Apache Bend Apartments, Ltd. v. United States of America, Acting Through the Internal Revenue Service

E. GRADY JOLLY, Circuit Judge,

dissenting and specially concurring in the result: 1

Despite the majority’s resourceful efforts to find standing to assert a claim for equal protection in this case, I am compelled to dissent respectfully from the majority’s conclusion that the plaintiffs — who claim no economic injury for themselves but seek only to deny economic benefits to others — have standing to bring this case.

The majority holds that the plaintiffs have standing to pursue their claims under the equal protection component of the Due *1570 Process Clause of the Fifth Amendment. Standing to assert such a claim requires that the plaintiff be harmed as a member of an injured class that can be given a lawfully cognizable definition. I fail to see that the transition rules created a “class” as the term is applied to equal protection of the laws. A traditional equal protection class is defined by some characteristic of the persons disfavored, such as race, state residence, age, legitimacy, or even holding later-acquired property. See, e.g., Williams v. Vermont, 472 U.S. 14 , 105 S.Ct. 2465 , 86 L.Ed.2d 11 (1985). In each such case, the plaintiff class is defined by the characteristics of the class that -form the basis of discrimination and injury, such as illegitimate persons who are prevented from receiving an inheritance or qualified black persons who are prevented from voting.

The plaintiff class as defined in the majority opinion appears to be those taxpayers who were not afforded relief under the transition rules. This class would even include those taxpayers who have personal and political influence in Congress but, who, in their lobbying efforts, were unsuccessful in securing a' transition rule for themselves. Thus, the disfavored plaintiff class is all taxpayers in the United States except those successful in obtaining a transition rule benefit. This alleged affected class is so amorphous, so generalized, and so totally lacking in a common identifiable grievance as to be legally non-cognizable.

The majority would argue that this view ignores the nature of the equal protection injury that the plaintiffs assert — the “disparity in treatment” that can be remedied by the “satisfaction of knowing that the Tax Reform Act treats no one any better than them ...” See page 1559. This injury is one that apparently every taxpayer in the country suffered. If this is a constitutionally cognizable injury under the equal protection requirement, then the taxpayers of this country suffer a judicially redressible injury each time Congress passes a bill granting benefits to some but not to all. No court has ever gone to this extreme that the majority now pioneers.

Failing to recognize the limits of the case, the majority cites Heckler v. Mathews, 465 U.S. 728 , 104 S.Ct. 1387 , 79 L.Ed.2d 646 (1984). Although the case supports the view that’lost economic benefit is not required in order to suffer an injury, and that unequal treatment alone may constitute such an injury, the discriminatory effect described by Justice Brennan in Mathews is not the character of discrimination described by the plaintiffs in our case. The discriminatory effect, i.e., the injury, that gives rise to a claim of equal protection is discrimination that

by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferi- or’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.

Mathews, 465 U.S. at 739-740 , 104 S.Ct. at 1395 quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 725 , 102 S.Ct. 3331, 3336 , 73 L.Ed.2d 1090 (1982).

The plaintiffs suggest that the noneconomic injury they suffer as members of the disfavored class can be remedied with a. judicial order that the Tax Reform Act treat no one better than them. Thus, their only injury is the burden of the knowledge that other people are treated more favorably; in short, suffering envy is their injury. The plaintiffs do not allege that their “burden” is widely shared, or known, by other citizens, nor can they allege that this burden perpetuates an “archaic” “stigma” that identifies the plaintiffs as belonging to a class of “less worthy participants in the political community.” The plaintiffs do not and cannot claim to be stigmatized by obscure tax laws. Simply, the injury described by the plaintiffs is an injury beyond the scope of allowable injury described by the Mathews court. 2 See Biszko v. RIHT *1571 Financial Corp., 758 F.2d 769, 773 (1st Cir.1985).

Giving to it a dressed up face, the plaintiffs’ injury is only an “abstract injury in nonobservance of the Constitution” by the government, or its failure to “be administered according to law.” Such injuries may not form the basis of standing in our courts. See, e.g. Allen, 468 U.S. at 754, 104 S.Ct. at 3326 ; Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 482, 485 , 102 S.Ct. 752, 764, 765 , 70 L.Ed.2d 700 (1982) citing Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 , 94 S.Ct. 2925 , 41 L.Ed.2d 706 (1974). The plaintiffs have, at best, alleged a “personal injury as a consequence of the alleged constitutional error,” which is not more than “the psychological consequence presumably produced by the observation of conduct with which one disagrees.” Valley Forge, 454 U.S. at 486 , 102 S.Ct. at 765 .

Because the plaintiffs have not alleged an injury under the equal protection requirement, I respectfully dissent from the majority’s recognition of the plaintiffs’ standing to maintain this action. 3

. I concur in the result reached by the majority's opinion, which determines that the plaintiffs' claim fails on the merits.

. The majority relies greatly upon the work of Professor Lawrence Zelenak, in his article, Are Rifle Shot Rules and Other Ad Hoc Legislation Constitutional?, 44 Tax L.Rev. 563 (1989). Even *1571 Professor Zelenak, as the majority notes, does not consider Mathews to extend noneconomic injury as far the majority would have it reach for the purposes of standing. See page 1560, n. 5; Zelenak, Rifle Shots, 44 Tax L.Rev. at 619.

. Because the majority does not reach the arguments presented concerning taxpayer standing under Flast v. Cohen, 392 U.S. 83 , 88 S.Ct. 1942 , 20 L.Ed.2d 947 (1968), and the uniformity clause, I find it unnecessary to address these issues.