ON APPEAL FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil Action No. 1571-72).
Van Dusen, Aldisert and Adams, Circuit Judges. Aldisert, Circuit Judge, concurring and dissenting.
In this case we are called upon to consider questions of justiciability arising under statutes relating to the privilege of congressmen to send mail under the frank,*fn1 and then to examine the scope and meaning of those enactments. 39 U.S.C. §§ 3210-3212.
Appellant, Henry Helstoski, a member of the United States House of Representatives, representing the Ninth Congressional District in New Jersey, challenges the district court's judgment to the extent that it enjoins him from mailing certain materials under his frank. He regards all such mailings as part of the conscientious performance of his legislative duties. Appellee, Alfred D. Schiaffo, Helstoski's opponent in the general election held in November, 1972, cross-appeals from that portion of the district court's judgment that permits the mailing under the frank of certain other materials. See Schiaffo v. Helstoski, 350 F. Supp. 1076 (D.N.J. 1972).*fn2
Specifically, the district court divided the mailings and proposed mailings of Helstoski into four groups.
Group I consisted of documents printed pursuant to congressional or executive order. Applying 39 U.S.C. § 3211, the court decided that those documents printed by congressional order could be sent under the frank to persons not then in the Ninth Congressional District but who were to be included in the redistricted Ninth Congressional District for the November, 1972 election, as well as to all those in the Ninth Congressional District before the redistricting. Furthermore, the court found that Schiaffo had no standing to challenge under 44 U.S.C. § 732 Helstoski's receipt of government documents in excess of his allotment. Those printed pursuant to executive order had already been sent at the time of the suit, thereby precluding any relief, for the court refused to grant money damages to Schiaffo. The court did not decide whether such mailings were otherwise permissible. It did permit Helstoski to send brief covering letters with the documents printed pursuant to congressional order, identifying the Congressman as the sender and explaining the reasons for the distribution.
Schiaffo challenges the court's ruling insofar as it permitted the mailings of documents printed pursuant to congressional order to the new constitutents of the Ninth Congressional District and the mailings of documents Helstoski received in excess of his allotment.
Group II included reprints of documents received in limited quantities from governmental departments. These reprints were prepared at Helstoski's expense. Other documents included in this group were Helstoski's "Washington Report," a newsletter prepared periodically to inform recipients of Helstoski's activities, two questionnaires, and a brochure on the drug problem prepared by private individuals. These documents, too, were printed at Helstoski's expense. Helstoski either sent or intended to send all of the documents in Group II to persons in the redistricted as well as in the then existing Ninth Congressional District. Applying 39 U.S.C. § 3210(2), the court enjoined further mailings of documents in this group. Helstoski and the Committee on House Administration of the House of Representatives, as amicus curiae, challenge this ruling.
Group III contained two types of documents: first, the results of one of Helstoski's questionnaires inserted in the Congressional Record and second, parchment copies of the Declaration of Independence together with a statement inserted in the Congressional Record and intended to be sent to Republican and Democratic County Committee people, officials, schools and libraries. Helstoski planned to send all of the Group III documents to persons in areas to become part of the Ninth Congressional District as well as in areas then included. Applying 39 U.S.C. §§ 3212, the court found the distribution of the first portion of materials in Group III permissible, but enjoined the second. Schiaffo apparently challenges the court's ruling as to the first distribution insofar as it applies to mailings to persons who, at the time of the November, 1972 election, would be within the Ninth Congressional District for the first time.
Group IV contained copies of a revenue sharing report sent to public officials in the then existing and the new Ninth Congressional District, and a gun-control survey sent to police chiefs in both areas. All of these materials were printed at Helstoski's expense. Applying 39 U.S.C. § 3210(1), the court found these mailings under the frank impermissible.
The district court refused to grant money damages to Schiaffo for injury allegedly resulting from the mailings, completed prior to suit,*fn3 that transgressed the statutory restriction. Schiaffo does not, on this appeal, challenge this ruling. As to the mailings permitted under the statutes, the district court found no violation of Schiaffo's rights. This latter ruling Schiaffo does challenge.
Suits such as this one, calling in question the uses of the franking privilege by congressmen, have arisen with some frequency in the past few years.*fn4 They present difficult questions of justiciability, and it is incumbent upon us to deal with such questions before addressing the correctness of the statutory construction placed on 39 U.S.C. §§ 3210-3212 by the district court.
If, in the context of this case, it should appear that any doctrine either of constitutional or of judicial origin requires our forebearance, we may be obligated to dismiss this appeal or to remand for dismissal of the case or of portions thereof.
A. Mootness -- The fact that the election of November, 1972 is now history -- Helstoski was reelected -- prompts us to consider whether "events subsequent to the judgment of the trial court rendered on October 10, 1972 have so affected the relations between the parties that the two conditions for justiciability relevant on appeal -- adverse interest and effective remedy -- have arguably been compromised."*fn5 We must examine the stake that each of the parties now has in the outcome of this proceeding to determine whether it is proper to regard this appeal as moot.*fn6
Helstoski, like most of his colleagues in the Congress,*fn7 has regularly made mailings similar to those the court below enjoined. Although he has been reelected on three previous occasions, mailings of the type now enjoined continued with no apparent interruption until the district court's order. There is nothing in the record indicating, and no reason to assume, that Helstoski's interest in continuing the practice of informing his constituents through the unsolicited mailing of various materials under his frank has substantially diminished since his fourth reelection in November, 1972. The district court's order contains no expiration date, and Helstoski remains subject to its interdictions. It is apparent, therefore, that Helstoski has a considerable stake in this appeal.
One might suspect that the strength of Schiaffo's interest in preserving those elements of the district court's judgment favorable to him has lessened somewhat since his defeat in the November, 1972 election. But anybody who personally intends to oppose the candidacy of an incumbent congressman or who supports a person mounting such a challenge has a vital interest in securing the cessation of that incumbent's activities -- financed at least in part by the public fisc -- that arguably promote his electoral prospects. Certainly Schiaffo is one who may well continue to oppose, personally or otherwise, the incumbency of Helstoski. Moreover, both parties have diligently presented their respective arguments to this Court.*fn8 Consequently, we conclude that this appeal has not been mooted by the November, 1972 election.
B. Speech or Debate Clause -- Helstoski argues that the Speech or Debate Clause, Art. I, § 6 of the Constitution,*fn9 precludes judicial inquiry into potential abuse of the franking privilege. We do not find this contention persuasive. Although the limits of the immunity afforded congressmen by the Speech or Debate Clause are not clearly defined by judicial precedent,*fn10 in United States v. Brewster*fn11 the Supreme Court appears to have placed important restrictions on the ambit of that provision. The Court in Brewster found that the Speech or Debate Clause did not preclude a prosecution of a senator for bribery so long as there was no inquiry into legislative acts or motivation.*fn12 "In sum," the Court held, "the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts."*fn13 Brewster has placed many activities "related" to the performance of a congressman's duties outside the protection of the Speech or Debate Clause.*fn14 Significantly, Chief Justice Burger, writing for the Court in Brewster, included among the "related," but unprotected Congressional activities the preparation of a newsletter.*fn15 Although we are dealing with, for example, the mailing under the frank, not the preparation, of a newsletter, we believe that the thrust of Brewster requires us to regard Helstoski's use of the frank to mail the materials in this case as outside the protection of the Speech or Debate Clause. Mailings of items such as newsletters may well be necessary if a congressman is conscientiously to perform his legislative tasks. But Brewster makes it clear that the immunity of the Speech or Debate Clause does not extend to a number of legitimate legislative activities, and we would include among such activities the mailing of materials under the frank. Accordingly, we reject Helstoski's contention that the federal courts should refuse, on the authority of the Speech or Debate Clause, to entertain suits involving allegations of abuse of the franking privilege.
C. Political Question -- Federal courts have, on occasion, declined on the basis of the political question doctrine to confront certain conflicts otherwise properly presented for decision. The genesis of this somewhat inscrutable doctrine inheres in a notion that certain issues are not for courts to decide, either because the Constitution leaves to another branch the sole responsibility to decide them*fn16 or because it is wise judicial policy to refrain from resolving some matters. The latter view is derived, in part, from a recognition that the practical effectiveness of judicial decisions depends, to a large degree, on their acceptance by the public and that, in some cases, declining to decide a matter on the basis of the political question doctrine avoids untoward strain on the public acceptability of judicial pronouncements generally.*fn17 Baker v. Carr*fn18 is the crucible from which issued the Supreme Court's most comprehensive attempt to provide a framework for analysis of cases in terms of the applicability of the political question doctrine. Justice Brennan, writing for a plurality of the Court, concluded that six categories of cases could properly be regarded as involving political questions. He offered the following formulation:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.*fn19
In Powell v. McCormack,*fn20 Chief Justice Warren, speaking for the Court, used these six categories as guideposts for analyzing the justiciability of the questions dealing with Congressman Powell's exclusion by the House of Representatives. Chief Justice Warren's treatment of the Baker categories strongly indicates that the present case does not fit into any of them.
First, it is clear that there is no " textually demonstrable Constitutional commitment" (emphasis added) to Congress of the power to decide questions regarding the exercise of the franking privilege. Also, there can be no credible argument that "judicially discoverable and manageable standards" are not present. Chief Justice Warren pointed out that "an interpretation of the Constitution . . . clearly [involves] . . . 'judicially . . . manageable standards.'"*fn21 Interpreting statutes is a more common practice of the federal courts than interpreting the Constitution, and we perceive no reason for regarding the franking statute as implicating standards not susceptible to judicial management. Standards of statutory construction surely are judicially manageable. In fact, since Congress has seen fit to enact a statute granting the franking privilege, we have considerable doubt whether the political question doctrine is applicable at all. We have found no case regarding the application of a statute concerned solely with domestic affairs and passed by Congress in which the political question doctrine has precluded Supreme Court review.*fn22
Nor does the present case fit into any of the other Baker categories as they have been elaborated by Chief Justice Warren:*fn23 no initial policy decision is required since Congress has already made that decision; there is no need for unquestioning adherence to a policy determination already made; a court's performance of its usual function of statutory interpretation involves no lack of respect for any coordinate branch; and the judiciary's decision as to the statute's meaning is final, although Congress retains the authority to modify the statute.
Therefore, the political question doctrine does not prevent consideration of the present case.
D. Standing -- A nettlesome question concerning the propriety of judicial review of Helstoski's actions relates to Schiaffo's standing to assert a claim under §§ 3210-3212. Divising an analytical approach to provide guidance in determining whether a particular litigant has standing to present a particular issue for judicial resolution remains for courts and scholars an often assayed, but not yet satisfactorily accomplished object.*fn24
In two important areas of federal concern, the Supreme Court, in recent years, has formulated rules specifically designed to assist in reaching a conclusion whether a litigant has standing. First, presented with a taxpayer's constitutional challenge to federal aid to parochial schools, the Court held in Flast v. Cohen*fn25 that a taxpayer has standing to challenge "congressional action under the taxing and spending clause" of the Constitution only when the taxpayer also alleges that such action is "in violation of specific constitutional protections."*fn26 Second, in dealing with a challenge to an action of a federal agency under § 10 of the Administrative Procedure Act,*fn27 the Court in Association of Data Processing Service Organizations v. Camp*fn28 required the plaintiff "[to allege] that the challenged action has caused him injury in fact, economic or otherwise" and that "the interest sought to be protected by [him] is arguably within the zone of interests to be protected or regulated by the statute. . . ."*fn29
This Court recently dealt extensively with the subject of standing in Richardson v. United States.*fn30 Although when we address questions raised by the separate opinion in this case, we will deal at greater length with the reason that the principles developed in Richardson and, in particular in the dissent therein, seem largely inapplicable here, a brief synopsis of the major distinctions between the two cases may impart to the intervening discussion a greater degree of clarity. The plaintiff in Richardson contested governmental action on constitutional grounds and his standing was grounded solely on his taxpayer status. In contrast, although asserting that if Helstoski's actions are held to be permissible under §§ 3210-3212, his constitutional rights would be violated, Schiaffo confines his objections here in the first instance, to allegations that Helstoski has violated statutory restrictions. Moreover, Schiaffo claims that he has suffered harm different from that suffered by the ordinary taxpayer because of Helstoski's allegedly unauthorized use of the frank.
Since the provisions relating to judicial review contained in the APA are apparently inapplicable when there is challenge to a congressman's use of the frank and since Schiaffo's situation is different from that of the plaintiffs in Flast and Richardson, who, unlike Schiaffo, assert, solely as taxpayers or citizens, claims based on constitutional provisions, it is necessary to acquire an understanding of the federal common law of standing and its relationship to, as well as differences from, the precepts contained in Flast and Data Processing.
Despite the Herculean labors of the Supreme Court in Flast and Data Processing, it nonetheless has been contended that these cases shed, at best, crepuscular light on the general standing problem.*fn31 However, both of these cases are instructive and, indeed, it would appear that the same principles that are set forth in Data Processing control here.
1. The federal common law of standing.
The basic element of the law of standing -- that a prospective plaintiff show he has suffered harm distinctive from that suffered by his fellow citizen -- was developed by the common law courts.*fn32 State courts, when confronted with a challenge to the action of a state agency and in the absence of a state statutory counterpart to § 10 of the APA, generally require that the plaintiff allege that he was injured, in fact, by the action.*fn33 Although prior to Data Processing most of the important federal cases dealing with common law standing arose under regulatory schemes with specific provisions relating to standing, the general terms of these provisions appear to invite consideration of the cases as having an important influence on, if not as part of, the federal common law of standing.*fn34 The federal standing requirements in suits not involving the Constitution or the APA were, and are, more rigorous than the generally applied state requirements. For example, The Chicago Junction Case,*fn35 decided before enactment of the APA, made standing under the Interstate Commerce Act "rest on a determination that an interest by statute to be protected has been denied that protection."*fn36 Between the decision in The Chicago Junction Case and that in Data Processing, the federal courts, in cases dealing with other regulatory statutes providing for suit by persons "aggrieved" or "adversely affected," had been, according to Professor Jaffe, eroding the stricture set forth in The Chicago Junction Case that the person challenging an agency action demonstrate an interest intended to be protected by the statute.*fn37 Admittedly, the content and status of the federal common law of standing prior to Data Processing is not susceptible to lucid formulation. It would, at least, appear, however, that a person, who alleged that he had, in fact, suffered a harm against which a common law right, statute, or constitutional provision was designed to protect, clearly had standing.
2. The bearing of Data Processing on the federal common law of standing.
To dispose of the standing issue in this case, we must now evaluate the impact, if any, of Data Processing on the federal common law standing test. It has been suggested that the Supreme Court in Data Processing was promulgating a generally applicable set of standing rules despite its reference to § 10 of the APA.*fn38 And, even if the Supreme Court were merely construing § 10 in Data Processing, Professor Jaffe contends that § 10 was intended to be "no more than declaratory of existing law."*fn39 Thus, it would seem that Professor Jaffe would regard Data Processing as representing an important recent expression of the contents of the federal common law of standing. In sum, the cases generally, and Data Processing in particular, suggest and the commentators seem to conclude that the federal common law of standing is contained primarily in cases where statutory provisions such as § 10, dealing with standing and having indeterminate, but ostensibly slight, significance, are present. For this reason, we conclude, despite the fact that § 10 is not directly applicable to the case at hand, that Schiaffo's standing to bring this suit must be measured against the same criteria that are set forth in Data Processing.
3. The bearing of Flast on non-constitutional standing problems.
Although the same standing test enunciated in Data Processing seems applicable here, Flast, the leading authority on standing in the context of constitutional litigation, is nonetheless illuminating here also, in three respects. First, it illustrates the major concern with which the standing test deals. The Supreme Court was, above all, seeking to satisfy itself that the plaintiffs' personal stake in the outcome was compelling enough to assure aggressive and conscientious advocacy and that the issues, as framed by the parties, would not be so nebulous as to create the danger of judicial inquiry beyond customary bounds.*fn40 Identical considerations are present when a plaintiff's claims, as here, are based on a statute. And the Data Processing test is, of course, also designed to deal with such concern.
Second, Flast establishes beyond peradventure that "the personal stake may come from any injury in fact even if it is not directly economic in nature."*fn41 In Flast, the plaintiffs were troubled that certain forms of governmental aid to parochial schools impaired the exercise of their First Amendment rights. The same principle assuring that noneconomic as well as economic injury can form the foundation of a plaintiff's standing, applies where a plaintiff's claim is based on a statute rather than a constitutional provision.*fn42 Here, it may properly be contended that the damage Helstoski's allegedly unauthorized mailings caused Schiaffo's electoral prospects constitutes a noneconomic harm.
Third, Flast illustrates that once a substantive right is granted, absent legislation to the contrary, courts may entertain suits brought by persons harmed by the encroachments on such right despite the absence of a statute expressly stating that "aggrieved" persons have standing to sue. There is no reference in Flast to a statute granting standing to persons injured by the alleged unconstitutional exercise of governmental power. Nor are we aware of any principle requiring the presence ...