Congressman Ronald v. Dellums v. U.S. Nuclear Regulatory Commission and United States of America, Advanced Nuclear Fuels Corporation, Intervenors

RUTH BADER GINSBURG, Circuit Judge,

dissenting as to standing:

While I agree with the majority that Supreme Court guidance through the standing thicket is “less than pellucid,” Maj.Op. at 971, the nearest line of precedent and deference to Congress’ superior judgment in foreign affairs lead me to conclude that Henry Isaacs and at least one of the organizational petitioners, TransAfrica, Inc., have standing in this case. 1 I agree with Judge Pollack, however, that the agencies in question plausibly read the Comprehensive Anti-Apartheid Act (the Act) to encompass no ban on the importation of uranium hexafluoride. For that reason, I would deny the petition for review.

I.

“Political or ideological” as the organizational petitioners’ interest may be, Maj.Op at 973, my colleagues recognize this essential point: the ban stopping individual members such as Randall Robinson of TransAfrica, Inc. from entering South Africa satisfies the injury-in-fact requirement. See id. I make this initial observation to underscore that such concrete injury to an organization’s members can open the court’s door to the organization itself, even if the organization’s “principal purpose” is political or ideological. See, e.g., NAACP v. Button, 371 U.S. 415, 428 , 83 S.Ct. 328, 335 , 9 L.Ed.2d 405 (1963) (holding that NAACP had standing to assert members’ rights of free association and expression); NAACP v. Alabama, 357 U.S. 449, 459 , 78 S.Ct. 1163, 1170 , 2 L.Ed.2d 1488 (1958) (holding that NAACP had standing to assert members’ constitutional protection from compelled disclosure of their affiliation with the organization); Anti-Fascist Committee v. McGrath, 341 U.S. 123, 183-87 , 71 S.Ct. 624, 654-57 , 95 L.Ed. 817 (1951) (Jackson, J., concurring) (stating that organizations designated as Communist by Attorney General had standing to vindicate members’ constitutional rights).

Furthermore, for the organization to have standing, it commonly suffices to point to the exposure of any member to a “distinct and palpable harm.” See Warth v. Seldin, 422 U.S. 490, 511 , 95 S.Ct. 2197, 2211 , 45 L.Ed.2d 343 (1975) (“The association must allege that its members, or any one of them, are suffering immediate or threatened injury....”) (emphasis added); Animal Welfare Inst. v. Kreps, 561 F.2d 1002, 1007 (D.C.Cir.1977) (same), cert. denied, 434 U.S. 1013 , 98 S.Ct. 726 , 54 L.Ed. 2d 756 (1978). It is beyond genuine debate, as my colleagues concede, that a ban on travel to South Africa, operative against an individual because of his race, beliefs, or political expression, constitutes a palpable injury-in-fact. See Diggs v. Shultz, 470 F.2d 461 , 464 n. 1 (D.C.Cir.1972) (holding that Rhodesia’s refusal to admit several members of Congress and the leader of an anti-apartheid organization constituted injury-in-fact), cer t. denied, 411 U.S. 931 , 93 S.Ct. 1897 , 36 L.Ed.2d 390 (1973). 2 Thus, the dispositive issue for the organizational petitioners, or at least TransAfrica, Inc., is *983 the same as that for Henry Isaacs, whose “inability to return home without facing arrest and prosecution” for his political activities indisputably satisfies the injury-in-fact requirement. Maj.Op. at 974. That issue, to which I now turn, is whether the relief requested is likely to afford any redress for petitioners’ injuries. 3

II.

Acknowledging the “absence of precise definitions” of the different components of the standing test, the Supreme Court in Allen v. Wright, 468 U.S. 737 , 104 S.Ct. 3315 , 82 L.Ed.2d 556 (1984), directed lower courts to find guidance in the “developing ease law” and to answer standing questions “by comparing the allegations of the particular complaint to those made in prior standing cases.” Id. at 751-52 , 104 S.Ct. at 3324-25 . Confronting the divergent lines of Supreme Court precedent described in part by the majority, see Maj.Op. at 971-72, I am persuaded that the case that best matches the complaint before us is Japan Whaling Association v. American Cetacean Society, 478 U.S. 221 , 106 S.Ct. 2860 , 92 L.Ed.2d 166 (1986). 4

In Japan Whaling, the Supreme Court upheld the standing of the American Cetacean Society to sue the Secretary of Commerce to force him to initiate what the Society alleged were congressionally-re-quired sanctions against Japan for that nation’s violation of international whaling quotas. Unfortunately for courts such as ours attempting faithfully to follow the High Court’s lead, the Supreme Court did not address the redressability requirement in its footnote on standing. See Japan Whaling, 478 U.S. at 231 n. 4, 106 S.Ct. at 2866 n. 4. Apparently, the Court assumed that enforcing the sanctions Congress ordered would cause Japan to curtail its hunting of the endangered species, and thereby redress the injury to the Society’s observation and study of whales.

In an effort to assimilate Japan Whaling to the Warth-Simon-Allen line, the majority' searches outside Japan Whaling’s standing inquiry to find hints of a redressability determination elsewhere. See Maj.Op. at 977-78. The majority observes that several pages prior to Japan Whaling’s discussion of the standing issue, the Court recounted how previous threats of sanctions against various countries led to promises of future compliance with international whaling quotas; according to the majority, this establishes that the Supreme Court implicitly determined for itself that sanctions would redress the Society’s injury. Id. It seems to me a stretch to say that the background discussion in Japan Whaling of past threats of sanctions constituted an independent inquiry and determination by the Court that sanctions would redress the Cetacean Society’s injuries. In the context in which the Court placed the lines in question, the passage seems merely to describe Congress’ assessment that, although the threat of sanctions in the past had “served the useful function of quietly persuading nations to adhere to the decisions of international fishery conservation bodies,” 478 U.S. at 225-26 , 106 S.Ct. at 2863 -64 (quoting H.R. Rep. No. 95-1029, p. 9 (1978)), swifter, mandatory sanctions were nonetheless in order.

*984 Unlike the majority, I resist force-fitting Japan Whaling into the Warth-Simon-Allen line. Japan Whaling is differently oriented; the Court could assume that Japan would respond to sanctions by reducing its whaling because Congress had reasonably determined that Japan would react that way, or else it would not have enacted the sanctions.

I am convinced that this is the most sensible reading of Japan Whaling. As the majority notes, the question of redress-ability is predictive. When Congress has determined that a certain action will achieve a given end, courts generally should defer to that judgment. Deference should be at its zenith when Congress has predicted that a foreign country will react to sanctions in a particular way, because such a prediction is outside the judiciary’s expertise. So long as Congress’ prediction seems plausible, courts should not speculate to the contrary.

Our court explictily adopted a rationale of this order in Animal Welfare Institute v. Kreps, 561 F.2d 1002 (D.C.Cir.1977), cert. denied, 434 U.S. 1013 , 98 S.Ct. 726 , 54 L.Ed.2d 756 (1978). In that case, we respected Congress’ judgment about the effectiveness of sanctions in stopping South Africa’s killing of seals:

[W]e believe that Congress, in enacting the [statute], established as a matter of law the requisite causal relationship between American importing practices and South African sealing practices.... This reflects a congressional decision that denial of import privileges is an effective method of protecting marine mammals in other parts of the world.... In the face of this congressional determination, it is impossible to conclude, as appellees urge us to, that the causal relationship is purely “speculative.”

Id. at 1010 (emphasis in original). See also Center for Auto Safety v. Thomas II, 847 F.2d 843 , 855-56 & n. 15 (D.C.Cir.1988) (Wald, C.J.) (giving due weight to Congress’ findings that auto manufacturers’ receipt of corporate average fuel efficiency credits would diminish availability of fuel efficient cars); National Wildlife Fed’n v. Hodel, 839 F.2d 694, 708 (D.C.Cir.1988) (“Congress’ admonitions ... regarding the need for specific [surface mining] regulations ... support[ ] the inference that a causal connection exists between deletion of regulatory specifics and adverse environmental effects.”); Autolog Corp. v. Regan, 731 F.2d 25, 31 (D.C.Cir.1984) (deferring to Congress’ finding that “exclusion of foreign flag shippers would prompt domestic shippers to exploit existing markets”); International Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795, 811-12 (D.C.Cir.1983) (“[A]s Congress passed the [Fair Labor Standards] Act partly to provide redress to employers from unfair competition, the suggestion that effective enforcement of the Act will not have this effect directly contravenes the congressional judgment underlying the Act.”), cert. denied, 469 U.S. 820 , 105 S.Ct. 93 , 83 L.Ed. 2d 39 (1984). 5

To defer to Congress’ judgment in this way does not “permit Congress, by legislation, to amend the Constitution,” Maj.Op. at 978, because courts are not bound to accept anything and everything Congress labels its findings. When the redressability inquiry involves a question of predictive fact regarding matters outside the realm of judicial expertise, however, courts should be reluctant to contradict the judgment of Congress, doing so only upon a showing that Congress’ judgment does not stand the test of rationality.

This case falls within the category of cases in which deference is appropriate. Sanctions have become a familiar weapon in our nation’s foreign policy arsenal (as Diggs, Animal Welfare Institute, and Japan Whaling signify), “contributpng] to U.S. policy goals in a number of important situations such as Rhodesia, Iran, Uganda, Chile, and Nicaragua toward the end of the Somoza regime.” H.R.Rep. No. 638, pt. 1, 99th Cong., 2d Sess. 11 (1986). In enacting *985 sanctions against South Africa, Congress expected to “bring about reforms in [South Africa’s] system of government that will lead to the establishment of a nonracial democracy,” 22 U.S.C. § 5011 (a) (Supp. IV 1986), and to “assist [the] victims of apartheid as individuals and through organizations to overcome the hardships imposed on them by the system of apartheid and to help prepare them for their rightful roles as full participants in the political, social, economic, and intellectual life of their country.” Id. § 5013(a). Distinguishing these particular sanctions from previous ones on the basis of the court’s undeferential assessment of their likely effectiveness takes judges beyond the pale of their general competence and draws the bench into the unseemly business of second-guessing Congress. I see no reason to question Congress’ determination that these sanctions will induce change in South Africa — change adequate to redress, in meaningful part, petitioners’ injuries.

The majority discounts the likely effectiveness of sanctions in two ways. First, it incorrectly describes the relief necessary to redress petitioners’ injuries as total — e.g., “complete democratization” of South Africa “and an end to apartheid.” Maj.Op. at 974; see also id. at 979, 980. Phrasing the necessary relief in these stark, uncompromising terms sets up the conclusion that enforcing the Act will not likely redress petitioners’ injuries; and it allows the majority to claim support from Congress’ own recognition that sanctions are only part of a long term endeavor to advance the elimination of apartheid. See id. at 980. But petitioners’ injuries can be alleviated by relief of a more modest character, and fastening on the ultimate objective disregards or discounts the Act’s more immediate goals.

The Act seeks to promote as way pavers to the eventual end to apartheid several interim objectives, including repeal of the State of Emergency, recognition of the right to organize political parties, to express political opinions, and to participate in the political process, and commencement of negotiations with black South Africans. See 22 U.S.C. § 5011 . It is plausible that economic sanctions could achieve at least in meaningful part some of these interim goals. Indeed, the post-enactment report cited by the majority to support its argument that sanctions are not a “quick fix,” see Maj.Op. at 980, found:

[E]ven limited U.S. and Western sanctions have already had some constructive effects. These include: political benefits among, the black majority ...; a contribution to the growing political ferment in ... key Afrikaner institutions ... as well as within the new independent political movement; and expressions of concern by the South African Government about the accumulating costs of trade and capital sanctions.

H.R.Rep. No. 642, pt. 1, 100th Cong., 2d Sess. 13 (1988).

Progress on the way pavers seems capable of affording some relief to Isaacs by enabling him, sooner rather than later, to return home without being subject to arrest and prosecution for his political activities or to Randall Robinson by allowing him more immediately to enter South Africa. The majority places the Act’s interim objectives outside its view because of a lack of specificity in petitioners’ allegations. See Maj.Op. at 974-75. I believe, however, that the majority requires an unwarranted degree of meticulousness in petitioners’ allegations. Although plaintiffs in typical standing cases can allege more precisely how the sought-after judicial action will redress their injuries, it is intrinsically more difficult to supply particulars when the injury is worked by, and the ultimate relief requires action of, a third party. Yet, just as “mere indirectness of causation is no barrier to standing, and ... an injury worked on one party by another through a third party intermediary may suffice,” National Wildlife Fed’n v. Hodel, 839 F.2d at 705 (citing Meese v. Keene, 481 U.S. 465 , 107 S.Ct. 1862 , 95 L.Ed.2d 415 (1987)), so an injury may be redressable even though the connection between judicial action and the ultimate redress is mediated by a third party’s action. It is impossible to allege with certainty exactly how South Africa would react to the judicial order requested *986 by petitioners — just as it was impossible to predict for certain how Japan or South Africa would respond to sanctions in Japan Whaling, 6 Animal Welfare Institute , and Diggs . From petitioners’ allegations, however, it seems to me one can fairly call it likely that attainment of the Act’s intermediate goals will afford meaningful relief to Isaacs or Robinson. See National Wildlife Fed’n v. Hodel, 839 F.2d at 705 (“[A] party seeking judicial relief need not show to a certainty that a favorable decision will redress his injury. A mere likelihood will do.”) (citing cases).

The majority itself assumes without any more specific allegation by petitioners that it is “substantially likely that an ending of apartheid and the concomitant complete overhaul of the South African political system would provide redress to Isaacs.” Maj.Op. at 975. Why is it not also likely that recognition of the right of blacks to organize political parties, express political opinions, and participate in the political process will enable Isaacs — subject to arrest in South Africa precisely for his political activities — to return home or Randall Robinson — barred also for his political activities —to enter South Africa to meet with anti-apartheid activists? In both situations it is possible that for some reason the reforms in South Africa will not extend to either Isaacs or Robinson as individuals, but it is not necessary for petitioners to “negate every ‘speculation and hypothetical possibility] ... in order to demonstrate the likely effectiveness of judicial relief.’ ” National Wildlife Fed’n v. Hodel, 839 F.2d at 706 (quoting Community Nutrition Inst. v. Block, 698 F.2d 1239, 1249 (D.C.Cir.1983), rev’d on other grounds, 467 U.S. 340 , 104 S.Ct. 2450 , 81 L.Ed.2d 270 (1984)); see also Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 78 , 98 S.Ct. 2620, 2633 , 57 L.Ed.2d 595 (1978). Thus, the court should focus on those reforms minimally necessary to afford some redress for petitioners’ injuries and most likely to result from the sanctions. 7

Even if petitioners are “unclear” on this point, Maj.Op. at 974, however, the majority’s approach runs counter to the well-accepted view that claimants should be given an opportunity to amend defective allegations of jurisdiction before being denied relief altogether. See 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”); Fed.R.Civ.P. 15(a) (providing that a party may amend its pleadings “by leave of court, and leave shall be freely given when justice so requires”); see also Sierra Club v. Morton, 405 U.S. 727 , 736 n. 8, 92 S.Ct. 1361 , 1366 n. 8, 31 L.Ed. 2d 636 (1972) (recognizing that organizational plaintiff may seek to amend its complaint to perfect standing allegation); cf. Fed.R.Civ.P. 54(c) (instructing courts to grant relief to which a party is entitled even if the party’s pleadings do not specify that relief). Thus, if the majority fails to see in petitioners’ pleadings the “interconnection between Isaacs’ injury and the relief sought,” Maj.Op. at 975, it should at least afford petitioners the opportunity to make that connection clearer before denying them standing to pursue any claim in court.

*987 Second, the majority limits its sights to the likely effect of only one provision of the Act rather than of the Act as a whole. See Maj.Op. at 975-76, 979. Yet Congress intended the (aptly named) Comprehensive Anti-Apartheid Act to serve as a broad, flexible framework for achieving U.S. goals in South Africa, not as a hodge-podge of separate, isolated actions. See 22 U.S.C. §§ 5002 , 5012(c). The majority’s “divide and conquer” approach renders the whole Act immune to private action to prompt enforcement: each agency or cabinet official responsible for implementing a specific part of the Act can henceforth claim immunity from judicial review simply on the ground that his action, viewed in isolation, is unlikely to bring about change in South Africa. 8

Although the Supreme Court has rejected the contention that a plaintiff should have standing whenever no other person would have a securer footing to complain, Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 , 94 S.Ct. 2925, 2935 , 41 L.Ed.2d 706 (1974), that is not the situation here: petitioners are not alleging a “generalized interest ... too abstract to constitute a ‘case or controversy’ appropriate for judicial resolution,” id.; they allege concrete, individualized harm which Congress reasonably believed would be remedied, at least in some measure, by enforcement of the Act. As Reservists Committee indicates, there are legislative prescriptions left to the political branches for enforcement because no individual can claim a distinct harm. It does not follow, however, that a statute with a unified objective but multiple implementing agents should be left judicially unenforceable when the several agents must each perform its charge in order to achieve the results intended by the whole Act. The proper threshold inquiry for this court, then, is whether Congress reasonably predicted that enforcement of the Act as a whole would effect changes sufficient to alleviate petitioners’ injuries.

The Comprehensive Anti-Apartheid Act represents Congress’ effort to aid the black majority struggling for freedom in South Africa. Denial of standing to Isaacs and TransAfrica appears to me tantamount to questioning Congress’ judgment regarding the Act’s effectiveness or suggesting that Congress itself did not expect the Act to result in meaningful change. Either stance conveys an unwarranted message about congressional action in the foreign affairs realm. I would defer to Congress’ informed judgment about the effect of the sanctions, and proceed to the merits of this case.

For the reasons stated, I would not erect a standing barrier to block all petitioners. However, the administrators have ruled that the Act does not ban South African uranium hexafluoride or uranium hexafluoride manufactured in other foreign countries from South African uranium ore or uranium oxide. I agree with Judge Pollack that the agencies’ interpretation is plausible, even if not the one that seems to me most harmonious with Congress’ large purpose. 9 I would on that account deny the petition for review.

. I agree that the members of Congress and Robert Chavez lack standing for the reasons stated in the Majority Opinion. See Maj.Op. at 970 n. 1, 973-74. It is well-settled, however, that only one petitioner need have standing to maintain this action. See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 , 102 S.Ct. 205, 212 , 70 L.Ed.2d 309 (1981).

. Even if, as the majority contends, Diggs is no longer good law, compare Maj.Op. at 976 with infra n. 4, a restriction on travel directly related to an individual’s employment seems at least equivalent to the reduction of an individual’s recreational use of natural resources, see United States v. SCRAP, 412 U.S. 669, 686-87 , 93 S.Ct. 2405, 2415-16 , 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 734-35 , 92 S.Ct. 1361, 1365-66 , 31 L.Ed.2d 636 (1972), or the impairment of his ability to watch and study whales, see Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221 , 231 n. 4, 106 S.Ct. 2860 , 2866 n. 4, 92 L.Ed.2d 166 (1986), or seals, see Animal Welfare Institute, 561 F.2d at 1007 .

. I agree with the majority that "traceability" and "redressability" merge where the relief sought is merely the cessation of the allegedly illegal conduct, and that redressability analysis alone may suffice to show the causal link between the challenged action and the asserted injury. See Maj.Op. at 971.

. Of this circuit's decisions, by far the closest to this case is Diggs v. Shultz, 470 F.2d 461 (D.C.ir.1972), cer t. denied, 411 U.S. 931 , 93 S.Ct. 1897 , 36 L.Ed.2d 390 (1973), which held that Rhodesian exiles, several members of the United States Congress, and a private citizen barred from entering Rhodesia had standing to challenge the United States' importation of metallurgical chromite from Southern Rhodesia in violation of a United Nations boycott. Although Diggs may appear out of step with some Supreme Court decisions, precedent is hardly so monolithic in this area as to render Diggs unas-similable. In fact, Diggs remains consonant with the most analogous precedent of this court, Animal Welfare Institute, see infra at 984, and of the Supreme Court, Japan Whaling, see infra at 983-84. Because Diggs retains vitality as a binding decision, it should guide this panel until overturned by the court en banc.

. The cases cited by the majority at pp. 976-77 of its opinion are not on point because they do not involve a congressional determination that the foreign governments would react to the United States' action in a certain way.

. Notably, in Japan Whaling, as the majority relates, the standing issue was raised only in a footnote in the Solicitor General’s Supreme Court Reply Brief, see Maj.Op. at 977 n. 10, and was not addressed at all at oral argument. It is unclear to me, then, how the Cetacean Society in that case could have alleged with any more specificity than petitioners here precisely how judicial relief would redress its injury. Even if the Society there had addressed standing, it could not have alleged with certainty that Japan would cease whaling immediately as a result of sanctions because the previous threats of sanctions had resulted only in promises of future compliance. See 478 U.S. at 225 , 106 S.Ct. at 2863 .

. The majority suggests that relief that is a long time coming is insufficient to support a finding of redressability. See Maj.Op. at 979-80. This assumption reflects a constricted view of current standing doctrine. Temporal distance does not make the causal link unreal or redress unlikely. Cf. Autolog Corp. v. Regan, 731 F.2d 25, 31 (D.C.Cir.1984) ('"We are concerned here not with the length of the chain of causation, but on [sic] the plausibility of the links that comprise the chain.' ”) (quoting Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708 , 717 n. 31 (D.C.Cir.1977)); United States v. SCRAP, 412 U.S. 669, 688-90 , 93 S.Ct. 2405, 2416-17 , 37 L.Ed.2d 254 (1973) (recognizing standing despite attenuated line of causation).

. Furthermore, contrary to the majority’s view, banning uranium hexafluoride would not result in only a "marginal change” to the existing sanctions. Maj.Op. at 976. In 1986, South Africa earned $266 million from uranium imports to the U.S., see Treasury Dep't Response to Questions Submitted by House Subcomm. on Africa, July 10, 1987, at 13 (Brief of Petitioners, Addendum II-A), and most of the U.S. imports of South African-origin uranium products now consist of uranium hexafluoride as a result of the Treasury-NRC interpretation of the Act.

. I note that two bills introduced in the most recent session of Congress would amend the Comprehensive Anti-Apartheid Act specifically to include uranium hexafluoride in a sweeping ban of South African imports. See S. 2756, 100th Cong., 2d Sess. (1988); H.R. 1580, 100th Cong., 2d Sess. (1988).