21

- 3021

- cv Liu v. Democratic National Committee



## 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 (WI TH 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 22 nd da y of September , two thousand twenty

- two

. 3 4 PRESENT: 5 ROSEMARY S. POOLER , 6 ROBERT D. SACK , 7 MICHAEL H. PARK , 8 Circuit Judges. 9

_____________________________________ 10 11 LEWIS Y. LIU , 12 13 Plaintiff

- Appellant , 14 15

v. 21

- 3021 16 17 DEMOCRATIC NATIONAL COMMITTEE , 18 19 Defendan t

- Appellee

. 20 21

_____________________________________ 22 23 FOR PLAINTIFF

- APPELLANT: Lewis Y. Liu
, pro se , New 24 York
, N

. Y

. 25 26 FOR DEFENDANT

- APPELLEE: Elisabeth C. Frost, Jacob D. 27 Shelly
, Elias Law Group 28 LLP , Washington
, D

. C

. 29 302 Appeal from a judgment of the United States District Court for the Southern District of 1
New York ( Liman
, J .). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court is AFFIRMED

. 4

Lewis Y. Liu, a New York State voter registered as a Democrat, sued the Democratic 5

National Committee (“DNC”)
, alleg ing that the DNC had violat ed federal law and several 6
provisions of the U.S. Constitution when it enacted a rule for the 2008, 2016, and 2020 preside ntial 7
primaries that only four states could hold their primaries before a certain date in February. Liu 8
alleged , inter alia, that the rule diluted his vote in the 2020 New York Democratic Party primary 9

and that the DNC was likely to enact the same rule fo r the 2024 primaries. The district court 10
granted the DNC’s motion to dismiss the complaint for lack of subject

- matter jurisdiction
, holding 11

that Liu lacked standing and that his claims were unripe . Liu appeals, proceeding pro se. We 12
assume the parties ’ familiarity with the underlying facts, the procedural history of the case, and 13
the issues on appeal. 14

We review de novo the dismissal of an action for lack of subject

- matter jurisdiction, 15

“ construing the complaint liberally and accepting all factual allegations in the complaint as true .” 16
Green v. Dep’t of Educ. of N.Y. , 16 F.4th 1070, 1074 (2d Cir. 2021). Dismissal for lack of subject

17
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1 ) is proper “when the district 18

court lacks the stat utory or constitutional power to adjudicate [the case] .” Makarova v. United 19

States , 201 F.3d 110, 113 (2d Cir. 2000). The federal judicial p ower is limited to “Cases” and 20

“Controversies,” U.S. Const. art. III, § 2, and consequently, a plaintiff must demonstrate that he 21

has “ a personal stake in the case

— in other words, standing.” TransUnion LLC v. Ramirez , 141 223 S. Ct. 2190, 2203 (2021) ( citation and internal quotation marks omitted ). T he party invoking 1
federal jurisdiction has the burden of establishing standing. Rajamin v. Deutsche Bank Nat’l Tr

. 2

Co. , 757 F.3d 79, 84 (2d Cir. 2014). To establish Article III standing, “ a plaintiff must show ( i ) 3
that he suffered an injury in fact that is concrete, particularized, and actual or immi nent ; ( ii ) that 4
the injury was likely caused by the defendant; and ( iii ) that the injury would likely be redressed by 5
judicial relief

. ” TransUnion , 141 S. Ct. at 2203 ( citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 6

560

- 61 (1992 ) )

. “An allegation of future injury may suffice if the threatened injury is certainly 7
impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. 8

Driehaus , 573 U.S. 149, 158 (2014) ( citation and internal quotation marks omitt ed ). But a n 9
allegation of future injury cannot be merely “conjectural or hypothetical.” Id. ( citation and 10
internal quotation marks omitted). 11
Additionally, the ripeness doctrine “ prevents a federal court from entangling itself in 12

abstract disagreements over matters that are premature for review because the injury is merely 13
speculative and may never occur

. . . . ” Dougherty v. Town of N. Hempstead Bd. of Zoning 14
Appeals , 282 F.3d 83, 90 (2d Cir. 2002), abrogated on other grounds by Knick v. Twp. of Scott
, 15
139 S. Ct. 2162 (2019) . That doctrine overlaps with standing, “ most notably in the shared 16
requirement that the injury be imminent rather than conjectural or hypothetical.” Brooklyn Legal 17
Servs. Corp. v. Legal Servs. Corp.
, 462 F.3d 219, 22 5 (2d Cir. 2006 )
, abrogated on other grounds 18
by Bond v. United States , 564 U.S. 211 (2011)

. A claim is unripe if it depends on “contingent 19
future events that may not occur as anticipated, or indeed may not occur at all.” Thomas v. Union 20
Carbide Agric. Prods. Co. , 473 U.S. 568, 580

- 81 (1985 ) (citation omitted)

. 21

We affirm the district court’s dismissal for substantially the same r easons given by the 224 district court in its amended opinion and order dated November 1 5 , 2021. Specifically, we agree 1

with the district court that Liu did not establish an injury in fact because his concerns were 2
“conjectural” or “hypothetical .” As Liu acknowledge s , the DNC has not yet enacted its rules for 3

2024
, and he has not shown that the DNC rules used in prior primaries also will be used in 2024

. 4

Moreover, t he voting

- rights cases that Liu cites in which plaintiffs have successfully 5
demonstrated injury in fact are not applicable because those cases addressed existing state law s

. 6

See, e.g.
, Wesberry v. Sanders , 376 U.S. 1, 7 (1964); Reynolds v. Sims , 377 U.S. 533, 556 (1964); 7
Gray v. Sanders , 372 U.S. 368, 374

- 75 (1963); Baker v. Carr , 369 U.S. 186, 206

- 08 (1962). At 8
bottom, Liu’s complaint rests on speculation about the DNC’s 2024 rules and New York State’s 9

ultimate 2024 primary date
, which is not enough to allege a “concrete, particularized, and actual 10
or imminent” injury as required by Article III. TransUnion , 141 S. Ct. at 2203. For the same 11
reason, Liu’s claim is not ripe. His vote

- dilution claim depends on several “contingent future 12
events that may not occur as anticipated

. ” Thomas
, 473 U.S. at 58 0

- 81 (citation omitted). Liu’s 13
complaint is premature and thus constitutionally unripe. The district court correctly held that it 14
lacked subject

- matter jurisdiction based on Liu’s unripe claim and failure to satisfy the 15
requirements of Article III standing. 16

We have considered all of Liu’s remaining arguments and find them to be without merit. 17
Accordingly, we AFFIRM the judgment of the district court. 18

FOR THE COURT: 19 Catherine O ’ H agan Wolfe, Clerk of Cour t 20