c284:No. 77-1012

J. SKELLY WRIGHT, Chief Judge,
dissenting:
In my view Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), clearly establishes that appellant Reuss has standing as a bondholder to challenge the constitutionality of the composition of the Federal Open Market Committee. For this reason — even apart from the difficult questions raised by his claims of legislative standing — I would reverse the judgment of the District Court.
In Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973), and Glidden v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), the Supreme Court addressed challenges to decisions reached or upheld by judges who, it was asserted, were not appointed and did not serve under Article III of the Constitution. In neither of these cases was there any question of impropriety in the actual conduct of the litigation by the judge in question. Nor was any argument made that the appellant would necessarily receive more favorable treatment or a positive disposition of his case were it relitigated before judges unquestionably appointed pursuant to Article III. No such showing was required; it was sufficient that the appellant alleged that his rights had been adjudicated by an unconstitutionally composed tribunal.
Relying on these decisions, the Supreme Court held in Buckley v. Valeo that appellants, a candidate for President, a candidate for reelection to the United States Senate, a potential contributor, and various political associations, had standing to challenge the constitutionality of the method of appointing members of the Federal Election Commission. The Court cited Palmore and Glid-den, as well as its decision in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), for the proposition that “[pjarty litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights.” 424 U.S. at 117, 96 S.Ct. at 681. While the Court noted that in Glidden “the challenged adjudication had already taken place, whereas in this case appellants’ claim is of impending future rulings and determinations by the Commission,” the Court found that “this is a question of ripeness rather than lack of case or controversy under Art. III.” Id.
In this case, as in Buckley, the appellant's claim is that members of an agency whose decisions affect his rights and interests have not been appointed consistent with constitutional requirements of the Appointments Clause, Art. II, § 2. As in Buckley, the appellant has a concrete interest in the decisions of the agency involved. In this case it is derived from the fact that, as a holder of long-term bonds exceeding $20,-000 in value, appellant’s property interests will be affected by the actions taken by the FOMC which directly influence prevailing interest rates and, thus, the value of appellant’s property. While appellant’s property rights are thereby “at stake” in the FOMC’s decisions, he cannot establish, as the majority points out, that the allegedly unconstitutional composition of the committee has resulted or will result in devaluation of his property or that he would be materially better off were the members of the Committee constitutionally appointed. But that is not required under Buckley: appellants in Buckley were nowhere required to establish that the method of appointing members to the FEC had any direct, adverse impact upon them, or that different and more favorable decisions would be reached by a properly constituted body. In this case, as in Buckley, Glidden, and Pal-more, the fact that an individual’s rights are being determined by an allegedly unconstitutionally composed body is, in itself, sufficient to meet the injury requirement and to permit the court to decide the merits of his constitutional challenge.
The majority today recognizes the “strong similarity between the Buckley challenge to the composition of the Federal Election Commission and appellant’s challenge to the composition of the FOMC.” Majority opinion, 189 U.S.App.D.C. at --, 584 F.2d at 470. It attempts to distinguish Buckley, however, on the ground that “[ujnlike the plaintiffs in Buckley and the cases cited therein, appellant has not demonstrated a personal stake so sufficient that he would benefit from a favorable decision on the merits.” Id., 189 U.S.App.D.C. at--, 584 F.2d at 470. Yet as noted earlier, the Buckley plaintiffs in no way demonstrated that the particular composition of the FEC — as distinct from the separate question of the existence of a body charged with enforcement responsibilities for an Act to which they objected — caused them any direct injury or that they would receive different or more favorable treatment from a properly appointed body. Indeed, when the majority is forced to explicate its purported distinction, it can do no more than point out that a court order prohibiting the FEC, until properly constituted, from enforcing the Act, “at least arguably, was of benefit to those plaintiffs who intended to run for office in the 1976 election and whose rights in that campaign would, to a significant degree, be adjudicated by the FEC.” Id., 189 U.S. App.D.C. at -----, 584 F.2d at 470 (emphasis added).
With all due respect, I find this distinction wholly unpersuasive. To begin with, the Supreme Court, in holding that the Buckley appellants had standing, nowhere mentioned, let alone relied upon, any benefit they would secure from an injunction against FEC operations until the Commission was properly constituted. Quite to the contrary, the Court granted a stay of its order insofar as it affected the powers of the Commission so as to “afford Congress an opportunity to reconstitute the Commission by law or to adopt other valid enforcement mechanisms without interrupting enforcement of the provisions the Court sustains, allowing the present Commission in the interim to function de facto in accordance with the substantive provisions of the Act.” 424 U.S. at 143, 96 S.Ct. at 693 (emphasis added). Moreover, even were there some benefit to be secured from a short-term delay in enforcing the provisions of the Act upheld by the Court, it is not at all clear why the particular appellants in Buckley who intended to run for office, as opposed, say, to their opponents, would derive such a benefit; certainly, what is involved is pure speculation in either event. The critical point of Buckley is that such a benefit was neither established nor required in order for the court to reach the merits of the appellants’ claim.
In my view, there simply is no valid distinction to be drawn between the case before us and Buckley v. Valeo, and our decision today should therefore be controlled by Buckley. On this basis, I respectfully dissent from the decision of the majority.
. Two questions have been raised by the majority with respect to appellant’s claim that he has a concrete interest in the decisions reached by the FOMC. The first issue relates to the effect of FOMC actions on the value of appellant’s holdings. The majority points out that the “actions taken pursuant to decisions of the FOMC are but part, albeit an important part, of the forces that determine the value of one’s financial holdings.” Maj. op., 189 U.S.App.D.C. at --, 584 F.2d at 469. Appellant does not suggest that the FOMC is in any way omnipotent; he recognizes that FOMC decisions respond to various factors in the economy over which it does not have control. The fact remains, however, as the District Court and the majority both recognize, that FOMC decisions do have a definite effect on prevailing interest rates, and thus on the value of appellant’s holdings. See Maj. op., 189 U.S.App.D.C. at-, 584 F.2d at 469; J.A. 161. And should there remain any question as to this point, appellant should at least have been afforded the opportunity to prove the truth of what he asserted.
A second and related issue is raised by the majority’s statement that appellant’s grievance is “one held in common, to some degree, by virtually all members of the public.” Maj. op., 189 U.S.App.D.C. at -, 584 F.2d at 469. In the District Court appellant offered to introduce evidence to establish that there is a qualitative difference between the impact of FOMC decisions on a holder of currency and on a holder of long-term bonds. The District Court, however, without allowing appellant to introduce this evidence, simply stated that the appellant’s contentions are “generalized concerns or grievances shared by many members of the public,” a view adopted by the majority as well. Thus the majority concludes that “[s]ince all forms of personal wealth are affected to some degree by actions of the type under challenge here, it is difficult to imagine how appellant could set himself apart from other citizens seeking some way to protect the value of their holdings.” Maj. op., 189 U.S.App. D.C. at--, 584 F.2d at 469 (emphasis added). Yet that is precisely what appellant offered to do in the District Court. Here again, appellant should at least be afforded an opportunity to introduce evidence as to a factual point which the majority views as critical before this court rules against him because of the absence of such proof.
. Maj. op., 189 U.S.App.D.C. at--, 584 F.2d at 470.
. Judge Tamm seems to suggest that the Buckley appellants’ concrete interest in those sections of the Federal Election Campaign Act establishing reporting and disclosure requirements and limiting campaign expenditures and contributions “[i]n turn” provided appellants with a basis for challenging the method of appointing members to the FEC. Maj. op., 189 U.S.App.D.C. at----, 584 F.2d at 470. There is no question, however, that the fact that an individual has standing to raise one claim— here, to the substantive provisions of the Act— does not afford him standing to raise other, separate claims — here, to the method of appointing Commission members. In Buckley the appellants’ objections to the substantive provisions of the Act cited by Judge Tamm were in no way related to their challenge to the method of appointing FEC members; there was, I must emphasize again, no showing in Buckley that the unconstitutional composition of the Commission, in and of itself, caused the appellants any direct harm or that a properly constituted body would reach different decisions more favorable to their interests. To be sure, because they objected to the reporting requirements and expenditure and contribution provisions of the Act, the Buckley appellants might benefit from any relief which would undermine the statute’s enforcement. But such benefits are relevant only to their challenges to these substantive provisions of the Act; they do not provide a basis for standing to raise the unrelated claim that the members of the Commission should be appointed by the President rather than by Congress.

Passage view · GavelSight