Appeal from a judgment of the United States District Court for the Southern District of New York, Milton Pollack, Judge, dismissing appellants' complaint. On rehearing en banc, the Court of Appeals affirmed the dismissal on the ground that appellants lacked standing to sue. Judgment affirmed; complaint dismissed.
Before: KAUFMAN, Chief Judge, and MOORE, FEINBERG, MANSFIELD, MULLIGAN, OAKES, TIMBERS, GURFEIN, VAN GRAAFEILAND and MESKILL, Circuit Judges.
Some three weeks after a divided panel of this Court reversed Judge Pollack's dismissal of appellants' complaint*fn1 the Supreme Court announced its decision in Warth v.. Seldin,*fn2 a case which originated in this Circuit.*fn3 Thereupon the federal appellees urged the reconsideration of this case en banc,*fn4 citing both the impact of Warth on the earlier panel holding, and the importance of that holding to principles of standing generally. A majority of the en banc panel felt similarly, and a rehearing was ordered on August 11, 1975, pursuant to F.R. App. P. 35(a). The appeal was submitted without further oral argument.
In light of the Supreme Court's opinion in Warth v.. Seldin, supra, and the many recent Supreme Court decisions on the subject of "standing" - or, more accurately, the lack thereof - referred to in the dissent from the original panel's decision, -- F.2d --, we now hold that the appellants lack standing to maintain this action because they have sustained no injury as a consequence of appellees' actions. Accordingly, we affirm the district court's dismissal of the complaint as to all appellees.*fn5
The facts, insofar as they bear on appellants' standing to sue, are substantially undisputed, and have been fully set forth in the earlier opinions and dissent. A brief summary will suffice at this point.
In 1969, the King-Greeley Sewer District ("District"), a special purpose district within the Town of New Castle ("Town") in Westchester County ("County"), sought federal aid from the Department of Housing and Urban Development ("HUD") for the construction of a sanitary sewer facility in the hamlet of Chappaqua. In 1972, the t#own sought federal funds from the Department of Interior's Bureau of Outdoor Recreation ("BOR") in order to acquire Turner Swamp ("Turner") for preservation as a widlife area and public park. Both of these grants were approved. Thereafter the Tri-State Regional Planning Council ("Tri-State"), a regional "clearinghouse" in the area for coordination and review of federal grants, declined to review the propriety of the grants.
Appellants - who do not dispute the need of Chappaqua's residents for a sewer or the desirability of preserving Turner for public recreational use - filed an action in federal district court claiming that the grants amounted to support of the Town's primarily white, single-family housing pattern in violation of the federal government's affirmative duty to eliminate discrimination and encourage fair housing opportunities in the United States.*fn6 Appellants allege that they are persons "aggrieved" by the action of the federal agencies and Tri-State within the meaning of the Administrative Procedure Act, 5 U.S.C. § 702, and the 1968 Civil Rights Act, 42 U.S.C. § 3610(a) and (d). Standing to sue is asserted on the ground that appellants are low and moderate income individuals*fn7 belonging to minority groups who have suffered, as a result of the federal agencies' "absence of meaningful civil rights enforcement",*fn8 a lessening of "federal impetus"*fn9 to encourage integration and fair housing in the County. Appellants make no specific allegations of damage.
Appellants do not reside in the Town. They make no claim that they have ever sought or been refused housing in the Town. They have no interest in any Town property, or connection with any past or proposed housing project in the Town. They do not allege that either of the challenged projects will discriminate against them. They make no claim that the federal funds were diverted from any actual or proposed housing project that could have been of benefit to them. In short, they allege no specific, personal, adverse results whatsoever from the grants for sewer and park construction.*fn10
The aid of the federal courts is not freely available to all who seek it. Access to the courts is restricted by judicial discretion,*fn11 regulated by statute,*fn12 and subject to the overriding limitation*fn13 of Article III of the Constitution that the federal courts decide only cases and controversies.*fn14 The case and controversy requirement is a jurisdictional limitation which can be enlarged neither by act of Congress nor by the courts sua sponte. Because it is jurisdictional in nature and Constitutional in origin, it is a "threshold requirement"*fn15 which must be satisfied before the federal court can take cognizance of any claim. As was recently stated by the Supreme Court in Preiser v.. Newkirk, 422 U.S. 395, 401, 95 S. Ct. 2330, 2334 (1975):
The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy. As the Court noted in North Carolina v.. Rice, 404 U.S. 244, 246, [92 S. Ct. 402, 404] a federal court has neither the power to render advisory opinions nor "to decide questions that cannot affect the rights of litigants in the case before them." Its judgments must resolve "'a real and substantial controversy admitting of specific relief through a decreee of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'" Ibid, quoting Aetna Life Ins. Co. v.. Haworth, 300 U.S. 227, 241 [57 S. Ct. 461, 464] (1937). (Emphasis supplied).
The hallmark of a case or controversy is the presence of adverse interests between parties who have a substantial personal stake in the outcome of the litigation.*fn16 Standing to sue, in its Constitutional sense, is the showing by a plaintiff that his particular grievance meets this standard,*fn17 the "essence"*fn18 of which is the presence of "injury in fact"*fn19 suffered by the plaintiff as a result of the defendant's actions.*fn20
Mere interest in, or concern over, a prospective defendant's acts - no matter how deeply felt - is insufficient to demonstrate injury in fact.*fn21 What must be shown is a "specific and perceptible harm"*fn22 - a "concrete injury"*fn23 actually suffered by the particular plaintiff,*fn24 or else clearly imminent,*fn25 which is capable of resolution and redress in the federal courts.*fn26 Abstract or hypothetical injury is not enough:*fn27
Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action. And it is equally true that these allegations must be true and capable of proof at trial. United States v.. Scrap, supra, at 412 U.S. 688-9, 93 S. Ct. at 2416 (emphasis supplied).
While a particular statute may confer rights upon a party, it cannot abrogate the Constitutional requirement that a plaintiff in fact suffer some injury due to a breach of the law in order to maintain an action in the federal courts.*fn28 Whether or not a plaintiff falls within the "zone of interests"*fn29 protected by the statute - whether he can, in other words, rightfully assert whatever rights are granted by statute - is an entirely separate inquiry from the question of whether injury has been suffered per se. When it rejected the notion of "legal interest" as a test for determining standing to sue, the Supreme Court held in Association of Data Processing Service Org., Inc. v.. Camp, 397 U.S. 153, 90 S. Ct. 827 (1970):
The "legal interest" test goes to the merits. The question of standing is different. It concerns, apart from the "case" or "controversy" test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected and regulated by the statute or constitutional guarantee in question. 397 U.S. at 153, 90 S. Ct. at 830.
Recognition of the practical need for a "zone of interests" type determination was evidenced by the Court's comment, in the same case, that "[where] statutes are concerned, the trend is toward the enlargement of the class of people who may protest administrative action."*fn30 However, as Chief Justice Burger subsequently made clear, such an inquiry does not supersede or in any way encroach upon the threshold determination of injury in fact.*fn31
Although we there [referring to Association of Data Processing Service Org., Inc. v.. Camp, supra ] noted that the catagories of judicially cognizable injury were being broadened, we have more recently stressed that the broadening of categories "is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." Sierra Club v.. Morton, 405 U.S. 727, 738, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). And, in defining the nature of that injury, we have only recently stated flatly: "Abstract injury is not enough." O'Shea v.. Littleton, 414 U.S. 488, 494, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974). Schlesinger v.. Reservists to Stop the War, 418 U.S. 208, 218, 94 S. Ct. 2925, 2931 (1974). (citation omitted; emphasis in original).
The Constitutional limitation imposed by the case or controversy requirement has been specifically applied to the "person aggrieved" language of section 810(a), 42 U.S.C., of the Civil Rights Act of 1968, on which appellants primarily rely to support their claims of standing. In Trafficante v.. Metropolitan Life Ins. Co., 409 U.S. 207, 93 S. Ct. 364 (1972), the Supreme Court held that where housing discrimination was alleged, the language of § 810 (a) reflected "a congressional intention to define standing as broadly as is permitted by Article III of the Constitution."*fn32 The petitioners' standing to sue was upheld on the express ground that
Individual injury or injury in fact to the petitioners, the ingredient found missing in Sierra Club v.. Morton [supra] is alleged here. 409 U.S. at 209, 93 S. Ct. at 367 (emphasis supplied).
Any doubt that the appellants in this case have alleged only abstract injury which is Constitutionally insufficient to sustain their standing to sue, has been resolved by the Supreme Court's decision in Warth v.. Seldin, supra, Warth involved a Constitutional challenge to the zoning practices in the suburban town of Penfield, New York. Among the petitioners were individuals who asserted standing to sue on the basis of their status as low and moderate income individuals who were members of a minority group, and were suffering from the town's exclusionary pattern of housing which preserved it as a prmarily white enclave of single-family dwellings*fn33 - the same civil rights allegations which are made by appellants in the present case.*fn34 Writing for the Court, Mr. Justice Powell reiterated the primacy of Article III's requirement of injury in fact irrespective of any right of action granted by statute,*fn35 and concluded that the petitioners had failed to allege such injury. Because the Court's analysis bears so directly on the instant case, we quote at length from the Warth opinion.
But the fact that these petitioners share attributes common to persons who may have been excluded from residence in the town is an insufficient predicate for the conclusion that petitioners themselves have been excluded, or that the respondents' assertedly illegal actions have violated their rights. Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent. Unless these petitioners can thus demonstrate the requisite case or controversy between themselves personaly and respondents, "none may seek relief on behalf of himself or any other member of the class." O'Shea v.. Littleton, 414 U.S. 488, 494, 94 S. Ct. 669, 675, 38 L. Ed. 2d 674 (1974). See, e.g., Bailey v.. Patterson, 369 U.S. 31, 32-33, 82 S. Ct. 549, 550-551, 7 L. Ed. 2d 512 (1962).
In their complaint petitioners . . . alleged in conclusory terms that they are among the persons excluded by respondents' actions. None of them has ever resided in Penfield; each claims at least implicitly that he desires, or has desired, to do so. Each asserts, moreover, that he made some effort, at some time, to locate housing in Penfield that was at once within his means and adequate for his family's needs. Each claims that his efforts proved fruitless. We may assume, as petitioners allege, that respondents' actions have contributed, perhaps substantially, to the cost of housing in Penfield. But there remains the question whether petitioners' inability to locate suitable housing in Penfield reasonably can be said to have resulted, in any concretely demonstrable way, from respondents's alleged constitutional and statutory infractions. Petitioners must allege facts from which it reasonably could be inferred that, absent the respondents' restrictive zoning ...