Committee for Full Employment v. Blumenthal, 77-1939

• Decision Date: 12 June 1979
• Docket Number: No. 77-1939,77-1939
• Citation: 606 F.2d 1062,196 U.S.App.D.C. 155
• Parties: 22 Fair Empl.Prac.Cas. 1437, 20 Empl. Prac. Dec. P 30,012, 196 U.S.App.D.C. 155 COMMITTEE FOR FULL EMPLOYMENT et al., Appellants, v. Michael W. BLUMENTHAL, Secretary of the Treasury, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1062

606 F.2d 1062

22 Fair Empl.Prac.Cas. 1437,

20 Empl. Prac. Dec. P 30,012, 196 U.S.App.D.C. 155

COMMITTEE FOR FULL EMPLOYMENT et al., Appellants, v. Michael W. BLUMENTHAL, Secretary of the Treasury, et al.

No. 77-1939.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 5, 1979.

Decided June 12, 1979.

Peter C. DePaolis, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Michael W. Farrell and Robert M. Werdig, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

John O'Toole, Washington, D. C., with whom Burton D. Fretz, Howard S. Scher and Robert S. Catz, Washington, D. C., were on the brief, for appellants.

Before BAZELON and TAMM, Circuit Judges, and PARKER, ^* United States District Judge for the United States District Court for the District of Columbia.

Opinion for the Court filed by Circuit Judge BAZELON.

Opinion concurring in part and dissenting in part filed by Circuit Judge TAMM.

BAZELON, Circuit Judge:

Appellant individuals ¹ and organizations ² appeal from a decision of the district court dismissing their complaint that the Office of Revenue Sharing (ORS) ³ has failed to respond adequately to administrative complaints filed by appellants, and has continued to fund recipient governments that allegedly violate the civil rights provisions of the Revenue Sharing Act. ⁴ The district court concluded that none of the individual or organizational plaintiffs had standing to maintain this action. For the reasons that appear more fully below, we reverse the decision of the district court.

I.

Section 122(a) of the Revenue Sharing Act ⁵ provides:

No person in the United States shall, on the ground of race, color, national origin, or sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity of a State government or unit of local government, which government or unit receives funds made available under (the Revenue Sharing Act).

Pursuant to that provision, the Secretary of the Treasury promulgated regulations that provided for the filing of administrative complaints by citizens against recipient governments alleged to be violating § 122(a). ⁶ Specifically, the original regulations, promulgated in 1975, provided:

Any person who believes anyone has been subjected to discrimination prohibited by this subpart, may personally or by a representative file with the Secretary a written statement setting forth the nature of the discrimination alleged and the facts upon which the allegation is based . . ..

(b) Investigations . . .. If the Secretary has reason to believe that the complaint shows that a recipient government has failed to comply with the provisions of this subpart, he will cause a prompt investigation to be made . . .. ⁷

Appellants in this case alleged that they have filed charges pursuant to this provision against eight recipient governments and have had charges filed on their behalf against three additional recipients. Joint Appendix (J.A.) 150. ⁸ Appellants further alleged that, to their knowledge, no action has been taken on these complaints other than a form acknowledgment of five of the charges. J.A. 151.

These allegations, uncontradicted by the government, are sufficient to confer standing on the complaining appellants to challenge ORS's inaction. ⁹ The agency's procedural regulations, which are binding on the agency, ¹⁰ entitle complainants to a review of their complaint by the Secretary and, if the complaint raises a colorable claim of violation, a prompt investigation. Complainants are injured if this procedural right is denied them, regardless of whether their complaint is ultimately found meritorious. ¹¹

Appellants therefore have established "injury in fact," ¹² for their stake in the litigation is a personalized one, not a generalized grievance. See United States v. SCRAP, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973): " 'Injury in fact' reflects the statutory requirement that a person be 'adversely affected' or 'aggrieved,' and it serves to distinguish a person with a direct stake in the outcome of a litigation even though small from a person with a mere interest in the problem." ¹³ Appellants' complaint is specific to them: the complaints that they have filed with ORS have not received the attention due under the Act and regulations. A court can redress appellants' injury, See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), by, E. g., ordering ORS to process promptly appellants' complaints and otherwise comply with the applicable regulations. Appellants are clearly within the "zone of interests" ¹⁴ both of the statute and of the applicable procedural regulations that appellants claim have been violated. ¹⁵

II.

Even as to those appellants who have not filed administrative complaints with ORS, ¹⁶ the district court's dismissal for lack of standing was premature. Appellants have alleged that the recipient jurisdictions are dependent on revenue sharing funds to carry out vital municipal activities. ¹⁷ They have also alleged that because the recipient governments are under an independent obligation not to discriminate in the provision of services, the governments do not have the option of declining the revenue sharing funds, and continuing to practice the discriminatory activities. ¹⁸ Moreover, the appellants have adduced evidence that initiating federal fund termination proceedings has in the past been highly effective in gaining compliance with federal antidiscrimination laws. ¹⁹ All of these allegations are uncontradicted by the United States. The mere fact that ultimate relief to the appellants depends on the actions of third parties does not, by itself defeat appellants' standing, so long as they can establish a "substantial likelihood" that the relief they request will eliminate the asserted injury. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 75 n. 20, 98 S.Ct. 2620, 2631 n. 20, 57 L.Ed.2d 595 (1978). "Our recent cases have required no more than a showing that there is a 'substantial likelihood' that the relief requested will redress the injury claimed to satisfy the second prong of the constitutional standing requirement (that the court's remedial powers would redress the claimed injuries)."

In Duke Power, the appellees' standing was challenged on the grounds that there was no showing that declaring the Price-Anderson Act unconstitutional would necessarily eliminate nuclear reactors. The Nuclear Regulatory Commission argued that, even in the absence of the Act, private companies might still build reactors, or alternatively, the United States itself might engage in nuclear power generation.

Although enactment of Price-Anderson was not a logically necessary condition to the existence of nuclear reactors, the Court held that the "documentary evidence and testimony in the record," Id. at 77, 98 S.Ct. at 2633, adduced by the environmental group, was sufficient to establish that in fact nuclear plants might not be built. In this case the appellants have adduced facts, uncontradicted by the government, that tend to show that the recipient governments would end discrimination rather than risk the loss of revenue sharing funds. ²⁰

At the very least, appellants were entitled to conduct discovery to buttress their allegation that there is a substantial likelihood that the relief they request will eliminate their injury. Their pleadings are not so deficient on their face, nor so implausible, that the district court was entitled to conclude the standing issue on a motion to dismiss. ²¹

III.

The district court denied standing to certain of the organizational plaintiffs as representatives of their members, concluding that representative standing is permissible only "where it is difficult, if not impossible for the person whose rights are being asserted to present his grievances to the court, or there is a compelling need to grant third-party standing to protect the constitutional rights of parties not before the court." Slip op. at 8. This formulation does not correctly express the law of standing as applied to an organization that seeks to represent its members. In Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 2212, 45 L.Ed.2d 343 (1975), the Court made clear that the test for representational standing for an organization is similar to that for an individual member: "The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit." The only additional limitation would arise if individual members of the organization were indispensable parties to the suit, a factor not present here. See also National Ass'n of Neighborhood Health Centers v. Mathews, 179 U.S.App.D.C. 135, 141-42, 551 F.2d 321, 327-28 (1976); Public Citizen v. Lockheed Aircraft Corp., 184 U.S.App.D.C. 133, 139, 565 F.2d 708, 714 (1977). ²²

The order of the district court is therefore reversed, with directions to reinstate appellants' complaint.

It is so ordered.

TAMM, Circuit Judge, concurring in part, dissenting in part:

I am in full agreement with the majority, for the reasons set forth in parts II and III of Judge Bazelon's opinion, that the order of the district court should be reversed. I am unable to concur in part I of the majority opinion, however, because of my belief that standing to sue in federal court must be based on more than allegations of violations of procedural regulations by an agency. In my view, injury to an underlying substantive interest must be alleged. Thus, in this case, standing is based on alleged harm resulting from discrimination rather than alleged violation of procedural regulations by the Secretary of Treasury.

* Sitting by...