Constitutional Standing

Const. Standing – Article 3 Case and Controversy requirements

Statutory Standing – Does a statute grant a particular cause of action?

Does P’s interest fall w/in the scope of the statute?

ADAPSO v. Camp

C&C

Injury in Fact -> future lost profits due to banks entering the
data processing industry; Direct loss of two data processing
customers due to decision by Comptroller to allow banks into
the industry

Statutory Standing

Zone of interests protected by statute? -> APA grants standing

to any party ‘aggrieved by an agency action’. “aggrievement”
includes vales/interests beyond financial harm, but “likely”
financial injury is enough too.

NO explicit grant of standing required -> only that the plaintiff

be within the class of persons that the statute is designed to
protect. Here, a general policy to regulate “data processing”
writ large includes P and their new competitors.
 FEC v. Akins

-The Federal Election Campaign Act (Act), 2 U.S.C.S. § 431 et seq.,

imposed extensive recordkeeping and disclosure requirements on
political action committees.
-The Federal Election Commission (FEC) found that AIPAC was not a
political action committee within the meaning of the Federal Election
Campaign Act (Act), 2 U.S.C.S. § 431 et seq.

-Respondent voters sought challenged that determination. The lower

court found that respondents did not have standing to challenge the
FEC's order. The intermediate appellate court affirmed. Respondents
sought review.

-The court found that 2 U.S.C.S. § 437g(a)(1) provided any person who
believed a violation of the Act had occurred to file a complaint with the
FEC.

-Any party aggrieved by an order of the FEC that dismissed a complaint

filed by such party could file a petition in court to seek review of the
dismissal. 2 U.S.C.S. § 437g(8)(A).

-The court reversed and remanded because the injury related to voting,
the most basic of political rights, and was sufficiently concrete that the
fact it was widely shared did not deprive Congress of the power to
authorize its vindication in federal courts.
- If the harm is specific and implicates fundamental rights it may
be sufficient to confer standing even if it is widely spread.
SCALIA DISSENT

 This is a generalized grievance, so no standing

o Harm is not particularized – cf. a mass tort where a
“widely shared” harm is in fact particular to each P’s
injuries
o Harm is not undifferentiated – Akins was harmed in the
exact same way as everybody else in America by the
inability to see who AIPAC’s donors were
 NO STANDING as a taxpayer or voter writ large
 Lujan v. Defenders of Wildlife

 The Departments of Interior (DOI) announced that the

Endangered Species Act (16 U.S.C. §1351) did not require other
government agencies to consult with the Department of the
Interior when their activities destroyed critical habitats for
endangered species outside of the US.

o The Defenders of Wildlife sued for an injunction.

 The US Supreme Court reversed and found that the Defenders

did not have standing.

o The US Supreme Court noted that the desire to observe

or use an endangered animal, even for purely aesthetic
purposes is a cognizable interest for purposes
of standing.

o However, you must establish through specific facts, not

only that listed species were in fact being threatened by
funded activities abroad, but also that one or more of
the Defenders' members would be directly affected
apart from their special interest in conservation.

 The Defenders had affidavits by two members,

one of whom had seen an endangered alligator
on a trip to Egypt, and another had seen an
endangered elephant in Sri Lanka.

o The Court rejected the affidavits, saying that they only

showed past exposure, and that Defenders had not
demonstrated that the members would possibly be
unable to see alligators and elephants in the future.

 You must establish the likelihood of imminent

injury in order to have standing. The Court
interpreted that to mean that the tourists
would have to have concrete plans to visit a site
where the US was about to build a project that
killed endangered animals.

o In general, the Defenders made three arguments. They

claimed that there was an ecosystem nexus (anyone
 who uses part of the contiguous ecosystem has
standings), an animal nexus (anyone on Earth who has
an interest in studying or seeing endangered species
has standing), and a vocational nexus (anyone with a
professional interest in endangered species has
standing).

 The Court found that persons 'who use the

ecosystem' are not perceptibly affected by the
action in question.

 The Court dismissed the other two arguments

as being silly, saying, "it goes beyond the limit,
and into pure speculation and fantasy, to say
that anyone who observes or works with an
endangered species, anywhere in the world, is
appreciably harmed by a single project affecting
some portion of that species with which he has
no specific connection."

o Justice Scalia is generally against citizen suits, because it

basically makes the private citizen into a little Attorney
General. That violates the powers of the Executive
Branch under the Constitution.

 If congress can “convert the undifferentiated

public interest” in proper administration of the
law into individual right enforceable by the
courts, that’s a SoP problem.

Kennedy – the “nexus” theories might be enough for standing in

another case where harm is more concrete; Congress CAN create new
rules for what is a “case or controversy” -> and they could have created
the ESA to work the way Defenders wanted it to if they had said
specifically that a “violation” of the act was in fact an “injury”

Stevens – “injury” to people interested in a species occurs whenever an

endangered species is harmed (its plenty immanent). BUT the
consultation requirement of ESA doesn’t apply to foreign countries.

Blackmun – enough questions of fact have been raised as to allow

Defenders to survive Summary Judgement on the standing issue…