United States v. Wilson, Victoria , 290 F.3d 347 ( 2002 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 1, 2002 Decided May 9, 2002
No. 02-5047
United States of America and
Peter N. Kirsanow, in his official capacity as
Member, United States Commission on Civil Rights,
Appellants
v.
Victoria Wilson, et al.,
Appellees
Appeal from the United States District
Court for the District of Columbia
(No. 01cv02541)
---------
Gregory G. Katsas, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellants.
With him on the brief were Roscoe C. Howard, Jr., U.S.
Attorney, Douglas N. Letter, Jacob M. Lewis and Ara B.
Gershengorn, Attorneys, U.S. Department of Justice.
Leon Friedman and Theodore V. Wells, Jr. argued the
cause for appellees. With them on the brief were Julia
Tarver, Geoffrey F. Aronow and Paul S. Mandell.
Before: Sentelle, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: On January 13, 2000, President
Clinton appointed appellee Victoria Wilson to the United
States Commission on Civil Rights under a commission ex-
pressly stating that the appointment was "for the remainder
of the term expiring November 29, 2001," left vacant by the
death in office of a prior member. After November 29, 2001,
President Bush, treating Wilson's commission as having ex-
pired on that date, appointed appellant Peter Kirsanow to
succeed her. At the next meeting of the Commission, that
body recognized Wilson as a continuing member on her
assertion that she was entitled to a full six-year term on the
Commission running from January 13, 2000, to January 12,
2006. The United States and Kirsanow filed this action
seeking a declaratory judgment that Wilson's term had ex-
pired and that Kirsanow is now a member of the Commission.
The District Court granted summary judgment in favor of
Wilson. The United States and Kirsanow appealed. Because
we agree with appellants that Wilson's term had expired, we
reverse the District Court and remand with instructions for it
to enter summary judgment for the appellants.
I. Background
The United States Commission on Civil Rights ("the Com-
mission") is charged with investigating allegations of depriva-
tion of voting rights on the basis of "color, race, religion, sex,
age, disability, or national origin." 42 U.S.C. s 1975a(a)(1).
In addition, the Commission is empowered to conduct studies
and disseminate information relating to discrimination. Id.
s 1975a(a)(2). The Commission's functions are purely inves-
tigatory and advisory--it has neither the power to enforce
federal law, nor to promulgate any rules with the force of law.
See Hannah v. Larche, 363 U.S. 420, 441 (1960); cf. United
States v. Mead Corp., 533 U.S. 218, 221 (2001).
The Commission was first created in 1957, and as originally
established was composed of six members serving open-ended
terms at the pleasure of the President. See Pub. L. No.
85-315 s 101(b), 71 Stat. 634 (1957). Congress reauthorized
and reorganized the Commission in 1983 by expanding it from
six to eight members, providing that not more than four of
the members could at any one time be from the same party,
dividing the appointment power between the President and
Congress, establishing that the President could only remove
members for neglect of duty or malfeasance, and staggering
the terms of the Commissioners. Specifically, the 1983 Act
stated that the "term of office of each member of the Com-
mission shall be six years; except that (A) members first
taking office shall serve as designated by the President,
subject to [provisions staggering the initial appointments],
and (B) any member appointed to fill a vacancy shall serve for
the remainder of the term for which his predecessor was
appointed." Pub. L. No. 98-183 s 2(b)(2), 97 Stat. 1301 (1983)
("the 1983 Act"). The staggering provisions created two
groups of four commissioners each. The first group would
serve for three years, at which point their successors would
be appointed to six-year terms. The second group would
serve for six years from the outset. See id. s 2(b)(3). Under
this structure, the terms of office would be regularly stag-
gered with half of them expiring every three years. The 1983
Act provided for the Commission to expire in 1989. Nonethe-
less the Commission continued to operate via the process of
annual appropriations until reauthorized.
In 1994 the Commission was formally reauthorized. Pub. L.
No. 103-419, 108 Stat. 4338 (1994) ("the 1994 Act"). This Act
has been dubbed an effort to "more concisely rewrite[ ] the
1983 [Act]." H.R. Rep. No. 103-775, at 4, reprinted in 1994
U.S.C.C.A.N. 3532, 3533 (1994). Like the 1983 Act, the 1994
Act provides that "[t]he term of office of each member of the
Commission shall be 6 years." 42 U.S.C. s 1975(c). However,
instead of the initial staggering provisions that followed in the
1983 Act, the 1994 Act merely provided: "The term of each
member of the Commission in the initial membership of the
Commission shall expire on the date such term would have
expired as of September 30, 1994." 42 U.S.C. s 1975(c). The
Act did not contain any language referring to filling vacan-
cies. The 1994 Act did preserve the division of appointment
power between the President and Congress, as well as the
requirements for partisan balance, and the limitations on
presidential removal of members. See 42 U.S.C. s 1975(b), (e).
The 1994 Act provided for the Commission to terminate on
September 30, 1996, 42 U.S.C. s 1975d, however, it has again
continued to operate pursuant to annual appropriations.
On November 30, 1995, then-President Clinton appointed
retired Judge A. Leon Higginbotham to a six-year term as a
member of the Commission. His commission stated that his
appointment was "for a term expiring November 29, 2001."
He replaced Arthur A. Fletcher, whose term expired on
November 29, 1995. On December 14, 1998, Judge
Higginbotham died in office. To fill this vacancy, President
Clinton appointed appellee, Victoria Wilson, to the Commis-
sion on January 13, 2000. Her commission expressly states
that her appointment was "for the remainder of the term
expiring November 29, 2001." Treating Wilson's term as
having expired on November 29, President Bush appointed
appellant Peter Kirsanow on December 6, 2001, to succeed
Wilson on the Commission. Kirsanow was administered the
oath of office by D.C. Superior Court Judge Maurice A. Ross;
however, the Chair of the Commission, Mary Frances Berry,
refused to recognize him or allow him to participate in
Commission activities. The Chair instead continued to recog-
nize Wilson as a member of the Commission and allowed her
to participate as such.
The United States and Kirsanow (collectively "appellants")
filed this action in the United States District Court for the
District of Columbia seeking declaratory relief against Wil-
son. The Commission, Mary Frances Berry (Chair), and
Cruz Reynoso (Vice-Chair), moved to intervene. The United
States objected that neither the Commission nor its officers
in their official capacity have the right to appear in litigation
without the permission of the Attorney General, which they
had not obtained. See 28 U.S.C. s 516 ("Except as otherwise
authorized by law, the conduct of litigation in which the
United States, an agency, or officer thereof is a party ... is
reserved to officers of the Department of Justice, under the
direction of the Attorney General."). The district court sum-
marily permitted the intervention. As the United States has
not raised this issue on appeal, claiming "it has no practical
effect upon the issues presented, since Wilson herself is
entitled to defend against the government's complaint," we do
not decide whether this intervention was permissible. The
parties filed dispositive motions and on February 4, 2002, the
district court issued an oral ruling granting Wilson's motion
for summary judgment.
The district court concluded that "the 1994 Amendments
Act ... does not mandate regularly staggered terms. Rath-
er, its plain language clearly requires that all Commissioners
serve six-year terms, regardless of whether, as in this case,
their predecessors completed their terms." Thus, under the
district court's reading of the statute, Wilson would be enti-
tled to serve a full six years, until January 12, 2006. The
district court first found that the language of 42 U.S.C.
s 1975(c) "is perfectly clear. It contains no exceptions, quali-
fications, not for delayed appointments and not for appoint-
ments to fill unexpired terms." Second, the court noted that
a staggering provision had been proposed, but not adopted by
Congress in the 1994 Act. Third, the district court relied on
the removal of the staggering and vacancy provisions from
the 1983 Act, holding that "when Congress affirmatively
deletes language which had been included in pre-existing
legislation, then Congress means what it said."
Finally, the court rejected appellants' argument that failure
to maintain staggering would undermine "the bipartisan na-
ture of the Commission as well as its integrity and credibili-
ty." The court found "nothing to suggest that the absence of
such a requirement would frustrate Congress' purpose." Al-
though acknowledging that its ruling would eliminate "uni-
formly staggered terms," the court opined that its decision
would not result in the "complete elimination of all stagger-
ing." Even so, the court reasoned that the "staggered term
requirement was only one amongst a large constellation of
protections that were introduced by the 1983 Act" and "[a]ll
of these protections, except staggered terms, remain express-
ly included in the 1994 Act." The district court concluded
that "[i]f Congress believes that the regularly staggered
terms should be among these protections, then, of course, it is
free to make its intention explicit by including express lan-
guage in the statute."
The United States and Kirsanow filed this appeal.
II. Analysis
This case involves a pure legal question of statutory inter-
pretation. Our review of statutory interpretation by a dis-
trict court is de novo. See, e.g., Butler v. West, 164 F.3d 634,
639 (D.C. Cir. 1999).
A.
We begin our analysis with the language of the statute.
See, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 122
S. Ct. 941, 950 (2002). "Our first step in interpreting a
statute is to determine whether the language at issue has a
plain and unambiguous meaning with regard to the particular
dispute in the case. Our inquiry must cease if the statutory
language is unambiguous and 'the statutory scheme is coher-
ent and consistent.' " Robinson v. Shell Oil Co., 519 U.S. 337,
340 (1997) (quoting United States v. Ron Pair Enterprises,
Inc., 489 U.S. 235, 240 (1989)). In determining the "plainness
or ambiguity of statutory language" we refer to "the language
itself, the specific context in which that language is used, and
the broader context of the statute as a whole." Id. at 341
(citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469,
477 (1992); McCarthy v. Bronson, 500 U.S. 136, 139 (1991)).
The disputed provision, 42 U.S.C. s 1975(c) provides: "The
term of office of each member of the Commission shall be 6
years. The term of each member of the Commission in the
initial membership of the Commission shall expire on the date
such term would have expired as of September 30, 1994."
Appellants contend, contrary to the district court's holding,
that the language of the first sentence of s 1975(c) is ambigu-
ous, as the expression "term of office" is subject to at least
two plausible interpretations. Appellants concede that one
very plausible interpretation of s 1975(c) is that advocated by
Wilson and adopted by the district court: Each individual
member of the Commission, however appointed, whenever
appointed, is entitled to serve a six-year period of time--i.e.,
the term runs with the person. Under this interpretation,
each member of the Commission would receive a six-year
term running from the date of her appointment. However,
appellants argue that another plausible reading of s 1975(c) is
that the first sentence establishes six-year terms of office,
beginning and ending on fixed dates, irrespective of whether
and when individuals are appointed to fill them. Under this
reading, each member of the Commission must be assigned to
a fixed, six-year 'slot' of time--i.e., the term runs with the
calendar. We agree with appellants that the ambiguity in the
first sentence of s 1975(c) permits either of the readings
suggested.
As Attorney General Brewster explained more than a
century ago, "[t]here are two kinds of official terms." Com-
missioners of the District of Columbia, 17 Op. Att'y Gen. 476,
476 (1882). One kind of "term" refers to a period of personal
service. In that case, "the term is appurtenant to the per-
son." Id. Another kind of "term" refers to a fixed slot of
time to which individual appointees are assigned. There,
"the person is appurtenant to the term." Id. at 479. In
other words, a "term of office" can either run with the person
or with the calendar. As an example of the latter, Article II
of the Constitution provides that the President shall hold
office during a "Term of four Years." U.S. Const. Art. II,
s 1, cl.1. Even before enactment of the Twentieth Amend-
ment, which established specific dates for the end of the
President's term, it was understood that presidential terms
ran four years with the calendar, not four years with the
person, regardless of whether an individual assumed office
after his predecessor failed to serve out a full term. Thus,
contrary to appellees' position, it is not clear that the expres-
sion "term of office ... shall be 6 years" found in s 1975(c) is
unambiguous. Indeed, far from it. The very appointment of
Wilson by President Clinton to serve only the remainder of
Judge Higginbotham's term demonstrates the ambiguity in
the statutory provision calling for six-year "term[s] of office."
The district court erred in holding that s 1975(c) unambigu-
ously requires that all Commissioners be appointed for six
years, regardless of whether their predecessors completed
their terms. This error undermines the district court's judg-
ment, because the remainder of its analysis rests on that
erroneous premise as its point of departure.
B.
Finding that the expression "term of office" in 42 U.S.C.
s 1975(c) is ambiguous, we are left to resolve that ambiguity.
In resolving the ambiguity, we consider the broader context
of s 1975(c) and the structure of the 1994 Act as a whole, as
well as the contextual background against which Congress
was legislating, including relevant practices of the Executive
Branch which presumably informed Congress's decision, prior
legislative acts, and historical events. Finally, we explore the
policy ramifications of the suggested interpretations of
s 1975(c). Each of these considerations leads us to the
conclusion that, in enacting the 1994 Act, Congress did not
disrupt the staggering of terms of Commission members
created in the 1983 Act. Therefore we hold that Wilson was
appointed by President Clinton only to fill the unexpired term
of Judge Higginbotham, as her commission indicates, and her
service as a Commissioner terminated on November 29, 2001.
As a result, Kirsanow, having been validly appointed to a
vacant seat on the Commission on December 6, 2001, for a
term expiring November 29, 2007, and having taken the oath
of office, is a member of the United States Commission on
Civil Rights.
1.
Appellants argue that in order to properly interpret 42
U.S.C. s 1975(c) we must construe both of its two sentences
together, rather than as separate and unrelated. Taken
together, appellants contend that it is evident that the 1994
Act retained "fixed slots of time to which individual members
of the Commission are 'appurtenant.' " The second sentence
of 42 U.S.C. s 1975(c) provides that the "term of each mem-
ber of the Commission in the initial membership of the
Commission shall expire on the date such term would have
expired as of September 30, 1994," under the 1983 Act. The
"initial membership" of the Commission is defined as "the
members of the United States Commission on Civil Rights on
September 30, 1994," in other words, the members then
serving on the Commission pursuant to the 1983 Act. 42
U.S.C. s 1975(b). Appellants argue that in maintaining the
staggering of "initial terms" of the Commission, as inherently
provided for by the second sentence of s 1975(c), the 1994
Act perpetuated a self-replicating system of staggered terms.
New terms begin based on when the old, staggered terms
end. Thus the structure created by Congress in 1983 and
preserved in 1994 would automatically endure.
Appellees would have us read the two sentences of
s 1975(c) as unrelated. According to appellees, the first sen-
tence alone sets the term of office for six years, and the
second sentence simply addresses the transitional issue of the
terms of the "initial membership" of the Commission, allow-
ing the existing members of the Commission to finish the
terms to which they had been appointed. However, as dis-
cussed in Part II.A, supra, read alone, the first sentence of
s 1975(c) is ambiguous. It is susceptible to an interpretation
that each member appointed to the Commission receives six
years from her date of appointment, regardless of whether
her predecessor left office early, and regardless of whether
there was a delay in her appointment. This is the interpreta-
tion urged by the intervenors. This interpretation would not
only grant Wilson a full six-year term, it would effectively
extend the terms of others on the Commission. Yet, an
equally plausible interpretation is that terms of the Commis-
sioners run for six years with the calendar. Rather than
counting from the date of appointment, the six years of
members' term are counted from the expiration of their
predecessors' term. This is the common practice of the
Executive Branch in making appointments to staggered
boards and commissions. See, e.g., Office of Legal Counsel,
Department of Justice, Memorandum for the Executive
Clerk, "Term of a Member of the Mississippi River Commis-
sion," at 1 (May 27, 1999) (observing that "to preserve the
staggering required by statute, each member may serve only
until the passage of the specified number of years calculated
from the expiration of his predecessor's term, even if the
member's confirmation and appointment take place after that
prior term has expired"). Thus, despite any delay in appoint-
ment, a Commissioner's term would expire six years from the
day her predecessor's expired. Both are six-year terms--the
question is which Congress intended here.
Reading the first sentence of s 1975(c) together with the
second sentence, the latter provides an "anchor"--fixed times
for terms of Commissioners to expire, based on the "term[s]
of each member of the Commission in the initial membership
of the Commission." It is "a 'fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.' " FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 132 (2000) (quoting Davis v. Michigan Dep't of
Treasury, 489 U.S. 803, 809 (1989)). Thus, it is a more
faithful construction of s 1975(c) to read it as a whole, rather
than as containing two unrelated parts. It is the "classic
judicial task" of construing related statutory provisions "to
'make sense' in combination." United States v. Fausto, 484
U.S. 439, 453 (1988). The second sentence does indeed
address the transitional issue of the terms of the "initial
membership," but in doing so, it also creates a pattern of
staggered appointments. Staggered terms must run with the
calendar, rather than with the person, to preserve staggering.
Thus, taken with the history and background against which
Congress was legislating, discussed infra, it simply makes
more sense to read s 1975(c) as creating terms of office
running with the calendar from the date of expiration of a
predecessor's term. That being the case, any appointment to
fill a vacancy for an unexpired term, such as Wilson's appoint-
ment, must only be for the duration of that unexpired term.
For it to be otherwise would disrupt the fixed and staggered
six-year terms that run with the calendar.
At oral argument, we raised with counsel for appellees the
question of the effect of their proffered interpretation, as
adopted by the district court, on the terms of those members
who, like Berry and Reynoso, were appointed to succeed
Commissioners who had served their full terms, when the
successor did not take office until the lapse of some period of
time after the termination of the prior Commissioner's ser-
vice. Counsel argued for a two-track application of the
statute, contending that when an appointee's predecessor had
served out her full term, but there was a delay in the
nomination of the new appointee, that new appointee could
permissibly serve less than a full six years, because such a
discrepancy was only minor. However, when the appointee is
replacing a predecessor who had failed to serve out a full
term, such as here, the new appointee should serve a new, full
six years from the date of her appointment. This anomalous
result further undermines appellee's interpretation of the
statute. We have difficulty believing that Congress sub
silentio created two different tracks with full six-year terms
for those Commissioners who succeeded appointees who by
reason of death or resignation did not serve out their full
terms, but truncated terms for those who succeeded members
who served for six years but whose vacancy was not immedi-
ately filled by presidential appointment. Nothing in
s 1975(c) gives any indication that the phrase "the term of
office of each member of the Commission" has two different
meanings for two distinct classes of commissioner not other-
wise recognized in the statute. The lack of such differentia-
tion and appellee's concession that "delayed appointees" serve
terms shortened by the interval between the expiration of
their predecessors' term and the date of their appointment
further supports our interpretation that, read together, the
two sentences of s 1975(c) create fixed six-year terms that
run with the calendar.
Our interpretation is consistent with widely held traditional
understandings of statutes defining terms of office. The
second edition of American Jurisprudence notes that
"[w]here both the duration of the term of an office and the
time of its commencement or termination are fixed by a
constitution or statute, a person elected or appointed to fill a
vacancy in such office holds for the unexpired portion of the
term...." 63C Am. Jur. 2d Public Officers and Employees
s 148 (1997). The controversy before us involves just such a
term of office. The first sentence of s 1975(c) fixes the
duration of the term: six years. The second sentence of
s 1975(c) fixes the time of termination: the terms of the
initial members expire at dates determinable from preexisting
law. It is thus unsurprising that President Clinton issued a
commission appointing appellee Wilson "for the remainder of
the term expiring November 29, 2001." Reading s 1975(c) as
a whole, we conclude that it creates fixed six-year terms of
office that run with the calendar, rather than with the person.
Thus, having been appointed to fulfill the remainder of Judge
Higginbotham's term, expiring November 29, 2001, Wilson's
time on the Commission is up.
2.
Our interpretation of s 1975(c) is further confirmed by
background considerations such as relevant practices of the
Executive Branch. Congress is presumed to preserve, not
abrogate, the background understandings against which it
legislates. See, e.g., Bennett v. Spear, 520 U.S. 154, 163
(1997); Norfolk Redev. & Hous. Auth. v. Chesapeake &
Potomac Tel. Co., 464 U.S. 30, 35 (1983). "[L]ongstanding
practices" of the Executive Branch can "place[ ] a 'gloss' on
Congress's action in enacting" a particular provision. Ass'n
of Civilian Technicians v. FLRA, 269 F.3d 1119, 1122 (D.C.
Cir. 2001). Here the consistent treatment of appointments by
the Executive Branch provides such a "gloss."
Neither the 1983 Act nor the 1994 Act explicitly addressed
delays in appointments of members after a predecessor's
term had expired. Yet, it appears that every presidential
appointee to the Commission since 1983 has been appointed
to a term of office expiring six years from the date her
predecessor's term expired. Even after the passage of the
1994 Act, with the changes appellees claim it made to the
"terms of office," President Clinton appointed no less than
four members to the Commission for terms of less than six
years. Three of these were delayed appointments, and the
fourth is Victoria Wilson. Congress has reappropriated funds
for the Commission, effectively reauthorizing it, each year
since it was supposed to terminate in 1996, and yet it has not
once suggested that the Executive Branch's implementation
of the law was incorrect. It is not that the President's
"interpretation" of 42 U.S.C. s 1975(c) is due deference, as
suggested by appellants, but rather that the Executive
Branch's interpretation of the law through its implementation
colors the background against which Congress was legislat-
ing. Congress is presumed to be aware of established prac-
tices and authoritative interpretations of the coordinate
branches. E.g., National Lead Co. v. United States, 252 U.S.
140, 147 (1920) ("Congress is presumed to have legislated
with knowledge of such an established usage of an executive
department of the government."); Lorillard v. Pons, 434 U.S.
575, 580 (1978); In re North, 50 F.3d 42, 45 (D.C. Cir. 1995)
(Special Division). Here the Executive Branch's consistent
practice provides a presumptive default.
Similarly, the practice of appointing members to the Com-
mission on Civil Rights is but an example of what has been
the unbroken position of the Attorney General and the Jus-
tice Department on executive appointments. As noted in an
opinion issued by the Office of Legal Counsel on May 27,
1999, Term of a Member of the Mississippi River Commis-
sion:
Ordinarily, when a statute provides for an appointee to
serve a term of years, the specified time of service begins
with the appointment. Case of Chief Constructor Easby,
16 Op. Att'y Gen. 656 (1880). A different rule generally
applies to commissions whose members have staggered
terms. There, to preserve the staggering required by
statute, each member may serve only until the passage of
the specified number of years calculated from the expira-
tion of his predecessor's term, even if the member's
confirmation and appointment take place after that prior
term has expired.
(Emphasis added.) This latter rule has been consistently
applied to executive appointments to the Commission on Civil
Rights both in its previous incarnation under the 1983 Act
and as constituted under the 1994 Act. Appointments have
run six years from the date of the expiration of a predeces-
sor's term--not from the date of appointment.1 It is of
course possible that the consistent practice of Presidents
Clinton and Bush in appointing members of the Commission
has been consistently wrong. However, we do not agree with
appellee's interpretation compelling that conclusion. Rather,
we hold that Presidents Clinton and Bush have it right. That
is, the 1983 Act clearly intended to create staggering. The
1994 Act preserved this structure by providing for six-year
terms with the terms of the initial Commissioners expiring
according to their commissions under the 1983 Act.
Furthermore, the consistent practice of the Executive
Branch with respect to the filling of midterm vacancies on
other bodies with staggered term members has been to fill
those vacancies for the duration of the unexpired term,
preserving the staggering of terms. That this practice has
been longstanding is illustrated by a dispute in the 19th
century remarkably similar to the case at bar. In 1882, the
Attorney General was asked by the President for his opinion
__________
1 At oral argument we requested information on Congress's
own practices in making appointments to the Commission. The
information appellees have provided shows that, unlike the Execu-
tive Branch, Congress has been inconsistent in its appointments
under both the 1983 Act and the 1994 Act, generally failing to
indicate termination dates for appointees, and on one occasion
indicating the appointment was to run six years from the date of
appointment. See 142 Cong. Rec. H1233-06 (1996) (Reappointment
of Carl Anderson). Most recently however, the Speaker of the
House appointed Abigail Thernstrom on January 6, 2001. See 147
Cong. Rec. H46-02 (2001). Thernstrom's initial appointment was
apparently only to fill the remainder of a vacant seat, because she
was reappointed by the Speaker, without objection, to the Commis-
sion "for a 6-year term beginning on February 12, 2002." See 148
Cong. Rec. H229-09 (2002). This most recent action by the House
of Representatives is consistent with our interpretation of the
statute.
of the term of office of a Commissioner of the District of
Columbia who had been appointed after his predecessor failed
to serve out a full term. See Commissioners of the District of
Columbia, 17 Op. Att'y Gen. 476, 476 (1882). The governing
statute provided for staggering with respect to the initial
appointment of the two Commissioners, but was silent about
both subsequent appointments and the filling of vacancies.
Nonetheless, the Attorney General concluded that a Commis-
sioner appointed to fill a vacancy could serve only for the
remainder of his predecessor's unexpired term. As noted in
Part II.A, supra, the Attorney General distinguished between
terms running with the person and terms running with the
calendar. He concluded that there must be "some apt ex-
pression of ... intent" to create the latter kind of term, and
found such an "apt expression" from the initial staggering of
terms. Id. at 477. Were it to be otherwise, the staggering of
the Commission would deteriorate, and frustrate Congress's
purpose in establishing staggering in the first place. See id.
at 477-78. He concluded that "[t]he fact that no express
provision is made for filling vacancies which might arise by
death or resignation is not significant." Id. at 478. In
appointing Victoria Wilson for the remainder of Judge
Higginbotham's term of office, President Clinton was follow-
ing an established Executive Branch practice which was
known to Congress. Had Congress intended to disrupt the
staggering of members in its 1994 reauthorization of the
Commission on Civil Rights, it could have affirmatively indi-
cated that was its intent.
Appellee Wilson argues that if we held that each member
of the Commission receives a six-year term of office running
from the date of their appointment, her appointment, though
reflected in her commission as "for the remainder of the term
expiring November 29, 2001," would be effective as a six-year
appointment expiring on January 12, 2006. In support of this
proposition appellees cite Quackenbush v. United States, 177
U.S. 20, 27 (1900), which notes in passing that "the terms of
[a] commission cannot change the effect of the appointment
as defined by ... statute." That may be. But arguably
Wilson may not have been validly appointed in the first
instance.2 It seems intuitive, as a matter of separation of
powers, that the language of a nomination, confirmation, and
commission cannot alter a statutory term, since it is given to
Congress "under its legislative power" to "establish[ ] ...
offices, the determination of their functions and jurisdiction,
the prescribing of reasonable and relevant qualifications and
rules of eligibility of appointees, and the fixing of the term for
which they are to be appointed and their compensation--all
except as otherwise provided by the Constitution." Myers v.
United States, 272 U.S. 52, 129 (1926) (Taft, C.J.) (emphasis
added). Indeed, this appears to be the position of the Depart-
ment of Justice. See, e.g., Office of Legal Counsel, Depart-
ment of Justice, Memorandum for the Executive Clerk,
"Term of a Member of the Mississippi River Commission," at
2 (May 27, 1999); Case of Chief Constructor Easby, 16 Op.
Att'y Gen. 656, 657 (1880).
However, we are not considering an attempt by a President
to intentionally circumvent a statute. Nor is this a case of
mere scrivener's error. Rather, it is clear that President
Clinton intended to appoint Wilson to the remainder of a
term and not to a full six-year term, a position he reasonably
believed existed. Were we to read the statute as prohibiting
appointments to the remainder of a term then either Wilson's
appointment must be to a six-year term, or alternatively, it
was to a non-existent position--the remainder of a term--
raising a question as to the validity of her appointment in the
first instance. It could be seen as an attempt by the Presi-
dent to appoint Wilson to a position that did not exist. In
that case Wilson would never have been a valid member of
the Commission in the first instance. However, because we
read the statute as preserving staggering and thus permitting
__________
2 Wilson accepted her commission from President Clinton with
it expressly stating that it was "for the remainder of the term
expiring November 29, 2001." Subsequently she failed to challenge
the terms of her commission prior to its expiration. Therefore she
is arguably bound by those terms, and estopped from asserting an
alleged violation of 42 U.S.C. s 1975(c). However, given our resolu-
tion, we need not decide.
the appointment of Wilson to the remainder of a term of
office, that problem need not concern us. As a result, Wilson's
appointment by President Clinton was valid, but her term of
office has subsequently expired.
3.
In addition to Executive Branch practices implementing a
statute, background considerations, or "context," include re-
lated provisions in historically antecedent statutes. E.g.,
Dep't of Commerce v. U.S. House of Rep., 525 U.S. 316, 339-
40 (1999). We need not rely on legislative history, of which
there is little of relevance, to determine that staggering of
terms was an important feature of the 1983 Act--the plain
text and the historical events surrounding the 1983 reauthori-
zation of the Commission demonstrate that fact. Congress
went to great lengths to put various structural features in
place to preserve the independence, autonomy, and non-
partisan nature of the Commission. Clearly staggering was
one of those features. See Pub. L. No. 98-183 s 2(b)(2), (3),
97 Stat. 1301 (1983). The 1983 Act was enacted at a time when
Congress was responding to President Reagan's decision to
remove and replace first two, then a total of five, members of
the Commission. See Congressional Research Service, Ten-
ure of Members of the Civil Rights Commission, Memoran-
dum to House Subcommittee on the Constitution, at 2-3, 5
(Dec. 14, 2001). Thus it is evident that in staggering the
membership (among other features), Congress was insulating
the Commission from carte blanc replacement at any given
time. To suggest that Congress abolished this practical
structural feature without any indication that it intended to--
evidenced by the fact that the Clinton and Bush Administra-
tions continued to treat the Commission as a body with
staggered membership--presents a highly improbable scenar-
io. There is no evidence in or external to the 1994 Act that
Congress meant to disrupt the system it had meticulously put
into motion.
Appellees suggest that we can deduce Congress's intent to
alter the terms of office created by the 1983 Act because the
original version of the bill introduced in the House of Repre-
sentatives to reauthorize the Commission provided that "the
current staggering of terms shall continue in effect." H.R.
4999 s 2(c), 103d Cong. (1994). Appellees contend that the
removal of this language demonstrates that Congress intend-
ed to disrupt the staggering created by the 1983 Act. How-
ever, it is at least equally plausible that Congress considered
such language simply unnecessary in light of the addition of
the provision that the terms of "initial" members "shall expire
on the date such term would have expired as of September
30, 1994." 42 U.S.C. s 1975(c). This language demonstrates
that Congress intended to preserve the structure created
under the 1983 Act.
Indeed, Congress used virtually the exact same language in
defining the six-year term of office in both the 1983 and 1994
Acts: "The term of office of each member of the Commission
shall be 6 years." 42 U.S.C. s 1975(c); Pub. L. No. 98-103
s 2(b)(2).3 If anything this suggests that "term of office"
retains the same meaning as it did in 1983. Since there is
apparently no dispute that under the 1983 Act a "term of
office" ran with the calendar, that same understanding would
apply to the 1994 Act.
Appellees' strongest argument that Congress intended to
alter the structure of the Commission in adopting the 1994
Act is that it eliminated the provision providing that "any
member appointed to fill a vacancy shall serve for the remain-
der of the term for which his predecessor was appointed."
Pub. L. No. 98-103 s 2(b)(2)(B). This argument is not without
force. As this Court has recognized: "Where the words of a
later statute differ from those of a previous one on the same
or related subject, the Congress must have intended them to
have a different meaning." Muscogee (Creek) Nation v.
Hodel, 851 F.2d 1439, 1444 (D.C. Cir. 1988). Further, there
are numerous statutes creating boards and commissions that
expressly provide for filling vacancies. However, here we
have not a new agency, but a Commission that Congress had
already established and was merely reauthorizing. In the
process Congress removed provisions pertaining to the initial
__________
3 The only difference is that the 1983 Act spelled out "six."
staggering of the Commission which also included the vacan-
cy provision. What that leaves is not different words, as in
Muscogee (Creek) Nation, but rather silence. And not just
silence, but silence coupled with ambiguous terms, well-
established practices of the Executive Branch, and the per-
petuation of a staggered board in the 1994 Act by providing
that the terms of "initial" members "shall expire on the date
such term would have expired as of September 30, 1994,"
under the 1983 Act. Had Congress intended to change the
established practice for appointing members of the Commis-
sion on Civil Rights, it could have affirmatively indicated its
intent to do so. It did not. "Congress is unlikely to intend
any radical departures from past practice without making a
point of saying so." Jones v. United States, 526 U.S. 227, 234
(1999). These contextual considerations lead us to the conclu-
sion that the 1994 Act maintained the structure of the Com-
mission as reauthorized in 1983, and thus Wilson was appoint-
ed to fill an unexpired term, rather than to a new term of her
own.
4.
Finally, we observe that our interpretation, unlike that
urged by appellees, avoids anomalous results. As noted
above, the creation of staggered terms was one of several
structural features adopted in the 1983 Act to establish the
Commission as an independent, bipartisan entity, to insulate
it from political influence, and to protect its integrity and
credibility. The district court contended that its decision
would not result in "the complete elimination of all stagger-
ing," but acknowledged that its decision would result in the
"absence of uniformly staggered terms." The district court
further contended that "there is little, if any, substantive
difference between those two." We disagree. There is a
substantial difference in having predictable terms ensuring
that membership will turn over in a periodic and foreseeable
manner, and having unpredictable vacancies that permanently
disorder member terms. Not the least difference is the
diffusion of appointment authority across presidential admin-
istrations. Moreover, there is no apparent reason Congress
would originally create fixed, staggered terms, as it did under
the 1983 Act, only to have them become unpredictably de-
staggered over time as some members of the Commission
resign, retire, are removed, or die.
Even more telling is the fact that the construction urged by
appellees would invite the very sort of political manipulation
leading to the reorganization of the Commission in 1983. For
example, de-staggering could arise from concerted resigna-
tions near the end of a President's term, allowing an outgoing
President to appoint several members of the Commission at
once, precluding his successor from appointing any members
of the Commission. Such "absurd results" are strongly disfa-
vored. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575
(1982). Congress was attempting to insulate the Commission
from this kind of carte blanc replacement at any given time.
Appellees have no argument as to why these same policy
considerations were no longer relevant in 1994 when Con-
gress reauthorized the Commission. The absence of any
policy justification for the construction urged by appellees
provides yet an additional reason to conclude that Congress,
when it established the "initial membership" of the Commis-
sion in the 1994 Act, see 42 U.S.C. s 1975(c), preserved the
staggering it had set in motion in the 1983 Act, and did not
intend for the benefits of that provision to be destroyed as
some future appointees, either because of random events or
strategic behavior inevitably failed to serve out their terms.
III. Conclusion
Since the founding of the republic presidential appointees
and their commissions have been a source of litigation, if
not consternation. See, e.g., Marbury v. Madison, 5 U.S. (1
Cranch) 137, 154 (1803). Here Wilson's commission corre-
sponds to the terms of the statute pursuant to which she
was appointed a member of the United States Commission
on Civil Rights--42 U.S.C. s 1975. Part (c) of s 1975 pro-
vides that the "term of office of each member of the Com-
mission shall be 6 years." The district court erred in
holding that this provision unambiguously requires all
Commissioners be appointed for six years, regardless of
whether their predecessors completed their terms. Rather,
s 1975(c) is also susceptible to the entirely reasonable in-
terpretation that it establishes fixed terms of six years for
members of the Commission--terms that run with the cal-
endar--regardless of delay in appointment or the filling of
mid-term vacancies. Having considered the two sentences
of s 1975(c) in conjunction, practices of the Executive
Branch in making appointments to this Commission and
other bodies, the prior legislation, and the policy ramifica-
tions of the suggested interpretations of s 1975(c), we hold
that the latter interpretation is correct. In enacting the
1994 Act, Congress did not disrupt the staggering of terms
of Commission members created in the 1983 Act. There-
fore, mid-term vacancies are to be filled only for the re-
mainder of the unexpired term. Wilson was properly ap-
pointed by President Clinton only for the remainder of the
unexpired term of Judge Higginbotham, as her commission
indicates, and her service as a Commissioner terminated
on November 29, 2001. Kirsanow, having been validly ap-
pointed to a vacant seat on the Commission, and having
taken the oath of office, is a member of the United States
Commission on Civil Rights "with all the powers, privi-
leges, and emoluments thereunto of right appertaining"
and has been since December 6, 2001. We reverse the
district court and remand with instructions to enter sum-
mary judgment for the United States and Kirsanow. It is
So ordered.