minimum, a plaintiff must show that he personally has suffered an actual or threatened injury which reasonably can be traced to the challenged conduct of the defendant and would likely be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, 459 U.S. 464, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In this manner does Art. III limit the federal judicial Id. (quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968)). Thus, a court should refrain from ajudicating the constitutionality of an act of a co-equal branch of government unless the claimant has suffered a cognizable injury. Id. 102 S.Ct. at 759. [4] The separation of powers concerns which underlie the concept of standing are particularly acute when plaintiffs are members of Congress. Although "there are no special standards for determining Congressional standing questions," Harrington v. Bush, 553 F.2d 190, 204 (D.C.Cir. 1977) (emphasis deleted), injury-in-fact for a congressional plaintiff "must amount to a disenfranchisement, a complete nullification or withdrawal of a voting opportunity." Goldwater v. Carter, 617 F.2d 697, 702 (D.C.Cir. 1979) (en banc) vacated on other grounds, 44 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (mem). Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir 1981), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1982); Reuss v. Balles, 584 F.2d 461, 467 (D.C.Cir.) cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978); see also Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir. 1974). As the legislative history plainly reflects, plaintiffs had ample opportunity to exercise their voting rights and in fact, save for plaintiff Williams, voted their disapproval of TEFRA at every turn. Plaintiffs fully participated in the legislative process which culminated in the passage of the act they now challenged. They were simply outvoted. The argument that plaintiffs' votes were effectively nullified by the Senate's usurpation of their right to originate revenue raising bills, and the House acquiescence therein, is unpersuasive. To support this contention, plaintiffs rely on Kennedy v. Sampson. In that case, however, the plaintiff had standing because his successful vote had been nullified by the allegedly illegal pocket veto of the President. But where, as in this case, "Congress itself, and not the Executive, renders any individual legislator's vote ineffective, the courts have no role." Goldwater v. Carter, 617 F.2d at 712. See also Korioth v. Briscoe, 523 F.2d 1271, 1278 (5th Cir. 1975) (state legislator denied standing to challenge the validity of a statute passed over his objecting vote); McClure v. Carter, [271] 513 F.Supp. 265, 270 (D.Idaho), aff'd mem. sub nom., McClure v. Reagan, 454 U.S. 1025, 102 S.Ct. 559, 70 L.Ed.2d 469 (1981) ("Certainly no one would contend . . . that the losing senators in any vote should automatically have the right to appeal to a federal court for a determination of the correctness of the result approved by a majority of their colleagues"). [5, 6] In short, plaintiffs speak as a frustrated minority. Unless the institution of Congress itself has suffered injury-in-fact at the hand of the Executive, an individual legislator has no standing to complain of impairment to the effectiveness of his vote. "His injury can only be derivative." Goldwater v. Carter, 617 F.2d at 712. Here, Congress specifically considered and rejected the suggestion of any constitutional infirmities in the enactment of TEFRA, and in fact opposes this lawsuit. Judicial interference into this intra-legislative dispute is constitutionally precluded. [7] Even if plaintiffs' claim of injury to their rights as members of Congress originate bills for raising revenue could be deemed constitutionally sufficient to confer standing, the doctrine of equitable discretion announced by this Circuit in Riegle v. Federal Open Market Committee squarely governs this action and mandates dismissal. 6 In Riegle an individual senator challenged the constitutionality of the section of the Federal Reserve Act which provides for the election of five representatives to the Federal Open Market Committee by the Board of Directors of the Federal Reserve Banks, claiming that the selection of these individuals without submission of their nominations to the Senate deprived him of his constitutional right to advise and consent regarding the appointment of these United States officers. Declining to distinguish between Congressional and private plaintiffs, the court determined that Senator Riegle had standing. Nevertheless, the fundamental constitutional principle of separation of powers required that his action be dismissed. Because suits by Congressmen present "the possibility of thwarting Congress' will by allowing a plaintiff to circumvent the process of democratic decisionmaking," a court should, as a matter of equitable discretion, dismiss a Congressman's action where he "could obtain substantial relief from his fellow legislators through the enactment, repeal, or amendment of a statute." Riegle v. Federal Open Market Committee, 656 F.2d at 881. Application of the Riegle doctrine is especially appropriate where a plaintiff's dispute is not with the executive branch but with his fellow legislators. See Reuss v. Balles, 584 F.2d at 468. In this way a court may avoid intrusion into the internal functioning of the legislative branch. In the instant case, plaintiffs must be relegated to their legislative remedies, despite their previous failures to convince their colleagues of the rightness of their views, and no matter how remote their chances for success in the future. "It would be unwise to permit the federal courts to become a higher legislature where a congressman who has failed to persuade his colleagues can always renew the battle." Riegle v. Federal Open Market Committee, 656 F.2d at 882. [8] Before dismissing an action under the Riegle doctrine a court must also inquire whether "a similar action could be brought by a private plaintiff." Id. Although the Moore plaintiffs refuse to discuss this part of the analysis, and refer to it as "baggage", Moore plaintiff's memorandum in opposition to defendants' motions to dis 412 U.S.C. § 263(a) (1976). 5 U.S. Const. art. II, § 2 ("appointments clause"). See generally, McGowan, Congressmen in Court: The New Plaintiffs, 15 Ga.L.Rev. 241 (1981). miss at 26, plaintiff Paul argues that "[i]n this instance a private plaintiff has no immediate redress." Plaintiff Paul's opposition to defendants' motions to dismiss at 5. Yet, Representative Paul acknowledges that a taxpayer could challenge the constitutionality of TEFRA by filing for a refund [272] after January 1, 1983. Id. Private taxpayer plaintiff's have asserted claims under the origination clause before. See Rainey v. United States, 232 U.S. 310, 34 S.Ct. 429, 58 L.Ed. 617 (1914); Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389 (1911); Miller v. Roberts, 202 U.S. 429, 26 S.Ct. 674, 50 L.Ed. 1090 (1906); Twin City Bank v. Nebeker, 167 U.S. 196, 17 S.Ct. 766, 42 L.Ed. 134 (1897); Bertelson v. White, 65 F.2d 719 (1st Cir.1933); Hubbard v. Lowe, 226 F. 135 (S.D.N.Y.1915), appeal dismissed, 242 U.S. 654, 37 S.Ct. 12, 61 L.Ed. 547 (1916). It is, accordingly, this 16th day of December, 1982. ORDERED, that plaintiffs' motion for summary judgment be and it hereby is denied; and it is FURTHER ORDERED that defendants' motions to dismiss be, and they hereby are, granted, and that these actions stand dismissed. 556 F. Supp. 150 (1983) United States OF AMERICA, AND ANNE M. GORSUCH, PLAINTIFFS V. THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES: THE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION OF THE HOUSE OF REPRESENTATIVES; THE HONORABLE JAMES J. HOWARD, CHAIRMAN OF THE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION OF THE HOUSE OF REPRESENTATIVES; THE SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT OF THE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION OF THE HOUSE OF REPRESENTATIVES; THE HONORABLE ELLIOT J. Levitas, Chairman OF THE SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT OF THE COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION OF THE HOUSE OF REPRESENTATIVES; THE HONORABLE THOMAS P. O'NEILL, SPEAKER OF THE HOUSE OF REPRESENTATIVES; EDMUND L. HENSHAW, JR., THE CLERK OF THE HOUSE OF REPRESENTATIVES; JACK RUSS, SERGEANT AT ARMS OF THE HOUSE OF REPRESENTATIVES, JAMES T. MOLLOY, THE DOORKEEPER OF THE HOUSE OF REPRESENTATIVES, DEFENDANTS Civ. A. No. 82-3583 UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA Feb. 3, 1983 United States and Administrator of Environmental Protection Agency brought action under the Declaratory Judgment Act to determine whether her claim of executive privilege permitted withholding of certain documents from House of Representatives and thereby avoided penalty for contempt of Congress. The District Court, John Lewis Smith, Jr., J., held that exercise of jurisdiction was improper. Under statutory provisions concerning penalties for contempt of Congress, constitutional claims and other objections to congressional investigatory procedures may be raised as defenses in criminal prosecution. 2 U.S.C.A. §§ 192, 194. 2. Constitutional Law 46(1) Courts have duty to avoid unnecessarily deciding constitutional issues. When constitutional disputes arise concerning respective powers of legislative and executive branches, judicial intervention should be delayed until all possibilities for settlement have been exhaust ed. Exercise of jurisdiction under the Declaratory Judgment Act to determine whether the Administrator of Environmental Protection Agency's claim of executive privilege permitted withholding of certain documents from House of Repesentatives, so as to avoid penalty for contempt of Congress was improper since judicial resolution of claim would not become necessary unless Administrator became necessary unless Administrator became defendant in either criminal contempt proceeding or other legal action was taken by Congress. 28 U.S.C.A. § 2201; 2 U.S.C.A. §§ 192, 194. J. Paul McGrath, Asst. Atty. Gen., Richard K. Willard, Deputy Asst. Atty. Gen., Betsy Gray, Lewis K. Wise, Andrew M. Wolfe, Dept. of Justice, Civ. Div., Washington, D.C., for plaintiffs. Stanley M. Brand, Gen. Counsel to the Clerk, Steven R. Ross, Deputy Counsel to the Clerk, Michael L. Murray, Asst. Counsel to the Clerk, Washington, D.C., for defendants. MEMORANDUM JOHN LEWIS SMITH, Jr., District Judge. The United States of America and Anne M. Gorsuch, in her official capacity as Ad-[151]ministrator of the Environmental Protection Agency (EPA), bring this action under the Declaratory Judgment Act, 28 U.S.C. § 2201. Plaintiffs ask the Court to declare that Administrator Gorsuch acted lawfully in refusing to release certain documents to a congressional subcommittee. Defendants in the action are: The House of Representatives of the United States; The Committee on Public Works and Transportation; The Honorable James J. Howard, Chairman of the Committee on Public Works and Transportation; The Subcommittee on Investigations and Oversight of the Committee on Public Works and Transportation; The Honorable Elliott J. Levitas, Chairman of the Subcommittee on Investigations and Oversight of the Committee on Public Works and Transportation; The Honorable Thomas P. O'Neill, Speaker of the House of Representatives; Edmund L. Henshaw, Jr., Clerk of the House of Representatives; Jack Russ, Sergeant at Arms of the House of Representatives; and James T. Molloy, Doorkeeper of the House of Representatives. The individual defendants are sued only in their official capacities. The case is now before the Court on defendants' motion to dismiss. The essential facts are undisputed. On November 22, 1982, a subpoena was served upon Anne Gorsuch by the Subcommittee on Investigations and Oversight (the Subcommittee) of the Committee on Public Works and Transportation (the Committee). The subpoena required Administrator Gorsuch to appear before the Subcommittee on December 2, 1982, and to produce at that time the following documents: all books, records, correspondence, memorandums, papers, |