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Americans United for Separation of Church and State Inc. v. United States Department of Health

decided: April 8, 1980.



Before Adams, Rosenn and Weis, Circuit Judges.

Author: Adams


The question presented in this appeal is whether an organization devoted to the separation of church and state, and several of its members suing as individual citizens, have standing to challenge the transfer of government property to a concededly religious organization.


In August 1976, the Department of Health, Education and Welfare (HEW) conveyed 77 acres of surplus government property located in Valley Forge, Pennsylvania, as well as buildings, fixtures, and equipment situated thereon, to the Valley Forge Christian College. The property was transferred pursuant to the Federal Property and Administrative Services Act of 1949, which authorizes HEW to sell or to lease surplus government property to tax-exempt institutions for health and educational purposes.*fn1 In setting the sale or lease value of the property to be transferred, the Act requires the Secretary of HEW to consider any benefit that may accrue to the United States from the designated use of such property, and to grant discounts, known as "public benefit allowances," to transferees.*fn2 In exchange for its agreement to use the property in conformance with specified educational purposes for a period of thirty years, HEW granted to the college a 100% public benefit allowance. As a result, the property was transferred without any financial payment by the college. The total fair value of the property, acquired by the government at an estimated cost of $10,374,386.00, was stated to be $1,303,730.00 at the time of transfer.

The Valley Forge Christian College is admittedly sectarian. Operated under the supervision of the Assemblies of God, the college's primary purpose is to train leaders for church-related activities. Its curriculum is devoted to bible study, Christian service, and theology. Attendance at daily chapel service and regular participation in Christian activities is mandatory for all students.

Numerous transfers of government property to hundreds of church-denominated institutions have been authorized under the Act. As a matter of practice, HEW nearly always grants these organizations a public benefit allowance ranging from 95% to 100% of the property's estimated fair value. In this manner, HEW has in most cases relieved the benefitted religious organizations of the obligation to make financial payment for property received. Since the passage of this Act, HEW has authorized more than 650 separate transfers of surplus government property to various religious institutions. The total fair market value of government property transferred to denominationally sponsored organizations during this period amounted to more than $25,700,000.00. The initial cost of acquiring this property was over $64,494,000.00.

Americans United for Separation of Church and State, Inc., a nonprofit, tax-exempt organization claiming a membership of 90,000, and four of its individual directors, citizens and taxpayers of the United States, challenged HEW's transfer of government property to the Valley Forge Christian College. As defined by its Articles of Corporation, American United's purpose is "to defend, maintain and promote religious liberty and the constitutional principle of the separation of church and state." The plaintiffs alleged that this property transfer constituted a violation of their individual rights protected by the Establishment Clause of the First Amendment, and sought declaratory and injunctive relief to void the transfer. On the defendants' motion, the district court dismissed the suit on the ground that plaintiffs lacked standing as taxpayers to challenge a transfer of property pursuant to the Federal Property and Administrative Services Act. This appeal is from that judgment.

Although we accept the district court's conclusion that the plaintiffs lack taxpayer standing to contest the challenged conduct, we disagree with its conception of the legal identity assumed by the plaintiffs in this case. Americans United for Separation of Church and State, a nonprofit organization, is precluded by its very nature from assuming the status of taxpayer. And while the four members of this organization suing as individual plaintiffs do assert standing as taxpayers, none of them does so exclusively or as a matter of primary concern. The plaintiffs' essential contention, rather, is that the governmental conduct in question caused them individuated injury because it abridged their right protected by the Establishment Clause of the First Amendment to a Government that does not establish religion. Because the constitutional injury complained of by the plaintiffs gives them a sufficient "personal stake" in the present controversy to assure the court a "complete perspective" of the issues, and because the interest they seek to protect is arguably within the zone of interests protected by the Establishment Clause of the First Amendment, we hold that the plaintiffs possess legal standing to maintain this action. Accordingly, we will reverse the judgment of the district court.


The concept of standing to sue derives essentially from Article III of the Constitution, which extends the federal judicial power only to certain classes of "cases" and "controversies."*fn3 Standing differs from the other elements of justiciability in that it focuses primarily on the status of the litigant, and only secondarily on the issues he wishes to have adjudicated.*fn4 Although the case or controversy requirement provides the framework within which the question of standing in federal courts must be considered,*fn5 Article III merely delimits the jurisdiction of federal courts; it neither defines nor is it synonymous with the doctrinal limitations of standing. As the Supreme Court has asserted, "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."*fn6 Yet, the doctrine of standing reflects as well a blend of policy considerations that are "not always clearly distinguished from the constitutional limitation."*fn7

Courts and commentators have been confounded for many years by the question of standing.*fn8 To a considerable degree, the complexities and uncertainties stem from its case-by-case course of development, which has been "more or less determined by the specific circumstances of individual situations."*fn9 The rules of standing have been fashioned not in the abstract, but "with specific reference to the status asserted by the party whose standing is challenged and to the type of question he wishes to have adjudicated."*fn10 For this reason, the Supreme Court has declared that "generalizations about standing to sue are largely worthless as such."*fn11 Only by distinguishing the different contexts in which the Supreme Court has attempted to give "some meaningful form . . . to the jurisdictional limitations placed on federal court power by the concept of standing,"*fn12 is it possible to reach some comprehension of what the requirement entails.

Early discussions by the Court regarding the question of standing were anchored in the notion of a "legally protected interest" on the part of the litigant.*fn13 Under this approach, standing to litigate was conditioned on a showing by the plaintiff that the challenged governmental action threatened one of his legally protected interests.*fn14 Only if the plaintiff demonstrated an invasion of such an interest would the courts respond to claims of serious harm or injury resulting from illegality.*fn15 As challenges to governmental conduct increased during the course of this century, however, observation of the "legal interest" test "became steadily more perfunctory, and the link with private-dispute settlement more tenuous."*fn16 Litigants increasingly recognized, and desired to attack, the impact of governmental conduct on these so-called "noneconomic" values. Judicial reluctance to deny standing to such individuals consequently led to the conceptualization of individual and organizational interests in noneconomic values as legally protected interests. As the "legal interest" test was increasingly expanded to include such values, however especially in the case of challenges brought under the Constitution and certain statutes that imposed rules of conduct on the government without specifying any private remedies for their enforcement the exercise began to lose its point, and eventually was abandoned. In two cases decided in 1970, Association of Data Processing Service Organizations v. Camp*fn17 and Barlow v. Collins,*fn18 the "legal interest" test for standing, which "had become symbolically definitive even as it was increasingly ignored,"*fn19 was finally overruled explicitly and replaced by a new formulation of the standing doctrine.

A. The Modern Law of Standing: Personal Injury in Fact

The modern law of standing set forth in Data Processing and Barlow and reaffirmed in the same words since, requires no more than an allegation that the challenged official action has caused the plaintiff "injury in fact, economic or otherwise,"*fn20 to an interest "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."*fn21 Requiring "injury in fact" ensures that standing to sue is conferred only on individuals having a "personal stake in the outcome" of a controversy, and not on those with merely generalized or external preferences about its outcome.*fn22 Personal injury to a cognizable interest of the litigant, it is felt, will assure "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions."*fn23 As a result, when standing is placed in issue today, 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."*fn24

The categories of injury that may be alleged to support a litigant's standing to sue have increased considerably since the modern formulation of the standing doctrine in Data Processing and Barlow. Various allegations of harm have been recognized by the Supreme Court as sufficient to meet the requirement of "injury in fact." The most commonly recognized "injury in fact" has been economic in nature. In Data Processing, for example, the economic interests of data processors in agency rulings allowing nationally regulated banks to compete in the data processing industry supplied the requisite personal stake for the processors to challenge the agency action. Yet the Supreme Court went out of its way "to emphasize that standing may stem from (noneconomic values) as well as from . . . economic injury."*fn25 In particular, the Court indicated that injury to aesthetic, conservational, recreational, and spiritual values may satisfy the "injury in fact" requirement.*fn26

Dictum in Data Processing to the effect that the alleged injury necessary to confer standing need not be of an economic nature was soon fortified. In Sierra Club v. Morton,*fn27 the complainant averred that a road development through a National Park would adversely affect the scenery and wildlife of the area, and would impair the enjoyment of the park in the future. Although the Supreme Court denied standing because the Sierra Club had not alleged that its members would be personally injured by the development, it did not question that "this type of harm may amount to an "injury in fact' sufficient to lay the basis for standing."*fn28 The Court later validated environmental injury as a basis for standing. In United States v. SCRAP,*fn29 a group of law students who used the public parks challenged an agency ruling allowing a railroad rate increase which they claimed would result in greater litter in the parks. Noting that the claimed injury to the environment was "far less direct and perceptible" than that at issue in Sierra Club, and that the line of causation offered was "far more attenuated," the Court nonetheless concluded that the plaintiffs had alleged "a specific and perceptible harm" sufficient to satisfy the test of injury in fact.*fn30

An averment that official action violates the plaintiff's constitutional rights may also set forth a sufficient injury to meet the "injury in fact" test. In Baker v. Carr,*fn31 for instance, an asserted injury to voting rights supplied the basis for standing to attack the constitutionality of an apportionment scheme that allegedly diluted the relative effectiveness of the plaintiffs' right to vote. And in Abington School District v. Schempp,*fn32 standing to contest the constitutionality of Bible-reading in public schools was conferred on students and their parents who claimed that the practice violated their individual rights under the Establishment Clause.

Although it is now unquestioned that standing to sue may be premised on injury to noneconomic as well as economic values, "the "injury in fact' test requires more than an injury to a cognizable interest."*fn33 The acceptance of new categories of judicially cognizable injury has not eliminated the basic principle that to invoke judicial power the claimant must allege personal injury that has been variously described by the Supreme Court as "particular" or "concrete," "specific" or "direct," rather than "general and abstract." Desirous to ensure that individuals most affected by the questioned activity have a role in the challenge, the Court has consistently refused to confer standing on plaintiffs seeking to vindicate merely their own generalized views regarding constitutionality, legality, or the public interest.*fn34 Failure to set forth individuated injury, therefore, even in the presence of a "case or controversy," deprives a litigant of standing. Yet, as the Sierra Court indicated, the fact that the asserted injury is "shared by the many rather than (by) the few does not make them less deserving of legal protection through the judicial process."*fn35 So long as an allegation of personal injury to a cognizable interest represents "an individuated interest of the litigant as distinguished from the polity as a whole,"*fn36 it supplies the "personal stake in the outcome" needed for standing regardless of how many individuals share that injury. To be individuated, "an interest need only be expressible in terms of the individual litigant's concrete satisfaction or experiences; but such satisfactions or experiences need not be unique to the litigant."*fn37

B. Taxpayer Standing

The more "distinctive and discriminating" the harm alleged by a plaintiff, and the more clearly linked it is to the action challenged, the more easily a plaintiff may meet the "injury in fact" test. When a plaintiff claims such harm, there is no need to consider what must be set forth to satisfy the standing requirement by a party who asserts no special harm, but sues rather as a taxpayer to vindicate the interests of taxpayers generally.*fn38 In the absence of any allegation of individuated injury, however, an individual suing in his capacity as a taxpayer may nonetheless be ...

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