UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
GEORGE CROCKETT, Jr., individually in his capacity as a
Appeal from the United States District Court for the District of Columbia.
(Civil Action No. 81-1034).
Edwards and Bork, Circuit Judges, and Lumbard,* Senior Circuit Judge, United States Court of Appeals for the Second Circuit. Bork, Circuit Judge, concurring.
This is an appeal from the dismissal of a suit brought by 29 Members of Congress against President Reagan and other United States officials, challenging the legality of the United States' presence in, and military assistance to, El Salvador. The principal contention of the plaintiffs-appellants is that United States military officials have been introduced into situations in El Salvador where imminent involvement in hostilities is clearly indicated by the circumstances and, consequently, the President's failure to report to Congress is a violation of both the War Powers Resolution 1 and the war powers clause in the Constitution.2 The appellants also alleged that violations of human rights by the Government of El Salvador are pervasive and that, in the absence of a certification of "exceptional circumstances" by the President, United States military assistance to El Salvador violates the Foreign Assistance Act of 1961 .3 In pursuing their claims, plaintiffs-appellants have sought, inter alia, an injunction directing that the appellees immediately withdraw all United States Armed Forces, weapons, military equipment and aid from El Salvador and prohibiting any further aid of any nature.
The District Court dismissed all of plaintiffs' claims without resolution of the merits of their suit. Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982). Judge Joyce Green held that the war powers issue presented a non-justiciable political question. In particular, Judge Green found that the trial court did not have the resources or expertise to resolve the particular factual disputes involved in this case, id. at 898, 899, and that Congress had taken no action which would suggest that it viewed our involvement in El Salvador as subject to the WPR. Id. at 899. Judge Green's dismissal of the FAA claim was based on the equitable discretion doctrine, which counsels judicial restraint where a congressional plaintiff's dispute is primarily with his or her fellow legislators. Riegle v. Federal Open Market Committee, 211 U.S. App. D.C. 284, 656 F.2d 873, 881 (D.C. Cir.), cert. denied, 454 U.S. 1082, 70 L. Ed. 2d 616, 102 S. Ct. 636 (1981).
We have reviewed with care the parties' contentions and submissions and we can find no error in the judgment of the District Court. We therefore affirm the dismissal of this case for the reasons stated by the District Court.
BORK, Circuit Judge, concurring:
In my view, jurisdiction is absent in this case because plaintiffs lack standing. I continue to believe that an alleged diminution in congressional influence must amount to a disenfranchisement -- a nullification or diminution of a congressman's vote -- before a congressional plaintiff may claim the requisite injury-in-fact necessary to confer standing to sue. See Vander Jagt v. O'Neill, 226 U.S. App. D.C. 14, 699 F.2d 1166, 1180-81 & n. 1 (D.C. Cir. 1982) (Bork, J., concurring), cert. denied, 464 U.S. 823, 104 S. Ct. 91, 78 L. Ed. 2d 98 (1983). See also Goldwater v. Carter, 199 U.S. App. D.C. 115, 617 F.2d 697, 702 (D.C. Cir.) (en banc), judgment vacated on other grounds, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1979). Congressional plaintiffs here have lost no part of their right to vote and thus have not suffered the "judicially cognizable injury," Metcalf v. National Petroleum Council, 180 U.S. App. D.C. 31, 553 F.2d 176, 187 (D.C. Cir. 1977), necessary to give them standing.
I also adhere to my view that separation-of-powers considerations are properly addressed as part of the standing requirement. In Riegle v. Federal Open Market Committee, 211 U.S. App. D.C. 284, 656 F.2d 873, 879-80 (D.C. Cir.), cert. denied, 454 U.S. 1082, 70 L. Ed. 2d 616, 102 S. Ct. 636 (1981), a panel of this court concluded that separation-of-powers concerns have no bearing on standing analysis. Instead, the Riegle court created a "doctrine of equitable discretion" within which those concerns would be addressed. 656 F.2d at 881. In Vander Jagt, the panel majority expanded the doctrine and assumed the virtually "unconfined judicial power to decide or not to decide" cases. 699 F.2d at 1185 (Bork, J., concurring). I do not consider myself bound by the panel decisions in Riegle and Vander Jagt. Prior to those cases, this circuit had worked out a "fairly definite formula to relate separation-of-powers concerns to the problem of legislator standing." Vander Jagt, 699 F.2d at 1180-81 (Bork, J., concurring). Riegle and Vander Jagt ...