Congressman Ronald V. DELLUMS, et al., Petitioners, v. U.S. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Advanced Nuclear Fuels Corporation, Intervenors.
No. 87-1531.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 3, 1988. Decided Dec. 16, 1988.
863 F.2d 968
That an employer testifies that it had business reasons for laying off union members during a head-to-head clash with the union is not creditable in itself. It would be a rare hearing before the National Labor Relations Board in which an employer did not make such a claim. To establish that it would have laid off the painters even if the union had backed down and renegotiated the increases, Triboro needed to assemble more than bare assertions or even plausible reasoning; it had to furnish proof. This it failed to do. Thus the evidence relied on by the Board, while circumstantial, is sufficient.
III. CONCLUSION
We hold that the Board‘s decision is based on substantial evidence on the record as a whole and therefore the petition is denied and the Board‘s order enforced in full.
It is so ordered.
John F. Daly, Atty., Dept. of Justice, and Rochelle M. Gunner, Atty., U.S. Nuclear Regulatory Com‘n, with whom John R. Bolton, Asst. Atty. Gen., William H. Briggs, Jr., Sol., U.S. Nuclear Regulatory Com‘n, E. Leo Slaggie, Deputy Sol., U.S. Nuclear Regulatory Com‘n, and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the joint brief for respondents. Richard K. Willard, Asst. Atty. Gen.,* William Kanter, Atty., Dept. of Justice, and C. Sebastian Aloot, Atty., Nuclear Regulatory
Harry H. Voigt, Leonard M. Trosten, Mindy A. Buren and Paul H. Falon, Washington, D.C., were on the brief for intervenor Advanced Nuclear Fuels Corp.
Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and MILTON POLLACK,** Senior District Judge, United States District Court for the Southern District of New York.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Concurring opinion filed by Senior District Judge MILTON POLLACK.
Opinion dissenting as to standing filed by Circuit Judge RUTH BADER GINSBURG.
SILBERMAN, Circuit Judge:
This is a petition for review of two final orders of the United States Nuclear Regulatory Commission (“NRC” or “Commission“) that grant and decline to revoke, respectively, licenses to import uranium hexafluoride from South Africa. Petitioners, which include several members of Congress,1 three organizations opposed to apartheid and one concerned with nuclear proliferation,2 an exiled black South African anti-apartheid activist named Henry Isaacs, and an unemployed American uranium miner named Robert Chavez,3 contend that these orders are contrary to provisions of the Comprehensive Anti-Apartheid Act of 1986,
I.
On October 2, 1986, Congress passed the Comprehensive Anti-Apartheid Act of 1986 over the President‘s veto. The stated purpose of the Act is “to set forth a comprehensive and complete framework to guide the efforts of the United States in helping to bring an end to apartheid in South Africa and lead to the establishment of a nonracial, democratic form of government.”
Notwithstanding any other provision of law, no—
(1) uranium ore,
(2) uranium oxide,
(3) coal, or
(4) textiles, that are produced or manufactured in South Africa may be imported into the United States.
All parties wishing to import uranium must receive a license from the NRC.
II.
Three standing requirements are derived from Article III of the Constitution. A plaintiff or petitioner must show that he has personally suffered a “distinct and palpable” harm that constitutes injury in fact, Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975), that the injury “fairly can be traced to the challenged action,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 96 S. Ct. 1917, 1926, 48 L. Ed. 2d 450 (1976), and that the injury is “likely to be redressed by a favorable decision.” Id. at 38, 96 S. Ct. at 1924. The latter two requirements of “causation” and “redressability” are often treated interchangeably by the Supreme Court, and we have recognized that they tend to merge in cases such as this one where the relief sought is only the cessation of the allegedly illegal conduct. D.C. Common Cause v. District of Columbia, 858 F.2d 1, 5 (D.C. Cir. 1988); National Wildlife Fed‘n v. Hodel, 839 F.2d 694, 705 (D.C. Cir. 1988).
Despite this analytical framework, the guidance discernible from decisions of the Supreme Court on standing is less than pellucid. The Court has often imposed a heavy burden on plaintiffs to show a “substantial likelihood” that the relief sought would redress the alleged injury, see, e.g., Simon, 426 U.S. at 44-46, 96 S. Ct. at 1927-28, but on other occasions it has appeared to think that standing could be based on assertions of what one might consider an attenuated line of causation. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688-89, 93 S. Ct. 2405, 2416-17, 37 L. Ed. 2d 254 (1973).5 Cf. Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 77, 98 S. Ct. 2620, 2632, 57 L. Ed. 2d 595 (1978) (affirming conclusion that there was “substantial likelihood” of indirect causa-
III.
A. The Organizational Petitioners
The four organizational petitioners in this case allege that they have standing to maintain this appeal because they represent members who are adversely affected by any weakening of the enforcement of the Anti-Apartheid Act. To satisfy standing requirements, an organization must show that “(a) its members would otherwise have standing to sue in their own right, (b) the interests that it seeks to protect are germane to the organization‘s purpose, and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Comm‘n, 432 U.S. 333, 343, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383 (1977).
Three of the four organizational petitioners make no attempt, however, to describe an individualized injury of the members of the organizations. It is clear that mere “interest in a problem” coupled with unfavorable government action is not sufficient to meet the injury in fact requirement of Article III. Capital Legal Foundation v. Commodity Credit Corp., 711 F.2d 253, 258 (D.C. Cir. 1983); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S. Ct. 1361, 1368, 31 L. Ed. 2d 636 (1972). Petitioner Nuclear Control Institute has alleged no particularized injury to its members. The interest of both the organization and its members in this litigation is only the generalized goal of “opposing nuclear proliferation and ensuring proper safeguards for nuclear energy.” Even assuming the NRC‘s orders would adversely affect the Institute‘s general interest, this court has consistently held that harm to an interest in “seeing the law obeyed or a social goal furthered” does not constitute injury in fact. See, e.g., American Legal Found. v. FCC, 808 F.2d 84, 92 (D.C. Cir. 1987).
Two other organizational petitioners—the American Committee on Africa and The Washington Office on Africa—are interested primarily in promoting change in the racial policies of the South African government. Again, while all of the members of these organizations have a “sincere, vigorous interest in the action challenged,” Capital Legal Foundation, 711 F.2d at 258, they have not alleged a “distinct and palpable harm” that will satisfy the injury-in-fact requirement. Petitioners allege that the members have suffered injury “at least equivalent” to those found sufficient in Japan Whaling Ass‘n, 478 U.S. at 230 n. 4, 106 S. Ct. at 2866 n. 4, and Animal Welfare Institute v. Kreps, 561 F.2d 1002, 1007-08 (D.C. Cir. 1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 726, 54 L. Ed. 2d 756 (1978). In those cases, however, the plaintiffs alleged an injury to the participatory activity of the groups’ members. In Japan Whaling, the Court noted that the “whale watching and studying” of the members of the American Cetacean Society would be “adversely affected by continuing whale harvesting.” 478 U.S. at 230 n. 4, 106 S. Ct. at 2866 n. 4. Similarly, in Kreps, the appellants alleged injury to the “recreational, aesthetic, scientific, and educational interests of their members.” 561 F.2d at 1007. In this case,
Petitioners do allege that Randall Robinson of TransAfrica, Inc. has suffered concrete injury because he is “effectively banned from entering South Africa.” This injury satisfies the injury-in-fact requirement. The causation analysis for Robinson and TransAfrica is identical to that of petitioner Isaacs, who also is unable to travel to South Africa. See infra, at 974-80. For the reasons stated below, we conclude that TransAfrica does not have standing.
B. Petitioner Robert Chavez
Robert Chavez is an unemployed uranium miner. He contends that the adverse impact of foreign uranium imports on the domestic market caused him to be laid off from his mining job in New Mexico in 1985. And, Chavez alleges that the NRC‘s granting of licenses to import uranium hexafluoride will reduce demand for domestic uranium and thereby diminish his chances of regaining employment.
Although Chavez‘s inability to find work in the mining industry constitutes injury in fact, we think he has not satisfied the causation and redressability requirements of Article III. Petitioners must show a “substantial likelihood” that a ban on the importation of uranium hexafluoride from South Africa would redress Chavez‘s injury by resulting in an employment opportunity for him. See Simon, 426 U.S. at 44-46, 96 S. Ct. at 1927-28. To be sure, the indirect nature of Chavez‘s alleged injury does not necessarily preclude standing, because the focus is not on “the length of the chain of causation, but on the plausibility of the links that comprise the chain.” Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708, 717 n. 31 (D.C. Cir. 1977). Nevertheless, the indirectness of the injury alleged “may make it substantially more difficult to meet the minimum requirement of Article III.” Warth, 422 U.S. at 505, 95 S. Ct. at 2208.
Chavez essentially asks us to make three sequential inferences to support his claimed causal nexus: (1) a ban on the importation of South African uranium hexafluoride would increase the demand for domestic uranium; (2) this increased demand would lead to more employment opportunities for uranium miners in America; and (3) these increased employment opportunities would enable Chavez to secure a job in New Mexico. This chain of inferences seems to us much too frail to establish the requisite substantial likelihood that Chavez‘s injury would be remedied by a reversal of the NRC‘s decisions.
The condition of the United States uranium industry has been dismal in the late 1970s and 1980s. See Huffman v. Western Nuclear, Inc., 486 U.S. 663, 108 S. Ct. 2087, 2089-90, 100 L. Ed. 2d 693 (1988). The decline in the industry has been attributed to cancellations and delays in the construction of domestic nuclear reactors and to other developments in the national and international markets. Id. 108 S. Ct. at 2089. The Department of Energy has concluded that “[s]tructural weakness, not foreign competition, are the reasons for the depressed state of the domestic uranium industry.” Uranium Enrichment Services Criteria, 51 Fed.Reg. at 27,135 (July 29, 1986). The market price of uranium, at least in 1986, was “well below the conventional United States producers’ average cost of production.” See Huffman, 108 S. Ct. at 2089 n. 5.
Petitioners make no claim that the market opening created by a ban on the importation of South African uranium hexafluoride would not merely be absorbed by other foreign suppliers of uranium hexafluoride. Nor have they sought to demonstrate that an increase in demand for domestic uranium—if it resulted—would be sufficient in magnitude to make domestic processing
The string of tenuous inferences that petitioners have offered simply does not demonstrate the causal nexus between Chavez‘s injury and the NRC‘s orders. Petitioners are correct to insist that they need not demonstrate to a certainty that the requested relief would result in a future job for Chavez. It is beyond debate, however, that petitioners must show that such result is substantially likely. Cf. Autolog Corp. v. Regan, 731 F.2d 25, 31 (D.C. Cir. 1984) (“highly likely” that exclusion of foreign flag shippers from domestic market would result in increased use of domestic carriers and more jobs for union members).6
C. Petitioners Henry Isaacs***
Henry Isaacs is a black South African who was forced into exile by the South African government due to his active opposition to apartheid. Because the NRC‘s orders allegedly blunted the effectiveness of the Anti-Apartheid Act, which was designed to help bring an end to apartheid, Isaacs contends that the NRC has caused his continuing injury. Although Isaacs’ inability to return home without facing arrest and prosecution satisfies the injury-in-fact requirement, we nevertheless believe that Isaacs has failed to meet his burden of demonstrating causation and redressability.
The purpose of the Anti-Apartheid Act, as we noted, is “to set forth a comprehensive and complete framework to guide the efforts of the United States in helping to bring an end to apartheid in South Africa and lead to the establishment of a nonracial, democratic form of government.”
Petitioners claim rather opaquely that these intermediate actions by the South African government “would directly benefit Mr. Isaacs in the near term.” But there is no concrete allegation that any intermediate step would lead to relief for Isaacs. We are asked to infer that favorable political developments in South Africa will result in some undefined relief for Isaacs. Without a more specific contention by petitioners, it is impossible for us to foresee whether incremental forward-looking reforms—short of complete democratization and an end to apartheid—would benefit Isaacs, who is subject to arrest for his past illegal conduct. We, unlike the dissent, do not
The dissent, in our view, correctly warns against judicial readiness to predict South African developments that lie beyond our expertise as judges. Dissent at 984. Indeed, all predictions as to political or economic trends are probably based on non-judicial skills. That is precisely why we think the dissent‘s willingness to create, despite petitioners’ failure to advance, a theory of interconnection between Isaacs’ injury and the relief sought is inappropriate. We minimize the risk that we will be drawn outside our legitimate authority by insisting, as the Supreme Court did in Warth, that plaintiff or petitioner precisely trace the connection between injury and relief that is indispensable to our jurisdiction.
This is not, as our dissenting colleague suggests, an excessive judicial reliance on technical pleading requirements.8 Petitioners’ difficulty is not caused by inadequate lawyering; rather it stems from an analytical problem that is at the heart of their standing difficulty. That any of the intermediate steps that the dissent hypothesizes—“way pavers” towards the end of apartheid—would provide any concrete relief for Isaacs’ specific injury, exile from South Africa, is downright speculation. It cannot be pleaded responsibly because it is essentially unknowable.
Although petitioners fail to explain how intermediate steps will aid Isaacs, it does seem substantially likely that an ending of apartheid and the concomitant complete overhaul of the South African political system would provide redress to Isaacs and other similarly situated political exiles. After all, Isaacs’ exile (and Randall Robinson‘s persona non-grata status) is entirely based on his opposition to apartheid, and it would seem more than passing strange that a Republic of South Africa that abandoned apartheid would nonetheless remain closed to Isaacs. Therefore, we turn to petitioners’ claim that the NRC‘s refusal to ban the importation of uranium hexafluoride has perpetuated the existence of apartheid in South Africa and therefore inflicts injury on Isaacs.
Petitioners devote their entire discussion of Isaacs’ standing to arguing that enforcement of the sanctions package in the Anti-Apartheid Act is likely to lead to the end of apartheid. Their grievance in this case,
In support of its argument that Isaacs satisfies the causation requirement of Article III, petitioners rely principally on the decision of this court in Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972), cert. denied, 411 U.S. 931, 93 S. Ct. 1897, 36 L. Ed. 2d 390 (1973). In Diggs, we held that Rhodesian exiles who were unable to return to their homeland had standing to challenge the authorization by the United States of the importation of metallurgical chromite from Southern Rhodesia. The petitioners in Diggs alleged that the importation violated the treaty obligation of the United States to comply with a United Nations embargo on trade with Southern Rhodesia. The court rejected the government‘s contention that “the prospects of significant relief by means of the embargo are so slight that this relationship of intended benefits is too tenuous to support standing.” Id. at 465. The court reasoned that:
[i]t may be that the particular economic sanctions involved against Southern Rhodesia in this instance will fall short of their goal, and that appellants will ultimately reap no benefit from them. But, to persons situated as are appellants, United Nations action constitutes the only hope....
Id.
Were the holding in Diggs binding precedent, it likely would control this case.9 Our reading of the Supreme Court precedent since 1970, however, leads us to conclude that Diggs is no longer good law on the issue of causation. The Court‘s opinions have undermined the analysis of the Diggs court because those opinions typically (if not invariably) require a demonstrable causal nexus between a pleaded injury and the allegedly illegal conduct.
In the line of cases beginning with Warth v. Seldin, 422 U.S. 490, 504-05, 95 S. Ct. 2197, 2207-08, 45 L. Ed. 2d 343 (1975), and continuing through Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 44-46, 96 S. Ct. 1917, 1927-28, 48 L. Ed. 2d 450 (1976), and Allen v. Wright, 468 U.S. 737, 756-61, 104 S. Ct. 3315, 3327-30, 82 L. Ed. 2d 556 (1984), the Court has placed the burden on the complaining party to show a “substantial likelihood” that the requested relief will redress the alleged injury. See also Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 74-79, 98 S. Ct. 2620, 2630-34, 57 L. Ed. 2d 595 (1978). It is clear that the pursuit of a potential avenue of redress, even if it is the “only hope,” will not present a case or controversy under Article III if there is not a substantial likelihood of redressability. The “only hope” theory accepted in Diggs strikes us as similar to, though technically distinct from, the argument that a plaintiff should have standing if no other plaintiff would be able to enforce the law. The Supreme Court has rejected the latter contention, Schlesinger, 418 U.S. at 227, 94 S. Ct. at 2935, and regardless of the emotional appeal of the former, it too fails as a matter of constitutional law.
Our own decisions since Diggs have declined to recognize standing when the effectiveness of the relief requested depends on the unforeseeable actions of a foreign nation. In Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258 (D.C. Cir. 1980), we held that the Greater
Similarly, in Cardenas v. Smith, 733 F.2d 909 (D.C. Cir. 1984), we held that a nonresident alien lacked standing to sue the Attorney General for damages caused when the Swiss government froze his bank account after receiving information from the Attorney General. Recognizing that “the relief in the present case could be obtained only through the consent of the Swiss government,” id. at 914, we reasoned that it was highly doubtful that a request from the U.S. Attorney General to release the account would have any impact on the litigation pending in Swiss courts. See also American Jewish Congress v. Vance, 575 F.2d 939 (D.C. Cir. 1978) (even if plaintiffs had prevailed in challenging work agreement between American and Saudi governments that discriminated against Jews, independent Saudi prohibition on Jewish workers would have prevented effective relief).
Despite this steady erosion of Diggs, petitioners contend that the recent decision of the Supreme Court in Japan Whaling Ass‘n v. American Cetacean Soc‘y, 478 U.S. 221, 106 S. Ct. 2860, 92 L. Ed. 2d 166 (1986), obliges us to grant standing in this case. It is argued that Japan Whaling discards the requirement of a substantial likelihood of redressability in cases where petitioners seek to enforce a congressional directive designed to alter the behavior of a foreign state. If petitioners were correct, that case would constitute a stunning departure from or reversal of prior jurisprudence.
In Japan Whaling, the American Cetacean Society brought suit against the Secretary of Commerce to compel him to certify that Japan‘s whaling practices “diminish the effectiveness” of the International Convention for the Regulation of Whaling, because Japan‘s annual harvest exceeded quotas established under the Convention. Such a certification would have required the President to impose economic sanctions against the offending nation. In a footnote, the Court stated that the American Cetacean Society had alleged a sufficient “injury in fact” to satisfy the Article III standing requirement, but it made no mention of the causation requirement in its discussion of the standing issue. 478 U.S. at 230 n. 4, 106 S. Ct. at 2866 n. 4.10
As the government points out, however, a close reading of Japan Whaling in its entirety reveals that the Court employed the traditional causation analysis, including the “substantial likelihood” requirement. Within the body of the opinion, the Court noted that “the Secretary of Commerce five times certified different nations to the President as engaging in fishing operations which ‘diminish[ed] the effectiveness’ of IWC quotas.” Id. at 225, 106 S. Ct. at 2863. After each certification, “the President was able to use the threat of discretionary sanctions to obtain commitments of future compliance from the offending nations.” Id. Quite understandably, the Court seems to have looked at past practice to assure itself that the relief sought would likely redress the claimed injury. Its entire discussion of whether certification was required thus proceeded based on the explicit determina-
To be sure, the Court‘s opinion on this point is not explicit, but we believe it is appropriate for a court of appeals to assume—when the Court does not discuss causation and redressability—that the Court followed its reigning causation analysis, rather than to infer that the Court sharply and silently departed from its own precedent. The dissent seems to believe it is our obligation to shoehorn Japan Whaling into prior circuit precedent (Diggs), rather than to try our best to read Japan Whaling in light of what we understand to be governing Supreme Court standing doctrine. See supra at 971-72. We think the dissent‘s approach suggests a rather unusual view of the relationship between the Supreme Court and the courts of appeal.11
Finally, petitioners contend that even if Diggs and Japan Whaling do not establish a different causation test in foreign sanctions cases, Congress supplied the substantial likelihood of redressability by declaring that the Anti-Apartheid Act would be an “effective means” to pressure the South African government. See
The dissent advances an interesting, if novel, notion of deference to congressional predictions as to the effect of its legislation. It is argued that insofar as those congressional predictions coincide with our causation or redressability analysis, we are bound to defer to those predictions so long as they pass “the test of rationality.” We should defer, according to our colleague, even as to constitutional analysis of the
In any event, we think it unnecessary to resolve the issue that the dissent raises, for we do not believe that congressional predictions either typically or in this case answer the same analytical question that the redressability component of Article III presents to us. We must bear in mind that Congress need not meet constitutional causation standards before employing legislative power. Determining that legislation will be “effective” is not necessarily the same as determining causation for purposes of Article III. By equating the two, we think the dissent falls into an analytical snare. Congressional debates—as did the one preceding the adoption of the Anti-Apartheid Act—often focus on the relative effectiveness of proposed legislation to remedy the perceived evils, but Congress is not constitutionally obliged to demonstrate that its exercise of legislative power will have a foreseeable proximate effect on any specific individual. Congress may and does pass legislation that seeks only approximately or imprecisely and perhaps over a long period of time to affect the behavior of men and nations. Thus, we do not quarrel with Congress’ judgment that the Anti-Apartheid Act will have a positive influence over time on South African affairs (the dissent in that regard seems to misunderstand our reasoning). Rather, we are unable to conclude that our employment of judicial power is likely (let alone substantially likely) to cause an end to apartheid so as to redress Isaacs’ injury. Moreover—and this point is decisive—we do not think our conclusion is in any way inconsistent with congressional predictions as to the effectiveness of the legislation.
As we noted above, petitioners’ grievance in this case does not involve the entire sanctions package, but only the failure of the NRC to ban the importation of uranium hexafluoride. Whatever predictions Congress made about the effectiveness of the Anti-Apartheid Act were made with regard to the sanctions package as a whole. Congress never suggested that extending the embargo to uranium hexafluoride would lead to the end of apartheid. That point illustrates nicely that the constitutional question of causation as to the litigants before us is really of quite a different order than the largely political question of causation considered by Congress. We must ask rigorously whether our use of judicial power will remedy the particular injury suffered by a person or group of persons, and that question will rarely be the same as that which Congress addressed.13
Even assuming, arguendo, that the dissent is correct and the proper focus of the causation inquiry is on the full complement of economic sanctions, petitioners have failed to meet their burden. They are correct to point out that Congress sought to use “effective means to achieve the removal of ... the apartheid system.”
The weight of Supreme Court authority emphasizes that when numerous third parties and independent variables lead to an injury, the complainant has the burden of showing that but for the particular governmental action that he is challenging, the injury would abate. Allen, 468 U.S. at 759, 104 S. Ct. at 3328; Simon, 426 U.S. at 41-42, 96 S. Ct. at 1925-26; Warth, 422 U.S. at 507, 95 S. Ct. at 2209. We have interpreted these cases to mean that petitioners “must show that the agency‘s action is more than only one of the many factors whose relative influence may affect the third parties’ behavior.” Community for Creative Non-Violence v. Pierce, 814 F.2d 663, 669 (D.C. Cir. 1987). Were we to accord full weight to congressional predictions as to the effect of the Anti-Apartheid Act, it is still highly speculative if or when the limited sanctions of the 1986 Act would lead to the end of apartheid in South Africa.15 Although the sanctions may well induce political negotiations, we can only guess how the parties will react to that opportunity. Numerous factors, including domestic South African politics, the influence of third countries,16 and the status of the world economy will influence negotiations if congressional sanctions are successful in prompting their initiation. We can fervently hope that the effect of the Anti-Apartheid Act will converge with all of these factors in a favorable manner to bring an early end to the odious practice of apartheid. That hope, however, does not supply a constitutional justification for the use of judicial power in this case.
Nor is jurisdiction conferred by the dissent‘s underlying concern that if we deny standing to these plaintiffs in this case the Executive Branch might not be adequately checked by the judiciary. See Dissent at 987. Article III does not confer on federal courts power to supervise generally the Executive Branch, and therefore some executive (or for that matter congressional) actions that arguably conflict with legislation may be reviewable only through the political process.
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For the reasons stated, we conclude that none of the petitioners has standing to seek review of the NRC‘s orders. Therefore, the petition for review is
DISMISSED.
MILTON POLLACK, Senior District Judge, concurring:
I concur dubitante with Judge Silberman on the issue of standing. My doubt stems
The court owes considerable deference to the NRC‘s decision, which is in line with the Treasury Department‘s interpretation of the Anti-Apartheid Act. When the language of the statute and the legislative history do not demonstrate that Congress had a specific intent on the issue in question, the court must respect the administrator‘s interpretation if the choice the agency made is a reasonable one in the context of the particular statutory program. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-45, 104 S. Ct. 2778, 2781-83, 81 L. Ed. 2d 694 (1984); Securities Indus. Ass‘n v. Board of Governors, 847 F.2d 890, 893 (D.C. Cir. 1988).1
The interpretation of section 309 by the Department of Treasury and the NRC as not banning the importation of South African uranium hexafluoride is a plausible reading of the terms of the Act. Congress specified that it meant to ban the importation of uranium ore and uranium oxide from South Africa. Where Congress intended to prohibit the importation of not only the commodity itself, but also the commodity‘s derivatives and byproducts, it expressly so provided. See
With regard to South African-origin uranium ore and uranium oxide that is transformed into uranium hexafluoride in other countries, the agencies reasonably concluded that uranium hexafluoride is not sufficiently similar to uranium ore or uranium oxide to be subject to the import bar. The Treasury Department has broad experience in implementing the substantial transformation doctrine in various contexts, and we defer to its decision that uranium hexafluoride is substantially transformed from uranium oxide. There is sufficient evidence from which Treasury and the NRC could conclude that uranium hexafluoride “emerges from a manufacturing process with a name, character, or use which differs from those of the original material subjected to the process.” Torrington Co. v. United States, 764 F.2d 1563, 1568 (Fed. Cir. 1985).2
RUTH BADER GINSBURG, Circuit Judge, dissenting as to standing:
While I agree with the majority that Supreme Court guidance through the standing thicket is “less than pellucid,” Maj.Op. at 971, the nearest line of precedent and deference to Congress’ superior judgment in foreign affairs lead me to conclude that Henry Isaacs and at least one of the organizational petitioners, TransAfrica, Inc., have standing in this case.1 I agree with Judge Pollack, however, that the agencies in question plausibly read the Comprehensive Anti-Apartheid Act (the Act) to encompass no ban on the importation of uranium hexafluoride. For that reason, I would deny the petition for review.
I.
“Political or ideological” as the organizational petitioners’ interest may be, Maj.Op. at 973, my colleagues recognize this essential point: the ban stopping individual members such as Randall Robinson of TransAfrica, Inc. from entering South Africa satisfies the injury-in-fact requirement. See id. I make this initial observation to underscore that such concrete injury to an organization‘s members can open the court‘s door to the organization itself, even if the organization‘s “principal purpose” is political or ideological. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 83 S. Ct. 328, 335, 9 L. Ed. 2d 405 (1963) (holding that NAACP had standing to assert members’ rights of free association and expression); NAACP v. Alabama, 357 U.S. 449, 459, 78 S. Ct. 1163, 1170, 2 L. Ed. 2d 1488 (1958) (holding that NAACP had standing to assert members’ constitutional protection from compelled disclosure of their affiliation with the organization); Anti-Fascist Committee v. McGrath, 341 U.S. 123, 183-87, 71 S. Ct. 624, 654-57, 95 L. Ed. 817 (1951) (Jackson, J., concurring) (stating that organizations designated as Communist by Attorney General had standing to vindicate members’ constitutional rights).
Furthermore, for the organization to have standing, it commonly suffices to point to the exposure of any member to a “distinct and palpable harm.” See Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 2211, 45 L. Ed. 2d 343 (1975) (“The association must allege that its members, or any one of them, are suffering immediate or threatened injury....“) (emphasis added); Animal Welfare Inst. v. Kreps, 561 F.2d 1002, 1007 (D.C. Cir. 1977) (same), cert. denied, 434 U.S. 1013, 98 S. Ct. 726, 54 L. Ed. 2d 756 (1978). It is beyond genuine debate, as my colleagues concede, that a ban on travel to South Africa, operative against an individual because of his race, beliefs, or political expression, constitutes a palpable injury-in-fact. See Diggs v. Shultz, 470 F.2d 461, 464 n. 1 (D.C. Cir. 1972) (holding that Rhodesia‘s refusal to admit several members of Congress and the leader of an anti-apartheid organization constituted injury-in-fact), cert. denied, 411 U.S. 931, 93 S. Ct. 1897, 36 L. Ed. 2d 390 (1973).2 Thus, the dispositive issue for the organizational petitioners, or at least TransAfrica, Inc., is
II.
Acknowledging the “absence of precise definitions” of the different components of the standing test, the Supreme Court in Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984), directed lower courts to find guidance in the “developing case law” and to answer standing questions “by comparing the allegations of the particular complaint to those made in prior standing cases.” Id. at 751-52, 104 S. Ct. at 3324-25. Confronting the divergent lines of Supreme Court precedent described in part by the majority, see Maj.Op. at 971-72, I am persuaded that the case that best matches the complaint before us is Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 106 S. Ct. 2860, 92 L. Ed. 2d 166 (1986).4
In Japan Whaling, the Supreme Court upheld the standing of the American Cetacean Society to sue the Secretary of Commerce to force him to initiate what the Society alleged were congressionally-required sanctions against Japan for that nation‘s violation of international whaling quotas. Unfortunately for courts such as ours attempting faithfully to follow the High Court‘s lead, the Supreme Court did not address the redressability requirement in its footnote on standing. See Japan Whaling, 478 U.S. at 231 n. 4, 106 S. Ct. at 2866 n. 4. Apparently, the Court assumed that enforcing the sanctions Congress ordered would cause Japan to curtail its hunting of the endangered species, and thereby redress the injury to the Society‘s observation and study of whales.
In an effort to assimilate Japan Whaling to the Warth-Simon-Allen line, the majority searches outside Japan Whaling‘s standing inquiry to find hints of a redressability determination elsewhere. See Maj.Op. at 977-78. The majority observes that several pages prior to Japan Whaling‘s discussion of the standing issue, the Court recounted how previous threats of sanctions against various countries led to promises of future compliance with international whaling quotas; according to the majority, this establishes that the Supreme Court implicitly determined for itself that sanctions would redress the Society‘s injury. Id. It seems to me a stretch to say that the background discussion in Japan Whaling of past threats of sanctions constituted an independent inquiry and determination by the Court that sanctions would redress the Cetacean Society‘s injuries. In the context in which the Court placed the lines in question, the passage seems merely to describe Congress’ assessment that, although the threat of sanctions in the past had “served the useful function of quietly persuading nations to adhere to the decisions of international fishery conservation bodies,” 478 U.S. at 225-26, 106 S. Ct. at 2863-64 (quoting H.R. REP. No. 95-1029, p. 9 (1978)), swifter, mandatory sanctions were nonetheless in order.
I am convinced that this is the most sensible reading of Japan Whaling. As the majority notes, the question of redressability is predictive. When Congress has determined that a certain action will achieve a given end, courts generally should defer to that judgment. Deference should be at its zenith when Congress has predicted that a foreign country will react to sanctions in a particular way, because such a prediction is outside the judiciary‘s expertise. So long as Congress’ prediction seems plausible, courts should not speculate to the contrary.
Our court explicitly adopted a rationale of this order in Animal Welfare Institute v. Kreps, 561 F.2d 1002 (D.C. Cir. 1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 726, 54 L. Ed. 2d 756 (1978). In that case, we respected Congress’ judgment about the effectiveness of sanctions in stopping South Africa‘s killing of seals:
[W]e believe that Congress, in enacting the [statute], established as a matter of law the requisite causal relationship between American importing practices and South African sealing practices.... This reflects a congressional decision that denial of import privileges is an effective method of protecting marine mammals in other parts of the world.... In the face of this congressional determination, it is impossible to conclude, as appellees urge us to, that the causal relationship is purely “speculative.”
Id. at 1010 (emphasis in original). See also Center for Auto Safety v. Thomas II, 847 F.2d 843, 855-56 & n. 15 (D.C. Cir. 1988) (Wald, C.J.) (giving due weight to Congress’ findings that auto manufacturers’ receipt of corporate average fuel efficiency credits would diminish availability of fuel efficient cars); National Wildlife Fed‘n v. Hodel, 839 F.2d 694, 708 (D.C. Cir. 1988) (“Congress’ admonitions ... regarding the need for specific [surface mining] regulations ... support[] the inference that a causal connection exists between deletion of regulatory specifics and adverse environmental effects.“); Autolog Corp. v. Regan, 731 F.2d 25, 31 (D.C. Cir. 1984) (deferring to Congress’ finding that “exclusion of foreign flag shippers would prompt domestic shippers to exploit existing markets“); International Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795, 811-12 (D.C. Cir. 1983) (“[A]s Congress passed the [Fair Labor Standards] Act partly to provide redress to employers from unfair competition, the suggestion that effective enforcement of the Act will not have this effect directly contravenes the congressional judgment underlying the Act.“), cert. denied, 469 U.S. 820, 105 S. Ct. 93, 83 L. Ed. 2d 39 (1984).5
To defer to Congress’ judgment in this way does not “permit Congress, by legislation, to amend the Constitution,” Maj.Op. at 978, because courts are not bound to accept anything and everything Congress labels its findings. When the redressability inquiry involves a question of predictive fact regarding matters outside the realm of judicial expertise, however, courts should be reluctant to contradict the judgment of Congress, doing so only upon a showing that Congress’ judgment does not stand the test of rationality.
This case falls within the category of cases in which deference is appropriate. Sanctions have become a familiar weapon in our nation‘s foreign policy arsenal (as Diggs, Animal Welfare Institute, and Japan Whaling signify), “contribut[ing] to U.S. policy goals in a number of important situations such as Rhodesia, Iran, Uganda, Chile, and Nicaragua toward the end of the Somoza regime.” H.R.REP. No. 638, pt. 1, 99th Cong., 2d Sess. 11 (1986). In enacting
The majority discounts the likely effectiveness of sanctions in two ways. First, it incorrectly describes the relief necessary to redress petitioners’ injuries as total—e.g., “complete democratization” of South Africa “and an end to apartheid.” Maj.Op. at 974; see also id. at 979, 980. Phrasing the necessary relief in these stark, uncompromising terms sets up the conclusion that enforcing the Act will not likely redress petitioners’ injuries; and it allows the majority to claim support from Congress’ own recognition that sanctions are only part of a long term endeavor to advance the elimination of apartheid. See id. at 980. But petitioners’ injuries can be alleviated by relief of a more modest character, and fastening on the ultimate objective disregards or discounts the Act‘s more immediate goals.
The Act seeks to promote as way pavers to the eventual end to apartheid several interim objectives, including repeal of the State of Emergency, recognition of the right to organize political parties, to express political opinions, and to participate in the political process, and commencement of negotiations with black South Africans. See
[E]ven limited U.S. and Western sanctions have already had some constructive effects. These include: political benefits among the black majority ...; a contribution to the growing political ferment in key Afrikaner institutions ... as well as within the new independent political movement; and expressions of concern by the South African Government about the accumulating costs of trade and capital sanctions.H.R.REP. No. 642, pt. 1, 100th Cong., 2d Sess. 13 (1988).
Progress on the way pavers seems capable of affording some relief to Isaacs by enabling him, sooner rather than later, to return home without being subject to arrest and prosecution for his political activities or to Randall Robinson by allowing him more immediately to enter South Africa. The majority places the Act‘s interim objectives outside its view because of a lack of specificity in petitioners’ allegations. See Maj.Op. at 974-75. I believe, however, that the majority requires an unwarranted degree of meticulousness in petitioners’ allegations. Although plaintiffs in typical standing cases can allege more precisely how the sought-after judicial action will redress their injuries, it is intrinsically more difficult to supply particulars when the injury is worked by, and the ultimate relief requires action of, a third party. Yet, just as “mere indirectness of causation is no barrier to standing, and ... an injury worked on one party by another through a third party intermediary may suffice,” National Wildlife Fed‘n v. Hodel, 839 F.2d at 705 (citing Meese v. Keene, 481 U.S. 465, 107 S. Ct. 1862, 95 L. Ed. 2d 415 (1987)), so an injury may be redressable even though the connection between judicial action and the ultimate redress is mediated by a third party‘s action. It is impossible to allege with certainty exactly how South Africa would react to the judicial order requested
The majority itself assumes without any more specific allegation by petitioners that it is “substantially likely that an ending of apartheid and the concomitant complete overhaul of the South African political system would provide redress to Isaacs.” Maj.Op. at 975. Why is it not also likely that recognition of the right of blacks to organize political parties, express political opinions, and participate in the political process will enable Isaacs—subject to arrest in South Africa precisely for his political activities—to return home or Randall Robinson—barred also for his political activities—to enter South Africa to meet with anti-apartheid activists? In both situations it is possible that for some reason the reforms in South Africa will not extend to either Isaacs or Robinson as individuals, but it is not necessary for petitioners to “negate every ‘speculation and hypothetical possibility’ ... in order to demonstrate the likely effectiveness of judicial relief.” National Wildlife Fed‘n v. Hodel, 839 F.2d at 706 (quoting Community Nutrition Inst. v. Block, 698 F.2d 1239, 1249 (D.C. Cir. 1983), rev‘d on other grounds, 467 U.S. 340, 104 S. Ct. 2450, 81 L. Ed. 2d 270 (1984)); see also Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 78, 98 S. Ct. 2620, 2633, 57 L. Ed. 2d 595 (1978). Thus, the court should focus on those reforms minimally necessary to afford some redress for petitioners’ injuries and most likely to result from the sanctions.7
Even if petitioners are “unclear” on this point, Maj.Op. at 974, however, the majority‘s approach runs counter to the well-accepted view that claimants should be given an opportunity to amend defective allegations of jurisdiction before being denied relief altogether. See
Although the Supreme Court has rejected the contention that a plaintiff should have standing whenever no other person would have a securer footing to complain, Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S. Ct. 2925, 2935, 41 L. Ed. 2d 706 (1974), that is not the situation here: petitioners are not alleging a “generalized interest ... too abstract to constitute a ‘case or controversy’ appropriate for judicial resolution,” id.; they allege concrete, individualized harm which Congress reasonably believed would be remedied, at least in some measure, by enforcement of the Act. As Reservists Committee indicates, there are legislative prescriptions left to the political branches for enforcement because no individual can claim a distinct harm. It does not follow, however, that a statute with a unified objective but multiple implementing agents should be left judicially unenforceable when the several agents must each perform its charge in order to achieve the results intended by the whole Act. The proper
threshold inquiry for this court, then, is whether Congress reasonably predicted that enforcement of the Act as a whole would effect changes sufficient to alleviate petitioners’ injuries.
The Comprehensive Anti-Apartheid Act represents Congress’ effort to aid the black majority struggling for freedom in South Africa. Denial of standing to Isaacs and TransAfrica appears to me tantamount to questioning Congress’ judgment regarding the Act‘s effectiveness or suggesting that Congress itself did not expect the Act to result in meaningful change. Either stance conveys an unwarranted message about congressional action in the foreign affairs realm. I would defer to Congress’ informed judgment about the effect of the sanctions, and proceed to the merits of this case.
For the reasons stated, I would not erect a standing barrier to block all petitioners. However, the administrators have ruled that the Act does not ban South African uranium hexafluoride or uranium hexafluoride manufactured in other foreign countries from South African uranium ore or uranium oxide. I agree with Judge Pollack that the agencies’ interpretation is plausible, even if not the one that seems to me most harmonious with Congress’ large purpose.9 I would on that account deny the petition for review.
Notes
Articles such as uranium hexafluoride, which are produced from uranium ore or uranium oxide and which the U.S. Customs Service determines to have been substantially transformed outside the United States, are not subject to the import prohibition....