Nader v. Saxbe

• Decision Date: 04 April 1974
• Docket Number: No. 73-1307.,73-1307.
• Parties: Ralph NADER et al., Appellants v. William Bart SAXBE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

497 F.2d 676 (1974)

Ralph NADER et al., Appellants v. William Bart SAXBE et al.

No. 73-1307.

United States Court of Appeals, District of Columbia Circuit.

Argued January 11, 1974.

Decided April 4, 1974.

William A. Dobrovir, Washington, D. C., with whom Andra N. Oakes, Washington, D. C., was on the brief, for appellants.

Thomas G. Wilson, Atty., Dept. of Justice, with whom Morton Hollander, Atty., Dept. of Justice, was on the brief, for appellees. William D. Appler, Washington, D. C., also entered an appearance for appellees.

Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and WYZANSKI,^* Senior District Judge.

J. SKELLY WRIGHT, Circuit Judge:

Plaintiffs-appellants, a citizen of voting age and a nonprofit corporation (Public Citizen, Inc.), sought a declaratory judgment, a mandatory injunction, and an "order in the nature of mandamus" to compel the Attorney General and the United States Attorney for the District of Columbia¹ "to exercise their discretion to initiate prosecutions" against violators of the 1925 Federal Corrupt Practices Act² (FCPA). The District Court, in a very able opinion, found standing to sue in the plaintiffs but dismissed their complaint for failure to state a claim on which relief could be granted.³ The court held also that the complaint was self-defeating in that it effectively admitted that the Attorney General had already exercised his prosecutorial discretion with respect to the FCPA.⁴ We affirm the dismissal, but on different grounds.

I

The FCPA required candidates and committees supporting candidates for the presidency, the Senate, and the House of Representatives to file reports on campaign contributions and expenditures with the Secretary of the Senate (for Senate candidates and committees) and the Clerk of the House (for House and presidential candidates and committees).⁵ Failure to do so was punishable by fine and/or imprisonment.⁶ The FCPA was repealed and superseded by the Federal Election Campaign Act⁷ (FECA), effective 60 days following the signing of the Act on February 7, 1972 (i. e., April 9, 1972), but the repeal did not eliminate criminal liability for violations of the old statute,⁸ these remaining subject to prosecution until cut off by the five-year period of limitations.⁹

The complaint, filed February 8, 1972,¹⁰ alleged that only one prosecution, a test case,¹¹ had ever been brought under the FCPA. Supporting its contention that more could have been brought, the complaint listed many alleged violations committed in 1964, 1966, 1968 and 1970. Plaintiffs traced nonenforcement in recent times to a policy, allegedly adopted by Attorney General Herbert Brownell in 1954 and followed by his successors in office, to exercise prosecutorial discretion only with respect to violations referred to the Justice Department by the Clerk of the House or the Secretary of the Senate. According to the complaint, such referrals were made only in November of 1968 and January of 1971; even in those years, many notorious violations were not referred; and the Justice Department ultimately declined to prosecute any of the referred violations.¹²

Plaintiffs claimed that the Justice Department's passivity nullified the FCPA, "fostered corruption, fraud and dishonesty in the electoral process," and deprived voters — such as plaintiff Nader — of important information about candidates for federal office.¹³ Accordingly, plaintiffs sought a declaratory judgment that the "failure to exercise prosecutorial discretion" and the "purported delegation" of enforcement duties to clerical aides of the Congress were unlawful.¹⁴ In addition, the complaint sought an injunction against the purported delegation and "an order in the nature of mandamus to defendants Attorney General and United States Attorney compelling them to exercise their discretion to initiate prosecutions against violators of the FCPA."¹⁵

II

The District Court dismissed the complaint on two, alternate grounds. First, having examined a line of precedent suggesting that prosecutorial decision-making is wholly immune from judicial review, the court concluded that

if plaintiffs are to have any relief they must acquire it at the appellate level or through the political process.¹⁶

Second, the court held that the Attorney General's determination not to prosecute 1968 and 1970 violations referred by congressional personnel amounted to an exercise of discretion:

Therefore, assuming arguendo that the court has the power to compel the defendants to exercise their discretion, it could do no more than order them to do what plaintiffs admit they have already done.¹⁷

We would hesitate to affirm dismissal on either of these grounds. That congressional personnel referred some violations to the Justice Department, which the Department declined to prosecute, does not necessarily imply that the Department had abandoned the allegedly unlawful policies challenged by the plaintiffs, i. e., the policy of bringing absolutely no prosecutions and the policy of delegating preliminary enforcement functions to persons outside the Executive Branch. Nor do established precedents necessarily foreclose judicial review of those policies. The instant complaint does not ask the court to assume the essentially Executive function of deciding whether a particular alleged violator should be prosecuted.¹⁸ Rather, the complaint seeks a conventionally judicial determination of whether certain fixed policies allegedly followed by the Justice Department and the United States Attorney's office lie outside the constitutional and statutory limits of "prosecutorial discretion."¹⁹

Dismissal was nevertheless proper, for plaintiffs lack standing to sue. To hold this status, a litigant must show that he has sustained or will sustain an injury in fact,²⁰ that his situation comes within a "zone of interest" arguably protected by the statute in question,²¹ and that a "logical nexus" links the injury in fact to the governmental action sought or challenged.²² Plaintiffs adequately alleged as injury in fact the lack of election campaign information forthcoming under the FCPA.²³ Plaintiffs would also appear to be in the "zone of interest" protected by the FCPA.²⁴ But there is no longer a logical nexus between the injury and the relief sought.²⁵ Plaintiffs do not seek any relief, e. g., damages, for injuries already inflicted upon them by the allegedly unlawful policies of the Justice Department. Rather, they ask only prospective relief, i. e., declaratory judgment, mandatory injunction, and an order in the nature of mandamus. See Diffenderfer v. Central Baptist Church, 404 U.S. 412, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972). Such relief will not remedy plaintiffs' injuries, for it will not generate any campaign information. Enforcement of the FCPA, while still possible with respect to past violators, can no longer induce compliance with the Act's reporting requirements, for the Act has been repealed.

Since the District Court's opinion, the Supreme Court has emphasized that the nexus issue must receive close scrutiny where, as here, victims or potential victims of criminal acts sue to correct allegedly unlawful prosecutorial conduct. Linda R. S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973).²⁶ We do not read Linda R. S. to preclude standing in all such suits,²⁷ but the case before us is peculiarly weak. Concededly, at the time the complaint was filed — 59 days before the effective date of the repeal legislation — it was not unreasonable to suppose that the relief sought would so alter enforcement of the FCPA as to induce compliance during the final — March 1972 — reporting period. The ensuing flow of campaign information would have remedied plaintiffs' injury. Such a plausible chain of effects often meets the nexus requirement for standing.²⁸ But, on April 9, 1972, months before the District Court's decision was rendered, the chain was broken by effective repeal of the FCPA. A change now in Justice Department policies would not stimulate a flow of pre-April 9, 1972 information, for past violators of the FCPA cannot escape statutory liability by making tardy disclosure. Nor would a change of policies with respect to the FCPA have an adequate nexus with the future flow of campaign information. Repeal has terminated any duty to comply with the FCPA, and the new statute is so different in substance and procedure²⁹ that we cannot fairly predict that enforcement of the FCPA would induce compliance with it.³⁰ Consequently, so far as standing is concerned, events have mooted this case.³¹

Affirmed.

* Of the United States District Court for the District of Massachusetts, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

1 The complaint also named as defendants the Clerk of the House of Representatives and the Secretary of the Senate. The dismissal as to them has not been appealed. Appellee Saxbe is a successor in office to the party named in the complaint, John N. Mitchell, and to the party named in the District Court's opinion, Richard G. Kleindienst. Appellee Silbert is successor in office to Harold H. Titus, Jr., named in the complaint and in the opinion of the District Court. These substitutions have been effected automatically pursuant to Rule 43(c), Fed.R. App.P., and Rule 25(d), Fed.R.Civ.P.

2 43 Stat. 1070 et seq., 2 U.S.C. former §§ 241-256, repealed by the Federal Election Campaign Act (FECA), Pub.L. 92-225, Title IV, § 405, Feb. 7, 1972, 86 Stat. 20.

3 Nader v. Kleindienst, D.C., 375 F.Supp. 1138, 1973 (Memorandum and Order at 6-11).

4 Id. at 11.

5 Required to report as "political committees" were all organizations accepting contributions or making expenditures designed to influence the general (not primary) election of federal candidates in two or more states. 2 U.S.C. former § 241. Financial reports were due annually on January 1, between the 1st and 10th days of March, June and September, and between the 10th and 15th days and on the 5th...