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December 11, 1980

COMMON CAUSE et al., Plaintiffs,
William F. BOLGER et al., Defendants, and House Commission on Congressional Mailing Standards, Intervening Defendant, and United States Senate, Amicus Curiae


PRATT, District Judge.

 This action challenges the constitutionality of certain portions of the congressional franking statute, 39 U.S.C. ยง 3210 (1976 ed.). Plaintiffs, whose members include more than fifty candidates challenging incumbent members of Congress for election, contend that the statute is unconstitutional on its face and violates their First and Fifth Amendment rights by subsidizing the election of incumbent congressmen but not of challengers. The defendants, the intervenor and the amicus curiae have moved to dismiss contending that plaintiffs lack standing, that the action is unripe and moot, and that this court should dismiss the case on prudential grounds. This is the third such motion to dismiss that defendants have made since this case was first filed in 1973. For the reasons stated below, the motion to dismiss is denied.

 I. Standing

 Secretary of the Treasury Miller and Postmaster General Bolger, the defendants, the House Commission on Congressional Mailing Standards, the intervenor, and the United States Senate, amicus curiae, all contend that Common Cause and John Gardner lack standing to bring this action. If these assertions are correct, and if the plaintiffs are not proper parties to press this claim, the action must be dismissed for lack of jurisdiction under the case or controversy requirement of Article III of the Constitution.

 This court has twice denied a motion to dismiss for lack of standing, once by order of June 26, 1974, and once by opinion on February 10, 1975. Earlier rulings of this sort are "law of the case," and on non-jurisdictional issues are normally conclusive. E. g., Insurance Group Committee v. Denver & R.G.W.R. Co., 329 U.S. 607, 612, 67 S. Ct. 583, 585, 91 L. Ed. 547 (1947); Petition of United States Steel Corporation, 479 F.2d 489, 494 (6th Cir. 1974), cert. denied, 414 U.S. 859, 94 S. Ct. 71, 38 L. Ed. 2d 110 (1973).

 Where a jurisdictional challenge is repeated, however, as is the case where standing is in issue, the "law of the case" requirement is less rigid. Earlier jurisdictional rulings are entitled to important, but not dispositive weight. 1B Moore's Federal Practice P 0.404, p. 452 (1980 ed.). If it can be shown that controlling authority has subsequently taken a clearly contrary view of the issue, then the renewed motion to dismiss for lack of jurisdiction may be appropriately filed and may prevail. See Crane Co. v. American Standard, Inc., 603 F.2d 244, 248-49 (2d Cir. 1979); Morrow v. Dillard, 580 F.2d 1284, 1294 (5th Cir. 1978).

 In this factual context, the burden is thus on the proponents of this motion to show that more recent decisions by the Supreme Court and the United States Court of Appeals for the District of Columbia Circuit compel this court to reverse its prior position and dismiss the complaint for want of standing.

 It is the position of all defendants that parties in plaintiffs' position must now make more specific and substantial threshold showings as to injury, causation, and redressability as the result of recent decisions.

 Specifically, defendants contend that the Supreme Court's decision in Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975), and the D.C. Circuit's decision in Winpisinger v. Watson, 202 U.S. App. D.C. 133, 628 F.2d 133 (D.C.Cir. 1980), cert. denied, 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282 (1980), significantly change the law of standing, thereby requiring this court to reverse its two previous rulings. In these two cases, the courts dismissed complaints for lack of standing because plaintiffs failed to allege a "distinct and palpable injury" to themselves, Winpisinger v. Watson, supra, at 137; Warth v. Seldin, supra, 422 U.S. at 501, 95 S. Ct. at 2206, an injury "that can fairly be traced to the challenged action of the defendant, and not injury that results from independent action of some third party not before the Court." Winpisinger v. Watson, supra, at 137, citing Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S. Ct. 2620, 2629, 57 L. Ed. 2d 595 (1978); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S. Ct. 1917, 1925, 48 L. Ed. 2d 450 (1976). In both Winpisinger and Warth, supra, plaintiffs failed to meet their burden of demonstrating the causality prerequisite to standing.

 According to this argument, plaintiffs' asserted interests are those in the election of certain candidates, and the election or defeat of particular candidates depends on too many other factors besides the operation of the franking statute to satisfy the causation requirements laid down in these cases. In other words, it can not be said that an order by the court granting plaintiffs the relief they seek would remedy the harm they allege. To the extent that plaintiffs assert an interest in a fair and equal electoral process, defendants assert that such an interest is too remote, speculative, and abstract to confer standing on these plaintiffs to press this claim. Their process claim, according to this argument, is indistinguishable from a generalized grievance of the citizenry about the operation of the political system.

 Plaintiffs respond by contending that regardless of electoral outcomes, the interest in a fair electoral process that they assert is directly affected by the defendants' actions under the franking statute. Moreover, plaintiffs allege that they suffer particularized harms distinct from those suffered by the citizenry at large. Under this characterization of the complaint, the causation requirements of the Warth and Winpisinger cases are not in issue, because the asserted harm is the franking statute and defendants' action thereunder. There is no third party action here complicating the issue. Plaintiffs are directly harmed by defendants' actions.

 We now turn to the complaint and examine it in detail in order to decide which is the proper characterization. Moreover, in ruling on this motion to dismiss, the court must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. Warth v. Seldin, supra; Jenkins v. McKeithen, 395 U.S. 411, 421-422, 89 S. Ct. 1843, 1848, 23 L. Ed. 2d 404 (1969).

 Plaintiff Common Cause sues on behalf of its members who are: *fn1"

1. Congressional candidates;
2. Contributors of lawful amounts of money to candidates for federal elective office and to political committees and organizations which support such candidates;
3. Campaign participants;
4. Registered voters for candidates for federal elective office;
5. "Regular and substantial users of the mails as a means of participation in the ...

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