Petitioners, who are tenant farmers eligible for payments under
the upland cotton program, enacted as part of the Food and
Agriculture Act of 1965, challenge the validity of an amended
regulation issued b the Secretary of Agriculture in 1966. The
program incorporates § 8(g) of the Soil Conservation and Domestic
Allotment Act, thereby permitting participating farmers to assign
payments only "as security for cash or advances to finance making a
crop." The 1966 amendment changed the definition of "making a crop"
to permit assignments to secure "the payment of cash rent for land
used." Petitioners seek a declaratory judgment holding the amended
regulation invalid and an injunction prohibiting respondent federal
officials from permitting assignments to petitioners' landlord,
claiming that he can now demand assignments as a condition of
leasing and that the tenants, who lack any other source of cash or
credit, are reduced to obtaining all other necessities from the
landlord at high prices and rates of interest. The District Court
held that petitioners lacked standing to maintain the action, and
the Court of Appeals affirmed.
Held:
1. Petitioners have standing to maintain this suit.
Data
Processing Service v. Camp, ante, p.
397 U. S. 150. Pp.
397 U. S.
164-167.
(a) Petitioners have the personal stake and interest that impart
the concrete adverseness required by Article III of the
Constitution. P.
397 U. S.
164.
(b) Petitioners are clearly within the zone of interests
protected by the Food and Agriculture Act, and they are persons
"aggrieved by agency action within the meaning of a relevant
statute," as set forth in § 702 of the Administrative Procedure
Act. Pp.
397 U. S.
164-165.
2. The statutory scheme evinces a congressional intent that
there may be judicial review of the Secretary's action. Pp.
397 U. S.
165-167.
District Court judgment and 398 F.2d 398, vacated and
remanded.
Page 397 U. S. 160
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The question to be decided in this case is whether tenant
farmers eligible for payments under the upland cotton program
enacted as part of the Food and Agriculture Act of 1965, 79 Stat.
1194, 7 U.S.C. § 1444(d) (1964 ed., Supp. IV), have standing to
challenge the validity of a certain amended regulation promulgated
by the respondent Secretary of Agriculture in 1966.
The upland cotton program incorporates a 1938 statute. § 8(g) of
the Soil Conservation and Domestic Allotment Act, as amended, 2
Stat. 35 and 205, 16 U.S.C. § 690h(g), thereby permitting
participants in the program to assign payments only "as security
for cash or advances to finance making a crop." [
Footnote 1] The regulation
Page 397 U. S. 161
of the respondent Secretary of Agriculture in effect until 1966
defined "making a crop" to exclude assignments to secure "the
payment of the whole or any part of a cash . . . rent for a farm."
20 Fed.Reg. 6512 (1955). [
Footnote
2] Following passage of the 1965 Act, however, and before any
payments were made under it, the Secretary deleted the exclusion
and amended the regulation expressly to define "making a crop" to
include assignments to secure
Page 397 U. S. 162
"the payment of cash rent for land used [for planting,
cultivating, or harvesting]." 31 Fed.Reg. 2815 (1966). [
Footnote 3]
Petitioner, cash-rent tenant farmer suing on behalf of
themselves and other farmers similarly situated, filed this action
in the District Court for the Middle District of Alabama. They
sought a declaratory judgment that the amended regulation is
invalid and unauthorized by statute, and an injunction prohibiting
the respondent federal officials from permitting assignments
pursuant to the amended regulation. [
Footnote 4] Their complaint
Page 397 U. S. 163
alleged that the petitioners are suffering irreparable injury
under the amended regulation because it provides their landlord
"with the opportunity to demand that [they] and all those
similarly situated, assign the [upland cotton program] benefits in
advance as a condition to obtaining a lease to work the land.
[
Footnote 5]"
As a result, the complaint stated, the tenants are required to
obtain financing of all their other farm needs -- groceries,
clothing, tools, and the like -- from the landlord as well, since,
prior to harvesting the crop, they lack cash and any source of
credit other than the landlord. He, in turn, the complaint alleges,
levies such high prices and rates of interest on these supplies
that the tenants' crop profits are consumed each year in debt
payments. Petitioners contend that they can attain a "modest
measure of economic independence" if they are able to use their
"advance subsidy payments . . . [to] form cooperatives to buy
[supplies] at wholesale and reasonable prices in lieu of the
excessive prices demanded by [the landlord] of . . . captive
consumers with no funds to purchase elsewhere."
Thus, petitioners allege that they suffer injury in fact, from
the operation of the amended regulation.
The District Court, in an unreported opinion, held that the
petitioners "lack standing to maintain this action against these
[respondent] governmental officials" because the latter "have not
taken any action which directly invades any legally protected
interest of the plaintiffs." The Court of Appeals for the Fifth
Circuit affirmed, one judge dissenting. 398 F.2d 398. It held that
petitioners lacked standing not only because they alleged
Page 397 U. S. 164
no invasion of a legally protected interest, but also because
petitioners
"have not shown us, nor have we found, any provision of the Food
and Agriculture Act of 1965 which either expressly or impliedly
gives [petitioners] standing to challenge this administrative
regulation or gives the Courts authority to review such
administrative action."
Id. at 402. We granted certiorari. 395 U.S. 958.
Our decision in
Data Processing Service v. Camp, ante,
p.
397 U. S. 150,
leads us to reverse here.
First, there is no doubt that, in the context of this
litigation, the tenant farmers, petitioners here, have the personal
stake and interest that impart the concrete adverseness required by
Article III.
Second, the tenant farmers are clearly within the zone of
interests protected by the Act.
Implicit in the statutory provisions and their legislative
history is a congressional intent that the Secretary protect the
interests of tenant farmers. Both of the relevant statutes
expressly enjoin the Secretary to do so. The Food and Agriculture
Act of 1965 states that '[t]he Secretary shall provide adequate
safeguards to protect the interests of tenants. . . ." 79 Stat.
1196, 7 U.S.C. § 1444(d)(10) (1964 ed., Supp. IV). [
Footnote 6] Title 7 U.S.C. § 1444(d)(13)
(1964 ed., Supp. IV), as noted earlier, incorporates by reference §
8(g), as amended, 52 Stat. 35 and 205, 16 U.S.C. § 590h(g). Section
8(b) of that Act, in turn, provides that "the Secretary shall, as
far as practicable, protect the interests of tenants. . . ." 52
Stat. 32, 16 U.S.C. § 590h(b). The legislative history of the '
making a crop" provision, though sparse, similarly indicates a
congressional intent
Page 397 U. S. 165
to benefit the tenants. [
Footnote 7] They are persons "aggrieved by agency action
within the meaning of a relevant statute," as those words are used
in 5 U.S.C. § 702 (1964 ed., Supp. IV).
Third, judicial review of the Secretary's action is not
precluded. The Court of Appeals rested its holding on the view that
no provision of the Food and Agriculture Act of 1965 "expressly or
impliedly . . . gives the Courts authority to review such
administrative action." 398 F.2d at 402. Whether agency action is
reviewable often poses difficult questions of congressional intent,
and the Court must decide if Congress has, in express or implied
terms, precluded judicial review or committed the challenged action
entirely to administrative discretion.
The Administrative Procedure Act, 5 U.S.C. § 701(a) (1964 ed.,
Supp. IV), allows judicial review of agency action except where
"(1) statutes preclude judicial review; or (2) agency action is
committed to agency discretion by law." The amended regulation here
under challenge was promulgated under 16 U.S.C. § 590d(3), which
authorizes the Secretary to "prescribe such regulations, as he may
deem proper to carry out the provisions of this chapter." Plainly,
this provision does not expressly preclude judicial review, nor
does any other provision in either the 1938 or 1965 Act. Nor does
the authority to promulgate such regulations "as he may
Page 397 U. S. 166
deem proper" in § 590d(3) constitute a commitment of the task of
defining "making a crop" entirely to the discretionary judgment of
the Executive Branch without the intervention of the courts. On the
contrary, since the only or principal dispute relates to the
meaning of the statutory term, the controversy must ultimately be
resolved not on the basis of matters within the special competence
of the Secretary, but by judicial application of canons of
statutory construction.
See Texas Gas Transmission Corp. v.
Shell Oil Co., 363 U. S. 263,
363 U. S.
268-270.
"The role of the courts should, in particular, be viewed
hospitably where . . . the question sought to be reviewed does not
significantly engage the agency's expertise. '[W]here the only or
principal dispute relates to the meaning of the statutory term,' .
. . [t]he controversy presents issues on which courts, and not
[administrators], are relatively more expert."
Hardin v. Kentucky Utilities Co., 390 U. S.
1,
390 U. S. 14
(HARLAN, J., dissenting). Therefore, the permissive term "as he may
deem proper," by itself, is not to be read as a congressional
command which precludes a judicial determination of the correct
application of the governing canons.
The question then becomes whether nonreviewability can fairly be
inferred. As we said in
Data Processing Service,
preclusion of judicial review of administrative action adjudicating
private rights is not lightly to be inferred.
See Leedom v.
Kyne, 358 U. S. 184;
Harmon v. Brucker, 355 U. S. 579;
Stark v. Wickard, 321 U. S. 288;
American School of Magnetic Healing v. McAnnulty,
187 U. S. 94.
Indeed, judicial review of such administrative action is the rule,
and nonreviewability an exception which must be demonstrated. In
Abbott Laboratories v. Gardner, 387 U.
S. 136,
387 U. S. 140,
we held that
"judicial review of a final agency action by an aggrieved person
will not be cut off unless there is persuasive reason to believe
that such was the purpose of
Page 397 U. S. 167
Congress."
A clear command of the statute will preclude review, and such a
command of the statute may be inferred from its purpose.
Switchmen's Union v. National Mediation Board,
320 U. S. 297. It
is, however, "only upon a showing of
clear and convincing
evidence' of a contrary legislative intent" that the courts should
restrict access to judicial review. Abbott Laboratories v.
Gardner, supra, at 387 U. S. 141.
The right of judicial review is ordinarily inferred where
congressional intent to protect the interests of the class of which
the plaintiff is a member can be found; in such cases, unless
members of the protected class may have judicial review, the
statutory objectives might not be realized. See the
Chicago Junction Case, 264 U. S. 258;
Hardin v. Kentucky Utilities, supra.
We hold that the statutory scheme at issue here is to be read as
evincing a congressional intent that petitioners may have judicial
review of the Secretary's action.
The judgments of the Court of Appeals and of the District Court
are vacated, and the case is remanded to the District Court for a
hearing on the merits.
It is so ordered.
[
Footnote 1]
The Secretary of Agriculture is authorized by 7 U.S.C. §
1444(d)(5) (1964 ed., Supp. IV) to pay a farmer in advance of the
growing season up to 50% of the estimated benefits due him. Section
1444(d)(13) (1964 ed., Supp. IV) authorizes the farmer to assign
such benefits subject to the limitations of § 8(g) added by the
1938 Act, 16 U.S. C. § 590h(g). Section 8(g) as enacted in 1938 and
as it read in 1965, established an exception to the general
prohibition against assignment of federal monies in the
Anti-Assignment Act, 31 U.S.C. § 203. Section 8(g) provided:
"A payment which may be made to a farmer under this section, may
be assigned, without discount, by him in writing as security for
cash or advances
to finance making a crop. Such assignment
shall be signed by the farmer and witnessed by a member of the
county or other local committee. . . . Such assignment shall
include the statement that the assignment is not made to pay or
secure any preexisting indebtedness. This provision shall not
authorize any suit against or impose any liability upon the
Secretary . . . if payment to the farmer is made without regard to
the existence of any such assignment."
52 Stat. 35 and 205, 16 U.S.C. § 590h(g) (emphasis added).
Section 8(g) was amended by 80 Stat. 1167 (1966) to permit
assignments not only to finance "making a crop," but also to fund
"handling or marketing an agricultural commodity, or performing a
conservation practice." 16 U.S.C. § 590h(g) (1964 ed., Supp.
IV).
[
Footnote 2]
20 Fed.Reg. 6512 (1955) provided:
"
Payment may be assigned to finance making a crop. A
payment which may be made to a farmer . . . under section 8 of the
Soil Conservation and Domestic Allotment Act, as amended, may be
assigned only as security for cash or advances to finance making a
crop for the current crop year. To finance making a crop means (a)
to finance the planting, cultivating, or harvesting of a crop,
including the purchase of equipment required therefor; (b) to
provide food, clothing, and other necessities required by the
assignor or persons dependent upon the assignor; or (c) to finance
the carrying out of soil or water conservation practices. Nothing
contained herein shall be construed to authorize an assignment
given to secure the payment of the whole or any part of the
purchase price of a farm or the payment of the whole or any part of
a cash or fixed commodity rent for a farm."
[
Footnote 3]
32 Fed.Reg. 14921 (1967), 7 CFR § 709.3 (1969) now provides:
"
Purposes for which a payment may be assigned."
"(a) A payment which may be made to a producer under any program
to which this part is applicable may be assigned only as security
for cash or advances to finance making a crop, handling or
marketing an agricultural commodity, or performing a conservation
practice, for the current crop year. No assignment may be made to
secure or pay any preexisting indebtedness of any nature
whatsoever."
"(b) To finance making a crop means (1) to finance the planting,
cultivating, or harvesting of a crop, including the purchase of
equipment required therefor and the payment of cash rent for land
used therefor, or (2) to provide food, clothing, and other
necessities required by the producer or persons dependent upon
him."
"(c) Nothing contained herein shall be construed to authorize an
assignment given to secure the payment of the whole or any part of
the purchase price of a farm or the payment of the whole or any
part of a fixed commodity rent for a farm."
[
Footnote 4]
The respondents, in addition to the Secretary of Agriculture,
are the State Executive Director of the Agricultural Stabilization
and Conservation Service in Alabama, and the administrator of that
Service in the U.S. Department of Agriculture. The complaint also
included counts against petitioners' landlord alleging that he
acted improperly to deprive them of their right to receive subsidy
payments, and, further, that some of the petitioners had been
illegally evicted because of their participation in litigation with
respect to the cotton program, and, in the case of one petitioner,
because of his candidacy for Alabama Agricultural Stabilization and
Conservation Service county committeeman. The District Court denied
the landlord's motion to dismiss these counts and transferred them
for trial to the Southern District of Alabama. That ruling is not
before us.
[
Footnote 5]
The complaint stated that some of the petitioners "were denied
the right to work the land" when they refused to execute
assignments to their landlord. The complaint also alleged that
"[p]laintiffs have been tenant farmers on this land from eleven
to sixty-one years . . . , and [two of them] have been on this land
all their lives."
[
Footnote 6]
In connection with the amended regulations, the Secretary issued
under § 1444(d)(10) various rules designed to ensure that tenants
receive their fair share of the federal payments. 31 Fed.Reg.
4887-4888, 7 CFR §§ 722.817, 794.3.
[
Footnote 7]
See the remarks of Representative Fulmer, 82 Cong.Rec.
844 (1937), and of Senator Adams,
id. at 1756. The fact
that assignment could be made at all indicated a congressional
concern for the farmers' welfare, in light of the general statutory
prohibition on assignment of federal claims embodied in the
Anti-Assignment Act, 31 U.S.C. § 203. This concern was noted in a
letter from the Secretary of Agriculture to the President of the
Senate in January, 1952, in which the Secretary stated that § 8(g)
"was enacted for the purpose of creating additional credit to
farmers to assist them in financing farming operations." S.Rep. No.
1305, 82d Cong., 2d Sess., 3.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE joins,
concurring in the result and dissenting.
*
I concur in the result in both cases, but dissent from the
Court's treatment of the question of standing to challenge agency
action.
The Court's approach to standing, set out in
Data
Processing, has two steps: (1) since "the framework of Article
III . . . restricts judicial power to
cases' and
`controversies,'" the first step is to determine "whether
Page 397 U. S.
168
the plaintiff alleges that the challenged action has caused
him injury in fact;" (2) if injury in fact, is alleged, the
relevant statute or constitutional provision is then examined to
determine
"whether the interest sought to be protected by the complainant
is arguably within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in
question."
My view is that the inquiry in the Court's first step is the
only one that need be made to determine standing. I had thought we
discarded the notion of any additional requirement when we
discussed standing solely in terms of its constitutional content in
Flast v. Cohen, 392 U. S. 83
(1968). By requiring a second, nonconstitutional step, the Court
comes very close to perpetuating the discredited requirement that
conditioned standing on a showing by the plaintiff that the
challenged governmental action invaded one of his legally protected
interests. [
Footnote 2/1]
Barlow is a typical illustration of the harm that resulted
from that requirement. The only substantial issue in that case goes
to the merits: does the statutory language "making a crop" create a
legally protected interest for tenant farmers in the form of a
prohibition against the assignment of their federal benefits to
secure cash rent? By confusing the merits with the plaintiffs'
standing to challenge the Secretary's action, both the District
Court and the Court of Appeals denied the farmers the focused and
careful decision on the merits to which they are clearly entitled.
Although
Page 397 U. S. 169
this Court properly reverses the Court of Appeals on that
account, it encourages more
Barlow decisions by engrafting
its wholly unnecessary an inappropriate second step upon the
constitutional requirement for standing.
Before the plaintiff is allowed to argue the merits, it is true
that a canvass of relevant statutory materials must be made in
cases challenging agency action. But the canvass is made not to
determine
standing, but to determine an aspect of
reviewability, that is, whether Congress meant to deny or
to allow judicial review of the agency action at the instance of
the plaintiff. [
Footnote 2/2] The
Court in the present cases examines the statutory materials for
just this purpose, but only after making the same examination
during the second step of its standing inquiry. Thus, in
Data
Processing, the Court determines that the petitioners have
standing because they alleged injury in fact and because "§ 4 [of
the Bank Service Corporation Act of 1962] arguably brings a
competitor within the zone of interests protected by it." The Court
then determines that the Comptroller's action is reviewable at the
instance of the plaintiffs because
"[b]oth [the Bank Service Corporation Act and the National Bank
Act] are clearly 'relevant' statutes within the meaning of [the
Administrative Procedure Act, 5 U.S.C. § 702 (1964 ed., Supp. IV)].
The Acts do not, in terms, protect a specified group. But their
general policy is apparent, and those whose interests are directly
affected by a broad or narrow interpretation of the Acts are
easily
Page 397 U. S. 170
identifiable. It is clear that petitioners, as competitors of
national banks that are engaging in data processing services, are
within that class of 'aggrieved' persons who, under 702, are
entitled to judicial review of 'agency action.'"
Again in
Barlow, the plaintiff tenant farmers are found
to have standing because they alleged injury in fact, and because
"tenant farmers are . . . within the zone of interests protected by
the Act." Examination of the same statutory materials subsequently
leads the Court to the conclusion that the tenant farmers are
entitled to judicial review of the Secretary's action because
"the statutory scheme . . . is to be read as evincing a
congressional intent that petitioners may have judicial review of
the Secretary's action."
I submit that, in making such examination of statutory materials
an element in the determination of standing, the Court not only
performs a useless and unnecessary exercise, but also encourages
badly reasoned decisions which may well deny justice in this
complex field. When agency action is challenged, standing,
reviewability, and the merits pose discrete, and often complicated,
issues which can best be resolved by recognizing and treating them
as such.
I
STANDING
Although
Flast v. Cohen was not a case challenging
agency action, its determination of the basis for standing should
resolve that question for all cases. We there confirmed what we
said in
Baker v. Carr, 369 U. S. 186,
369 U. S. 204
(1962), that the "gist of the question of standing" is whether the
party seeking relief has
"alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult . . . questions. "
Page 397 U. S. 171
"In other words," we said in
Flast,
"when standing is placed in issue in a case, the question is
whether the person whose standing is challenged is a proper party
to request an adjudication of a particular issue,"
and not whether the controversy is otherwise justiciable,
[
Footnote 2/3] or whether, on the
merits, the plaintiff has a legally protected interest that the
defendant's action invaded. 392 U.S. at
392 U. S.
99-100. The objectives of the Article III standing
requirement are simple: the avoidance of any use of a "federal
court as a forum [for the airing of] generalized grievances about
the conduct of government," and the creation of a judicial context
in which
"the questions will be framed with the necessary specificity, .
. . the issues . . . contested with the necessary adverseness and .
. . the litigation . . . pursued with the necessary vigor to assure
that the . . . challenge will be made in a form traditionally
thought to be capable of judicial resolution."
Id. at
392 U. S. 106.
Thus, as we held in
Flast,
Page 397 U. S. 172
"the question of standing is related only to whether the dispute
sought to be adjudicated will be presented in an adversary context
and in a form historically viewed as capable of judicial
resolution."
Id. at
392 U. S. 101.
[
Footnote 2/4]
See also Chicago
v. Atchison, T. & S.F. R. Co., 357 U. S.
77,
357 U. S. 83-84
(1958).
In light of
Flast, standing exists when the plaintiff
alleges, as the plaintiffs in each of these cases alleged, that the
challenged action has caused him injury in fact, economic or
otherwise. [
Footnote 2/5] He thus
shows that he has the requisite "personal stake in the outcome" of
his suit.
Baker v. Carr, supra, at
369 U. S. 204.
We may reasonably expect that a person so harmed will, as best he
can, frame the relevant questions with specificity, contest the
issues with the necessary adverseness, and pursue the litigation
vigorously. [
Footnote 2/6]
Page 397 U. S. 173
Recognition of his standing to litigate is then consistent with
the Constitution, and no further inquiry is pertinent to its
existence.
II
REVIEWABILITY
When the legality of administrative action is at issue, standing
alone will not entitle the plaintiff to a decision on the merits.
Pertinent statutory language, legislative history, and public
policy considerations must be examined to determine whether
Congress precluded all judicial review, and, if not, whether
Congress nevertheless foreclosed review to the class to which the
plaintiff belongs. Under the Administrative Procedure Act (APA),
"statutes [may] preclude judicial review" or "agency action [may
be] committed to agency discretion by law." 5 U.S.C. § 701(a) (1964
ed., Supp. IV). In either case, the plaintiff is out of court not
because he had no standing to enter, but because Congress has
stripped
Page 397 U. S. 174
the judiciary of authority to review agency action. Review may
be totally foreclosed, as in
Schilling v. Rogers,
363 U. S. 666
(1060), or, if permitted, it may nonetheless be denied to the
plaintiff's class. But the governing principle laid down in
Abbott Laboratories v. Gardner, 387 U.
S. 136,
387 U. S. 140
(1967), is that
"judicial review of a final agency action by an aggrieved person
will not be cut off unless there is persuasive reason to believe
that such was the purpose of Congress."
The APA provides that
"[a] person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof."
5 U.S.C. § 702 (1964 ed., Supp. IV). Congressional intent that a
particular plaintiff have review may be found either in express
statutory language granting it to the plaintiff's class [
Footnote 2/7] or, in the absence of such
express language, in statutory indicia from which a right to review
may be inferred. [
Footnote 2/8]
Where, as in the instant cases, there is no express grant of
review, reviewability has ordinarily been inferred from evidence
that Congress intended the plaintiff's class to be a beneficiary of
the statute under which the plaintiff raises his claim.
See,
for example, the
Chicago Junction Case, 264 U.
S. 258 (1924);
Hardin v. Kentucky Utilities
Co., 390 U. S. 1
Page 397 U. S. 175
(1968);
Norwalk CORE v. Norwalk Redevelopment Agency,
395 F.2d 920 (C.A.2d Cir.1968). In light of
Abbott
Laboratories, slight indicia that the plaintiff's class is a
beneficiary will suffice to support the inference. [
Footnote 2/9]
III
THE MERITS
If it is determined that a plaintiff who alleged injury in fact,
is entitled to judicial review, inquiry proceeds to the merits --
to whether the specific legal interest claimed by the plaintiff is
protected by the statute and to whether the protested agency action
invaded that interest. [
Footnote
2/10] It is true, of course, that matters relevant to the
merits will already have been touched tangentially in the
determination of standing and, in some cases, in the determination
of reviewability. The aspect of the merits touched in establishing
standing is the identification of injury in fact, the existence of
which the plaintiff must prove. The merits are also touched in
establishing reviewability in cases where the plaintiff's right to
review must be inferred from evidence that his class is a statutory
beneficiary. The same statutory indicia that afford the plaintiff a
right to review also bear on the merits, because they provide
evidence that the statute protects his class, and thus that he is
entitled to relief if he can show that the challenged agency action
violated the statute. Evidence that the plaintiff's class is a
statutory beneficiary, however, need not be as strong for the
purpose of obtaining review as
Page 397 U. S. 176
for the purpose of establishing the plaintiff's claim on the
merits. Under
Abbott Laboratories, slight beneficiary
indicia will suffice to establish his right to have review, and
thus to reach the merits.
IV
To reiterate, in my view, alleged injury in fact, reviewability,
and the merits pose questions that are largely distinct from one
another, each governed by its own considerations. To fail to
isolate and treat each inquiry independently of the other two, so
far as possible, is to risk obscuring what is at issue in a given
case, and thus to risk uninformed, poorly reasoned decisions that
may result in injustice. Too often these various questions have
been merged into one confused inquiry, lumped under the general
rubric of "standing." The books are full of opinions that dismiss a
plaintiff for lack of "standing" when dismissal, if proper at all,
actually rested either upon the plaintiff's failure to prove on the
merits the existence of the legally protected interest that he
claimed, [
Footnote 2/11] or on
his failure to prove that the challenged agency action was
reviewable at his instance. [
Footnote
2/12]
The risk of ambiguity and injustice can be minimized by cleanly
severing, so far as possible, the inquiries into reviewability and
the merits from the determination of standing. Today's decisions,
however, will only compound present confusion and breed even more
litigation over standing. In the first place, the Court's
formulation
Page 397 U. S. 177
of its nonconstitutional element of standing is obscure. What
precisely must a plaintiff do to establish that "the interest
sought to be protected . . . is arguably within the zone of
interests to be protected or regulated by the statute"? How
specific an "interest" must he advance? Will a broad, general
claim, such as competitive interest, suffice, or must he identify a
specific legally protected interest? When, too, is his interest
"arguably" within the appropriate "zone"? Does a mere allegation
that it falls there suffice? If more than an allegation is
required, is the plaintiff required to argue the merits? And what
is the distinction between a "protected" and a "regulated"
interest? Is it possible that a plaintiff may challenge agency
action under a statute that unquestionably regulates the interest
at stake, but that expressly excludes the plaintiff's class from
among the statutory beneficiaries?
In the second place, though the Court insists that its
nonconstitutional standing inquiry does not involve a determination
of the merits, I have grave misgivings on this score. The
formulation of the inquiry most certainly bears a disquieting
similarity to the erroneous notion that a plaintiff has no standing
unless he can establish the existence of a legally protected
interest. Finally, assuming that the inquiry does not, in fact,
focus on the merits, then surely it serves only to determine
whether the challenged agency action is reviewable at the instance
of the plaintiff in cases where there is no express statutory grant
of review to members of his class. [
Footnote 2/13] And, if this is so, it has no place in
the determination of standing. In terms of treating related
questions with one another, this inquiry is best made
Page 397 U. S. 178
in the reviewability context. The Constitution requires for
standing only that the plaintiff allege that actual harm resulted
to him from the agency action. Investigation to determine whether
the constitutional requirement has been met has nothing in common
with the inquiry into statutory language, legislative history, and
public policy that must be made to ascertain whether Congress has
precluded or limited judicial review. [
Footnote 2/14] More fundamentally, an approach that
treats separately the distinct issues of standing, reviewability,
and the merits, and decides each on the basis of its own criteria,
assures that these often complex questions will be squarely faced,
thus contributing to better reasoned decisions and to greater
confidence that justice has in fact, been done. The Court's
approach does too little to guard against the possibility that
judges will use standing to slam the courthouse door against
plaintiffs who are entitled to full consideration of their claims
on the merits. The Court's approach must trouble all concerned with
the function of the judicial process in today's world. As my
Brother DOUGLAS has said:
"The judiciary is an indispensable part of the operation of our
federal system. With the growing complexities of government it is
often the one and only place where effective relief can be
obtained. . . . [W]here wrongs to individuals are done . . . , it
is abdication for courts to close their doors."
Flast v. Cohen, supra, at
392 U. S. 111
(concurring opinion).
Page 397 U. S. 179
* [This opinion applies also to No. 85,
Association of Data
Processing Service Organizations, Inc., et al. v. Camp, Comptroller
of the Currency, et al., ante, p.
397 U. S.
150.]
[
Footnote 2/1]
Cf. the language in
Associated Industries v.
Ickes, 134 F.2d 694, 700 (C.A.2d Cir.1943):
"In a suit in a federal court by a citizen against a government
officer, complaining of alleged past . . . unlawful conduct by the
defendant, there is no justiciable 'controversy' . . . unless the
citizen shows that such conduct . . . invades . . . a private
substantive legally protected interest of the plaintiff citizen;
such invaded interest must be either of a 'recognized' character at
'common law' or a substantive private legally protected interest
created by statute [or Constitution]."
[
Footnote 2/2]
Reviewability has often been treated as if it involved a single
issue: whether agency action is conclusive and beyond judicial
challenge by anyone. In reality, however, reviewability is equally
concerned with a second issue: whether the
particular
plaintiff then requesting review may have it.
See the
Administrative Procedure Act, 5 U.S.C. §§ 701(a) and 702 (1964 ed.,
Supp. IV). Both questions directly concern the extent to which
persons harmed by agency action may challenge its legality.
[
Footnote 2/3]
Other elements of justiciability are, for instance, ripeness,
e.g., Poe v. Ullman, 367 U. S. 497
(1961), mootness,
e.g., United States v. W. T. Grant Co.,
345 U. S. 629
(1953), and the policy against friendly or collusive suits,
e.g., Chicago & Grand Trunk R. Co. v. Wellman,
143 U. S. 339
(1892);
United States v. Johnson, 319 U.
S. 302 (1943). "Justiciability" is also the term of art
used to refer to the constitutional necessity that courts not deal
with certain issues lest they "intrude into areas committed to the
other branches of government."
Flast, supra, at
392 U. S. 95.
The political question doctrine has its analogue in the sphere of
administrative law in the concept of nonreviewability.
See,
e.g., Chicago & Southern Air Lines, Inc. v. Waterman Steamship
Corp., 333 U. S. 103
(1948);
Schilling v. Rogers, 363 U.
S. 666 (1960). And, of course, federal courts may not
decide questions over which they lack jurisdiction,
e.g., Brown
Shoe Co. v. United States, 370 U. S. 294,
370 U. S. 305
(1962);
American Fire & Casualty Co. v. Finn,
341 U. S. 6,
341 U. S. 17-18
(1951). Thus, on many grounds other than an absence of standing, a
court may dismiss a lawsuit without proceeding to the merits to
determine whether the plaintiff presents a claim upon which relief
may be granted, and, if so, whether he has borne his burden of
proof.
[
Footnote 2/4]
It is true, of course, that, in certain types of litigation,
parties may properly request judicial resolution of issues not
"presented in an adversary context."
See Davis, Standing:
Taxpayers and Others, 35 U.Chi.L.Rev. 601, 607 (1968). But, in most
instances, among them private challenges to agency action, the
plaintiff must establish his adverseness to obtain standing.
[
Footnote 2/5]
Thus, for purposes of standing, it is sufficient that a
plaintiff allege
damnum absque injuria, that is, he has
only to allege that he has suffered harm as a result of the
defendant's action. Injury in fact has generally been economic in
nature, but it need not be.
See, e.g., Scenic Hudson
Preservation Conf. v. FPC, 354 F.2d 608 (C.A.2d Cir.1965);
Office of Communication of United Church of Christ v. FCC,
123 U.S.App.D.C. 328, 359 F.2d 994 (1966). The more "distinctive or
discriminating" the harm alleged and the more clearly it is linked
to the defendant's action, the more easily a plaintiff may meet the
constitutional test.
See L. Jaffe, Judicial Control of
Administrative Action 501 (1965). The plaintiffs in the present
cases alleged distinctive and discriminating harm, obviously linked
to the agency action. Thus, I do not consider what must be alleged
to satisfy the standing requirement by parties who have sustained
no special harm themselves, but sue rather as taxpayers or citizens
to vindicate the interests of the general public.
[
Footnote 2/6]
Past decisions of this Court indicate that a person who has
suffered injury in fact meets the relevant Article III requirement.
See, for example, FCC v. Sanders Bros. Radio Station,
309 U. S. 470,
309 U. S.
476-477 (1940);
Scripps-Howard Radio, Inc. v.
FCC, 316 U. S. 4 (1942).
In these decisions, the Court permitted parties economically harmed
by administrative action to challenge it although no legal interest
of the parties was found to have been invaded by the action. The
Court stated in
Scripps-Howard Radio, supra, at
316 U. S. 14,
that
"[t]he Communications Act of 1934 did not create new private
rights. The purpose of the Act was to protect the public interest
in communications. By § 402(b)(2), Congress gave the right of
appeal to persons 'aggrieved or whose interests are adversely
affected' by Commission action."
Accordingly, since Congress cannot expand the Article III
jurisdiction of federal courts,
Muskrat v. United States,
219 U. S. 346
(1911), it follows that injury in fact renders a party adverse
under the Constitution.
Cf. K. Davis, 3 Administrative Law
Treatise § 22.02, at 211 (1958); Jaffe,
supra, 397
U.S. 159fn2/5|>n. 5, at 336.
[
Footnote 2/7]
See, e.g., the Securities Act of 1933, which provides
that "[a]ny person aggrieved by an order of the Commission may
obtain a review," 15 U.S.C. § 77i(a), and the Federal Power Act,
which grants review to "[a]ny party to a proceeding under this
chapter aggrieved by an order issued by the Commission in such
proceeding. . . ." 16 U.S.C. § 825
l(b).
[
Footnote 2/8]
Section 702 also provides that "[a] person suffering legal wrong
because of agency action . . . is entitled to judicial review
thereof." Though a person suffering such wrong is clearly entitled
to review he need not show the existence of a legally protected
interest to establish either his standing or his right to review.
The existence of that interest is a question of the merits.
[
Footnote 2/9]
This is particularly the case when the plaintiff is the only
party likely to challenge the action. Refusal to allow him review
would, in effect, commit the action wholly to agency discretion,
thus risking frustration of the statutory objectives.
[
Footnote 2/10]
If the alleged legal interest is clearly frivolous, or proof to
substantiate the alleged injury in fact, is wholly lacking, the
plaintiff can be hastened from court by summary judgment.
[
Footnote 2/11]
E.g., Tennessee Power Co. v. TVA, 306 U.
S. 118 (1939);
Association of Data Processing
Service Organizations, Inc. v. Camp, 406 F.2d 837, 813 (C.A.
8th Cir.1969);
Barlow v. Collins, 398 F.2d 398, 401 (C.A.
5th Cir.1968).
[
Footnote 2/12]
E.g., Association of Data Processing Service Organizations,
Inc. v. Camp, supra, at 843;
Barlow v. Collins,
supra, at 401-402;
Harrison-Halsted Community Group, Inc.
v. Housing Home Finance Agency, 310 F.2d 99 (C.A. 7th
Cir.1962).
[
Footnote 2/13]
In cases involving statutes that do expressly grant the
plaintiff a right to review, there would be no need for the Court's
second standing inquiry -- unless it serves to provide a preview of
the merits.
[
Footnote 2/14]
I would apply my view that all examination of statutory language
and congressional intent, as they bear on the right of the
plaintiff to challenge agency action, should be made only in the
reviewability context even if the pertinent statutory material
speaks of "standing" or "statutory aid to standing." Statutory
materials, of course, would be properly consulted in the
determination of standing if they purport to define what
constitutes injury in fact.