MacKINNON, Circuit Judge.
The present case is an action seeking a declaratory judgment that the so-called preventive detention provisions of the District of Columbia Court Reform and Criminal Procedure Act of 1970
are unconstitutional, and a permanent injunction against their enforcement. The preventive detention provisions, specifically D.C. Code §§ 23-1322 and 23-1323 (Supp. IV, 1971), are asserted to be unconstitutional on their face and void as violative of the Fifth, Sixth, and Eighth Amendments and Articles I and III of the United States Constitution. Because a permanent injunction was sought, a three-judge district court was convened pursuant to 28 U.S.C. § 2282 (1970).
The plaintiffs have filed a motion for summary judgment in their favor, and the defendants have filed motions to dismiss the amended complaint. Since we have concluded that for various reasons relating to standing to sue, ripeness and mootness -- reasons which are jurisdictional in nature -- the amended complaint must be dismissed, we do not reach the actual merits of the controversy.
For purposes of resolving certain of the questions of standing to sue which must be decided, a number of the plaintiffs may conveniently be treated as a group. First, there are the individual trustees of the Public Defender Service of the District of Columbia, set forth in paragraph 3 of the amended complaint,
suing on behalf of the Defender Service. Second, there are the Washington Urban League, Inc. and the American Civil Liberties Union Fund of the National Capital Area, Inc., set forth in paragraphs 7 and 8 of the amended complaint. All of these plaintiffs will hereafter be referred to together as the "organizational plaintiffs."
The allegations of the amended complaint state that the plaintiffs in general sue as representatives of a class under Fed. R. Civ. P. 23 which "consists of all persons subject to pretrial detention pursuant to the pretrial detention provisions of the District of Columbia Court Reform and Criminal Procedure Act of 1970 . . ."
There are no allegations anywhere in the amended complaint which seek to confer on the organizational plaintiffs any status other than the class representational one just referred to. For reasons to be explained presently, we have concluded that under the mantel of this particular status, the precise allegations of this amended complaint fail to set out any "injury in fact" to the organizational plaintiffs. They therefore have no standing to maintain the present suit.
All of the allegations of the amended complaint which relate to the harm purportedly occasioned by the preventive detention provisions speak directly in terms of harm to those persons -- members of the class sought to be represented -- who are actually or potentially subject to preventive detention.
There simply are no allegations that the organizational plaintiffs as organizations are harmed in any way, shape or fashion. Compare Protestants and Other Americans United for Separation of Church and State v. Watson, 132 U.S. App. D.C. 329, 407 F.2d 1264 (1968). However many uncertainties there may be as to certain aspects of the federal law of standing, there is no uncertainty as to the requirement that a plaintiff, in order to have standing, must allege that he himself suffers some "injury in fact" by reason of the action sought to be challenged. Davis, Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601, 607 (1968). Injury in fact is what the Supreme Court has thought imparts that "adversary context"
to litigation required by the "case or controversy" clause of Article III of the Constitution. See Association of Data Process Service Organizations v. Camp, 397 U.S. 150, 152-154, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 164, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970); Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Where, as in the present case, the allegations of a complaint establish a plaintiff in a strictly representational status, and allege injury only to members of the class sought to be represented -- an injury not shared in by the representational plaintiff -- the representational plaintiff plainly has no standing under Article III.
In support of their standing, the organizational plaintiffs rely principally on Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) and Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60 L. Ed. 131 (1915). From these cases they would have us conclude that they enjoy a "derivative" standing as a consequence of their "professional relationship"
to persons actually or potentially subject to the provisions of the preventive detention statute. Those cases, however, are easily distinguishable from the present case.
In Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), it was held that a physician could assert the constitutional rights of his patients as a defense in a criminal prosecution as an accessory to a violation of a Connecticut birth control law. But the imposition of criminal liability upon the physician under an unconstitutional statute certainly constitutes injury in fact to the physician. In Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925), a private school was permitted to sue to enjoin the operation of a statute requiring parents to send their children to public schools. The injury to the private school is obvious. Finally, in Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60 L. Ed. 131 (1915), an alien employee was held to have standing to attack a statute requiring his employer to fire all but a certain proportion of his alien employees. Again the harm is obvious.
The above three cases were all consistent with the rule "that a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation." Barrows v. Jackson, 346 U.S. 249, 255, 73 S. Ct. 1031, 1034, 97 L. Ed. 1586 (1953); cf., e.g., Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727 (3d Cir. 1970). In each case, although the statute in question affected a third party most directly, there was also a "consequential detriment"
to the actual plaintiff involved. The question as to standing in each case thus dealt not with whether harm in fact was suffered by each plaintiff, but with non-constitutional, policy elements of standing. See, e.g., Flast v. Cohen, 392 U.S. 83, 92-93, 97, 99 n. 20, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); Barrows v. Jackson, 346 U.S. 249, 257, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953). In the present case, the amended complaint alleges neither a direct nor a "consequential detriment" to the organizational plaintiffs as organizations. In contrast to the above cases, there is thus not even the injury in fact required by Article III.
The organizational plaintiffs rely also on Essex County Welfare Board v. Cohen, 299 F. Supp. 176 (D.N.J. 1969) (three-judge court). There the suit was one to challenge a statutory amendment imposing a freeze on federal aid to families with dependent children. The action was brought in part by the Essex County Welfare Board, the local agency with responsibility for administering the aid program in question. In its brief discussion holding that the Board had standing, as to the element of injury in fact the court characterized the Board as having "an interest in the funds it will be required to expend, and in the communities which will be the recipients of those funds." 299 F. Supp. at 179. Without indicating either agreement or disagreement with the New Jersey court's apparent conclusion that this interest was injured, and that the injury was sufficient to meet Article III requirements, the decision is unavailing to the present organizational plaintiffs in any event, because they have not alleged any comparable interest, nor more importantly any injury to such an interest.
A second standing question is presented as to plaintiffs Dennis A. McClendon and Natalie R. McClendon. Paragraph 9 of the amended complaint states that they sue as "citizens and taxpayers of the District of Columbia and the United States. On information and belief, their tax payments and those of other taxpayers of the District of Columbia and the United States will be used to defray the costs of pretrial detention of persons pursuant to the Act." In paragraph 10 of the amended complaint, the taxpayer-plaintiffs seek to prosecute their case as a class action "on behalf of all residents of the District of Columbia who pay taxes to the District of Columbia and the United States."
As to the McClendons' status as federal taxpayers, their claim to standing perhaps may be disposed of in simple fashion on the basis of Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). In Flast, the Court sought to define the standing requirements which federal taxpayers must meet in order to satisfy the requirements of Article III. The first requirement set forth was that
the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a 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. It is plain that the present suit is not an attack " only of exercises of congressional power under the taxing and spending clause of Art. I, § 8. . ." (emphasis supplied).
The exercise of authority challenged in Flast was an exercise of the power to tax and spend for the general welfare, pursuant to Article I, § 8, cl. 1.
However, in enacting the District of Columbia Court Reform and Criminal Procedure Act of 1970, Congress acted under the authority of Article I, § 8, cl. 17:
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, . . .