Fulani v. Bentsen
| Decision Date | 06 September 1994 |
| Docket Number | D,No. 918,918 |
| Citation | 35 F.3d 49 |
| Parties | 94-2 USTC P 50,452 Dr. Lenora B. FULANI and Lenora B. Fulani For President, Plaintiffs-Appellants, v. Lloyd BENTSEN, Secretary of the Treasury, Margaret Richardson, Commissioner of Internal Revenue, and League of Women Voters Education Fund, Defendants-Appellees. ocket 93-6205. |
| Court | U.S. Court of Appeals — Second Circuit |
Arthur Block, New York City, for plaintiffs-appellants.
Kathy S. Marks, Asst. U.S. Atty., S.D.N.Y., New York City (Mary Jo White, U.S. Atty., Gabriel W. Gorenstein, Asst. U.S. Atty., S.D.N.Y., of counsel), for defendants-appellees Lloyd Bentsen and Margaret Richardson.
Brooksley Born, Washington, DC (Robert J. Jones, Peter C. Cassat, Arnold and Porter, New York City, of counsel), for defendant-appellee League of Women Voters Education Fund.
Before: MINER and MAHONEY, Circuit Judges, and RESTANI, Judge. *
Plaintiffs-appellants Lenora B. Fulani and Lenora B. Fulani for President (sometimes collectively "Fulani") appeal from a judgment entered February 3, 1993 in the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, that dismissed Fulani's amended complaint, and from an order entered June 29, 1993 in that court which denied Fulani's motions for reargument and to amend the judgment. See Fulani v. Brady, 809 F.Supp. 1112 (S.D.N.Y.1993) (opinion supporting judgment) ("Fulani I "); Fulani v. Brady, 149 F.R.D. 501 (S.D.N.Y.1993) (opinion supporting order) ("Fulani II ").
Fulani sought declaratory relief and an injunction directing Lloyd Bentsen and Margaret Richardson (collectively the "Federal Defendants") 1 to revoke the tax-exempt status of the League of Women Voters Education Fund (the "League") because the League cosponsored with the Cable News Network ("CNN") a televised New Hampshire primary election debate of Democratic Party presidential candidates on February 16, 1992 from which Fulani was excluded. Judge Sweet dismissed Fulani's complaint on the basis that mandamus would not properly lie to compel the Federal Defendants to revoke the League's tax-exempt status. See Fulani I, 809 F.Supp. at 1127-28.
We affirm on the basis that Fulani lacks standing to bring this action.
The factual background of this case is extensively outlined in Fulani I, 809 F.Supp. at 1113-16, familiarity with which is assumed. We summarize only the facts material to this appeal.
Fulani was an independent candidate for President in 1988, and appeared on the ballot in all fifty states and the District of Columbia. In February 1991, she announced her candidacy for President in the 1992 election, and she qualified for federal primary election matching funds in October 1991. On or about December 17, 1991, she filed a declaration of candidacy for the New Hampshire Democratic primary election to be held on February 18, 1992.
Fulani then applied to the League for inclusion in a televised debate among Democratic presidential candidates to be consponsored by the League and CNN at St. Anselm College, New Hampshire on February 16, 1992 (the "Debate"). By letter dated February 3, 1992, the League advised Fulani that she would not be included in the Debate because she was not a "significant candidate" for the Democratic presidential nomination under the League's selection criteria. By letter to Secretary of the Treasury Nicholas F. Brady dated February 4, 1992, Fulani demanded that the Treasury Department and the Internal Revenue Service, no later than 5:00 p.m. the next day, provide Fulani with notice that they would either (1) cause the League to include Fulani in the Debate, or (2) suspend (or revoke) the League's tax exemption forthwith. As Fulani's letter noted, suspension or revocation would "render the League ineligible from sponsoring the [Debate] by virtue of Federal Election Commission Regulation 11 C.F.R. Sec. 110.13 (1988)." 2
The requested notice was not forthcoming from the Federal Defendants, and Fulani commenced this action on February 7, 1992. She immediately sought a preliminary injunction compelling the Federal Defendants to revoke the League's tax-exempt status prior to the Debate. The motion was denied by Judge John E. Sprizzo after a hearing on February 13, 1992 on the basis that Fulani lacked standing to sue. In so ruling, Judge Sprizzo distinguished our prior decision in Fulani v. League of Women Voters Education Fund, 882 F.2d 621 (2d Cir.1989) ("Fulani III "). In Fulani III, we held that Fulani had standing to sue to revoke the League's tax exemption because of her exclusion by the League from 1988 debates among contenders for the Democratic presidential nomination, see id. at 624-28, but rejected her claim on the merits in view of her independent (non-Democratic) candidacy for the presidential office. See id. at 628-30. Judge Sprizzo distinguished Fulani III on the basis that withdrawal of League sponsorship of the 1988 debates would have resulted in cancellation of the debates, thereby precluding a competitive advantage over Fulani to participants in those debates, whereas the 1992 Debate would have been sponsored by CNN even if the League had been barred from sponsorship by revocation of its tax exemption.
To facilitate appellate review, Judge Sprizzo also ruled against Fulani on the merits. An application to this court for an injunction pending appeal was denied the next day, see Fulani I, 809 F.Supp. at 1114 n. 2, and Fulani's appeal from Judge Sprizzo's order was ultimately dismissed as moot. See Fulani v. Brady, 972 F.2d 1329 (2d Cir.1992) (table).
The Federal Defendants moved to dismiss Fulani's complaint on July 7, 1992. Fulani I, 809 F.Supp. at 1114. Judge Sweet ruled that Fulani had standing to sue because she had "satisfied both the three-pronged standing test of Allen [v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ] and [In re United States] Catholic Conference [(Abortion Rights Mobilization Inc. v. Baker), 885 F.2d 1020 (2d Cir.1989), cert. denied, 495 U.S. 918, 110 S.Ct. 1946, 109 L.Ed.2d 309 (1990) ] and Catholic Conference's competitive advocate standing test." Fulani I, 809 F.Supp. at 1123. Fulani's amended complaint was dismissed, however, because "Fulani's action has the character of mandamus, and a writ of mandamus is inappropriate when a plaintiff seeks to direct or influence the absolute discretion of a government agency." Id. at 1127 (collecting cases).
After Fulani's subsequent motions were denied in Fulani II, this appeal followed.
Fulani's suit is based upon the intersection of federal election and tax laws. Under Federal Election Commission regulations, candidate debates may be sponsored only by certain non-profit, tax-exempt organizations that refrain from political activity, and by broadcasters, bona fide newspapers, magazines and other periodical publications. See supra note 2. Under 26 U.S.C. Sec. 501(c)(3), the statute that provides the League's tax exemption, a qualifying tax-exempt organization may not "participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office." See also 26 C.F.R. Sec. 1.501(c)(3)-1(c)(3)(iii).
Fulani argues that the League violated Sec. 501(c)(3) because it used subjective criteria to exclude her from participation in a Democratic Party presidential debate cosponsored by the League and CNN. Fulani seeks equitable relief to compel the Federal Defendants to revoke the League's tax-exempt status, thereby disabling the League from sponsoring candidate debates. See supra note 2. According to Fulani, the Federal Defendants' failure to revoke the tax-exempt status of the League subsidizes an imbalanced political system that unfairly favors some candidates over others.
As we have indicated, we resolve this appeal on the question of standing, and proceed to consider that issue.
The Constitution confines the judicial power of the federal courts to deciding cases or controversies. U.S. Const. art. III, Sec. 2, cl. 1. The doctrine of standing derives directly from this constitutional provision. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). It focusses upon the party seeking to invoke federal jurisdiction, rather than the justiciability of the issue at stake in the litigation. See Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). Thus, "an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court." Allen, 468 U.S. at 754, 104 S.Ct. at 3326.
To have standing, a plaintiff must " allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 751, 104 S.Ct. at 3324; see also Fulani III, 882 F.2d at 624 (quoting Allen, 468 U.S. at 751, 104 S.Ct. at 3324). "A plaintiff must always have suffered 'a distinct and palpable injury to himself'...." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)). The injury must be "concrete in nature and particularized to [the plaintiff]," Catholic Conference, 885 F.2d at 1023-24, and not "abstract," "conjectural," or "hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 1664-65, 75 L.Ed.2d 675 (1983).
As the multitude of standing cases indicates, however, "[t]hese terms cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise." Allen, 468 U.S. at 751, 104 S.Ct. at 3324. Accordingly, the Supreme Court instructs us to "compar[e] the allegations of the particular complaint to those made in prior standing cases," id. at 751-52, 104 S.Ct....
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