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699 F.2d 1166 (1983)

GUY VANDER JAGT, ET AL., APPELLANTS

V.

THOMAS P. O'NEILL, JR., ET AL.

No. 81-2150

United States Court of Appeals, District of Columbia Circuit

Argued March 19, 1982

Judgment Issued Dec. 23, 1982

Opinions Issued Feb. 4, 1983 Fourteen Republican members of the House of Representatives filed suit against the House Democratic leadership alleging that the Democrats systematically discriminated against them by providing them with fewer seats on House committees and subcommittees than they were proportionally owed. On defendants' motion to dismiss, the United States District Court for the District of Columbia, 524 F.Supp. 519, Louis F. Oberdorfer, J., dismissed the complaint, and plaintiffs appealed. The Court of Appeals, James F. Gordon, Senior District Judge, sitting by designation, held that: (1) plaintiffs had standing to bring their complaint, and (2) the Court of Appeals would exercise its remedial discretion to withhold equitable and declaratory relief in order to dismiss the action, since the separation-of-powers concerns were sufficient to conclude that it should not adjudicate the controversy.

Affirmed.

Bork, Circuit Judge, concurred and filed opinion. 1. Constitutional Law Om 42.3(3)

Fourteen Republican members of the House of Representatives had standing to bring their action against the House Democratic leadership alleging that the Democrats systematically discriminated against them by providing them with fewer seats on House committees and subcommittees than they were proportionally owed where the Republicans alleged that as legislators and as voters their political power was diluted, they raised additional issues about First Amendment rights to free association and free speech, and raised a plausible claim that Democrats added the additional requirement of majority party membership to the qualifications for full House membership. U.S.C.A. Const.Amend. 1. 2. Constitutional Law Ow70.1(12)

Article I of the United States Constitution simply means that neither the federal courts nor the executive branch may tell Congress what rules it must adopt, but it does not alter the courts' judicial responsibility to say what rules Congress may not adopt because of constitutional infirmity. U.S.C.A.Const. Art. 1, § 1 et seq. 3. Constitutional Law Ow70.1(12)

Court of Appeals would invoke its remedial discretion to withhold equitable and declaratory relief in order to dismiss action brought by 14 Republican members of the House of Representatives against the House Democratic leadership contending that the Democrats systematically discriminated against them by providing them fewer seats on House committees and subcommittees than they were proportionally owed, since separation-of-powers concerns were sufficient for conclusion that Court of Appeals should not adjudicate the controversy.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 81-01722).

William E. Dannemeyer, Fullerton, Cal., of the bar of the Supreme Court of California by special leave of the Court pro hac vice and James F. Schoener, Birmingham, Mich., for appellants.

Stanley M. Brand, Washington, D.C., Gen. Counsel to the Clerk, U.S. House of Representatives with whom Steven R. Ross, Washington, D.C., Asst. Counsel to the Clerk, U.S. House of Representatives was on brief, for appellees.

Before BORK, Circuit Judge, ROBB, Senior Circuit Judge and JAMES F. GOR[1167 ]DON,* Senior District Judge for the Western District of Kentucky.

Opinion for the Court Filed by Senior District Judge JAMES F. GORDON.

Concurring opinion filed by Circuit Judge BORK.
JAMES F. GORDON, Senior District Judge:

Fourteen Republican Members of the House of Representatives have sued the House Democratic leadership, the Democratic Steering and Policy Committee, and the Democratic Caucus.1 The Republicans contend that the Democrats systematically discriminated against them by providing them with fewer seats on House committees and subcommittees than they are proportionally owed. The district court dismissed the complaint, Vander Jagt v. O'Neill, 524 F.Supp. 519 (D.D.C.1981), holding that the appellants' suit was barred by the Speech or Debate Clause and by the provision of the Constitution which confers upon the House the power “to determine the Rules of its Proceedings." Art. I, § 5, cl. 2. We affirm on somewhat different grounds.

Appellants claim that the Democrats diluted the power and influence of Republican House members, and thus the political rights of voters in Republican congressional districts as well. This happened after members of the Democratic Caucus met in the weeks before the opening of the 97th Congress and determined the number of committee seats to be allocated to Democrats and Republicans. That allocation took effect when the House convened on January 5, 1981, and passed House Resolution 44 on a straightparty vote. Even though Republicans constituted 44.14% of the House and Democrats 55.86%, Republicans were given only 40% of the seats on the Budget Committee and the Appropriations Committee, only 34.29% of the Ways and Means Committee seats, and only 31.25% of the Rules Committee seats.

The Honorable James F. Gordon, United States District Court for the Western District of Kentucky, sitting by designation pursuant to 28 U.S.C. $ 294(d).

1 The Republicans sue as members of the House, as members of various committees of the House, and as individual voters. They also sue as representatives of three classes: (1) the class of all Republican members of the House, (2) the class of all members of certain committees of the House, and (3) the class of all voters in congressional districts represented by Republican members. Appellees are Thomas P. O'Neill, Jr., the Speaker of the House; Jim Wright, the Majority Leader; Gillis W. Long, Chairman of the Democratic Caucus; the Democratic Steering and Policy Committee of the House of Representatives; and, the Democratic Caucus, which consists of all Democratic members of the House of Representatives. Appellees O'Neill, Wright, and Long are sued in their various capacities as House members and Democratic leaders.

The Republicans say this arrangement deprived them of Fifth Amendment due process and equal protection rights, as well as First Amendment rights of association and free speech. Also the Republicans say that the Democrats violated Article I by adding the additional requirement of majority party membership to the qualifications for full House membership. Finally, the Republicans say that voters in congressional districts represented by Republicans were deprived of rights to due process and equal protection, rights to freedom of association, and rights to petition the government for redress of grievances.

In evaluating whether we have jurisdiction and also whether we should provide relief, a variety of doctrines have been presented that would lead to dismissal of this complaint. The district court held that jurisdiction was "ousted" by the Speech or Debate Clause and by the Article I provision allowing the House “to determine the Rules of its Proceedings." 2 Alternatively, our distinguished colleague, Judge Bork, urges dismissal because the Republicans lack standing. Finally, we have considered whether this suit should be dismissed fol[1168]lowing the approach taken in Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir. 1981). There a senator was challenging the constitutionality of certain procedures established by the Federal Reserve Act. Judge Robb, writing in Riegle for a unanimous panel, rejected the arguments that the senator lacked standing, or that the case should be dismissed as nonjusticiable under the political question or ripeness doctrines. Instead, the court simply declined to grant the senator relief because it found that judicial action would improvidently interfere with the legislative process. Riegle relied heavily on a recent article by former Chief Judge Carl McGowan, which analyzed suits brought by congressional plaintiffs and concluded "that the best way to translate those (separation-of-powers] concerns into principled decisionmaking is through the discretion of the federal court to grant or to withhold injunctive or declaratory relief." 3

We hold that this case should be dismissed using Riegle's approach of withholding relief where prudential and separation-ofpowers concerns counsel us not to exercise our judicial power. We do not think that the Speech or Debate Clause immunities are necessairly applicable in this context, nor do we think that we lack jurisdiction because of Article I. We also find that appellants do have standing. Because Riegle involved facts that were different from those we face, the following section extend Riegle's analysis to these circumstances.

2 U.S. Const. art. I, $ 5, cl. 2 provides: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.'

3 McGowan, Congressmen in Court: The New Plaintiffs, 15 Ga. L. Rev. 241, 262 (1981).

I. STANDING [1] We turn first to the question of standing, and the suggestion that we cannot consider the Republicans' challenge because they have not alleged an injury that is judicially cognizable. The Supreme Court has indicated that in ruling on a motion to dismiss for lack of standing, "both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Here the Republicans have alleged that as legislators and as voters their political power has been diluted, and they have raised significant additional issues about First Amendment rights to free association and free speech. Further, they have raised a plausible claim that the Democrats have added the additional requirement of majority party membership to the qualifications for full House membership. We consider these allegations sufficient to withstand a motion to dismiss.

Judge Bork, however, makes two interrelated argumants in challenging the justiciability of the allegations that the Republicans' political power has been diluted. He suggests that the harms that the Republican legislators have allegedly suffered are insufficient to support standing, and he further contends that because those harms implicate general separation-of-powers concerns, we have additional reason to deny standing.

The initial argument revives a legal distinction discarded in Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir. 1981), between allegations that a legislator's vote has been “nullified" and allegations that the legislator's influence has merely been diminished. Judge Bork contends that only where there has been nullification of a legislator's vote can there be a sufficient injury to support standing; he relies in particular on Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974), Harrington v. Bush, 553 F.2d 190 (D.C.Cir.1977), and Gold water v. Carter, 617 F.2d 697 (D.C.Cir.), judgment vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979). Without further discussion, we simply note that a unanimous panel of this circuit repudiated that distinction in Riegle after expressly considering the "doctrinal difficulties presented by an attempt to reconcile our denial of congressional standing in the Public Citizen v. Sampson, 379 F.Supp. 662 (D.D.C.1974), aff'd mem., 515 F.2d 1018 (D.C.Cir.1975); Harrington, and Reuss v. Balles, 584 F.2d_461 (D.C.Cir.), cert. (1169] denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978) cases, on the one hand, with our conferral of legislator standing in the Kennedy and Goldwater cases, on the other.”

* 656 F.2d at 880. It is important to recognize that even if we return to Goldwater's requirements for legislator standing, (and even if we ignore appellants' other constitutional claims, as Judge Bork does), there is still another hurdle before we can dismiss this case for lack of standing. That hurdle is that we are not only dealing here with legislators suing as legislators, but also with legislators suing as voters and as representatives of the classes of all voters represented by Republicans. In that sense, appellants would seem to have strengthened their argument

Continued

Judge Bork's second argument was also, we think, answered in Riegle, but he suggests that Riegle's analysis was implicitly rejected by the Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). There the Court provided its most recent formulation of the standing requirement in stating that:

at an irreducible minimum, Art. III requires the party who
invokes the court's authority to "show that he personally
has suffered some actual or threatened injury as a result
of the putatively illegal conduct of the defendant,” Glad-
stone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99
S.Ct. 1601, 1608, 60 L.Ed.2d 66] (1979), and that the injury
"fairly can be traced to the challenged action" and "is
likely to be redressed by a favorable decision," Simon v.
Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41

[96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976). 454 U.S. at 472, 102 S.Ct. at 758. Immediately following this summary, the Court explained the standing doctrine's function: "In this manner does Art. III limit the federal judicial power to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process. Flast v. Cohen, [392, U.S. 83 (1968)] at 97 (88 S.Ct. 1942 at 1951, 20 L.Ed.2d 947)." Id. (emphasis added).

Judge Bork contends that the Court's use of the phrase "separated powers,” taken together with language from other opinions over the past decade, signals that we should consider separation-ofpowers issues as part of our determination whether appellants have standing. But we decline to place as much weight on the Supreme Court's language as Judge Bork does. If the Court had meant to expand its standing doctrines to make room for a whole set of analytically-unrelated theories about the roles of the separate branches of government, it could have said so. Instead, we should continue to rely on previous expressions by the Supreme Court that it does not mean to have separation-of-powers controversies resolved under the rubric of standing. As Judge bork acknowledges, infra at 1179, in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), the Court explicitly addressed and explicitly rejected the notion that “in terms of Article III limitations on federal court jurisdiction, the question of standing” intersects "separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government." 392 U.S. at 100-01, 88 S.Ct. at 1952-1953.

for judicial review by including “private plaintiffs" in their suit. See Riegle, 656 F.2d at 882; note 16 supra. For regardless of the requirements for legislators' standing, there can be no doubt that the voting rights cases established that "complete nullification" of voting power is not necessary for citizens challenging congressional elections to acquire standing. White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973).

Judge Bork resolves this problem by denying standing on the gounds that "a private plaintiff's suit raises identical separation-of-powers concerns because those concerns are about the relationship of the courts to Congress," infra at 1184. In the following section, we discuss why we cannot accept his expansion of standing doctrines to include separation-of-powers concerns. On the other hand, simply because we grant standing does not mean that we must reach the merits of this suit, as Riegle thought might be necessary. See note 24 supra.

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