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