19-3054 Liu v. Congress

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of October, two thousand twenty.

PRESENT: John M. Walker, Jr., Steven J. Menashi, Circuit Judges. * ____________________________________________ Lewis Y. Liu,

Plaintiff-Appellant,

v. No. 19-3054

United States Congress; Nancy Pelosi, in her official capacity as the Speaker of the House of Representatives; Mitch McConnell, in his official capacity as Senate Majority Leader;

*Senior Circuit Judge Ralph K. Winter, originally a member of the panel, is currently unavailable, and the appeal is being adjudicated by the two available members of the panel, who are in agreement. See 2d Cir. IOP E(b). Kevin McCarthy, in his official capacity as Minority Leader of the House of Representatives; Charles Schumer, in his official capacity as Minority Leader of the Senate,

Defendants-Appellees. † ____________________________________________

For Plaintiff-Appellant: LEWIS LIU, New York, NY, pro se.

For Defendants-Appellees: STEPHEN JOHN KOCHEVAR (Benjamin H. Torrance, on the brief) for Audrey Strauss, Acting U.S. Attorney for the Southern District of New York, New York, NY.

Appeal from a judgment of the United States District Court for Southern

District of New York (McMahon, C.J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court granting Appellees’ motion to

dismiss is AFFIRMED and the case is REMANDED for the limited purpose of

amending the judgment to dismiss Liu’s complaint without prejudice.

† The Clerk of Court is respectfully directed to amend the official caption as listed above.

2 I Appellant Lewis Y. Liu, proceeding pro se, appeals the district court’s

judgment dismissing his complaint against the U.S. Congress and several

congressional leaders in their official capacities. Liu and Equal Vote America

Corporation (“EVA”)—a group led by Liu—claimed that the current

congressional apportionment scheme results in underrepresentation because,

while Wyomans 1 receive representation in the House of Representatives at a

proportion of one representative per 563,626 persons, New Yorkers receive

representation at a proportion of one representative per 717,707 persons. Liu and

EVA sought a declaration that the Apportionment Acts of 1911, 1929, and 1941 are

unconstitutional. They also suggested that, if the Congress fails to enact statutes

implementing Liu’s preferred method of apportionment, the district court should

hold the Congress in contempt and declare the Senate unconstitutional. The

defendants moved to dismiss the complaint for lack of jurisdiction and for failure

to state a claim. The district court granted the motion and dismissed the complaint

for lack of subject matter jurisdiction, with prejudice, holding that Liu and EVA

1 See Montana v. Wyoming,

, 389 n.* (2011) (Scalia, J., dissenting).

3 lacked standing and that the suit was barred by sovereign immunity and the

Constitution’s Speech or Debate Clause. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

For the reasons that follow, we affirm.

II The Supreme Court’s cases “have established that the ‘irreducible

constitutional minimum’ of standing consists of three elements. The plaintiff must

have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Spokeo, Inc v. Robins,

(2016) (internal citation

omitted) (quoting Lujan v. Defs. of Wildlife,

(1992)). A plaintiff

“must demonstrate standing for each claim and form of relief sought.” Cacchillo v.

Insmed, Inc.,

(2d Cir. 2011) (quoting Baur v. Veneman,

,

641 n.15 (2d Cir. 2003)). To evaluate a motion to dismiss for lack of standing, we

ask whether the plaintiff plausibly alleged the existence of each of the three

elements. See Lujan,

(“[E]ach element [of standing] must be

supported in the same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence required at the

4 successive stages of the litigation.”). We review de novo the dismissal of a

complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). SM Kids, LLC v.

Google LLC,

(2d Cir. 2020).

We conclude that while Liu plausibly alleged an injury in fact, he failed to

allege that the remaining elements of standing are satisfied.

A “To establish injury in fact, a plaintiff must show that he or she suffered ‘an

invasion of a legally protected interest’ that is ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’” Spokeo,

.

We conclude that Liu plausibly alleged an injury in fact in the form of vote

dilution. The Supreme Court has held that a voter alleges an injury in fact sufficient

to give rise to Article III standing when he alleges that his vote has been diluted

because he has been improperly placed in a legislative district the population of

which is substantially greater than that of other districts. See Baker v. Carr,

(1962) (holding that the plaintiffs had standing to challenge

Tennessee’s apportionment of state representatives when that apportionment

“effect[ed] a gross disproportion of representation to voting population”). In Dep't

of Commerce v. U.S. House of Representatives,

(1999), the Court

5 considered a challenge to the constitutionality of the Department of Commerce’s

proposed use of statistical sampling in the decennial census. An Indiana resident

argued that he suffered an injury in fact because the Department of Commerce’s

use of statistical sampling would result in a substantial undercount in Indiana,

such that Indiana would lose a member of its congressional delegation.

Concluding that the Indiana plaintiff had standing, the Court explained:

Appellee Hofmeister’s expected loss of a Representative to the United States Congress undoubtedly satisfies the injury-in-fact requirement of Article III standing. In the context of apportionment, we have held that voters have standing to challenge an apportionment statute because they are asserting a plain, direct and adequate interest in maintaining the effectiveness of their votes. The same distinct interest is at issue here: With one fewer Representative, Indiana residents’ votes will be diluted.

(internal citation, quotation marks, and alteration omitted). While this

case does not concern the loss of a representative, the alleged injury of vote

dilution is the same. When a state loses a representative, it must redraw its districts

such that the remaining legislative districts absorb relatively equal proportions of

the population of the former representative’s district. See Evenwel v. Abbott,

(2016). A voter thereby suffers an injury because the efficacy of

his or her vote is diluted when it is introduced into a larger voting pool. See Dep't

6 of Commerce v. U.S. House of Representatives,

(“[E]xpected intrastate

vote dilution satisfies the injury-in-fact ... requirement.”); Dep't of Commerce v.

Montana,

(1992) (noting that a challenge to “the standard that

governs the apportionment of Representatives among the several States” is

“unquestionably within our jurisdiction”); Baker,

(concluding that

plaintiffs alleging “impairment of their votes by the 1901 apportionment …. have

standing” because “[t]hey are asserting ‘a plain, direct and adequate interest in

maintaining the effectiveness of their votes,’ not merely a claim of ‘the right

possessed by every citizen ‘to require that the government be administered

according to law’”) (internal citation omitted); Wesberry v. Sanders,

(1964) (entertaining a claim of “vote-diluting discrimination”); Reynolds v. Sims,

(1964) (considering a claim that “an individual’s right to vote …

is in a substantial fashion diluted”); WMCA, Inc v. Lorenzo,

(1964)

(reviewing “an apportionment scheme” that allegedly “result[s] in a significant

undervaluation of the weight of the votes of certain of a State’s citizens”).

In this case, Liu’s complaint alleges that New York and forty-seven other

states—those states aside from Wyoming and Rhode Island—are

unconstitutionally deprived of additional representatives that the states would

7 receive under a proper apportionment scheme. Accordingly, his complaint in part

alleges that he and his fellow New Yorkers suffer vote dilution because they must

vote in electoral districts with populations larger than they constitutionally

should. That is the same injury alleged in Dep't of Commerce v. U.S. House of

Representatives, which the Supreme Court said is an injury in fact under Article III.

To the extent Liu alleges injury based on vote dilution suffered by residents of

other states, he “cannot rest his claim to relief on the legal rights or interests of

third parties.” Warth v. Seldin,

(1975).

The defendants argue that Liu has failed to allege an injury in fact because

the Supreme Court has “consistently held that a plaintiff raising only a generally

available grievance about government ... does not state an Article III case or

controversy.” Lujan,

. They suggest that Liu’s asserted injury is an

abstract, generally available grievance unsuitable for resolution in a federal court.

We disagree. In this case, we are concerned with a right—the right to have one’s

vote count equally—that the Supreme Court has characterized as concrete,

“individual[,] and personal in nature.” Reynolds,

. The Court has

explained that, “[w]here a harm is concrete, though widely shared,” that harm is

cognizable under Article III. FEC v. Akins,

(1998). “The kind of

8 judicial language to which” the defendants refer “invariably appears in cases

where the harm at issue is not only widely shared, but is also of an abstract and

indefinite nature—for example, harm to the ‘common concern for obedience to

law.’”

. In such cases, it is “[t]he abstract nature of the harm”—not the

number of persons who share the harm—that “deprives the case of the concrete

specificity” required by the Constitution.

; see also Lujan,

(rejecting the view that “the injury-in-fact requirement had been satisfied by

congressional conferral upon all persons of an abstract, self-contained,

noninstrumental ‘right’ to have the Executive observe the procedures required by

law”); Schlesinger v. Reservists Comm. to Stop the War,

(1974)

(dismissing for lack of standing a case in which the “Respondents [sought] to have

the Judicial Branch compel the Executive Branch to act in conformity with the

Incompatibility Clause, an interest shared by all citizens”); Crist v. Comm'n on

Presidential Debates,

(2d Cir. 2001) (dismissing for lack of standing

a voter’s suit challenging the Commission’s practice of “limiting participation ...

to candidates who have demonstrated a particular measure of popularity”).

Because the Supreme Court’s cases have consistently held vote dilution to be an

injury in fact, we conclude that Liu plausibly alleged the first element of standing.

9 B The Constitution requires that a plaintiff’s alleged injury be fairly traceable

to the defendant’s conduct. Simon v. E. Ky. Welfare Rights Org.,

(1976)

(“[T]he ‘case or controversy’ limitation of Art. III still requires that a federal court

act only to redress injury that fairly can be traced to the challenged action of the

defendant, and not injury that results from the independent action of some third

party not before the court.”). While the requirement that the alleged harm be fairly

traceable to the defendant is not an “onerous” one, Carter v. HealthPort Techs., LLC,

(2d Cir. 2016), a plaintiff must establish some causal relationship

between the defendant’s conduct and the plaintiff’s injury, Steel Co. v. Citizens for

a Better Env’t,

(1998) (“[T]here must be causation—a fairly traceable

connection between the plaintiff’s injury and the complained-of conduct of the

defendant.”); Rothstein v. UBS AG,

(2d Cir. 2013) (“The traceability

requirement for Article III standing means that the plaintiff must ‘demonstrate a

causal nexus between the defendant’s conduct and the injury.’”) (quoting Heldman

v. Sobol,

(2d Cir. 1992)). Here, Liu has named as defendants the

Congress and its leaders. We conclude that Liu has failed plausibly to allege that

10 there exists a sufficiently direct causal connection between the conduct of those

defendants and the injury he alleges.

The Constitution provides that “Representatives ... shall be apportioned

among the several States ... according to their respective Numbers.” U.S. Const.

art. I, § 2, cl. 3. The “respective Number[]” of persons living in each state is

determined in the decennial census, the responsibility for which the Congress has

committed to the Secretary of Commerce.

(a). After the Secretary

submits the results of the census to the President, the President must issue to the

Congress “a statement showing the whole number of persons in each State ... as

ascertained under the ... decennial census of the population, and the number of

Representatives to which each State would be entitled under ... the method of

equal proportions.” 2 U.S.C. § 2a(a). After the President has issued that statement,

the Clerk of the House of Representatives is “to send to the executive of each State

a certificate of the number of Representatives to which such state is entitled,” id.

at § 2a(b), at which point the states may exercise their authority to draw districts,

U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for

Senators and Representatives, shall be prescribed in each State by the Legislature

11 thereof; but the Congress may at any time by Law make or alter such Regulations,

except as to the Places of chusing Senators.”).

Liu has not sued any of the parties responsible for conducting the census,

preparing the statement of its results, or conducting redistricting. Instead, he has

sued the Congress and its leaders, alleging only they have failed to pass new

statutes implementing Liu’s preferred method of apportionment. Because it is the

actions of those actors responsible for the census and for redistricting—not those

of the Congress or its current leaders—that have allegedly injured him, Liu has

failed to demonstrate that his injury is fairly traceable to the defendants. See

Dantzler, Inc. v. Empresas Berrios Inventory & Operations, Inc.,

(1st Cir.

2020) (“The ‘traceability’ or causation element ‘requires the plaintiff to show a

sufficiently direct causal connection between the challenged action and the

identified harm.’”); Fla. Audubon Soc. v. Bentsen,

(D.C. Cir. 1996)

(en banc) (“Causation, or traceability, examines whether it is substantially

probable that the challenged acts of the defendant, not of some absent third party,

will cause the particularized injury of the plaintiff .... Causation may thus be said

to focus on whether a particular party is appropriate.”) (internal quotation marks

and citations omitted); see also Haitian Refugee Ctr. v. Gracey,

(D.C.

12 Cir. 1987) (“[C]ausation ... is something of a term of art, taking into account not

merely an estimate of effects but also considerations related to the constitutional

separation of powers as that concept defines the proper role of courts in the

American governmental structure.”).

Accordingly, we conclude that Liu has failed plausibly to allege the second

element of standing.

C To satisfy the redressability requirement, a plaintiff must make “a showing

that there is a ‘substantial likelihood that the relief requested will redress the injury

claimed.’” E.M. v. N.Y.C. Dep’t of Educ.,

(2d Cir. 2014) (quoting

Duke Power Co v. Carolina Envtl. Study Grp., Inc.,

, 75 n.20 (1978)); Steel

Co.,

(“Relief that does not remedy the injury suffered cannot

bootstrap a plaintiff into federal court; that is the very essence of the redressability

requirement.”). In his complaint, Liu seeks two forms of relief. First, he asks for a

declaration that the Apportionment Acts of 1911, 1929, and 1941 are

unconstitutional. Second, he requests that the district court should hold the

Congress in contempt and declare the Senate unconstitutional unless the Congress

enacts a statute implementing his preferred method of apportionment. Because

13 neither proposal would redress Liu’s alleged injury, he has failed plausibly to

allege the third element of standing.

First, federal courts lack the power to compel the Congress to exercise its

legislative powers. The Constitution commits the federal legislative power to the

Congress. As Justice Scalia observed in his concurrence in Franklin v. Massachusetts,

(1992), “[u]nless the other branches are to be entirely subordinated to

the Judiciary,” courts may not “direct ... the Congress to perform particular

legislative duties.”

(Scalia, J., concurring). Because passing a statute is a

quintessentially legislative power, the federal courts may not compel the Congress

to exercise it.

Second, federal courts lack authority to declare the Senate unconstitutional.

The Framers and the ratifiers of the Constitution decided that “[a]ll legislative

Powers herein granted shall be vested in a Congress of the United States, which

shall consist of a Senate and House of Representatives.” U.S. Const. art. I, § 1.

(emphasis added). They also determined that the Senate “shall be composed of two

Senators from each State.” Id. § 3, cl. 1 (emphasis added). Because the Constitution

expressly provides for the Senate, the federal courts cannot declare it

unconstitutional. Cf. Bucklew v. Precythe,

(2019) (noting that

14 the “judiciary bears no license to” declare the death penalty unconstitutional

because the “Fifth Amendment ... expressly contemplates that a defendant may be

tried for a ‘capital’ crime and ‘deprived of life’ as a penalty”). Moreover, a

declaration of the Senate’s unconstitutionality, even if it were within the power of

the federal courts, would not remedy any injury in fact. Liu does not allege that he

is injured by the way in which Senate seats are apportioned. Because a declaration

that the Senate is unconstitutional would not remedy any alleged inequalities in

the apportionment of representatives, such a declaration cannot “bootstrap [Liu]

into federal court.” Steel Co.,

. Finally, a declaration that the

Apportionments Acts of 1911, 1929, and 1941 are unconstitutional would not

remedy Liu’s asserted injury because it would not change the apportionment of

representatives. Rather, it would leave the current apportionment in place until

such time as the Congress enacts a new apportionment statute. Because the

possibility that Congress would enact such a statute—and that the President

would sign it—is speculative, we conclude that Liu failed plausibly to allege the

third element of standing.

15 For these reasons, we conclude that the district court lacked jurisdiction

because Liu failed plausibly to allege the irreducible constitutional minimum of

standing.

III We have considered all Liu’s remaining arguments, which are without

merit. Accordingly, we AFFIRM the judgment of the district court but REMAND

for entry of an amended judgment of dismissal without prejudice. “[W]hen a case

is dismissed for lack of federal subject matter jurisdiction, ‘Article III deprives

federal courts of the power to dismiss the case with prejudice.’ As a result, where

a case is dismissed for lack of Article III standing, as here, that disposition cannot

be entered with prejudice, and instead must be dismissed without prejudice.” Katz

v. Donna Karan Company,

(2d Cir. 2017) (internal citation and

alteration omitted) (quoting Hernandez v. Conriv Realty Assocs.,

(2d Cir. 1999)).

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

16