Harriet Mulqueeny and Patricia Boehnke,plaintiffs-appellees, Cross-appellants, v. National Commission on the Observance of Internationalwomen's Year, 1975, Defendant-appellant, Cross-appellee, 549 F.2d 1115 (7th Cir. 1977)

Defendant-appellant, the National Commission on the Observance of International Women's Year, 1975 (hereinafter referred to as the "Commission"), asserts three issues in its appeal from the entrance of a preliminary injunction restraining it from engaging in certain activities: (1) whether plaintiffs lack standing to litigate that the Commission's conduct violates specific Constitutional and statutory provisions; (2) whether the Commission's activities in disseminating information concerning the proposed Equal Rights Amendment constitute "lobbying activities," and thus contravene a specific prohibition embodied in Public Law 94-167¹  and 94-303;²  and (3) whether the district court improperly exercised its discretion in entering a preliminary injunction. We hold that plaintiffs lack standing to sue for the relief requested, and therefore we do not consider the issues relevant to the merits of plaintiffs' claim.

* The Commission was established by Executive Order³  on January 9, 1975 to promote national observance in the United States of 1975 as International Women's Year. To achieve this end, the Commission was equipped with the broad mandate of focusing the national consciousness "on the need to encourage appropriate and relevant cooperative activity in the field of women's rights and responsibilities." The President allocated specific functions as the "action agenda" of the Commission, including the tasks of promoting "equality between men and women," ensuring "the full integration of women in the total development effort," and encouraging "public and private sectors to set forth objectives to be achieved as part of the program observing International Women's Year." The Commission was expressly authorized to convene meetings when deemed appropriate and to "assemble and disseminate information, issue reports and other publications and conduct such other activities as it may deem appropriate to provide for effective participation of the United States in the domestic observance of International Women's Year."

Pursuant to its executive mandate, the Commission adopted a resolution urging ratification of the Equal Rights Amendment⁴  and established an "ERA Committee," co-chaired by Alan Alda and Representative Margaret Heckler (R.Mass.), to disseminate information regarding ERA and to encourage discussion of the merits of the proposed amendment. The ERA Committee requested a ruling from the General Accounting Office delineating the parameters of its charge under Executive Order No. 11832. The Comptroller General of the United States issued an opinion letter⁵  which affirmed that all proposed activities of the ERA Committee were encompassed within the scope of the authority accorded the Commission.

The Commission, in compliance with its Executive charge, submitted to the President on July 1, 1976 a report detailing its activities which was entitled ". . . To Form a More Perfect Union . . ."⁶  The report focuses upon "barriers that keep women from participating in American life as full partners," and discusses a panoply of issues affecting American women, including the role of the homemaker, the image of women projected by the mass media, women's accomplishments and position in the arts and humanities, ERA, employment discrimination, child care services, family planning programs, and enforcement of existing laws prohibiting discrimination.

During the period that the Commission functioned under Executive mandate, the House of Representatives passed a resolution which called for "the launching of new programs and the forming of new attitudes toward the role of women, with impact reaching well beyond 1975, so as to overcome the obstacles still encountered by women in exercising their full human rights and responsibilities in all fields, including education, the arts, and sports, and in enjoying freedom of choice in planning their lives." H.R.Cong.Res. 309, 94th Cong., 1st Sess. (1975). This resolution led to the enactment, after vigorous debate, of Pub. L. 94-167,⁷  which prolonged the existence of the Commission and directed it to convene a National Women's Conference in order to "assess the progress that has been made toward insuring equality for all women, to set goals for the elimination of all barriers to the full and equal participation of women in all aspects of American life, and to recognize the importance of the contribution of women to the development of friendly relations and cooperation among nations and to the strengthening of world peace." In addition, Congress instructed the Commission to work toward the attainment of specific goals pertinent to the achievement of full equality for women,⁸  and expressly provided that the statutory powers derived from the enactment were to be employed in addition to those powers derived from the Executive charge. An amount up to $5 million to effect these provisions was authorized to be appropriated without fiscal year limitation, with the proviso that "(n)o funds authorized hereunder may be used for lobbying activities." Some six months later, sharp, protracted debate in both Houses culminated in appropriation of the $5 million requested by the Commission, again with the proviso that these funds were not to be expended for lobbying activities.⁹ 

On April 9, 1976, prior to the appropriation of any funds to the Commission, plaintiffs filed a complaint alleging violation of Article V of the Constitution¹⁰  and of the statutory prohibition against use of appropriated moneys for lobbying activities by the Commission's adoption of affirmative resolutions regarding ERA and family planning. Plaintiffs further alleged that members of the Commission were steeped in lobbying activities, appearing at legislative hearings, on media programs and at various luncheons for the purpose of urging ratification of ERA. In addition, plaintiffs alleged that the Commission constituted an "advisory committee" within the intent of the Federal Advisory Committee Act, and violated Section 5(b) (2) of the Act¹¹  in not providing for a fair balance of viewpoints among members of the ERA and abortion questions.

Plaintiffs specified three alternative requests for relief. First, plaintiffs requested judicial termination of the Commission and an order requiring its members "to refund to the Treasury of the United States all funds spent for ratification of the Equal Rights Amendment, for opposition to a constitutional amendment limiting abortion, and for 'lobbying activities.' " Alternatively, plaintiffs desired to enjoin the Commission from perpetrating the constitutional and statutory violations detailed in the complaint. Finally, plaintiffs sought to compel appointment of persons to the Commission whose viewpoints on the ERA and abortion questions would make the Commission "fairly balanced."¹² 

In response to the Commission's Motion for Judgment on the Pleadings, plaintiff Mulqueeny executed an affidavit which identified herself and plaintiff Boehnke as chairpersons of the Illinois branch of "Stop ERA," an organization keenly and actively opposed to the ratification of the proposed Equal Rights Amendment. Plaintiffs claimed to be threatened by immediate, irreparable injury as a consequence of Commission functioning, stating that:

5. For the past four years, Plaintiffs have spent much time, effort, and personal funds in planning, leading, organizing, and carrying out educational work in the State of Illinois to show the harmful effects of the Equal Rights Amendment. Plaintiffs have performed this educational work in various organizations, in schools and colleges, in the press and media, at State of Illinois legislative hearings, at churches, and at many meetings in various parts of Illinois. Plaintiffs have built up a large organization of thousands of citizens who have traveled to the State Capitol at their own expense on many occasions to oppose ratification of the Equal Rights Amendment.

6. Plaintiffs are now in imminent danger of having their four years of time and effort in this educational campaign wiped out, their organization destroyed, the good will and credibility they have built impugned, and their five years of legislative victories taken away from them, because of Defendant's illegal actions.

The district court found that plaintiffs had standing to sue for the relief requested, and after hearing testimony, determined that the Commission's programs supporting ERA constituted "lobbying activities."¹³  The court enjoined the Commission and its members from participating in the following activities pendente lite :

(1) engaging in lobbying activities of any kind, (2) using, directly or indirectly for lobbying activities, any funds appropriated to said defendant to promote the passage or defeat of any legislation, or the adoption, ratification, or defeat of any proposed Constitutional amendment by any legislative body, and (3) using any meetings or women's conferences called or sponsored by it, directly or indirectly, to promote the passage, ratification, or defeat of any such proposed legislation or Constitutional amendment by any legislative body.

App. at 145.

Defendant appeals from the issuance of this preliminary injunction.

II

According to their complaint, plaintiffs challenge defendant's activities under the Administrative Procedure Act, alleging illegality in the Commission's putative violation of the Federal Advisory Committee Act, the statutory prohibitions against the use of appropriated funds for "lobbying activities" and Article V of the United States Constitution. For purposes of assessing plaintiffs' standing to maintain this litigation, we deem these allegations to be true.

Despite the conceptual vagaries attendant to the doctrine of standing, as well as Mr. Justice Douglas' admonition that "(g)eneralizations about standing to sue are largely worthless as such,"¹⁴  it is settled that "the gist of the question of standing" involves an inquiry into whether the litigant has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions". Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962). A litigant who asserts that he is "aggrieved by agency action" within the meaning of the Administrative Procedure Act, 5 U.S.C. § 702, must at the outset demonstrate, as an irreducible minimum, that he has sustained "injury in fact,"¹⁵  Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970),¹⁶  and that the grant of judicial relief requested will ameliorate the complained-of harm. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Linda R.S. v. Richard D., 410 U.S. 614, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973). Plaintiffs' complaint fails to comport with either requirement.

Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), is instructive in the determination of whether plaintiffs allege a legally cognizable injury. In that case, the Sierra Club, a membership corporation holding "a special interest in the conservation and sound maintenance of the national parks, game refuges, and forests of the country," id. at 730, 92 S. Ct. at 1364, sought declaratory and injunctive relief in order to restrain federal officials from approving a proposed plan for development of the Mineral King Valley. In assessing the standing of the Sierra Club to pursue its claim, the Court concurred in the proposition that a litigant may assert values other than economic in order to fulfill the requirement that "injury in fact" be alleged, but cautioned that "broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." Id. at 738, 92 S. Ct. at 1368. Despite the Sierra Club's long "commitment to the cause of protecting our Nation's natural heritage from man's depredations," id. at 739, 92 S. Ct. at 1368, the Court concluded that the Sierra Club lacked standing because involvement with an issue, whether on the part of an organization or an individual, without more, is insufficient to satisfy the constitutional essential of "injury in fact." Id. at 739-40, 92 S. Ct. 1361.

The "injury in fact" alleged by plaintiffs Mulqueeny and Boehnke is threatened loss of the benefits of legislative victories concerning a pressing current issue, gains reaped at the price of the expenditure of time, energy and funds on the part of plaintiffs. Manifestly, this imminent "injury" must be interpreted in actuality as a potential that the efforts employed by plaintiffs toward their goal of defeating legislation concerning ratification of the Equal Rights Amendment might ultimately prove fruitless, should the position they advocate not prevail. Certainly plaintiffs' endeavors on behalf of their cause bespeak their interest in the Commission's functioning, in the sense that defendant's plans and proposals are antagonistic to plaintiffs' theories regarding womens' rights. However, the thrust of recent Supreme Court decisions underscores the principle that "mere interest" in the resolution of an issue, no matter how compelling, no matter how vigorously and vocally expressed, is of itself inadequate as a substitute for the Article III requirement that a litigant demonstrate personal, concrete injury. Sierra Club, supra; United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973). Cf. Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972); Roe v. Wade, 410 U.S. 113, 127-29, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

SCRAP, supra, relied upon by plaintiffs, illuminates proper application of the principle delineated in Sierra Club. Plaintiffs in that case challenged a surcharge on virtually all railroad freight rates authorized by the Interstate Commerce Commission, asserting that adoption of the proposed rate structure would discourage the use of recyclable materials, and thereby adversely affect the environment. Plaintiffs alleged specific injury in that their actual use and enjoyment of natural resources and recreation areas would be directly impaired. The Court determined this allegation a sufficient injury for standing purposes, distinguishing Sierra Club as involving "a vehicle for the vindication of value interest of concerned bystanders," SCRAP, supra, 412 U.S. at 687, 93 S. Ct. at 2416, rather than concrete and perceptible injury. The SCRAP plaintiffs alleged a threat of actual harm to their environmental and esthetic interests, as opposed to the abstract concern regarding environmental protection issues voiced by the Sierra Club. See also Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974).

Any energy, funds or time disbursed by plaintiffs is concomitant to their keen concern regarding the fate of legislation seeking the ratification of ERA. Any alleged loss incurred by plaintiffs therefore constitutes an abstract injury, not judicially cognizable in the assessment of plaintiffs' standing.

Moreover, assuming arguendo that plaintiffs' allegations of harm establish "injury in fact," plaintiffs lack standing to invoke the jurisdiction of the federal court in that only through reliance upon the most speculative inferences is a relationship between defendant's conduct and plaintiffs' claimed harm apparent. It is wholly conjectural whether the exercise of remedial powers possessed by the federal court, as desired by plaintiffs, would result in the maintenance of the status quo in the Illinois legislature's posture on the issue of ratifying the Equal Rights Amendment. It is highly plausible that the Commission's proposed course of conduct would have no impact on a legislative determination to disfavor ratification of the proposed amendment; it is equally plausible that, were the injunctive relief requested by plaintiffs granted, the legislature would nevertheless elect to ratify the ERA. Plaintiffs cannot establish that the harm they assert is fairly attributable to the Commission's functioning, or that the grant of injunctive relief will remedy the alleged injury. Thus, plaintiffs' reliance on merely "the remote possibility, unsubstantiated by allegations of fact, that their situation might (be) better had (defendant) acted otherwise, and might improve were the court to afford relief," Warth, supra, 422 U.S. at 507, 95 S. Ct. at 2209, is insufficient to assure that plaintiffs would realize a benefit from judicial intervention. Eastern Kentucky Welfare Rights Organization, supra; Linda R.S., supra.

The fact that denying these plaintiffs standing to litigate the legality of the Commission's activities because plaintiffs cannot establish a cognizable injury which is a consequence of defendant's conduct, precludes other individuals from mounting an effective challenge is of no moment. Standing to sue does not affix itself to a litigant who does not possess it merely because no other individual is willing or able to vindicate a claim. Rather, the Supreme Court has aptly declared that:

Lack of standing within the narrow confines of Art. III jurisdiction does not impair the right to assert his views in the political forum or at the polls. Slow, cumbersome, and unresponsive though the traditional electoral process may be thought at times, our system provides for changing members of the political branches when dissatisfied citizens convince a sufficient number of their fellow electors that elected representatives are delinquent in performing duties committed to them.

United States v. Richardson, 418 U.S. 166, 179, 94 S. Ct. 2940, 2948, 41 L. Ed. 2d 678 (1974). Protection against the harm asserted accrues to plaintiffs through the political, not the judicial, process. Schlesinger, supra, 418 U.S. at 227, 94 S. Ct. 2925.

In view of this resolution of the standing issue, it is unnecessary to consider the remaining issues. Accordingly, the judgment of the district court is vacated, and this case is remanded to the district court with directions to dismiss for lack of standing.

Vacated and Remanded.