[1] Our initial analysis of the unusual statute before us embraced a full range of inquiry into the various aspects of justiciability." We conclude, however, that one of its aspects-the requirement of standing is dispositive. Article 111 requires that the parties to a lawsuit have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The issue confronting us is whether Senator McClure has such a personal stake.

The interpretations of the doctrine of standing are manifold. The Supreme Court [269] has considered the issue in numerous contexts and has expressed the standing requirements in several formulations. Some of the formulations leave one with the sense that standing can never be determined until the case has been tried on the merits; only at that point can one say with certainty that the plaintiff did or did not have a protected legal right or that he or she suffered a wrong for which the law provides a remedy. The distinction between injury "in fact" and injury "in law" and whether either or both remain requirements for standing is not always clear. The Court has at times required that a plaintiff show a distinct "legal interest" before he or she may have standing in federal court. E. g., Jenkins v. McKeithen, 395 U.S. 411, 423, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969). More recently, the Court has said that a plaintiff must merely be within the "zone of interests" sought to be protected by the constitutional or statutory guarantee in question. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In other cases, the Court has suggested that a plaintiff need only show "injury in fact" to satisfy the personal stake requirement of article III. E. g., Duke Power Co. v. Carolina Environmental Study Group. Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). A person may thus have standing, despite the lack of a demonstrable legal right, if he can show an injury in fact and, we would surmise, some colorable legal claim. The law is less clear that a person without an injury in fact may have standing, although it appears that at least

6 The Supreme Court described the concept of justiciability in Flast v. Cohen, 392 U.S. 83, 9495, 88 S.Ct. 1942, 1949-50, 20 L.Ed.2d 947 (1968):

"Embodied in the words "cases" and "controversies" are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation place upon federal courts by the case-and-controversy doctrine."

One aspect of justiciability not raised by the parties, but which gave this court some pause, is the possibility that this court has been asked for an advisory opinion an idea that is inconsistent with the "case" or "controversy" requirement of the Constitution. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911).

Although the statute the Senator relies on is facially similar to the statute found ineffective in Muskrat, the differences are significant enough to remove the case from the proscriptions of whatever remains of the Muskrat rationale. See, e. g., Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 96 S.Ct. 1793, 48 L.Ed.2d 274 (1976); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Thus, we are not asked for an advisory opinion.

in some limited circumstances a statute may give such a person a cause of action based on a rationale of enforcing the public interest through private persons concerned about public questions. See, e. g., Sierra Club v. Morton, 405 U.S. 727, 732 n.3, 92 S.Ct. 1361, L.Ed.2d 636 (1972); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511 F.2d 809, 814 (D.C.Cir. 1975); Clean Air Act, 42 U.S.C. § 7604 (Supp. II 1979) (authorizing civil suits by "any person"). But in Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), the Court, in acknowledging that Congress may grant an express right of action that otherwise would be barred on prudential grounds, affirmed that "the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.'

[2] In light of the foregoing, we now inquire whether Senator McClure has standing to bring this suit consistent with the requirements of article 111. The analysis must be two-fold. First, without reference to any particular statute, does Senator McClure, either as a private individual or as a senator, have a sufficient personal stake in the challenge to Judge Mikva's appointment to give him standing? Second, if Senator McClure does not have a sufficient personal stake under that criterion, has Congress, by the statute under which Senator McClure seeks to sue, properly conferred a sufficient "right" upon him to give him standing and to satisfy the case or controversy requirement of article 111?

Without reference to the statute under which Senator McClure seeks to sue, we conclude that a United States Senator, suing in either his individual capacity or his official capacity as a senator, lacks standing to challenge the validity of the appointment of a federal judge. In Ex Parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937) (per curiam), the Supreme Court denied a motion brought by a member of the Supreme Court bar for an order to show cause why Justice Black, then recently appointed to the Supreme Court, should be permitted to serve as a Justice. The challenge was based on the Ineligibility Clause, the same constitutional provision relied upon by Senator McClure in this suit. In denying the motion for lack of standing, the court said that "[i]t is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in [270] danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." 302 U.S. at 634, 58 S.Ct. at 1. As a private individual, then, it seems that Senator McClure does not have sufficient personal interest in the validity of Judge Mikva's appointment to have standing in federal court.

[3] Senator McClure contends, however, that his special duties and responsibilities as senator gave him standing to challenge the appointment. The precise nature of a legislator's standing to sue in federal court is a matter of no small importance, for a readier access to courts by legislators, as legislators, is likely to give the courts increased opportunity and obligation to decide matters of public importance that might previously have been left to the legislative and executive branches. It is nevertheless the case that, in at least some circumstances, a legislator does have standing to sue as

a legislator when he or she would not have standing as an individual. The touchstone is whether the legislator's interest in "maintaining the effectiveness of [his] votes" is sufficient to confer standing to challenge an action impairing that effectiveness. Coleman v. Miller, 307 U.S. 433, 438, 59 S.Ct. 972, 975, 83 L. Ed. 1385 (1939). In Coleman, the Supreme Court held that a group of Kansas legislators had standing to challenge both the right of the state's lieutenant governor to break a tie vote in the state senate, and the efficacy of the state's attempted ratification of an amendment to the United States Constitution which the state legislature had previously rejected. This principle has re-emerged in a recent case in the District of Columbia Circuit, in which Senator Kennedy was held to have standing to challenge President Nixon's pocket veto of a health care bill during a congressional recess. Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). Senator Kennedy argued that the bill could not validly have been pocket vetoed during a recess, and that President Nixon's action not only deprived the Senator's earlier vote in favor of the bill of its effectiveness, but also deprived him of the opportunity to vote to override a normal veto."

It is difficult to see how Senator McClure can argue that the effectiveness of his vote is impaired by the appointment of formerCongressman Mikva to the federal bench. Senator McClure had the opportunity to persuade his collegues to vote against the confirmation and, in the conscientious performance of his duties, Senator McClure did just that. That he and like-minded senators did not prevail in the Senate does not mean that the effectiveness of Senator McClure's vote was impaired within the meaning of Coleman v. Miller. It means merely that he was on the losing side. Certainly no one would contend, and we do not understand Senator McClure to contend, that the the losing senators in any vote should automatically have the right to appeal to a federal court for a determination of the correctness of the result approved by the majority of their colleagues. If this were the case, federal courts would on such occasions be little more than legal advisors to the Congress, whose counsel could be obtained at the instance of any single member of that body. This would, of course, amount to the giving of advisory opinions that, whatever their desirability in a particular case, we are forbidden to provide. Thus, at least without a statute authorizing such suits, Senator McClure lacks standing to challenge, either as an individual or as a Senator, the appointment of former Congressman Mikva to the Court of Appeals.

[271] We must therefore consider the effect, if any, of the jurisdictional statute under which Senator McClure seeks to sue. It is difficult to see how this statute may, consistent with article III, confer upon a senator or member of the House of Representatives a "right" to seek a decision from a federal court that such a senator or member of the House would otherwise be powerless to procure.

7 See also Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1973) (Member of House of Representatives lacks standing to seek declaratory judgment prohibiting certain illegal activities by Central Intelligence Agency); Harrington v. Schlesinger, 528 F.2d 455, 459 (4th Cir. 1975) (members of House of Representatives lack standing to challenge expenditure of funds for military action in Southeast Asia); Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (2nd Cir. 1973) (member of House of Representatives lacks standing to seek declaratory judgment prohibiting military action in Cambodia).

The statute is not premised on protecting the effectiveness of a legislator's vote under the rationale of Coleman v. Miller, for it purports to grant standing to senators who voted for Judge Mikva as well as to those who voted against him. Furthermore, the statute purports to grant standing to members of the House of Representatives, who had no vote on the appointment at all. And we see no relevance, at least insofar as standing for members of the House is concerned, in the fact that Judge Mikva was, before his appointment to the bench, himself a member of the House.

Thus, we hold that Senator McClure, even with aid of the special jurisdictional statute on which he seeks to rely, does not have standing to bring this suit. The jurisprudential considerations go beyond simply setting proper limits on judicial power and containing its exercise within its rightful sphere. They serve also to protect against other branches of government, no matter how well-intentioned, voluntarily ceding to the federal judiciary powers and responsibilities that rightfully belong to the legislature or the executive. At bottom, the vice of the statute before us is its muddling of the roles, its blurring of the lines between the branches of government.

Members of Congress are the democratically-elected representatives of the people, chosen by them to enact the laws of the United States, to advise and consent to the appointment of policy-makers in the executive branch and judges in the judicial branch, and to perform certain other functions prescribed by the Constitution. The statute under which Senator McClure brings this suit casts members of Congress in the role of special attorneys general, to plead before this court for a second opinion as to whether their judgments were right in voting for or against the confirmation of Judge Mikva. Under the Constitution, it was the duty of Congress itself, in the first instance, to determine Judge Mikva's qualifications both on the merits and on the issue of whether he was constitutionally eligible to serve as a judge. To allow members of Congress to change hats, as it were, to plead the unconstitutionality of their own acts before this court on the basis of an argument already debated in the Senate but lost there by vote, would, we suggest. set a dangerous precedent. We find that this court does not have jurisdiction, and we accordingly dismiss.9

9 Since we have determined that plaintiff McClure does not have standing to bring this suit, we do not reach the question of personal jurisdiction over judge Mikva nor any of the other issues raised by the parties.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT DONALD W. RIEGLE, JR., MEMBER, U.S. SENATE, APPELLANT,

V.

FEDERAL OPEN MARKET COMMITTEE, ET AL., APPELLEES.

No. 80-1061.

Argued Jan. 15, 1981.

Decided June 24, 1981.

[873] Michigan senator instituted suit seeking injunctive relief in form of absolute prohibition on voting by reserve bank members of the Federal Open Market Committee. The United States District Court for the District of Columbia, Gerhard A. Gesell, J., dismissed the action for lack of standing. Appeal was taken. The Court of Appeals, Robb, Circuit Judge, held that senator had standing to challenge constitutionality of procedures established by Federal Reserve Act for appointment of five reserve bank members of the Committee; however, Court of Appeals exercised its equitable discretion to dismiss case on ground that judicial action would improperly interfere with legislative process.

Affirmed.

1. Federal Civil Procedure

1829, 1835 Federal Courts 768

When ruling on motion to dismiss for want of standing, both trial and reviewing courts must accept as true all material allegatons of complaint, and must construe complaint in favor of complaining party.

No distinctions are to be made between congressional and private plaintiffs in standing analysis.

The Court of Appeals will not confer standing on congressional plaintiff unless he is suffering injury that his colleagues cannot redress.

4. Federal Civil Procedure 103

To attain standing a plaintiff must establish injury in fact to an interest protected by relevant law where injury is caused by defendants' injuries or capable of judicial redress.

5. Constitutional Law 70.1(12)

Michigan senator had standing to challenge constitutionality of procedures established by the Federal Reserve Act for appointment of five reserve bank members of the Federal Open Market Committee since senator's alleged inability to exercise his right under appointments clause of Constitution was an injury sufficiently personal to constitute an injury in fact, it was within power of court to redress alleged injury by holding statute unconstitutional, and in