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RICHARDSON v. KENNEDY

June 15, 1970

William B. RICHARDSON, on behalf of himself and others similarly situated, Plaintiff,
v.
David M. KENNEDY, Secretary of the Treasury, United States Government, Defendant


Aldisert, Circuit Judge, Marsh, Chief District Judge, and Miller, District Judge.


The opinion of the court was delivered by: ALDISERT

ALDISERT, Circuit Judge.

 Before us is the government's motion to dismiss plaintiff's complaint attacking the Congressional pay raise effected by the "Postal Revenue and Federal Salary Act of 1967," *fn1" and seeking both declaratory and injunctive relief. A preliminary phase of this case has already been before the Court of Appeals which dismissed an appeal from an interlocutory decree denying a request for a temporary restraining order. Richardson v. Kennedy, 418 F.2d 235 (3 Cir. 1969). This three-judge district court has been properly convened under the provisions of 28 U.S.C. §§ 2282 and 2284.

 Suing as a taxpayer and citizen, plaintiff contends that the provisions of the Act which set forth a procedure to establish new rates of Congressional compensation represent an unconstitutional delegation of power. This procedure provides for the establishment of a commission to review salaries of Congressmen and other government officials, and to report its findings to the President. The President is then authorized to submit his recommendations for salaries to the Congress, and these recommendations shall become effective unless Congress chooses to alter or modify them. *fn2" Plaintiff insists that this procedure is inconsistent with the mandate of Article I, § 6, clause 1, providing that "Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States." He argues that "ascertained by Law" means that Congress must, in the first instance, pass specific legislation establishing the changes in salary, and that only then may the President officially influence the legislation by exercising, or declining to exercise, his veto power pursuant to Article I, § 7, clause 2. *fn3"

 Although by brief and argument the government evidenced a willingness to meet the merits of plaintiff's contention, it nevertheless interposed an initial objection to plaintiff's standing to maintain the action. Because the interest sought to be protected here is solely that of a taxpayer and citizen, we are met with the problems of this "complicated specialty of federal jurisdiction" *fn4" most recently discussed by the Supreme Court in Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968).

 Until the Flast case, Frothingham v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923) stood as an apparent constitutional bar to the maintenance of taxpayer actions. Together with the companion case of Massachusetts v. Mellon, Mrs. Frothingham attacked the federal Maternity Act of 1921 principally as "a usurption of power not granted to Congress by the Constitution -- an attempted exercise of the power of local self-government reserved to the states by the Tenth Amendment" and as a taking of property "under the guise of taxation, without due process of law" in violation of the fifth amendment. Both cases were "disposed of for want of jurisdiction." Id. at 480, 43 S. Ct. at 598.

 The Court described Mrs. Frothingham's challenge to the statute as "essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect to the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned." Id. at 487, 43 S. Ct. at 601. It also reinforced the doctrine of separation of powers among the legislative, executive, and judicial branches of government by emphasizing that the courts have no inherent power to review and annul the acts of Congress on the ground that they are unconstitutional:

 
That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. * * * The party who invokes the power must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.

 Id. at 488, *fn5" 43 S. Ct. at 601.

 Although standing has been a source of continuing confusion in the federal courts -- the principles being predictably easier to announce than to apply, even for "the expert feel of lawyers" *fn6" -- discernable throughout the cases is the basic proposition that the plaintiff must demonstrate the existence or threat of injury to himself. Thus in Doremus v. Board of Educ., 342 U.S. 429, 434, 72 S. Ct. 394, 96 L. Ed. 475 (1952), plaintiff had no standing as a taxpayer to attack the constitutionality of Bible reading in public schools, for the suit challenged no state expenditure, and hence was not "a good-faith pocketbook action" but an attempt to litigate "a religious difference." In School District of Abington Township v. Schempp, 374 U.S. 203, 224, 83 S. Ct. 1560, 1572, 10 L. Ed. 2d 844 n. 2 (1963), however, the Court found it sufficient to observe in footnote that the parties were "school children and their parents, who are directly affected by the laws and practices [school prayers] against which their complaints are directed. These interests surely suffice to give the parties standing to complain."

 Perhaps the most concise and incisive inquiry into the general question of standing was posed by Mr. Justice Brennan in Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962): "Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?"

 Not until its decision in Flast v. Cohen, however, did the Supreme Court design a formula to test the presence of the personal stake and interest necessary to confer standing in a federal taxpayer suit. Appellants alleged that expenditures made by HEW pursuant to the Elementary and Secondary Education Act of 1965 "were used to finance the furnishing of instructors and the providing of instructional materials for use in religious and sectarian schools" in contravention of the Establishment and Free Exercise Clauses. The Court stated:

 
The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. * * * Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. ...

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