Lead Opinion
Aрpellants, the Haitian Refugee Center (“HRC” or “Center”) and two of its members brought this action to challenge the United States’ program of interdicting on the high seas vessels carrying undocumented aliens attempting to enter the United States. Such aliens are returned to the country from which they came. Appellants seek declaratory and injunctive relief. The district court dismissed the complaint for failure to state a claim upon which relief can be granted. We affirm because we conclude that appellants lack standing to sue. Though the Center has alleged sufficient injury, neither the HRC nor its members have established the causation required by separation of powers principles for article III standing. In addition, we hold that the Supreme Court’s prudential rules preclude appellants’ attempts to assert the legal rights and interest of the interdicted Haitians.
I.
On September 29, 1981, “having found that the entry of undocumented aliens, arriving at the borders of the United States from the high seas, is detrimental to the interests of the United States,” the President proclaimed that: “The entry of undocumented aliens from the high seas is hereby suspended and shall be prevented by the interdiction of certain vessels carrying such aliens.” Proclamation No. 4865, 46 Fed. Reg. 48,107 (1981), reprinted in 8 U.S.C. § 1182 app. at 993 (1982).
On the same date, the President issued an executive order directing the Secretary of State to enter into “co-operative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea.” Exec. Order No. 12,324, 46 Fed.Reg. 48,109 (1981), reprinted in 8 U.S.C. § 1182 app. at 992-93 (1982). On September 23, 1981, the United States and Haiti entered into such an arrangement. See Interdiction Agreement, Sept. 23, 1981, United States-Haiti, T.I.A.S. No. 10,241. Under the agreement, Haiti authorized United States authorities to board Haitian flag vessels on the high seas and make certain inquiries regarding the condition and destination of such vessels and the status of those on board. If a violation of United States law or an appropriate Haitian law is discovered, the vessel and the persons aboard may be returned to Haiti. The
The Executive Order directed the Secretary of Transportation to order the Coast Guard to interdict “any defined vessel carrying [undocumented] aliens.” The de-' fined vessels include vessels from foreign nations with which the United States has arrangements authorizing it to board such vessels. The Secretary of Transportation was also ordered to direct the Coast Guard “[t]o return the vessel and its passengers to the country from which it came, when there is reason to believe that an offense is being committed against the United States immigration laws, or appropriate laws of a foreign country with which we have an arrangement to assist.” Though the Coast Guard was to carry on the interdiction program only outside the territorial waters of the United Stаtes, the Executive Order provides that “no person who is a refugee will be returned without his consent” and that the Attorney General, in consultation with the Secretaries of State and Transportation, shall take appropriate steps "to ensure the fair enforcement of our laws relating to immigration ... and the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland.”
To implement the arrangement with Haiti, INS officials were assigned to the Coast Guard vessels engaged in the interdiction program. The INS developed unpublished, informal guidelines setting forth the procedures to be followed during interdiction operations. See INS Role in and Guidelines for Interdiction at Sea, Joint Appendix (“J.A.”) at 55-57. The guidelines provide that if it is deemed safe and practicable by the commanding Coast Guard officer, each person aboard the interdicted vessel shall be interviewed to determine his or her name, nationality, documentation and reasons for leaving Haiti. The INS official is directed to be “watchful for any indication (including bare claims)” that a passenger may qualify for refugee status. If the official finds such an indication, an additional individual interview is held. If the interviewee indicates that he has a bona fide claim to refugee status, then the individual must be taken to the United States to present his claim.
The interdiction program began in October, 1981. Since then, over 78 vessels carrying more than 1800 Haitians have been interdicted. The government states that it has interviewed all interdicted Haitians and none has presented a bona fide claim to refugee status. Accordingly, to date all interdictees have been returned to Haiti.
II.
Appellants sought two forms of relief: (1) an injunction permanently enjoining the Coast Guard and the INS from continuing the interdiction program, and (2) a judgment declaring the interdiction program illegal. See Amended Complaint for Declaratory and Injunctive Relief (“Complaint”) at 20, J.A. at 23. The complaint contains four counts. Count I asserts that the interdiction program violates the rights of the interdicted Haitians under the Refugee Act of 1980 (“Refugee Act”), Pub.L. No. 96-212, 94 Stat. 102, and the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1253(h) (1982). Complaint at 13-15, J.A. at 16-18. Count II states that the actions of “interdicting, detaining, and forcibly returning” the interdictees to Haiti “were taken by the defendants in excess of their constitutional and statutory authority,” and that these actions were taken “in violation of standards of due process defined by Congress in the Refugee Act and the Immigration and Nationality Act and therefore without
The government defendants moved to dismiss “on the grounds that [the district court] lack[ed] jurisdiction over the subject matter, that the case is not justiciable under the ‘political question’ doctrine, that plaintiffs lack standing, and that plaintiffs have failed to state a claim upon which relief can be granted.” J.A. at 26. The court granted the motion on the last ground, specifically rejecting the contention that the plaintiffs lacked standing to sue. See Haitian Refugee Center v. Gracey,
On the merits, the district court determined at the outset that the President possesses statutory and constitutional authority to conduct the interdiction program, citing 8 U.S.C. §§ 1182(f), 1185(a)(1) (1982) and the President’s inherent constitutional power over immigration.
Appellants appeal the dismissal of their complaint, renewing the claims they put forward below. The government seeks affirmance on several alternate grounds: (1) that the appellants lack standing, (2) that the claims present nonjusticiable “political questions,” or (3) that the district court correctly determined that the President possesses sufficient statutory and constitutional authority to conduct the interdiction program and that the program violates none of the laws cited by the appellants.
III.
It should be said at the outset that the law of standing remains uncertain and unsettled in some of its major branches. This opinion attempts to discern and apply themes that underlie the Supreme Court’s more recent decisions in this field. It may be that the doctrine enunciated creates discontinuities with older precedent or with other aspects of standing law. The resolution of such discontinuities, if such there be, is not a task for this court, however. The Supreme Court appears to be in the process of reworking the concept of standing and what it has done so far requires, or at least counsels, the result here reached.
Whether appellants satisfy the constitutional requirements for standing to challenge the interdiction program is considered first. Appellants’ ability to meet the prudential standing requirements is considered separately below.
To satisfy article Ill’s “case” or “controversy” requirement, a litigant must “ ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant’ and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’ ” Valley Forge Christian College v. Americans United for Separation of Church & State,
A.
1. The HRC has alleged an injury of the sort that satisfies article III. Its complaint alleges that the HRC’s “purpose, as set forth in its by-laws, is to promote the well-being of Haitian refugees through appropriate programs and activities, including legal representation of Haitian refugees, education regarding legal and civil rights, orientation, acculturation, and social and referral services.” Complaint at 10, J.A. at 13. The complaint also alleges that “[t]he HRC has been directly injured by the interdiction program in that its organizational purpose has been thwarted.” Complaint at 15, J.A. at 18. In Havens Realty Corp. v. Coleman,
The same conclusion cannot be reached with respect to appellants Edouard Franck and Carlo Dorsainville, two individual members of the HRC. They challenge the interdiction program on the same grounds, and
In Kleindienst v. Mandel,
2. The individual appellants’ alleged injury in this case is of a far different character. Appellants do not assert that they have been deprived of an opportunity to meet with a particular alien concerning a particular subject, or, for that matter, that they know, or even know of, any of the interdicted Haitians with whom they wish to associate. Rather, their claim is merely that they have been deprived of an opportunity to associate with some number of a class of unidentified aliens seeking to enter the country. In this regard, appellants' alleged injury is no different from that of any American who would enjoy meeting unidentified aliens of a particular nationality denied entry to the United States. It is unclear whether an injury so generalized and unspecific is adequate for standing purposes. The point need not be decided, however, for the individual appellants' alleged injury is insufficient for another reason.
These appellants, rather curiously, do not make a substantive claim that the interdiction program violates their first amendment rights. Instead, the complaint recites interference with HRC members’ “associational rights” only to establish injury. Appellants’ counsel confirmed this at oral argument. When asked whether appellants’ complaint contains a first amendment claim, he first replied “no” and then explained: “We argue an associational right as part of the basis for answering the claim that we lack standing.” Standing “often turns on the nature and source of the claim asserted.” Warth v. Seldin,
B.
Assuming therefore that the Center has established injury in fact, neither the HRC nor its members can establish the second and third article III requirements— that their alleged injuries fairly can be traced to the interdiction program and are likely to be redressed by a favorable decision.
When the Supreme Court has granted standing to a litigant who claims injury to his ability to act together with a third party not before the court, the litigant typically has challenged a statute that produced injury by placing him under a legal prohibition against engaging in conduct together with the third party. This legal prohibition causes an injury to the litigant sufficient to confer standing apart from any prediction about the third party’s actions. See, e.g., Craig v. Boren,
In the absence of a legal prohibition on his relationship with a third party, the litigant may establish article III causation only if the governmental action he complains of has purposefully interfered with that relationship. Without a purposeful interference, by statute or by executive action, the litigant would lack article III standing no matter how copious a factual showing of causation he might make. With a purposeful interference, the litigant may obtain standing if he is able to meet the high standard of “substantial probability” that his injury from that interference be traceable and redressable by the court. In this case, the interdiction program is not aimed at preventing Haitian refugees from dealing with the HRC. The prevention of that relationship is merely an unintended side effect of the program. Accordingly, the HRC lacks article III standing to challenge the interdiction program.
This conclusion and the conceptual framework for article III causation follow directly from the separation of powers principle central to the analysis of article III in the Supreme Court’s cases. No decision of the Supreme Court has been found that goes so far as to find article III caustion for injury to a litigant's relationship to a third party in the absence of a statute or executive action aimed at deterring the litigant from participating in the relationship.
The Court found the requisite causation lacking:
Here, by their own admission, realization of petitioners’ desire to live in Pen-field always has depended on the efforts and willingness of third parties to build low-and moderate-cost housing____ But the record is devoid of any indication that [the actual attempts by builders to construct moderate-cost housing in Pen-field], or other like projects, would have satisfied petitioners’ needs at prices they could afford, or that, were the court to remove the obstructions attributable to respondents, such relief would benefit petitioners.
Simon v. Eastern Kentucky Welfare Rights Organization,
The indigents alleged that the new ruling “encouraged” hospitals to deny non-emergency room services to indigents, the “implicit corollary” of which was that a grant of the “requested relief, resulting in a requirement that all hospitals serve indigents as a condition to favorable tax treatment, would ‘discourage’ hospitals from denying their services to” indigents.
It seems clear that the Supreme Court’s decisions about causation rest upon something more than mere estimates of probabilities. If Warth and Simon were viewed as pure analyses of causation, as that term is ordinarily used, those decisions would not be entirely persuasive. In Warth, the zoning ordinance challenged was designed precisely to prevent construction of the kind of housing petitioners wanted, which suggests rather strongly that, but for the ordinance, some would have been built. It seems highly probable, moreover, that builders will build what is demanded. In Simon, it seems implausible that the denial of favorable tax treatment would not have caused some hospitals to alter their practices in order to qualify. The entire theory of the IRS rulings is that they will modify behavior. Both cases, however, indicate that the causation analysis of challenges to governmental action was influenced by considerations related to the separation of powers. Thus, Warth begins by stating the principles of standing relevant to petitioners’ claims and notes “concern about the proper — and properly limited — role of the courts in a democratic society.”
That the separation of powers heavily influences the causation component of standing doctrine is made even clearer by
I had always thought our civilization has assumed that the threat of penal sanctions had something more than a “speculative” effect on a person’s conduct. This Court has long acted on that assumption in demanding that criminal laws be plainly and explicitly worded so that people will know what they mean and be in a position to conform their conduct to the mandates of law. Certainly Texas does not share the Court’s surprisingly novel view. It assumes that criminal sanctions are useful in coercing fathers to fulfill their support obligations to their legitimate children.
Id. at 621,
The Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another. Appellant does have an interest in the support of her child. But given the special status of criminal prosecutions in our system, we hold that appellant has made an insufficient showing of a direct nexus between the vindication of her interest and the enforcement of the State’s criminal laws.
Id. at 619,
This conclusion is reinforced by the Supreme Court’s more recent statement that the entire concept of article III standing rests on separation of powers, a statement made in the course of explaining the
These terms cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise.
The absence of precise definitions, however, as this Court’s extensive body of case law on standing illustrates, hardly leaves courts at sea in applying the law of standing____ In many cases the standing question can be answered chiefly by сomparing the allegations of the particular complaint to those made in prior standing cases. More important, the law of Art. Ill standing is built on a single basic idea — the idea of separation of powers. It is this fact which makes possible the gradual clarification of the law through judicial application.
Allen v. Wright,
That this is in fact the Supreme Court’s ultimate rationale for the line it has drawn is apparent from the reasons given by Justice O’Connor for rejecting a conclusion of causation in Allen v. Wright:
That conclusion would pave the way generally for suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal
“Carried to its logical end, [respondents’] approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the ‘power of the purse’; it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.” Laird v. Tatum, 408 U.S. [1, 15,92 S.Ct. 2318 , 2326,33 L.Ed.2d 154 (1972)].
counsel[ ] against recognizing standing in a case brought, not to enforce specific legal obligations whose violation works a direct harm, but to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties. The Constitution, after all, assigns to the Executivе Branch, and not to the Judicial Branch, the duty to “take Care that the Laws be faithfully executed.” U.S. Const., Art. II, § 3.
Id. at 761,
Conclusions about causation are thus at least as much a matter of constitutional principle as they are estimates of probabilities. With that in mind, as well as Allen v. Wright’s instruction to compare the allegations here with those made in prior standing cases, it is necessary next to consider whether appellants have established the requisite causation.
The injury claimed by the Center is its inability to counsel and represent the interdicted Haitians. The injury asserted by the individuals is denial of association. “[T]he question [is] whether [the injuries asserted by the HRC and its members] reasonably can be said to have resulted, in any concretely demonstrable way, from [appellees’] alleged constitutional and statutory infractions.” Warth,
Moreover, as has been noted, the Supreme Court’s cases demonstrate that statistical probabilities are neither the only nor the primary source of article III standing. Under these cases, appellants’ showing of causation fails. The allegations that, absent the interdiction program, some Haitian refugees would have dealt with appellants in the past or would do so in the future is just as “speculative” as was causation in Linda R.S., Warth, and Simon
Appellants therefore have failed to establish the requisite causation. But because the Supreme Court has never said explicitly that the separation of powers concept leads it to deny causation where it otherwise might be found if it were a purely factual question, it is appropriate also to examine the prudential principles that bear on appellants’ standing.
IV.
In addition to the article III minima, [standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked.
Allen v. Wright,
Appellants’ failure to satisfy the first and third of these prudential requirements provides an additional reason why appellants lack standing to challenge the interdiction program. We first consider the HRC’s attempt to assert the legal rights and interests of third parties and then turn to the zone of interests requirement.
With one arguable exception,
A litigant may be “allowed [third party] standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.” Warth v. Seldin,
By granting a litigant standing to invoke a third party’s rights, “the Court has found, in effect, that the constitutional or statutory provision in question implies a right of action in the [litigant].” Warth,
Third party standing therefore is appropriate only when the third party's rights protect that party’s relationship with the litigant. Thus, a litigant may not be given third party standing to assert constitutional rights of third parties that do not protect a relationship, such as procedural due process rights. A litigant therefore could never have standing to challenge a statute solely on the ground that it failed to provide due process to third parties not before the court.
The Supreme Court’s rejection of litigants’ attempts to raise the fourth amendment rights of third parties further illustrates this limit. In United States v. Payner,
Similarly, in California Bankers Ass’n v. Shultz,
Applying the principles established by the Supreme Court’s cases to the case at bar, we find two reasons why appellants lack third party standing to assert the rights and interests of the interdicted Haitians. First, appellants have not made the independent showing required for recognition of third party standing to raise the non-constitutional rights of third partiеs, because none of the laws that the interdiction program is alleged to violate are substantive protections of a relationship between Haitian aliens and appellants (or anyone else). The program is alleged primarily to violate such Haitians’ procedural rights. Second, even if Haitians could claim a substantive right to consult with appellants, the interdiction program was
It is significant that the typical Supreme Court case recognizing third party standing involves a challenge to a statute that interferes with the litigant’s protected relationship with third parties. Singleton v. Wulff,
There is a second reason why appellants lack third party standing in this case: the statutes appellants seek to enforce were not intended to give them a right of action on behalf of the interdicted Haitians. As in the case of constitutional guarantees, a statute may grant the litigant a right of action amounting to third party standing. As the Supreme Court has explained:
Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules____ [S]o long as [the art. Ill 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.
Worth,
This court’s decision in FAIC Securities, Inc. v. United States,
B.
The zone of interests test requires “that the plaintiff’s complaint fall within ‘the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ ” Valley Forge,
Though we read appellants’ complaint to assert only the legal rights and interests of the interdicted Haitians under the Refugee Act, the INA, the Protocol, the Declaration, the due process clause, and the extradition treaty and statute, the point is not crucial. Even if appellants alleged that the interdiction program also violates their own legal rights under these laws, appellants would lack standing to assert such rights since we conclude that appellants’ interests do not fall within the zones of interests of these laws.
Despite some initial confusion, it is now the settled law of this circuit that “the ‘zone’ test is supposed to focus on ‘the interest asserted by a party in the particular instance.’ ” American Friends Service Comm. v. Webster,
We are aware of the confusion surrounding the meaning of which interests are relevant to the zone test. Essentially, the confusion surrounds what exactly has to fall within the relevant zone: 1) the parties themselves; 2) the interests of the parties in general; or 3) the particular interest the parties are asserting in the litigation. It seems clear to us that the particular interests are the relevant interests in the context of an application of the zone standard.
Tax Analysts & Advocates v. Blumenthal,
Thus, to satisfy the zone of interests requirement, appellants must establish that their particular interests alleged to have been injured by the interdiction program fall within the respective zones of interests intended to be protected or regulated by the Refugee Act, the Immigration and Nationality Act, the fifth amendment, the Protocol, the Declaration, the extradition treaty, and the extradition statute.
The particular interest the HRC is asserting in this litigation is its interest in counseling and representing the interdicted Haitians; the members’ interest is in associating with the interdicted Haitians. It is these interests that appellants agree are injured by the interdiction program. See Complaint at 10, 15, J.A. at 13, 18.
Our cases establish “the appropriate test to be ... whether the complaining party has stated an interest which is arguable from the face of the statute.” Tax Analysts,
The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.
8 U.S.C. § 1158(a) (1982). It is not immediately apparent from this language that the zone of interests Congress intended the Refugee Act to protect or regulate includes an organization’s interest in representing, and its members’ interests in associating with, Haitian refugees. Rather, on its face, the statute appears to regulate or protect only the interest of aliens in applying for asylum.
Our recent decision in Action Alliance of Senior Citizens v. Heckler,
In addition, the interests at stake in this case satisfy the prudential standing requirement. The appellants claim that the challenged features of the HHS-specific regulations make it more difficult for the organizations to assist elderly persons to know, enjoy, and protect their rights under the [Age Discrimination Act]. Such interests as promotion of the knowledge, enjoyment, and protection of the rights created by a statute are securely within the “zone of interests” protected by that statute.
Id. at 939 (citations omitted). We have no reason to question the court’s conclusion that organizations’ interests in assisting the elderly to understand and assert their rights under the ADA fall within the zone of interests to be protected or regulated by the ADA. If, however, Action Alliance were read to mean that the zone of interests to be protected or regulated by every statute necessarily includes an organization’s (or, there being no reason to distinguish, an individual’s) interest in promoting the rights created by that statute, that dictum would not merely conflict with settled law but would render the entire concept of a zone of interest a nullity. If any person or organization interested in promoting knowledge, enjoyment, and protection of the rights created by a statute or by a constitutional provision has an interest that falls within the zone protected or regulated by the statute or constitutional provision, then the zone-of-interest test is not a test because it excludes nothing. Indeed, such a reading would mean that this court ignores the Supreme Court’s decisions that persons who have only a “generalized grievance” about the way in which government operates do not have standing. Schlesinger v. Reservists Comm, to Stop the War,
We have already concluded that nothing on the face of the Refugee Act indicates a congressional intent to protect or regulate the interests asserted by appellants. The legislative history of the Act, however, does contain evidence that some members of Congress were aware of the interests of “voluntary resettlement agencies” like the HRC and that Congress recognized that United States policy toward refugees has an impact on those interests. For example, the House Report states: “Refugee resettlement in this country has traditionally been carried out by private voluntary resettlement agencies____ The Committee recognizes that the efforts of these agencies are vital to successful refugee resettlement.” H.R.Rep. No. 608, 96th Cong., 1st Sess. 22 (1979). Senator Kennedy, speaking in favor of the Senate bill, observed that one consequence of the proposed legislation would be to save the volunteer agencies money since they would be “better able to plan and prepare for refugee arrivals. They are [now] plagued by the uncertain, ad hoc character of the current program.” 125 Cong.Rec. 23,233 (1979). Representative Holtzman, a House sponsor of the bill, also recognized that the legislation would have a beneficial impact on the interests of volunteer agencies: “If this legislation is enacted, for the first time there will be some predictability to our Govеrnment’s response to refugee problems that exist around the world. The Congress, the executive_ branch, and the voluntary agencies will, as a result, be able to engage in long-term planning____” Refugee Act of 1979: Hearings on H. 2816 Before the Subcomm. on Immigration, Refugees, and International Law of the House Comm, on the Judiciary, 96th Cong., 1st Sess. 1 (1979).
These remarks make it arguable that the interests of volunteer organizations are within the zone of interests protected by the Refugee Act
Every [statute] generates consequences and various forms of impact on a wide range of valid interests held by a diverse range of parties____ But the concepts of consequence and impact are not the proper guideposts to define the relevant zone of interests
We cannot define the zone of interests as being the equivalent in every case of the “zone of impact” or the “zone of consequences.”
The situation here is analogous to one in which members of Congress, during consideration of a bail reform statute, remark that clarification would enable lawyers to plan their courtroom strategies with more certainty. No one would suppose that such remarks brought lawyers within the zone of interests regulated or protected by the statute so that lawyers themselves would have standing. But we need not decide
We next consider whether appellants’ interests fall within the zone of interests to be protected or regulated by the INA and conclude that they do not. The deportation provision provides in pertinent part:
The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(19) of this Title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1253(h) (1982). On its face, this language evinces no intent to protect or regulate the HRC’s interest in counseling, or its members’ interests in associating with, interdicted Haitians. Appellants also point to the provisions of the INA establishing procedures for the exclusion of aliens. See 8 U.S.C. § 1226 (1982). But again, those provisions cannot be read fairly to protect or regulate the interests asserted by appellants in this case.
The provision of the INA regarding the right to counsel is subject to the same analysis. The provision states:
In any exclusion or deportation proceedings before a special inquiry officer and in any appeal proceedings before the Attorney General from any such exclusion or deportation proceedings, the person concerned shall have the privilege of being represented (at no exрense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.
8 U.S.C. § 1362 (1982). The zone of interests of this provision, like the others, does not appear to protect or regulate the individual appellants’ interest in associating with Haitian refugees in general. While the provision creates a right of representation for aliens to be represented in exclusion or deportation proceedings, it seems impossible that the interest of the HRC in being the representative is also within the provision’s zone of interests. If that were so, any lawyer who wished to represent aliens, but who had no client, would, so far as the zone of interests test is concerned, have standing to enforce this provision. Neither party has pointed to anything in the legislative history of the INA to clarify these matters further.
We need spend little time examining whether appellants’ interests fall within the zone of interests to be protected or regulated by the fifth amendment. Since the complaint simply equates due process with the procedural protections of the Refugee Act and the INA, see Complaint at 16, J.A. at 19, our findings concerning the zones of interests protected or regulated by those statutes require the same conclusion concerning the zone of interests to be protected or regulated by the fifth amendment, as invoked by appellants in this case.
Nor need we be detained by the Protocol, a treaty signed by the United States in 1968. Article 33 of that document provides:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.
19 U.S.T. 6223, T.I.A.S. No. 6577. The district court held that the Protocol was not self-executing, but had been partially executed through the Refugee Act. We need not decide the point, however, because the result is not relevant to appellants’ standing in this case. If the Protocol is self-executing, its language makes plain that it was not intended to regulate or protect the interests asserted by appellants. If, on the other hand, the Protocol is not self-execu
The complaint alleges that the interdiction program also runs afoul of the United States’ Extradition Treaty with Haiti, 34 Stat. 2858, and the extradition statute, 18 U.S.C. § 3181 et seq. (1982). We have examined both of these laws and think it sufficient to say that there is absolutely no indication that either was intended to protect or regulate the interests asserted by appellants in this case.
It is plain that the interests asserted by the individual appellants in this case do not fall within the zones of interests to be protected or regulated by the laws under which they seek to challenge the interdiction program. Appellant HRC’s interests also do not fall within the zone of interest of any provision cited.
V.
Though the HRC alleged injury in fact, neither the Center nor its members established the requisite causation. Had the Center established causation, it might have had standing to challenge the interdiction program as ultra vires the President’s statutory and constitutionаl authority. In no case, however, could the Center be given standing to assert the legal rights and interests of the interdicted Haitians under the laws listed in the complaint since the due process clause does not protect Haitians’ interaction with appellants and the other laws fail to grant the Center private rights of action to assert such rights. Moreover, appellants lack standing to assert rights they themselves might claim under the laws listed in the complaint since their interests fall outside the zones of interests of those laws.
The district court’s decision to grant the defendants’ motion to dismiss is hereby
Affirmed.
Notes
. The judgment of this court is that the judgment of the district court is affirmed. Since the only rationale for reaching that result upon which two members of the court agree is that expressed in Part III A 2, concluding that the individual appellants lack article III standing, and Part IV of this opinion, concluding that all appellants lack prudential standing, these parts are the opinion of the court.
. At least one circuit has held that an organization must prove a drain on its resources in order to "come within the Havens formula.” See Cleburne Living Center v. City of Cleburne,
Though the HRC's alleged injury thus appears to meet the article III requirement under Havens, the injury nonetheless may be a "generalized grievance” insufficient to support the Center’s standing under the "prudential principles that bear on the question of standing.” See Valley Forge,
. Whether the HRC possesses standing as the representative of its members under Hunt v. Washington State Apple Advertising Comm'n,
. Singleton v. Wulff,
. Accord Mideast Systems & China Civil Constr. Saipan Joint Venture v. Model,
. Accord Allen v. Wright,
The Court found the line of causation between the IRS guidelines and desegregation of the children’s schools to be "attenuated at best” since the alleged injury is "highly indirect and 'results from the independent action of some third party not before the court.’ ”
[I]t is entirely speculative ... whether withdrawal of a tax exemption from any particular school would lead the school to change its policies. It is just as speculative whether any given parent of a child attending such a private school would decide to transfer the child to public school as a result of any changes in educational or financial policy made by the private school once it was threatened with loss of tax-exempt status.
Id.
. The term "separation of powers," it must be understood, is used here as a shorthand for what Warth calls "the proper — and properly limited — role of the courts in a democratic society,"
. Judge Edwards objects to this formulation because he believes it inconsistent with Supreme Court precedent. He notes that in Craig v. Boren,
. Nor can the redressability requirement be met because the relief sought, if granted, would at least remove an "absolute barrier" to the alleviation of appellants’ alleged injuries. We considered and rejected just this claim in Greater Tampa Chamber of Commerce v. Goldschmidt,
. The suggestion in Warth,
. Though it is not clear from their complaint, appellants’ claim, that the interdiction program exceeds the President’s statutory and constitutional authority, may assert an alleged legal right of their own — the right not to be injured by ultra vires executive action. See Air Reduction Co. v. Hickel,
. Viewing third party standing as implied by specific constitutional guarantees readily explains Cheaney v. Indiana,
This view of third party standing also clarifies the duty of state courts when faced with claims of third party standing. Professor Monaghan rightly suggests that "[i]f no affirmative federal law drives the doctrine, [then] a state court’s refusal to permit such a third party standing challenge [would be] an adequate and independent state ground.” Monaghan, Third Party Standing, 84 Colum.L.Rev. 277, 294 (1984) (footnote omitted). If, on the other hand, we are correct that third party standing is implied by substantive constitutional guarantees, then the supremacy clause obligates the state courts to recognize such standing. For example, if a case like Doe v. Bolton arose in state court, we feel confident that the Supreme Court would not readily accept a state court’s holding that, "whatever the rule in the federal courts, our established doctrine is that the physician may assert only his own rights and not the rights of his patients." Id. at 293. Conversely, the Supreme Court may review a case from a state court although standing would have been lacking under the Court’s prudential rules if the case had been brought in a federal district court. See City of Revere v. Massachusetts Gen. Hosp.,
. We do not mean to say that the result in FAIC Securities was incorrect. The court’s finding that the brokers satisfied article III standing requirements was sufficient to establish the broker’s standing. Since the brokers were challenging the regulations as ultra vires the FDIA and the NHA, they were not required to establish that the interest they asserted fell within the zones of interests of those statutes. The zone of interests requirement thus was either inapposite or satisfied. See infra note 14. Nor was there any independent need for the brokers to establish third party standing since the legal right they asserted — the right not to be injured by unauthorized agency action — was their own. See Air Reduction Co. v. Hickel,
. Appellants need not, however, show that their interests fall within the zones of interests of the constitutional and statutory powers invoked by the President in order to establish their standing to challenge the interdiction program as ultra vires. Otherwise, a meritorious litigant, injured by ultra vires action, would seldom have standing to sue since the litigant’s interest normally will not fall within the zone of interests of the very statutory or constitutional provision that he claims does not authorize action concerning that interest. For example, were a case like Youngstown Sheet & Tube Co. v. Sawyer,
It may be that a particular constitutional or statutory provision was intended to protect persons like the litigant by limiting the authority conferred. If so, the litigant’s interest may be said to fall within the zone protected by the limitation. Alternatively, it may be that the zone of interests requirement is satisfied because the litigant’s challenge is best understood as a claim that ultra vires governmental action that injures him violates the due process clause.
. Though a litigant who possesses third party standing may be able to satisfy the zone of interests requirement by reference to the interests of third parties, there is no reason to suppose that a litigant who satisfies the zone of interest requirement by reference to his own interest also possesses third party standing. The latter is a separate inquiry. The only litigants who properly may assert the legal rights and interests of third parties are those who fall within one of the exceptions to the rule against third party standing, a subject taken up at Section IV.A., supra. That a litigant's interest falls within the relevant zone of interests is simply irrelevant to that inquiry. On the other hand, the reason that possession of third party standing may assist a litigant to satisfy the zone of interests requirement is because a litigant with such standing may assert the legal rights and interests of third parties and the third parties’ interests may fall within the relevant zones of interests.
. This is insufficient under the Supreme Court’s statement of the rule. Though the Court initially stated the test as whether the plaintiffs interest “arguably” falls within the relevant zone of interests, see Association of Data Processing Service Orgs.,
. We do not consider whether appellants' interests fall within the zone of interests to be protected or regulated by the Universal Declaration of Human Rights because it is merely a nonbinding resolution, not a treaty, adopted by the United Nations General Assembly in 1948. See G.A.Res. 217, 3 U.N.GAOR, U.N.Doc. 1/777 (1948).
Concurrence Opinion
concurring:
As the Supreme Court recently acknowledged, “the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition,” and which “cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise.” Allen v. Wright,
This process will at times entail the extrapolation of evolving constitutional principles for application to novel situations. Inevitably, the occasion will arise when judges are required to go beyond explicit Supreme Court precedent, as Judge Bork acknowledges to be the case with his examination of causation. While I am fully in accord with his conclusion that the Haitian Refugee Center has failed to demonstrate article III standing, I believe an alternative analysis of the causation requirement is more readily inferred from Supreme Court precedent. Accordingly, I will limit my discussion to the constitutional element of the HRC’s standing. I fully concur in Judge Bork’s analysis of the individual appellants’ lack of article III standing, and in his analysis of all appellants’ lack of standing under prudential principles.
I.
I begin with the beginning; namely, the HRC’s claim of injury. In its complaint,
The appellants before us devote themselves to the service of senior citizens and rest their claims on programmatic concerns, not on wholly speculative or purely ideological interests in the agency’s action. (Citations omitted.) Their complaint identifies concrete organizational interests detrimentally affected by the particular HHS regulatory disposi-. tions they challenge____
AASC pleads the same type of injury as the plaintiffs in Havens Realty: the challenged regulations deny the AASC organizations access to information and avenues of redress they wish to use in their routine information-dispensing, counseling, and referral activities. Unlike the “mere ‘interest in a problem’ ” or ideological injury in Sierra Club [v. Morton], 405 U.S. [727] at 735, 739, 92 S.Ct. [1361] at 1366, 1368 [31 L.Ed.2d 636 (1972) ], the AASC organizations have alleged inhibition of their daily operations, an injury both concrete and specific to the work in which they are engaged.
Id. at 937-38.
This language echoes the principle laid down in Warth v. Seldin, to wit, that an association “may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.”
In the instant case, the HRC does not assert that appellees have interfered with its organizational ability to provide Haitians with programs and activities of the kind described in its complaint. Therefore, because of the nature of the HRC’s alleged injury, this case is clearly distinguishable from Havens Realty Corp. v. Coleman,
By way of contrast, the HRC makes no claim that either its organizational activities or resources have been adversely affected by the interdiction program. It is able to pursue its organizational purpose by providing extensive services, “including legal representation of Haitian refugees, education regarding legal and civil rights, orientation, acculturation, and social and
An examination of the allegations in the complaint reveals nothing concrete to show a causal relationship between the injury claimed and the governmental action complained of. It is not as if we were dealing with a restaurant that had been cut off by a municipal roadblock from access to a portion of its potential clientele. As restaurants are organized in order to earn profits from the sale of meals and as each additional client adds to the enterprise’s revenues, the owner clearly would have standing to challenge the municipality’s action because of its impact on those revenues. The Center, however, was organized for a different purpose, and nothing in its complaint suggests that that purpose has been compromised by the President’s interdiction order. Indeed, the HRC has not alleged that a single one of its activities has been affected by a putative decrease in the number of Haitian refugees reaching U.S. territory; a failure which suggests that its concern for the plight of Haitians intercepted on the high seas comes far closer to reflecting an abstract social interest than it does the kind of concrete associational interest addressed in Warth and Action Alliance of Senior Citizens.
In fact, the alleged injury is sufficiently insulated from thе action alleged to have inflicted it that the claim may well lie on the far side of the line that divides constitutionally cognizable injury from abstraction. The Supreme Court’s holding in Allen v. Wright is in point. In that case, the Court considered an action brought by a group of black parents and children seeking to enjoin Internal Revenue Service practices that allegedly granted tax-exempt status to racially discriminatory private schools. The plaintiffs alleged two injuries, the first of which may be described as a claim of “stigmatic injury” to blacks resulting from government discrimination on the basis of race.
While the Court acknowledged that “this sort of non-economic injury is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing,” it cautioned that “such injury accords a basis for standing only to ‘those persons who are personally denied equal treatment’ by the challenged discriminatory conduct.” Id. at 755,
In the instant case, the claim of organizational injury may be tangible enough to meet the injury prong of the constitutional test. Yet it is alleged almost as an abstraction, because the complaint omits allegation of any direct link, causal or otherwise, between the asserted harm and the challenged actions. Thus there may be grounds to question whether the Center’s allegations meet the threshold constitutional requirement of standing despite the minimalist approach to injury to be found in United States v. SCRAP,
II.
Even conceding injury, the Center must still meet the test of causation. In this case, the requisite showing of cause and effect will not be satisfied by speculation as to the statistical probability that one or more of the Haitian refugees intercepted by the Coast Guard might otherwise have appeared at the Center’s door in Florida. Rather, it requires a demonstration that a
In support of that claim, the plaintiffs asserted that the grant of tax-exempt status to segregated private academies impeded the desegregation of public schools to the detriment of their children, who were thereby denied the advantages of an integrated education. The Supreme Court agreed that the alleged injury was judicially cognizable.
The diminished ability of respondents’ children to receive a desegregated education would be fairly traceable to unlawful IRS grants of tax exemptions only if there were enough racially discriminatory private schools receiving tax exemptions in respondents’ communities for withdrawal of those exemptions to make an appreciable difference in public school integration. Respondents have made no such allegation.
Id. at 758,
In the case before us, the HRC has failed to indicate how the interdiction program would make an appreciable difference in its аbility to serve the Haitian refugee community. One searches the complaint in vain for a description of even a single program within the scope of its organizational purpose with which the interdiction program is ostensibly interfering. In the absence of more concrete allegations, I can discern no chain of causation between the interdiction program and a harm to the HRC’s “organizational purpose,” nothing to suggest that the HRC would be able to prove that any of the activities listed in its complaint has been appreciably affected by the program. Therefore I cannot conclude that the HRC has satisfied the causation requirement of article III.
This analysis is faithful to the Court’s admonition to examine the complaint’s allegations to determine the existence of a justiciable controversy and, more concretely, is consistent with the Court’s reasoning in Warth v. Seldin,
Petitioners must allege facts from which it reasonably could be inferred that, absent the respondents’ restrictive zoning practices, there is a substantia] probability that they would have been able to purchase or lease in Penfield____ We find the record devoid of the necessary allegations____ [N]one of these petitioners has a present interest in any Penfield property; none is himself subject to the ordinance’s strictures; and none has ever been denied a variance or permit by respondent officials. Instead, petitioners claim that respondents’ enforcement of the ordinance against third parties — developers, builders, and the like — has had the consequence of precluding the construction of housing suitable to their needs at prices they might be able to afford. The fact that the harm to petitioners may have resulted indirectly does not in itself preclude standing____ But it may make it substantially more difficult to meet the minimum requirement of Art. Ill: to establish that, in fact, the asserted injury was the consequence of the defendants’ actions, or that prospective relief will remove the harm.
Id. at 504-05,
III.
As this analysis falls well within the limits of recent Supreme Court precedent, I feel it represents a surer basis for affirming the Center’s lack of article III standing than does Judge Bork’s, relying as it does on inferences to be drawn from recent Supreme Court cases rather than on their explicit holdings. As stated at the outset, I concur in the other elements of Judge Bork’s analysis of appellants’ standing.
At the inception of the interdiction program, Haitians were entering the United States illegally at an estimated rate of up to 20,000 a year. Coast Guard Oversight — Part 2: Hearings on Military Readiness and International Programs Before the Subcomm. on Coast Guard and Navigation of the House Comm, on Merchant Marine and Fisheries, 97th Cong., 1st Sess. 13 (1981) (statement of David Hiller, Special Assistant to the Attorney General, Dept, of Justice).
Concurrence Opinion
concurring in part and dissenting in part:
In this appeal the Haitian Refugee Center, Inc. (“the HRC”) and two of its members
The Government defendants, the United States Coast Guard (“the Coast Guard”) and the Immigration and Naturalization Service (“INS”), urged the District Court to dismiss this action on the grounds that the appellants lacked standing, that the case presented a nonjusticiable political question, and that the complaint failed to state a claim upon which relief could be granted. The District Court held that the appellants had standing and that the case was justiciable, but thereafter dismissed the entire complaint for failure to state a claim. We affirm, albeit for reasons somewhat different from those enunciated by the District Court.
It is clear that the HRC has standing in its organizational capacity to bring this lawsuit on behalf of the Haitians who were forcibly returned to Haiti pursuant to the Government’s interdiction program. However, while neither standing nor political question bars judicial consideration of this case, we are nonetheless constrained to conclude that the HRS has failed to state a claim upon which relief may be granted. In particular, it must be concluded that, although in recent years, Congress has extended certain statutory rights to aliens, the Haitians interdicted under the program at issue in this case are not protected by the legal provisions cited by the HRC.
At first blush, one cannot but be moved by the plight of those Haitians whose desperate situation in their homeland led them to risk their lives at sea in small boats in search of asylum in the United States. But our sympathies can provide no road map to judgment in this case. The simple reality here is that the appellants’ complaint must fail because it can find no support in the cited laws or in the Constitution of the United States, nor in any principles of international law that are cognizable in this court.
I. Background
In their complaint, the appellants allege that “the human rights situation in Haiti [is] ... very grave” and that “hundreds of thousands of Haitians have fled ... to escape ... political persecution and brutality.”
A. The Creation of the Interdiction Program
In 1981, President Reagan formally found that the uncontrolled migration of visaless aliens to this country was “a serious national problem detrimental to the interests of the United States.”
The Executive Order also spoke specifically to the unique situation of those individuals who would qualify as refugees under our immigration laws.
B. The Arrangement with Haiti
On September 23, 1981, Haiti and the United States entered into a cooperative arrangement to prevent the illegal migration of visaless aliens to the United States.
Finally, within this arrangement, as in the Executive Order, the position of the refugee was singled out for differential treatment. The agreement states that it is “understood that ... the United States Government does not intend to return to Haiti any Haitian migrants whom the United States authorities determine to qualify for refugee status.”
C. The INS Implementation
To effect the cooperative arrangement with Haiti, INS officers were assigned to Coast Guard vessels involved in interdiction operations. The INS also issued informal guidelines which govern its conduct during interdiction engagements.
The interdiction program began in October, 1981. Although more than 1,800 Haitians have been interdicted by the Coast Guard, not one, according to the Government, has demonstrated that a bona fide claim to refugee status might exist.
D. Course of Proceedings
The original complaint in this case was filed on July 24, 1984; it was amended on September 17,1984. The Government filed a motion to dismiss and a motion for summary judgment on the latter date. A cross-motion for summary judgment was filed by the plaintiffs on October 1, 1984. Oral argument was heard in the District Court and, on January 10, 1985, the defendants’ motion to dismiss was granted. This appeal followed.
II. Analysis
A. Standing
As a threshold matter, the Government has argued that the appellants in this case lack standing. In my view, this contention is meritless because the HRC plainly has standing in its organizational capacity.
The standing inquiry involves both constitutional and prudential limitations on the exercise of federal court jurisdiction. At an “irreducible minimum,” Article III of
The Supreme Court has also articulated certain prudential requirements that must be satisfied. First, the plaintiff “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”
In the instant case, the Government contends that the HRC has failed to demonstrate any injury-in-fact and, in addition, that it has failed to satisfy the prudential requirements of standing. As will be demonstrated in detail below, these contentions are without merit.
1. The Constitutional Requirements of Organizational Standing
The Supreme Court has recognized that “organizations are entitled to sue on their own behalf for injuries they have sustained.”
The leading case in this area is Havens Realty Corp. v. Coleman. In that case, the Housing Opportunities Made Equal (“HOME”) organization brought an action against a real estate firm under the Fair Housing Act of 1968, alleging that the firm had engaged in racial steering practices and furnished false information about the availability of housing to Blacks. HOME claimed that these practices “frustrated the organization’s counseling and referral services, with a consequent drain on re
There can be no question that, like HOME in Havens, the HRC has alleged injury-in-fact. The HRC is a non-profit membership corporation whose purpose, as set forth in its by-laws,
The HRC, like HOME, has sufficiently alleged frustration of its counseling and referral efforts and its legal representation of Haitian refugees; the interdiction program impairs its ability to carry out its central or core functions and activities. In its complaint, the HRC charges that, because of the interdiction program, “Haitians on the intercepted vessels are returned to Haiti within a matter of hours to face persecution,” with no adequate counseling or representation from the HRC.
[t]hat the alleged injury results from the organization’s noneconomic interests in [promoting the well-being of Haitian refugees] does not affect the nature of the injury suffered, Arlington Heights v. Metropolitan Housing Dev. Corp.,429 U.S. 252 , 263 [97 S.Ct. 555 , 562,50 L.Ed.2d 450 ] (1977), and accordingly does not deprive the organization of standing.41
In light of the foregoing facts, and in consideration of INS’ use of the HRC as a referral organization, the agency’s argument that injury to the HRC from the interdiction program is purely speculative appears rather disingenuous.
The Government makes a futile effort to find some support from the recent Fifth Circuit decision in Cleburne Living Center v. City of Cleburne, Tex.
In addition to the decision in Cleburne, in which the Government can find no solace, a consistent line of authority in this and other circuits buttresses the conclusion that the HRC has standing. Most recently, in Action Alliance for Senior Citizens v. Heckler,
The appellants before us devote themselves to the service of senior citizens and rest their claims on programmatic concerns, not on wholly speculative or purely ideological interests in the agency’s action. Their complaint identifies concrete organizational interests detrimentally affected by the particular HHS regulatory dispositions they challenge.45
Relying on Havens, the Action Alliance court concluded that “the challenged regulations deny the ... organizations access to information and avenues of redress they wish to use in their routine information-dispensing, counseling and referral activities. Unlike the mere ‘interest in a problem’ or ideological injury in Sierra Club, the ... organizations have alleged inhibition of their daily operations, an injury both concrete and specific to the work in which they are engaged.”
There can be no doubt that such injury is fairly traceable to the appellees’ actions and would be cured by their cessation. The HRC has demonstrated an existing, and admittedly well-established, pattern of Haitians seeking its services. This pattern was cut off solely because of the interdiction program. No speculation is needed to say that the interdiction cut off the flow of referrals and that the relief sought would restore the flow. The only assumption required is that what happened before will continue to happen in the future in much the same way. This is not “speculative” under the case law.
The majority seeks to abandon the Supreme Court’s consistently articulated test of causation in favor of an entirely new test applicable only to cases such as this one. In avoiding an obvious showing of standing in this case, the majority opinion suggests that Supreme Court precedent dictates that, “[i]n the absence of a legal prohibition on his relationship with a third party, the litigant may establish article III causation only if the governmental action he complains of has purposefully interfered with that relationship.” Then, the majority suggests that, even after showing purposeful interference, the litigant would only satisfy Article III if it could show a “substantial probability” that its injury is traceable to the action and redressible by the court. This is a quite extraordinary notion of “causation,” both in the novelty of the majority’s test and in its disregard of Supreme Court precedent.
In asserting this new test of causation, the majority cites Warth, Simon, Linda R.S. v. Richard D.,
In the absence of any precedent to support its new test of causation, the majority looks to considerations of separation of powers. As best as I can understand the point, the majority is concerned that, since government actions are widespread and pervasive, they can have many effects on daily life. So, government farm subsidies could affect not only the price of butter, but, indirectly the price of guns, to use a classic example. However, the majority’s solution is to wear a belt and suspenders. There simply is no evidence that the traditional test of causation is not sufficient to weed out insubstantial “effect” cases.
In any event, it is plain that even the majority recognizes that “the Supreme Court has never said explicitly that the separation of powers concept leads it to deny causation where it otherwise might be found if it were a purely factual question.” This admission alone shows that this novel view of standing cannot be adopted as the law, especially given the Supreme Court’s clear and consistent articulation of a different test of causation.
In this case, the HRC has alleged an injury as a result of violations of federal laws. The court must reach these issues in order to afford the plaintiff any relief to which it may be entitled upon the presentation of a meritorious claim. Article III requires no more from a plaintiff. The HRC has established Article III standing in this case.
2. Prudential Requirements
The Government’s arguments that the HRC’s claims do not meet the prudential requirements for standing center around the zone of interests test.
a. Congruence of Statutory Purpose and Organizational Activities and Goals
The HRC’s interests are squarely within the zone of interests to be protected or regulated by the statutory and constitutional provisions it relies on in the present case. This court has recently noted that “[t]he zone of interests adequate to sustain judicial review is particularly broad in suits to compel federal agency compliance with law, since Congress itself has pared back traditional prudential limitations ... by the Administrative Procedure Act____”
The Government, however, argues that the HRC is not within the zone of interests of the international obligations, statutes and constitutional provisions relied on
It is important to recall that the Supreme Court introduced the “zone of interests” test in a “trend ... toward enlargement of the class of people who may protest administrative action.”
Under the law of this circuit, it is clear that this court consistently has held that the zone of interests test is satisfied if there is a congruence of statutory (or other legal) purpose and organizational activities and goals. Most recently, we confirmed this view in Action Alliance of Senior Citizens, where it was held that:
The appellants claim that the challenged features of the HHS-specific regulations make it more difficult for the organizations to assist elderly persons to know, enjoy, and protect their rights under the [Age Discrimination Act]____ Such interests as promotion of the knowledge, enjoyment, and protection of the rights created by a statute are securely within the “zone of interests” protected by that statute.67
Not only is Action Alliance consistent with precedent from other circuits, but the Government has also failed to cite a single case to the contrary. An example of a case supporting standing in this matter is Gran-ville House, in which the Eighth Circuit held that a non-profit operator of a chemical dependency treatment center was within the zone of interests of the Medicaid statute despite the fact that the Medicaid statute was passed to benefit patients and not providers of care.
This nexus between Granville’s purpose and the purpose of the Medicaid statute, which is to provide Medicaid assistance to the needy, combined with Granville’s economic injury, is sufficient, we believe, to confer standing in this case.69
Here., too, the combination of direct injury to organizational activities and a nexus between the purpose of the legal standards and the activities and goals of the organization in question suffice to confer standing on the HRC.
No one can dispute that the HRC’s organizational activities and purposes revolve around precisely those interests implicated by the laws here at issue. On this basis alone, the zone requirement has been met; but we need not rest here, for there is more. The legislative history of certain of the provisions cited demonstrates clearly that the organizational interests in question were the express subject of congressional concern.
b. Legislative History
As noted above, the zone test is satisfied by the existence of some slight indicia that Congress intended to protect the interest in question. In applying the test this court may examine both the relevant statutory provisions and their legislative history.
First, and most importantly, the legislative history of the Refugee Act of 1980 is clear. Congress explicitly recognized the interest of voluntary and nonprofit agencies in the refugee admissions process of the Act. Planning for, processing, and resettling refugees, Congress found, had been exceedingly difficult for both governmental and nongovernmental assistance groups due to the confused state of the law on admissions policy. The need for a consistent approach to refugee admissions and the importance of such an approach to the voluntary agencies is a major theme in the legislative history of the Act. The House Report reveals this significant legislative goal:
To create a truly comprehensive approach to refugees, the committee has determined that any new statute must consolidate admissions and resettlement policies. Among the major consequences of our piecemeal approach to refugee crises has been the lack of coordination*831 of resettlement assistance programs with refugee admissions.74
The Senate Report, too, noted with disapproval the “old” immigration policy of piecemeal admissions and cited the role of voluntary agencies when highlighting the desirability of a consistent policy, saying:
[s]uch a national refugee policy is now clearly lacking, and there is too little coordination between the various branches of Government involved with refugee programs, and with the voluntary resettlement agencies.75
Senator Kennedy, a sponsor of the Senate bill, spoke to this same concern on the Senate floor:
Another example [where orderly immigration policy would have saved money], referred to by the voluntary agencies in their testimony in support of the bills is the savings that could be made if the agencies were better able to plan and prepare for refugee arrivals. They are plagued by the uncertain, ad hoc character of the current program.76
Representative Holtzman, sponsoring member of the House bill, revealed a similar purpose in her remarks opening the House hearings:
If this legislation is enacted, for the first time there will be some predictability to our Government’s response to refugee problems that exist around the world. The Congress, the executive branch, and the voluntary agencies will, as a result, be able to engage in long-term planning, and countries of first asylum will know what to expect in terms of resеttlement offers from the United States.77
As the House Report stated, “[r]efugee resettlement in this country has traditionally been carried out by private voluntary resettlement agencies____ The Congress recognizes that the efforts of these agencies are vital to successful refugee resettlement.”
The HRC “is funded through contributions from voluntary agencies,”
The role of the voluntary agencies in the formulation of the Refugee Act was also expressly noted by Congress.
Since my first days in the Senate — and all during the period I was chairman of the former Subcommittee on Refugees — I have known of their important work, and have sought their counsel as to how we could better meet the needs of refugees. In the drafting of the legislation before us, I also sought their views, and we look forward this morning to their testimony.83
Even a cursory review of the legislative history in both Houses reveals the extent of congressional dependence on the views of the voluntary agencies and nonprofit groups in the creation of the Refugee Act.
There are also explicit references to the work and concerns of the voluntary agencies in the legislative history of United States' adherence to the United Nations Protocol on the Status of Refugees.
In short, there is little doubt from the legislative history that the HRC’s claims fall within the applicable zones of interest; the “slight indicia” test is abundantly satisfied by the organizational plaintiff in the instant case.
Although (or, possibly, because) the Government is entirely unsuccessful in its effort to challenge standing under the zone of interests test, it advances an alternative argument that the HRC has improperly sought to rest its claim on the legal rights and interests of the Haitian interdictees. This argument misconceives the separate jurisprudence surrounding organizational standing. It has been noted that the relationship between the zone of interests test and third-party standing is “quite direct: the plaintiff who is outside the zоne of protected interests can be seen as advancing the rights of those who are within the zone.”
It follows that, in the context of organizational standing, the Government may not rely on Warth v. Seldin, a case in which the Supreme Court refused to award standing to an organization in its representational capacity because its members had asserted no palpable injury to themselves. In Warth, Metro-Act, one of the plaintiff organizations, alleged that 9% of its membership resided in Penfield and had been indirectly harmed by the exclusion of low and moderate income families from the town. The Court discussed Metro-Act’s standing as a representative of its members in regard to this injury; it did not consider its organizational standing. Standing in a representational capacity was denied because none of Metro-Act’s members alleged a palpable injury to themselves or a deprivation of their own constitutional rights. Here, in contrast, under well-accepted standards, the organization has pleaded an injury to its own interests— interests that themselves are within the zones of interest of the legal standards relied upon. The Supreme Court has made it clear that prudential concerns should not be utilized to deny standing to a plaintiff
c. Jus Tertii
Finally, on the facts of this case, the HRC has standing to assert the rights of third parties, namely the interdictees. Having satisfied the constitutional requirements for standing in its own right, the HRC may then utilize the principles of jus tertii and rely upon the interests of third parties — the interdictees — to fulfill the zone of interests requirement. In other words, it is assumed without any serious doubt in this case that the interdictees’ interests fall within the zone of interests of the applicable laws at issue. Therefore, if the HRC may assert the interests of the interdictees, in addition to its own organizational interests, then the interdictees’ interests may be relied upon by the HRC to satisfy the prudential zone of interests requirement. This so-called jus tertii analysis is fully supported by recent decisions of the Supreme Court and the case law of this circuit.
Generally, it is understood that a litigant “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”
there are situations where competing considerations outweigh any prudential rationale against third-party standing, and that this Court has relaxed the prudential-standing limitation when such concerns are present. Where practical obstacles prevent a party from asserting rights on behalf of itself, for example, the Court has recognized the doctrine of jus tertii standing. In such a situation, the Court considers whether the third party has sufficient injury-in-fact to satisfy the Art. Ill case-or-controversy requirement, and whether, as a prudential matter, the third party can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal.97
As shown above, the HRC has demonstrated the existence of injury-in-fact; there are numerous “practical obstacles” to the interdictees’ presentation of their own claims; the HRC’s interests coincide with those of the interdictees; and the HRC’s historical zeal on behalf of and assistance to Haitian
The significance of jus tertii standing in a case of this sort was recently highlighted in a thorough and thoughtful analysis by former Judge (and now Justice) Scalia in FAIC Securities.
Evidently (there is no other explanation for the case), the third parties’ interests could be relied upon to satisfy the “zone of interests” requirement. Later cases to the same effect are Carey v. Population Services International,431 U.S. 678 [97 S.Ct. 2010 ,52 L.Ed.2d 675 ] (1977) (involving the vendor of contraceptive devices), and City of Revere v. Massachusetts General Hospital,463 U.S. 239 , 242-43 [103 S.Ct. 2979 , 2982-83,77 L.Ed.2d 605 ] (1983) (involving the provisioner of medical services to a person allegedly injured by unconstitutional state action). We have been unable to find any case in which the Supreme Court has relied upon the plaintiff’s failure independently to meet the zone of interests test as the basis for its refusal to accord standing for the assertion of third-party rights.100
The court in FAIC Securities concluded that the plaintiff deposit brokers could assert the interests of depositers, and that the latter interests were clearly within the zone of the relevant statutory provisions.
The decision to permit a concededly injured party to rely upon the interests of third parties to meet prudential requirements is a function of two variables: (1) “the relationship of the litigant to the person whose right he seeks to assert,”
In FAIC Securities, Judge Scalia found the relationship between the deposit brokers and their potential and actual customers sufficient, relying upon the following language in Craig v. Boren:
vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.103
Interdictees may be deemed to seek access to the counseling, referral and particularly the legal representation services offered by the HRC. In fact, as pointed out several times previously, the INS refers Haitian refugees in need of assistance of this sort to the HRC.
[t]he relationship ... between the defendant and those whose rights he sought to assert was not simply the fortuitous connection between a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority and the minority itself.105
The HRC’s position is similar. As in Carey and Craig, the threshold requirement of injury-in-fact to the litigant has been satisfied. Were the Haitian interdictees to arrive in the United States, they would seek the services of the HRC or other organizations of its kind (indeed, it is possible they would be explicitly directed to the HRC by the INS). The general response from the local bar to pleas by the INS for help in matters of Haitian representation was not so overwhelming as to render this eventuality unlikely;
The cumulative weight of these decisions is impressive. A party who has suffered some personal injury is often permitted to assert the rights of others, occasionally even when the injury has*837 been incurred voluntarily ... [i]f there are plausible guarantees of effective advocacy and harmonious interests____110
None of the reasons generally offered to limit third-party standing — poor advocacy, the preference of non-parties that their rights go unenforced, a conflict of interest between the litigant and the third-party— exist here. In this case, the advocacy of the HRC is unchallenged, the obstacles to litigation are clear, and the congruence of the interests of the HRC and the interdictees is apparent.
The Government’s attacks on this analysis are not convincing. The Supreme Court does not require the litigant itself to be subject to a legal penalty or prohibition restricting its interaction with the third party in order to justify jus tertii standing;
Thus, because the Haitian interdictees are plainly within the relevant zones of interest and because the HRC, having satisfied Article Ill’s requirements, may assert their interests, the organization has standing in the present case.
B. The Merits of the Claims
The HRC alleged that the interdiction program violates the Refugee Act and the
*837 Professor Monaghan contends that most third-party standing cases could be better understood in first-party terms: "[t]he litigant is asserting a substantive due process right to interact with a third-party right holder free from unjustifiable governmental interference.” He further suggests that the Supreme Court's "current insistence on a special relationship between the litigant and a third party” permits the reformulation of most third-party cases in first-party terms. Monaghan, supra note 97, at 282, 307 n. 163. Questions remain in either the "unjustified interference” or the “special relationship” construction — What interference is unjustified? Which relationships are sufficiently special? Professor Monaghan specifically highlights the difficulty of these questions. See id. at 309 n. 169 & n. 171. Eisenstadt and Craig, however, suggest that the Supreme Court has provided broad answers.
ther amplification on these two points is offered below.
(1) The Due Process Claim
The HRC contends that the actions taken by the defendants exceed their constitutional and statutory authority and deprive the interdicted Haitians of their liberty “in violation of standards of due process defined by Congress in the Refugee Act and the Immigration and Nationality Act and therefore without due process of law guaranteed by the Fifth Amendment.”
As noted above, the interdiction program falls within the constitutional and statutory authority of the Executive, and the rights created by the above-referenced statutes do not extend to aliens unless they are either at a port of entry or within the United States. This due process claim, therefore, amounts to nothing more than a repetition of the failed legal theory of the Refugee Act claim in a different guise. Thus, the District Court did not need to reach the question of the existence of constitutional rights for excludable aliens. Nonetheless, the trial court considered the question whether “any claim founded on the Fifth Amendment [would] fail[ ] in this con
In light of the allegations of the complaint, this constitutional question pertaining to excludable aliens need not have been reached. The portion of the Eleventh Circuit decision leaned upon so heavily by the trial court has not been affirmed by the Supreme Court.
In decisions not discussed by the trial court, the Second Circuit has suggested that some excludable aliens may, under certain circumstances, invoke the protection of the Constitution.
(2) The Protocol
The HRC contends that the interdiction program violates Article 33 of the Protocol, a treaty to which the United States acceded in 1968. That article reads as follows:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be*840 threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.
The District Court held that the Protocol was not self-executing, i.e., that it could not form the basis of a legal claim without legislative action, and that, as partially executed through the Refugee Act, it provided no rights to aliens on the high seas. We need not decide the complex question of Article 33’s self-executory nature; it is enough for us to rely on the ground that Article 33 in and of itself provides no rights to aliens outside a host country’s borders.
The Protocol binds acceding parties to comply with the provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees.
The delegates further agreed that the “possibility of mass migrations across frontiers or of attempted mass migrations was not covered by article 33.”
Ironically, the Refugee Act, which amended the INA, “basically conforming it to the language of Art. 33 of the United Nations Protocol,”
The Attorney General shall not deport or return any alien (other than an alien described in section 241(a)(19)) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1253(h) (1982). This section applies to aliens in exclusion and deportation proceedings.
The other best evidence of the meaning of the Protocol may be found in the United States’ understanding of it at the time of accession. There can be no doubt that the Executive and the Senate decisions to adhere were made in the belief that the Protocol worked no substantive change in existing immigration law.
[t]here were of course differences between the Protocol and the text of domestic law. The most significant difference was that Art. 33 gave the refugee an entitlement to avoid deportation to a country in which his life or freedom would be threatened, whereas domestic law merely provided the Attorney General with discretion to grant withholding of deportation on grounds of persecution. The Attorney General, however, could naturally accommodate the Protocol simply by exercising his discretion to grant such relief in each case in which the required showing was made____139
The effect of the subsequent adoption of the Refugee Act was to eliminate the textual existence of the above-mentioned discretion; there was no congressional intent at the moment of adherence or upon the enactment of the Refugee Act to substantively alter existing law, which had protected only aliens inside the United States.
In short, it seems clear that the Haitian interdictees are not protected by the Protocol. The negotiating history of the Convention it incorporates leads inescapably to the conclusion that certain compromises were essential to agreement and that the ideal of unconditional asylum was diluted by the need for other practical guarantees. Admittedly, this outcome may be harsh and, in individual cases, may result in genuine hardship or suffering; but no other decision would be defensible in light of the explicit terms of the Protocol and its legislative history.
III. Conclusion
This case presents a painfully common situation in which desperate people, convinced that they can no longer remain in their homeland, take desperate measures to escape. Although the human crisis is compelling, there is no solution to be found in a judicial remedy. The stark reality here is that, pursuant to the allegations of the amended complaint, this court is constrained to conclude that the HRC has not alleged a claim upon which relief can be granted.
. The two member-plaintiffs are Edouard Franck and Carlo Dorsainville.
. Amended Complaint for Declaratory and Injunctive Relief, ¶¶ 5 & 6, reprinted in Joint Appendix (“J.A.”) 4-24.
. Id. U 8.
. Id. ¶9.
. It appears that Jean-Claude Duvalier, formerly the President-for-Life of Haiti, no longer governs that country. However, the political situation in Haiti remains in a state of flux, and Government counsel did not suggest at oral argument that the interdiction program would be suspended or cancelled. Under these circumstances, it should be assumed that the general outline of the situation remains as plaintiffs have alleged and under that assumption the purely legal issues presented will be decided.
. Proclamation No. 4865, 46 Fed.Reg. 48,107 (1981) , reprinted in 8 U.S.C. § 1182 app. at 993 (1982) .
. Id.
. Id.
. Exec.Order No. 12,324, 46 Fed.Reg. 48,109 (1981), reprinted in 8 U.S.C. § 1182 app. at 992-93 (1982).
. Defined vessels included “[v]essels of foreign nations with whom we have arrangements authorizing the United States to stop and board such vessels.” Id.
. Id.
. See 8 U.S.C. § 1101(a)(42) (1982) (defining “refugee”).
. Exec.Order No. 12,324, supra note 9, at 48,-110.
. Interdiction Agreement, Sept. 23, 1981, United States-Haiti, T.I.A.S. No. 10241.
. Id.
. INS Role in and Guidelines for Interdiction at Sea, reprinted in J.A. 55-57 (Sept. 24, 1982 revision, reprinted in Appendix D to Brief for Defendants-Appellees).
. The guidelines also provide that each person on board an interdicted vessel will be interviewed only if it is deemed safe and practicable by the commanding Coast Guard officer. The INS asserts that on no occasion has the INS failed to interview an interdicted Haitian. See Declaration of Leon C. Jennings, Immigration Inspector (Oct. 9, 1984), reprinted in J.A. 46. The HRC points out, however, that the guidelines permit the interview to be omitted. This dispute as to the adequacy of the INS procedure, like others such as the presence or absence of the Haitian liaison at the interviews of the interdicted Haitians, need not be resolved because the appellants here have stated no claim that entitles these passengers to any specific procedural protections.
. This is the figure provided to the District Court by the Government as of September, 1984. See Declaration of Leon C. Jennings, supra note 17, at 34.
. Valley Forge Christian College v. Americans United For Separation of Church and State, Inc.,
. Valley Forge Christian College,
. Id.; see also Allen v. Wright,
. Worth,
. Sierra Club v. Morton,
. Worth,
. Id.
. Valley Forge Christian College,
. Havens Realty Corp. v. Coleman,
. 13 Wright, Miller & Cooper, Federal Praсtice and Procedure: Jurisdiction § 3531.9, at 604 (2d ed. 1984). See also Babbitt v. United Farm Workers Nat. Union,
.
. Id. at 379,
. Id.
. By-Laws of the HRC, Dec. 14, 1983, Art. II, Record Document No. 7, Attachment 1, Exhibit A, at 2.
. Amended Complaint, supra note 2, at If 30. The HRC has brought several major lawsuits “challenging practices and procedures of the INS in processing Haitian refugee applications." Id.
. HRC v. Civiletti,
. Affidavit of Father Gerard Jean-Juste, Executive Director of the HRC, f| 2, Record Document No. 7, Attachment 1, at 1-2.
. Id. HRC’s membership also includes a substantial number of Haitian refugees (including many who seek political asylum) and members of the community who support the defined purposes and activities of the organization. See Amended Complaint, supra note 2, at ¶ 32; see also HRC v. Civiletti,
. Amended Complaint, supra note 2, at ¶ 34.
. Id. ¶¶ 33 & 35.
. Havens,
. Havens,
. Id. at 379 n. 20,
.
. Id. at 203.
.
. Id. at 937 (citations omitted).
. Id. at 938 (quoting Sierra Club,
. See Community Nutrition Institute v. Block,
. For example, in Craig v. Boren,
.
. Allen v. Wright,
. Two of the cases relied on by the majority, Warth and Linda R.S., involve challenges to state action. It is thus hard to see how these cases implicate any notions of allocation of powers among the branches of federal government. Simon and Allen v. Wright, being suits challenging federal executive action, do raise separation of powers concerns. But these concerns appear to be aimed at ensuring that the exercise of the court’s remedial powers will not easily or routinely interfere with efforts by coordinate branches to carry out their constitutional and statutory obligations. Moreover, “federal courts may exercise power only ‘in the last resort, and as a necessity’____” Allen v. Wright,
. Chinese American Civic Council v. Attorney General of the United States,
. The zone test has provoked both confusion, see Copper & Brass Fabricators Council, Inc. v. Department of Treasury, 679 F.2d 951, 954 (D.C.Cir.1982) (Ginsburg, J., concurring); Tax Analysts & Advocates v. Blumenthal,
. FAIC Securities, Inc. v. United States,
. See Data Processing,
. The relevant “zone” for the purpose of the test is "not that of the statute or regulation challenged, but that of the statute or regulation which forms the basis of the challenge." FAIC Securities,
. Pub.L. No. 96-212, 94 Stat. 102 (1980).
. 8 U.S.C. § 1101 et seq. (1982).
. United Nations Protocol, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267 (entered into force with respect to the United States Nov. 1, 1968).
. G.A.Res. 217A, 3 U.N.Doc. A1810 (1948).
. 34 Stat. 2858, T.S. 447 (1904).
. 18 U.S.C. § 3181 et seq. (1982).
. Data Processing,
. Id. at 153,
In both Allen v. Wright and Valley Forge Christian College, the Court found that the plaintiffs
. Autolog Corp. v. Regan,
. See FAIC Securities,
.
.
. Id.
. See also International Union of Bricklayers v. Meese,
. As one commentator has explained:
By its terms, the protective intent analysis of Data Processing goes beyond prior doctrine mainly in reducing a requirement that the statute which defendant is alleged to have violated be one designed to protect the class of which plaintiff is a member, to a requirement that plaintiff be merely “arguably" within the zone of interests to be protected by the statute. This change would seem to work primarily to reduce the clarity with which plaintiff must show a legislative purpose to protect those in his position: perhaps indications of mere congressional awareness of their interests might suffice.
Scott, Standing in the Supreme Court — A Functional Analysis, 86 Harv.L.Rev. 645, 663 (1973) (emphasis in original).
. Contrary to the suggestion of the majority, this test does not "render the entire concept of a zone of interest a nullity.” Thе powerful barrier of injury-in-fact serves to prevent the court from hearing generalized grievances. Indeed, the cases cited by the majority, Schlesinger v. Reservists to Stop the War,
. This court has decided that where the particular provision in question "sharefs] an identity of purpose” with the entire statutory framework, then an examination of the general structure is relevant. See American Friends Service Comm.,
. H.R.Rep. No. 608, 96th Cong., 1st Sess. 6 (1979) [hereinafter "House Report”]. Later the Report, in discussing the Act’s definition of refugee, noted that the voluntary agencies supported this provision. Id. at 10. See also S.Rep. No. 256, 96th Cong., 1st Sess. 7-8 (1979) [hereinafter "Senate Report”].
. Senate Report, supra note 74, at 2.
. 125 Cong.Rec. 23,233 (Sept. 5, 1979).
. Refugee Act of 1979: Hearings on H. 2816 Before the Subcomm. on Immigration, Refugees, and International Law of the Comm, on the Judiciary of the House of Representatives, [hereinafter "House Hearings"] 96th Cong., 1st Sess. 1 (1979); see also Anker & Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L.Rev. 9, 43 n. 157 (1981). ■
. House Report, supra note 74, at 22.
. Amended Complaint, supra note 2, at ¶ 31.
. Refugee Act of 1979: Hearing on S. 643 before the Comm, on the Judiciary of the Senate, 96th Cong., 1st Sess. 44 (1979) [hereinafter “Senate Hearing”] (statement of Nancy Nicolo, executive director, immigration and refugee program. Church World Service, National Council of Churches); House Hearings, supra note 77, at 247 (statement of Matthew R. Ginffrida, Church World Service).
. House Report, supra note 74, at 22.
. The hearings held in both Houses attest to the significance Congress attaches to the role played in national immigration policy by voluntary agency contributions and projects. The most important witness for the administration (the Refugee Act originated as an administration bill) was former Senator Dick Clark, then Ambassador at Large and U.S. Coordinator for Refugee Affairs. He had central responsibility for all refugee policy questions and had this to say about the voluntary agencies:
Before outlining some of the key provisions in the new bill on domestic assistance, I*832 would like to add that none of our programs would be possible without the generous participation of a number of voluntary resettlement agencies. From the beginning, our refugee programs have been based on the assumption that refugees will have a much easier time adjusting to life in this country if they are assisted primarily by the private and voluntary sector, rather than by public assistance alone. The voluntary agencies have provided a key link in the partnership between the Government and the private sector.
Senate Hearing, supra note 80, at 13; see also id. at 17 ("we need to assure ourselves that the work of the voluntary agencies goes forward effectively and efficiently’).
. Id. at 44; see also id. at 58 ("there is great credibility in your organization’s recommendations and views”).
. Two days of House testimony on the bill were devoted almost exclusively to the problems of "so-called undocumented aliens, particularly Haitians who have been arriving in Florida." In particular, testimony was elicited from an attorney directing the alien rights law project at the Washington Lawyers' Committee for Civil Rights Under Law. He testified at length about legal and practical problems resulting from the indeterminate immigration status of the Haitian and, in response to questioning, discussed in detail the relevance of a lawsuit brought by the HRC, mentioning it by name. Refugee Act of 1979: Hearings on H.R. 2816 Before the Sub-comm. on International Operations of the House Comm, on Foreign Affairs, 96th Cong., 1st Sess. 87-88 (Sept. 19, 1979 & Sept. 25, 1979).
. 125 Cong.Rec. 23,234 (Sept. 6, 1974) (remarks of Sen. Kennedy).
. See Animal Welfare Institute,
. S.Exec.Rbp. No. 14, 90th Cong., 2d Sess. Appendix at 5 (1968) (testimony of Mr. Lawrence A. Dawson, Acting Deputy Director, Office of Refugee and Migration Affairs, Dep’t of State) ("The American Council of Voluntary Agencies, embracing 43 agencies and representing all factions and all of the organizations which carry on work on behalf of refugees and other needy people abroad, and which also serve as liaison in developing support for their efforts in this country, has unanimously endorsed U.S. accession to the protocol; and they ... have petitioned the Government on several occasions to take all necessary steps with a view to securing U.S. accession to the protocol. Mr. Chairman, in behalf of the President and the Secretary of State, I would like to reiterate their earnest hope____”); see also S.Exec.K, 90th Cong., 2d Sess. ix (1968) (Letter of submittal of the Protocol from the Secretary of State to President Johnson for transmittal to the Senate for advice and consent to accession) (same).
. Senate Report, supra note 74, at 14-15.
. As to the extradition treaty and statute, there is no basis for standing under the zone of interests test in either a congruence of statutory and organizational purpose or a legislative reference to an intent to protect organizational as well as individual interests. However, the analysis infra —that the HRC has standing to represent the interests of third parties, namely the interdictees — is enough to overcome the Government’s prudential objection.
. The majority argues that Tax Analysts & Advocates v. Blumenthal,
. Wright, Miller & Cooper, supra note 28, § 3531.7, at 513 n. 17.
. Id. § 3531.9, at 604.
. See Data Processing,
. See, e.g., Duke Power Co. v. Carolina Environmental Study Group, Inc.,
Where a party champions his own rights and where the injury alleged is a concrete and particularized one which will be prevented or redressed by the relief requested, the basic practical and prudential concerns underlying the standing doctrine are generally satisfied when the constitutional requisites are met.
Id. at 80-81,
. The principles of jus tertii, sometimes denominated third-party standing, are relevant to prudential considerations in standing analysis. Valley Forge Christian College,
. Warth,
. Secretary of State of Md. v. Joseph H. Munson Co.,
[w]hile it may be an overstatement to say, as does Justice Brennan, that in constitutional cases, the court now has "only rarely interposed a bar to ‘third-party standing,”’ it is plain that the strong bias against such claims ... has substantially dissipated.
Monaghan, Third Party Standing, 84 Colum.L. Rev. in, 288-89 (1984).
.
.
.
. Singleton v. Wulff,
. Eisenstadt,
.
. The majority maintains that, because (in its view) the FAIC Securities test cannot be reconciled with the result in United States v. Payner,
Payner is a case best restricted to its narrow context — i.e., whether a litigant may seek a remedy of exclusion of evidence illegally obtained in the course of a search of the property of another person. The question of the appropriate remedy for a Fourth Amendment violation may well be a unique case in which third-party standing is inappropriate. See Rakas v. Illinois,
FAIC Securities represents the law of the circuit and should be applied here unless an alternative test exists that does not conflict with the Supreme Court case law. Because the majority test cannot explain Wulff, the FAIC Securities test should be applied in this case.
The majority also seems to argue that the HRC must show evidence that Congress "intended to give them a right of action on behalf of the interdicted Haitians.” But, such a showing is equivalent to finding that the HRC is within the zones of interests of the statutes. Thus, as I read the majority opinion, third-party standing would only be permissible if the third-party also had first-party standing. This view drains third-party standing of all of its vitality.
. Eisenstadt,
. See HRC v. Smith,
. See Affidavit of Father Gerard Jean-Juste, supra note 35, at ¶ 3.
. Eisenstadt,
. Id. (discussing the decision in Barrows).
. Wright, Miller & Cooper, supra note 28, § 3531.9, at 585. See also Nichol, Rethinking Standing, 72 Calif.L.Rev. 68, 97-98 (1984).
. In Munson,
. See Revere,
. See Craig,
. See FAIC Securities,
. We express no view on the HRC’s right to assert standing in a representational capacity on behalf of its Haitian members. See Hunt v. Washington State Apple Advertising Comm'n,
. The Government argues that this court should not reach the merits because the complaint at issue presents nonjusticiable political questions. As two members of this panel have had occasion to point out, the political question doctrine is at best unsettled. See Tel-Oren v. Libyan Arab Republic,
. We do not read the plaintiffs’ complaint to allege a separate "ultra vires" claim against the interdiction program; i.e., they do not contend that the statutory and constitutional powers cited by the President to create the program themselves reveal the illegality of his action. Instead, the HRC contends that the program is unlawful as violative of the particular legal standards set forth above.
. HRC v. Gracey,
. Id. at 1406.
. Id.
. Id. at 1399-400.
. Amended Complaint, supra note 2, at ¶ 52 (emphasis supplied).
. HRC v. Gracey,
. Deportable aliens are those who have entered the United States illegally or those who have entered legally and subsequently lost their legal status. Excludable aliens are those who have reached the borders but been stopped prior to entry.
. See Kleindienst v. Mandel,
. Jean v. Nelson,
. See
. As the Supreme Court noted:
Petitioners contend that the only adequate remedy is "declaratory and injunctive relief' ordered by this Court, based upon the Fifth Amendment____ For its part respondents are also eager to have us reach the Fifth Amendment issue. Respondents wish us to hold that the equal protection component of the Fifth Amendment has no bearing on an unadmitted alien’s request for parole.
. See Yiu Sing Chun v. Sava,
. 189 U.N.T.S. 150 (July 28, 1951). The United States is not a signatory to the Convention itself.
. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Record of the Thirty-fifth Meeting, U.N.Doc. A/ Conf. 2/Sr. 35, at 21 (July 25, 1951).
. Commentators appear to be in accord with this view. See Aga Khan, Legal Problems Relating to Refugees and Displaced Persons, 149 Recuf.il Des Cours (Hague Academy of International Law) 287, 318 (1976); Weis, The United Nations Declaration on Territorial Asylum, 7 Can.Y. Int’l L. 92, 123-24 (1969); Note, The Right of Asylum Under United States Law, 80 Colum.L. Rev. 1125, 1126-27 (1980).
. The relevant discussion on the scope of Article 33 at the second and final reading of the draft Convention which took place on July 25, 1951, was as follows:
Baron van BOETZELAER (Netherlands) recalled that at the first reading [U.N.Doc. A/ Conf. 2/Sr. 16, at 6 (July 11, 1951) ] the Swiss representative had expressed the opinion that the word "expulsion" related to a refugee already admitted into a country, whereas the word "return" (f'refoulment") related to a refugee already within the territory but not yet resident there. According to that interpretation, article 28 would not have involved any obligations in the possible case of mass migrations across frontiers or of attempted mass migrations.
He wished to revert to that point, because the Netherlands Government attached very great importance to the scope of the provision now contained in article 33. The Netherlands could not accept any legal obligations in respect of large groups of refugees seeking access to its territory.
At the first reading the representatives of Belgium, the Federal Republic of Germany, Italy, the Netherlands and Sweden had supported the Swiss interpretation. From conversations he had since had with other representatives, he had gathered that the general consensus of opinion was in favour of the Swiss interpretation.
In order to dispel any possible ambiguity and to reassure his Government, he wished to have it placed on record that the Conference was in agreement with the interpretation that the possibility of mass migrations across frontiers or of attempted mass migrations was not covered by article 33.
There being no objection, the PRESIDENT [of the Conference of Plenipotentiaries] ruled that the interpretation given by the Netherlands representative should be placed on record.
U.N.Doc. A/Conf. 2/Sr. 35, at 21 (emphasis in original).
. Proclamation No. 4865, supra note 6.
. INS v. Stevie,
. See, e.g., 8 C.F.R. § 208.3 (1985).
. See INS v. Stevie,
. Id. at 2493.
. Id. at 2500 n. 22 (emphasis supplied).