United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 14, 2013 Decided August 2, 2013
No. 12-5134
RALPH NADER,
APPELLANT
v.
FEDERAL ELECTION COMMISSION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00989)
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.
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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 Nader v. FEC, 823 F. Supp. 2d 53
(D.D.C. 2011); Nader v. FEC, 854 F. Supp. 2d 30 (D.D.C.
2012). 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. Chamber of Commerce of U.S. v. FEC, 69 F.3d
600, 603 (D.C. Cir. 1995) (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.” Common Cause
v. FEC, 108 F.3d 413, 419 (D.C. Cir. 1997). 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.” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 95 (1998) (internal quotation marks omitted).
Nader relies on the doctrines of competitor standing and
informational standing to “satisfy the ‘irreducible
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constitutional minimum’ of Article III standing: injury-in-fact,
causation, and redressability.” Shaw v. Marriott Int’l, Inc., 605
F.3d 1039, 1042 (D.C. Cir. 2010) (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992)). We hold that he
lacks standing under both theories.
II
Injury from an “illegally structured” competitive
environment can give rise to competitor standing. LaRoque v.
Holder, 650 F.3d 777, 787 (D.C. Cir. 2011) (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 Shays, we held that candidates had competitor standing to
challenge an FEC regulation they claimed would harm their
chances in the next election. See Shays v. FEC, 414 F.3d 76,
82, 85-87 (D.C. Cir. 2005). In LaRoque, 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 LaRoque, 650 F.3d at 788.
Unlike the plaintiffs in LaRoque and Shays, 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. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45
4
(1976) (discussing how “prospective relief will remove the
harm” (internal quotation marks omitted)); Shays, 414 F.3d at
86 (noting that the candidates asserting competitor standing
had to “anticipate” defending against potentially illegal
campaign tactics); MD Pharm., Inc. v. DEA, 133 F.3d 8, 9,
11-12 (D.C. Cir. 1998) (discussing the relief available to a
“current” pharmaceutical manufacturer seeking to have its
competitor’s registration revoked); Liquid Carbonic Indus.
Corp. v. FERC, 29 F.3d 697, 701 (D.C. Cir. 1994) (noting that
the administrative order at issue “will increase competition” as
a prospective matter); Freedom Republicans, Inc. v. FEC, 13
F.3d 412, 418 (D.C. Cir. 1994) (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 McConnell
v. FEC, 540 U.S. 93, 226 (2003) (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 LaRoque
and Shays, who had averred that they had concrete plans to run
for office in the future, see LaRoque, 650 F.3d at 788; Shays,
414 F.3d at 82, Nader has alleged only that he “may run for
office again,” Compl. ¶ 6. As the Supreme Court said in Lujan,
“‘some day’ intentions . . . do not support a finding of the
‘actual or imminent’ injury that our cases require.” 504 U.S. at
564.
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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.” FEC v. Akins, 524
U.S. 11, 21 (1998). 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 id. at 24 (“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 Akins, 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 id. at
21, 24-25. Similarly, in Shays, 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 Shays v. FEC, 528 F.3d
914, 923 (D.C. Cir. 2008).
The Supreme Court’s ruling in Akins and our ruling in
Shays 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 Akins, 524
U.S. at 21; Shays, 528 F.3d at 923. 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.’” Common Cause, 108 F.3d at 418. His complaint
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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 Citizens for
Responsibility and Ethics in Wash. v. FEC, 475 F.3d 337, 341
(D.C. Cir. 2007); Wertheimer v. FEC, 268 F.3d 1070, 1074
(D.C. Cir. 2001); Common Cause, 108 F.3d at 418. 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 Akins and Shays 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.
*
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.