# Barlow v. Collins/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brennan
United States Supreme Court
397 U.S. 159
Barlow v. Collins
Mr. Justice BRENNAN, with whom Mr. Justice WHITE joins, concurring and dissenting.
I concur in the result in both cases but dissent from the Court's treatment of the question of standing to challenge agency action.
The Court's approach to standing, set out in Data Processing, has two steps: (1) since 'the framework of Article III * * * restricts judicial power to 'cases' and 'controversies," the first step is to determine 'whether the plaintiff alleges that the challenged action has caused him injury in fact'; (2) if injury in fact is alleged, the relevant statute or constitutional provision is then examined to determine 'whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'
My view is that the inquiry in the Court's first step is the only one that need be made to determine standing. I had thought we discarded the notion of any additional requirement when we discussed standing solely in terms of its constitutional content in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). By requiring a second, nonconstitutional step, the Court comes very close to perpetuating the discredited requirement that conditioned standing on a showing by the plaintiff that the challenged governmental action invaded one of his legally protected interests. Barlow is a typical illustration of the harm that resulted from that requirement. The only substantial issue in that case goes to the merits: does the statutory language 'making a crop' create a legally protected interest for tenant farmers in the form of a prohibition against the assignment of their federal benefits to secure cash rent? By confusing the merits with the plaintiffs' standing to challenge the Secretary's action, both the District Court and the Court of Appeals denied the farmers the focused and careful decision on the merits to which they are clearly entitled. Although this Court properly reverses the Court of Appeals on that account, it encourages more Barlow decisions by engrafting its wholly unnecessary and inappropriate second step upon the constitutional requirement for standing.
Before the plaintiff is allowed to argue the merits, it is true that a canvass of relevant statutory materials must be made in cases challenging agency action. But the canvass is made, not to determine standing, but to determine an aspect of reviewability, that is, whether Congress meant to deny or to allow judicial review of the agency action at the instance of the plaintiff. The Court in the present cases examines the statutory materials for just this purpose but only after making the same examination during the second step of its standing inquiry. Thus in Data Processing the Court determines that the petitioners have standing because they alleged injury in fact and because '§ 4 (of the Bank Service Corporation Act of 1962) arguably brings a competitor within the zone of interests protected by it.' The Court then determines that the Comptroller's action is reviewable at the instance of the plaintiffs because '(b)oth (the Bank Service Corporation Act and the National Bank Act) are clearly 'relevant' statutes within the meaning of (the Administrative Procedure Act, 5 U.S.C. § 702 (1964 ed., Supp. IV)). The Acts do not in terms protect a specified group. But their general policy is apparent; and those whose interests are directly affected by a broad or narrow interpretation of the Acts are easily identifiable. It is clear that petitioners, as competitiors of national banks that are engaging in data processing services, are within that class of 'aggrieved' persons who, under § 702, are entitled to judicial review of 'agency action." Again in Barlow, the plaintiff tenant farmers are found to have standing because they alleged injury in fact and because 'tenant farmers are * * * within the zone of interests protected by the Act.' Examination of the same statutory materials subsequently leads the Court to the conclusion that the tenant farmers are entitled to judicial review of the Secretary's action because 'the statutory scheme * * * is to be read as evincing a congressional intent that petitioners may have judicial review of the Secretary's action.'
I submit that in making such examination of statutory materials an element in the determination of standing, the Court not only performs a useless and unnecessary exercise but also encourages badly reasoned decisions, which may well deny justice in this complex field. When agency action is challenged, standing, reviewability, and the merits pose discrete, and often complicated, issues which can best be resolved by recognizing and treating them as such.
* STANDING
Although Flast v. Cohen was not a case challenging agency action, its determination of the basis for standing should resolve that question for all cases. We there confirmed what we said in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), that the 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult * * * questions.' 'In other words,' we said in Flast, 'when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue' and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant's action invaded. 392 U.S., at 99-100, 88 S.Ct. 1942, 1952-1953, 20 L.Ed.2d 947. The objectives of the Article III standing requirement are simple: the avoidance of any use of a 'federal court as a forum (for the airing of) generalized grievances about the conduct of government,' and the creation of a judicial context in which 'the questions will be framed with the necessary specificity, * * * the issues * * * contested with the necessary adverseness and * * * the litigation * * * pursued with the necessary vigor to assure that the * * * challenge will be made in a form traditionally thought to be capable of judicial resolution.' Id., at 106, 88 S.Ct. at 1955-1956. Thus, as we hold in Flast, 'the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.' Id., at 101, 88 S.Ct. at 1953. See also Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 83-84, 78 S.Ct. 1063, 1066 1068, 2 L.Ed.2d 1174 (1958).
In light of Flast, standing exists when the plaintiff alleges, as the plaintiffs in each of these cases alleged, that the challenged action has caused him injury in fact, economic or otherwise. He thus shows that he has the requisite 'personal stake in the outcome' of his suit. Baker v. Carr, supra, 369 U.S. at 204, 82 S.Ct. at 703, 7 L.Ed.2d 663. We may reasonably expect that a person so harmed will, as best he can, frame the relevant questions with specificity, contest the issues with the necessary adverseness, and pursue the litigation vigorously. Recognition of his standing to litigate is then consistent with the Constitution, and no further inquiry is pertinent to its existence.
When the legality of administrative action is at issue, standing alone will not entitle the plaintiff to a decision on the merits. Pertinent statutory language, legislative history, and public policy considerations must be examined to determine whether Congress precluded all judicial review, and, if not, whether Congress nevertheless foreclosed review to the class to which the plaintiff belongs. Under the Administrative Procedure Act (APA), 'statutes (may) preclude judicial review' or 'agency action (may be) committed to agency discretion by law.' 5 U.S.C. § 701(a) (1964 ed., Supp. IV). In either case, the plaintiff is out of court, not because he has no standing to enter, but because Congress has stripped the judiciary of authority to review agency action. Review may be totally foreclosed, as in Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960), or, if permitted, it may nonetheless be denied to the plaintiff's class. But the governing principle laid down in Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1510-1511, 18 L.Ed.2d 681 (1967), is that 'judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.'
The APA provides that '(a) person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.' 5 U.S.C. § 702 (1964 ed., Supp. IV). Congressional intent that a particular plaintiff have review may be found either in express statutory language granting it to the plaintiff's class, or, in the absence of such express language, in statutory indicia from which a right to review may be inferred. Where, as in the instant cases, there is no express grant of review, reviewability has ordinarily been inferred from evidence that Congress intended the plaintiff's class to be a beneficiary of the statute under which the plaintiff raises his claim. See, for example, the Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (C.A.2d Cir. 1968). In light of Abbott Laboratories, slight indicia that the plaintiff's class is a beneficiary will suffice to support the inference.
If it is determined that a plaintiff who alleged injury in fact is entitled to judicial review, inquiry proceeds to the merits-to whether the specific legal interest claimed by the plaintiff is protected by the statute and to whether the protested agency action invaded that interest. It is true, of course, that matters relevant to the merits will already have been touched tangentially in the determination of standing and, in some cases, in the determination of reviewability. The aspect of the merits touched in establishing standing is the identification of injury in fact, the existence of which the plaintiff must prove. The merits are also touched in establishing reviewability in cases where the plaintiff's right to review must be inferred from evidence that his class is a statutory beneficiary. The same statutory indicia that afford the plaintiff a right to review also bear on the merits, because they provide evidence that the statute protects his class, and thus that he is entitled to relief if he can show that the challenged agency action violated the statute. Evidence that the plaintiff's class is a statutory beneficiary, however, need not be as strong for the purpose of obtaining review as for the purpose of establishing the plaintiff's claim on the merits. Under Abbott Laboratories, slight beneficiary indicia will suffice to establish his right to have review and thus to reach the merits.
To reiterate, in my view alleged injury in fact, reviewability, and the merits pose questions that are largely distinct from one another, each governed by its own considerations. To fail to isolate and treat each inquiry independently of the other two, so far as possible, is to risk obscuring what is at issue in a given case, and thus to risk uninformed, poorly reasoned decisions that may result in injustice. Too often these various questions have been merged into one confused inquiry, lumped under the general rubric of 'standing.' The books are full of opinions that dismiss a plaintiff for lack of 'standing' when dismissal, if proper at all, actually rested either upon the plaintiff's failure to prove on the merits the existence of the legally protected interest that he claimed, or on his failure to prove that the challenged agency action was reviewable at his instance.
The risk of ambiguity and injustice can be minimized by cleanly severing, so far as possible, the inquiries into reviewability and the merits from the determination of standing. Today's decisions, however, will only compound present confusion and breed even more litigation over standing. In the first place, the Court's formulation of its non-constitutional element of standing is obscure. What precisely must a plaintiff do to establish that 'the interest sought to be protected * * * is arguably within the zone of interests to be protected or regulated by the statute'? How specific an 'interest' must he advance? Will a broad, general claim, such as competitive interest, suffice, or must he identify a specific legally protected interest? When, too, is his interest 'arguably' within the appropriate 'zone'? Does a mere allegation that it falls there suffice? If more than an allegation is required, is the plaintiff required to argue the merits? And what is the distinction between a 'protected' and a 'regulated' interest? Is it possible that a plaintiff may challenge agency action under a statute that unquestionably regulates the interest at stake, but that expressly excludes the plaintiff's class from among the statutory beneficiaries?
In the second place, though the Court insists that its nonconstitutional standing inquiry does not involve a determination of the merits, I have grave misgivings on this score. The formulation of the inquiry most certainly bears a disquieting similarity to the erroneous notion that a plaintiff has no standing unless he can establish the existence of a legally protected interest. Finally, assuming that the inquiry does not, in fact, focus on the merits, then surely it serves only to determine whether the challenged agency action is reviewable at the instance of the plaintiff in cases where there is no express statutory grant of review to members of his class. And, if this is so, it has no place in the determination of standing. In terms of treating related questions with one another, this inquiry is best made in the reviewability context. The Constitution requires for standing only that the plaintiff allege that actual harm resulted to him from the agency action. Investigation to determine whether the constitutional requirement has been met has nothing in common with the inquiry into statutory language, legislative history, and public policy that must be made to ascertain whether Congress has precluded or limited judicial review. More fundamentally, an approach that treats separately the distinct issues of standing, reviewability, and the merits, and decides each on the basis of its own criteria, assures that these often complex questions will be squarely faced, thus contributing to better reasoned decisions and to greater confidence that justice has in fact been done. The Court's approach does too little to guard against the possibility that judges will use standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits. The Court's approach must trouble all concerned with the function of the judicial process in today's world. As my Brother Douglas has said: 'The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained. * * * (W)here wrongs to individuals are done * * * it is abdication for courts to close their doors.' Flast v. Cohen, supra, 392 U.S. at 111, 88 S.Ct. at 1958 (concurring opinion).

## Notes

* ↑ Cf. the language in Associated Industries v. Ickes, 134 F.2d 694, 700 (C.A.2d Cir. 1943): 'In a suit in a federal court by a citizen against a government officer, complaining of alleged past * * * unlawful conduct by the defendant, there is no justiciable 'controversy,' * * * unless the citizen shows that such conduct * * * invades * * * a private substantive legally protected interest of the plaintiff citizen; such invaded interest must be either of a 'recognized' character, at 'common law' or a substantive private legally protected interest created by statute (or Constitution).'
* ↑ Reviewability has often been treated as if it involved a single issue: whether agency action is conclusive and beyond judicial challenge by anyone. In reality, however, reviewability is equally concerned with a second issue: whether the particular plaintiff then requesting review may have it. See the Administrative Procedure Act, 5 U.S.C. §§ 701(a) and 702 (1964 ed., Supp. IV). Both questions directly concern the extent to which persons harmed by agency action may challenge its legality.
* ↑ Other elements of justiciability are, for instance, ripeness, e.g., Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), mootness, e.g., United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), and the policy against friendly or collusive suits, e.g., Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176 (1892); United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413 (1943). 'Justiciability' is also the term of art used to refer to the constitutional necessity that courts not deal with certain issues lest they 'intrude into areas committed to the other branches of government.' Flast, supra, 392 U.S. at 95, 88 S.Ct. at 1950. The political-question doctrine has its analogue in the sphere of administrative law in the concept of non-reviewability. See e.g., Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948); Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960). And, of course, federal courts may not decide questions over which they lack jurisdiction, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 305, 82 S.Ct. 1502, 1512-1513, 8 L.Ed.2d 510 (1962); American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 541-542, 95 L.Ed. 702, 19 A.L.R.2d 738 (1951). Thus, on many grounds other than an absence of standing, a court may dismiss a lawsuit without proceeding to the merits to determine whether the plaintiff presents a claim upon which relief may be granted, and, if so, whether he has borne his burden of proof.
* ↑ It is true, of course, that in certain types of litigation parties may properly request judicial resolution of issues not 'presented in an adversary context.' See Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 607 (1968). But in most instances, among them private challenges to agency action, the plaintiff must establish his adverseness to obtain standing.
* ↑ Thus, for purposes of standing, it is sufficient that a plaintiff allege damnum absque injuria, that is, he has only to allege that he has suffered harm as a result of the defendant's action. Injury in fact has generally been economic in nature, but it need not be. See, e.g., Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (C.A.2d Cir. 1965); Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966). The more 'distinctive or discriminating' the harm alleged and the more clearly it is linked to the defendant's action, the more easily a plaintiff may meet the constitutional test. See L. Jaffe, Judicial Control of Administrative Action 501 (1965). The plaintiffs in the present cases alleged distinctive and discriminating harm, obviously linked to the agency action. Thus, I do not consider what must be alleged to satisfy the standing requirement by parties who have sustained no special harm themselves but sue rather as taxpayers or citizens to vindicate the interests of the general public.
* ↑ Past decisions of this Court indicate that a person who has suffered injury in fact meets the relevant Article III requirement. See, for example, FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 476-477, 60 S.Ct. 693, 698-699, 84 L.Ed. 869 (1940); Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942). In these decisions the Court permitted parties economically harmed by administrative action to challenge it although no legal interest of the parties was found to have been invaded by the action. The Court stated in Scripps-Howard Radio, supra, at 14, 62 S.Ct. at 882, that '(t)he Communications Act of 1934 did not create new private rights. The purpose of the Act was to protect the public interest in communications. By § 402(b)(2) Congress gave the right of appeal to persons 'aggrieved or whose interests are adversely affected' by Commission action.' Accordingly, since Congress cannot expand the Article III jurisdiction of federal courts, Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911), if follows that injury in fact renders a party adverse under the the Constitution. Cf. K. Davis, 3 Administrative Law Treatise § 22.02, at 211 (1958); Jaffe, supra, n. 5, at 336.
* ↑ See, e.g., the Securities Act of 1933, which provides that '(a)ny person aggrieved by an order of the Commission may obtain a review,' 15 U.S.C. § 77i(a), and the Federal Power Act, which grants review to '(a)ny party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding * * *.' 16 U.S.C. § 825l(b).
* ↑ Section 702 also provides that '(a) person suffering legal wrong because of agency action * * * is entitled to judicial review thereof.' Though a person suffering such wrong is clearly entitled to review, he need not show the existence of a legally protected interest to establish either his standing or his right to review. The existence of that interest is a question of the merits.
* ↑ This is particularly the case when the plaintiff is the only party likely to challenge the action. Refusal to allow him review would, in effect, commit the action wholly to agency discretion, thus risking frustration of the statutory objectives.
* ↑ If the alleged legal interest is clearly frivolous, or proof to substantiate the alleged injury in fact is wholly lacking, the plaintiff can be hastened from court by summary judgment.
* ↑ E.g., Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Association of Data Processing Service Organizations, Inc. v. Camp, 406 F.2d 837, 843 (C.A.8th Cir. 1969); Barlow v. Collins, 398 F.2d 398, 401 (C.A.5th Cir. 1968).
* ↑ E.g., Association of Data Processing Service Organizations, Inc. v. Camp, supra, 406 F.2d at 843; Barlow v. Collins, supra, 398 F.2d at 401-402; Harrison-Halsted Community Group, Inc. v. Housing & Home Finance Agency, 310 F.2d 99 (C.A.7th Cir. 1962).
* ↑ In cases involving statutes that do expressly grant the plaintiff a right to review, there would be no need for the Court's second standing inquiry-unless it serves to provide a preview of the merits.
* ↑ I would apply my view that all examination of statutory language and congressional intent, as they bear on the right of the plaintiff to challenge agency action, should be made only in the reviewability context even if the pertinent statutory material speaks of 'standing' or 'statutory aid to standing.' Statutory materials, of course, would be properly consulted in the determination of standing if they purport to define what constitutes injury in fact.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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