[00:00:00] Speaker 01:
Case number 23, Dutch 1793.

[00:00:02] Speaker 01:
Timothy L. Jenkins et al, Appellants, versus Howard University and Howard University Board of Trustees.

[00:00:10] Speaker 01:
Mr. Temple for the Appellants, Ms.

[00:00:12] Speaker 01:
Sager for the Appellees.

[00:00:16] Speaker 05:
Good morning.

[00:00:20] Speaker 00:
Good morning, Honors.

[00:00:21] Speaker 00:
May it please the Court.

[00:00:22] Speaker 00:
My name is Donald Temple, and I represent 10 alumni

[00:00:27] Speaker 00:
of our beloved Howard University.

[00:00:29] Speaker 00:
And I should say at the outset, their hearts are hurt that we have to be here today to bring to a challenge the bylaws of the university and the implementation and the following of them, as well as the students and alumni that support them.

[00:00:46] Speaker 00:
We seek a reversal, and we may end here, because the appellants believe there is no federal jurisdiction for this case to be in this particular court.

[00:00:56] Speaker 00:
In the alternative, we seek a reversal and remand and an instruction that the second amended complaint filed by the appellant below should be authorized and allowed.

[00:01:09] Speaker 00:
The standards of proof are known de novo on the jurisdiction issue of abuse of discretion on the remaining issues.

[00:01:18] Speaker 00:
I would say if the court's indulgence, and I think it's important to quote with indulgence, I'd like to suspend with facts, except for one critical fact.

[00:01:27] Speaker 00:
which is paramount in this particular case.

[00:01:29] Speaker 00:
The picture has been painted that the board of trustees has acted, and this is a board action.

[00:01:35] Speaker 00:
The primary act here, however, directed court's attention to the joint appendix at 74, 31, 76, 78, 269, 270, and 345 is this.

[00:01:50] Speaker 00:
This action started not because the board made the decision,

[00:01:54] Speaker 00:
but because a committee of the board, the Governor's Committee, on April the 6th, 2020, suspended the elections of students, faculty, and alumni that were in play.

[00:02:06] Speaker 00:
The alumni elections, they began as a result of alumni protests and struggle in 1923, 24, and 25, culminating in a set of bylaws that were passed with negotiations with the alumni in 1926,

[00:02:23] Speaker 00:
as well as congressional scrutiny of that particular process.

[00:02:27] Speaker 00:
That's not the issue.

[00:02:28] Speaker 00:
That particular committee chairperson suspended those elections without board consideration.

[00:02:35] Speaker 00:
The appellees have written and suggested that there was a board approval or the board announced this.

[00:02:44] Speaker 00:
The references that I've given to the court refute that almost as a matter of law.

[00:02:49] Speaker 00:
The board of trustees did not approve the recommendation of the governance committee chairperson.

[00:02:56] Speaker 00:
Nevertheless, the university suspended the elections

[00:03:00] Speaker 00:
of all of the stakeholders between April 6th and December, November 2021, as a result of the attrition, naturally following the election of the alumni students and faculty, all but one alumni remained on the board when the board voted to remove alumni trustees.

[00:03:25] Speaker 00:
The point of that is that we've articulated very clearly in our writings the nature of the bylaws.

[00:03:33] Speaker 00:
There is not.

[00:03:35] Speaker 00:
There is no connection between the interpretation of the bylaws and the federal charter here, nor is there a violation of a federal statute or the constitution here.

[00:03:46] Speaker 00:
This is a state law issue, and under both gun

[00:03:52] Speaker 00:
and an Empire Health case, which refute the arguments that the appellees raise inciting the Grable test, there's one, not a substantial federal issue here.

[00:04:05] Speaker 00:
Nor is there.

[00:04:07] Speaker 05:
You have a view on whether.

[00:04:09] Speaker 05:
When Congress issued the charter for Howard University, was it acting as a national legislature, like for charters for Amtrak or the Red Cross, or was it acting as the local government or the district doing what local governments do, and that is charter corporations?

[00:04:28] Speaker 00:
Thank you, Judge Berlitt.

[00:04:29] Speaker 00:
I do.

[00:04:30] Speaker 00:
And I thank the court for the order with the inquiry.

[00:04:34] Speaker 00:
It's our position that our beloved Howard University

[00:04:38] Speaker 00:
is a federally charted institution that Article I, Section 8, Clause 17, which articulates the District of Columbia's, which articulates the congressional control of the District of Columbia while it's in play in 1865 was not the basis for the charters or the creation of Howard University.

[00:05:01] Speaker 00:
And I put that in the context of the reconstruction that followed the period of enslavement

[00:05:07] Speaker 00:
And the priorities that were taking place, beginning with the 1865, 13th Amendment, 1866 Civil Rights Amendment, 42 USC 1981, 1867 Howard emerging on the education front, and then 1868, the 14th Amendment, and then 1870 and 15th Amendment.

[00:05:27] Speaker 00:
So the Congress's intent at that time, though that argument does not necessarily implicate the appellant's argument,

[00:05:36] Speaker 00:
was to create a federal institution.

[00:05:38] Speaker 00:
However, we do not believe that that particular case, in fact, we believe that case benefits the appellant in the analysis coupled with.

[00:05:47] Speaker 05:
So I'm sorry, you say Congress was acting as a national legislature, creating a national university.

[00:05:53] Speaker 05:
And so therefore, I would see contrary to your position that there's no federal law.

[00:06:01] Speaker 05:
issue under the charter.

[00:06:03] Speaker 00:
Well, actually, I don't think it's that simple, with all due respect, Your Honor, because it didn't create a national university.

[00:06:08] Speaker 00:
It created a federally chartered university at that particular time.

[00:06:12] Speaker 00:
The context has.

[00:06:13] Speaker 05:
Is it doing the chartering because there was no district government to do it?

[00:06:17] Speaker 05:
Or was it doing the chartering because it was making a decision for the nation?

[00:06:23] Speaker 05:
Was it making a decision for the district to have this university?

[00:06:26] Speaker 05:
Because there's nothing in all you said about the history.

[00:06:28] Speaker 05:
I understand the timing.

[00:06:29] Speaker 05:
It certainly makes perfect sense.

[00:06:31] Speaker 05:
But the charter itself just says we're going to charter this university, just like it says for Georgetown and GW and other universities in the district because there was no one else to do the chartering.

[00:06:42] Speaker 00:
I don't think that the analysis stops there.

[00:06:44] Speaker 00:
And I don't think that it's a quote unquote national university.

[00:06:47] Speaker 00:
It is a federally chartered university.

[00:06:49] Speaker 05:
We got that.

[00:06:51] Speaker 05:
I'm asking you the question under the case we decided in our order is in making that it's federal in the sense that Congress did it.

[00:06:59] Speaker 05:
Yes.

[00:07:00] Speaker 05:
Fine by the president.

[00:07:02] Speaker 05:
It's federal in that sense.

[00:07:04] Speaker 05:
But the federal government also served as a government for the District of Columbia had that charge.

[00:07:12] Speaker 05:
during the relevant time period?

[00:07:14] Speaker 00:
Well, Your Honor, the distinction, I see my time is very tight, but I'd like to point to the Court's attention to the distinction between the 1871 congressional action reference in that particular case, which created a District of Columbia government to where it's specifically acting on Article 1, Section 8, Clause 17, versus the creation of the Charter.

[00:07:35] Speaker 00:
And the reason why I said- What power was it acting under when it created the Charter?

[00:07:38] Speaker 00:
Under the Congressional authority.

[00:07:40] Speaker 05:
Well, that's... But that doesn't... The authority you cite to create the district government is also part of Congress's authority.

[00:07:48] Speaker 05:
I'm trying to ask which type of authority?

[00:07:50] Speaker 00:
Well, it's concurrent authority.

[00:07:51] Speaker 05:
Well, it's... I'm trying to ask which authority was used.

[00:07:54] Speaker 05:
Was it its control over the district as a seat of federal government?

[00:08:00] Speaker 00:
The district didn't formally exist.

[00:08:02] Speaker 00:
My answer to your question, Your Honor... I understand that.

[00:08:04] Speaker 00:
My answer to your question is that it is a federally chartered

[00:08:08] Speaker 00:
institution but more importantly that's not my question that can't be the answer to my question because that's not my question my question is in what capacity congress only acts in federal capacity and it's acting in this federal capacity that's my answer what do you mean by federal and its capacity to enact laws that are consistent with its policies and practices and

[00:08:32] Speaker 00:
That is how it emerged, but not out of an interest of creating a university exclusively for the District of Columbia.

[00:08:41] Speaker 00:
What it did, it created a university that then became subject, as any other chartered institution located in a particular state, subject to the concurrent jurisdiction dynamics

[00:08:53] Speaker 00:
that we see exactly here, which then brings us to what the university is citing with Grable in particular, and that standard of review, which is applicable here.

[00:09:04] Speaker 00:
We believe that the empire and gun cases, Supreme Court cases on the question of federal jurisdiction, notwithstanding district property, is the

[00:09:17] Speaker 00:
jurisprudence on the case law that governs here.

[00:09:20] Speaker 00:
And by that, that means that the tests that are applicable are the tests that the lower court applied, but we think erroneously, which are number one, the question of whether there's a disputed, whether this is a federal, a substantial federal question.

[00:09:35] Speaker 00:
And to the court's question and the dichotomy that we believe is that just because there's a charter, a federal charter, doesn't necessarily, absent more, implicate a federal question.

[00:09:46] Speaker 00:
Additionally, in this case, unlike the case cited by the appellants, this case, the claim that was brought was a broad understate law.

[00:09:56] Speaker 00:
It wasn't brought because there's a violation.

[00:09:58] Speaker 00:
We never said that the university violated its charter.

[00:10:03] Speaker 00:
It said the university violated its bylaws.

[00:10:06] Speaker 00:
Those bylaws, the university tries to say they're extended by the charter.

[00:10:11] Speaker 00:
Congress set up this system by authorizing persons to set up a board of trustees.

[00:10:19] Speaker 00:
The board of trustees then passed these bylaws.

[00:10:22] Speaker 00:
The question is whether the violation of bylaws in the governance of the university implicate a substantially disputed federal question.

[00:10:30] Speaker 00:
We submit to the court that the case stops there.

[00:10:35] Speaker 00:
OK.

[00:10:36] Speaker 05:
I know you wanted to.

[00:10:37] Speaker 05:
We'll give you a couple of minutes for rebuttal.

[00:10:39] Speaker 00:
Very well.

[00:10:40] Speaker 05:
Thank you.

[00:10:51] Speaker 03:
May please the court, Joanne Sager, on behalf of Howard University.

[00:10:54] Speaker 03:
I'd like to start with the answer to the court's question.

[00:10:57] Speaker 03:
We think that Congress was acting in its capacity as a national legislature and created federal law in enacting Congress's charter, enacting Howard's charter.

[00:11:07] Speaker 03:
We think there are three reasons for that.

[00:11:08] Speaker 03:
The first, you can look to the text of the charter and the text of its amendments.

[00:11:12] Speaker 03:
The second is the statutory context in which Howard was chartered.

[00:11:15] Speaker 03:
And the third is post enactment history.

[00:11:17] Speaker 03:
I'd like to start with statutory context.

[00:11:19] Speaker 03:
Chartering Howard, as my friend on the other side noted, the Civil War ended in 1865.

[00:11:25] Speaker 03:
Shortly after that, Congress creates the Freedmen's Bureau.

[00:11:29] Speaker 03:
Congress then extends the Freedmen's Bureau for a year.

[00:11:31] Speaker 03:
And at the exact time at which Congress believes the Freedmen's Bureau will expire is when Congress enacts Howard's charter over presidential veto.

[00:11:40] Speaker 03:
And Congress names Howard University after the former commissioner of the Freedmen's Bureau.

[00:11:46] Speaker 03:
As you know, one of the major missions of the Freedmen's Bureau was educating

[00:11:50] Speaker 03:
newly freed slaves.

[00:11:51] Speaker 03:
As this former commissioner explained, it was very difficult to do that in the South.

[00:11:56] Speaker 03:
Congress was acting to solve a national problem.

[00:11:58] Speaker 03:
That's actually explained further.

[00:12:00] Speaker 03:
in the legislative history of the 1928 amendment of the charter, you have the committee report which specifically says that the justification for creating an annual congressional appropriation for Howard University is justified by two things.

[00:12:13] Speaker 03:
One is quote, 45 years of congressional action.

[00:12:16] Speaker 03:
Those 45 years of actions are the 45 years of national annual appropriations for Howard University.

[00:12:22] Speaker 05:
Let me go back to the charter and the legislative history.

[00:12:24] Speaker 05:
So Congress are doing a lot.

[00:12:27] Speaker 05:
Back then, and certainly was doing things on a national scale, as you mentioned, but when it enacted the charter for before it did that.

[00:12:36] Speaker 05:
The center said I now propose to proceed with district business.

[00:12:41] Speaker 05:
And it did an amendment to the jail bill.

[00:12:44] Speaker 05:
Wouldn't be national legislation, and then it did Howard's charter, so it was doing Howard's charter at a time that it was doing district business.

[00:12:54] Speaker 05:
And then it went on to do things for Foundry Methodist Episcopal Church.

[00:13:00] Speaker 05:
There's nothing in the text of the charter that sounds, if there's something in the text of the charter you want to point me to, but it simply says the University for the Education of Youth and Liberal Arts and Sciences.

[00:13:12] Speaker 05:
Yes, Your Honor, actually on that.

[00:13:13] Speaker 05:
Any of the larger contexts that you're talking about in the charter.

[00:13:17] Speaker 03:
If we're looking, sure, Your Honor, if we're looking at things that happened the same day, Congress also created the Department of Education that same day.

[00:13:24] Speaker 05:
you know did it say now we're turning to district business and that's kind of the um relevant matter i don't have considered it it said i propose now to proceed to with the district business um you can do a lot in a day but it does things and it shifts yes your honor and so i think the best thing that i can point you to in response to that would be the legislative history of the 1928 amendment how does that tell us how the charter

[00:13:50] Speaker 05:
That's not, it's, it's an amendment to the charter appropriations.

[00:13:54] Speaker 05:
It's not, it's not, do you think it entirely recreated the university?

[00:13:58] Speaker 03:
I do not think it entirely recreated the university, but I do think that in, if you look at the committee reports there, um, the committee tries to explain what it is it's doing there and the national significance of Howard university.

[00:14:09] Speaker 03:
It doesn't just say, you know, um, we are discussing exactly why we're formalizing this annual appropriation to make it in perpetuity.

[00:14:16] Speaker 03:
Instead, it says, we need to talk about why it is that it's important that Howard University be allowed to continue to survive and thrive and become a first-class institution.

[00:14:25] Speaker 03:
And the second reason that the committee report gives is, quote, the national importance of the Negro problem, end quote.

[00:14:32] Speaker 03:
The committee goes on to explain that it believed that Congress had an obligation to African-Americans that was, quote, even stronger than in the case of the Indian, end quote, because of the history of slavery and segregation.

[00:14:42] Speaker 03:
Congress thought it was, quote, of great importance to the country of having an institution capable of developing trained leaders for the colored race in all walks of life.

[00:14:50] Speaker 03:
On the other hand, this opportunity exists for white students in every state of the union.

[00:14:53] Speaker 03:
So Congress really was trying to address a national problem.

[00:14:56] Speaker 05:
And even though- You're stressing that there in 1920s based on making a governmental decision to appropriate money, which is different than appropriating the university as a national.

[00:15:10] Speaker 03:
I disagree, Your Honor, respectfully, and the reason I disagree is because Congress explains it needed to formalize this national appropriation in order to continue and assure the success of the university.

[00:15:21] Speaker 05:
Is Congress funding other HBCUs?

[00:15:24] Speaker 03:
At that time, no, it was not through the same formal annual appropriation stream where there's a guaranteed line item in Congress's budget saying that it's going to provide money for the university every single year.

[00:15:36] Speaker 03:
There are different revenue streams and they are annual in the same way.

[00:15:43] Speaker 03:
The only other university that has a line item in this way is Gallaudet University, which again is another university that Congress created to solve a national problem.

[00:15:51] Speaker 03:
deal with a special population whose education it didn't think was being adequately seen to on the state level.

[00:15:57] Speaker 03:
So yes, there are Pell Grants, for example, that go to different universities.

[00:16:01] Speaker 03:
There are occasional educational bills that seek to fund other universities, but the idea of a line item in every single annual

[00:16:09] Speaker 03:
annual spending bill having a line, having a line that refers to a specific university, that's just Howard and that's just Gallaudet.

[00:16:15] Speaker 05:
You said they weren't re-chartering it, so that's, I think, why aren't we, why don't we have to look at the creation of the original charter only?

[00:16:23] Speaker 05:
Because- Deciding whether the charter itself is federal law for purposes of arising under jurisdiction.

[00:16:30] Speaker 03:
Sure, Your Honor.

[00:16:31] Speaker 03:
I think that it's a relatively standard, ordinary tool of statutory interpretation to look at post-enactment history.

[00:16:37] Speaker 03:
And I think that the post-enactment history.

[00:16:39] Speaker 05:
No, not really.

[00:16:39] Speaker 05:
Absolutely.

[00:16:40] Speaker 05:
Actually, there's a lot of cases that say we don't look at post-enactment history to say what a statute meant.

[00:16:46] Speaker 05:
There's more cases that say that than say otherwise that I'm aware of.

[00:16:48] Speaker 03:
I disagree, Your Honor.

[00:16:49] Speaker 03:
I think when a statute is amended, we talk about whether, in amending the statute, Congress speaks to wanting to continue a certain purpose or move forward with a different purpose or change purpose.

[00:16:57] Speaker 03:
And I think that what happened here is Congress amends the-

[00:17:00] Speaker 05:
And you're interpreting the new statute.

[00:17:02] Speaker 05:
That's what you're doing.

[00:17:03] Speaker 05:
But that doesn't, you just said they weren't reincorporating it.

[00:17:05] Speaker 05:
They weren't rechartering it.

[00:17:07] Speaker 05:
So for purposes of what the nature of the charter was.

[00:17:09] Speaker 05:
Now interpreting the appropriations, for sure that's relevant.

[00:17:12] Speaker 05:
What they did is relevant to that because that's when they did it.

[00:17:15] Speaker 05:
But it didn't change as you said twice.

[00:17:17] Speaker 05:
They didn't re-charter it.

[00:17:20] Speaker 05:
Your honor, we have to, it couldn't have changed characters.

[00:17:24] Speaker 05:
And legislators in 19.1 cannot tell us what legislators in the 1860s were thinking when they did this charter.

[00:17:32] Speaker 03:
That's true, your honor.

[00:17:33] Speaker 03:
But you know, there are many cases that say that when Congress touches a certain statute, decides to amend it, not amend it, Congress is talking about what that statute means.

[00:17:44] Speaker 03:
It is relevant to understanding the breadth of the statute, whether Congress is changing the characters.

[00:17:50] Speaker 05:
that members of Congress talking in 1928 can tell us what the statute meant at the time it was enacted in 1867, if that history and language wasn't there in 1867.

[00:18:10] Speaker 03:
Your Honor, I have to submit the best case to you right now.

[00:18:12] Speaker 03:
The case that I'm thinking of is Allen v. Milligan.

[00:18:14] Speaker 03:
The Supreme Court just said that in talking about the Voting Rights Act, when Congress reauthorized the Voting Rights Act,

[00:18:19] Speaker 03:
Even though it didn't touch every single piece of the statute, the pieces that were untouched should be interpreted in a way consistent.

[00:18:24] Speaker 05:
The conversation is different from adding in line appropriation.

[00:18:28] Speaker 03:
Your Honor, I'll have to get back to you with my best case on that.

[00:18:31] Speaker 04:
But don't you have a bigger problem?

[00:18:34] Speaker 04:
I mean, even if we agree with you that Congress was acting in its federal, national capacity when it chartered Howard,

[00:18:45] Speaker 04:
That doesn't make this a federal case.

[00:18:47] Speaker 04:
I mean, these are state law claims.

[00:18:52] Speaker 04:
We're supposed to interpret remand, I'm sorry, the removal statute narrowly, or federalism concerns, which I don't think are any different here, just because this is the District of Columbia, not a state.

[00:19:10] Speaker 04:
You have the burden, and to the extent that there is a tie, you lose.

[00:19:16] Speaker 04:
And, you know, I don't see any federal claim here.

[00:19:21] Speaker 03:
Your honor I disagree and the case that I point you to on that would be better be Jordan it's cited on page 20 of our brief and in that case this court said, you know, in interpreting a breach of contract claim which is

[00:19:33] Speaker 03:
Similar to, I think, the type of claim that the plaintiffs are making here, that that claim was undoubtedly a federal claim under Grable because the contract that had been entered into was a contract that had been entered into because of a federal regulation that required companies to enter into indemnification agreements between their shareholders and their boards of directors.

[00:19:53] Speaker 03:
And there was a dispute about whether some sort of reimbursement was needed for legal expenses.

[00:19:57] Speaker 03:
And this court said, well, of course, the contract, understanding the terms of the contract,

[00:20:01] Speaker 03:
need to look to the regulation that required them to enter into the contract.

[00:20:04] Speaker 03:
I think that's exactly what's happening here.

[00:20:05] Speaker 04:
If you look at bylaw one to the charter to answer anything about any of the claims in the first amended claim.

[00:20:12] Speaker 03:
Sure.

[00:20:12] Speaker 03:
So the first line of the bylaws is that the powers that are being exercised here are the powers that are granted pursuant to the charter.

[00:20:20] Speaker 03:
And then, you know, there are various claims in the plaintiff's complaint.

[00:20:23] Speaker 03:
I think my best point on this would be the quorum issue.

[00:20:25] Speaker 03:
as you heard my friend on the other side stand up and say they think that there is some sort of flaw with respect to how the bylaws were amended because a certain person or a certain number of people were not seated or were not noticed at the time.

[00:20:37] Speaker 03:
The charter specifically says that the board can conduct business of the university so long as it has a form of nine members, any nine members.

[00:20:44] Speaker 03:
I think it would be very difficult to adjudicate a breach of contract claim without understanding what the asserted contract is and here understanding the terms of the asserted contract requires looking

[00:20:54] Speaker 03:
At the at the charter itself.

[00:20:57] Speaker 02:
So I even if we thought that was a federal question.

[00:21:00] Speaker 02:
Why is it substantial?

[00:21:02] Speaker 02:
It's a substantial substantial in terms of being, you know, implicating federal law.

[00:21:07] Speaker 03:
Yes, your honor.

[00:21:07] Speaker 03:
As Grable and gun explains substantial refers to the government's interest in it.

[00:21:12] Speaker 03:
I think there is a

[00:21:13] Speaker 03:
Substantial federal interest in here.

[00:21:15] Speaker 03:
You don't have to look to the number of people affected or the geographic area affected.

[00:21:18] Speaker 03:
That's gone.

[00:21:19] Speaker 03:
Instead, you look to how heavy the federal government's interest is.

[00:21:22] Speaker 03:
I would point to several different things that indicate that the federal government's interest here is strong.

[00:21:26] Speaker 03:
The first of which I would say is, you know, start Howard is actually obligated statutorily obligated to provide an annual report to Congress and the Department of Education.

[00:21:34] Speaker 03:
I'm only aware of one other university that has that requirement.

[00:21:36] Speaker 03:
That's Gallaudet.

[00:21:37] Speaker 03:
The Secretary of Education is also a member of Howard's Board of Trustees and has attended Howard's board meetings in the past.

[00:21:44] Speaker 03:
Again, I'm not aware of any other institution that the Secretary of the Department of Education is statually required to be a member of.

[00:21:52] Speaker 02:
Howard obviously has links with the federal government in terms of its funding and appropriations.

[00:21:56] Speaker 02:
But how does this court possibly interpreting the charter raise a substantial

[00:22:02] Speaker 02:
question of interest to the federal government?

[00:22:05] Speaker 02:
Sure, Your Honor.

[00:22:06] Speaker 02:
I think that the example of- I mean, just because Howard has an affiliation with the federal government doesn't make our interpretation of the charter a substantial federal question.

[00:22:15] Speaker 03:
Your Honor, I think it does.

[00:22:16] Speaker 03:
So for example, plaintiff's claims could easily have been that the board was not able to conduct business unless the Secretary of Education was there.

[00:22:22] Speaker 03:
They're speaking about a specific member of the board that they think should have been in attendance.

[00:22:27] Speaker 03:
The Secretary of Education is one of those members.

[00:22:29] Speaker 03:
And so I think it's very

[00:22:31] Speaker 03:
The federal government has a substantial interest in in this specific running of this specific board.

[00:22:37] Speaker 03:
Congress has reaffirmed its interest by amending the charter and by enacting federal government has a substantial interest.

[00:22:43] Speaker 05:
That's not the test is whether a substantial question of federal law is implicated.

[00:22:48] Speaker 05:
The federal government has a substantial interest in all kinds of very important private companies.

[00:22:53] Speaker 05:
But that does not make things about them.

[00:22:57] Speaker 05:
And so I don't think that's, where's the substantial question or substantial federal inquiry that has to be taken here?

[00:23:06] Speaker 03:
Yes, Your Honor.

[00:23:07] Speaker 03:
To continue on the example that I was just discussing, the interpretation of federal law there would be the requirements of the charter with respect to quorum, whether quorum requires specific people to be in attendance.

[00:23:17] Speaker 03:
As you know, Sections 3 and 4 and 7 all refer to specific quorum requirements of the... Not even the charter is going to answer anything in this case.

[00:23:25] Speaker 05:
At most, it's going to be a fight about bylaws.

[00:23:30] Speaker 05:
The fact that the charter authorizes bylaws isn't going to be.

[00:23:33] Speaker 05:
No one's going to question that the charter authorizes bylaws.

[00:23:37] Speaker 03:
Are the bylaws federal law?

[00:23:39] Speaker 03:
No, Your Honor, the bylaws are not federal law.

[00:23:41] Speaker 05:
The bylaws create, they can't create a rise in under jurisdiction.

[00:23:46] Speaker 03:
The bylaws, I believe, do create, in this particular case, a rising under jurisdiction because the claim that's being brought by the plaintiff cannot be adjudicated without referring to the charter.

[00:23:56] Speaker 05:
They can't win, Your Honor, unless they explain.

[00:23:59] Speaker 05:
The bylaws themselves, you're not arguing either that they create federal law for purposes of rising under jurisdiction or that the bylaws by themselves would satisfy the Grable.

[00:24:10] Speaker 05:
The fact that someone wants to fight over the bylaws would create a substantial question under Grable.

[00:24:16] Speaker 03:
No, Your Honor, not every fight about the bylaws is going to create a substantial question under Grable.

[00:24:20] Speaker 03:
But I do think that just like in Bender, the interpretation of this contract requires reference to federal law.

[00:24:25] Speaker 05:
Where does it require?

[00:24:27] Speaker 05:
What is the requirement?

[00:24:29] Speaker 05:
There's no reference to the Secretary of Education in the charter, is there?

[00:24:32] Speaker 03:
In the charter, the charter requires reporting to Congress.

[00:24:35] Speaker 03:
It's later a statute that requires that.

[00:24:38] Speaker 05:
Nothing to do with their argument.

[00:24:39] Speaker 05:
They're not saying you didn't file a report with Congress.

[00:24:42] Speaker 03:
They are saying there wasn't a proper quorum, Your Honor, and reform clauses, yeah.

[00:24:46] Speaker 05:
That's OK.

[00:24:47] Speaker 03:
And the charter answers that question.

[00:24:50] Speaker 05:
Yes, Your Honor.

[00:24:51] Speaker 03:
The charter.

[00:24:51] Speaker 03:
So if you look at the charter at section four, I believe,

[00:25:05] Speaker 03:
All meetings of said board may be called in such manner as the trustees prescribe, and nine of them so assembled shall constitute a quorum to do business, and a less number may adjourn from time to time.

[00:25:13] Speaker 03:
The charter answers the question of how many people need to be there to do business and who needs to be there to do business.

[00:25:18] Speaker 05:
As the board may so authorize, and that gets us to the bylaws.

[00:25:21] Speaker 03:
Your Honor, it doesn't say as the board shall so authorize.

[00:25:29] Speaker 05:
Where are you reading it?

[00:25:31] Speaker 03:
I'm looking at the addendum to my brief, addendum page three.

[00:25:35] Speaker 03:
They shall appoint it section four.

[00:25:36] Speaker 03:
Section three is the one that references bylaws.

[00:25:40] Speaker 05:
All meetings of said board shall be called as such manner as the trustees shall prescribe.

[00:25:44] Speaker 05:
And nine of them shall be a quorum.

[00:25:47] Speaker 05:
And so what I'm saying is manner as trustees shall prescribe.

[00:25:50] Speaker 05:
I assume they prescribe it by the bylaws.

[00:25:54] Speaker 03:
Is that right?

[00:25:54] Speaker 03:
I'm not seeing that.

[00:25:57] Speaker 03:
Oh, maybe called and said that the meetings may be called in a manner such as a board shelter structure.

[00:26:02] Speaker 03:
Yeah.

[00:26:02] Speaker 03:
And then, and nine of them shall be assembled to be a quorum to do business.

[00:26:06] Speaker 03:
And if you look at, you know, the bylaws that they're citing, page one, section one, page one of the bylaws at J 114 say, you know, the board is exercising all powers and authorities conferred by its active incorporation.

[00:26:20] Speaker 03:
I just don't, I don't think it's possible for a court interpreting the bylaws to understand whether the bylaws have been violated, which is the claim they're making without referencing the charter.

[00:26:30] Speaker 03:
I mean, to reference an example that might be more familiar to Your Honor, it's as though somebody has brought

[00:26:35] Speaker 03:
a case saying that an agency acted ultra-virus by violating one of its regulations.

[00:26:39] Speaker 03:
You would, of course, look to the organic statute of the agency to answer that question.

[00:26:42] Speaker 03:
That's the same type of relationship happening here.

[00:26:44] Speaker 03:
Somebody's made an ultra-virus claim about a regulation, essentially, and you're trying to look at the... A court would need, necessarily, to look at the organic statute to decide whether the regulation was violated, whether the agency was actually acting ultra-virus.

[00:26:56] Speaker 03:
That's exactly the claim being being here.

[00:26:58] Speaker 03:
It's ultra-virus.

[00:27:03] Speaker 03:
Your honor, if I could just offer one other answer on the court's question.

[00:27:06] Speaker 03:
The court had also asked about whether Congress was acting pursuant to its national power or its local power.

[00:27:15] Speaker 03:
I would also note that in the years after the Home Rule Act, Congress enacted significant legislation relating to Howard, including establishing the Department of Education

[00:27:24] Speaker 03:
most recently changed the Department of Education, it provided powers to the Department of Education relating to the quote laws relating to the relationship between Gallaudet College and Howard University and the American Printing House for the Blind.

[00:27:34] Speaker 03:
Also in 1984, Congress enacted another law concerning Howard's endowment.

[00:27:37] Speaker 03:
So Congress has continued

[00:27:39] Speaker 03:
this space post the Home Rule Act.

[00:27:41] Speaker 03:
I think it's also significant.

[00:27:42] Speaker 03:
Finally, I'd ask your honor if it was possible to submit briefing on this issue, the court issued an order just a day and a half or so before or argument that seems to be very significant to the court.

[00:27:52] Speaker 03:
We'd appreciate the opportunity to file something longer than a 34 J letter or 28 J letter regarding this issue.

[00:27:59] Speaker 05:
Thank you.

[00:28:00] Speaker 05:
Thank you very much, counsel.

[00:28:03] Speaker 05:
Your temple will give you minutes.

[00:28:14] Speaker 00:
Your Honor, the appellees have made the case for the appellants.

[00:28:20] Speaker 00:
They have not cited one federal law that's implicated by the charter and the reference to the charter.

[00:28:27] Speaker 00:
They have alleged that you need to refer to the charter to interpret the simple question of whether the board acted without authority when its committee chairperson suspended an election for 18 months, deprived alumni, students, and faculties whose rights are articulated, more importantly,

[00:28:47] Speaker 00:
whose membership is required in Article 1, Section 2 to be on the board and then to vote after they did that to remove them.

[00:28:55] Speaker 00:
That is a typical common law governance question for a nonprofit corporation that need not be adjudicated in this court.

[00:29:04] Speaker 00:
It does not.

[00:29:05] Speaker 00:
There's nothing that the

[00:29:06] Speaker 00:
a parent stated that suggests that there's federal jurisdiction.

[00:29:10] Speaker 00:
In addition to that, even the lower court judge in his ruling on the remand at footnote three stated that the parties seem to agree that there's a contract issue.

[00:29:19] Speaker 00:
There's nothing here.

[00:29:20] Speaker 00:
They haven't cited a provision in the federal charter that the court needs to rely upon to interpret a very basic, very basic governance question.

[00:29:30] Speaker 00:
We submit to the court that, and I underscore in the reference that we made, it is they did not get up and say to you that the appellant is wrong.

[00:29:40] Speaker 00:
That independent individual decision was made and affirmed by the board.

[00:29:44] Speaker 00:
And when you look at the citations that we have, there are formal notes of recommendations that are adopted by the board.

[00:29:51] Speaker 00:
There's nothing, absolutely not a scintilla of evidence in this record, which shows that the board made a decision to suspend these elections.

[00:30:00] Speaker 00:
We close with that and say to the court that this is not a case of other than what our Supreme Court has articulated in applying the Grable test that the appellees have cited in both the gun and the district and the Empire Health Choice cases.

[00:30:20] Speaker 00:
That, we submit, Your Honor, is the law that should apply.

[00:30:23] Speaker 00:
And with that, there is absolutely not here

[00:30:27] Speaker 00:
a disputed federal issue or a substantial federal issue that commands this court's jurisdiction.

[00:30:34] Speaker 05:
Thank you.