Ralph Nader v. Federal Election Commission
725 F.3d 226
D.C. Cir.
2013
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Docket

Ralph NADER, Appellant v. FEDERAL ELECTION COMMISSION, Appellee.

No. 12-5134.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 14, 2013. Decided Aug. 2, 2013.

725 F.3d 226

no parallel option for Jerusalem-born Palestine supporters, the State Department‘s Foreign Affairs Manual establishes a facially neutral policy that permits individuals to list their city or area of birth in lieu of their country of birth. See 7 FAM 1383.5-2; 7 FAM 1383.6(a). The policy applies universally—not just in the context of Jerusalem—and treats Israel and Palestine supporters identically. Jerusalem-born Americans, whether supporters of Israel or supporters of Palestine, may not use their passports to make a political statement. And that is because permitting a Jerusalem-born individual to list “Israel” or “Palestine” would contradict the President‘s decision to recognize neither entity‘s sovereignty over Jerusalem.

True, as Zivotofsky emphasizes with his Tel Aviv example, individuals born within territory the United States has recognized as belonging to Israel can choose either to list “Israel” as their place of birth or instead to list a city or area of birth. Israel supporters may list “Israel,” and Palestine supporters may list something more specific. But although the political nature of the latter choice may be clearer insomuch as it marks a deviation from the default country-of-birth rule, that is an unintended consequence of a neutral policy. Indeed, were the United States to recognize the West Bank as the sovereign state of Palestine, the same would be true of Israel supporters born therein. That is, Palestine supporters could list “Palestine,” and Israel supporters could make the more obviously political choice to list their city or area of birth. It is only because the United States has not recognized any Palestinian territory that there currently exists no clear analogy to Zivotofsky‘s Tel Aviv scenario.

Oliver B. Hall argued the cause and filed the briefs for appellant.

Seth Nesin, Attorney, Federal Election Commission, argued the cause for appellee. With him on the brief were Anthony Herman, General Counsel, David Kolker, Associate General Counsel, and Adav Noti, Acting Assistant General Counsel.

Before: HENDERSON and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

In the wake of his 2004 run for the presidency, Ralph Nader filed an administrative complaint with the Federal Election Commission alleging that various organizations violated election laws during their efforts to keep him off the ballot. The FEC dismissed Nader‘s complaint. In the lawsuit that followed, the district court granted summary judgment against him and later denied his motion to alter or amend its judgment. See

;
. We dismiss Nader‘s appeal of those decisions because he lacks standing.

I

Nader brought suit under 2 U.S.C. § 437g(a)(8), which provides that “[a]ny party aggrieved by an order of the Commission dismissing a complaint . . . may file a petition with the United States District Court for the District of Columbia.” We have observed that this statute “permits a private party to challenge the FEC‘s decision not to enforce” the Federal Election Campaign Act (FECA) and its attendant regulations.

(italics in original). But although § 437g(a)(8) creates a cause of action of considerable breadth, it “does not confer standing; it confers a right to sue upon parties who otherwise already have standing.”
. Neither the parties nor the district court addressed Nader‘s standing, but we asked the parties for supplemental briefing on the issue because we have “a special obligation to satisfy [ourselves] not only of [our] own jurisdiction, but also that of the lower courts in a cause under review.”
(internal quotation marks omitted). Nader relies on the doctrines of competitor standing and informational standing to “satisfy the ‘irreducible constitutional minimum’ of Article III standing: injury-in-fact, causation, and redressability.”
(quoting
). We hold that he lacks standing under both theories.

II

Injury from an “illegally structured” competitive environment can give rise to competitor standing.

(internal quotation marks omitted). Nader alleges that he was “forced to compete” in an “illegally structured campaign environment” because his opponents were flouting election laws without suffering any consequences from the FEC. Pet‘r‘s Supp. Br. 8. But the cases in which we have recognized competitor standing in the electoral context highlight the problem with Nader‘s argument: a favorable decision here will not redress the injuries he claims. In
, we held that candidates had competitor standing to challenge an FEC regulation they claimed would harm their chances in the next election. See
. In
, we held that a candidate had competitor standing to seek to enjoin the Attorney General from enforcing the Voting Rights Act in a way that would diminish the candidate‘s chances of victory in an upcoming election. See
.

Unlike the plaintiffs in

and
, who successfully asserted competitor standing in the midst of ongoing campaigns, Nader seeks to compel FEC enforcement against his opponents years after the campaign has run its course. Even if the FEC were to afford Nader the relief he seeks, that outcome would not reverse the ballot-access harms that Nader alleges he suffered in 2004, or compensate him for them. Cf.
(discussing how “prospective relief will remove the harm” (internal quotation marks omitted));
(noting that the candidates asserting competitor standing had to “anticipate” defending against potentially illegal campaign tactics);
(discussing the relief available to a “current” pharmaceutical manufacturer seeking to have its competitor‘s registration revoked);
(noting that the administrative order at issue “will increase competition” as a prospective matter);
(noting that redressability is “quintessentially predictive“).

Nader might have been able to establish standing as a competitor if he had shown that the FEC‘s determination injured his ability to fight the next election. But even though Nader has not ruled out another foray into electoral politics, his statements on the matter are too speculative to provide the basis for an injury to his competitive interests. See

(denying standing to Senator McConnell because his assertion that he might encounter unfavorable treatment under a newly-enacted statute was “too remote temporally“). In contrast to the candidates in
and
, who had averred that they had concrete plans to run for office in the future, see
;
, Nader has alleged only that he “may run for office again,” Compl. ¶ 6. As the Supreme Court said in
, “‘some day’ intentions do not support a finding of the ‘actual or imminent’ injury that our cases require.”
.

III

Nader fares no better with his claim of informational standing. A plaintiff has informational standing when he alleges that he has “fail[ed] to obtain information which must be publicly disclosed pursuant to a statute.”

. It is not enough, however, to assert that disclosure is required by law. Only if the statute grants a plaintiff a concrete interest in the information sought will he be able to assert an injury in fact. See
(“Often the fact that an interest is abstract and the fact that it is widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found ‘injury in fact.‘” (citation omitted)). For instance, in
, the Supreme Court held that a group of voters had standing to argue that the FECA entitled them to information about the activities of a lobbying organization because they had an interest in evaluating candidates and outside groups. See
. Similarly, in
, we held that a member of the U.S. House of Representatives had standing to argue that the FEC‘s disclosure regulations were denying him information owed to the public under the Bipartisan Campaign Reform Act because he had an interest in evaluating the role of outside groups in a presidential election. See
.

The Supreme Court‘s ruling in

and our ruling in
establish that litigants who claim a right to information allege the type of concrete injury needed for standing to bring a FECA claim if the disclosure they seek is related to their informed participation in the political process. See
;
. Nader does not seek information to facilitate his informed participation in the political process. Instead, he seeks to force the FEC to “get the bad guys.”
. His complaint alleges that a large number of lawyers and law firms made undisclosed, in-kind contributions of legal services to the efforts of the John Kerry campaign to keep Nader‘s name off the ballot in numerous states. He asks the FEC to compel information from participants in the ballot contests in the hope of showing that they violated the prohibitions on undisclosed “contributions” and “expenditures” found in 2 U.S.C. §§ 441a and 441b. Because this amounts to seeking disclosure to promote law enforcement, Nader asserts an injury that is not sufficiently concrete to confer standing. See
;
;
. And to the extent Nader seeks disclosure to gain a leg up on his opponents in other litigation, that too is sufficiently distant from the reasons that supported the decisions in
and
that we hold Nader lacks informational standing.*

IV

Because Nader lacked standing, the district court lacked jurisdiction to hear his suit, and we vacate the judgment and remand the case with instructions to dismiss the case for lack of jurisdiction.

So ordered.

Notes

*
Nader and the opponents of his inclusion on the Pennsylvania ballot have been embroiled in extensive litigation since 2004, and Nader avers that the information sought in his 2008 FEC complaint would be useful to him in those controversies. See Nader Aff. ¶¶ 9-17.
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