Dennis v. Luis

OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. This case involves a suit for injunctive and declaratory relief brought by eight members of the Virgin Islands Fifteenth Legislature. These legislators challenged Governor Juan Luis’ (the “Governor”) appointment of Arnold M. Golden (“Golden”) as “acting” Commissioner of Commerce. The district court ruled that the Governor’s authority to make temporary appointments was controlled by 3 V.I.C. § 64(a) and that section 64(a) did not authorize the Governor to appoint an “acting” Commissioner of Commerce. Relying on section 64(a), the district court concluded that at the time Golden was appointed, the Governor was empowered only to make “recess” appointments, and not temporary appointments of any other sort. Thus, it held that under 3 V.I.C. § 64(a) Golden was a recess appointee. Because a recess appointee’s term is defined by statute and because the Governor was without the power to make any other temporary appointments including acting appointments, the district court ordered Golden to be removed from office after determining that Golden’s term as a recess appointee had expired as of December 12, 1983. On appeal, both the Governor and Golden challenge the legislators’ standing to maintain the underlying action. In the alternative, they argue that the district court erred in not recognizing the Governor’s right to make any appointments other than recess appointments, and therefore, erred in ordering Golden’s removal from office. Moreover, they assert that, notwithstanding the above, equitable considerations warrant a dismissal under the Riegle doctrine.1 Although we agree with the district court’s conclusion that temporary appointments are governed by 3 V.I.C. § 64(a), we find that the district court erred in its determination of when a recess appointment expires pursuant to section 64(a), and we will therefore vacate the judgment of the district court so that it can be re-entered in conformance with this opinion. I. Golden’s name was submitted on April 21, 1983 to the Fifteenth Legislature for the position of Commissioner of Commerce in the Virgin Islands. Under the Revised Organic Act of 1954, § 16(c), 48 U.S.C. § 1597(c), the legislature’s advice and consent was necessary before an appointment to that position could be made. The legislature, however, on June 7, 1983 rejected Golden’s nomination. Notwithstanding this rejection, the Governor thereafter on November 22, 1983 appointed Golden “acting” Commissioner of Commerce. Following this appointment, eight of the fifteen members of the legislature filed suit in order to remove Golden from office. They asserted that “[t]he effect of the ap — 630 — pointment ... is to usurp the doctrine of separation of powers and circumvent the process of advice and consent, thus violating a basic constitutional power conferred upon the Legislature ... by the United States Congress ____” Appendix (“App.”) at 5. Without addressing the constitutional issues raised by the plaintiffs, the district court ruled that the Governor’s appointment powers are governed by 3 V.I.C. § 64(a). In the district court’s view, this statute contemplates only recess appointments for the time period in which Golden was appointed. The district court could find no authority permitting the Governor to make any other form of non-permanent appointments. Accordingly, it considered Golden a recess appointee and having then found that the time period for recess appointments had expired, it held Golden’s continued occupancy of the position of Commissioner of Commerce to be unlawful. The district court thus issued an injunction directing that the Governor remove Golden as “acting” Commissioner of Commerce. Golden’s removal was stayed pending this appeal.2 A. Before turning to the merits of appellants’ claim that the district court erred in ordering Golden’s removal from office, we will consider appellants’ challenge to the legislators’ standing to maintain this action.3 The Governor and Golden argue that the legislators do not have standing because they have failed to allege a legally cognizable injury. In making the determination as to whether the threshold requirements of standing are satisfied, we must “accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Moreover, throughout this standing inquiry, our focus will be “on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). Recently,. in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), the Supreme Court set forth the minimum constitutional requirements necessary to establish standing. In short, a party seeking standing must demonstrate: (i) an actual or threatened injury that was (ii) caused by the defendant’s actions and is (iii) capable of judicial redress. Id. at 472, 102 S.Ct. at 758. In this case, the injury alleged by the legislators in their complaint is that the Governor’s appointment of Golden as “acting” Commissioner of Commerce after his nomination as a permanent appointee had — 631 — been rejected by the legislators “usurp[ed] the doctrine of separation of powers and eircumvent[ed] the process of advice and consent, thus violating a basic constitutional power conferred upon the Legislature of the Virgin Islands____” App. at 5. Thus, they argue that their votes rejecting Golden’s nomination were nullified by Golden’s subsequent appointment to “acting” Commissioner. The Governor and Golden, on the other hand, maintain that this alleged injury does not constitute a legally cognizable injury sufficient to confer standing. Specifically, they assert that “[pjlaintiffs may be more angry than the average person about this matter, but intensity of feelings ... does not confer standing, and they allege no personal injury.” Appellant’s Brief at 3. In resolving this question, our analysis begins with the Virgin Islands Code which provides that the Commissioner of Commerce is to be “appointed by the Governor, with the advice and consent of the Legislature....” 3 V.I.C. § 332(b). According to the legislators’ allegations, the interest sought to be protected by this action is their unique statutory right to advise the Governor on executive appointments and to confer their approval or disapproval in this regard. Assuming these allegations to be true, we conclude that they allege a personal and legally cognizable interest peculiar to the legislators. See Riegle v. Federal Open Market Committee, 656 F.2d 873, 878-79 (D.C.Cir.), cert, denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981). The interest asserted is simply not a “generalized interest of all citizens in constitutional governance ____” Valley Forge Christian College, 102 S.Ct. at 769, quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 217, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974). Since the right to advise and consent has been vested only in members of the legislature, and since only members of the legislature are bringing this action, the allegation that this right has been usurped by the Governor and Golden are sufficiently personal to constitute an injury in fact, thus satisfying the minimum constitutional requirements of standing. We therefore believe that it is reasonable to hold that the legislators have standing. B. Having determined that the legislators have met the prerequisites for standing, we will next consider whether there are any prudential concerns which nonetheless require us to dismiss this suit. Suits brought by legislators seeking to challenge executive actions and policies inevitably raise separation-of-powers concerns because of their political overtones. The Court of Appeals for the District of Columbia in Harrington v. Bush, 553 F.2d 190 (D.C.Cir.1977), observed that: The standing and political question doctrines are both facets of the broader concept of justiciability and “... either the absence of standing or the presence of a political question suffices to prevent the power of the federal judiciary from being invoked by the complaining party.” Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706 (1974). Id. at 194, n. 6. Focusing on the tensions generated by litigation initiated by legislative plaintiffs, who were dissatisfied members of Congress, Judge McGowan wrote in his seminal article, Congressmen in Court: The New Plaintiffs, that the “use of the standing doctrine to address the separation-of-powers concerns arising when federal legislators sue the executive branch in federal court is fraught with difficulties both in theory and in application.” 15 Ga.L.Rev. 241, 256 (1981) (emphasis added). Moving the site of such litigation from Washington, D.C. to the Caribbean vacation retreat of St. Thomas does not decrease the tension nor does it make the problems in either theory or application less “fraught with difficulties” than those described by Judge McGowan. — 632 — In this case, it is obvious that the court is being asked to resolve an intense power dispute between the legislature and the executive branch. Any judicial resolution of such a dispute has significant political implications in the struggles for dominance of, control of, or impact on a government. Obviously, when the United States Congress passed the Revised Organic Act of 1954 granting the Virgin Islands legislature the right to advise on and consent to executive appointments. 48 U.S.C. § 1597(c), it was intended that the democratically-elected legislative branch of the Virgin Islands act as a check and balance on the Governor’s power. At the same time, by granting the Governor the right to make executive appointments, subject to the advice and consent of the Virgin Islands legislature, Congress intended to give the Governor substantial power in choosing those persons who would represent his views of how the key executive departments and the government should function. Thus, our problem involves determining the court’s role when these separate, independent branches of government — the executive and the legislative — clash and cannot resolve their difficulties on their own political turfs. Should legislators be allowed to use the judicial process to force the executive branch to comply with “the law of the land?” Or, phrased differently, should legislators be able to use the court to implement a victory that was won in the legislative hall and ignored in the executive mansion? Obviously, similar litigation in the District of Columbia involving Congressmen as plaintiffs must be our analogue in analyzing this difficult separation-of-powers issue and in defining the role of judicial review.4 In 1981, having faced more than a decade of sensitive litigation, the United States Court of Appeals for the District of Columbia articulated a comprehensive jurisprudential theory defining the basis on which the courts should or should not dismiss suits filed by congressional plaintiffs against the executive branch. In Riegle v. Federal Open Market Committee, the court concluded that in those instances where Congressmen satisfy the traditional standing tests, the court may nevertheless dismiss the suit pursuant to the doctrine of “circumscribed equitable discretion.” Rie-gle, 656 F.2d at 881. The Riegle court stated: “The most satisfactory means of translating our separation-of-powers concerns into principled decisionmaking is through a doctrine of circumscribed equitable discretion.” Id. We shall refer to it as the “Riegle” doctrine. By circumscribed equitable discretion, the court had in mind those situations “[wjhen a congressional plaintiff brings a suit involving circumstances in which legislative redress is not available or a private plaintiff would likely not qualify for standing ...” Id. at 882. They further stated: We would welcome congressional plaintiff actions involving non-frivolous claims of unconstitutional action which, because they could not be brought by a private plaintiff and are not subject to legislative redress, would go unreviewed unless brought by a legislative plaintiff. In this last situation, there are no prudential considerations or separation-of-powers concerns which would outweigh the mandate of the federal courts to “say what — 633 — the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). Id. In this case, the Governor and Golden urge that we apply the Riegle doctrine here and that upon fair application, we would be required to dismiss the complaint. While we respect the thoughtful analysis in the opinion written by Judge Robb in Riegle, we are not bound by the articulated doctrine, and we decline at this time to adopt it. Furthermore, even if we were to apply the standard articulated in Riegle, we believe that we would not be required, to dismiss this suit. For, in addition to directing the dismissal of congressional plaintiffs’ suits where traditional concepts of standing are not satisfied. Riegle mandates dismissal only where “the plaintiff has standing but could get legislative redress and a similar action could be brought by a private plaintiff.” Riegle, 656 F.2d at 882. In Reigle, a legislator sought injunctive relief in the form of an absolute prohibition of voting by Reserve Board members of the Federal Open Market Committee (“FOMC”). This relief was sought because Congressmen had failed in previous attempts to have it required that the five representatives of the Reserve Bank seats be limited to bank presidents appointed by the President with the advice and consent of the Senate. Senator Riegle argued that “‘[b]y permitting the defendant individuals to act as officers of the United States when their nominations [had] never been submitted to the Senate,’ [he was deprived] of his constitutional right to vote in determining the advice and consent of the Senate to the appointment of the five Reserve Bank members of the FOMC.” Riegle, 656 F.2d at 877. Thus, in short, Senator Riegle challenged the procedure for constituting the FOMC which permitted nominations to be made without the advice and consent of the Senate. In resolving that dispute, the court concluded that where a congressional plaintiff has standing to challenge the actions of those acting pursuant to a statute which could be repealed or amended by his colleagues, or where he alleges an injury which could be substantially cured by legislative action, our standard would counsel judicial restraint. Riegle, 656 F.2d at 881 (emphasis added). Indeed, the Riegle court declared “there can be no doubt that Senator Riegle’s congressional colleagues are capable of affording him substantial relief.” Id. at 882. Therefore the court exercised its equitable discretion and dismissed the suit. In at least two critical aspects, the instant case is the polar opposite of the Rie-gle case. To appreciate the significant differences, it is best to start with the perspective of the trial judge in Riegle, Judge Gesell, whose following findings were quoted with approval by the Court of Appeals: Senator Riegle’s injury is of a political nature, deriving solely from the acts or omissions of his colleagues and not in any way from the actions of the named defendants. Reuss v. Balles, 584 F.2d 461, 468 (D.C.Cir.1978). What the Court must decide is whether or not a Congressman from either chamber has standing to challenge the constitutionality of a statutory provision on which he has failed to persuade his colleagues in the past and remains free to attempt persuasion in the future. The Court concludes that to confer standing upon such a Congressman without more would improperly interfere with the legislative process. Riegle, 656 F.2d at 877, quoting Riegle v. Federal Open Market Committee, 84 F.R.D. 114 (D.D.C.1979) (Gesell, J.) (emphasis added). In contrast to Riegle, the plaintiffs here do not complain of the “acts or omissions of [their] colleagues.” They complain of the acts or omissions of the defendants —the Governor and the Commissioners of Commerce. In Riegle the plaintiff complained because there was no mechanism which allowed or required the Senate to give their advice and consent on appointment of five Reserve Bank members to the — 634 — Federal Open Market Committee.5 Thus, in Riegle the concern was a statute which the plaintiff wanted to have enacted — but could not get sufficient colleagues to support. In contrast, here the very advice and consent mechanism Senator Riegle sought is already in effect. The plaintiffs have “not failed to persuade [their] colleagues”; if they have failed, it is that they have not persuaded the Governor to recognize the legal limitations of his appointment powers. In short, this case concerns a flouting by the Governor of a law that has been in fact enacted. Consequently, we believe it appropriate for us to consider this case. Accordingly, we turn now to a review of the district court’s decision. II. Though Gertrude Stein wrote “A rose is a rose is a rose,” one could not say that in the Virgin Islands all commissioners are the same. There have been three different types of Commissioners of Commerce. There has been the Commissioner nominated by the Governor and approved by the legislature pursuant to 3 V.I.C. § 332(b). There also has been a person such as Golden who is described as the “Acting” Commissioner but whose appointment rests not on any express authority. While the latter category of “Acting” Commissioner has no statutory authorization, apparently such appointments have been used in the past without complaint by the legislature. Finally, there also is a position known as the Recess Commissioner, that is, someone who is appointed pursuant to 3 V.I.C. § 64(a) by the Governor while the legislature is out of session. The trial court considered the latter as the only type of valid interim appointment which does not require legislative approval. The district court thus reasoned that because the legislature was in recess when Golden was appointed on November 22, 1983, Golden was a recess appointee under section 64(a). The Governor and Golden object to the district court’s classification of Golden as a recess appointment and assert instead that the appointment was of a different genre, that of an “acting” appointment. Although they concede that there exists no statutory authority for an “acting” appointment, they rely on custom to support its validity. Recognizing that a recess appointment as defined by section 64(a) is for a limited term, they contend that it was intended that Golden’s “acting” appointment be of indefinite duration depending on when the Governor submitted another nominee to the legislative body for consideration as a permanent appointee for the position of Commissioner of Commerce. The defect in the appellants’ argument is that by their theory there could be a complete nullification of the legislature’s power of advice and consent — a power which was explicitly granted in the Organic Act of 1954. There would be no limit to the time period in which an “acting” executive officer could serve. Thus, anyone appointed as an acting executive officer could serve for the entire period of the Governor’s term without ever having obtained the prerequisite approval of the legislature. While on a political level such an approach would make life less frustrating for the Governor, it nevertheless would obliterate the concept of separation-of-powers — a doctrine which for centuries in this country has proven to have value despite the tensions between the legislative and the executive branches. Without legislation granting such extraordinary power to the Governor, we do not recognize such a right despite some sporadic uncontested practice to the contrary. Section 64(a) is the legislative provision which governs temporary appointments. It states: — 635 — (а) The Governor shall have power to fill any vacancy which happens during the recess of the Legislature in an office which is required by law to be filled with the advice and consent of the Legislature by making an appointment which shall expire at the end of the next session of the Legislature. 3 V.I.C. § 64(a). In this case, the district court made a finding of fact that the legislature was in recess at the time Golden’s appointment was made; it also held that only recess appointments could be made without the advice and consent of the legislature. Therefore it concluded Golden must be considered a recess appointee. We do not believe that the district court’s factual finding that the legislature was out of session was clearly erroneous; nor do we believe that the district court erred in considering Golden to be a recess appointee. As to the issue of the Governor’s power to make a recess appointment of Golden, the majority and the dissent travel significantly different routes. The fundamental difference between the majority and the dissent is that, in our view, the dissent confuses the obligation of the treasurer to withhold payments with the power of the Governor to make appointments. We believe that the dissent seriously dilutes the appointment power which the Governor has been granted generally under the Revised Organic Act of 1954, § 16(c), 48 U.S.C. § 1597(c) and particularly in 3 V.I.C. § 64 which concerns recess appointments. Section 64 is a replication of U.S.Const. Art. 2, § 2, cl. 3 and 5 U.S.C. § 5503 combined, which provide: Art. 2, Sec. 2, cl. 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. 5 U.S.C. § 5503 Recess Appointments: (a) Payment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate. This subsection does not apply— (1) if the vacancy arose within 30 days before the end of the session of the Senate; (2) if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or (3) if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment. (b) A nomination to fill a vacancy referred to by paragraph (1), (2), or (3) of subsection (a) of this section shall be submitted to the Senate not later than 40 days after the beginning of the next session of the Senate. The dissent complains that we predicate our decision on section 64(a) rather than relying on sections 64(b) and (c). However, it should be noted that section 64(a) is the only section which speaks in terms of the power of the governor. In contrast, section 64(b) speaks in terms of the obligations of the treasurer and section 64(c) speaks as to the limitations of a recess appointee’s power in hiring or dismissing personnel or significantly altering agency programs. Putting the cart before the horse, the dissent suggests that because there are some circumstances under which a recess commissioner may not be paid a full salary for his or her performance in office, the Governor, therefore, lacks the power to make the appointment. Certainly, if the legislature had so intended it could have stated in section (b) that it was imposing limitations on the power of the Governor to appoint rather than merely noting the limitations on the treasurer’s disbursement. How — 636 — ever, instead of imposing prohibitions on the Governor in section 64(b), the prohibitions were merely applied to the treasurer. Thus, by a literal reading of sections 64(a) and (b) there is left the “interstitial space” where a person could be appointed a recess commissioner by the Governor and not be paid a commissioner’s salary. The dissent assumes that no one will work unless they are paid in full and therefore reads section 64(b) broader than its literal language. In reaching this result, the dissent disregards decades of experiences involving similar federal and constitutional provisions, and the dissent’s view implicitly sanctions a dilution of the U.S. President’s power, despite more than a century of opinions by Attorney Generals that are in fundamental conflict with the position of the dissent. As originally enacted in the United States, the recess payment provision prohibited recess appointees from being paid until Senate confirmation of the appointment. Thus, the act of February 9, 1863 (Rev.Stat., sec. 1768), stated as follows: No money shall be paid from the Treasury as salary to any person appointed during the recess of the Senate, to fill a vacancy in any existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until such appointee has been confirmed by the Senate. The first U.S. Attorney General to consider this provision interpreted it as follows: In postponing the payment of the salary of the appointee until the Senate has given its assent to the appointment, [Congress] concedes the right of the President to appoint, although it undoubtedly embarrasses the exercise of that right by subjecting the appointee to conditions which are somewhat onerous. 16 Op.Atty.Gen. 522, 531 (1880). The act was amended, 5 U.S.C. § 56, in 1940 to “render the existing prohibition on the payment of salaries more flexible.” H.Rept. 2646, 76th Cong., 3d sess., p. 1. Though amended, the statute was again interpreted in 1960 by another U.S. Attorney General as recognizing the President’s appointment power to be separate from the recess appointment payment provision of 5 U.S.C. § 56, which is now codified as 5 U.S.C. § 5503. He noted that: 5 U.S.C. § 56, which originally prohibited the payment of appropriated funds as salary to a person who received a recess appointment if the vacancy existed while the Senate was in session implicitly assumed that the power existed, but sought to render it ineffective by prohibiting the payment of the salary to the person so appointed. 41 Op.Atty.Gen. 463, 466 (1960) (emphasis added). Thus, the rationale articulated by the dissent, seriously limiting the Governor’s appointment power, would support a similar limitation of the power of the President of the United States. By the record in this case we know that in the Virgin Islands individuals who served as the recess commissioner often have also had a valid appointment for a position at a lower salary level. Some individuals would probably be willing to serve as a recess commissioner even when paid at a salary less than that to which a commissioner is entitled. But the dissent assumes that unless one is paid the full amount of the Commissioner’s salary, he or she cannot work at all as a recess commissioner. Though the 13th Amendment prohibits involuntary servitude, it does not prohibit voluntary public service where one is willing to work without compensation or without full compensation. III. We next consider whether the district court erred in its finding that Golden’s term as a recess appointee expired on December 12, 1983. Under section 64(a), a recess appointment expires “at the end of the next session of the Legislature.” Thus, to determine when Golden’s appointment ended, we must define a “session” of the Virgin Islands Legislature. — 637 — Section 7(a) of the Revised Organic Act of 1954 provides in relevant part that Regular sessions of the legislature shall be held annually, commencing on the second Monday in January (unless the legislature shall by law fix a different date), and shall continue for such term as the legislature may provide. 48 U.S.C. § 1573(a) (emphasis added). The Rules of the Senate for the Virgin Islands Fifteenth Legislature (the “Senate Rules”), Chapter 2, section 201(a) defines a “regular session” as one which (a) shall commence annually on the second Monday in January and shall continue on the following days, exclusive of Fridays, Saturdays, Sundays and legal holidays: 1) from the first Monday in March for four calendar weeks; 2) from the first Monday in May through June 16; and 3) from the third Monday in September through the second Thursday in October. In addition to the regular sessions, the Governor has the authority pursuant to the Revised Organic Act of 1954, section 7, to “call special sessions of the legislature at any time when in his opinion the public interest may require it.” 48 U.S.C. § 1573(a) (emphasis added). Furthermore, the Senate Rules, Chapter 2, section 201(b) also permit the President of the legislature to “convene the Legislature at his or her discretion, but not after adjournment sine die.” In this case, the district court found that Golden’s term as a recess appointee expired on December 12, 1983, at the end of a one-day “special” session called by the President pursuant to section 201(b), Chapter 2, of the Senate Rules. By the district court’s ruling, a session could either be a regular session or a special session. We believe that the district court’s definition of session is too broad when it incorporates special session, and that under section 64(a), session should encompass only regular sessions of the legislature as defined by section 201(a), Chapter 2, of the Senate Rules. Under the district court’s view, when the legislature is not in session, a person chosen as a recess appointee one day could have his or her appointment terminated the next day or soon thereafter if a special session is held immediately after the appointment. We do not believe that the drafters of section 64(a) intended to create administrative chaos in the functioning of government; rather, they intended to have a deliberate process whereby temporary appointees could administer the work of their department while the legislature could in an unhurried fashion determine whether they would give their consent to the nominee selected to fill the vacancy. Obviously, the drafters of section 64(a) did not want a process where the Governor would be obligated to make in a short period of days several recess nominations to the same office. Yet, by the trial court’s conclusion that special sessions are included in the application of section 64(a), there could be utter chaos if special sessions were included in defining session under section 64(a). Moreover, it is unlikely that the drafters of section 64(a) intended that recess appointees should bounce back and forth like ping pong balls in a tournament. The only way there can be a modicum of stability in the administration of government executive offices and departments is by reading section 64(a) as incorporating only regular sessions of the Virgin Islands Legislature. Such a result would grant some continuity in the management of the executive offices. We therefore conclude that for purposes of determining the expiration date of recess appointments under section 64(a), “session” shall include only those regular sessions of the Virgin Island Legislature. Applying that definition to the facts in this case, we find that in accordance with section 201(a) of the Senate Rules, Golden’s term as Recess Commissioner of Commerce expired at the end of the regular session scheduled to commence on the “second Monday in January” of 1984. Thus, the district court erred in finding that Golden’s — 638 — recess appointment as Commissioner of Commerce had expired on December 12, 1983, and the district court erred in concluding that as of December 23, 1983, (the date of the judgment), Golden was in office unlawfully. Although the district court was in error on December 23, 1983, when it ordered Golden removed as Commissioner of Commerce, by the passage of time Golden is now ineligible to serve as the Recess Commissioner of Commerce. We will therefore vacate the judgment of the district court and will direct the district court to enter an order in conformance with this opinion. Footnotes [1] See Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir.), cert, denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981). [2] Appellants also move this court to strike a portion of footnote 4 of appellees’ brief which asserts that: The Fifteenth Legislature is clearly divided into two factions 9 to 6. No Senator of the six has to date seen fit to vote with the other 9 on any matter where a 10th vote was needed, including such important matters as budget for 1984. The enactment of any statutory remedy concerning this matter will most definitely be vetoed by the Governor. A 10th vote to override the veto is almost certainly impossible. Therefore, there is no legislative remedy available to plaintiffs in this matter even if legislation could remedy the complained of action. Because the appellees have failed to provide factual support for these statements, we will grant appellants’ motion to strike the challenged portion of appellees’ brief. [3] During oral argument counsel for the legislators questioned whether the traditional concept of standing is applicable here given the hybrid nature of the United States District Court of the Virgin Islands. The Virgin Islands District Court has a dual role. It sits both as a traditional state court adjudicating purely local and non-federal issues and as a traditional United States District Court adjudicating purely local and non-federal issues and as a traditional United States District Court adjudicating solely issues of federal law. See Revised Organic Act of 1954, § 22, 48 U.S.C. § 1612. For purposes of this appeal, we find this a distinction without substance concerning the issue of standing. [4] In some instances, Congressmen as plaintiffs in suits against the executive branch have been successful in obtaining standing and in receiving judicial relief. See Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974); Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) (en banc) (per curiam), vacated, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979); American Federation of Government Employees v. Pierce, 697 F.2d 303 (D.C.Cir. 1982) (per curiam). In other instances, however, courts have held that Congressmen did not have standing to litigate their complaints. See Public Citizen v. Sampson, 379 F.Supp. 662 (D.D.C.1974); aff'd mem., 515 F.2d 1018 (D.C.Cir.1975); Harrington v. Bush, 553 F.2d 190 (D.C.Cir.1977); Reuss v. Balles, 584 F.2d 461 (D.C.Cir.), cert, denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978). [5] Riegle's complaint would have been solved if his colleagues had amended 12 U.S1C. § 263(a) "to require that the five Reserve Bank members of the FOMC be appointed with the advice and consent of the Senate pursuant to the Appointments clause. United States Constitution, article II, sec. 2, cl. 2." Riegle, 656 F.2d at 876.