permanently enjoin the Committee from permitting the defendant individuals to vote or serve.

On August 3, 1979, the plaintiff filed a motion for summary judg ment. In this motion, the Senator outlined the structure and the function of the Committee to show first, that the individual defendants were not "inferior officers." The plaintiff reviewed the existing case law and found that:

In previous litigation, in which they were also represented by the Department of Justice, these same individual defendants advanced the argument that they are "inferior officers" whose "appointment has been vested by Congress in the Board of Governors of the Federal Reserve System by 12 U.S.C. § 341." With all respect, we submit that such an argument is absurd on its face. Even in their capacity as officers of Federal Reserve banks, the Board of Governors no more appoints them than the Senate appoints the Board. Given the awesome dimensions of their power, and the fact that it is exercised for fixed terms of office subject neither to supervision nor to review, it seems difficult to argue that the Congress could, even had it elected to make the attempt, have provided for their appointment as inferior officers. [Statement of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment, August 3, 1979, at 4-5]

Second, Senator Riegle asserted that the present-day function of the Committee was wholly governmental in character and that judicial precedents set by prior litigation on this issue were inapplicable because of the changed nature of the Committee:

Even if open market operations could plausibly have been argued to be a nongovernmental function in 1935, the constitutionality of the FOMC as it operated in that context is not in issue here.

Plainly each and every member of the FOMC as it operates today meets the functional test for officers of the United States laid down in Buckley v. Valeo, 424 U.S. 1 (1976). The holding of that case which controls the case at bar is set forth in the court's own words, 424 U.S. at 125126, as follows:

"We think that the term 'Officers of the United States' as used in Art. II, defined to include 'all persons who can be said to hold an office under the government' in United States v. Germaine, supra is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States', and must, therefore, be appointed in the manner prescribed by § 2, cl. 2 of that Article.'

The violation of this constitutional mandate in the case at bar could not be more plain. [Id. at 14]

As to the issue of standing, the Senator maintained that his standing in the District of Columbia was not dependent on the existence or absence of a legislative remedy. The plaintiff cited Ken

nedy v. Sampson, 511 F.2d 430 (D.C. Cir.1947) in support of his argument that a legislator does not have to secure the passage of legislation to vindicate the effectiveness of a vote already cast. The Senator continued, alleging that "[a] fortiori this is the rule where, as here, the legislator has unconstitutionally been denied even the right to cast the first vote." [Id. at 15]

The defendants submitted a motion to dismiss the complaint and in opposition to the plaintiff's motion for summary judgment on September 17, 1979. They alleged that Senator Riegle lacked standing and had failed to state a claim for which relief could be grant

ed.

The defendants argued that the plaintiff lacked standing because he did not claim that any action of the executive branch or of the defendants resulted in injury to him. Indeed, the argument continued, the plaintiff contended that he was injured by legislation (specifically, 12 U.S.C. § 263(a) (1976)) adopted by the very Senate to which he belonged, and his right as a U.S. Senator to seek to amend the challenged statutory appointment procedures remained unimpaired. The defendants contended that the Senator's real dispute was with his legislative colleagues, not with the defendants. The defendants drew the court's attention to the statement by the court of appeals in Harrington v. Bush, 553 F.2d 190 at 210-211 (D.C. Cir. 1977), one of three cases on Congressional standing subsequent to Kennedy v. Sampson:

In summary, the Kennedy case presented its effectiveness rationale in terms of objective injury to the legislators vote on a particular bill; the appellant in this case, however, asserts subjective injury to his overall effectiveness which flows from his lack of information concerning the CIA. [Points and Authorities on Opposition to Plaintiff's Motion for Summary Judgment and In Support of Defendant's Motion to Dismiss, September 17, 1979, at 26]

Thus, "Harrington has specifically cautioned against extending Congressional standing beyond the circumstances presented in Kennedy, for to do so would permit an individual legislator 'to use the court to vindicate his own political values and preferences. [Id.] The defendants argued that the plaintiff was attempting to usurp the legislative function by asking the court to grant him the relief which his colleagues had refused to grant.

Even if Senator Riegle were held to have standing, said the defendants, the manner by which the Reserve Bank members of the Committee were appointed comported fully with the Appointments Clause.

Furthermore, the defendants stated that notwithstanding the fact that five Reserve Bank members of the Committee may be described as representatives of the private interests of those banks, Congress, under 12 U.S.C. § 341, 248 (1976), satisfied the provisions of the Appointments Clause by requiring Board approval of their selection.

The Appointments Clause, it was argued, consisted of two classes of officers with respect to the appointments process. The first class-ambassadors, other public ministers and consuls and judges of the Supreme Court-requires Presidential appointment and

Senate confirmation. The second class, however, consists of all other officers of the United States, and the Constitution permits Congress to provide by law that they be appointed by the President, the courts, or the heads of Departments. The members of Federal Reserve Board, said the defendants, should be considered heads of a department.

On September 27, 1979, Senator Riegle filed a motion in opposition to the motion to dismiss. With respect to the issue of standing, Senator Riegle said:

What the defendants' argument boils down to is a bald assertion that whereas other citizens may seek judicial redress for unconstitutional actions by which they are injured, irrespective of whether the actions complained of are authorized by statute, a member of Congress should be denied standing to sue for any injury for the infliction of which the defendants can make a colorable claim to statutory authorization. [Statement of Points and Authorities in Opposition to Defendants' Motion to Dismiss, September 27, 1979, at 4]

On October 15, 1979, the defendants filed a reply to the plaintiff's opposition to their motion to dismiss. The defendants again asserted that all plaintiffs, whether or not members of Congress, must demonstrate that they have been injured by the party sued in order to establish standing:

The application of this standard to members of Congress may yield results which differ from the application of the same standard to private parties simply because members of Congress may seek, solely by virtue of their legislative status, to amend or repeal statutes they believe to be unconstitutional. The Court of Appeals for this circuit has, consequently, held that in such situations the real dispute is between the Congressional plaintiff and his legislative colleagues, thus depriving the plaintiff of standing. See, e.g., Reuss v. Balles, 587 F.2d 461, 468 (D.C. Cir. 1978). [Defendants' Reply to Plaintiff's Opposition to Motion to Dismiss, October 15, 1979, at 2-3]

The defendants continued to assert that procedures set forth by Congress for selection of the Committee Members were fully consistent with the alternative method of appointment prescribed by Section 2 of Article II, stating: "Such officers may be deemed inferior under the Appointments Clause only because Congress has not seen fit to provide for their appointment by the President with the confirmation of the Senate." [Id. at 3]

On October 26, 1979, Judge Gerhard Gesell denied the plaintiff's motion for summary judgment and granted the defendants' motion to dismiss. [Riegle v. Federal Open Market Committee, 84 F.R.D. 114 (D.D.C. 1979)] Said the court:

Senator Riegle's injury is of a political nature, deriving solely from the acts or omissions of his colleagues and not in any way from the actions of the named defendants. Reuss v. Balles, supra, 584 F.2d at 468 ... What the Court must decide is whether or not a Congressman from

either chamber has standing to challenge the constitutionality of a statutory provision on which he has failed to persuade his colleagues in the past and remains free to attempt persuasion in the future. The Court concludes that to confer standing upon such a Congressman without more would improperly interfere with the legislative process. [Id. at 116]

On January 15, 1980, Senator Riegle filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. [No. 80-10611

The Senator's appellate brief elaborated on the standing arguments discussed in his "Statement of Points and Authorities in Opposition to Defendants' Motion to Dismiss." He contended that the availability of a mere legislative remedy is insufficient and essentially contrary to the principle in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), "that when the constitutionality of a statute is drawn into question, and the court finds it to be in contravention of the Constitution then the statutory enactment is simply held to be void." [Brief for the Plaintiff-Appellant, April 1, 1980, at 15]

In reply, the defendants reasserted their prior contention that "this controversy can and should be resolved through the legislative process without the need for judicial intervention." [Appellees' Brief, June 13, 1980, at 32, n.22]

The plaintiff, however, in his reply brief filed on July 2, 1980, stressed the existence of standing whenever a constitutional injury is identified:

The case which forces the defendants to take the position that they do is Kennedy v. Sampson, 167 U.S. App. D.C. 192, 511 F.2d 430 (1974). That case squarely holds that a member of Congress does not need the authorization of Congress, or even of the House of which he is a member, in order to sue for redress of a derivative injury to him in his capacity as a member. Both this Court and the Supreme Court have had opportunities, most notably and recently in Goldwater v. Carter, [444 U.S. 966 (1979)] to overrule or disapprove the doctrine of Kennedy v. Sampson, and neither has done so. In effect, the defendants are asking this Court to overrule Kennedy, because the theory on which they seek to distinguish Kennedy is inconsistent with Marbury v. Madison.

The distinction which the defendants would draw between Kennedy and the case at bar does not make sense. The defendants concede that Kennedy stands for the proposition that judicial intervention is appropriate where the inaction of government officials has deprived a Senator of the effectiveness of his vote, yet they argue that the courts are powerless when the affirmative action of government officials absolutely deprives a Senator of any opportunity whatsoever to cast a vote on a transaction on which he has a constitutional right to vote. Their position is thus in conflict with the decisions of both this Court and the Supreme Court. [Reply Brief for the Plaintiff-Appellant, July 2, 1980, at 2-3 (footnote omitted)]

On June 24, 1981 the circuit court issued its decision. [Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir. 1981)] In affirming the district court's decision to dismiss the complaint, Judge Robb, writing on behalf of the circuit court, stated that the law of standing for Congressional plaintiffs was marked by "unnecessary confusion." [Id. at 877] This confusion, said Judge Robb, was the result of judicial attempts to reconcile two contradictory principles. The first of these principles was that no distinctions should be made between Congressional and private plaintiffs in determining standing. The second principle was that courts should not confer standing on a Congressional plaintiff if his injury can be redressed through legislative means. After noting that, unlike the Congressional plaintiff, the private litigant is under no requirement to use self-help before seeking judicial relief, Judge Robb stated that in analyzing whether a Member of Congress has a right to sue two questions have to be asked: (1) Does the Member have standing under the tests used for non-Congressional plaintiffs, and (2) If the Member does have standing, would allowing him to sue constitute impermissible judicial interference with the legislative process?

Turning first to the question of standing, Judge Robb stated that traditionally, in order to establish standing, a plaintiff must establish: "(i) injury in fact (ii) to an interest protected by law (iii) where the injury is caused by defendants' actions or capable of judicial redress." [Id. at 878] Using these tests, Judge Robb concluded that it was reasonable to hold that Senator Riegle had standing.

With respect to the question of judicial interference with the legislative process, Judge Robb proclaimed that henceforward Congressional plaintiff cases should be dismissed when: (1) the plaintiff has no standing under the non-Congressional plaintiff standing test; or (2) when the Congressional plaintiff has standing but could obtain substantial relief from his fellow legislators through the enactment, repeal or amendment of a statute, and a private party plaintiff would likely have standing to pursue the case. This policy, which Judge Robb termed the "doctrine of circumscribed equitable discretion," did not rest, said the Judge, on the political question or ripeness doctrines; it rested on separation of powers considerations. According to the court, when legislative redress is available “it is unlikely that an unconstitutional action or statute would go unreviewed" by the courts, since "it is probable that a private plaintiff could acquire standing to raise the issue of unconstitutionality before the court." [Id.] Such private party suits said the Judge, would avoid the separation of powers problems often found in Congressional plaintiff cases.

Judge Robb further stated that, assuming that the Congressional plaintiff has standing, the courts should hear all cases in which legislative redress is not available. Such cases would include, but not be limited to, those involving "impeachment, expulsion proceedings, impoundment, and certain acts of the executive not subject to direct legislative redress or private challenge (e.g. the pocket veto in Kennedy v. Sampson, supra)." [Id. at 882] Finally, Judge Robb stated that even when legislative redress is available the courts should hear a Congressional plaintiff's case if a private plaintiff would not qualify for standing: