NATIONAL ORGANIZATION FOR MARRIAGE, INC., Plaintiff-Appellant, v. James WALSH, in his official capacity as co-chair of the New York State Board of Elections, Douglas Kellner, in his official capacity as co-chair of the New York State Board of Elections, Evelyn Aguila, in her official capacity as commissioner of the New York State Board of Elections, Gregory Peterson, in his official capacity as commissioner of the New York State Board of Elections, Defendants-Appellees.
Docket No. 10-4572-cv.
United States Court of Appeals, Second Circuit.
Argued: Aug. 24, 2011. Decided: April 22, 2013.
714 F.3d 682
(2) As plaintiffs do not allege that SBG; the Bin Laden defendants; Khaled Bin Mahfouz; and Abdulrahman Bin Mahfouz “expressly aimed” their actions at the United States, we lack specific personal jurisdiction over them.
(3) Plaintiffs’ allegations regarding the Charity Official defendants; Yassin Abdullah Al Kadi; Saleh Al-Hussayen; and Dallah Avco are sufficient to warrant jurisdictional discovery.
(4) Abdullah Bin Laden; Yeslam Bin Laden; NCB; and SBG lack the requisite contacts with the United States for us to exercise general personal jurisdiction over them.
For these reasons, we AFFIRM the District Court‘s July 14, 2011 judgment insofar as it dismissed plaintiffs’ claims against the Sudanese defendants; Sulaiman Bin Abdul Aziz Al Rajhi; Saleh Abdul Aziz Al Rajhi; Abdullah Salaiman Al Rajhi; NCB; the Liechtenstein defendants; Yousef Jameel; SBG; the Bin Laden defendants; Khaled Bin Mahfouz; and Abdulrahman Bin Mahfouz for lack of personal jurisdiction; and we VACATE the judgment of the District Cоurt insofar as it dismissed plaintiffs’ claims against the Charity Official defendants; Yassin Abdullah Al Kadi; Saleh Al-Hussayen; and Dallah Avco for lack of personal jurisdiction and, as to these claims only, we REMAND the cause to the District Court, pursuant to United States v. Jacobson, 15 F.3d 19 (2d Cir.1994), for the prompt commencement of a course of judicially-supervised jurisdictional discovery.
Kenneth A. Manning (Michael B. Powers, Craig R. Bucki, on the brief) Phillips Lytle LLP, Buffalo, NY, for Defendants-Appellees Douglas Kellner and Evelyn Aguila.
Justin E. Driscoll, Brown & Weinraub, PLLC, Albany, NY, for Defendants-Appellees James Walsh and Gregory Peterson.
Before: NEWMAN, HALL, Circuit Judges, PRESKA,1 Chief District Judge.
HALL, Circuit Judge.
Plaintiff-Appellant the National Organization for Marriage (“NOM“) appeals from the judgment of the United States District Court for the Western District of New York (Arcara, J.) dismissing its amended complaint for lack of subject-matter jurisdiction. Contrary to the district court, we hold that NOM pleaded a ripe “case or controversy” necessary to confer Article III jurisdiction. Prudential considerations related to ripeness do not bar review. Moreover, the case is not moot. We therefore vacate the judgment of the district court dismissing the case, and remand for the district court to consider, in the first instance, whether to dismiss NOM‘s complaint on the merits.
I. Background
On September 16, 2010, NOM filed its complaint in federal district court seeking a declaratory judgment that
NOM, in response, filed a more developed amended complaint. The amended complaint alleged that NOM sought in September 2010 and would seek in October 2010 to directly advocate, by various means, for the election of certain candidates for state wide political office. NOM further asserted that it intended to engage in “materially similar” speech in “materially similar situatiоns in the future.” Although NOM disclaimed any intention to coordinate its express advocacy with any candidate or candidate committee or political party, or to contribute to any of these entities, NOM maintained that its express advocacy for candidates could render it a “political committee” for the purposes of
“political committee” means any corporation aiding or promoting and any committee, political club or combination of one or more persons operating or cooperating to aid or to promote the success or defeat of a political party or principle, or of any ballot proposal; or to aid or take part in the election or defeat of a candidate for public office or to aid or take part in the election or defeat of a candidate for nomination at a primary election or convention, including all proceedings prior to such primary election, or of a candidate for any party position voted for at a primary election, or to aid or defeat the nomination by petition of an independent candidate for public office; but nothing in this article shall apply to any committee or organization for the discussion or advancement of political questions or principles without connection with any vote or to a national committee organized for the election of presidential or vice-presidential candidates; provided, however, that a person or corporation making a contribution or contributions to a candidate or a political committee which has filed pursuant to [New York Election Law §]
14-118 shall not, by that fact alone, be deemed to be a political committee as herein defined.
According to the amended complaint, and сonfirmed by affidavits the Defendants filed in connection with their opposition to NOM‘s motion for a preliminary injunction, “political committees” must: (1) file a registration statement and designate a treasurer, see
The district court accepted NOM‘s amended complaint as a superseding
II. Discussion
We review de novo a district court‘s determination that it lacks subject-matter jurisdiction on ripeness grounds. Connecticut v. Duncan, 612 F.3d 107, 112 (2d Cir.2010) (“A district court‘s ripeness determination is ... a legal determination subject to de novo review.“); Nutritional Health Alliance v. Shalala, 144 F.3d 220, 225 (2d Cir.1998) (“Ripeness is a constitutional prerequisite to exercise of jurisdiction by the federal courts.“). In addition, we have an independent duty to consider other aspects of subject-matter jurisdiction nostra sponte. See Kalson v. Paterson, 542 F.3d 281, 286 n. 10 (2d Cir.2008) (“The fact that neither party raised a jurisdictional issue on appeal is of no matter; we are obligated to determine whether jurisdiction exists nostra sponte.“).
A. Ripeness
To be justiciable, a cause of action must be ripe—it must present “a real, substantial controversy, not a mere hypothetical question.” AMSAT Cable Ltd. v. Cablevision of Conn., 6 F.3d 867, 872 (2d Cir.1993). Ripeness “is peculiarly a question of timing.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985). A claim is not ripe if it depends upon “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Id. at 580-81. The doctrine‘s major purpose “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
“The ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat‘l Park Hospitality Ass‘n v. Dep‘t of Interior, 538 U.S. 803, 808 (2003) (internal quotation marks omitted). Thus, the doctrine implicates two distinct conceptual jurisdictional criteria. Simmonds v. INS, 326 F.3d 351, 356-57 (2d Cir.2003).
Both [criteria] are concerned with whether a case has been brought prematurely, but they protect against prematureness in different ways and for different reasons. The first of these ripeness requirements has as its source the Case or Controversy Clause of Article III of the Constitution, and hence goes, in a fundamental way, to the existence of jurisdiction. The second is a more flexible doctrine of judicial prudence, and does not appeal.
These two forms of ripeness are not coextensive in purpose. Constitutional ripeness is a doctrine that, like standing, is a limitation on the power of the judiciary. It prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it. But when a court declares that a case is not prudentially ripe, it means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay. It does not mean that the case is not a real or concrete dispute affecting cognizable current concerns of the parties within the meaning of Article III.... Prudential ripeness is, then, a tool that courts may use to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may require premature examination of, especially, constitutional issues that time may make easier or less controversial.
Id. at 357 (citations omitted).
1. Constitutional Ripeness
Often, the best way to think of constitutional ripeness is as a specific application of the actual injury aspect of Article III standing.5 The “irreducible constitutional minimum of standing contains three elements“: (1) “the plaintiff must have suffered an injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical“; (2) “there must be a causal connection between the injury and the conduct complained of“; and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quotation marks, citations, alterations, and footnotes omitted). Constitutional ripeness, in other words, is really just about the first Lujan factor—to say a plaintiff‘s claim is constitutionally unripe is tо say the plaintiff‘s claimed injury, if any, is not “actual or imminent,” but instead “conjectural or hypothetical.” See id. at 560; see also New York Civil Liberties Union v. Grandeau, 528 F.3d 122, 130 n. 8 (2d Cir.2008) (“Standing and ripeness are closely related doctrines that overlap most notably in the shared requirement that the plaintiff‘s injury be imminent rather than conjectural or hypothetical.” (quotation marks and alterations omitted)); Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 226 (2d Cir.2008) (because the ripeness and standing doctrines “overlap,” claims that were suffi-
Despite the language of Lujan and similar cases, however, we assess pre-enforcement First Amendment claims, such as the ones NOM brings, under somewhat relaxed standing and ripeness rules. A plaintiff must allege something more than an abstract, subjective fear that his rights are chilled in order to establish a case or controversy. See Laird v. Tatum, 408 U.S. 1, 13-14 (1972). But a real and imminent fear of such chilling is enough. As the Eleventh Circuit has explained, without the possibility of pre-enforcement challenges, plaintiffs contesting statutes or regulations on First Amendment grounds “face an unattractive set of options if they are barred from bringing a facial challenge“: refraining from activity they believe the First Amendment protects, or risk civil or criminal penalties for violating the challengеd law. Fla. League of Prof‘l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 459 (11th Cir.1996).
This distinction explains our holding in Vermont Right to Life Committee, Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir.2000). In that case, Vermont statutory provisions required “political advertisements” to contain certain disclosures and mandated that expenditures for some “mass media activities” be reported to the state. Id. at 379. The plaintiff, a pro-life nonprofit organization, brought suit under
In Vermont Right to Life Committee, it did not matter that the law at issue imposed only civil, and not criminal, liability. Id. (“The fear of civil penalties can be as inhibiting of speech as can trepidation in the face of threatened criminal prosecution.“). Nor did it make a difference that the state denied that the plaintiff actually was subject to the challenged law. Id. What mattered was that the plaintiff faced a “credible threat” that the law would be enforced against it. Id. That was enough to give standing.
This case is no different from Vermont Right to Life Committee, and NOM‘s claims are ripe. Attached to NOM‘s complaint was an example of a radio advertisement NOM wanted to broadcast in New York:
Think legalizing same-sex marriage doesn‘t affect your family?
....
Legalizing gay marriage has consequences for kids. Massachusetts schools teach second graders that boys can marry other boys. A California public school took first graders to a same-sex wedding, calling it “a teachable moment.”
Kids have enough to deal with already, without pushing gay marriage on them. And it‘s not just kids who‘ll face the consequences.
The rights of people who think marriage means a man and a woman will no longer matter: We‘ll all have to accept same-sex marriage whether we like it or not.
Carl Paladino knows that in these troubled times in New York, we don‘t have time to push gay marriage on New York families.
This Election Day, vote for Carl Paladi[n]o for governor.
As the election approaches, tell your family and friends to vote for Carl Paladino. He‘ll stand up for marriage between one man and one woman.
Paid for by National Organization for Marriage
Comparing that proposed advertisement with the plain text of
In holding NOM‘s claimed injury was “too remote,” the district court relied in part on the savings clause of
Having dismissed the case on constitutional ripeness grounds, the district court had no occasion to consider Defendants’ prudential ripeness arguments. We consider them briefly.
To determine whether to abstain from a case on prudential ripeness grounds, “we proceed with a two-step inquiry, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Grandeau, 528 F.3d at 131-32 (quotation marks and citation omitted).7 “The ‘fitness’ analysis is concerned with whether the issues sought to be adjudicated are contingent on future events or may never occur.” Id. at 132 (quotation marks аnd citation omitted). “In assessing this possibility of hardship, we ask whether the challenged action creates a direct and immediate dilemma for the parties.” Id. at 134.
Assessment of both factors counsels against abstention. Although “the factual record is not yet fully developed,” the dispute primarily “presents legal questions and there is a concrete dispute between the parties.” Sharkey v. Quarantillo, 541 F.3d 75, 89 (2d Cir.2008). The issues presented have sharpened into a live case which is “fit for judicial decision.” See id. What future contingencies remain, see Grandeau, 528 F.3d at 132, are not determinative of the questions before us. It is true that the New York Board of Elections, in Defendants’ words, has made “no specific effort ... to classify NOM as a political committee.” But there is nothing in the record to indicate that the Board of Elections must specifically find NOM to be a “political committee” for NOM to meet that definition. Rather, on the face of the statute, the designation “political committee” appears to be self-executing. And NOM‘s complaint asserts that it meets all the elements of
Defendants’ contention that NOM failed to describe the “materially similar” situations in which it planned to speak in the future is similarly unpersuasive. For one thing, at the time NOM brought suit, it presented the court with several advertisements it wanted to broadcast immediately, not in the future. For ripeness purposes, its future plans are of less relevance.9 Further, NOM‘s mere statement that its future speech will be “materially similar” to the 2010 advertisements is sufficiently precise. To the extent the advertisements
Whether NOM will suffer hardship if we withhold our ruling is an even easier question to answer. NOM asserts that it will have to submit to a definition it believes is unconstitutional. If NOM is right on the merits, forcing it to break the law before we will answer the constitutional question “creates a direct and immediate dilemma,” and a significant hardship. Grandeau, 528 F.3d at 134. There is no prudential reason to abstain.
B. Mootness
Because NOM‘s complaint concerns the 2010 election cycle, which has now long passed, NOM must overcome a second procedural hurdle—mootness. Defendants’ brief does not address mootness (NOM‘s does). Federal courts have no constitutional power to consider a moot case, which does not present a live controversy. See Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir.1998) (“The mootness doctrine is derived from the constitutional requirement that federal courts may only decide live cases or controversies.“). We thus have a duty to consider mootness nostra sponte. See Kalson, 542 F.3d at 286.
Although the November 2010 election is over, this case is not moot, for it falls within the judicially created exception for cases “capable of repetition, yet evading review.” See FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 462 (2007). “The exception applies where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action аgain.” Id. (quotation marks omitted); see also, e.g., Porter v. Jones, 319 F.3d 483, 490 (9th Cir.2003) (“Election cases often fall within this exception, because the inherently brief duration of an election is almost invariably too short to enable full litigation on the merits.“). This case is like Wisconsin Right to Life. NOM‘s complaint clearly alleges that the organization plans to do “materially similar” advertising in “materially similar situations in the future,” and consequently that “New York law will apply to NOM as it does now.” NOM‘s “injury of self-censorship is capable of repetition yet evading review.” Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 n. 4 (9th Cir.2003).
C. Merits
Having determined that NOM‘s case presents a live controversy that is ripe for consideration, we must vacate the district court‘s determination that it lacked jurisdiction. Because that conclusion prevented the district court from reaching the merits of NOM‘s claims, we decline to comment on the substance of NOM‘s claims in the first instance. As ours is not a court of first review, “when we reverse on a threshold question, we typically remand for resolution of any claims the lower courts’ error prevented them from addressing.” Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S.Ct. 1421, 1430 (2012); see, e.g., PDK Labs., Inc. v. United States Drug Enforcement Admin., 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in judgment) (stating “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more—counsels us to go no further.“). We therefore remand this case for further proceedings leaving the initial determinatiоn of the merits to the district court.
The judgment of the district court dismissing this case is VACATED, and the case is REMANDED to the district court for further proceedings.
JON O. NEWMAN, Circuit Judge, dissenting.
The National Organization for Marriage (“NOM“), an advocacy organization, seeks a ruling from a federal district court that New York‘s definition of a “political committee,” see
As the majority recognizes, NOM is obliged to assert “an invasion of a legally protected interest which is actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citations omitted). I recognize that in some circumstances a pre-enforcement challenge may be brought to adjudicate the validity of statutes alleged to violatе the First Amendment. See, e.g., Vermont Right to Life Committee v. Sorrell, 221 F.3d 376 (2d Cir.2000). I also recognize that a plaintiff intending to engage in conduct arguably proscribed by statute need not subject itself to criminal prosecution or the imposition of civil penalties to test its First Amendment claim. Finally, I also recognize that in some circumstances, a plaintiff‘s own apprehension that it will be subject to allegedly unconstitutional state law requirements can suffice to permit a pre-enforcement challenge. But such apprehension cannot suffice in circumstances, like those in this case, where the relevant regulatory body (a) has given no indication that the challenged regulations apply to the plaintiff, (b) stands ready to respond to an inquiry as to whether the challenged regulations apply to the plaintiff, and (c) is required to afford the plaintiff notice in the event the body intends to depart from advice that the regulations do not apply. In such circumstances, the plaintiff‘s fear of adverse consequences cannot be said to be “well-founded,” id. at 382.
We recently upheld an as-applied challenge to state regulations alleged to impair First Amendment rights where the relevant regulatory body declined to give pre-enforcement advice that would have clarified the meаning of the regulations. See Hayes v. New York State Attorney Grievance Committee, 672 F.3d 158, 170 (2d Cir.2012). In the pending case, however, the Board of Elections, responding to our inquiry at oral argument, has commendably advised that it “would respond to a letter questioning whether an entity‘s activities would classify it as a ‘political committee’ pursuant to
In Vermont Right to Life Committee, State officials sought to preclude a pre-enforcement challenge on the ground that they had no intention of enforcing challenged regulations against the plaintiff. Id. at 383. We properly rejected the State‘s claim that the plaintiff‘s fear of suit was not well-founded because “there is nothing to prevent the State from changing its mind.” Id. The majority contends that the pending case “is no different from Vermont Right to Life Committee,” but that assertion overlooks a crucial difference between that case and ours. Not only does the Board of Elections stand ready to аdvise NOM whether it is considered to be a “political committee,” but the Board recognizes that, in the event that it advises that NOM is not a “political committee,” the Board may not change its mind without giving NOM the prior notice required by Williams v. Sclafani, 444 F.Supp. 906, 912 (S.D.N.Y.1978), aff‘d sub nom. Williams v. Velez, 580 F.2d 1046 (2d Cir.1978). Furthermore, if the Board were unreasonably to delay either its response to NOM‘s inquiry or its notice of a change of mind, that circumstance would surely warrant NOM‘s prompt return to court. See Hirschfeld v. Board of Elections of City of New York, 984 F.2d 35, 40 (2d Cir.1993) (prohibiting elections board to change its mind after undue delay). Thus, it is simply not so, as the majority contends, that “NOM would have no warn-
ing of imminent enforcement by the Board of Elections, beyond NOM‘s own knowledge that it was violating the law.”1 [Op. P. 691]
Instеad of obliging NOM to inquire of the Board of Elections whether it is a “political committee,” the majority returns this case to the District Court for a ruling on NOM‘s constitutional claims. That course, and the inevitable appeal, will likely precipitate far-reaching constitutional rulings that would be entirely avoided if the Board of Elections determines, upon a proper inquiry, that it does not consider NOM to be a “political committee.”
No doubt NOM would be interested in knowing whether New York would violate the First Amendment if the Board of Elections, if asked, were to determine that NOM was a “political committee,” but Federal courts do not sit to satisfy litigants’ intellectual curiosity. I respectfully dissent.
Patrick CARIOU, Plaintiff-Appellee, v. Richard PRINCE, Defendant-Appellant,