United Presbyterian Church in the U.S.A. v. Reagan, 83-1012

• Decision Date: 17 July 1984
• Docket Number: No. 83-1012,83-1012
• Parties: UNITED PRESBYTERIAN CHURCH IN THE U.S.A., et al., Appellants, v. Ronald Wilson REAGAN, President of the United States, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1375

738 F.2d 1375

238 U.S.App.D.C. 229

UNITED PRESBYTERIAN CHURCH IN THE U.S.A., et al., Appellants, v. Ronald Wilson REAGAN, President of the United States, et al.

No. 83-1012.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 30, 1983.

Decided July 17, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-01824).

William H. Schaap, Washington, D.C., and Frank Edmund Deale, New York City, with whom Michael D. Ratner, New York City, and Morton Stavis, Hoboken, N.J., were on the brief, for appellants.

Daniel J. Anderson, Atty., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed), and Vincent M. Garvey, Washington, D.C., were on the brief, for appellees.

Daniel J. Popeo, Paul D. Kamenar and Nicholas E. Calio, Washington, D.C., were on the brief for Senators Jeremiah Denton and Jesse Helms, Congressmen Richard Cheney, Larry McDonald and Jack Fields, former Congressman Jim Jeffries, and the Washington Legal Foundation, amici curiae, urging affirmance.

Before BORK and SCALIA, Circuit Judges, and WILLIAMS, ^* Senior District Judge for the Central District of California.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

This suit against the President of the United States and the heads of various departments and agencies responsible for the conduct of intelligence and counterintelligence activities challenges the legality of Executive Order No. 12333, entitled "United States Intelligence Activities." The plaintiffs, appellants here, are political and religious organizations, private individuals assertedly active in political, religious, academic or journalistic affairs, and a Member of Congress. They appeal from dismissal of the suit for lack of standing and, in the case of the Member of Congress, on the ground of equitable discretion.

I

On December 4, 1981, President Reagan issued Executive Order No. 12333, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. Sec. 401 note (Supp. V 1981). That is the most recent in a series of executive orders, dating back to the Ford Administration, designed to specify the organization, procedures and limitations applicable to the foreign intelligence and counterintelligence activities of the Executive Branch. Parts 2 and 3 of the order, dealing with intelligence collection procedures and limitations, are set forth as an appendix to this opinion.

Appellants seek to challenge the legality of a number of features of the order, some of which are new but most of which are carried forward from the prior order on the same subject, Executive Order No. 12036, 3 C.F.R. 112 (1979), reprinted in 50 U.S.C. Sec. 401 note (Supp. III 1979). The order prescribes that nothing it contains "shall be construed to authorize any activity in violation of the Constitution or statutes of the United States," Sec. 2.8, 3 C.F.R. at 213 (1982), and requires agency heads to "[r]eport to the Attorney General possible violations of federal criminal laws by employees," Sec. 1.7(a), 3 C.F.R. at 204 (1982), and to "[r]eport to the Intelligence Oversight Board ... concerning any intelligence activities of their organizations that they have reason to believe may be unlawful," Sec. 1.7(d), 3 C.F.R. at 205 (1982). Appellants' complaint asserts, however, that the entire order violates the principle of separation of powers because it was promulgated without congressional authorization; and that various provisions on their face violate the National Security Act of 1947, 50 U.S.C. Sec. 403(d)(3) (1976), the First Amendment's guarantees of freedom of speech, political belief, association and religion and of nonestablishment of religion, the Fourth Amendment's guarantee against unreasonable searches and seizures, and the Fifth Amendment's guarantee of the right to travel. They request a declaratory judgment declaring the order to be unconstitutional, and an injunction and order of mandamus restraining the defendants from enforcing its provisions.

The district court dismissed the claims of all plaintiffs except Ronald V. Dellums for lack of standing, because "viewed as a whole the complaint fails to allege that any plaintiff has suffered any injury in fact under the Order." United Presbyterian Church v. Reagan, 557 F.Supp. 61, 63 (D.D.C.1982). It dismissed the claim of Ronald V. Dellums, a Member of Congress, under the doctrine of "equitable discretion." Id. at 64-65. Appellants all claim that two kinds of injury which they alleged supported standing: (1) the "chilling" of constitutionally protected activities which they may refrain from pursuing out of fear that such activities would cause them to be targeted for surveillance under the order; and (2) the immediate threat of being targeted for surveillance, and being thereby deprived of legal rights, especially those under the First, Fourth, and Fifth Amendments. In addition, Representative Dellums claims that he alleged special injury

as a legislator, and that as to him the complaint was wrongfully dismissed under the doctrine of equitable discretion. Finally, all appellants claim that the district court abused its discretion in refusing to allow discovery that would have permitted them to allege more specific injuries.

II

We find all of the appellants' alleged grievances insufficient to satisfy the injury-in-fact standing requirement imposed by Article III of the Constitution. "[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.' " Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982), quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979). The injury or threat must be "distinct and palpable," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), "concrete," Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 221, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706 (1974), " 'direct,' " O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), quoting Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923), and "both 'real and immediate,' not 'conjectural' or 'hypothetical,' " id., quoting Golden v. Zwickler, 394 U.S. 103, 109-10, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969), and United Public Workers v. Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947).

The injuries alleged by these appellants do not meet these requirements. The first kind of harm alleged, the "chilling effect" which is produced by their fear of being subjected to illegal surveillance and which deters them from conducting constitutionally protected activities, is foreclosed as a basis for standing by the Supreme Court's holding in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). There the plaintiffs alleged that a program of intelligence gathering conducted by the Army chilled the exercise of their First Amendment rights of speech and assembly. The Court declined to entertain the suit, holding that "[a]llegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." 408 U.S. at 13-14, 92 S.Ct. at 2325-2326. The Court distinguished its recognition of "chilling effect" in earlier decisions as follows:

[I]n each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.

Id. at 11, 92 S.Ct. at 2324. That is of course not the case here. Executive Order No. 12333 issues no commands or prohibitions to these plaintiffs, and sets forth no standards governing their conduct.

All of the Supreme Court cases employing the concept of "chilling effect" involve situations in which the plaintiff has unquestionably suffered some concrete harm (past or immediately threatened) apart from the "chill" itself. For example, he has been denied admission to the bar, Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971), or discharged from state employment, Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), or denied the delivery of mail, Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965), or required to take an oath on pain of dismissal from state employment, Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). "Chilling effect" is cited as the reason why the governmental imposition is invalid rather than as the harm which entitles the plaintiff to challenge it. In fact, some who have successfully challenged governmental action on "chilling effect" grounds have themselves demonstrably not suffered the harm of any chill, since they went ahead Appellants seek to distinguish Tatum because there the plaintiffs' fears were caused by otherwise lawful surveillance, whereas their own fears arise out of an order which they claim authorizes surveillance illegal for other reasons as well. That distinction might be relevant to the merits question of whether the harm consisting of the fear is remediable. But it has nothing to do with the standing question of whether the fear constitutes cognizable harm. On the latter point, Tatum is clear and categorical: "[a]llegations of a subjective 'chill' are not ... adequate." 408 U.S. at 13-14, 92 S.Ct. at 2325-2326. Cf. Allen v. Wright, --- U.S. ----, ----, 104 S.Ct. 3315, 3326, 81 L.Ed.2d ---- (1984) (reaching similar conclusion re: stigmatizing effect of...