United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 1998 Decided April 10, 1998
No. 97-5161
Democratic Senatorial Campaign Committee,
Appellee
v.
Federal Election Commission,
Appellant
No. 97-5160
Democratic Senatorial Campaign Committee,
Appellee
v.
Federal Election Commission,
Appellant
Appeals from the United States District Court
for the District of Columbia
(96cv02184 & 95cv00349)
Richard B. Bader, Associate General Counsel, Federal
Election Commission, argued the causes for appellant. With
him on the briefs were Lawrence M. Noble, General Counsel,
and Vivien Clair and David Kolker, Attorneys.
Marc E. Elias argued the causes for appellee. With him
on the briefs was Robert F. Bauer.
Bobby R. Burchfield argued the cause in No. 97-5161 for
amicus curiae the National Republican Senatorial Commit-
tee. With him on the briefs was Thomas O. Barnett.
Before: Randolph, Rogers, and Tatel, Circuit Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: The Democratic Senatorial Campaign Com-
mittee ("DSCC") is a political committee comprised of sitting
Democratic members of the United States Senate. Its pri-
mary function is to aid the election of Democratic candidates
to the Senate. In May 1993 DSCC lodged a complaint with
the Federal Election Commission. The complaint alleged
that the National Republican Senatorial Committee
("NRSC") donated some $187,000 to non-party organizations
as part of a last-minute effort to funnel "soft money" into the
1992 United States Senate elections, in violation of the Feder-
al Election Campaign Act of 1971, as amended, 2 U.S.C.
ss 431-455.
By February 1995 the Commission had neither dismissed
the complaint nor assigned it to an enforcement team. DSCC
sued the Commission in district court on the ground that the
Commission's "failure to act" was "contrary to law" under 2
U.S.C. s 437g(a)(8). The district court agreed and issued a
declaratory judgment to that effect. The court also granted
DSCC's later application for attorney's fees and other ex-
penses under the Equal Access to Justice Act, 28 U.S.C.
s 2412. Thereafter, according to DSCC, the Commission
continued to drag its feet. And so in September 1996, DSCC
sued again, and again the district court found in its favor. In
a May 1997 decision, the court declared that the Commis-
sion's "failure to take meaningful action" on the complaint
within "a reasonable time" was "contrary to law," in violation
of s 437g(a)(8). As a remedy, the court ordered the Commis-
sion to conform its conduct to the court's declaratory judg-
ment within 30 days. See 2 U.S.C. s 437g(a)(8)(C). The
Commission has appealed both the May 1997 order and the
earlier award of attorney's fees and costs.
Both cases must be remanded to the district court for
findings of fact and conclusions of law regarding DSCC's
standing to sue the Commission under s 437g(a)(8). When
the cases were in the district court no one contested DSCC's
standing and the district court said nothing on the subject.
The issue reared up only on appeal, mainly through the
efforts of the amicus curiae. Shortly before we heard oral
argument, the Supreme Court handed down Steel Co. v.
Citizens for a Better Environment, 118 S. Ct. 1003 (1998).
Steel Co. seems to hold that before deciding the merits,
federal courts must always decide Article III standing when-
ever it is in doubt. We say "seems" because two of the
Justices comprising the five-Justice majority on this point
interpreted the Court's opinion as not setting down an abso-
lute, rigid, unbending rule. See id. at 1020 (O'Connor, J.,
joined by Kennedy, J., concurring). In any event, we can
think of no rational qualification or exception to remove these
cases from the Steel Co. rule. Now that the question has
been raised, we cannot go any further without first determin-
ing that DSCC had standing. But the factual record com-
piled in the district court is inadequate to the task. Because
DSCC's standing was not disputed below, there is little
evidence regarding the three standing requirements of inju-
ry-in-fact, causation, and redressability. See id. at 1016- 17;
28 U.S.C. s 2412(a)(1), (b); Friends of Boundary Waters
Wilderness v. Thomas, 53 F.3d 881, 886 (8th Cir. 1995); Lane
v. United States, 727 F.2d 18, 20-21 (1st Cir. 1984). Yet
evidence there must be. The district court decided both
cases on summary judgment, a stage at which standing turns
not on allegations in the complaint but on "specific facts"
established by evidence. Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992) (internal quotation marks omitted); see
National Law Ctr. on Homelessness & Poverty v. Kantor, 91
F.3d 178, 181 (D.C. Cir. 1996); Humane Soc'y of the United
States v. Babbitt, 46 F.3d 93, 98 (D.C. Cir. 1995).
Accordingly, the cases are remanded to allow DSCC to
present evidence so that the district court may determine
whether DSCC has satisfied the injury-in-fact, causation, and
redressability requirements of standing. As to the last of
these, we note that the particular showing required of DSCC
might well depend on the Supreme Court's decision in Akins
v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc), cert. granted,
117 S. Ct. 2451 (1997). The Court heard oral argument in
Akins on January 14, 1998. A report of the argument
suggests that the Court's decision may deal with the redress-
ability element of standing under s 437g(a)(8). See Oral
Argument Tr., FEC v. Akins, No. 96-1590, 1998 WL 12082
(U.S. argued Jan. 14, 1998).
If the district court concludes on remand that DSCC did
not have standing, DSCC obviously would not be entitled to
fees and other expenses under the Equal Access to Justice
Act. See 28 U.S.C. s 2412(a)(1), (b); Boundary Waters, 53
F.3d at 886; Lane, 727 F.2d at 20-21. Should the court find
that DSCC did have standing, the court should--in order to
facilitate review of the fee award on appeal--explain the
reasons why it resolved the "prevailing party" and "substan-
tial justification" prongs in DSCC's favor. See Farrar v.
Hobby, 506 U.S. 103, 111-12 (1992); Pierce v. Underwood,
487 U.S. 552, 565 (1988).
So ordered.