Harrington v. Schlesinger

Citation528 F.2d 455
Decision Date08 October 1975
Docket NumberNo. 74--1573,74--1573
PartiesMichael HARRINGTON et al., Appellants, v. James H. SCHLESINGER et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Norman B. Smith, Greensboro, N.C., and Deborah G. Mailman, Raleigh, N.C. (James Keenan, Durham, N.C., and Jerry W. Leonard, Raleigh, N.C., on brief), for appellants.

David N. Cohen, Atty., United States Dept. of Justice (Carla A. Hills, Asst. Atty. Gen., Thomas P. McNamara, U.S. Atty., Robert E. Kopp and Michael H. Stein, Attys., United States Dept. of Justice, on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and BOREMAN, Senior Circuit Judge, and THOMSEN, Senior District Judge.

HAYNSWORTH, Chief Judge.

This action was properly dismissed, for the plaintiffs, citizens and taxpayers, some of whom are members of Congress, lack standing to maintain it.

On July 1, 1973, President Nixon signed into law two bills limiting United States involvement in those four countries comprised in what was once French Indochina. The two Acts prohibit the expenditure of funds to support 'combat activities by United States forces' in those countries after August 15, 1973. 1 To halt alleged violations of the laws, four congressmen and seventeen individuals have sued the Secretary of Defense and other officials. They claimed that the United States pays foreign mercenaries to fight, that American military advisors are attached to combat units, that American planes fly reconnaissance missions in support of bombing, that corporations now conduct military activities, that the United States maintains an attache office in South Vietnam, that the United States is stockpiling war ordnance in that area, and that American units still conduct clandestine activities in the area. They assert that expenditures for those activities violate the two Acts and Article I, § 9, Cl. 7 of the Constitution, which provides: 'No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . ..' The plaintiffs seek declaratory relief and an injunction to halt shipments of ordnance from the Military Ocean Terminal at Sunny Point, North Carolina, to Indochina 2, to prohibit the use of United States forces in that area, and to ban government spending on the allegedly prohibited activities.

The defendants moved to dismiss on the grounds that the plaintiffs lack standing, that the case involves a non-justiciable political question, and that the defendants are immune from suit. The District Court granted the motion, deciding that the case involves a political question. We affirm on the ground that the plaintiffs lack standing to maintain the action.

I.

Seventeen individual plaintiffs assert standing as taxpayers. Indeed, taxpayers do have standing to question the constitutionality of congressional appropriations if they can demonstrate both a logical link between their status as taxpayers and the challenged legislation and a nexus between their taxpayer status and the claimed constitutional infringement. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947. There the plaintiffs were held to have standing to challenge congressional appropriations in violation of the expressed prohibition of the Establishment and Free Exercise Clause. In considering the presence of the requisite nexus, however, the court is required to look to the substantive issues actually presented for adjudication. 3 The Supreme Court did just that in United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678, where the plaintiffs sought to enjoin publication of the 'Combined Statement of Receipts, Expenditures, and Balances of the United States Government' upon the ground that it did not include expenditures of the Central Intelligence Agency, which was said to be in violation of the 'regular Statement and Account' requirement of Article 1, § 9, Cl. 7 of the Constitution. The majority of a divided Court of Appeals for the Third Circuit, sitting en banc, upheld the plaintiff's standing. Richardson v. United States, 3d Cir., 465 F.2d 844. It was of the opinion that the plaintiff was challenging the constitutionality of appropriations for the Central Intelligence Agency and that, in any event, discovery of the amount and nature of those expenditures was such an essential precondition to a challenge of the appropriations themselves that the plaintiff's standing as taxpayer had the requisite relation to the constitutional question which was presented. The Supreme Court reversed. It viewed the issue not as a constitutional challenge to the validity of the congressional appropriations, but as a constitutional challenge to the validity of the statute providing special accounting procedures for the Central Intelligence Agency. The plaintiff's status as a taxpayer, it concluded, lacked the requisite nexus to the real constitutional controversy the case presented.

We must approach this case in the same manner.

The plaintiffs say that their claim is that the alleged expenditures are in violation of the first sentence of Article 1, § 9, Cl. 7 of the Constitution, but the defendants make no claim that the Executive has the right to spend unappropriated funds. There is no dispute about the Executive's being subject to the two statutes limiting expenditures of appropriated funds in Southeast Asia. The only controversy is centered entirely upon the meaning of the two statutes in the context of the expenditure of funds for activities in Southeast Asia after August 15, 1973. Presumptively, the defendants give the statutes a literal reading and assert compliance with them by the withdrawal of United States combatant forces. The plaintiffs clearly seek a much more expansive interpretation of the statutes so as to foreclose expenditures in support of the combatant forces of other nations and other activities which may or may not be combatant. To the extent that the controversy is not now moot by reason of the fall of South Vietnam and Cambodia, it would be resolved by an interpretation of the statutes as applied to whatever activity in Southeast Asia is now being conducted or financially supported by the United States.

The Flast requirements are not met. The plaintiffs present no constitutional challenge to any congressional appropriation. While they cite us to a constitutional limitation upon Executive expenditures the case presents no controversy about the reach or application of that provision. The real issue tendered, and Flast requires us to define it, is simply an interpretation of the statutes. Thus there is no nexus between the plaintiffs' status as taxpayers and any live issue regarding any constitutional limitation on the spending powers either of the Congress or of the Executive.

The taxpayers claim of standing is much weaker than that presented to the Supreme Court in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706. There the plaintiffs sought injunctive relief requiring the defendants to strike all members of Congress from the reserves of our armed forces and to seek to recover from members of Congress, and former members of Congress, the pay they had received as reservists during their congressional service. They also sought an injunction against the enrollment as a reservist of any other member of Congress during his congressional service and a declaration that a member of the reserves is an officer of the United States within the meaning of the Incompatibility Clause, Article 1, § 6, Cl. 2, and thus that one may not at the same time be a member of the reserves and a member of Congress. Though the relief sought included an injunction requiring an attempt to recover expenditures made in the form of reserve pay to members of Congress and former members, the Supreme Court gave the taxpayers standing claim short shrift. It contrasted Schlesinger with Flast where the taxpayer challenged congressional spending power under Article 1, § 8, and asserted that the challenged appropriations were in violation of the specific constitutional limits imposed upon the exercise of that spending power. In Schlesinger it was said that there was no challenge to any appropriations as being in violation of Article 1, § 8, the challenge being limited to action of the Executive Branch in permitting members of Congress to serve as reservists. In a footnote it was observed that while the Executive could not disburse reserve pay to persons who could not lawfully be reservists, such an act, if it had occurred, was not the consequence of a congressional appropriation authorizing payments to those lawfully enrolled in the reserves.

The clear teaching of Schlesinger is that Flast v. Cohen is not to be given a broad, expansive reading. It suggests that taxpayer standing may be found to be present only when congressional appropriations are being challenged on constitutional grounds. Whatever the implication of Schlesinger, however, we need not consider whether taxpayer standing might be said to be present in a case in which Executive expenditures were challenged on constitutional grounds. If there were a clear and flagrant violation of congressional limitations upon expenditures, a court in a taxpayer suit might find its intervention appropriate, but, as we have seen, there is no such clear or flagrant violation here. All that we have is a controversy about the interpretation and application of congressional statutes under which the challenged expenditures either were or were not authorized. While the effort in Schlesinger to compel attempts to recover payments to reservists while members of Congress presented the question of the status of reservists as officers of the United States within the meaning of the Incompatibility Clause, in this case there is simply no issue involving the application and interpretation of any constitutional provision. All that is sought is judicial interpretation of the...

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