Fulani v. Brady

935 F.2d 1324, 290 U.S. App. D.C. 205, 1991 WL 100657

Opinions

Opinion for the Court filed by Circuit Judge SENTELLE.

Dissenting Opinion filed by Chief Judge MIKVA.

SENTELLE, Circuit Judge:

Appellant Lenora Fulani brought this action against the Internal Revenue Service (“IRS”) challenging the tax-exempt status of the Commission for Presidential Debates (“CPD”), the sponsor of the 1988 presidential debates. Fulani alleges that the CPD did not meet the qualifications for tax-exempt status under Internal Revenue Code § 501(c)(3) because it presented a partisan political viewpoint by excluding her from the presidential debates. Upon review, we agree with the District Court’s conclusion that Fulani lacks standing to challenge the tax-exempt status of the CPD. For this reason, we affirm the District Court’s decision to dismiss this complaint for lack of standing.

I. Background

In 1987, the League of Women Voters withdrew its traditional sponsorship of the presidential debates, leaving the field open for new sponsors. The Democratic National Committee and Republican National Committee worked together to fill this gap, and eventually incorporated the CPD for purposes of sponsoring the debates. The CPD applied for, and received, tax-exempt status under Internal Revenue Code § 501(c)(3) as an educational organization “which does 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.” 26 U.S.C. § 501(c)(3) (1988). In addition to the benefit of being exempt from taxation, the CPD’s § 501(c)(3) status allows it to receive charitable contributions that are tax deductible to the donor. See I.R.C. §§ 170(a)(1), (c)(2)(D). Perhaps more importantly, this status also qualified the CPD to sponsor candidate debates under Federal Election Commission Rule 11 C.F.R. § 110.13(a)(1). Fulani attacks the CPD’s tax-exempt status based on its exclusion of her from its presidential debates.

In 1988, Dr. Fulani was a minor-party candidate running as the presidential nominee of the New Alliance Party. Her name was included on the ballot in all fifty states, as well as the District of Columbia, and she qualified for Federal Election Commission presidential primary matching funds. When Fulani learned that the CPD would be sponsoring the presidential debates, she contacted the CPD, inquiring about the process for applying to participate in those debates.

The CPD responded to Fulani’s request by stating that its policy was to invite “any candidate with a realistic chance of being elected to the Presidency or Vice-Presidency, whatever that candidate’s party-affiliation.” The CPD determined the realistic nature of a candidate’s chances by examining, inter alia, that candidate’s ballot listings; professional opinions of the media, campaign managers, and political scientists; column inches of news coverage; and findings of national pollsters. Applying these criteria, the CPD concluded that Fulani did not have a realistic chance of being elected President of the United States in 1988 and, accordingly, that she would not be invited to participate in the 1988 presidential debates.

Fulani brought this action against the IRS in the District Court, seeking to require the IRS to revoke the CPD’s tax-exempt status under § 501(c)(3) and assess the taxes due once that tax-exempt status was revoked. She filed separate motions seeking temporary restraining orders or preliminary injunctions, either enjoining the debates from going forward, or requiring the CPD to include Fulani in the debates. The District Court denied these motions, citing the “public interest in allowing the presidential debates to go forward and in preserving an orderly political process.” Order Denying Plaintiffs Motion for a Temporary Restraining Order or Preliminary Injunction (D.D.C. Sept. 23, 1988). The District Court later dismissed Fulani’s other claims, on the grounds that Fulani lacked standing to challenge the tax-exempt status of a third party such as the CPD. Memorandum Opinion and Order (D.D.C. Feb. 2, 1990) 729 F.Supp. 158. Appellant then filed the present appeal.

II. Discussion

Before a claimant may request this Court to decide the merits of a dispute, the claimant must establish that she has the requisite standing to bring such a claim. As the Supreme Court has defined it, a claimant establishes standing only if she alleges a “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (citation omitted). In the present case, Fulani contends that she is injured by the fact that the CPD is engaging in a program of political misinformation, perpetuating bipartisan, rather than wow partisan, political debates. This program, she argues, advocates and perpetuates a two-party system, giving the false impression that there are only two legitimate candidates for presidential office. According to Fulani, this misinformation program directly injured her by depriving her of the media coverage and political legitimacy necessary to her campaign. Moreover, this program violates § 501(c)(3)’s mandate that tax-exempt educational organizations not engage in partisan political activities. Therefore, Fulani alleges that the IRS is responsible for her injury because it indirectly subsidized the CPD by according it § 501(c)(3) tax-exempt status. Thus, Fulani argues, the CPD’s tax-exempt status is the cause of her injury, and that injury would be redressed were that status revoked.¹

Accordingly, Fulani seeks to require the IRS to revoke the tax-exempt status of a third party, the CPD. This claim brings to mind Justice Stewart’s concurring opinion in Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), stating that he could not “imagine a case, at least outside the First Amendment area, where a person whose own tax liability was not affected ever could have standing to litigate the federal tax liability of someone else.” Id. at 46, 96 S.Ct. at 1928 (Stewart, J., concurring).² While Justice Stewart’s separate concurrence does not, of course, constitute binding precedent, we have noted previously that it “dramatically denotes the special problems attendant upon the establishment of standing in ... tax cases,” when a litigant seeks to attack the tax exemption of a third party. American Soc’y of Travel Agents, Inc. v. Blumenthal, 566 F.2d 145, 150 n. 3 (D.C.Cir.1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1978); see also Tax Analysts & Advocates v. Blumenthal, 566 F.2d 130, 145 n. 90 (D.C.Cir.1977).

Indeed, the statutory scheme created by Congress is inconsistent with, if not preclusive of, third party litigation of tax-exempt status. Specifically, 26 U.S.C. § 7428 (1988) provides for the “[c]reation of [a] remedy” in the case of an “actual controversy involving—

(1) A determination by the Secretary— (A) with respect to the initial qualification or continuing qualification' of an organization as an organization described in section 501(c)(3).”

Significantly, § 7428 specifically limits the remedy it creates by the requirement that “[a] pleading may be filed under this section only by the organization the qualification or classification of which is at issue.” 26 U.S.C. § 7428(b)(1).

While the cited statute does not preclude expressly the possibility that a third party could file an action under some statute or source of law other than § 7428, it certainly is telling that Congress thought it necessary to create a specific remedy for the adjudication of a § 503(c)(3) determination even on behalf of the one entity whose standing is least subject to challenge, and that Congress chose to limit the remedy to that entity. Therefore, in light of prior judicial pronouncements, such as those quoted above, and apparent congressional intent, if we were to find that a case does exist in which one party can litigate properly the tax exemption of another, it would have to be something far removed from the norm.

Fulani, however, hardly acknowledges the existence of the judicial dicta and statutory scheme against her, but seeks to ground her claim in an application of “competitor standing” theory, an application not recognized previously in this Circuit. Under Fulani’s proposed application of competitor standing, we should recognize her right to challenge tax benefits that the CPD used to benefit her competitors. Unquestionably, there is such a concept as “competitor standing.” That standing has been recognized in circumstances where a defendant’s actions benefitted a plaintiff’s competitors, and thereby caused the plaintiff’s subsequent disadvantage. See, e.g., Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (data processing agency had standing to challenge rulings by the Comptroller of the Currency allowing national banks to enter the data processing field); see also Clarke v. Securities Industry Ass’n, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987) (securities brokers had standing to challenge ruling that national banks could act as discount brokers); Investment Co. Inst. v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971) (open-end investment companies had standing to challenge ruling that banks could deal in collective investment funds).

However, this Court specifically has rejected the assertion that “Data Processing should be read to endorse standing for any private business, individual or corporate, which wishes to contest the tax treatment of a competitor.” American Soc’y of Travel Agents, 566 F.2d at 151. In the Data Processing line of cases, the government’s actions benefitted the plaintiffs’ competitors and disadvantaged the plaintiffs. Thus, cessation of the government’s actions would redress the plaintiffs’ disadvantage by removing the benefit to plaintiffs’ competitors. Cf. also Common Cause v. Bolger, 512 F.Supp. 26 (D.D.C. 1980) (allowing candidates for public office to challenge statutes establishing franking privileges that benefitted their incumbent competitors). Arguably, if the IRS were depriving Fulani of a benefit that it afforded to others similarly placed, she might be able to challenge that action based on her own tax liability. For example, in Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989), the Supreme Court held that a magazine publisher had standing to challenge a state tax exemption available to religious magazines but not to itself, where the publisher argued that this disparate tax treatment was injurious to it and petitioned for a refund of its own taxes. Significantly, the publisher sought to litigate not the competitors’ exemption, but its own liability. See also Lawrence v. State Tax Comm’n, 286 U.S. 276, 52 S.Ct. 556, 76 L.Ed. 1102 (1932) (allowing taxpayer to make equal protection challenge to tax exemption available to competitors); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959) (same). However, where a party is seeking simply to remove a third party’s entitlement to a tax exemption, the exemption likely will not bear sufficient links of traceability and redressability to the alleged injury to warrant standing under Allen v. Wright, supra. See, e.g., Khalaf v. Regan, 55 A.F.T.R.2d 85-647, 1985 WL 392 (D.D.C.1985), affd, No. 85-5274 (D.C.Cir. Sept. 19,1986) (beneficial tax treatment of third party lacked causal link to plaintiffs’ alleged harm).

The Second Circuit accepted Fulani’s theory of competitor standing in the context of a parallel case, Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621 (2d Cir.1989). There, the Second Circuit held that Fulani had standing to challenge the § 501(c)(3) status of the League of Women Voters when the League refused to invite her to participate in the presidential primary debates. The court found that Fulani had suffered a cognizable injury because the League’s exclusion of appellant “palpably impaired Fulani’s ability to compete on an equal footing with other significant presidential candidates.” 882 F.2d at 626. According to the Second Circuit:

In this era of modern telecommunications, who could doubt the powerful beneficial effect that mass media exposure can have today on the candidacy of a significant aspirant seeking national political office. The debates sponsored by the League were broadcast on national television, watched by millions of Americans, and widely covered by the media. It is beyond dispute that participation in these debates bestowed on the candidates who appeared in them some com-. petitive advantage over their non-participating peers.

Id. (citation omitted). The Second Circuit characterized this injury as “the partisan restriction of her opportunities to communicate her political ideas to the voting public at large.” Id. at 627.

The Second Circuit went on to find that this injury was “fairly traceable” to the IRS’s award of a § 501(c)(3) tax exemption to the League. Under the regulations of the Federal Election Commission (“FEC”), only a non-profit corporation exempt from taxation under § 501(c)(3) may sponsor a nonpartisan electoral debate, unless the corporation is a media organization. 11 C.F.R. § 110.13(a)(1) & (2). Thus, in League of Women Voters, as in this case, Fulani argued that revocation of the League’s tax-exempt status would disable it from holding debates between the Republican and Democratic presidential candidates. The Second Circuit accepted this argument, concluding that Fulani’s alleged injury was fairly traceable to the IRS’s grant of § 501(c)(3) status to the League “[i]n light of the fact that 501(c)(3) status is in practice a prerequisite to League sponsorship of candidate debates under FEC regulations.” 882 F.2d at 628. Thus, the Second Circuit granted Fulani standing to challenge the League’s tax-exempt status because “[b]ut for the government’s refusal to revoke the League’s tax-exempt status, ... the League, as a practical matter, would have been unable to sponsor the allegedly partisan debates which caused the injury of which Fulani complains.” Id. (emphasis in original). Given but-for causation, the Second Circuit concluded that redressability necessarily followed, “since, practically speaking, revocation of the League’s tax-exempt status at least would have prevented the League’s sponsorship of the debates, from which Fulani claims she was wrongfully excluded.” Id. at 628.

By taking the FEC regulation as a given, however, the Second Circuit ignores the fact that the alleged traceability and redressability may be found in League of Women Voters — and could be found in the present case — only in combination with significant intervening causal factors. It is true that CPD’s tax-exempt status is a cause-in-fact of appellant’s injury; were it not for that status, the CPD would be unable to sponsor the debates under existing FEC regulations. However, the FEC’s regulation is an intervening cause — were it not for the regulation, the CPD’s tax status would be relevant to its sponsorship of the debates only insofar as it facilitated the CPD’s funding through tax-exempt funds. Thus, Fulani’s claim would be addressed more appropriately under the FEC’s regulation than through the Internal Revenue Code. See 11 C.F.R. § 111.4(a) (providing complaint process for “[a]ny person who believes that a violation of any statute or regulation over which the Commission has jurisdiction has occurred or is about to occur.”).

Moreover, even assuming the FEC continues to adhere to its present regulations, the CPD remains an intervening causal agent. Were we to order revocation of the CPD’s tax-exempt status, the CPD might decline to sponsor presidential debates altogether. This would remove the allegedly unfair advantage to Fulani’s competitors, but would prevent Fulani from receiving the same benefit. Or the CPD could choose to include Fulani within the debates in order to retain its tax-exempt status, in which case the two major-party candidates might decline to participate in debates that do not present them as the two salient candidates, thus depriving the debates of the media appeal that Fulani seeks. See Fulani v. League of Women Voters, 882 F.2d at 632 (Cardamone, J., concurring). Thus, while the IRS’s decision to provide the CPD with tax-exempt status is a cause of Fulani’s claimed injury, it is merely one in a chain of independent causal factors necessary to achieve this injury. Cf. Tax Analysts & Advocates, 566 F.2d at 144 (“Every decision by a government agency generates consequences and various forms of impact on a wide range of valid interests held by a diverse range of parties.”). Moreover, given the number of causal factors significant to Fulani’s alleged injury, we find that the claim lacks sufficient redressability to warrant standing under the Supreme Court’s test in Allen v. Wright, supra.

The Supreme Court has emphasized that “Art. Ill still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Simon, 426 U.S. at 41-42, 96 S.Ct. at 1926. The Court also has made clear that an injury will not be “fairly traceable” to the defendant’s challenged conduct nor “redressable” where the injury depends not only on that conduct, but on independent intervening or additional causal factors. For example, in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the Supreme Court held that low to moderate income minority residents lacked standing to challenge the city’s zoning ordinance. The Court assumed “that respondents’ actions have contributed, perhaps substantially, to the cost of housing in Penfield.” 422 U.S. at 504, 95 S.Ct. at 2208. However, the Court found that the plaintiffs had not shown that individuals in Penfield would have sold their properties to the plaintiffs absent the ordinance. The Court rejected the plaintiffs’ argument that enforcement of the ordinance against third parties precluded construction of low and moderate income housing. 422 U.S. at 504, 95 S.Ct. at 2208. The Court noted that, although “[t]he fact that the harm to petitioners may have resulted indirectly does not in itself preclude standing,” it may “make it substantially more difficult to meet the minimum requirement of Art. Ill: to establish that, in fact, the asserted injury was the consequence of the defendants’ actions, or that prospective relief will remove the harm.” 422 U.S. at 504-05, 95 S.Ct. at 2208.

Similarly, in Allen v. Wright, the Supreme Court held that parents of black public schoolchildren had no standing to challenge IRS regulations governing the tax-exempt status of private schools. According to the parents, private schools that engaged in racially discriminatory practices were able to achieve tax-exempt status under these regulations. This advantage, the parents alleged, made it possible for those schools to draw white students out of the public school system, leaving disproportionately black public schools, thus perpetuating segregation throughout the school system and preventing schoolchildren from receiving a public education in a non-discriminatory environment. The Court found that this alleged injury lacked both traceability and redressability, as it was “entirely speculative” to assume that the withdrawal of private schools’ tax-exempt status would alleviate this system-wide discrimination. Allen v. Wright, 468 U.S. at 758, 104 S.Ct. at 3328. Assuming that the Court required the IRS to make the change proposed by plaintiffs, it was still impossible to say whether the schools affected by the regulation would change their policies or their financial structures. Even more speculative was the question of whether either change by the private school would result in a decision by a parent to transfer the child to public school. Id. Given these intervening causal factors, the Court found that the parents lacked standing to challenge regulations directed toward third-party private schools.

The Court had reached a similar conclusion in the earlier case of Simon v. Eastern Kentucky Welfare Rights Organization, supra. In that case, indigent individuals and organizations representing indigents challenged an IRS Revenue Ruling that decreased the treatment-of-indigent-patient requirements for hospitals maintaining tax-exempt status under § 501(c)(3). The plaintiffs argued that this Ruling caused them injury by decreasing the standard of care available to indigent patients. The Court held that this alleged injury lacked traceability and redressability because of the intervening causal factors. The Court called it “purely speculative” to conclude that the Ruling encouraged poor treatment by the hospitals of indigents, and “equally speculative” to conclude that the hospitals’ treatment of indigent patients would improve with the revocation of the Ruling. Simon, 426 U.S. at 42-43, 96 S.Ct. at 1926. Rather than improving treatment programs for indigent patients, hospitals could discontinue such programs altogether and become profit-funded, rather than charitable, institutions. Id. at 45-46, 96 S.Ct. at 1927-28.

In the present case, the CPD does not have the option of abandoning its tax-exempt status; the CPD may sponsor the presidential debates only if it receives tax-exempt status from the IRS and is therefore not free, as were the hospitals in Simon, to continue its activities as a profit-funded organization. However, the problem in this case is the same as in Simon: the presence of intervening factors that influence both traceability and redressability. Were the PEC to change its regulations, revocation of the CPD’s tax-exempt status could have virtually no effect on the CPD’s debate activities. Moreover, as discussed supra, the CPD itself could engage in a variety of activities ranging from declining to sponsor the debate to restricting the debates in such a manner that Fulani still wpuld be unable to attain the level and quality of media exposure she seeks.

In the past, this Court has denied standing where “the plaintiff seeks to change the defendant’s behavior only as a means to alter the conduct of a third party, not before the court, who is the direct source of the plaintiff’s injury.” Common Cause v. Dep’t of Energy, 702 F.2d 245, 251 (D.C.Cir.1983) (emphasis in original) (consumer organization lacked standing to seek injunction directing government to develop energy conservation plan where court found suit was “merely designed to leverage third-party fuel suppliers into making pricing and allocation decisions favorable to the consuming public”). Here, Fulani is challenging the actions of the IRS only as a means of affecting the behavior of the CPD. The IRS’s actions caused her alleged injury only due to other intervening causal factors, including the FEC’s regulations, the CPD’s actions, and the anticipated behavior of other debate participants. Thus, the redressability of Fulani’s injury depends on those factors as well. Because these factors are not before the Court at this time, we find that Fulani’s injury does not bear sufficient traceability to the IRS’s grant of tax-exempt status to the CPD, nor does the requested relief redress her alleged injury sufficiently to warrant standing in this Court under the test articulated by the Supreme Court in Allen v. Wright.

III. Conclusion

We conclude that Fulani’s alleged injury fairly cannot be traced to the IRS’s grant of tax-exempt status to the CPD, but is instead dependent on the intervening actions of both the FEC and the CPD. For this reason, we hold that Fulani’s claim does not warrant standing under the Supreme Court’s test in Allen v. Wright. Because Fulani lacks standing to challenge the CPD’s tax-exempt status, the decision of the District Court in this case is therefore

Affirmed.

1 . Fulani’s arguments give rise to questions of mootness; since both the presidential debates and elections are now over, it is arguable that we can provide no legal redress to the parties in the case before us. However, as we find that Fulani’s allegations also fall short of establishing standing, we need not address the mootness issue.

2 . The dissent interprets Justice Stewart's statement recognizing a possible exception in the context of the First Amendment as referring to free speech cases. Dissent at 214. This interpretation is unlikely, however, given that there exists — and did exist at the time of Justice Stewart’s writing — an actual exception to the general rule against taxpayer standing in cases involving the Establishment Clause and Free Exercise Clause of the First Amendment. See, e.g., Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1967). It is therefore logical to interpret Justice Stewart's reference to a First Amendment exception as referring to the Establishment Clause and Free Exercise Clause exceptions that actually existed, rather than to a hypothetical free speech exception.