Armed conflict on the streets of Washington?


Author:Brian T. Hodges

Picture1 A panel of the Ninth Circuit Court of Appeals recently heard oral argument in Leu v. International Boundary Commission – a case that has been typified by truly bizarre twists.

If you recall, this is the case where the U.S. Commissioner to the International Boundary Commission ordered retired couple Shirley and Herbert Leu to remove a small garden wall that they built on their property. The Commissioner claimed that the garden wall interfered with the Commission’s treaty-based duty to maintain an effective boundary between Canada and the United States. The United States disagreed, fired the Commissioner, and settled the dispute by allowing the Leus to keep their garden intact. The former Commissioner did not go away quietly. Instead, after his removal, the Commissioner submitted multiple briefs with the trial court arguing that the President of the United States had no authority over his commission.

It quickly became apparent that the Commissioner’s arguments raised significant issues regarding redressability and jurisdiction. The Commissioner never filed a complaint asserting a cause of action or bringing the President (or any member of the Executive branch) into the lawsuit. Finding no basis upon which it could consider these arguments, the trial court rejected the former Commissioner’s claims. The former Commissioner appealed the decision to the Ninth Circuit.

At oral argument, a panel of the Ninth Circuit asked the former Commissioner why he was requesting declaratory relief in the Leus’ lawsuit when he never filed a complaint challenging the President’s decision. The Commissioner’s attorney explained that he wanted to keep his dispute linked to the Leus’ lawsuit so that if he is reinstated, he could undo the settlement and continue in his "duty" to oppose the Leus’ garden wall. He argued that the only way he could discharge his "duty" would be to either: (1) force his dispute with the President into the Leus’ lawsuit, or (2) engage in "some kind of armed confrontation in the streets of Washington to take back the office."

The Leus, of course, disagree and have consistently argued since this dispute first arose in the summer of 2007 that the former Commissioner should be required to file a separate lawsuit seeking declaratory relief from the President’s decision in a court with jurisdiction over the matter and naming a defendant who could answer for the President. He should not be permitted to hijack a case that was settled years ago.

The oral argument can be heard here