Alfred D. Schiaffo, in No. 72-2168 v. Henry Helstoski, in No. 72-2167

Congressional redistricted Ninth District DUSEN, ALDISERT Before VAN November, election, as well Judges. ADAMS, and Circuit Congression- in as to all those the Ninth redistricting. al before the Fur- ^District THE OPINION OF COURT thermore, the court found that Schiaffo challenge had no under Judge. ADAMS, Circuit gov- receipt of 732 Helstoski’s § U.S.C. upon to con- called In this case we are ernment of his allot- documents excess arising justiciability questions sider of printed pursuant ment. Those to ex- relating privilege under statutes already order sent ecutive had been congressmen under to send mail of suit, thereby pre- at time of scope frank,1 then and to examine cluding any relief, for the court re- meaning of those enactments. 39 grant damages money fused to 3210-3212. U.S.C. §§ The court did Schiaffo. not decide Henry Helstoski, Appellant, a member mailings whether such other- were Repre- of of House the United States permissible. permit wise did Hel- It representing sentatives, the Ninth Con- covering stoski send letters with brief gressional Jersey, in New chal- District printed pursuant the documents to con- lenges judgment the district court’s gressional identifying order, the Con- enjoins him from extent gressman explaining as the sender mailing his certain under materials the reasons for the distribution. regards mailings He all such as frank. challenges ruling the court’s performance the conscientious mailings permitted as it insofar legislative Appellee, duties. Alfred congres- printed pursuant documents opponent Schiaffo, D. Helstoski’s sional order to new constituents general November, 1972, election held Congressional Ninth and the District cross-appeals portion of from that mailings of documents Helstoski re- judgment permits district court’s allotment. ceived excess of his mailing the frank of certain under through ers, privilege send material 3201 reads : U.S.C. follows expense long personal so the mail at no “(3) autographic ‘frank’ means the or fac- violat- are not statute signature persons boundaries simile authorized ed. this title sections 3210-3216 through mail with- to transmit matter request- complaint trial Schiaffo’s prepayment postage After out or other indicia injunc- injunction, permanent contemplated by and 907 of sections 733 ” restraining distribution 44; tion issued . title improper found to materials of certain referred to therein Section 3201 and those 91-375). (P.L. Chap. among 39 U.S.C. together grant congressmen, oth- Group reprints Group copies included docu- contained of a reve- II IV sharing quantities public report in limited nue offi- sent ments received existing governmental departments. These cials in the then and the new Congressional District, prepared reprints ex- Ninth were Helstoski’s gun-control survey police pense. included in documents sent to chiefs Other “Washington group Re- All both areas. of these were Helstoski’s materials periodically printed port,” prepared expense. were newsletter Helstoski’s recipients Applying 3210(1), activ- to inform ities, Helstoski’s U.S.C. mailings questionnaires, brochure two and a found these under the frank by private impermissible. drug problem prepared on the documents, too, were individuals. These printed grant The district court refused to expense. Helstos- at Helstoski’s damages money to Schiaffo for all of ki either intended to send sent allegedly resulting mailings, from the Group persons the documents II to completed suit,3 prior trans- the then the redistricted existing well as gressed statutory the restriction. Congressional District. Ninth not, appeal, Schiaffo does on this chal- Applying 3210(2), the court 39 U.S.C. § lenge ruling. mailings this the As to mailings enjoined of further documents permitted statutes, under the dis- group. in this Helstoski and Com- trict court no found violation of Schiaf- mittee on House Administration rights. ruling This fo’s latter Schiaffo Representatives, House of amicus challenge. does

curiae, challenge ruling. this calling ques- one, Suits as this franking privilege tion the uses of the types Group of III contained docu- two by congressmen, have arisen with some first, ments: of one of Hel- results past frequency years.4 They few questionnaires inserted in the stoski’s present questions justiciabil- difficult Congressional second, parch- Record and ity, upon it and is incumbent us to deal copies ment of the Declaration of Inde- questions addressing with such before together pendence in- with statement statutory the correctness con- Congressional serted Record placed struction on 39 U.S.C. 3210- §§ Republican intended to be sent to 3212 the district court. people, County Democratic Committee If, case, in the context this officials, schools and libraries. Helsto- appear should doctrine either planned Group ski to send all of the III judicial origin constitutional or of re- persons in become documents to areas to quires forebearance, may our obli- we Congressional Ninth District gated appeal to dismiss this or to re- as well as areas then included. por- mand for dismissal the case or of Applying 3212, the 39 U.S.C. §§ tions thereof. por- found the distribution of the first Group permissi- tion materials in III II. enjoined ble, but the second. Schiaffo challenges apparently ruling the court’s A. fact Mootness—The that the November, as to the first distribution insofar as it election of ry 1972 is now histo mailings persons who, applies to prompts us —Helstoski reelected— November, election, the time consider subsequent whether “events Congres- judgment would be within the Ninth of the trial court ren for sional District the first time. dered on October 1972 have so af- 3. The district court denied Schiaffo’s motion 37 L.Ed.2d 1006 temporary restraining Sep- ; (1973) for a Reuss, F.Supp. on order Van Hecke v. tember 1972. Final decision was issued (1972) ; Williams, F.Supp. Bowie on October (E.D.Pa.1972) Brown, ; Rising g., E. F.Supp. (C.D.Cal.1970) ; Annunzio, Gil Straus v. Hoellen v. F.2d 522 (7th 1972), petition bert, F.Supp. (S.D.N.Y.1968). denied 412 cert. oppose personally the candida- parties intends the relations between fected congressman cy or who justiciability an incumbent two conditions that the mounting person supports such chal- appeal interest relevant —adverse securing lenge a vital interest arguably has remedy been effective —have of that incumbent’s activities cessation compromised.”5 examine must We part by public least in —financed at parties has in now each of stake that promote arguably electoral fisc—that his proceeding to deter- of this the outcome Certainly prospects. is one regard proper to this it is mine whether personally oppose, continue to who appeal as moot.6 incumbency Helsto- otherwise, colleagues Helstoski, of his like most Moreover, parties dili- ski. both regularly Congress,7 made has respective gently presented ar- their mailings those the court below similar to guments Consequently, Court.8 this enjoined. reelect- he been appeal has not conclude this occasions, mailings previous three ed on November, 1972 elec- been mooted enjoined type now continued tion. interruption apparent until the dis- nothing in There is trict court’s order. Speech B. or Debate Clause— indicating, no reason to the record assume, Speech argues Helstoski in con- interest Helstoski’s Clause, I, Art. 6 of the Cons Debate informing tinuing practice titution,9 judicial inquiry precludes through the unsolicited constituents franking potential into abuse of mailing of materials under his various privilege. do not find conten We substantially frank has diminished since persuasive. the limits of tion November, fourth reelection in 1972. congressmen by immunity the afforded district court’s order contains no The Speech the are not or Debate Clause expiration date, and Helstoski remains by judicial precedent,10 clearly in defined subject appar- It is its interdictions. Supreme v. Brewster11 the United States ent, therefore, con- that Helstoski has a important placed appears to have Court appeal. in siderable stake provi the restrictions on ambit of that might The in Brewster found strength sion. Court suspect One the Speech did not the or Clause preserving Debate in interest Schiaffo’s preclude prosecution for senator those elements judgment the district court’s long inquiry bribery was no so there him favorable to has lessened legislative or motivation.12 “In into acts somewhat in since his defeat the Novem- held, sum,” Speech or De- the Court “the ber, anybody 1972 election. But who 749, 755, son, 169, 179, Note, Supreme 15 Appeal 5. 383 86 S.Ct. in Mootness on the (1966). Johnson, Court, 1672, 681 In the Court (1970). L.Ed.2d 88 Harv.L.Rev. 1674 congress prohibited of a the use the content generally Monaghan, 6. See Constitutional Ad speech motivation in the House and the man’s judication When, : The Who Yale L. 82 speech in a ac for sucli as evidence criminal 1363, (1972). J. congressman a defend in the which tion See, raising example, Johnson, guidelines 7. for im the cases the for use ant. portant Since four suggested concerning Speech questions of the frank or the Post Office Department Supreme 126, in its Publication reached issued Debate Clause April, McMillan, 306, Congressional 1968 412 U.S. and entitled “The See Doe v. Court. Pranking (1973); Privilege.” 2018, 912 Grav L.Ed.2d S.Ct. States, 606, 92 S.Ct. el v. United 408 U.S. York, 40, 57, 8. See Sibron v. New 392 U.S. ; (1972) 2614, States 33 L.Ed.2d 583 United 1889, (1968). 88 S.Ct. 20 L.Ed.2d 917 Brewster, 92 S.Ct. v. 408 U.S. any Speech ; McCormack, (1972) “[F]or in Debate either Powell L.Ed.2d House, they Representatives] [Senators L.Ed.2d 395 U.S. questioned place.” shall not be legisla- 10. “In L.Ed.2d because the tradition S.Ct. privilege tive so well established our polity, very judicial there is illumina- little tion of this clause.” Id. at United v. John- States According- inquiry into under the prohibits materials ly, frank. bate Clause reject things generally Helstoski’s contention that or done said those refuse, perform- the federal courts should on the the House or the Senate authority Speech moti- or Debate and into duties ance of official Clause, involving suits Brewster entertain al- for those vation acts.”13 legations franking many of abuse placed “related” activities privilege. congressman’s performance duties aof Speech protection outside Question Political C. courts —Federal Significantly, Chief or Debate occasion, have, on declined on the basis Clause.14 writing Burger, for the Court Justice political question doctrine con- Brewster, “related,” among included proper- front certain conflicts otherwise unprotected Congressional but activities ly presented genesis The decision. preparation Al- of a newsletter.15 of this somewhat inscrutable doctrine example, though dealing with, we are inheres in a notion certain issues mailing frank, under the decide, are not for courts either be- newsletter, preparation, of a we believe cause the Constitution leaves to another requires of Brewster us thrust responsibility branch the sole to decide regard Helstoski’s use of frank judicial poli- or because it is wise them16 mail the out- materials in this case as cy resolving to refrain from some mat- protection Speech side the or De- derived, part, ters. latter view is Mailings bate Clause. such as items recognition practical from a that the ef- necessary if a newsletters well be judicial depends, fectiveness of decisions congressman conscientiously per- large degree, acceptance to a their legislative form his Brews- tasks. But public that, cases, some de- immunity ter makes clear that clining to decide a matter on the basis Speech or Debate Clause does not political question doctrine avoids legitimate legis- extend to a number of public accept- untoward strain on the activities, lative and we include pronouncements ability judicial gen- among mailing activities Baker is the cruci- Carr18 erally.17 512, 13. Id. See, g. McCormack, In S.Ct. Gravel Id. e. Powell v. 395 U. States, United 486, 518-548, the offered a (1969). Court similar S. S.Ct. formulation: Bickel, Dangerous 17. See A. The Least speech The heart of the or de- Clause is (1962). “prudential” Branch 27-28 This bate either House. Insofar as the view, Scharpf, “Judicial Review and the Po- Clause is mat- construed reach other Analysis,” litical Question: A Functional ters, they integral part must be an of the 517, suggests (1966), Yale L.J. that the processes by deliberative and communicative Supreme decide in Court’s decisions not participate which members in committee political question much eases results as from respect proceedings and House to the with appraisal political a sober current atti- of rejection passage consideration proposed of or legal application as of tudes from a strict legislation respect with principle. Scharpf indicates, how- Professor places other matters which the Constitution ever, considerations, other than the jurisdiction within the of either House. purely political, prompt do the Court’s reluc- 606, 625, political question Id. tance to decide cases. McMillan, 14. Id. See political also Doe v. at 567. the context or Whether (1973). other, S.Ct. pragmatic, 36 L.Ed.2d often more considerations decide, result in the Court’s reluctance 15. 408 U.S. at 92 S.Ct. 2531. judicial process policy- the itself is ad hoc making is main- ultimate concern Wechsler, Principles Toward Neutral of taining place judiciary’s co-equal Law, Constitutional Harv.L.Rev. system. hasty federal based on A decision defensibly ll “[A] can doctrine inadequate information, example, for imply upon is that the courts are called impair well which court deference with judge whether the Constitution has commit by government decisions are received agency government ted to another au of public generally. officials raised, tonomous of issue determination finding interpretation.” requires a itself 18. 369 U.S. 7 L.Ed.2d 663 gument “judicially Supreme which discoverable and ble from issued manageable attempt comprehensive present. standards” most are not Court’s pointed provide analysis Chief Justice Warren framework for of cas- out that interpretation applicability “an es in terms of the the Constitution clearly ‘ju- political question . . doctrine. Justice . . . [involves] dicially Brennan, writing manageable plurality for a stand- categories Interpreting Court, ards.’ ”21 concluded is a that six statutes regarded practice more properly common in- federal could as of the cases interpreting volving questions. political courts than tion, He offered Constitu- following perceive and we re- formulation: no reason for garding franking impli- statute as any case Prominent the surface cating susceptible judi- standards political question to involve a held management. cial Standards of statuto- textually demonstrable consti- found ry surely judicially construction the issue tutional commitment of manageable. fact, Congress In since has department; political or a coordinate granting fit seen to enact a statute judicially lack of discoverable franking privilege, we considerable have resolving manageable standards for political doubt question whether the doc- deciding it; impossibility of or the applicable trine is at all. We have policy without an initial determination regarding found application no case judicial clearly a kind for non dis- solely aof statute concerned do- with ; impossibility cretion of a passed Congress mestic affairs and undertaking independent court’s reso- political question in which the doctrine expressing lack lution without precluded Supreme has Court respect due coordinate branches review.22 any government; present for or an unusual need Nor does the case into fit political unquestioning categories they to a adherence other Baker as already made; poten- decision tiality or the been elaborated Chief Justice policy embarrassment multi- Warren:23 decision initial Congress already pronouncements by required farious various de- since decision; partments for on one made need there is no question.19 unquestioning policy de- adherence In Chief Powell Justice McCormack,20 made; already court's termination performance Court, speaking Warren, for used function its usual categories guideposts these six statutory interpretation lack involves no justiciability analyzing ques- branch; respect coordinate dealing Congressman Powell’s tions judiciary’s and the decision Representa- exclusion House although meaning Con- final, statute’s tives. Chief Justice Warren’s treatment modify gress authority the to retains categories strongly Baker indi- the statute. present cates that case does fit political question Therefore, doc- of them. into prevent trine does not consideration First, it is clear is no “tex- that there present case. tually demonstrable com- Constitutional question (emphasis added) Congress Standing mitment” D. nettlesome —A judicial concerning propriety re- power questions regard- of the ing to decide franking relates privi- actions exercise view Helstoski’s standing un- lege. Also, claim there to assert a no credible ar- Schiaffo’s can be 1972), petition 217, (7th cert. 2d 19. Id. at 82 at 710. 522 S.Ct. 3001, filed, 953, L.Ed.2d 93 S.Ct. 37 412 U.S. 486, (1969). 20. 395 89 U.S. 1944 S.Ct. Miller, (1973). 307 But Coleman 1006 cf. Id., 21. at 1978. S.Ct. L.Ed. 59 S.Ct. U.S. g, City 22. e. See United First Nat’l States v. Bank, 548-49, 18 L.Ed. 23. 395 S.Ct. U.S. Annunzio, (1967) ; 2d F. Hoellen v. Divising opinion analyti- case, an rate in this we will deal at 3210-3212. der §§ greater length guidance approach provide in de- with reason cal litigant principles developed and, termining particular in Richardson whether particular standing particular therein, present in is- the dissent seem has largely inapplicable here, judicial synop- resolution remains a brief sue for assayed, major sis an often distinctions between the courts and scholars intervening may impart yet satisfactorily accomplished two cases but not greater degree clarity. object.24 discussion plaintiff in Richardson contested important In con two areas federal governmental action on constitutional Court, cern, Supreme in recent grounds standing and his bottomed years, specifically formulated rules has solely taxpayer con- his In status. designed reaching to assist a conclu trast, although asserting if Helsto- litigant standing. sion whether a has permissible ski’s actions are held to be First, presented taxpayer’s con 3210-3212, under constitutional §§ challenge pa stitutional to federal aid rights violated, would be con- schools, rochial held Court in Flast objections fines his here in in- the first standing taxpayer v. Cohen that a has allegations stance, to that Helstoski has challenge “congressional under action statutory violated More- restrictions. taxing spending clause” over, Schiaffo claims that he suf- has taxpayer Constitution when the also fered harm different from that suffered alleges “in that such action is violation ordinary taxpayer because specific protections.”26 constitutional allegedly Helstoski’s unauthorized use of challenge Second, dealing with a to an the frank. agency action of a federal 10 of Act,27 the Administrative Procedure provisions relating judi- Since the Processing Court in Association of Data cial ap- review contained the APA are Organizations Camp28 Service re parently inapplicable when there chal- plaintiff quired allege] “[to lenged congressman’s to a use of the challenged action him has caused frank and since Schiaffo’s situation is fact, economic or otherwise” and that different plaintiffs sought protected by “the interest to be Richardson, Flast who, unlike arguably within the of in [him] zone Schiaffo, assert, solely taxpayers protected regulated by terests to be citizens, claims based on constitutional ”29 the statute. provisions, necessary acquire it is understanding of recently extensively the federal common law This Court dealt relationship subject to, its with the in Richard- from, precepts well as differences son v. United States.30 when Processing. contained in Flast and Data questions sepa- we address raised 25. 392 subject S.Ct 20 L.Ed.2d currently “[T]he law of the Supreme attempted turmoil. The Court has lay guidelines, attempt down its but 105-106, Id. at at 1955. largely Davis, been unsuccessful.” K. C. provides : Section 10 as follows Administrative Law Treatise 22.00 at 703 person suffering legal wrong A because (Supp.1970) (hereinafter Davis). cited as agency action, ag- adversely or affected or Supreme The itself stand Court has labelled grieved meaning within the aof relevant ing “complicated juris specialty a of federal statute, judicial is entitled thereof. review Chapman diction.” rel. United States ex 5 § 702. U.S.C. FPC, 153, 156, 609, 345 U.S. 97 L. 73 S.Ct. (1953). Ed. 918 For effort recent 150, 827, 28. 397 U.S. 90 L.Ed.2d 184 S.Ct. 25 place Supreme the con Court’s decisions (1970). cerning standing frame within an instructive 152-153, 29. Id. at 90 S.Ct. at 830. Scott, Standing Supreme work see Analysis, Court —A Functional 86 Harv.L. 1972) (3d (Adams, 30. F.2d 857 (1973) (hereinafter J., dissenting), Rev. granted, cited as cert. 410 U.S. Scott). L.Ed.2d 686 Despite “rest on a determination that an interest Herculean labors by protected de- Pro- statute to been Supreme in Flast and Data has Court protection.”36 de- cessing, nied that Between contend- nonetheless been Chicago shed, best, crepus- The cision in Junction Case at ed that these eases standing Processing, light general Data federal cular problem.31 However, dealing regu- courts, in cases with other both these cases latory by per- providing indeed, ap- for suit and, statutes are instructive pear it would “aggrieved” “adversely principles sons affect- or the same that are ed,” according been, Professor Processing set forth in Data control Jaffe, eroding set forth stricture here. Chicago per- The Junction Case that common law 1. The federal challenging agency son demon- an action standing. protect- an strate interest intended to be The element the law basic by Admittedly, ed the con- statute.37 standing prospective plaintiff a—that tent and status federal common harm show he has suffered distinctive standing prior law to Data Process- his fellow citizen suffered susceptible is not to lucid formula- developed law the common —was least, would, appear, tion. It at how- courts, when confronted courts.32 State ever, person, alleged that a who that he challenge to the action of a state with had, fact, against suffered harm agency of a state and in the absence right, statute, which a common law or statutory counterpart 10 of provision designed to constitutional was APA, generally plain require that standing. protect, clearly had fact, allege injured, in tiff that he was bearing Processing The Data 2. prior to Data the action.33 on the federal common law Processing important feder most of standing. dealing common law stand al ing with cases dispose standing To issue regulatory arose under schemes case, now im standing, must evaluate the relating provisions specific any, pact, Processing ap if of Data on the general provisions these terms of standing federal common law It test. Supreme pear of the cases to invite consideration suggested has been having on, important if influence as Processing promul in Data was Court part of, law the federal common gating applicable generally set of standing standing.34 re federal The standing despite its involving rules reference to § quirements in suits And, are, 10 of APA.38 even if Su were, the APA Constitution merely construing preme Court were rigorous generally applied more than the Processing, in Data Professor Jaffe example, requirements. For state to be contends that intended Chicago Case,35 § decided before Junction existing declaratory “no more than APA, made enactment 3 9Thus, Pro- law.” it would seem that Act Commerce Interstate 34. at 515. Jaffe 22.00-3, 31. Davis 22.09-22.09-9. See at §§ L.Ed. 35. 44 S.Ct. Jaffe, Administra- 32. Judicial Control of See (hereinafter (1965) cited tive Action 502. Jaffe Jaffe). Id. at 515-531. “By large, the state follow courts judicial governing common law attitudes n. 59. But Sierra 38. See Scott at 659 cf. action, so that review of administrative Morton, Club 1361, open anyone judicial widely who doors are L.Ed.2d 636. interest; legitimate who one asserts at 528. 39. Jaffe statute unless a hurt fact has ‘public policy’ requires Davis otherwise.” 22.03-4. regard may any injury

fessor would Data Jaffe Process- come from in fact even ing representing important directly as recent if it is not economic in nature.” expression Flast, plaintiffs In of the contents of the federal were trou standing. sum, governmental common law of In bled certain that forms of Processing parochial generally, impaired cases and Data aid to schools the ex particular, suggest rights. and the commenta- of their First Amendment ercise principle assuring tors seem to conclude that the federal The same non- that standing common law is contained economic as well economic can as primarily statutory pro- plaintiff’s form cases where the foundation of a 10, dealing standing, applies plaintiff’s visions such as with stand- where a ing having indeterminate, claim but on osten- based a statute rather than a sibly slight, present. significance, provision.42 Here, may constitutional are it properly conclude, despite damage reason, For this be contended that directly applicable allegedly fact 10 is not Helstoski’s unauthorized mail ings hand, pros to the case at that Schiaffo’s caused Schiaffo’s electoral standing bring pects this suit must be mea- constitutes noneconomic harm. against sured the same criteria that are Third, Flast illustrates that once Processing. set forth in Data right granted, a substantive absent legislation contrary, to the courts bearing 3. The of Flast on non-con- brought by persons entertain suits standing problems. stitutional harmed the encroachments on such standing the same test right despite the absence of a statute ex Processing ap enunciated in Data seems pressly stating persons that “aggrieved” plicable here, leading Flast, authori standing to sue. There no refer ty standing on context consti granting ence in Flast to a statute litigation, tutional is nonetheless illumi standing persons injured by the al nating also, respects. here three leged gov unconstitutional exercise of First, major illustrates concern power. ernmental Nor are we aware of standing with which the deals. The test any principle requiring presence of a Supreme was, all, seeking Court above legislative conferring enactment stand satisfy plaintiffs’ person itself prerequisite as a to a suit for the compelling al stake the outcome was infringement right granted by of a stat enough aggressive to assure and consci ute. advocacy issues, entious and that as parties, framed so scope 4. The limited of Richardson. danger judi nebulous to create the Apart three considerations inquiry beyond customary cial bounds.40 just noted, appear Flast would present Identical considerations are directly apposite specif- otherwise plaintiff’s claims, here, when a inquiry Judge Aldisert, ic here.43 how- based on a statute. And Data Proc ever, separate opinion, concludes essing course, designed is, test also principles standing relevant deal with such concern. taxpayer (citizen) suit, to a of which represents genre

Second, beyond Flast Flast establishes and as set forth peradventure dissenting personal opinion stake “[t]he States, view, question In the Richardson 465 F.2d district court’s United (3d potential 1972), granted taxpay- cert. Schiaffo’s as a er was not U.S. 35 L.Ed.2d 686 before it: taxpayer Plaintiff has not asserted status complaint. plaintiff’s in his The effect of 41. 465 F.2d at 853. possible taxpayer status as a plaintiff challenging administra- respect sought When the relief has there inju- action, tive he need not claim economic F.Supp. fore not been considered. ry standing. of Data to have Association n. 3. Processing Camp, Organizations Serv. 150, 153-154, 25 L.Ed.2d standing, bearing right, on his

Richardson,44 of has dismissal demand standing. bring place, would the first it to suit in lack Sehiaffo’s suit logic on the point out, seem dictates reliance While, the charac- as shall we pleadings plaintiff’s determine to stand- in this interest terization of Schiaffo’s ing. greater litigation that of than as no inaccurate, taxpayer even if mere seems complaint in his averred Schiaffo a tax- this as were to characterize we payer mailings frank Helstoski’s suit, not inclined we would be Congressman gave “a distinct standing Ri- rely discussion on the advantage Schiaffo] unfair [vis-a-vis Judge generously cited chardson so political campaign,” and con further his con- that discussion Since Aldisert. continuing harm [Schiaf “a stituted dissenting opinion filed after tained a fair in his to conduct effort fo] consideration, appears to us to it in banc Schiaffo, campaign.”47 Thus, as an very least, questionable be, wheth- at opponent of Helstoski electoral majority of views of a er it reflects party political opposition member of although princi- Thus, this Court. district, claimed within Helstoski’s ples dis- in the Richardson enunciated direct a result of [Hel “some as may per- correct and sent well be alleged franking abuse stoski’s haps adopted Supreme by the Court privilege in some not does suffer] disposes on certiora- case when people way in common indefinite with us, appropriate for ri, it does seem not course, generally.” court, of A time, certainly to invoke them at disregard patently compelled authority any manner allegation harm. frivolous of distinctive expressed in pass fore than the views friv harm not But claim of Schiaffo’s that dissent. face, did olous on its trial not so hold.49 event, have al question In as we mone ready indicated, us, tary squarely we believe Schiaf relief is before taxpayer status, Judge fo’s which Schiaffo Aldisert overlook that cannot rely on, weight not the sole gives himself does not the district considerable standing.45 primary money or even basis dam eventual denial court’s reviewing Supreme contending when ages Court has not that Schiaffo standing litigant particular has fo of a The conclu harm. suffered distinctive allegations opinion cused on the set forth is that reached in that sion complaint rejection determine claimant’s ultimate district court’s money whether he meets relevant claim transformed Schiaffo’s attorney plaintiff’s private test.46 Since fact that a Schiaffo into subsequently proves representing only general,50 claim lack merit the interests (3d 1972) (Adams, 844, Processing 44. 465 (1972); F.2d Cir. of Data Association J., granted dissenting), 150, 152, Camp, cert. 410 U.S. v. 88 S.Ct. Serv. 93 S.Ct. 35 L.Ed.2d 686 1942. Complaint points at 47. Plaintiff 15-16. ¶¶ 45. The out dissent Richardson difficulty taxpayer taxpayer qua at has Frothingham Mellon, 262 U.S. v. taining involving First in eases not 597, 601, L.Ed. protections. like cases Amendment But suffering harm testified to Flast and deal constitution Richardson complaint. authority along challenges governmental in his the lines indicated al Transcript taxpayer’s taxpayers- A stand 176-77. statutory, challenge dis abuses Ickes, 134 Industries Associated See authority tinguished constitutional, 1943). (2d F.2d 694 22. Davis received full treatment. 09-2. Morton, See, g., e. Club Sierra L.Ed.2d disregard Third, circumscribing even if we to the un- of all citizens in damage claims, remaining Congress- Schiaffo’s his frank of the authorized use injunctive requests for relief are not such do not consider man We Helstoski. primarily for the compelling intended be benefit reasons. for three contention of all rowly nar- citizens. claims focus First, court’s refusal the district Congress- specific on activities of damages in money not rooted award man on Helstoski and their effects holding not suffered had that Schiaffo Schiaffo as candidate and member Rather, the district harm. distinctive party. Any opposition political con- that specifically- concluded court give struction that we 3210-3212 §§ money damages to Schiaffo award would, only in will have stare decisis this effect congress penalize effect, one in circuit, precedental and its value else- good faith and in man who acted “has involving plain- where in different cases rep example many others” and on the and, doubt, tiffs and defendants dif- and be to Schiaffo resent a windfall depend mailings, per- will ferent damages ac that have “the real cause reasoning supporting suasiveness are those of the frank crued from abuse example, plain- For should another it. language taxpayer.” While this challenge authority tiff a con- ap might ambiguous, it considered be gressman other than Helstoski to make court, pears that the district instead mailings frank, under certain our standing ques addressing itself to seem, here, decision it could have would expressing that tion, was its conclusion judicata no res effect in that case. did not adduced trial the facts as authority Should Helstoski’s to make monetary relief warrant award of mailings than those at here issue Although it not clear this case.52 is challenged, similarly our decision that whether the district believed judicata would have effect. no res precluded relief such §§ launching Schiaffo, short, not particular or whether it this situation broadside attack on the use of the frank repre the denial of viewed relief such by congressmen generally. senting an exer authorized and sound Thus, branding in- equity Schiaffo’s jurisdiction, not cise of we need merely taxpayer terest as that of a resolve this dilemma since Schiaffo allegations not with the portion judg consistent con- appealed not complaint, tained in it his is to the Nonetheless, the denial Schiaf ment. complaint dispos- that we must look in money damages fo’s claim does not ing standing standing issue. request re control—his lief, especially appear when does mon that the district court believed that etary damage alleged injury 5. Schiaffo has in fact. always be unavaila principles Inasmuch as the same enun- involving ble in cases 3210-3212. §§ Processing here, ciated in Data control already Second, pointed have we we must measure Sehiaffo’s claim to standing out, or does not exists exist at against the criteria embodied complaint Thus, the time a is filed. therein. The elements of the Data Proc- ultimate Sehiaffo’s failure to recover essing (1) plaintiff test are that

money damages weigh heavily should not injury (2) suffered injury sought in fact and that the standing.53 inquiry protected as to to be Helstoski, F.Supp. 1076, damages, regard implying Schiaffo v. we do not it as (D.N.J.1972). political opponent that the harm result- congressman’s from a use of the frank question import 52. There is some as to the that redounds the latter’s bene- electoral of the district court’s assertion that the real fit is insubstantial. taxpayers. However, harm is to the since the statement in a contained discussion of 53. Jaffe at 507-508. disposition the court’s Schiaffo’s claim holding does arguably in- Schiaffo zone of court’s plaintiff challenge, 44 U. have protected the statute.54 to be terests receipt public 732,59 Helstoski’s S.C. § that even it would seem Since his allotment. documents excess from an taxpayer in fact suffers argues documents these Schiaffo frank, it follows unauthorized use of Congressman Ryan’s gone should nature of under our view “successor office.”60 inju he has suffered interest Schiaffo’s placed recognize meeting thereby ry fact, the first disadvantage Hel vis-a-vis an electoral Processing test. Data re latter’s windfall because of the stoski the zone 6. is within Schiaffo ceipt of docu in excess of his allotment by protected interest to be government expense, printed at ments 3210-3212. §§ language nor neither of the statute requirement sug purpose of the stand any The second evidence of its other Processing gests arguably test of Data interest is that Schiaffo’s —“whether by sought protected sought pro the interest to be to be within interests arguably complainant within the tected 732. § protected zone of interests to be Statutory Cause Action —The E. 55—demands a statute” private implying reme landmark case a type of in more limited version of the regu dy from the violation of a federal quiry utilized to a determine whether statute, latory I. Case Co. v. Borak.61 J. party a under the cause of action alleged Case, There a stockholder of possible technically It for a statute. merger that a had been consummated as litigant requirement, meet to second misleading proxy a result of a false and yet However, no cause of action.56 abridging 14(a) of the Se statement § gives litigant if the statute a a cause Exchange 1934,62 and curities Act of standing.57 action, has, fortiori, he In merger sought or, in rescission light of in discussion to follow damages. alternative, subsection E and the conclusion reached provide expressly pri failed to for a Act there that Schiaffo has a cause action right of action based on a violation vate 3210-3212, appear under it would un §§ 14(a), Supreme implied a Court of § necessary to outline in detail reasons right (1) 27 of the of action because § for our conclusion that the interest Act,63 stipulated that the district which sought protected by to be jurisdiction “exclusive courts would have “arguably within the zone of interests equity and of all in ac suits protected” by 3210-3212.58 §§ brought any lia enforce tions law at Act],” bility duty created or [the 7. Schiaffo’s private parties have it “clear made 44 U.S.C. 732. § right bring for vio suit ... Despite regarding what we have said 64 (2) 14(a) Act,” and lation § agree 3210-3212, we with the district §§ bureaus, Departments and pp. supra. 54. See during Printing Office, the Government 55. Id. at 90 at 830. S.Ct. their until terms their successive right ends. frank documents 156-158, 56. See id. at 1942. 90 S.Ct. Apparently an aide § 731. 60. U.S.C. generally Kentucky 57. See Utilities Hardin transferring upon Ryan, Congressman Co., 1, 5-7, 19 L.Ed. U.S. 88 S.Ct. staff, brought him Con- Helstoski’s (1968) ; Illi 2d 787 Russell v. Continental Ryan’s Yearbook gressman allotment Co., nois Nat’l Bank Trust 479 F.2d & Agriculture, 1963. (7th 1973); denied, cert. U.S. 38 L.Ed.2d S.Ct. 12 L.Ed.2d 84 S.Ct. at at 830. 78n(a). 732 reads as follows : 62. 15 U.S.C. Section public Members distribute Reelected 78aa. 63. 15 U.S.C. credit, the credit documents to their or 430-431, respective 64. 377 U.S. Interior their districts fully Congres private remedy exists, because to effectuate tended that a protect purpose investors, reaching sional decision we our must exam- “[p]rivate proxy (1) statutory (2) enforcement of the ine scheme and provides necessary supplement private remedy rules need for a to effec- Congressional purpose. Commission tuate the action.” As to consideration, necessary the latter it is Previously, v. Louisville Steele ascertain, Supreme did Court Co.,66 Supreme per- Railroad Court Steele, whether the im- restrictions private mitted a suit to enforce un- posed in 3210-3212 would be enforced §§ duty Railway ion’s under the Labor Act private in the absence of suits. represent employees all in a craft discrimination, helpful point without the absence of It is not at this to set specific statutory grant judicial interpretation reme- out the canons of dy. Court, statutory language reasoned, legislative in of Steele part, history.69 past present follows: None of the relating specifical- statutes to the frank In the absence of available ad- ly grants any gov- private individuals or right remedy, ministrative here remedy ernmental entities a for remedy asserted, to a for breach of by congressman’s caused abuse of the statutory bargaining duty of the privilege.70 haveWe found no evidence 'representative represent and act for legislative history in the of the various judi- craft, members of suggesting Congress enactments that cognizance. right cial That would be specifically considered the enforcement sacrificed or it obliterated if were problem.71 provi- There is even not remedy without the which courts can equivalent sion 27 of the Securities give duty for breach of such or obli- Exchange indicating Act which courts gation duty and which it their jurisdiction have to entertain suits in- give they in cases in which have volving short, the statute.72 In the first jurisdiction.67 suggested by consideration Borak—the Although courts have determined in statutory scheme—offers clues as right other whether not cases or of ac- private whether there is a ac- cause of may implied reg- tion be from a federal tion here. ulatory statute,68 none enunciates more explicit infer, however, standards than set We cannot those forth from reaching Borak and Steele absence such reference to enforcement Congress suggests Hence Borak believed that a conclusion. mere dec Congress we are produce laration of decide whether in- restrictions would 432, present relating 70. 65. Id. The bulk 84 of the S.Ct. at 1560. statutes to the frank are contained 39 §§ U.S.C. 192, 226, 66. 323 U.S. 65 89 L.Ed. S.Ct. 173 3201-3218. Although 207, informative, Id. at 65 do S.Ct. at 234. not consider compelling legislative evidence of intent a See, g., S., T.I.M.E., e. v. 359 Inc. U. U.S. Representative Udall, memorandum from 464, (1959) 904, ; 3 L.Ed.2d 952 Chairman of the Postal Service Subcommit- Chesapeake Ry., Moore v. & O. 291 U.S. tee of the House Post and Civil Serv- Office (1934) ; L.Ed. S.Ct. Committee, colleagues, stating ice to his Ry. Rigsby, Texas & P. “[c]onceivably, opponent an . . . Ivy (1916) ; S.Ct. Broad 60 L.Ed. 874 injunctive could seek relief casting Co., 391 Co. v. American Tel. & Tel. interpretation the U.S. courts and ask (2nd 1968) ; Fitzgerald Pan F.2d 486 Cir. pertinent regulation.” law Inc., (2nd Airways, Am. World 229 F.2d 1956) ; York, H. Cir. Jacobson v. New N. & general U.S.C. contain a does (1st 1953), R., R.H. 206 F.2d aff’d jurisdiction grant original to the district per curiam, 474, 98 arising “any courts civil action L.Ed. 1067 postal Congress relating serv- Act of III, 69. See section ice.” infra. The fact that conforming of of the frank.73 Serv- on the behavior regulatory passed its statute, if ice has not activi- subject even those may complete surprise. among others, ties Its subject are, those so the unau- congressmen In revenues affected are themselves. individual Congress frank; ap- use of the words, by placing thorized restrictions propriates frank, Congress to cover the actual cost funds upon of the the use mailings.74 Hence for the necessarily of all franked intended must yeárs the means of en- last several forcing enforced. those restrictions the restrictions §§ Depart- Office the Post Prior through matter, practical been, as a toas ment make determinations private the device of the suit. And this particular propriety uses long likely to situation continue so postage attempt frank and to collect way revenues in no de- Service’s congressmen who, opinion of pleted unauthorized use frank. Department, the General Counsel here it is circumstances “[U]nder privilege. had abused duty pro- alert of the courts to be relating specifically none sections necessary vide such remedies as are authority on the to the frank confer congressional make effective frank, regulate the Postal Service Judge purpose.”75 Although, as Aldi- might authority inferred well be points out, sert the Postal Service 2605, permitting the from 39 U.S.C. § power well have the to enforce the stat- Attorney request Postal Service to utes, plain fact is that since to re- institute court action General to attempted has not to do so. This is not moneys “granted cover credit Borak, unlike the situation where the of a result [it] private remedy supplemented existing an rep- . . mistake . fraudulent [or] power possessed by enforcement an ad- Similarly 39 resentations.” U.S.C. § agency. Thus, ministrative until Con- 404(7) 409, giving 39 U.S.C. § gress provides for method another of en- investigate power postal Service the to clearly expresses forcement or its inten- relating and civil offenses matters by tion that there no enforcement giving courts Service and original jurisdiction the district parties, private one suits like the before involving over suits permitted must us if the intent of the Service, might also be construed statutes, expressed by Congress, is give authority regulate the Service be effectuated.76 congressman’s use frank. Nevertheless, Accordingly, may bring neither since 1968 this against any nor suit the Service other executive de Helstoski under 3210- §§ partment regulate sought the use Library Congress, Congressional provisions of Re the substantive of the statute.” Service, Franking Privilege search Bivens The Fed. Narcotics Six Unknown Congress (Updated Agents, 388, 402, Members 403 U.S. 91 S.Ct. 1972). 2008, 29 illustrating (1971) (Harlan, Two cases that there L.Ed.2d 619 con curring) has been some Annun . abuse are Hoellen v. zio, 1972) Rising (7th ; 468 F.2d Cir. (3d Kunzig, In Merriam v. 476 F.2d 1233 Brown, (C.D.Cal.1970). F.Supp. petition rehearing denied, 1973), ,T. Adams, dissenting, dealt, alia, inter which Id. at 2 and 170. questions standing both with Borak, 75. J. I. Case Co. v. existence under a stat- of a cause of action specifically ute which a did not confer such “Thus, damages action, in suits vio- based on cause of this stated: “Even Court express assuming lacking [plaintiff] lation of federal statutes that did not fall within damage remedy, protected by authorization zone of interest U.S.C. where, Court has authorized such relief we hold would be inclined to that view, damages necessary litigant its effec- are as a be nevertheless should ” congressional policy underpinning recognized. p. tuate . . . fn. 7. guide primary III. of the statute as the interpretation requires apprecia- its an Having appeal that this A. concluded general purpose legis- tion of the moot, judicial inquiry into a so lation literalism does not frus- congressman’s alleged abuses of purpose.78 Moreover, trate that when precluded by franking privilege fairly the words of a statute can be read po- Speech or the Debate Clause require application inconsistent to a doctrine, question litical specific situation, it is the court’s role private Schiaffo has general purpose divine the of the statute 3210-3212, of action cause §§ legislative history as contained appropriately can now the con- address reports congression- committee and in concerning parties tentions debates, al and from the events scope of 3210-3212. §§ time,79 apply and then to the statute general a manner consistent with that Statutory is, at construction purpose. Rarely should a statement imperfect best, science. an legislator an individual be taken as fi- long interpret federal been courts have nal. through legislative pronouncements they case-by-case application, have, on “ legis- [0]veremphasis on occasion, display seemed to an guides unstruc lative lead to a distorted tured use of the multivarious materials statutory purpose view literalism, no less than conceivably proper in bear on the thought for much less terpretation of the words statutes. spent implications on the future casuistry suspicion generat thus reports explanations committee and choosing pre ed dispell is sometimes difficult to floor than in the words cisely usually because a statute of the statute.”80 amalgam rep incompatible interests court, eschewing policy Thus a own its legislators resented various and re predilections concerning the matters sponse factual conditions that statute, dealt with must consider perspectives by viewed from different piece legislative each and historical judges individual as well as individual conjunction material with all other legislators. statutory The evidence of pieces, judgment reach a considered generated meaning thus it does not lend general as its purpose, to and resolve easily orderly analysis. self to There proper conflicts application as to the of developed, general however, some judg- the statute on the basis of such statutory canons of de construction ment. signed arrange to the consideration of the disconnected materials and mini to principles With in these mind we note impact particular perspec mize the of provides, part, that section 3211 tives, they legisla whether those of Congress . “. . of Members . . . judges. tors or may send and receive mail as franked all public printed by documents order of dispute Unless a as to Congress.” meaning of the words of a ex statute ists, argues a court recipients has little reason to search mailings provision of elsewhere.77 But the use the words under this lim- Reading statutory talk “When we construction Statutes. 47 Colum.L.Rev. we have in mind is a cases in which there readings, fair between contest neither two Guiseppi Walling, 78. See 144 F.2d respectable which comes without title deeds. (2d 1944) (L. concurring). Hand, problem statutory A se- construction can Cox, Judge Inter riously Learned and the Hand is a bother courts where there pretation Statutes, meaning.” probabilities 60 Harv.L.Rev. contest between Frankfurter. Some on Reflections Id. mailings do nation that constituents § ited to Helstoski’s permissible. nonconstituents are those included extend to Congressional District Ninth court, relying on an B. The district November, elec- in the first time dialogue floor House on disagreed. It The court tion. district Congressman spon Hayes, the between nothing lan- plain that there ultimately of an which sor amendment suggesting limi- guage of the statute members,84 3210(2), became § tation, proposed by Further- Schiaffo. “prohibits all unsolicit held that study rel- more, our from we conclude mailings ed ... to non-Government general purpose that the evant materials franka officials not otherwise that are granting other statutes of this 3211, 3212, ble under or 3213.” Sections permit simply con- frank seems exiguous construction, This based on gressmen freely to com- the mails to use best, foundation evidence at was the communication municate when such ruling by the district leg- performance of their related mailings docu Helstoski’s responsibilities. Although fre- islative Group contained in II the dis ments privilege franking quently when the trict court’s classification scheme mailings discussed, is made to reference impermissible. 3210(2) Section reads mailings constituents,81 nonconstit- follows: necessary are nonetheless uents Members, “. . . and Members-elect congressman’s legislative business of a Congress may send as example, For nonconstituents too.82 franked mail— congressman de- may has who write exceeding (1) matters, not expertise particular veloped area in a weight, upon pounds official information, public requesting concern departmental business, to a Gov- congressman probably be official; and; ernment re- regarded if he failed remiss (2) correspondence, not exceed- congressman, Or, conversely, spond. weight, upon official ounces specific seeking regarding a information any person.” business to matter, may to a nonconstituent write Conced- distinguished judge, information.

who relevant district congressman edly, glean often than believe, more failing erred public to interest- general documents provisions would send aim of these But since the distribu- ed pieces legislative constituents. the history relating disconnected cit- franking tion these documents interested privi legislative legitimate lege izens well be generally, from other historical gen- activity, sources, specifically. no conflict with we see and from § allowing purpose a con- Instead, eral of 3211 undue comments reliance gressman public to single legislator interpre to send documents of a led to an We, there- gener well.83 appears nonconstituents as that tation to subvert general aim, reiterate, fore, determi- al court’s aim. That affirm district we Congressional Library Congress that our decision does not turn on the char- 81. See of persons Privilege Service, Franking of acterization those “constitu- as Research 1972). (Updated Congress ents” or “nonconstituents.” Members of 171 Cong.Rec. (1893). 84. 25 82. Id. provides, adopt approach F.Supp. 350 at 1094. 3213 § we different po here, recognize that: we that is a defensible regard emanating persons placed agricultural reports in the sition to “Seeds and those Congressional Department may Agriculture Ninth virtue from the District redistricting dis mailed— of that be as constituents plan redistricting is as trict soon as the (2) Annunzio, Mem- adopted. franked mail 468 as But see Hoellen v. however, Congress.” note, bers F.2d 526 We permit congressmen suggest is to to use the Schiaffo any does not that mailings when such commu- mails to communicate these pure involved Helstoski’s performance ly personal affairs, nication is related and we have the ben legislative responsibilities.86 their With efit of the finding district court’s that general mind, purpose in we con- distribution of these materials “can 3210(2) prevents a con- not be clude that type as § characterized of elec tioneering mailing gressman under his frank from aids which are found in Ris regarded pure- Brown, F.Supp. (C.D.Cal.1970).90 as that materials designed ly personal primarily ad- assert, does not Schiaffo nor prospects.87 Fur- vance electoral do conclude, finding we that this thermore, light person” clearly the “to erroneous. language, congressman we hold that Accordingly, holding we reverse the 3210(2) free under mail material § the district court that mail- Helstoski’s under his frank A to noneonstituents. ings Group imper- materials in II are interpretation language literal of this 3210(2) missible and, therefore, under § general pur- does not do violence must injunctive vacate the relief issued

pose is, fact, but con- the statute on holding. the basis of this Similarly, sistent with it.88 there agree We with the district court that nothing general language pur- 3210(2) applies only mailings § pose prohibit con- statute government federal officials. As to the gressman sending an unsolicited mailings Group IV, however, we note long letter to a citizen so restric- that no determination has been made 3210(2) tions of are observed. § they weight require whether meet the 3210(2). ment of they weigh § Should recognize Although we that the ounces, less mailing than 4 of these prohibiting standard, contours of this permissible then would be under our mailings purely personal pri and those (2). por construction of § This marily congress designed to advance a judgment tion of the deserves further prospects, man’s will remain electoral consideration the district court. substantially unless until undefined important point It is out our case-by- courts, applied by 3210 is § interpretation of does not render contexts,89 case, § to varied factual superfluous. They are diverso concluding difficulty have mailings that the little mailings intuito. must not Section 3210 permissible. Group II are 89. There are several factors a court 425, supra. 86. See p. might determining consider when whether possible regard purpose It violated, 3210(2) limits of been “pri sending campaign material including contents, timing, and the vate,” Annunzio, 468 F.2d Hoellen v. recipients mailings. See Hoellen cert, (7th petition filed, 1972), Annunzio, (7th 1972), 468 F.2d Oir. L.Ed.2d 1006 U.S. petition filed, 412 93 S. for cert. single (1973), thereby refer ap the court Ct. 3001 In Hoellen category limitations, e., “private,” i. parently concluded that the fact find, however, use of the We frank. mailings persons congress in a were to e., “personal” categories, use i. of two present district, but were in the man’s who “campaign,” analytically appropriate. more candidate, district where he was enjoined. enough they require mailings to nonconstituents Here the however, convinced, in the are that be included We not limited to were to those who present Congressional Helsto the fact that District situation here within the Ninth possibly November, making mailings future elec- ski 1972 first time in the injunctive large by re presented scale with constituents itself tion. We are warrants not mailings interests lief. whose nonconstituents closely a con- are to those of related F.Supp. 350 Therefore, gressman’s constituency. we own parch- mailing frank of the 91. The under the upon there whether are not decide called Independ- copy po- of ment the Declaration of of the class further limitation 3210(2). may qualify § ence under recipients mail. tential of franked

431 therein, V. weight limitations exceed mailing permits un- 3211 whereas § portion the district that of reverse We public re- documents frank of der the enjoining, judgment on the basis court’s weight. gardless of their 3210(2), Helsto- of its construction § challenges part of that Sehiaffo frank, C. mailings, his of mate- under ski’s judgment that allows II, the district court’s Group re- in and with rials contained gard re- under his frank to send Helstoski Group documents IV question- prints of the results copy parchment of the Declaration into the Con- inserted were naires which Group Independence, III one of the pro- gressional Section 3212 pro- Record. documents, remand for further we opinion. as follows: vides ceedings consistent with judgment respects, Congress In all other send Members court will be affirmed. Congressional the district mail franked thereof, speech- any part or Record, or Judge (concur- ALDISERT, Circuit reports contained. therein es or ring dissenting). gen- language nothing findWe require plaintiff purpose perceive of the statute eral Because do not I by remedy by possess that reached him different result than accorded majority district court.92 and the district court both the the claim. I do not reach the merits of portion Accordingly I in that concur IV. by majority which the result reached judgment presented for con of the district reverses the Sehiaffo if, as from so much of the sideration his contention that court and dissent mailings held, substantially which result affirms. permissible by §§ Helstoski difficulty in I reconcil have extreme abridge provisions 3210-3212, then these majority’s treatment guaranteed rights process Schiaffo’s due extremely exhaustive treatment with the Fifth Amendment standing principles forth set Constitution.93 States, F.2d 465 Richardson v. United (Dissenting 844, Opinion 857-874 conclusion that district court’s J., Hunt Adams, Aldisert and which permissible, mailings it found 1972), (3d er, joined) JJ., cert. provi- promoted by federal interest these 35 granted, 410 outweighs is, sions the harm to Sehiaffo (1973). L.Ed.2d 686 my Consistent judgment, our correct. We Richardson, position I disa own object only add that the §§ gree majority’s determination with the “unreasonable, arbitrary, capri- is not princi on the basis the means does cious” and that selected Judge Adams. ples therein forth set relation” have a “real and substantial Furthermore, object.94 that follows I. 3210(2) principles these § Judge dissent was Richardson Adams’ constitutionally under the infirm anthology principles and it can be given by this construction section generosity without undue stated Court.' 3210). present v. however, But see Gil- suggest, Strauss 92. We do not mean to F.Supp. (S.D.N.Y.1968). bert, con § on a contains no restrictions gressman’s materi use the frank to send Congressional Sharpe, Bolling als Record. See from the See (C.D.Cal. Rising F.Supp. Brown, L.Ed. 884 S.Ct. 1970) (the limita found York, 291 U.S. campaign v. New mailing Nebbia See materials tion on L.Ed. held to similar to the one we have standing taxpayer pages 320-425 as a majority’s [Schiaffo’s] discussion Third, the overview of concerned. Administrative the is a continuation controlling Procedure Act cases are not standing. in Ri- divided the court What challenged court, and because [in] chardson, divides this as what [Congressional] action there usually . . . confronts indeed what procedural raised, been no administrative issue is in which a irregularities pleaded. Finally, not a conflict over definition plaintiff applica- alleged has not the Con- question principles, but a gressional principles . . . action at issue the circum- tion of those rights violated First oth- Amendment case. stances rights previously assigned position er begin accept Accordingly, I cannot paramount importance. majority’s of those characterization “Accordingly, “questionable we are left with the principles as questions importance of the relative reflecting] the views of a ma- [and right asserted . jority The Richardson [federal] of this Court.” challenged and the applicabili- majority nature suffered plaintiff.” authenticity, prin- ty, Richardson v. United and not the States, (Adams, J., 465 F.2d by Judge at 871 Dis- ciples Adams. set forth senting) (footnotes added). then, panel, divides this is that What plaintiff court, The district court found that the Richardson which divided damages money was not entitled to be- Cardozo as a case what described damages certain, cause “the real that have ac- law is “where rule crued from application abuse of the frank those are alone doubtful.”1 taxpayer.”4 (Emphasis sup- to the grave my part, For I have discomfort plied). finding. This is a critical It applica equating standard conclusively demonstrates that a mat- claiming competitors ble to economic law, plaintiff gen- merely ter of “has regu standing to review administrative eral interest common to all members Processing Organi lations, Data Service public,” parte Lévitt, Ex 302 U.S. zations, Camp, Inc. 397 U.S. v. 633, 634, 58 S.Ct. 82 L.Ed. 493 (1970), 827, 25 L.Ed.2d 184 with a S.Ct. (1937). 1, 13, Tatum, Laird 408 U.S. who at a tax claimant best seems to be (1972) 92 S.Ct. 33 L.Ed.2d 154 asserting rights payer associated with vitality continued the of Lévitt. candidacy Congress. for majority recognizes candidly begin proposition “We plaintiff, critical conclusion of law reached not a [Schiaffo] destroys completely the district court defendant, and therefore cases confer- requirement ring standing threshold upon of Data Process- defendants are some- assign attempts inapplicable. expendi- three reasons what Because why language expenditures District Court’s clear post- tures lack [or possibly says. age] cannot attacked, mean what Flast2 says language First, majority Frothingham appear “this would to create a might ambiguous. barrier least insofar considered Cardozo, Process, gressmen daily Nature of the Judicial could wreak havoc with the workings Legislative Branch. Fur- thermore, damages the real that have ac- Cohen, 2. Flast v. crued from abuse of the frank are those 20 L.Ed.2d 947 taxpayer. to the assessment Frothingham Mellon, damages postage face value of 67 L.Ed. 1078 mail which defendant should have used to impermissibly distributed material 4. The district court found : certainly vio- serve to deter further But I am not unmindful of the fact statute, damages would lations of the permit damages against the defendant plaintiff. prove an unfair open windfall floodgates damage thus against large Appellant’s Appendix, actions of Con- 46a. numbers ” disagree. damages, proof of refusal The district lack of and a I damages only a court to award a matter found that “the real dam- of as court alleged damage ages of of law because that have accrued from abuse by taxpayer,” taxpayers, all are those to the but sustained the frank damages right. plaintiff in his own award “such that an also prove an would unfair windfall majority’s reason, If I follow the third (Emphasis supplied). plaintiff.” I difficulty in and I confess extreme capable this to be of no reasonable find understanding it,5 suggest it seems by the interpretation than a declaration (1) injunction in this: will futuro any damage by (1) caused plaintiff “as a candidate assist franking- Congressional improper use of opposition political par- member by taxpayers all who was sustained standing ty.” (2) Plaintiff has because paid for the this taxes subsidization of only decis- court’s decision stare this (2) any plaintiff privilege, and award to judicial Patent is effect this circuit. a windfall in this con- would be because incongruity proposition inheres in a simply taxpayer. text he is another by anchored on a con- which one side franking tention that the of the abuse majority “Second, The continues: damage privilege causes financial to all standing ex- exists or does not taxpayers, and then notion drifts to a complaint the time a is filed. ist at plaintiff entitled to future Thus, re- failure to Schiaffo’s ultimate injunctive relief because he was a candi- damages weigh money cover heavily should not past. de- date in the The limited stare inquiry in the to his stand- scarcely cisis comment merits mention. omitted). ing.” (Footnote ac- I cannot attempt deficiency But the fatal of the standing may cept notion that Processing’s require- meet Data first upon plaintiff simply a conferred be- majority’s bare in ment is laid sum- he makes an in his com- cause averment mation : money plaint that he is dam- entitled to it would even a tax- Since seem that ages. every Such notion cuts across payer injury suffers in fact from an —absolutely every reported case from — frank, use fol- unauthorized it Supreme appeals, Court, court of the na- lows that under our view of judge-made and district court law he has suf- ture of Schiaffo’s interest standing. standing Entitlement to meeting thereby fact, fered question of law to be decided Processing the first of the Data standing self-gener- court; cannot be 425). (Majority Op. test. ating, self-serving generat- entitlement, plain- ed a naked as the law of averment As muddled be, principle complaint. pristine tiff’s There is a fundamen- seem to one plaintiff remained tal difference between failure a has inviolate: damages personal in the out- fact-finder to award have a stake because must “Third, mailings disregard even if we Helstoski make certain other than Schiaf- here, damage frank, claims, remaining requests would fo’s our decision injunctive judicata primarily seem, effect relief could have no res are not intend- authority ed to be for the that case. Should Helstoski’s benefit all citizens. mailings narrowly specific here other than those issue claims make focus on activities similarly challenged, Congressman our decision their Helstoski effects short, judicata Schiaffo, res effect. as a have no candidate and member of launching opposition use political Any on the party. broadside attack is not construc- congressmen generally. give of the frank tion that we will have §§ branding Thus, interest circuit, of Schiaffo’s stare decisis effect in this merely taxpayer precedential consistent is not that of in- its value eases elsewhere allegations plaintiffs volving in his com- contained different and defendants complaint depend plaint, and, doubt, mailings, that we is to and it will different disposing support- is- persuasiveness must look on the of the reason Op. p. (Majority 424). example, plain- it. sue.” For should another challenge authority congressman tiff of a individual, and “tax- private a “citizen” controversy than come challenge adoption sought payer,” pays v. taxes. Flast he mere fact Amendment, Carr, the Nineteenth supra; U.S. v. 369 Cohen, Baker “alleged interest that his Court held L.Ed.2d 663 691, 186, 204, 7 S.Ct. 82 Mellon, supra. question . . . submitted Frothingham [was] (1962); v. basis to afford a not such as thusly Richard- put Judge it Adams supra, Fairchild, [the suit].” son: 129, The at 42 S.Ct. at 275. 258 U.S. designed with interfere [S]uits possessed “only right, plaintiff had orderly operation the Govern gov- citizen, require by every that the regard to tax particularly with ment, according to ernment be administered not be appropriations, will ation moneys public not be law and that narrowly-defined except entertained Lévitt, su- Ibid. In Ex Parte wasted.” Cohen, v. Flast See circumstances. ap- sought pra, to attack the a citizen Mellon, Frothingham su supra; v. justice. pointment Supreme of a Court Lockhart, & J. pra; Y. Kamisar W. pa- noted that “[m]otion Court Choper, . . . [Constitutional upon pers disclose interest [d] [1970], Law] petitioner that of than of the principle Closely related this the bar of and a member of a citizen who suf a citizen the admonition that The Court went Court.” . [the] will citizens equally all other fers with say: on to generalized raise heard to not grievances the conduct about It is an estab- That is insufficient. Mor v. Club Government. See Sierra pri- principle entitle a lished that to 727, 92 S.Ct. ton, . . . [405 U.S. judicial to invoke the vate individual (1972)]; 1361, Flast 31 L.Ed.2d 636 validity power of ex- determine the Carr, supra; su Cohen, Baker v. v. pra; legislative must action he ecutive or Lévitt, supra; parte Froth Ex im- he or is show that has sustained ingham Mellon, supra; v. Fairchild sustaining danger mediately 126, Hughes, . . . [258 injury the result of that ac- direct (1972)]. 274, S.Ct. L.Ed. that he not sufficient tion and general merely F.2d interest common at 870. has public. to all members of Judge suggest respectfully Ad- I expression Ri- ams’ dissenter 634, at U.S. at 1. Voters 302 Baker, supra, S.Ct. eminently and that chardson was Judge correct “asserting plain, ‘a were expression author Adams’ as the adequate in main direct interest egregiously majority opinion votes,’ taining their the- effectiveness of wrong. Accordingly, I am drawn to his Miller, Coleman v. U.S. [433] conclusion Richardson: merely 1385,] not [59 S.Ct. 83 L.Ed. did Because . . . [Schiaffo] every possessed by right, a claim of ‘the allege not and could not that either he citizen, require “to that Government alone of citi- or some identifiable class according to law administered zens suffered not suf- has Hughes, .’ 258 U. Fairchild by everyone else, fered the conclusion 274], S. .” [42 appear “he to follow that has Ac 369 U.S. S.Ct. at 705. general merely a interest common to plain cordingly, the held that the Court public,” parte all members [Ex standing reap tiffs had to attack a state 633, Lévitt, portionment plan. right No such basic (1937)] L.Ed. and therefore here. a citizen is asserted Rather litigate endowed inju is claimed on the basis this matter. - ry plaintiff in fact sustained as a 465 F.2d at 872-843. taxpayer injury in fact who “suffers teachings Supreme from an unauthorized use frank. Precise Supreme support deci- .” Not one Court Court this conclusion. When Indeed, approach. A. supports sion explicitly reject such a notion. decisions First, flatly disagree sug- with the I governmental agency gestion that no II. Congressional power police the take, may stop I I In view here. franking privilege. is an essential This majority concedes Schiaf- Since the theory majority predicate of if standing passport federal fo’s possess sup- threshold is to conclusion “injury-in-fact” depends upon the Having port. lack of enforce- asserted Processing validation, he has Data governmental agency, power in ment failed, my view, to meet the first of argument proposi- then to the the builds requirements.6 the two mandated any frank- tion that enforcement the my I am to extend views constrained ing only can emanate from the statute greater length highly the because so- at through public, generally the device of phisticated attempt to meet the second general private attorney like the suits proceeds requirements of Data’s from Lacking specific instant case. a statute record,, facts, I assumed which authorizing private majority suits, challenge; there, from induced by thereby implication, one satis- finds consequences, which I find fallacious. fying prong of the “zone of second Processing. requirement— Data interest test” of To meet Data’s second sought pro “whether the to be interest discerning difficulty I have little by arguably complainant tected is fallacy premise the basic pro within the zone interests to be Congress governmen- provide failed to a by tected ... statute agency statutory power tal with to en- , 153, . . 90 S.Ct. at U.S. .” franking force the The statutes. United congeries of intricacies is ad 830—a authority. States Postal Service has this begins argument The with the vanced. authority apparent To me this is so proper no statement there is not to merit extended discussion. authority conferring explicit statutory a right remedy private “in of action to It is the United States Postal Service jury congressman’s by caused a abuse improper which suffers from use privilege.” franking. It is the United States Postal depleted Service whose revenues as a statutory As au- existence of franking improper practices. result of thority entitling “governmental entities” is It the United States Postal Service right pursue remedy a for such which, predecessor, its the office argument injuries, gallops in two off General, history the Postmaster has a suggestion Initially, is directions. juniority any department proffered statutory such author- that no Executive. It is the Post- United States ity Alternatively, it contends exists.7 al Service whose establishment is consti- statutory authority police that if tutionally mandated, Art. Congress authority exists, is deemed regula- power postage whose to enforce plain because “the fact ineffective explicit tions in Title United Postal that since . . . [the 409; Code, 404(7); States Sections attempted I to do so.” has not Service] 2605; 3216(a). now address both contentions. they necessarily starting point, ap- difficulty majority’s track do not

6. Another with the supra Processing, proach one another.” Data which I and do not dis- mention blending at 829. cuss detail is the curious standing principles relating com- to economic past taxpayers. present petition relating relat- statutes 7. “None of the or with those grants specifically Douglas emphasized . to the frank Justice the distinction remedy any governmental taxpayer’s in- entities a between the “Flast was two: congressman’s competitor’s jury present abuse suit. caused suit. The is a 426). (Maj.Op. privilege.” Article III And while have the same the two granted by moneys statutory provi- of, credit or of these existence as a result of to the [it] refutation a dramatic forms sions rep- remedy . . fraudulent re- mistake private [or] contention statute, .” United resentations. “[T]he implied from quired to be original Borak, district courts shall 377 States analogizing v.Co. I. Case J. jurisdiction all ac- but not exclusive over L.Ed.2d 423 brought by against way tions Postal or no other (1964), because there 409(a). More- franking privileges oth- Service.” 39 U.S.C. police the use of over, the Postal “investi- Service private suit. er than gate postal re- offenses and civil matters totally ma- reject completely I lating Service,” 39 U.S.C. Postal “None jority’s conclusion: 404(7) may bring law, suits relating past present statutes general remedial U.S.C. 409. Unlike grants private in- specifically frank Borak, 78aa,8 statute used 15 U.S.C. § governmental entities dividuals enforcement here are ex- statutes congress- remedy caused pressly limited. no room for There is privilege. haveWe man’s abuse implication in these remedial statutes legislative his- in the found no evidence private party may that a avail himself suggest- tory enactments of the various “The this avenue of relief: Postal Congress specifically considered request Attorney Service shall the Gen- problem. is not There the enforcement bring eral to recover. suit provision equivalent even a § . . .” 39 U.S.C. 2605. “[T]he § Exchange U.S.C. Act [15 the Securities United States courts shall have district ju- indicating have which courts 78aa] original jurisdiction but not exclusive involving to entertain suits risdiction brought by against over all actions or 426). (Foot- (Maj.Op. at the statute.” the Postal Service.” 39 U.S.C. § omitted). bility any completely, sup- and without Congress. Thus, not tiff is a member of record, portive it makes evidence in taxpayer. only he sues as a If he is congressmen assumption factual that suing capacity solely taxpayer in a to re privilege. majority did abuse the taxpayers generally, deem the loss to he conclude the Postal Serv- then that since standing, have lacks as we heretofore regulatory ice activ- has “abandoned” its analogous observed, under the doctrine franking ities, may en- statute enunciated in first Mellon, supra, Massachusetts v. attorney general private by forced ac- statutes, “if tions the intent party who at 601: “The invokes the expressed by Congress, is to be effec- show, only power must be able tuated.” [practice] invalid, that the . is I refuse be associated as- that he or is immedi but has sustained sumption congressmen danger sustaining ately from 1968 to some di franking privilege. 1972 abused the enforce rect as the result its appropriate ment, merely Nor do I believe that is that he and not suffers judiciary, way correlative the federal indefinite common with some people government, generally.” branch of the federal assumption proceed from such an and to sum, assuming validity In legal severely render a conclusion criti- premise of Data Process- that the tests Congressional practices.10 cal applicable I have doubts —and assumption legitimate, “competitor” Even were this test be used sought “taxpayer” subsequent conclusion be drawn there- context—the from, underpinnings idiom are ex- borrow an from televi- this thesis sion, tremely Building fragile, not evanescent. Put- “self-destructs.” if Representa- 10. The United tlie Office States House of Committee on Post and Civil delegated supervisory powers significant tives has Service. It is the Commit- over franking postal Administration, tee on House service to two commit- United States Representatives, tees : Committee of Official House of filed a brief ami- on Standards urging Conduct, cus curiae in this reversal. Subcommittee on Postal Service of case ting the demonstration aside meet test of does the first had, Processing, if he Data even he required meet the second test of

then coming zone interests to “within the * * * by protected the statute.” by attempt this con- An made meet is

cluding only of enforce- that the means through private I

ment suit. ignores approach how shown specific providing for actions statutes for the Postal or instituted Service. plaintiff placed

Since the “zone proc- an inferential interest”

ess, inferences are since these based premises illicit there two minor —that govern- in a enforcement commitment Congression- agency implied

mental go al abuses exist which unchecked

governmental agencies entities or —the proffered syllogism analytically un- being invalid,

sound; reject- it must be

ed. plaintiff standing. I to lack find judgment

I would reverse the of the dis- complaint.

trict court and dismiss the TEACHERS,

GUAM FEDERATION OF FED LOCAL OF AMERICAN corpora TEACHERS, ERATION OF al., tion, Plaintiffs-Appellants, et YSRAEL,

Alfred C. also as Al known Ysrael, Defendant-Appellee.

No. 73-1444. Appeals,

United States Court of

Ninth Circuit.

Feb. Shapiro, Guam, Agana,

David M. plaintiffs-appellants. Trapp, Gayle Trapp,

Howard G. Co., Agana, Guam, & for defendant- appellee. DUNIWAY, Before TRASK

WALLACE, Judges. Circuit notes may true, majority itWhile be as the simply quick a refer answer The is states that there “no evidence the legislative history The Postal Serv ence to these statutes: [of §§ 3210-3212] Congressional suggesting Congress ice is reimbursed specifically mailings in the form of “a problem,” franked considered the enforcement legisla lump-sum appropriation proves nothing. to the this Enforcement is al- , paid then tive branch . . . and statutes, located to other to those stat- postal covering the Postal revenue.” Service utes majority attempts the Postal Service. The 3216(a). Reimbursement disprove point 39 U.S.C. § B grant presupposes (legislative history either a of credit or of enforcement of payment moneys; therefore, franking laws), 39 U.S. disproving instead of pro applies. point (Postal section enforcement), C. This A Service request “The Logi- vides Postal Service shall : which is the real issue at stake. bring Attorney the suit technique fallacy General cians call this the any payment ignoratio irrelevance, recover . . made . elenchi.9 liability States, duty chapter or The district created this courts the United or any regulations thereunder, rules and and the United Territo- or to en- States courts join ry any place jurisdiction chapter subject or rules to the violation of such or ju- regulations, may any brought and the United shall have exclusive be such States chapter district or risdiction of of this or the district wherein the de- violations regulations thereunder, rules and of all fendant found is an or or inhabitant business, process equity brought transacts suits law in such cases actions at may any liability duty any be served in enforce created other district of which chapter regulations there- defendant is an wherever or the rules and inhabitant may Any may proceeding defendant be under. criminal found. brought any act or the district wherein constituting Sahaldan, Philosophers, oc- transaction the violation Ideas of the Great Any enforce curred. suit or action to hypothesis B. unsubstantiated of Con gressional argument abuse, proceeds predicate But it is in the factual as- to the notion that the Postal Service will theory in the which serted alternate Congress police not “the because Serv abiding grievous me concern. causes way depleted by ice’s revenues are theory originates in these state- The frank”, unauthorized use of the and that “Nevertheless, nei- since 1968 ments: only private therefore a is the rem suit any other executive ther the Service nor department edy. Assuming, conceding, without regulate sought to has suggestion validity of the that there is The Service’s aban- use of frank. no harm to the Service because it Postal regulatory activities donment of its gets “lump-sum appropriation surprising. . . not legislative paid branch . may Service well Postal postal Postal Service as revenue” 39 U. statutes, power to enforce the 3216(a), and that therefore it is of S.C. plain fact is that since ficially presence nonchalant 427). (Maj.Op. attempted to do so.” Congress lump-sum abuse If the Postal it be true that Service necessary appropriation, then corol enforce, steps there can has not taken lary only possi that there can two reasons for inac- be two and two injured parties: either the American ble Congres- one, that there was tion: taxpayers the bill for who foot in- Postal Service sional abuse to merit legisla “lump appropriation sum ; exist, two, abuse did tervention or branch,” tive or the members of Con nothing did about but Postal Service gress themselves, who claim a deni it. legitimate al of the full use of the ignores possi- majority the first franking privilege plain Clearly, fund.

Case Details

Case Name: Alfred D. Schiaffo, in No. 72-2168 v. Henry Helstoski, in No. 72-2167

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 21, 1974

Citation: 492 F.2d 413

Docket Number: 72-2167, 72-2168

Court Abbreviation: 3rd Cir.