concurring specially.
Generally speaking, an appellate court ought not lightly dismiss claims of apparent substance merely because standing is not clear. But neither should federal courts avoid or gloss over such an issue when it is squarely before them. The majority inexplicably and illogically purports not to be concerned about the standing problem here. But that issue stands out like a sore thumb, and we are bound to decide it, for it is dispositive of our very right to proceed:
In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a “case or controversy” between [herself] and the defendant within the meaning of Article III. This is the threshold question in every federal case, determining the power of the court to entertain the suit.
Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). The jurisdiction of all federal courts is limited by the “minimum constitutional mandate” that there be a “ease or controversy.” We must consider whether we have that situation.
Bonnie Parsons voluntarily resigned her position with the Sheriff’s Department because, under the no-nepotism rule of the County, her husband could not become employed in the same department. The couple discussed what they should do, as a result of which she decided to give up her job and let him become a deputy sheriff because that job would return to the couple higher pay than hers. This was a conscious, volitional decision, and the question therefore immediately arises: how was she injured by her voluntary act? In my view, Bonnie Parsons has sufficiently “alleged such a personal stake in the outcome of the controversy as to warrant [her] invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on [her] behalf,” Warth v. Seldin, 422 U.S. at 498-499, 95 S.Ct. at 2204-05. But since the injury which she claims is that the rule would not permit a husband to be employed while the wife was also employed, the question is, “who was injured — she or he?”
The majority seems not to recognize the problem here, for it feels that “we need not discuss” Parsons’ standing “because it was not briefed by either party” and was first raised at argument. The majority however then “assume[s] arguendo” that standing exists. This is incorrect and can only be ascribed to confusion over our jurisdictional role. I believe we should address that question.
Whether or not the parties raised the issue, its presence and need for answer are obvious. By her resignation Parsons could be said to have caused her own injury insofar as it is identified as constituting a bar, arising from the County’s rule, against her current eligibility for employment in her old job. “[She] must assert her own legal *1240rights and interests, and cannot rest [her] claim to relief on the legal rights or interests of the third parties.” Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205 (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663). Bonnie Parsons therefore had to show that she, not someone else — not merely her husband — had suffered from “some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.” Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (Private citizen [mother of illegitimate child] “lacks a judicially cognizable interest in the prosecution or non-prosecution for support of another [the father].).
The majority mistakenly suggests that issues such as these are not primarily our concern, not to be discussed where the parties did not brief or raise the issues before oral argument. Curiously, they “assume arguendo,” without analysis, that standing exists. The question will not go away merely because the majority confuses its significance or chooses to ignore its presence.
If in resigning, Bonnie Parsons caused her own injury, she cannot blame either the County or its rule. If the rule operated only to deprive her husband of an opportunity, this does not constitute the individualized injury which would give her the personal stake in its vindication.
Bonnie Parsons’ response is that the effect of the rule was wrongfully to force her to choose between keeping her position and thus depriving her husband of a desirable position, or resigning. She argues that this draconian choice harmed her individual interest in their marital relationship, and thus was a legal injury for which she could individually sue; and that her resignation constitutes no bar because it was involuntary. She argues also that since her husband shared in this right, it matters not whether she resigned and sued or her husband sued. See Singleton v. Wulff, 428 U.S. 106, 115, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976) (Doctors had standing to challenge a statute excluding abortions not medically indicated from Medicaid benefits because doctors had a pecuniary interest in elimination of the rule.). This certainly is a not-altogether illogical conclusion.
The point is not whether these arguments will prevail but whether they have enough substance to require addressing. I believe they should be determined. “[Sjtanding in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal * * Warth v. Seldin, 422 U.S. at 500, 95 S.Ct. at 2205-06. The essential question is whether this person has pleaded an entitlement to judicial relief, not whether that relief will in fact be awarded. Bonnie Parsons claims a substantial interference with an important incident of the marital relationship — the right of married persons to be considered for employment without discrimination on account of their marital status. I agree that she will not prevail in this suit, but I think she has presented a justiciable claim which we should decide.
A further consideration for entertaining the claims — and for saying why we do so— is that were her lawsuit to be dismissed, the controversy over validity of the rule may continue to arise, yet be incapable of adjudication. We have frequently found claims appropriate for decision in situations involving injuries which are capable of repetition but, under rigid application of rules of justi-ciability, may escape review. See Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). The rule of which she complains may touch many people and has importance warranting our decision.
I would conclude that Bonnie had tendered a claim that injury has been done to the marital interest shared with her husband. However we resolve that allegation, we must analyse it before determining its merits.
The court’s opinion, in which I join, resolves these imponderables; but the majority declines to say what process we professed to reach them.