UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: MADISON GUARANTY SAVINGS & LOAN ASSOCIATION


94-0001c

D.C. Cir. 1999


*	*	*


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-


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


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.


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


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.


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


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.