noting that political action committee’s alleged failure to disclose past contributions and expenditures would affect future voters and that “[i]f such injury were not redressable, once an election ended virtually all electoral conduct would be beyond review”
How later courts described this case
- noting that political action committee’s alleged failure to disclose past contributions and expenditures would affect future voters and that “[i]f such injury were not redressable, once an election ended virtually all electoral conduct would be beyond review”
- declining to grant deference under Chevron to a decision by the Federal Election Commission (“FEC”) in which the FEC determined that an entity was not a “political committee” according to the Commission’s interpretation of Supreme Court precedent
- holding that “it is the purpose of the organization’s disbursements, not of the organization itself, that is relevant”
- observing that there is “no reason for courts—the supposed experts in analyzing judicial decisions—to defer to agency interpretations of the Court’s opinions”
Written by the judges who cited it.
The opinion
SENTELLE, Circuit Judge,
dissenting,
with whom Circuit Judge HENDERSON joins:
The standing doctrine “requires that anyone who would invoke the aid of the courts in resolving a complaint must allege, at a minimum, an actual or imminent injury personal to the plaintiff that is fairly traceable to the defendant’s conduct and that is likely to be redressed by requested relief.” Louisiana Env. Action Network v. Browner, 87 F.3d 1379 , 1382 (D.C.Cir.1996). For the reasons that follow, I would hold that appellants have not éstablished these minimum requirements.
A. Informational Standing
When this matter was before the panel, I wrote for the majority finding standing based on “informational injuries.” I concluded at the time, and «believe now, that the panel was compelled by circuit precedent to reach that result. See, e.g., Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, 54 (D.C.Cir.1987) (R.B. Ginsburg, J., concurring) (law of the circuit “ ‘whether or not [it] is correct’ ... binds us unless and until overturned by the court en bane or by Higher Authority.”). Because circuit precedent dictated that an organization can establish standing by alleging that a governmental action restricted the flow of information disseminated by the organization in its regular activities, Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 939 (D.C.Cir.1986), I thought the panel had no choice on the issue. Because the en banc court is not so restricted but is empowered to depart from circuit precedent, if I were writing for the majority today, I would take this occasion to modify circuit law on informational standing and would not fed informational standing on the present record.
*745 The majority, rightly, rejects informational standing for plaintiffs in this case. I applaud the majority’s decision to treat the concept as a narrow one. I agree with the majority that a party cannot successfully claim informational standing where he cannot establish that “the government’s failure to provide or cause others to provide” information “impinged on the plaintiffs daily operations or make[s] normal operations infeasible.... ” Maj. Op. at 735 (citing Scientists’ Inst. for Public Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079 , 1086 n. 29 (D.C.Cir.1973)). While the majority is not clear on why appellants’ complaint differs from that of, for example, the organization for the elderly in Action Alliance, it at least seems to be attempting to narrow the concept of informational standing by holding that the “[ajppel-lants’ alleged injury as voters does not seem to fit within the limited contours of’ informational standing precedent. Maj. Op. at 736. But the majority retains the fundamental error which has infected our informational standing jurisprudence when it affords standing to the plaintiffs/appellants as voters, on a rationale indistinguishable from informational standing. Indeed, it recites in informational terms that “[a] voter deprived of useful information at the time he or she votes suffers a particularized injury in some respects unique to him or herself just as a government contractor, allegedly wrongfully deprived of information to be made available at the time bids are due, would suffer a particularized injury even if all other bidders also suffered an injury.” Maj. Op. at 737 (emphasis added). In setting forth this analysis, the majority admits that the class of “registered voters — even the more limited subset of those who actually vote — is a very large group of Americans_” 1 Id. at 737. But the majority ducks the consequences of this admission.
The Supreme Court expressly held in Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975), that “when the asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction.” Id. at 499 , 95 S.Ct. at 2205 (citing, e.g., Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 , 94 S.Ct. 2925 , 41 L.Ed.2d 706 (1974)). The majority has not explained why the claimed lack of information for the entire class of voters (or potential voters) does not fall squarely within this precept. The attempted distinction that “ ‘generalized grievance’ does not just refer to the number of persons who are allegedly injured [but] refers to the diffuse and abstract nature of the injury,” Maj. Op. at 737, gets nowhere without an explanation as to why this is not a diffuse and abstract injury. 2 The comparison to the bidder deprived of information accomplishes even less. Chief Justice Burger in Schlesinger v. Reservists made that comparison for us. “It is one thing for a court to hear an individual’s complaint that certain specific government action will cause that person private competitive injury ... but it is another matter to allow a citizen to call on the courts to resolve abstract, questions.” Schlesinger, 418 U.S. at 223 , 94 S.Ct. at 2933 (footnote omitted). Cases in this second category, Chief Justice Burger noted, raise “only a matter of speculation whether the claimed violation has caused concrete injury to the particular complainant.” Id. This is the flaw of the new form of standing — voter standing — that the majority creates today. It, like the broad definition of informational standing, relies on a diffuse rather than a particularized injury.
I would not only reject informational standing as a basis for this claim, but, be *746 cause I see no basis for distinction between this case and, for example, Action Alliance, I would reexamine the entire concept of informational standing as it now exists in this circuit, and I would reject it. I do not find within the majority opinion any justification for our precedent on that subject. The majority’s creation violates the principle that a plaintiff generally may not rely for a claimed injury on a mere ideological interest, Competitive Enter. Inst. v. NHTSA 901 F.2d 107 , 112 (D.C.Cir.1990), by perpetuating the notion that an organization has standing where the alleged injury is that the government’s failure to provide information to the organization “impinge[s] on the plaintiffs daily operations or make[s] normal operations infeasible.” Maj. Op. at 735 (citing Scientists’ Inst. for Public Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079 , 1086 n. 29 (D.C.Cir.1973)). While the Supreme Court’s standing jurisprudence may not always be pellucid, the Court has left no doubt that “a mere ‘interest in a problem,’ no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ‘adversely affected’ or ‘aggrieved’ within the meaning of the APA.” Sierra Club v. Morton, 405 U.S. 727, 739 , 92 S.Ct. 1361, 1368 , 31 L.Ed.2d 636 (1972).
As the Court noted, if a special interest in a subject were enough to provide the floor for standing to a long-interested organization, there would be no objective basis for barring the same theory of standing to any other organization no matter how small or new, or to an individual with an interest in the subject matter. That the organization has made the collection and dissemination of information on a particular subject its goal in life no more gives it an injury in fact each time it cannot obtain the information it wants than would be true of any one of its members. The organization’s standing can, like water, rise no higher than its members’ source. That the organization cannot carry on its ordinary affairs because it cannot get the information it desires from the government no more creates injury in fact than if it were seeking government funds to which it was not otherwise entitled because it could not operate its ordinary affairs without that funding. That could hardly be said to provide it with, an injury in fact for standing purposes unless the government were under some duty to provide the funding. I see no reason why the same is not true with respect to information.
Informational standing, of course, has a legitimate origin in those areas of the law where Congress has created a right to information and an obligation on the government to furnish it, and a plaintiff, attempting to exercise that right, has been denied the same. As the majority rightly notes, “Congress may not ‘create’ an Article III injury that the federal judiciary would not recognize, [but] ... Congress can create a legal right ... the interference with which will create an Article III injury.” Maj. Op. at 736 (citations omitted). Thus, under statutes such as FOIA, where Congress has expressly entitled citizens to certain information, the withholding of that information by the government violates that statutory right and causes the injury in fact which underlies standing. This is so despite the fact that all citizens hold the right equally and that generalized grievances do not provide the injury in fact necessary for Article III standing. See Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 449-50 , 109 S.Ct. 2558, 2564-65 , 105 L.Ed.2d 377 (1989).
The logic of allowing that deprivation to constitute injury in fact despite the generalized nature of the right violated is, upon examination, inescapable. The right is generalized, but the injury is not. The injury has occurred specifically, individually, and palpably to the person who tried to exercise the right and was thwarted. If the generalized nature of a right were sufficient to make the injury suffered in the deprivation of that right honjusticiable, then there would be no way to vindicate, for example, First Amendment rights. Thus, standing under FOIA, under FACA, see Public Citizen, supra, and perhaps under the FECA is not “informational” standing at all. It is standing in its most traditional form. A plaintiff brings suit to vindicate an injury to a statutorily created right. That right happens to be access to information. But that type of action is not before us here. Plaintiffs in the instant case *747 are not seeking to vindicate a statutorily created right.
The FEC is, as the majority makes clear, obligated under the Act to provide certain information to voters, indeed, to the population at large. If the plaintiffs had gone to the FEC seeking information that the Commission possessed and been denied it, and then jumped through the proper procedural hoops, the FEC could not credibly have argued that the plaintiffs did not have the injury in fact to make out standing. But that is not what happened. The plaintiffs did not seek access to information in the Commission’s possession, but rather sought to have the Commission perform its alleged legal duty to regulate a third party — the American Israel Public Affairs Committee (“AI-PAC”) — in such a fashion as to cause the third party to give it the information to which the plaintiffs would then be entitled.
Although the Act contemplates citizen complaints initiating Commission investigation of violation of the Acts, 2 U.S.C. § 437g (1994), this is not to say that Congress has created a right to enforcement of the law, the violation of which constitutes an injury in fact for standing purposes. In Heckler v. Chaney, 470 U.S. 821, 831 , 105 S.Ct. 1649, 1655 , 84 L.Ed.2d 714 (1985), the Supreme Court reaffirmed “that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” That being the case, the Court recognized “the general unsuitability for judicial review of agency decisions to refuse enforcement.” Id. For an injury to afford standing, it must be remediable in the action brought. As we cannot, under Heckler, afford a remedy for an injury consisting of no more than the generalized grievance that the Commission has faded to enforce the law, the Commission’s failure to take the regulatory action of declaring AIPAC a political committee which would allegedly cause AIPAC to turn over the information to which appellants would then have access is not an injury which this court can remedy under Heckler.
Neither does the congressional provision affording a right to sue overcome the lack of standing. Granted, section 437g(a)(8)(A) permits any party aggrieved by the Commission’s dismissal of a complaint or failure to act on such complaint to file a petition with the United States District Court for the District of Columbia. Such a statute creating a right to sue does not, however, create standing. At most, it invests a right to sue in those who otherwise have standing but would not necessarily have a clear claim to relief cognizable by a district court. The Supreme Court has clearly enunciated this concept in the analogous context of environmental litigation. In Lujan v. Defenders of Wildlife, 504 U.S. 555 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992), the Court of Appeals had held, inter alia, that the citizens suit provision in 16 U.S.C. § 1540 (g) provided standing. Lujan, 504 U.S. at 572 , 112 S.Ct. at 2142 -43 (citing 901 F.2d at 121-22). In reversing that holding, the Supreme Court expressly rejected the view that “the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures required by law.” 504 U.S. at 573 , 112 S.Ct. at 2143 . The Court recognized without difficulty that such a view rejected the consistent holding of the Supreme Court “that a plaintiff raising only a generally available grievance about government ... does not state an Article III case or controversy.” Id. at 573-74 , 112 S.Ct. at 2143 . The logic of Lujan is no less applicable here. These plaintiffs have no statutory right, through section 437g or any other provision, to force the FEC to collect and turn over this information. In the absence of such a right, no injury — informational or otherwise — is possible. I would discard the entire notion of informational standing to the extent that it is something separate from traditional standing doctrine. Under traditional standing doctrine it is clear that these plaintiffs have stated no claim.
B. Redressability
Although I have alluded above to the absence of redressability as defeating standing, I wish to make it quite express that even if the grievance of voters is not held to be too generalized to afford standing, that grievance lacks the redressability essential to an Article III injury. Both we and the Supreme *748 Court have repeatedly made it plain that where an injury to putative plaintiffs is “highly indirect” as to a governmental actor defendant, and “‘results from the independent action of some third party not before the court,’ ” it is “ ‘substantially more difficult to meet the minimum requirement of Art. Ill’” standing than in the case of a direct injury. Allen v. Wright, 468 U.S. 737, 757-58 , 104 S.Ct. 3315, 3328 , 82 L.Ed.2d 556 (1984) (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 42 , 96 S.Ct. 1917, 1926 , 48 L.Ed.2d 450 (1976), and Warth v. Seldin, 422 U.S. at 505 , 95 S.Ct. at 2208 ).
The Allen Court pronounced that analysis in a discussion that began with the causation element of standing, finding the line of causation between a grant of tax exemption and the third party’s offending conduct “attenuated at best.” Id. at 757 , 104 S.Ct. at 3327-28 . The Court then reasoned from that attenuated causation to a conclusion that “it is entirely speculative ... whether withdrawal of a tax exemption from any particular school would lead the school to change its policies.” Id. at 758 , 104 S.Ct. at 3328 . The Simon decision makes it even more clear that multilevel relief is not only problematic as to causation — that is to say that the indepen1 dent act of a third party is rarely fairly traceable to the government’s failure to regulate — but also as to redressability. In that case, the Court held that “Art. Ill still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the Court.” Simon , 426 U.S. at 41—12, 96 S.Ct. at 1926 . In Simon , in Allen v. Wright, in Fulani, the high court and this one have repeatedly held that it is too speculative to meet the redress-ability requirement of Article III standing to assume that an independent third-party actor would so amend its conduct to redress the wrong, allegedly being done to the plaintiffs because of a court decree against the government. In those cases, admittedly, the regulatory act involved taxation. But the rationale is no different here.
In this case, no more than those, to find a lack of standing where redressability would depend on the Commission’s regulation of a third party and that third party’s response to the regulation is no “breathtaking attack on the legitimacy of virtually all judicial review of agency action,” as the majority suggests. Maj. Op. at 738. Rather, it is only a specific application of general principles of standing jurisprudence.
Appellants’ claim of redressability depends on the linked chain that the Commission will enter an order against AIPAC requiring the information plaintiffs seek, that AIPAC will comply with that order, and that appellants will still be sufficiently interested in the information thus produced that they will renew their claim on FEC to present them with that information after they jump through the procedural hoops. This, I submit, is too attenuated to provide the sort of redressability necessary to meet Article III standing.
CONCLUSION
Because the injury plaintiffs allege is neither personal to the plaintiffs nor redressable in this action, they lack standing to bring the claim to an Article III court. I would therefore affirm the grant of summary judgment entered by the district court.
. It is not at all clear why the injury is limited to the class of registered voters as opposed to all potential voters as the information, if useful, could be as likely to warrant registration "and voting as voting in a particular direction.
. Contrary to the majority’s assertion, Maj. Op. at 736 n.3, our logic does not suggest that a claim for information under FOIA is only a generalized grievance. FOIA gives everyone a right to information. A FOIA injury, therefore, is not a " ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens.” Warth, 422 U.S. at 499 , 95 S.Ct. at 2205 . It is a particularized injury personal to the disappointed requester, and Warth's holding is therefore not implicated. Similarly, if the FEC had the information appellants want and refused to provide it, they might have a cognizable injury affording them standing.