William B. Richardson v. United States of America

Bеfore VAN DUSEN and MAX ROSENN, Judges, KRAFT, Circuit Judge. District May 11, Submitted En Banc SEITZ, Judge, Present Chief VAN DUSEN, ALDISERT, ADAMS, GIB- BONS, ROSENN, MAX RO- JAMES SEN, HUNTER, Judges, Circuit KRAFT, Judge. District OPINION OF THE COURT Judge. ROSENN, MAX Circuit frequent In contrast to the case ly appeal, heard on in which the Govern accounting ment seeks an from the tax payer, taxpayer here it is the who accounting seeks an from the Govern- accounting receipts and ex- acting propria Appellant, ment. enjoin penditures and to of the CIA Gov- complained persona, publication statement, the Combined en- further ernment’s consolidated them. Receipts, did not reflect Statement which titled “Combined Statement judge court application for a three His United Expenditures Balances the district court denied monies Government,” to show fails States complaint on subsequently dismissed the In- expended the Central received justiciability.1 grounds alleged Agency (CIA). telligence He Agency Intelligence Act Central and remand. the order We will vacate Treasury relieving Secretary of the repug- figures argument, publishing such oral After He and void. nant the case to the Constitution the issues raised deemed compel sought mandamus importance a writ of necessitate sufficient Treasury publish Secretary curiae, Professor appointment of amicus history procedural single judge disposed con 1. this case is of of to be Appellant complaint on filed his fused. to which the case had been district court days January 8, Only eight judge assigned later the three after denial of request judge Wyman, a was for three court v. 441 F.2d his Cancel 553 court. denied, (2d 1971) ; Lyons Davoren, set and the case was ordered v. 402 Cir. denied, assignment (1st 1968), in manner. for the usual down cert. F.2d 890 Cir. Using hindsight, 861, 1081, we can now see that 89 21 L.Ed.2d 393 U.S. S.Ct. January 16, 1970, presum (1969). of which order This case is between those 774 ably finding parties poles on a there was based all there in that believed two question, court, was no substantial constitutional further business for district was 469, States, Majuri though F.2d v. United 431 for it is difficult us to under even (3d Cir.), denied, U.S. cert. 400 a In 472-473 943, for such сonclusion. stand basis 245, 27 91 S.Ct. L.Ed.2d 248 we consider the order these circumstances largely appellant’s interlocutory January determined ease and not a 16 of any litigation appealable on made further relevant U.S.C. order under § final 28 unlikely. Hayden appeal 1291, v. the merits Donovan the properly from the or and that Inc., (6th 1970). Stone, ques F.2d 434 619 Cir. of der June 16 raises party However, judge nor the district neither three court. tion of the denial judge Beaman, 884, the action. March so construed On v. F.2d Sackett 399 889 n. 20, (9th 1968). case, a to dis the Government filed motion we note 6 Cir. April judge single 22 motion to de and on a miss court’s actions after that a filed ny convening judge improper judge ctiurt. a three On denial a three court judge April effect, district directed 27 another are taken with are of questions Lyons Davoren, jurisdiction. v. out file brief judge court, Therefore, supra, dismissal and three 402 F.2d at even of on 19, May ques appellant though appellant a motion did not raise filed judge propriety convene three court. June On of the tion denial hearing judge stage, 16 15 was and on June held at an three earlier appellant’s question time case was dismissed. A still here because can raise ly jurisdiction appeal goes single taken from that action. to the it judge might January been 16 order have court to enter its order dismissal. The appealable brought (1) Appellant future if it: foreclosed an earlier suit chal court, ju put accounting, alleging litigation lenging Idle him out of the CIA’s Rohan, Liquor Corp. Voyage Bon v. 28 That § wild risdiction under U.S.C. (2d 1961), 426, modified failed F.2d 428 Cir. suit was dismissed because he 289 grounds controversy Bon on Voyage Liquor sub nom. Idlewild exceeded other show matter Corp. Epstein, $10,000. 370 value of Richardson v. 1294, (3d 1969), 2, Sokol, L.Ed. n. 8 409 F.2d 3 Cir. cert. de ; (2) preliminary (1962) nied, 2d denied 24 L.Ed. States, Majuri injunction, (1969). v. United decision 2d 253 Because that jurisdictional, (3) supra, the action at the or dismissed he is barred from Branigin, time, raising F.2d merits this action. same 576, Jones Etten (6th 1970), denied, Manufacturing Company, cert. Lovell 225 F. Cir. Sullivan, (3d 1955), denied, Cir. cert. Jones 1205, 2d That or L.Ed.2d 327 100 L.Ed. clearly appeal- der not have been 1B Moore’s Practice would Federal had able if there were other claims [5]. 0.405 ¶ University personnel, Spritzer functions Ralph disclose its or S. formerly School, 403g, Pennsylvania Act- 50 U.S.C. and: Law § United Solicitor General sums made available to the [t]he thoughtful has submitted States. He Agency may expended without re- responded. parties all brief to which gard provisions reg- to the of law and relating expenditure ulations to the AND funds; objects THE CONSTITUTIONAL Government and for extraordinary, CONTEXT of a STATUTORY confidential emergency nature, expenditures challenge sought appellant Because solely be accounted for on the cer- system the Federal Govern- every tificate of the Director and spent for funds ment accounts such certificate shall be deemed suf- Agency, ex- Intelligence a brief Central ficient for the voucher amount therein necessary planation system 403j(b). certified. 50 U.S.C. § put context. appropriate his action procedure two-step sys- This creates a spending The Federal Government’s tem Treasury’s I, disbursement powers, section enumerated in article Congress First, ap- monies to the CIA. Constitution, regulated are propriates money agency, to some other pro- section clause which article agency and then that transfers the funds : vides to the CIA. accurate account- Money from the No shall drawn ing for the funds is ren- certificate Ap- Consequence Treasury, but dered CIA, Director of reg- by Law; propriations and a made appear does not that this certificate or Re- of the ular Statement and Account its contents are made available to the Expenditures public ceipts of all public. Presumably money actually Money published time to shall from spent Treasury is reflected in the De- time. partment’s annual statement as a dis- mandatе, original all In accordance with this agency bursement agencies except receive Congress federal the CIA which appropriation, made the specific appropriation although an annual not be reflected at all. Congress. 31 U.S.C. § Appellant Richardson, a citizen and Secretary Treasury prepares of the then taxpayer residing Greensburg, Penn- ap- an annual statement “head sylvania, Treasury Depart- wrote the propriation” the use of Execu- for ment, inquiring expend- about the annual tive, Congress public and the reflect- itures of the CIA. He was informed agency spent how much each has Sokol, Treasury defendant officer during previous year. fiscal 31 U. charge publication of the of the an- 66b(a), S.C. there 1029. Since is §§ nual statement, Treasury De- specific appropriation CIA, its for the partment did not receive information on receipts expenditures listed are congressional the CIA because of the de- in the document. termination that such information should public. be made He further stated Intelligence Agency The Central Act that neither he nor the defendant Sec- 1949, 208, 63 Stat. 50 U.S.C. 403a § retary of Treasury had access to the seq. (1970), et unique pro- established a appellant information desired. There funding cedure for Section the CIA. was no further administrative relief 403f(a) permits the toCIA transfer and available. agencies receive funds from other Appellant approval brought then the Bureau the Bud- this action al- leging get (now Management appellees that the Office of have a constitu- Budget) tional regard obligation statutory provi- “without to set limiting forth an accounting sions of prohibiting law accurate of the expenditures transfers appropriations.” of the between Once United States. He money spent, Intelligence contended been CIA need Central upon tradition turns 1949, ute’s construction creates Agenсy which Act Davis, Administra law. CIA, al mandamus repugnant exception for the (1970 Supplement) § Treatise tive Law prohibition its because the Constitution issue, order mandamus for 23.10. expenditures against reporting the CIA’s allege an officer of plaintiff must I, sec- mandate of article contravenes legal duty him a owes the Government three 9, He asked that tion clause 7. specific, plain ministerial act which is judge determine convenedto court be judgment or “devoid exercise constitutionality Intelli- Central County, Or. v. Clackamas discretion.” gence Act, Agency a mandamus and that 108, McKay, 219 F.2d U.S.App.D.C. against requiring defendants issue York, 479, New New ICC v. publish a statement financial them to 178, R., 287 Haven Hartford R. & complies with the commands which (1932), 77 L.Ed. remaining and the acts the Constitution Kadrie, ex rel. States Wilbur v. United Congress. 206, 218, 74 L.Ed. alleged Appellant the consti- also Walker, United States regular duty provide ac- tutional 1969). (9th An act F.2d Cir. expenditures receipts and count performance its ministerial when public money to the citizen is one owed plainly positively commanded and so design is taxpayer, its obvious prescribed as to from doubt. be free provide of the electorate with members Walker, supra. Addi United States v. lying public at the core of information accountability tionally, plaintiff must have exhausted all society. in a democratic other available Carter means relief. Seamans, (5th 411 F.2d Cir. JURISDICTION 1969) denied, cert. alleges Appellant several 25 L.Ed.2d 121 grounds jurisdiction, only one of duty What is nature relatively proper.2 which is It is the charges appellant was breached? Act, new Mandamus and Venue alleged duty here under article arises C.A. which states: § implemented section clause original courts district shall have Congress 66b(a) under 31 U.S.C. §§ jurisdiction of in the na- action 3 Appellant’s position 1029. is that save compel of ture mandamus to an offi- for the existence the Intelli of Central employee cer or of the United States gence Agency Act, Congress would be any agency perform or duty to thereof required appropriate money specifical to plaintiff. owed to the CIA, Secretary ly of the for the the legislative Treasury give history required to of the would an Congress accounting President, mandamus statute reveals that the stat- the the jurisdiction apply None of the other are that bases of not to “matters does appellant alleges applicable. exempted Appel (3) specifically are from ” may predicate jurisdiction by upon lant not . 5 . . disclosure statute. 1346(a) (2) 552(b) 28 U.S.C. § since he has § U.S.C. alleged monetary damages. no Blanc v. States, pertinent part (2d Cir.) United 244 F.2d § 708 31 1029 U.S.C. denied, duty 874, cert. 355 the Sec- U.S. “It shall be the of 2 states: lay (1957) ; annually Treasury retary L.Ed.2d 79 Universal Transistor of the accurate, Corp. Congress, States, Products an United ... 214 F. before Supp. (E.D.N.Y., 1963) receipts ; 486 nor statement the can combined of preceding juris during expenditures U.S.C. §§ 701-704 form a the last basis for diction, moneys, year public . since this circuit . . that the of all held fiscal jurisdictional. receipts, designating statute is not the the of Zimmerman amount district, States, by ports, (3d Cir.), practicable, v. United 422 F.2d 326 whenever by denied, States, expenditures cert. each the and separate appropriation.” 26 L.Ed.2d 565 and cases cited head of Finally, 552(a) (3) therein. 5 U.S.C. § obligation agency’s gov- expend- an public valid for that otherwise of a and the per- by appropriation, as ernmental officer to a To of citizen. that head itures upon amit defense based an mandated unconstitu- 31 U.S.C. § prevent plaintiff, tional law would such spe- argues The Government appellant, using mandamus the Congress duty exists cific because the remedy rights though to enforce his even Agency Intelligence has, the Central Government has not otherwise shown Act, Secretary Treas- relieved the deny the court a valid reason to the re- obligation ury publish a state- lief demаnded. Such a defense would pertaining funds received and ment sustaining very have the effect of expended It also contends CIA. statute the court is asked to strike Secretary an cannot as unconstitutional. possess obligation because does Therefore, the Government accounts.4 CIA’s rely preclude on the CIA Statute to We do not decide constitu jurisdiction of this mandamus action. tionality Intelligence Central Except Statute, for the CIA Agency However, purpose Act. for the Secretary Treasury is under a determining will whether mandamus Congress clear command of to account courts, against lie him the federal for all monies actually are ex de officer of Government cannot pended by agencies. the different federal prive jurisdiction compel fulfilling duty, he has no discre performance of an otherwise clear stat tion. U.S.C. 1029. § duty invoking authority utory challenged what is as an unconstitutional persuaded Nor are we Ayers, 443, 506, In re law. argument duty Government’s that the (1887); 31 L.Ed. 216 Board Secretary Treasury spe Liquidation McComb, fically appellant. owed The de (1875); L.Ed. 623 As National bates at the Constitutional convention Employees sociation of White, Government ratifying 1787 and the state conventions U.S.App.D.C. 290, 418 F.2d reveal proposed pres those who (1969); cf. Domes Larson v. language ent clause believed Foreign tic Corp., Commerce U. citizenry should some receive form 682, 701-702, S. 93 L.Ed. accounting from the Government.5 The practical matter, As a “published” use of the word in article rule multiplicitous litigation avoids the emphasizes section clause 7 that inten party would arise if a re were first II, requires tion. Article section 3 quired litigate constitutionality give President “from time [to] to time separate statute action and then Congress Information on State specific later secure relief in Union,” another presumably and the Fram proceeding by impor mandamus. More ers hаve could utilized the same informal tantly, if a unconstitutional, law is procedure regard it is accounting to the void effect, they and of no if Instead, they and had it cannot alter so wished. remand, appellant may rand, 4. On wish to con- Tlie Records of the Constitutional (1927 party ed.) year sider whether additional A should Convention 618-19. during Virginia be added as a defendant. later Convention ratify called the Constitution Mason George proposed 5. When Mason and Madison defended the as the clause ultimately only way satisfactory amendment became to assure some re part porting public. of article section clause 7 re- to the 3 Farrand quiring publication regular position urged by of a state- The same James receipts expenditures, McHenry, delegate ment and a to the Constitution only proper Convention, Maryland debate concerned the al extent House obligation. Delegates they of the Government’s At least when voted on ratifica everyone inferentially, agreed 3 seemed tion. Farrand 149-50. need some such 2 statement. Far-

851 (1970); 827, 830, 25 “published,” L.Ed.2d S.Ct. the statement have chose to accord, Collins, U.S. Barlow v. indicating to be wanted widely-circulated L.Ed.2d 192 permanent and more message. con- The the President’s than Finally, appellant his has exhausted statement was notation must relief, avenues for administrative he of the and education the benefit remedy, only no other and his recourse public as coordinate branches as well judicial redress. now the Government. Appellant’s meets all case obligation to ac This constitutional required for mandamus. considerations supported public count to the should While mandamus be construed Congressional enactment of 31 U.S.C. § charging liberally in cases violation 66b(a), provides: which right, a constitutional Fifth Avenue cf. Hoover, Peace Parade Committee v. Secretary Treasury shall The of the F.Supp. (S.D.N.Y.1971), even prepare reports informa- such for the principles construction strict Congress, President, tion of the appellant duty has set forth a clear owed public present the re- will Secretary Treasury. to him the operations of the financial sults sup- (emphasis . . . Government. STANDING plied). appellant also must general duty, of this Con- furtherance sufficient in order to invoke gress 1027-1030,6 enacted 31 U.S.C. §§ jurisdiction of a federal court.6A provide specific for various re- III, judicial Article section 2 limits the including ports, Statement Combined power of federal courts to consideration Receipts Expenditures provided of “cases” or “controversies.” Associa for in Section 1029. Processing Organi tion Data Service Congress’ language Thus indi- own zations, Camp, supra, Inc. v. U.S. Secretary’s duty present cates that the Cohen, Flast v. reports financial runs not 83, 101-102, 20 L.Ed. Congress, President but also plaintiff 2d 947 When does public large. reports to the If these not have a stake in the outcome misleading inadequate, there is are litigation to assure sufficient adverse why taxpay- Richardson, no reason as a proceedings ness in the to make it a true er, ap- require should not be able to “controversy,” ju “case” or we have propriate perform executive officer request. risdiction to entertain his obligations. his of the tax- Cohen, 101-102, Flast v. supra, at S. payer complete reasonably to receive re- Ct. 1942.

ports governmental expenditures prong

within . Flast the “zone of . . established two interest[s] protected plaintiff, ... . . . test to ascertain whether a the statute question” appellant, taxpayer, for which is a one who cognizable injury. adversary requisite suffer a has the Association interest: Processing Organiza- (1) of Data must Service establish nexus tions, Camp, taxpayer Inc. v. between status as his 1028, dealing standing, 6. 31 court was the § U.S.C. with the Post district lack of Department, repealed August properly Office was that issue before us on this 12, judicial appeal and, in 1970. the interest of ef ficiency, disposition may a of it avoid procedure, necessity appeals 6A. In the normal once a dis- of additional to this judge three-judge Authority trict concludes that a See Port of New York court. appro- States, 783, convened, 785, court should be it would n. 4 United F.2d priately (2d consider, alia, Breckenridge, 1971), inter the issue of Cir. Crossen v. standing. grounds, (6th 1971). Since one Cir. how- F.2d ever, for the case dismissal activity challenged necessary to Government adverseness the liti- that action; gation pursued give personal stake in the will him a be with the neces- spe- sary vigor (2) to claim must relate a to assure that the constitu- his challenge prohibition so that tional will made in a cific constitutional form sharpened traditionally thought capable and focused to be the issues judicial judicial sufficiently proper resolu- for resolution. lack con- that We Frothingham fidence in cases such tion. taxpayer employ a where seeks to Although did not the district court federal court as a forum in which to finding ap- specify that its reasons generalized grievances air his about standing, pellant that assume lacked we government the conduct of al- or the applied de- Flast and found his case power Sys- location of in the Federal agree. cannot thereunder. We ficient tem. decision in Flast breached the ab 392 U.S. at at S.Ct. 1955. taxpayer suits erected solute barrier decision. an earlier taxpayer object A could to such Frothingham Mellon, 262 U.S. outlays because there was sufficient L.Ed. 1078 Froth S.Ct. link taxpayer between his status as absolutely taxpayer ingham barred personal and the act to assure stake objecting spend to Government controversy. the outcome of the That. “ ing program a violation of tenth provide stake would ‘the ad concrete process amendment the due clause sharpens presenta verseness whiсh theory amendment, on the fifth upon tion of issues which the court so taxpayer affected law largely depends for illumination of diffi gen-' public extent that the questions.’ cult constitutional Baker v. eral affected increased taxes. Carr, 186, 204, Id., 487, 43 S.Ct. (1962).” L.Ed.2d 663 392 U.S. at contrary feared a opened decision have would Although the connec- floodgates litigation, concededly tion in Flast different litigate permitted people would have here, from the one at taxpay- issue both though they issues even adequate did not personal ers have sufficient stake in the vigorous prose incentive for a litigation. Plaintiffs in Flast contended cution because of re miniscule being support were taxed to an un- mote Id. nature their interests. program constitutional inwas viola- completely Flast did tion of the first overrule amendment’s establish- Frothingham. Appellant argues Chief ment Justice Warren’s clause. distinguished right decision on has a the latter case under the Constitution “a ground Regular taxpayer that a Account,” could not Statement and properly object process being deprived under that he is the due of that general clause to increases in his tax because the Government’s adherence bill, taxpayer object allegedly but a could to the unconstitutional Central program provided Intelligence Agency under sec- article Act. specific tion 8 that exceeded constitu- argues The Government that Flast taxing tional limitations challenges must be limited appro spending powers Congress. The priations. attempts That view to con Chief Justice believed that: fine the case to regard its facts without circumstances, Under reasoning. to its feel we con- Flast is concerned questions fident specificity fram- will be adverseness and is necessary ed with the “standing,” sues per specificity, spending the issues will be se.7 contested with Nixon, (10th lenge expenditures Velvel v. 415 F.2d for the Vietnam War. 1969), dеnied, They Cir. cert. permitted reasoned that Flast chal- lenges only spending “gen- L.Ed.2d 686 held plaintiff standing that a had I, to chal- eral welfare” clause article section representatives argu- and meet control over its Government’s under the Even responsibilities as citizens of their new appellant’s sufficient claim is still ment, pub Republic; ap- mandated and integrally to the related is because propriations general although in taxpayer’s lication, stated process and receipts terms, and challenge appropriations. of the Government’s ability those to ultimate expenditures. recognizes of a Whatever Although Flast obligation, scope its challenge expenditures, and how extent taxpayer to generates sufficient, challenge a ad un- elimination taxpayer can a make being taxpayer. money in interest a verse is how the less he knows infor- spent? accurate official Without prong the Flast test second pur- concerning amount and mation inquired a the Court whether there was expenditures, could be pose there specific section in the Constitution which taxpayer suit. It would for no basis taxing Congress’ operated limit the to viability affirm the be inconsistent spending powers. It noted that hand taxpayers’ on one suits than are limitations other whether there necessary precondition away for take establishment clause would have to other.8 suits on the those litigation. decided future 392 U. Appellant’s 88 S.Ct. 1942. S. at position not is The Government’s such a limitation. claim While raises reject We and we must sound us it. taxpay I, procedural article section 7 is clause nexus that the between a believe nature, the establishment while allegedly unconstitutional act er and an nature, clause is substantive both are always appropriation be the need not taxing nonetheless limitations money spending his for an invalid spending power. It would be diffi purpose. personal stake come requirement to fashion clear cult more any injury in fact if it is not even ly conveying the framers’ intention to directly in nature. Associa economic regularize expenditures require and to Processing Organi tion of Data Service public accountability. zations, Camp, supra, Inc. v. Article section clause 7 relates ex- A at responsible 25 L.Ed.2d clusively taxpayer’s intelligent taxpayer in the interest expenditure public course, monies. un- citizen, It is to know how wants process being like the due money spent. clause of the fifth his tax Without amendment, intelligently amendment and tenth information he cannot this Frothingham, Congress raised in are de- which ‍‌‌​‌‌​‌‌​​‌‌​‌‌‌​‌‌​​​‌‌​‌​​​​‌​‌‌‌​​​‌‌​‌​‌‌‌‌​‍follow the actions signed range properly to check a much broader Executive. Nor can ful possible power. Appellant obligations abuses of fill his as member any generalized complaints does raise of the Consti electorate. Framers operation about the of his Government. tution deemed information essen fiscal complain any He does even that the CIA if tial the electorate was exercise ; 1972) Stop specific Reservists Committee 8 and exercises under (D.D. Laird, F.Supp. 833, powers, War v. enumerated C.1971). Navy. provide But we need not decide that is Armies fail and a We requires anything sue. Whatever the interest of citizen to see Flast which spent knowing taxpayer gen- where his Government has limitation of suits money, taxpayer challenging its interest of a eral Suits ex- welfare clause. money gone certainly knowing specific powers where Ms ercises of can compelling Judge required, more and direct. Chief have the adverseness and there opinion nothing opinion Seitz is of the this in the Flast more taxpayer. taxpayer does not have as a suit evinces a limitation of See, Cohen, subject types matter. Flast to certain However, 20 L.Ed.2d 947 compel 8. The interеst of a citizen to dis agree exists he does this information without refer closure of plaintiff’s as a voter reason of status might taxpayer’s his be an ence to status and citizen. acceptable challenge. Atlee basis (E.D.Pa. Supra, Laird, F.Supp. note 5. 854 [standing] is not disre- principle money presently The receive not should rights of spected proper- constitutional money where provided this spends, immediately be- persons not who are He reported. ly appropriated and effectively could be fore the Court not account statement an accurate seeks appropri- except through an him vindicated money from extracted for the tax the Court. representative ate before specific con- spent. He relies on 249, Jackson, 346 See Barrows U.S. protect him from provision to stitutional 1586; 1031, L.Ed. 255-259, legislative 73 S.Ct. alleges abuse is a

what Refugee Committee non-accounting Joint Anti-Fascist features power, 183-187, 123, McGrath, 341 Intelligence Agency U.S. Act. the Central (concurring 624, 95 L.Ed. citizen, appellant, as a that if We note opinion.) taxpayer, not entitled voter Stop War v. Reservists Committee as this to en- action an maintain 833, (D.D.C. F.Supp. 9, Laird, section force dictate article 1971): 7, Constitu- clause of the United States pro- Government tion that the Federal It is not irrelevant [to expenditure accounting an vide plaintiffs if to note that these issue] money, public difficult all then it is judicial cannot obtain review of de- requirement, which the see how this action, practical fendants’ then as a considered the Constitution framers of matter no one can. functioning proper our vital (Footnote omitted.) republic, may be enforced democratic carefully expressing We have avoided deny A to the all. decision any opinion appel- on the merits appellant in these circumstances would however, complaint, lant’s сlaim. consistent the limited seem with give allegations contains sufficient scope requirement. See appellant standing consistent Morton, Sierra Club article III of the Constitution to invoke 1361, 1368, L.Ed.2d 636 jurisdiction adjudica- an court’s for (1972): tion on merits. seeking requirement party that a THREE JUDGE COURT allege showing review must facts adversely he is himself affected does We next consider whether three ju- judge insulate executive action should have been convened prevent review, any dicial nor does it appellant’s complaint. hear 28 U.S.C. public being protected interests from provides application § that an for through judicial process. injunction It does restraining the enforce- rough attempt ment, serve as least a operation any or execution of act put the decision Congress as to whether review of repugnance for to the Con- sought will be hands of those stitution of the United States shall not who have a direct granted stake by any the out- district court unless come. judges. heard three (Footnote omitted.) question, The threshold there Maryland, McGowan fore, 429- complaint is whether a in which (1961); 6 L.Ed.2d jurisdiction grounded solely on the Alabama, N.A.A.C.P. v. mandamus statute falls within the terms 2 L.Ed.2d 1488 of Act, independently addi (1958): prayer injunctive tional relief which 10. 28 § U.S.C. 2282 reads: granted by any district court or interlocutory permanent “An judge in- application thereof unless junction restraining enforcement, therefor is heard and determined operation or execution of Act of judges district court of three under sec- Congress repugnance to the Con- 25, 1948, tion 2284 of this title. [June stitution the United States shall c. 62 Stat. 968.]” beyond prayer required complaint.11 The for Su to look the in the are is stated allegations recently of to the cautioned relief substantive preme Court States, Majuri complaint. judge not a the v. United court statute three ’ “ denied, 469, (3d Cir.), policy cert . . F.2d 473 431 broad social ‘measure of 245, Donovan, 943, 27 L.Ed.2d omitted]”, 400 91 U.S. S.Ct. Mitchell v. [citatiоn merger (1970). of law and 427, 431, 1763, 26 L. 248 Since 90 398 S.Ct. U.S. Enabling equity (1970), term Federal Rules and that Ed.2d 378 1253, adoption of “injunction” and the Rule in Act 193413 28 U.S.C. of used § (28 2282, presumably in 2 the Fed.R. of Civil Proc. U.S. 28 and § U.S.C. 2) only providing narrowly one form Id. A suffi C.A. Rule construed. be action, might ciently serve there little difference narrow construction judge from substance between a mandamus and a then bar a three hearing mandatory injunction. Rolls-Royce, action, a Inc. a mandamus (D.D.C. Stimson, 22, F.Supp. intent 56 23 result would faithful to the v. 1944). Court, Congress. Supreme 2282 was enacted in discuss Section protective a device shield the Gov distinction drawn might disrupt before, century more than a half ernment from suits which stated operations. It intended for its was not distinction . . . “[t]he be plaintiff. mandatory tween and mandamus in convenience junction legislative history present this section reveals seems formalistic day it, 2281, age,” pleading complement, its “were when rules of are § single judge simplified “and, prevent importantly, enacted federal more before merger being paralyze totally equity.” able to law and Stern v. operation regulatory scheme, Co., 606, of an South entire Chester Tube 390 U.S. 609, 1332, 1334, either 88 state federal issuance of a S.Ct. 20 L.Ed.2d 177 injunctive (1967). Kennedy injunctions broad order.”12 Just as v. are effec 144, 154, immediately Mendoza-Martinez, tive punishable 83 372 U.S. are 554, contempt 560, (1963). disobeyed, 9 S.Ct. L.Ed.2d 644 when so is manda Denver-Greeley

mus. Valley See Water McNeil, Users Association 131 F.2d 67 action, This while based on (10th 1942). prior Cir. Even Ena statute, the mandamus in substance con bling 1934, Act of templates injunctive ob prays, relief. in It although remedy by served that man alia, permanent injunction ap ter for a law, damus is its allowance was con parently in aid of the mandamus re by equitable principles. trolled United straining publication of Combined Dern, States ex rel. Greathouse v. 289 U. Receipts, Expenditures Statement of 352, 359, 614, S. 77 L.Ed. 1250 Therefore, Balances. the action is for (1933).14 practical purposes substantially all sim mandatory injunction. ilar to a In as require Unless we that the instant ac- certaining the substance of scrutiny the action we tion withstand the three predicated great Jurisdiction was not coping burdens entailed prayer injunctive appel- harassing relief brought since actions one after comply lant did not challenge operation with 28 § U.S.C. another (a) (2). supra. f. n. statutory juris- See scheme, entire wherever government diction over officials could be extrapolating 12. In the substance acquired, judge ultimately until Congressional debates, Mr. Justice Gold- grant found who would in- the desired berg Kennedy Mendoza-Martinez, junction. Cong.Rec. 479-481, 2142- 144, 155, 554, 560, S.Ct. (1937).” L.Ed.2d 644 stated “[r]e- peatedly emphasized during congres- (1970 Ed.) (48 § 28 U.S.C. Stat. . heavy sional on § debates 2282 were the 1064) pecuniary costs of the unforeseen and de- bilitating interruptions also, Virginia Ry. System in the administra- 14. See Fed eration, tion 515, 551, federal law which could be 300 wrought judge’s single order, 81 L.Ed. 789 ” subject controversy.’ pur- parte Ex judge whole court under § Poresky, can aborted pose policy of the act Bailey also, initially allowing L.Ed. 152 Patterson, See seek appellant to invalidity a declaration (1962); No. Local Union L.Ed.2d 512 action be- mandamus CIA statute Work, Meat B. single Amal. Cutters & judge. a de- Based on such fore effect, North America loch, v. McCul- A.F.L.-C.I.O. immediate cision which has 1970). (5th subsequent request, 428 F.2d 396 if nec- Cir. can mount a essary, ancillary injunction.15 The for litigation parties All to this con action, if this success- ultimate effect of ful, prior cede that there is no decision which op- immediately will to alter be directly controls case. this outcome of the eration of critical features Cen- Nevertheless, have would Government Further, Intelligence Agency tral Act. question us is conclude that the raised statute, while based on the mandamus plainly without merit. The face contemplates injunctive relief this action complaint infirmity. reveals such through in aid of the ing restrain- mandamus legislation appellant The to void seeks publication of the Combined allegеdly repugnant specific to a consti Expenditures Receipts, and Statement of language tutional The of ar mandate. oper- Balances until it the CIA’s reflects section rea ticle clause 7 could be ations. sonably favor, appellant’s construed In these hold circumstances we that the nothing prior there is decisions required request district court was Supreme of the Court which forecloses convening judge of a three court, unless interpretation. appears it that the constitutional issue by appellant raised in this action in- is An additional reason dis for substantial. missal action this the district court question posed appellant was that the Whether the issue insub is complaint justiciable his was not stantial must be determined alle it political because was barred gations complaint. of the bill of Mosher question doctrine. make We no com City Phoenix, except ment to state that this is issue question L.Ed. No intertwined with the case judge merits for a three court if exists the al development it must legations be left complaint reveal that hearing subsequent before “question the three the tial, may plainly insubstan judge court.16 ‘obviously either because it is with out merit’ or because conclude, ‘its therefore, unsoundness so We com- clearly previous plaint results presents decisions a constitutional cause of of this court subject raising to foreclose the action question17 a substantial and leave no room for requires the inference convening that which of a three question sought judge to be can remand, raised court.18 On the district points 15. As out, Professor Judge Currie “since interpret Chief Seitz does not injunction sought will be January on the the district court order of ground the statute question is unconstitution- as a determination al, judges what remains for question. the three of substantial federal There- fore, decide?” presently U.Chi.L.Rev. he views this issue as and, remand, before this Court would Dollar, Land v. S. Cf. rеquire specifically the district (1947) ; Ct. 91 L.Ed. 1209 Con determine the existence of a substantial Company Department tinental Cas. question requesting before that a three- Highways La., State 379 F.2d 673 judge court be convened. (5th 1967) ; Oakes, Cir. Schramm v. (10th ; 1965) Sunray F.2d Although appellant allege Cir. DX does not Comm., Oil Co. v. Federal Power 351 F. his suit is a class action on behalf all (10th 1965) ; 2d citizens, Cir. taxpayers, people Fireman’s Railway Express States, Fund Ins. pro complaint Co. United his se re- Agency, (6th 1958). plete F.2d Cir. with references to the effect many contexts, learn- steps eral different appropriate to re- judge take will discussed provocative articles Judge ed and this Court quest Chief decisions, law three-judge statutory court. designate a murky. particularly This quite still remaining in this issues not resolved All essentially one here, this case is since adjudicated so the court opinion shall be impression. of first so convened. person By is clear that a now will be order of district court The judicial process to secure not invoke the fur- cause remanded vacated has the relief he unless demands proceedings with this consistent ther But what combination to do so. opinion. operate stand- circumstances confer on one another? ADAMS, Judge (dissenting). Circuit question does answer pivotal case, I easy analysis. issue in admit to it, citizen-taxpayer view is whether injunction to obtain an re- I. AND STANDING CONSTITU- quiring the ac- defendants to render an REQUIREMENTS TIONAL counting expend- of funds received and point of in deter- The first reference by ed the CIA. standing mining parameters is Although there is considerable force III, Article tion, of2 the Constitu- Section position by major- to the articulated provides, part: which ity, a review the historical founda- for, of, development and the tions judicial “The Power shall extend to standing ineluctably doctrine leads to the Cases, arising Equity, all in Law and may conclusion that the here Constitution, under this the Laws Accordingly, continue his action.1 I re- made, States, United Treaties spectfully dissent from the result reach- made, or shall which their under majority. ed Authority; affecting all Am- Cases —to question bassadors, standing public other has con- Ministers Consuls; admiralty founded courts and commentators for all Cases of —to years. many Although Supreme Jurisdiction; maritime Con- —to Court has problem considered troversies which the sev- United States Seeretary Treasury’s allegedly necessary specificity of the un- with the and the liti publish gation appropriately pursued constitutional ceipts failure re- so that expenditures challenge on of the CIA “constitutional will be made People” traditionally thought cap “the and “Citizens” .in a of the United form to be See, g., paragraphs 16-c, 27, judicial States. e. able of resolution.” Flast 36, 41, 45, complaint. Cohen, supra, 49 of the at 106. matter Because Since this require convening of the references and the intricate con- will dis now a appointed involved, stitutional judges, issues we trict of three one court of whom judge, amicus curiae to brief the a circuit a issues raised must be it “involves appellant’s pro complaint. upon judicial se For rea- serious drain the federal him, manpower,” Dept. appellant op- sons best known to Kesler v. of Public posed court; indeed, Safety, 153, 156, this effort September 27, 1971, attempted (1961), can to se- L.Ed.2d which we Supreme cure review of his claims In the ill circumstances afford. judgment, case, presentation Court proper advance of of the re- issues clearly view was denied. See Richardson to that would be facilitated States, appellant United were a if assisted member bar, acting 30 L.Ed.2d 542. either the federal as his coun recognize litigant’s pro- We a sel curiae. or as amicus pro in a ceed civil action See se. However, position here, § U.S.C. it the federal In we take view authority necessary political courts III under article to discuss the is not question the United States in the Constitution to hear issue which so often lurks presented proper background cases in a of suits of this nature. ad- versary manner with the issues framed omitted). Nevertheless, party; standing, despite plaintiff’s “still 1787, in when the Constitution controversy proceeding or is not a case adopted, of the as well as remarks * *."3 meaning within the of Article proponents various draftsmen Indeed, Supreme explain has Court review, Constitution. Based on such a jurisdictional “[a]part ed that from the he concluded that incorrect courts were requirement, developed has Court [the] they when practice relied on in 1787 complementary of self-restraint rule to read into the case or con- * * * governance ”, own its Bar troversy English prac- limitation because Jackson, 249, 255, rows v. 73 S. U.S. Eighteenth century tice aged encour- 1031, 1034, (1953), Ct. 97 L.Ed. 1586 by “strangers suits to attack un- standing requirements that were Berger, Standing authorized action.” principles “not tution, ordained Consti Sue in Public Action: ‍‌‌​‌‌​‌‌​​‌‌​‌‌‌​‌‌​​​‌‌​‌​​​​‌​‌‌‌​​​‌‌​‌​‌‌‌‌​‍Is it a Constitu- practice rather rules Requirement? 816, tional 78 Yale L.S. * * * ”, Raines, United States (1969) (footnotes omitted). 17, 519, S.Ct. 4 L.Ed.2d 524 From his examination of the views Framers, Berger determined that II. SUPREME COURT CASES English assumed that the traditional remedies would Accordingly, be available accurately within to determine language of Article III [Con- “curb boundaries of the doctrine stand- gressional] excesses, ing, light particularly made, only reference must be not of their open desire to leave all channels to the test of Constitution, but to congressional self-ag- attacks Supreme Court decisions which have grandizement.” Id., (foot- at 829-830 discussed the issue. 2. Educ., also, See Adler v. Party Board of 380, 342 U.S. See Socialist Labor v. Gilli 485, (1952) gan, 96 L.Ed. 406 U.S. 92 S.Ct. J., (Frankfurter, dissenting) ; Coleman L.Ed.2d 317 Hiller, 460-465, 307 U.S. 59 S.Ct. 972, 985, (1939) (Frankfurter, 83 L.Ed. 1385 , concurring). J. merely in some Frothingham v. Mellon he suffers peo way with in common indefinite in which first case The generally.” Id., ple 43 S.Ct. depth any explored in requirement was at 601. Mellon, Frothingham (1923). A Relating 67 L.Ed. Significant Decisions expenditures enjoin Frothing taxpayer sued Standing had Subsequent to alleging Maternity Act, under the ham appropriations com- of the “the effect parte Levitt, In Ex bur- plained to increase of will be Su- 82 L.Ed. 493 thereby take future taxation den of preme the issue Court was faced.with process law.” property due her without challenge of the of a citizen at 600. constitutionality appointment of the Supreme affirmed lower and confirmation of an Associate Jus- action, stating: dismissals denying Supreme tice of the Court. statute, “The administration of petition for a motion for to file a leave produce likely taxation additional requiring an order to show the Justice upon imposed vast number to be why permitted cause he should be taxpayers, several the extent of whose serve, stated: constantly liability is indefinite papers “The motion no inter disclose essentially changing, a matter of is upon part petitioner est public concern. and not of individual other than that a citizen and a may champion taxpayer If and' one member of the bar of this That Court. litigate cause, every such a then other It an established insufficient. may same, taxpayer do principle private to entitle a in respect of the under re- statute here judicial power dividual to invoke the view, every respect other but also validity to determine the of executive appropriation act and statute whose legislative action he must show outlay requires administration sustained, immediately or is public money, validity and whose danger sustaining, injury a direct questioned. suggestion bare result of action and result, of such a its attendant gen merely he has sufficient that a goes inconveniences, far to the sustain of eral interest common to all members reached, conclusion which we that ” * * * 634, public. 58 the Id. at a suit of this character cannot be S.Ct. at 1.4 Id., 487, maintained.” at 43 at S.Ct. significant The next is Tileston case Ullman, 44, 493, v. 87 318 U.S. 63 S.Ct. eluсidating After policy considera- these (1943). There, physician L.Ed. a 603 scope power tions the of the of the sued in court for a declaration that state judiciary Congress to declare acts of un- prohibiting state use statutes the of constitutional, Supreme Court set drugs prevent concep- or instruments standing: forth the test of rendering tion and or of assistance party power “The who invokes the counsel in their use are unconstitutional. Congress declare an [to act of uncon- The state court held the statutes were must be able to show not stitutional] constitutional, Court, Supreme and the invalid, that the statute is but per opinion, ap- a curiam dismissed the that has sustained isor immediate- peal appellant’s lack because ly danger sustaining some direct standing. noted The Court Tile- Dr. injury enforcement, asserting as a result of its ston was Constitu- his own pertinent Supreme It standing rather than on the basis original jurisdiction denied to leave to file the motion on the lacked to entertain ground petition. movant did not have possibly pocket rights, patients, of his can be out because those tional 433, parties of it.” 342 U.S. at at action.5 S.Ct. who were Supreme holding, 397. The dis- Court’s Refugee In Joint Anti-Fascist Comm. missing appeal, relied, at least in 624, 123, McGrath, v. 341 U.S. language employed, terms of the on the organiza (1951), three L.Ed. money Id., fact that was stake. tions that had been branded as commu 434-435, 72 S.Ct. 394. Attorney nist sued General alleg declaratory injunctive relief, presented questions to the One of the Atchison, Chicago pecuni Supreme had suffered both ary damage chilling Co., a their effect on R. T. & S. F. rights Amendment wheth First as a was result L.Ed.2d standing appeal considering In defamation. er an intervenor had whether There, appeals. properly judgment the lower had courts a court of dismissed actions, servicing Chicago Supreme Court, speak various railroads ing through sought Burton, employ Mr. Justice held: new motor carrier рassengers stations. to transfer between “Finally, petition- apply for refused to new carrier bring these suits clear. ers ordinance, required by city certificate injury justiciability is touchstone to arrest, and when threatened with sued legally protected in federal the ordi court to invalidate organ- right of a charitable bona fide carrier, old Trans nance. The Parmelee carry work, on free ization its Co., granted portation permission defamatory dis- of the kind statements Although to intervene. court district cussed, right.” 140- Id. at is such ap complaint, dismissed the (footnotes 71 S.Ct. at omit- peals reversed, city and the both ted). considering appealed. old carrier Taxpayers in Ed Doremus Board of whether Parmelee secure had ucation, 96 L. judgment, Supreme review of the (1952), sought Ed. 475 a declaration enough, purposes Court stated: “It providing a state court that a statute standing, that we have an actual con reading for the in the the Bible troversy before us in which Parmelee Jersey public New schools uncon personal has a direct in substantial Although stitutional. the case was terest in the outcome.” Id. at (one clouded elements of mootness also, S. Ct. at 1067. See on Norman’s longer plaintiffs school), was no Waterfront, Wheatley, Inc. 444 F. squarely it turned issue of stand (3d 1971). 2d 1012-1014 Cir. ing, Supreme was cast aspect Another was ad controversy.” Court in terms “case or dressed Court in NAACP surviving As to the facets case Alabama, question, the mootness the Court noted (1958). There, 2 L.Ed.2d 1488 given that “[n]o information is state had sued the NAACP for violation paid by what appel kind of taxes are foreign of its corporation registration lants there is no averment that the statute, discovery and moved for reading they Bible do increases tax Although membership NAACP’s list. pay taxpayers they are, will, or that as willing apply defendant was Ullman, In Poe v. years (to U.S. 81 S.Ct. tion in 82 test the constitution- patients (1961), ality 6 L.Ed.2d 989 statute), and because the a doctor botli asserted that the state stat providing doctor’s constraint traceptive in not con- utes were unconstitutional. reasonably Su devices was not re- preme case, Court refused to decide the prosecution. lated to a fear of The issue ground justiciable on the lack of a standing con was not in discussed main troversy, complaints opinion. because the did not allege prosecution, threat because the only prosecu- state had initiated Jackson, one supra. 6. But see Barrows v. standing to the Su- issues presented two its disclose registration, not it would (1) wheth- preme for resolution:’ Court appeal from membership. general an had been employees a store who er citation, held that contempt Sunday sales laws for violations fined standing to assert had the Association standing exercise” to raise “free had rights members. its the Constitutional (2) wheth- questions; and constitutional explained: The Court “es- persons assert could er same issues limit the breadth “To rights as a defense clause” tablishment particu- in dealt with which must be regard to prosecutions. With to their generally litigation, this Court lar question,” the Court exercise the “free rely con- parties on insisted that alleged only per- appellants noted that personal rights which are stitutional infringement injury, not sonal economic * * * rule This to themselves. freedoms, held that religious of their is related the broader doctrine standing they to raise therefore had should, adjudication constitutional religious As to freedom.8 the issue *** possible, be avoided. where issue, clause” the “establishment disrespected principle Court stated: rights persons where constitutional concededly “Appellants have suf- here immediately before who are not injury, allegedly fered direct economic effectively vindi- could imposition them of the on due through appropriate except cated an * * * religion. We tenеts of the Christian representative before Court. that, circumstances, in these find these “ * * * appro- Petitioner standing appellants complain have rights, priate party be- to assert these respecting the statutes are laws every it members are cause and its religion.” an establishment of Id. practical Id. at sense identical.” 430-431, (footnote 81 S.Ct. at 1108 omitted). (citations at 1170 omitted). standing Thus, pred- the NAACP’s distinguished Doremus, The Court su- peculiarity icated on the factual ground pra, complainants on the that the require case: to assert members particu- there failed to show direct rights their to have their names lar economic As in NAACP detriment. divulged would their have revealed Alabama, supra, the defendants significant names.7 It is also already court, McGowan were and had already NAACP was de- court as a plaintiffs not sued as to raise under- it fendant when raised the issue. lying substantive constitutional issue.9 Maryland, McGowan (Formulation U.S. 3. Baker v. Carr test) 6 L.Ed.2d 393 persons ways 7. The members of the would have were not NAACP without effective rights, citing liad in their own behalf because to assert their NAACP membership Alabama, supra; Jackson, disclosure of the list would Barrows impact supra, implying have had a direct on each member. thus would appropriate The Court noted that also Association case. had in its own because of also, Connecticut, 9. See Griswold v. injury it would suffer a result 14 L.Ed.2d 510 being against the action taken (1965). There, Court dis- Button, state. See also NAACP v. tinguished Ullman, supra, Tileston v. L.Ed.2d ground the doctor in Griswold plain- opposed awas defendant as to a allegations tiff, 8. Because there were no that in Tileston. The stated: “Certainly infringed upon accessory the the statutes the beliefs of should patrons, standing the store’s the court did not de- to assert that the offense which charged standing assisting not, cide if v. he is existed under Pierce Society Sisters, 510, constitutionally of the 268 U.S. 535- be a crime.” 381 cannot 536, 571, 481, at 45 L.Ed. U.S. 85 S.Ct. at 1680. S.Ct. 69 1070 point But the Court did that out such 862 186, Miller, 438, Carr, 82 S.Ct. at S.Ct. Baker 369 U.S. 307 U.S. 433 59 972, 1385, merely (1962), presented 83 L.Ed. 691, 663 still a claim 7 L.Ed.2d right, standing problem. possessed every by of ‘the citi-

another facet of the There, zen, require qualified Ten- voters from certain that the Government brought according nessee counties an individual administered to law. * * *’ ap- Hughes, action invalidate the Fairchild v. class 258 U.S. 126, portionment general 129, 274, assem- of the state 42 L.Ed. 499 S.Ct. 66 ” * * * bly. Supreme 208, formu- Court first at at 705.11 Id. S.Ct. question: lated the key Thus, in the decision Baker appellants alleged injury a “Have such Carr was the a vot- suffered personal unequal er in the outcome of the vote stake was diluted whose controversy apportionment as to assure that concrete of election districts.12 sharpens pres- adverseness which The Court able to reach the was merits upon entation of issues equal protection claim, over the largely depends court so for illumina- objection that to do de- be to so would ques- tion of difficult constitutional political question, cide plain- because 204, tions?” at at Id. S.Ct. 703. tiffs are to relief entitled from discrim- despite ination that the fact the discrim- answering affirmatively, question rights. political ination relates to Id. Supreme Colegrove Court noted that 209, at 82 S.Ct. 691. Green, S.Ct. (1946), “squarely L.Ed. 1432 held that Abington 4. School District of Town- allege voters showing who facts disad ship, Schempp Pa. v. vantage standing to themselves have Apparently, Doremus, supra, over- was sue.” 369 U.S. at at 704.10 S.Ct. sub-silentio ruled School District injury plaintiffs asserted Abington Township, Schempp, Pa. v. in Baker apportion v. Carr L.Ed.2d ment then scheme in effect “disfavors (1963). Schempp suit, taxpayer was a in they voters the counties in which brought court, enjoin in federal reside, placing position them in a of con Bible-reading enforcement of state stitutionally unjustifiable inequality vis Judge writing Biggs, statute. Chief irrationally a-vis voters in favored coun three-judge court, held statute 207-208, ties.” Id. 705. Amendment, was violative of First The Court continued: standing the school children had “ impairment ‘If produce plaintiffs does “similar to minor that of the legally cognizable injury, Education, 1954, in are Brown v. Board of among those who have sustained it. 98 L.Ed. 873 * * * They asserting are plain, parents direct and ”, had and that adequate maintaining guardians interest the natural “as votes,’ having effectiveness of their children, Coleman their an immediate and Colegrove case, injunction forbidding was ‍‌‌​‌‌​‌‌​​‌‌​‌‌‌​‌‌​​​‌‌​‌​​​​‌​‌‌‌​​​‌‌​‌​‌‌‌‌​‍not a At- and for an judg- such. torney enforcing pro- The decision turned on the General reapportionment Congres- ment posed Supreme act. The Court denied political question. sional Districts plaintiff any wrongful was a because 552, 556, 328 U.S. at 66 S.Ct. 1198. acts of the named officials be di- would officers, against not citi- rected election Hughes, Fairchild v. any event, zens, and that 66 L.Ed. 499 was a already was a citizen of a state which had citizen-taxpayer equity suit for a dec- permit amended its own constitution laration that the Nineteenth Amendment amend- women to vote and had ratified the improperly states, ratified ment. enforcing amendment, a law then pending Congress, Neal, Carr; was unconstitution- See Baker v. Politics al; injunction prohibiting Law, Re- Search Secretary issuing procla- view, University Chicago of State from Law adoption amendment; mation of School, 252, governing deci its rules re set forth two spiritual and in their interest direct * * F. sion. ligious development *.” 177 (E.D.Pa.1959).13 The Su Supp. rule, sub-test, part of is a or The first dealing the district preme Court affirmed standing requirement general the the merits, did not discuss nexus, to quoted In order above. with standing question all. at suit, “taxpayer estab- must maintain a logical status and link that lish a between (Frothingham re- Flast Cohen legislative type attack- enactment considered) “Thus,” Supreme Court ed.” Id. Eventually, every of stand- proper discussion explained, taxpayer will “a grips Flast v. unconstitutionality allege must to come party to Cohen, 1942, 20 congressional power only of exercises wish- one taxing Whether spending L.Ed.2d clause under the and narrowly expan- or I, es read that case will to It Art. the Constitution. § recognized sively, that allege it still be must to an incidental be sufficient Froth- “whether expenditure issue there was in the adminis- tax funds ingham when a be lowered essentially regulatory barrier should stat- tration of an on the taxpayer added). federal statute attacks a (emphasis Id., ute.” ground Establishment it violates the that make clear The statement seems to the First Free Exercise Clauses of and taxpayer entertained suits will be Id. 88 S.Ct. at 1944. Amendment.” enjoin expenditures Arti- under to re-examine undertook The Court Constitution, I, cle Section Frothingham opinion was because taxpayers taxpayers will not have require- whether unclear other circumstances. matter ment there announced was part forth in The of the test set second policy doctrine. After constitutional taxpayer Flast “the must is that establish justicia- analyzing issue terms pre between that nexus status bility, Supreme concluded that Court in nature cise constitutional III in Article “no there absolute bar was fringement alleged.” ex Id. challenging taxpayers federal to suits plained : taxing allegedly federal unconstitutional spending programs.” requirement, taxpay- Id. “Under challenged Thus, en- the constitutional er must show that S.Ct. at Frothingham, specific it ever exist- if basis for actment constitutional exceeds imposed upon exercise ed, undermined. limitations was taxing congressional spending Supreme Nevertheless, Court did power simply the enact- suggest go so far in Flast as to beyond powers generally ment standing, upon pol- concept based delegated Congress by 8.” § Art. icy longer considerations, viable. Id. issue, albeit Rather, the Court stated the log- general meaningful terms, But, is a “whether there too this sub-test is not applied taxpayer ical nexus between the asserted when suits not chal- status sought adjudicated.” lenging appropriations, the claim to be and therefore Turning seeking properly apply only Id. at 88 S.Ct. at 1953.14 can to suits challenge it, enjoin expenditure appropri- then the case before measure, appropriations moneys. to an ated Supreme ously regard standing. appeal to the 13. An taken assumed with (E.D.Pa.1962). Court, F.Supp. remanded and the matter was the effect of an amendment consider paradigm statute, as a Court used opinion remand, dichotomy the dis- formulated in its On L.Ed.2d 89 previ- Maryland, supra. adopted position in McGowan v. trict court e., general taxpayer plaintiff i. must that rule some Thus, show right Flast, ap he standing promulgated of his that was violated and as injured although ap- involving thereby, appropria plied was not eases majority opinion generalization proach not tions, at if valid such a require all, satisfy so cast. order is that (1) ment, taxpayer must show: employ Professor Jaffe did Hohfeldian his status connection between analysis theory16 in of Flast. He his (2) be enactment, connection courts, including reasoned that the Su right alleged he tween status his Court, preme have suits initiated heard words, infringed. does the In other plaintiffs- non-Hohfeldian —those taxpayer challenged affect enactment seeking they pos that determination And, so, taxpayer? if it in does as a right, immunity pow privilege, sess a fringe upon specific constitutional requirement er —and that of a Hoh taxpayer possessed an that as longer justifiable feldian individual? 15 Jaffe, policy point See, from a of view. Litigant Ac Citizen as Public might expected, Flast received As Ideological tions : The non-Hohfeldian Or coverage by commentators. extensive Plaintiff, (1968). 116 U.Pa.L.Rev. 1033 Supreme Review con- The Harvard Culp Professor Kenneth criti- Davis cluded : reasoning cized the of Flast v. Cohen. provide a work- Flast criteria “[t]he Standing: Others, Taxpayers Davis, ascertaining when able scheme for (1968). First, U.Chi.L.Rev. 601 permitted taxpayers fеderal should be argued although nonconstitutional though congressionally to sue even Court, Supreme it issues were before the designated proper parties repre- decided neither nor the stand- merits interest, public cri- sent but ing question in those issues. terms of constitutionally compel- teria are not fundamentally, But more he controverted only require- constitutional led. Harlan statement Mr. Justice spelled out in Flast liti- ment is that that: gants seeking judicial review of con- previously held Court has “This gressional action, alleging litigants standing to individual injury legally interest, protected to a represent interest, public despite present must some distin- rationale person- their lack of economic or other guishing personal their interest interests, Congress appropri- al if has general citizenry; any spe- ately authorized such Flast v. suits.” injury cial would seem rationale at Cohen, U.S. at requirement.” fulfill The Su- preme Court, Term, 82 Harv.L. Rather, Professor asserted: Davis Rev. though Apparently, author of the “Even the law so Harvard analyzed terms, note Flast Hohfeldian cluttered and confused almost ev Stewart, concurring 15. Mr. at Justice 392 U.S. at Clause.” Flast, stated that he understood the case taxpayer “to hold that a federal has specific expen Legal Hohfeld, to assert that a 16. See Some Fundamental Conceptions Applied diture of federal funds violates the Estab in Judicial Rea- soning, lishment of the First Amendment. Clause Yale L.J. * * *” 88 S.Ct. at article was written while Jaffe’s pending 1960. He considered that Flast in the Court other case was holding Frothing analysis wise reaffirmed the was not Court. But Jaffe’s Fortas, concurring, majority adopted ham. Mr. Justice also decision taxpayer might Flast, asserted: “The status should contended accepted rejected dissenting launching pad impliedly not be as a for an it. See upon any legis target opinion Harlan, attack other than of Justice affecting lation Establishment (3) ery proposition exception, the The increased some burden taxation consistently private public ad is a rather than courts have con- federal cern, proposition, major with suf- hered to and thus citizen would not one any exception: personal injury who inter fer has no direct from an out One always in est standing." his own at stake lacks increase taxation. of at 617.16a 35 U.Chi.L.Rev. Similarly, a citizen would suffer di- Lockhart, personal injury gov- and rect Professors Kamisar if the federal Frothing- Choper suggest usurps sovereignty Flast that ernment the of a distinguishable hand, ap- ham because Mrs. state. the other are On a citizen Frothingham reality, was, attempting parently per- sufficiently in suffer does a injury standing in sonal her interest maintain- to confer to assert state’s when he ing legislative prerogatives support religious institution, whereas taxed to is a its vindicating personal personal since Mrs. Flast was her each citizen a stake ensuring be in constitutional not to taxed that not the Government support religion. a the gious of reli- a establishment or establish Lockhart, institution. W. & Kam- Lockhart, Choper go Kamisar and on Choper, isar & J. Constitutional Law 65- suggest taxpayer standing to implies that This distinction pre- practical is limitation a measure to Frothingham’s right not to taxed Mrs. vent interference undue with sensitive deroga- support program to in federal a appropriations, especially federal in the police power tion of a a state’s was foreign aid, fields of defense and but right. meaningful personal appar- It is appropri- such a limitation is holdings ently from three derived ate in the domestic arena of the Estab- Frothingham companion case of Lockhart, lishment Clause. See W. Y. v. Mellon: Massachusetts Choper, supra, Kamisar & J. at 68. (1) The state’s contention that (resurrection after Flast Cases attempt act in federal destroy issue was “controversy” “case” or Con- sovereignty its non- Consideration) stitutional justieiable political questiоn because Supreme foray The Court’s next into compulsion the state was under no may pair the morass be found in a accept act; benefits cases decided in 1970: Association of (2) parens Processing state did not Organizations, have Data Service patrie standing rights assert Camp, Inc. v. against a citizen 184; Collins, United be- States 25 L.Ed.2d Barlow v. dispute, cause federal-state L.Ed.2d 192. given the United and not States These cases involved the issue of stand- parens patrie state regula- that stands with to review administrative citizens; and its tions.17 aspect unsatisfactory 16a. grant particular fed- standing in a case. standing is, according eral law of propo- The net effect of Professor Davis’ Davis, inconsistency. Professor ever, standing its How- sitions would be to re- ease the put necessary quirement legislative observation is forth that: to attack standing “The law of need not be either enactments. ‘complicated specialty ju- Berger Flast, federal Raoul also criticized but risdiction,’ Supreme as the Court has examined an historical basis. He it, logic- called chopping or a mass of confused at the state of the law time bewildering about adopted technical- concluded Constitution was ity. simpler It founding can be much and much con- that our fathers have templated clearer than it is. All is neces- all citizens would sary policy sense, to make standing, some firm choices the constitutional apply consistently.” usurpations. See, congressional and then to them attack Berger, (footnotes omitted). Id. supra, at at 829-301. Professor Davis then states a series of propositions, some affirmative and some are on the sub These first cases negative, govern represent ject, rather, cul decision whether the current organization begins had Processing vate Service Data Act, 5 Administrative U.S.C. “Generalizations Procedure that: the observations judicial largely review obtаin worth- § are to sue about United a decision States Forest such.” 397 U.S. less as allowing part development Supreme Nevertheless, Service Forest National Game generalization neces- National one stated Refuge Early opinion, a resort. question sary: “the in the noted: considered courts is to federal ** Id. III of Article rely framework party does not “Where the suit whether true authorizing holds This any specific invo- statute Flast, competi- taxpayer, as in judicial process, ques- cation Processing. tor, Data Mr. Justice as in standing upon depends whether tion of Flast, Douglas, that quoting noted from alleged ‘personal’ party has requirement is met when III Article in the of the contro- outcome stake adversary “presented in an suit is Carr, 186, v. versy, Baker 369 U.S. competi- He that context.” added 663, 204, 691, 82 S.Ct. 7 L.Ed.2d as suit, question whether the “first tor’s sought dispute ‘the to be ad- ensure challenged alleges plaintiff that judicated presented in an ad- will be fact, injury in him caused action has versary in a form histori- context and 152, Id. 90 at or otherwise.” economic judicial cally capable res- viewed party Second, where a 829.18 S.Ct. at 83, Cohen, Flast 392 U.S. olution.’ v. actions, regulatory challenges he will 1942, 101, L.Ed.2d 947.” 88 S.Ct. 20 arguably standing if to sue he have 732, at 1364. at 92 S.Ct. 405 U.S. protected zone of interests within the Stewart, speaking for ma- Justice 155-156, 90 827. S.Ct. at the statute. Id. Processing jority, that stated Data met, plaintiff will If these two tests are existed under Barlow held judicial review seek “alleged plaintiffs the A.P.A. where the only if administrative determination an challenged had caused action Congress specifically forbidden has not fact,’ ‘injury in al- them where the 156-158, S.Ct. at 90 such review. Id. leged ‘arguably injury was to an interest Barlow reinforced restated 827. protect- zone of within the interests 164-165, 90 S.Ct. tests. 397 at U.S. these regulated’ ed statutes 832.19 agencies violated.” were claimed to have 733, Id. 92 S.Ct. at 1365. at (The Per- Sierra Morton Club v. Requirement) sonal Stake “injury in clear that fact” It yet 727, injury, it must Morton, need not bе economic In Sierra v. 405 U.S. Club injury plaintiff 1361, suffered 92 L.Ed.2d 636 S.Ct. 31 public large. at and not See pri- at id. considered whether a [may in First values stake Amendment in the ad mination of the law of * * give standing be] sufficient it has field as evolved ministrative law 154, 830, citing See, period. g., 90 S.Ct. at 397 U.S. e. Har over an extesnive Kentucky Co., v. Hudson Preservation Conf. Scenic v. Utilities 890 U.S. din 1965) ; 608, (2d FPC, ; (1967) Cir. 1, 651, 354 F.2d 616 L.Ed.2d 787 88 19 S.Ct. Station, of United of Communication Office Radio 309 v. Sanders Bros. FCC U.S.App. FCC, 693, 642, v. 123 470, of Christ Church 60 S.Ct. L.Ed. U.S. 994, A, 328, 1000-1006 (1940) ; 359 F.2d Power Co. v. TV D.C. Tennessee Abington Tp., (1966) ; 118, 366, School District 83 L.Ed. 543 306 U.S. 59 S.Ct. Schempp, supra. Chicago Atchison, (1939). also, v. Pa. See v. Co., supra. T. & R. S. F. also, Company Investment Institute See 1091, Camp, 617, injury recognized 401 U.S. 91 S.Ct. 18. The Court “ (1971) Tours, ; reflecting Arnold Inc. ‘aes- L.Ed.2d 367 non-economic interests 158, 45, Camp, conservational, thetic, 91 S.Ct. recreational’ * * * “spiritual as well as a L.Ed.2d 179 values” Only party restricting employment law 1365.20 after of aliens. standing may However, personal plaintiff his establishes there was an alien litigate affecting public employee, asserting rights in issues Equal 92 S.Ct. Protection terest. Id. Clause. Negro specific per Caucasian sued a policy underpinning the reasons contract; formance of a real-estate holding, expressed by

Sierra Club Negro asserted local ordinance restrict decision, majority indicate that Su- Negro residency; and the Caucasian willing preme yet is not to allow permitted challenge validity challenge “any ex- individual citizen” to Warley, Buchanan ordinance. congressional ecutive or action. 62 L.Ed. 149 (1917); Mr. Justice went accord, Stewart on to state: Jackson, Barrows L.Ed. requirement seeking party “The that a Society And in Pierce v. allege showing review must facts Sisters, L. adversely he is himself does affected (1925), private parochial Ed. ‍‌‌​‌‌​‌‌​​‌‌​‌‌‌​‌‌​​​‌‌​‌​​​​‌​‌‌‌​​​‌‌​‌​‌‌‌‌​‍1070 ju- executive insulate action argue schools were allowed to that a state review, prevent dicial nor does it rights parents statute violated the public being protected interests from guardians because the schools through judicial process. It does rights directly property had themselves rough attempt serve as at least a to by affected the statute. put the decision to whether review as sought will be in the hands of those 288, TVA, 297 U.S. In Ashwander v. who have direct stake in the out- 466, (1936), a 80 688 56 S.Ct. L.Ed. 740, come.” Id. at 92 S.Ct. 1368. private power preferred stockholder of a (Footnote omitted.) company company prevent the sued to entering the a contract with into importance Because of the environ- ground on the that the TVA TVA quality, mental Mr. Blackmun Justice Although Supreme the unconstitutional. exception require- would an this make to case, merits of reached the Court 741, (Dissent- ment. Id. at 92 S.Ct. 1369 joined Brandéis, Justices Justice ing opinion). Stone, and Cardozo dissented Roberts catalog The above does authorities ground not have on Ashwander did not exhaust in list cases standing since had not demonstrated he example, issue. an For company he sus that or would either his long ago Supreme 1900 in- And tain the contract. loss because of only parties sisted that with an situation, interest later, years a similar three in in the land could maintain an action bot- majority Supreme held tomed on Tyler title to the land. See plaintiff that did not have Judges Registration, of the Court of constitutionality 179 to attack the 405, 206, U.S. 21 S.Ct. 45 L.Ed. 252. no that because it loss TVA suffered Standing requirements somewhat were did have could be remedied since it Raich, 33, relaxed in Truax v. right 239 competition. be free of Ten 7, 60 L.Ed. 131 TVA, to allow nessee Electric 306 Power Co. employee employer’s an to assert 118, 366, his 83 L.Ed. right (1939).21 to be free of an unconstitutional complaint Constitution, 20. The dismissal of the was af- created or law firmed because the Sierra Club had failed then for a court to reach the merits of allege controversy it either or its members be would for it render directly change advisory opinion. would be affected an He concludes that subject. in use especially to which the land would be be in would true tax- payer ques- suit where the statute 21. particular impact Professor Bickel advances ration- tion has on the plaintiff taxpayer. Bickel, alization that if Danger- suffers no A. The Least injury either to a material or one ous Branch 121 Court, Congressional pay term, past unconstitutional This Tatum, 1, 92 S.Ct. raise the Postal Revenue effected in Laird v. deciding Salary and Federal Act of 2 U.S.C. L.Ed.2d complaint 351-361 dismiss- a citi- The Court §§ not to entertain grounds. complaint ed the on three regarding surveillance claimed zen First, sought appropriation en- authorities, Army stated: joined Flast did arise as in fully decisions cases “The these I, I, Article Section but rather Article governmental recognize action I, Second, Section Section Article subject chal- constitutional qualify pro- as a “will Constitutional lenge though indi- an has even restricting taxing spend- vision First exercise of rect effect * * power F.Supp. at time, rights. the same Amendment At Third, “pos- did not however, in no these decisions necessary personal sess stake principle way the ‘established eroded controversy outcome of this and there- private to entitle a individual lacks fore to maintain this ac- power judicial deter- invoke the (footnoteomitted). Id. tion.” legis- validity mine executive Stop Reservists he Committee War v. action must show lative Laird, F.Supp. (D.D.C.1971), immediately sustained, or is injury opposite plain danger sustaining, an reached result.22 The a direct tiffs, . .’ the Committee and re as the result action individual of that . servists, sought injunction ordering Levitt, parte Ex (1937).” steps executive to “take will L.Ed. eliminate office inconsistent U.S. at

the constitutional mandate” of Article 2, forbidding 6, clause Section “Mem III. LOWER COURT CASES holding “any bers of either House” from ON STANDING Authority Office under civil ap- are There recent court some Specifically, United States.” al which, peals district court decisions and leged Representa Senators 117 and although upon binding us, not some shed tives held commissions in the various Nixon, light problem. In on the Velvel v. military reserves, contrary to the Con (10th 1969), 236 Cir. a tax- F.2d plaintiffs stitution. court The held that payer-citizen a declaration that sued for standing reservists, lacked they as since the Vietnam War was unconstitutional prove any were injury, unable to direct enjoining and order further taxpayers, as and since were not American involvement Vietnam. The suing to enforce a on limitation the tax district court dismissed the action and ing spending power Congress. appeals affirmed, holding Judge Nevertheless, Gesell found that plaintiff not had demonstrated plaintiffs standing did have to sue as requisite personal out- stake citizens several (1) reasons: come. The crux of the decision was that po- Constitution was addressed “to the inapplicable plain- Flast was because the tential for undue rather than influence challenging congressional tiff a 840; realization,” F.Supp. to its expenditure under Article Section (2) sought the Constitutional clause to applicable, and that even if Flast were “precise be self-operative enforced was specific no constitutional limitation had provision,” id.; (3) the Constitution in- been violated. protect tended to the interest shared Kennedy, F.Supp. maintaining all independence Richardson citizens in among (W.D.Pa.1970) (three-judge court), government, branches of id. 341; aff’d, (4) 27 L. the adverse interests challenged parties Ed.2d 800 as left no doubt to ex- presently pending appeal. 22. The order of the district court is arose, controversy,” inconsistency id. their with “case or istence of regard if to important their theoretical basis.25 Nev Also the court was that ertheless, guidelines judicial helpful plaintiffs do some these could not obtain emerge review, practical “then matter from the mass of decisions. Id.23 one can.” determining The rule in threshold standing litigate party standing to attack is that of a citizen raising per constitutionality thе Vietnam the issue have been must sonally directly injured re found exist in another or threaten War was Laird, F.Supp. injury by ed with immediate violation cent case. Atlee statutory (E.D.Pa.1972). dis In Atlee the de constitutional signed protect g., standing party. See, found that trict court e. Tatum, precluded specific Laird v. test of Flast was warmaking (1972); clause was L.Ed.2d Sierra because supra; “specific Morton, limitation the manner Club v. Association Congress Organizations expendi Processing could make Data Service which supra; supra. However, Camp, Camp, find tures.” the court did Barlow standing under tests the more general subject element, however, This Processing Service, Flast, Data exceptions Thus, certain or limitations. alleged plaintiffs Barlow in that the had standing litigate questions concern personal injury resulting from economic might the Establishment Clause inflation and recession caused injury.26 found in the absence of direct spending. war found The court also g., Abington See e. District School non-eeonomic as because Township, Schempp, supra; Mc Pa. v. pects war, viz., of human toll Maryland, supra. slight Gowan v. And life, safety personal the threat injury may suffice to the test meet security citizens, of all rights par where other constitutional diversion of available funds from domes importance amount are at stake. See tic needs to war effort.24 supra; Carr, Baker v. Sierra Club v. Morton, supra (Blackmun, J., dissent IV. ANALYSIS OF DECISIONS ing) ; cf., supra. Cohen, Flast v. principles all be distilled from many dealing cases appar Another factor which becomes easy do lead to the requirements formulation of an ent is guidelines by standing may set of party asserting eased where the determined, indeed, be and Justice constitutional ais in a Mr. defendant Douglas’ Processing comment in Data criminal or civil action. See Griswold Service, quoted supra, supra; Connecticut, 397 U.S. at v. v. NAACP Ala bama, particularly apt. supra. is ap The rationale for this prоblem compounded, only by is proach three-fold; appears not first, to be a various injured contexts in which the cases defendant has been or threaten- significance recognized It not is without some 25. Of course it be must judge grant standing properly district in declined to doctrine de- a junctive granted only by relief and de a vice which courts avoid constitutional claratory judgment. knowledge, unnecessary litigation To our when deem it declaratory inappropriate underlying relief has never im been or to decide the plemented, prob question. Thus, which one of raises can inconsistencies type explained by part lems in that confronts a court this be in the fact that each standing a by case. decision colored un- perhaps premises. stated and undefinable Although Judge Joseph Chief Lord did analyze involving personal injury requirement the various cases 26. The is also attacking allegedly involving suits citizens un- relaxed in most cases free action, speech expression. constitutional did indicate that or See Note The Void alleging personal Vagueness Atlee was jury. in- economic for in Doctrine Court, 109 U.Pa.L.Rev. 102-103 Justices Stewart impact Flast Cohen v. injury because ed with rep Frothingham Mellon second, Fortas, him; then v. against proceedings predicating bar to court, resents an involuntarily absolute in defendant “tax standing plaintiff’s litigation status discouraging policy of thus allegations expendi payer,” preventing him absent furthered not be will Establishment third, tures violation right; asserting the notwithstanding Clause, somewhat liability impose court to convict language employed or broader statute of an unconstitutional virtue affirmatively Flast. to commit action would be act. an unconstitutional Thus, inquiry nar- our here rowly upon “citi- where focused cases Next, designed interfere with suits standing This search Government, zen” was asserted. orderly operation of the by elimi- can further circumscribed regard to taxation particularly with inapposite nating from consideration as entertained appropriations, not be will brought the Administrative cases narrowly-defined except circumstanc Act, Congress has au- Procedure where Cohen, supra; Froth Flast es. See ingham Mellon, v. suits,27 Lockhart, thorized or at least forbidden supra; W. con- was eases supra. Choper 68, Y. Kamisar & J. upon defendants, noted ferred where as Closely principle is the related this apply. above factors other citizen who suffers admonition that equally By elimination, process there all other will with citizens is left deal- for consideration cases generalized grievances those be heard raise ing of “citizens” who about Government. conduct for the sued Government supra; official Morton, Flast See Sierra Club v. right per- vindication of a constitutional Cohen, supra; supra; Carr, Baker v. fall sonal “citizen.” cases to such These supra; Frothingham parte Levitt, Ex Mellon, supra; categories. some, into In two Su- Hughes, su Fairchild v. preme despite Court reached merits pra. tangi- direct, substantial, the lack exception One found an district personal injury. others, In ble stand- precept to this the constitutional where barrier was breached after provision addressed to the asserted was he, personal- demonstrated that potential abuse, provision and the ly, actually had been some harmed in precise self-operative. Reserv- regard. Laird, Stop ists Committee to War v. supra. Representative group of of the first cases v. Carr Dis- are Baker and School Finally, although important not de- Abington Township, trict of Pa. v. deciding terminative standing factor whether Schempp. Carr, Baker v. the basis availability is the oth- exists that the constitutional judicial er modes of See review. NAACP right integrity of asserted—the Alabama, supra; Barrows v. Jack- process electoral considered оf —was son, supra; Society Pierce v. paramount importance depriva- that the Sisters, supra; Warley, su- Buchanan v. right by voting tion of the dilution of pra; supra. Truax see Raich, But v. strength through unequal apportionment Colgrove Green, supra. injury per- was deemed a to sufficient quest standing In adjudicated. the mit liti- the this merits to be Simi- gation, analysis larly, major another the the Court consideration that led the Supreme Schempp by-pass standing prob- Court cases to undertaken. the accepts high placed upon If one the limitations into lem value read was Although grieved by agency Richardson claimed action within entitle- * * meaning A.P.A., ment to of a relevant statute relief this merit, claim since the § without Act U.S.C. persons “ag- standing upon confers rights encompassed by the Establish- V. APPLICATION PRINCIPLES OF ment Clause. TO THE PRESENT CASE case, application In this actual representative cat- of the second Cases precepts deduced from the Su- various egory plaintiff or failed showed —where preme parallels analysis Court cases regard Fair- harm in some show —are above, undertaken and the two same Hughes, Levitt, parte Ex Chi- child v. questions still be must resolved. cago Co., Atchison, Laird T. & S.F.R. begin proposition We with the Tatum, Lodge Moose No. Richardson plaintiff, is a not a defend- Court In Fairchild stated Irvis. ant, conferring and therefore cases standing chal- citizen had no that a standing upon defendants are somewhat lenge adoption of the Nineteenth inapplicable. expenditures Because are not dem- Amendment because he could attacked, Frothingham Flast and would any particular injury he would onstrate appear barrier, create inso- least equally shared suffer that would standing far as Richardson’s tax- as a by that a Levitt citizen all citizens. held payer is Third, concerned. the Admin- challenge standing to did not have appointment istrative Procedure Act cases are not and confirmation a Su- controlling challenged because the execu- Atchison, preme And Justice. compliance tive action in full awith permitted Parmelee to intervene be- Congressional enactment and there have by economic harm cause of the suffered procedural been no administrative ir- attacking Tatum, citizens surveil- it. regularities pleaded. plain- Finally, the Army techniques employed lance alleged tiff Congression- has not that the held not were to have because al and Executive action at issue has vio- no indication that their First there was rights lated First Amendment rights previously assigned other or rights chilled Amendment were position hand, practices. Army’s the other On paramount importance. permitted par- litigate is- ties least some of the Accordingly, ques- we are left with the plaintiff Irvis sues in dem- because importance tions of the relative personal impact injury. onstrated right asserted constitutional na- example Irvis is an exeellant of this injury plain- ture suffered dichotomy. There, held that the Court tiff. plaintiff did not have Background 1. Historical of Article litigate questions involving the member- I, Section Clause ship Lodge qualifications of Moose attempted because he had not even be- regarding The debates Article Sec- member, come a that he did provision upon tion Clause relied surrounding to raise the issues here, plaintiff occurred dur- Lodge’s guest policies since he Convention, the Constitutional shed guest. refused service while a light importance on the relative of that Thus, through case-by- authority stipulation. the use de- An on the evaluation, appear Farrand, case bates, two criteria Max indicates that right began be critical. Is the constitutional discussion with a statement paramount importance George of such asserted Mason that “he did not conceive allege so receipts as to obviate expenditures the nеed to and that the prove direct, personal ought impact public money ever to be concealed. distinguished people, individualized affirmed, an The had a impact by every expenditures money.” shared member of the know of their body politic? not, Farrand, If does the The Records of the Federal allege personal injury impact a direct (Rev. Convention of ed. at caused 1966). disagreed the violation of the asserted James Madison right? constitutional proposal report- with Mason’s of fixed paramount to that it does rise stating reports not the based ing that period, provisions, of other constitutional stature periods: short in the Bill as those contained connected so full and not be “would many Rights. History records that thorough necessary be as would comprehension early New the colonists came to the detection them and per- upon the to avoid inhibitions World giving them But errors. religious freedom which attend the sonal opportuni- an reporting officials] [the Indeed, of a state church. establishment time to ty publishing them from Consti- there is some whether the doubt easy might con- time, found be as ratified at all would have been tution full and venient, would be more promises of the draftsmen without the satisfactory public, and would to the pro- it soon amended to that would be sufficiently frequent.” Id. be rights. certain basic It is vide for King objected account- to a full Rufus clause coincidence that first ground “im- it would on the that be prohibits estab- Amendment First “every practicable” report minute to religion. lishment of national shilling.” 2 Farrand 618.28 right The his of a citizen to have vote argument duty report that to equally count with those of other citi- accounting public is runs to the based system is also basic to zens our Gov- comparison I, on a of Article Section prin- The “one-man-one-vote” ernment. II, Clause 7 with Article Section 3. very ciple con- is the embodiment language I, Section Clаuse Article cept participatory democracy in of a regular that “a mandates Statement equal which each citizen is considered the * * * published Account shall every other. * * * II, Article whereas Section right Accordingly, the constitutional requires that the President “shall from presently plaintiff asserted would Congress- give to time to infor time be, appear to context least * * mation of Thus, ”. of the Union State point in the de- of this case impact of the distinction be history, pre- velopment of our of such published” tween and “shall “shall importance the traditional eminent give Congress” from to time to time requirements of should be Furthermore, apparent. Ar becomes waived. Confederation, many ticles of drafted persons Constitution, of the same as the injury. 3. The nature of required only Congress inform right appear asserted Since would indebtedness, opposed of its to states paramount one, to be not it is neces requirement publication re sary determine whether ceipt expenditures public of all mon personal injury suffered sufficient ey. Compare I, 9, cl. U.S.Const. Art. § litigate underlying him enable Confederation, 7 with Articles Art. Although issue. the debates in Con IX, Congress (requiring to account ¶ might suggest stitutional Convention * * * money to the states for “sums of I, conferred Article emitted”). borrowed or 9, Clause 7 citizen Section runs each I, Evaluation of Article Section individually, they also demonstrate respect Clause 7 with other con- imposes duty report Clause provisions. stitutional generally. public Because Richard Nevertheless, denigrating allege without did not and ei son could importance I, of Article Section ther he alone or some class identifiable appear injury Clause to conclude would fair of citizens has suffered importance accounting 28. The is em- Clause each Section allows phasized I, Congress except pub- when article Section Clause Hоuse of 7, requiring receipts journal disclosure of all in its Parts lication “such expenditures, compared Judgment Secrecy.” require with Article in their else, interpreted, everyone nec- by can be when the conclu stitution suffered practice of essary, has appear to “he to insure that follow that sion would general government comports of all merely common to with the ideals interest governed. system public,” works best The of therefore members provides litigate a solid future ad- basis for not endowed with brought justments changes when are this matter. slowly response need for to real about recognize expressed I that if the view change. adopted by ma to be herein were perceive jority, it would be difficult de- did not The rule self-restraint litigate a citizen how would be able velop suddenly, and it is manifesta- provision the constitutional asserted judges. tion of the timorousness Nevertheless, Richardson. the cumula Rather, approach it reflects consti- many denying tive effect cases litigation designed tutional to avoid divi- objection in the of this face among sion the three of Gov- branches persuasive authority that this considera problem- ernment in their task of social by itself, tion is not sufficient within solving. the Constitution was Before suit, of this to confer contours stand Hamilton, adopted, Alexander in the 78th ing upon plaintiff.30 See, g., e. Froth judiciary Federalist, recognized that the ingham Mellon, supra; v. Fairchild v. power was the one branch to en- without supra; Levitt, Hughes, supra; parte Ex branches, force its will on the other Miller, supra (Frankfurter, Coleman v. ultimately depend upon that it “must J., concurring). aid of executive ef- arm even for the Indeed, to create a deviation ficacy judgments.” re- its The most impairment basis would risk of a vital spected jurists throughout history our disintegrating rule erosion decision-making have realized that rash particular exceptions. disregard the courts could lеad judiciary as a decision-maker. VI. CONCLUSION Marbury Madison, From 1 Cranch years, recent 2 L.Ed. O’Brien opportunities has had expand several Brown, concept standing, declined (1972), major constitutional L.Ed.2d 1 to do I so. have serious reservations threatening government important crises ought whether step we to take this in the concepts ap- have been averted Congressional absence authorization plication judicial techniques of discreet significant or in the of some absence de- of self-restraint. exercise When courts velopment in clearly our national life in- forbearance, they act, par- to use the dicating necessity for such move- age, lance our electronic cir- filter ment. cuits, dampening political smoothing oscillations, amplifiers, rather than Constitution has been likened designed magnifying proportion. them device out It adapted “to be to the smoothing process is this various crises has en- human affairs.” Mc us, long run, Maryland, abled Wheat, 316, Culloch v. to maintain our L.Ed. 579 democratic ideals a troubled Constitutional liti gation is the vehicle which the Con- world. parte Levitt, supra. 29. Ex 717; nison, 24 How. L.Ed. duty faithfully to ensure laws are impact impediment judicially of this compelled, is sub be executed stantially 475; blunted Mississippi Johnson, when is considered 4 Wall. there are a guaranty republican number of constitutional of a violations provisions litigated government cannot form is not the states example, duty other reasons. For courts, States assailable Pacific prisoner of a state to Telephone Telegraph Oregon, extradite a cannot & Co. judicially enforced, Kentucky v. Den 56 L.Ed. 377. But to allow tool of constitutional litigation employed to be at the behest every disgruntled dull citizen would working edge its and weaken its effec- is for that the

tiveness. It this reason adopted a rule of Court

“self-restraint,” and rea- for this quick

son that should not we to aban- precept. don that

Accordingly, judg- I would affirm the dismissing

ment of the district court

action. Judges join ALDISERT HUNTER opinion.

in this

Billy pro Shapley, se. R. Green, Jr., pro se. Herbert

Billy SHAPLEY, Petitioner-Appellant, R. GEWIN, AINSWORTH Before GREEN, Attorney Law, Jr.,

Herbert Judges. SIMPSON, Circuit Respondent-Appellee. No. 72-2248 PER CURIAM: Summary Calendar.* pris- appeal state Texas This Appeals, United States Court of District an order oner from Fifth Circuit. complaint for lack his dismissed Sept. 5, 1972. jurisdiction. affirm. We sought this ac Appellant maintain ap attorney against who tion represent pointed state crimi appeal a state on direct him alleges deprivation He nal conviction. rights of coun failure in the of his civil records certain provide him with sel to him. The properly represent and to correctly dismissed District De jurisdiction. complaint for lack obviously not amenable fendant 1981, 1983. under U.S.C. §§ suit Affirmed. Cir., York, Casualty of New Enterprises,

* Co. Cir.; Citizens Inc. see Isbell Rule I. Part. 431 F.2d notes Professor shall a Controversies —to Berger States; was frank to admit that the or more evi- between two —between State; supporting “scanty” dence view is of another his a State and Citizens States, policy and that there of different well be con- Citizens —between standing justify siderations which State —between of the same Citizens claiming dif- doctrine. Lands Grants State, States, and or between ferent Although and “con the words “cases” foreign thereof, the Citizens judicial phrase “of troversies” States, Subjects.” or Citizens (to characteriza nature” use Madison’s III, reading jurisdiction A careful of Article Sec tion) fed delimit the courts, they tion 2 that the existence of case nor reveals not define are eral do controversy mandatory standing. they synonymous before Til jurisdiction, Ullman, 44, 46, federal court has 63 S. eston concept (1943), not mentioned Ct. 87 L.Ed 603 Nevertheless, suggested all. it Supreme has been stated that would jurisdictional ais doctrine record shows determine “whether the with a basis in genuine Article III.2 To deter case or con existence the troversy” standing requirement mine appeal whether “the must be because language III, subsumed in ground appellant of Article on the dismissed helpful it is litigate examine state has no the consti law at the question.” Willing time the Constitution was rat tutional And in Chicago Ass’n, ified. Auditorium 289, 48 S.Ct. 72 L.Ed. 880 Berger analyzed Professor Raoul concluded ‍‌‌​‌‌​‌‌​​‌‌​‌‌‌​‌‌​​​‌‌​‌​​​​‌​‌‌‌​​​‌‌​‌​‌‌‌‌​‍English extant and American law

Case Details

Case Name: William B. Richardson v. United States of America

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 20, 1972

Citation: 465 F.2d 844

Docket Number: 19277

Court Abbreviation: 3rd Cir.