The Center for Law and Education v. Department of Education

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion concurring in the judgement in part filed by Circuit Judge EDWARDS.

SENTELLE, Circuit Judge.

Appellants appeal from judgments of the District Court dismissing their claims on the grounds that '(1) plaintiffs lacked standing to challenge the membership of a rulemaking committee convened pursuant to the No Child Left Behind Act, and (2) the Act barred judicial review of the committee’s membership. Appellants contend that they have standing to pursue their challenges, and that the Act does not bar judicial review qf the Secretary of Education’s choice of committee members. Because we agree with the District Court’s holding that Appellants lack standing to pursue their claims, we affirm the judgments of the court. Moreover, because this Court concludes that it lacks Article III jurisdiction over this case, it does not consider the alternate issue of whether judicial review is barred by the Act.

I. Background

A. The No Child Left; Behind Act

On January 8, 2002, the President signed into’ law the “No Child Left Behind Act” (“NCLBA” or “the Act”). Pub.L. No. 107-110, 115 Stat. 1425, codified at 20 U.S.C. § 6301 et seq. The Act requires each State to implement statewide accountability systems for all public schools and their students, to define éducation standards, and to establish a system of assessments for measuring whether students have met those standards. 20 U.S.C. § 6311. Under the Act, a school’s continued failure to make adequate yearly progress toward meeting proficiency goals *1154will give rise to assistance and intervention, with parents of students in failing schools allowed to transfer their children to better schools. Id. at § 6316(b).

The Act authorizes the Department of Education (“DOE”) to adopt regulations for the oversight of States’ design of standards and assessments. 20 U.S.C. § 6571. In order to “ensure that final regulations are issued by the Secretary not later than” January 8, 2003, ■ id. at § 6571(b)(4)(A), Congress directed the Secretary to utilize a “negotiated rulemaking process.” Id. at § 6571(b)(3)(A).

The framework for promulgating and adopting regulations under the Act is laid out with specificity. First, the Secretary of Education is to “obtain the advice and recommendations” of various interest groups. Id. at § 6571(b)(1).' Second, the Secretary shall “establish a negotiated rulemaking process” for the purpose of drafting regulations, id. at § 6571(b)(3)(A), and select individuals to participate in such process “from among individuals or groups that provided advice and recommendations ... in such numbers as will provide an equitable balance between representatives of parents and students and representatives of educators and education officials ....” Id. at § 6571(b)(3)(B). Finally, “[s]uch process” shall be conducted before January 8, 2003. Id. at § 6571(b)(4)(A). The Secretary provides draft regulations to committee members prior to their first meeting. Id. at § 6571(b)(3)(C). The process “shall not be subject to the Federal Advisory Committee Act, but shall otherwise follow the provisions of the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561 et seq.).” Id. at § 6571(b)(4).

This incorporation of the Negotiated Rulemaking Act (“NRA”) implicates jurisdictional concerns, as the NRA bars judicial review of “[a]ny agency action relating to establishing, assisting, or terminating a negotiated rulemaking committee under this subchapter,” unless such review is otherwise provided by statute. 5 U.S.C. § 570. Section 6571(b)(4) does not explicitly describe selection of committee members as being included in. the “process” subject to the provisions of the NRA, but it does not explicitly exclude member selection from the “process” subject to the NRA.

B. Implementation of the Act’s Framework; Contemporaneous Lawsuits

On January 18, 2002, DOE published a request for advice and recommendations in the Federal Register. 67 Fed.Reg. 2770. On February 12, 2002, DOE issued an invitation for the submission of possible participants in the negotiated rulemaking. See Email from Susan B. Neuman, Ed.D., Assistant Secretary of Elementary and Secondary Education (Feb. 12, 2002), reprinted in Joint Appendix at 380-81. While the notice did stress that “[t]he nominees should be practitioners ... [i.e.], they should be significantly involved with implementing and operating Title I programs,” id., it also noted that the negotiated rulemaking was to include “representatives of Federal, State and local administrators; parents; teachers and paraprofessionals; members of local school boards; and other organizations ....” Id.

The committee convened by the Secretary consisted of 24 members. According to the DOE, this body consisted of six representatives of “State Administrators and State Boards of Education,” four representatives of “Local Administrators and Local School Boards,” four representatives of “Principals and Teachers,” seven representatives of “Students” (including one teacher, a few administrators, and a representative of a Diocese), one representative of “Business Interests,” and two represen*1155tatives of the DOE. 67 Fed.Reg. 9223, 9224 (Feb. 28, 2002), ■ corrected at 67 Fed.Reg. 9935 (Mar. 5, 2002). The parties do not specify whether any of the non-“parent”/“teacher” representatives are, themselves, parents or teachers. Appellants dispute the nominal makeup of this body. They claim that “only one” member represented “the interests of all public school parents and students,” because some representatives actually stood in for “multiple perspectives.” Brief for Appellants at 11.

The February 28 notice gave individuals and groups who “felt that his or her interests [we]re not adequately represented by this ... group” the opportunity to petition at the March 11 meeting, in person, to be seated as a negotiator. 67 Fed.Reg. -9224. Plaintiff organization Designs For Change attempted to petition by phone to be seated (claiming that travel was economically infeasible). The DOE declined to hear the phoned-in petition. Decl. of Weckstein, Joint Appendix at 121. Appellants assert that Center for Law and Education also petitioned to be seated, Brief for Appellant at 18, although no such petition is apparent from the record. Likewise, it is not apparent that plaintiff Lindsey petitioned to be seated.

Appellants filed suit in District Court on March 8, 2002. They alleged that the committee did not achieve “an equitable balance between representatives of parents and students and representatives of educators and education officials,” and sought a preliminary injunction. While the suit was pending, the committee convened, reviewed the Secretary’s draft regulations, and reached consensus on every issue of academic standards and assessments before it. • See' 67 Fed.Reg. 30,452 (May 6, 2002). The Secretary received the committee’s proposed rules, and published them for public notice and comment. Id. During the comment period, the DOE convened five regional meetings for further comment. Id

In May 2002, the District Court held that it lacked jurisdiction over Appellants’ challenge on two grounds. First, it held that the NRA § 570 judicial-review bar precluded judicial review of a challenge to the committee’s composition prior to promulgation of final rules. Ctr. for Law and Educ. v. U.S. Dep’t of Educ., 209 F.Supp.2d 102, 106-07 (D.D.C.2002). The court noted the plaintiffs’ argument that § 570 only applies to the “process” of committee deliberation, as 20 U.S.C. § 6571 provides that committee members would “participate in such process .... ” 209 F.Supp.2d. at 107. But the court ultimately rejected this interpretation of “process” because of “the implications of plaintiffs’ theory.” Id. Specifically, such interpretation would require DOE to segregáte the NCLBA into “process” and “non-process” provisions, and apply the NRA accordingly; the Court saw such segregation and selective application to be implausible. Id at 107-08. Moréover, to allow for lawsuits over selection of committee members would make compliance with the NCLBA’s strict time limits infeasible. Id. at 108.

Second, the court held that review was unavailable under the Administrative Procedure Act (“APÁ”), because selection of the committee was not “final agency action.” Id. at 111. Appellants filed an appeal, which later was stayed at Appellants’ request.

In July 2002, the DOE published its final rules on state standards and assessments. 67 Fed.Reg. 45,038 (July 5, 2002) (to be codified at 34 C.F.R. pt. 200). The final rules took effect on August 5, 2002. Id.

In December 2002, ■ Appellants filed a new complaint. They did not challenge the substance of the rules on traditional APA grounds. See- 5 U.S.C. § 706. In*1156stead, they again focused on the composition of the committee, calling for the rules to be set aside and a new committee formed. On March 26, 2004, the District Court dismissed the suit for lack of jurisdiction, holding that Appellants lacked standing. Ctr. for Law and Educ. v. U.S. Dep’t of Educ., 315 F.Supp.2d 15 (D.D.C. 2004). The court held that DFC and CLE (“the organizational plaintiffs”) failed to demonstrate a procedural injury because the Act “contains no requirement that advocacy groups be represented on the negotiated rulemaking committee.” Id. at 23. The court also rejected the organizations’ standing on other grounds regarding lack of actual injury (i.e., the rules “do[] no more than arguably offend their policy goals,” id. at 24) and lack of causation (i.e., the alleged injury was not caused by the formation of the committee, but rather, by subsequent choices made by State agencies. Id. at 25). As to the individual plaintiff, Rachelle Lindsey, the court held that because the Act created no enforceable right to have an equitably balanced committee, Lindsey suffered no actual injury. The “risk” that her children would not receive a high-quality education was too “hypothetical” and was dependant on the actions of the States, not the DOE. Id. at 26-29. Finally, the court also held that incorporation of the NRA included incorporation of its bar on judicial review of the establishment of the negotiated rulemak-ing committee. Id. at 29-33.

II. Analysis

This Court reviews de novo a dismissal for lack of standing. Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 937 (D.C.Cir.2004). A dismissal for lack of subject matter jurisdiction is also reviewed de novo. Flynt v. Rumsfeld, 355 F.3d 697, 701 (D.C.Cir.2004). In reviewing a ruling on a motion to dismiss, the court must accept as true all facts alleged by the nonmoving party and must draw all inferences in favor of the nonmov-ing party.

A. The Judicial Review Bar

As noted above, DOE raises two jurisdictional arguments: first, that Appellants lack Article III standing; and second, that Congress deprived this Court of jurisdiction to review the composition of the committee. Supra pages 1154, 1155. Because, as we discuss below, we hold that Appellants lack Article III standing, we do not consider the question, never before raised in this Court, of whether judicial review is barred in this matter. We “need not identify every ground for holding that a claim is not justiciable.” Fourth Branch Assocs. (Mechanicville) v. FERC, 253 F.3d 741, 745 (D.C.Cir.2001) (quoting Indep. Petroleum Ass’n of America v. Babbitt, 235 F.3d 588, 594 (D.C.Cir.2001)). “[W]e have no trouble dismissing a claim ‘based on one jurisdictional bar rather than another.’ ” Id. (quoting Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379, 1384 (D.C.Cir.1996)). See also New Jersey Television Corp. v. FCC, 393 F.3d 219, 220 (D.C.Cir.2004). Any statements by this Court on the question of the judicial review bar would be “unnecessary dicta,” which “precedent and prudence counsel us to avoid ....” Louisiana Envtl. Action Network, 87 F.3d at 1385.

B. Standing

This Court, like all Article III courts, is one of limited jurisdiction; we cannot decide cases that we lack constitutional authority to decide. Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 47 (D.C.Cir.1999). We are empowered to hear only “cases or controversies.” U.S. CONST, art. III, § 2. We ascertain whether or not the matter before us is a “case” or “controversy” by looking to *1157whether, inter alia, the litigants have “standing.” Wyoming Outdoor Council, 165 F.3d at 48. The “irreducible constitutional minimum of standing contains three elements”: (1) the plaintiff must have suffered injury in fact, an actual or imminent invasion of a legally protected, concrete and particularized interest; (2) there must be a causal connection between the alleged injury and the defendant’s conduct at issue; and (3) it must be “likely,” not “speculative,” that the court can redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). Where plaintiffs allege injury resulting from violation of a procedural right afforded to them by statute and designed to protect their threatened concrete interest, the courts relax-while not wholly eliminating-the issues of imminence and redressability, but not the issues of injury in fact or causation. See Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664-65 (D.C.Cir.1996) (en banc) (citing Lujan, 504 U.S. at 572-73 & nn. 8-9, 112 S.Ct. at 2142-43 & nn. 8-9). Taken together, the plaintiffs have standing only if, inter alia, (1) the government violated their procedural rights designed to protect their threatened concrete interest, and (2) the violation resulted in injury to their concrete, particularized interest. Plaintiffs fail to satisfy either of the requirements at issue.

1. Violation of a procedural right designed to protect plaintiffs’ interests

Appellants fail to show that a procedural right sufficient for standing has been violated. Not all procedural-rights violations are sufficient for standing; a plaintiff must show that “the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.” Lujan, 504 U.S. at 573 n. 8, 112 S.Ct. at 2143 n. 8 (emphases added).

With respect to the organizational plaintiffs, the procedural rights at issue are clearly insufficient for standing, as the procedures at issue were not designed to protect “some threatened concrete interest of’ the organizations. The No Child Left Behind Act required the Secretary to “select individuals to participáte in such process from among individuals or groups that provided advice and recommendations, including representation from all geographic regions of the United States, in such numbers as will provide an equitable balance between representatives of parents and students and representatives of educators and educational officials.” 20 U.S.C. § 6571(b)(3)(B). Nowhere does the Act make mention of advocacy organizations’ interests. The only interests arguably enjoying implicit protection here are those of parents, students, educator’s and education officials; although the advocacy groups may be “representatives” of parents and students, the interests to be protected are those of the parents and students, not of the organizations.

Even in the- case of the individual plaintiff, Lindsey, it is not at all clear, that the Act’s procedures regarding the negotiated rulemaking process were “designed to protect” the interests of parents and students. The structure of § 6571 as a whole shows that Congress manifestly did not endorse “protective” litigation regarding the formation of the committee amidst the time-limited rulemaking process. The Act specifically mandated that “[sjuch [rulemak-ing] process shall be conducted in a timely manner to ensure that final regulations are issued by the Secretary not later than 1 year after January 8, 2002[.]” 20 U.S.C. § 6571(b)(4)(A). And, as noted above, the Act created a complex process for crafting federal and state regulations that would affect parents’ and students’ interests, in-*1158eluding the Act’s provision for the selection of an “equitable balance” of committee members. These provisions do not offer any promise of purposeful protection of the concrete interests of students and parents. Appellants cite the Conference Report for evidence that “Congress sought to (ensu[re] that the views of both program beneficiaries and program providers are fairly heard and considered.’ ” Brief for Appellants at 9 (quoting H.R. Conf. Rep. 107-334, at 809, reprinted in 2001 U.S.C.C.A.N. 1230, 1352). This is not persuasive evidence of protective design. To the extent that the legislative history is relevant to the question before us, we note that the language of the report does not support Appellants’ position; if anything, it weighs against it: “The Conferees do not intend this language to require strict numerical equality or comparability among these representatives. Rather, the Conferees intend the Secretary to have flexibility in selecting the [committee members.]” H.R. Conf. Rep. 107-334 at 809, reprinted in 2001 U.S.C.C.A.N. 1230, 1352.

With respect to the organizational plaintiffs, the NCLBA clearly did not create procedural rights designed to protect their concrete interests. With respect to Lindsey, the NCLBA did not clearly create such a right; but as the next section of this standing analysis makes clear, even if NCLBA did create such a right, she has not suffered injury sufficient to establish standing.

2. Injury to a concrete, particularized interest

Appellants present a variety of alleged “injuries” as a result of the Secretary’s selection of committee members. Appellants argue that the individual plaintiff, parent Rachelle Lindsey, has suffered three injuries as a result of the Secretary’s selection of committee members: First, she was deprived of her procedural right to help shape the final rules. Brief for Appellants at 16. Second, the final rules increased the “risk” that her children will be denied the benefit of the best-possible education and those rules Were caused by the committee selection. Id. at 17. Third, the final rules fail to require States to provide for public participation in the creation of standards and measures under the Act, and those final rules were caused by the committee selection. Id.

Appellants also argue that the organizational plaintiffs have suffered four injuries as a result of the Secretary’s selection of committee members: First, the Secretary’s apportionment of committee seats among representatives of various interests reduced their chances of serving on the committee. Id. at 16. Second, the selection excluded parent and student advocacy organizations from consideration. Id. Third, the final rules forced them to address advocacy issues on an expensive State-by-State basis. Id. at 17. Fourth, the final rules failed to require States to provide for public participation. Id.

Taken together, Appellants allege four basic categories of injuries:

(1) Injuries to Plaintiff Lindsey caused by the final rules, following selection of the committee members;
(2) Injuries to Plaintiff Lindsey caused by the Secretary’s abridgment of her procedural rights in the selection of committee members;
(3) Injuries to Plaintiff Organizations caused by the final rules, following selection of the committee members; and
(4) Injuries to Plaintiff Organizations caused by the Secretary’s abridgment of their procedural rights in the selection of committee members.

*1159To organize Appellants’ alleged injuries in this fashion reveals what Appellants’ muddled brief obfuscates: Appellants allege two classes of injury under a Procedural Rights theory of standing. Appellants allege injuries to Appellants’ procedural rights per se, and they allege injuries to their particularized interests caused by the final rules. We consider these classes of injuries in turn.1

a. Injury to their procedural interests

Appellants first allege that they suffered injury, as a result of the Secretary’s failure to abide by the procedures prescribed by the Act, to their interest in the government’s protection of their procedural rights.

As this Court sitting en banc described at length in Florida Audubon Society, a procedural-rights plaintiff must demonstrate standing by “showing] not only that the defendant’s acts omitted some procedural requirement, but also that it is substantially probable that the procedural breach will cause the essential injury to the plaintiffs own interest.” 94 F.3d at 664-65. In other words, while we relax the imminence and redressability requirements, the procedural-rights plaintiff must still satisfy the general requirements of the constitutional standards of particularized injury and causation. See id. at 664. Although Appellants rely heavily on footnote 7 of Lujan in arguing procedural standing in this case, even in that case the Court required a showing that “concrete interests” had been invaded. 504 U.S. at 572 n. 7,112 S.Ct. 2130.

Assuming arguendo that a procedural right designed to protect a concrete interest of the Appellants has been violated here, Appellants fail to demonstrate how they suffer actual injury to a concrete, particularized interest, caused by the challenged conduct. The chain of causation between the alleged procedural violation and the concrete interest is speculative at best. See infra pages 1160-61. “Unadorned speculation will not suffice to invoke the judicial power.” Physicians’ Ed. Network v. Dep’t of H.E.W., 653 F.2d 621, 627 (D.C.Cir.1981) (district court’s opinion expressly adopted en toto by Court) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 44, 96 S.Ct. 1917, 1927, 48 L.Ed.2d 450 (1976)).

But even more importantly, Appellants appear to misunderstand the difference between the “procedural right” and the “concrete interest” in a procedural-rights case. See, e.g., Brief of Appellants at 23 (“The Department’s denial of this right constitutes sufficient injury to support standing.”). The two things are not one and the same. Appellants must show both (1) that their procedural right has been violated, and (2) that the violation of that right has resulted in an invasion of their concrete and particularized interest. “[A] prospective plaintiff must demonstrate that the defendant caused the particularized injury, and not just the alleged procedural violation.” Fla. Audubon Soc’y, 94 F.3d at 664 (emphasis added). In Lujan the Supreme Court disclaimed Appellants’ conflation of concrete interest and procedural right in unambiguous language:

*1160If we - understand this [argument] correctly, it means that the Government’s violation of a certain ... class of procedural duty satisfies the concrete-injury requirement by itself, without any showing that the procedural violation endangers a concrete interest of the plaintiff (apart from his interest in having the. procedure observed). We cannot agree.'

504 U.S. at 573 n. 8, 112 S.Ct. at 2143 n. 8. Appellants must allege injury beyond mere procedural misstep per se to satisfy standing in a procedural-rights case, and they fail to do so here.

In sum, we hold that Appellants have-failed to show that the alleged procedural violation caused actual injury to Appellants’ concrete interests such that they satisfy Article Ill’s requirement of standing. Fla. Audubon Soc’y, 94 F.3d at 664.

b. Injuries to other interests, caused by the final rules

Appellants allege injury not "only to their procedural interest, but also to their interests in education, lobbying, and other interests apart from procedural rights per se. Even assuming arguendo that their purported interests do constituid particularized, concrete interests sufficient to satisfy Lujan, see 504 U.S. at 560, 112 S.Ct. at 2136, Appellants fail to demonstrate the necessary causal connection between the challenged agency action-here, the promulgation of final rules-and the alleged injury.

To demonstrate standing, Appellants must show “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.’ ” Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136 (quoting Simon, 426 U.S. at 41-42, 96 S.Ct. at 1926). -

To show causation and redressability in their procedural-rights case, Appellants need not demonstrate that, but for the procedural defect, the final outcome of the rulemaking process would have been different, and that this Court’s ordering the action to remedy the procedural defect will alter the final effect on Appellants’ interests. See Lujan, 504 U.S. at 572 n. 7, 112 S.Ct. at 2142 n. 7. In short, this Court assumes the causal relationship between the procedural defect and the final agency action. Nonetheless, Appellants must still demonstrate a causal relationship between the final agency action and the alleged injuries.2

In the case of Lindsey, the agency action and the alleged injury stand at opposite ends of a long chain: (1) DOE promulgated final rules giving discretion to the States to implement their own rules for the education of children in the State; (2) the State of Illinois, in its discretion, implemented rules that were permitted but not required by DOE; (3) those rules increased the risk of improper evaluation of students and schools; (4) Lindsey’s daughter’s school might be improperly classified *1161as a result (though it presently receives federal funding under the NCLBA); (5) Lindsey’s daughter might thereby be harmed by improper classification.

Having outlined the alleged causal chain, we conclude that the connection between the beginning and end of the purported chain remains so attenuated that we cannot hold the alleged injury to be “fairly traceable to” the final agency rules “and not the result of the independent action” of the State of Illinois. Lujan, 504 U.S. at 560, 112 S.Ct. at 2136. Where “the necessary elements of causation and redressability ... hinge on the independent choices of the regulated third party,” i.e. the States, “it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit re-dressability of injury.” Nat’l Wrestling Coaches Ass’n, 366 F.3d at 938 (quoting Lujan, 504 U.S. at 562, 112 S.Ct. at 2137) (internal quotation marks omitted). Appellants fall far short of carrying their burden.

Moreover, the Court is not convinced that the alleged injury to Lindsey is “concrete and particularized.” Lujan, 504 U.S. at 560, 112 S.Ct. at 2136. Appellants allege direct injury styled as “increased risk,” in the form of giving the States the opportunity to injure Appellants’ interests. This so-called “injury” is insufficient for standing.

Outside of increased exposure to environmental harms, hypothesized “increased risk” has never been deemed sufficient “injury.”3 And even if “risk” were sufficient injury for standing in the non-environmental context, Lindsey would have to show that the challenged conduct has created a “demonstrably increased risk” that “actually threatens the plaintiffs particular interests.” Fla. Audubon Soc’y, 94 F.3d at 667 (emphasis added). Here, Lindsey has hypothesized that the final agency rules have increased the .risk to her interests, but she has offered this Court no actual demonstration of increased risk.

•Indeed, were all purely speculative “increased risks” deemed injurious, the entire requirement of “actual or imminent injury” would be rendered moot, because all hypothesized, non-imminent “injuries” could be dressed up as “increased- risk of future injury.”

With respect to the organizational plaintiffs, the causal chain between the challenged rules and the alleged injury is not so attenuated: The organizations allege that the Federal rules force them to change their lobbying strategies, a more costly form of lobbying. But while their causal chain may be more traceable than Lindsey’s, it fails to bind the challenged conduct to actual injury. This Court has not found standing when the only “injury” arises from the effect of the regulations on the organizations’ lobbying activities (as opposed to the effect on non-lobbying activities): “[Cjonflict between a defendant’s conduct and an organization’s mission is alone insufficient to establish Article III standing. Frustration of an organization’s objectives is the type of abstract concern *1162that does not impart standing.” Nat’l Treas. Employees Union v. United States, 101 F.3d 1423, 1429 (D.C.Cir.1996) (citation and internal quotation marks omitted).

The case before us is easily distinguished from Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). There, the Court held that an organization dedicated to promoting equal-access to housing had standing to challenge defendants’ practice of steering prospective tenants away, because defendants’ practice “perceptibly impaired HOME’S ability to provide counseling' and referral services for low- and moderate-income home-seekers ....” Id. at 379, 102 S.Ct. at 1124. Here, the only “service” impaired is pure issue-advocacy-the very type of activity distinguished by Havens. See id. at 379, 102 S.Ct. at 1124 (distinguishing Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972)).4

In sum, Appellants fail to demonstrate standing arising from the effect of the final rules, with respect to either the individual or organizational plaintiffs.

III. Conclusion

Because we hold that Appellants lack standing to challenge the Secretary’s selection of committee members, this Court and the District Court lack jurisdiction to hear Appellants’ claims. And because we have already recognized our lack of jurisdiction, we will not consider whether the No Child Left Behind Act incorporates the Negotiated Rulemaking Act’s § 570 bar on judicial review of committee formation. “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 (7 Wall.) 506, 514, 19 L.Ed. 264 (1868), quoted in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998).

We affirm the District Court’s judgments of dismissal.

. Appellants do not argue that the organizational plaintiffs retain “representational standing" to press claims on behalf of individual members of the organization. Nonetheless, this Court notes in its own jurisdictional inquiry that these organizational plaintiffs would not satisfy the test for representational standing, because such plaintiffs would need to show actual or imminent injury to their members caused by the challenged action. Worth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975). As we discuss below, Appellants fail to show any such causation here.

. We note that where, as here, the purported cause of injury (i.e., promulgation of final rules) and the injury itself is separated by , intervening actors and events, the causation and redressability inquiries may appear to merge.

In such cases, both prongs of standing analysis can be said to focus on principles of causation: fair traceability turns on the causal nexus between the agency action and the asserted injury, while redressability centers on the causal connection between the asserted injury and judicial relief. Despite these similarities, however, each inquiry has its own emphasis. Causation remains inherently historical; redressability quintessentially predictive.

Freedom Republicans v. FEC, 13 F.3d 412, 418 (D.C.Cir.1994) (citations omitted) (emphasis added).

. We do not read Electric Power Supply Ass’n v. FERC, 391 F.3d 1255 (D.C.Cir.2004), to extend the "enhanced risk” analysis. That case dealt with standing to challenge a federal agency's arguably ultra vires publications of regulations purporting to authorize ex parte communications in violation of the Sunshine Act, Pub.L. No. 94-409, 90 Stat. 1241 (1976). While in a sense a violation of rights protected by that statute could be called procedural, in the final analysis, the violation supporting standing goes to substantive rights created under the Act. Electric Power Supply Association 's analysis of standing to assert those rights is not authority for the general proposition of applicability of "enhanced risk” analysis to procedural violations in the determination of standing.

. In Siena Club, the Supreme Court recognized that to hold that a lobbyist/advocacy group had standing to challenge government policy with no injury other than injury to its advocacy would eviscerate standing doctrine's actual injury requirement:

It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e.g„ NAACP v. Button, 371 U.S. 415, 428 [83 S.Ct. 328, 335, 9 L.Ed.2d 405] [1963]. But a mere “interest in a problem," no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render tire organization "adversely affected” or “aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation’s natural heritage from man's depredations. But if a “special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest” organization, however small or short-lived. And if any group with a bona fide "special interest” could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.

405 U.S. at 739-40, 92 S.Ct. at 1368.