United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2001 Decided November 6, 2001
No. 01-5290
National Coalition to Save Our Mall, et al.,
Appellants
v.
Gale A. Norton, in her official capacity as
Secretary of the Interior, et al.,
Appellees
Appeal from the United States District Court for the
District of Columbia
(No. 00cv02371)
William T. Mayton argued the cause for appellants. With
him on the pleadings was Andrea C. Ferster.
R. Justin Smith, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the pleadings
were Andrew C. Mergen, Patricia L. Weiss and Sean H.
Donahue, Attorneys.
Before: Sentelle and Tatel, Circuit Judges, and
Williams, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
Williams.
Williams, Senior Circuit Judge: A group of organizations,
here collectively called the Coalition, filed suit in October
2000 seeking an injunction against the construction of a
proposed World War II Memorial on the National Mall. The
defendants were a variety of agencies--the Department of
the Interior, the National Parks Service, the Commission of
Fine Arts, the National Capital Planning Commission, and
the American Battle Monuments Commission--responsible
either for the construction of the Memorial or for some link in
the chain of permitting and approval. The Coalition asserted
that in approving the design and construction of the Memori-
al, the defendant agencies violated a variety of statutes: the
National Environmental Policy Act (NEPA), 42 U.S.C.
s 4332(2)(C), the Commemorative Works Act, 40 U.S.C.
s 1001 et seq., the National Historic Preservation Act, 16
U.S.C. s 470f et seq., and the Federal Advisory Committee
Act, 5 U.S.C. App. II, s 10(a).
In May 2001, while the case was pending in district court,
Congress enacted Public Law No. 107-11, 115 Stat. 19 (2001)
(the "Act"), which appears to exempt construction of the
Memorial from the possible statutory obstacles and to bar
judicial review of agency decisions underlying the construc-
tion. The Act's full text is as follows:
Section 1. Approval of World War II Memorial Site and
Design.
Notwithstanding any other provision of law, the World
War II memorial described in plans approved by the
Commission of Fine Arts on July 20, 2000 and November
16, 2000, and selected by the National Capital Planning
Commission on September 21, 2000 and December 14,
2000, and in accordance with the special use permit
issued by the Secretary of the Interior on January 23,
2001, and numbered NCR-NACC-5700-0103, shall be
constructed expeditiously at the dedicated Rainbow Pool
site in the District of Columbia in a manner consistent
with such plans and permits, subject to design modifica-
tions, if any, approved in accordance with applicable laws
and regulations.
Sec. 2. Application of Commemorative Works Act.
Elements of the memorial design and construction not
approved as of the date of enactment of this Act shall be
considered and approved in accordance with the require-
ments of the Commemorative Works Act (40 U.S.C. 1001
et seq.).
Sec. 3. Judicial Review.
The decision to locate the memorial at the Rainbow
Pool site in the District of Columbia and the actions by
the Commission of Fine Arts on July 20, 2000 and
November 16, 2000, the actions by the National Capital
Planning Commission on September 21, 2000 and Decem-
ber 14, 2000, and the issuance of the special use permit
identified in section 1 shall not be subject to judicial
review.
Pub. L. No. 107-11. In passing the statute, Congress acted
on its October 2000 resolution to ensure that "the completed
memorial will be dedicated while Americans of the World War
II generation are alive." S. Con. Res. 145, 106th Cong.
(2000); see also Declaration of William B. Owenby, Director
of Procurement and Contracting, American Battle Monu-
ments Commission p 2 (Aug. 27, 2001) ("Of the sixteen million
citizens who served in uniform during World War II only five
million are alive today and these veterans are dying at the
rate of approximately 1,100 per day.").
The district court dismissed the action, explaining that it
lacked subject matter jurisdiction. National Coalition to
Save Our Mall v. Norton, No. Civ. A. 00-2371(HHK) (D.D.C.
Aug. 16, 2001). On appeal the Coalition argues that the
statute did not effect such a broad exemption for the Memori-
al, and that, if its language really did so, it encroached on the
powers of the federal courts in violation of the separation of
powers principles of Article III.
We find that the Act withdrew our subject matter jurisdic-
tion over the statutory claims, and therefore that we lack
jurisdiction to entertain them. We further find that it does
not violate Article III.
* * *
The Coalition first contends that the strong presumption
for judicial review of agency decisions, see, e.g., Bowen v.
Michigan Academy of Family Physicians, 476 U.S. 667, 670
(1986), requires us to read the Act as not precluding judicial
review of the statutory claims.
But the presumption is only that, and can be overridden by
specific language or by clear and convincing evidence of
legislative intent. Id. at 671-73. It is hard to see how
Congress could make it clearer than it has here, providing
that "[t]he decision to locate the memorial at the Rainbow
Pool site[,] ... the actions [of the Agencies,] ... and the
issuance of the special use permit ... shall not be subject to
judicial review." Pub. L. No. 107-11, s 3.
Section 3's preclusion of review of the relevant agency
decisions, moreover, tracks s 1's direction that the Memorial
described in those decisions be "constructed expeditiously" in
accordance with the named permits, "[n]otwithstanding any
other provision of law." On its face, the phrase demonstrates
Congress's clear intent to go ahead with the Memorial as
planned, regardless of the planning's relation to pre-existing
general legislation. This would be clear even if we disregard-
ed the classical but sometimes forgotten purpose of such a
non obstante clause, namely, to prevent courts from strug-
gling to harmonize a statute with prior ones in the name of
the presumption against implied repeal. See Caleb Nelson,
"Preemption," 86 Va. L. Rev. 225, 237-42 (2000).
To counter the language of the Act, the Coalition relies
chiefly on D.C. Federation of Civic Associations v. Volpe, 434
F.2d 436 (D.C. Cir. 1970). There we held that a bridge
construction project of the Department of Transportation
remained subject to pre-existing law despite a statute direct-
ing its construction "[n]otwithstanding any other provision of
law, or any court decision or administrative action to the
contrary." Id. at 437-38. But as we stressed in D.C. Federa-
tion, the statute had a savings clause providing that "[s]uch
construction ... shall be carried out in accordance with all
applicable provisions of title 23 of the United States Code."
Id. at 437-38. We found that this left the construction
subject to claims based on that title. Id. at 447. Public Law
No. 107-11, in contrast, contains savings clauses directed
entirely to changes in design or planning that might follow
the specified approvals and permits: "design modifications"
(s 1) (emphasis added), and "[e]lements ... not approved as
of the date of enactment" (s 2).
Both the language of s 3, the Act's purpose as shown in
s 1, and its overall structure evince an unequivocal intent to
cut off judicial review of all the defendant agencies' past
actions regarding the Memorial. Barring some constitutional
infirmity, we lack jurisdiction over the Coalition's statutory
claims.
The Coalition contends that if the Act's language withdrew
jurisdiction over their statutory claims, then it infringes on
judicial power under Article III. We find no such infringe-
ment.
First we note that the Act does not purport to bar our
consideration of its own constitutionality. See Steel Company
v. Citizens for a Better Environment, 523 U.S. 83, 98-101
(1998) (holding that, absent special circumstances, a court
may not reach a merits issue without having first found that
it has jurisdiction). Here, s 3 withdraws jurisdiction only
over the "decision to locate the memorial" and "the actions by
[various agencies]." Thus, just as Congress's withdrawal of
jurisdiction over "decision[s]" of the Veterans' Administration
left the courts free to adjudicate constitutional claims against
the VA's enabling statute, Johnson v. Robison, 415 U.S. 361,
366-74 (1974), so the Act here does not touch our jurisdiction
over its own constitutionality.
The Coalition argues that s 3 violates the principles in
United States v. Klein, 80 U.S. 128 (1871). That decision
dealt with a suit for the proceeds of property seized and sold
by the army in the Civil War. The administrator of the
deceased prior owner's estate sued under legislation allowing
recovery by such owners under proof of loyalty, which the
Supreme Court had held was satisfied by receipt of a presi-
dential pardon. After the plaintiff recovered in the Court of
Claims, Congress passed another statute, denying such par-
dons any effect in showing loyalty and providing that accep-
tance without protest of a pardon referring to the recipient's
participation in the rebellion would affirmatively prove disloy-
alty. Congress further directed that on proof of such a
pardon or its acceptance, the Court of Claims and Supreme
Court should dismiss the suit for want of jurisdiction. Id. at
141-44. The Supreme Court found the purported limit on its
jurisdiction invalid and ineffective.
Klein's exact meaning is far from clear. One sure precept
is that a statute's use of the language of jurisdiction cannot
operate as a talisman that ipso facto sweeps aside every
possible constitutional objection. Richard H. Fallon, Daniel
J. Meltzer & David L. Shapiro, Hart & Wechsler's The
Federal Courts and the Federal System 368 (4th ed. 1996).
In Klein itself, the Court noted that the statute was "liable to
just exception as impairing the effect of a pardon, and thus
infringing the constitutional Power of the Executive." Klein,
80 U.S. at 147. As the Coalition poses no constitutional
objection to the substance of Public Law No. 107-11, this
element of Klein is of no concern.
There remains the following language of Klein:
It is evident from this statement that the denial of
jurisdiction to this court, as well as to the Court of
Claims, is founded solely on the application of a rule of
decision, in causes pending, prescribed by Congress.
The court has jurisdiction of the cause to a given point;
but when it ascertains that a certain state of things
exists, its jurisdiction is to cease and it is required to
dismiss the cause for want of jurisdiction.
It seems to us that this is not an exercise of the
acknowledged power of Congress to make exceptions and
prescribe regulations to the appellate power.
Id. at 146; see also id. at 147 ("Can [Congress] prescribe a
rule in conformity with which the court must deny to itself
the jurisdiction thus conferred, because and only because its
decision, in accordance with settled law, must be adverse to
the government and favorable to the suitor? This question
seems to us to answer itself.").
These passages cannot be read as a prohibition against
Congress's changing the rule of decision in a pending case, or
(more narrowly) changing the rule to assure a pro-
government outcome. Plaut v. Spendthrift Farm, Inc., 514
U.S. 211 (1995), while holding that Congress may not legislate
to require federal courts to reopen suits for money damages
after final judgment, id. at 240, distinguished between pend-
ing cases and final judgments, saying that "[w]hen a new law
makes clear that it is retroactive, an appellate court must
apply that law in reviewing judgments still on appeal that
were rendered before the law was enacted, and must alter the
outcome accordingly," id. at 226 (citing United States v.
Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801)). A further
distinction to the advantage of Public Law No. 107-11 is
between damage awards and injunctions. Miller v. French,
530 U.S. 327 (2000), held that although an injunction may be a
final judgment for purposes of appeal, it is not the "last word
of the judicial department" because any provision of prospec-
tive relief "is subject to the continuing supervisory jurisdic-
tion of the court, and therefore may be altered according to
subsequent changes in the law." Id. at 347; see also Penn-
sylvania v. Wheeling and Belmont Bridge, 59 U.S. 421 (1855)
(upholding a statute declaring as lawful a bridge that had
been previously adjudicated as an unlawful obstruction of
navigation). If Congress has the power to impose new stan-
dards for final judgments in the form of injunctions, it must
have the power to impose new substantive rules on suits such
as the Coalition's, which sought injunctive relief and had not
been resolved on the merits when Congress acted.
Further, to the extent that Klein can be read as saying that
Congress may not direct the outcome in a pending case
without amending the substantive law, a proposition on which
we express no view, Public Law No. 107-11 presents no more
difficulty than the statute upheld in Robertson v. Seattle
Audubon Society, 503 U.S. 429 (1992), as Public Law No.
107-11 similarly amends the applicable substantive law. See
id. at 441.
Finally, the Coalition suggests that Public Law No. 107-11
is too "narrow," as it affects only the Memorial. In making
this argument, the Coalition cites a passage in Seattle Audu-
bon in which the Court refused to address the belatedly
raised claim that "a change in law, prospectively applied,
would be unconstitutional if the change swept no more broad-
ly, or little more broadly, than the range of applications at
issue in the pending cases." Id. There Congress had re-
sponded to ongoing spotted-owl litigation relating to 13 na-
tional forests with legislation directing that the various stat-
utes invoked against forestry decisions on the specified areas
must be deemed satisfied by compliance with the new stat-
ute's provisions. Id. at 433-35 & nn. 1-2, 440. Here too
Congress's direction addresses a specific problem, namely,
whether specified government decisions about the Memorial
complied with prior general legislation.
We find the level of specificity to be unobjectionable.
There is no independent objection that this Memorial-specific
legislation violates some substantive constitutional provision
limiting Congress's power to address a specific problem, such
as the ban on Bills of Attainder or (in some instances) the
Equal Protection clause. Indeed, the Coalition at oral argu-
ment conceded that the legislation would be constitutional
had it been passed prior to their bringing suit. In view of
Plaut, Miller v. French and Wheeling Bridge, we see no
reason why the specificity should suddenly become fatal
merely because there happened to be a pending lawsuit.
This seems particularly sound where Congress is addressing
a unique public amenity (or disamenity, depending on one's
viewpoint), such as the Memorial or the bridge at issue in
Wheeling Bridge.
* * *
The judgment of the district court is
Affirmed.