Order also discharged the Superintendent and re-
designated his position as the CEO-Superintendent, an agent
of the Control Board. The Control Board asserted the power
to appoint the first CEO-Superintendent, but delegated the
responsibility to appoint his successors to the Board of Trust-
ees subject to the Control Board's approval. The Control
Board or the Board of Trustees with the approval of the
Control Board was empowered to remove the Superintendent
from office at will. Id. at pp 7, 21. The Board of Education
was left only with authority to license charter schools and to
provide advice to the Board of Trustees, although its Presi-
dent was made a member of the Board of Trustees.
The Control Board's order relied on authority under sec-
tion 207(d) to step into the shoes of the Board of Education,
and with that power it in turn relied on D.C. Code section
31-107, which reads in part, "[t]he Board of Education is
authorized to delegate any of its authority to the Superinten-
dent. 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
__________
1 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. No-
vember Order at p 2.
Control Board to the Board of Trustees and a direct delega-
tion from the Control Board to the Superintendent to perform
all the duties theretofore performed by the old Superinten-
dent as well as any other powers delegated by the Board of
Trustees.
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 mem-
bers. 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 Superinten-
dent--the court said,
In promulgating the November Order, the Control Board
delegated nearly all of the Board of Education's authori-
ty 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 section 31-107 clearly con-
templates 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 section 207(d).
Shook v. D.C. Fin. Responsibility and Management Assis-
tance 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 section 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 congression-
al limitations of judicial review, see, e.g., Ayuda, Inc. v.
Thornburgh, 880 F.2d 1325, 1339-40 (D.C. Cir. 1989), vacated,
498 U.S. 1117 (1991), aff'd on remand, 948 F.2d 742 (D.C. Cir.
1991), vacated sub nom. Ayuda, Inc. v. Reno, 509 U.S. 916
(1993), aff'd on remand, 7 F.3d 246 (D.C. Cir. 1993), cert.
denied, 513 U.S. 815 (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 (1988) (citing
Abbott Lab. v. Gardner, 387 U.S. 136, 141 (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 clarifica-
tion, 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 exercis-
ing governmental powers--and that its internal decisionmak-
ing process was not reviewable, but the actual content of
individual orders could be challenged as exceeding its authori-
ty. 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
statutory wording (and an ambiguous Conference Report). If
we had any doubt as to that conclusion--which we do not--we
would have to consider that preclusion of judicial review is
particularly disfavored when applied to prevent a plaintiff
from asserting a constitutional claim. See Bowen v. Michi-
gan Academy of Family Physicians, 476 U.S. 667, 681 n.12
(1986).
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 en-
croach into the domain of the Board of Education--is based
primarily on the claim that the Control Board's power is
limited vis-