                            UNITED STATES COURT OF APPEALS
                                     TENTH CIRCUIT
                             Byron White United States Courthouse
                                      1823 Stout Street
                                   Denver, Colorado 80257
                                       (303) 844-3157
Patrick J. Fisher, Jr.                                                             Jane B. Howell
       Clerk                                                                     Chief Deputy Clerk

                                           March 29, 2001


        TO: ALL RECIPIENTS OF THE OPINION

        RE: 99-1385, Schaffer, et al. v. Clinton, et al.
            240 F.3d 878
            Filed on February 13, 2001

                Please note the following corrections to the court’s slip opinion:

        1. On page one, in the caption, appellant Schaffer’s last name was misspelled as
             “Schaeffer.” The correct spelling is “Schaffer.”

        2. One page two, the attorney section for appellees Clinton, Rubin and Sisco, is
             corrected to read as follows:

             Douglas N. Letter, Appellate Litigation Counsel, United States Department of
             Justice (David W. Ogden, Acting Assistant Attorney General, United States
             Department of Justice, Patricia M. Bryan, Senate Legal Counsel, Morgan J.
             Frankel, Deputy Senate Legal Counsel, Steven F. Huefner, Assistant Senate
             Legal Counsel, and Allison Moore, Assistant Senate Legal Counsel, with him
             on the brief), Washington, D.C., for Defendants-Appellees William Jefferson
             Clinton, Robert E. Rubin and Gary Sisco.

        3. On page two, footnote one is corrected to read as follows:

             The other appellants in this case, who were dismissed for lack of standing,
             waived their arguments on appeal by failing to address the district court’s
             ruling regarding their standing.
        A corrected copy of the opinion is attached.

                                               Sincerely,

                                               Patrick Fisher, Clerk of Court


                                               By:     Keith Nelson
                                                       Deputy Clerk




encl.




                                         -2-
                                                                 F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 FEB 13 2001
                                   PUBLISH
                                                               PATRICK FISHER
                  UNITED STATES COURT OF APPEALS                      Clerk

                                 TENTH CIRCUIT



THE HONORABLE BOB
SCHAFFER, in his official capacity as
a member of the United States House
of Representatives; WALT
MUELLER, a Missouri State Senator;
JOHN R. STOEFFLER, a United
States taxpayer; GREGORY D.
WATSON, a United States taxpayer
and National Coordinator of the
Political Movement to Ratify the 27th
Amendment,

      Plaintiffs - Appellants,
v.                                                 No. 99-1385

WILLIAM JEFFERSON CLINTON,
President of the United States of
America, in his official capacity;
ROBERT E. RUBIN, Secretary of the
Treasury, in his official capacity;
GARY SISCO, Secretary of the United
States Senate, in his official capacity;
JEFF TRANDAHL, Clerk of the
United States House of
Representatives, in his official
capacity,

      Defendants - Appellees.


                Appeal from the United States District Court
                        for the District of Colorado
                            (D.C. No. 99-K-201)
William Perry Pendley (D. Andrew Wight with him on the briefs), Mountain
States Legal Foundation, Denver, Colorado, for the Plaintiffs-Appellants.

Kerry W. Kircher, Deputy General Counsel (Geraldine R. Gennet, General
Counsel, with him on the brief), Office of the General Counsel U.S. House of
Representatives, Washington, D.C., for Defendant-Appellee Jeff Trandahl.

Douglas N. Letter, Appellate Litigation Counsel, United States Department of
Justice (David W. Ogden, Acting Assistant Attorney General, United States
Department of Justice, Patricia M. Bryan, Senate Legal Counsel, Morgan J.
Frankel, Deputy Senate Legal Counsel, Steven F. Huefner, Assistant Senate Legal
Counsel, and Allison Moore, Assistant Senate Legal Counsel, with him on the
brief), Washington, D.C., for Defendants-Appellees William Jefferson Clinton,
Robert E. Rubin and Gary Sisco.


Before LUCERO, McKAY and MURPHY, Circuit Judges.


LUCERO, Circuit Judge.


      Bob Schaffer, a United States Congressman, appeals    1
                                                                the district court’s

dismissal of a challenge, on Twenty-Seventh Amendment grounds, to the Cost of

Living Adjustment (“COLA”) provision of the Ethics Reform Act of 1989.

Because we determine that appellant does not have standing to sue, we do not

reach the merits of the appeal, namely, whether the district court erred in holding

that the COLA provision of the Ethics Reform Act does not violate the Twenty-

Seventh Amendment to the Constitution and that the COLA provision is not an


      1
         The other appellants in this case, who were dismissed for lack of
standing, waived their arguments on appeal by failing to address the district
court’s ruling regarding their standing.

                                        -2-
unconstitutional delegation of Congress’s legislative authority. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district

court.

                                              I

         The Twenty-Seventh Amendment to the United States Constitution provides

that “[n]o law, varying the compensation for the services of the Senators and

Representatives, shall take effect, until an election of Representatives shall have

intervened.” The so-called “compensation amendment” was originally proposed

in the First Congress on June 8, 1789, by James Madison.             See Richard B.

Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh

Amendment , 61 Fordham L. Rev. 497, 498 (1992). It was one of twelve proposed

constitutional amendments, ten of which became the Bill of Rights.             See id. at

530–32. Between 1789 and 1791, the amendment was ratified by six states and

rejected by five and thus was not adopted.         See id. In response to the “Salary

Grab” Act of 1873, however, Ohio ratified the amendment in that year; after a

congressional pay increase, Wyoming followed suit in 1978.              See id. at 534, 537.

Finally, as the result of the efforts of a self-financed campaign by one of the

named parties in this case, Gregory D. Watson,        2
                                                          thirty-three additional states



         Watson, while a sophomore economics major at the University of Texas
         2

at Austin in 1982, wrote a paper on the compensation amendment, arguing that
                                                                  (continued...)

                                             -3-
ratified the amendment between 1983 and 1992, after which Congress on May 20,

1992, approved the amendment as the Twenty-Seventh Amendment to the

Constitution. See id. at 537–38, 542.   3



      The Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716,

established automatic annual COLAs pegged to the rate of change in the

Employment Cost Index minus one-half of a percent.    4
                                                          The Act’s COLA provision


      2
       (...continued)
“the 1789 amendment was still validly before the states principally because,
unlike most recent proposed amendments, it has no internal time limit.” Richard
B. Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh
Amendment, 61 Fordham L. Rev. 497, 537 (1992). His paper urged that the
amendment be ratified by the necessary number of remaining states and adopted.
See id. “But Watson received only a ‘C’ from his instructor, who told him that
the Amendment was a dead letter and never would become part of the
Constitution.” Id.
      3
        Although appellees do not challenge its validity, there is a lively debate
about the Twenty-Seventh Amendment’s adoption and legitimacy because of the
long period of time between the amendment’s proposal in 1789 and its ratification
by two-thirds of the states in 1992. See, e.g., Stewart Dalzell & Eric J. Beste, Is
the Twenty-Seventh Amendment 200 Years Too Late?, 62 Geo. Wash. L. Rev.
501 (1994); Sanford Levinson, Authorizing Constitutional Text: On the Purported
Twenty-Seventh Amendment, 11 Const. Comment. 101 (1994); Michael Stokes
Paulsen, A General Theory of Article V: The Constitutional Lessons of the
Twenty-Seventh Amendment, 103 Yale L.J. 677 (1993); JoAnne D. Spotts, Note,
The Twenty-Seventh Amendment: A Late Bloomer or a Dead Horse?, 10 Ga. St.
U. L. Rev. 337 (1994). Because the argument was not raised, it is not before this
Court. See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995).
      4
          As codified, the Ethics Reform Act provides:

       (1) A provision of law increasing the rate of pay payable for an office or
position within the purview of subparagraph (A), (B), (C), or (D) of section 356
                                                                       (continued...)

                                            -4-
became effective on January 1, 1991, following an intervening election of

Representatives.

      Claiming the congressional COLA provisions of the Ethics Reform Act

violate the Twenty-Seventh Amendment, four plaintiffs initiated this challenge:

(1) Congressman Bob Schaffer, who represents a Colorado district in the House

of Representatives; (2) Walt Mueller, who as “a Missouri State Senator . . . voted

to adopt the 27th Amendment”; (3) Watson, a “United States taxpayer and

National Coordinator of the Political Movement to Ratify the 27th Amendment”;



      4
        (...continued)
of this title shall not take effect before the beginning of the Congress following
the Congress during which such provision is enacted.
       (2) For purposes of this section, a provision of law enacted during the
period beginning on the Tuesday following the first Monday of November of an
even-numbered year of any Congress and ending at noon on the following January
3 shall be considered to have been enacted during the first session of the
following Congress.
       (3) Nothing in this section shall be considered to apply with respect to any
pay increase—
               (A) which takes effect under the preceding sections of this chapter;
               (B) which is based on a change in the Employment Cost Index (as
       determined under section 704(a)(1) of the Ethics Reform Act of 1989) or
       which is in lieu of any pay adjustment which might otherwise be made in a
       year based on a change in such index (as so determined); or
               (C) which takes effect under section 702 or 703 of the Ethics Reform
       Act of 1989.

2 U.S.C. § 364.
      Although provisions of the Ethics Reform Act affect the salaries of federal
judges, we can decide this appeal under the Rule of Necessity. See United States
v. Will, 449 U.S. 200, 213–17 (1980).

                                        -5-
and (4) John Stoeffler, “a United States taxpayer.” (Appellants’ App. at 10.)

Congressman Schaffer, who has served in Congress since 1997, received a COLA

in 1998 and 2000. He claims that these COLAs, as well as the 1992 and 1993

COLAs, are unconstitutional.

       In a memorandum opinion and order, the district court held that except for

Congressman Schaffer the plaintiffs lacked standing to challenge the

congressional COLA provisions of the Ethics Reform Act. Watson, Stoeffler, and

Mueller did not have standing to sue as taxpayers because their case did not

involve “acts of Congress under its taxing and spending authority when those acts

implicate the Establishment Clause of the Constitution.”       Schaffer v. Clinton , No.

99-K-201, slip op. at 3–4 (D. Colo. July 2, 1999) (citing     United States v.

Richardson , 418 U.S. 166 (1974);     Flast v. Cohen , 392 U.S. 83 (1968)).

Furthermore, Mueller could not sue as a voter in congressional elections because

his claim amounted to a “non-particularized constitutional violation.”        Id. at 4.

With respect to Congressman Schaffer,       the district court noted that his salary was

directly affected by the COLAs, but it did not expressly hold he had standing to

sue. Id. at 5–7.

       In addition, the district court held that all of the defendants were improper

parties because Congressman Schaffer’s injury was not caused, and could not be

resolved, by them.   Id. at 8–10. The court also determined that it lacked personal


                                            -6-
jurisdiction over the legislative branch defendants and that Colorado was not the

proper venue. See id. at 10–15.

       On the merits, the court held that the COLAs did not violate the Twenty-

Seventh Amendment because they went into effect after an intervening election of

Representatives and that the COLAs were not independent laws under the

Amendment because they are not discretionary acts of Congress.          See id. at

17–19. According to the court, the COLAs “accomplish[] the goal of the

Founding Fathers manifested in the Twenty-seventh Amendment” because they

“eliminate[] the possibility that Congress will grant itself a new pay raise during

its current session.”   Id. at 19.

       On appeal, appellants challenge only the district court’s determination on

the merits. We cannot proceed to the merits, however, without first deciding

whether Congressman Schaffer had standing to sue.

                                              II

       The judicial power of federal courts extends only to actual cases and

controversies.   See U.S. Const. art. III, § 2;    Allen v. Wright , 468 U.S. 737, 750

(1984).

       [T]he “case or controversy” requirement defines with respect to the
       Judicial Branch the idea of separation of powers on which the
       Federal Government is founded. The several doctrines that have
       grown up to elaborate that requirement are “founded in concern about
       the proper—and properly limited—role of the courts in democratic
       society.”

                                             -7-
Allen , 468 U.S. at 750. Perhaps the most important of the several jurisdictional

doctrines is that of standing.   FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 230

(1990) (“The federal courts are under an independent obligation to examine their

own jurisdiction, and standing ‘is perhaps the most important of [the

jurisdictional] doctrines.’” (quoting   Allen , 468 U.S. at 750)).   5



       As is now well-settled, the elements of standing are three:

       “First, the plaintiff must have suffered an ‘injury in fact’—an
       invasion of a legally protected interest that is (a) concrete and
       particularized, and (b) actual or imminent, not conjectural or
       hypothetical. Second, there must be a causal connection between the
       injury and the conduct complained of. . . . Third, it must be likely, as



       5
         Admittedly, the standing doctrine is a confusing one. As the Supreme
Court recognized in Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc. , 454 U.S. 464, 475 (1982) ,

       We need not mince words when we say that the concept of “Art. III
       standing” has not been defined with complete consistency in all of
       the various cases decided by this Court which have discussed it, nor
       when we say that this very fact is probably proof that the concept
       cannot be reduced to a one-sentence or one-paragraph definition.

See also 13 Charles Alan Wright et al., Federal Practice and Procedure § 3531, at
347 (2d ed. 1984) (“However reassuring it may seem to describe the elements of
standing in . . . brief phrases, the doctrines have changed continually in recent
years. Even at any single moment, there are almost unlimited opportunities to
disagree in applying the currently fashionable phrases. Several years ago, Justice
Douglas observed that ‘[g]eneralizations about standing to sue are largely
worthless as such.’” (quoting Ass’n of Data Processing Serv. Orgs. v. Camp, 397
U.S. 150, 151 (1970)).



                                           -8-
      opposed to merely speculative, that the injury will be redressed by a
      favorable decision.”

United States v. Hays , 515 U.S. 737, 742–43 (1995) (quoting    Lujan v. Defenders

of Wildlife , 504 U.S. 555, 560–61 (1992) (footnote, citations, and internal

quotations omitted)) (further citations omitted). The standing inquiry must be

“especially rigorous when reaching the merits of the dispute would force us to

decide whether an action taken by one of the other two branches of the Federal

Government was unconstitutional.”     Raines v. Byrd , 521 U.S. 811, 819–20 (1997).



      [T]he law of Art. III standing is built on a single basic idea—the idea
      of separation of powers. In the light of this overriding and
      time-honored concern about keeping the Judiciary’s power within its
      proper constitutional sphere, we must put aside the natural urge to
      proceed directly to the merits of this important dispute and to “settle”
      it for the sake of convenience and efficiency. Instead, we must
      carefully inquire as to whether [plaintiffs] have met their burden of
      establishing that their claimed injury is personal, particularized,
      concrete, and otherwise judicially cognizable.

Id. at 820 (internal quotation, citations, and footnote omitted).

      In its starkest terms, the standing inquiry requires the Court to ask not only

whether an injury has occurred, but whether the injury that has occurred may

serve as the basis for a legal remedy in the federal courts.

      A federal court cannot pronounce any statute, either of a state or of
      the United States, void, because irreconcilable with the constitution,
      except as it is called upon to adjudge the legal rights of litigants in
      actual controversies. Have the appellants alleged such a personal
      stake in the outcome of the controversy as to assure that concrete

                                      -9-
       adverseness which sharpens the presentation of issues upon which
       the court so largely depends for illumination of difficult
       constitutional questions? This is the gist of the question of standing.
       It is, of course, a question of federal law.

Baker v. Carr , 369 U.S. 186, 204 (1962) (internal quotation and citation omitted).

Although the standing question is often dressed in the dazzling robe of legal

jargon, its essence is simple—what kind of injuries are courts empowered to

remedy and what kind are they powerless to address? Our cold-eyed duty is to

determine which category catalogs the present case. We start with Congressman

Schaffer’s representations about the injury he suffered.

       The first element of the standing inquiry—whether Congressman Schaffer

has suffered an injury in fact that is (a) concrete and particularized and (b) actual

or imminent, not conjectural or hypothetical—gives us pause. It is Congressman

Schaffer’s burden, as “the party who seeks the exercise of jurisdiction in his

favor[,] clearly to allege facts demonstrating that he is a proper party to invoke

judicial resolution of the dispute.”   Hays , 515 U.S. at 743 (internal quotations and

citations omitted). We “will not craft [his] arguments for him,”     Perry v.

Woodward , 199 F.3d 1126, 1141 n.13 (10th Cir. 1999),       cert. denied , 120 S. Ct.

1964 (2000), and thus we evaluate only the basis for standing offered by

Congressman Schaffer.

       Congressman Schaffer asserts standing to bring the present action on the

ground that “his salary as a Member of the House of Representatives is paid from

                                          - 10 -
the treasury in amounts unconstitutionally adjusted, which is personally offensive

and professionally harmful to [him], as well as damaging to his political position

and his credibility among his constituency.” (Appellants’ Reply Br. at 1.) We

examine that claim in its several parts and as a whole to determine whether

Congressman Schaffer has met his burden of demonstrating standing.       See Hays ,

515 U.S. at 743.

      The first portion of Congressman Schaffer’s standing claim revolves around

the asserted unconstitutionality of the congressional COLA provision. This

argument is a statement of Congressman Schaffer’s view of the merits of this

case, and no more. The ultimate question of whether the congressional COLAs

are unconstitutional is distinct from the antecedent issue of whether Congressman

Schaffer has standing.   See Arizonans for Official English v. Arizona   , 520 U.S.

43, 66–67 (1997) (noting that the question of standing “goes to the Article III

jurisdiction of this Court and the courts below, not to the merits of the case”);

Cook v. Reno , 74 F.3d 97, 99 (5th Cir. 1996) (“[T]he ultimate merits of the suit

are not a consideration when deciding standing.”). We therefore turn to his

allegations that the COLAs are “personally offensive and professionally harmful

to [him], as well as damaging to his political position and his credibility among

his constituency.” (Appellants’ Reply Br. at 1.)

                                          A


                                         - 11 -
       Congressman Schaffer’s allegation that the challenged COLAs are

personally offensive to him does not establish his standing to sue. As the

Supreme Court stated in     Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc.   , 454 U.S. 464 , 485–86 (1982), “the

psychological consequence presumably produced by observation of conduct with

which one disagrees . . . is not an injury sufficient to confer standing under Art.

III, even though the disagreement is phrased in constitutional terms.”     Valley

Forge involved a First Amendment challenge to the sale of government property

to a self-professed Christian educational institution pursuant to a federal statutory

scheme providing for the sale or lease of “surplus” government property to non-

profit educational institutions.   Id. at 466–68. Upon learning of the sale, the

Americans United For the Separation of Church and State, Inc., and four of its

employees brought a suit to enjoin the sale, claiming that each member of the

organization “would be deprived of the fair and constitutional use of his (her) tax

dollar for constitutional purposes in violation of his (her) rights under the First

Amendment of the United States Constitution.”        Id. at 469. Relying on

Schlesinger v. Reservists Committee to Stop the War       , 418 U.S. 208 (1974), and

United States v. Richardson , 418 U.S. 166 (1974), the Court held that the

complaint failed to allege any consequences of the allegedly unconstitutional sale

other than the psychological effects of that disagreement, and therefore that there


                                           - 12 -
was no “injury sufficient to confer standing under Art. III.”   Valley Forge , 454

U.S. at 485.

       As in Valley Forge , “[i]t is evident that [appellant is] firmly committed to

the constitutional principle” embodied in the Twenty-Seventh Amendment, “b        ut

standing is not measured by the intensity of the litigant’s interest or the fervor of

his advocacy.”    Id. at 485–86 . Thus, Congressman Schaffer’s moral outrage,

however profoundly and personally felt, does not endow him with standing to sue

in the present action.   6



                                             B

       As for his allegation that the challenged congressional COLAs are

“professionally harmful” to him, Congressman Schaffer “complains of injury

suffered in a personal capacity, caused by the fact that his employer pays him

monies appropriated unconstitutionally from the Treasury.” (Appellants’ Reply

Br. at 5.) The general notion that compensation of public officials has genuine

constitutional significance and may furnish grounds for alleging an injury in fact

is as old as the nation itself and precedes the ratification of the Twenty-Seventh

Amendment. We respect Alexander Hamilton’s cautionary words in The

Federalist No. 79 that “[i]n the general course of human nature, a power over a


       6
          We note that in Valley Forge the Supreme Court “[did] not retreat from
[its] earlier holdings that standing may be predicated on noneconomic injury.”
Valley Forge, 454 U.S. at 486 (citations and footnote omitted).

                                           - 13 -
man’s subsistence amounts to a power over his will,” but of course Hamilton was

speaking of a decrease in pay. We do not see how Congressman Schaffer could

have suffered an injury in fact by receiving a nominal (though not, in economic

terms, a real) increase in pay as a result of the 1998 COLA. Congressman

Schaffer has not suffered“palpable injury” that is “real” in any meaningful sense

of the term, and for standing purposes he has alleged no “plausible benefit” that

would inure to him should we decide in his favor.     Ash Creek Mining Co. v.

Lujan , 969 F.2d 868, 875 (10th Cir. 1992) (internal quotations omitted).

Irrespective of the merits of the underlying cause of action, it is counterintuitive

to claim “injury” by virtue of having received more than one’s due.   7
                                                                          To the

extent he believes that he has been injured by receiving the COLA, Congressman

Schaffer can mitigate his injury by resorting to a self-help remedy—he can remit

the portion of his pay he believes is unconstitutional to the Treasury. As a

member of Congress, he can work within the political system to press for repeal

of the challenged COLA provision as has been done in the past. We hold that he

was not injured for standing purposes simply because he received a higher salary.

                                            C


      7
         The Court of Appeals for the District of Columbia Circuit reached a
contrary conclusion in Boehner v. Anderson, 30 F.3d 156, 160 (D.C. Cir. 1994).
For the reasons discussed below, see infra Part II.C, we believe that Boehner is
unsupported by the Supreme Court’s standing jurisprudence, and we reject its
analysis.

                                          - 14 -
       Congressman Schaffer also declares the COLAs to be “damaging to his

political position and his credibility among his constituency.” (Appellants’ Reply

Br. at 1.) However, he points to no concrete evidence of a loss of credibility or

other reputational injury as a result of the COLAs, past or future. As appellees

point out, he was reelected in 1998 after having received a COLA.      8
                                                                           This is

therefore not a case like   Department of Commerce v. United States House of

Representatives , 525 U.S. 316, 328–34 (1999), in which the plaintiffs established

standing by presenting persuasive statistical evidence demonstrating the dilution

of their political influence (i.e., the power of their votes) resulting from the likely

loss of congressional districts in their states.

       Rather, this case is much closer to     Raines , in which the Court held that

members of Congress lacked standing to challenge the statute creating the line-

item veto. Like the plaintiffs in   Raines , Congressman Schaffer has not alleged a

sufficiently personal injury to establish standing because he “ha[s] not been


       8
         In fact, Congressman Schaffer was elected to a third term shortly before
oral argument in this case. We take judicial notice of the fact that his percentage
of the vote has increased each time he has run for reelection. When first elected
to Congress in 1996, he won with 56% of the vote. See The Political Reference
Almanac (Anthony Quain, ed., 1999–2000 ed.), available at
http://www.polisci.com/almanac/legis/district/CO04.htm. In 1998, he won
reelection with 60% of the vote. Id. Most recently, Congressman Schaffer ran
unopposed by a major party candidate and garnered nearly 80% of the votes cast.
See Colorado Secretary of State, November 7, 2000 Colorado General Election
Results Final Certified Official, at
http://www.sos.state.co.us/pubs/elections/elec_night.html (Jan. 4, 2001).

                                             - 15 -
singled out for specially unfavorable treatment as opposed to other Members” of

the House of Representatives. 521 U.S. at 821. Instead the COLAs, which apply

to every Representative, “necessarily damage[] all Members of Congress . . .

equally.” Id. Congressman Schaffer’s allegations of harm to his political

position and his credibility among his constituency are even more abstract than

the assertion of a “dilution of institutional legislative power” the Court found

wanting in Raines . Id. at 826; see also id. at 821 (noting that a “claim of standing

. . . based on a loss of political power,” unlike the loss of a private right, is

insufficiently concrete). Finally, as in   Raines , there has been no nullification of

Congressman Schaffer’s ability to vote on the COLAs; if he received a COLA in

1998, that is simply because he “lost that vote.”    Id. at 824. The Ethics Reform

Act has no effect on either Congressman Schaffer’s ability to press for a change

in the law setting Representatives’ salaries or for Congress to amend the COLA

provisions pursuant to the normal legislative process.     See id.

       Congressman Schaffer relies heavily on       Boehner v. Anderson , 30 F.3d 156

(D.C. Cir. 1994), which involved a similar challenge to the COLA provision of

the Ethics Reform Act brought by a member of Congress.         Boehner concluded that

a Congressman, who “by virtue of that office . . . is also an employee of the

United States Government[,] . . . clearly has standing to challenge the operation

of a law that directly determines his rate of pay” because such a claim “alleges a


                                           - 16 -
‘distinct and palpable injury’ to him in his capacity as an employee.”           Id. at 160.

This holding relies on no Supreme Court precedent and precedes               Raines . We find

the cursory discussion in    Boehner unpersuasive and contrary to recent Supreme

Court law and thus reject its standing analysis.

       We note that, as in Raines , “our conclusion neither deprives Members of

Congress of an adequate remedy (since they may repeal the Act [or vote to refuse

the COLAs]), nor forecloses the Act from constitutional challenge (by someone

who suffers judicially cognizable injury as a result of the Act).”       9
                                                                             521 U.S. at 829.

Congressman Schaffer himself, however, has failed to carry his burden of

showing his “claimed injury is personal, particularized, concrete, and otherwise

judicially cognizable.”     Id. at 820.   10



                                                III


       9
         At oral argument, defendants asserted that none of the parties was
responsible for paying congressional salaries. Thus, we do not consider the
broader question of whether the refusal by a disbursing officer to pay the
legislative COLAs on the claimed basis that it would be unconstitutional to do so
could lead to a different result.
       10
           As a theoretical matter, it may make sense for plaintiffs like
Congressman Schaffer to be granted standing to challenge the unconstitutionality
of particular acts of Congress; as the Supreme Court pointed out in      Raines , “some
European constitutional courts operate under one or another variant of such a
regime [regarding who may bring suit to enforce the constitution].” 521 U.S. at
828 (citing authorities). “But it is obviously not the regime that has obtained
under our Constitution to date” due to Supreme Court doctrine establishing a
“more restricted role of Article III courts.”   Id. (citing United States v.
Richardson, 418 U.S. 166, 192 (1974) (Powell, J., concurring).

                                               - 17 -
       Because Congressman Schaffer lacks standing, we      AFFIRM the district

court’s dismissal of this case, albeit on different grounds from those articulated

by the district court.   See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th

Cir. 1994) (“We are free to affirm a district court decision on any grounds for

which there is a record sufficient to permit conclusions of law, even grounds not

relied upon by the district court.” (quotations and citations omitted)).




                                          - 18 -
