Public Citizen v. Sampson

• Decision Date: 24 July 1974
• Docket Number: Civ. A. No. 74-303.
• Citation: 379 F. Supp. 662
• Parties: PUBLIC CITIZEN et al., Plaintiff, v. Arthur F. SAMPSON, Defendant.
• Court: U.S. District Court — District of Columbia

379 F. Supp. 662

PUBLIC CITIZEN et al., Plaintiff, v. Arthur F. SAMPSON, Defendant.

Civ. A. No. 74-303.

United States District Court, District of Columbia.

July 24, 1974.

Raymond T. Bonner and Alan B. Morrison, Washington, D. C., for plaintiff.

Carla A. Hills, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., David J. Anderson, and Michael W. Werth, Attys., Dept. of Justice, Washington, D. C., for defendants.

Maurice H. Klitzman, Chairman, Patent, Trademark & Copyright Law Section, and Douglas B. Henderson, Chairman, Briefing Committee, Patent, Trademark & Copyright Law Section, Bar Ass'n of the District of Columbia, Washington, D. C., on brief for the Bar Assn. of the District of Columbia, amicus curiae.

Gerald D. O'Brien, Arlington, Va., on brief for the Assn. for the Advancement of Invention and Innovation, amicus curiae.

Francis C. Browne, Washington, D. C., Counsel for American Council on Education and Assn. of American Medical College; Sheldon Elliot Steinbach, Washington, D. C., Counsel for American Council on Education; and Joseph A. Keyes, Washington, D. C., Counsel for Assn. of American Medical College, on brief for the American Council on Education and Assn. of American Medical College, amici curiae.

MEMORANDUM OPINION

WADDY, District Judge.

This cause is before the Court on plaintiffs' motion for summary judgment and defendant's motion to dismiss, the parties having submitted their respective points and authorities in support thereof and in opposition thereto, and the Court having considered same and the briefs amici curiae, and having heard oral arguments and taken said motions under advisement. Plaintiffs herein, seeking declaratory and injunctive relief, in a non-class action, attack on constitutional grounds certain regulations¹ promulgated by defendant Sampson, as Administrator of the General Services Administration, relating to standard contract clauses providing for the allocation of title and patent rights in possible resultant inventions developed under government-financed research and development contracts.

Plaintiffs are Public Citizen, Inc., a non-profit taxpaying organization supported by public donations, and seven individual Congressmen. All plaintiffs allege injury as taxpayers and consumers; Congressmen plaintiffs allege injury qua members of Congress.

Defendant is the Administrator of the General Services Administration (GSA) and as such is responsible for the formulation and promulgation of rules and regulations issued by that federal executive agency.

In the complaint, plaintiffs allege that the subject regulations authorize federal agencies to grant greater rights than a non-exclusive license ("exclusive rights") to patents and inventions developed under federally-financed research and development contracts, including the authority to grant such exclusive rights at the time of entering into such contracts, without Congressional approval as required by Article 4, Section 3, Clause 2 of the United States Constitution.²

Plaintiff has moved for summary judgment claiming that there is no genuine issue of material fact and that they are entitled to a judgment as a matter of law. Defendant has moved, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, to dismiss the complaint on the grounds that (1) plaintiffs lack standing to sue and (2) the complaint fails to state a claim upon which relief can be granted. This Court finds that all plaintiffs lack standing to sue and that defendant's motion to dismiss should be granted.

STANDING

In Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L.Ed.2d 947 (1968) the Supreme Court of the United States stated:

"The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The `gist of the question of standing' is whether the party seeking relief has `alleged such a personal stake in the outcome of the controversy as to assure that 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, 703, 7 L.Ed.2d 663 (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." 392 U.S. at 99, 88 S.Ct. at 1952.

In Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the Supreme Court formulated a dual test for determining standing to sue. This test requires, first, that plaintiffs allege that the challenged acts have caused them "injury in fact, economic or otherwise," 397 U.S. at 152, 90 S.Ct. at 829, and second, that "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." 397 U.S. at 153, 90 S.Ct. at 830. Or, as the Supreme Court stated in Flast, supra, a "logical nexus between the status asserted and the claim sought to be adjudicated." 392 U.S. at 102, 88 S.Ct. at 1953. This test for the determination of standing was re-affirmed by the Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

STANDING AS TAXPAYERS

Plaintiffs allege, in paragraph 13 of the complaint, that "all of the plaintiffs are harmed as taxpayers because the patents and inventions will be developed at the government's expense, and the Regulations provide for the granting of exclusive rights thereto, without compensation, at the time of entering into the contract." In Flast, supra, the Supreme Court squarely faced the issue of taxpayer standing and found that

"a taxpayer will be the proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute." 392 U.S. at 102, 88 S.Ct. at 1954.

Recently, in the case of Schlesinger v. Reservists Committee to Stop the War, ___ U.S. ___, 94 S.Ct. 2924, 41 L.Ed.2d 706 (1974), the Court reaffirmed its decision in Flast in agreeing with the holding of Judge Gesell of this Court, Reservists Committee to Stop the War v. Laird, D.C., 323 F.Supp. 833, 840, that where the complaint

"did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch in permitting Members of Congress to maintain their Reserve status," ___ U.S. ___, 94 S.Ct. at 2935,

there could be no taxpayer standing under Flast since, as stated by Justice Stewart in his concurring opinion, ". . . there is simply no challenge to an exercise of the taxing and spending power." 42 LW at 5095. Accordingly, the plaintiffs in this action as taxpayers have no standing since they do not challenge Congressional action under Art. I, § 8, but rather they challenge the promulgation of regulations by an Executive agency, and fail to satisfy the nexus test required by Flast.

STANDING AS CONSUMERS

All plaintiffs also allege injury as consumers. Paragraph 14 of the complaint alleges that "Congressmen plaintiffs as consumers and the consumers who support plaintiff Public Citizen will suffer economic harm, since those persons who acquire exclusive rights will enjoy a monopoly position, and consequently prices of many products affected by the patents and inventions will increase." The Court finds that these allegations are insufficient to meet the test of "injury in fact, economic or otherwise," required by Data Processing, supra.

The Supreme Court has had recent occasion to speak to the question of injury in fact. In O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), the Court, in holding that plaintiffs had failed to allege a case or controversy, said, at 4141:

"Plaintiffs in the federal courts `must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction." Linda R. S. v. Richard D., 410 U.S. 614, 617 93 S. Ct. 1146, 35 L.Ed.2d 536 (1973). There must be a `personal stake in the outcome' such as to `assure that 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). Nor is the principle different where statutory issues are raised. Cf. United States v. SCRAP, 412 U.S. 669, 687 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Abstract injury is not enough. It must be alleged that the plaintiff `has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged statute or official conduct. Massachusetts v. Mellon, 262 U.S. 447, 448 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The injury or threat of injury must be both `real and immediate,' not `conjectural' or `hypothetical.' Golden v. Zwickler, 394 U.S. 103, 109-110 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 61 S.Ct. 510, 85 L.Ed. 826 (1941); United Public Workers v. Mitchell, 330 U.S. 75, 89-91 67 S.Ct. 556, 91 L.Ed. 754 (1947)." (

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