William B. Richardson v. United States of America

465 F.2d 844, 1972 U.S. App. LEXIS 8305

• Court: Court of Appeals for the Third Circuit
• Decided: July 20, 1972
• Docket: 19277
• Status: Published

Opinions

OPINION OF THE COURT

MAX ROSENN, Circuit Judge.

In contrast to the case frequently heard on appeal, in which the Government seeks an accounting from the taxpayer, here it is the taxpayer who seeks an accounting from the Government. Appellant, acting in propria persona, complained that the Government’s consolidated statement, entitled “Combined Statement of Receipts, Expenditures and Balances of the United States Government,” fails to show monies received and expended by the Central Intelligence Agency (CIA). He alleged that the Central Intelligence Agency Act relieving the Secretary of the Treasury from publishing such figures was repugnant to the Constitution and void. He sought a writ of mandamus to compel the Secretary of the Treasury to publish an accounting of the receipts and expenditures of the CIA and to enjoin any further publication of the Combined Statement which did not reflect them. His application for a three judge court was denied by the district court which subsequently dismissed the complaint on grounds of standing and justiciability.¹

We will vacate the order and remand.

After oral argument, this court deemed the issues raised by the case of sufficient importance to necessitate the appointment of amicus curiae, Professor Ralph S. Spritzer of the University of Pennsylvania Law School, formerly Acting Solicitor General of the United States. He has submitted a thoughtful brief to which all parties have responded.

THE CONSTITUTIONAL AND STATUTORY CONTEXT

Because appellant sought to challenge the system by which the Federal Government accounts for funds spent by the Central Intelligence Agency, a brief explanation of that system is necessary to put his action in appropriate context.

The Federal Government’s spending powers, enumerated in article I, section 8 of the Constitution, are regulated by article I, section 9, clause 7, which provides :

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

In accordance with this mandate, all federal agencies except the CIA receive an annual specific appropriation from the Congress. 31 U.S.C. § 696. The Secretary of the Treasury then prepares an annual statement by “head of appropriation” for the use of the Executive, the Congress and the public reflecting how much each agency has spent during the previous fiscal year. 31 U. S.C. §§ 66b(a), 1029. Since there is no specific appropriation for the CIA, its receipts and expenditures are not listed in the document.

The Central Intelligence Agency Act of 1949, 63 Stat. 208, 50 U.S.C. § 403a et seq. (1970), established a unique procedure for funding the CIA. Section 403f(a) permits the CIA to transfer and receive funds from other agencies with the approval of the Bureau of the Budget (now Office of Management and Budget) “without regard to any provisions of law limiting or prohibiting transfers between appropriations.” Once the money has been spent, the CIA need not disclose its functions or personnel, 50 U.S.C. § 403g, and:

[t]he sums made available to the Agency may be expended without regard to the provisions of law and regulations relating to the expenditure of Government funds; and for objects of a confidential extraordinary, or emergency nature, such expenditures to be accounted for solely on the certificate of the Director and every such certificate shall be deemed a sufficient voucher for the amount therein certified. 50 U.S.C. § 403j(b).

This procedure creates a two-step system for disbursement of the Treasury’s monies to the CIA. First, Congress appropriates money to some other agency, and then that agency transfers the funds to the CIA. The only accurate accounting for the funds is the certificate rendered by the Director of the CIA, but it does not appear that this certificate or its contents are made available to the public. Presumably the money actually spent is reflected in the Treasury Department’s annual statement as a disbursement by the original agency to which Congress made the appropriation, although it may not be reflected at all.

Appellant Richardson, a citizen and taxpayer residing in Greensburg, Pennsylvania, wrote the Treasury Department, inquiring about the annual expenditures of the CIA. He was informed by defendant Sokol, the Treasury officer in charge of the publication of the annual statement, that the Treasury Department did not receive information on the CIA because of the congressional determination that such information should not be made public. He further stated that neither he nor the defendant Secretary of the Treasury had access to the information appellant desired. There was no further administrative relief available.

Appellant then brought this action alleging that the appellees have a constitutional and statutory obligation to set forth an accurate accounting of the expenditures of the United States. He contended that the Central Intelligence Agency Act of 1949, which creates an exception for the CIA, is repugnant to the Constitution because its prohibition against reporting the CIA’s expenditures contravenes the mandate of article I, section 9, clause 7. He asked that a three judge court be convened to determine the constitutionality of the Central Intelligence Agency Act, and that a mandamus issue against the defendants requiring them to publish a financial statement which complies with the commands of the Constitution and the remaining acts of Congress.

Appellant also alleged that the constitutional duty to provide a regular account of receipts and expenditures of public money is one owed to the citizen and taxpayer, for its obvious design is to provide members of the electorate with information lying at the core of public accountability in a democratic society.

JURISDICTION

Appellant alleges several grounds for jurisdiction, only one of which is proper.² It is the relatively new Mandamus and Venue Act, 28 U.S. C.A. § 1361, which states:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

The legislative history of the mandamus statute reveals that the statute’s construction turns upon traditional mandamus law. Davis, Administrative Law Treatise (1970 Supplement) § 23.10. In order for mandamus to issue, a plaintiff must allege that an officer of the Government owes him a legal duty which is a specific, plain ministerial act “devoid of the exercise of judgment or discretion.” Clackamas County, Or. v. McKay, 94 U.S.App.D.C. 108, 219 F.2d 479, 489 (1954). ICC v. New York, New Haven & Hartford R. R., 287 U.S. 178, 204, 53 S.Ct. 106, 77 L.Ed. 248 (1932), Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218, 50 S.Ct. 320, 74 L.Ed. 809 (1930), United States v. Walker, 409 F.2d 477, 481 (9th Cir. 1969). An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt. United States v. Walker, supra. Additionally, plaintiff must have exhausted all other available means of relief. Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969) cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121 (1970).

What is the nature of the duty which appellant charges was breached? The duty alleged here arises under article I, section 9, clause 7 as implemented by the Congress under 31 U.S.C. §§ 66b(a) and 1029.³ Appellant’s position is that save for the existence of the Central Intelligence Agency Act, Congress would be required to appropriate money specifically for the CIA, and the Secretary of the Treasury would be required to give an accounting to the President, the Congress and the public for that agency’s expenditures by that head of appropriation, as mandated by 31 U.S.C. § 1029.

The Government argues that no specific duty exists because the Congress has, by the Central Intelligence Agency Act, relieved the Secretary of the Treasury of the obligation to publish a statement pertaining to funds received and expended by the CIA. It also contends the Secretary cannot be under such an obligation because he does not possess the CIA’s accounts.⁴

We do not decide the constitutionality of the Central Intelligence Agency Act. However, for the purpose of determining whether mandamus will lie against him in the federal courts, an officer of the Government cannot deprive the court of jurisdiction to compel performance of an otherwise clear statutory duty by invoking the authority of what is challenged as an unconstitutional law. In re Ayers, 123 U.S. 443, 506, 8 S.Ct. 164, 31 L.Ed. 216 (1887); Board of Liquidation v. McComb, 92 U.S. 531, 541, 23 L.Ed. 623 (1875); National Association of Government Employees v. White, 135 U.S.App.D.C. 290, 418 F.2d 1126, 1129 (1969); cf. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 701-702, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). As a practical matter, this rule avoids the multiplicitous litigation that would arise if a party were first required to litigate the constitutionality of a statute in a separate action and then later secure specific relief in another proceeding by mandamus. More importantly, if a law is unconstitutional, it is void and of no effect, and it cannot alter an otherwise valid obligation of a governmental officer to a citizen. To permit a defense based upon an unconstitutional law would prevent a plaintiff, such as appellant, from using the mandamus remedy to enforce his rights even though the Government has not otherwise shown the court a valid reason to deny the relief demanded. Such a defense would have the effect of sustaining the very statute which the court is asked to strike as unconstitutional.

Therefore, the Government may not rely on the CIA Statute to preclude jurisdiction of this mandamus action.

Except for the CIA Statute, the Secretary of the Treasury is under a clear command of Congress to account for all monies as they are actually expended by the different federal agencies. In fulfilling that duty, he has no discretion. 31 U.S.C. § 1029.

Nor are we persuaded by the Government’s argument that the duty of the Secretary of the Treasury is not spefically owed to the appellant. The debates at the Constitutional convention in 1787 and the state ratifying conventions reveal that those who proposed the present language of the clause believed that the citizenry should receive some form of accounting from the Government.⁵ The use of the word “published” in article I, section 9, clause 7 emphasizes that intention. Article II, section 3 requires the President “from time to time [to] give to the Congress Information on the State of the Union,” and presumably the Framers could have utilized the same informal procedure with regard to the accounting if they had so wished. Instead, they chose to have the statement “published,” indicating that they wanted it to be more permanent and widely-circulated than the President’s message. The connotation must be that the statement was for the benefit and education of the public as well as coordinate branches of the Government.

This constitutional obligation to account to the public is supported by the Congressional enactment of 31 U.S.C. § 66b(a), which provides:

The Secretary of the Treasury shall prepare such reports for the information of the President, the Congress, and the public as will present the results of the financial operations of the Government. . . . (emphasis supplied).

In furtherance of this general duty, Congress enacted 31 U.S.C. §§ 1027-1030,⁶ which provide for various specific reports, including the Combined Statement of Receipts and Expenditures provided for in Section 1029.

Thus Congress’ own language indicates that the Secretary’s duty to present financial reports runs not only to the President and the Congress, but also to the public at large. If these reports are misleading and inadequate, there is no reason why Richardson, as a taxpayer, should not be able to require the appropriate executive officer to perform his obligations. The right of the taxpayer to receive reasonably complete reports of governmental expenditures is within the “zone of interest[s] . . . protected ... by the statute . . . in question” and one for which he may suffer a cognizable injury. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); accord, Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).

Finally, appellant has exhausted his avenues for administrative relief, he has no other remedy, and his only recourse now is judicial redress.

Appellant’s case meets all the considerations required for mandamus. While mandamus should be construed liberally in cases charging a violation of a constitutional right, cf. Fifth Avenue Peace Parade Committee v. Hoover, 327 F.Supp. 238, 243 (S.D.N.Y.1971), even under principles of strict construction appellant has set forth a clear duty owed to him by the Secretary of the Treasury.

STANDING

The appellant must also have sufficient standing in order to invoke the jurisdiction of a federal court.

6A Article III, section 2 limits the judicial power of federal courts to consideration of “cases” or “controversies.” Association of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S. at 151, 90 S.Ct. 827, Flast v. Cohen, 392 U.S. 83, 101-102, 88 S.Ct. 1942, 20 L.Ed. 2d 947 (1968). When a plaintiff does not have a stake in the outcome of the litigation to assure a sufficient adverseness in the proceedings to make it a true “case” or “controversy,” we have no jurisdiction to entertain his request. Flast v. Cohen, supra, at 101-102, 88 S.Ct. 1942.

Flast established a two prong test to ascertain whether a plaintiff, such as appellant, who is a taxpayer, has the requisite adversary interest: (1) the plaintiff must establish a nexus between his status as a taxpayer and the challenged Government activity to give him a personal stake in the action; and (2) his claim must relate to a specific constitutional prohibition so that the issues may be sharpened and focused sufficiently for proper judicial resolution.

Although the district court did not specify its reasons for finding that appellant lacked standing, we assume that it applied Flast and found his case deficient thereunder. We cannot agree.

The decision in Flast breached the absolute barrier to taxpayer suits erected by an earlier Supreme Court decision. Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). Frothingham absolutely barred a taxpayer from objecting to a Government spending program as a violation of the tenth amendment and the due process clause of the fifth amendment, on the theory that taxpayer was affected by the law only to the extent that the public in gen-' eral was affected by increased taxes. Id., at 487, 43 S.Ct. 597. The Court feared a contrary decision would have opened the floodgates of litigation, and would have permitted people to litigate issues even though they did not have an adequate incentive for a vigorous prosecution because of the miniscule and remote nature of their interests. Id.

Flast did not completely overrule Frothingham. Chief Justice Warren’s decision distinguished the latter case on the ground that a taxpayer could not properly object under the due process clause to general increases in his tax bill, but a taxpayer could object to any program provided under article I, section 8 that exceeded specific constitutional limitations on the taxing and spending powers of Congress. The Chief Justice believed that:

Under such circumstances, we feel confident that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution. We lack that confidence in cases such as Frothingham where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.

392 U.S. at 106, 88 S.Ct. at 1955.

A taxpayer could object to such outlays because there was a sufficient link between his status as a taxpayer and the act to assure a personal stake in the outcome of the controversy. That. stake would provide “ ‘the 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).” 392 U.S. at 99, 88 S.Ct. at 1952. Although the connection in Flast is concededly different from the one at issue here, both taxpayers have sufficient personal stake in the litigation. Plaintiffs in Flast contended they were being taxed to support an unconstitutional program that was in violation of the first amendment’s establishment clause. Appellant argues that he has a right under the Constitution to “a Regular Statement and Account,” but that he is being deprived of that right because of the Government’s adherence to the allegedly unconstitutional Central Intelligence Agency Act.

The Government argues that Flast must be limited to challenges to appropriations. That view attempts to confine the case to its facts without regard to its reasoning. Flast is concerned with adverseness and specificity of issues for “standing,” not spending per se.7

Even under the Government’s argument, appellant’s claim is still sufficient because it is integrally related to the appropriations process and the taxpayer’s ability to challenge those appropriations. Although Flast recognizes standing of a taxpayer to challenge expenditures, how can a taxpayer make that challenge unless he knows how the money is being spent? Without accurate official information concerning the amount and purpose of the expenditures, there could be no basis for a taxpayer suit. It would be inconsistent to affirm the viability of taxpayers’ suits on the one hand but take away a necessary precondition for those suits on the other.⁸

The Government’s position is not sound to us and we must reject it. We believe that the nexus between a taxpayer and an allegedly unconstitutional act need not always be the appropriation and the spending of his money for an invalid purpose. The personal stake may come from any injury in fact even if it is not directly economic in nature. Association of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S. at 154, 90 S.Ct. 827, 25 L.Ed.2d 184. A responsible and intelligent taxpayer and citizen, of course, wants to know how his tax money is being spent. Without this information he cannot intelligently follow the actions of the Congress or of the Executive. Nor can he properly fulfill his obligations as a member of the electorate. The Framers of the Constitution deemed fiscal information essential if the electorate was to exercise any control over its representatives and meet their new responsibilities as citizens of the Republic;⁹ and they mandated publication, although stated in general terms, of the Government’s receipts and expenditures. Whatever the ultimate scope and extent of that obligation, its elimination generates a sufficient, adverse interest in a taxpayer.

In the second prong of the Flast test the Court inquired whether there was a specific section in the Constitution which operated to limit the Congress’ taxing and spending powers. It noted that whether there are limitations other than the establishment clause would have to be decided by future litigation. 392 U.S. at 105, 88 S.Ct. 1942. Appellant’s claim raises such a limitation. While article I, section 9, clause 7 is procedural in nature, and while the establishment clause is substantive in nature, both are nonetheless limitations on the taxing and spending power. It would be difficult to fashion a requirement more clearly conveying the framers’ intention to regularize expenditures and to require public accountability.

Article I, section 9, clause 7 relates exclusively to the taxpayer’s interest in the expenditure of public monies. It is unlike the due process clause of the fifth amendment and the tenth amendment, raised in Frothingham, which are designed to check a much broader range of possible abuses of power. Appellant does not raise any generalized complaints about the operation of his Government. He does not even complain that the CIA should not receive the money it presently spends, provided this money is properly appropriated and reported. He only seeks an accurate statement of account for the tax money extracted from him and spent. He relies on a specific constitutional provision to protect him from what he alleges is a legislative abuse of power, the non-accounting features of the Central Intelligence Agency Act.

We note that if appellant, as a citizen, voter and taxpayer, is not entitled to maintain an action such as this to enforce the dictate of article I, section 9, clause 7, of the United States Constitution that the Federal Government provide an accounting of the expenditure of all public money, then it is difficult to see how this requirement, which the framers of the Constitution considered vital to the proper functioning of our democratic republic, may be enforced at all. A decision to deny standing to the appellant in these circumstances would not seem consistent with the limited scope of the standing requirement. See Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972):

The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome.

(Footnote omitted.)

McGowan v. Maryland, 366 U.S. 420, 429-430, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); N.A.A.C.P. v. Alabama, 357 U.S. 449, 459, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958):

The [standing] principle is not disrespected where constitutional rights of persons who are not immediately before the Court could not be effectively vindicated except through an appropriate representative before the Court. See Barrows v. Jackson, 346 U.S. 249, 255-259, 73 S.Ct. 1031, 97 L.Ed. 1586; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 183-187, 71 S.Ct. 624, 95 L.Ed. 817 (concurring opinion.)

Reservists Committee to Stop War v. Laird, 323 F.Supp. 833, 841 (D.D.C.1971):

It is not irrelevant [to the standing issue] to note that if these plaintiffs cannot obtain judicial review of defendants’ action, then as a practical matter no one can.

(Footnote omitted.)

We have carefully avoided expressing any opinion on the merits of the appellant’s claim. The complaint, however, contains sufficient allegations to give the appellant standing consistent with article III of the Constitution to invoke the court’s jurisdiction for an adjudication on the merits.

THREE JUDGE COURT

We next consider whether a three judge court should have been convened to hear appellant’s complaint. 28 U.S.C. § 2282¹⁰ provides that an application for an injunction restraining the enforcement, operation or execution of any act of Congress for repugnance to the Constitution of the United States shall not be granted by any district court unless heard by three judges.

The threshold question, therefore, is whether a complaint in which jurisdiction is grounded solely on the mandamus statute falls within the terms of this Act, independently of the additional prayer for injunctive relief which is stated in the complaint.¹¹ The Supreme Court has recently cautioned that the three judge court statute is not a “ ‘measure of broad social policy . . ’ [citation omitted]”, Mitchell v. Donovan, 398 U.S. 427, 431, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970), and that the term “injunction” as used in 28 U.S.C. § 1253, and presumably in 28 U.S.C. § 2282, is to be narrowly construed. Id. A sufficiently narrow construction might serve then to bar a three judge court from hearing a mandamus action, but such a result would not be faithful to the intent of Congress. Section 2282 was enacted as a protective device to shield the Government from suits which might disrupt its operations. It was not intended for the convenience of the plaintiff. The legislative history of this section reveals that it, and its complement, § 2281, “were enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme, either state or federal by issuance of a broad injunctive order.”¹² Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S.Ct. 554, 560, 9 L.Ed.2d 644 (1963).

This action, while based on the mandamus statute, in substance contemplates injunctive relief. It prays, inter alia, for a permanent injunction apparently in aid of the mandamus restraining publication of the Combined Statement of Receipts, Expenditures and Balances. Therefore, the action is for all practical purposes substantially similar to a mandatory injunction. In ascertaining the substance of the action we are required to look beyond the prayer for relief to the substantive allegations of the complaint. Majuri v. United States, 431 F.2d 469, 473 (3d Cir.), cert denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970). Since the merger of law and equity under the Federal Rules Enabling Act of 1934¹³ and the adoption of Rule 2 of the Fed.R. of Civil Proc. (28 U.S.C.A. Rule 2) providing for only one form of action, there is little difference in substance between a mandamus and a mandatory injunction. Rolls-Royce, Inc. v. Stimson, 56 F.Supp. 22, 23 (D.D.C.1944). The Supreme Court, in discussing the distinction drawn by the Court more than a half century before, stated that “[t]he distinction . . . between mandamus and a mandatory injunction seems formalistic in the present day and age,” when rules of pleading are simplified “and, more importantly, before the merger of law and equity.” Stern v. South Chester Tube Co., 390 U.S. 606, 609, 88 S.Ct. 1332, 1334, 20 L.Ed.2d 177 (1967). Just as injunctions are effective immediately and are punishable by contempt when disobeyed, so is mandamus. See Denver-Greeley Valley Water Users Association v. McNeil, 131 F.2d 67 (10th Cir. 1942). Even prior to the Enabling Act of 1934, the Supreme Court observed that although the remedy by mandamus is at law, its allowance was controlled by equitable principles. United States ex rel. Greathouse v. Dern, 289 U.S. 352, 359, 53 S.Ct. 614, 77 L.Ed. 1250 (1933).¹⁴

Unless we require that the instant action withstand the scrutiny of a three judge court under § 2282, the whole purpose and policy of the act can be aborted by allowing the appellant to initially seek only a declaration of invalidity of the CIA statute in the mandamus action before a single judge. Based on such a decision which has immediate effect, he can mount a subsequent request, if necessary, for an ancillary injunction.¹⁵ The ultimate effect of this action, if successful, will be to alter immediately the operation of critical features of the Central Intelligence Agency Act. Further, while based on the mandamus statute, this action contemplates injunctive relief in aid of the mandamus through restraining the publication of the Combined Statement of Receipts, Expenditures and Balances until it reflects the CIA’s operations.

In these circumstances we hold that the district court was required to request the convening of a three judge court, unless it appears that the constitutional issue raised by appellant in this action is insubstantial.

Whether the issue is insubstantial must be determined by the allegations of the bill of complaint. Mosher v. City of Phoenix, 287 U.S. 29, 53 S.Ct. 67, 77 L.Ed. 148 (1932). No question for a three judge court exists if the allegations of the complaint reveal that the “question may be plainly insubstantial, either because it is ‘obviously without merit’ or because ‘its unsoundness so clearly results from previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.’ ” Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933). See also, Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Local Union No. 300, Amal. Meat Cutters & B. Work, of North America A.F.L.-C.I.O. v. McCul-loch, 428 F.2d 396 (5th Cir. 1970).

All parties to this litigation concede that there is no prior decision which directly controls the outcome of this case. Nevertheless, the Government would have us conclude that the question raised is plainly without merit. The face of the complaint reveals no such infirmity. The appellant seeks to void legislation allegedly repugnant to a specific constitutional mandate. The language of article I, section 9, clause 7 could be reasonably construed in appellant’s favor, and there is nothing in prior decisions of the Supreme Court which forecloses such interpretation.

An additional reason for dismissal of this action by the district court was that the question posed by appellant in his complaint was not justiciable because it was barred by the political question doctrine. We make no comment except to state that this issue is intertwined with the merits of the case and it must be left for development at the subsequent hearing before the three judge court.¹⁶

We conclude, therefore, that the complaint presents a constitutional cause of action raising a substantial question¹⁷ which requires the convening of a three judge court.¹⁸ On remand, the district judge will take appropriate steps to request the Chief Judge of this Court to designate a statutory three-judge court. All remaining issues not resolved in this opinion shall be adjudicated by the court so convened.

The order of the district court will be vacated and the cause remanded for further proceedings consistent with this opinion.

1 . The procedural history of this case is confused. Appellant filed his complaint on January 8, 1970. Only eight days later his request for a three judge court was denied, and the case was ordered set down for assignment in the usual manner. Using hindsight, we can now see that the order of January 16, 1970, which presumably was based on a finding that there was no substantial constitutional question, Majuri v. United States, 431 F.2d 469, 472-473 (3d Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970), largely determined appellant’s ease and made any further relevant litigation on the merits unlikely. Donovan v. Hayden Stone, Inc., 434 F.2d 619 (6th Cir. 1970). However, neither party nor the district judge so construed the action. On March 20, the Government filed a motion to dismiss and on April 22 filed a motion to deny convening a three judge ctiurt. On April 27 another district judge directed plaintiff to file a brief on the questions of dismissal and a three judge court, and on May 19, appellant filed a motion to convene a three judge court. On June 15 the hearing was held and on June 16 appellant’s case was dismissed. A timely appeal was taken from that action. The January 16 order might have been appealable if it: (1) foreclosed future litigation and put him out of court, Idlewild Bon Voyage Liquor Corp. v. Rohan, 289 F.2d 426, 428 (2d Cir. 1961), modified on other grounds sub nom. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 n. 2, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); (2) denied a preliminary injunction, Majuri v. United States, supra, or (3) dismissed the action at the same time, Jones v. Branigin, 433 F.2d 576, 579 (6th Cir. 1970), cert. denied, Jones v. Sullivan, 401 U.S. 977, 91 S.Ct. 1205, 28 L.Ed.2d 327 (1971). That order would clearly not have been appeal-able if there were other claims that had to be disposed of by the single judge district court to which the case had been assigned after denial of the three judge court. Cancel v. Wyman, 441 F.2d 553 (2d Cir. 1971); Lyons v. Davoren, 402 F.2d 890 (1st Cir. 1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 861, 21 L.Ed.2d 774 (1969). This case is in between those two poles in that all parties believed there was further business for the district court, even though it is difficult for us to understand the basis for such a conclusion. In these circumstances we consider the order of January 16 interlocutory and not a final appealable order under 28 U.S.C. § 1291, and that the appeal from the order of June 16 properly raises the question of the denial of the three judge court. Sackett v. Beaman, 399 F.2d 884, 889 n. 6 (9th Cir. 1968). In any case, we note that a single judge court’s actions after an improper denial of a three judge court are of no effect, for they are taken without jurisdiction. Lyons v. Davoren, supra, 402 F.2d at 892. Therefore, even though appellant did not raise the question of the propriety of the denial of the three judge court at an earlier stage, he can still raise the question here because it goes to the jurisdiction of the single judge court to enter its order of dismissal.

Appellant brought an earlier suit challenging the CIA’s accounting, alleging jurisdiction under 28 U.S.C. § 1331. That suit was dismissed because he failed to show the matter in controversy exceeded the value of $10,000. Richardson v. Sokol, 409 F.2d 3 (3d Cir. 1969), cert. denied, 396 U.S. 949, 90 S.Ct. 379, 24 L.Ed.2d 253 (1969). Because that decision was jurisdictional, he is not barred from raising the merits in this action. Etten v. Lovell Manufacturing Company, 225 F.2d 844, 846 (3d Cir. 1955), cert. denied, 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839 (1956). 1B Moore’s Federal Practice ¶ 0.405 [5].

2 . None of the other bases of jurisdiction appellant alleges are applicable. Appellant may not predicate jurisdiction upon 28 U.S.C. § 1346(a) (2) since he has alleged no monetary damages. Blanc v. United States, 244 F.2d 708 (2d Cir.) cert. denied, 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79 (1957); Universal Transistor Products Corp. v. United States, 214 F.Supp. 486 (E.D.N.Y., 1963); nor can 5 U.S.C. §§ 701-704 form a basis for jurisdiction, since this circuit has held that the statute is not jurisdictional. Zimmerman v. United States, 422 F.2d 326 (3d Cir.), cert. denied, 399 U.S. 911, 90 S.Ct. 2200, 26 L.Ed.2d 565 (1970), and cases cited therein. Finally, 5 U.S.C. § 552(a) (3) does not apply to “matters that are (3) specifically exempted from disclosure by statute. . . . ” 5 U.S.C. § 552(b) (3).

3 . 31 U.S.C. § 1029 in pertinent part states: “It shall be the duty of the Secretary of the Treasury annually to lay before Congress, ... an accurate, combined statement of the receipts and expenditures during the last preceding fiscal year of all public moneys, . . . designating the amount of the receipts, whenever practicable, by ports, district, and States, and the expenditures by each separate head of appropriation.”

4 . On remand, appellant may wish to consider whether any additional party should be added as a defendant.

5 . When George Mason proposed the amendment that ultimately became the part of article I, section 9, clause 7 requiring the publication of a regular statement of receipts and expenditures, the only debate concerned the proper extent of the Government’s obligation. At least inferentially, everyone seemed agreed on the need for some such statement. 2 Far-rand, Tlie Records of the Constitutional Convention (1927 ed.) 618-19. A year later during the Virginia Convention called to ratify the Constitution Mason and Madison defended the clause as the only way to assure some satisfactory reporting to the public. 3 Farrand 326. The same position was urged by James McHenry, a delegate to the Constitutional Convention, in the Maryland House of Delegates when they voted on ratification. 3 Farrand 149-50.

6 . 31 U.S.C. § 1028, dealing with the Post Office Department, was repealed August 12, 1970.

. In the normal procedure, once a district judge concludes that a three-judge court should be convened, it would appropriately consider, inter alia, the issue of standing. Since one of the grounds, however, for the dismissal of the case by the district court was the lack of standing, that issue is properly before us on this appeal and, in the interest of judicial efficiency, a disposition of it may avoid the necessity of additional appeals to this court. See Port of New York Authority v. United States, 451 F.2d 783, 785, n. 4 (2d Cir. 1971), Crossen v. Breckenridge, 446 F.2d 833, 838 (6th Cir. 1971).

7 . Velvel v. Nixon, 415 F.2d 236, 239 (10th Cir. 1969), cert. denied, 396 U.S. 1042, 90 S.Ct. 684, 24 L.Ed.2d 686 (1970), held that a plaintiff had no standing to challenge expenditures for the Vietnam War. They reasoned that Flast permitted challenges only to spending under the “general welfare” clause of article I, section 8 and not to exercises under the specific enumerated powers, such as the right to provide for Armies and a Navy. We fail to see anything in Flast which requires a limitation of taxpayer suits to the general welfare clause. Suits challenging exercises of specific powers can certainly have the adverseness required, and there is nothing more in the Flast opinion which evinces a limitation of the taxpayer suit to certain types of subject matter.

8 . The interest of a citizen to compel disclosure of this information without reference to his taxpayer’s status might be an acceptable basis for this challenge. Atlee v. Laird, 339 F.Supp. 1347 (E.D.Pa.1972); Reservists Committee to Stop War v. Laird, 323 F.Supp. 833, 840 (D.D.C.1971). But we need not decide that issue. Whatever the interest of a citizen in knowing where his Government has spent its money, the interest of a taxpayer in knowing where Ms money has gone is more compelling and direct. Chief Judge Seitz is of the opinion that this plaintiff does not have standing as a taxpayer. See, Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). However, he does agree that standing exists by reason of plaintiff’s status as a voter and citizen.

9 . Supra, note 5.

10 . 28 U.S.C. § 2282 reads:

“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of of Congress for repugnance to the Constitution of the United States shall not be granted by any district court or judge thereof unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title. [June 25, 1948, c. 646, 62 Stat. 968.]”

11 . Jurisdiction was not predicated on the prayer for injunctive relief since appellant did not comply with 28 U.S.C. § 1346 (a) (2). See f. n. 2, supra.

12 . In extrapolating the substance of the Congressional debates, Mr. Justice Goldberg in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 155, 83 S.Ct. 554, 560, 9 L.Ed.2d 644 (1963), stated that “[r]e-peatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary costs of the unforeseen and debilitating interruptions in the administration of federal law which could be wrought by a single judge’s order, and the great burdens entailed in coping with harassing actions brought one after another to challenge the operation of an entire statutory scheme, wherever jurisdiction over government officials could be acquired, until a judge was ultimately found who would grant the desired injunction. 81 Cong.Rec. 479-481, 2142-2143 (1937).”

13 . 28 U.S.C. § 2072 (1970 Ed.) (48 Stat. 1064).

14 . See also, Virginia Ry. v. System Federation, 300 U.S. 515, 551, 57 S.Ct. 592, 81 L.Ed. 789 (1937).

15 . As Professor Currie points out, “since the injunction will be sought on the ground that the statute is unconstitutional, what remains for the three judges to decide?” 32 U.Chi.L.Rev. 1, 17 (1964).

16 . Cf. Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) ; Continental Cas. Company v. Department of Highways State of La., 379 F.2d 673 (5th Cir. 1967); Schramm v. Oakes, 352 F.2d 143 (10th Cir. 1965); Sunray DX Oil Co. v. Federal Power Comm., 351 F.2d 395, 400 (10th Cir. 1965); Fireman’s Fund Ins. Co. v. Railway Express Agency, 253 F.2d 780 (6th Cir. 1958).

17 . Chief Judge Seitz does not interpret the district court order of January 16, 1970, as a determination of the question of substantial federal question. Therefore, he views this issue as presently not before this Court and, on remand, would require the district court specifically to determine the existence of a substantial question before requesting that a three-judge court be convened.

18 . Although appellant does not allege that his suit is a class action on behalf of all citizens, taxpayers, and people of the United States, his pro se complaint is replete with references to the effect of the Seeretary of the Treasury’s allegedly unconstitutional failure to publish the receipts and expenditures of the CIA on “the People” and “Citizens” of the United States. See, e. g., paragraphs 16-c, 27, 36, 41, 45, 49 of the complaint. Because of the references and the intricate constitutional issues involved, we appointed amicus curiae to brief the issues raised by appellant’s pro se complaint. For reasons best known to him, appellant opposed this effort by the court; indeed, on September 27, 1971, he attempted to secure review of his claims by the Supreme Court in advance of judgment, which review was denied. See Richardson v. United States, 404 U.S. 991, 92 S.Ct. 533, 30 L.Ed.2d 542.

We recognize a litigant’s right to proceed in a civil action pro se. See 28 U.S.C. § 1654. However, the federal courts have authority under article III of the United States Constitution to hear only cases presented in a proper adversary manner with the issues framed with the necessary specificity and the litigation appropriately pursued so that the “constitutional challenge will be made .in a form traditionally thought to be capable of judicial resolution.” Flast v. Cohen, supra, at 106. Since this matter will now require the convening of a district court of three judges, of whom one must be a circuit judge, it “involves a serious drain upon the federal judicial manpower,” Kesler v. Dept. of Public Safety, 369 U.S. 153, 156, 82 S.Ct. 807, 810, 7 L.Ed.2d 641 (1961), which we can ill afford. In the circumstances of this case, the proper presentation of the issues to that court would clearly be facilitated if appellant were assisted by a member of the federal bar, acting either as his counsel or as amicus curiae.