Here I want to complete my review of federal legal precedents for the Supreme Court’s sudden invocation of “injury in fact” language to understand judicial standing in its 1970 Data Processing decision (recall the earlier installments: first, second, third. The first one explains the issue; if you want to escape my rummaging through the archive, you can skip to this one). Congress passed the Administrative Procedure Act in 1946 to, well, regulate administrative procedures and provide checks against their being arbitrary (this is one of the Acts that virtually of Trumps recent executive orders violates). Litigation about agency actions after the APA thus had to route through the APA, which imposed its own standards for judicial review of agency actions.
Here, the language of the lower courts gets very close to the issues in Data Processing. Consider first Curran v. Laird, in which a maritime union sought enforcement of the Cargo Preference Act, which required that American ships be used for military cargo. After awarding standing, the DC Cicruit concluded that the decision was a matter for agency discretion under the APA, ruling in favor of the government on the merits. The Court opens its standing discussion by noting that “plainly [plaintiffs are] aggrieved in fact by the allegedly unlawful action of the Secretary of Defense.” The Court then writes that:
“Aggrievement in fact presents the kind of concrete, adversary interest underlying the recent decisions rejecting objections to standing, especially in the constitutional sphere. It establishes "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 and far-reaching questions. Baker v. Carr, 369 U.S. 186, 204 (1962). It is also significant in determining the existence of standing to seek a mandate for enforcement of a statutory provision, though we agree with the Government that is not decisive.”
After reviewing the APA and some relevant caselaw on legal interest, the court concludes that:
“There is little to be gained from examination of the precedents in detail. Obviously no simple touchstone can be provided for determination of standing questions. Each case turns on the nature of the parties, the grievances and the statutory provisions involved. However, it is clear that with the approach charted in Abbott Laboratories, a person aggrieved in fact may properly invoke not only the letter of the Administrative Procedure Act and its "generous" review provisions, but a broad conception that Congress is "hospitable" to the maintenance of complaints against officials charged with disregarding its substantive mandate. And it does appear that in the absence of a contrary indication the courts will entertain even an action brought by an aggrieved competitor if there can fairly be attributed to Congress, expressly or impliedly, a purpose of protecting competitive interests like those of complainants” (Curran v. Laird, 420 F.2d 122, 126 (1969))
This appears to be pretty close to Data Processing: not only is injury in fact applied to standing, it is used to broaden standing and to be sympathetic to material harms as a component of legal interest.
For a second case, consider Arnold Tours v. Camp. Sunstein notes that the clearest precedent for the Data Processing approach to standing and its invocation of “injury in fact” derives not from any court cases, but from a law review article by Kenneth Culp Davis. Davis was one of the foremost 20c scholars of administrative law – he literally wrote the book on it – and was instrumental in drafting the APA. The presence of an active scholarly debate around the time of Data Processing is evident in Arnold v. Camp. The action was by a group of travel agencies seeking an injunction against the Comptroller allowing banks into the travel business. In the district opinion, the judge denied standing, basically on the grounds that injury in fact was insufficient to support standing absent a statutory basis:
“The National Bank Act contains no specific provisions for judicial review of the Comptroller's rulings, nor does it purport to specifically confer standing on any private parties, such as plaintiffs, to maintain an action of this type. Thus, plaintiffs find themselves in the position of private litigants seeking to enjoin allegedly unlawful economic competition. Plaintiffs do not allege that the conduct of defendant bank or of the Comptroller is tortious, in breach of any contract, or violative of any of the anti-trust laws of the United States. Plaintiffs likewise are unable to allege that this action is founded on any statute of the United States which grants to plaintiffs immunity from competition. Plaintiffs do not allege that they are members of any class which is the beneficiary of protective legislation, nor do they claim the advantages flowing from any federally granted license, franchise, or monopoly. In the absence of any of these allegations, which might give plaintiffs standing to maintain this action, their claim cannot survive the decisions of the Supreme Court holding that a party lacks standing to maintain a legal action where the only claimed financial loss is due to economic competition” (772)
After citing a line of Supreme Court cases to support this reading, he then argue that the APA didn’t grant standing either, since it “has been construed to do nothing more than to continue the traditional requirements of standing” (772).
The First Circuit decision follows the same lines, reciting the various case and statutory authorities to indicate that loss to economic competition is not by itself a reason to afford standing, and noting that, even if there is a bit of evidence of a shift, “more proof of Congressional solicitude is required before this court or any court should convert an economic struggle into a legal one.” They have this to say about the APA:
“The plaintiffs have suggested, however, that the general rule denying competitors standing is no longer valid, or has undergone substantial change. First, they argue that section 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702 provides standing for any persons claiming to be "adversely affected in fact." This contention seems derived from the interpretation of section 10(a) urged by Professor Davis in his Administrative Law Treatise, § 22.02, and presumably adopted in American President Lines v. FMB, D.D.C., 1953, 112 F. Supp. 346. We, however, choose to side with Professor Jaffe and the majority of the courts in holding that the passage of the APA was not intended to alter to such a drastic extent previous law on the question of standing. Moreover, we should add that we have serious reservations whether a test of "adversely affected in fact" would provide a simpler means of deciding the issue of standing. We do not pause for such analysis in the present case, but if, as has been suggested, simplicity and ease of determination is a reason for preferring the new interpretation, we do not find it.” (Arnold Tours, Inc. v. Camp, 408 F.2d 1147, 1151, 1969).
The decision deals with two lower court cases at once; in the second, the court does find statutory basis for data processors who complain about a decision allowing banks to compete with them. The interesting point is the explicit reference to an existing debate between extremely well-credentialed scholars – Louis Jaffe was also one of the century’s leading administrative law scholars. The Supreme Court’s decision in Data Processing essentially resolved this debate – indeed, shortly after Data Processing, the Supreme Court explicitly overruled the First Circuit in its consideration of Arnold v. Camp, citing its own recognition “toward enlargement of the class of people who may protest administrative action.”
Next time I’ll look at some earlier state case law.
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