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CERVASE v. RANGEL

November 2, 1978

John CERVASE, Plaintiff,
v.
Charles B. RANGEL, Defendant



The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

I

 This action, in which plaintiff seeks declaratory and injunctive relief, is based on defendant's alleged abuse of the franking privileges that are granted him as a member of Congress. *fn1"

 Plaintiff is a United States citizen and a taxpayer of the United States and the State of New Jersey. Defendant represents the Nineteenth Congressional District of New York and is a member of the Congressional Black Caucus, Inc. Under 39 U.S.C. § 3210, defendant has the privilege of sending mail under frank in order to facilitate the conduct of defendant's official duties.

 In his complaint, plaintiff alleges that defendant has violated 39 U.S.C. § 3210 *fn2" by using his frank to distribute Congressional Black Caucus literature, which literature is allegedly "unrelated to the official business" of defendant. Plaintiff further alleges that defendant's violation of 39 U.S.C. § 3210 has resulted in increased federal tax liability both for plaintiff and for the public at large.

 Defendant has moved, pursuant to Rule 12(b)(3), Fed.R.Civ.P., to dismiss the complaint for lack of subject matter jurisdiction. Plaintiff has moved to amend his complaint to include allegations that jurisdiction is based on 28 U.S.C. § 1339 *fn3" and that defendant has violated 39 U.S.C. § 3215. *fn4"

 II

 I find that plaintiff does not have standing to bring this action; therefore, I grant defendant's motion to dismiss. *fn5" Because plaintiff's lack of standing would not be cured by the proposed amendment to his complaint, plaintiff's motion to amend is denied.

 III

 The Supreme Court has often emphasized that "(no) principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. See Flast v. Cohen, 392 U.S. 83, 95 (, 88 S. Ct. 1942, 20 L. Ed. 2d 947) (1968). The concept of standing is part of this limitation." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37, 96 S. Ct. 1917, 1924, 48 L. Ed. 2d 450 (1976).

 The key to the concept of standing is the injury a plaintiff alleges that he has suffered or is going to suffer. See Flast v. Cohen, 392 U.S. 83, 91, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). Here the only injury alleged by plaintiff is that defendant's allegedly illegal acts have caused or will cause an increase in his federal tax liability. Thus if plaintiff has standing, it must be as a federal taxpayer.

 The leading Supreme Court case on taxpayer standing is Flast v. Cohen, supra. In Flast, a group of taxpayers sued certain federal officials. Plaintiffs alleged, Inter alia, that a federal statute, under which defendants sought to finance instruction and materials purchases in religious and sectarian schools, violated the religion clauses of the First Amendment. Given these allegations, the Court framed the standing issue as follows:

 
In Frothingham v. Mellon, 262 U.S. 447 (43 S. Ct. 597, 67 L. Ed. 1078) (1923), this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute. That ruling has stood for 45 years as an impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers. In this case, we must decide whether the Frothingham barrier should be lowered when a taxpayer ...

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