Alamo, Tony v. Clay, Jasper R.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 21, 1998 Decided March 17, 1998

No. 96-5259

Tony Alamo f/k/a Bernie Lazar Hoffman, and

Alamo Christian Church,

Appellants

v.

Jasper R. Clay, Jr., et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 96cv01446)

Harry Kresky argued the cause and filed the briefs for
appellants. Daniel E. Ellenbogen and Tony Alamo, appear-
ing pro se, entered appearances.

R. Craig Lawrence, Assistant U.S. Attorney, argued the
cause for appellees, with whom Mary Lou Leary, U.S. Attor-

ney at the time the brief was filed, was on the brief. Sherri
E. Harris, Assistant U.S. Attorney, entered an appearance.

Before: Edwards, Chief Judge, Wald and Rogers, Circuit
Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: In this case, the wrong claim was
brought by the wrong party in the wrong jurisdiction. Appel-
lant Alamo Church asserts a claim under the Religious Free-
dom Restoration Act challenging the United States Parole
Commission's decision denying parole to its pastor. It is well
settled that a parole decision can be challenged only by the
individual denied parole through a habeas action brought in
the jurisdiction in which he is incarcerated. In any case, we
find that the injuries alleged by the church--loss of the
services of its pastor and damage to its reputation--fail to
satisfy the requirements for standing under Article III of the
U.S. Constitution.

I. Background

Tony Alamo is founder and pastor of the Christian Church
of Alamo ("Alamo Church" or "the church"). In September
1994, Alamo was sentenced by the Federal District Court for
the Western District of Tennessee to six years in prison for
one count of filing a false income tax return and three counts
of failing to file. He is incarcerated in a federal correctional
institution in Texarkana, Texas. In June 1995, a parole
examiner recommended that Alamo be paroled. In March
1996, the United States Parole Commission ("the Commis-
sion") denied Alamo's request for parole. See Bernie Hoff-
man, Reg. No. 305-112 (U.S. Parole Comm'n Mar. 14, 1996)
(notice of action on appeal), reprinted in Appendix ("App.")
29-30 (hereinafter "Comm'n Decision").

Alamo and the church then brought suit under the Reli-
gious Freedom Restoration Act of 1993, 42 U.S.C. s 2000bb-1
to -4 (1994) ("RFRA"), claiming that the denial of Alamo's
parole substantially burdened their exercise of religion and
was not justified by a compelling government interest. They

sought a declaration that the Commission's determination was
illegal and an order directing Alamo's release based upon the
parole examiner's recommendation.

The District Court dismissed the complaint in its entirety.
The court reasoned that, although Plaintiffs' complaint was
framed as an action under the RFRA, the real purpose of
their claims is to challenge the duration of Tony Alamo's
sentence, a matter which is delegated solely to the discretion
of the Parole Commission and cannot be decided by the
district court. Alamo v. United States Parole Comm'n, No.
96-01446, slip. op. (D.D.C. June 30, 1996). Moreover, the
trial court held that a federal prisoner challenging the deter-
mination of parole eligibility is required to bring his claim as
a habeas action in the jurisdiction in which he is incarcerated.
Id. (citing Chatman-Bey v. Thornburgh, 864 F.2d 804, 808-09
(D.C. Cir. 1988) (en banc); 28 U.S.C. s 2241).

The church alleges that the Parole Commission's decision
violated its rights under the RFRA and the Free Exercise
Clause of the First Amendment--not just Tony Alamo's
individual rights. Essentially, the church argues that the
Commission's decision was significantly influenced by its dis-
criminatory views of Alamo Church, causing the church repu-
tational injury as well as depriving it of the services of its
pastor. To redress these injuries, the church seeks an order
directing the Commission to adopt the parole examiner's
recommendation that Alamo be paroled. Alternatively, it
requests a declaratory judgment stating that the Commission
impermissibly based its decision on derogatory views of Ala-
mo Church in violation of the RFRA and the First Amend-
ment and ordering the Commission to reconsider Alamo's
parole without taint of religious discrimination.

The Government moved for summary affirmance of the
District Court's decision. A motions panel affirmed the Dis-
trict Court's decision as to Tony Alamo's claim, on the ground
that the only avenue through which a prisoner can challenge
the Parole Commission's determination of his parole eligibili-
ty is through a habeas action brought in the jurisdiction in
which he is incarcerated. The motions panel also acknowl-

edged that Alamo Church cannot bring a habeas action on
Alamo's behalf but deferred to the merits panel the question
of whether the church presents a valid claim under the RFRA
or the First Amendment for which relief can be granted. See
Alamo v. Clay, No. 96-5259, slip op. (D.C. Cir. Apr. 22, 1997)
(order granting summary affirmance in part and denying it in
part).

As enacted, the RFRA prohibits any "branch, department,
agency, instrumentality, [or] official" of federal or state gov-
ernment "or other persons acting under color of [federal or
state] law" from "substantially burden[ing] a person's exer-
cise of religion" unless the government can demonstrate that
the burden "(1) is in furtherance of a compelling governmen-
tal interest; and (2) is the least restrictive means of further-
ing that ... interest." 42 U.S.C. ss 2000bb-1, 2000bb-2(1)
(1994). In City of Boerne v. Flores, 117 S. Ct. 2157 (1997),
the Supreme Court held that the RFRA exceeds Congress'
enforcement powers under section 5 of the Fourteenth
Amendment. Appellants submit that the RFRA still applies
to federal agencies. See Appellants' Opening Brief at 28.
The Government does not contest this claim. For the pur-
poses of this appeal, we assume, without deciding, that the
RFRA applies to the federal government, notwithstanding the
Supreme Court's decision in City of Boerne.

II. Analysis

We review the District Court's dismissal of Appellants'
complaint de novo. National Taxpayers Union, Inc. v. Unit-
ed States, 68 F.3d 1428, 1432 (D.C. Cir. 1995).

Although the church pleads this case under the RFRA, it is
essentially challenging the duration of Tony Alamo's sen-
tence. It is well settled that a parole decision can be chal-
lenged only by the individual denied parole through a habeas
action brought in the jurisdiction in which he is incarcerat-
ed. See 28 U.S.C. s 2241 (1994); Chapman-Bey v. Thorn-
burgh, 864 F.2d 804, 808-09 (D.C. Cir. 1988) (en banc) (citing
Preiser v. Rodriguez, 411 U.S. 475 (1973)). In such an action,
a prisoner may assert the claim alleged here--i.e., that the

Commission's decision was based upon an impermissible fac-
tor. Even if a court considering such a claim were to find
that the Commission's decision was impermissibly influenced
by religious discrimination, however, at most it could order
the Commission to reconsider Alamo's parole in a manner
that does not violate the RFRA or the First Amendment.
The sole power to grant or deny parole lies within the
Commission's discretion; neither this court nor the District
Court has authority to grant parole. See 18 U.S.C.A.
ss 4203(b), 4218(d) (West Supp. 1997); Guerra v. Meese, 786
F.2d 414, 418 (D.C. Cir. 1986) (citing Billiteri v. United States
Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976)).

There is a long history of habeas review of parole decisions.
See Chapman-Bey, 864 F.2d at 807-08. Appellants point to
nothing in the statutory framework or in case law governing
the review of parole decisions to demonstrate that a third
party such as the church can challenge a decision of the
Parole Commission. Instead, Alamo Church attempts to get
around this jurisdictional barrier by suggesting that the
Commission's decision has caused the church--not just Tony
Alamo--cognizable injuries, and that these injuries provide
the church with a basis for a cause of action under the RFRA.
However, Appellants do not identify any previous RFRA
cases involving a third-party challenge to an administrative
decision or offer argument specifically addressing why the
RFRA should be construed to provide a cause of action in
such an unusual posture. Thus, we decline to read into the
RFRA a congressional intent to upset the long-standing
framework limiting review of parole decisions.

Even if the RFRA or the Free Exercise Clause could be
construed to provide a third party with a basis for challenging
the Commission's decision, however, the complaint would
nevertheless be dismissed, because the injuries alleged by
Alamo Church fail to satisfy the well-established require-
ments for standing under Article III of the U.S. Constitution.
"In order to satisfy the irreducible constitutional minimum of
standing, a litigant must demonstrate that it has suffered a
concrete and particularized injury that is: (1) actual or immi-
nent; (2) caused by, or fairly traceable to, an act that the

litigant challenges in the instant litigation; and (3) redressa-
ble by the court." Florida Audubon Soc'y v. Bentsen, 94
F.3d 658, 663 (D.C. Cir. 1996) (en banc) (internal quotes and
citations omitted).

Alamo Church lost the services of its pastor as a conse-
quence of Tony Alamo's criminal conduct, for which he was
convicted and sentenced to jail. A convicted prisoner has no
absolute right to parole; rather, the issue of parole is delegat-
ed to the Commission's discretion. See 18 U.S.C.A. ss 4206,
4218(d) (West Supp. 1997). Thus, the church's alleged injury
was caused by Alamo's criminal conduct for which he was
convicted, not by the Commission's subsequent decision deny-
ing him parole. Accordingly, the church's loss of its pastor's
services is not fairly traceable to the Commission's allegedly
illegal parole decision. Florida Audubon Soc'y, 94 F.3d at
663 (in analyzing the "causation" element of constitutional
standing, this court asks whether the challenged acts of the
defendant--as opposed to the acts of a third party--caused
the plaintiff's particularized injury).

The church asserts, however, that the continued absence of
Alamo's pastoral services is a separate, cognizable injury
following from the Commission's denial of parole. It is true
that the denial of parole has perpetuated the consequences of
Alamo's criminal conduct by causing him to remain in custo-
dy, whereas a grant of parole would have released him from
custody. As we have already explained, however, judicial
review of the Parole Commission's decision is a remedy for
Alamo to pursue through a habeas action. Casting Alamo's
continued incarceration in terms of its effect on the church is
a specious attempt to get around case law limiting the review
of parole decisions to habeas actions.

In any case, if we construe the continued absence of
Alamo's pastoral services following the Commission's denial
of parole as a separate injury, this injury still fails to satisfy
the requirements of Article III. As we asserted earlier, this
court has no power to grant parole, and, moreover, even if the
Commission were to grant Alamo's request for parole, it has
no control over whether, following his release, Alamo would

return to his former role as pastor of Alamo Church. Al-
though it is plain that Alamo's conviction initially disrupted
his pastoral relationship with Alamo Church, the church
simply presumes (and implicitly asks the court to presume)
that a grant of parole would restore it. See Appellants' Reply
Brief at 3. The burden rests on the plaintiff to "allege
specific, concrete facts demonstrating that the challenged
practices harm him, and that he personally would benefit in a
tangible way from the court's intervention." Warth v. Seldin,
422 U.S. 490, 508 (1975). The church has failed to meet this
burden here. Because it is purely speculative whether, fol-
lowing his release on parole, Tony Alamo would return as
pastor of Alamo Church, a third-party causation problem
remains. Cf. Allen v. Wright, 468 U.S. 737, 757-58 (1984)
(parents of black public school children charging that the IRS
had not fulfilled its obligation to deny tax-exempt status to
racially discriminatory schools lacked standing because "it is
entirely speculative ... whether withdrawal of a tax exemp-
tion from any particular school would lead the school to
change its policies"); Simon v. Eastern Kentucky Welfare
Rights Org., 426 U.S. 26, 42-43 (1976) (indigents injured by
denial of hospital services challenging an IRS decision to
exempt hospitals from taxation without regard to whether
they provided care to indigents lacked standing because the
connection between plaintiff's injuries and the IRS ruling was
"speculative" where the hospitals' denials of service could
"result from decisions made by the hospitals without regard
to the tax implications"). Even if we had specific information
addressing Alamo's intentions after his release from prison,
we doubt that this would amount to cognizable injury suffi-
cient to overcome jurisdictional objections to the church's law
suit. We need not tarry on this point, however, for it is clear
here that the church has failed to cite specific, concrete facts
to support its claim.

Alamo Church also asserts that it was stigmatized by the
Commission's decision denying Tony Alamo parole. Although
injury to an organization's reputation is sufficient in some
circumstances to support standing, see, e.g., Southern Mut.
Help Ass'n, Inc. v. Califano, 574 F.2d 518, 524 (D.C. Cir.
1977), the church's claim of reputational injury fails, on

several grounds, to provide a basis for Article III standing in
the instant case. First, we cannot find anything in the
Commission's actions supporting the church's claim that the
Commission's decision stigmatized the church. The Commis-
sion expressly stated that its decision was "made without
regard to the issue of whether or not [Tony Alamo's] religious
organization is accurately described as a 'cult'." Comm'n
Decision, App. 29. Indeed, the Commission distinguished
between the church itself and Tony Alamo's exploitation of
the church and its members in furtherance of the criminal
conduct for which he was convicted, holding that "[a]lthough
the religious organization [Tony Alamo] headed was clearly
genuine, and provided a real benefit to the community," its
decision was warranted "because of [Tony Alamo's] corrupt
conduct in the exploitation (financial, personal, and sexual) of
[his] religious followers, and [his] sophisticated effort to use
this religious organization as a cover to defraud the IRS."
Id.

Not only does the challenged decision appear to lack any
stigmatizing content on its face, but the church has failed to
show that any stigma which might be read into the Commis-
sion's decision would actually have any detrimental conse-
quences for Alamo Church. Purely speculative or conclusory
assertions of the consequences of the alleged stigma do not
satisfy the Supreme Court's requirement for specific, con-
crete facts demonstrating a particularized injury. See Block
v. Meese, 793 F.2d 1303, 1308 (D.C. Cir. 1986) (citing Warth v.
Seldin, 422 U.S. at 508).

In addition, the Supreme Court has made clear that reputa-
tional injury "accords a basis for standing only to those
persons who are personally denied equal treatment by the
challenged discriminatory conduct." Allen v. Wright, 468
U.S. at 755-56 (internal quotes and citation omitted). Under
this rule, only Tony Alamo, whom Appellants argue was
denied parole due to the Commission's allegedly discriminato-
ry decision, could assert reputational injury as a basis for
standing. Alamo Church's suggestion that any stigmatization
of Tony Alamo's relationship to his church also stigmatizes
the church itself and all of its members by virtue of their
relationship or common membership in the same group does

not provide the church with a basis for standing to challenge
the Commission's purportedly discriminatory treatment of
Tony Alamo. "If [such an] abstract stigmatic injury were
cognizable, standing would extend" beyond all reasonable
limits. Id. at 755-56.

III. Conclusion

For the reasons explained above, the District Court's deci-
sion dismissing the complaint is

Affirmed.