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Evans v. Hills


June 4, 1976


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.

Author: Moore


MOORE, Circuit Judge:

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 practices, there is a substantial probability that they would have been able to purchase or lease in Penfield and that, if the court affords the relief requested, the asserted inability of petitioners will be removed. Linda R. S. v.. Richard D., supra.

We find the record devoid of the necessary allegations. . . .

We hold only that a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally, would benefit in a tangible way from the courts' intervention. Absent the necessary allegations of demonstrable, particularized injury, there can be no confidence of a "real need to exercise the power of judicial review" or that relief can be framed "no [broader] than required by the precise facts to which the court's ruling would be applied." Schlesinger v.. Reservists Committee to Stop the War, supra, 418 U.S., at 221-222, 94 S. Ct., at 2932. Warth v.. Seldin, supra, at 422 U.S. 502-4, 507-8, 95 S. Ct. at 2207-8, 2209-10 (footnotes omitted; emphasis supplied in part; brackets in original).

The same rationale applies with equal, if not greater, force to the case at bar. Here, appellants have failed to allege any facts whatsoever indicative of injury suffered by them as a result of the grants to the District and the Town.They do not claim, as did the petitioners in Warth, that they unsuccessfully sought housing in the Town, or that the Town arbitrarily rejected housing proposals of benefit to them.They claim only that, had the grants not been approved, the moneis could conceivably have gone to some other, as yet totally imaginary project in the County which might have had the result of making more housing available to them. This goes beyond even the realms of "remote possibility" which were rejected in Warth. It amounts to pure speculation and conjecture and, needless to say, it is completely inadequate to demonstrate the requisite injury under Article III.

We note that, as in Warth, the injunctive relief sought by the appellants here would not likely result in any improvement of their housing status. Indeed, since the appellants here do not allege that the grants deprived them of any actual housing opportunities - in contrast to the Warth petitioners, who claimed that they had been deprived of the benefits of at least two proposed housing developments - there is even less likelihood in this case that an injunction restraining the federal agencies would result in any betterment of appellants' housing status in the County. The link between the ill allegedly suffered and the remedy requested is so tenuous as to approach the non-existent.


The Supreme Court has warned repeatedly in the past of the hazards in straying from the Constitutional requirement of a case or controversy.*fn36 Absent adherence to the Constitutional mandate, courts become forums for the vindication of personal values and political preferences, usurping the legislative branch as the focus for public debate and lobby, and usurping as well the executive's primary responsibility for the implementation of federal law. Federal courts cannot, consistent with the Constitution, exercise their jurisdiction to vindicate litigants' chosen causes;*fn37 they are empowered only to grant specific relief in response to, and in order to remedy, a particularized showing of individual injury.*fn38

This is not the time, or especially the place, to attempt a general dissertation on judicial supervision of the functioning of administrative agencies. To guard against any such danger it may be tritely said today that the draftsmen of the Constitution in 1789 were not altogether unaware of little-changing human tendencies to endeavor to seize power. The well-defined role assigned to the judiciary is to be found in Article III of that Constitution. To avoid a possible tendency to seek declaratory judgments or advisory opinions on matters possibly hypothetical, the role of the courts under Article III is confined to passing upon an actual "case or controversy". Even within these restricted limits the courts over the years have not suffered from want of business.

Two recent decisions of the Supreme Court would seem to illustrate the continued vitality of Article III and the reluctance of that Court to become an arbiter of all human ills. They are Milliken v.. Bradley, 418 U.S. 717, 94 S. Ct. 3112 (1974), and Hills v.. Gautreaux, -- U.S. --, 44 LW 4480 (April 20, 1976). The Supreme Court in Milliken reversed the Court of Appeal's affirmance*fn39 of a multi-district desegregation order, on the grounds that the order constituted an impermissible - indeed, unconstitutional - exercise of the federal courts' equitable powers.*fn40

In Gautreaux the Court reiterated the importance of this consideration in the strongest language:

Although the Milliken opinion discussed the many practical problems that would be encountered in the consolidation of numerous school districts by judicial decree, the Court's decision rejecting the metropolitan area desegregation order was actually based on fundamental limitations on the remedial powers of the federal courts to restructure the operation of local and state government entities. That power is not plenary. It "may be exercised 'only on the basis of a constitutional violation.'" 418 U.S. at 438, quoting Swann v.. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16. See Rizzo v.. Goode, -- U.S. --, --. Once a constitutional violation is found, a federal court is required to tailor "the scope of the remedy" to fit "the nature and extent of the constitutional violation." 418 U.S. at 744; Swann, supra, at 16.

The District Court's desegregation order in Milliken was held to be an impermissible remedy not because it envisioned relief against a wrongdoer extending beyond the city in which the violation occurred but because it contemplated a judicial decree restructuring the operation of local government entities that were not implicated in any constitutional violation.

44 LW at 4483, 4484.

Applying these principles to the facts before it, the Court in Gautreaux concluded that the wrong which was properly complained of by the plaintiffs below*fn41 was not constitutionally insufficient to support the remedy sought; appropriateness and feasibility of remedy were of crucial importance and a prerequisite to the exercise of the courts' equitable powers.*fn42 The necessity for continued adherence to the Article III requirements of standing and the proper limitations on the exercise of equity powers was underscored in Mr. Chief Justice Burger's majority opinion in United States v.. Richardson, 418 U.S. 166, 94 S. Ct. 2940 (1974), in which the Court held that the taxpayer plaintiff lacked standing to sue.

"As our society has become more complex, our numbers more vast, our lives more varied, and our resources more strained, citizens increasingly request the intervention of the courts on a greater variety of issues than in any period of our national development.The acceptance of new categories of judicially cognizable injury has not eliminated the basic principle that to invoke judicial power the claimant must have a 'personal stake in the outcome,' . . . in short, something more than 'generalized grievances,' . . . ." 418 U.S. 166, 179-80 (citations omitted).

Concurring in the holding in Richardson, 418 U.S. at 180, Mr. Justice Powell offered a cogent analysis of the dangers inherent in the relaxation of the historic and Constitutional restraints on judicial power; we would do well to recall his words:

Relaxation of standing requirements is directly related to the expansion of judicial power. It seems to me inescapable that allowing unrestricted taxpayer or citizen standing would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government. I also believe that repeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches. We should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch. 418 U.S. 188.

[We] risk a progressive impairment of the effectiveness of the federal courts if their limited resources are diverted increasingly from their historic role to the resolution of public-interest suits brought by litigants who cannot distinguish themselves from all taxpayers or all citizens. The irreplaceable value of the power articulated by Mr. Chief Justice Marshall lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the counter-majoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests. 418 U.S. 192.

In this action, appellants are invoking the Court's jurisdiction solely to impose upon the appellees priorities which the appellants favor. Sincere as their views may be, they are not properly addressed to the courts. Disagreement with government action or policy, however strongly felt, does not, standing alone, constitute an "injury" in the Constitutional sense which is cognizable in the federal courts and susceptible of remedy by the judicial branch; it is a matter properly addressed to the Congress or the Executive.

Accordingly, the judgment of the district court is affirmed, and appellants' complaint is hereby dismissed.

MANSFIELD, Circuit Judge (Concurring), with whom Judge Timbers joins:

In concurring in Judge Moore's carefully considered opinion I would like to add that, sympathetic as I am to the idea of providing ready court access to those who seek enforcement of civil rights legislation, a holding that federal grants-in-aid may be attacked by persons unaffected by them would violate basic standing requirements that have repeatedly been reaffirmed and enforced by the Supreme Court in recent years. See e.g., Warth v.. Seldin, 422 U.S. 490 (1975); O'Shea v.. Littleton, 414 U.S. 488 (1974); Sierra Club v.. Morton, 405 U.S. 727 (1972). There is not the slightest indication in the present record that the plaintiffs will be adversely affected by the federal funding of the New Castle sewer and recreation projects or that if the funding were enjoined as demanded the plaintiffs would be benefitted. What they seek is a ban on federal funding to New Castle because it is allegedly a predominantly white, wealthy, exclusionary community, not because they would thereby gain anything. Should the relief be granted, HUD would presumably be free to use the money to aid construction of sewers and parks in San Francisco.

Thus the case differs sharply from those cited by our esteemed dissenting brothers, in each of which the plaintiffs would be benefitted by the relief sought. In Hills v.. Gautreaux, -- U.S. --, 44 U.S.L.W. 4480 (April 20, 1976), for instance, the plaintiffs, who were tenants in federally funded, racially segregated housing in predominantly black ghetto areas in Chicago, stood to benefit from the relief sought, an order which would eliminate the discrimination against them by directing that such housing, for which they had applied as tenants, must be constructed in predominantly white areas where the plaintiffs might then reside, see 296 F. Supp. at 908 (N.D. Ill. 1969). Here plaintiffs gain no comparable benefit from the injunction sought. The most they can realize is the satisfaction that federal funds will not be misused. Absent statutory authorization, this is not enough to confer standing. They must show some stake in the outcome. See Flast v.. Cohen, 392 U.S. 83, 96 (1968).

Our dissenting brothers seek to remedy this glaring deficiency by advancing a theory nowhere found in the complaint: that the grants to New Castle might have a discriminatory effect on what they choose to call a "regional housing market" that would include plaintiffs and New Castle. They also suggest that Congress, by providing that HUD's performance of its affirmative duties under Title VI (1964 Civil Rights Act), 42 U.S.C. § 2000d, and Title VIII (Fair Housing Act of 1968), 42 U.S.C. § 3601, et seq., would be subject to judicial review, intended to give standing to citizens in the position of the plaintiffs here. However, no such authority to sue is to be found in these statutes. Title VI, 42 U.S.C.§ 2000d-1, obligates HUD to terminate funds "to the particular program, or part thereof, in which such [discrimination] has been so found" but since this case does not involve an attack upon particularized discrimination plaintiffs cannot use 42 U.S.C. § 2000d-2 for judicial review. Title VIII, 42 U.S.C. § 3608, obligates HUD to administer programs in a manner affirmatively to further the purposes of the Act, but there is no indication, express or implied, that Congress intended to give private persons the right to sue HUD for non-compliance with this duty. On the contrary, 42 U.S.C. § 3612, which authorizes enforcement of certain provisions of the Fair Housing Act ( §§ 3603 through 3606) by private civil action, omits § 3608, the section outlining HUD's general duties, which is allegedly violated here by HUD. Title 42 U.S.C. § 3610 is limited to suits against private persons alleged to have violated the Act, which may be brought only after voluntary compliance proceedings before the Secretary of HUD have failed. Surely if Congress had intended judicial review of HUD's alleged maladministration of the Act, it would not have excluded § 3608 from those sections that might be enforced by private action.

Thus the dissents' suggestion that Congress intended to confer such authority upon private litigants is but an example of the wish becoming the father of the thought. When Congress desires to authorize citizen suits for the enforcement of laws of widespread public interest, it knows how to do so, as it vividly demonstrated in its enactment of § 304(a)(1) of the Clean Air Act, 42 U.S.C. § 1857h-2 and § 505 of the Water Pollution Control Act, 33 U.S.C. § 1365. Here it has not yet taken such action.

OAKES, Circuit Judge (dissenting) (with whom Chief Judge Kaufman and Judges Feinberg and Gurfein concur):

In this suit, residents of lower-income, predominantly black housing areas in Westchester County, New York, have alleged that federal grants have been improperly awarded to the Town of New Castle, a wealthy, predominantly white community also located in Westchester County. The challenged awards were made to the Town of New Castle by the United States Department of Housing and Urban Development. The purpose of the awards was to assist New Castle in the development of Town parkland and the construction of a sewer system. The appellants claim that the two federal departments have statutory obligations, under Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968,*fn1 42 U.S.C. §§ 2000d et seq., 3601 et seq., to refuse to make grants which are inconsistent in design or effect with nondiscriminatory, fair housing objectives. t#heir claim is that the two grants to New Castle are inconsistent with fair housing goals because the grants tend to support and perpetuate patterns of economically and racially discriminatory housing in Westchester County. The complaint is that the federal courts have the responsibility under the Civil Rights Acts to review and strike down grants made by federal departments which have failed to consider the implications of the grants in respect to attainment of the goal of nondiscriminatory, fair housing.*fn2

The majority of the court, however, has held that appellants are not sufficiently "aggrieved" or "injured in fact" by the grant of federal funds to New Castle to have "standing" to attack the awards. This holding is made despite the fact that appellants are the very persons who, by their own allegations, will continue to suffer from the racially restricted housing environment in Westchester County which is allegedly perpetuated by the challenged federal action. Since it is exactly this sort of third-party injury which Congress, in 42 U.S.C. § 2000d-2,*fn3 must have meant to provide relief for when it established judicial review of federal grants, and in view of the precedents in both this and other courts upholding standing for challenges to federal grants in similar cases, see Jones v.. Tully, 378 F. Supp. 286, 287 & n.1 (E.D.N.Y. 1974), aff'd per curiam sub nom. Jones v.. Meade, 510 F.2d 961 (2d Cir. 1975); Southern Christian Leadership Conference, Inc. v.. Connolly, 331 F. Supp. 940, 942-44 (E.D. Mich. 1971). I must respectfully dissent.

Appellants' complaint, briefly recapitulated, states that appellants are low-income minority (black) residents of Westchester County who live in what the district court called "ghetto living conditions," that is, in racially concentrated low-income neighborhoods, which the district court postulated "are a very real and very serious 'injury'. . . ." Evans v.. Lynn, 376 F.Supp. 327, 332 (S.D.N.Y. 1974). The complaint alleges that the Town of New Castle, to or for whose benefit the challenged grants were made, is, in the words of the district court, "predominantly white [98.7 per cent] and a well-to-do enclave." Id. at 330. It is further alleged that 90 per cent of New Castle's land is zoned for single-family, residential development on pacels of more than one acre, that there are currently 7,000 vacant acres and that the median value of single-family homes in 1970 was in excess of $50,000.*fn4 Appellants quite directly complain that New Castle's zoning ordinance has the purpose and effect of excluding blacks and other racial minorities from living in the Town. Finally, it is alleged that the federal agencies in question approved the grants*fn5 without performing the affirmative duties required of them by Title VI and Title VIII.*fn6 A consideration of the law of standing as it relates to this case must assume that all of these facts as alleged are true.*fn6a It at least has to take them into account which, I regret to say, the majority opinion does not.

Fundamental to analysis under the law of standing, in view of the vague generalities oftentimes employed to decide particular cases,*fn7 is a differentiation between the two important functions the doctrine performs: the first is determining whether the plaintiff is a proper party to request an adjudication of the particular issue, see Flast v.. Cohen, 392 U.S. 83, 99-100 (1968); the second is determining whether as a matter of policymaking responsibility the particular issue is suitable for determination by the courts, Barlow v.. Collins, 397 U.S. 159, 169 n.2 (1970) (Brennan, J., concurring in the result). The first of these has been called "access standing" and the second can best be called "decision standing," although the latter often goes by the broad terms "justiciability" or "reviewability" and although it often subsumes a number of other doctrines or techniques which are used by the courts when as a matter of policy it is thought desirable to avoid decisions on the merits.*fn8 See Scott, Standing in the Supreme Court - A Functional Analysis, 86 Harv. L. Rev. 645 (1973), cited by Mr. Justice Powell in Warth v.. Seldin, 422 U.S. 490, 500 n.11 (1975). Cf. P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 156 (2d ed. 1973). The Court's present analysis directs us first to examine the question "whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf. Baker v.. Carr, 369 U.S. 186, 204 (1962)." Warth v.. Seldin, supra, 422 U.S. at 498-99. This is in essence the question of access standing.

Have the appellants alleged such a personal stake in the outcome of this controversy? In this connection it must be remembered that the controversy sought to be determined is not, as in Warth v.. Seldin, supra, whether a town in which the plaintiffs are not resident may exclude persons of low and moderate income by its zoning laws. Rather, on the allegations, the question brought in this case is whether federal agencies administering grants-in-aid may approve grants to "activities" (the Town of New Castle) whose practices (exclusionary zoning) have the purpose and effect of subjecting blacks and other racial minorities to discrimination by excluding them from residence within the Town's borders. 42 U.S.C. § 2000d; see also 42 U.S.C. § 3608.*fn9 If minorities are "denied the benefits" of such grants because of the discriminatory access limitations of Town zoning policies, 42 U.S.C. § 2000d indicates that the grants should not be made, and 42 U.S.C. § 2000d-2 provides for judicial review to enforce that law. Accordingly, Warth v.. Seldin, so heavily relied on by the majority opinion, is sharply distinguishable from the present case. Indeed, it is helpful to appellants. In Warth the Court was extremely careful to point out not only that "[the] actual or threatened injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing . . . .,'"*fn10 but also that "Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules."*fn11 Warth itself involved no such statutes; here the statutory claim is the essence of appellants' case. In Warth, the parties denied standing had failed to show how the specific town practices which they challenged (zoning laws) had resulted in the type of particularized injury required to obtain standing to litigate a generalized constitutional challenge to government action.422 U.S. at 508. See Schlesinger v.. Reservists Committee to Stop the War, 418 U.S. 208, 221-22 (1974); United States v.. Richardson, 418 U.S. 166, 177, 179-80 (1974). In the instant case, as shall be shown below, the connection between the challenged action (federal grant) and the injury claimed (perpetuation of racially restricted housing environment in Westchester County) is amply direct, under the controlling cases, to supply standing for appellants to seek statutory review of the government action. See, e.g., United States v.. SCRAP, 412 U.S. 669 (1973); Barlow v.. Collins, 397 U.S. 159 (1970); Association of Data Processing Service Organizations, Inc. v.. Camp, 397 U.S. 150 (1970).

The majority opinion, with all due respect, misses the point of this law suit when it emphasizes that appellants "do not claim" that they unsuccessfully sought housing in the Town of New Castle or "that the Town arbitrarily rejected housing proposals of benefit to them."*fn12 The opinion also misapprehends their claim when it states it as saying that "had the grants not been approved, the monies could conceivably have gone to some other, as yet totally imaginary project in the County which might have had the result of making more housing available to them." [Maj. op. 6773.] Rather, appellants' claim is that the federal departments violated affirmative action requirements of the Civil Rights Acts by making grants to municipalities without evaluating the economic and racial consequence of their housing and development practices, with the effect of maintaining racial residential segregation in Westchester County, further constraining them to continued residence in the county's ghettos.

In cases decided in several circuits, including our own, courts have found that persons who live in concentrated, segregated, low-income housing areas have standing under 42 U.S.C. § 2000d-2 to challenge federal grants which have the effect of increasing the concentration of low-income housing in their portion of the regional housing market. In Jones v.. Meade, supra, this court, in a per curiam opinion, upheld standing for "several individuals who reside in Spinney Hill" (a low-income predominantly black portion of the Town of North Hempstead, New York) to challenge a federal grant for a low-income housing project in the Spinney Hill area because the grant would tend to "perpetuate racial concentration in the Spinney Hill area in violation of § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d . . . ." Jones v.. Tully, supra, 378 F. Supp. at 287, aff'd per curiam sub nom. Jones v.. Meade, supra.See also Banks v.. Perk, 341 F. Supp. 1175 (N.D. Ohio 1972), aff'd in part, rev'd in part on other grounds, 473 F.2d 910 (6th Cir. 1973); Gautreaux v.. Chicago Housing Authority, 296 F. Supp. 907 (N.D. Ill. 1969), aff'd, 436 F.2d 306 (7th Cir. 1970), cert. denied, 402 U.S. 922 (1971). Cf. Shannon v.. United States Department of Housing & Urban Development, 436 F.2d 809, 812, 817-18 (3d Cir. 1970). The claim that the federal grants will have the effect of perpetuating racially segregated housing conditions in the plaintiffs' housing market is precisely the argument made against these federal awards by the appellants in this case. The reasoning which supports their claim may be traced as follows:

1. Patterns of racially segregated housing are perpetuated either by building low-income housing in low-income areas (as in Jones v.. Tully) or by building high-income housing in high-income areas of the same housing market.*fn13 This is because, in either case, the construction decision forecloses opportunities for integration of housing facilities throughout the regional housing market.*fn14

2. A federal grant to a high-income area which is consistent with increased development of high-income housing but which is inconsistent with development of low-income housing in that area tends to perpetuate patterns of racially segregated housing.

3. The federal parkland and sewer grants challenged in this case are consistent with and promote development of high-income housing in New Castle, but are inconsistent with and negate development of low-cost, high-density housing in that area.

4. The sewer grant is inconsistent with construction of high-density, low-cost housing in New Castle because, as is stated in an affidavit attached to the complaint, the sewer system planned by New Castle "will have the capacity to handle the needs of the area only if the area is developed at low densities. . . ." Affidavit of Paul Davidoff, Director of Suburban Action Istitute, formerly Associate Professor of Urban Planning at the University of Pennsylvania. Mr. Davidoff's affidavit charged that HUD review of the sewer grant had wholly ignored the role which sewer systems play in shaping the parameters of future community development, and the impact of that development on low and moderate income housing opportunities within the region.

5. The parkland grant may also be inconsistent with development of low-income housing in New Castle because different park facilities (including sizes of open areas and walkways, numbers of, and therefore location of, playing fields, landscaping design, etc.) would be demanded for a high-density housing area than for a low-density area.*fn15

The claim of the pleadings that the appellants are "injured in fact" because the federal grants tend to perpetuate economically and racially discriminatory housing in Westchester County, I must insist, represents "something more than an ingenious academic exercise in the conceivable." United States v.. SCRAP, supra, 412 U.S. at 688. The fair sense of appellant's claim is that they have been or "will in fact be perceptibly harmed by the challenged agency action." Id. As the findings of the district court indicate, the harm appellants will suffer from a perpetuation of the conditions of segregative housing in which they presently live constitutes a "very real and very serious injury." 376 F. Supp. at 332. Government actions which allegedly perpetuate (if not exacerbate) the injurious condition of segregative housing seem quite plainly to effect an injury-in-fact to the precise type of interest which Congress intended to protect when it enacted Titles VI and VIII of the Civil Rights Act. The apparent thrust of those Titles is to assure that federal grants are consistent with the objectives of nondiscriminatory, fair housing. However, the two federal departments, charged by Congress with the duty of affirmatice action to encourage fair housing, economically viable communities, and the breakdown of segregated residential housing, are, if appellants' supporting evidence is to be believed,*fn16 giving priority to parks and sewers for the privileged communities without regard to the needs for regional development and integration of low-cost housing opportunities.

I think it important, in evaluating the sufficiency of appellants' claims of injury, to note that the plant of appellants in their county, which is part of Greater New York, finds its echo in many other American localities, many of which are cities and have, to say the least, vast problems in the way of finances, municipal services and quality of life. If federal grant procedures are as appellants allege, they are eacerbating these problems, to appellants' individual disadvantage (and that of many American cities) by enhancing the quality of life in already privileged communities wholly without consideration of the housing needs of those trapped in low-income, segregated housing areas only a few miles away.*fn17

Appellants are what Norman Williams has aptly called the "third party non-beneficiaries" of exclusionary land use controls and policies.*fn18 Their challenge to federal policies or practices which can be said to perpetuate "power to the people who got there first"*fn19 in their specific area is based on federal statutes. The appellants allege that the grants were made for the sole benefit of a discriminatory grantee, the Town. They have alleged that the effect of the grants is to injure appellants by perpetuating the racially restrictive housing conditions in which they currently live. Accordingly, appellants have stated both a cause for relief and standing under 42 U.S.C. § 2000d-2. Only at trial will it become necessary for appellants to prove the truth of the facts alleged. United States v.. SCRAP, supra, 412 U.S. at 689. In short, under the controlling precedents in this area, appellants have access standing. See Investment Company Institute v.. Camp, 401 U.S. 617 (1971); Arnold Tours, Inc. v.. Camp, 400 U.S. 45 (1970) (per curiam); Barlow v.. Collins supra; Association of Data Processing v.. Camp, supra.*fn20

The second or "reviewability" aspect of the standing question involves additional judge-made policymaking considerations. They are what Mr. Justice Powell has referred to as "essentially matters of judicial self-governance." Warth v.. Seldin, supra, 422 U.S. at 500. Even assuming there is access standing on the part of appellants, is the issue of the propriety of the HUD or Interior Department grants to New Castle an "abstract [question] of wide public significance . . . [which] other governmental institutions may be more competent to address"? Id. Should the court decline standing as a matter of policy?*fn21 A powerful argument can be made that the court should not act as a "planning agency"*fn22 or as a "congressional inquiry" to correct an Executive Department which has refused to carry out a congressional mandate, especially where the suit might be unmanageable.*fn23 The Supreme Court decision in Train v.. City of New York, 420 U.S. 35 (1975) (agency may not impound water pollution control act appropriations), indicates quite plainly, however, that the courts should not fail in their duty to assure that the Executive has faithfully executed the laws merely because a complex regulatory scheme is involved. See also National Treasury Employees Union v.. Nixon, 492 f#.2d 587 (D.C. Cir. 1974) (federal court may grant declaratory relief ordering Executive to implement federal employees' pay adjustment). Other courts, including our own, have corrected errors in the Executive's administration of congressionally established programs in a multiplicity of cases where, arguably, the alleged damage to the plaintiff has been less or no more direct, where their alleged material interests have been less or no more affected, and where the alleged agency action or inaction has been less or no more egregious than here.*fn24

The courts have taken the view that agency disregard of congressional mandate is challengeable by persons affected adversely because it involves, it does not negate, deference to another branch of the Government. As Mr. Justice Powell, concurring in United States v.. Richardson, supra, pointed out:

The doctrine of standing has always reflected prudential as well as constitutional limitations. . . Whatever may have been the Court's initial perception of the intent of the Framers . . . it is now settled that such rules of self-restraint are not required by Art. III but are "judicially created overlays that Congress may strip away . . . ." . . . But where Congress does so, my objections to public actions are ameliorated by the congressional mandate. Specific statutory grants of standing in such cases alleviate the conditions that make "judicial forbearance the part of wisdom."

418 U.S. at 196 n.18. *fn25 If there were any doubt that this concept is the law of the Court,*fn26 that doubt was removed by Warth v.. Seldin. There, speaking through Mr. Justice Powell, the Court held:

Moreover, Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. III's requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants. E.g., United States v.. SCRAP, 412 U.S. 669 (1973). But so long as this requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim. E.g., Sierra Club v.. Morton [405 U.S. 727, 737 (1972)]; FCC v.. Sanders Radio Station, 309 U.S. 470, 477 (1940).

422 U.S. at 501.

422 U.S. at 514.

The question remains, of course, whether in this case "Congress has granted a right of action." As discussed above, the plain intendment of Title VI if not Title VIII is to provide for review of federal grants to assure their consistency with federal anti-discrimination and fair housing objectives. See, e.g., Jones v.. Tully, supra; note 3 supra. Since it is unlikely that either the federal departments or the grant recipients would have any interest in challenging the grants themselves, Congress must have meant to provide for review at the instance of persons "adversely affected" or "aggrieved by" improper grants. The implied right of review for these persons is at least as clear and as significant as in cases such as Data Processing, Barlow, Arnold Tours and Investment Company Institute. Cf. Warth v.. Seldin, supra, 421 U.S. at 501.*fn27

What the courts are asked to do here, to require the agencies to reevaluate the grant approvals in the light of the nondiscriminatory, fair-housing mandate,*fn28 is well within the traditional role of judicial review of agency action. No better authority may be referred to than our own Scenic Hudson Preservation Conference v.. FPC, 354 F.2d 608 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966), the landmark case that ultimately furnished the basis for National Environmental Protection Act*fn29 review of project alternatives. It is too obvious to require citation that it is well within the traditional model of judicial review that an agency be required to review an action, involving an expenditure of public funds for purely private or local advantage, to assure that statutory guidelines have been adhered to.

This is not an issue of constitutional involvement as in Schlesinger v.. Reservists Committee to Stop the War, supra (Article I, § 6 prohibition by members of Congress asserted), or in United States v.. Richardson, supra (Article I, § 9 violation through CIA appropriation asserted). See The Supreme Court, 1973 Term, 88 Harv. L. Rev. 41, 240-43 (1974). In such a case, to resolve the matter judicially may, as has been pointed out,*fn30 remove the particular issue altogether from the political process, a danger which Mr. Justice Frankfurter and other before and after him have warned against in the course of treating the overall subject of judicial review. Here, however, the Congress has spoken, and judicial resolution of the controversy forecloses neither congressional nor executive action. The political processes would not be imposed upon, much less invaded, by the exercise of Article III power here concerned. In any case, assuming that our system of representative democracy makes the legislature the primary as well as the initial forum for resolving conflicting social and economic interests, if the Congress has spoken and the Executive has not heard the message, the judiciary's role in resolving the controversy is hardly a usurpation of power or an infringement of prerogatives.

One can hardly quarel with the majority statement of abstract propositions, as they well set forth the rubric of the law of standing. One may regret the majority's application of those rules to this case, one very different, as I see it, from that which the majority perceives.

KAUFMAN, Chief Judge (dissenting) (with whom Judge Gurfein concurs):

In concur fully in my brother Oake's scholarly opinion. I should like, however, to add the following thoughts.

Constitutional provisions, such as the "case or controversy" requirement of Article III, are not magic talismans, whose import is as immutable as the law of ancient Media and Persia. Rather, the words of the Constitution to a large extent derive their meaning from the perceived needs, desires and expectations of society.

It is legitimate - and, indeed, desirable - to view constitutional commandments, such as the standing requirement, as flexible and evolving over time.*fn1a The proper approach may best be shown by very briefly reviewing the courts' construction of other constitutional provisions, where this process is more obvious. The First Amendment guarantee of freedom of religion, for example, was, when drafted in 1789, almost certainly intended to refer exclusively to the worship of God.*fn2a But today the concept of religion has been expanded to protect, under some circumstances at least, not only the worship of a divinity or the refusal to recognize a divinity, but also some, if not all, deeply held moral convictions.*fn3a Similarly, the First Amendment meaning of "speech" has come to include silent protest.*fn4a And the definition of "search", as used in the Fourth Amendment, has in recent years been expanded beyond the physical intrusion which concerned the Framers,*fn5a to encompass electronic eavesdropping.*fn6b

This expansive reading of the provisions of the Bill of Rights may plausibly be viewed as a process - which some argue has not reached its limit - by which courts have extended the protection accorded individual autonomy.*fn7a A similar process may be discerned in the interpretation of the shibboleths of standing: "case or controversy", and its corollary, "injury in fact". The past decade has been a dramatic lowering of the barriers imposed by standing requirements to challenges to administrative action. Perhaps not by change, this movement toward broader standing has coincided with a spectacular increase in the size, scope and power of the bureaucracy of the executive branch - which has, some argue, heightened the need for judicial oversight. During these years, the archaic "legal interest" requirement of Tennessee Elec. Power Co. v.. TVA, 306 U.S. 118 (1939) has been abolished, #ssoc. of Data Processing Service Org. v.. Camp, 397 U.S. 150 (1970). Standing to challenge administrative orders has been given to competitors, id., and to consumers, Office of Communication v.. FCC, 359 F.2d 994 (D.C. Cir., per Burger, J., 1966), and a showing of economic injury is no longer required. U.S. v.. SCRAP, 412 U.S. 669 (1973).

As this trend makes clear, judicial review is, today viewed as a legitimate means of ensuring that agencies observe congressional mandates.*fn8a The case before us cannot be viewed in isolation from this trend.

Obviously, I do not suggest that we read the Art. III standing requirement out of existence, or that courts indulge in rendering what Justice Holmes once called "mere [declarations] in the air."*fn9a Nor, of course, do I urge that we ignore recent decisions of the Supreme Court, such as Warth v.. Seldin, 422 U.S. 490 (1975). But I do counsel against wooden application of the Warth precedent to an entirely different setting, and against extension of that holding to cover a situation which, as Judge Oakes's opinion demonstrates, is sharply distinguishable. Such an expansive reading of Warth unnecessarily (and without explanation) flies in the face of the recent trend favoring judicial oversight of the burgeoning administrative bureaucracy.

Under the majority's decision, it is unlikely that there could ever be a plaintiff who will be allowed access to the courts to challenge HUD's abdication of its congressionally-imposed duty.*fn10a Such a result may be logical, and even desirable, in a controversy more appropriately resolved by the political process. See U.S. v.. Richardson, 418 U.S. 166, 179 (1974). But it is to be shunned in cases like this one which, in my brother Oakes's words, fall "well within the traditional model of judicial review."

GURFEIN, Circuit Judge (dissenting) 5 with whom Chief Judge Kaufman concurs):

I concur in my brother's Oakes' trenchant analysis.*fn1b I would like to add that I consider his opinion as an important contribution to a debate that is of historic significance. This type of case may become a watershed in the struggle for civil rights, and I am sorry that we could not muster a majority in this court. The history of civil rights in the next quarter century may be written in terms of procedural roadblocks or we may see an expansion of the role courts will play reminiscent of the expansion in John Marshall's day. There is need for judicial action where Congress has mandated benefits for a class and where an agency of the Executive Branch fails to carry out that legislative mandate. The contrary would give the Executive a silent veto not provided in the Constitution.

This is not a case where general taxpayers are seeking judicial relief against governmental action. The plaintiffs here are not suing as general taxpayers or as officious busybodies. Nor are they seeking to declare any statute or ordinance unconstitutional. They are within the class, minority citizens of the area, whom Congress has sought to help. They are aggrieved persons protesting administrative action in a literal sense. If these plaintiffs have no standing, then who does?

Of course, all black citizens of the entire United States are not in a class to be benefited by a HUD study of the housing policy of New Castle in Westchester County, New York. The class obviously must be more restricted. The issue, to my mind, is simply whether a county is too large an area for its minority inhabitants to be a discrete class with standing. Since there must be some judicial determination of the nature of the class which is harmed by federal inaction in the face of a clear mandate, it is those minority residents who are reasonably close to the housing opportunity, if it should open up, who have a stake in the Congressional mandate enacted for their benefit.

Local zoning ordinaces of the type considered in Warth v.. Seldin, 422 U.S. 490 (1975), have nothing to do with this case. The challenge there was a constitutional challenge to the local zoning laws. The laws were ostensibly not directed against the minority, but could be taken as directed against persons of low or moderate income. It was held that as a prelude to a constitutional claim of discrimination, the plaintiffs must show injury in fact. Here Congress has ordered an administrative agency implementing a particular federal statute to determine whether racially discriminatory policies are being followed by towns which seek federal subsidies. If the finding is that such discrimination is practiced, the funds are to be withheld. But what happens if HUD fails to look into the matter as it is ordered to do, and, nevertheless, approves the federal funding? My brethren in the majority say nothing is to be done about it by anybody. But, as the Court said in Data Processing Service Orgs., Inc. v.. Camp, 397 U.S. 150, 154 (1970), "[where] statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action." I believe that when Congress imposed on the Secretary of HUD the affirmative duty to administer all "programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter", 24 U.S.C. § 3608(d)(5), it did not mean that HUD may disregard that mandate in its discretion. And those who have an adversary stake in the inaction ought to be able to compel HUD to make whatever study the court finds is required. The analogy is found in the requirement of an environmental impact statement before a project is begun. The federal courts have taken jurisdiction in such cases. See United States v.. SCRAP, 412 U.S. 669 (1973). The present complaint presents no less a controversy.*fn2b

We talk of separation of powers. Yet, a narrow holding on standing can be the equivalent of a substantive repeal of the legislation. The issue is really not whether the courts should abstain by denying standing, but whether by rejecting standing the courts are impeding national policy as expressed in the legislative will.

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