Thursday, May 20, 2010
Court Tosses Challenge to President’s Authority to Remove Appointee
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday threw out various motions filed by an individual appointed to, and then removed from, the International Boundary Commission by former President George W. Bush, attempting to challenge the lawfulness of his termination.
In an opinion by Judge Ronald M. Gould, the three-judge panel concluded that it lacked jurisdiction to hear Dennis Schornack’s claims and that the commissioner lacked standing to pursue them in the instant action.
Schornack was appointed to the IBC—the organization tasked with defining, marking, and maintaining the boundary between the United States and Canada—in 2002. After Shirley-Ann and Herbert Leu filed a takings claim against the IBC and Schornack, in his official capacity, Bush sent the commissioner a letter explicitly informing him that he was being removed from his post and replaced by David Bernhardt.
Motions to Quash
Contending that Bush lacked the authority to do so under the terms of the treaties that created the IBC, Schornack filed motions to quash any of Bernhardt’s filings in the Leus’ case. Bernhardt correspondingly asked the district court to strike all of Schornack’s filings that were made through private counsel.
U.S. District Judge Marsha J. Pechman of the Western District of Washington denied the motions to quash and strike, ruling that Schornack had been “effectively removed” from the IBC by the president. Schornack appealed Pechman’s order, seeking a declaration that he had not been lawfully terminated from his position and that Bernhardt was not lawfully appointed to replace him.
Gould, however, said that Schornack did not have standing to seek the relief he sought.
“To the extent that Schornack merely seeks to have President Bush’s action in removing him declared unlawful, that is ‘not an acceptable Article III remedy,’ ” the jurist explained.
Judgment Not Binding
He further noted that “[n]either the President nor any high-ranking member of the executive branch is a party to this suit,” and so no judgment would bind any executive officials.
Gould emphasized that “[i]t is not permissible under Article III for us to give an essay-like lecture to the executive branch in a decision that will not bind it because it is not a party to this litigation.”
Joined by Senior Judge Cynthia Holcomb Hall and Judge Kim McLane Wardlaw, Gould concluded that the appellate court lacked jurisdiction to review Schornack’s non-redressable claims and directed the district court to grant the motion to strike Schornack’s filings.
The case is Leu v. International Boundary Commission, 07-35949.
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