405 U.S. 727
SIERRA CLUB v. MORTON, SECRETARY OF THE
INTERIOR, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 70-34.
Argued November 17, 1971
Decided April 19, 1972
Petitioner, a membership corporation with "a special interest in the conservation and sound maintenance of the national parks, game refuges, and forests of the country," brought this suit for a declaratory judgment and an injunction to restrain federal officials from approving an extensive skiing development in the Mineral King Valley in the Sequoia National Forest. Petitioner relies on 10 of the Administrative Procedure Act, which accords judicial review to a "person suffering legal wrong because of agency action, or [who is] adversely affected or aggrieved by agency action within the meaning of a relevant statute." On the theory that this was a "public" action involving questions as to the use of natural resources, petitioner did not allege that the challenged development would affect the club or its members in their activities or that they used Mineral King, but maintained that the project would adversely change the area's aesthetics and ecology. The District Court granted a preliminary injunction. The Court of Appeals reversed, holding that the club lacked standing, and had not shown irreparable injury. Held: A person has standing to seek judicial review under the Administrative Procedure Act only if he can show that he himself has suffered or will suffer injury, whether economic or otherwise. In this case, where petitioner asserted no individualized harm to itself or its members, it lacked standing to maintain the action. Pp. 731-741.
433 F.2d 24, affirmed.
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE and MARSHALL, JJ., joined. DOUGLAS, J., post, p. 741, BRENNAN, J., post, p. 755, and BLACKMUN, J., post, p. 755, filed dissenting opinions. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.
Leland R. Selna, Jr., argued the cause for petitioner. With him on the briefs was Matthew P. Mitchell. [405 U.S. 727, 728]
Solicitor General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Kashiwa, Deputy Assistant Attorney General Kiechel, William Terry Bray, Edmund B. Clark, and Jacques B. Gelin.
Briefs of amici curiae urging reversal were filed by Anthony A. Lapham and Edward Lee Rogers for the Environmental Defense Fund; by George J. Alexander and Marcel B. Poche for the National Environmental Law Society; and by Bruce J. Terris and James W. Moorman for the Wilderness Society et al.
Briefs of amici curiae urging affirmance were filed by E. Lewis Reid and Calvin E. Baldwin for the County of Tulare; by Robert C. Keck for the American National Cattlemen's Assn. et al.; and by Donald R. Allen for the Far West Ski Assn. et al.
MR. JUSTICE STEWART delivered the opinion of the Court.
-CITE-
5 USC Sec. 556
01/16/96
-EXPCITE-
TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I - THE AGENCIES GENERALLY
CHAPTER 5 - ADMINISTRATIVE PROCEDURE
SUBCHAPTER II - ADMINISTRATIVE PROCEDURE
-HEAD-
Sec. 556. Hearings; presiding employees; powers and duties; burden
of proof; evidence; record as basis of decision
-STATUTE-
(a) This section applies, according to the provisions thereof, to
hearings required by section 553 or 554 of this title to be
conducted in accordance with this section.
(b) There shall preside at the taking of evidence -
(1) the agency;
(2) one or more members of the body which comprises the agency;
or
(3) one or more administrative law judges appointed under
section 3105 of this title.
This subchapter does not supersede the conduct of specified classes
of proceedings, in whole or in part, by or before boards or other
employees specially provided for by or designated under statute.
The functions of presiding employees and of employees participating
in decisions in accordance with section 557 of this title shall be
conducted in an impartial manner. A
presiding or participating
employee may at any time disqualify himself.
On the filing in good
faith of a timely and sufficient affidavit of personal bias or
other disqualification of a presiding or participating employee,
the agency shall determine the matter as a part of the record and
decision in the case.
(c) Subject to published rules of the agency and within its
powers, employees presiding at hearings may -
(1) administer oaths and affirmations;
(2) issue subpenas authorized by law;
(3) rule on offers of proof and receive relevant evidence;
(4) take depositions or have depositions taken when the ends of
justice would be served;
(5) regulate the course of the hearing;
(6) hold conferences for the settlement or simplification of
the issues by consent of the parties or by the use of alternative
means of dispute resolution as provided in subchapter IV of this
chapter;
(7) inform the parties as to the availability of one or more
alternative means of dispute resolution, and encourage use of
such methods;
(8) require the attendance at any conference held pursuant to
paragraph (6) of at least one representative of each party who
has authority to negotiate concerning resolution of issues in
controversy;
(9) dispose of procedural requests or similar matters;
(10) make or recommend decisions in accordance with section 557
of this title; and
(11) take other action authorized by agency rule consistent
with this subchapter.
(d) Except as otherwise provided by statute, the proponent of a
rule or order has the burden of proof.
Any oral or documentary
evidence may be received, but the agency as a matter of policy
shall provide for the exclusion of irrelevant, immaterial, or
unduly repetitious evidence. A
sanction may not be imposed or rule
or order issued except on consideration of the whole record or
those parts thereof cited by a party and supported by and in
accordance with the reliable, probative, and substantial evidence.
The agency may, to the extent consistent with the interests of
justice and the policy of the underlying statutes administered by
the agency, consider a violation of section 557(d) of this title
sufficient grounds for a decision adverse to a party who has
knowingly committed such violation or knowingly caused such
violation to occur. A party
is entitled to present his case or
defense by oral or documentary evidence, to submit rebuttal
evidence, and to conduct such cross-examination as may be required
for a full and true disclosure of the facts.
In rule making or
determining claims for money or benefits or applications for
initial licenses an agency may, when a party will not be prejudiced
thereby, adopt procedures for the submission of all or part of the
evidence in written form.
(e) The transcript of testimony and exhibits, together with all
papers and requests filed in the proceeding, constitutes the
exclusive record for decision in accordance with section 557 of
this title and, on payment of lawfully prescribed costs, shall be
made available to the parties. When
an agency decision rests on
official notice of a material fact not appearing in the evidence in
the record, a party is entitled, on timely request, to an
opportunity to show the contrary.
-SOURCE-
(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 386; Pub. L. 94-409, Sec.
4(c), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 95-251, Sec. 2(a)(1),
Mar. 27, 1978, 92 Stat. 183; Pub. L. 101-552, Sec. 4(a), Nov. 15,
1990, 104 Stat. 2737.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Derivation
U.S. Code
Revised Statutes and
Statutes at Large
---------------------------------------------------------------------
5 U.S.C. 1006.
June 11, 1946, ch.
324, Sec. 7, 60
Stat. 241.
-------------------------------
In subsection (b), the words ''hearing examiners'' are
substituted for ''examiners'' in paragraph (3) for clarity.
The
prohibition in the second sentence is restated in positive form and
the words ''This subchapter does not'' are substituted for ''but
nothing in this chapter shall be deemed to''.
The words
''employee'' and ''employees'' are substituted for ''officer'' and
''officers'' in view of the definition of ''employee'' in section
2105. The sentence ''A presiding or participating employee may at
any time disqualify himself.'' is substituted for the words ''Any
such officer may at any time withdraw if he deems himself
disqualified.''
Standard changes are made to conform with the definitions
applicable and the style of this title as outlined in the preface
to the report.
AMENDMENTS
1990 - Subsec. (c)(6). Pub. L. 101-552, Sec. 4(a)(1), 11,
inserted before semicolon at end ''or by the use of alternative
means of dispute resolution as provided in subchapter IV of this
chapter''. See Termination
Date of 1990 Amendment; Savings
Provision note below.
Subsec. (c)(7) to (11). Pub. L. 101-552, Sec. 4(a)(2), 11, added
pars. (7) and (8) and redesignated former pars. (7) and (8) and
redesignated former pars. (7) to (9) as as (9) to (11),
respectively. See
Termination Date of 1990 Amendment; Savings
Provision note below.
1978 - Subsec. (b)(3). Pub. L. 95-251 substituted
''administrative law judges'' for ''hearing examiners''.
1976 - Subsec. (d). Pub. L. 94-409 inserted provisions relating
to consideration by agency of a violation under section 557(d) of
this title.
TERMINATION DATE OF 1990 AMENDMENT; SAVINGS PROVISION
For termination Oct. 1, 1995, of authority of agencies to use
dispute resolution proceedings, with exceptions, under amendments
by Pub. L. 101-552, see section 11 of Pub. L. 101-552, set out as a
note under section 571 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-409 effective 180 days after Sept. 13,
1976, see section 6 of Pub. L. 94-409, set out as an Effective Date
note under section 552b of this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF AGRICULTURE
Functions vested by this subchapter in hearing examiners employed
by Department of Agriculture not included in functions of officers,
agencies, and employees of that Department transferred to Secretary
of Agriculture by 1953 Reorg. Plan No. 2, Sec. 1, eff.
June 4,
1953, 18 F.R. 3219, 67 Stat. 633, set out in the Appendix to this
title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF COMMERCE
Functions vested by this subchapter in hearing examiners employed
by Department of Commerce not included in functions of officers,
agencies, and employees of that Department transferred to Secretary
of Commerce by 1950 Reorg. Plan No. 5, Sec. 1, eff.
May 24, 1950,
15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF THE INTERIOR
Functions vested by this subchapter in hearing examiners employed
by Department of the Interior not included in functions of
officers, agencies, and employees of that Department transferred to
Secretary of the Interior by 1950 Reorg. Plan No. 3, Sec. 1, eff.
May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, set out in the Appendix
to this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF JUSTICE
Functions vested by this subchapter in hearing examiners employed
by Department of Justice not included in functions of officers,
agencies, and employees of that Department transferred to Attorney
General by 1950 Reorg. Plan No. 2, Sec. 1, eff.
May 24, 1950, 15
F.R. 3173, 64 Stat. 1261, set out in the Appendix to this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF LABOR
Functions vested by this subchapter in hearing examiners employed
by Department of Labor not included in functions of officers,
agencies, and employees of that Department transferred to Secretary
of Labor by 1950 Reorg. Plan No. 6, Sec. 1, eff.
May 24, 1950, 15
F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title.
HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF THE TREASURY
Functions vested by this subchapter in hearing examiners employed
by Department of the Treasury not included in functions of
officers, agencies, and employees of that Department transferred to
Secretary of the Treasury by 1950 Reorg. Plan. No. 26, Sec. 1,
eff. July 31, 1950, 15 F.R.
4935, 64 Stat. 1280, set out in the
Appendix to this title.
-CROSS-
CROSS REFERENCES
Secretary of Health and Human Services, advisory committee's
report, regulations covering pesticides and color additives, see
sections 346a and 379e of Title 21, Food and Drugs.
Secretary of Health and Human Services or his delegate, action in
licensing manufacture of narcotic drugs, see section 822 et seq. of
Title 21.
Securities and Exchange Commission, delegation of functions by,
see section 78d-1 of Title 15, Commerce and Trade.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 553, 554, 557, 558, 706,
3105 of this title; title 2 sections 501, 502, 1219, 1220, 1405;
title 7 sections 86, 87e, 87f-1, 1359ii, 2023, 2707, 3804, 3805,
4906, 6802, 6804; title 8 section 1182; title 15 sections 57a,
2605, 3412; title 16 sections 796, 839f, 1536, 2602, 3636; title 20
section 1234; title 21 sections 321, 342, 379e, 1041; title 22
sections 1037a, 4136; title 30 sections 185, 811, 1415; title 33
sections 907, 1319, 1321; title 39 sections 404, 3624, 3661; title
41 sections 10b-1, 422; title 42 sections 300h-2, 2241, 7171, 7407,
7413, 7502, 7511a, 7524, 7607, 9612, 11504; title 46 sections 7702,
9303; title 47 section 155; title 49 sections 31136, 31317; title
50 App. sections 16, 2159, 2410, 2412.
CITE-
42 USC Sec. 1982
01/16/96
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 21 - CIVIL RIGHTS
SUBCHAPTER I - GENERALLY
-HEAD-
Sec. 1982. Property rights of citizens
-STATUTE-
All citizens of the United States shall have the
same right, in
every State and Territory, as is enjoyed by white citizens
thereof
to inherit, purchase, lease, sell, hold, and convey real and
personal property.
-SOURCE-
(R.S. Sec. 1978.)
-COD-
CODIFICATION
R.S. Sec. 1978 derived from act Apr. 9, 1866, ch.
31, Sec. 1, 14
Stat. 27.
Section was formerly classified to section 42 of
Title 8, Aliens
and Nationality.
-EXEC-
EX. ORD. NO. 11063. EQUAL OPPORTUNITY IN HOUSING
Ex. Ord. No. 11063, Nov. 20, 1962, 27 F.R. 11527,
as amended by
Ex. Ord. No. 12259, Dec. 31, 1980, 46 F.R. 1253; Ex. Ord. No.
12892, Sec. 6-604, Jan. 17, 1994, 59 F.R. 2939, provided:
WHEREAS the granting of Federal assistance for
the provision,
rehabilitation, or operation of housing and related
facilities from
which Americans are excluded because of their race, color,
creed,
or national origin is unfair, unjust, and inconsistent with
the
public policy of the United States as manifested in its
Constitution and laws; and
WHEREAS the Congress in the Housing Act of 1949
(see Short Title
note set out under section 1441 of this title) has declared
that
the general welfare and security of the Nation and the health
and
living standards of its people require the realization as
soon as
feasible of the goal of a decent home and a suitable living
environment for every American family; and
WHEREAS discriminatory policies and practices
based upon race,
color, creed, or national origin now operate to deny many
Americans
the benefits of housing financed through Federal assistance
and as
a consequence prevent such assistance from providing them
with an
alternative to substandard, unsafe, unsanitary, and
overcrowded
housing; and
WHEREAS such discriminatory policies and
practices result in
segregated patterns of housing and necessarily produce other
forms
of discrimination and segregation which deprive many
Americans of
equal opportunity in the exercise of their unalienable rights
to
life, liberty, and the pursuit of happiness; and
WHEREAS the executive branch of the Government,
in faithfully
executing the laws of the United States which authorize
Federal
financial assistance, directly or indirectly, for the
provision,
rehabilitation, and operation of housing and related
facilities, is
charged with an obligation and duty to assure that those laws
are
fairly administered and that benefits thereunder are made
available
to all Americans without regard to their race, color, creed,
or
national origin:
NOW, THEREFORE, by virtue of the authority vested
in me as
President of the United States by the Constitution and laws
of the
United States, it is ordered as follows:
PART I - PREVENTION OF DISCRIMINATION
Section 101. I hereby direct all departments and
agencies in the
executive branch of the Federal Government, insofar as their
functions relate to the provision, rehabilitation, or
operation of
housing and related facilities, to take all action necessary
and
appropriate to prevent discrimination because of race, color,
religion (creed), sex, disability, familial status or
national
origin -
(a) in the sale, leasing, rental, or other
disposition of
residential property and related facilities (including land
to be
developed for residential use), or in the use or occupancy
thereof,
if such property and related facilities are -
(i) owned or operated by the Federal Government,
or
(ii) provided in whole or in part with the aid of
loans,
advances, grants, or contributions hereafter agreed to be
made by
the Federal Government, or
(iii) provided in whole or in part by loans
hereafter insured,
guaranteed, or otherwise secured by the credit of the Federal
Government, or
(iv) provided by the development or the
redevelopment of real
property purchased, leased, or otherwise obtained from a
State or
local public agency receiving Federal financial assistance
for slum
clearance or urban renewal with respect to such real property
under
a loan of grant contract hereafter entered into; and
(b) in the lending practices with respect to
residential property
and related facilities (including land to be developed for
residential use) of lending institutions, insofar as such
practices
relate to loans hereafter insured or guaranteed by the
Federal
Government.
Sec. 102. I hereby direct the Department of
Housing and Urban
Development and all other executive departments and agencies
to use
their good offices and to take other appropriate action
permitted
by law, including the institution of appropriate litigation,
if
required, to promote the abandonment of discriminatory
practices
with respect to residential property and related facilities
heretofore provided with Federal financial assistance of the
types
referred to in Section 101(a)(ii), (iii), and (iv).
PART II -
IMPLEMENTATION BY DEPARTMENTS AND AGENCIES
Sec. 201. Each executive department and agency
subject to this
order is directed to submit to the President's Committee on
Equal
Opportunity in Housing established pursuant to Part IV of
this
order (hereinafter sometimes referred to as the Committee),
within
thirty days from the date of this order, a report outlining
all
current programs administered by it which are affected by
this
order.
Sec. 202. Each such department and agency shall
be primarily
responsible for obtaining compliance with the purposes of
this
order as the order applies to programs administered by it;
and is
directed to cooperate with the Committee, to furnish it, in
accordance with law, such information and assistance as it
may
request in the performance of its functions, and to report to
it at
such intervals as the Committee may require.
Sec. 203. Each such department and agency shall,
within thirty
days from the date of this order, issue such rules and
regulations,
adopt such procedures and policies, and make such exemptions
and
exceptions as may be consistent with law and necessary or
appropriate to effectuate the purposes of this order.
Each such
department and agency shall consult with the Committee in
order to
achieve such consistency and uniformity as may be feasible.
PART III - ENFORCEMENT
Sec. 301. The Committee, any subcommittee
thereof, and any
officer or employee designated by any executive department or
agency subject to this order may hold such hearings, public
or
private, as the Committee, department, or agency may deem
advisable
for compliance, enforcement, or educational purposes.
Sec. 302. If any executive department or agency
subject to this
order concludes that any person or firm (including but not
limited
to any individual, partnership, association, trust, or
corporation)
or any State or local public agency has violated any rule,
regulation, or procedure issued or adopted pursuant to this
order,
or any nondiscrimination provision included in any agreement
or
contract pursuant to any such rule, regulation, or procedure,
it
shall endeavor to end and remedy such violation by informal
means,
including conference, conciliation, and persuasion unless
similar
efforts made by another Federal department or agency have
been
unsuccessful. In conformity with rules, regulations,
procedures,
or policies issued or adopted by it pursuant to Section 203
hereof,
a department or agency may take such action as may be
appropriate
under its governing laws, including, but not limited to, the
following:
It may -
(a) cancel or terminate in whole or in part any
agreement or
contract with such person, firm, or State or local public
agency
providing for a loan, grant, contribution, or other Federal
aid, or
for the payment of a commission or fee;
(b) refrain from extending any further aid under
any program
administered by it and affected by this order until it is
satisfied
that the affected person, firm, or State or local public
agency
will comply with the rules, regulations, and procedures
issued or
adopted pursuant to this order, and any nondiscrimination
provisions included in any agreement or contract;
(c) refuse to approve a lending institution or
any other lender
as a beneficiary under any program administered by it which
is
affected by this order or revoke such approval if previously
given.
Sec. 303. In appropriate cases executive
departments and agencies
shall refer to the Attorney General violations of any rules,
regulations, or procedures issued or adopted pursuant to this
order, or violations of any nondiscrimination provisions
included
in any agreement or contract, for such civil or criminal
action as
he may deem appropriate. The Attorney General is
authorized to
furnish legal advice concerning this order to the Committee
and to
any department or agency requesting such advice.
Sec. 304. Any executive department or agency
affected by this
order may also invoke the sanctions provided in Section 302
where
any person or firm, including a lender, has violated the
rules,
regulations, or procedures issued or adopted pursuant to this
order, or the nondiscrimination provisions included in any
agreement or contract, with respect to any program affected
by this
order administered by any other executive department or
agency.
PART IV - ESTABLISHMENT OF THE PRESIDENT'S
COMMITTEE ON EQUAL
OPPORTUNITY IN HOUSING
(Revoked. Ex. Ord. No. 12259, Dec. 31, 1980, 46
F.R. 1253; Ex.
Ord. No. 12892, Sec. 6-604, Jan. 17, 1994, 59 F.R. 2939.)
PART V - POWERS AND DUTIES OF THE PRESIDENT'S
COMMITTEE ON EQUAL
OPPORTUNITY IN HOUSING
Sec. 501. (Revoked. Ex. Ord. No. 12259, Dec. 31,
1980, 46 F.R.
1253; Ex. Ord. No. 12892, Sec. 6-604, Jan. 17, 1994, 59 F.R.
2939.)
Sec. 502. (a) The Committee shall take such steps
as it deems
necessary and appropriate to promote the coordination of the
activities of departments and agencies under this order.
In so
doing, the Committee shall consider the overall objectives of
Federal legislation relating to housing and the right of
every
individual to participate without discrimination because of
race,
color, religion (creed), sex, disability, familial status or
national origin in the ultimate benefits of the Federal
programs
subject to this order.
(b) The Committee may confer with representatives
of any
department or agency, State or local public agency, civic,
industry, or labor group, or any other group directly or
indirectly
affected by this order; examine the relevant rules,
regulations,
procedures, policies, and practices of any department or
agency
subject to this order and make such recommendations as may be
necessary or desirable to achieve the purposes of this order.
(c) The Committee shall encourage educational
programs by civic,
educational, religious, industry, labor, and other
nongovernmental
groups to eliminate the basic causes of discrimination in
housing
and related facilities provided with Federal assistance.
Sec. 503. (Revoked. Ex. Ord. No. 12259, Dec. 31,
1980, 46 F.R.
1253; Ex. Ord. No. 12892, Sec. 6-604, Jan. 17, 1994, 59 F.R.
2939.)
PART VI - MISCELLANEOUS
Sec. 601. As used in this order, the term
''departments and
agencies'' includes any wholly-owned or mixed-ownership
Government
corporation, and the term ''State'' includes the District of
Columbia, the Commonwealth of Puerto Rico, and the
territories of
the United States.
Sec. 602. This order shall become effective
immediately.
(Functions of President's Committee on Equal
Opportunity in
Housing under Ex. Ord. No. 11063 delegated to Secretary of
Housing
and Urban Development by Ex. Ord. No. 12892, Sec. 6-604(a),
Jan.
17, 1994, 59 F.R. 2939, set out as a note under section 3608
of
this title.)
-CROSS-
CROSS REFERENCES
Third party tort liability to United States for
hospital and
medical care, see section 2651 et seq. of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1988,
3608 of this title.