2

Having decided that the question presented in this action is nonjusticiable, I believe that the appropriate disposition is for this Court to vacate the decision of the Court of Appeals and remand with instructions for the District Court to dismiss the complaint. This procedure drives support from our practice in disposing of moot actions in federal courts. For more than 30 years, we have instructed lower courts to vacate any decision on the merits of an action that has become moot prior to a resolution of the case in this Court. United States v. Munsingwear, Inc., 340 U.S. 36 (1950). The Court has required such decisions to be vacated in order to "prevent a judgment, unreviewable because of mootness, from spawning any legal consequences." Id., at 41. It is even more imperative that this Court invoke this procedure to ensure that resolution of a "political question," which should not have been decided by a lower court, does not "spawn any legal consequences." An Art. III court's resolution of a question that is "political" in character can create far more disruption among the three coequal branches of Government than the resolution of a question presented in a moot controversy. Since the political nature of the questions presented should have precluded the lower courts from considering or deciding the merits of the controversy, the prior proceedings in the federal courts must be vacated, and the complaint dismissed.

MR. JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE joins, dissenting in part.

In my view, the time factor and its importance are illusory; if the President does not have the power to terminate the treaty (a substantial issue that we should

2 This Court, of course, may not prohibit state courts from deciding political questions, any more than it may prohibit them from deciding questions that are moot, Doremus v. Board of Education, 342 U. S. 429, 434 (1952), so long as they do not trench upon exclusively federal questions of foreign policy. Zschernig v. Miller, 389 U. S. 429, 441 (1968).

address only after briefing and oral argument), the notice of intention to terminate surely has no legal effect. It is also indefensible, without further study, to pass on the issue of justiciability or on the issues of standing or ripeness. While I therefore join in the grant of the petition for certiorari, I would set the case for oral argument and give it the plenary consideration it so obviously deserves.

MR. JUSTICE BRENNAN, dissenting.

I respectfully dissent from the order directing the District Court to dismiss this case, and would affirm the judgment of the Court of Appeals insofar as it rests upon the President's well-established authority to recognize, and withdraw recognition from, foreign governments. App. to Pet. for Cert. 27A-29A.

In stating that this case presents a nonjusticiable "political question," MR. JUSTICE REHNQUIST, in my view, profoundly misapprehends the political-question principle as it applies to matters of foreign relations. Properly understood, the political-question doctrine restrains courts from reviewing an exercise of foreign policy judgment by the coordinate political branch to which authority to make that judgment has been "constitutional[ly] commit [ted]." Baker v. Carr, 369 U. S. 186, 211-213, 217 (1962). But the doctrine does not pertain when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decisionmaking power. Cf. Powell v. McCormack, 395 U. S. 486, 519-521 (1969). The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts.

The constitutional question raised here is prudently answered in narrow terms. Abrogation of the defense treaty with Taiwan was a necessary incident to Executive recognition of the Peking Government, because the

defense treaty was predicated upon the now-abandoned view that the Taiwan Government was the only legitimate political authority in China. Our cases firmly establish that the Constitution commits to the President alone the power to recognize, and withdraw recognition from, foreign regimes. See Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 410 (1964); Baker v. Carr, supra, at 212; United States v. Pink, 315 U. S. 203, 228– 230 (1942). That mandate being clear, our judicial inquiry into the treaty rupture can go no further. See Baker v. Carr, supra, at 212; United States v. Pink, supra, at 229.

George V. HANSEN, Plaintiff-Appellant,

v.

The NATIONAL COMMISSION ON the OBSERVATION OF INTERNATIONAL WOMEN'S YEAR et al., DefendantsRespondents.

No. 78-2210.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 1980.

Decided Sept. 18, 1980.

Members of Congress brought suit seeking to enjoin the National Commission on the Observance of International Women's Year from spending federal funds for allegedly prohibited lobbying activities. The United States District Court for the District of Idaho, Ray McNichols, Chief Judge, dismissed the suit, and appeal was taken. The Court of Appeals, Spencer Williams, District Judge sitting by designation held that: (1) absent presentation of facts showing that member sustained or was eminently in danger of sustaining actual personal injury, member of Congress had no standing to maintain suit, and (2) member failed to state cause of action under False Claims Act. Affirmed.

1. Federal Civil Procedure 103

Absent presentation of facts showing that member of Congress had sustained or was eminently in danger of sustaining actual personal injury, member of Congress had no standing to sue seeking to enjoin the National Commission on the Observance of International Women's Year from spending federal funds for allegedly prohibited lobbying activities.

False Claims Act is limited to actions involving false demands for either the payment of money or transfer of property that has been presented to an official of the United States for approval. 31 U.S.C.A. § 231 et seq.

3. United States 120

Absent allegation that Commission fraudulently took money from United States, member of Congress failed to state cause of action under the False Claims Act to enjoin National Commission on the Observance of International Women's Year from spending federal funds for allegedly prohibited lobbying activities. 31 U.S.C.A. § 231 et seq. Louis Ingram, Washington, D.C., argued, for plaintiff-appellant; John L. Runft, Runft & Longeteig Chartered Boise Idaho on brief. Leonard Schaitman, Dept. of Justice, Washington, D.C., argued for defendants-respondents; Robert E. Kopp Barbara L. Herwig, Washington, D.C., on brief.

(472)

Appeal from the United States District Court for the District of Idaho.

Before GOODWIN and FERGUSON, Circuit Judges, and WILLIAMS*, District Judge.

SPENCER WILLIAMS, District Judge:

Appellant, a member of Congress, appeals the dismissal of his suit which seeks to enjoin the National Commission on the Observance of International Women's Year ("Commission") from spending federal funds for allegedly prohibited lobbying activities.

The controlling issue is whether plaintiff has standing to sue. The district court found that he does not, and we agree.

Appellant claims that by virtue of his membership in Congress he has a direct interest in having monies appropriated by the Congress used for no other purpose than those authorized by law and that this entitles him to seek a judicial enforcement of the will of that body.

The controlling case law, however, is to the contrary. Since there are no special standards for determining Congressional standing questions the appellant must meet the requirements of standing set forth by the United States Supreme Court. Harrington v. Bush, 553 F.2d 190, 204 (D.C.Cir. 1977). That Court has held that a plaintiff must show more than just a generalized grievance of harm; that a direct personal injury must be shown. Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1368, 31 L.Ed.2d. 636 (1972); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 216-227, 94 S.Ct. 2925, 2929-2935, 41 L.Ed.2d 706 (1973)). This he has failed to do.

1

[1] The injury alleged by appellant is an injury which he suffers along with all other citizens of the United States. He has not presented any facts which show he has sustained or is imminently in danger of sustaining an actual personal injury. Since appellant has suffered only an injury in the abstract, standing cannot be invoked. Schlesinger v. Reservists, 418 U.S. at 217-219, 94 St.Ct. at 2930-2931. [2, 3] Appellant's claims under the False Claims Act 31 U.S.C. $ 231 et seq. also fail. The False Claims Act is limited to actions involving false demands for either the payment of money or the transfer of property that has been presented to an official of the United States for approval. Hageny v. United States, 570 F.2d 924, 931 (Ct.Cl. 1978). Since the appellant in the instant action did not allege respondents fraudulently took the money from the United States, he failed to state a cause of action under this statute. Furthermore, even if appellant had made such a claim, he has failed to comply with the specific procedures of 31 U.S.C. § 232 which must be applied in suits brought by private parties.

Affirmed.

3

*Honorable Spencer Williams, United States District Judge, Northern District of California, sitting by designation.

131 U.S.C. §§ 231-235 is commonly known as the False Claims Act.

2 In hageny, the United States counterclaimed under the False Claims Act but was unable to show that the unauthorized cutting down and removal of certain trees from a national forest fell within the ambit of the Act. The court noted that "the False Claims Act was not designed to reach every kind of fraud practiced on the government." Id., at 931. 3 The monies were properly authorized under Public Law 94-167, approved December 23, 1975, and Public Law 94-303, approved June 1, 1976.