Appeals ruled that Senator Riegle had standing to sue. 656 F.2d at 878-79. But because frequent attempts had been made in Congress to change the manner of selecting FOMC members, the court stated that it was wary of allowing a legislator to seek resolution of disputes with his legislative colleagues by suing in the courts on a hotly contested issue. Without denying standing, therefore, the court exercised a concept known as "equitable discretion" to dismiss the action. Id. at 879-82.
Significantly, however, the court limited its concept of equitable discretion as follows: legislators will be denied access to the courts only when private plaintiffs are available to bring the type of suit brought by the legislator.
The court dismissed Riegle's suit because there were many private plaintiffs available: "a major corporation, pension fund, or other major investor." Id. at 881.
In a subsequent Court of Appeals case, Committee for Monetary Reform v. Board of Governors, supra, 766 F.2d 538 (D.C. Cir. 1985), the court heard a challenge to the FOMC brought by the very private plaintiffs it had intimated were available when it decided Riegle. Notwithstanding the Riegle statement, the court denied them standing, holding that the connection between their injury (high interest rates) and the alleged constitutional violation (the appointment process employed to select FOMC members) was simply too tenuous to support standing under recent Supreme Court decisions. In the view of the court, the plaintiffs could not show that a different appointment process would produce different members who would adopt different interest rate policies. Id. at 542.
The Court of Appeals could not appropriately resolve the tension between Riegle and Committee for Monetary Reform because no congressional plaintiffs were present in the latter case. This Court, however, must address the obvious inconsistency between the two decisions. If both precedents are mechanically applied, the result is that section 263(a) is immune from constitutional attack. Private plaintiffs lack standing to challenge it,
and congressional plaintiffs are barred by the doctrine of equitable discretion. This result was clearly not contemplated by the Riegle court, which squarely grounded its holding on the assumption that "a similar action could be brought by a private plaintiff." Riegle, supra, 656 F.2d at 882. Nor was it accepted by the Committee for Monetary Reform court, which noted that " Riegle was decided prior to the Supreme Court's most recent [standing] articulations." 766 F.2d at 544 n.37. The Committee for Monetary Reform court was fully aware of the argument that its denial of standing to private plaintiffs might mean that "a subsequent action brought by a Senator may not be dismissed on prudential grounds," but "expressed no opinion on the question, the resolution of which must await another day." Id. at 544 n.38.
That day has now arrived. Fortunately, the task of reconciling two seemingly conflicting precedents is less difficult than at first appears. It is apparent that the law of standing has changed substantially since the time when Riegle was decided, and those changes have been most significant for plaintiffs such as those who brought Committee for Monetary Reform. Thus, while it is arguable whether private plaintiffs could have survived a careful standing analysis when Riegle was decided, it is beyond question that private plaintiffs lack standing to challenge the FOMC and its Reserve Bank members today, after the Supreme Court's decision in Valley Forge,8 and Allen v. Wright.9
Valley Forge and Allen v. Wright both make clear that standing by private parties will not be supported by a possibility that judicial action can redress plaintiff's injury. Certainty in the causal chain between plaintiff's injury, defendant's conduct, and judicial relief altering that conduct must be present. That refinement in the court's standing analysis was not obvious when Riegle was decided.
Accordingly, Riegle itself impels this Court to conclude that equitable discretion may not appropriately be applied to deny standing to plaintiff in this case, inasmuch as no private plaintiff is available to enforce the appointments clause of the Constitution. Under those circumstances, this Court would be acting well beyond its authority if it declined to hear Senator Melcher's case.
The Court's discretion to refuse a constitutionally proper plaintiff access to the courts, because of legitimate separation of powers concerns, is not so broad that the Court may abdicate its own role in the constitutional scheme and effectively immunize section 263(a) from any judicial review whatsoever. See Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 176, 2 L. Ed. 60 (1803) ("it is, emphatically, the province and duty of the judicial departments to say what the law is").
An appropriate order accompanies this Opinion.
In accordance with the reasons stated in the Opinion issued this date, it is this 5th day of June, 1986
ORDERED that defendants' motion to dismiss be and it is hereby denied; and it is further
ORDERED that supplemental briefs on the respective motions for summary judgment be filed on or before June 16, 1986, that oppositions thereto be filed on or before June 23, 1986; and that no replies will be permitted; and it is further
ORDERED that a hearing on the motions for summary judgment shall be held at 10:00 a.m., July 1, 1986, in Courtroom No. 1.