Evans v. Hills

No. 74-1793 (2d Cir. June 4, 1976)

ELR Digest

The Second Circuit, on rehearing en banc, affirms dismissal of this civil rights challenge to federal sewer construction and parkland acquisition grants for the reason that the plaintiffs lack standing to sue. Plaintiffs, low income members of minority groups, challenged Housing and Urban Development Department (HUD) grants to the largely white, single-family zoned Town of New Castle for construction of a sanitary sewer facility, and Bureau of Outdoor Recreation grants for acquisition of a wildlife and park area. The complaint asserts the grants perpetuate the Town's exclusionary housing pattern in violation of the 1964 Civil Rights Act, 42 U.S.C. § 2000d, and the 1968 Civil Rights Act, 42 U.S.C. § 3601. Significantly, however, plaintiffs allege no specific harm to themselves from award of the grants; nor do they allege that they have sought or been refused housing in the Town.

Access to the federal courts, although governed by judicial discretion, Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 153 (1970), and by statute, id., is subject to the threshold requirement of Article III of the Constitution that federal courts decide only cases and controversies, Preiser v. Newkirk, 422 U.S. 395, 401 (1975). Parties must have a substantial personal stake in the outcome of the litigation. Baker v. Carr, 369 U.S. 186, 204 (1962). A prospective plaintiff must show that he will, absent relief, suffer injury in fact, Sierra Club v. Morton, 405 U.S. 727, 739, 2 ELR 20192 (1972), of a concrete nature, United States v. SCRAP, 412 U.S. 669, 3 ELR 20536 (1973). Whether a plaintiff falls within the zone of interests protected by the statute relied on is an entirely separate inquiry, notwithstanding that Congress may broaden the categories of interests cognizable by courts. Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 218 (1974). The "person aggrieved" language of the Civil Rights Act of 1968 has been interpreted to allow standing as broadly as is permitted by Article III. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 207 (1972).

That the appellants have alleged only abstract injury is shown by Warth v. Seldin, 422 U.S. 490 (1975), which involved a challenge to the alleged exclusionary zoning of predominantly white, single family dwellings in Penfield, New York. The plaintiffs in Warth, however, had a claim far stronger that that presented here, since they had allegedly tried and failed to obtain low-cost housing in Penfield. Here, appellants merely speculate that the grantmonies could conceivably be used for another, as yet imaginary project in Westchester County that might have resulted in more housing available to them. Indeed, an injunction would not likely result in any improvement of appellants' housing opportunities.

Federal courts cannot become forums for the vindication of personal values and political preferences. To avoid the specter of courts issuing advisory opinions, federal courts must stay within their well-defined, constitutional role. See Milliken v. Bradley, 418 U.S. 717 (1974), Hills v. Gautreaux, 44 U.S.L.W. 4480 (Apr. 20, 1976). Relaxation of standing is directly related to the expansion of judicial power. The continued vitality of the federal courts depends on their recognizing the "counter-majoritarian" implications of unlimited judicial review. United States v. Richardson, 418 U.S. 166, 188, 192 (1974). Disagreement with government policies, standing alone, does not constitute "injury" in the constitutional sense that is susceptible to remedy by the judicial branch.

In a concurring opinion, Judge Mansfield states that allowing federal grants-in-aid to be attacked by persons unaffected by them would violate basic standing principles. Warth v. Seldin, supra; O'Shea v. Littleton, 414 U.S. 488 (1974); Sierra Club v. Morton, supra. There is no indication that plaintiffs would benefit from enjoining the grants, unlike the plaintiffs in Hills v. Gautreaux, supra, who could take advantage of new low-income housing required to be built in predominantly while Chicago neighborhoods. The dissent mistakenly advances a theory found nowhere in the complaint, namely that the grants to New Castle would have a discriminatory effect on the "regional housing market." Furthermore, the portion of the Civil Rights Act that authorizes judicial review, 42 U.S.C. § 3612, omits from its coverage HUD's general duties under the Fair Housing Act, 42 U.S.C. § 3608.

In a dissenting opinion, Judge Oakes argues that appellants are the very persons who will continue to suffer from the racially restricted housing environment perpetuated by the challenged federal action. By providing for judicial review of federal grants, Congress must have intended to provide standing to these persons. See Jones v. Meade, 510 F.2d 961 (2d Cir. 1975). Standing questions have two parts: (1) whether the plaintiff is the proper party to bring the lawsuit (access standing) Flast v. Cohen, 392 U.S. 83 (1968); and (2) whether a particular matter, in policy terms, is suitable for determination by the courts (decision standing, reviewability), Barlow v. Collins, 397 U.S. 159 (1970). It must be remembered that the question here is not whether a community may exclude low income residents through zoning, but whether federal agencies, in violation of their duties under the Civil Rights Acts, may approve grants that subject minorities to exclusion. Accordingly, Warth v. Seldin, supra, actually benefits appellants, since the statutory violation at issue here was never considered in Warth. The connection between the statutory violation and the injury is sufficiently direct to supply standing, United States v. SCRAP, supra, 42 U.S.C. § 2000d-2 gives standing to low income persons to challenge federal grants that have the effect of increasing the concentration of low income housing in the regional housing market. Jones v. Meade, supra. The Civil Rights Acts require federal grants to be consistent with the objectives of nondiscriminatory, fair housing. Giving priority to parks and sewers for privileged communities without regard to integration of low cost housing opportunities violates this requirement. Under controlling cases, appellants have access standing. Association of Data Processing Service Org. v. Camp, supra.

As to reviewability, the courts should not fail to require the executive branch to execute the law faithfully. Agency disregard of congressional mandates is challengeable precisely because it involves, and does not negate, deference to another branch of government. United States v. Richardson, supra at 196 n. 18; Warth v. Seldin, supra at 501, 514. Congress must have at least impliedly granted a right of action to persons adversely affected by improper grants. This court is merely asked to review agency action in light of the nondiscriminatory, fair-housing mandate. Cf. Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965). It should be carefully noted that this matter is not one of constitutional involvement, such as Schlesinger v. Reservists Comm. to Stop the War, supra, or United States v. Richardson, supra, wherein judicial review removes the controversy from the political process. If Congress has spoken and the Executive has not heard the message, judicial involvement is not an usurpation of power.

Chief Judge Kaufman, also in dissent, argues that the constitutional "case or controversy" requirement should receive meaning from the perceived needs of society. In an analogy to the historical expansion of the Bill of Rights to protect individual autonomy, he relates the lowering of judicial standing barriers to the spectacular increase in size of the executive bureaucracy. Judicial review is a legitimate means of ensuring that agencies observe congressional mandates. A wooden application of Warth in a wholly different context will foreclose court access to any plaintiff to challenge HUD's abdication of its congressionally-imposed duty.

In another dissent, Judge Gurfein foresees future legal roadblocks to civil rights decisions as a result of this case. Appellants are within the class that Congress has sought to help, and are literally aggrieved. Local zoning ordinances of the type considered in Warth are inapposite. The challenge here is to administrative failure to carry out its congressionally-mandated duty to deny federal funding to discriminatory projects. The discrimination study that HUD should carry out is analogous to the preparation of an environmental impact statement; the federal courts have taken jurisdiction over such cases. See United States v. SCRAP, supra.

The full text of this opinion is available from ELR (50 pp. $6.25, ELR Order No. C-1057).

Counsel for Plaintiffs-Appellants
Richard F. Bellman
351 Broadway
New York NY 10013
(212) 966-9620

Counsel for Defendants-Appellees
Paul J. Curran, U.S. Attorney
V. Pamela Davis
Steven J. Glassman
1 St. Andrews Plaza
New York NY 10007
(212) 791-1963

En banc; Moore, J., for himself, Mansfield, Mulligan, Timbers, Van Graafeiland & Meskill, JJ.; Mansfield, J., joined by Timbers, J., concurs with opinion; Oakes, J., joined by Kaufman, C.J., Feinberg & Gurfein, JJ., dissents with opinion; Kaufman, C.J., joined by Gurfein, J., dissents with opinion; Gurfein, J., joined by Kaufman, C.J., dissents with opinion.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]