19-3054 Liu v. Congress
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of October, two thousand twenty.
PRESENT: John M. Walker, Jr., Steven J. Menashi, Circuit Judges. * ____________________________________________ Lewis Y. Liu,
Plaintiff-Appellant,
v. No. 19-3054
United States Congress; Nancy Pelosi, in her official capacity as the Speaker of the House of Representatives; Mitch McConnell, in his official capacity as Senate Majority Leader;
*Senior Circuit Judge Ralph K. Winter, originally a member of the panel, is currently unavailable, and the appeal is being adjudicated by the two available members of the panel, who are in agreement. See 2d Cir. IOP E(b). Kevin McCarthy, in his official capacity as Minority Leader of the House of Representatives; Charles Schumer, in his official capacity as Minority Leader of the Senate,
Defendants-Appellees. † ____________________________________________
For Plaintiff-Appellant: LEWIS LIU, New York, NY, pro se.
For Defendants-Appellees: STEPHEN JOHN KOCHEVAR (Benjamin H. Torrance, on the brief) for Audrey Strauss, Acting U.S. Attorney for the Southern District of New York, New York, NY.
Appeal from a judgment of the United States District Court for Southern
District of New York (McMahon, C.J.).
Upon due consideration, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court granting Appellees’ motion to
dismiss is AFFIRMED and the case is REMANDED for the limited purpose of
amending the judgment to dismiss Liu’s complaint without prejudice.
† The Clerk of Court is respectfully directed to amend the official caption as listed above.
2 I Appellant Lewis Y. Liu, proceeding pro se, appeals the district court’s
judgment dismissing his complaint against the U.S. Congress and several
congressional leaders in their official capacities. Liu and Equal Vote America
Corporation (“EVA”)—a group led by Liu—claimed that the current
congressional apportionment scheme results in underrepresentation because,
while Wyomans 1 receive representation in the House of Representatives at a
proportion of one representative per 563,626 persons, New Yorkers receive
representation at a proportion of one representative per 717,707 persons. Liu and
EVA sought a declaration that the Apportionment Acts of 1911, 1929, and 1941 are
unconstitutional. They also suggested that, if the Congress fails to enact statutes
implementing Liu’s preferred method of apportionment, the district court should
hold the Congress in contempt and declare the Senate unconstitutional. The
defendants moved to dismiss the complaint for lack of jurisdiction and for failure
to state a claim. The district court granted the motion and dismissed the complaint
for lack of subject matter jurisdiction, with prejudice, holding that Liu and EVA
1 See Montana v. Wyoming, 563 U.S. 368, 389 n.* (2011) (Scalia, J., dissenting).
3 lacked standing and that the suit was barred by sovereign immunity and the
Constitution’s Speech or Debate Clause. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.
For the reasons that follow, we affirm.
II The Supreme Court’s cases “have established that the ‘irreducible
constitutional minimum’ of standing consists of three elements. The plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc v. Robins, 136 S. Ct. 1540, 1547 (2016) (internal citation
omitted) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). A plaintiff
“must demonstrate standing for each claim and form of relief sought.” Cacchillo v.
Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (quoting Baur v. Veneman, 352 F.3d 625,
641 n.15 (2d Cir. 2003)). To evaluate a motion to dismiss for lack of standing, we
ask whether the plaintiff plausibly alleged the existence of each of the three
elements. See Lujan, 504 U.S. at 561 (“[E]ach element [of standing] must be
supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the
4 successive stages of the litigation.”). We review de novo the dismissal of a
complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). SM Kids, LLC v.
Google LLC, 963 F.3d 206, 210 (2d Cir. 2020).
We conclude that while Liu plausibly alleged an injury in fact, he failed to
allege that the remaining elements of standing are satisfied.
A “To establish injury in fact, a plaintiff must show that he or she suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548.
We conclude that Liu plausibly alleged an injury in fact in the form of vote
dilution. The Supreme Court has held that a voter alleges an injury in fact sufficient
to give rise to Article III standing when he alleges that his vote has been diluted
because he has been improperly placed in a legislative district the population of
which is substantially greater than that of other districts. See Baker v. Carr, 369 U.S.
186, 206-07 (1962) (holding that the plaintiffs had standing to challenge
Tennessee’s apportionment of state representatives when that apportionment
“effect[ed] a gross disproportion of representation to voting population”). In Dep't
of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999), the Court
5 considered a challenge to the constitutionality of the Department of Commerce’s
proposed use of statistical sampling in the decennial census. An Indiana resident
argued that he suffered an injury in fact because the Department of Commerce’s
use of statistical sampling would result in a substantial undercount in Indiana,
such that Indiana would lose a member of its congressional delegation.
Concluding that the Indiana plaintiff had standing, the Court explained:
Appellee Hofmeister’s expected loss of a Representative to the United States Congress undoubtedly satisfies the injury-in-fact requirement of Article III standing. In the context of apportionment, we have held that voters have standing to challenge an apportionment statute because they are asserting a plain, direct and adequate interest in maintaining the effectiveness of their votes. The same distinct interest is at issue here: With one fewer Representative, Indiana residents’ votes will be diluted.
Id. at 331-32 (internal citation, quotation marks, and alteration omitted). While this
case does not concern the loss of a representative, the alleged injury of vote
dilution is the same. When a state loses a representative, it must redraw its districts
such that the remaining legislative districts absorb relatively equal proportions of
the population of the former representative’s district. See Evenwel v. Abbott, 136
S. Ct. 1120, 1124 (2016). A voter thereby suffers an injury because the efficacy of
his or her vote is diluted when it is introduced into a larger voting pool. See Dep't
6 of Commerce v. U.S. House of Representatives, 525 U.S. at 334 (“[E]xpected intrastate
vote dilution satisfies the injury-in-fact ... requirement.”); Dep't of Commerce v.
Montana, 503 U.S. 442, 445, 459 (1992) (noting that a challenge to “the standard that
governs the apportionment of Representatives among the several States” is
“unquestionably within our jurisdiction”); Baker, 369 U.S. at 208 (concluding that
plaintiffs alleging “impairment of their votes by the 1901 apportionment …. have
standing” because “[t]hey are asserting ‘a plain, direct and adequate interest in
maintaining the effectiveness of their votes,’ not merely a claim of ‘the right
possessed by every citizen ‘to require that the government be administered
according to law’”) (internal citation omitted); Wesberry v. Sanders, 376 U.S. 1, 8
(1964) (entertaining a claim of “vote-diluting discrimination”); Reynolds v. Sims,
377 U.S. 533, 568 (1964) (considering a claim that “an individual’s right to vote …
is in a substantial fashion diluted”); WMCA, Inc v. Lorenzo, 377 U.S. 633, 653 (1964)
(reviewing “an apportionment scheme” that allegedly “result[s] in a significant
undervaluation of the weight of the votes of certain of a State’s citizens”).
In this case, Liu’s complaint alleges that New York and forty-seven other
states—those states aside from Wyoming and Rhode Island—are
unconstitutionally deprived of additional representatives that the states would
7 receive under a proper apportionment scheme. Accordingly, his complaint in part
alleges that he and his fellow New Yorkers suffer vote dilution because they must
vote in electoral districts with populations larger than they constitutionally
should. That is the same injury alleged in Dep't of Commerce v. U.S. House of
Representatives, which the Supreme Court said is an injury in fact under Article III.
To the extent Liu alleges injury based on vote dilution suffered by residents of
other states, he “cannot rest his claim to relief on the legal rights or interests of
third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975).
The defendants argue that Liu has failed to allege an injury in fact because
the Supreme Court has “consistently held that a plaintiff raising only a generally
available grievance about government ... does not state an Article III case or
controversy.” Lujan, 504 U.S. at 574. They suggest that Liu’s asserted injury is an
abstract, generally available grievance unsuitable for resolution in a federal court.
We disagree. In this case, we are concerned with a right—the right to have one’s
vote count equally—that the Supreme Court has characterized as concrete,
“individual[,] and personal in nature.” Reynolds, 377 U.S. at 561. The Court has
explained that, “[w]here a harm is concrete, though widely shared,” that harm is
cognizable under Article III. FEC v. Akins, 524 U.S. 11, 24 (1998). “The kind of
8 judicial language to which” the defendants refer “invariably appears in cases
where the harm at issue is not only widely shared, but is also of an abstract and
indefinite nature—for example, harm to the ‘common concern for obedience to
law.’” Id. at 23. In such cases, it is “[t]he abstract nature of the harm”—not the
number of persons who share the harm—that “deprives the case of the concrete
specificity” required by the Constitution. Id. at 24; see also Lujan, 504 U.S. at 573
(rejecting the view that “the injury-in-fact requirement had been satisfied by
congressional conferral upon all persons of an abstract, self-contained,
noninstrumental ‘right’ to have the Executive observe the procedures required by
law”); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217 (1974)
(dismissing for lack of standing a case in which the “Respondents [sought] to have
the Judicial Branch compel the Executive Branch to act in conformity with the
Incompatibility Clause, an interest shared by all citizens”); Crist v. Comm'n on
Presidential Debates, 262 F.3d 193, 194 (2d Cir. 2001) (dismissing for lack of standing
a voter’s suit challenging the Commission’s practice of “limiting participation ...
to candidates who have demonstrated a particular measure of popularity”).
Because the Supreme Court’s cases have consistently held vote dilution to be an
injury in fact, we conclude that Liu plausibly alleged the first element of standing.
9 B The Constitution requires that a plaintiff’s alleged injury be fairly traceable
to the defendant’s conduct. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42 (1976)
(“[T]he ‘case or controversy’ limitation of Art. III 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.”). While the requirement that the alleged harm be fairly
traceable to the defendant is not an “onerous” one, Carter v. HealthPort Techs., LLC,
822 F.3d 47, 55 (2d Cir. 2016), a plaintiff must establish some causal relationship
between the defendant’s conduct and the plaintiff’s injury, Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 103 (1998) (“[T]here must be causation—a fairly traceable
connection between the plaintiff’s injury and the complained-of conduct of the
defendant.”); Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (“The traceability
requirement for Article III standing means that the plaintiff must ‘demonstrate a
causal nexus between the defendant’s conduct and the injury.’”) (quoting Heldman
v. Sobol, 962 F.2d 148, 156 (2d Cir. 1992)). Here, Liu has named as defendants the
Congress and its leaders. We conclude that Liu has failed plausibly to allege that
10 there exists a sufficiently direct causal connection between the conduct of those
defendants and the injury he alleges.
The Constitution provides that “Representatives ... shall be apportioned
among the several States ... according to their respective Numbers.” U.S. Const.
art. I, § 2, cl. 3. The “respective Number[]” of persons living in each state is
determined in the decennial census, the responsibility for which the Congress has
committed to the Secretary of Commerce. 13 U.S.C. § 141(a). After the Secretary
submits the results of the census to the President, the President must issue to the
Congress “a statement showing the whole number of persons in each State ... as
ascertained under the ... decennial census of the population, and the number of
Representatives to which each State would be entitled under ... the method of
equal proportions.” 2 U.S.C. § 2a(a). After the President has issued that statement,
the Clerk of the House of Representatives is “to send to the executive of each State
a certificate of the number of Representatives to which such state is entitled,” id.
at § 2a(b), at which point the states may exercise their authority to draw districts,
U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the Legislature
11 thereof; but the Congress may at any time by Law make or alter such Regulations,
except as to the Places of chusing Senators.”).
Liu has not sued any of the parties responsible for conducting the census,
preparing the statement of its results, or conducting redistricting. Instead, he has
sued the Congress and its leaders, alleging only they have failed to pass new
statutes implementing Liu’s preferred method of apportionment. Because it is the
actions of those actors responsible for the census and for redistricting—not those
of the Congress or its current leaders—that have allegedly injured him, Liu has
failed to demonstrate that his injury is fairly traceable to the defendants. See
Dantzler, Inc. v. Empresas Berrios Inventory & Operations, Inc., 958 F.3d 38, 47 (1st Cir.
2020) (“The ‘traceability’ or causation element ‘requires the plaintiff to show a
sufficiently direct causal connection between the challenged action and the
identified harm.’”); Fla. Audubon Soc. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)
(en banc) (“Causation, or traceability, examines whether it is substantially
probable that the challenged acts of the defendant, not of some absent third party,
will cause the particularized injury of the plaintiff .... Causation may thus be said
to focus on whether a particular party is appropriate.”) (internal quotation marks
and citations omitted); see also Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 801 (D.C.
12 Cir. 1987) (“[C]ausation ... is something of a term of art, taking into account not
merely an estimate of effects but also considerations related to the constitutional
separation of powers as that concept defines the proper role of courts in the
American governmental structure.”).
Accordingly, we conclude that Liu has failed plausibly to allege the second
element of standing.
C To satisfy the redressability requirement, a plaintiff must make “a showing
that there is a ‘substantial likelihood that the relief requested will redress the injury
claimed.’” E.M. v. N.Y.C. Dep’t of Educ., 758 F.3d 442, 450 (2d Cir. 2014) (quoting
Duke Power Co v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 n.20 (1978)); Steel
Co., 523 U.S. at 107 (“Relief that does not remedy the injury suffered cannot
bootstrap a plaintiff into federal court; that is the very essence of the redressability
requirement.”). In his complaint, Liu seeks two forms of relief. First, he asks for a
declaration that the Apportionment Acts of 1911, 1929, and 1941 are
unconstitutional. Second, he requests that the district court should hold the
Congress in contempt and declare the Senate unconstitutional unless the Congress
enacts a statute implementing his preferred method of apportionment. Because
13 neither proposal would redress Liu’s alleged injury, he has failed plausibly to
allege the third element of standing.
First, federal courts lack the power to compel the Congress to exercise its
legislative powers. The Constitution commits the federal legislative power to the
Congress. As Justice Scalia observed in his concurrence in Franklin v. Massachusetts,
505 U.S. 788 (1992), “[u]nless the other branches are to be entirely subordinated to
the Judiciary,” courts may not “direct ... the Congress to perform particular
legislative duties.” Id. at 829 (Scalia, J., concurring). Because passing a statute is a
quintessentially legislative power, the federal courts may not compel the Congress
to exercise it.
Second, federal courts lack authority to declare the Senate unconstitutional.
The Framers and the ratifiers of the Constitution decided that “[a]ll legislative
Powers herein granted shall be vested in a Congress of the United States, which
shall consist of a Senate and House of Representatives.” U.S. Const. art. I, § 1.
(emphasis added). They also determined that the Senate “shall be composed of two
Senators from each State.” Id. § 3, cl. 1 (emphasis added). Because the Constitution
expressly provides for the Senate, the federal courts cannot declare it
unconstitutional. Cf. Bucklew v. Precythe, 139 S. Ct. 1112, 1122-23 (2019) (noting that
14 the “judiciary bears no license to” declare the death penalty unconstitutional
because the “Fifth Amendment ... expressly contemplates that a defendant may be
tried for a ‘capital’ crime and ‘deprived of life’ as a penalty”). Moreover, a
declaration of the Senate’s unconstitutionality, even if it were within the power of
the federal courts, would not remedy any injury in fact. Liu does not allege that he
is injured by the way in which Senate seats are apportioned. Because a declaration
that the Senate is unconstitutional would not remedy any alleged inequalities in
the apportionment of representatives, such a declaration cannot “bootstrap [Liu]
into federal court.” Steel Co., 523 U.S. at 107. Finally, a declaration that the
Apportionments Acts of 1911, 1929, and 1941 are unconstitutional would not
remedy Liu’s asserted injury because it would not change the apportionment of
representatives. Rather, it would leave the current apportionment in place until
such time as the Congress enacts a new apportionment statute. Because the
possibility that Congress would enact such a statute—and that the President
would sign it—is speculative, we conclude that Liu failed plausibly to allege the
third element of standing.
15 For these reasons, we conclude that the district court lacked jurisdiction
because Liu failed plausibly to allege the irreducible constitutional minimum of
standing.
III We have considered all Liu’s remaining arguments, which are without
merit. Accordingly, we AFFIRM the judgment of the district court but REMAND
for entry of an amended judgment of dismissal without prejudice. “[W]hen a case
is dismissed for lack of federal subject matter jurisdiction, ‘Article III deprives
federal courts of the power to dismiss the case with prejudice.’ As a result, where
a case is dismissed for lack of Article III standing, as here, that disposition cannot
be entered with prejudice, and instead must be dismissed without prejudice.” Katz
v. Donna Karan Company, 872 F.3d 114, 121 (2d Cir. 2017) (internal citation and
alteration omitted) (quoting Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123
(2d Cir. 1999)).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court