JAMES A. BAKER, III, SECRETARY OF THE TREASURY, AND JAMES I. OWENS, ACTING COMMISSIONER OF INTERNAL REVENUE, PETITIONERS V. ABORTION RIGHTS MOBILIZATION, INC., ET AL. No. 86-157 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit The Solicitor General, on Behalf of James A. Baker, III, Secretary of the Treasury, and James I. Owens, Acting Commissioner of Internal Revenue, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case. PARTIES TO THE PROCEEDING Lawrence Lader, Harold W. Bostrom, Margaret O. Strahl, M.D., Helen W. Edey, M.D., Ruth P. Smith, National Women's Health Network, Inc., Long Island National Organization for Women-Nassau Inc., Rabbi Israel Margolies, Reverend Bea Blair, Rabbi Balfour Brickner, Reverend Robert Hare, Reverend Marvin G. Lutz, Laurel Clinic, Inc., Milan M. Vuitch, M.D., Women's Center for Reproductive Health, The Federation of Feminist Women's Health Centers, Inc., Harrisburg Reproduction Health Services, Inc., Hagerstown Reproductive Health Services, Inc., Women's Health Services, Inc., Jane C. Delgado, Jennie Rose Fifrieri, Eileen Walsh, Patricia Sullivan Luciano, Marcella Michalski, Chris Niebrzydowski, Judith A. Seibel, Karen DeCrow and Susan Sherer are also plaintiffs in the district court and respondents here. TABLE OF CONTENTS Parties to the proceeding Opinions below Jurisdiction Constitutional and statutory provisions involved Question presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The order of the court of appeals (App., infra, 1a-2a) is unreported. The July 15, 1985, opinion of the district court denying certification for interlocutory appeal (App., infra, 56a-58a) is unreported. The first opinion of the district court denying certification for interlocutory appeal (App., infra, 42a-45a) is reported at 552 F.Supp. 364. The opinions of the district court denying the motion to dismiss (App., infra, 46a-55a, 3a-41a) are reported at 603 F. Supp. 970 and 544 F. Supp. 471, respectively. The opinion of the district court on contempt (App., infra, 59a-66a) is unreported. JURISDICTION The order of the court of appeals denying a writ of mandamus or prohibition was entered on January 14, 1986. A petition for rehearing was denied on March 3, 1986. On May 27, 1986, Justice Marshall extended the time within which to file a petition for a writ of certiorari to and including July 31, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article III, Section 2, of the Constitution provides: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; -- to all Cases affecting Ambassadors, other public Ministers and Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to Controversies to which the United States shall be a party; -- to Controversies between two or more States; -- between a State and Citizens of another State; -- between Citizens of different States, -- between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 28 U.S.C. 1651(a) provides: The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. QUESTION PRESENTED Whether the court of appeals should have ordered the district court to dismiss, on the grounds of lack of standing, a suit by various individuals and organizations for declaratory and injunctive relief requiring the government to revoke the tax exemption of the Roman Catholic Church. STATEMENT 1. Respondents, various individuals and tax-exempt organizations who support the availability of legal abortion (see App., infra, 4a-6a), instituted this suit against petitioners in the United States District Court for the Southern District of New York. Respondents sought declaratory and injunctive relief requiring petitioners, the Secretary of the Treasury and the Commissioner of Internal Revenue, to revoke the tax exemption of the Roman Catholic Church on the ground that the Church's alleged lobbying activity and intervention of political campaigns in opposition to legal abortion rendered the Church ineligible for exempt status under Section 501(c)(3) of the Internal Revenue Code. /1/ Section 501(c)(3) organizations are exempt from income tax and contributions made to them are generally deductible. See I.R.C. Section 170. The suit also named as defendants the United States Catholic Conference (USCC) and the National Conference of Catholic Bishops (NCCB), the two principal national organizations of the Roman Catholic Church in the United States. The district court, however, ruled that the complaint failed to state a claim against the church organizations because they were entitled to rely upon tax exemptions granted by the government. Accordingly, the church organizations were dismissed as defendants. App., infra, 32a-33a, 40a. Respondents alleged that the USCC and the NCCB are lobbying, electioneering, and using tax-deductible contributions in a nationwide campaign to outlaw abortion. They further alleged that petitioners are aware that these activities exceed the limitations placed by the Code on organizations classified as tax-exempt under Section 501(c)(3), but have failed to enforce those limitations. Respondents sought declaratory relief in the form of a declaration that the political activities of the Church and the inaction of the government violated the Constitution and the Internal Revenue Code. In addition, they requested that a mandatory injunction issue against petitioners directing them to revoke the tax exemption of the USCC and the NCCB, to assess and collect all taxes thereby due, and to notify donors that contributions to the Church are not tax-deductible. App., infra, 9a. 2. Petitioners moved to dismiss the suit on the ground that the respondents lacked standing to sue for the relief requested. The district court denied that motion (App., infra, 3a-41a). It held that each of the respondents had standing to maintain the suit under one or both of two theories. a. First, the court held that the individual respondents who were members of the clergy /2/ and the church-affiliated Women's Center for Reproductive Health had "establishment clause standing" to sue (App., infra, 11a-18a). The court explained that these respondents had asserted "compelling and personalized injuries flowing from the tacit government endorsement of the Roman Catholic Church position on abortion that are sufficient to confer standing on them to complain of the alleged establishment clause violations" (id. at 16a). The court stated that the religious duties of the clergy members included "counsel(ing) those in their care in accordance with religious laws that command consideration of abortion as the morally required response to pregnancy" (id. at 16a-17a (footnote omitted)) and noted that the Women's Center "provides guidance to women in decisionmaking on issues pertaining to family life, including childbearing" (id. at 17a). The court found that this "religiously inspired mission is denigrated by government endorsement of a theology contrary to its guiding principles" (ibid.). The court concluded that these respondents had asserted "discrete spiritual injury" because "official approval of an orthodoxy antithetical to their spiritual mission diminishes their position in the community, encumbers their calling in life, and obstructs their ability to communicate effectively their religious message" (ibid.). /3/ The district court also held that all of the individual respondents and three organizations, as representatives of their individual members, /4/ had "voter standing" to challenge "alleged government action which had improperly biased the political process against the discrete group to which they belong" (App., infra, 18a-23a). In the district court's view, the plaintiff's allegations showed that the continuation of a tax exemption for the Catholic Church distorted the electoral and legislative process by creating a system in which members of the public have greater incentive to donate funds to the Roman Catholic Church than to politically active abortion rights groups and in which "each dollar contributed to the church is worth more than one given to non-exempt organizations" (id. at 22a). Thus, the court concluded that "plaintiffs have alleged government action which has improperly biased the political process against the discrete group to which they belong" (id. at 21a) and therefore that the plaintiffs in question had "voter standing" under Baker v. Carr, 369 U.S. 186 (1962), to challenge the tax exemption of the Roman Catholic Church. /5/ Finally, the court held that no prudential concerns were applicable that would counsel against judicial resolution of respondents' grievances (App., infra, 25a-28a). 3. The district court denied the government's motion to certify the case for interlocutory appeal under 28 U.S.C. 1292(b) (App., infra, 42a-45a). The court stated that the case did not meet the statutory requirement of "involv(ing) a controlling issue of law as to which there is substantial ground for difference of opinion" (28 U.S.C. 1292(b)), explaining that the standing question "does not concern a dispute or disagreement as to the applicable law, but instead it involves whether the court's application of the decided and governing case law to the relevant facts is appropriate" (App., infra, 45a). Subsequently, this Court held in Allen v. Wright, 468 U.S. 737 (1984), that a nationwide class of black parents lacked standing to challenge the tax exemption of private schools that allegedly discriminated on the basis of race. The government renewed its motion to dismiss for lack of standing in light of Allen, and the district court denied the renewed motion (App., infra, 46a-55a). The court stated that Allen held merely that the denigration felt by black parents because tax exemptions were extended to schools that discriminated could not confer standing; in the court's view, this holding had no application here where the plaintiffs' contention centered on "the quasi-official imprimatur accorded the anti-abortion activities of the Church through tax exemptions and the restrictions placed on the * * * plaintiffs' political activities by Section 501(c)(3)" (App., infra, 50a). The court also held that Allen did not affect its prior opinion upholding "voter standing" in this case. Finally, the court reitereated its earlier conclusion that prudential standing concerns did not preclude the plaintiffs from proceeding with this suit. Thereafter, the court again denied a motion to certify the standing question for interlocutory appeal under 28 U.S.C. 1292(b) (App., infra, 56a-58a). Petitioners then petitioned the court of appeals for a writ of mandamus or prohibition directing the district court to dismiss the complaint for lack of standing. The court denied the petition in a one-sentence order that does not specify the grounds for its decision (App., infra, 1a-2a). 3. Respondents are currently seeking detailed discovery of information concerning the alleged lobbying and electioneering activities of the church and its tax-exempt status (see C.A. App. 164-169, 200-201). To that end, they have requested production of documents by the petitioners /6/ and also the production of voluminous records by the USCC and the NCCB. Among the latter documents requested to be produced are those relating to the formulation and interpretation of the bishops' position on abortion, all records relating to church officials' contacts with 1976 presidential candidates and all other candidates for public office in the United States, information regarding the financial relationships between Catholic institutions and clergy and right-to-life organizations, and all returns, records, and correspondence with the Internal Revenue Service (IRS) regarding the tax exemption. /7/ Respondents have indicated their intention to depose high-ranking church officials, including cardinals and archbishops (C.A. App. 200-201), and have also sought disclosure of the identities of bishops and directors of pro-life activities in 18 dioceses and of presidents and executive secretaries of Catholic Conferences in 18 states (C.A. App. 166). The district court initially denied the motion of the USCC and the NCCB to quash the subpoenas, but compliance was held in abeyance while petitioners' renewed motion to dismiss was pending before the court (C.A. App. 222). On June 18, 1985, after the denial of the renewed motion to dismiss, respondents moved to hold the USCC and the NCCB in contempt for failure to comply with the subpoenas (C.A. App. 232-237), and on June 26, 1985, the USCC and the NCCB cross-moved for a protective order deferring compliance until the exhaustion of petitioner's attempts to obtain interlocutory review of the jurisdictional issues (C.A. App. 238-242). On September 5, 1985, the district court ordered enforcement of the subpoena with respect to all documents sought except for the minutes of meetings of the USCC and the NCCB, as to which respondents were ordered to narrow their request. Although the court declined to hold the USCC and the NCCB in contempt at that time, it invited plaintiffs to renew their contempt motion in the event the USCC and the NCCB failed to produce the requested documents forthwith. On May 8, 1986, the district court granted a renewed motion by respondents to hold the USCC and the NCCB in contempt for failure to comply with those discovery orders and imposed fines totalling $100,000 per day (App., infra, 59a-66a). USCC and NCCB appealed, and, on May 14, 1986, the court of appeals stayed that contempt order pending appeal and set an expedited briefing schedule. The parties have completed briefing the appeal, in which petitioners and the USCC and the NCCB have argued that the district court has no jurisdiction over the suit because the plaintiffs lack standing, and oral argument was heard on June 25, 1986. The court of appeals has not yet issued its decision. REASONS FOR GRANTING THE PETITION In allowing the district court to proceed to trial in this case despite its manifest lack of jurisdiction, the court of appeals has permitted the exercise of a role for the judiciary that exceeds the Article III limitations delineated by this Court in several recent decisions. There can be little doubt, in light of Allen v. Wright, 468 U.S. 737 (1984), Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), and Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982), that respondents lack standing to pursue this suit to compel petitioners to revoke the tax exemption of the Roman Catholic Church. Thus, the continuation of this lawsuit, involving burdensome discovery that will intrude deeply into the internal procedures of the agency charged with administering the tax laws and the internal activities of one of the Nation's major religious groups and inevitably will produce serious challenges to the confidentiality of information provided to federal tax authorities, sharply conflicts with constitutional principles well established by this Court and threatens to interject the judiciary into an arena reserved for the Executive Branch. 1. It is well established that in order to have standing to maintain a lawsuit a plaintiff must "'allege( ) such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf" (Warth v. Seldin, 422 U.S. 490, 498-499 (1975) (emphasis in original), quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). The standing requirement has both constitutional and prudential aspects. The "core component" of standing, derived directly from the "cases" or "controversies" requirement of Article III of the Constitution, requires the plaintiff to "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief" (Allen v. Wright, 468 U.S. at 751). In addition to these constitutional requirements, this Court has also recognized that prudential considerations must inform the determination whether a plaintiff is entitlted to invoke the jurisdiction of a federal court to adjudicate a grievance. These considerations include "the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked." Ibid. On several occasions in recent years, the Court has reaffirmed these basic standing principles and emphasized that they ordinarily deny access to the federal courts to plaintiffs who seek to litigate the claim that the government is failing to enforce its laws -- in particular, laws relating to tax exemptions -- against a third party. Most recently, in Allen v. Wright, supra, the Court held that the parents of black public school children lacked standing to challenge the tax-exempt status of allegedly discriminatory private schools. Their first claim was that, because the grant of a tax exemption constituted an indirect subsidy for the discriminatory schools, they were directly harmed by the failure of the government to revoke those exemptions (468 U.S. at 752). The Court held that such a claim of injury was not judicially cognizable because "'(a)ssertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning'" (468 U.S. at 754 (quoting Valley Forge, 454 U.S. at 483)). To the extent that the alleged injury was a "stigmatic injury, or denigration, suffered by all members of a racial group when the Government discriminates on the basis of race" (468 U.S. at 754 (footnote omitted)), the Court held that "such injury accords a basis for standing only to 'those persons who are personally denied equal treatment' by the challenged discriminatory conduct" (468 U.S. at 755, quoting Heckler v. Mathews, 465 U.S. 728, 740 (1984)). The Court also rejected the plaintiffs' claim that they had standing because the government's administration of the tax laws "diminished (their children's) ability to receive an education in a racially integrated school" (468 U.S. at 756). The Court explained that the line of causation between the government's enforcement of the tax laws and the desegregation of plaintiffs' schools was far too weak; it was sheer speculation whether the withdrawal of tax exemptions would have any effect on school desegregation (id. at 758). In Simon v. Eastern Kentucky Welfare Rights Organization, supra, this Court also found no standing to litigate whether the government was properly enforcing the tax laws against other persons. A group of indigent plaintiffs had sued Treasury officials to challenge a Revenue Ruling that allowed nonprofit hospitals to qualify for tax exemption under Section 501(c)(3) even if they provided only emergency room services to the indigent. This Court held that the plaintiffs' allegations of injury in the form of the denial of services by these hospitals did not confer standing because it was "purely speculative" whether the alleged injury could fairly be traced to the government's tax enforcement action "or instead result(s) from decisions made by the hospitals without regard to the tax implications" (426 U.S. at 42-43). And in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., supra, the Court held that the plaintiffs lacked standing to challenge the conveyance of surplus federal property to sectarian institutions because they "fail(ed) to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees" (454 U.S. at 485 (emphasis in original)). These decisions demonstrate that the plaintiffs in the instant case lack standing to challenge the tax exemption of the Catholic Church. a. The district court's ruling that the individual clergy members and the church-affiliated Women's Center for Reproductive Health have "establishment clause standing" cannot be squared with this Court's precedent. The district court itself acknowledged that most of the individual plaintiffs, despite their special interest in pro-abortion views and candidates, suffered no personalized injury from the government's alleged favorable treatment of the Catholic Church. There is no basis for the court's seemingly contradictory conclusion that the clergy plaintiffs nevertheless had suffered such injury. Their alleged injury was a "denigration" (App., infra, 16a, 17a) stemming from the perceived favoritism toward another religion that has views on abortion diametrically opposed to those of the clergy plaintiffs. It is clear from Allen that this type of stigmatic injury cannot confer standing. See 468 U.S. at 754-755. The fact that clergymen may be more sensitive to this perceived favoritism for another religion is irrelevant; standing "is not measured by the intensity of the litigant's interest or the fervor of his advocacy" (Valley Forge, 454 U.S. at 486). The clergy plaintiffs here have not alleged that they have "suffered as a direct result of having personally been denied equal treatment" (Allen v. Wright, 468 U.S. at 755). Like the plaintiffs in Valley Forge, the clergy plaintiffs fail "to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees" (454 U.S. at 485 (emphasis in original)). Plainly, their ability to minister to their congregations and to preach to them that their religion "command(s) consideration of abortion as the morally required response to pregnancy" (App., infra, 16a-17a) is not adversely affected by the challenged government conduct and would not be enhanced at all if the plaintiffs were to receive the relief that they seek. In short, the clergy plaintiffs, like the other respondents, simply seek to obtain "consistent enforcement of the tax laws" (id. at 50a). As the Court stated in Allen, "(r)ecognition of standing in such circumstances would transform the federal courts into 'no more than a vehicle for the vindication of the value interests of concerned bystanders'" (468 U.S. at 756, quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687 (1973)). b. The district court's holding that the respondents have "voter standing" is equally unsupportable. In the words of the district court, the nature of the injury suffered by respondents was as follows (App., infra, 22a): Plaintiffs claim that allegedly unconstitutional government conduct and illegal private conduct have distorted the electoral and legislative process by creating a system in which members of the public have greater incentive to donate funds to the Roman Catholic Church than to politically active abortion rights groups and in which each dollar contributed to the church is worth more than one given to non-exempt organizations. As the district court acknowledged (id. at 21a), it is clear that respondents' complaint has nothing whatsover to do with diminished representation or voting; hence, there is no basis for "voter standing," and reliance on Baker v. Carr, supra, is wholly misplaced. Rather, the court found that there was a "distortion" of the political process inherent in the availability of a tax exemption for donations made to the Church, but not for donations made to politically active abortion rights groups (App., infra, 22a). This notion of "candidate" or "campaign contributor" standing is unavailing because, even under this theory, respondents cannot demonstrate a direct personal injury caused by the alleged government misconduct. See Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir.), cert. denied, 446 U.S. 929 (1980) (Kennedy supporters lacked standing to raise claim that their candidate had been harmed by the incumbent administration's allegedly illegal expenditure of government funds to benefit the renomination of President Carter). Even if one assumes that the injury asserted -- a "distortion" of the political process -- is sufficiently distinct and palpable process -- is sufficiently distinct and palpable to satisfy Article III, the injury can confer standing only if it "fairly can be traced to the challenged action of the defendant, and not * * * (to) the independent action of some third party not before the court" (Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. at 41-42). Examination of the chain of causation here clearly indicates that the link between the challenged government action and the respondents' supposed disadvantaged status in the abortion controversy is too uncertain to support standing. As was the case in Eastern Kentucky (see 426 U.S. at 42-43), it is purely speculative whether contributors to the Roman Catholic Church base their decisions to give in any significant way upon the tax implications of their contributions. Charitable contributions, after all, derive from a variety of motives, which may or may not include tax planning. Further, any tax benefit involved comes, for the most part, in the form of an itemized deduction, making it a matter of little moment to the vast number of taxpayers who do not itemize their deductions. /8/ The improvement of respondents' position in the abortion controversy depends upon the independent actions of numerous third persons not before the district court. Thus, the injury alleged by the plaintiffs is neither fairly traceable to the challenged government action nor likely to be redressed by the relief they seek (see Allen, 468 U.S. at 758). Accordingly, respondents do not have a sufficient stake in the subject of the proper enforcement of the tax laws against the Roman Catholic Church to meet the Article III "cases" or "controversies" requirements. They lack Article III standing, and hence the district court would exceed the constitutional limitations on its jurisdiction if it proceeds to try this case. c. Quite apart from the fact that respondents' suit fails to meet the constitutional prerequisites for federal court jurisdiction, it is manifest that respondents lack standing under the prudential limitations on standing that have been identified by this Court. As in Allen v. Wright, supra, respondents seek to compel the Executive Branch to undertake a nationwide review of the activities of a tax-exempt organization to determine whether it continues to qualify for exemption. But suits challenging an Executive agency's enforcement program, even when "premised on allegations of instances of violations of law," are "rarely if ever appropriate for federal-court adjudication" (468 U.S. at 759-760). And the Court has recently emphasized that a suit to compel an agency to undertake a specific enforcement inquiry is particularly unsuitable for judicial resolution: First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities. Heckler v. Chaney, No. 83-1878 (Mar. 20, 1985), slip op. 10. This case starkly illustrates the magnitude of the potential intrusion into executive functions that the district court has endorsed. The Catholic Church consists of tens of thousands of individual entities -- parishes, dioceses, schools, hospitals, etc. -- that for administrative purposes fall under the "umbrella" exemption given to the USCC. The plaintiffs here seek to compel a massive, nationwide inquiry under the aegis of the district court into the IRS's decisions with regard to the tax-exempt status of a multitude of entities. The administration of the tax laws presents a particularly strong case for refusal by the courts to hear such claims because Congress has established a detailed mechanism concerning tax enforcement by the Executive. Section 7801(a) of the Code provides that "the administration and enforcement" of the tax laws is vested exclusively in the Secretary of the Treasury, and Section 7805(a) of the Code grants the Secretary authority to "prescribe all needful rules and regulations" attendant to that task. In addition, the Secretary is authorized and required "to make the inquiries, determinations, and assessments of all taxes" (I.R.C. Section 6201(a)), and his findings of fact and decisions on the merits in allowing refund claims are not reviewable by any other administrative or accounting officer of the United States, absent fraud or an arithmetical mistake (I.R.C. Section 6406). Moreover, no civil action by the government for the recovery of taxes can be commenced "unless the Secretary authorizes or sanctions the proceedings and the Attorney General or his delegate directs that the action be commenced" (I.R.C. Section 7401). Finally, Congress has reserved to itself the task of overseeing the enforcement of the internal revenue laws by creating a Joint Committee on Taxation to investigate the administration, operations and effects of the tax system (I.R.C. Sections 8001-8023). Congress has also limited judicial review of tax matters by establishing a comprehensive statutory scheme providing specific avenues for adjudication of tax disputes, specifically barring strike suits that would attempt to interfere with the orderly administration of the tax code (see I.R.C. Section 7421 and 28 U.S.C. 2201). That carefully crafted scheme of limited judicial review plainly reveals that the fundamental question of prudential standing -- "whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief" (Warth v. Seldin, 422 U.S. at 500) -- must be answered in the negative. Congress has authorized taxpayers to bring deficiency actions in the Tax Court to obtain review of asserted deficiencies in income, gift and estate taxes without first having to pay the amount in dispute (I.R.C. Sections 6212, 6213). Alternatively, Congress has permitted a taxpayer to file a suit for refund of his taxes in a federal district court or in the Claims Court (I.R.C. Sections 6532, 7422; 28 U.S.C. 1346, 1491). Finally, although Congress has generally barred declaratory relief in action "with respect to federal taxes" under the Declaratory Judgment Act, 28 U.S.C. 2201, it has permitted an organization which is the subject of a determination by the Secretary regarding its initial or continuing qualification for tax-exempt status to seek a declaratory judgment regarding its classification in the Claims Court, the Tax Court or the District Court for the District of Columbia (I.R.C. Section 7428). Significantly, Congress has explicitly restricted the availability of that relief to that organization alone (I.R.C. Section 7428(b)(1)). Thus, it is clear that Congress viewed the invoking of judicial examination of the validity of a particular organization's tax exemption as the prerogative, and the business, only of the government and of the organization in question, not of third parties. It is therefore apparent that all of the prudential criteria identified in Allen v. Wright, supra, counsel against district court jurisdiction of respondents' suit to resolve the question of the Church's continuing qualification for its tax exemption. The plaintiffs are seeking to vindicate not their own legal rights, but rather the government's right to collect taxes from an organization that allegedly is not eligible for a tax exemption; the plaintiffs' concern about tax law enforcement is "more appropriately addressed in the representative branches," i.e., through the congressional oversight procedures established by law; and the plaintiffs' complaint does not "fall within the zone of interests protected" by Section 501(c)(3). See 468 U.S. at 751. In sum, it is manifest that the district court lacks jurisdiction over this lawsuit and that the controlling issue of respondents' lack of standing would not be illuminated by further prodeedings in the district court; that court's decision to proceed to trial therefore should not have been permitted to stand. /9/ 2. Because the district court declined to certify the standing issue for interlocutory appeal under 28 U.S.C. 1292(b), the issue was presented to the court of appeals in the context of a petition for mandamus or prohibition. /10/ The issuance of such a writ is an extraordinary remedy, and this Court has stated that it is to be invoked only in exceptional circumstances amounting to a judicial usurpation of power. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980); Will v. United States, 389 U.S. 90, 95 (1967). A writ of mandamus should not issue unless the petitioner has no other adequate means of obtaining the desired relief, and he must show that his entitlement to relief is clear and undisputable. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384 (1953); Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943). Issuance of a writ of mandamus is appropriate, however, "'to confine an inferior court to the lawful exercise of its prescribed jurisdiction.'" Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. at 35 (citation ommitted); Will v. United States, 389 U.S. at 95; Roche v. Evaporated Milk Ass'n, supra. Here, unless a higher court intervenes, the district court intends to proceed to trial in a case in which it manifestly lacks Article III jurisdiction. Because of both the extreme consequences that the district court's decision will have in this case and the degree to which that decision flies in the face of established Supreme Court precedent, this is an extraordinary case that warrants the issuance of an extraordinary writ. The district court's determination to proceed with the suit, notwithstanding this Court's governing precedents, exceeds its jurisdiction as prescribed by Article III and amounts to a judicial usurpation of power that must be halted. The court of appeals should have issued a writ of mandamus to arrest this usurpation of power at an early stage of the case. The standards that govern Article III standing are firm and well established; this is not a case where the district court's decision can be said to concern a matter within its discretion. Cf. Allied Chemical Corp. v. Daiflon, Inc. 449 U.S. at 36. Nor can it be said that additional discovery or litigation will shed any further light on the standing question; even if all the allegations of the plaintiffs are assumed to be true, it is clear that there is no standing. The government's right to relief is "clear and indisputable" (see ibid.). Accordingly, given the exceptional nature of this case, the issuance of a writ of mandamus was warranted here, and it is appropriate for this Court to grant certiorari to overturn the court of appeals' failure to issue the writ. See Schlagenhauf v. Holder, 379 U.S. 104 (1964); Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959). The extraordinary nature of this case is apparent from the face of the complaint; a group of citizens, whose views on a controversial issue of public concern are diametrically opposed to the moral and religious views of the Roman Catholic Church, are suing to compel the government to revoke the tax exemption of the Church and to assess back taxes against it because of the activities that the Church allegedly has undertaken in connection with that issue. The exceptional nature of the case is compounded by the intrusive nature of the litigation that is contemplated. The discovery that is already underway (see pages 7-9 & nn. 6 & 7, supra) and the trial that will follow will involve a nationwide review of both government enforcement practices and the internal religious, social, and financial affairs of the Catholic Church at all levels. This inquiry, if it is permitted to continue through discovery and trial, threatens irreparable harm to the interests of both the government and the Church. It may intrude into confidential tax information collected by the government and will surely embroil the district court in constitutional controversy with respect to efforts to obtain internal Church documents and to depose clergymen at all hierarchical levels. /11/ In these circumstances, it is plain that irreparable harm will ensue if the underlying suit is not dismissed before trial even though any relief obtained by the plaintiffs would still be subject to appeal from a final judgment. This Court has recognized that the availability of such an appeal does not always render mandamus inappropriate, and the harm that would result here from discovery and trial strongly indicates that the writ should issue. See Beacon Theatres, Inc. v. Westover, supra; De Beers Consolidated Mines Ltd. v. United States, 325 U.S. 212 (1945); United States Alkali Export Ass'n v. United States, 325 U.S. 196 (1945); see also First Jersey Securities, Inc. v. Bergen, 605 F.2d 690, 701-702 (3d Cir. 1979), cert. denied, 444 U.S. 1074 (1980). Finally, it is apparent that considerations of judicial economy strongly counsel in favor of issuance of the writ. The policy against piecemeal litigation, which this Court has identified as one of the primary reasons for the strict criteria governing mandamus (see Kerr v. United States District Court, 426 U.S. 394, 403 (1976), obviously plays no role here. The defect in the district court is jurisdictional; issuance of a writ of mandamus ordering the district court to dismiss the case will definitively end the case, thereby eliminating time-consuming and potentially troublesome discovery and trial. The resolution of this question of the trial court's jurisdiction presents the classic case for resort to an extraordinary writ. See, e.g., Ex parte Peru, 318 U.S. 578, 586-587 (1943); Maryland v. Soper, 270 U.S. 9, 29-30 (1926). The government has made every effort to have this threshold issue resolved without the need to resort to an extraordinary writ; it has -- unsuccessfully-- twice asked the district court to dismiss the case and to certify it for interlocutory appeal. In the face of the court's refusal to avail itself of these options, the issuance of a writ of mandamus is called for. See 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice Paragraph 110.22(5), at 267 (1985). Failure to issue the writ will result in an unwarranted interference by third parties in sensitive matters intended by Congress to be subject to judicial intervention only to the limited extent required to resolve disputes that may arise between the government and particular taxpayers concerning their own tax liability. /12/ CONCLUSION The petition for a writ of certiorari should be granted. /13/ Respectfully submitted. CHARLES FRIED Solicitor General ROGER M. OLSEN Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ALAN I. HOROWITZ Assistant to the Solicitor General MICHAEL L. PAUP TERESA E. MCLAUGHLIN Attorneys JULY 1986 /1/ Unless otherwise noted, all statutory references are to the Internal Revenue Code of 1954 (26 U.S.C.), as amended (the Code or I.R.C.). Section 501(c)(3) of the Code lists as exempt from federal income taxation under Section 501(a) those entities "organized and operated exclusively for religious, charitable, * * * or educational purposes, * * * no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h) (which details the permissible limits of expenditures to influence legislation)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office." /2/ Rabbi Israel Margolies, Reverend Beatrice Blair, Rabbi Balfour Brickner, Reverend Robert Hare, and Reverend Marvin G. Lutz. /3/ The court determined that the other plaintiffs had not articulated cognizable injury under the Establishment Clause because their concerns in this regard amounted to mere "whistleblowing" (App., infra, 14a). The court also ruled that the plaintiffs who sued on the basis of being members of the Roman Catholic Church had not asserted actionable injury to the practice of their faith because they had not alleged "concern for the pollution of their church by its forbidden entrance into the area of politics" (id. at 15a n.5). The court held that the plaintiff organizations, other than the church-affiliated Women's Center, lacked "establishment clause standing" because they had failed to demonstrate how the alleged First Amendment violations injured them (id. at 16a). The court also rejected the special claim of the abortion clinic plaintiffs of economic loss caused by the Church's activities, finding that the causal link between Church political activity and a decline in income of abortion clinics was too attentuated to confer standing on the clinics (id. at 16a n.6). /4/ These organizations are Abortion Rights Mobilization Inc., National Women's Health Network Inc., and Long Island National Organization for Women-Nassau Inc. The court held that the organizations lacked standing in their own right. App., infra, 18a n.9. /5/ The court rejected the claim that the plaintiffs had standing based on alleged injury to "equal protection" rights (App., infra, 24a-25a). /6/ In response to these requests for documents relating to the tax-exempt status of the NCCB and the USCC, petitioners produced those materials properly disclosable to the public under Section 6104 of the Code, which permits disclosure to the public of certain information regarding exempt organizations and trusts (see, e.g., C.A. App. 182). Petitioners have taken the position, however, that disclosure of some of the information sought by respondents is precluded by Section 6103 of the Code, which prohibits government disclosure of tax returns and confidential return information except as specifically provided by statute (see C.A. App. 182-195). /7/ Among the specific documents sought to be produced are a document entitled "Pastoral Plan for Pro-Life Activities"; the minutes of a joint meeting of the USCC and the NCCB at which the Pastoral Plan was discussed; documents reflecting implementation of Part IV of the Pastoral Plan, which is entitled "The Pro-Life Effort in the Congressional District"; church bulletins, pastoral letters, directives, or memoranda relating to support or opposition of candidates for public office; the minutes of any meeting of the USCC or the NCCB discussing meetings with 1976 presidential candidates; documents reflecting financial support by any Catholic entity of various right-to-life groups; documents circulated within the USCC or the NCCB or to any Catholic entity concerning compliance with the restrictions on political activity contained in Section 501(c)(3) of the Internal Revenue Code; documents relating to any tax or information returns and any applications for tax-exempt status filed with the Internal Revenue Service by the USCC or the NCCB, all communications between the USCC and the NCCB and various right-to-life groups regarding Part IV of the Pastoral Plan and support or opposition of candidates for public office; all communications between the USCC and the NCCB and any announced candidate for public office; and all drafts of the foregoing (C.A. App. 162-169). /8/ Although Section 170(i) of the Code provides a limited deduction for charitable contributions by taxpayers who do not itemize their deductions, that provision is scheduled to expire at the end of 1986 (Section 170(i)(4) of the Code). /9/ It is highly pertinent that the executive function asserted by respondents to have been neglected here necessarily involves the sensitive task of separating church activities relating to the exercise of religious beliefs from impermissible lobbying and intervention in political campaigns (cf. Surinach v. Pesquera de Busquets, 604 F.2d 73, 78 (1st Cir. 1979)). As this Court observed in Lemon v. Kurtzman, 403 U.S. 602, 620 (1971), "(t)his kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids." To be sure, the test is inescapably one of degree, in that "(e)ither course, taxation of churches or exemption, occasions some degree of involvement with religion" (Walz v. Tax Commission, 397 U.S. 664, 674 (1970)). However, the possibilities for excessive government entanglement with religion inherent in the inquiry that respondents seek to compel and the concomitant potential interference with the free exercise of religious beliefs militate against judicial review of restraint exercised by the Executive in performing that duty. Moreover, the difficulties attending church tax audits have recently prompted Congress to enact detailed remedial legislation (see Deficit Reduction Act of 1984, Pub. L. No. 98-369, Section 1033(a), 98 Stat. 494; H.R. Conf. Rep. No. 98-861, 98th Cong., 2d Sess. 1101 et seq. (1984)). Pursuant to this legislation, Section 7611 of the Code, effective with respect to inquiries and examinations beginning after 1984 of any organization claiming to be a church, restricts the permissible scope of inquiry and triggers stringent procedural safeguards in the conduct of inquiries and examinations. These restrictions are directed at government investigation of religious activity, rather than that conducted by private parties, and by their terms would not appear to apply to a lawsuit like this one. Thus, entertainment of suits like this one by the federal courts would have the anomalous effect of granting respondents greater license to investigate the Church's continuing qualification for tax exemption than the agency charged by Congress with the enforcement of the tax laws. /10/ There is little practical difference between the two writs of mandamus and prohibition. See 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure Section 3932, at 206-207 (1977). Like mandamus, its more familiar counterpart, the writ of prohibition "is directed against unwarranted assumptions of jurisdiction or excesses of it." Ex parte United States, as Owner of Nineteen Barges and Four Towboats, 263 U.S. 389, 393 (1923). In this case, the label to be affixed to the writ depends upon whether the appropriate relief is viewed as prohibiting the district court from proceeding to hear this case or, alternatively, ordering the district court to dismiss the case. In either event, issuance of the writ requires consideration of the same factors, and the precise label attached to the writ does not matter. See Ex parte Simons, 247 U.S. 231, 239-240 (1918). For convenience, we will use the term "mandamus" to refer to mandamus or prohibition. /11/ The prospect of discovery and trial here, on the basis of the abstract injuries alleged by respondents, evokes the scenario rejected by this Court in Laird v. Tatum, 408 U.S. 1, 14 (1972); Stripped to its essentials, what respondents appear to be seeking is a broad-scale investigation, conducted by themselves as private parties armed with the subpoena power of a federal district court and the power of cross-examination, to probe into the Army's intelligence-gathering activities, with the district court determining at the conclusion of that investigation the extent to which those activities may or may not be appropriate to the Army's mission. Here, the investigation would probe not only into the government's own enforcement activities but necessarily would also probe deeply into the inner workings of the Church. /12/ Moreover, permitting the present case to proceed to trial would encourage similar suits by third parties dissatisfied with the tax treatment of other groups with whose views they disagree. Even if such suits would ultimately fail on the merits, they could be used for purposes of securing information through discovery for utilization in public debate. /13/ The standing issue may soon be decided by the court of appeals on USCC and NCCB's appeal from the contempt citation (see pages 9-10, supra), which is being heard on an expedited basis. In these circumstances, the Court may deem it appropriate to hold this petition pending the court of appeals' decision in that case for consideration together with any petition for certiorari that may be filed seeking review of that decision. APPENDIX