Citizens for Responsibility and Ethics in Washington v. U.S. Department of the Treasury, Internal Revenue Service

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON,

Plaintiff,
v. Civil Action No. 13-732 (JDB)
U.S. DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE
SERVICE, et al.,

Defendants.

MEMORANDUM OPINION

Citizens for Responsibility and Ethics in Washington ("CREW") has brought this action

against the Internal Revenue Service ("IRS") and the Acting Commissioner of the IRS. Under

the Administrative Procedure Act and the Internal Revenue Code ("Tax Code"), CREW

challenges defendants' refusal to initiate a rulemaking procedure to address a perceived conflict

between a provision of the Tax Code, 26 U.S.C. § 501(c)(4), and the IRS regulation that defines

organizations entitled to a tax exemption under that provision. CREW requests that the Court

declare defendants' refusal to grant CREW's rulemaking petition and to amend the IRS regulation

to be arbitrary, capricious, and contrary to law; enjoin defendants from implementing the

existing regulation; and issue a writ of mandamus compelling defendants to initiate a rulemaking

procedure to revise the existing regulation. Presently before the Court is [9] defendants' motion

to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the ground

that CREW lacks standing to bring this suit. Upon careful consideration of the motion and the

1
parties' memoranda, 1 the applicable law, and the entire record, and for the reasons set forth

below, the Court will grant defendants' motion.

BACKGROUND

Section 501(c)(4) of the Tax Code provides a tax exemption for organizations "not

organized for profit but operated exclusively for the promotion of social welfare." 26 U.S.C.

§ 501(c)(4)(A) (emphasis added). The promotion of social welfare "does not include direct or

indirect participation or intervention in political campaigns on behalf of or in opposition to any

candidate for public office." Treas. Reg. § 1.501(c)(4)-1(a)(2)(ii); accord Rev. Rul. 81-95, 1981-

1 C.B. 332. Organizations that qualify for a tax exemption under section 501(c)(4)—"501(c)(4)

organizations"—are not required to disclose the names of their donors to the public. Compl. ¶ 22

(citing 26 U.S.C. § 6104(b), (d)(3)). The IRS regulation promulgated to implement section

501(c)(4) defines the term "operated exclusively for the promotion of social welfare" to apply to

organizations that are

primarily engaged in promoting in some way the common good and general
welfare of the people of the community. An organization embraced within this
section is one which is operated primarily for the purpose of bringing about civic
betterments and social improvements.

Treas. Reg. § 1.501(c)(4)-1(a)(2)(i) (emphasis added). CREW alleges that, by defining

"operated exclusively for the promotion of social welfare" in this manner, the regulation

essentially substituted the word "primarily" for the statutory term "exclusively." Compl. ¶ 17.

"Groups claiming § 501(c)(4) status have interpreted the 'primary activity' requirement to mean

§ 501(c)(4) organizations can spend up to 49 percent of their total expenditures in a tax year on

campaign activities without such campaign activities constituting the 'primary' activity of the

organization." Id. ¶ 21. CREW asserts that, "[o]n information and belief, the IRS is aware of

1
Defs.' Mem. in Supp. of its Mot. to Dismiss for Lack of Jurisdiction [ECF No. 9-1] ("Defs.' Mot."); Pl.'s
Opp'n to Defs.' Mot. [ECF No. 25] ("Pl.'s Opp'n"); Defs.' Reply to Pl.'s Opp'n [ECF No. 26] ("Defs.' Reply").

2
this interpretation," id., and IRS policy directives support this interpretation, id. ¶ 19; Rev. Rul.

81-95, 1981-1 C.B. 332 (stating that "an organization may carry on lawful political activities and

remain exempt under section 501(c)(4) as long as it is primarily engaged in activities that

promote social welfare"). As a result, organizations that are "primarily engaged" in social

welfare can file under section 501(c)(4) and keep their donor information private, even if they

are participating in political campaigns. Id. ¶¶ 19, 22.

CREW is a non-profit, non-partisan corporation organized under section 501(c)(3) of the

Tax Code. Id. ¶ 5. "CREW is committed to protecting the rights of citizens to be informed

about the activities of government officials, ensuring the integrity of government officials, and

protecting the integrity of our political system against corruption." Id. "To advance its mission,"

CREW "disseminate[s] information to the public about public officials," with an emphasis on

"examining and exposing special interests that have influenced our elections and elected

officials." Id. ¶ 6. CREW contends that its efforts to fulfill its mission are hindered when

individuals and entities can keep their identities private. Id. ¶¶ 7, 10. Because CREW does not

have access to the donor information for 501(c)(4) organizations that participate in political

campaigns, it "must spend time and money attempting to ascertain the source of the contributions

through other means" that only provide "an extremely small fraction of the information." Id.

In 2011, two other non-profit, non-partisan organizations, Democracy 21 and the

Campaign Legal Center, 2 petitioned the IRS to issue a new regulation that conforms to section

501(c)(4) of the Tax Code. Id. ¶ 28. "When the IRS failed to take any action to address the

problems with its regulations," CREW filed its own rulemaking petition on April 9, 2013, that

incorporated the 2011 petition by reference. Id. ¶ 31. CREW's petition detailed how various

2
Democracy 21 and the Campaign Legal Center, as well as Congressman Chris Van Hollen and Public
Citizen, Inc., were, at one time, consolidated plaintiffs in this case. They have since voluntarily dismissed their
complaint. See Dec. 6, 2013 Notice of Voluntary Dismissal [ECF No. 23].

3
501(c)(4) organizations had spent millions of dollars in the 2012 election cycle. Id. ¶¶ 32-40.

CREW asserts that because the organizations making these contributions filed under section

501(c)(4), they are not required to disclose their donor information, allegedly resulting in a

"significant increase in the amount of 'dark' or anonymous money that is poured into ou[r]

political system," id. ¶ 42, and hindering CREW's ability to "examin[e] and expos[e] the special

interests that have influenced our elections and elected officials," id. ¶ 6.

On April 30, 2013, the IRS responded to CREW's petition for rulemaking,

acknowledging the "public interest in the issue" and stating that it would "consider proposed

changes in this area." Id. ¶ 43. CREW alleges that, to date, the IRS has neither acted on

CREW's petition nor "take[n] any other steps to alter or amend" the disputed portion of the

regulation, id. ¶ 47; Pl.'s Opp'n at 2, and that "[t]he IRS's refusal to act on [CREW's] petition for

rulemaking effectively constitutes a denial of that petition," Compl. ¶ 48. On May 21, 2013,

CREW brought this lawsuit against defendants, seeking a declaratory judgment, an injunction,

and a writ of mandamus. Defendants have now filed a motion to dismiss, arguing that CREW

lacks standing to bring this suit.

STANDARD OF REVIEW

On a motion to dismiss for lack of jurisdiction, "the allegations of the complaint should

be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Factual

allegations must be presumed true, and plaintiff must be given every favorable inference that

may be drawn from the allegations of fact. Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1113 (D.C. Cir. 2000). The Court need not, however, accept as true "a legal conclusion couched

as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint.

Papasan v. Allain, 478 U.S. 265, 286 (1986); accord Trudeau v. FTC, 456 F.3d 178, 193 (D.C.

4
Cir. 2006). "[W]here necessary, the court may consider the complaint supplemented by

undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus

the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.

Cir. 1992).

The Constitution limits this Court's subject-matter jurisdiction to "Cases" and

"Controversies" for which the plaintiff has standing to bring suit. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). "If a dispute is not a proper case or controversy, the courts

have no business deciding it, or expounding the law in the course of doing so." DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 341 (2006). "Though some of its elements express merely

prudential considerations that are part of judicial self-government, the core component of

standing is an essential and unchanging part of the case-or-controversy requirement of Article

III." Defenders of Wildlife, 504 U.S. at 561. At minimum, the plaintiff, who bears the burden of

establishing the elements of standing, "must allege personal injury fairly traceable to the

defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."

DaimlerChrysler, 547 U.S. at 342 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).

DISCUSSION

"The irreducible constitutional minimum of standing" has three requirements: (1) the

plaintiff must have suffered an injury-in-fact; (2) there must be a causal connection between the

injury and the conduct complained of; and (3) it must be likely that the injury will be redressed

by a favorable decision. Defenders of Wildlife, 504 U.S. at 560-61. Notably, "speculative

claims dependent upon the actions of third parties do not create standing." Gettman v. DEA, 290

F.3d 430, 435 (D.C. Cir. 2002). And here, where "the plaintiff is not himself the object of the

government action or inaction he challenges, standing is not precluded, but it is ordinarily

5
'substantially more difficult' to establish." Defenders of Wildlife, 504 U.S. at 562 (quoting

Allen, 468 U.S. at 758). CREW puts forth two arguments to support its constitutional standing.

First, it asserts that it has standing based on informational injury because defendants' refusal 3 to

engage in rulemaking regarding the disputed regulation has deprived CREW of donor

information for 501(c)(4) organizations that participate in political campaigns. Second, CREW

claims standing based on programmatic injury because defendants' refusal to engage in

rulemaking regarding the disputed regulation has impeded CREW's organizational mission.

Neither claim suffices to support standing.

I. STANDING BASED ON INFORMATIONAL INJURY

CREW alleges that, "[a]s a direct result of the challenged IRS regulation CREW seeks to

change through its rulemaking petition, CREW has been denied information to which it is

statutorily entitled." Pl.'s Opp'n at 3. Defendants challenge CREW's ability to satisfy all three

requirements for constitutional standing based on its alleged informational injury. 4 They argue

that CREW's alleged injury is not an injury-in-fact, but is hypothetical and speculative; that the

alleged injury is not fairly traceable to the disputed IRS regulation, but instead to the independent

decisions of third parties; and that the remedy CREW seeks would not redress its alleged injury.

The Court will analyze these arguments in turn.

3
As a general matter, CREW's allegation that defendants effectively "denied" its rulemaking petition by
taking no action does not automatically confer Article III standing. See Fund Democracy, LLC v. SEC, 278 F.3d
21, 27 (D.C. Cir. 2002) ("Participation in agency proceedings is alone insufficient to satisfy judicial standing
requirements."); Gettman, 290 F.3d at 433 ("The fact that Congress may have given all interested parties the right to
petition the agency does not in turn 'automatic[ally]' confer Article III standing when that right is deprived."). The
Court need not discuss this point in detail because CREW has clarified that it "is not basing its standing merely on
the fact that it submitted a rulemaking petition." Pl.'s Opp'n at 21.
4
Defendants also argue that CREW lacks prudential standing because its suit is not contemplated by the
Tax Code. Because the Court determines that CREW lacks Article III standing to bring this suit, it will not reach the
issue of prudential standing.

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 A. Injury-in-fact

An "injury-in-fact" sufficient to support standing is "an invasion of a legally protected

interest" that is "concrete and particularized, and . . . actual or imminent, not conjectural or

hypothetical." Defenders of Wildlife, 504 U.S. at 560. For a plaintiff to successfully claim

standing based on an informational injury, he must allege that he is directly deprived of

information that must be disclosed under a statute. ASPCA v. Feld, 659 F.3d 13, 23 (D.C. Cir.

2011) ("For purposes of informational standing, a plaintiff 'is injured-in-fact . . . because he did

not get what the statute entitled him to receive.'") (quoting Zivotofsky v. Sec'y of State, 444 F.3d

614, 618 (D.C. Cir. 2006)); accord Chiron Corp. v. NTSB, 198 F.3d 935, 942 (D.C. Cir. 1999).

Accordingly, a plaintiff "must espouse a view of the law under which the defendant (or the entity

it regulates) is obligated to disclose certain information that the plaintiff has a right to obtain."

ASPCA, 659 F.3d at 23. The focus of the Court's analysis here, then, is whether CREW has

alleged the existence of any statute that directly entitles it to the information it seeks: donor

information for 501(c)(4) organizations that participate in political campaigns. If not, CREW's

alleged injury is of the "conjectural or hypothetical" type that is insufficient to support standing.

Defenders of Wildlife, 504 U.S. at 560.

Defendants argue that CREW has failed to identify any law entitling it to the information

it desires. 5 CREW responds that 26 U.S.C. § 527, which provides a tax exemption for political

organizations and requires the disclosure of donor information for those organizations, entitles it

to the information it seeks. CREW's asserted interpretation of the law, then, is as follows: if the

IRS changed its regulation to conform to CREW's interpretation of section 501(c)(4) of the Tax

5
Defendants initially contend that the Federal Election Campaign Act ("FECA"), 2 U.S.C. § 431 et seq.,
and section 6104 of the Tax Code, 26 U.S.C § 6104, do not create a right to the information sought by CREW.
CREW clarifies in its opposition, however, that it is not relying on either FECA or section 6104 as the "source of its
right to donor information." Pl.'s Opp'n at 21 n.14.

7
Code's requirements, then organizations engaging in political campaign activities would no

longer qualify for a 501(c)(4) tax exemption and, consequently, would file under section 527 and

be required to disclose donor information. But the fatal flaw in CREW's interpretation, as

defendants point out, is that nothing requires the organizations in question to file under section

527. Rather, if those organizations no longer qualified for a tax exemption under section

501(c)(4), they would become taxable entities that could make one of several choices: remain

taxable 6; file under some other tax-exemption provision that does not require disclosure (e.g.,

sections 501(c)(5) or (6), which permit "some political campaign activity," Defs.' Reply at 12 n.

5); file under section 527; cease political campaign activities; or cease operations altogether.

Despite this flaw in its theory of injury, CREW nonetheless attempts to analogize the

facts here to those in FEC v. Akins, 524 U.S. 11 (1998). There, plaintiffs—a group of voters—

suffered an informational injury because, under plaintiffs' interpretation of a Federal Election

Campaign Act provision, the American Israel Public Affairs Committee was subject to certain

disclosure rules. Id. at 15-16. Similarly here, CREW argues, it has "asserted a concrete injury

flowing from its inability to access information [that] § 527 requires of tax-exempt groups

engaged in political activities." Pl.'s Opp'n at 20. However, unlike the plaintiffs in Akins whose

interpretation of the law required public disclosures from the American Israel Public Affairs

Committee, CREW cites no law or interpretation of law that automatically and directly applies

section 527's disclosure requirements to the 501(c)(4) organizations at issue. Instead, whether

these organizations are subject to section 527's disclosure requirements depends on the future

decisions of the organizations themselves, and such "speculative claims dependent upon the

actions of third parties do not create standing." Gettman, 290 F.3d at 435; see also

6
In support of the plausibility of this option, defendants indicate that 501(c)(4) organizations that engage in
political campaign activities are already required to pay taxes on their expenditures for those activities. Defs.' Reply
at 1 n. 1 (citing 26 U.S.C. § 527(f)(1) (subjecting 501(c)(4) organizations to income tax for campaign activities)).

8
DaimlerChrysler, 547 U.S. at 344 (finding an alleged injury to be hypothetical where it depends

on the independent decisions of third parties).

The question whether these 501(c)(4) organizations even qualify to file under section 527

adds another layer of speculation to CREW's theory of injury. Section 527 applies only to

political organizations, which are defined as organizations "primarily operated" for the purpose

of participating in political campaigns. 26 U.S.C. § 527(e)(1)-(2). In contrast, groups that file

under section 501(c)(4) must "primarily engage" in activities to promote "social welfare," which

"does not include direct or indirect participation or intervention in political campaigns." Treas.

Reg. § 1.501(c)(4)-1(a)(2)(i)-(ii). By regulatory definition, then, an organization that qualifies

for a tax exemption under section 501(c)(4) should not qualify for a tax exemption under section

527, because it cannot be both "primarily engage[d]" and "primarily operated" in two mutually

exclusive initiatives. Hence, CREW's theory of injury entails speculating not only that the

affected organizations would elect to file under section 527, but also that they would choose to

reorganize themselves to qualify to file under section 527. And although it is possible that some

501(c)(4) organization would make those choices, that possibility, which is based upon

speculation about the independent decisions of third parties not before this Court, does not create

a legal entitlement to the information CREW seeks. Hence, the necessary ingredient for

informational injury-in-fact is missing.

In sum, CREW has failed to allege an injury-in-fact because it puts forth no statute or

interpretation thereof that entitles it to the information sought. Accordingly, informational

standing is not proper here, where "plaintiff's view of the statute would not directly entitle it to

9
the information it seeks." 7 ASPCA, 659 F.3d at 24. Although CREW has failed to allege an

injury-in-fact, and thus lacks Article III standing, the Court will nonetheless analyze the other

standing elements, which the parties have fully briefed.

B. Causal connection

For an alleged injury to support standing, it must be "'fairly . . . trace[able] to the

challenged action of the defendant, and not . . . th[e] result [of] the independent action of some

third party not before the court.'" Defenders of Wildlife, 504 U.S. at 560 (quoting Simon v.

Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). Moreover, "a party seeking

federal jurisdiction cannot rely on . . . speculative inferences . . . to connect his injury to the

challenged actions of the defendant." DaimlerChrysler, 547 U.S. at 346 (internal quotation

marks and citation omitted). Here, CREW argues that its inability to access donor information

for 501(c)(4) organizations engaged in political campaign activities is directly traceable to

defendants' alleged failure to reconcile the IRS regulation "with the Tax Code's requirement that

501(c)(4) groups be operated 'exclusively' for the promotion of social welfare." Pl.'s Opp'n at 24.

In response to defendants' contention that CREW's claims are speculative, CREW states that "it

is a certainty that many § 501(c)(4) groups engaging in significant political activities would seek

to retain their tax-exempt status by establishing or affiliating with a tax-exempt group under

§ 527." Id. at 24-27 ("It is hardly a matter of speculation . . . that at least some of the tens of

thousands of existing § 501(c)(4) organizations will establish or affiliate with political

organizations under § 527(f) of the Tax Code if they are required to engage exclusively in the

7
CREW also argues that its "standing to sue is further buttressed by the procedural harm it has suffered
from the IRS's refusal to act on CREW's rulemaking petition." Pl.'s Opp'n at 21. To support this claim, CREW
states that, "as a litigant to whom Congress has accorded a procedural right to protect [its] concrete interests[,] . . .
here, the right to challenge agency action unlawfully withheld[,] . . . [CREW] can assert that right when it has
suffered an injury in fact." Id. (internal quotations and citation omitted). As discussed above, however, CREW has
not asserted an injury-in-fact because it has failed to identify a law or an interpretation thereof that entitles it to the
information it seeks.

10
promotion of social welfare."). In other words, CREW insists, if not for the disputed IRS

regulation, the organizations in question would have filed under section 527 and thus been

required to disclose the donor information CREW seeks. This argument, however, does not

move beyond speculation about "the independent action of some third party not before the

court." Defenders of Wildlife, 504 U.S. at 560 (quoting Simon, 426 U.S. at 41-42). As

discussed in the previous section, the organizations in question decide whether to file for an

exemption under section 501(c)(4), section 527, some other provision, or not at all. And

organizations currently filing under section 501(c)(4) would not even qualify to file under

section 527 unless they changed the composition of their activities.

In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1917), indigent

patients challenged the availability of a certain tax exemption to hospitals that refused to provide

care to indigent patients at less than full cost. The asserted causal connection between the

alleged injury—the denial of lower cost medical services—and the challenged tax exemption

was insufficient to support standing because it depended on the independent decisions of

hospitals whether to change their policies. Id. 40-46. Here, defendants argue that "[i]t would be

similarly speculative to conclude that the actions of groups claiming exemption under section

501(c)(4) 'can be fairly traced' to the regulation at issue here, rather than to these groups' own

independent choices." Defs.' Mot. at 13-14.

CREW attempts to differentiate the facts of this case from those in Simon, arguing that

there is less uncertainty here because "virtually all § 501(c)(4) organizations are dependent on

the special tax benefits they derive from § 501(c)(4)," which, "in turn, provides a comfortable

level of certainty [that] most, or at least many, of these groups would not forego favorable tax

treatment in order to participate in the political process." Pl.'s Opp'n at 28. However, even if we

11
assume that the affected organizations are primarily concerned about tax treatment, it remains

plausible that they would elect to file under another tax-exemption provision instead of section

527. Moreover, the primary concern of many of these organizations may be to maintain the

privacy of their donor information rather than benefit from favorable tax treatment, and since

these organizations are already subject to income tax on their political campaign activities, see

26 U.S.C. § 527(f)(1), it is plausible that many of these groups would choose to proceed as

taxable entities if they did not qualify to file under section 501(c)(4).

In addition to the decisionmaking required of the 501(c)(4) organizations at issue, the

organizations' donors may also play an important decisionmaking role. If an organization that

participates in political campaigns no longer had the option to file under section 501(c)(4), its

donors who wished to remain anonymous could pressure the organization to maintain a filing

status that permits donor privacy and, failing that, could choose to redirect their contributions to

an organization that is not subject to donor disclosure requirements. To support CREW's theory

of causation, then, we must speculate not only about the choices of the affected organization, but

also about how those choices may affect their donor's choices and vice versa. These layers of

assumptions make CREW's causation theory especially speculative. Indeed, "[t]he greater the

number of uncertain links in a causal chain, the less likely it is that the entire chain will hold

true." Florida Audubon Soc. v. Bentsen, 94 F.3d 658, 670 (D.C. Cir. 1996).

CREW endeavors to bolster its causation theory by proffering examples of section

501(c)(3) organizations that have established related organizations under sections 501(c)(4) and

527 to engage in political campaigns, as well as examples of 501(c)(4) organizations that

"associate[] with" 527 organizations to participate in political campaigns. Pl.'s Opp'n at 25.

These examples, however, do not obviate the speculation inherent in CREW's theory of

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causation. CREW also provides an example of a 501(c)(4) organization that chose to file under

section 527 after its 501(c)(4) status was revoked, which is more relevant, but that single

example still fails to show that CREW's alleged injury is "'fairly . . . trace[able] to the challenged

action of the defendant, and not . . . th[e] result [of] the independent action of some third party

not before the court.'" Defenders of Wildlife, 504 U.S. at 560 (quoting Simon, 426 U.S. at 41-

42); see also Allen, 468 U.S. at 759 (finding a chain of causation too weak to support standing

because it involved the independent decisions of third parties). Accordingly, CREW has not

sufficiently shown the causation needed to support standing.

C. Redressability

To meet the last element of standing, it must be "likely," as opposed to "merely

speculative," that the alleged injury—here, CREW's inability to access donor information for

certain 501(c)(4) organizations—will be "redressed by a favorable decision." Defenders of

Wildlife, 504 U.S. at 560-61. Redressability "examines the causal connection between the

alleged injury and the judicial relief requested." Allen, 468 U.S. at 753 n. 19. "[T]he relief

CREW seeks . . . [is] that the IRS be compelled to 'initiate a rulemaking procedure to harmonize

the IRS regulations with the clear and unambiguous statutory language.'" 8 Pl.'s Opp'n at 30

(citing Compl., Prayer for Relief ¶ 3). CREW contends that "the right to a rulemaking

proceeding addressing the conflict between the IRS's current regulations governing § 501(c)(4)

organizations and the Tax Code" will "make it a possibility—and CREW submits a near

certainty—any reasoned rulemaking procedure will result in the IRS reconsidering its

regulations." Id. Still, because CREW's alleged injury is not directly connected to the regulation

8
In addition to a writ of mandamus to compel defendants to initiate a rulemaking procedure, CREW has
also requested declaratory and injunctive relief. CREW, however, bases its argument for standing solely on
mandamus relief. See Opp'n at 30. Nonetheless, giving CREW every favorable inference, declaratory and
injunctive relief would not remedy CREW's alleged injury for the same reason that mandamus relief would not:
remedying CREW's injury is contingent on the independent decisions of third parties.

13
at issue, but rather to the independent decisions of third parties, the relief requested is not itself

"likely" to remedy CREW's alleged harm. Compare Defenders of Wildlife, 504 U.S. at 568

(finding no redressability where the requested court order would not bind the decisions of third

party actors necessary to the requested relief); DaimlerChrysler, 547 U.S. at 350 (finding no

redressability where the requested injunction would not remedy the alleged injury without the

independent actions of a state government); and Nat'l Wrestling Coaches Ass'n v. Dep't of Educ.,

366 F.3d 930, 939 (D.C. Cir. 2004) (finding no redressability where the requested invalidation of

a challenged policy would not remedy the alleged injury without the independent decisions of

educational institutions) with Neighborhood Assistance Corp. of America v. CFPB, 907 F. Supp.

2d 112, 123 (D.D.C. 2012) (finding redressability where requested relief would not give

discretion to third party decisionmakers).

CREW asserts that it is subject to a "more relaxed" standard of redressability because it is

requesting procedural relief. Pl.'s Opp'n at 29 (claiming that CREW "has standing if there is

some possibility that the requested relief will prompt the injury-causing party to reconsider the

decision that allegedly harmed the litigant") (citing Massachusetts v. EPA, 549 U.S. 497, 518

(2007)). Here, however, even if the IRS implemented CREW's requested modification to the

disputed regulation, the organizations in question could still choose to file for a tax exemption

under another subsection of 501 that does not require donor disclosure or choose not to file at all,

and donors who wish to remain anonymous could choose to donate only to organizations that do

not disclose donor information. Even under CREW's "more relaxed" standard, then, it is not any

more "likely," as opposed to "merely speculative," that a favorable decision by the IRS would

remedy CREW's alleged injury. Defenders of Wildlife, 504 U.S. at 560-61. Hence, CREW fails

to demonstrate redressability to support standing.

14
 II. STANDING BASED ON PROGRAMMATIC INJURY

CREW alleges that it suffered an "additional injury" when the IRS "refus[ed] to grant its

rulemaking petition" because that action "impeded CREW in carrying out its core activities."

Pl.'s Opp'n at 22. 9 A plaintiff organization may establish standing if it can show that the

defendant's actions cause a "concrete and demonstrable injury to the organization's activities"

that is "more than simply a setback to the organization's abstract social interests." Havens Realty

Corp. v. Coleman, 455 U.S. 363, 379 (1982) (finding that a plaintiff organization had an injury-

in-fact where "racial steering" practices "perceptibly impaired" the organization's ability "to

provide counseling and referral services for low- and moderate-income homeseekers").

Specifically, the "organization must allege that discrete programmatic concerns are being

directly and adversely affected by the challenged action." Nat'l Taxpayers Union, Inc. v. United

States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) (internal quotation marks and citation omitted).

Hence, programmatic injury arises only from "a direct conflict between the defendants' conduct

and the organization's mission." Nat'l Treas. Emps. Union v. United States, 101 F.3d 1423, 1430

(D.C. Cir. 1996).

Here, CREW has not suffered a programmatic injury because the challenged conduct—

defendants' refusal to engage in rulemaking—is not in direct conflict with CREW's

organizational mission to "examin[e] and expos[e] special interests that have influenced our

elections and elected officials," Compl. ¶ 6. CREW asserts that defendants' refusal to initiate

rulemaking impeded CREW's organizational activities because it "made it more difficult and

frequently impossible" for CREW to access the donor information it desires. But as discussed

earlier, CREW's inability to access that donor information is not fairly traceable to defendants'

9
Although CREW does not frame this "additional injury" as a separate standing argument, the Court must
give CREW every favorable inference and thus will analyze this claim as another possible ground for standing. See
Sparrow, 216 F.3d at 1113.

15
refusal to engage in rulemaking. Accordingly, that refusal is not in direct conflict with CREW's

organizational mission. And CREW's alleged programmatic injury is similarly not fairly

traceable to defendants' refusal to initiate rulemaking, and not redressable by the relief requested.

Hence, CREW also fails to establish standing based on programmatic injury.

CONCLUSION

For the foregoing reasons, defendants' motion to dismiss will be granted. A separate

Order accompanies this Memorandum Opinion.

/s/
JOHN D. BATES
United States District Judge
Dated: February 27, 2014

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