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February 22, 1988

Federal Defenders of San Diego Inc., et al., Plaintiffs,
United States Sentencing Commission, Defendant

The opinion of the court was delivered by: SPORKIN

 Stanley Sporkin, United States District Judge

 Plaintiffs in this case, the Federal Defenders of San Diego and the Federal Public Defender for the Middle District of Tennessee, two organizations of criminal defense lawyers, have brought suit to challenge the constitutionality of the sentencing guidelines issued by defendant United States Sentencing Commission. *fn1" Although there exists a great deal of controversy as to exactly what these new guidelines do -- and what they do not do -- there can be no doubt that they effect a sweeping, even revolutionary change in the method in which our country will strive to achieve criminal justice. Plaintiffs seek a declaratory judgment that the congressional delegation of power to defendant is excessive and in violation of the non-delegation doctrine and that the method of appointment and removal of the Commission's members violates the doctrine of separation of powers.

 Plaintiffs raise serious concerns about the constitutionality of the Guidelines. The substantive issues in this case strike at the core of our evolving constitutional jurisprudence. These issues have arisen in several different contexts recently and have justifiably drawn a great deal of attention. See e.g. Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181, 92 L. Ed. 2d 583 (1986); Immigration and Naturalization Services v. Chadha, 462 U.S. 919, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983); In re Sealed Case, 838 F.2d 476; 1988 U.S. App. LEXIS 973 (D.C. Cir. 1988). As plaintiffs accurately point out, the immediate resolution of the constitutional questions which are swirling around the Guidelines may be perceived to be pragmatically in the best interests of many parties. See e.g. The Washington Post, Nov. 24, 1987 at A6 (quoting Judge William W. Wilkins Jr., Chairman of the United States Sentencing Commission: "I'm delighted that a lawsuit has been filed this year so that as soon as possible this issue can be finally resolved. Any major piece of legislation is going to be challenged . . . The filing of this lawsuit was inevitable, expected and is necessary. Now we should be able to get a decision from the Supreme Court next year"); Affidavit of William P. Redick, Jr., Assistant Public Defender for the Middle District of Tennessee (uncertain constitutionality of Guidelines increases workload of federal defenders and poses potential ethical problems); Affidavit of Judy Clarke, Executive Director of Federal Defenders of San Diego, Inc. (accord).

 There can be little question that a prompt resolution of these important issues is crucial to maintaining the orderly functioning of our criminal justice system. In order to achieve a speedy resolution of these important issues, however, it is neither appropriate nor in the long run expedient for this court to stretch traditional standing principles to accommodate this particular case.

 A. Plaintiffs have not Suffered Article III Injury in Fact

 Article III of the Constitution limits this court's power to deciding "cases" and "controversies." Diamond v. Charles, 476 U.S. 54, 106 S. Ct. 1697, 1703, 90 L. Ed. 2d 48 (1986). In order to satisfy Article III standing requirements, a party must "'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.'" Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (footnote and citations omitted). The injury requisite for Article III standing, however, cannot be generalized or abstract. Rather, the party requesting standing must set forth an individuated, concrete injury. See e.g. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985) (citation omitted) (party seeking standing must allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues"). The alleged injury, or personal stake, must be "'distinct and palpable,'" Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S. Ct. 1601, 60 L. Ed. 2d 66 (1979); Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975), and not "abstract" or "conjectural" or "hypothetical," Allen v. Wright, 468 U.S. at 751 (citing Los Angeles v. Lyons, 461 U.S. 95, 101-102, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983) and O'Shea v. Littleton, 414 U.S. 488, 494, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974)).

 The nature of the standing inquiry is therefore by definition a fact-intensive, case-by-case inquiry which involves more than a mere mechanical application of straightforward legal principles. The district court's discretion in making standing decisions flows necessarily from the reality that "the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition." Allen v. Wright, 468 U.S. at 751.

 Turning to the specific facts in this case, plaintiffs have failed to meet the threshold, constitutional requirement of injury in fact. It is not possible to "find" constitutional standing for two reasons. First, and foremost, the type of injury or harm alleged by these plaintiffs, who are in essence a collective body of criminal lawyers, cannot be distinguished from the sort of harm or injury absorbed by any legal specialist or group of specialty lawyers who are impacted by a broad and sweeping legislative change. The harm alleged by plaintiffs, as discussed below, essentially boils down to their perception that their workload will be more complex and will markedly increase. The direct result of such an increase in both the burden and the complexity of their work, they fear, will be a reduction in the quality of the legal representation they provide their clients. That sort of "harm" or "injury" is no different from the "harm" that the passage of the Tax Reform Act of 1986 caused for tax lawyers, or for that matter, than the "harm" caused for criminal lawyers by the passage of the Bail Reform and Speedy Trial Acts, which were the predecessor "blockbuster" legislative changes in the criminal law.

 In addition, the fact that plaintiffs believe their clients will be harmed by the Guidelines does nothing to compensate for their lack of standing in their own right. Permitting lawyers to sue without clients, or at best, with only potential clients, merely because their putative clients allegedly will be harmed, would open the same door for specialist lawyers to sue whenever Congress enacts a statute which impacts on their clientele. *fn2"

 The second reason why plaintiffs lack standing is that these plaintiffs simply have not offered a convincing rationale for why the alleged injury that they have suffered from the promulgation of the Guidelines differs in any meaningful sense from those injuries suffered by other participants in the criminal justice system. The impact of the Guidelines on these plaintiffs cannot be distinguished in constitutionally cognizable terms from the effects felt by a variety of other participants in the criminal justice system. Rather, the injury these plaintiffs have suffered, if any, can only be described as generalized and amorphous. Plaintiffs have therefore not suffered the kind of injury which is necessary for purposes of establishing standing under Article III of the Constitution. See generally Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974) (denying "citizen standing" because "generalized" and "abstract" interests of citizens are insufficient to meet Article III requirements -- and stressing inability to place principled boundaries on such a basis for standing); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (rejecting taxpayer standing because plaintiffs' injury was generalized and not individuated).

 Plaintiffs have set forth two separate but closely related injuries they contend they will suffer from the promulgation of the Guidelines. Both derive in large part from the uncertain constitutionality of the Guidelines. Both admittedly will essentially disappear if and when the Supreme Court definitively rules on the constitutionality of the Guidelines. Rigorous scrutiny of plaintiffs' alleged injuries reveals that neither can serve as the predicate for finding constitutional standing.

 The first injury plaintiffs allege is an increased workload due to the need to file numerous briefs challenging the constitutionality of the Guidelines. In addition, plaintiffs claim that their workload will substantially increase because the Guidelines have made plea agreements less attractive. As a direct result, according to plaintiffs, more cases will proceed to trial. They claim the uncertainty that the Guidelines will be constitutionally upheld allegedly compounds this problem -- it ...

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