In Re: Madison Guaranty Savings & Loan Association ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed March 18, 1999
Division No. 94-1
In re: Madison Guaranty Savings &
Loan Association
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Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, As Amended
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Before: Sentelle, Presiding Judge, Fay and Cudahy,
Senior Circuit Judges.
O R D E R
Upon consideration of Landmark Legal Foundation's Appli-
cation for Judicial Notice and Writ of Prohibition, filed with
this Court on February 11, 1999, it is hereby
ORDERED that the application be dismissed for the rea-
sons set forth in the accompanying opinion.
Per Curiam
For the Court:
Mark J. Langer, Clerk
by
Marilyn R. Sargent
Chief Deputy Clerk
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed March 18, 1999
Division No. 94-1
In re: Madison Guaranty Savings & Loan Association
Division for the Purpose of
Appointing Independent Counsels
Ethics in Government Act of 1978, as Amended
---------
Before: Sentelle, Presiding Judge, and Fay and Cudahy,
Senior Circuit Judges.
ON APPLICATION FOR JUDICIAL NOTICE
AND WRIT OF PROHIBITION
Opinion of the Special Court filed Per Curiam.
Per Curiam: Landmark Legal Foundation ("Landmark")
has filed with this Court an "application" requesting that we
take judicial notice of a recent newspaper article reporting
that the United States Department of Justice ("DOJ") is to
begin an investigation of the office of Independent Counsel
("IC") Kenneth W. Starr, and that we issue a writ directing
DOJ to cease its investigation. For reasons set forth below,
we dismiss the application.
DISCUSSION
On August 5, 1994 this Court, pursuant to Section 593(f) of
the Ethics in Government Act of 1978, as amended, 28 U.S.C.
s 591 et seq. (1994) ("Act"), appointed Kenneth W. Starr as
Independent Counsel to investigate, inter alia, President
William Jefferson Clinton's relationship with certain business
entities in the State of Arkansas. Thereafter, in early 1998,
IC Starr received information that Monica Lewinsky, a for-
mer White House employee, was attempting to influence the
testimony of a witness in a sexual harassment lawsuit brought
against the President, and that Ms. Lewinsky herself was
allegedly prepared to lie under oath in that lawsuit. Further,
IC Starr was informed that Ms. Lewinsky had spoken to the
President about her testimony. After testing the reliability
of this information, IC Starr presented it to Attorney General
Janet Reno, who requested that the Special Division, pursu-
ant to Section 593(c)(1) of the Act, expand Starr's jurisdiction
to investigate the matter. Consequently, on January 16,
1998, we expanded IC Starr's jurisdiction to investigate
whether any federal laws were broken on the part of Ms.
Lewinsky or others concerning testimony in the sexual
harassment case. After investigating the matter, IC Starr,
pursuant to Section 595(c) of the Act, submitted to the
Congress "substantial and credible information that President
William Jefferson Clinton committed acts that may constitute
grounds for impeachment." Referral to the United States
House of Representatives Pursuant to Title 28, United States
Code, s 595(c), at 1, 5-6 (Sept. 9, 1998). Shortly thereafter,
President Clinton was impeached by the House of Represen-
tatives and subsequently acquitted by the Senate.
Subsequently, reports surfaced in the news media that the
U.S. Department of Justice was to begin an investigation of
alleged irregularities on the part of IC Starr and his staff
concerning (1) the initial information regarding the Lewinsky
matter presented to IC Starr, (2) his seeking of permission to
investigate the information, and (3) his conduct during that
investigation. Based upon these reports, Landmark, a self-
described "national public interest law firm," filed a motion
with this Court requesting that we "take judicial notice of [a
newspaper article on the Department of Justice investigation]
and issue a Writ of Prohibition instructing the Attorney
General to cease any investigation of Independent Counsel
Kenneth Starr and his staff." Landmark Legal Foundation's
Application for Judicial Notice and Writ of Prohibition at 1
(Feb. 11, 1999) ("Landmark Motion").
Upon receipt of Landmark's motion, we forwarded it to the
Independent Counsel and the Department of Justice for their
responses. Both the Department of Justice and the Indepen-
dent Counsel assert that we are without power to act on the
Landmark petition, though on different rationales. Each
defends the strength of its own rationale while omitting or
rejecting the rationale of the other. Both are correct ratio-
nales. We have no jurisdiction.
The courts of the United States are courts of limited
jurisdiction, capable of acting only within those areas ceded to
them by federal law pursuant to Article III of the United
States Constitution. See, e.g., Allen v. Wright, 468 U.S. 737,
750 (1984). Judicial precedent establishing the framework for
determining whether a particular controversy is within the
jurisdiction of the court has established several doctrines "by
which we test the fitness of controversies for judicial resolu-
tion." Louisiana Environmental Action Network v. Brown-
er, 87 F.3d 1379, 1382 (D.C. Cir. 1996). In order to establish
standing, an applicant for relief in a federal court must satisfy
three minimum requirements: (1) that it has suffered a
concrete and actual or imminent injury in fact; (2) that the
injury was caused by the conduct complained of; and (3) that
the injury will be redressed by a decision favorable to it. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
With respect to element number (1), a party seeking to
invoke the jurisdiction of the court must show that he has
"suffered a distinct and palpable injury to himself." Glad-
stone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979)
(internal quotation marks and citation omitted). The filing of
Landmark alleges no such injury. Although it describes
itself as a "law firm," Landmark did not file its motion on
behalf of any client, nor does it attempt to show that the firm
itself has been injured. Indeed, Landmark states that it is
presenting its motion "independently and in furtherance of its
mission to advance the public interest in the fair administra-
tion of justice," and complains only that DOJ's conduct "seeks
to frustrate, hamper and impede the independent counsel's
investigation." Landmark Motion at 1 n.1, 4. We find
nothing in Landmark's motion that could even remotely be
considered an injury to itself. As Landmark wholly fails to
carry its burden to satisfy element number (1), we need not
address elements (2) and (3).
Our conclusion that Landmark has no standing is sup-
ported and underscored by the fact that the Ethics in Govern-
ment Act, creating both the Office of Independent Counsel
and this panel, provides no private cause of action. Although
we have not had this question in precisely this context, this
Court and others have in analogous situations consistently
found no congressional intent to create such a cause and have
therefore dismissed creative attempts to fashion one. For
example, we have rejected applications from private citizens
for appointment of an independent counsel. E.g., In re
Visser, 968 F.2d 1319, 1324 (D.C. Cir., Spec. Div., 1992); In re
Kaminski, 960 F.2d 1062, 1063-64 (D.C. Cir., Spec. Div.,
1992). Similarly, we have rejected a private citizen's applica-
tion to compel the Attorney General to conduct a preliminary
investigation or to apply to the court for appointment of an
Independent Counsel. In re INSLAW, Inc., 885 F.2d 880,
882-84 (D.C. Cir., Spec. Div., 1989); see also Dellums v.
Smith, 797 F.2d 817, 823 (9th Cir. 1986) ("Because ... Con-
gress intended to preclude review at the behest of private
citizens, ... Congress did not intend to create procedural
rights in private citizens sufficient to support standing to
sue."); Nathan v. Smith, 737 F.2d 1069, 1080 (D.C. Cir. 1984)
(Bork, J., concurring) ("[T]he Act establishes no mechanism
for considering citizen complaints ... [T]he text contains
nothing that even suggests a private cause of action.").
Landmark attempts to circumvent the lack of a private
cause of action and a concomitant failure of standing by
asserting its motion under Federal Rules of Evidence 201,
Judicial Notice of Adjudicative Facts, and 803, Hearsay Ex-
ceptions. This is a novel use of the rules, which we think was
never conceived of by Congress or the courts. Rule 101,
Scope, states that "[t]hese rules govern proceedings in the
courts of the United States," i.e., proceedings already com-
menced. Here Landmark is, in effect, seeking to use the
rules to initiate a proceeding. We know of no authority, and
indeed perceive no logic, that would support the proposition
that the Rules of Evidence create any cause of action or ever
provide standing. We thus hold that the lack of standing as
asserted by the Independent Counsel is a sufficient ground
for the dismissal of Landmark's application.
The Department of Justice, while agreeing with the Inde-
pendent Counsel that we have no authority to grant the relief
Landmark prays, does not address the standing question.
While we agree that the Justice Department's alternate
ground for dismissal is equally valid, insofar as the Depart-
ment implies that standing is not a necessity before the panel
because this is not a "judicial proceeding," we cannot accept
its implication. Although Morrison v. Olson, 487 U.S. 654(1988), upheld as constitutional the exercise by this panel of a
power arising from the Appointments Clause of Article II of
the Constitution, U.S. Const., Art. II, s 2, we nonetheless are
Article III judges. Indeed, it was the very fact that the
limited duties imposed upon the Court by the statute did not
run afoul of our Article III nature that led the Supreme
Court to uphold the Ethics in Government Act as not violative
of the principle of Separation of Powers. We therefore hold
that citizens who would invoke the authority of the panel
must meet the minimum constitutional requirements for in-
voking that jurisdiction, including standing. Landmark has
not made that necessary showing.
The Independent Counsel would have us stop there and not
reach the independent ground asserted by the Department of
Justice, which of course we could do since the single ground
already determined is sufficient to dispose of the case. The
Independent Counsel asserts that because Landmark lacks
standing to bring its motion, we should leave other questions
for another day. This is a valid proposition, and one that we
would certainly follow were the asserted ground a ground
addressing the merits of the controversy as opposed to our
jurisdiction. However, although the Department's response
discusses merits questions, narrowly viewed it raises a juris-
dictional question equally as much a threshold issue as that
raised by the Independent Counsel. That is, the Department
asserts that we have no jurisdiction because "the Special
Division has no authority to take any action or undertake any
duties that are not specifically authorized by the [Ethics in
Government] Act." Morrison v. Olson, 487 U.S. at 684.
While we need not discuss this second jurisdictional
ground, having found the one asserted by the Independent
Counsel to be sufficient, unlike a merits argument, we are
free to do so. As the Supreme Court has noted, it is not
proper for federal courts to proceed immediately to a merits
question despite jurisdictional objections. Steel Co. v. Citi-
zens for a Better Environment, -- U.S. --, 118 S. Ct. 1003,
1012 (1998) (without proper jurisdiction, a court cannot pro-
ceed at all, but can only note the jurisdictional defect and
dismiss the suit). But there is no hierarchy of jurisdictional
questions, so that "we have no difficulty dismissing a case on
one jurisdictional bar rather than another." Louisiana Envi-
ronmental Action Network v. Browner, 87 F.3d 1379, 1384
(D.C. Cir. 1986). While this means that a court may choose
which one of several jurisdictional deficiencies it wishes to
rely upon in dismissing a case, absent some circumstance in
which one ground is logically anterior to another, it also
means that there is no bar to our asserting an alternate
ground where both deficiencies are jurisdictional.
As we noted above, federal courts being courts of limited
jurisdiction, we cannot exercise authority over matters not
ceded to us by federal law. As the Department of Justice
reminds us, the source of law governing the Special Division
is the Ethics in Government Act. That Act enumerates our
limited powers. The enumeration does not include the relief
prayed by Landmark in the present application. The Special
Division has "no power to review ... any of the actions of the
Attorney General with regard to the [independent] counsel."
Morrison v. Olson, 487 U.S. at 683.
CONCLUSION
For the reasons set forth above, we hold that we lack
jurisdiction to entertain the application of Landmark Legal
Foundation. We therefore dismiss the application.