Van Dusen and Max Rosenn, Circuit Judges, and Kraft, District Judge. Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Max Rosenn, James Rosen, and Hunter, Circuit Judges, and Kraft, District Judge. Adams, Circuit Judge (dissenting).
MAX ROSENN, Circuit Judge.
In contrast to the case frequently heard on appeal, in which the Government seeks an accounting from the taxpayer, here it is the taxpayer who seeks an accounting from the Government. Appellant, acting in propria persona, complained that the Government's consolidated statement, entitled "Combined Statement of Receipts, Expenditures and Balances of the United States Government," fails to show monies received and expended by the Central Intelligence Agency (CIA). He alleged that the Central Intelligence Agency Act relieving the Secretary of the Treasury from publishing such figures was repugnant to the Constitution and void. He sought a writ of mandamus to compel the Secretary of the Treasury to publish an accounting of the receipts and expenditures of the CIA and to enjoin any further publication of the Combined Statement which did not reflect them. His application for a three judge court was denied by the district court which subsequently dismissed the complaint on grounds of standing and justiciability.*fn1
We will vacate the order and remand.
After oral argument, this court deemed the issues raised by the case of sufficient importance to necessitate the appointment of amicus curiae, Professor Ralph S. Spritzer of the University of Pennsylvania Law School, formerly Acting Solicitor General of the United States. He has submitted a thoughtful brief to which all parties have responded.
THE CONSTITUTIONAL AND STATUTORY CONTEXT
Because appellant sought to challenge the system by which the Federal Government accounts for funds spent by the Central Intelligence Agency, a brief explanation of that system is necessary to put his action in appropriate context.
The Federal Government's spending powers, enumerated in article I, section 8 of the Constitution, are regulated by article I, section 9, clause 7, which provides:
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
In accordance with this mandate, all federal agencies except the CIA receive an annual specific appropriation from the Congress. 31 U.S.C. § 696. The Secretary of the Treasury then prepares an annual statement by "head of appropriation" for the use of the Executive, the Congress and the public reflecting how much each agency has spent during the previous fiscal year. 31 U.S.C. §§ 66b(a), 1029. Since there is no specific appropriation for the CIA, its receipts and expenditures are not listed in the document.
The Central Intelligence Agency Act of 1949, 63 Stat. 208, 50 U.S.C. § 403a et seq. (1970), established a unique procedure for funding the CIA. Section 403f(a) permits the CIA to transfer and receive funds from other agencies with the approval of the Bureau of the Budget (now Office of Management and Budget) "without regard to any provisions of law limiting or prohibiting transfers between appropriations." Once the money has been spent, the CIA need not disclose its functions or personnel, 50 U.S.C. § 403g, and:
the sums made available to the Agency may be expended without regard to the provisions of law and regulations relating to the expenditure of Government funds; and for objects of a confidential extraordinary, or emergency nature, such expenditures to be accounted for solely on the certificate of the Director and every such certificate shall be deemed a sufficient voucher for the amount therein certified. 50 U.S.C. § 403j(b).
This procedure creates a two-step system for disbursement of the Treasury's monies to the CIA. First, Congress appropriates money to some other agency, and then that agency transfers the funds to the CIA. The only accurate accounting for the funds is the certificate rendered by the Director of the CIA, but it does not appear that this certificate or its contents are made available to the public. Presumably the money actually spent is reflected in the Treasury Department's annual statement as a disbursement by the original agency to which Congress made the appropriation, although it may not be reflected at all.
Appellant Richardson, a citizen and taxpayer residing in Greensburg, Pennsylvania, wrote the Treasury Department, inquiring about the annual expenditures of the CIA. He was informed by defendant Sokol, the Treasury officer in charge of the publication of the annual statement, that the Treasury Department did not receive information on the CIA because of the congressional determination that such information should not be made public. He further stated that neither he nor the defendant Secretary of the Treasury had access to the information appellant desired. There was no further administrative relief available.
Appellant then brought this action alleging that the appellees have a constitutional and statutory obligation to set forth an accurate accounting of the expenditures of the United States. He contended that the Central Intelligence Agency Act of 1949, which creates an exception for the CIA, is repugnant to the Constitution because its prohibition against reporting the CIA's expenditures contravenes the mandate of article I, section 9, clause 7. He asked that a three judge court be convened to determine the constitutionality of the Central Intelligence Agency Act, and that a mandamus issue against the defendants requiring them to publish a financial statement which complies with the commands of the Constitution and the remaining acts of Congress.
Appellant also alleged that the constitutional duty to provide a regular account of receipts and expenditures of public money is one owed to the citizen and taxpayer, for its obvious design is to provide members of the electorate with information lying at the core of public accountability in a democratic society.
Appellant alleges several grounds for jurisdiction, only one of which is proper.*fn2 It is the relatively new Mandamus and Venue Act, 28 U.S.C.A. § 1361, which states:
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
The legislative history of the mandamus statute reveals that the statute's construction turns upon traditional mandamus law. Davis, Administrative Law Treatise (1970 Supplement) § 23.10. In order for mandamus to issue, a plaintiff must allege that an officer of the Government owes him a legal duty which is a specific, plain ministerial act "devoid of the exercise of judgment or discretion." Clackamas County, Or. v. McKay, 94 U.S.App.D.C. 108, 219 F.2d 479, 489 (1954). ICC v. New York, New Haven & Hartford R.R., 287 U.S. 178, 204, 53 S. Ct. 106, 77 L. Ed. 248 (1932), Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218, 50 S. Ct. 320, 74 L. Ed. 809 (1930), United States v. Walker, 409 F.2d 477, 481 (9th Cir. 1969). An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt. United States v. Walker, supra. Additionally, plaintiff must have exhausted all other available means of relief. Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969) cert. denied, 397 U.S. 941, 90 S. Ct. 953, 25 L. Ed. 2d 121 (1970).
What is the nature of the duty which appellant charges was breached? The duty alleged here arises under article I, section 9, clause 7 as implemented by the Congress under 31 U.S.C. §§ 66b(a) and 1029.*fn3 Appellant's position is that save for the existence of the Central Intelligence Agency Act, Congress would be required to appropriate money specifically for the CIA, and the Secretary of the Treasury would be required to give an accounting to the President, the Congress and the public for that agency's expenditures by that head of appropriation, as mandated by 31 U.S.C. § 1029.
The Government argues that no specific duty exists because the Congress has, by the Central Intelligence Agency Act, relieved the Secretary of the Treasury of the obligation to publish a statement pertaining to funds received and expended by the CIA. It also contends the Secretary cannot be under such an obligation because he does not possess the CIA's accounts.*fn4
We do not decide the constitutionality of the Central Intelligence Agency Act. However, for the purpose of determining whether mandamus will lie against him in the federal courts, an officer of the Government cannot deprive the court of jurisdiction to compel performance of an otherwise clear statutory duty by invoking the authority of what is challenged as an unconstitutional law. In re Ayers, 123 U.S. 443, 506, 8 S. Ct. 164, 31 L. Ed. 216 (1887); Board of Liquidation v. McComb, 92 U.S. 531, 541, 23 L. Ed. 623 (1875); National Association of Government Employees v. White, 135 U.S.App.D.C. 290, 418 F.2d 1126, 1129 (1969); cf. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 701-702, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949). As a practical matter, this rule avoids the multiplicitous litigation that would arise if a party were first required to litigate the constitutionality of a statute in a separate action and then later secure specific relief in another proceeding by mandamus. More importantly, if a law is unconstitutional, it is void and of no effect, and it cannot alter an otherwise valid obligation of a governmental officer to a citizen. To permit a defense based upon an unconstitutional law would prevent a plaintiff, such as appellant, from using the mandamus remedy to enforce his rights even though the Government has not otherwise shown the court a valid reason to deny the relief demanded. Such a defense would have the effect of sustaining the very statute which the court is asked to strike as unconstitutional.
Therefore, the Government may not rely on the CIA Statute to preclude jurisdiction of this mandamus action.
Except for the CIA Statute, the Secretary of the Treasury is under a clear command of Congress to account for all monies as they are actually expended by the different federal agencies. In fulfilling that duty, he has no discretion. 31 U.S.C. § 1029.
Nor are we persuaded by the Government's argument that the duty of the Secretary of the Treasury is not spefically owed to the appellant. The debates at the Constitutional convention in 1787 and the state ratifying conventions reveal that those who proposed the present language of the clause believed that the citizenry should receive some form of accounting from the Government.*fn5 The use of the word "published" in article I, section 9, clause 7 emphasizes that intention. Article II, section 3 requires the President "from time to time [to] give to the Congress Information on the State of the Union," and presumably the Framers could have utilized the same informal procedure with regard to the accounting if they had so wished. Instead, they chose to have the statement "published," indicating that they wanted it to be more permanent and widely-circulated than the President's message. The connotation must be that the statement was for the benefit and education of the public as well as coordinate branches of the Government.
This constitutional obligation to account to the public is supported by the Congressional enactment of 31 U.S.C. § 66b(a), which provides:
The Secretary of the Treasury shall prepare such reports for the information of the President, the Congress, and the public as will present the results of the financial operations of the Government. . . . (emphasis supplied).
In furtherance of this general duty, Congress enacted 31 U.S.C. §§ 1027-1030,*fn6 which provide for various specific reports, including the Combined Statement of Receipts and Expenditures provided for in Section 1029.
Thus Congress' own language indicates that the Secretary's duty to present financial reports runs not only to the President and the Congress, but also to the public at large. If these reports are misleading and inadequate, there is no reason why Richardson, as a taxpayer, should not be able to require the appropriate executive officer to perform his obligations. The right of the taxpayer to receive reasonably complete reports of governmental expenditures is within the "zone of interest[s] . . . protected . . . by the statute . . . in question" and one for which he may suffer a cognizable injury. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 830, 25 L. Ed. 2d 184 (1970); accord, Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970).
Finally, appellant has exhausted his avenues for administrative relief, he has no other remedy, and his only recourse now is judicial redress.
Appellant's case meets all the considerations required for mandamus. While mandamus should be construed liberally in cases charging a violation of a constitutional right, cf. Fifth Avenue Peace Parade Committee v. Hoover, 327 F. Supp. 238, 243 (S.D.N.Y.1971), even under principles of strict construction appellant has set forth a clear duty owed to him by the Secretary of the Treasury.
The appellant must also have sufficient standing in order to invoke the jurisdiction of a federal court.*fn6A Article III, section 2 limits the judicial power of federal courts to consideration of "cases" or "controversies." Association of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S. at 151, 90 S. Ct. 827, Flast v. Cohen, 392 U.S. 83, 101-102, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). When a plaintiff does not have a stake in the outcome of the litigation to assure a sufficient adverseness in the proceedings to make it a true "case" or "controversy," we have no jurisdiction to entertain his request. Flast v. Cohen, supra, at 101-102, 88 S. Ct. 1942.
Flast established a two prong test to ascertain whether a plaintiff, such as appellant, who is a taxpayer, has the requisite adversary interest: (1) the plaintiff must establish a nexus between his status as a taxpayer and the challenged Government activity to give him a personal stake in the action; and (2) his claim must relate to a specific constitutional prohibition so that the issues may be sharpened and focused sufficiently for proper judicial resolution.
Although the district court did not specify its reasons for finding that appellant lacked standing, we assume that it applied Flast and found his case deficient thereunder. We cannot agree.
The decision in Flast breached the absolute barrier to taxpayer suits erected by an earlier Supreme Court decision. Frothingham v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923). Frothingham absolutely barred a taxpayer from objecting to a Government spending program as a violation of the tenth amendment and the due process clause of the fifth amendment, on the theory that taxpayer was affected by the law only to the extent that the public in general was affected by increased taxes. Id., at 487, 43 S. Ct. 597. The Court feared a contrary decision would have opened the floodgates of litigation, and would have permitted people to litigate issues even though they did not have an adequate incentive for a vigorous prosecution because of the miniscule and remote nature of their interests. Id.
Flast did not completely overrule Frothingham. Chief Justice Warren's decision distinguished the latter case on the ground that a taxpayer could not properly object under the due process clause to general increases in his tax bill, but a taxpayer could object to any program provided under article I, section 8 that exceeded specific constitutional limitations on the taxing and spending powers of Congress. The Chief Justice believed that:
Under such circumstances, we feel confident that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution. We lack that confidence in cases such as Frothingham where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.
392 U.S. at 106, 88 S. Ct. at 1955.
A taxpayer could object to such outlays because there was a sufficient link between his status as a taxpayer and the act to assure a personal stake in the outcome of the controversy. That stake would provide "'the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)." 392 U.S. at 99, 88 S. Ct. at 1952. Although the connection in Flast is concededly different from the one at issue here, both taxpayers have sufficient personal stake in the litigation. Plaintiffs in Flast contended they were being taxed to support an unconstitutional program that was in violation of the first amendment's establishment clause. Appellant argues that he has a right under the Constitution to "a Regular Statement and Account," but that he is being deprived of that right because of the Government's adherence to the allegedly unconstitutional Central Intelligence Agency Act.
The Government argues that Flast must be limited to challenges to appropriations. That view attempts to confine the case to its facts without regard to its reasoning. Flast is concerned with adverseness and specificity of issues for "standing," not spending per se.*fn7
Even under the Government's argument, appellant's claim is still sufficient because it is integrally related to the appropriations process and the taxpayer's ability to challenge those appropriations. Although Flast recognizes standing of a taxpayer to challenge expenditures, how can a taxpayer make that challenge unless he knows how the money is being spent? Without accurate official information concerning the amount and purpose of the expenditures, there could be no basis for a taxpayer suit. It would be inconsistent to affirm the viability of taxpayers' suits on the one hand but take away a necessary precondition for those suits on the other.*fn8
The Government's position is not sound to us and we must reject it. We believe that the nexus between a taxpayer and an allegedly unconstitutional act need not always be the appropriation and the spending of his money for an invalid purpose. The personal stake may come from any injury in fact even if it is not directly economic in nature. Association of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S. at 154, 90 S. Ct. 827, 25 L. Ed. 2d 184. A responsible and intelligent taxpayer and citizen, of course, wants to know how his tax money is being spent. Without this information he cannot intelligently follow the actions of the Congress or of the Executive. Nor can he properly fulfill his obligations as a member of the electorate. The Framers of the Constitution deemed fiscal information essential if the electorate was to exercise any control over its representatives and meet their new responsibilities as citizens of the Republic;*fn9 and they mandated publication, although stated in general terms, of the Government's receipts and expenditures. Whatever the ultimate scope and extent of that obligation, its elimination generates a sufficient, adverse interest in a taxpayer.
In the second prong of the Flast test the Court inquired whether there was a specific section in the Constitution which operated to limit the Congress' taxing and spending powers. It noted that whether there are limitations other than the establishment clause would have to be decided by future litigation. 392 U.S. at 105, 88 S. Ct. 1942, 20 L. Ed. 2d 947. Appellant's claim raises such a limitation. While article I, section 9, clause 7 is procedural in nature, and while the establishment clause is substantive in nature, both are nonetheless limitations on the taxing and spending power. It would be difficult to fashion a requirement more clearly conveying the framers' intention to regularize expenditures and to require public accountability.
Article I, section 9, clause 7 relates exclusively to the taxpayer's interest in the expenditure of public monies. It is unlike the due process clause of the fifth amendment and the tenth amendment, raised in Frothingham, which are designed to check a much broader range of possible abuses of power. Appellant does not raise any generalized complaints about the operation of his Government. He does not even complain that the CIA should not receive the money it presently spends, provided this money is properly appropriated and reported. He only seeks an accurate statement of account for the tax money extracted from him and spent. He relies on a specific constitutional provision to protect him from what he alleges is a legislative abuse of power, the non-accounting features of the Central Intelligence Agency Act.
We note that if appellant, as a citizen, voter and taxpayer, is not entitled to maintain an action such as this to enforce the dictate of article I, section 9, clause 7, of the United States Constitution that the Federal Government provide an accounting of the expenditure of all public money, then it is difficult to see how this requirement, which the framers of the Constitution considered vital to the proper functioning of our democratic republic, may be enforced at all. A decision to deny standing to the appellant in these circumstances would not seem consistent with the limited scope of the standing requirement. See Sierra Club v. Morton, 405 U.S. 727, 740, 92 S. Ct. 1361, 1368, 31 L. Ed. 2d 636 (1972):
The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome.
McGowan v. Maryland, 366 U.S. 420, 429-430, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); N.A.A.C.P. v. Alabama, 357 U.S. 449, 459, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958):
The [standing] principle is not disrespected where constitutional rights of persons who are not immediately before the Court could not be effectively vindicated except through an appropriate representative before the Court. See Barrows v. Jackson, 346 U.S. 249, 255-259, 73 S. Ct. 1031, 97 L. Ed. 1586; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 183-187, 71 S. Ct. 624, 95 L. Ed. 817 (concurring opinion.)
Reservists Committee to Stop War v. Laird, 323 F. Supp. 833, 841 (D.D.C.1971):
It is not irrelevant [to the standing issue] to note that if these plaintiffs cannot obtain judicial review of defendants' action, then as a practical matter no one can.
We have carefully avoided expressing any opinion on the merits of the appellant's claim. The complaint, however, contains sufficient allegations to give the appellant standing consistent with article III of the Constitution to invoke the court's jurisdiction for an adjudication on the merits.
We next consider whether a three judge court should have been convened to hear appellant's complaint. 28 U.S.C. § 2282*fn10 provides that an application for an injunction restraining the enforcement, operation or execution of any act of Congress for repugnance to the Constitution of the United ...