Rachel Evans v. James T. Lynn v. The Town of New Castle, Appellee-Intervenor

wеight may be much as to how uncertain during the accrued experience

accorded appeal deportation, alien’s of an

course training, taken in Mrs. Chen’s

we note that experience, prior with her

combination providing a considerable

might be viewed of the im- familiarity with most

range of necessary oper- likely to be tasks

portant successfully, possibly a restaurant

ate of 8 the terms bring her within

might INS, v. 212.8(b)(4). Talanoa See

C.F.R. 1970). (9th

427 F.2d the Board for refer this matter

We the relevance of clarification

further Accordingly, this case.

training involved denying Board’s decision portion reopen to remand and motion

petitioners’ is remanded to

vacated, the case opin- light of this proceedings

Board

ion. ordered.

So al., Appellants, EVANS et

Rachel al., Appellees, T. et

James LYNN CASTLE,

The TOWN OF NEW

Appellee-Intervenor. 157, Docket 74-1793.

No. Appeals, Court of

United States Circuit.

Second

Argued Oct. 2, 1975. June

Decided Oct.

Resubmitted 4, 1976. En Banc June Rehearing

On remand, sidered in a determination of her for Mrs. Chen’s investor to the Board for a sta- tus. experience con- during interval Christopher Jensen, (Richard

J. Yonkers Bellman, F. Lois Thompson, D. Suburban Institute, Yonkers, counsel), Action for appellants. Davis,

V. Pamela Atty. (Paul Asst. U. S. Curran, Y., Atty., J. U. D. N. S. S. Steven J. Glassman, counsel), Asst. U. Atty., S. Appellees. Federal Handler, City (An- Arthur M. New York Bareli, Hyde, drea Golenbock & New York counsel), for City, appellee Town of New Castle. J. Spires, City (Har-

Jeremiah New York Gottlieb, Wikler, Gottlieb, ry Taylor A. & Howard, New City, counsel), York Carroll, appellees Douglas Director of Tri- Regional Planning Commission, State Regional Planning Tri-State Commission. 3601, 3608(c), (d)(5).2 agen- §§ THE The federal OF PANEL OPINION Department Housing are the cies MOORE, GURFEIN, OAKES and Before (HUD) and the Development Bureau Urban Judges. Circuit Department Recreation of the of Outdoor (BOR), respective whose of the Interior OAKES, Judge: Circuit municipal sewer grants to a district within legal challenge Castle, involves a appeal This the Town of New Westchester agencies policies York, of federal said to against for construction County, New of a of requirements sewer, Title VI of the the Town flout and to itself sanitary for Act, 42 Rights Swamp” U.S.C. 2000d et for 1964 Civil of “Turner recrea- acquisition § (Fair Housing) challenged Title VIII of the here as seq., purposes3 and be- tional Act, Rights allegedly U.S.C. 3601 et 1968 Civil to town main- § made requires agencies economically Title VI federal af- seq. and discrimina- racially tains a its community development to effectuate firmatively anti-discrimi- tory and programs receiving in been policy brought nation federal has also program. Suit assistance, 2000d, agency, U.S.C. regional planning financial Tri- §§ (Tri- requires Planning Title VIII Regional 2000d-l.1 similar effec- Commission State housing policies, State), designated of its fair clearing- tuation which is U.S.C. comply requirement ure to 1. 42 2000d. with the § U.S.C. compliance cannot be shall, se- person determined that No in the United on the States by voluntary race, color, means. In the case ground origin, cured any or national be refusing grant terminating, in, to participation action or be denied the excluded continue, of, subjected because of failure to or comply assistance to or be discrimination benefits pursuant imposed any activity receiving requirement program or with a section, under Fed- to this the head of the Federal de- assistance. eral financial partment agency shall file with the com- 2000d-l. or § U.S.C. having department agency legis- Federal mittees of House and Senate Each is-empowered jurisdiction program to extend or Federal finan- lative over the activi- which any program activity, ty report or cial assistance written cir- involved a full loan, way grant, grounds or than a contract other for such cumstances and the action. guaranty, insurance or contract of is autho- become effective until No such action shall provi- rized and directed effectuаte the thirty days elapsed filing after the 2000d of this re- sions of section title with report. such program activity issuing spect or to such 2. 42 U.S.C. 3601: § rules, regulations, general appli- or orders policy It is of the United States to cability which shall consistent with limitations, provide, within constitutional objectives of the statute achievement housing throughout fair the United States. authorizing the financial assistance in con- 42 U.S.C. 3608: § the action which is taken. No nection with (c) departments agencies All rule, executive regulation, or order shall become such programs approved by shall administer and activities and until unless effective relating development Compliance any require- and urban in President. affirmatively pur- adopted pursuant to this section a manner to further the ment (1) by poses subchapter cooperate or refus- the termination of and shall this be effected Secretary grant purposes. under or to continue assistance with the al to to further such activity any recipient program (d) Secretary Housing or such Urban finding express Development has been there to whom shall— record, hearing, opportunity for after on the requirement, comply with such of a failure (5) programs and administer the activities limit- or refusal shall be political termination but such relating development housing and urban entity, part particular or ed to the affirmatively policies a manner to further the recipient thereof, as to whom such other or subchapter. of this and, limited in finding made shall be has been grant matching funds for the 3. sewer part particular program, or to the its effect thereof, Community was made Facilities under noncompliance has such Act, Acquisition Advance found, (2) by Land U.S.C. other means or been so acquisition Provided, however, for the § and the That law: authorized pursuant Swamp Turner was made be taken until the de- Out- action shall no such Act, Programs agency partment concerned has advised door Recreation U.S.C. persons person fail- appropriate appli- “ghetto house which reviews and coordinates form of living conditions”); Judge grants-in-aid in certain cations federal Pollack added that “potential their status as Jersey York and New counties of New of New residents” Castle did not change regions Connecticut, planning (This certain ruling result. applied to the fed- 3334(a)(1), and which declined to Tri-State.) eral defendants and to We disa- question on however, review gree, expressing, opinion no grounds they regional signifi- lacked whether question have stated cance. a claim for relief. assert

Appellants they are minority question of standing On the as to the of Westchester County residents who agencies reside there are three federal facts which racially concentrated assumed, areas of the county below, have to be and are constrained to do First, so because the present posture of the case. ap- agencies failure of the perform pellants are low-income minority residents рermits their affirmative duties the mainte- County “ghetto” of Westchester who live in pattern conditions, is, growing nance of a of racial resi- racially-concentrated segregation both in New Castle neighborhoods.6 Second, dential low-income a mat- Thus, county. elsewhere in the the case is ter entirely Judge overlooked in Moore’s in the series of cases in dissent, Castle, another this court the Town of New to or for raising phase and others4 one or another in the challenged grants whose benefit social, complex legal, the made, is, economic and court, words the district problems engendered moral by both the “predominantly white per and a [98.7 cent] emergence of the increasingly enclave,” suburbs as per well-to-do cent of which is important area, units of the metropolitan single-family, zoned for develop- residential significant to the achievement of parcels acre, national ment on more than one goals, by the housing realization that value of single-family median homes in “does not mean $50,000; shelter alone —it means a has, 1970 in excess of the Town collection of services opportunities coincidentally, thwarted the New York based on locations.”5 The court below Development Corporation’s State Urban at- granted the Town of New Castle leave to tempt to construct within its borders a appellants intervene but denied standing to housing facility small 100-unit low cost sue on the they basis that assert no “injury the thus in the words of court below “con- in fact” since enjoining grants ques- in attempts tinues to be resistant to alter tion would not (in alleviate their injury Third, present housing its character.”7 g., Faraday 4. E. Citizens’ Committee any Wood interest in land within the town or has Lindsay, (2d 1974); 507 F.2d any plan proposal Cir. Ken connection with to con- nedy City Lackawanna, Park Homes housing Ap- Ass’n v. struct for them within the town. (2d 1970), denied, pellant 436 F.2d 108 September, cert. Evans concedes that since (1971). housing” she has resided “decent in a generally Downs, Opening Up public housing development, space. See A. the Sub with “fine” urbs; Strategy (Her complaint alleging (1973); An Urban for America residence in substand- Branfman, Trubek, August 1973.) Measuring Cohen & ard was filed It is not the In park projects visible Wall: Land Use claimed that the sewer or Controls and the will be Resi Poor, discriminatorily. operated dential Patterns of the 82 Yale L.J. 483 (1973); Spector, Opening Up Shields & Haar, 360-61, supra, 7. As is recounted Suburbs: Notes on a Movement for Social Development (UDC) State Urban Commission Change, (1972). 2 Yale Rev.L. & Soc.Action 300 housing plans had nine of Westchester Glazer, “Opening Suburbs, Up” But see On towns, County’s including New Castle. (1974). interesting The Public Interest 89 An By going into 9 of Westchester’s 18 towns Iatridis, Housing text in the field Haar & once, president] hoped UDC to avoid [the Policy Poor in Suburbia: Public at the Grass putting any government one local on the (1974) (hereinafter Haar). Roots spot. up Instead he has found himself private a coalition of Haar, citizens and supra See n.4 at 320. private attacking agency officials on the appellants big governmеnt, control, 6. None has been refused the issues of local Castle, any sale or rental of in New home rule. challenged agencies, approving there is a viable claim that affirmative question, very by did little imposed upon are agen duties these federal evaluating development the Town’s way of VI by cies Titles and VIII which would otherwise,8 perform any al- policies action, require them to take some not taken required duties of them legedly affirmative here, county residents on behalf such as and Title VIII respectively;9 Title VI withholding proper grants. otherwise Ab question approval of each arguable claim of sent such an affirmative (as solely on its internal merits based appellants, duties owed to are not is, dispute, is no no which there claim statutory protection. within zone of system either the sewer or recreation of Data Processing Association Service Or discriminatorily). will area be administered ganizations, Camp, Inc. v. 827, 25 facts, Put anoth Assuming underlying these we first er we must consider whether question way, whether either of face alleged within the zone of arguably pro- agencies interests these to have “conscious statutes, is, tected ly expressly adopted whether general policy segregation policies United Towns for Home Rule . residential commu- merits, nity. was formed several dozen residents from It on the is a matter of defense three of the northern Westchester towns express opinion, which we no whether days formally three before the an- UDC performed agencies in fact affirmative plan its nounced duties; purposes enough it is if for our a viable UDC,” saying says “What we are nonperformance is made. claim of Castle, organiza- Stuart Greene of New “is, president, tion’s We have not been con- project approvals 9. The here came after Presi- sulted, you do not have our If consent. we 8,000 policy Nixon’s word statement con- dent cerning equal City want New York tle, to move into New Cas- housing opportunity on June you.” we’ll tell of which he declared that in the course Governor Rockefeller and Edward J. Lo- attempt would “not to im- his administration gue, president Develop- of the State Urban federally housing upon any pose com- assisted Corporation, apparently ment decided Haar, munity.” supra n.4 at 321-22. See building plans to defer the in West- UDC’s Times, Dec. col. Cf. N.Y. County give chester for four months to Dayton, regarding Ohio: up nine towns involved a chance to come Dayton], most of whom are The officials [of multi-family housing plans of their own. Republicans, how are worried about much (The Times, September 1972.) New York they Washington. support receive from will The chairman of United Towns for Home plan philosophy They fits the ex- believe the Rule, group opposition that has led the by pressed George Romney, repeatedly Sec- Development Corporation’s the state Urban Housing Development, retary and Urban housing plans County, in Westchester an- President Nixon’s but are disturbed yesterdаy resigning nounced that he was be- statement last week that news conference group’s leadership cause others in the want- integration present of the suburbs is not “forced ed to take it off a he course charac- interests.” terized as the national ‘moderate.’ voluntary, they say, July, Greene, Dayton plan, In an interview last Chairman forced, lawyer, factors Harvard-educated one of the had said he not brought but prejudice acceptance feared that race philosophy rather was the belief that than the its might grants way emerge of local home rule in a use Federal H.U.D. would pro- as the encourage open dominant theme in the anti-UDC communities. that would redneck, test. “The I up minute lose a vote to a pressures political build so that the “If quit,” I he said then. to flout low moder- suburbs can continue Asked whether the events money he feared had in housing get still ate income said, pass, (The fact come to he “Yes.” do,” New Washington there is little we can Times, 10, 1972.) York October said one official. foregoing excerpts quoted Times Further, development here illustrates Haar, supra n.4 at 360-61. housing controversy is involved what way under in the national has been “rating preliminary 8. The HUD sheet” for the Department government. Plans application grant carry for the sewer here does Development Housing for, Urban make a points g., some e. the “Percent of open strong communities in the project stand in nondiscriminatory area that will be accessible on a of Federal have been administration basis to families and individ- incomes,” Attorney questioned General John N. uals with low and moderate but appears White there to be no evaluation of the overall Mitchell and the House. funding which effect terminate “to particular pro nonenforcement] [is] [of Adams thereof, statutory duty.” gram, part of its in which abdication such [dis 267, 480 Richardson, U.S.App.D.C. F.2d has been so found.” 42 U.S.C. crimination] supra. banc, curiam) (or- 2000d-l, (1973) (en per n.l See Gautreaux 1159, 1162 § action to Romney, (7th (HUD to take affirmative 457 F.2d 124 dering 1972) HEW public educa- Model segregation in ten states’ could release Cities city end funds funds, receiving independent city housing institutions federal tional authority’s dis “students, and tax- site criminatory citizens selection and assign at suit black tenant See claim is ment procedures). We think such a viable payers”). Harv.L.Rev. 427 express lan- made out under clearly supra, Acts, nn.

guage But the same pro- limitation or “pinpoint law. history and the case legislative apply vision” does Title VIII. The history of Title legislative VIII requires VI 2000d is indicative Title effectuation § In introducing of its scope. legislation “empowered to extend Federal by agencies Mondale referred Senator any program or ac assistance financial . .” 42 by way tivity, story sordid of which all Americans requires 2000d-l. Title VIII ad U.S.C. should be ashamed developed by this develop country post and urban the immediate ministration World War all programs agencies era, during FHA, VA, and activities in II ment “affirmatively purposes” agencies to further Federal encouraged, and other Act, assisted, expressed easy in 42 and made the flight supra.10 that, from the people It white central cities n.2 America, leaving VI white suggest, because Title is some behind appellees others Negroes and unable to remedy, limited in it is not so much take advan- what these tage of liberalized involved, although ulti extensions of question this is a guarantees. credit merits; credit and VI on the Title contains mately provi “pinpoint Traditionally in its so-called language the American Govern- agency power sion” limits been more ment has than neutral on this roads, Arguably, grants public are made fact that the schools and other re- facilities community lating development. which is near an urban area to a to urban necessarily grants Housing Dep’t Develop- not relat- would ing make them U. S. and Urban ment, development,” Equal in an Opportunity to “urban since era Historical Overview— every superhighways jet community quoted Housing, Equal Opportunity and travel in P-H H2301, added). area. Title Housing (emphasis is in VIII, real sense near an urban at 2316 only 3608(c), requires regional 42 U.S.C. that the § administrator The HUD stated his agencies programs “administer their and activi- deposition Program that the Water and Sewer relating housing and ties to urban subject requirements. to Title VIII was This development” (emphasis added) affirmatively which, rating system explains or selection housing. Similarly, to fair 42 said, further U.S.C. give points “did extra those as he to 3608(d)(5) specifically requires HUD § so to open housing policies.” communities programs “relating administer its and activities might grant not be The same said of the BOR housing development to Arguably and urban . . . from the Land and which was Water Conserva- grant neither the HUD here nor the Fund, supra. grant A tion n.3 made under program relating recreation BOR is for a necessarily “housing” or not be a Act would housing development. to to urban development” grant under VIII. “urban Title here, however, by interpre urban We are aided But area, itself considers New Castle an BOR 2,500 itself, having population tation of Title VIII HUD one which both as of over community. weight. to entitled substantial And Re- Udall v. Tall and as a satellite BOR’s man, gional 380 U.S. 85 S.Ct. 13 L.Ed.2d demonstrated the nexus which Director (1965). formally urge, deposition “existing 616 recently HUD has stated as in his October, 1972, housing pat- housing patterns that the affirmative and desirable requirements grants proc- ought planning action do extend to to be a factor in the terns assessing sewer installation such as here involved: ess in needs we at- [recreation] programs encourage tempt A substantial number of are sub- consideration of all com- ject provisions including just munity these affirmative and not needs leave ourselves renewal, relating cities, recreation, merely those urban model concerned with it’s because installation, system.” important for sewer and water the fabric of this

577 ry practices The record of the U.S. Govern- and enforceable a complete issue. one, best, period in that arsenal of federal Here authority.” appel- ment policies es- exerted; collaborator which covert lants no influence claim outrageous present remained tablished law unenforced. living patterns heartbreaking racial of, be We not aware we must must tragedy the core of the lie at teaching guided by the of Trafficante v. city good the alienation of American Co., Life Metropolitan Insurance good people because of the people color. irrelevancy of utter , (1972) involving the wheth- question a case (1968). Cong.Rec. 2278 tenants were within the complaining er expressly class of entitled to use Representative persons Celler said: “The too So 810(a) under Rights or ‘end’ the Federal Fair Civil Act of purpose Hous- 3610(a), the walls discrimi- that in connection ing Act is remove housing litigation minority groups gen- in with fair “the main nation which enclose ” Cong.Rec. erating private must be . force suits . . ghettos “the reach of proposed law ghettos replace ‘by was to truly inte- relating to duties created The cases grated living patterns’ [quot- and balanced include VI and VIII Shannon v. Titles So, too, Senator the Court Móndale].” (3d 1970); HUD, Cir. Brookha 436 F.2d 809 has advised us that “Congress may enact v. Housing Kunzig, 341 Coalition ven creating legal rights, statutes the invasion (E.D.N.Y.1972); v. Garrett F.Supp. standing, of which creates even though no Hamtramck, F.Supp. (E.D. City injury would exist without the statute.” Mich.1971). See also Otero New York D., Linda Richard R. S. v. (2d F.2d Housing Authority, 484 City 1146, 1148, n.3, 93 S.Ct. 1973).. The Third Circuit held Shan , (1973) citing Trafficante v. Metropolitan non, supra, approve that HUD could Co., Life Insurance plan (from renewal change in an urban (White, J., concurring). The limita- occupied” supplement” to “rent “owner tion on is that there must be an “indi- considering dwellings) without under statutory cation that invasion right duty requirements Titles VI affirmative likely or is occurred to occur.” O’Shea need for physical VIII whether “the Littleton, n.2, minority or additional hous- rehabilitation 674 (1974). 38 L.Ed.2d Here the clearly outweighs in question the site ing at right” is to “statutory programs disadvantage increasing or perpetu- “relating activities and urban discrimination.” F.2d at ating racial development” administered in furtherance holding, said the court that “In- 822. So housing policy. right of That is fair of racial concentra- or maintenance crease grants for invaded sewer facilities or likely to lead urban facie prima is tion recreation acquisition of areas in urban facie at prima variance blight and is thus which are not communities so administered. policy.” F.2d housing 436 with the national satisfied, then, government, to We are that the first of Clearly the federal at 821. granting standing test of is prongs it is the business two the extent in met; arguably are appellants funds commu- within the housing development nities, protected by to exert influ- zone of interests Titles VI and position is in a central on part of mi- VIII. The inaction of the fed- upon, against, concentration ence may agencies in here have created a groups put in limited areas. As eral nority in affirmative duties under Mr. Jones breach of their Justice Stewart dictum 417, Co., designed and these Acts were Mayer H. 392 88 these Acts Alfred U.S. protect appellants 20 such these who people L.Ed.2d 1189 Title S.Ct. law, ghettoized live in communities housing at least is “a detailed continue to VIII City range metropolitan to a York area. applicable broad discriminato- in New 578 pact every person integration in the United not only may protects VI maintain

Title applicable in discrimination quo living patterns, from the status resulting States to ensure fair Title VIII seeks projects, injury to those who must continue to live 42 throughout the United States. housing but also ghettos, dispar- increase the 2000d, 3608, 2 supra. nn. 1 and §§ U.S.C. living styles by ity supporting between diverting while “white enclaves” funds however, Have, appellants demon would have which otherwise been used to injury (it a nexus between strated ghettoization. In United alleviate States v. opinion of the district in the postulated SCRAP, 93 S.Ct. “ghetto living conditions are a court (1973), plaintiffs alleged L.Ed.2d 254 ”) very ‘injury’ serious real and very the Interstate Commerce Commission’s fail- omission of federal civil claim of suspend freight increased rates respect to the ure to enforcement with New Castle is, community development grants? discourage recycled products use of That is would “injury there asserted fact” to these to the detriment of the environment which look, If appellants? omission, claimed, we were to as the enjoyed. they they Such appellees and intervenor would have us violated the ICC’s duties under the National look, solely toward New Castle’s Policy (NEPA), Act Environmental of 1969 policies, and land-use we would 4332(2)(C). Court found U.S.C. § negative, if for no other answer aggrieved the mean- those within reason than that a recent decision of this ing of the Administrative Procedure Act court, Seldin, (2d Warth v. 495 F.2d 1187 (APA), 5 702. Id. at S.Ct. Cir.), granted, cert. U.S. The Court also held 40, 42 require us to (1974), would deny standing persons To who are in respect, appellants have no do so.11 In this injured simply fact because many others Castle; with New whatsoever connection injured, are also would mean that showing would even is no there injurious widespread most Govern- in New try to live Castle. questioned could be ment actions no- body. accept that appellants’ We cannot conclusion. gist complaint

But the BOR to implement the failure HUD and Id. at at 2416. As in S.Ct. SCRAP VIII, law, Title the fair an act plaintiffs injured we have in fact by admin change intended to which was functions istrative inaction. See Citizens to Preserve grant programs the history of federal Volpe, Park v. Overton U.S. which, quoted Mondale’s as Senator re- (1971); Scenic suggest, existing, reinforced marks if not FPC, Hudson Preservation Conference v. new, patterns created racial (2d 1965), denied, 354 F.2d cert. " In this instance segregation.12 appellees’ allege allocation Laboratories, Cf. Scanwell Inc. v. to New Castle violation of Titles funds Shaffer, U.S.App.D.C. 424 F.2d 859 per- which contributes to the VI and VIII (1970). This is give plaintiffs sufficient to living patterns in appellants’ petuation challenge administrative viola metropolitan City area. New York statutory tions of duties. This case is dis Here, then, agencies with an affirma- from the recent tinguishable duty encourage housing. heavily upon fair Allo- cases so Judge tive Court relied dissent,13 assessing their im- cation without Moore’s in which standing was tion”); “potential Rights, Equal 11. Warth held residents” of a U. S. that Comm’n on Civil community challenge standing Opportunity (July its ex- 1974). ‍‌‌‌‌‌​​​​‌​​​​‌‌‌‌‌‌​‌​‌​‌‌​​‌​​​​‌​​​​‌​​‌‌‌‌‌​‍lacked to in Suburbia 43 clusionary zoning policies. Littleton, 488, 13. O'Shea v. 414 U.S. Haar, supra (mortgage (1974); 12. See n. 4 at 338 insur- 38 L.Ed.2d 674 United States v. highways examples Richardson, ance and aid to of “fed- partly responsible eral funds for (constitutional (1974) challenge to present segrega- residential socio-economic York, New bringing created by compact,15 denied to constitutional it has designated challenges they to statutes since contain an been as the clearing- areawide articulated, applications house for review of if not minor underlying, aid to enact a stat- assure conformance with Congress regional cannot premise comprehensive plans, designation standing bring to a constitu- conferring ute A-95, occurs under Circular challenge. Monaghan, promulgated Constitu- tional See by the When, Management Office of Budget, Who and Adjudication: The tional Fed.Reg. see 38 implement (1973). But Yale L.J. 1380-83 the Demonstration Cities Metropolitan duty, Con- Congress where has created Development Program Act, 42 aggrieved can U.S.C. anyone gress can declare Intergovernmental and the Coopera- right. Again, stand- corollary enforce the Act, tion The latter com- broader where statuto- ing conceptually impact mands consideration of of the pro- than when prose- violated has been ry duty posed program upon housing and human judicial challenged, discretion cutorial development. resources 4231(c). U.S.C. § conferring no statute review there is since The A-95 specifically Circular calls for com- actions.14 of such ment on the “civil aspect of the very clearly decision that our So 13(d), and project,” extent to which “[t]he understood, appellants we hold project contributes to more balanced agencies as to the federal have patterns of settlement delivery of serv- grants particular question. challenge ices to all sectors of the population, area so on the basis that not do We do including minority groups.” 15(d). the community connection with a sufficient It is true that all that allegedly Tri-State grants of which the the benefit are or for say did here was to proposed purely simply We do so because made. grants “regional significance.” had no But method enforcement of important one appellants it seems to me that precisely are policy set forth congressional in Title minority persons those who are disadvan- agencies’ administration VIII is taged by unbalanced “patterns of settle- either to related urban grants delivery ment and services.” involved, here development. community, or one that is an urban made to Judgment reversed and remanded as to metropolitan area of which to a satellite Lynn, Department James T. of Housing residents, are so related. Development and Urbаn and the Bureau of SCRAP, supra; Traffi- United States Recreation the Department Outdoor Co., Insurance Metropolitan cante v. Life Interior; judgment affirmed as to ap- Richardson, supra. Adams v. supra; pellee Regional Planning Tri-State Commis- sion. that the com- My brethren are in accord must

plaint Tri-State be dismissed. MOORE, Judge Circuit (dissenting); view, I stating my dissenting In note that body, while is an interstate both Essentially Tri-State presented there is in this liti- corporate politic, serving as a common gation question which, of the extent agency Connecticut, New Jersey and plaintiffs, at the behest of the permitting act CIA not to disclose all (1973) (no its ex- 35 L.Ed.2d 536 stand- penditures). Schlesinger Cf. v. Reservists compel prosecution of the father of War, Stop Committee to plaintiff’s illegitimate nonsupport). child for (1974) (no standing 41 L.Ed.2d 706 challenge Congressmen’s reserve statute as Acts, 1965, 413; 15. Conn. Public P.A. Laws of incompatibility clause). violative of the N.J., 1965, 12; N.Y., 1965, c. Laws c. 413. Compact expand was amended in 1972 to Littleton, 14. O’Shea v. responsibility role to embrace Tri-State’s (1974) (no standing planning compact comprehensive for the re- challenge bond-setting, sentencing jury fee Acts, 1971, 450; gion, Conn. Public P.A. Laws 1981-83, practices as violative of 42 U.S.C. §§ N.J., 161; N.Y., 1971, c. Laws of c. 333. D., 1985); Linda R. S. Richard Monticciolo, government Acting our constitutional Area branch of Director of HUD override, Green, of, (New York); discre- Regional can veto the exercise S. William HUD; HUD; by the of judgments Douglas made executive Administrator tionary Carroll, as Director of legislative Regional branches connection with Tri-State (Tri-State); Planning pursuant made Commission Tri- grants of federal funds State; Morton, Rogers C. B. as Community Secretary of Facilities and Advance Department (Interior); Interior Act, 42 Acquisition Land U.S.C. § Watt, Director A. as of the Bureau James (1972) the Outdoor Pro- Recreation Interior; (BOR) Recreation Act,. Outdoor grams Obvi- U.S.C. § and Interior. given, abstract cannot ously an answer were, as it in a vacuum. Hence facts THE COMPLAINT controversy essential to a resolution of this King-Greeley Sewer District analyzed great particularity. The Grant must be short, In who are the relief plaintiffs, what substance, complaint, alleges The seek, legal they do what basis Castle in 1969 determined to install in New grievance, who are the defend- alleged Chappaqua section2 of New Castle ants, wrongs they allegedly com- what sanitary system. purpose sewer For this trial finally mitted wherein did the King-Greeley created the district.3 sewer judgment appeal- court commit error in the application New Castle thereafter made an ed from? financing HUD project.4 specifically “HUD was notified THE PLAINTIFFS black and Spanish-speaking persons Black persons describe themselves as and all other Plaintiffs low income would residents, the Town of respectively, opportunity be denied to benefit from Vernon, Peekskill, City Mount funding Federal of the King-Greeley sewer project by Plains and Town of Os- City of White virtue the fact that New sining, County, through in Westchester who Castle all its zoning laws exception plaintiff Evans) (with prevents development of low and mod- desire to live in Town of New express housing.” erate income (Complaint, par. Castle, County, profess 21.) in the same but granted $358,000 also Nevertheless HUD do so because of New inability project. Castle’s for the “discriminatory alleged land use emphasis of the complaint is on New practices.” alleged housing, Castle’s zoning and land policies. use Neither New King- Castle nor THE DEFENDANTS Greeley were named defendants.5 Plain- The defendants are James T. Lynn, as indirectly objective tiffs seek obtain their Secretary Department Housing aby frontal attack on New Castle on Development (HUD); Joseph and Urban D. theory of zoning6 unconstitutional but Brooks, Jr., merely King-Greeley zoning authority pow 1. Plaintiff wishes to move has no Seldin, sanitary housing County (2d In to “safe ers. Warth 495 F.2d 1187 Cir.), granted, cert. can afford.” which he this court was faced with a (not here) oblique, direct on the attack zon Chappaqua. 2. Hamlet Penfield, town ordinances of the a sub of Rochester. There had urb builders been King-Greeley organized under the New opportunity denied the to construct multi-fami (McKinney 1965). York Town Law ly housing Penfield. claimed zoning that Penfield’s ordinances were uncon application “King-Greeley 4. The in the name of stitutional because barred low and middle District,” Sanitary January Sewer dated persons, especially income members of racial 1972, was submitted to HUD. minority groups, residing in Penfield. Af Carr, reviewing ter Baker presence subsequent 5. Their in the case is as (1962); Association of Processing Organizations, intervenors. Data Service Inc. v. project. tion oblique failing, attack on HUD for A review by an was made by the grant, agencies, Tri-State, “to making affirmatively requisite the sewer Westchester’s housing irrespec- Department Planning and suitable fair and promote appropriate creed, race, color, sub-regional planning agencies origin or national tive of and munici- palities. 3608(d)(5).” (Com- Tri-State classified the project pursuant 36, Action); non-regional significance.” “one of par. First Cause of and plaint, After inspection by an by grant inspector that HUD did “assist and BOR who (“almost the site encourage practice reported New in its that entirely Castle bog”) provide seemed “to denying plain- discrimination” and marsh excel- racial lent wildlife habitat and the right participate proposed tiffs “their in the re- im- enhance (Complaint, poundment Federal benefits.” should ceipt par. quality,” 37, Action.) (approximately one-half of the Second Cause esti- $115,000) cost of by mated was made Interi- they Plaintiffs assert that “are Black citi- or. characterized the Tri-State area as “a suffering from a lack of fair zens highly suitable conservation area for use as opportunity County in which area, managed wildlife where a varied 23) (Brief, p. reside —” and attribute this population already wildlife exists and needs agencies by to the vested suffering Con- encouraged.” (Tri-State to be Appen- power to administer gress with the 11.) dix by the financial made available allot alleging “they Congress agen- [the THE PROCEEDINGS BELOW neglected to administer the civil cies] September defendants, On rights requirements community de- Secretaries HUD Interior and velopment programs promote assistance certain Directors various divisions there- supply integrated housing an increased complaint pursuant of moved to dismiss (Brief, 23) p. and that “[t]he 12(b)(1) to Rules Fed.R.Civ.P. An policies land-use New Castle affidavit of an Assistant United At- States certainly an effective measure of the pointed alleged torney weakness of extent to which HUD and BOR have violat- complaint by stating independent civil obliga- ed their allegation made no therein that either the 25.) (Brief, p. Plaintiffs tions.” would District or the Sewer Turner Swamp would judiciary by focus have the means of this any way discriminatory be in or would not specific and litigation on “the nationwide equally “black, all residents white, serve and BOR of their abdication HUD statu- poor.” rich or tory rights obligations, civil as reflected their failure engage meaningful 9,1973 plaintiffs On October moved for rights-review appli- civil of the New Castle preliminary injunction enjoining HUD from for federal community development cations disbursing any funds King-Greeley for the (Brief, p. 25.) grants.” disbursing sewer district and Interior from acquisition

funds Turner Swamp Grant The Turner Swamp. proposed

In 1971 New Castle acquire court, believing The trial that it could not consisting 35 acres of land largely some of a pass upon the adequately issues raised New bog requested or marsh area. Castle without a both motions record showing Open Space Federal aid for this and Recrea- prior what HUD and BOR had done cases, Camp, grant injunc- this court concluded that to Cohen, (1970); Flast v. 392 U.S. zoning tive relief make or to a declaration that (1968); upon presented O’Shea v. was unconstitutional the facts Littleton, abstract, conjectural hypo- 38 L.Ed.2d would be “too (1974); Collins, Barlow v. thetical to establish an Article III case or con- (1970); troversy” (p. 1193) 25 L.Ed.2d 192 Trafficante v. and affirmed “on the Co., Metropolitan ground standing.” (p. Life Insurance lack (1972); 1189). and other stating grants, “upon the ad- that was grounds directed approving of sover- Department eign immunity”. relat- files of each Tri-State ministrative had been made grants question be avail- to an pursuant formed Compact Interstate (New York, that the federal New plaintiffs Jersey to the and Connecticut) able produc- IV, Article officials involved wherein in sec. 3 it administration is declared depositions. that “It shall enjoy ed for Commission] [the immunity of sovereign party states 1973 the Accordingly, during November any sued in may not be court or tribunal Green, Regional of William depositions S. ” whatsoever; . Cruise, (HUD); V. Gerald Administrator Alem, (HUD); Manager Susan Program (HUD); Development Officer Resources THE BELOW OPINION Mendoza, Metropolitan Develop- E. Robert effect, preamble, As a opinion, (HUD); Bernard C. representative ment that the plaintiffs the court noted had been (BOR); Outdoor Recreation Planner Fagan, wide opportunity “accorded a make Arnold, Regional D. Director and Maurice factual determination of the New Castle taken. Various exhibits were were (BOR) and the applications civil enforce- introduced. procedures by ment utilized the federal de- by to decision and letter dated Prior Equally fendants.” the defendants “had an King-Gree- New Castle and March to elicit opportunity the facts concerning deposition intervene. The sought to

ley of the plaintiffs.” the interest The court Evans was thereafter taken. plaintiff “legal standing concluded that issue of motions, is by raised now cast sharp 5,1974, key factual April many of the On relief this well-developed factual Stipulation issues resolved background.” counsel) by plain- (by Facts entered into (King-Greeley). and New Castle tiffs The court then turned to the threshold stipulation substance of the was that none and, issue, e., opinion, decisive in its i. plaintiffs had “looked for for plaintiffs bring “whether have family himself or his of New the Town Standing then this suit.” was tested Castle”; plaintiff that no town or the of his namely, test” two-pronged “the had been deprived residence federal they or will plaintiffs suffered suffer described; granted as funds herein that they and are “within the “injury in fact” had no information to believe that protected by zone of interests the relevant non-residents New Castle would be re- The court was also statute.” mindful park (Turn- admission to the proposed fused “litigants per- necessity maintain a Swamp) race, including er reason sonal stake in the outcome of the controver- creed, income; color or that no claim is they present.” Odegaard, sies DeFunis v. persons residing King- made 40 L.Ed.2d Greeley district will be use of denied creed, race, color reasons or sewer proof submitted, From the con- the court income; and that there is no claim that the not, cluded that appar- “Plaintiffs do Swamp area has been utilized for Turner cannot, ently allege they will suffer housing. moderate multi-family or low any injury have been stipulation lengthy Upon affida- agencies,” grants clearly made attached, deposition with exhibits vits insure that New Castle must not discrimi- Evans, plaintiff Castle and New the sewer natorily swamp administer joined the federal defend- King-Greeley, projects. (See “Assurance of Compliance” motion to dismiss. ants’ BOR). Accordingly, of HUD and the court pur- had also moved to dismiss Tri-State motion for an plaintiffs’ injunction denied 12(b)(1), (2) (6), Rule an attor- the complaint and dismissed for lack of suant motion, accompanying jurisdiction. affidavit ney there are any I discriminatory features in the swamp grants. sewer and finally the motions were sub- Before Affirmatively what pre- seek is to decision, they to the court for had mitted vent HUD and using BOR from hybrid of a acquired somewhat character. (1) for aid in constructing funds a sewer in original government defendants’ mo- densely populated a small section of the pursuant 12(b)(1) dismiss to Rule tion to Town of New Castle where neither housing Fed.R.Civ.P., supported by zoning question are in because the area is setting forth five-page affidavit facts. already up well built on quarter and half preliminary injunc- for a Plaintiffs’ motion plots7 acre which area is badly in need of lengthy on two affidavits. was based tion health;8 sewers for reasons of (2) and supported by motion was an af- Tri-State’s acquiring swamp protect the environ- Castle-King-Greeley’s fidavit and New mo- quality of by mental the area preserving pages pages of 19 and 7 by tion affidavits spaces for a wildlife open sanctuary and for exhibits. motion dismiss thus plus purposes, educational the very goal and con- status of a motion for summa- assumed cern of so much of our legislation. current judgment which in decision the court ry pertinent inquiry Another stage is: standing. to the issue of How- restricted what would be the result of success ever, only development this factual by litigation? in this Primarily it court able to “cast in sharp [this issue] prevent would be to their fellow-citizens purposes appellate review, For relief.” who are much in as need of sewers as they “standing” may be assumed to be the sole housing claim to be in need of from having light determined in issue all the and sanitary sewers a wildlife sanctuary or developed by the trial facts court in aid of park, preserving thus fast-shrinking open determination. such spaces. dangerous But a far more result be the establishment would of a principle II judgment and discretion exercised legislative the executive and branches of embarking upon Prior to a discussion of government can be examined ques- defined, how the Court has (or overturned) by citizen, tioned even denied, jurisdictional or granted standing, it judiciary, aided to determine wheth- capsúlate would be well the nature of (such er the decision as HUD’s and BOR’s plaintiffs’ in terms objectives. this action here) liking. short, was to their In all First, negative. They do not claim that agencies administrative will have to make they housing pur- have been denied or land their decisions with the knowledge that Big in New because of They chase Castle color. guise private Brother of a attorney- do not seek to overturn the New Castle’s general peering over respective their ad- zoning ordinances unconstitutional. ministrative shoulders. do not assert that the They appropri- funds deprive any housing ated will low-cost sum, In plaintiffs, in a suit challenging project They thereof. do not claim that only park, a sewer and a seek by oblique Appendix 7. Tri-State “The area is almost 8. “[T]he extension of sewers into the service entirely developed existing with residential and greatly improve area will the environmental business uses . . . the establishment public aspects health of this central area of King-Greeley Sewer District area sewers in your improvement town . . [and an] alter, alter, opportunity will not or offer the highest priority, and one which should range proposed of densities for residential every receive favorable consideration for Fed- development, already since the area is substan- eral aid.” tially single-family developed with homes that good quality and have considerable are of Orwell, 1984, fantasy. G. written 1949 as a Letter, period remaining.” of useful life De- years remaining nine Now to stave cember Commissioner of Westchester prophecy, becoming danger- off the date is County Department Planning tо New Castle ously close. Appendix Engineer. Tri-State Town court, proceeding to have this the court largely depends coercive so effect, provide more direct HUD illumination of difficult constitutional throughout the nation. This conclusion is question.’ . . . principle Nor is the argument that “the well-illustrated where statutory different issues are pressure administrative lack of federal . . injury raised. . Abstract is not encourage housing op- fair enough. New Castle to alleged It must be through within its borders local portunity plaintiff ‘has sustained or is immediately community development policy danger sustaining inju- some direct materially grow- directly ry’ contributes result of the challenged statute segregation ing patterns of racial in West- or official conduct. . injury Brief, County.” (Applt’s p. 39). chester or threat of must be both ‘real and immediate,’ ‘conjectural’ ‘hypothet- they In fairness to HUD BOR ” 493-94, (pp. ical.’ p. 675) (ci- have set forth what did entitled to omitted). tations making question. No before any project claim is made that discrimina- year Within the the Supreme Court has King-Greeley tion exists as Turner again reaffirmed its views as to standing in VI, Title Swamp projects. 42 U.S.C. Richardson, United v. 166, States attempted HUD also to follow the 2940, 2000d. 41 94 S.Ct. L.Ed.2d 678 and Schlesin- VIII, of Title 42 requirements 3601 ger Stop War, v. Reservists to seq., original the loss of the rating et albeit 208, 2925, (both S.Ct. required sheet reconstruction and 25, there 1974). decided June In these recent opinion differences of within the De- expressed decisions the Court its opinion as Furthermore, partment. project the sewer to the effect of its former (although also approved by appropriate had been recent) defining decisions standing. Since Likewise, County departments. and State these former decisions are heavily relied Swamp, Turner through as to the Interior upon by majority, an analysis of the and the Liaison Officer BOR State had 25, June 1974 decisions and some of the project qualified grant. rated the as for a preceding decisions should suffice to dem-

onstrate that the majority opinion cannot Ill be with reconciled them. The guiding principles applicable of law Schlesinger In the Court “recognized the proper decision here are

to the to be found vitality” Lévitt, continued parte Ex Supreme Court’s recent decision in U.S. S.Ct. 82 L.Ed. (1937) (p. Littleton, v. O’Shea U.S. S.Ct. 220, 2925), 94 S.Ct. and reaffirmed that (1974). There, here, decision, holding that there must be a con injunction sought an on the basis that injury threatened”, crete “actual or namely, engaged the defendants “have in and con- particular “a injury caused the action in, engage pattern tinue to a practice challenged short, as unlawful”—in “par a conduct ... all of which has de- injury” ticular “personal a stake.” prived continues deprive plaintiffs injury This concrete “is especially impor rights.” constitutional Supreme sought produces tant when the relief a con gave explicit a most statement Court frontation one of the coordinate “standing” stating: the essentials for Government;” branches of the and “the would,

“Plaintiffs in the federal sought courts ‘must in рractical effect, relief allege threatened bring some or actual about conflict with two coordinate resulting putatively illegal from some ac- (p. p. 2932.) branches.” What tion before federal court assume seek to achieve here would jurisdiction.’ . There must be a “distort the role indeed of the Judiciary in ‘personal stake in the outcome’ such as to relationship its to the Executive and the open ‘assure that concrete adverseness which Legislature and the Judiciary to an sharpens presentation upon arguable charge issues of providing ‘government ” It would 2933). opinion, Justice’s as it p. by injunction.’ (p. 94 S.Ct. mine, highly inconsistent is in “if a democ- was no citizen stand- there holding that In general racy permit oversight were to the re- noted Schlesinger, the Court ing in government by elected branches of Data Pro- of Association nature strictive large and in nonrepresentative, measure in- Camp, 397 Organizations cessing Service sulated, judicial (p. branch.” (1970) 25 L.Ed.2d 150, 90 S.Ct. U.S. omitted). 2952) (footnote p. “Unre- injury”), and United competitive (“private standing in taxpayer strained SCRAP, 412 States would create a remarkably citizen suits il- (1973) (“individual en- system supervision of the logical im- natural resources certain joyment of branches the Federal coordinate Govern- paired”). p. 2952). (p. ment.” Richardson, the Court observed that In vein, Mr. Justice In the same Powell com- tendency upon to call modern is a there “recourse to federal courts mented that society but problems all to solve courts the Federal Government has al- [where require- stake” “personal adhered unresponsive recognize legedly been ment, stating: inequities society] serious our needs or more com- society “As become our unprecedented popularity has attained vast, our lives more plex, our numbers Those courts have recent decades. often varied, our resources more more major instrument of social re- acted as strained, increasingly request the citizens 2953). (p. p. But form.” he greater the courts on a intervention unequivocally “how often and how observed any period of our issues than variety of has ex- the Court Court] [the acceptance development. national antipathy to efforts to convert pressed its judicially cognizable in- categories of new open into an forum for judiciary princi- not eliminated the basic jury has political ideological disputes resolution judicial power the that to invoke ple government.” performance about ‘personal stake in must have claimant cases) (p. p. 2954). (citing short, outcome,’ some- ... Morton, In Club Sierra ‘generalized grievances,’ thing more than (1972), 31 L.Ed.2d 636 the Sierra S.Ct. 179-80, 2948) p. (pp. ...” S.Ct. Club, pre- whose members interested in omitted). (citations wildlife, in contrast serving woodlands regard- of Mr. Justice Powell The concern of forests and the to the destruction con- expansion judicial power” ing “the concrete highways, of broad struction here. In his worry be a concur- should well enjoin building of а vast sought rence wrote: he center, including amusement resort and King requirements roadways, Valley in the Mineral standing “Relaxation granted The District had California. Court directly expansion related to the is injunction Appeals but the Court of re- inescap- me judicial power. It seems to among things stating versed other that allowing an unrestricted tax- able such club concern “We do not believe with- standing signifi- would or citizen payer showing out a of more direct interest can power the allocation of at cantly alter standing legal in the sense constitute suffi- level, away from with a shift national challenge responsi- the exercise of cient to government. I form of also democratic of all the on behalf citizens two bilities essentially repeated believe government level officials of the cabinet life- confrontations between the head-on Congressional acting under and Constitu- judiciary] and the tenured branch [the (9th 433 F.2d authority.” tional government branches of representative 1970). run, not, long be beneficial to will 2952) (foot- (p. either.” S.Ct. Court affirmed Court p. writing particular perti- omitted). Appeals, note us, litigation page “say nence to the before these pleadings” that injury in fact “Where, page S.Ct. at 1364: how- proven. could not be ever, Congress public has authorized offi- Tatum, But in Laird v. perform according cials certain functions the re- law, and provided by has statute for stated, claim spondents’ “simply judicial review of those actions under cer- disagree judgments with the made by the circumstances, inquiry tain as to stand- Executive Branch . (p. . .” begin must with a determination of 2325). p. subject On this the Court in question whether the statute authorizes that: logical end, noted “Carried to its plaintiff.” review the behest of the approach would have the federal courts as

Congress Rights in the Civil Act of virtually continuing monitors of the wisdom (Title VI) clearly 2000d evi- action; § soundness of Executive question denced its intention to limit the (p. p. 2326). Accordingly the particular program discrimination to the Appeals Court reversed a Court of decision previ- issue. See U.S.C. 2000d-l. As which had reversed the District Court’s de- mentioned, ously no discrimination injunction nial of an and dismissal of the here, program claimed in either and thus complaint. Title VI cannot support IV plaintiffs. Rights

these Nor is the Civil Act any applicable. of 1968 more Congress THE MAJORITY OPINION clearly stated its policy intent: “It is the Court decisions should be made with an provide, the United within States consti- to, to, eye regard and with due practical limitations, tutional fair consequences thereof. The consequences of throughout the United States.” 42 U.S.C. majority’s decision are that the resi- Chappaqua dents of the Hamlet of will not The Court Sierra Club continues with have their much-needed park. sewer or principle that: The “injury in fact” test this, by instigated And court decree by a more than an requires cogniza- to a group who have no interest requires interest. “It the party ble whatsoever in a King-Greeley sewer or a seeking among review be himself the in- Swamp park, Turner nеither of which 1366). jured.” (p. p. projects admittedly discriminatory deny standing would Court those “indi- majority features. The “Here, states that no viduals who seek do more than vindi- then, agencies are with an affirmative duty preferences through cate their own value encourage housing.” fair However, “fair process.” judicial housing” is not an issue in (if this case consequences of any other result be). say “case” it To plaintiffs’ that right out as pointed any follows: “And if adequate housing “is invaded grants group ‘special with a bona fide interest’ acquisition for sewer facilities or of recrea- litigation, initiate such it is could difficult tion areas in urban communities which are why perceive any individual citizen with not so administered” is a most illogical non special the same bona fide interest would sequitur. Equally illogical say is it to that (pp. 739-40, be entitled to do so.” not also the allocation of funds to New Castle “con- p. 1368). perpetuation tributes to the of [plaintiffs’] living patterns the New York metropoli- SCRAP, supra, In United States $358,000 $57,500 tan area.” would dealing “simply plead- Court was with the scarcely suffice for a low-cost housing ings appellees alleged specific in which project. perceptible distinguished harm them from other citizens who had not used Admitting plaintiffs do not have “a natural resources that were claimed to sufficient connection with the community (p. p. 2416) be affected.” 93 grants to or for the benefit of which the are (footnote omitted). made”, The Court could not the majority believes it can upon HUD and Interi- federal grants. exert court coercion While Judge Oakes impor- “because one carefully thoughtful Brother beyond I concur in Oakes’ enforcement of the sale and rental holding plaintiffs that opinion Housing of the Fair provisions Act. Nor respect whether, standing with to defendants HUD has it decided in the absence of I must some hearing provisions and BOR. add words of cau- and notice like those con- however, tion, explain my position. Rights I tained in the Civil Act of Con- Judge Pollack’s decision was gress believe that intended that the federal courts pragmatic view policies based on a that the case HUD’s should review in relation to itself, injunctive against Housing so far as relief grants under the and Urban De- concerned, is may of federal funds with the velopment power Act of ultimately spinning against end a mere injunctions issue federal assistance wheels, plaintiffs may for the not have suf- non-pinpointed programs not, which are themselves, “injury enjoin fered sufficient fact” to discriminatory. il that, na- conformity Judge notes,

I think with our case. As Oakes that policy disgrace meaning SCRAP, to eliminate the is the v. tional United States discrimination, HUD, plaintiffs supra. should v. 436 F.2d racial Cf. Shannon view, (3 1970). my In person may heard to test whether HUD has done its be be person” “aggrieved meaning within the duty premises. Association of Data Act, of the Administrative Processing Organizations, Inc. v. Procedure Service remedy administrative inac- Camp, § U.S. tion without result, necessarily having (1970), supports standing as does may for other relief. Hе SCRAP, aggrieved by be supra. perform HUD’s failure to its statutory duty close, Although question minority which is inquiry, for his class benefit. fairly geographical near the people area injured not have been may He in fact suffi- may involved be “aggrieved” by deemed ciently to coerce executive agency to inaction, agency general at least in the way withhold funds. law that the environmentalist students standing On the to sue I Tri-State re- injured by the inaction of the Inter- spectfully disagree with my brother Oakes. Commission in state Commerce United balancing There must be some of interests. SCRAP, supra, or the class of States every To allow denial of significance area Richardson, black students in Adams v. courts, to be reviewed particularly at 480 F.2d U.S.App.D.C. persons as remote instance from area (1973). The failure the Executive plaintiffs are, as considerations these would statutory Branch to enforce a duty imposed simply plethora invite a of suits with a may cause in fact to the class grave question of judicial the ultimate com- affected, though, Judge even Oakes petence to solve them. Whether a sewer states, injury would exist “no without pipe in a town is a concern large of a area D., statute.” Linda R. S. Richard litigated need not be in the context of racial 617 n. discrimination. It is better to dismiss the mean, That does not complaint now, Tri-State as Judge sure, they compel judicial that can re- Pollack In respect did. I agree with sense, Judge view. In that recog- Oakes Judge though Moore for somewhat differ- nizes, standing judicial review are dis- ent reasons. crete issues. Lastly, I must myself disassociate raising discrimination, In cases issues my Brother Moore’s statement the is- considerations, as well as environmental all question sue is “the which, extent to conferring standing under the Admin- at the plaintiffs, behest of the istrative Procedure Act does is to let an branch of our government constitutional controversy” Article III “case or be heard override, of, can or veto the exercise discre- sharp adversity required. with the See tionary judgments made the executive SCRAP, supra. legislative branches in connection with must courts still determine the ex- grants of federal pursuant funds made tent, any, permissible if federal coercion the Community Facilities and Advance withholding of by the federal assistance. Act, Acquisition Land 42 U.S.C Richardson, supra. Cf. Adams v. That (1972) and the Outdoor Recreation Pro- why proper it is to allow to these Act, grams (1963).” U.S.C. 4607 When raise, judi- so in a Congress imposed on the Secretary of HUD context, obligations cial what the of HUD the duty affirmative “pro- administer all are and whether HUD has met them. We grams and activities relating to housing and in granting standing should be liberal development urban in a manner affirma- challenge alleged where the is to adminis- the tively policies to further of this sub- trative failure to act in the face of an chapter,” 3608(d)(5), 42 U.S.C. did not alleged statutory duty, particularly in a civ- disregard mean that HUD could that man- fact, light Supreme In the opinion In HUD has of Court’s date “in its discretion.” Seldin, to determine loсal racial and the adopted procedures supra, many Warth v. the grant. in the case of New Castle Court policies recent decisions on sub- “standing” or, ject accurately, of more — case, well be The case a close but it thereof —referred to in the lack dissent re- of the mainstream of court not out decision, original panel’s F.2d agency view inaction in the face of a we now hold that lack duty. Congress says When feder- statutory standing to maintain this action because al not be used if certain condi- funds shall sustained no as a they have conse- exist, the courts are often not without tions appellees’ actions. quence Accordingly, jurisdiction majority opin- review. The district court’s dismissal we affirm the that New shall not ion not mean Castle does appellees.5 as to all complaint If that should be the end its sewer. process it will be result of I. courts, Congress, not deter- because facts, appel- insofar bear on par- policy against national mined the sue, substantially lants’ un- funds, federal which the ticular use of fully and have been set forth disputed, required to respect. courts were A opinions and dissent. brief the earlier point. summary will suffice at REHEARING EN BANC ON King-Greeley In Sewer District KAUFMAN, Judge, and Before Chief special (“District”), purpose district with- FEINBERG, MANSFIELD, MOORE, (“Town”) Town of New Castle MULLIGAN, OAKES, TIMBERS, GUR- County (“County”), sought Westchester FEIN, GRAAFEILAND and MES- VAN the Department aid from federal Hous- KILL, Judges. Circuit (“HUD”) Development and Urban MOORE, Judge: Circuit of a sanitary the construction sewer facility of Chappaqua. in the hamlet In panel weeks after a three divided Some sought federal funds from the Town De- Judge dis reversed Pollack’s of this Court Bureau of partment Interior’s Outdoor complaint1 Su appellants’ missal (“BOR”) acquire Recreation in order its decision preme announced Court Swamp (“Turner”) preservation Turner Seldin,2 originated a case which Warth v. park. area public as a wildlife Both of Thereupon appel the federal this Circuit.3 these were approved. Thereafter reconsideration of this case urged lees Regional Planning the Tri-State Council banc;4 citing impact both the of Warth en regional (“Tri-State”), “clearinghouse” in panel holding, impor and the on the earlier the area for coordination and review of holding principles of stand tance of grants, pro- declined to review the majority A of the en banc ing generally. grants. priety rehearing similarly, and a was panel felt August pursuant dispute Appellants ordered do need —who 35(a). The appeal was sub F.R.App.P. Chappaqua’s residents for a sewer or the argument. desirability further oral of preserving public without Turner for mitted Seldin, (2d Lynn, (S.D.N.Y. 3. Warth 495 F.2d 1187 Evans v. Cir., F.Supp. 1974). rev’d, 1974), The Court’s af (2d 1975). subsequently opinion, 537 F.2d At supra, was firmed n. 2 Supreme Court, announced, time the earlier opinions Judge and concurred in announced Hays Housing was the James T. Lynn Secretary Judges Moore Timbers. been suc- He has Development. and Urban Hills, A. now Carla who appears ceeded by brought Appellee’s petition pursuant record pursuant F.R.App.P. appellee 35(b). F.R.App.P. 43(c). The earlier affirmance dismiss- panel’s 45 L.Ed.2d 2. 422 Planning Regional al as to Tri-State Council is, course, left undisturbed. 590 an action been of short,

recreational use—filed in federal benefit to them. they In claiming that grants allege specific, district court no personal, adverse results support primari- Town’s amounted whatsoever from the for sewer and white, single-family housing pattern ly park in construction.10 government’s violation of the federal af- II. duty

firmative to eliminate discrimination housing encourage opportunities fair The aid of the federal courts is not Appellants allege the United States.6 that freely available to all who seek it. Access “aggrieved” by they persons are the action by judicial to the courts is restricted discre the federal agencies within Tri-State statute,12 tion,11regulated by subject meaning of the Administrative Proce- overriding limitation13 of Article III of Act, 702, dure and the U.S.C. 1968Civil § Constitution that federal courts de Rights Act, 3610(a) (d). § U.S.C. only cide cases and controversies.14 The Standing on ground to sue is asserted controversy requirement juris case and is a are low moderate in- dictional limitation which can be enlarged belonging come minority individuals7 Congress neither act of nor the courts suffered, groups who have as a result of the jurisdictional it sponte. sua Because agencies’ federal “absence of meaningful origin, nature and Constitutional in it ais rights enforcement”,8 civil a lessening of requirement”15 “threshold which must be impetus”9 “federal encourage integra- federal satisfied before the court can take tion and fair in the housing County. Appel- cognizance any recently claim. As was specific allegations lants make no of dam- Supreme stated Court in Preiser age. 395, Newkirk, 401, 2330, 95 S.Ct. (1975): 45 L.Ed.2d 272 Appellants do not reside in the Town.

They make no claim that have ever power exercise of under sought housing or been refused depends Art. Ill of the Constitution on They Town. interest any have no Town ‍‌‌‌‌‌​​​​‌​​​​‌‌‌‌‌‌​‌​‌​‌‌​​‌​​​​‌​​​​‌​​‌‌‌‌‌​‍the existence of a case or controversy. property, any or connection with past or As the Court noted in North Carolina v. Rice, proposed project 244, 246, the Town. U.S.

They allege do not of the chal- either 30 L.Ed.2d 413 a federal court has neither lenged projects will discriminate power advisory to render opinions nor They claim that the them. make no “to decide questions that cannot affect from diverted actual or funds litigants the case before “ housing project that could proposed judgments them.” Its must resolve ‘a Act, Rights Title VI of the Civil 6. 14. These two interchangeably; terms used 2000d, VIII of the and Title 1968 Civil § “controversy” distinguishable “case”, if Act, Rights respectively. 42 U.S.C. all, generally in that it is held to embrace Wright, civil See C. actions. Federal appel- 7. These terms are nowhere defined in (1970); Nixon, Courts cf. United States v. lants’ briefs or memoranda. 696-7, 3090, 3102, U.S. (1974). rehearing Appellants’ at 21. 8. brief on 9. Ibid. Littleton, 15. In O’Shea v. 94 S.Ct. (1974) 38 L.Ed.2d 674 contrary, 10. On the Mrs. Evans has conceded petitioners’ dismissed Court com- September, she has resided in since plaint ground satisfactory altogether which is to her. satisfy requirement “failed to the threshold See, Processing Association of Data Servicе imposed by Art. Ill Constitution that 150, 154, Org., Camp, U.S. Inc. v. power those who seek invoke the of feder- (1970). allege al courts must actual case or con- troversy.” 94 S.Ct. at 675 Ibid. (emphasis supplied). Id., States, citing Muskrat v. United 55 L.Ed. 246

591 grievance that his particular meets controversy admit- and substantial real is the standard,17 “essence”18 of which a through relief decree ting specific “injury fact”19 suffered character; presence of distinguished as a conclusive plaintiff as a result of the defendant’s advising what the law opinion an actions.20 upon state of hypothetical a would be Ibid, Aetna Life Ins. quoting

facts.’” over, in, a interest or concern Mere Haworth, 227, 241, 300 U.S. 57 S.Ct. v.Co. acts —no matter prospective defendant’s 461, 464, (1987). (Emphasis 81 617 L.Ed. felt —is insufficient to demon deeply how supplied). in fact.21 What must be shown injury strate or of a case contro hallmark perceptible harm”22 —a “specific is a presence of adverse interests versy is by the injury”23 actually “concrete suffered parties per who have a substantial clearly between immi particular plaintiff,24 else nent,25 capable stake in the outcome is sonal which of resolution sue, in its Abstract or Standing Consti redress in the federal courts.26 litigation.16 sense, plaintiff a showing by enough:27 is not hypothetical tutional Carr, D., 618, 614, 1146, 1149, of Baker v. In the well-known cases ard 410 U.S. 93 16. S.Ct. 703, 186, 204, 691, (1973). 7 L.Ed.2d 82 S.Ct. 35 369 U.S. L.Ed.2d 536 (1962), framed the is- Court 663 following manner: sue in the Morton, 727, 739, 21. v. Sierra Club 405 92 U.S. alleged personal 1368, such a 1361, (1972). “Have S.Ct. 31 L.Ed.2d 636 controversy as outcome of the stake that concrete adverseness which assure SCRAP, 669, 689, 22. United States v. U.S. 412 presentation upon sharpens issues 2405, 2416, (1973). 93 37 S.Ct. largely depends for the the court so ques- constitutional difficult illumination Schlesinger Stop War, 23. v. Reservists to question gist This tions? standing.” 222, supra at U.S. 94 S.Ct. 2932. 418 also, Stop See, Schlesinger Reservists v. Morton, supra 24. Sierra Club v. at 405 U.S. 217-218, 2925, 208, War, 94 S.Ct. 418 U.S. 740, 1368-9; SCRAP, 92 States v. S.Ct. United 2930, (1974); Socialist Labor 41 L.Ed.2d 706 687, at 412 93 S.Ct. U.S. 2415-6. 585, 586-7, Party Gilligan, 92 S.Ct. 406 U.S. v. 1718, (1972). 1716, Cf. Golden Littleton, 488, 494, 25. O’Shea v. 414 U.S. 94 956, 103, 108, Zwickler, 89 S.Ct. v. (1974). 38 L.Ed.2d S.Ct. 674 (1969). 959-960, 22 L.Ed.2d 113 “ III limitations on fed- terms of Article 17. ‘[I]n Newkirk, supra 26. Preiser v. at 422 U.S. 95 question jurisdiction, the of stand- eral court S.Ct. 2334. dispute ing whether is related presented adjudicated sought will be to be See, Rice, 27. North Carolina v. adversary and in a form histori- context 402, 404, (1971), 30 92 413 S.Ct. L.Ed.2d capable cally resolu- viewed Court, quoting wherein the Life Aetna Ins. Co. Processing Serv- of Data Association tion’.” Haworth, supra 240-1, v. at 300 U.S. 57 S.Ct. 151-2, Camp, Org., U.S. v. 397 Inc. ice 464, held that: 827, 829, 25 L.Ed.2d 90 S.Ct. court, cognizable “To 83, 101, suit Cohen, 392 U.S. quoting v. Flast concrete, touching ‘must be definite and 1942, 1953, S.Ct. legal parties having legal relations of adverse controversy’ “[Wjhatever ‘case or * * * 18. else It interests. must be a real and embodie[s], requirement essence its is a re- controversy admitting specific substantial Schlesinger ‘injury quirement fact’.” v. through a decree conclusive char- relief of a War, supra Stop at 418 U.S. Reservists to acter, distinguished opinion from an advis- 2931, citing Association of Data S.Ct. upon hypotheti- the law would be what ” Camp, supra Processing Org., v. Inc. Service (quotation cal of facts.’ marks omitted state at 397 U.S. 90 S.Ct. supplied). emphasis See, also, Schlesinger Stop the Reservists Ibid. 221-222, War, at supra, U.S. at 418 Atchison, See, Cohen, S. supra, quoting T. & Flast v. from McCabe v. at U.S. 1953-4; Seldin, supra, Co., Warth v. F. R. 504-5, 2208; Odegaard, (1914); R. S. Linda v. Rich- DeFunis U.S. L.Ed. 169 the zone protected of interests to be course, something must be pleadings Of by the regulated statute or constitutional ingenious academic exercise than an more guarantee question. plaintiff A must al- in the conceivable. at 830. or will in fact be lege that he has been challenged by the perceptibly harmed practical Recognition of the need for a action, imagine he can not that agency type “zone of interests” determination was he could be af- circumstances in which comment, by evidenced the Court’s it agency’s action. And is by fected case, “[wjhere same statutes are con- allegations must be equally clear that the cerned, the enlargement trend is toward capable proof at trial. Unit- true and people protest the class of may who admin- SCRAP, supra, at 412 v. U.S. ed States However, istrative action.”30 as Chief Jus- (emphasis 688-9, sup- at 2416 93 S.Ct. clear, Burger tice subsequently made such plied). inquiry does not supersede any way or in upon encroach the threshold determination particular may statute While injury in fact.31 party, it rights upon a' cannot abro confer Although we [referring there to Associ- requirement that a gate the Constitutional ation of Data Processing Org., Service injury some due to a in fact suffer plaintiff Inc. Camp, supra v. noted that the cate- ] law in order to maintain an breach gories judicially cognizable injury were courts.28 Whether in the federal action broadened, being we have more recently within the “zone of plaintiff not a falls stressed that the broadening of categories by protected the statute— interests”29 “is a different matter from abandoning can, words, rightfully in other whether he requirement that the party seeking granted by assert whatever stat review must himself have suffered an entirely separate inquiry ute—is an injury.” Morton, Sierra Club v. 405 U.S. injury whether has been question 727, 738, 1361, 92 1368, S.Ct. 31 L.Ed.2d rejected se. per When the no suffered (1972). And, in defining the nature “legal interest” as a test for deter tion of injury, we have only recently sue, mining standing Court flatly: stated “Abstract injury is not Processing Association Data held in enough.” Littleton, O’Shea 150, Camp, 397 Org., Inc. v. U.S. Service 488, 494, 669, 675, 94 S.Ct. 38 L.Ed.2d 674 827, (1970): 25 L.Ed.2d S.Ct. (1974). Schlesinger v. Stop Reservists to goes interest” test “legal War, 208, 218, 2925, U.S. 94 S.Ct. standing question is dif- merits. (1974). (citation 41 L.Ed.2d 706 concerns, apart ferent. It from the omitted; emphasis original). test, “controversy” question thé “case” or The Constitutional imposed by limitation sought protect- whether the interest to be controversy the case or requirement has complainant arguably ed within 312, 316, Littleton, U.S. 493-4, S.Ct. supra O’Shea v. at 414 U.S. Goode, (1974); recently, Rizzo v. most (quotation n. mark and cita- 362, 371-72, 46 L.Ed.2d omitted; supplied). emphasis tions L.W. Processing Org., of Data Service 29. Association See, Littleton, supra 28. O'Shea v. at 414 U.S. supra Camp, at 397 U.S. Inc. v. S.Ct. 675; 493-494, Schlesinger v. Reserv- War, Stop supra ists to at 418 U.S. S.Ct. 2931. Ibid, supplied). (emphasis previously Congress “We have noted that creating legal rights, enact statutes See, also, Morton, supra Sierra Club v. standing, invasion of which creates even n. wherein the though injury no would exist without Court, finding petitioner had suffered purport statute. But such statutes do nоt fact, no did reach the issues con- right bestow the to sue in the absence of cerning the “zone of interests” under the stat- statutory right indication that invasion of the ute. likely has occurred or is to occur."

59B ag- III. applied “person specifically been 810(a), 42 of section language grieved” appellants doubt that the in this Any case Rights U.S.C., Civil Act of injury which alleged abstract rely support primarily constitutionally insufficient to sustain their Trafficante v. standing. In their claims sue, resolved standing to been Co., Life Ins. Metropolitan Supreme Court’s decision Warth Sel- (1972), the 364, 34 L.Ed.2d 415 Su- din, supra, Warth involved a Constitutional housing dis- that where preme Court held challenge zoning practices alleged, language of crimination Penfield, town New York. suburban “a intention 810(a) congressional reflected petitioners were individuals Among the who permit- as is standing broadly to define to sue on basis of asserted ted Article III the Constitution.”32 as low moderate status income upheld was standing to sue petitioners’ The who were members of a minori- individuals express ground that on the group, suffering and were from the ty peti- in fact to injury injury or exclusionary of Individual pattern housing town’s in tioners, missing primarily ingredient preserved found which white the alleged [supra] v. Morton Club single-family dwellings33 enclave of Sierra —the at 367 rights allegations at 93 S.Ct. civil which here. same are supplied). by appellants present case.34 (emphasis made 33. Warth v. 32. 409 U.S. wherein respecting marks plied). violation which U.S. Act § the maintenance itself wherein ing Act of civil purportedly made to a federal Town’s U.S. Morton, supra borhood. suits route violation ly specific grant claims denied 424 U.S. Warth, v. 1974), We to attack Appellants City only plaintiffs of their Service at 44 LW 3501 153-4, brought under standing to sue. to the same as an note that is inaccessible aff’d 521 1871); 370-71, statute as and citation See, the Court exclusionary practices, at 2203-4. the Court exists wit, Parma, under U.S.C. § damage the choice local at Seldin, Org., 90 S.Ct. also, allegedly and Association of federal aid. This is have an 96 at right F.2d 1401 of who charge S.Ct. at alleged Inc. v. reached a similar conclusion Rizzo in a supra, zoning flow—if at all—from 93 S.Ct. at 367 pleaded held Administrative because the omitted; emphasis sup- basis for their action U.S. F.Supp. locality affluent more However, allege deprivation made more v. exclusion from laws Camp, supra similarly respecting (6th laws, and five attempted law. Goode, the violation appellants. integrated neigh- of Data Process- at 44 L.W. by pleading which, through at bar are Sierra Club assertedly 92 S.Ct. white suburb not (Civil Rights In 1975), (N.D. an indirect (quotation supra Procedure directly in preserved Cornelius from the 492-496, indirect L.Ed.2d alleged at hous- Their Ohio cert. of a 423 low of v. Parma’s city of Parma income black individuals Parma and three income ings violated, inter and specifically, of asserted under court stated white character ing blacks and prospective builders and ma’s further' effect barriers to exclude low and of an blacks and its equal City’s these City. The ordinances are said to have the come medial action. natory housing that its basic thrust is directed assisted cess declaration that the ordinances of no dinances the ma in — “A fair “. establishing Parma, agents white Government’s adoption effect, housing projects absent a housing conduct, ordinances, ^[*] enacting access to educational integrated 42 U.S.C. discriminatory jobs in housing programs, previously . reading residents of Parma of the interfering local ordinances that other minorities from joined other ^[*] of and from organizations in the ordinances injunction against practices engaging maintaining the Parma area as well height challenged enacting Cornelius suit. minorities with two white citizens of alia, ^[*] community, implementation of the building image 3601; generally discussed the Fair housing practices— aimed at residing It is limitation for build- ^[*] complaint sponsors in further and affirmative re- 3612. The and of moderate jurisdiction seek as prohibiting in conduct of alleged within from Parma, has not as opportunities. implementing ^[*] charging in are void discouraging Housing virtually living outside referendum Parma up setting regard of low-in- excluding equal indicates discrimi- federally that benefits relief a ^[*] income district depriv- that Par- City was Par- low Act the the all- yet ac- or- members of the class to they be- Court, Writing for the Mr. Justice Powell long they and which purport represent. re- primacy reiterated Article Ill’s petitioners these Unless can thus demon- fact irrespective quirement requisite strate the case or controversy statute,35 right granted by of action any personally between themselves and re- petitioners had and concluded spondents, “none seek relief on be- injury. allege such Because the failed to half himself or other member of analysis so directly Court’s bears Littleton, class.” O’Shea case, quote length instant we from the 669, 675, opinion. Warth See, (1974). g., Bailey Patterson, e. turn first to the claims of [W]e 31, 32-33, 549, 550-551, Ortiz, Sinkler, Reyes, Petitioners Broadnax, each of whom asserts In their complaint, petitioners person as a of low moderate income alleged conclusory terms and, as a coincidentally, member among the persons by respon- excluded minority racial ethnic group. We actions. dents’ None of them has ever assume, taking allegations must Penfield; resided each claims at least true, complaint as Penfield’s zon- implicitly desires, desired, he or has pattern ing ordinance and the of enforce- asserts, do moreover, so. Each that he by respondent ment officials have had the time, some made effort at some to locate excluding and effect purpose persons housing in Penfield that was at once income, of many low moderate within his means and adequate for his whom are members racial or ethnic family’s needs. Each claims that his ef- minority groups. assume, We also proved forts may assume, fruitless. We here, purposes that such ex- intentional petitioners allege, respondents’ that ac- clusionary practices, proved if in a proper contributed, tions have perhaps substan- case, adjudged be would violаtive of the tially, to the of housing cost in Penfield. and statutory rights constitutional of the But there the question remains whether persons excluded. petitioners’ inability to locate suitable the “But fact these petitioners that housing in Penfield reasonably can be share attributes common to persons who resulted, said to have any concretely may have been excluded from residence way, demonstrable from respondents’ al- town is an predicate the insufficient leged constitutional and statutory infrac- petitioners conclusion for the that them- tions. Petitioners must allege facts excluded, selves been have or that the it reasonably which could be inferred respondents’ assertedly illegal actions that, respondents’ absent the restrictive rights. their have violated Petitioners zoning practices, there is a substantial allege and that they personal- must show probability they that would have been injured, not ly injury have been that to purchase able or lease in Penfield and other, by been unidentified suffered immediately injured directly plaintiffs. holding district court’s was affirmed without yet opinion by Appeals, No conflict has arisen between the and certiorari actual the Court recently by plain- denied low and moderate income the Court apparently which continues to adhere to tiffs the actions rela- defendants Seldin, supra. holding in Warth Indicative tive to these ordinances. presence injury only of abstract fact Congress express 35. “. that if the to Court were entertain this suit right persons of action to who otherwise suspect on merits declare the ordi- prudential would barred rules. invalid, nances action not would course, requirement Of Art. Ill’s remains: catalyst serve for the construction of plaintiff allege still must a distinct and housing undeniably by plaintiffs.” himself, palpable injury needed even if it is an F.Supp. (emphasis supplied) injury large possi- shared class of other held, here, litigants.” court as we ble district hold that present the asserted cause of action did not (citation 422 U.S. at 95 S.Ct. at 2206 controversy. F.Supp. omitted; case emphasis supplied). approved, re- the monies could that, conceivably the relief the court affords if other, inability petition- gone totally to some as yet asserted quested, R. imaginary project County Linda S. Rich- in the removed. which ers will be making have had D., supra. might the result more ard sary rely fact, harm afford better must gations would cise “real benefit intervention. onstrating bility, unsubstantiated cial review” injury, “no [broader] We We hold challenge exclusionary ^[******] facts to might allegations. need to exercise allege find the him, had relief. be little there can be their situation applied.” and that respondents acted tangible way improve were the court demonstrable, particularized specific, or that relief can be more than the Petitioners Absent record devoid than which the court’s that a required by the he challenged concrete facts dem- no confidence of a Schlesinger v. Re- plaintiff the powеr by allegations of personally have been might from the courts’ zoning here necessary remote of the neces- otherwise, who seeks practices practices framed ruling would possi- judi- alle- pre- ty” and, amounts yond under Article quate less restraining the federal sult in ing status deprived posed pellants relief requested prived ers, tunities —in non-existent. We likelihood ill likely who claimed needless housing status. even the realms of “remote note sought housing developments allegedly here do not available to them. This them demonstrate is so tenuous as to that, result pure speculation betterment of contrast benefits of at III. say, as in this case that an County. The suffered and the any in any rejected allege actual Warth, Indeed, the Warth agencies completely appellants’ improvement requisite —there least two had been de- approach since the link between Warth. here would the grants conjecture injunction injunctive would possibili- goes petition- remedy is even oppor- inade- hous- pro- be- ap- re- It War, Stop the su- servists Committee S.Ct., U.S., 221-222, 94 at at

pra, 418 IV. Seldin, supra, v. at 422 Warth 2932.” repeated Court has warned Supreme The 2207-8, 502-4, 507-8, at 95 S.Ct. U.S. straying in ly past hazards in omitted; (footnotes emphasis 2209-10 requirement of a the Constitutional from original). supplied part; brackets Absent adherence to controversy.36 or case mandate, applies same rationale courts become the Constitutional case greater, not force to the at val equal, personal if the vindication forums for Here, allege have failed to preferences, usurping the political bar. ues and facts whatsoever indicative of as any legislative public branch the focus grants lobby, them a result usurping well the suffered debate They Town. do not primary responsibility the District and the for the executive’s Warth, claim, petitioners as did of federal law. Federal implementation unsuccessfully sought housing cannot, consistent with the Constitu courts Town, jurisdiction arbitrarily rejected tion, that the Town exercise vindicate or causes;37 they empow are They of benefit to them. chosen housing proposals litigants’ that, specific only response not been relief had ered claim Rice, Seldin, See, g., supra supra 499-500, v. e. North Carolina Warth v. at 422 95 at U.S. 404; 246, Sierra Club v. 92 S.Ct. S.Ct. 2205-6. Morton, supra 732, 3, n. 92 at 405 U.S. S.Ct. Beals, 45, 48, 1365; 90 Hall S.Ct. SCRAP, supra at U.S. United States 412 200, 201-2, (1969); Flast v. 214 24 L.Ed.2d 687, 2415-6. ‍‌‌‌‌‌​​​​‌​​​​‌‌‌‌‌‌​‌​‌​‌‌​​‌​​​​‌​​​​‌​​‌‌‌‌‌​‍1950; Cohen, supra cf. at U.S. cree, to, remedy, particularized and in order to the Court’s rejecting decision showing injury.38* of individual metropolitan area desegregation order actually was based fundamental limi- time, especially or is This not on the remedial powers tations place, attempt general dissertation on opera- federal courts restructure the functioning of judicial supervision of the government tion of local and state enti- agencies. guard To administrative power is plenary. “may ties. That It tritely danger may today said such ‘only be exercised on the basis of the Constitution in of a consti- the draftsmen ” altogether little- [738, unaware of tutional violation.’ 1789 were not U.S. at tendencies to endeavor to changing L.Ed.2d, human at 1087], S.Ct. at quot- assigned The well-defined role power. seize v. Charlotte-Mecklenburg Swann judiciary to be in Article is found III Education, Board of 16 [91 possible To avoid a of that Constitution. 28 L.Ed. S.Ct. 566-67]. declaratory judgments tendency to seek Goode, Rizzo v. See U.S. S.Ct. [96 advisory opinions possibly hypo- on matters 598, 46 L.Ed.2d Once a constitu- 561]. thetical, role of the under courts Article found, tional violation a federal court is passing upon III confined to an actual required to tailor scope “the of the reme- controversy”. Even “case within these dy” to fit “the nature and extent of the years restricted limits the courts over the constitutional violation.” 418 U.S. at 744 have not suffered want business. at S.Ct. 41 L.Ed.2d 1091]; at [94 Supreme Two recent decisions Swann, supra, [402 U.S.] [91 seem to Court would illustrate contin 566-67], 28 L.Ed.2d at vitality ued of Article III reluc ****** of that Court to become tance an arbiter of They all ills. human Milliken v. Brad Milliken decision was [T]he ley, L.Ed.2d based on basic limitations on the exercise - Gautreaux, and Hills v. equity power of the federal courts U.S.-, firmance order, Milliken reversed the Court of LW 4480 on the of a grounds multi-district that the order consti desegregation Appeals’ Court af der in The District Court’s ^[******] Milliken held to be desegregation imper- or- impermissible indeed, tuted an unconstitu remedy missible not because it envisioned — equitable tional —exercise of federal courts’ against wrongdoer relief extending be- pow yond city in which the violation oc- ers.40 contemplated curred but because it ju- In Gautreaux the Court the reiterated restructuring dicial decree the operation importance of this consideration in the government of local entities that were strongest language: implicated any in not constitutional viola- Although opinion the Milliken discussed tion. practical many problems the that would at-, be encountered in the consolidation of 1544, 44 -U.S. 96 S.Ct. at LW numerous school districts by de- at 4484. Seldin, supra at pupils, Warth v. 422 U.S. supported tion of cannot be on the S.Ct. 2205. grounds represents merely that the devis- suitably remedy of a flexible for the viola- Milliken, Bradley (6th 484 F.2d 215 rights already prior tion of established our 1973). supported only by It decisions. can be dras- expansion right itself, the tic of constitutional urge of “The view the dissenters af- [who any expansion support without in either desegregation firmance the of lower court’s principle precedent.” constitutional or order], system the of that existence a dual in (footnote U.S. at 94 S.Ct. at 3128 omit- City Detroit] of can be made the basis of [the ted). requiring transporta- a decree cross-district allowing to that principles taxpayer the facts be- unrestricted these or

Applying standing significantly concluded citizen would it, the court Gautreaux fore alter power of properly was com- allocation at the wrong which the the national that level, was away below not with a shift from a the democrat- byof plained I support government. ic of also constitutionally insufficient form believe appropriateness repeated essentially and feasi- remedy sought; head-on importance crucial remedy were of between of confrontations life-tenured bility representative the exercise of the prerequisite branch branches and a not, The will powers42 necessity government long run, equitable of courts’ Article III public adherence to either. The be beneficial for continued confi- standing proper and the essential dence former and requirements equity powers exercise of vitality on the critical the latter limitations well Burg- in Mr. Chief Justice if we do not exercise underscored erode self-restraint power in United utilization of our majority opinion negative States er’s Richardson, actions of other branches. We every in which the Court held mindful of the should contradic- plaintiff standing lacked that would arise if a taxpayer democracy tions permit general oversight to sue. of government by elected branches a non- society has become more com- “As our large and in measure representative, in- vast, more our lives plex, our numbers sulated, judicial branch. varied, and our resources more more S.Ct. 2952. strained, increasingly request the citizens Powell offered historic dangers inherent words: dicial jury has not eliminated variety ple thing new claimant must Concurring in the intervention national power; outcome,’ categories (citations more than . .” of issues than development. Constitutional we would well to invoke have a omitted). ... the courts on a ‘generalized cogent analysis judicially cognizable holding the relaxation 166, 179-80, judicial power do ‘personal restraints on acceptance period short, basic grievances,’ Richardson, Mr. Justice recall stake in greater princi- some- our ju- his in- lies in the vidual selves creasingly their limited resources the effectiveness by litigants constitutional resolution government action. maintained some ticulated [W]e ^[*] operations of irreplaceable amorphous from all risk a citizens oppressive ^[*] from their protection public esteem who public-interest Mr. rights and liberties of progressive impairment taxpayers cannot ^[*] value of the Chief Justice Marshall general government, the federal courts if It it has historic ^[*] minority distinguish is this supervision discriminatory suits afforded the diverted in- ^[*] all role to the power role, brought citizens. groups them- ^[*] indi- ar- permitted requirements peaceful and has Relaxation courts judi- directly expansion counter-majoritarian related coexistence inescapable judicial It seems me review and power. implications cial question “standing” question was In Gautreaux there no but In Milliken that although plaintiffs (respondents Supreme the Chief Justice in his involved in the not necessity standing opinion been aware this must have had seek vindication of their Court standing challenge in he stated “the made because a footnote and the defendants no plaintiff proper party standing respecting a wаs not before the district the NAACP as court they trial court and is not issue to dismiss the action. See in the when moved contested 722, 2, Chicago Housing Authority, note 94 S.Ct. 418 U.S. Gautreaux v. in this case.” (N.D.Ill.1969). F.Supp. 907 democratic principles upon our which to aid construction of parks sewers and in Federal Government final analysis Francisco. San rests. 418 U.S. S.Ct. 2954. Thus case differs sharply from those by dissenting cited our esteemed action, appellants brothers, In this are invok jurisdiction plaintiffs in each which ing solely the Court’s impose would be upon by appellees priorities ap which the benefitted relief sought. In Hills v. pellants may Gautreaux, -U.S.-, favor. Sincere their views be, they not properly addressed to the L.Ed.2d U.S.L.W. 4480 Disagreement government instance, courts. ac plaintiffs, who were tenants in felt, strongly tion or however policy, does funded, federally racially segregated hous not, alone, “injury” constitute an ing predominantly black ghetto areas in in the Constitutional sense is cogniza which Chicago, stood to benefit from the relief ble in the courts susceptible federal sought, an order which would eliminate the branch; remedy judicial by the is a mat discrimination by them directing properly Congress ter addressed to the or housing, that such they ap had the Executive. tenants, plied as must be constructed in predominantly white areas where plain Accordingly, judgment of the district reside, might tiffs then see 296 F.Supp. at affirmed, is appellants’ court complaint (N.D.I11.1969). Here plaintiffs gain no hereby is dismissed. comparable benefit from the injunction sought. they The most can realize is the MANSFIELD, Judge, concurring, Circuit satisfaction that federal funds will not be TIMBERS, Judge, joins: with whom Circuit misused. Absent statutory authorization, concurring Judge In carefully Moore’s enough this to confer standing. They opinion that, considered I would like to add must show some stake in the outcome. See as I am the sympathetic provid- idea of Cohen, Flast v. ing ready court access those who seek (1968). 20 L.Ed.2d 947 rights legislation, enforcement civil dissenting Our brothers remedy seek to holding that federal grants-in-aid be glaring deficiency by advancing a theo- persons by attacked unaffected them ry complaint: nowhere found in the standing requirements would violate basic might to New Castle have a have repeatedly been reaffirmed and discriminatory effect on they what choose enforced Court recent “regional call housing market” that g., Seldin, years. e. Warth v. See plaintiffs would include and New Castle. (1975); They suggest also Congress, by provid- Littleton, O’Shea ing performance that HUD’s of its affirma- (1974); L.Ed.2d Sierra Club (1964 tive duties under Title VI Civil Rights Morton, 727, 92 Act), 2000d, 42 U.S.C. and Title (Fair VIII There is not the slight- Housing 1968), ofAct U.S.C. § et present est indication record that the seq., subject would be review, plaintiffs adversely will affected give standing intended to to citizens in the funding of federal the New Castle sewer position However, here. no projects and recreation if the fund- authority such to sue is to be found enjoined as demanded the in these plain- VI, 42 statutes. Title 2000d-l, tiffs would be benefitted. What they seek obligates funding HUD to is a ban to New terminate funds Castle “to the allegedly predominantly particular program, part thereof, because it white, wealthy, exclusionary community, which such has been so [discrimination] thereby gain any- not because would since found” but this case does not involve the thing. granted, Should relief be upon HUD particularized an attack discrimina- presumably money would be free to use tion cannot use 42 U.S.C. OAKES, VIII, Judge, dissenting, Circuit with judicial review. Title 2000d-2 for § KAUFMAN, R. whom IRVING Chief 3608, obligates HUD to adminis- § 42 U.S.C. GURFEIN, Judge, and FEINBERG and affirmatively a to in manner programs ter Judges, Circuit concur: Act, purposes of the but there further indication, implied, express or that Con- no suit, lower-income, of In this residents give private persons gress intended to predominantly black areas West- York, right non-compliance alleged sue for with County, HUD chester New grants federal have been contrary, improperly duty. On U.S.C. Castle, awarded the Town of New enforcement of which authorizes § white wealthy, predominantly community Housing of Fair provisions Act certain County. also located in Westchester 3606) through by private civil ac- (§§ 3603 challenged awards were made to the Town tion, outlining the section omits § by of Depart- New Castle United States duties, general allegedly which is HUD’s of the Interior and the ment United States by here HUD. Title U.S.C. violated Department Housing of and Urban Devel- against private to suits is limited § opment. purpose of awards was to Act, to have violated the persons alleged New the development assist Castle of brought only voluntary after be parkland Town and the of construction before the Secre- compliance proceedings system. sewer The appellants claim that if tary Surely of HUD have failed. Con- departments the two federal have statutory gress had review of intended under Title VI obligations, of the Civil alleged maladministration HUD’s Rights Act Title of and VIII of the Act, not have excluded § it would 1968,1 Rights Act Civil of U.S.C. might those sections that be enforced seq., et seq., 3601 et to refuse 2000d §§ by private action. grants which are make inconsistent de- sign nondiscriminatory, or effect with fair suggestion that Con- Thus the dissents’ housing objectives. Their claim is that the authority to confer such gress intended two New grants to Castle inconsistent upon private litigants example is but an of housing goals grants fair because the with becoming of wish the father support perpetuate patterns tend to of thought. Congress When desires to autho- economically racially discriminatory citizen for the rize suits enforcement of County. housing in Westchester The com- interest, public widespread it knows laws plaint is that the federal courts have the so, vividly how to do demonstrated in under the Civil Acts responsibility Rights 304(a)(1) its enactment Clean § grants down review strike made Act, 42 1857h-2 and § Air U.S.C. § departments which have failed Act, 33 the Water Pollution Control U.S.C. implications grants consider the yet Here it has not taken such § goal respect attainment of of nondis- action. criminatory, housing.2 fair vant, however, question provides: 2000d to be discussed regarding scope shall, infra federal affirma- person in the United on the No States race, color, duty origin, ground to assure that federal are not tive national in, participation discriminatory purposes be denied the with excluded from made for dis- of, subjected to criminatory or be discrimination benefits Tri-State effects. interstate activity receiving any program or Fed- under politic, serving body, corporate both as a eral financial assistance. agency Connecticut, Jersey New common provides: 42 U.S.C. by compact, New Created it has York. policy States to It is the United A-95, designated promul- under Circular been limitations, provide, within constitutional Management gated by Budg- the Office throughout the United States. fair et, clearinghouse for review as the areawide Regional Planning Commission The Tri-State applications federal aid to assure conform- (Tri-State) original but was an defendant dis- regional comprehensive plans, to im- ance majority panel, as such missed plement the Demonstration Cities and Metro- sought which is be reversed decision Act, politan Development Program 42 U.S.C. Tri-State’s duties are rele- the court en banc. court, however, minority (black) residents of majority The of Westchester County who live in sufficiently are what the district court held that “ghetto “injured by living conditions,” is, fact” called that in “aggrieved” in New racially neighbor- funds to Castle to concentrated low-income grant of federal hoods, “standing” attack the awards. This postulated which the district court despite appel very the fact “are holding very ‘injury’. is made that a real and serious ” who, . persons by . . very are the Evans v. Lynn, F.Supp. lants (S.D.N.Y.1974). will continue to suffer allegations, own The complaint alleges housing racially Castle, envi of from the restricted the Town New to or for County challenged in Westchester which is whose benefit grants ronment is, made, court, allegedly by challenged in the words perpetuated of district it is sort exactly “predominantly per federal action. Since white [98.7 cent] injury for third-party Congress, of which in well-to-do enclave.” Id. at 330. It is fur- 2000d-2,3 alleged must have meant per 42 U.S.C. ther that 90 cent of New § Cas- judicial it provide relief when established tle’s land is zoned for single-family, residen- in grants, view the review federal development parcels tial on of more than acre, 7,000 currently in one there are precedents both this and other courts challenges federal vacant upholding acres and that the median value of cases, see Jones Tully, single-family in similar homes in 1970 was in excess (E.D.N.Y.1974), $50,000.4 F.Supp. 287 & n. 1 Appellants quite directly com- Meade, per curiam sub nom. Jones v. plain aff’d that New Castle’s zoning ordinance (2d 1975); F.2d 961 Southern Chris purpose has the and effect excluding Conference, Leadership Inc. v. Connol tian blacks other racial minorities from liv- F.Supp. (E.D.Mich.1971). 942-44 ly, 331 Finally, alleged in the Town. it is dissent. respectfully I must agencies question approved Appellants’ grants5 complaint, without briefly recapitulat- performing the affirm- ed, that appellants states required low-income ative by duties of them Title VI seq., Intergovernmental sanitary development 3301 et Co- reference to § sewer Act, operation provision U.S.C. 4231. See Fed. § “the ers in low or extension of water and sew- Reg. [density] The latter commands consid- residential areas shall not impact proposed program rezoning eration of . . be considered as basis for develop- upon density.” higher and human resources residential 4231(c). The A-95 § ment. 42 U.S.C. Circular grant matching 5. The funds for the sewer specifically calls on “civil for comment Community was made under the Facilities and 3(d), aspect project,” and “[t]he fl Acquisition Act, Advance Land 42 U.S.C. project extent to which the contributes to more grant acquisition for the delivery patterns of settlement and balanced Swamp pursuant Turner was made to the Out- population, all area services to sectors Act, Programs door Recreation 16 U.S.C. 5(d). including minority groups.” fl § 4601. provides pertinent 2000d-2 grant The sewer was made HUD to the part: King-Greeley Chappaqua sewer district in the Any department agency pur- action taken is, The section town. Town of New Castle suant to section 2000d-l of this title [see nonetheless, grantee the effective of the bene- subject note 6 shall be infra] such grant. grant fits The recreation provided by review as for similar action taken or otherwise be law made the Bureau of Outdoor Recreation of department such Department directly of the Interior grounds. agency on other Town New Castle. “rating preliminary district court also found that “New Cas- The HUD sheet” attempts application carry tle continues to be resistant to to alter for the sewer here does present housing F.Supp. for, g., points its 330. The character.” 376 e. some the “Percent of town, found, “successfully project had area that will be accessible on a attempt nondiscriminatory thwarted” of the New York State basis to families individ- Development Corporation incomes,” Urban to “construct uals with low and moderate but housing facility appears small 100-unitlow-cost there to be no evaluation of the overall plan segregation policies town.” Id. Town’s master sets as a residential of the commu- goal “maintaining ly single-fami- merits, nity. as a New Castle It is a matter of defense community.” provides reached, agencies residential It also are not whether the of alleged that all these facts as assume are the VIII.6 A consideration of law Title and has to take It at least them true.7 into must case of to this standing as it relates part: provides performed For in affirmative duties. 42 U.S.C. § their fact enough (c) departments agencies purposes claim of it is if a viable All and executive our nonperformance programs is made. and activities shall administer relating allegedly grant made without development BOR The and urban to proce- any affirmatively to civil enforcement pur- reference to further the a manner though obligations, any a Title VIII or subchapter cooperate dures poses shall of and compliance attached to the form was VI Title Secretary purposes. such the to further with Supervisor. signed by application, the Town Secretary Housing (d) Urban of and Development shall— duties, following policies the affirmative 6. The respectively supra, im- forth in note set (Title VI) by posed and 42 2000d-l § 42 U.S.C. programs (5) administer the activities VIII). (Title 3608(c), (d)(5) The for- U.S.C. §§ relating development and urban to provides: mer affirmatively policies to manner further the agency department subchapter. Each Federal of this empowered Federal finan- to extend VIII, panel which is generally opinion, as to See Title the activity, any program by or to cial assistance way (2d Lynn, Evans 576 n. 10 537 F.2d loan, grant, than or contract other 1975). guaranty, or is autho- of insurance contract course, possible, “pinpoint the It is provi- to the directed effectuate rized and provision” may provide in 42 2000d-l § this title with re- section 2000d of sions of spect rules, the merits defense on under this section. activity by issuing program or to such compliance provision, with Under that nondis- general appli- regulations, or orders requirements may by crimination obtained cability shall be consistent with which agency objectives of the statute achievement authorizing grant in con- . . the financial assistance refusal to . assistance . any recipient the is taken. No with which action as to whom there has been nection to rule, regulation, express finding or shall become order . of a such . . failure to approved by requirement, the comply unless and until effective with such but such ter- require- Compliance any President. shall mination or refusal be limited to the pursuant adopted and, to this section entity ment particular political . shall (1) by or refus- the termination of be effected particular pro- in its effect to the be limited grant or continue assistance under al to to noncompli- gram which such ... activity any recipient program or to such been so found ance has express finding been an to whom there has (emphasis supplied). 42 U.S.C. 2000d-l § record, opportunity hearing, the after on Mansfield, concurrence, Judge argues in his comply requirement, to with such of a failure no could be discrimination “found” or refusal shall be limit- political entity, but such termination and, particular grants involved in this case part particular or ed thereof, therefore, right no have over- recipient other as to whom such a or provision grants under the review turn these and, finding shall be limited in been made has Surely question 42 U.S.C. 2000d-2. § part program, particular or its effect to findings properly can be made in this case what thereof, noncompliance has in which such appel- going into issues far the merits raises found, (2) any other means so or been and, therefore, claim should not be decid- lants’ however, Provided, That law: authorized present appeal prematurely at the which ed be taken until the de- no such action shall partment subject appellants’ stand- concerns agency concerned has advised or Nonetheless, ing I feel the claim. raise persons appropriate person оr fail- appropriate to indicate that matter far comply requirement with the and has ure to Judge suggests complex than Mansfield more compliance cannot be se- determined that case, allege pleadings of this On by voluntary In the case means. cured zoning pursued that New hous- Castle terminating, refusing action purpose policies with the effect of continue, assistance because of failure to or comply excluding and other racial minorities blacks imposed pursuant requirement awith town, living there can be little section, head of the Federal de- to this is in violation of the doubt that the Town non- agency partment shall file with the com- requirements adopted pursuant discrimination having legis- and Senate mittees of House HUD, see 24 2000d-l C.F.R. to U.S.C. jurisdiction program over the or activi- lative ty Interior, see, seq., C.F.R. 17.1 report § 1.1 et a full written cir- involved applicability seq. question as to grounds et and the such action. cumstances "pinpoint provisions” in this case therefore become effective until No such action shall thirty days park grants filing elapsed sewer after the turns whether programs report. “in which such non- such the Town are which, regret say, I account tice majority Powell in Seldin, Warth v. opinion does not. 500 n. Bator, Mishkin, Cf. P. P. Shapiro D. analysis Fundamental under the law of Wechsler, & H. Hart and Wechsler’s The vague standing, generalities in view of the Federal Courts and the System Federal particular employed oftentimes decide (2d 1973). present ed. The Court’s analysis cases,8 ais differentiation between the two directs us first to examine question performs: functions doctrine important plaintiff “whether the ‘alleged such a determining is plain- the first whether the personal stake in the outcome of the contro- request party adjudi- to an proper tiff a versy’ as to warrant his invocation of feder- issue, particular cation of the see Flast v. jurisdiction al-court and to justify exercise Cohen, 83, 99-100, 392 88 U.S. S.Ct. 20 powers court’s remedial on his be- (1968); the second is determin- Carr, half. Baker v. 186, 204, 369 U.S. 82

ing whether as a matter of policymaking 691, 703, 7 (1962).” 663 particular issue is responsibility suitable Seldin, supra, Warth v. 498-99, by courts, for determination Barlow v. at 2205. This is in essence the Collins, 397 U.S. n. 90 S.Ct. question of access standing. (1970) (Brennan, J., 25 L.Ed.2d 192 concur- result). The ring first of these has appellants Have the alleged per- such a standing” been called “access and the sonal stake in the outcome of this contro- second can best be called “decision versy? stand- In this connection it must be re- ing,” although the goes latter often by the membered that the controversy sought to “justiciability” broad terms or “reviewabili- not, be determined is as in Seldin, Warth v. ty” and although often subsumes a num- supra, a whether town in which the plain- ber of or techniques other doctrines are tiffs not resident persons exclude by are used the courts when as a matter of of low and moderate by income its zoning thought policy it is desirable avoid deci- Rather, laws. allegations, on the the ques- Scott, on See Standing sions the merits.9 tion brought in this case is whether federal Analysis, Court —A Functional agencies administering grants-in-aid may (1973), by 86 Harv.L.Rev. 645 cited Mr. Jus- approve grants (the “activities” Town of ” compliance Iatridis, so has been found. . . . Housing Haar & D. the Poor un Subur- Judge “noncompli- Mansfield would consider (1974). rating bia 338 HUD’s own sheets rela- ance” to have been “found” the sewer and grants tive to these constitute an administra- park grants only particular programs if the contrary tive construction of the statute to that being visibly a administered on discrimi- espoused by Judge Mansfield. This construc- natory basis, g., by prohibiting e. minorities weight tion is entitled to substantial under using parks from and sewers of New Cas- Griggs Co., v. Duke Power 433- unduly tle. This strikes me as an restrictive (1971), 28 L.Ed.2d 158 reading particular of the limitation. Where a Tallman, 1, 18, Udall v. grant step is used one furtherance (1965). court, 13 L.Ed.2d 616 A district after a scheme, discriminatory the fact that the admin- hearing, properly full grant could “find” the grant facially istration of the neutral should discriminatory design be in both and effect and finding not foreclose a is in compliance statutory therefore not in with the veiled, implicit, noncompliance if with the non- requirements. requirements. discrimination Here Davis, 8. See 3 K. Administrative Law Treatise ostensibly grants (sewer claim that neutral (1958); 22.18 Processing § Association of Data park grants) directly political entity assist Organizations Camp, Serv. (New Castle) discriminatory to attain its (1970). (by forclosing opportunities scheme for low-in- Castle, housing development come in New see Bickel, Compare infra). Supreme Court, totally text at notes 13 & It is suppose Virtues, grants unrealistic to Term —Foreword: Passive in aid (1961), Wechsler, sewage to local communities Harv.L.Rev. 40 with recrea- Toward areas, Principles Law, tion/wildlife or for that matter Neutral water Constitutional systems, significant Gunther, leverage do not exert a Harv.L.Rev. The Subtle or, type housing, the location where Vices of the “Passive Virtues" —A Comment on exclusionary poli- Principle Expediency made to Review, communities in Judicial cies, policies. perpetuation of those See C. Colum.L.Rev. creating legal (exclusionary rights, practices the invasion of which Castle) whose New standing of sub . purpose and effect creates but also zoning) may grant “Congress express other racial minorities right jecting blacks excluding them resi who persons action to otherwise would be discrimination borders, standing prudential Town’s U.S.C. barred rules.”12 within the dence 2000d; statutes; also 42 U.S.C. Warth itself 3608.10 If involved see no such § § statutory the benefits” of such claim is the “denied here essence of minorities Warth, In discriminatory appellants’ parties access case. because of de grants zoning policies, standing had Town nied failed to show how the limitations practices specific indicates town which they 2000d chal laws) made, lenged (zoning and 42 U.S.C. had resulted should review to particularized injury required provides type 2000d-2 Warth litigate law. Accordingly, generalized enforce that obtain Seldin, challenge heavily majority government relied on so constitutional ac 508, distinguishable from the at 2197. See sharply 422 95 S.Ct. opinion, is tion. U.S. Schlesinger v. Reservists Committee Indeed, Stop helpful appel it is case. present War, 208, 221-22, 94 the extremely 2425, In Warth the Court 418 U.S. S.Ct. lants. United only (1974); States v. out not L.Ed.2d 706 point 41 careful “[t]he Richardson, 177, 166, injury required by 179-80, Art. 418 U.S. or threatened 94 actual 2940, (1974). solely virtue ‘statutes L.Ed.2d 678 by 41 In the may exist S.Ct. Ill 732, Morton, 727, supra. 6 That the affirma- v. 405 See notes 1 and Club U.S. 92 S.Ct. 10. by Congress 1361, imposed (1972). intended 31 636 tive duties L.Ed.2d evidenced, meaningful g., is e. the to be Mondale in connection with 501, Senator remarks of “pru- 422 95 2197. U.S. at S.Ct. The Act, upon Rights relied in Traffi- 1968 the Civil to which Justice Powell refers dential rules” Co., Metropolitan Life Ins. 409 U.S. cante v. grievance’ ‘generalized that “a include the rule 364, 205, (1972). 211, L.Ed.2d 415 S.Ct. 34 93 substantially equal in measure shared all or the He referred to large normally of citizens . . . class jurisdiction.” story not exercise of which all Americans should does warrant Id. sordid 499, 2205, developed by country citing Schlesinger 95 at this in at S.Ct. be v. ashamed era, during Stop War, post IIWar Reservists World Committee 418 immediate FHA, VA, 2425, 208, (1974); and other Federal U.S. S.Ct. 41 L.Ed.2d which the 94 706 assisted, encouraged, Richardson, agencies 166, and made United States v. 418 U.S. 188- 2940, easy flight people 97, (1974) (Pow- the cen- of white from 94 41 L.Ed.2d 678 S.Ct. America, leaving ell, J., concurring). plaintiff behind Similarly, “gen- tral of white cities Negroes erally legal others unable to take rights his must assert own advantage interests, extensions of of these liberalized cannot rest his claim to relief on guarantees. legal credit and credit parties.” of third interests Traditionally the Seldin, 490, 499, American Government 422 Warth v. U.S. 95 S.Ct. on issue. neutral this more than been (1975), citing Tile- in that The of the U.S. Government record Ullman, 44, 493, ston v. 63 S.Ct. 87 one, best, period covert at colloborator is time, (1943). 603 At L.Ed. the same an attenu- many present policies out- in rageous which established injury in ated suffered common with oth- heartbreaking living pat- racial enough standing. ers to establish still tradegy at terns lie the core which SCRAP, 669, U.S. United States v. 412 city good the alienation of American 2405, (1973). Scott, 37 254 See L.Ed.2d also good people people the utter because of Standing in the Court—A Functional irrelevancy of color. 645, Analysis, (1973); 86 Harv.L.Rev. 681 So, too, (1968). Represent- Cong.Rec. 2278 114 Stewart, Reformation of American Admin- purpose or of the said: “The ‘end’ ative Celler 1669, Law, 88 istrative Harv.L.Rev. 1730 Housing Act remove Federal Fair that, (1975). Scott concludes vir- Professor minority which enclose walls of discrimination groups litigation, tue of the costs idle and “[t]he ” Cong.Rec. ghettos 114 . . plaintiff, litigates a dilettante who whimiscal (1968). See U.S. Commission on Civil 9563 Rights, Equal lark, specter legal haunts for a literature, is a Opportunity 67-70 Suburbia the courtroom.” 86 Harv.L.Rev. not (1974). ‍‌‌‌‌‌​​​​‌​​​​‌‌‌‌‌‌​‌​‌​‌‌​​‌​​​​‌​​​​‌​​‌‌‌‌‌​‍suppose would this was all the at One light Alyeska Pipeline citing at more true in the Serv- 422 U.S. D., Society, 410 617 n. ice Co. v. 95 Linda 3, S. v. Richard U.S. Wilderness R. (1975). (1973); .2d 536 Sierra L.Ed 141 L.Ed.2d S.Ct. S.Ct. ed, below, case, as shall be shown housing instant low-income areas have standing challenged between the action connection challenge under U.S.C. 2000d-2 to § fed- grant) (per claimed (federal eral which have the effect of in- racially housing en petuation of restricted creasing the concentration of low-income County) amply vironment in Westchester housing portion in their regional of the cases, direct, controlling to supply under Meade, market. In Jones v. supra, statutory to seek appellants court, per in a opinion, curiam upheld See, action. e. government review standing for “several individuals who reside SCRAP, v. g., U.S. United States (a Spinney Hill” predomi- low-income (1973); 37 L.Ed.2d Bar nantly portion black Town North Collins, low v. Hempstead, York) New to challenge a fed- (1970); Association of Data grant for a eral low-income housing project Organizations, Processing Inc. Service Hill area Spinney because 150, 90 827, 25 Camp, 397 “perpetuate would tend to racial concentra- Spinney tion in the Hill area in violation of Rights 601 of the Civil Act of majority opinion, with all due re- 2000d . . .” Jones v. Tully, point of this spect, misses the law suit when supra, F.Supp. aff’d per curiam emphasizes “do claim” Meade, supra. sub nom. Jones v. sought See they unsuccessfully also Perk, 341 F.Supp. (N.D.Ohio Banks Castle or the Town New “that Town 1972), part, aff’d in rejected part rev’d arbitrarily housing proposals of other (6th grounds, 1973); 473 F.2d 910 opinion benefit to them.”13 The Cir. also mi- Gau Chicago treaux sapprehends Housing their claim when it Authority, states it as saying grants F.Supp. (N.D.Ill.1969), aff’d, “had the ap- that not been 436 F.2d proved, (7th 1970), could conceivably denied, monies have Cir. cert. other, gone yet totally imaginary to some Cf. County project might in the which have had v. United Department Shannon States of making housing of more Housing result available & Urban Development, 436 F.2d Rather, appellants’ to (3d 1970). them.” 817-18 The [At 595.] claim departments claim is that the federal vio- grants that the federal will have the effect requirements lated affirmative action of perpetuating racially of segregated housing Rights grants Acts making Civil in the plaintiffs’ conditions housing market evaluating municipalities without the eco- argument is precisely made consequence nomic racial of their hous- these federal awards the appellants in ing development practices, with the this case. The reasoning supports maintaining seg- effect of racial residential their claim be traced as follows: regation County, in Westchester further 1. racially Patterns segregated constraining them to continued in residence housing are perpetuated either build- county’s ghettos. ing housing low-income in low-income circuits, In cases decided in several in- (as areas in v. Tully) Jones or by building own, cluding our have high-income courts found that housing high-income areas concentrated, who live in persons segregat- housing of the same market.14 This is precisely predicate argument, It not An is correct that the did 14. initial Town of this course, arbitrarily reject housing proposals is not that New Castle and lower that Westches- County housing ter are not might different appellants. markets have been of benefit See part larger but are of a market of which the supra. gist appel- note 4 this But is County entire Westchester is but a sub-market. goes saying, lants’ claim. It without as the Certainly plaintiffs in a low-income black hous- panel out, opinion pointed p. 574 n. in, say, area Cincinnati would not have park that there is no claim sewer or rationale, standing, challenge under projects operated discriminatorily, will be but grants requirement made New Castle. This concerns, is not what this suit either. parties challenging that the be within the same housing grantee Town, however, market as the case, University Pennsylvania. because, the construction Mr. Da- in either charged for inte- vidoff’s affidavit re- opportunities HUD decision forecloses housing throughout grant the sewer wholly ig- facilities view of had gration housing systems play market.15 the role which sewer nored regional parameters shaping future com- high-income to a grant 2. A federal development, and munity impact is with increased consistent area which development low and moderate high-income housing but development of housing opportunities income within development with which is inconsistent region. housing in that area tends low-income parkland patterns racially segregat- grant may The perpetuate also development with housing. inconsistent ed low-in- housing come New Castle because dif- parkland and sewer 3. The federal park (including facilities sizes of ferent in this case are consist- challenged grants of, walkways, open areas and numbers development of promote ent with of, fields, playing location therefore housing Castle, in New but high-income design, etc.) landscaping would be de- negate develop- with and are inconsistent high-density manded area low-cost, high-density housing in ment of low-density than for a area.16 that area. is sewer inconsistent pleadings appel- claim of the that the high-density, low- construction “injured lants are fact” because the fed- because, housing in New Castle perpetuate economically cost eral tend an affidavit attached to the racially discriminatory stated in planned by insist, complaint, system County, the sewer I repre- must Westchester capacity “something ingenious “will have more than an New Castle sents needs of the area if the exercise handle the academic conceivable.” ” SCRAP, supra, United States developed low densities. area Davidoff, Director of at 2416. The fair of Paul sense of Affidavit Institute, formerly As- claim is that appellant’s Action been Suburban Planning perceptibly of at Professor Urban “will in fact be harmed the sociate in the case; fulfilled is Id. present been in HUD’s conduct.” undisputably Here, implicated in of the approval Tri-State’s participation alleged conduct of HUD relates to the improper supra, grants, of 2 is clearcut evidence note grants have been impli that to local authorities this. alleged zoning. cated in exclusionary the States The decision of United It should be noted that this foreclosure ef- 96 in Hills v. Gautreaux, -U.S.-, Court direct, fect is a immediate consequence 47 44 U.S.L.W. 4480 1538, 792, Littleton, v. grant. Cf. O’Shea 414 U.S. dealing (1976), for with the remedy while 38 L.Ed.2d This its and statu HUD’s violation of constitutional moreover would be eliminated consequence, to of in the selection public duties tory respect of decision to the assignment reversal thе make housing simple of em tenants, sites and grant. in Amelioration area the metropolitan relationship complained phasized Seldin, housing v. As as in Warth market opportunities. therefore, to of is not, respect greatest of mate with the said, the Court there U.S. 45 L.Ed.2d 343 here, claims “The relevant riality contingent appellants’ on the future economic deci- one geographic the area for of respon purposes See id. at sions third persons. of independent housing Chicago the [substi is dents’ options S.Ct. 2197. housing not market, tute Westchester County] Chicago limits the bounda city [substitute the not the do claim that parkland Appellants town or County city ries of the Westchester housing be rath- could, should, developed at-, -U.S. within which they reside].” Their complaint must, er than for recreation. at 4485. It S.Ct. at U.S.L.W. alleging be the read therefore, inconsistency Gautreaux, v. interesting Hills the that of with the development the parkland proposed said “more substantial question” high demand which density of recreational type against affecting its HUD “whether an order nothing housing There is in the would create. Chicago’s boundaries would conduct beyond judgment governments summary to permit record local interfere with impermissibly housing not on this authorities have point. and suburban appellants appellants allege, challenged they action.” Id. As the are agency exacerbating problems, indicate, appellants’ these of- findings the district court individual (and disadvantage of many American perpetu- will suffer from a appellants harm cities) by enhancing quality of life segregative of the conditions of hous- ation already privileged wholly communities live ing they presently in which constitutes ” without consideration the housing of needs very ‘injury.’ serious “very real and trapped low-income, those segregated actions which F.Supp. at Government areas a few away.18 miles (if exacerbate) allegedly perpetuate segregative injurious condition Appellants are what Norman Williams plainly injury-in- to effect an quite aptly seem called the party “third non-benefi- precise type of interest which ciaries” exclusionary fact to land use controls policies.19 Congress protect Their challenge intended when it enact- to federal policies practices which Rights VI VIII of the can be Titles Civil said to ed perpetuate “power to people who apparent got thrust those Titles Act. there first” in their specific area is based grants are to assure federal consistent statutes. appellants allege objectives of nondiscriminatory, grants were made for the sole housing. However, fair two federal discriminatory benefit grantee, departments, charged by Congress with the They Town. alleged that the effect encourage duty of action to affirmative fair injure appellants is to by perpet- economically communities, housing, viable uating racially restrictive housing con- segregated breakdown residen- ditions currently live. Ac- are, housing, appellants’ if supporting tial cordingly, appellants have stated both a believed,17giving evidence is to be priority cause relief and standing under 42 for the parks privileged and sewers com- Only 2000d-2. trial itwill regard munities without to the needs for necessary for appellants become prove regional development integration truth of alleged. facts United housing opportunities. low-cost SCRAP, v. supra, States U.S. I think it important, evaluating short, S.Ct. 2405. In under the controlling sufficiency appellants’ claims of injury, precedents area, appellants in this have ac- plaint to note that the in their standing. cess See Company Investment county, part York, which is of Greater New Camp, Institute v. many finds its echo in other American local- (1971); Tours, Arnold ities, many have, of which are cities and Inc. Camp, least, say problems way vast (1970) (per curiam); Barlow v. finances, municipal services and quality of Collins, supra; Association of Data Process- grant procedures life. If federal Camp, supra.21 Mendoza, Editorial, City Suburbia, pre- Times, 17. Robert the HUD official 18. who See vs. N.Y. 30, pared rating grant, the the Nov. 1975. sheet sewer housing testified that he never reviewed the Williams, Strategy Exclusionary 19. on policies applicant of an land-use communi- Zoning: Toward What Rationale and What ty. rating He “reconstructed” the sheet since Remedy ? 1972 Land Use Controls Annual presented there was none in the file to the 177. court, “reconstruction,” district but the it is claimed, gave points improp- he to New Castle “Housing Programs 20. See for Poor Can’t erly (because wealth) applica- of its so that the Suburbs,” Break Into the N.Y. Times News approved. Service, tion should never have been (Vt.) Herald, How- Daily 12, Rutland Nov. Glickstein, 1975, 6, ard quoting A. former staff director of the at Herbert Franklin of Poto- Institute, Rights, pointed U.S. Commission on Civil mac Inc. out consistently that HUD had “devoted itself to analogously As Court said processing complaints housing individual Metropolitan Co., Trafficante v. Life Ins. 409 discrimination to the exclusion of all other re- 205, 211, 364, 367, U.S. sponsibilities been, under act.” BOR has respect legislative history to the aver, equally delinquent. VIII: Title

607 York, New 35, 839, 420 U.S. 95 43 S.Ct. “reviewability” aspect of or The second (1975) may (agency impound not additional standing question involves appropriations), act pollution water control policymaking considerations. judge-made however, quite plainly, indicates re Mr. Justice Powell has what They are duty courts should not fail in their assure “essentially matters of to as ferred faithfully Executive has executed Seldin, supra, v. Warth self-governance.” merely complex regula- the laws because a 500, at 2206. Even U.S. 422 involved. See also National tory scheme standing on the is access assuming there Nixon, Treasury Employees Union v. 160 propri is the issue of the part appellants, 321, (fed- 492 U.S.App.D.C. (1974) F.2d 587 Department HUD or Interior ety of the grant declaratory or- may eral court relief ques an “abstract to New Castle dering to implement Executive federal em- . public significance of wide tio[n] courts, adjustment). in- pay Other ployees’ institutions governmental other [which] own, cluding have corrected our errors Id. address”? competent be more congres- Executive’s administration standing as a mat the court decline Should programs multiplic- established in a sionally 2 argument can powerful A policy?2 ter where, arguably, alleged ity of cases court should not act as be made has no damage plaintiff been less or “congressional or aas agency”23 “planning direct, alleged material where more Depart an Executive to correct inquiry” or more have been less no affect- interests carry has refused out ment which ed, alleged agency action and where mandate, congressional especially where egregious less no more has been inaction unmanageable.24 might suit be Su than here.25 City in Train v. preme Court decision Richardson, 267, powers U.S.App.D.C. Since HUD has no enforcement v. 156 Adams assuring 1159, (en banc) (challenge enormity (1973) fair since of the task of 1162 480 F.2d Attorney desegregation policies general- the role of Gen- makes school HEW minimal, generat- ly). main eral in the matter ing which, private suits in must be force says, complainants act General Solicitor Schlafly Volpe, (7th g.,E. v. 495 F.2d 273 “as own behalf but also not on their 1974) (persons complaining of cessation Cir. vindicating general pol- attorneys private highway gas funded construction icy Congress considered to tax, they would benefit from use of on basis “private highest priority.” The role attor- Romney, highways); Davis v. F.2d neys general” in modem uncommon (3d 1974) (buyers of FHA-insured homes Cir. Piggie legislative programs. v. Newman See require challenging failure to obedience to local 400, Enterprises, 390 S.Ct. [88 Park U.S. codes; Bradley Weinberger, v. 964, 966, 1263]; Allen v. State 19 L.Ed.2d 1973) (1st (patients F.2d 413-14 n. Cir. Elections, 556 [89 Board of requirements challenging labeling and doctor 1]; Perkins v. Mat- S.Ct. 22 L.Ed.2d Richardson, strenuous); v. as too Adams thews, [91 (1973) (en U.S.App.D.C. 480 F.2d 1159 Borak, 476]; J. I. v. 27 L.Ed.2d Case Co. banc) students, (black taxpayers citizens 423]. 12 L.Ed.2d [84 challenging failure to 10 state HEW enforce Collins, v. Mr. Brennan in Barlow Justice operated and numerous other school district City City desegregation plans); Inglewood Scott, opinion), supra (1970) (concurring 1972) Angeles, (9th Cir. 451 F.2d Los narrowly believe note federally city (adjacent affected noise properly refer what the latter should airport); CORE Norwalk Norwalk financed Davis, standing.” K. See also called “access (2d Agency, Redevelopment 395 F.2d 22.00-04, 723 Law Treatise at Administrative renewal); by 1968) displaced (persons urban (Supp.1970). v. Preservation Conference Scenic Hudson denied, FPC, (2d 1965), cert. 354 F.2d 608 used this term in rea- 23. Professor Stewart has 1462, 941, 540 16 L.Ed.2d 384 U.S. (1966) wholly soning against unlimited access stand- “aesthetic, (representatives conserva Stewart, 12, supra ing. at See note not resident tion recreation” interests located). project gen- was to Unmanageability might where the if town exist here Org. Kentucky Rights grant-making, opposed Welfare policy See also Eastern as eral of HUD Castle, Shultz, (D.D.C.1973) (wel F.Supp. grants specific had been to New challenging regulation appellants’ organization subject see IRS claim. But fare pra, рointed versely because curring in United States v. is gate, deference Government. agency The challengeable courts disregard out: As Mr. Justice have taken the view to another branch of by persons affected involves, congressional Richardson, it does Powell, mandate not ne- con- ad- su- 470, port of (1940). FCC v. Sanders Radio invoke the general public interest Morton, 405 U.S. 1361, at interests of [60 1367, S.Ct. claim. 31 L.Ed.2d others, 693, 698, ^[727] E. g., Station, and, indeed, may at 737 Sierra Club v. 84 L.Ed. 636] [92 in sup- (1972); S.Ct. 869] standing The doctrine of has always 501, at U.S. S.Ct. at 2206 prudential as well as reflected constitu- Congress . may a create statuto- . . tional limitations. . Whatever ry right or entitlement alleged depri- may have been the Court’s initial percep- vation can of which confer standing to intent of tion of the the Framers . plaintiff sue even where the would have it is now settled that such rules of self-re- judicially cognizable suffered no injury in required by are not straint Art. Ill but absence statute. Linda R. S. v. “judicially overlays created that Con- D., Richard at [614], U.S. 617 n. 3 [93 may strip away. . .” gress S.Ct. at 536 (1973)], L.Ed.2d so, Congress my But where objec- does citing Trafficante v. Metropolitan Life actions public tions to are ameliorated by Ins. Co. U.S. at S.Ct. [409 Specific congressional mandate. stat- at (White 34 L.Ed.2d 415 (1972)] J., standing in such utory grants cases concurring). “judi- the conditions that make alleviate 422 U.S. at 95 S.Ct. at 2213. part cial wisdom.” forbearance question remains, course, whether at at n. 2956.26 If “Congress this case granted has a right any this concept there were doubt that is above, action.” As discussed the plain Court,27 that doubt the law of was Title intendment of VI if not Title VIII is There, speak- Warth v. removed Seldin. provide for review of grants federal Powell, the ing through Mr. Justice Court consistency assure their with federal anti- held: discrimination fair housing objectives. Moreover, Congress express may grant See, g., Tully, e. Jones supra; note 3 persons action to who right of otherwise supra. is unlikely Since it that either the by prudential barred would be departments recipients course, requirement rules. Art. Ill’s Of would have interest in challenging plaintiff must allege remains: still themselves, Congress must have palpable injury himself, distinct and provide meant to for review the instance even if it is an large shared persons “adversely “ag- affected” or class possible litigants. of other g., E. grieved improper grants. by” The implied SCRAP, United States v. 412 U.S. 669 [93 right persons of review for these is at least 2405, 37 (1973). But so 254] significant as clear cases such long as requirement satisfied, per- Barlow, Processing, as Data Arnold Tours sons to whom Congress granted Company Investment Institute. Cf. right action, either expressly Seldin, supra, Warth v. implication, clear may have standing to S.Ct. 2197.28 seek relief on the legal basis of the permitting exemption questioned Monaghan, charitable logic status to hos- Its Con- pitals When, provide Adjudication: which do not stitutional Who free care for indigents). 82 Yale L.J. 1380-83 suggested Judge 28. As Mansfield’s concur- Metropolitan 26. See also Trafficante v. Life Ins. rence, argument be made that Con- Co., 34 L.Ed.2d gress give private persons did intend to (White, J., (1972) concurring). right noncompliance sue HUD with its action, duty of affirmative beсause 42 U.S.C. processes imposed would not be upon, much here, to courts are asked to do What the invaded, by less the exercise of III Article to the agencies reevaluate require the case, power here concerned. In assum- light the of nondiscrimina approvals system representative that our of de- mandate,29 fair-housing is well within tory, mocracy legislature primary makes the the judicial review of role of the traditional resolving the initial forum for as well as authority may better be No agency action. interests, and economic if conflicting social our Scenic Hudson to than own referred spoken and the Congress has Executive the FPC, v. 354 F.2d Conference Preservation message, judiciary’s the has not heard cert. denied, 1965), (2d resolving controversy hardly in is a role (1966), infringement an of usurpation power of ultimately case that furnished landmark prerogatives. for National Environmental Protec basis of project review alternatives. tion Act30 quarrel majority with the hardly One can require it is is too to citation that It obvious propositions, of abstract as statement judicial within traditional model well forth the rubric of the law of well set agency be re required that an review may regret standing. majority’s One action, an involving expenditure view an case, rules to this one application those purely private or local ad public funds different, it, Ias see from that which very vantage, guidelines that statutory to assure perceives. majority to. been adhered KAUFMAN, Judge, R. Chief IRVING This not issue constitutional in- is GURFEIN, whom dissenting, with Circuit Schlesinger volvement v. Reservists Judge, concurs: War, (Article Stop supra Committee I, prohibition by Congress members of § fully my I concur brother Oakes’s Richardson, v. asserted), or United States however, like, I scholarly opinion. should (Article I, through 9 violation CIA supra following thoughts. add the asserted). See The appropriation provisions, Constitutional such as the Court, Term, 88 Harv.L. Rev. 240- controversy” requirement “case or of Arti- case, (1974). In such to resolve the III, magic talismans, are cle whose im- may,- pointed been judicially matter is port as immutable as the law of ancient out,31 particular altogether issue remove Rather, Media and Persia. the words danger process, political from the large Constitution to extent derive their Frankfurter and others before Justice Mr. perceived needs, meaning from the desires him have warned and after society. expectations subject treating overall course indeed, is legitimate and, It desirable— — however, Here, review. Con- judicial commandments, view constitutional such spoken, and resolution gress has requirement, standing as the as flexible and congres- controversy forecloses neither over The evolving proper approach time.1 political nor executive action. sional Stewart, 702(a), supra specifically note 1726 n. authorizes enforcement of § 3610 285. against private persons and omits men-

the Act supra, forth tion note which sets §of relief, Appellants injunctivе seek but this are uncon- duties. We HUD’s affirmative ancillary purely the reevaluation would vinced, however, reading narrow sought. reviewability civil statute under Rights Org. appropriate. National Welfare Cf. 4332(2)(C)(iii). U.S.C. § Finch, U.S.App.D.C. 429 F.2d 725 (1970) challenge (private exists Stewart, supra note at 1741. 31. See ruling conform to HEW that state welfare laws though only even review of federal standards Warren, referring Justice words Chief expressly provided HEW states decision Dulles, Trop Eighth Amendment 10(a) statute). See also Section 86, 100-01, Act, 5 U.S.C. Administrative Procedure informative: 610 by very be shown review-

may briefly best corollary, and its “injury in fact”. The past of other consti- the courts’ construction has decade seen a lowering dramatic provisions, process where tutional imposed by requirements barriers standing guar- The First obvious. Amendment more challenges to to administrative action. Per religion, example, of antee of freedom haps by change, not this movement toward was, 1789, when drafted almost certainly broader has coincided with a spec exclusively refer to the worship intended size, tacular increase scope power today concept religion God.2 But of of bureaucracy of of executive expanded protect, has been under some has, argue, heightened branch —which some least, only at worship circumstances not judicial oversight. During need for divinity recognize of the refusal years, “legal these the archaic interest” re some, divinity, all, not but also if deeply quirement of Tennessee Elec. Power Co. v. Similarly, held moral convictions.3 the TVA, 118, 366, 306 59 U.S. S.Ct. 83 L.Ed. of meaning “speech” First Amendment has (1939) abolished, 543 has been of Assoc. protest.4 come to include silent And the Processing Org. Data Camp, Service v. 397 “search”, as used in the definition Fourth 150, 90 827, 25 U.S. (1970). S.Ct. L.Ed.2d 184 Amendment, years has in recent been ex- Standing to challenge administrative orders physical intrusion panded beyond which given id., has to competitors, been Framers,5 encompass concerned elec- consumers, Office of Communication eavesdropping.6 tronic FCC, U.S.App.D.C. 328, 123 359 F.2d 994 reading This expansive provisions J., (per Burger, 1966), and a showing Rights may the Bill of plausibly be economic longer required. no U. a process argue some viewed —which SCRAP, 669, S. v. 412 2405, U.S. 93 S.Ct. 37 its not reached which courts have limit — (1973). L.Ed.2d 254 protection extended the accorded individual clear, As autonomy.7 process A this trend makes may similar dis- review interpretation is, cerned in today legitimate the shibbo- viewed as a means of standing: leths of “case or controversy”, ensuring agencies observe congression- pre- words the Amendment (D.Mass.1969) (Wyzanski, J.), [T]he appeal dismissed cise, scope and . is not 267, static. jurisdiction, for want of 399 U.S. 90 S.Ct. meaning The Amendment must draw its 2117, (1970). Although Seeger 26 608 L.Ed.2d evolving decency standards of that mark theoretically upon interpreta- rested Welsh ' progress maturing society. of a statutes, tions of the Service Selective Seeger holding Court stated that a different 2. This be seen examination of various “classify religious beliefs, would different advocating ex- religious colonial documents freе- others”, empting excluding pre- some and Rights Colonists, thus dom. 1772 The sumably violating guarantee espoused equal example, pro- religion freedom of because 176, (em- tection. 380 at attempts of its U.S. 85 concern with “various S.Ct. 859 phasis added). making, have been made and are now to estab- Episcopate.” lish an American Bill Rights: Documentary History (Chel- A See, 210 g., Louisiana, 131, 4. e. Brown v. 383 U.S. House, 1971). sea And the first document (1966). L.Ed.2d protect religion, Maryland freedom of Tol- eration declared that it Act dealt with 5. The Colonial tracts were concerned with the concerning Religion “matters and the honor of “insolence” of British officers who would “en- granted “pro- God” freedom those houses, search, ter our insult and seize at fessing to beleive in Jesus Christ.” Id. at [sic] pleasure.” Rights: Documentary Bill A (emphasis added). perhaps Of even History, supra n. at 488-89. greater significance, the Senate eliminated the words “nor shall the of conscience be Compare S., 6. Katz v. U. infringed” from First Id. Amendment. (1967) with Olmstead v. U. S., L.Ed. 944 (1928). See, g., Seeger, U. e. S. v. (1965); Welsh v. U. Henkin, Privacy Autonomy, Cf. S. 398 Co (1970); Sisson, F.Supp. U. S. lum.L.Rev. 1410 Oakes’ trenchant my cannot be brother’s case before us I concur The mandates.8 al add that I con- I would like to analysis.1 from this trend. in isolation viewed important as an contribu- opinion sider his suggest I not that we read Obviously, do signifi- is of historic a debate tion to standing requirement out of Art. Ill may become a type of case This cance. indulge in render- existence, that courts struggle rights, for civil watershed Holmes once called “mere Justice ing what a that we could not muster sorry I am Nor, course, in the air.” declaration[s] The of civil history this court. majority in ignore recent decisions of that we urge Ido century may be quarter next rights in the Court, such as Warth v. Sel- procedural roadblocks in terms written 2197, din, 45 L.Ed.2d of the role expansion see an may we against counsel wood- (1975). But I do expan- of the play reminiscent will courts precedent of the Warth to an application en day. There is need John Marshall’s sion in setting, and ex- entirely different Congress man- where has judicial action for holding to cover a situation tension of a class and where an benefits dated which, Judge opinion Oakes’s demon- as Branch fails to the Executive agency of strates, an sharply distinguishable. Such is legislative mandate. carry out reading unnecessarily of Warth expansive the Executive a silent give contrary would explanation) flies in the face (and without in the Constitution. provided not veto favoring judicial recent trend over- of the burgeoning bu- sight of the administrative general where taxpay- This is not a case reaucracy. seeking judicial against gov- relief are ers decision, majority’s it is unlike- Under plaintiffs action. The here are ernmental plaintiff there could ever be a who ly that taxpayers or suing general as offi- access to the courts be allowed to chal- will are seeking Nor busybodies. cious of its lenge congression- HUD’s abdication or ordinance unconstitu- any statute declare duty.10 may a result ally-imposed Such be class, minority within thе They are tional. desirable, in a logical, controversy and even area, Congress whom citizens appropriately by political resolved more help. They aggrieved persons sought to Richardson, U. process. See S. 418 U.S. action in a literal administrative protesting 94 S.Ct. L.Ed.2d 678 standing, have no If these sense. it is to shunned in (1974). But be cases like does? then who which, my brother this one Oakes’s words, fall “well within the traditional course, black citizens of the entire Of all judicial review.” model are not in a class to be bene- States United

GURFEIN, Judge, dissenting, study Circuit the housing policy a HUD fited KAUFMAN, County, R. Chief New Castle in Westchester New with whom IRVING obviously class must be York. The more concurs: Judge, contrast, opinion points Harris, Judge Oakes’s 9. Giles v. 189 U.S. In 23 S.Ct. out, taxpayers whose suits were or citizens 48 L.Ed. 909 Richardson, such cases as U. S. thwarted 41 L.Ed.2d 678 however, that, possible, 10. It is even under the (1974), Schlesinger v. Reservist Committee decision, city majority an inner near a town War, Stop receiving HUD Seldin, Warth v. as well as Indeed, challenge grant. a town unsuccessfully applied grant might, by for a , (1975) sought intervene in have the courts granting competitor analogy those cases with areas in which standing, be allowed to sue. subject sur- is committed to the matter ultimately Congress, veillance of again authority reviewed the case 1. I have not political process. my Oakes has done that so well. since brother Richardson, supra, U.S. at issue, my mind, adversary ought is an simply stake the inaction restricted. county large too area its compel whether HUD able to to make whatever to be a discrete minority inhabitants class study the court finds is required. The anal- there must be some standing. Since ogy requirement is found of an envi- determination nature impact ronmental statement before harmed which is inaction in class begun. The project is federal courts have mandate, face of a clear those jurisdiction in such taken cases. See Unit- minority reasonably residents who are close SCRAP, v. ed States U.S. housing opportunity, open if it to the should 37 L.Ed.2d 254 The present a up, Congressional who have stake in presents no less complaint controversy.2 mandate enacted their benefit. separation Yet, We talk of powers. type zoning Local ordinances con- holding narrow on can be the Seldin, sidered Warth U.S. equivalent of a repeal substantive noth- legislation. The issue is really not whether challenge do with case. should by denying courts abstain stand- challenge was a there constitutional ing, whether by rejecting but standing the zoning laws. The laws were ostensi- local impeding courts are national against minority, policy not directed bly but as ex- pressed legislative persons be taken directed will. could income. It was of low moderate held prelude as a to a constitutional claim discrimination must show Congress in fact. Here has ordered agency implementing administrative

particular statute to determine racially discriminatory policies

whether

being followed towns which seek federal finding

subsidies. If that such dis- practiced,

crimination is funds are to be what happens

withheld. But if HUD fails into the matter as it to look is ordered to al., Max GRENADER et and, nevertheless, do, approves the federal Plaintiffs-Appellants-Appellees, funding? brethren in the My majority say nothing is to be done about it by anybody. But, as the Court said Association of al., Milton SPITZ et Processing Orgs., Data Service Inc. v. Defendants-Appellees-Appellants, 150, 154, Camp, Cooper al., Bernard et Defendants. (1970), “[wjhere statutes are concerned, trend enlargement is toward 75-7592, Nos. Dockets 75-7601. people class of who protest may United States Court Appeals, action.” I administrative believe that when Second Circuit. Congress imposed Secretary HUD duty the affirmative “pro- administer all Argued March grams relating and activities April 28, Decided urban development in a manner affirma- tively the policies to further of this sub- 3608(d)(5), 42 U.S.C. it did

chapter,” may disregard

mean HUD that man- in its discretion. And those who have

date course, only are, pleading stage We and we not consider appel- whether allegations. prove lants can as Tri-State notes or as well that we are not deciding the congres- merits, of enforcement tant method I would like to my make posi- own set forth in Title VIII is policy tion even clearer. sional grants related agencies’ administration I would hold that the neces- development.” or urban either sarily injunctive to seek re- “are so find They then against lief the Secretary of HUD and his related.” assistants to restrain grant of federal funds, for that involves the preliminary V question of whether a determination of TRI-STATE HUD to funds to New Castle is sub- ject and, so, review if at whose agency. is not a federal It has Tri-State instance, a matter we need not decide if we independent appraisal of the its own made simply reverse the summary judgment. I Swamp sewer and Turner King-Greeley would hold that the plaintiffs are “ad- “non-regional significance.” as of projects versely aggrieved affected or by agency projects Accordingly, review of the was re- meaning action within the of a relevant County Depart- to the Westchester ferred statute” under the Administrative Proce- Planning. scarcely It befits the ment of Act, dure 5 U.S.C. to raise the ques- § judiciary to override and of the federal role ‍‌‌‌‌‌​​​​‌​​​​‌‌‌‌‌‌​‌​‌​‌‌​​‌​​​​‌​​​​‌​​‌‌‌‌‌​‍tion of whether the Secretary has failed to judgment of Tri-State in supersede inquiries implied make the from his affirm- a sewer in a minute evaluating whether duty ative to “administer programs park and a small wildlife area of a town relating activities and urban de- concern as to call for area of sufficient velopment a manner affirmatively to and reaction. I find no action Tri-State policies further of this subehapter,” Pollack’s Judge dismissal error 90-284, VIII, Pub.L. Title 808(e)(5), April § complaint Tri-State. 11,1968, 42 3608(d)(5), U.S.C. § without consideration of the merits of the lawsuit. VI SCRAP, See United States v. conclusion I cannot reconcile the ma- In holding Supreme with the jority’s Court’s Congress passed In 1968 the “Fair Hous- Club, O’Shea, Richardson decisions Sierra ing” prohibiting Act discrimination in the Schlesinger, all of which support Judge housing. Rights sale or rental of Civil Act injunction of a preliminary Pollack’s denial 11,1968, 90-284, April Pub.L. VIII, Title complaint. According- and dismissal of the 801, 42 U.S.C. It contains the ly, Judge I dissent would affirm Pol- general duty provision affirmative noted. lack’s order. 3608(d)(5). 42 U.S.C. § GURFEIN, Judge (concurring Circuit yet Court has not deter- dissenting): whether the mined affirmative duty goes

Case Details

Case Name: Rachel Evans v. James T. Lynn v. The Town of New Castle, Appellee-Intervenor

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 4, 1976

Citation: 537 F.2d 571

Docket Number: 157, Docket 74-1793

Court Abbreviation: 2d Cir.