United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 2005 Filed March 15, 2005
No. 04-1037
AMERICAN LIBRARY ASSOCIATION, ET AL.,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
MOTION PICTURE ASSOCIATION OF AMERICA, INC., ET AL.
INTERVENORS
On Petition for Review of an Order of the
Federal Communications Commission
Pantelis Michalopoulos argued the cause for petitioners.
With him on the briefs were Cynthia L. Quarterman, Rhonda M.
Bolton, Lincoln L. Davies, and Gigi B. Sohn.
Jacob M. Lewis, Attorney, Federal Communications
Commission, argued the cause for respondents. With him on the
brief were R. Hewitt Pate, Assistant Attorney General,
Catherine G. O’Sullivan and James J. Fredricks, Attorneys,
John A. Rogovin, General Counsel, Federal Communications
Commission, Austin C. Schlick, Deputy General Counsel, Daniel
M. Armstrong, Associate General Counsel, and C. Grey Pash,
Jr., Counsel.
2
Christopher Wolf, Bruce E. Boyden, Mace J. Rosenstein,
and Catherine E. Stetson were on the brief for intervenor Motion
Picture Association of America, Inc.
Before: EDWARDS, SENTELLE, and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
Dissenting opinion filed by Circuit Judge SENTELLE.
EDWARDS, Circuit Judge: This case involves a challenge
by petitioners American Library Association, et al. to a rule
adopted by the Federal Communications Commission (“FCC”
or “Commission”) requiring digital television receivers and
related electronic equipment manufactured on or after July 1,
2005 to give effect to the “broadcast flag,” a code that
broadcasters can insert into digital television content, which
signals reception equipment to limit the redistribution of that
content. See In the Matter of Digital Broadcast Content
Protection, Report and Order and Further Notice of Proposed
Rulemaking, 18 F.C.C.R. 23,550 (2003). Although petitioners
have an obvious interest in the rule, and they plausibly contend
that they will be adversely affected by its implementation, a
question has arisen about their standing to pursue this petition
for review.
The present petition for review poses an unusual situation
with respect to the court’s consideration of standing. In Sierra
Club v. EPA, 292 F.3d 895, 900 (D.C. Cir. 2002), we indicated
that “a petitioner whose standing is not self[-]evident should
establish its standing by the submission of its arguments and any
affidavits or other evidence appurtenant thereto at the first
appropriate point in the review proceeding.” This case presents
a situation not explicitly contemplated by Sierra Club. Both
petitioners and the Commission reasonably, if inaccurately,
concluded that petitioners’ standing was self-evident, so neither
party pursued the matter in their opening briefs to the court. An
intervenor, Motion Picture Association of America, Inc.
3
(“MPAA”), supporting the Commission, interposed a vague and
limited challenge to petitioners’ standing, which prompted an
equally vague and limited response from petitioners in their
reply brief, no response from the Commission, and no request
for additional information from the court before oral argument.
After hearing arguments, which did not resolve the issue, and
reviewing the administrative record, which is not fully
illuminating on the matter of standing, we have concluded that
more is required in order for the court to determine conclusively
whether petitioners have Article III standing.
****
In their initial submissions to the court, both petitioners and
the Commission apparently assumed that petitioners’ standing
was “self-evident” under Sierra Club. Petitioners included a
jurisdictional statement in their opening brief in which they
generally asserted a basis for Article III standing. See
Petitioners’ Br. at 1 (stating that “[e]ach of the petitioners . . .
has members whose right to make use of copyrighted
information will be adversely affected, and who will very likely
have to pay higher prices for certain consumer electronics
equipment, as a result of the Commission’s Order.”). This
statement was not contested by the Commission. After
petitioners filed their opening brief, MPAA suggested in a single
paragraph of its brief that petitioners had failed to comply with
Sierra Club. It was unclear, however, whether MPAA merely
meant to suggest that, because in its view standing was not self-
evident, petitioners had failed to satisfy the “pleading
requirements” of Sierra Club or, additionally, meant to contend
that petitioners lacked Article III standing. See MPAA Br. at 1.
Petitioners responded to MPAA’s argument in their reply brief,
asserting in general and conclusory terms that they did have
standing and providing some citations to case law and the
administrative record. See Petitioners’ Reply Br. at 6 n.1. The
FCC did not weigh in on the issue, apparently viewing
4
petitioners’ standing as self-evident. And the court did not seek
additional information from the parties before oral argument.
During the course of oral argument, counsel for the FCC
confirmed that the Commission was not challenging petitioners’
standing in this case. Recording of Oral Argument at 29:01-:17.
When members of the court questioned petitioners’ counsel
regarding standing, petitioners cited portions of the
administrative record in support of their standing. After oral
argument, petitioners provided additional citations in a letter to
the court. See Petitioners’ Letter Providing Citations of 2/23/05.
These citations give some indications that petitioners’ members
will suffer concrete and particularized injuries from the
Commission’s disputed broadcast flag rule. See, e.g., Joint
Comments of American Library Association, et al., 12/6/02,
reprinted in Joint Appendix (“J.A.”) 654, 669-70 (comments
submitted by five petitioners to the FCC before the adoption of
the order in dispute, asserting that a broadcast flag regime would
impair libraries’ capacity to make legitimate use of digital
content to promote research by making copies of television
broadcasts available to distant locations and would hinder
educators’ capacity to make legitimate use of digital content to
facilitate distance learning). But the information to which
petitioners pointed was not compiled to address standing and
thus does not fully illuminate the issue. Apparently
understanding this, petitioners suggested that an expedited
briefing order would be warranted if the court determined that
further argument regarding standing would be useful. See
Petitioners’ Letter Providing Citations of 2/23/05.
On the record before us, we conclude that petitioners
reasonably believed their standing is self-evident. Our
conclusion is based on several considerations. First, the
petitioners represent a large number of libraries and consumers
who indisputably will be directly affected by the broadcast flag
rule. Therefore, petitioners had good reason to assume that at
5
least one of their members would suffer an Article III injury
with the implementation of the disputed rule. Moreover, the
Commission conceded that the flag rule would result in
increased costs to consumers. Second, nothing in the record
alerted petitioners to the possibility that their standing would be
challenged in this court. Third, the administrative record
provides examples of legitimate uses of information
technologies made by libraries that could be adversely affected
by the flag rule.
In short, petitioners – like the Commission – reasonably
assumed that their standing was self-evident and, as a result, did
not support their standing with anything more than a general
jurisdictional statement in their opening brief and citations to
portions of the administrative record. Although we now require
more from petitioners, we find that they did not defy any
commands of Sierra Club in their initial submissions to the
court.
****
It is well established that a federal court cannot act in the
absence of jurisdiction, see B&J Oil & Gas v. FERC, 353 F.3d
71, 74-75 (D.C. Cir. 2004), and that jurisdictional issues may be
raised by the court sua sponte, see, e.g., Lee’s Summit, Mo. v.
Surface Transp. Bd., 231 F.3d 39, 41 (D.C. Cir. 2000). It is
equally well established that Article III standing is a prerequisite
to federal court jurisdiction, see, e.g., Crow Creek Sioux Tribe
v. Brownlee, 331 F.3d 912, 915-16 (D.C. Cir. 2003), and that
petitioners carry the burden of establishing their standing, see,
e.g., KERM, Inc. v. FCC, 353 F.3d 57, 59 (D.C. Cir. 2004).
Associations such as petitioners have representational
standing if: (1) at least one of their members has standing to sue
in her or his own right, (2) the interests the association seeks to
protect are germane to its purpose, and (3) neither the claim
asserted nor the relief requested requires the participation of an
6
individual member in the lawsuit. Cmtys. Against Runway
Expansion, Inc. v. FAA, 355 F.3d 678, 684 (D.C. Cir. 2004)
(citing Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S.
333, 343 (1977)); see also United Food & Commercial Workers
Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553-57
(1996) (explaining that Hunt lays out the test for associational
standing, which is one strand of representational standing). In
this case, we can find no reason to doubt that petitioners satisfy
the latter two requirements of associational standing, and neither
the FCC nor MPAA suggests otherwise. Therefore, petitioners
need not address these points in their supplemental submissions.
See Sierra Club, 292 F.3d at 898. The focus of our inquiry is
whether at least one of petitioners’ members has standing to sue
in her or his own right.
In order to meet this prong of the associational standing test,
petitioners must demonstrate that at least one of their members
satisfies the three elements that form the “irreducible
constitutional minimum of standing.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992).
First, [at least one of petitioners’ members] must have
suffered an “injury in fact” – an invasion of a legally
protected interest which is (a) concrete and particularized,
and (b) “actual or imminent, not ‘conjectural’ or
‘hypothetical.’” Whitmore [v. Arkansas, 495 U.S. 149, 155
(1990)]. Second, there must be a causal connection
between the injury and the conduct complained of – the
injury has to be “fairly . . . trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the
court.” Simon v. Eastern Ky. Welfare Rights Organization,
426 U.S. 26, 41-42 (1976). Third, it must be “likely,” as
opposed to merely “speculative,” that the injury will be
“redressed by a favorable decision.” Id., at 38, 43.
7
Id. at 560-61 (additional citations omitted) (alterations in
original). The only thing at issue in this case is the injury-in-fact
prong of Article III standing, for causation and redressability are
obvious if petitioners can demonstrate injury.
With regard to the injury-in-fact prong of the standing test,
petitioners need not prove the merits of their case in order to
demonstrate that they have Article III standing. Sierra Club,
292 F.3d at 898. Rather, in order to establish injury in fact,
petitioners must show that there is a substantial probability that
the FCC’s order will harm the concrete and particularized
interests of at least one of their members. See id.; see also
Warth v. Seldin, 422 U.S. 490, 511 (1975) (for an association to
have representational standing, “[t]he association must allege
that its members, or any one of them, are suffering immediate or
threatened injury as a result of the challenged action that would
make out a justiciable case had the members themselves brought
suit.”).
****
Before we turn to what is required of petitioners in this
case, a further word about Sierra Club is in order. The decision
in Sierra Club reminds petitioners challenging administrative
actions that, when they have good reason to know that their
standing is not self-evident, they should explain the basis for
their standing at the earliest appropriate stage in the litigation.
In other words, Sierra Club makes it clear that a party who
knows or should know that there are doubts about its standing
should address those doubts before oral argument. See Sierra
Club, 292 F.3d at 899-901. This prevents unfairness to an
agency that may have reasonable grounds to challenge a
petitioner’s standing, and it conserves the resources of the court
and the litigants. See id. at 901-02. Sierra Club does not,
however, prescribe a protocol for cases in which the parties
reasonably, but incorrectly, assume that a petitioner’s standing
is self-evident.
8
MPAA apparently reads Sierra Club to go significantly
further, creating an inflexible rule under which the court, in
assessing Article III standing, can look only to submissions
accompanying petitioner’s opening brief or those filed in
response to a motion to dismiss for lack of standing. See MPAA
Br. at 1; MPAA Letter of 2/25/05 (arguing that further briefing
on standing is not warranted as “[p]etitioners have already had
two opportunities to brief the issue”). MPAA’s interpretation of
Sierra Club rests on a faulty construction of the opinion and is
inconsistent with the law of this circuit. Nothing in Sierra Club
suggests that it is intended to create a “gotcha” trap whereby
parties who reasonably think their standing is self-evident
nonetheless may have their cases summarily dismissed if they
fail to document fully their standing at the earliest possible stage
in the litigation. And Sierra Club surely does not purport to
address a situation like the one we face in this case, where both
petitioners and the Government reasonably assumed that
petitioners’ standing was self-evident, the court did not seek
additional information before oral argument, and the
intervenor’s challenge appeared to be based more on what it
perceived to be the pleading requirements of Sierra Club than on
the requirements of Article III standing.
Moreover, Sierra Club did not alter the precedent of this
circuit, which makes it clear that the court may sua sponte seek
supplemental submissions after oral argument if it determines
that more information is necessary to satisfy itself that a
petitioner has Article III standing. See, e.g., United States
Telecom Ass’n v. FCC, 295 F.3d 1326, 1330-31 (D.C. Cir. 2002)
(noting that the court had directed the parties to submit
supplemental briefs on standing when standing had not been
disputed by respondent or intervenor in their opening briefs, and
allowing petitioner to submit affidavits after oral argument that
were ultimately found to establish Article III standing); Action
on Smoking & Health (ASH) v. Dep’t of Labor, 100 F.3d 991,
992 (D.C. Cir. 1996) (noting that the court had requested post-
9
argument affidavits to decide whether Article III standing
existed). In Communities Against Runway Expansion, we ruled
that, even though petitioners had failed to include submissions
adequate to demonstrate standing with their opening brief,
Sierra Club did not preclude the court from considering
declarations submitted along with petitioners’ reply brief, after
an intervenor had challenged petitioners’ standing. See 355 F.3d
at 684-85. We ultimately relied on those declarations to find
that petitioners had standing, concluding that the intervenor had
not been unfairly prejudiced because the additional submissions
demonstrated petitioners’ standing beyond any doubt. See id. at
685. It is also clear that Sierra Club does not preclude the court
from requesting post-argument briefing to resolve questions
regarding Article III standing. See Ctr. for Energy & Econ. Dev.
v. EPA, No. 03-1222, 2005 WL 386976, at *3-4 (D.C. Cir. Feb.
18, 2005) (following oral argument, the court sua sponte invited
the parties to brief whether the Center’s members suffered any
harm from the agency’s action).
While Sierra Club lays out the general rule that petitioners
whose standing is not self-evident should demonstrate their
standing at the first appropriate point in the litigation, our case
law is clear that the court retains the discretion to seek
supplemental submissions from the parties if it decides that
more information is necessary to determine whether petitioners,
in fact, have standing. Depending on the circumstances of the
case, the court may allow petitioners to support their standing in
their reply brief, in affidavits submitted along with the reply
brief, through citations to the existing record at oral argument,
or through additional briefing or affidavits submitted to the court
after oral argument. To prevent the sandbagging of opposing
parties, the court may also, as appropriate, allow parties
challenging a petitioner’s standing to respond to the petitioner’s
additional submissions.
10
MPAA’s “gotcha” construction of Sierra Club is
inconsistent with our precedent and would have the undesirable
effect of causing parties to include long jurisdictional statements
in practically all opening briefs for fear that the court might find
their standing less than self-evident. This would waste, rather
than conserve, judicial resources and place an unnecessary
burden on litigants.
****
Obviously, a petitioner’s claim that its standing is self-
evident is not dispositive of the issue. There may be a
disjunction between what a petitioner assumes that the court
knows about its organization and operation and what the court
actually knows, thus causing the petitioner to assume incorrectly
that its standing is self-evident. Thus, whether standing is self-
evident must be judged from the perspective of the court, not the
petitioner. A petitioner who is unsure whether the court will
comprehend its standing should provide the court with enough
information to ensure that standing can be confirmed. And if a
party raises a comprehensible challenge to a petitioner’s
standing, the petitioner is well advised to respond with precision
and clarity to make it clear that standing is present.
As we have already noted, this case poses a situation not
expressly contemplated by Sierra Club. Petitioners’
jurisdictional statement in their opening brief asserted a basis for
standing. The Commission did not contest standing, either in its
brief or when pressed at oral argument, lending some credence
to the reasonableness of petitioners’ assumption that standing
was self-evident. MPAA challenged standing in its brief, but the
challenge was at best cryptic and focused more on the pleading
requirements of Sierra Club than on the requirements of Article
III standing. Nonetheless, as was clear from some of the
questioning at oral argument, the judges struggled with the
issue. It became clear during oral argument that petitioners
believed that the information in the administrative record
11
conclusively confirmed the nature of their organizations and the
injury that they would suffer if the FCC’s new rule was
implemented. This was made even more clear by petitioners’
post-hearing submissions, which simply pointed the court to the
administrative record. Having reviewed the administrative
record, we can now understand why petitioners may have
thought that standing was self-evident. Nonetheless, we remain
dubitante.
In the future, petitioners whose standing is challenged
should be more precise in their response, no matter how cryptic
the challenge may appear to be. However, Sierra Club gives no
clear guidance with respect to a case like this, i.e., a case in
which neither petitioners nor the Commission were
unreasonable in assuming that petitioners’ standing was self-
evident and the intervenor’s challenge was vague and
unfocused. As we have noted, the court clearly has the authority
to seek information from a party, either before, during, or after
oral argument, to clarify standing. Indeed, even if Sierra Club
did apply here, the circumstances of this case would implicate
Sierra Club’s statement that the court may allow petitioners to
submit post-argument affidavits addressing the issue of standing
when “good cause [is] shown.” Sierra Club, 292 F.3d at 900.
****
We turn now to what is required of petitioners in this case.
We note that, in joint comments submitted to the FCC pursuant
to a notice of proposed rulemaking on the broadcast flag regime,
see In the Matter of Digital Broadcast Copy Protection, Notice
of Proposed Rulemaking, 17 F.C.C.R. 16,027 (2002), and in
various submissions to this court, the American Library
Association, the American Association of Law Libraries, the
Association of Research Libraries, the Medical Library
Association, and the Special Library Association raised the
possible effects of the adoption of a broadcast flag regime on the
ability of libraries to make legitimate uses of digital content
12
related to their research and educational missions. See Joint
Comments of 12/6/02, J.A. 669-70. The court now seeks
amplification of these points and, in particular, requests that
petitioners address several matters in affidavits we request with
this opinion.
First, is the Television News Archive at Vanderbilt
University, discussed at J.A. 669, a member of any of the
petitioning associations? If not, are any of petitioners’ members
engaged in the process of storing television broadcasts and
sending copies of those broadcasts to distant locations?
Second, petitioners must explain whether there is a
substantial probability that the Commission’s broadcast flag
regime will hinder the ability of any of petitioners’ members to
engage in otherwise permissible copying and distribution of
television broadcasts to distant locations and, if so, in precisely
what way such hindrance is likely to occur.
Third, in their Joint Comments of 12/6/02, American
Library, et al. stated: “A broadcast flag . . . would hinder
precisely what the TEACH Act is designed to promote. For
example, an educator who wishes to use excerpts from a
television news program to illustrate a lesson in the electronic
classroom might not be able to record the program, nor to
incorporate the material into a lesson designed for students in a
class whose access is through the Internet.” J.A. 670. Do any
of petitioners’ members qualify as “accredited nonprofit
educational institution[s]” under 17 U.S.C. § 110? If so,
petitioners must explain precisely how the broadcast flag regime
will hinder these members in their ability to engage in distance
learning or other electronic teaching covered by the TEACH
Act. See Technology, Education, and Copyright Harmonization
Act, Pub. L. No. 107-273, § 13301, 116 Stat. 1758, 1910 (2002).
Finally, are there any injuries (not including the potential
increased cost of consumer electronics), not addressed by the
13
foregoing questions, that identifiable members of petitioners’
organizations will face as a result of the broadcast flag regime?
If so, petitioners must identify the relevant member or members
and describe the precise nature of the injury that will be caused
by the FCC’s adoption of the broadcast flag regime.
Petitioners should file affidavits addressing the questions
raised above within two weeks of the issuance of this opinion,
along with an accompanying brief of no more than 4,000 words.
We remind petitioners that, in order for them to establish injury
in fact, these affidavits must include specific facts demonstrating
that there is a substantial probability that the FCC’s order will
“directly affect[]” the ability of at least one of petitioners’
members to make legitimate use of digital content in relation to
its research or educational missions or that the FCC’s order will
directly affect some other judicially cognizable interest. Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 184 (2000). Affidavits containing “general averments,”
“conclusory allegations,” and “speculative ‘some day’
intentions” are inadequate to demonstrate injury in fact. Id.
(internal quotations and citations omitted). Finally, if they so
desire, the Commission and MPAA will be allowed ten calendar
days after petitioners submit their affidavits and brief to submit
briefs of not more than 4,000 words each addressing petitioners’
Article III standing.
So ordered.
SENTELLE , Circuit Judge, dissenting: I dissent from
what appears to me to be provision of an opportunity to a
petitioner before this Court to create a new record establishing
justiciability and jurisdiction not present in the record before us.
As the majority notes, this Court, like all federal courts, “cannot
act in the absence of jurisdiction.” See, e.g., B&J Oil & Gas v.
FERC , 353 F.3d 71, 74-75 (D.C. Cir. 2004). As the majority
further notes, jurisdictional issues may, indeed must, be raised
by the court sua sponte when jurisdiction is lacking. It is also
true that we have exercised our discretion to permit litigants to
clarify the record by filing further affidavits on jurisdictional
subjects, specifically standing, even after oral argument. See,
e.g., Action on Smoking and Health (ASH) v. Dep’t of Labor,
100 F.3d 991, 992 (D.C. Cir. 1996). However, the broad
invitation and detailed “road map” offered in the majority’s
opinion appears to me not to ask the petitioner to clarify its
standing, but to offer us a further record to create standing where
none is present on the record before us.
I therefore would find the governing precedent not in
ASH, but rather in such cases as AmericaWest Airlines, Inc. v.
Burnley, 838 F.2d 1343 (D.C. Cir. 1988), in which we have
dismissed petitions of litigants who, after ample opportunity on
the record before us, have not demonstrated standing. I
wholeheartedly agree with the majority that Sierra Club v. EPA,
292 F.3d 895, 900 (D.C. Cir. 2002), should not be read as
creating a “gotcha” under which we dismiss meritorious
petitions because litigants did not support their standing when
they could not reasonably have been expected to know that they
needed to. Indeed, I question whether we even possess the
authority to make such a rule. However, when, as here, standing
is at best questionable and an intervenor has called the attention
of all parties to the questionable nature of that standing, I do not
understand why we need to find that petitioners fall within the
group of litigants “whose standing is not self evident” described
in Sierra Club, 292 F.3d at 900, in order to dismiss the petition
2
for lack of jurisdiction. Sierra Club merely recited the
unremarkable and long-standing proposition that “[w]hen the
petitioner’s standing is not self-evident, . . . the petitioner must
supplement the record to the extent necessary to explain and
substantiate its entitlement to judicial review.” Id. See, e.g.,
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 190
(1936) (“As [a plaintiff] is seeking relief subject to th[e]
supervision [of a federal court], it follows that he must carry
throughout the litigation the burden that he is properly in
court.”). There was no Sierra Club precedent at the time of, for
example, AmericaWest, and yet we did not hesitate to dismiss
for lack of jurisdiction. I would do so here. I therefore
respectfully dissent from the majority’s opinion.