holding that an administrative complainant bringing suit under section 437g(a)(8) "cannot establish standing merely by asserting that the FEC failed to process its complaint in accordance with law."
How later courts described this case
- holding that an administrative complainant bringing suit under section 437g(a)(8) "cannot establish standing merely by asserting that the FEC failed to process its complaint in accordance with law."
- holding that an organization suing on its own behalf must show a “ ‘concrete and demonstrable injury to the organization’s activities—with a consequent drain on the organization’s resources’ ”
- noting, in rejecting the plaintiff’s procedural standing theory, that “[t]o hold otherwise would be to recognize a justiciable interest in having the Executive Branch act in a lawful manner,” and that “the Supreme Court held in Lujan[ ] [that this] is not a legally cognizable interest for purposes of standing”
- holding that a plaintiff “cannot establish standing [under § 30109(a)(8)(A)] merely by asserting that the FEC failed to process its complaint in accordance with law.”
Written by the judges who cited it.
The opinion
SENTELLE, Circuit Judge,
concurring:
I write separately to add to the court’s rejection of Common Cause’s standing for lack of injury in fact my separate view that their standing argument also fails for want of redressability. Even if we could construe the complaint in this action as asserting a claim of deprivation of statutorily required information of the sort we upheld in Akins, Common Cause would still lack standing. As Common Cause is seeking, not an order of the Commission requiring or releasing such information, but only prosecution, it still lacks the third element listed in Lujan; that is, redressability.
If the injury alleged were the cognizable deprivation of information upheld in Akins, administrative discipline of the alleged wrongdoers would not remedy that injury. Any redress for plaintiffs would be entirely dependent “on the unfettered choices made by independent actors not before the courts,” Lujan, 504 U.S. at 562, 112 S.Ct. at 2137, namely NRSC and MRP. Even were I to assume that NRSC or MRP might engage in conduct during future senatorial campaigns that would unlawfully deprive Common Cause members of information relevant to such campaigns, cf. Golden v. Zwickler, 394 U.S. 103, 109-10 , 89 S.Ct. 956, 960-61 , 22 L.Ed.2d 113 (1969) (finding a claim nonjusti-eiable when it was unlikely that a particular congressman would run again for Congress), there is simply no guarantee that the imposition of monetary penalties against NRSC and MRP would result in compliance with FECA’s reporting and disclosure requirements in such future elections. Both NRSC and MRP might well decide to absorb the monetary penalties rather than disclose the required information. Cf. Linda R.S. v. Richard D., 410 U.S. 614, 618 , 93 S.Ct. 1146, 1149 , 35 L.Ed.2d 536 (1973) (holding that a parent lacks standing to challenge a state’s decision not to enforce a child support statute against the other parent given that it is “only speculative” whether prosecuting the other parent would result in payment of the support due).
For this reason courts have long held that no standing exists “where a complainant challenges only an Executive Branch decision not to impose costs or penalties upon some third party.” Branton v. Federal Communications Comm’n, 993 F.2d 906, 910-11 (D.C.Cir.1993), cert. denied, 511 U.S. 1052 , 114 S.Ct. 1610 , 128 L.Ed.2d 338 (1994). Common Cause seeks no relief paralleling the relief sought in Akins. Common Cause does not request that the FEC order NRSC and MRP to comply with FECA’s disclosure and reporting requirements either currently or in future campaigns. Because no such *420 request has been made, I easily conclude that appellant does not have standing of the sort recognized in Akins.
Common Cause also asserts “informational standing” to sue on behalf of its members. See Akins, 101 F.3d at 735. Informational standing is a “narrowly defined” theory of standing under which a plaintiff must demonstrate that the government’s failure to provide information to the public “impinge[s] on the plaintiffs daily operations or make[s] normal operations infeasible.” Id. Even in that narrow class of cases where a plaintiff can demonstrate that the government’s failure to provide information to the public has sufficiently impinged on the organization’s daily operations, the plaintiff must still demonstrate that the relief requested is competent to redress the alleged informational injury. Generally, this redressability requirement can be satisfied by requesting that the wrongfully withheld information be disclosed.
At the risk of belaboring the point, the relief requested in Common Cause’s complaint is not the release of information, but the imposition of monetary penalties on NRSC and MRP. Assuming arguendo that the alleged failure of NRSC and MRP to disclose required information impeded the daily operations of Common Cause, I fail to see how the imposition of monetary penalties — as opposed to an order requiring disclosure of required information — will or can redress the purported injury to Common Cause’s operations. See Branton, 993 F.2d at 910-11 . Thus, Common Cause has also failed to establish informational standing by reason of a failure of redressability.