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Moore's Federal Practice - Civil
Copyright 2009, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
Volume 15 Analysis: Fed'l Courts & Jurisdiction (Chs. 100-104)
Chapter 101 Issues of Justiciability
B. STANDING
5. APPLICATION OF STANDING DOCTRINE
15-101 Moore's Federal Practice - Civil § 101.62
AUTHOR: by Martin H. Redish
§ 101.62 Standing Conferred by Statute
[1] Rights Created by Statute
Under certain circumstances, standing may be established on the basis of rights created by statute.n1 Congress may enact statutes creating legal rights, even though no cognizable injury would exist without the statute.n2 However, in order not to run afoul of the Article III injury-in-fact requirement (see § 101.40), Congress may confer standing only on parties who have actually been deprived of the newly established statutory
rights.n2.1
Some statutes contain "citizen-suit" provisions that grant standing to persons under particular circumstances.n3 When the statute confers the right to enforce particular procedures, the "procedural rights" created are
special in the sense that a person who has been accorded a procedural right to protect concrete interests can
assert that right without meeting all the normal standards for redressability and immediacy.n4 See §
101.40[5][h] for a discussion of procedural injuries.
Congress in unusual cases may also "create a concrete interest in the outcome of a suit against a private party
for the government's benefit, by providing a cash bounty for the victorious plaintiff."n5 However, Congress
may not exceed the injury-in-fact limitation of Article III.n6 The Supreme Court has expressly rejected the
view that the injury-in-fact requirement may be satisfied by congressional conferral on all persons of an "abstract, self-contained, noninstrumental 'right.' "n7
The test for standing under a statute may be more rigorous but not more lenient than the Article III requirements.n8 Therefore, a plaintiff who satisfies a valid standing provision of a statute necessarily meets the requirements for standing under Article III.n9
[2] Standing Under Administrative Procedure Act
[a] Injury
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The Administrative Procedure Act (APA),n10 grants standing to a person "aggrieved by agency action within the meaning of a relevant statute."n11
To establish a right to relief under the APA, a plaintiff must show that it has been affected by some final
agency action,n12 and also that it is adversely affected or aggrieved by that action within the meaning of the
relevant statute, which requires a showing that the injury complained of falls with the zone of interests
sought to be protected.n13 When challenged agency conduct allegedly renders a person unable to compete
fairly for some benefit, that person has suffered a sufficient injury in fact to assert standing under the
APA.n14
[b] Likelihood of Injury Distinguished From Causation
The likelihood that harm will be suffered is distinguishable from a finding that defendant's conduct caused
the injury. The likelihood of the injury, whether or not that likelihood depends on a single event or a chain of
events, is properly a concern of the injury-in-fact inquiry. The causation question concerns only whether
plaintiff's injury is caused by the agency's policy, or is instead the result of independent incentives governing
the third parties' decision making process.n15
In Allen v. Wright, an action brought by parents of children in pubic schools challenging the constitutionality
of federal tax exemptions to segregated private schools, the Supreme Court found that the alleged injury (i.e.,
diminished ability to attend racially integrated schools) was not fairly traceable to the challenged action (i.e.,
the IRS's grant of tax exemptions to racially discriminatory institutions) because the schools could carry on
their policies even if the exemptions were to cease.n16 In Simon v. Eastern Kentucky Welfare Rights Org.,
the Supreme Court denied standing because the purported injury resulted from the independent action of
some third party not before the court.n17
In a Ninth Circuit case, a conservation organization challenged the United States Forest Service's plan for
managing certain forest lands, alleging that legally required procedures had not been followed. The court
found that the injury (i.e., the government's failure to make wilderness recommendations allegedly as a result
of statutory violations) would not have occurred but for the Secretary of Agriculture's decision not to protect
the wilderness in certain forest land. In this respect, the court held, the defendant's assertions that development might never take place, or that redrafting the environmental impact statement might not in any way
change the Secretary's recommendations to Congress, were irrelevant. The asserted injury was that environmental consequences might be overlooked and reasonable alternatives ignored as a result of deficiencies in
the final environmental reports. The ultimate outcome following proper procedures was not in question.n18
[c] Examples of Administrative Procedure Act Analysis
In Norton v. Southern Utah Wilderness Alliance, plaintiffs sued under the Administrative
Procedure Act (APA) to compel the Bureau of Land Management (BLM) to act to protect certain public lands designated as "Wildlife Study Areas" (WSAs) from environmental damage
caused by off-road vehicles. The Supreme Court held that the Bureau of Land Management's
alleged failure to protect is not remediable under the APA. The claim that the BLM violated its
nonimpairment obligation by allowing degradation was not cognizable under the APA because
the statute afforded the BLM substantial discretion and did not establish requirements with the
clarity necessary to support judicial action under the APA.n18.1
In Lujan v. National Wildlife Federation, a national wildlife group challenged the entire
"land withdrawal review program" of the Bureau of Land Management. This program determined the status of public land and its availability for private uses such as mining. The plain-
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tiffs claimed a right to challenge the Administrative Procedure Act.n19 The Supreme Court
held that the plaintiffs did not satisfy the statute's requirements for judicial review because they
had failed to identify an "agency action" within the meaning of the statute. The Court held that
neither the allegations of the complaint nor the supporting affidavits "enable the respondents to
challenge the entirety of the so-called land withdrawal review program." The Court denied
standing because the plaintiffs had failed to satisfy the requirement of the APA that they be
adversely affected or aggrieved by an agency action.n20
In a Ninth Circuit case, an Athabascan Indian was held to have standing to challenge civil
service criteria used by the Department of Health and Human Services for employment positions in the Indian Health Service, based on allegations that she had been rejected for a position
for failure to meet those criteria. The court held that her status as a bona fide applicant for the
position entitled her to have her qualifications measured by standards under the Indian Preference Act,n21 which requires separate employment standards for Native Americans. Although
the government allegedly had not adopted separate standards, and the court therefore could not
determine whether the plaintiff would have met them, the court held that she presented a sufficient claim of injury in fact and otherwise met all standing requirements.n22
Legal Topics:
For related research and practice materials, see the following legal topics:
Administrative LawAgency AdjudicationHearingsRight to HearingStatutory RightAdministrative
LawAgency AdjudicationImpartialityParticipation in ProsecutionAdministrative LawGovernmental InformationFreedom of InformationEnforcementReviewabilityStandingAdministrative LawJudicial ReviewReviewabilityStandingAntitrust & Trade LawPrivate ActionsStandingGeneral OverviewCivil ProcedureJusticiabilityStandingGeneral OverviewGovernmentsLegislationStatutory Remedies & Rights
FOOTNOTES:
(n1)Footnote 1. Statutory rights.
Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 45 L. Ed. 2d 343
(1975) ; see
Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973) ;
Sierra Club v. Morton, 405 U.S. 727, 732, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972) .
6th Circuit Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979, 988-989 (6th Cir. 2009) (Real
Estate Settlement Procedures Act (RESPA) creates individual right to receive real estate referral services untainted by kickbacks or fee-splitting); see 12 U.S.C. § 2607(a), (b).
7th Circuit Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990) .
9th Circuit See Joyner v. Mofford, 706 F.2d 1523, 1526 (9th Cir. 1983) ("distinct and palpable" injury within meaning of injury component of standing may arise from burden of statutory
obligation).
(n2)Footnote 2. Statutes creating rights.
Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3, 93 S. Ct.
1146, 35 L. Ed. 2d 536 (1973) ; see
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S. Ct. 2130,
119 L. Ed. 2d 351 (1992) (nothing in this decision contradicts principle that injury requirement of Article III
may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing).
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9th Circuit Joyner v. Mofford, 706 F.2d 1523, 1526 (9th Cir. 1983) .
D.C. Circuit Zivotofsky ex rel. Zivotofsky v. Sec'y of State, 444 F.3d 614, 617-619 (D.C. Cir.
2006) (violation of right of U.S. citizen who was born in Jerusalem to have country of birth
identified as Israel on registration of birth, as granted in Foreign Relations Authorization Act,
inflicted injury sufficient to confer standing).
(n3)Footnote 2.1. Deprivation of statutory right required. See
Trafficante v. Metropolitan Life
Ins. Co., 409 U.S. 205, 212, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972) (Congress may not exceed injury-in-fact
limitation of Article III). Justice White, in a concurring opinion, implied that Congress may create injury by
statute where none would exist absent the statute. However, in
Lujan v. Defenders of Wildlife, 504 U.S.
555, 578, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) , the Court made clear that such would be the case only
if Congress ''elevat[ed] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.'').
6th Circuit See Carter v. Welles-Bowen Realty, Inc., 553 F.3d 979, 988-989 (6th Cir. 2009)
(Real Estate Settlement Procedures Act (RESPA) did not properly confer standing on public at
large, but only on individuals who are injured by receiving loan accompanied by unlawful referral); see 12 U.S.C. § 2607(a), (b).
(n4)Footnote 3. See, e.g., The Endangered Species Act, 16 U.S.C. § 1540(g), which allows any person
to bring a civil suit to enjoin a government agency from violating the Act.
(n5)Footnote 4. Procedural rights.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 n.7, 112 S. Ct.
2130, 119 L. Ed. 2d 351 (1992) (no standing for persons who have no concrete interests affected).
(n6)Footnote 5. Cash.
L. Ed. 2d 351 (1992) .
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S. Ct. 2130, 2136, 119
(n7)Footnote 6. Limitation.
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212, 93 S. Ct.
364, 34 L. Ed. 2d 415 (1972) . Justice White, in a separate concurring opinion, implied that Congress by statute may create injury where none would exist absent the statute. However, in
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) , the Court made clear that such would be the
case only if Congress "elevat[ed] to the status of legally cognizable injuries concrete, de facto injuries that
were previously inadequate in law".
(n8)Footnote 7. Rejected view.
L. Ed. 2d 351 (1992) .
Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119
(n9)Footnote 8. More rigorous. Preston v. Heckler, 734 F.2d 1359, 1364 (9th Cir. 1984) (citing
Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464,
488 n.24, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982) ; see Jackson v. Okaloosa County, Fla., 21 F.3d 1531,
1537 (11th Cir. 1994) (Congress may expand standing to full extent permitted by Article III, citing
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S. Ct. 1601, 60 L. Ed. 2d 66 (1979)) . For discussion of requirements, see Subpart 3.
(n10)Footnote 9. Meeting requirements. Preston v. Heckler, 734 F.2d 1359, 1364 (9th Cir. 1984) .
(n11)Footnote 10. 5 U.S.C. § 702.
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(n12)Footnote 11. 5 U.S.C. § 702.
(n13)Footnote 12. Final agency action. See 5 U.S.C. § 551(13) ("agency action" defined); Churchill
County v. Babbitt, 150 F.3d 1072, 1074-1079 (9th Cir. 1998) , modified, 158 F.3d 491 (1998) (standing
under APA requires final agency action adversely affecting plaintiff; Fish and Wildlife Service effectuated
final agency action by producing Record of Decision announcing beginning of water purchases and identifying land purchase program already begun).
(n14)Footnote 13. APA standing.
Lujan v. National Wildlife Fed'n, 497 U.S. 871, 889, 110 S. Ct.
3177, 111 L. Ed. 2d 695 (1990) (recreational use and aesthetic enjoyment are among sorts of interests protected by land use statutes); Churchill County v. Babbitt, 150 F.3d 1072, 1074-1079 (9th Cir. 1998) , modified, 158 F.3d 491 (1998) (APA standing requires that plaintiff show final agency action that adversely affects plaintiff, and, as a result, plaintiff suffered legal wrong or that plaintiff's injury falls within zone of interests of statutory provision claimed to be violated). For discussion of "zone of interests," see § 101.51[1].
(n15)Footnote 14. Competition for benefits. Preston v. Heckler, 734 F.2d 1359, 1365 (9th Cir. 1984)
(citing
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280-281 n.14, 98 S. Ct. 2733, 57 L. Ed. 2d 750
(1978) ; Glacier Park Foundation v. Watt, 663 F.2d 882, 885 (9th Cir. 1981) ).
(n16)Footnote 15. Likelihood of harm v. cause. Idaho Conservation League v. Mumma, 956 F.2d
1508, 1517-1518 (9th Cir. 1992) (possible chain of third-party responses to agency action sufficient to confer
standing).
9th Circuit Idaho Conservation League v. Mumma, 956 F.2d 1508, 1517-1518 (9th Cir.
1992) (conservation organizations lacked standing to challenge Forest Service management
plan).
D.C. Circuit Wilderness Soc'y v. Griles, 824 F.2d 4, 18 (D.C. Cir. 1987) .
(n17)Footnote 16. Tax exemptions to schools.
Allen v. Wright, 468 U.S. 737, 758, 104 S. Ct. 3315,
82 L. Ed. 2d 556 (1984) (asserted right to have government act in accordance with law is not sufficient to
confer jurisdiction).
(n18)Footnote 17. Third party.
S. Ct. 1917, 48 L. Ed. 2d 450 (1976) .
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 42, 96
(n19)Footnote 18. Forest plan. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1518 (9th Cir.
1992) .
(n20)Footnote 18.1. Claim that BLM violated obligations is not cognizable.
Norton v. Southern
Utah Wilderness Alliance, 542 U.S. 55, 72-73, 124 S. Ct. 2373, 159 L. Ed. 2d 137 (2004) .
(n21)Footnote 19. 5 U.S.C. § 702.
(n22)Footnote 20. Agency action not identified.
Lujan v. National Wildlife Fed'n, 497 U.S. 871,
889, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990) ; see Harris v. City of Zion, 927 F.2d 1401, 1405 (7th Cir.
1991) .
(n23)Footnote 21. See 48 Stat. 986 (1934).
(n24)Footnote 22.
(9th Cir. 1984) .
Standing Under Indian Preference Act. Preston v. Heckler, 734 F.2d 1359, 1365