United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 1998 Decided July 17, 1998
Nos. 97-5253 and 97-5254
Natural Resources Defense Council, et al.,
Appellees
v.
Federico F. Pena, Secretary, The Department of Energy,
and
National Academy of Sciences,
Appellants
Appeals from the United States District Court
for the District of Columbia
(No. 97cv00308)
Alisa B. Klein, Attorney, United States Department of
Justice, argued the cause for the federal appellant. Frank
W. Hunger, Assistant Attorney General, Mary Lou Leary,
United States Attorney at the time the brief was filed, and
Mark B. Stern, Attorney, United States Department of Jus-
tice, were on brief.
Nathan C. Sheers argued the cause for appellant National
Academy of Sciences. Carter G. Phillips, James R. Wright
and Audrey Byrd Mosley were on brief.
Howard Crystal argued the cause for the appellees. Eric
R. Glitzenstein was on brief.
Before: Henderson, Rogers and Garland, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: This appeal
poses the recurring question of what remedy is appropriate
for a federal agency's violation of the Federal Advisory
Committee Act, 5 U.S.C. App. 2, ss 1 et seq., (FACA). The
appellants, the United States Department of Energy (Depart-
ment or DOE) and the National Academy of Sciences (Acade-
my or NAS), appeal the district court's grant of a permanent
injunction against the Department's use of or reliance on a
report prepared by an Academy committee, which committee
both the Department and the Academy concede was orga-
nized and operated in violation of FACA. Because we have
serious doubts whether the "use injunction" redresses any of
the appellees' claimed injuries and because we believe the
district court erred in failing to afford the appellees an
opportunity to take discovery and refine their request for
equitable relief, we reverse and remand.
I. BACKGROUND
In December 1995 a DOE official contacted the then-
president of the Academy, proposing a contract between the
Department and the Academy pursuant to which the Acade-
my would select and convene a committee of experts to study
and review certain technical and scientific issues associated
with the Department's Inertial Confinement Fusion (ICF)
Program. "ICF is a conceptual method for achieving a fusion
reaction by compressing and confining a small pellet contain-
ing fuel such as a deuterium and tritium mixture through the
inward forces of inertia generated on the fuel by the ablation
... of the outer surface of the pellet." Zolandz Decl. p 7.
The scientific objective of ICF is to achieve "ignition"--i.e., a
self-sustaining fusion reaction that produces more energy
than is required to initiate the reaction. Id. p 6. The De-
partment sponsors and performs research into and develop-
ment of ICF processes to provide "valuable information for
national defense, energy, and other industrial and scientific
applications." First Crandall Decl. p 4.
The Academy and the Department formalized their agree-
ment in a letter contract in May 1996. Under the contract,
the ICF committee (Committee) was given three missions:
"(1) determine the scientific and technological readiness of the
NIF [National Ignition Facility] project, (2) assess the entire
ICF program (including program scope, balance, and priori-
ties; facility operation; experimentation; theory; etc.) and
make recommendations to facilitate the achievement of the
scientific goal, which is ignition, and (3) evaluate the capabili-
ties of the ICF program (in conjunction with NIF) to support
[Science-Based Stockpile Stewardship program to maintain
national nuclear arsenal]." Taylor Decl. p 11. NIF is a
principal component of the Department's ICF program and is
"a national center to study inertial fusion and high-energy-
density science." First Crandall Decl. p 5. It is being built,
at a projected cost in excess of $1 billion, at the Lawrence
Livermore National Laboratory (LLNL) in Livermore, Cali-
fornia. Id. When complete, the "NIF will house a powerful
laser, consisting of 192 beams, which will be used to simulate
processes that occur in nuclear weapons and to 'ignite' small
fusion targets in the laboratory for the first time." Id. As of
the date the Department contracted with the Academy to
form the Committee, NIF had entered the preliminary design
and planning stage but the Department had not yet decided
whether to proceed with construction. Id. p 12.
Pursuant to the letter contract, the Department agreed to
pay the Academy $335,700 to defray the Committee's costs
during the first (and, as it now turns out, only) year of its
existence. The Academy, in accordance with its own proce-
dures but without reference to FACA, named fifteen scien-
tists to the Committee in May 1996. Zolandz Decl. pp 11, 13.
The Department had no input into or control over the ap-
pointments. Id. pp 13-14. While some Committee members,
it appears, had consulting contracts with, or other profession-
al ties to, LLNL (see First Cochran Decl. p 8), "[n]o one
receiving any funding from a DOE ICF program ... was
permitted to serve as a member of the ICF committee."
Zolandz Decl. p 19. Moreover, no DOE personnel participat-
ed in the Committee's deliberations. Id. p 16.
The Committee met six times during the fall of 1996. At
the Committee's request, DOE personnel attended most of
the meetings and briefed the Committee on various aspects of
the ICF program and NIF. The majority of the briefings
were closed to the public because of their classified nature.
Upon request, the Academy apprised the public of the Com-
mittee's membership, agendas, open meetings and mission
statement. When appropriate, the Committee also allotted
meeting time to members of the public to present their views.
Indeed, three of the four appellees--the Natural Resources
Defense Council (NRDC), Dr. Thomas B. Cochran and Tri-
Valley CAREs (Citizens Against a Radioactive Environ-
ment)--made known to the Committee their views on the
ICF program and NIF. The fourth appellee, the Western
States Legal Foundation, was invited to a Committee meeting
but declined to attend. See Zolandz Decl. p 24; Velluvia Decl.
p 4.
The Committee concluded its meetings in December 1996
and began drafting a report of its findings. The same month
the Department approved the Programmatic Environmental
Impact Statement for NIF, a statement required by the
National Environmental Policy Act, 42 U.S.C. ss 4321 et seq.,
thus clearing the last major regulatory bar to constructing
NIF. On February 14, 1997, however, the appellees filed a
complaint for declaratory and injunctive relief, alleging that
the Committee was an "advisory committee" and that it had
not been established or operated in conformity with FACA.
The complaint sought equitable relief and attorneys' fees,
specifically requesting that the district court:
(2) preliminarily and permanently enjoin DOE from
relying on any deliberations, reports or recommendations
from the ICF Committee;
(3) preliminarily and permanently enjoin DOE from
providing any funding for activities of the ICF Commit-
tee, including the dissemination of any reports or other
work product;
(4) preliminarily and permanently enjoin NAS from
permitting the ICF Committee to continue to meet,
deliberate, or prepare any work product, including the
Interim Report;....
Compl. 9-10.
Each of the four appellees is either a non-profit organiza-
tion or an employee of such organization. Since 1982, appel-
lee Western States Legal Foundation "has engaged in admin-
istrative proceedings, litigation, public education efforts and
grassroots organizing to promote disarmament, ensure the
clean-up of federal nuclear weapons research, testing and
production facilities, and challenge nuclear weapons pro-
grams." Compl. p 6. It includes members who "live and
engage in recreational activities in the vicinity of LLNL." Id.
Appellee Cochran is employed by the NRDC as the director
of its nuclear program and has a professional interest in and
involvement with nuclear energy and non-proliferation issues.
See id. p 4. Appellee NRDC has "over 300,000 members, and
is interested in the work of the ICF Committee." Id. p 3.
Appellee Tri-Valley CAREs is based in Livermore, California
and "undertakes projects that increase public knowledge of
the relationship between peace and environmental issues,
including public education regarding potential impacts from
the production, treatment, storage and disposal of hazardous
and radioactive waste." Id. p 7. Tri-Valley's members "re-
side, own property, work, recreate and attend public meetings
near LLNL" and they "have participated in many administra-
tive, legal and grassroots efforts involving the DOE's nuclear
weapons complex, including the plans for the NIF at LLNL."
Id. Of particular concern to Tri-Valley's membership is the
potential environmental contamination that may result from
NIF's operation, including release into the environment of
deuterium and tritium--two elements that are the primary
constituents of the fuel pellets NIF intends to ignite. See
Kelley Decl. pp 4-9.
The apparent impetus for this lawsuit is a decision of this
Court, Animal Legal Defense Fund v. Shalala, 104 F.3d 424
(D.C. Cir.), cert. denied, 118 S. Ct. 367 (1997), (ALDF) which
on January 10, 1997 held that a committee created by the
Academy for the benefit of the United States Department of
Health and Human Services constituted an "advisory commit-
tee" and was therefore subject to FACA requirements. The
ALDF decision reversed a December 1995 district court order
which the Department and the Academy had apparently
relied on in determining that the Committee need not comply
with FACA. Perhaps operating on the same assumption, the
appellees never invoked FACA, although they did complain
about the Committee's composition and raised conflict-of-
interest questions, until after ALDF was decided--at which
point the Committee had already concluded its meetings and
was drafting its final report.
In the wake of ALDF, the Department in effect conceded
that the Committee must be deemed an "advisory committee"
and that it had not complied with FACA. Both the Depart-
ment and the Academy argued, however, that the district
court could not remedy the violations by means of an injunc-
tion proscribing either publication of the Committee's report
or the Department's use of the Committee's findings. The
district court disagreed with the latter argument and on
March 5, 1997 enjoined the Department from (1) expending
any additional unobligated money to fund Committee opera-
tions or (2) "utilizing, relying on or in any way incorporating
into its decisionmaking process the ICF Committee report or
any other work product of the ICF Committee." Natural
Resources Defense Council v. Curtis, No. 97-0308 (D.D.C.
Mar. 5, 1997) (order granting preliminary funding and use
injunctions), (NRDC I). In so concluding, the district court
reasoned:
In this case, injunctive relief is necessary and appropri-
ate to preserve the purposes of FACA, to avoid making it
a "nullity" and to preserve plaintiffs' right to ensure that
advisory committees to DOE comply with the statute's
dictates. The fact that some funds have already been
spent cuts in the opposite direction, while the record is
insufficient for the Court to determine whether the few
ICF Committee meetings that were open to the public
(less than 30 percent) constituted a sufficient attempt to
ensure public accountability. On balance, the Court
finds that the factors articulated in California Forestry
Ass'n v. United States Forest Service weigh heavily in
favor of injunctive relief.
Id. Citing the Committee members' First Amendment rights,
the district court declined, however, to enjoin the Academy
from publishing the Committee's final report. Id.
On March 11, 1997, six days after the injunction issued and
nine days before the Committee published its final report, the
Department announced its decision to construct NIF. Sec-
ond Crandall Decl. p 2. While the question whether to con-
struct NIF was not part of the Committee's charge, its report
assessed "the technical and scientific readiness of the NIF to
proceed to the construction phase, identifies specific technical
issues needing additional study, i.e., 'remaining hurdles' in
parallel with NIF construction, and arrives at certain findings
and conclusions related to the NIF." Id. p 5. Indeed, on
December 6, 1996, before the appellees brought suit, the
Committee orally apprised the Department that it saw no
"technical reason to delay [construction of] the NIF." First
Crandall Decl. p 17.
The Department subsequently moved for reconsideration
and clarification of the district court's use injunction but did
not contest the funding injunction or declaratory relief, there-
by agreeing to the Committee's abolition notwithstanding it
was originally intended to meet for three years. See NAS Br.
17-18 ("The current ICF Committee has been disestablished
and does not exist anymore."). Thus, "[p]ursuant to FACA,
as amended, if the Academy is asked to continue the periodic
review of the DOE's ICF Program, the Academy will create a
new advisory committee for that purpose." Id. at 17 n.6.
The district court denied the Department's reconsideration
request. See Natural Resources Defense Council v. Curtis,
No. 97-0308 (D.D.C. May 13, 1997) (order denying motion for
reconsideration), (NRDC II). Further, the district court
clarified that its use injunction "encompasses all [departmen-
tal] employees and subcontractors, including the ten national
laboratories and six primary contractors performing ICF-
related work identified by DOE in its papers." Id.
Deciding not to proceed with discovery and a trial on the
merits in the event the district court had properly awarded
injunctive relief pursuant to California Forestry Association
v. United States Forest Service, 102 F.3d 609 (D.C. Cir. 1996),
on July 14, 1997 the Department moved for expedited entry
of a permanent use injunction. The appellees opposed the
motion, contending that bypassing discovery and further fact-
finding deprived them of the opportunity to compile a factual
record that would sustain a permanent use injunction on
appeal as well as the chance to request additional equitable
relief. Indeed, in contesting the expedited entry of a perma-
nent use injunction, the appellees conceded that a use injunc-
tion was the "most Draconian" relief they could be awarded
and that it was "not necessarily" the relief they would seek
after discovery. Status Conference of 8/6/97 Tr. 10. Instead,
they requested the use injunction simply to maintain the
status quo, recognizing that the Department "ultimately
might be able to use" the technical provisions of the report
and they might eventually obtain only "access" to Committee
materials. Id. at 9; see also id. at 4, 7.
The district court, however, sided with the Department,
concluding that the "plaintiffs have already obtained all the
relief they requested, except for an injunction against the
National Academy of Sciences, which the Court expressly
denied in its March 5, 1997 decision and order, and an award
of attorneys' fees, a matter that obviously remains open."
Natural Resources Defense Council v. Pea, No. 97-0308
(D.D.C. Aug. 6, 1997) (order and judgment entering perma-
nent use injunction), (NRDC III). The appellees subsequent-
ly moved to supplement the record but the district court
denied the motion, concluding that Fed. R. Civ. P. 52(b) does
not authorize post-judgment supplementation. See Natural
Resources Defense Council v. Pea, No. 97-0308 (D.D.C. Oct.
9, 1997) (order denying motion to supplement), (NRDC IV).
In so ruling, the district court noted that because "the
Department of Energy has stated that on appeal it does not
intend to challenge the completeness of the record that was
before the Court when it entered final judgment[,] ...
[p]laintiffs therefore will not be in the position of arguing the
sufficiency of the factual record that was before this Court."
Id. The Department and the Academy timely appealed only
the district court's permanent use injunction, declining to
contest either the declaratory relief or the funding injunction
the district court also awarded.
II. DISCUSSION
The Department argues that we should reverse and vacate
the district court's use injunction because the appellees do not
have standing to sue for such relief and, even if they do, the
equities do not warrant such a draconian remedy. The
Academy adds that the district court misapplied the test set
forth in California Forestry, the appellees' conflict-of-interest
and unbalanced-composition claims are either inapposite or
not justiciable and FACA does not extend to a technical
committee like the Committee that does not provide advice to
a federal agency on a discrete governmental policy.1 The
__________
1 The Academy's last argument is difficult to square with its
representation that it does not challenge "those portions of the
district court's judgment declaring that the DOE and the Academy
violated FACA and prohibiting any further funding or support to
the ICF Committee." NAS Br. 18; but cf. id. at 35 ("Here, where
the ICF has provided purely scientific and technical advice that is
not advice on any identified governmental policy, FACA's provisions
should not apply...."). As a result, we doubt whether the Acade-
my has preserved for appeal an objection to the district court's
declaration of a FACA violation.
appellees respond to these arguments and also contend that
the Department's decision to seek expedited entry of a per-
manent use injunction estops it (and the Academy) from
challenging (1) the adequacy of the factual record, (2) the
district court's application of the law to the facts and perhaps
even (3) the use injunction itself. Alternatively, they argue
that if the district court's use injunction cannot be sustained
on the current record, we should remand so that they have
the opportunity to discover the materials necessary to sup-
port the injunction or to request other equitable relief. Be-
cause the standing question goes to our jurisdiction, we
address it first. See Steel Co. v. Citizens for a Better Env't,
118 S. Ct. 1003, 1012 (1998) ("We decline to endorse such an
approach [reaching merits rather than addressing jurisdic-
tional questions] because it carries the courts beyond the
bounds of authorized judicial action and thus offends funda-
mental principles of separation of powers.").
A. The Appellants' Standing
"The most obvious difference between standing to appeal
and standing to bring suit is that the focus shifts to injury
caused by the judgment rather than injury caused by the
underlying facts." 15A Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice & Procedure
s 3902, at 63 (2d ed. 1991). The appellees argue that because
the use injunction was entered at the behest of the Depart-
ment, it is not injured by the district court's final order and
__________
Were we to reach the merits of the Academy's argument on
FACA's applicability, we doubt we would find the argument persua-
sive because it focuses on how the Committee was used rather than
on the Committee's creation. See ALDF, 104 F.3d at 428 ("[T]he
definition given by the Court [in Public Citizen v. United States
Department of Justice, 491 U.S. 440 (1989)] to an advisory commit-
tee utilized by the federal government focuses not so much on how
it is used but whether or not the character of its creating institution
can be thought to have a quasi-public status.") (emphasis original).
But cf. Judicial Watch, Inc. v. Clinton, 76 F.3d 1232, 1233 (D.C.
Cir. 1996) ("Accordingly, we have recognized that [FACA] is limited
to [established] committees that provide advice on an identified
governmental policy.").
"may not appeal from a disposition in its favor." Showtime
Networks, Inc. v. FCC, 932 F.2d 1, 4 (D.C. Cir. 1991). The
argument exalts form over substance. While the Department
did request expedited entry of the permanent use injunction,
it plainly did not do so to secure a "disposition in its favor."
Cf. Thomsen v. Cayser, 243 U.S. 66, 83 (1917) (denying motion
to dismiss appeal where plaintiffs did not oppose dismissal
below because "[t]he plaintiffs did not consent to a judgment
against them, but only that, if there was to be such a
judgment, it should be in final form instead of interlocutory,
so that they might come to this court without further delay");
Devex Corp. v. Houdaille Indus., Inc., 382 F.2d 17, 20-21 (7th
Cir. 1967) (defendant's role in proposing terms of final injunc-
tive order did not divest court of appellate jurisdiction to
review order at defendant's behest).
Moreover, we do not believe the Department waived its
right to appeal by moving for expedited entry of a permanent
use injunction. The consent-to-judgment waiver doctrine
provides that a party that consents to entry of final judgment
waives its right to appeal the judgment unless it expressly
reserves that right. See Shores v. Sklar, 885 F.2d 760, 764
n.7 (11th Cir. 1989) ("Shores' argument is intuitively suspect,
because it would effectively eliminate the long-established
consent-to-judgment waiver doctrine; that doctrine, and each
case applying it, rests upon the consent (i.e., waiver) of the
party.... This consent-to-judgment doctrine does not impli-
cate the subject matter jurisdiction of the court, although the
doctrine is sometimes cast in jurisdictional language, with
references of the 'standing' of the party to contest the issue
on appeal."), cert. denied, 493 U.S. 1045 (1990); Coughlin v.
Reagan, 768 F.2d 468, 470 (1st Cir. 1985) ("While it is
possible for a party to consent to a judgment and still
preserve his right to appeal, he must reserve that right
unequivocally, as it will not be presumed."). The Depart-
ment's motion for expedited entry of a permanent use injunc-
tion makes clear its intent to appeal the district court's final
judgment. See DOE's Mot. for Expedited Entry of Perma-
nent Inj., and Supp. Mem. 2, p 5 ("[T]he Secretary seeks the
opportunity to appeal a permanent injunction now, rather
than waiting for entry of final judgment after plaintiffs'
claims for relief against NAS are resolved, which will not
occur for at least several months."). Therefore, while the
Department's strategy may have been unnecessary in light of
28 U.S.C. s 1292(a) (allowing appeal from interlocutory in-
junctive order), it did not thereby waive its right to appeal.
Even if the Department had not expressly reserved its
right to appeal, it would not have waived its objection to the
appellees' standing--an objection directed to the district
court's subject matter jurisdiction. See White v. Commis-
sioner, 776 F.2d 976, 977 (11th Cir. 1985) (noting two excep-
tions to consent-to-judgment waiver doctrine: "(1) where the
party did not actually consent; (2) where the court lacked
subject matter jurisdiction to enter the judgment"); Cough-
lin, 768 F.2d at 470 ("Relief on appeal from a consent
judgment is available only on a showing of either lack of
actual consent, fraud in obtaining consent, lack of federal
jurisdiction, or mistake."). Thus, we would have appellate
jurisdiction at least over the Department's challenge to the
appellees' standing--which in any event, for the reasons
discussed below, is the only claim we reach.
The Academy, however, is not so situated. As the district
court recited below, "The preliminary injunction runs only
against the Department of Energy and not against the NAS
in any way." NRDC II, supra; accord NRDC III, supra
("[P]laintiffs have already obtained all the relief they request-
ed, except for an injunction against the National Academy of
Sciences, which the Court expressly denied."). We therefore
fail to see how the Academy is aggrieved. It plainly was not
harmed by the district court's decision to deny the appellees'
prayer for injunctive relief against the Academy. See Public
Serv. Comm'n of Mo. v. Brashear Freight Lines, Inc., 306
U.S. 204, 206 (1939) ("[T]he successful party below has no
standing to appeal from the decree denying the injunction.");
McLaughlin v. Pernsley, 876 F.2d 308, 313 (3d Cir. 1989)
("Because the preliminary injunction does not affect any
legally cognizable interest of CSS, we will dismiss this appeal
of CSS for lack of standing."). Moreover, when we pressed
the Academy at oral argument to describe how it had been
harmed by the district court's use injunction, the only answer
the Academy gave was that the injunction infringed its First
Amendment right to be heard by the audience of its choosing
(i.e., the Department), relying on the holding in City of
Madison, Joint School District No. 8 v. Wisconsin Employ-
ment Relations Commission, 429 U.S. 167 (1976). See Oral
Argument of 5/13/98 Tr. 29-31. Even assuming the Academy
had such a right, the district court's use injunction does not
infringe it. The injunction does not forbid the Department
from listening to the Academy's views; it bars the Depart-
ment from "utilizing, relying on or in any way incorporating
into its decisionmaking process the ICF Committee report or
any other work product of the ICF Committee." NRDC III,
supra; cf. Center for Auto Safety v. Cox, 580 F.2d 689, 694
(D.C. Cir. 1978) ("We see no serious constitutional problems
inherent in application of FACA to independent organizations
acting as spokesmen for their members. AASHTO and its
members remain free to communicate their views to the
Administrator. They remain free to lobby the FHWA. Con-
gress has determined simply that when a federal executive
official utilizes an advisory committee to assist him in dis-
charging his responsibilities, in most instances he must do so
openly and publicly. AASHTO has no First Amendment
right to have the Administrator keep its communications
secret."). Accordingly, we conclude that the Academy is
without standing to appeal the district court's use injunction.
B. The Appellees' Standing
Having determined that only the Department can appeal,
we turn now to the question of the appellees' standing to sue
for a use injunction. We think it important to note first that
our California Forestry decision in no way suggested that the
standing inquiry is optional if a FACA use injunction is
involved. Indeed, we did not address the question of stand-
ing in that case because the district court had not had the
opportunity to consider whether injunctive relief was proper,
much less to find facts determining the plaintiff's standing to
sue for the relief. See California Forestry, 102 F.3d at 613
("We are unable to determine the propriety of injunctive
relief at the summary judgment stage because the district
court has yet to make factual findings.").2 Moreover, because
Article III standing is always an indispensable element of the
plaintiff's case, neither we nor the Congress can dispense
with the requirement--even if its application renders a FACA
violation irremediable in a particular case. See Bennett v.
Spear, 117 S. Ct. 1154, 1161 (1997) (comparing "immutable
requirements" of Article III standing with prudential stand-
ing limitations, which, "unlike their constitutional counter-
parts, ... can be modified or abrogated by Congress");
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)
("Since they are not mere pleading requirements but rather
an indispensable part of the plaintiff's case, each element [of
standing] must be supported in the same way as any other
matter on which the plaintiff bears the burden of proof, i.e.,
with the manner and degree of evidence required at the
successive stages of the litigation."); Florida Audubon Soc'y
v. Bentsen, 94 F.3d 658, 665-66 (D.C. Cir. 1996) (en banc)
("[A]n inescapable result of any standing doctrine application
is that at least some disputes will not receive judicial review.
That analysis of a party's standing should sometimes dictate
this result is not a reason to reject either the result or the
analysis.").
The Article III standing inquiry includes three elements:
First and foremost, there must be alleged (and ultimately
proven) an injury in fact--a harm suffered by the plain-
tiff that is concrete and actual or imminent, not conjec-
tural or hypothetical. ... Second, there must be causa-
tion--a fairly traceable connection between the plaintiff's
injury and the complained-of conduct of the defendant.
... And third, there must be redressability--a likeli-
hood that the requested relief will redress the alleged
injury. ... This triad of injury-in-fact, causation, and
redressability comprises the core of Article III's case-or-
controversy requirement, and the party invoking federal
__________
2 Similarly, the authority the appellees use for support, Ala-
bama-Tombigbee Rivers Coalition v. DOI, 26 F.3d 1103 (11th
Cir.1994), does not directly address standing.
jurisdiction bears the burden of establishing its exis-
tence.
Steel Co., 118 S. Ct. at 1016-17 (internal quotations and
citations omitted).
The Supreme Court's decision in Public Citizen v. United
States Department of Justice, 491 U.S. 440 (1989), addresses
the standing of a private party to seek redress for a FACA
violation. In Public Citizen the plaintiffs sued for injunctive
and declaratory relief based on the Justice Department's
failure to abide by FACA requirements in consulting with the
American Bar Association's (ABA's) Standing Committee on
the Federal Judiciary about the qualifications of a nominee
for appointment to a federal judgeship. The plaintiffs did not
seek to enjoin the Justice Department from using the ABA
Committee's work product; rather, they sought to enjoin it
from "utilizing the ABA Committee as an advisory committee
until it complied with FACA." Public Citizen, 491 U.S. at
447 (emphasis added). The ABA argued that the plaintiffs
did not have standing to sue for injunctive relief because (1)
their asserted injury--exclusion from committee meetings
and no access to committee documents and records--was "a
general grievance shared in substantially equal measure by
all or a large class of citizens" and because (2) the plaintiffs
"have not demonstrated that a decision in their favor would
likely redress the alleged harm, because the meetings they
seek to attend and the minutes and records they wish to
review would probably be closed to them under FACA." Id.
at 448-49 (citation to brief omitted). The Supreme Court
rejected both arguments: first, it concluded that "refusal to
permit appellants to scrutinize the ABA committee's activities
to the extent FACA allows constitutes a sufficiently distinct
injury to provide standing to sue," id. at 449; second, it held
that the "[a]ppellants' potential gains are undoubtedly suffi-
cient to give them standing," id. at 451 (emphasis added).
With respect to the latter holding, the Supreme Court ob-
served that a ruling in the appellants' favor would require the
ABA Standing Committee "to file a charter and give notice of
its meetings" and would allow the appellants to attend at least
some meetings and to obtain at least some documents--
especially, "discussions and documents regarding the overall
functioning of the ABA Committee, including its investigative,
evaluative, and voting procedures." Id. at 450.
The Department contends that the appellees here lack
standing to sue because the use injunction will not redress
any of their claimed injuries--namely, exclusion from past
Committee meetings and denial of access to Committee rec-
ords and documents. In other words, the Department ar-
gues, the appellees have not shown that the Department's use
of the Committee's report or other work product will cause
them to sustain an Article III injury in fact.
The appellees first counter that, as the district court con-
cluded, Public Citizen makes clear their standing to sue for a
use injunction. We disagree. Unlike the injunctive relief at
issue in Public Citizen, the use injunction awarded here will
not give the appellees access to Committee documents and
future Committee meetings. Indeed, the Committee has
been dissolved and will no longer meet, deliberate or generate
documents or records. Moreover, the use injunction does not
require the disclosure of any Committee documents or rec-
ords. Accordingly, we agree with the Department that Pub-
lic Citizen does not compel the conclusion that the appellees
have standing to seek any and all kinds of equitable relief for
the admitted FACA violations. Cf. City of Los Angeles v.
Lyons, 461 U.S. 95, 105 (1983) (while past exposure to alleged
illegal conduct was presumably sufficient to establish plain-
tiff's standing to sue for damages, it was inadequate standing
for injunctive relief).
Alternatively, the appellees argue that the use injunction
redresses both their past and their future injuries:
First, plaintiffs were denied their rights to contempo-
raneous access to the workings of the ICF Committee.
Had DOE and NAS complied with FACA, plaintiffs could
have reviewed materials presented to, and prepared by,
the ICF Committee, presented comments based on this
review, and generally played the public oversight role for
which FACA is designed. Instead, they were denied this
contemporaneous access. An injunction against the use
of the ICF Committee Report redresses this injury by
preventing DOE from making use of the product of this
illegal process. See Alabama-Tombigbee Rivers Coali-
tion v. Department of Interior, 26 F.3d 1103 (11th Cir.
1994).
Second, plaintiffs' injury continues to the present
because DOE and NAS are withholding materials which
Section 10 of FACA requires be released to the public.
Thus, were the Court to permit DOE to make use of the
ICF Committee Report now, plaintiffs' injury would be
compounded because they still would not have the mate-
rials to which they are entitled under FACA, and which
they need in order to publicly critique the Report in the
manner that FACA allows. Enjoining DOE from using
the Report--at least until and unless DOE and NAS
make some additional effort to comply with FACA--
redresses this injury by preventing DOE from both
taking advantage of the Report and simultaneously deny-
ing plaintiffs access to the materials underlying it.
Appellees Br. 27 (emphasis original; footnote omitted).3 We
are not convinced by either argument.
The first erroneously presumes that the punitive conse-
quences of the injunctive order suffice to establish that the
order redresses the Department's past FACA transgressions.
On the contrary, injunctive relief principally serves a remedi-
al purpose, not a punitive one, and thus the injunction's
collateral punitive effects do not by themselves satisfy Article
__________
3 The appellees also argue that the Department's request for
entry of a permanent use injunction, and the resulting cessation of
discovery, estops it from now challenging their standing. See
Appellees Br. 28. We cannot agree. Standing is a "threshold
jurisdictional question," Steel Co., 118 S. Ct. at 1016, and "no action
of the parties can confer subject-matter jurisdiction." Insurance
Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982). "Thus, the consent of the parties is irrelevant, ...
principles of estoppel do not apply, ... and a party does not waive
the requirement by failing to challenge jurisdiction early in the
proceedings." Id. (internal citations omitted).
III's redressability requirement. See Hartford-Empire Co.
v. United States, 323 U.S. 386, 409 (1945) ("[W]e may not
impose penalties in the guise of preventing future viola-
tions."); id. at 435 (Black, J. dissenting) ("[R]elief in equity is
remedial, not penal."); 11A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure
s 2942, at 53-54 (2d ed. 1995) ("[S]ince the purpose of an
injunction is remedial, not punitive, if the effect of granting
relief is to penalize defendants ... it may be denied.")
(footnotes omitted). To the extent the appellees suggest that
the use injunction serves the admittedly remedial purpose of
deterring the Department from violating FACA in the future,
in the absence of allegations regarding the likely occurrence
of such violations, such a "generalized interest in deterrence
... is insufficient for the purposes of Article III." Steel Co.,
118 S. Ct. at 1019. Moreover, their argument mistakenly
assumes that injunctive relief redresses past FACA viola-
tions. To the contrary, "Past exposure to illegal conduct does
not in itself show a present case or controversy regarding
injunctive relief ... if unaccompanied by any continuing,
present adverse effects." O'Shea v. Littleton, 414 U.S. 488,
495-96 (1974); accord Steel Co., 118 S. Ct. at 1020 ("Because
respondent alleges only past infractions of [the statute], and
not a continuing violation or the likelihood of a future viola-
tion, injunctive relief will not redress its injury."); City of Los
Angeles v. Lyons, 461 U.S. 95, 105 (1983) ("Lyons' standing to
seek the injunction requested depended on whether he was
likely to suffer future injury from the use of the chokeholds
by police officers.") (emphasis added); Juidice v. Vail, 430
U.S. 327, 331-33 (1977) (certain appellees lacked standing to
sue for injunctive relief because they had completed prison
term or paid applicable fine and were not "threatened with
further or repeated proceedings."); Church v. City of Hunts-
ville, 30 F.3d 1332, 1337 (11th Cir. 1994) ("Because injunc-
tions regulate future conduct, a party has standing to seek
injunctive relief only if the party alleges, and ultimately
proves, a real and immediate--as opposed to merely conjec-
tural or hypothetical--threat of future injury.").
The appellees' second argument--that the use injunction
redresses their continuing injury stemming from the Depart-
ment's ongoing refusal to give them FACA access to Commit-
tee documents and records--is equally without merit. That
the appellees may have sustained a continuing injury by
virtue of the Department's ongoing denial of FACA access to
Committee documents and records cannot support their
standing to sue for an injunction that does not itself address
the access issue. See Steel Co., 118 S. Ct. at 1019 ("Relief
that does not remedy the injury suffered cannot bootstrap a
plaintiff into federal court; that is the very essence of the
redressability requirement.").
Finally, the appellees argue in the alternative that they
should have the opportunity to take discovery and/or to
streamline their request for equitable relief in order to over-
come any standing problem or other shortcoming. The argu-
ment is tied to the significant differences between the eviden-
tiary support required for preliminary injunctive relief and
that required for permanent injunctive relief:
The purpose of a preliminary injunction is merely to
preserve the relative positions of the parties until a trial
on the merits can be held. Given this limited purpose,
and given the haste that is often necessary if those
positions are to be preserved, a preliminary injunction is
customarily granted on the basis of procedures that are
less formal and evidence that is less complete than in a
trial on the merits. A party thus is not required to prove
his case in full at a preliminary-injunction hearing, ...
and the findings of fact and conclusions of law made by a
court granting a preliminary injunction are not binding
at trial on the merits.... In light of these consider-
ations, it is generally inappropriate for a federal court at
the preliminary injunction stage to give a final judgment
on the merits.
University of Texas v. Carmenisch, 451 U.S. 390, 395 (1981)
(citations omitted); accord Communications Maintenance,
Inc. v. Motorola, Inc., 761 F.2d 1202, 1205 (7th Cir. 1985) ("A
court must be cautious in adopting findings and conclusions
from the preliminary injunction stage in ruling on a motion
for summary judgment for two reasons. First, a court's
findings of fact and conclusions of law at the preliminary
injunction stage are often based on incomplete evidence and a
relatively hurried consideration of the issues. ... Second,
the questions focused on differ in deciding a motion for
preliminary injunction and in deciding a motion for summary
judgment. In the former, a court considers whether there is
a reasonable likelihood that the moving party will prevail on
the merits; in the latter a court considers whether there is
any issue of material fact remaining after construing the
facts in a light most favorable to the non-moving party.")
(emphases original; citations omitted).
The district court's decision to omit both discovery and a
trial on the merits, thus losing the opportunity to consider
less severe equitable relief, had the same effect as would have
occurred had the appellees been required to fully make their
case at the preliminary injunction hearing--a practice at odds
with both the Federal Rules of Civil Procedure and the
provisional nature of preliminary injunctive relief. See Unit-
ed States v. Owens, 54 F.3d 271, 277 (6th Cir.) ("[W]e must
vacate the permanent injunction and remand this case to the
district court to allow [the plaintiff] to conduct additional
discovery and present his version of the facts at an evidentia-
ry hearing. Otherwise, we would create a rule that would
obligate a party to present his full case at a hearing for a
preliminary injunction."), cert. dismissed sub nom. Spirko v.
United States, 516 U.S. 983 (1995).
Moreover, we believe the unusual circumstances here indi-
cate that reversal and remand, rather than vacatur, appropri-
ately dispose of the appeal. In this regard, we rely on our
decision in Fair Employment Council of Greater Washing-
ton, Inc. v. BMC Marketing Corp., 28 F.3d 1268 (D.C. Cir.
1994). In Fair Employment the plaintiffs' only viable claim
sought injunctive relief. Their complaint, however, did not
allege a likely future injury that would be redressed by such
relief and thus their claim was fatally defective on standing
grounds. Id. at 1272-74. Nonetheless, because the district
court erroneously believed that the plaintiffs' allegations were
sufficient to establish their standing, it did not consider
whether the plaintiffs should be permitted to amend their
complaint to add allegations of prospective injury. Id. at
1275. We then determined that a remand rather than out-
right dismissal was preferable:
[W]hile we vacate the district court's denial of [the
defendant's] motion to dismiss the individual testers' suit,
we do not order it to grant that motion; instead, we
remand the case for the district court to exercise its
sound discretion over whether to permit amendment.
We see no reason why plaintiffs who win in the district
court should automatically be in a worse position than
plaintiffs whose allegations of standing have been rightly
found defective by the district court.
Id. (emphasis original). Indeed, the case for remand is
somewhat stronger here than in Fair Employment because
here the appellees plainly have standing to request injunctive
relief directing the Department to make Committee docu-
ments and records available to the full extent permitted by
FACA, see Public Citizen, 491 U.S. at 450-51; see also FEC
v. Akins, 118 S. Ct. 1777, 1784 (1998), and on appeal they
have indicated their desire to specifically request that relief.
See Oral Argument of 3/13/98 Tr. 36; cf. California Forestry,
102 F.3d at 614 ("We cannot assess these competing claims at
this stage and therefore remand to the district court to
fashion an appropriate remedy in the first instance.").
Finally, we think a remand here is also consistent with our
precedent allowing jurisdictional discovery and factfinding if
allegations indicate its likely utility. See Women's Equity
Action League v. Bell, 743 F.2d 42, 44 (D.C. Cir. 1984) ("On
the record before this court, we are unable to decide these
[standing] issues in the first instance. Issues of unresolved
fact may be implicated. Moreover, it is our general practice
to allow full development and presentation in the district
court of matters that surface initially on appeal. ... We
will therefore remand this case to the district court for a
current ruling on whether standing and other threshold Arti-
cle III requirements are satisfied."); cf. El-Fadl v. Central
Bank of Jordan, 75 F.3d 668, 676 (D.C. Cir. 1996) (remanding
because "even though El-Fadl's present jurisdictional allega-
tions are insufficient, he has sufficiently demonstrated that it
is possible that he could supplement them through discov-
ery"); Edmond v. United States Postal Serv. Gen. Counsel,
949 F.2d 415, 425 (D.C. Cir. 1991) (remanding after conclud-
ing that "it is an abuse of discretion to deny jurisdictional
discovery" in light of allegations suggesting jurisdiction);
Crane v. Carr, 814 F.2d 758 (D.C. Cir. 1987) (similar). Here,
the record suggests at least one way in which the appellees
may be able to establish their standing. At oral argument
the appellees' counsel suggested that the Committee report
might be used by the Department to continue NIF's construc-
tion or might otherwise affect the future operation of NIF.
In turn, certain appellees who live near LLNL could have an
increased exposure to hazardous substances that may be
emitted during the ignition process. See Oral Argument of
3/13/98 Tr. 52-53. If adequately supported through discov-
ery, such threatened injuries might establish their standing.
Cf. Community for Creative Non-Violence v. Pierce, 814 F.2d
663, 666 (D.C. Cir. 1987) ("For appellants to establish stand-
ing in this case, therefore, they must allege (1) an injury that
is (2) fairly traceable to the HUD Report and (3) likely to be
redressed by a judicial decision rescinding the Report."). At
this stage, however, their complaint and affidavits do not
explain how forbidding the Department from using the Com-
mittee report likely would redress their exposure injury or
how the Department's use of the report will make it more
likely that some of them could be exposed to increased
emissions of hazardous substances.4 Cf. Community for
Creative Non-Violence, 814 F.2d at 669 ("[A]ppellants must
show that the agency's action is more than only one of the
many factors whose relative influence may affect the third
__________
4 To the extent the appellees' injury stems from the effect of
the report on the Department's decision to build NIF, their claims
appear to suffer from a fatal causation defect: the Department's
use of the report cannot be responsible for their injury because the
Department decided to proceed with construction without reference
to the Committee's conclusions. See United Transp. Union v. ICC,
891 F.2d 908, 915 (D.C. Cir. 1989) ("[S]ince any hypothetical future
injury could also occur even in the absence of the challenged ICC
rule, a favorable decision from this court would not be 'likely' to
parties' behavior."); id. ("[S]atisfying [the redressability]
aspect of the standing inquiry entails more than simply
alleging facts that indicate that the withdrawal and rescission
of the report will make a difference because it will remove
one influence possibly motivating third parties' injurious ac-
tions."); Physicians' Educ. Network, Inc. v. HEW, 653 F.2d
621, 627 (D.C. Cir. 1981); cf. Florida Audubon Soc'y, 94 F.3d
at 664 ("[T]he [Supreme] Court has never freed a plaintiff
alleging a procedural violation from showing a causal connec-
tion between the government action that supposedly required
the disregarded procedure and some reasonably increased
risk of injury to its particularized interest.").5
If the district court concludes that the plaintiffs have
standing to sue for a use injunction, that conclusion would not
__________
redress it."), cert. denied, 497 U.S. 1024 (1990). Moreover, even if
the appellees can establish standing based on their proximity to
NIF and resulting exposure to hazardous emissions, that would
provide no basis to enjoin the Department from using those por-
tions of the report that recommend conducting experiments at sites
other than LLNL. See Gulf Oil Corp. v. Brock, 778 F.2d 834, 842
(D.C. Cir. 1985); Lewis v. Casey, 116 S. Ct. 2174, 2183 (1996) ("The
[injunctive] remedy must of course be limited to the inadequacy
that produced the injury-in-fact that the plaintiff has established.");
cf. id. n.6 ("But standing is not dispensed in gross. If the right to
complain of one administrative deficiency automatically conferred
the right to complain of all administrative deficiencies, any citizen
aggrieved in one respect could bring the whole structure of state
administration before the courts for review.").
5 At oral argument the Department also stated that if we
uphold the use injunction there is at least "a reasonable possibility"
the Department may have to duplicate the efforts of the now-
defunct Committee by creating a new committee. See Oral Argu-
ment of 3/13/98 Tr. 7-8. If so, the use injunction may have the
same effect as an injunction directing the Department to establish a
new ICF committee that complies with FACA so that the appellees
can then participate contemporaneously in the committee's activi-
ties--an equitable remedy redressing loss of a past opportunity by
mandating provision of a future one. Whether the court can use its
equitable power to order a co-equal branch of government to
mandate a judgment in their favor. And unlike the district
court, we do not think California Forestry may be read to
suggest otherwise.
In California Forestry we observed that a use injunction
might be appropriate in some cases, and perhaps even
this case, if the unavailability of an injunctive remedy
would effectively render FACA a nullity. On remand,
however, the district court should inquire whether under
the circumstances an injunction would promote FACA's
purposes. The preparation of the report has already
consumed millions of dollars. If the Forest Service
needs a scientific evaluation of the Sierra Nevada for its
own use, an injunction prohibiting its use of the SNEP
study would require it to commission another (presum-
ably duplicative) study of the Sierra Nevada. That re-
sult would not meet FACA's aim to reduce wasteful
expenditures. ... A second purpose of FACA is to
enhance the public accountability of advisory committees
established by the Executive Branch. ... The record
indicates that at least some of the Science Team meet-
__________
affirmatively perform a discretionary act is a question we leave for
another day. Cf. Swan v. Clinton, 100 F.3d 973, 976-77 & n.1 (D.C.
Cir. 1996) (noting that mandatory injunction against President is
appropriate only (1) if petitioner satisfies requirements needed for
mandamus relief and (2) if injunction will compel performance of
"ministerial" rather than discretionary obligation).
In any event, their current allegations do not suggest they will be
injured by the withholding of a use injunction because it will
deprive them of the "reasonable possibility" that they can partici-
pate in the activities of a reconstituted committee in the future.
See Steel Co., 118 S. Ct. at 1020 ("Because respondent alleges only
past infractions of [the statute], and not a continuing violation or the
likelihood of a future violation, injunctive relief will not redress its
injury."); Fair Employment, 28 F.3d at 1272 ("[T]he tester plain-
tiffs['] ... federal claims reduce to their request for injunctive or
declaratory relief. Yet ... they lack standing to seek such prospec-
tive relief, for they have not made sufficient allegations that they
are threatened with any future illegality.").
ings were open to the public. Furthermore, SNEP made
other efforts to keep the public informed--it published
newsletters and provided information to a "key contacts
group" comprised of eighty-seven individuals and repre-
sentatives of various organizations, including CFA. The
need for injunctive relief may be reduced where, as here,
there has been at least some attempt to ensure public
accountability.
California Forestry, 102 F.3d at 614 (citations and quotations
omitted). The district court distilled from this passage a
four-part test to decide whether to grant a use injunction:
"(1) whether 'the unavailability of an injunctive remedy would
effectively render FACA a nullity'; (2) whether an injunction
would promote FACA's purposes; (3) whether substantial
funds have already been spent, and (4) whether 'there has
been at least some attempt to ensure public accountability.' "
NRDC I, supra. We believe in doing so, it misread the
opinion.
In California Forestry our discussion about whether denial
of a use injunction would "render FACA a nullity" was
intended to highlight that the relief should be awarded only
rarely; we did not mean that if suit is not brought until late
in the day, an injunction should necessarily issue to ensure
respect for the law. Because of its First Amendment implica-
tions, punitive effect and likely standing complications, a use
injunction should be the remedy of last resort. While deny-
ing a use injunction may leave a plaintiff without an effective
remedy, that circumstance cannot determine the plaintiff's
ultimate entitlement to the relief. If the plaintiff has failed to
prosecute its claim for injunctive relief promptly, and if it has
no reasonable explanation for its delay, the district court
should be reluctant to award relief. Cf. Independent Bankers
Ass'n v. Heimann, 627 F.2d 486, 488 (D.C. Cir. 1980) ("The
venerable maxim vigilantibus non dormientibus aequitas
subvenit (equity aids the vigilant, not those who slumber on
their rights) requires that a suit in equity, though otherwise
meritorious, be dismissed if two requirements are met: (1)
unreasonable delay in bringing the claim for relief and (2)
prejudice caused by the delay."). On the other hand, if the
defendant is responsible for the delay, or if it has acted to
deprive the plaintiff of effective relief, the district court
should weigh that in providing a remedy.6
The district court should also consider whether FACA's
principal purposes--(1) avoidance of wasteful expenditures
and (2) public accountability--will be served by granting a
use injunction. While a complaint filed after a committee has
completed its meetings and is in the process of wrapping up
its affairs will likely produce waste if a use injunction is
granted, the district court should also consider the magnitude
of the waste, the value of the committee's work to the
sponsoring federal agency and the effect of the FACA viola-
tion on the committee's findings. As to the last, if the FACA
violation appears to have had little deleterious effect on the
committee's output and accountability and the public's partic-
ipation, the district court should withhold a use injunction.7
For example, where, as here, a large part of the Committee's
deliberations involved classified materials to which the public
would not have had access even under FACA, the loss of
public participation is less significant. Similarly, the district
__________
6 Unlike the district court, we do not think denying a use
injunction would "render FACA a nullity." The court's funding
injunction ensured against future violations by the Committee and,
indeed, prompted its dissolution. The declaratory relief provided
the appellees and others ammunition for their attack on the Com-
mittee's findings. Further, an injunction directing the Academy
and the Department to disclose Committee records and documents
to the full extent permitted by FACA, which was plainly within the
district court's power, see Public Citizen, supra, would have re-
dressed any informational injury they may have sustained. All of
this constitutes "effective relief" for FACA violations and, although
it does not redress their "contemporaneous participation" injury, we
have never intimated that partial relief would "render FACA a
nullity."
7 The Administrative Procedure Act directs a reviewing court
to take "due account" of "the rule of prejudicial error." 5 U.S.C.
s 706. If a complaint is not filed until after a committee has
completed its work, a district court can do this by looking to the
effect of the FACA violation on the committee's work.
court's public accountability inquiry should focus on the actual
deprivation resulting from non-compliance. Substantial ef-
forts to include members of the interested public in at least
some committee meetings and attempts to screen for conflicts
of interest among committee members counsel against a use
injunction. Moreover, if members of the public will have
another opportunity to comment on an agency decision, the
district court should determine whether the subsequent op-
portunity will render harmless (or at least less harmful) the
loss of any past opportunity to participate.8 Cf. National
Nutritional Foods Ass'n v. Califano, 603 F.2d 327, 336 (2d
Cir.1979) (Friendly, J.) ("Applicable rulemaking procedures
afford ample opportunity to correct infirmities resulting from
improper advisory committee action prior to the proposal.").
The appellees who live near LLNL presumably had the
opportunity to comment on NIF's Programmatic Environ-
mental Impact Statement--a study specifically addressed to
the kind of adverse environmental effects they fear will be
produced by NIF's construction and operation. Further,
Tri-Valley CAREs has highlighted its long-standing involve-
ment with LLNL health and safety issues:
Tri-Valley CAREs has a long-held interest in the pro-
posed National Ignition Facility, and has--via gathering
__________
8 A future opportunity may create a causation problem in the
standing inquiry. If a report produced in violation of FACA cannot
be acted on by the agency without first undertaking a rulemaking
or adjudication, the plaintiff may have difficulty showing the FACA
violation is responsible for a concrete injury it has sustained or will
sustain based on the administrative decisionmaking process. See
Metcalf v. National Petroleum Council, 553 F.2d 176, 188 (D.C. Cir.
1977) ("One would hope that any governmental entity which formu-
lates national policy, be it DOI, FEA, the Congress or any other
group, would seek out, consider and balance all available informa-
tion before arriving at final decisions. In this case, appellant
Metcalf seeks to eliminate or alter a particular source of informa-
tion so that he can produce what he believes to be the 'best
legislative product.' ... If subjective feelings of injury were suffi-
cient to confer standing, the rather drastic consequences of a
curtailed information flow could result quite easily and often.").
written information, conducting meetings with technical
experts and other means--systematically carried out re-
search regarding the NIF since 1994. These activities
by Tri-Valley CAREs have included, but are not limited
to, participation on the LLNL NIF Environment, Safety
and Health Working Group, testimony at public hearings
on environmental, nuclear proliferation and other ques-
tions regarding NIF and numerous meetings with DOE
and LLNL officials.
Kelley Decl. p 10.
III. CONCLUSION
We reverse and remand the case to the district court to
consider further the plaintiffs' standing to sue for a use
injunction pursuant to Public Citizen and to allow the plain-
tiffs an opportunity to undertake discovery. On remand, and
following discovery, the district court should determine if the
plaintiffs have standing and, if so, it should consider whether
other injunctive relief would redress their alleged injuries.
So ordered.