NATURAL RESOURCES DEFENSE COUNCIL, et al., Appellees,
v.
Federico F. PENA, Secretary, The Department of Energy, and
National Academy of Sciences, Appellants.
Nos. 97-5253, 97-5254.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 13, 1998.
Decided July 17, 1998.
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Alisa B. Klein, Attorney, United States Department of Justice, argued the cause for the federal appellant. Frank W. Hunger, Assistant Attorney General, Mary Lou Leary, United States Attorney at the time the brief was filed, and Mark B. Stern, Attorney, United States Department of Justice, were on brief.
Nathan C. Sheers argued the cause for appellant National Academy of Sciences. Carter G. Phillips, James R. Wright and Audrey Byrd Mosley were on brief.
Howard Crystal argued the cause for the appellees. Eric R. Glitzenstein was on brief.
Before: HENDERSON, ROGERS and GARLAND, Circuit Judges.
KAREN LeCRAFT HENDERSON, Circuit Judge:
This appeal poses the recurring question of what remedy is appropriate for a federal agency's violation of the Federal Advisory Committee Act, 5 U.S.C.App. 2, §§ 1 et seq., (FACA). The appellants, the United States Department of Energy (Department or DOE) and the National Academy of Sciences (Academy or NAS), appeal the district court's grant of a permanent injunction against the Department's use of or reliance on a report prepared by an Academy committee, which committee both the Department and the Academy concede was organized and operated in violation of FACA. Because we have serious doubts whether the "use injunction" redresses any of the appellees' claimed injuries and because we believe the district court erred in failing to afford the appellees an opportunity to take discovery and refine their request for equitable relief, we reverse and remand.
I. BACKGROUND
In December 1995 a DOE official contacted the then-president of the Academy, proposing a contract between the Department and the Academy pursuant to which the Academy would select and convene a committee of experts to study and review certain technical and scientific issues associated with the Department's Inertial Confinement Fusion (ICF) Program. "ICF is a conceptual method for achieving a fusion reaction by compressing and confining a small pellet containing fuel such as a deuterium and tritium mixture through the inward forces of inertia generated on the fuel by the ablation ... of the outer surface of the pellet." Zolandz Decl. p 7. The scientific objective of ICF is to achieve "ignition"--i.e., a self-sustaining fusion reaction that produces more energy than is required to initiate the reaction. Id. p 6. The Department sponsors and performs research into and development of ICF processes to provide "valuable information for national defense, energy, and other industrial and scientific applications." First Crandall Decl. p 4.
The Academy and the Department formalized their agreement in a letter contract in May 1996. Under the contract, the ICF committee (Committee) was given three missions: "(1) determine the scientific and technological readiness of the NIF [National Ignition Facility] project, (2) assess the entire ICF program (including program scope, balance, and priorities; facility operation; experimentation; theory; etc.) and make recommendations to facilitate the achievement of the scientific goal, which is ignition, and (3) evaluate the capabilities of the ICF program (in conjunction with NIF) to support [Science-Based Stockpile Stewardship program to maintain national nuclear arsenal]." Taylor Decl. p 11. NIF is a principal component of the Department's ICF program and is "a national center to study inertial fusion and high-energy-density science." First Crandall Decl. p 5. It is being built, at a projected cost in excess of $1 billion, at the Lawrence Livermore National Laboratory (LLNL) in Livermore, California. Id. When complete, the "NIF will house a powerful laser, consisting of 192 beams, which will be used to simulate processes that occur in nuclear weapons and to 'ignite' small fusion targets in the laboratory for the first time." Id. As of the date the Department contracted with the Academy to form the Committee, NIF had entered the preliminary [
Pursuant to the letter contract, the Department agreed to pay the Academy $335,700 to defray the Committee's costs during the first (and, as it now turns out, only) year of its existence. The Academy, in accordance with its own procedures but without reference to FACA, named fifteen scientists to the Committee in May 1996. Zolandz Decl. pp 11, 13. The Department had no input into or control over the appointments. Id. pp 13-14. While some Committee members, it appears, had consulting contracts with, or other professional ties to, LLNL (see First Cochran Decl. p 8), "[n]o one receiving any funding from a DOE ICF program ... was permitted to serve as a member of the ICF committee." Zolandz Decl. p 19. Moreover, no DOE personnel participated in the Committee's deliberations. Id. p 16.
The Committee met six times during the fall of 1996. At the Committee's request, DOE personnel attended most of the meetings and briefed the Committee on various aspects of the ICF program and NIF. The majority of the briefings were closed to the public because of their classified nature. Upon request, the Academy apprised the public of the Committee's membership, agendas, open meetings and mission statement. When appropriate, the Committee also allotted meeting time to members of the public to present their views. Indeed, three of the four appellees--the Natural Resources Defense Council (NRDC), Dr. Thomas B. Cochran and Tri-Valley CAREs (Citizens Against a Radioactive Environment)--made known to the Committee their views on the ICF program and NIF. The fourth appellee, the Western States Legal Foundation, was invited to a Committee meeting but declined to attend. See Zolandz Decl. p 24; Velluvia Decl. p 4.
The Committee concluded its meetings in December 1996 and began drafting a report of its findings. The same month the Department approved the Programmatic Environmental Impact Statement for NIF, a statement required by the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., thus clearing the last major regulatory bar to constructing NIF. On February 14, 1997, however, the appellees filed a complaint for declaratory and injunctive relief, alleging that the Committee was an "advisory committee" and that it had not been established or operated in conformity with FACA. The complaint sought equitable relief and attorneys' fees, specifically requesting that the district court:
(2) preliminarily and permanently enjoin DOE from relying on any deliberations, reports or recommendations from the ICF Committee;
(3) preliminarily and permanently enjoin DOE from providing any funding for activities of the ICF Committee, including the dissemination of any reports or other work product;
(4) preliminarily and permanently enjoin NAS from permitting the ICF Committee to continue to meet, deliberate, or prepare any work product, including the Interim Report;....
Compl. 9-10.
Each of the four appellees is either a non-profit organization or an employee of such organization. Since 1982, appellee Western States Legal Foundation "has engaged in administrative proceedings, litigation, public education efforts and grassroots organizing to promote disarmament, ensure the clean-up of federal nuclear weapons research, testing and production facilities, and challenge nuclear weapons programs." Compl. p 6. It includes members who "live and engage in recreational activities in the vicinity of LLNL." Id. Appellee Cochran is employed by the NRDC as the director of its nuclear program and has a professional interest in and involvement with nuclear energy and non-proliferation issues. See id. p 4. Appellee NRDC has "over 300,000 members, and is interested in the work of the ICF Committee." Id. p 3. Appellee Tri-Valley CAREs is based in Livermore, California and "undertakes projects that increase public knowledge of the relationship between peace and environmental issues, including public education regarding potential impacts from the production, treatment, storage and disposal of hazardous and radioactive waste." Id. p 7. Tri[
The apparent impetus for this lawsuit is a decision of this Court, Animal Legal Defense Fund v. Shalala,
In the wake of ALDF, the Department in effect conceded that the Committee must be deemed an "advisory committee" and that it had not complied with FACA. Both the Department and the Academy argued, however, that the district court could not remedy the violations by means of an injunction proscribing either publication of the Committee's report or the Department's use of the Committee's findings. The district court disagreed with the latter argument and on March 5, 1997 enjoined the Department from (1) expending any additional unobligated money to fund Committee operations or (2) "utilizing, relying on or in any way incorporating into its decisionmaking process the ICF Committee report or any other work product of the ICF Committee." Natural Resources Defense Council v. Curtis, No. 97-0308 (D.D.C. Mar. 5, 1997) (order granting preliminary funding and use injunctions), (NRDC I). In so concluding, the district court reasoned:
In this case, injunctive relief is necessary and appropriate to preserve the purposes of FACA, to avoid making it a "nullity" and to preserve plaintiffs' right to ensure that advisory committees to DOE comply with the statute's dictates. The fact that some funds have already been spent cuts in the opposite direction, while the record is insufficient for the Court to determine whether the few ICF Committee meetings that were open to the public (less than 30 percent) constituted a sufficient attempt to ensure public accountability. On balance, the Court finds that the factors articulated in California Forestry Ass'n v. United States Forest Service,
Id. Citing the Committee members' First Amendment rights, the district court declined, however, to enjoin the Academy from publishing the Committee's final report. Id.
On March 11, 1997, six days after the injunction issued and nine days before the Committee published its final report, the Department announced its decision to construct NIF. Second Crandall Decl. p 2. While the question whether to construct NIF was not part of the Committee's charge, its report assessed "the technical and scientific readiness of the NIF to proceed to the construction phase, identifies specific technical issues needing additional study, i.e., 'remaining hurdles' in parallel with NIF construction, and arrives at certain findings and conclusions related to the NIF." Id. p 5. Indeed, on December 6, 1996, before the appellees brought suit, the Committee orally apprised the Department that it saw no "technical reason to delay [construction of] the NIF." First Crandall Decl. p 17.
The Department subsequently moved for reconsideration and clarification of the district court's use injunction but did not contest the funding injunction or declaratory relief, thereby agreeing to the Committee's [
The district court denied the Department's reconsideration request. See Natural Resources Defense Council v. Curtis, No. 97-0308 (D.D.C. May 13, 1997) (order denying motion for reconsideration), (NRDC II). Further, the district court clarified that its use injunction "encompasses all [departmental] employees and subcontractors, including the ten national laboratories and six primary contractors performing ICF-related work identified by DOE in its papers." Id.
Deciding not to proceed with discovery and a trial on the merits in the event the district court had properly awarded injunctive relief pursuant to California Forestry Association v. United States Forest Service,
The district court, however, sided with the Department, concluding that the "plaintiffs have already obtained all the relief they requested, except for an injunction against the National Academy of Sciences, which the Court expressly denied in its March 5, 1997 decision and order, and an award of attorneys' fees, a matter that obviously remains open." Natural Resources Defense Council v. Pena, No. 97-0308(D.D.C. Aug. 6, 1997) (order and judgment entering permanent use injunction), (NRDC III). The appellees subsequently moved to supplement the record but the district court denied the motion, concluding that Fed.R.Civ.P. 52(b) does not authorize post-judgment supplementation. See Natural Resources Defense Council v. Pena, No. 97-0308 (D.D.C. Oct. 9, 1997) (order denying motion to supplement), (NRDC IV). In so ruling, the district court noted that because "the Department of Energy has stated that on appeal it does not intend to challenge the completeness of the record that was before the Court when it entered final judgment[,] ... [p]laintiffs therefore will not be in the position of arguing the sufficiency of the factual record that was before this Court." Id. The Department and the Academy timely appealed only the district court's permanent use injunction, declining to contest either the declaratory relief or the funding injunction the district court also awarded.
II. DISCUSSION
The Department argues that we should reverse and vacate the district court's use injunction because the appellees do not have standing to sue for such relief and, even if they do, the equities do not warrant such a draconian remedy. The Academy adds that the district court misapplied the test set forth in California Forestry, the appellees' conflict-of-interest and unbalanced-composition claims are either inapposite or not justiciable and FACA does not extend to a technical committee like the Committee that does not provide advice to a federal agency on a discrete governmental policy.1 The appellees [
A. The Appellants' Standing
"The most obvious difference between standing to appeal and standing to bring suit is that the focus shifts to injury caused by the judgment rather than injury caused by the underlying facts." 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3902, at 63 (2d ed.1991). The appellees argue that because the use injunction was entered at the behest of the Department, it is not injured by the district court's final order and "may not appeal from a disposition in its favor." Showtime Networks, Inc. v. FCC,
Moreover, we do not believe the Department waived its right to appeal by moving for expedited entry of a permanent use injunction. The consent-to-judgment waiver doctrine provides that a party that consents to entry of final judgment waives its right to appeal the judgment unless it expressly reserves that right. See Shores v. Sklar,
Even if the Department had not expressly reserved its right to appeal, it would not have waived its objection to the appellees' standing--an objection directed to the district court's subject matter jurisdiction. See White v. Commissioner,
The Academy, however, is not so situated. As the district court recited below, "The preliminary injunction runs only against the Department of Energy and not against the NAS in any way." NRDC II, supra; accord NRDC III, supra ("[P]laintiffs have already obtained all the relief they requested, except for an injunction against the National Academy of Sciences, which the Court expressly denied."). We therefore fail to see how the Academy is aggrieved. It plainly was not harmed by the district court's decision to deny the appellees' prayer for injunctive relief against the Academy. See Public Serv. Comm'n of Mo. v. Brashear Freight Lines, Inc.,
B. The Appellees' Standing
Having determined that only the Department can appeal, we turn now to the question of the appellees' standing to sue for a use injunction. We think it important to note [
The Article III standing inquiry includes three elements:
First and foremost, there must be alleged (and ultimately proven) an injury in fact--a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical. ... Second, there must be causation--a fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant. ... And third, there must be redressability--a likelihood that the requested relief will redress the alleged injury. ... This triad of injury-in-fact, causation, and redressability comprises the core of Article III's case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence.
Steel Co., --- U.S. at ---- - ----,
The Supreme Court's decision in Public Citizen v. United States Department of Justice,
The Department contends that the appellees here lack standing to sue because the use injunction will not redress any of their claimed injuries--namely, exclusion from past Committee meetings and denial of access to Committee records and documents. In other words, the Department argues, the appellees have not shown that the Department's use of the Committee's report or other work product will cause them to sustain an Article III injury in fact.
The appellees first counter that, as the district court concluded, Public Citizen makes clear their standing to sue for a use injunction. We disagree. Unlike the injunctive relief at issue in Public Citizen, the use injunction awarded here will not give the appellees access to Committee documents and future Committee meetings. Indeed, the Committee has been dissolved and will no longer meet, deliberate or generate documents or records. Moreover, the use injunction does not require the disclosure of any Committee documents or records. Accordingly, we agree with the Department that Public Citizen does not compel the conclusion that the appellees have standing to seek any and all kinds of equitable relief for the admitted FACA violations. Cf. City of Los Angeles v. Lyons,
Alternatively, the appellees argue that the use injunction redresses both their past and their future injuries:
First, plaintiffs were denied their rights to contemporaneous access to the workings of the ICF Committee. Had DOE and NAS complied with FACA, plaintiffs could have reviewed materials presented to, and prepared by, the ICF Committee, presented comments based on this review, and generally played the public oversight role for which FACA is designed. Instead, they were denied this contemporaneous access. An injunction against the use of the ICF Committee Report redresses this injury by preventing DOE from making use of the product of this illegal process. See Alabama-Tombigbee Rivers Coalition v. Department of Interior,
Second, plaintiffs' injury continues to the present because DOE and NAS are withholding materials which Section 10 of FACA requires be released to the public. Thus, were the Court to permit DOE to make use of the ICF Committee Report now, plaintiffs' injury would be compounded because they still would not have the materials to which they are entitled under FACA, and which they need in order to publicly critique the Report in the manner that FACA allows. Enjoining DOE from using the Report--at least until and unless DOE and NAS make some additional effort to comply with FACA--redresses this injury by preventing DOE from both taking advantage of the Report and simultaneously denying plaintiffs access to the materials underlying it.
Appellees Br. 27 (emphasis original; footnote omitted).3 We are not convinced by either argument.
[
The appellees' second argument--that the use injunction redresses their continuing injury stemming from the Department's ongoing refusal to give them FACA access to Committee documents and records--is equally without merit. That the appellees may have sustained a continuing injury by virtue of the Department's ongoing denial of FACA access to Committee documents and records cannot support their standing to sue for an injunction that does not itself address the access issue. See Steel Co., --- U.S. at ----,
Finally, the appellees argue in the alternative that they should have the opportunity to take discovery and/or to streamline their request for equitable relief in order to overcome any standing problem or other shortcoming. The argument is tied to the significant differences between the evidentiary support required for preliminary injunctive relief and that required for permanent injunctive relief:
The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary [
University of Texas v. Camenisch,
The district court's decision to omit both discovery and a trial on the merits, thus losing the opportunity to consider less severe equitable relief, had the same effect as would have occurred had the appellees been required to fully make their case at the preliminary injunction hearing--a practice at odds with both the Federal Rules of Civil Procedure and the provisional nature of preliminary injunctive relief. See United States v. Owens,
Moreover, we believe the unusual circumstances here indicate that reversal and remand, rather than vacatur, appropriately dispose of the appeal. In this regard, we rely on our decision in Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp.,
[W]hile we vacate the district court's denial of [the defendant's] motion to dismiss the individual testers' suit, we do not order it to grant that motion; instead, we remand the case for the district court to exercise its sound discretion over whether to permit amendment. We see no reason why plaintiffs who win in the district court should automatically be in a worse position than plaintiffs whose allegations of standing have been rightly found defective by the district court.
Id. (emphasis original). Indeed, the case for remand is somewhat stronger here than in Fair Employment because here the appellees plainly have standing to request injunctive relief directing the Department to make Committee documents and records available to the full extent permitted by FACA, see Public Citizen,
Finally, we think a remand here is also consistent with our precedent allowing jurisdictional discovery and factfinding if allegations indicate its likely utility. See Women's Equity Action League v. Bell,
If the district court concludes that the plaintiffs have standing to sue for a use injunction, that conclusion would not mandate a judgment in their favor. And unlike the district court, we do not think California Forestry may be read to suggest otherwise.
In California Forestry we observed that a use injunction
might be appropriate in some cases, and perhaps even this case, if the unavailability of an injunctive remedy would effectively render FACA a nullity. On remand, however, the district court should inquire whether under the circumstances an injunction would promote FACA's purposes. The preparation of the report has already consumed millions of dollars. If the Forest Service needs a scientific evaluation of the Sierra Nevada for its own use, an injunction prohibiting its use of the SNEP study would require it to commission another (presumably duplicative) study of the Sierra Nevada. That result would not meet FACA's aim to reduce wasteful expenditures. ... A second purpose of FACA is to enhance the public accountability of advisory committees established by the Executive Branch. ... The record indicates that at least some of the Science Team meetings were open to the public. Furthermore, SNEP made other efforts to keep the public informed--it published newsletters and provided information to a "key contacts group" comprised of eighty-seven individuals and representatives of various organizations, including CFA. The need for injunctive relief may be reduced where, as here, there has been at least some attempt to ensure public accountability.
California Forestry,
In California Forestry our discussion about whether denial of a use injunction would "render FACA a nullity" was intended to highlight that the relief should be awarded only rarely; we did not mean that if suit is not brought until late in the day, an injunction should necessarily issue to ensure respect for the law. Because of its First Amendment implications, punitive effect and likely standing complications, a use injunction should be the remedy of last resort. [
The district court should also consider whether FACA's principal purposes--(1) avoidance of wasteful expenditures and (2) public accountability--will be served by granting a use injunction. While a complaint filed after a committee has completed its meetings and is in the process of wrapping up its affairs will likely produce waste if a use injunction is granted, the district court should also consider the magnitude of the waste, the value of the committee's work to the sponsoring federal agency and the effect of the FACA violation on the committee's findings. As to the last, if the FACA violation appears to have had little deleterious effect on the committee's output and accountability and the public's participation, the district court should withhold a use injunction.7 For example, where, as here, a large part of the Committee's deliberations involved classified materials to which the public would not have had access even under FACA, the loss of public participation is less significant. Similarly, the district court's public accountability inquiry should focus on the actual deprivation resulting from non-compliance. Substantial efforts to include members of the interested public in at least some committee meetings and attempts to screen for conflicts of interest among committee members counsel against a use injunction. Moreover, if members of the public will have another opportunity to comment on an agency decision, the district court should determine whether the subsequent opportunity will render harmless (or at least less harmful) the loss of any past opportunity to participate.8 Cf. National Nutritional Foods Ass'n v. Califano,
Tri-Valley CAREs has a long-held interest in the proposed National Ignition Facility, and has--via gathering written information, conducting meetings with technical experts and other means--systematically carried out research regarding the NIF since 1994. These activities by Tri-Valley CAREs have included, but are not limited to, participation on the LLNL NIF Environment, Safety and Health Working Group, testimony at public hearings on environmental, nuclear proliferation and other questions regarding NIF and numerous meetings with DOE and LLNL officials.
Kelley Decl. p 10.
III. CONCLUSION
We reverse and remand the case to the district court to consider further the plaintiffs' standing to sue for a use injunction pursuant to Public Citizen and to allow the plaintiffs an opportunity to undertake discovery. On remand, and following discovery, the district court should determine if the plaintiffs have standing and, if so, it should consider whether other injunctive relief would redress their alleged injuries.
So ordered.
Notes
The Academy's last argument is difficult to square with its representation that it does not challenge "those portions of the district court's judgment declaring that the DOE and the Academy violated FACA and prohibiting any further funding or support to the ICF Committee." NAS Br. 18; but cf. id. at 35 ("Here, where the ICF has provided purely scientific and technical advice that is not advice on any identified governmental policy, FACA's provisions should not apply...."). As a result, we doubt whether the Academy has preserved for appeal an objection to the district court's declaration of a FACA violation
Were we to reach the merits of the Academy's argument on FACA's applicability, we doubt we would find the argument persuasive because it focuses on how the Committee was used rather than on the Committee's creation. See ALDF,
Similarly, the authority the appellees use for support, Alabama-Tombigbee Rivers Coalition v. DOI,
The appellees also argue that the Department's request for entry of a permanent use injunction, and the resulting cessation of discovery, estops it from now challenging their standing. See Appellees Br. 28. We cannot agree. Standing is a "threshold jurisdictional question," Steel Co., --- U.S. at ----,
To the extent the appellees' injury stems from the effect of the report on the Department's decision to build NIF, their claims appear to suffer from a fatal causation defect: the Department's use of the report cannot be responsible for their injury because the Department decided to proceed with construction without reference to the Committee's conclusions. See United Transp. Union v. ICC,
At oral argument the Department also stated that if we uphold the use injunction there is at least "a reasonable possibility" the Department may have to duplicate the efforts of the now-defunct Committee by creating a new committee. See Oral Argument of 3/13/98 Tr. 7-8. If so, the use injunction may have the same effect as an injunction directing the Department to establish a new ICF committee that complies with FACA so that the appellees can then participate contemporaneously in the committee's activities--an equitable remedy redressing loss of a past opportunity by mandating provision of a future one. Whether the court can use its equitable power to order a co-equal branch of government to affirmatively perform a discretionary act is a question we leave for another day. Cf. Swan v. Clinton,
In any event, their current allegations do not suggest they will be injured by the withholding of a use injunction because it will deprive them of the "reasonable possibility" that they can participate in the activities of a reconstituted committee in the future. See Steel Co., --- U.S. at ----,
Unlike the district court, we do not think denying a use injunction would "render FACA a nullity." The court's funding injunction ensured against future violations by the Committee and, indeed, prompted its dissolution. The declaratory relief provided the appellees and others ammunition for their attack on the Committee's findings. Further, an injunction directing the Academy and the Department to disclose Committee records and documents to the full extent permitted by FACA, which was plainly within the district court's power, see Public Citizen, supra, would have redressed any informational injury they may have sustained. All of this constitutes "effective relief" for FACA violations and, although it does not redress their "contemporaneous participation" injury, we have never intimated that partial relief would "render FACA a nullity."
The Administrative Procedure Act directs a reviewing court to take "due account" of "the rule of prejudicial error." 5 U.S.C. § 706. If a complaint is not filed until after a committee has completed its work, a district court can do this by looking to the effect of the FACA violation on the committee's work
A future opportunity may create a causation problem in the standing inquiry. If a report produced in violation of FACA cannot be acted on by the agency without first undertaking a rulemaking or adjudication, the plaintiff may have difficulty showing the FACA violation is responsible for a concrete injury it has sustained or will sustain based on the administrative decisionmaking process. See Metcalf v. National Petroleum Council,