19‐722‐cv
Kerven v. United States

                                  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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 11th day of February, two thousand twenty.

PRESENT:            JOHN M. WALKER, JR.,
                    DENNY CHIN,
                    STEVEN J. MENASHI,
                                         Circuit Judges.
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JAMES M. KERVEN,
                                        Plaintiff‐Appellant,

                                  ‐v‐                                              19‐722‐cv

UNITED STATES OF AMERICA,
                                        Defendant‐Appellee.
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FOR PLAINTIFF‐APPELLANT:                                     James M. Kerven, pro se, Syracuse, New York.

FOR DEFENDANT‐APPELLEE:                                      Richard E. Zuckerman, Principal Deputy
                                                             Assistant Attorney General, Michael J. Haungs,
                                                             Kathleen E. Lyon, Attorneys, Tax Division,
                                                             Department of Justice, Washington, DC.
              Appeal from a judgment of the United States District Court for the

Northern District of New York (DʹAgostino, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff‐appellant James Kerven, pro se, appeals from a judgment entered

June 10, 2019 dismissing his complaint against defendant‐appellee United States of

America for lack of subject matter jurisdiction pursuant to Federal Rule of Civil

Procedure 12(b)(1). The complaint alleged that the Tax Cuts and Jobs Act of 2017,

Public Law 115‐97 (the ʺActʺ), was unconstitutional and violated Kervenʹs due process

rights. The district court dismissed the complaint for lack of subject matter jurisdiction,

reasoning that Kerven lacked standing because he did not allege a concrete,

particularized injury. We assume the partiesʹ familiarity with the underlying facts, the

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

              We review de novo a district courtʹs determination that a plaintiff lacked

standing to sue. Rajamin v. Deutsche Bank Natʹl Tr. Co., 757 F.3d 79, 84‐85 (2d Cir. 2014).

To have standing, a plaintiff must show that (1) he has an injury‐in‐fact, (2) there is a

causal connection between the injury and conduct of which he complains, and (3) ʺit

must be likely, as opposed to merely speculative, that the injury will be redressed by a

favorable decision.ʺ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal

quotation marks and citations omitted). An injury‐in‐fact requires a concrete injury to


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create a sufficient personal stake in the litigation. Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1548 (2016). Hypothetical injuries are generally not sufficient to meet the requirement.

Id. And ʺwhen the asserted harm is a ʹgeneralized grievanceʹ shared in substantially

equal measure by all or a large class of citizens, that harm alone normally does not

warrant exercise of jurisdiction.ʺ Warth v. Seldin, 422 U.S. 490, 499 (1975).

               Kerven cannot show an injury‐in‐fact. He alleged that he had standing

based on his status as a taxpayer, as a representative of American taxpayers, and as a

person who engages in commerce in the United States. The fact, however, that a

plaintiff is a taxpayer is generally not sufficient to establish standing because the alleged

injury ‐‐ i.e., an effect on taxes ‐‐ is too abstract. Hein v. Freedom from Religion Found., Inc.,

551 U.S. 587, 593 (2007); Bd. of Educ. of Mt. Sinai Union Free Sch. Dist. v. N.Y. State

Teachers Ret. Sys., 60 F.3d 106, 110 (2d Cir. 1995). There is a narrow exception to this rule

with respect to taxpayers challenging laws under the Establishment Clause, see Flast v.

Cohen, 392 U.S. 83, 88 (1968), but the Supreme Court has not expanded this exception to

other constitutional provisions, Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125,

139 (2011). The exception is therefore not applicable here. Accordingly, Kervenʹs status

as a taxpayer alone is not sufficient to establish a concrete, particularized injury.

               Kerven argues that he was injured by the ʺdebt shenanigansʺ created by

the Act. Appellantʹs Br. at 13. Specifically, he contends, he became a ʺdebt holderʺ

because the Government did not pay its debt, his taxes were not lowered, and the Act


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ʺpurposefully increasedʺ the federal budget deficit. Appellantsʹ Br. at 13. He also

argues that his injury was concrete because the tax cuts affected the budget deficit, and

his injury was not a generalized grievance because it was ʺspecifically applicableʺ to

everyone. Appellantʹs Br. at 32. These arguments do not establish standing. Even

assuming that the federal budget would increase and that his taxes would not be

lowered as a result of the Act, Kerven has not sufficiently alleged a concrete or

particularized injury. See Bd. of Educ. of Mt. Sinai Union Free Sch. Dist., 60 F.3d at 110

(effect of government action on future taxation too remote to create an injury); see also

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345‐46 (2006) (plaintiffs had no standing to

challenge tax credit scheme where injury asserted was depletion of state budget and

disproportionate tax burden). Further, Kervenʹs argument that the injury he asserts was

applicable to everyone undermines his position that he suffered a particularized injury.

See Warth, 422 U.S. at 499.

                                          *   *    *

              We have considered Kervenʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                           FOR THE COURT:
                                           Catherine OʹHagan Wolfe, Clerk of Court




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