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In re an Application for Appointment of Independent Counsel

decided: June 24, 1985.

IN THE MATTER OF AN APPLICATION FOR APPOINTMENT OF INDEPENDENT COUNSEL; RONALD A. SCHIAVONE AND THE SCHIAVONE CONSTRUCTION COMPANY, APPELLANTS,
v.
UNITED STATES OF AMERICA, APPELLEE



Appeal by applicants, Ronald A. Schiavone and the Schiavone Construction Company, from an order by the United States District Court for the Eastern District of New York (Glasser, J.) that denied a request made by applicants for the appointment of independent counsel to investigate whether a government informer had falsely testified before a grand jury and, if so, to prosecute the informer for any violation of federal law warranted by the investigation.

Cardamone, Circuit Judge.

Author: Cardamone

CARDAMONE, Circuit Judge.

The issue we address in this case is whether appellants have standing under Article III of the Constitution to invoke the power of the federal courts. If they do not, we need go no further. Analyzing Article III standing in a given case is not always easy. The Supreme Court decisions in this area do not mesh with nice consistency, and the concept cannot be stated in a neat epigram. See Valley Forge Christian College v. Americans United, 454 U.S. 464, 475, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). Yet, standing is far from being like Milton's Serbonian bog "where armies whole have sunk;"*fn1 nor is it even so inordinately complex as some commentators view it. See, e.g., 4 K. Davis, Administrative Law Treatise § 24:1 (2d ed. 1983). Hence, a court confronted with a standing issue should decide it.

Ronald A. Schiavone and the Schiavone Construction Company applied to the United States District Court for the Eastern District of New York (Glasser, J.) for appointment of independent counsel to investigate whether one Mario Montuoror had given false evidence before a grand jury and, if so, to prosecute for any violation of federal criminal law warranted by that finding. The district court denied the application holding that the court has no constitutional or statutory authority to make an appointment of counsel. 596 F. Supp. 1465 (E.D.N.Y. 1984). On appeal, the government, which has opposed the application throughout the proceeding, urges affirmance of the district court decision or, in the alternative, dismissal of the application because appellants lack standing to seek such appointment. For the reasons stated below, we vacate the district court's order and dismiss the proceeding.

I BACKGROUND

On September 20, 1984 an application for appointment of independent counsel was filed on behalf of appellants Ronald A. Schiavone and the Schiavone Construction Company. The allegations contained in the application, reproduced in 596 F. Supp. at 1466, may be summarized briefly. The applicants alleged that Mario Montuoro has a criminal record and has acted as an informer for the United States Department of Justice. Montuoro told federal agents that Ronald A. Schiavone and Raymond J. Donovan, as officers of Schiavone Construction Company, had made an illegal payment to a union officer at a luncheon in 1979. In 1981 Donovan was appointed as United States Secretary of Labor. Shortly afterwards the United States Court of Appeals for the District of Columbia appointed a Special Prosecutor to investigate Montuoro's allegations. Pursuant to an order of the Eastern District Court, issued at the behest of the Special Prosecutor, Montuoro testified before a grand jury and repeated the allegations regarding the luncheon. The grand jury unanimously refused to indict either Schiavone or Donovan on Montuoro's allegations. The Special Prosecutor concluded that "no credible evidence exist[ed] that a luncheon as alleged by Montuoro ever occurred."

Schiavone claimed that Montuoro's conduct warranted criminal prosecution for perjury, 18 U.S.C. § 1621, false declaration before a grand jury, 18 U.S.C. § 1623, false statements, 18 U.S.C. § 1001, obstruction of justice, 18 U.S.C. § 1505, and contempt, 18 U.S.C. § 401. Schiavone further stated that the government has not sought to indict Montuoro on any of these charges. With his application to the district court, he submitted affidavits by six experts in the field of professional responsibility, all of whom were of the opinion that the Department of Justice violated applicable standards of professional conduct by failing to prosecute Montuoro for his false testimony because of a conflict of interest. See 596 F. Supp. at 1466-67 & n.1. Schiavone asked the district court to appoint independent counsel to investigate and, if warranted, prosecute Montuoro.

The district court denied the application on its merits. The court held that it had no inherent or statutory authority to appoint an independent prosecutor, and that there was no precedent in the history of the common law for such an appointment. It concluded that the constitutional principle of separation of powers between the executive and the judicial branches, together with the broad discretion vested in the prosecutor, precluded the court from interfering with the prosecutorial function. At the end of its opinion the district court noted the government's assertion that Schiavone lacked standing to submit his application, but declined to rule on that issue. 596 F. Supp. at 1472. Without reaching or considering the correctness of the district court's substantive conclusions, we hold that the applicants do not meet the threshold requirements of standing.

II DISCUSSION

A. General Rules Governing Standing

The framers of the Constitution drawing on history's examples urged that the preservation of liberty depended on keeping the "three great departments of power . . . separate and distinct." The Federalist No. 47, at 313 (J. Madison) (Sesquicentennial ed. 1937). The separation of powers is the bedrock theory upon which our federal government rests. With respect to the federal judiciary, this concept is embodied in section 2 of Article III of the Constitution, which states that the "judicial Power" of the federal courts "shall extend to" certain described "Cases" and "Controversies."

A legal device crafted in decisional law to implement the case-or-controversy requirement is the doctrine of standing, which places limits on a plaintiff's ability to invoke the power of the federal courts. See, e.g., Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 3324, 82 L. Ed. 2d 556 (1984). Standing asks whether a particular litigant is entitled to invoke the power of the federal court. "The question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). Since the standing requirement is derived from Article III limitations on the federal courts' powers, it is the threshold issue in every case. To demonstrate standing a plaintiff must establish first that he has suffered some "distinct and palpable injury," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979) (quoting Warth, 422 U.S. at 501), which may be actual or threatened, economic or noneconomic. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). Second, the injury must be the result of the "putatively illegal conduct of the defendant." Gladstone, 441 U.S. at 99. In other words, plaintiff must show that the injury "fairly can be traced to the challenged action." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976). Nor may the causation between the illegal conduct and the injury be too attenuated. Wright, 104 S. Ct. at 3325. Finally, it must be likely that plaintiff's injury will be redressed by a favorable court decision. Valley Forge, 454 U.S. at 472; Simon, 426 U.S. at 38.

The Supreme Court consistently has stated that the essence of the question of standing is whether plaintiff has "demonstrate[d] a 'personal stake in the outcome' [of the controversy] in order to 'assure that concrete adverseness which sharpens the presentation of issues' necessary for the proper resolution of constitutional questions." City of Los Angeles v. Lyons, 461 U.S. 95, 101, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983) (quoting Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962)). But standing "is not measured by the intensity of the litigant's interest," see Valley Forge, 454 U.S. at 486, and "concrete adverseness" is not intended to substitute for the requirement that a plaintiff show that he personally suffered actual or threatened injury as a result of defendant's conduct. Id. Instead, that ...


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