Moore v. U.S. House of Representatives

733 F.2d 946, 236 U.S. App. D.C. 115, 53 A.F.T.R.2d (RIA) 1286, 1984 U.S. App. LEXIS 22836

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 4, 1984
• Docket: Nos. 83-1077, 83-1190
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge WILKEY.

Concurring opinion filed by Circuit Judge SCALIA.

WILKEY, Circuit Judge:

Eighteen members of the United States House of Representatives appeal from a decision of the district court which dismissed their challenge to the constitutionality of the Tax Equity and Fiscal Responsibility Act of 1982.¹ The district court dismissed their complaint on the ground that the legislators lacked standing, and, alternatively, on the ground that in the court’s remedial discretion, declaratory relief should not be granted for the stated claim. We hold that the appellants have standing to sue, but we affirm the district court’s dismissal as a proper exercise of the court’s remedial discretion to withhold declaratory relief for the appellants’ claim.

I. Background

All of the appellants were members of the United States House of Representatives (“the House”) for the 97th Congress, and some of them were also members of the Committee on Ways and Means of the House in that Congress. The appellants sued the United States House of Representatives, the United States Senate, the Speaker of the House, the President of the Senate, the Clerk of the House, and the Secretary of the Senate in the District Court for the District of Columbia. The United States intervened as a defendant in the case. Appellants sought a declaratory judgment that the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”)² was unconstitutional because it originated in the Senate in contravention of the Origination Clause of the U.S. Constitution. That clause provides that all “bills for raising revenue” shall originate in the House, although the Senate may make amendments as on other bills.³

The appellants’ complaint alleges the following facts.⁴ On 14 December 1981, H.R. 4961, which had been introduced in the House, was reported favorably to the House by the House Committee on Ways and Means. As reported by the Committee, the bill comprised six sections amending the Internal Revenue Code, the' net effect of which would have been to reduce the amount of tax revenue collected. The House approved H.R. 4961 without amendment and sent it to the Senate on 15 December 1981.⁵

The bill was received by the Committee on Finance of the Senate, which reported H.R. 4961 favorably to the Senate on 12 July 1982. The bill as reported to the Senate still carried the House bill number but it had been substantially amended. The six revenue-reducing provisions following the bill’s enacting clause had been deleted and replaced by a massive tax-increasing proposal. Instead of reducing the amount of revenue collected, the bill as amended proposed to increase revenue by more than $98 billion over three years. The Senate passed the amended H.R. 4961, newly entitled “The Tax Equity and Fiscal Responsibility Act of 1982,” and returned it to the House.⁶

Upon the bill’s return to the House, Appellant Rousselot offered a resolution to the House which proposed to resolve that the Senate’s amendments to H.R. 4961 contravened the Origination Clause of the Constitution. His proffered resolution further proposed that the bill be returned to the Senate without further action by the House. The Chairman of the Committee on Ways and Means of the House moved to table the appellant’s resolution and the motion to table carried the House. The Chairman of the House Committee on Ways and Means, at the direction of the Committee, then moved to send H.R. 4961 to conference with the Senate, without first referring it back to the House Committee on Ways and Means. The House agreed to that motion, and the bill was sent to conference.⁷ H.R. 4961 was subsequently reported out of joint conference and it passed both the House and the Senate in August 1982. The President signed the bill into law.

The appellants’ complaint charges that the revenue bill as originally introduced in the House was not a bill for “raising revenue” within the meaning of the Origination Clause, because the net effect of the bill would have been to reduce the amount of revenue collected. Thus, the appellants charge, when the Senate amended H.R. 4961 so that the net effect of the bill's provisions was to increase the amount of revenue collected, the bill became one for •raising revenue and it originated improperly in the Senate.⁸ The merit of the appellants’ claim turns on whether the phrase in the Origination Clause referring to “bills for raising revenue” means bills that increase revenue, in which case TEFRA unconstitutionally originated in the Senate under the alleged facts, or whether the phrase means all bills for collecting revenue — revenue-increasing as well as revenue-decreasing bills — in which case TEFRA constitutionally originated in the House and was merely amended by the Senate according to the facts stated in the appellants’ complaint.⁹

In their complaint, the appellants allege injury in their official capacities as members of the House and of the Committee on Ways and Means of the House by the defendants’ interference with the appellants’ legislative duties in originating bills for raising revenue. They further allege that they were injured individually and derivatively as members of the House by abrogation of the right of the House to originate bills for raising revenues.¹⁰

The plaintiffs moved for summary judgment in the district court and the defendants moved to dismiss the complaint on the grounds that the plaintiffs lacked standing and that the court should exercise its remedial discretion to withhold relief. The district court granted the defendants’ motion to dismiss, holding that the plaintiffs lacked standing, and, alternatively, that the doctrine of remedial discretion warranted dismissal.

II.Standing

The district court held that the appellants had not alleged an injury in fact sufficient to give rise to standing. We disagree. For the purposes of determining the standing of appellants to sue, we must assume the validity of the appellants’ claim and construe the complaint in favor of the complaining parties.¹¹ Thus we assume, but do not decide, that TEFRA unconstitu-. tionally originated in the Senate under the alleged facts.

Article III of the Constitution limits the jurisdiction of the federal courts to “cases or controversies.” This constitutional limitation on the power of the federal judiciary is reflected in principles of standing, which ensure that a party who invokes the court’s jurisdiction presents a case that falls within the constitutional power of the federal courts.¹² As the Supreme Court stated in Baker v. Carr, in order to be a proper party to litigate a claim, the claimant must “allege 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.”¹³ In the recent case of Valley Forge Christian College v. Americans United for Separation of Church and State, the Supreme Court noted that this precondition is essential in order properly to confine the role of the Judiciary in the tripartite system of government mandated by the Constitution.¹⁴

The particular requirements of standing were summarized by the Supreme Court in Valley Forge:

Article 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” ... and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision”-____¹⁵

In addition, the claimant’s injury must fall within the zone of interests protected by the constitutional provision allegedly violated.¹⁶ Applying those requirements to the instant case, we must determine whether (1) the congressional claimants suffered an injury in fact (2) to an interest protected by the Origination Clause, (3) which injury was caused by the defendants’ actions, and (4) which injury could be redressed by a favorable decision of the court.¹⁷ We address each of these requirements in turn.

The appellants allege a specific injury in fact to a cognizable legal interest, thereby satisfying the first requirement of standing.¹⁸ Suits against coordinate branches of government by congressional plaintiffs pose separation-of-powers concerns which may affect a complainant’s standing to invoke the jurisdiction of the federal courts. To the extent that the Constitution envisions limited federal court jurisdiction out of respect for the coordinate branches of government, we have been reluctant to grant standing to members of Congress alleging generalized, amorphous injuries due to either the actions of their colleagues in Congress or the conduct of the Executive. Although the parties in Valley Forge were private taxpayers and a private college and not, as here, members of coordinate branches of government, this recent Supreme Court case reinforces the principle that where separation-of-powers concerns are present, the plaintiff’s alleged injury must be specific and cognizable in order to give rise to standing.¹⁹ Likewise, in Harrington v. Bush, this court insisted that congressional complainants clearly allege a concrete injury in fact to a specific legal interest in order to invoke the jurisdiction of the court.²⁰

The injury alleged by appellants here is to an interest positively identified by the Constitution, which mandates a specific procedure by which a revenue-raising bill shall become law. The Origination Clause provides:

All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose and concur with Amendments as on other bills.²¹

The appellants allege a specific injury in fact to a cognizable legal interest: the deprivation of an opportunity to debate and vote on the origination of TEFRA in the House. The appellants claim a specific injury in their official capacities as members of the House by the nullification of their right to originate, by debate and vote, a bill for raising revenue prior to legislative action by the Senate.

It is important to note that the injury claimed here is to the members’ rights to participate and vote on legislation in a manner defined by the Constitution. Deprivation of a constitutionally mandated process of enacting law may inflict a more specific injury on a member of Congress than would be presented by a generalized complaint that a legislator’s effectiveness is diminished by allegedly illegal activities taking place outside the legislative forum.²² In Kennedy v. Sampson,²³ for example, this court held that Senator Kennedy had standing to sue the Executive for injury allegedly due to an unlawful pocket veto of legislation which the Senator had supported. The court found that the deprivation of a constitutional process by which a bill becomes law was a sufficiently specific injury to support standing by the congressional plaintiff. By contrast, in Harrington v. Bush, this court denied standing to a member of the House who claimed that certain activities of the Central Intelligence Agency were illegal, and that such unlawful conduct diminished his effectiveness as a legislator.²⁴ The Court found that the complaining party did not have a connection to the claimed unlawful acts of the CIA such that the outcome of the case would cause him to win or lose; he was merely a bystander. Likewise, in American Federation of Government Employees v. Pierce, this court held that a member of the House lacked standing to sue over the allegedly improper execution of an enacted law.²⁵ The injury to the legislator was a generalized grievance about the conduct of government, not a claim founded on injury to the legislator by distortion of the process by which a bill becomes law — a process in which a legislator has a right and a duty to participate.

Appellants’ claimed injury here does not descend to the level of being a subjective, amorphous grievance of the legislators’ diminished effectiveness due to defendants’ unlawful conduct. The appellants’ claimed' injury — the deprivation of debate and a vote in the origination of revenue-raising legislation — is specific and concrete. The claimants have satisfied-the requirement of alleging a clear injury in fact, which is essential in order to obtain judicial review of the actions of a coordinate branch of government.

Furthermore, the fact that the House as a body may have been injured by the allegedly unconstitutional origination of TE-FRA in the Senate does not negate an injury in fact to the individual members. In Kennedy v. Sampson,26 this court noted that when Congress’ role in government is diminished by unconstitutional Executive action so, too, is the official role of individual members of Congress. Likewise, in Goldwater v. Carter,27 we held that individual Senators had standing to sue the Executive in a challenge to the constitutionality of the President’s termination of a Mutual Defense Treaty with Taiwan without the consent of the Senate. In Goldwater, the fact that the claimed unconstitutional conduct may have injured the Senate as a body did not deprive the individual Senators of standing to sue. Standing principles do not require that a party be the most grievously injured, only that he be “among the injured.”²⁸ Appellants here claim deprivation of a particular opportunity to vote in a manner prescribed by the Constitution. Both the alleged injury and the legal interest are specific and concrete.²⁹

Never has it heretofore been suggested, as the concurrence now posits, that specific injury to a legislator in his official capacity is not a cognizable harm in the federal courts. In each congressional standing case before this court, the inquiry has properly focused on whether the harm to the legislator is definable and discernible in determining whether a congressional plaintiff has standing. From Kennedy v. Sampson to Harrington v. Bush and American Federation of Government Employees v. Pierce, we have held that unconstitutional deprivations of a legislator’s constitutional duties or rights, such as the nullification of a legislator’s vote by illegal Executive action, may give rise to standing if the injuries are specific and discernible.³⁰

Valley Forge supports this method of analysis, as that case scrutinized the specificity of the plaintiffs’ injury in holding that private taxpayers lacked standing when they failed to suffer any actual injury by an allegedly unconstitutional transfer of property from the federal government to a religious college. That case casts no shadow on the validity of prior Supreme Court cases which squarely find that an injury to a public servant in his official capacity may be a cognizable legal injury for the purposes of standing. In Coleman v. Miller31 the Supreme Court held that state senators whose votes were unlawfully overridden by illegal action by the state’s executive branch had standing to compel a proper record of legislative action under Article V of the Constitution, which governs the power to amend. The Court found that the senators had suffered a cognizable injury in their official capacities. The Court stated, “We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes____ They have set up and claimed a right and privilege under the Constitution to have their votes given effect.” ³² That allegedly unconstitutional injury to official powers conferred standing on the senators. Such is the nature of the appellants’ claimed injury in the instant case.

When the concurrence argues that the federal courts lack power to adjudicate claims involving injury to legislators and other public officials by the unlawful deprivation of their constitutional powers and rights, it is really making a political question argument in the guise of standing analysis. The concurrence not only imports political question doctrine wholesale into standing principles, but in so doing it also greatly expands the concept of nonjusticiable political questions. While disputes under certain provisions of the Constitution may be nonjusticiable political questions committed to a coordinate branch of government, the mere fact that a case involves an unlawful deprivation of a legislator’s powers by members of a coordinate branch of government does not automatically deprive the federal courts of power to adjudicate the claim.

The Supreme Court has implicitly held that issues under the Origination Clause are not nonjusticiable political questions, by the Court’s adjudication of several challenges to revenue acts brought under the Origination Clause.³³ The concurrence attempts to accomplish under the rubric of “standing” what the Supreme Court has rejected in its prior decisions. Indeed the concurrence concedes that its so-called “standing” analysis turns on the nature of the claim — which it defines here as “legislative powers” — and not on the identity of the parties.³⁴ Because any claim under the Origination Clause, including one brought by a private taxpayer, will necessarily pertain to the exercise of legislative power, under the concurrence’s “standing” analysis, no one will ever have standing to sue for such an alleged constitutional violation.

Thus, in its application to the instant case, the concurrence’s approach attempts an end-run around prior Supreme Court cases which found such issues justiciable. As applied to other cases, the concurrence’s approach, by its extreme expansion of the political question doctrine in the context of standing analysis, would greatly curtail the exercise of federal court jurisdiction over matters that touch upon a coordinate branch of government.

In addition to alleging an injury in fact sufficient to support standing, appellants have satisfied the other requirements of standing. The alleged injury to appellants is within the zone of interests protected by the Origination Clause.³⁵ Similar constitutional provisions governing the process of enacting legislation or establishing privileges or duties for one of the houses of Congress have been interpreted to protect the interests of individual members of Congress. In Kennedy v. Sampson and in Goldwater v. Carter we found that the interests of individual legislators were within the zone of interests protected by constitutional provisions that granted rights to the House or the Senate similar to the legislative prerogative given to the House by the Origination Clause.³⁶

Furthermore, the appellants satisfy the third requirement of standing which requires that the injury alleged be traceable to the challenged actions of the defendants. The defendants’ actions permitted TEFRA to originate improperly in the Senate according to the facts alleged by appellants in their complaint. That the House as a body could have prevented the enactment of TEFRA after its allegedly unlawful origination in the Senate does not deprive the individual members of the House of standing to sue. The unwillingness of a majority of the members to reject TEFRA after the allegedly unconstitutional origination of the bill in the Senate cannot deprive the appellants — minority members of the House — of their right to participate in a constitutionally prescribed method of enacting revenue-raising legislation.

Finally, the injury alleged here is capable of redress by the Judiciary, thereby satisfying the fourth requirement of standing as stated by the Supreme Court in Valley Forge37 Judicial remedies such as declaratory and injunctive relief for the claimed unlawful conduct are within the court’s judicial power and thus the court is capable of remedying the violation alleged here. The appellants have standing to maintain this action.

III. Remedial Discretion

The fact that the appellants have satisfied the constitutional requirements for standing, however, does not end our inquiry into separation-of-powers issues. While the separation-of-powers concerns presented by this case do not deprive the court of power to adjudicate under Article III — a result the concurrence would reach under the rubric of standing — they may affect the proper exercise of judicial discretion to grant or withhold declaratory relief for the stated claim. Consideration of these issues separately under the doctrine of remedial discretion permits the court to exercise judicial self-restraint in particular matters intruding upon a coordinate branch of government, and avoids both distorting the constitutional requirements for standing articulated by the Supreme Court in recent cases, and rewriting our own decisions on standing.³⁸

While we could conceive of judicial remedies to right the wrong claimed here, we affirm the district court’s dismissal of this action as a proper exercise of the court’s remedial discretion to withhold declaratory relief. Dismissal of the claimants’ action is consistent with the doctrine of remedial discretion.³⁹ It is important to note that the appellants here requested only declaratory relief. Declaratory relief is discretionary with the Court, and it may be denied when prudential considerations counsel against its use. In Winpisinger v. Watson, this court noted that declaratory relief should be denied when it will not serve a useful purpose.⁴⁰ And in Lampkin v. Connor, we affirmed the dismissal of plaintiffs’ claim because, as a prudential matter, granting declaratory relief would be unwise.⁴¹

The principle that a meritorious plaintiff is not automatically entitled to declaratory relief regardless of the availability of other forms of relief is not a new one in the federal courts. In Brillhart v. Excess Insurance Co., Justice Frankfurter, writing for the Court, upheld a district court’s dismissal of an action for declaratory relief as a proper exercise of the court’s discretion to decline to afford declaratory relief.⁴² Although the district court had jurisdictional power to hear the case, the Court held that federalism concerns properly counseled restraint in affording declaratory relief to the parties before the court. Likewise, in Wilderness Society v. Morton ⁴³ this court, sitting en banc, declined to afford declaratory relief to a plaintiff challenging the legality of action by an administrative agency. Despite the existence of jurisdiction to decide the merits, not a single judge dissented from the holding that the court should exercise its “judicial discretion to dismiss the action without a determination on the merits.”⁴⁴ The en banc court noted that the issuance of a declaratory judgment is discretionary and that where a case involves “difficult questions concerning the relationship between the legislative and executive branches,” that discretion may be properly exercised by declining to grant declaratory relief.⁴⁵ Such an exercise of discretion may be proper, even if, as in that case, no other form of relief was requested or granted for the stated claim.

The exercise of this judicial discretion in actions by congressional plaintiffs for declaratory relief has given the courts the needed flexibility to consider separation-of-powers concerns in determining whether relief properly should be granted, without impairing clarity of standing analysis. In Riegle v. Federal Open Market Committee,46 this court affirmed the dismissal of a senator’s suit challenging the constitutionality of the Federal Reserve Act. That act requires that five of the twelve members of the Federal Open Market Committee (“FOMC”) be elected by the Board of Directors of the Federal Reserve Banks, without the advice and consent of the Senate, and they must be presidents or first vice-presidents of those banks. Senator Riegle argued that this selection process violated his rights under the Appointments Clause and he sought to enjoin the five Federal Reserve Bank members of the FOMC from voting. Although we held that Senator Riegle had standing to sue, prudential concerns led us to affirm dismissal of the action. First, Senator Riegle’s dispute was primarily with other members of Congress, and he “could obtain substantial relief from his fellow legislators through the enactment, repeal, or amendment of a statute.” ⁴⁷ Second, private plaintiffs had standing to challenge the statute, affording an opportunity for review of the statute in a setting where separation-of-powers concerns were less acute. We concluded that when a congressional plaintiff’s dispute is primarily with other members of Congress and when private plaintiffs would have standing to challenge the allegedly unconstitutional conduct, the doctrine'of remedial discretion counsels judicial restraint in affording the congressional plaintiff declaratory or injunctive relief.

This court reaffirmed those principles in Vander Jagt v. O’Neill.⁴⁸ In that case, congressional plaintiffs sued members of the House, seeking a judicial determination that the committee appointments system employed by the House leadership was unconstitutional. The court held that the plaintiffs had standing to sue but that the suit should be dismissed for prudential considerations. It noted that respect for a coordinate branch of government counseled restraint in the exercise of the court’s remedial powers. And recently in Crockett v. Reagan, we affirmed the dismissal of a congressional plaintiff’s challenge to congressionally approved aid to El Salvador, on the ground that dismissal was a proper exercise of the court’s remedial discretion to withhold relief.⁴⁹

Prudential considerations present in those suits prompted judicial restraint in the exercise of the federal court’s remedial powers under Article III. Congressional actions pose a real danger of misuse of the courts by members of Congress whose actual dispute is with their fellow legislators. We are reluctant to meddle in the internal affairs of the legislative branch, and the doctrine of remedial discretion properly permits us to consider the prudential, separation-of-powers concerns posed by a suit for declaratory relief against the complainant’s colleagues in Congress.⁵⁰

In the instant case, the appellants’ dispute over the origination of TEFRA is primarily a controversy with other members of Congress. As in Riegle, Vander Jagt, and Crockett, this factor counsels restraint in the exercise of our remedial powers. Here, the appellants seek to vindicate their rights by asking us to declare TEFRA a nullity, but, as in Riegle, those rights can be vindicated by congressional repeal of the statute. Furthermore, we note that private taxpayers have been found to have standing to challenge the constitutionality of TEFRA under the Origination Clause, so the issue will not go unresolved.⁵¹ Given the separation-of-powers concerns posed by this suit, we find that the district court was properly reluctant to exercise its remedial powers to grant the appellants the declaratory relief requested.

IV. Conclusión

We conclude that the congressional appellants have standing to challenge the constitutionality of TEFRA under the Origination Clause. We affirm the district court’s dismissal, however, as a proper exercise of the court’s discretion to withhold declaratory relief for prudential reasons. Accordingly, the judgment of the district court is

Affirmed.

1 . 553 F.Supp. 267 (D.D.C.1982) (mem.).

2 .. Pub.L. No. 97-248.

3 . U.S. Const, art. I, § 7, cl. 1. The Supreme Court has adjudicated several challenges to revenue acts under the Origination Clause, brought by private plaintiffs. See, e.g., Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389 (1911); Millard v. Roberts, 202 U.S. 429, 26 S.Ct. 674, 50 L.Ed. 1090 (1906).

4 . This appeal comprises two cases filed in the district court. Representative W. Henson Moore and 17 other members of the House filed a complaint in August 1982; Representative Ron Paul filed a similar action two days later. Because the two cases present common questions of law, they were consolidated in the district court. References to the complaint hereinafter are to the complaint filed by Representative W. Henson Moore, et al.

5 . Complaint ¶¶ 3, 4; Joint Appendix (J.A.) at 17.

6 . Complaint ¶¶ 5-7; J.A. at 17-18.

7 . Complaint ¶¶ 8-10; J.A. at 18.

8 . The appellants have not claimed that the Senate’s amendments are unlawful on the ground that amendments of this magnitude are beyond the scope of the Senate’s power to amend with respect to any type of bill. See Flint v. Stone Tracy Co., 220 U.S. 107, 143, 31 S.Ct. 342, 346, 55 L.Ed. 389 (1911) (Senate may propose any amendment "germane to the subject-matter of the bill”).

9 . See Armstrong v. United States (S.D.Cal. 2 September 1983) (mem.) (interpreting the phrase to mean bills related to the collection of revenue); Frent v. United States, 571 F.Supp. 739 (E.D. Mich.1983) (same).

10 . Complaint ¶ 13; J.A. at 19.

11 . See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); American Federation of Government Employees v. Pierce, 697 F.2d 303, 305 (D.C.Cir. 1982).

12 . See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975); Metcalf v. National Petroleum Council, 553 F.2d 176, 189-90 (D.C.Cir.1977).

13 . 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); see Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

14 . 454 U.S. 464, 474, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982).

15 . Id. at 472, 102 S.Ct. at 758 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979) and Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925 (1976)).

16 . See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 475, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982).

17 . See Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981); Metcalf v. National Petroleum Council, 553 F.2d 176, 187 (D.C.Cir. 1977).

18 . In Community Nutrition Institute v. Block, we noted that “the injury must be definable and discernible and, in order to establish the proper connection to the plaintiff, it must be specific.” 698 F.2d 1239, 1246 (D.C.Cir.), cert. granted, — U.S.-, 104 S.Ct. 480, 78 L.Ed.2d 678 (1983).

19 . 454 U.S. at 474, 102 S.Ct. at 759.

20 . See Harrington v. Bush. 553 F.2d 190 (D.C. Cir.1977).

21 .U.S. Const, art. I, § 7, cl. 1.

22 . See, e.g., American Federation of Government Employees v. Pierce, 697 F.2d 303 (D.C.Cir.1982); Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981).

23 . 511 F.2d 430 (D.C.Cir. 1974).

24 . 553 F.2d 190, 205, 206 & n. 68 (D.C.Cir. 1977).

25 . 697 F.2d 303 (D.C.Cir.1982).

26 . 511 F.2d 430 (D.C.Cir.1974).

27 . 617 F.2d 697 (D.C.Cir.) (en banc), vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979).

28 . Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361, 1364-1365, 31 L.Ed.2d 636 (1972); Kennedy v. Sampson, 511 F.2d 430, 435 (D.C.Cir. 1974).

29 . Accord, Metcalf v. National Petroleum Council, 553 F.2d 176 (D.C.Cir. 1977).

30 . 511 F.2d 430 (D.C.Cir. 1974); 553 F.2d 190 (D.C.Cir.1977); 697 F.2d 303 (D.C.Cir.1982).

31 . 307 U.S. 433, 438, 59 S.Ct. 972, 975, 83 L.Ed. 1385 (1939).

32 . Id. at 438, 59 S.Ct. at 975. See also Baker v. Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 705, 7 L.Ed.2d 663 (1962).

33 . See supra note 3.

34 . See concurring op. at n. 2.

35 .The zone of interests requirement examines the connection between the alleged injury to plaintiffs and the interests protected by the relevant statute or constitutional provision. See Community Nutrition Institute v. Block, 698 F.2d 1239, 1249 (D.C.Cir.) cert., granted,-U.S.-, 104 S.Ct. 480, 78 L.Ed.2d 678 (1983).

36 . Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) (en banc), vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979); Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974). See supra at p. 952.

37 . 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). See also Community Nutrition Institute v. Block, 698 F.2d 1239, 1248-49 (D.C.Cir.), cert. granted, — U.S.-, 104 S.Ct. 480, 78 L.Ed.2d 678 (1983) (redressability involves the "connection between the alleged injury and the action requested of the court”).

38 . See McGowan, Congressmen in Court: The New Plaintiffs, 15 Ga.L.Rev. 241 (1981).

39 . Appellees also contended that the Speech or Debate Clause, U.S. Const., Art. I, § 6, cl. 1, requires dismissal of this action. We need not decide whether the Speech or Debate Clause protects the appellees in this case from suit for the claimed unlawful actions. Our treatment of this issue is in accord with Davis v. Passman, in which the Supreme Court stated that Speech or Debate issues should generally be addressed before the merits of the case are litigated. 442 U.S. 228, 235 n. 11, 99 S.Ct. 2264, 2272 n. 11, 60 L.Ed.2d 846 (1979).. Because we affirm dismissal of the appellants’ claim at the threshold of litigation, we have relieved appellants of the burden of defending themselves on the merits of the case. We need not, therefore, inquire into the extent of constitutional immunity from suit afforded by the Speech or Debate Clause. See, Vander Jagt v. O’Neill, 699 F.2d 1166, 1171 n. 8 (D.C.Cir.) cert. denied, - U.S. -, 104 S.Ct. 91, 78 L.Ed.2d 98 (1983). Furthermore, we should avoid deciding “questions of a constitutional nature unless absolutely necessary to a decision of the case.” Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905); Ashwander v. Tennessee Valley Authority, 297 , 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring).

40 . 628 F.2d 133, 141 (D.C.Cir.), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980).

41 . 360 F.2d 505 (D.C.Cir. 1966).

42 . 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942). See also Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); 5 C. Wright & A. Miller, Federal Practice & Procedure § 1238 (1969).

43 . 479 F.2d 842 (D.C.Cir.) (en banc), cert. denied, 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309 (1973).

44 . Id. at 886.

45 . Id. at 887.

46 . 656 F.2d 873 (D.C.Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981).

47 .Id. at 811.

48 . 699 F.2d 1166 (D.C.Cir.), cert. denied, — U.S. -, 104 S.Ct. 91, 78 L.Ed.2d 98 (1983).

49 . 720 F.2d 1355 (D.C.Cir.1983).

50 . See generally, McGowan, Congressmen in Court: The New Plaintiffs, 15 Ga.L.Rev. 241 (1981).

51 . See Armstrong v. United States (S.D.Cal. 2 September 1983) (mem.); Frent v. United States, 571 F.Supp. 739 (E.D.Mich.1983).