Fulani v. Brady, Civ. A. No. 88-2649.

• Decision Date: 02 February 1990
• Docket Number: Civ. A. No. 88-2649.
• Citation: 729 F. Supp. 158
• Parties: Dr. Lenora B. FULANI, et al., Plaintiffs, v. Nicholas F. BRADY, Secretary of the Treasury, et al., Defendants. Commission on Presidential Debates, Intervenor.
• Court: U.S. District Court — District of Columbia

729 F. Supp. 158

Dr. Lenora B. FULANI, et al., Plaintiffs, v. Nicholas F. BRADY, Secretary of the Treasury, et al., Defendants Commission on Presidential Debates, Intervenor.

Civ. A. No. 88-2649.

United States District Court, District of Columbia.

February 2, 1990.

Arthur R. Block, New York City, William A. Dobrovir, Dobrovir & Gebhardt, Washington, D.C., Gary Sinawski, New York City, for plaintiffs.

Robert K. Coulter, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

Harold E. Masback, III, Lee Levine, Lewis K. Loss, Ruth A. Ernst, Ross, Dixon & Masback, Washington, D.C., for intervenor.

MEMORANDUM OPINION AND ORDER

REVERCOMB, District Judge.

In this case, Dr. Lenora B. Fulani claims that the Commission on Presidential Debates' failure to invite her to participate in the 1988 presidential debates was partisan and therefore invalidates its status as a tax-exempt organization under § 501(c)(3) of the Internal Revenue Code. This matter is now before the Court pursuant to Defendants' Motion to Dismiss on the ground that Plaintiffs lack standing.

I. FACTS

In February 1987 the Intervenor, Commission on Presidential Debates ("CPD"), was founded by the Chairmen of the Democratic and Republican National Parties in order to assume the role of sponsoring general election debates between the presidential and vice-presidential candidates which had previously been performed by the League of Women Voters ("the League").¹ The CPD obtained tax-exempt status under section 501(c)(3) of the Internal Revenue Code,² making it eligible under Federal Election Commission regulations to sponsor debates between candidates for federal office. On July 7, 1987, the CPD formed an advisory committee to formulate criteria for selecting candidates for its debates. The committee recommended, inter alia, inviting only candidates who had a "realistic chance of winning" the election.

On June 24, 1987, Plaintiff Dr. Lenora Fulani ("Fulani") announced her candidacy for the office of President of the United States. She qualified for federal primary matching funds in January 1988. In the November 1988 election she was on the ballot in all 50 states and the District of Columbia.

On July 13, 1987, Fulani wrote to the CPD, asking for a statement of its participant selection criteria. Plaintiff received no response and on August 5, 1988, Fulani wrote to the CPD to describe her candidacy, to ask for her inclusion in the CPD's debates, and to inquire as to what application procedure and criteria the CPD had created for independent presidential candidates. Twenty-five days later, the CPD informed Fulani that it would extend "an invitation to participate in one or more of its debates to any candidate with a realistic chance of being elected to the Presidency or Vice-Presidency, whatever the candidate's party affiliation." The letter did not state that there was an application procedure nor did it define the selection criteria except in two generally worded sentences.

By letter dated September 12, 1988, Fulani informed the CPD that she considered the CPD's selection criteria for non-major party candidates to be a de facto exclusion of such candidates since only the Democratic or Republican candidate had a realistic chance of winning the November election. The CPD replied in a letter dated September 13, 1988, which stated that "the Commission has adopted a set of nonpartisan selection criteria" which include that the candidate have "a realistic chance of being elected." On or about September 15, 1988, Fulani supplied the CPD with further information that it had requested. On September 19, 1988, the CPD denied Fulani's request for inclusion in the presidential debates.

Fulani filed this matter on September 20, 1988 against Defendants Nicholas F. Brady, Secretary of the Treasury, and Lawrence B. Gibbs, Commissioner of Internal Revenue Service, seeking injunctive relief and damages; specifically, (i) an order requiring the Defendants to revoke the tax-exempt status of the CPD under 26 U.S.C. § 501(c)(3); (ii) an order that the Defendants assess and collect taxes allegedly due from the CPD as a result of the revocation of its tax-exempt status; and (iii) an award to Plaintiffs of damages in the amount of $5,000,000.³ Fulani also filed separate motions for temporary restraining orders or preliminary injunctions seeking either to enjoin the CPD-sponsored debates from going forward or an order from this Court compelling CPD to include Fulani in its debates. In this Court's September 23, 1988 Order, denying Fulani's motion for relief with respect to the September 25, 1988 debate, this Court ruled that Fulani had raised "serious questions ... concerning the tax-exempt status of the defendants." However, this Court denied the motion because of the "public interest in allowing the presidential debates to go forward and in preserving an orderly political process."⁴ In this Court's October 12, 1988 Order, denying Fulani's motion for relief with respect to the October 13, 1988 debate, this Court reiterated the seriousness of Fulani's claims that the CPD's partisanship made it ineligible for a tax exemption, but again declined to enjoin the debate because of the public interest.

II. STANDING

The requirement of standing is premised on "Article III of the Constitution which confines the federal courts to adjudicating actual `cases' and `controversies.'" Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Standing is necessary to the jurisdiction of this Court to hear this matter. See Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975) (whether a plaintiff "has made out a `case or controversy' ... within the meaning of Article III ... is the threshold question in every federal case, determining the power of the court to entertain suit.").

The Supreme Court has developed a three-prong model by which to assess Article III standing. A Plaintiff must allege: (1) a "personal injury" that is (2) "fairly traceable to the defendant's allegedly unlawful conduct," and (3) which is "likely to be redressed by the requested relief." Allen, 468 U.S. at 751, 104 S.Ct. at 3324; see also Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978); Dellums v. United States Nuclear Regulatory Comm'n, 274 U.S.App.D.C. 279, 863 F.2d 968 (1988). The court should apply the three factors to the facts at hand with the following questions in mind: "Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative?" Allen, 468 U.S. at 752, 104 S.Ct. at 3325.

The burden of establishing standing is on the Plaintiff. More fully,

the Court must accept as true all material allegations of the complaint and construe it in favor of plaintiffs, and it may consider matters extrinsic to the complaint itself deemed supportive of plaintiffs' standing. Citation omitted. If however, the facts alleged do not permit a reasonable inference that defendants' putatively unlawful conduct caused the harm, or that if the relief requested is afforded the injury will be rectified, standing has not been shown, and the complaint must be dismissed.

Khalaf v. Regan, 85-1 U.S. Tax Cas. (CCH) ¶ 9269, 1985 WL 392 (D.D.C.1985), aff'd, No. 85-5274 (D.C.Cir. Sept. 19, 1986).

A. INJURY

The injury which Fulani claims is her exclusion from the debates.⁵ However, the mere exclusion — while a specific or tangible event — cannot be deemed an injury under standing analysis in and of itself. Indeed, Fulani does not contend that her exclusion alone constitutes the injury which provides her with standing. The court must more fully assess the context of why the exclusion constitutes an injury. The reasons that Fulani proffers are not sufficient.

The first reason upon which Fulani relies to illustrate her injury is that CPD's used its tax-exempt status to advance an alleged political agenda that differs from Fulani's and to undermine her political legitimacy:

CPD used tax-exempt funds and the privilege of its tax-exempt status to carry out a `voter education' program in a manner calculated to show the Democratic and Republican parties in a favorable light; to discredit the very idea of independent candidates being meaningful participants in the presidential election; and to minimize the possibility that the major party candidates would be pressed to speak to public policy issues that were being raised by Dr. Fulani and other independent candidates but which the Democratic and Republican party candidates chose to ignore or to address in generalities.

Plaintiffs' Memorandum at 13-14. However, frustrations over conduct which is at odds with an individual's own political position is precisely the type of abstract injury which other courts have ruled insufficient to constitute Article III injury. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 483, 102 S.Ct. 752, 764, 70 L.Ed.2d 700 (1982) ("assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Article III"); Khalaf v. Regan, 85-1 U.S. Tax Cas. (CCH) ¶ 9269 (D.D.C.1985), aff'd, No. 85-5274 (D.C.Cir. Sept. 19, 1986) (thwarting of pro-Palestinian plaintiffs' political aspirations by virtue of competitive advantage bestowed upon pro-Israeli groups by Secretary of Treasury by granting of tax exemption did not constitute cognizable injury). This Court rejects any notion that Fulani has suffered a cognizable injury based upon any alleged lack of recognition or diminution of her political stature. The factors by which a candidate's "political legitimacy" are...