American Library Ass'n v. Federal Communications Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 22, 2005 Filed March 15, 2005

No. 04-1037

AMERICAN LIBRARY ASSOCIATION, ET AL.,

PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,

RESPONDENTS

MOTION PICTURE ASSOCIATION OF AMERICA, INC., ET AL.

INTERVENORS

On Petition for Review of an Order of the

Federal Communications Commission

Pantelis Michalopoulos argued the cause for petitioners.

With him on the briefs were Cynthia L. Quarterman, Rhonda M.

Bolton, Lincoln L. Davies, and Gigi B. Sohn.

Jacob M. Lewis, Attorney, Federal Communications

Commission, argued the cause for respondents. With him on the

brief were R. Hewitt Pate, Assistant Attorney General,

Catherine G. O’Sullivan and James J. Fredricks, Attorneys,

John A. Rogovin, General Counsel, Federal Communications

Commission, Austin C. Schlick, Deputy General Counsel, Daniel

M. Armstrong, Associate General Counsel, and C. Grey Pash,

Jr., Counsel.

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Christopher Wolf, Bruce E. Boyden, Mace J. Rosenstein,

and Catherine E. Stetson were on the brief for intervenor Motion

Picture Association of America, Inc.

Before: EDWARDS, SENTELLE, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

Dissenting opinion filed by Circuit Judge SENTELLE.

EDWARDS, Circuit Judge: This case involves a challenge

by petitioners American Library Association, et al. to a rule

adopted by the Federal Communications Commission (“FCC”

or “Commission”) requiring digital television receivers and

related electronic equipment manufactured on or after July 1,

2005 to give effect to the “broadcast flag,” a code that

broadcasters can insert into digital television content, which

signals reception equipment to limit the redistribution of that

content. See In the Matter of Digital Broadcast Content

Protection, Report and Order and Further Notice of Proposed

Rulemaking, 18 F.C.C.R. 23,550 (2003). Although petitioners

have an obvious interest in the rule, and they plausibly contend

that they will be adversely affected by its implementation, a

question has arisen about their standing to pursue this petition

for review.

The present petition for review poses an unusual situation

with respect to the court’s consideration of standing. In Sierra

Club v. EPA, 292 F.3d 895, 900 (D.C. Cir. 2002), we indicated

that “a petitioner whose standing is not self[-]evident should

establish its standing by the submission of its arguments and any

affidavits or other evidence appurtenant thereto at the first

appropriate point in the review proceeding.” This case presents

a situation not explicitly contemplated by Sierra Club. Both

petitioners and the Commission reasonably, if inaccurately,

concluded that petitioners’ standing was self-evident, so neither

party pursued the matter in their opening briefs to the court. An

intervenor, Motion Picture Association of America, Inc.

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(“MPAA”), supporting the Commission, interposed a vague and

limited challenge to petitioners’ standing, which prompted an

equally vague and limited response from petitioners in their

reply brief, no response from the Commission, and no request

for additional information from the court before oral argument.

After hearing arguments, which did not resolve the issue, and

reviewing the administrative record, which is not fully

illuminating on the matter of standing, we have concluded that

more is required in order for the court to determine conclusively

whether petitioners have Article III standing.

****

In their initial submissions to the court, both petitioners and

the Commission apparently assumed that petitioners’ standing

was “self-evident” under Sierra Club. Petitioners included a

jurisdictional statement in their opening brief in which they

generally asserted a basis for Article III standing. See

Petitioners’ Br. at 1 (stating that “[e]ach of the petitioners . . .

has members whose right to make use of copyrighted

information will be adversely affected, and who will very likely

have to pay higher prices for certain consumer electronics

equipment, as a result of the Commission’s Order.”). This

statement was not contested by the Commission. After

petitioners filed their opening brief, MPAA suggested in a single

paragraph of its brief that petitioners had failed to comply with

Sierra Club. It was unclear, however, whether MPAA merely

meant to suggest that, because in its view standing was not self-

evident, petitioners had failed to satisfy the “pleading

requirements” of Sierra Club or, additionally, meant to contend

that petitioners lacked Article III standing. See MPAA Br. at 1.

Petitioners responded to MPAA’s argument in their reply brief,

asserting in general and conclusory terms that they did have

standing and providing some citations to case law and the

administrative record. See Petitioners’ Reply Br. at 6 n.1. The

FCC did not weigh in on the issue, apparently viewing

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petitioners’ standing as self-evident. And the court did not seek

additional information from the parties before oral argument.

During the course of oral argument, counsel for the FCC

confirmed that the Commission was not challenging petitioners’

standing in this case. Recording of Oral Argument at 29:01-:17.

When members of the court questioned petitioners’ counsel

regarding standing, petitioners cited portions of the

administrative record in support of their standing. After oral

argument, petitioners provided additional citations in a letter to

the court. See Petitioners’ Letter Providing Citations of 2/23/05.

These citations give some indications that petitioners’ members

will suffer concrete and particularized injuries from the

Commission’s disputed broadcast flag rule. See, e.g., Joint

Comments of American Library Association, et al., 12/6/02,

reprinted in Joint Appendix (“J.A.”) 654, 669-70 (comments

submitted by five petitioners to the FCC before the adoption of

the order in dispute, asserting that a broadcast flag regime would

impair libraries’ capacity to make legitimate use of digital

content to promote research by making copies of television

broadcasts available to distant locations and would hinder

educators’ capacity to make legitimate use of digital content to

facilitate distance learning). But the information to which

petitioners pointed was not compiled to address standing and

thus does not fully illuminate the issue. Apparently

understanding this, petitioners suggested that an expedited

briefing order would be warranted if the court determined that

further argument regarding standing would be useful. See

Petitioners’ Letter Providing Citations of 2/23/05.

On the record before us, we conclude that petitioners

reasonably believed their standing is self-evident. Our

conclusion is based on several considerations. First, the

petitioners represent a large number of libraries and consumers

who indisputably will be directly affected by the broadcast flag

rule. Therefore, petitioners had good reason to assume that at

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least one of their members would suffer an Article III injury

with the implementation of the disputed rule. Moreover, the

Commission conceded that the flag rule would result in

increased costs to consumers. Second, nothing in the record

alerted petitioners to the possibility that their standing would be

challenged in this court. Third, the administrative record

provides examples of legitimate uses of information

technologies made by libraries that could be adversely affected

by the flag rule.

In short, petitioners – like the Commission – reasonably

assumed that their standing was self-evident and, as a result, did

not support their standing with anything more than a general

jurisdictional statement in their opening brief and citations to

portions of the administrative record. Although we now require

more from petitioners, we find that they did not defy any

commands of Sierra Club in their initial submissions to the

court.

****

It is well established that a federal court cannot act in the

absence of jurisdiction, see B&J Oil & Gas v. FERC, 353 F.3d

71, 74-75 (D.C. Cir. 2004), and that jurisdictional issues may be

raised by the court sua sponte, see, e.g., Lee’s Summit, Mo. v.

Surface Transp. Bd., 231 F.3d 39, 41 (D.C. Cir. 2000). It is

equally well established that Article III standing is a prerequisite

to federal court jurisdiction, see, e.g., Crow Creek Sioux Tribe

v. Brownlee, 331 F.3d 912, 915-16 (D.C. Cir. 2003), and that

petitioners carry the burden of establishing their standing, see,

e.g., KERM, Inc. v. FCC, 353 F.3d 57, 59 (D.C. Cir. 2004).

Associations such as petitioners have representational

standing if: (1) at least one of their members has standing to sue

in her or his own right, (2) the interests the association seeks to

protect are germane to its purpose, and (3) neither the claim

asserted nor the relief requested requires the participation of an

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individual member in the lawsuit. Cmtys. Against Runway

Expansion, Inc. v. FAA, 355 F.3d 678, 684 (D.C. Cir. 2004)

(citing Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S.

333, 343 (1977)); see also United Food & Commercial Workers

Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553-57

(1996) (explaining that Hunt lays out the test for associational

standing, which is one strand of representational standing). In

this case, we can find no reason to doubt that petitioners satisfy

the latter two requirements of associational standing, and neither

the FCC nor MPAA suggests otherwise. Therefore, petitioners

need not address these points in their supplemental submissions.

See Sierra Club, 292 F.3d at 898. The focus of our inquiry is

whether at least one of petitioners’ members has standing to sue

in her or his own right.

In order to meet this prong of the associational standing test,

petitioners must demonstrate that at least one of their members

satisfies the three elements that form the “irreducible

constitutional minimum of standing.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992).

First, [at least one of petitioners’ members] must have

suffered an “injury in fact” – an invasion of a legally

protected interest which is (a) concrete and particularized,

and (b) “actual or imminent, not ‘conjectural’ or

‘hypothetical.’” Whitmore [v. Arkansas, 495 U.S. 149, 155

(1990)]. Second, there must be a causal connection

between the injury and the conduct complained of – the

injury has to be “fairly . . . trace[able] to the challenged

action of the defendant, and not . . . th[e] result [of] the

independent action of some third party not before the

court.” Simon v. Eastern Ky. Welfare Rights Organization,

426 U.S. 26, 41-42 (1976). Third, it must be “likely,” as

opposed to merely “speculative,” that the injury will be

“redressed by a favorable decision.” Id., at 38, 43.

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Id. at 560-61 (additional citations omitted) (alterations in

original). The only thing at issue in this case is the injury-in-fact

prong of Article III standing, for causation and redressability are

obvious if petitioners can demonstrate injury.

With regard to the injury-in-fact prong of the standing test,

petitioners need not prove the merits of their case in order to

demonstrate that they have Article III standing. Sierra Club,

292 F.3d at 898. Rather, in order to establish injury in fact,

petitioners must show that there is a substantial probability that

the FCC’s order will harm the concrete and particularized

interests of at least one of their members. See id.; see also

Warth v. Seldin, 422 U.S. 490, 511 (1975) (for an association to

have representational standing, “[t]he association must allege

that its members, or any one of them, are suffering immediate or

threatened injury as a result of the challenged action that would

make out a justiciable case had the members themselves brought

suit.”).

****

Before we turn to what is required of petitioners in this

case, a further word about Sierra Club is in order. The decision

in Sierra Club reminds petitioners challenging administrative

actions that, when they have good reason to know that their

standing is not self-evident, they should explain the basis for

their standing at the earliest appropriate stage in the litigation.

In other words, Sierra Club makes it clear that a party who

knows or should know that there are doubts about its standing

should address those doubts before oral argument. See Sierra

Club, 292 F.3d at 899-901. This prevents unfairness to an

agency that may have reasonable grounds to challenge a

petitioner’s standing, and it conserves the resources of the court

and the litigants. See id. at 901-02. Sierra Club does not,

however, prescribe a protocol for cases in which the parties

reasonably, but incorrectly, assume that a petitioner’s standing

is self-evident.

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MPAA apparently reads Sierra Club to go significantly

further, creating an inflexible rule under which the court, in

assessing Article III standing, can look only to submissions

accompanying petitioner’s opening brief or those filed in

response to a motion to dismiss for lack of standing. See MPAA

Br. at 1; MPAA Letter of 2/25/05 (arguing that further briefing

on standing is not warranted as “[p]etitioners have already had

two opportunities to brief the issue”). MPAA’s interpretation of

Sierra Club rests on a faulty construction of the opinion and is

inconsistent with the law of this circuit. Nothing in Sierra Club

suggests that it is intended to create a “gotcha” trap whereby

parties who reasonably think their standing is self-evident

nonetheless may have their cases summarily dismissed if they

fail to document fully their standing at the earliest possible stage

in the litigation. And Sierra Club surely does not purport to

address a situation like the one we face in this case, where both

petitioners and the Government reasonably assumed that

petitioners’ standing was self-evident, the court did not seek

additional information before oral argument, and the

intervenor’s challenge appeared to be based more on what it

perceived to be the pleading requirements of Sierra Club than on

the requirements of Article III standing.

Moreover, Sierra Club did not alter the precedent of this

circuit, which makes it clear that the court may sua sponte seek

supplemental submissions after oral argument if it determines

that more information is necessary to satisfy itself that a

petitioner has Article III standing. See, e.g., United States

Telecom Ass’n v. FCC, 295 F.3d 1326, 1330-31 (D.C. Cir. 2002)

(noting that the court had directed the parties to submit

supplemental briefs on standing when standing had not been

disputed by respondent or intervenor in their opening briefs, and

allowing petitioner to submit affidavits after oral argument that

were ultimately found to establish Article III standing); Action

on Smoking & Health (ASH) v. Dep’t of Labor, 100 F.3d 991,

992 (D.C. Cir. 1996) (noting that the court had requested post-

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argument affidavits to decide whether Article III standing

existed). In Communities Against Runway Expansion, we ruled

that, even though petitioners had failed to include submissions

adequate to demonstrate standing with their opening brief,

Sierra Club did not preclude the court from considering

declarations submitted along with petitioners’ reply brief, after

an intervenor had challenged petitioners’ standing. See 355 F.3d

at 684-85. We ultimately relied on those declarations to find

that petitioners had standing, concluding that the intervenor had

not been unfairly prejudiced because the additional submissions

demonstrated petitioners’ standing beyond any doubt. See id. at

685. It is also clear that Sierra Club does not preclude the court

from requesting post-argument briefing to resolve questions

regarding Article III standing. See Ctr. for Energy & Econ. Dev.

v. EPA, No. 03-1222, 2005 WL 386976, at *3-4 (D.C. Cir. Feb.

18, 2005) (following oral argument, the court sua sponte invited

the parties to brief whether the Center’s members suffered any

harm from the agency’s action).

While Sierra Club lays out the general rule that petitioners

whose standing is not self-evident should demonstrate their

standing at the first appropriate point in the litigation, our case

law is clear that the court retains the discretion to seek

supplemental submissions from the parties if it decides that

more information is necessary to determine whether petitioners,

in fact, have standing. Depending on the circumstances of the

case, the court may allow petitioners to support their standing in

their reply brief, in affidavits submitted along with the reply

brief, through citations to the existing record at oral argument,

or through additional briefing or affidavits submitted to the court

after oral argument. To prevent the sandbagging of opposing

parties, the court may also, as appropriate, allow parties

challenging a petitioner’s standing to respond to the petitioner’s

additional submissions.

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MPAA’s “gotcha” construction of Sierra Club is

inconsistent with our precedent and would have the undesirable

effect of causing parties to include long jurisdictional statements

in practically all opening briefs for fear that the court might find

their standing less than self-evident. This would waste, rather

than conserve, judicial resources and place an unnecessary

burden on litigants.

****

Obviously, a petitioner’s claim that its standing is self-

evident is not dispositive of the issue. There may be a

disjunction between what a petitioner assumes that the court

knows about its organization and operation and what the court

actually knows, thus causing the petitioner to assume incorrectly

that its standing is self-evident. Thus, whether standing is self-

evident must be judged from the perspective of the court, not the

petitioner. A petitioner who is unsure whether the court will

comprehend its standing should provide the court with enough

information to ensure that standing can be confirmed. And if a

party raises a comprehensible challenge to a petitioner’s

standing, the petitioner is well advised to respond with precision

and clarity to make it clear that standing is present.

As we have already noted, this case poses a situation not

expressly contemplated by Sierra Club. Petitioners’

jurisdictional statement in their opening brief asserted a basis for

standing. The Commission did not contest standing, either in its

brief or when pressed at oral argument, lending some credence

to the reasonableness of petitioners’ assumption that standing

was self-evident. MPAA challenged standing in its brief, but the

challenge was at best cryptic and focused more on the pleading

requirements of Sierra Club than on the requirements of Article

III standing. Nonetheless, as was clear from some of the

questioning at oral argument, the judges struggled with the

issue. It became clear during oral argument that petitioners

believed that the information in the administrative record

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conclusively confirmed the nature of their organizations and the

injury that they would suffer if the FCC’s new rule was

implemented. This was made even more clear by petitioners’

post-hearing submissions, which simply pointed the court to the

administrative record. Having reviewed the administrative

record, we can now understand why petitioners may have

thought that standing was self-evident. Nonetheless, we remain

dubitante.

In the future, petitioners whose standing is challenged

should be more precise in their response, no matter how cryptic

the challenge may appear to be. However, Sierra Club gives no

clear guidance with respect to a case like this, i.e., a case in

which neither petitioners nor the Commission were

unreasonable in assuming that petitioners’ standing was self-

evident and the intervenor’s challenge was vague and

unfocused. As we have noted, the court clearly has the authority

to seek information from a party, either before, during, or after

oral argument, to clarify standing. Indeed, even if Sierra Club

did apply here, the circumstances of this case would implicate

Sierra Club’s statement that the court may allow petitioners to

submit post-argument affidavits addressing the issue of standing

when “good cause [is] shown.” Sierra Club, 292 F.3d at 900.

****

We turn now to what is required of petitioners in this case.

We note that, in joint comments submitted to the FCC pursuant

to a notice of proposed rulemaking on the broadcast flag regime,

see In the Matter of Digital Broadcast Copy Protection, Notice

of Proposed Rulemaking, 17 F.C.C.R. 16,027 (2002), and in

various submissions to this court, the American Library

Association, the American Association of Law Libraries, the

Association of Research Libraries, the Medical Library

Association, and the Special Library Association raised the

possible effects of the adoption of a broadcast flag regime on the

ability of libraries to make legitimate uses of digital content

12

related to their research and educational missions. See Joint

Comments of 12/6/02, J.A. 669-70. The court now seeks

amplification of these points and, in particular, requests that

petitioners address several matters in affidavits we request with

this opinion.

First, is the Television News Archive at Vanderbilt

University, discussed at J.A. 669, a member of any of the

petitioning associations? If not, are any of petitioners’ members

engaged in the process of storing television broadcasts and

sending copies of those broadcasts to distant locations?

Second, petitioners must explain whether there is a

substantial probability that the Commission’s broadcast flag

regime will hinder the ability of any of petitioners’ members to

engage in otherwise permissible copying and distribution of

television broadcasts to distant locations and, if so, in precisely

what way such hindrance is likely to occur.

Third, in their Joint Comments of 12/6/02, American

Library, et al. stated: “A broadcast flag . . . would hinder

precisely what the TEACH Act is designed to promote. For

example, an educator who wishes to use excerpts from a

television news program to illustrate a lesson in the electronic

classroom might not be able to record the program, nor to

incorporate the material into a lesson designed for students in a

class whose access is through the Internet.” J.A. 670. Do any

of petitioners’ members qualify as “accredited nonprofit

educational institution[s]” under 17 U.S.C. § 110? If so,

petitioners must explain precisely how the broadcast flag regime

will hinder these members in their ability to engage in distance

learning or other electronic teaching covered by the TEACH

Act. See Technology, Education, and Copyright Harmonization

Act, Pub. L. No. 107-273, § 13301, 116 Stat. 1758, 1910 (2002).

Finally, are there any injuries (not including the potential

increased cost of consumer electronics), not addressed by the

13

foregoing questions, that identifiable members of petitioners’

organizations will face as a result of the broadcast flag regime?

If so, petitioners must identify the relevant member or members

and describe the precise nature of the injury that will be caused

by the FCC’s adoption of the broadcast flag regime.

Petitioners should file affidavits addressing the questions

raised above within two weeks of the issuance of this opinion,

along with an accompanying brief of no more than 4,000 words.

We remind petitioners that, in order for them to establish injury

in fact, these affidavits must include specific facts demonstrating

that there is a substantial probability that the FCC’s order will

“directly affect[]” the ability of at least one of petitioners’

members to make legitimate use of digital content in relation to

its research or educational missions or that the FCC’s order will

directly affect some other judicially cognizable interest. Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 184 (2000). Affidavits containing “general averments,”

“conclusory allegations,” and “speculative ‘some day’

intentions” are inadequate to demonstrate injury in fact. Id.

(internal quotations and citations omitted). Finally, if they so

desire, the Commission and MPAA will be allowed ten calendar

days after petitioners submit their affidavits and brief to submit

briefs of not more than 4,000 words each addressing petitioners’

Article III standing.

So ordered.

SENTELLE , Circuit Judge, dissenting: I dissent from

what appears to me to be provision of an opportunity to a

petitioner before this Court to create a new record establishing

justiciability and jurisdiction not present in the record before us.

As the majority notes, this Court, like all federal courts, “cannot

act in the absence of jurisdiction.” See, e.g., B&J Oil & Gas v.

FERC , 353 F.3d 71, 74-75 (D.C. Cir. 2004). As the majority

further notes, jurisdictional issues may, indeed must, be raised

by the court sua sponte when jurisdiction is lacking. It is also

true that we have exercised our discretion to permit litigants to

clarify the record by filing further affidavits on jurisdictional

subjects, specifically standing, even after oral argument. See,

e.g., Action on Smoking and Health (ASH) v. Dep’t of Labor,

100 F.3d 991, 992 (D.C. Cir. 1996). However, the broad

invitation and detailed “road map” offered in the majority’s

opinion appears to me not to ask the petitioner to clarify its

standing, but to offer us a further record to create standing where

none is present on the record before us.

I therefore would find the governing precedent not in

ASH, but rather in such cases as AmericaWest Airlines, Inc. v.

Burnley, 838 F.2d 1343 (D.C. Cir. 1988), in which we have

dismissed petitions of litigants who, after ample opportunity on

the record before us, have not demonstrated standing. I

wholeheartedly agree with the majority that Sierra Club v. EPA,

292 F.3d 895, 900 (D.C. Cir. 2002), should not be read as

creating a “gotcha” under which we dismiss meritorious

petitions because litigants did not support their standing when

they could not reasonably have been expected to know that they

needed to. Indeed, I question whether we even possess the

authority to make such a rule. However, when, as here, standing

is at best questionable and an intervenor has called the attention

of all parties to the questionable nature of that standing, I do not

understand why we need to find that petitioners fall within the

group of litigants “whose standing is not self evident” described

in Sierra Club, 292 F.3d at 900, in order to dismiss the petition

2

for lack of jurisdiction. Sierra Club merely recited the

unremarkable and long-standing proposition that “[w]hen the

petitioner’s standing is not self-evident, . . . the petitioner must

supplement the record to the extent necessary to explain and

substantiate its entitlement to judicial review.” Id. See, e.g.,

McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 190

(1936) (“As [a plaintiff] is seeking relief subject to th[e]

supervision [of a federal court], it follows that he must carry

throughout the litigation the burden that he is properly in

court.”). There was no Sierra Club precedent at the time of, for

example, AmericaWest, and yet we did not hesitate to dismiss

for lack of jurisdiction. I would do so here. I therefore

respectfully dissent from the majority’s opinion.