Koniag, Inc. v. Andrus

BAZELON, Circuit Judge,

concurring:

I join Judge Robb’s fine opinion for the court, but wish to highlight my reasons for concluding that appellants had standing to seek administrative review of the village eligibility decisions.

The decisions of this court and others on administrative standing have created not a little uncertainty. 1 It is unclear whether the limitations appurtenant to judicial standing apply in the administrative context. And if such limitations do not apply, it is unclear what standards should govern. For the reasons set forth below, I find no basis for importing judicial standing doctrines into the administrative area. In my view, administrative standing should be determined in light of the functions of an administrative agency, and whether a would-be participant would contribute to fulfilling those functions.

I.

An examination of the theoretical foundations of judicial standing reveals no reason to equate judicial and administrative standing. The Supreme Court has identified two general types of judicial standing limitations — constitutional limitations derived from the “case or controversy” requirement of Article III, and prudential limitations formulated by the Court in its supervisory capacity over the federal judiciary. See generally, Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 37-46 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 498-502 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975). Neither type of limitation is applicable in the administrative context.

The “case or controversy” requirement of Article III restricts federal courts to adjudication of disputes in which a plaintiff has a “personal stake” in the outcome. Baker v. Carr, 369 U.S. 186, 204 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). This means, first and most fundamentally, that a plaintiff must allege “some threatened or actual injury resulting from the putatively illegal action . .” Linda R.S. v. Richard D., 410 *349 U.S. 614, 617 , 93 S.Ct. 1146, 1148 , 35 L.Ed.2d 536 (1973). In addition, the Supreme Court has ruled that a plaintiff must assert an injury that is likely to be “redressed by a favorable decision,” Eastern Kentucky, supra 426 U.S. at 38 , 96 S.Ct. 1917 , and an injury that can fairly “be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Id.

Administrative agencies, like federal courts, frequently exercise adjudicatory or “quasi-judicial” functions. But administrative tribunals have few if any of the indicia of the “inferior courts” Congress is authorized to establish pursuant to Article III. 2 Even independent regulatory agencies do not share the two attributes of federal courts explicitly mentioned by the Constitution — secure compensation and life tenure. Hence, administrative agencies are not bound by the “case or controversy” limitation of Article III. 3 Congress, in its discretion, can require that any person be admitted to administrative proceedings, whether or not that person has alleged “injury in fact” or has satisfied the other constitutional standing requirements recognized by the Supreme Court.

Prudential rules of judicial standing, like Article III limitations, are “founded in concern about the proper — and properly limited — role of courts in a democratic society.” Warth, supra 422 U.S. at 498 , 95 S.Ct. at 2205 . The major prudential limitations recognized by the Supreme Court are the requirement that the plaintiff assert an interest “ ‘arguably within the zone of interests to be protected or regulated’ by the statutory framework within which his claim arises,” Eastern Kentucky, supra 426 U.S. at 39, n.19 , 96 S.Ct. at 1925 ; that the plaintiff assert more than “a ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens,” Warth, supra 422 U.S. at 499 , 95 S.Ct. at 2205 ; and that the plaintiff assert his own rights and interests, rather than those of third parties. Id.

The function of prudential standing rules, the Court has stressed, is to “limit the role of courts in resolving public disputes.” Warth, supra at 498 , 95 S.Ct. at 2206 ; id. at 500 , 95 S.Ct. 2197 . Prudential limitations serve to define “the proper judicial role relative to the other major governmental institutions in the society.” Tax Analysts and Advocates v. Blumenthal, 566 F.2d 130, 139 (D.C.Cir.1977). In short, prudential limitations reflect a concern about the limited authority and competence of the judiciary in setting general policy.

As such, prudential limitations are no more applicable to administrative agencies than Article III limitations. The authority of federal courts to set general policy is restricted by Article III, which empowers courts to hear only “cases” and “controversies.” Administrative agencies, on the other hand, derive their powers from Congress, and thus indirectly from Article I. Although this delegation of power is subject to limitations, 4 an agency has unquestioned authority to set general policies affecting large numbers of people when it acts within the scope of its statutory mandate.

The competence of federal courts to formulate general policy is also severely limited by the method in which they reach decisions. Courts are confined to the resolution *350 of particular disputes in an adversary setting. Administrative agencies, however, have unique resources for establishing broad, prospective policies. Unlike courts, administrative agencies can devote uninterrupted attention to relatively narrow problem areas, and can call upon technical staff assistance in formulating solutions. Unlike courts, they are not limited to the adjudicatory format, but have the flexibility to proceed by adjudication, legislative hearings, rulemaking, investigation or in other ways. And unlike courts, agencies do not have to wait for a plaintiff to file suit; they have the power to institute an investigation or an action on their own initiative.

The decisions of this circuit, as appellants acknowledge, are “not uniform” on the subject of whether judicial standing principles should be applied in administrative proceedings. App. Br. at 14 n.4. Admittedly,, a number of decisions, including one by the author of this opinion, have applied judicial standing concepts in determining whether a party should have standing before an agency. 5 At the same time, however, nearly all courts have have considered the question have recognized at least a theoretical distinction between judicial and administrative standing. 6 Moreover, most decisions that apply judicial standing concepts stand only for the proposition that if a party would have standing to seek judicial review of administrative action, he should be allowed to appear before the agency, if only to assure the proper development of the record. See, e. g., National Welfare Rights Organization v. Finch, 139 U.S.App.D.C. 46, 57-58 , 429 F.2d 725, 736-37 (1970). 7 As such, these cases do not establish that administrative standing would necessarily be improper if a party would not have standing to obtain judicial review.

The fact that judicial and administrative standing are conceptually distinct does not, *351 of course, mean that Congress could not require an administrative agency to apply judicial standing concepts in determining administrative standing. Nor does it mean that courts and agencies should never refer to judicial standing decisions, where helpful, by way of analogy. But absent a specific justification for invoking judicial standing decisions, I see no basis for interjecting the complex and restrictive law of judicial standing into the administrative process.

II.

What should be the standards for determining standing to appear before an agency? Generalizations are hazardous, for administrative standing questions arise in contexts as diverse as the methods and objectives of the agencies themselves. Nevertheless, the present case suggests some principles that may be broadly applicable.

The starting point in determining administrative standing should be the language of the statutes and regulations that provide for an administrative hearing, appeal or intervention. To be sure, these sources frequently provide no criteria for determining standing, or speak in vague terms of persons “aggrieved,” “affected,” or having an “interest” — in which case they are of little assistance. On occasion, however, the applicable statutes and regulations do supply specific criteria for determining standing, in which case they should of course be controlling.

An example of a regulation supplying relatively precise standards is 43 C.F.R. § 4.902 (1976), part of the new regulations on ANCSA hearing procedures promulgated after the hearings in the instant cases were completed. 8 This section provides:

Any party who claims a property interest in land affected by a determination from which an appeal to the Alaska Native Claims Appeal Board is allowed, or an agency of the Federal Government, may appeal as provided in this subpart. However, a regional corporation shall have the right of appeal in any case involving land selections.

This regulation quite clearly establishes three classes of persons who have standing: those asserting a property interest in land, federal agencies, and regional corporations in land selection cases. It thus provides fairly objective criteria that can be applied without recourse to a more refined analysis. 9

More often, however, the statutes and regulations do not provide specific guidelines for determining administrative standing. The regulation actually applied in these cases, for example, refers only to “[a]ny party aggrieved. . . . ” 43 C.F.R. § 4.700 (1976). 10 Such a general and indefinite provision suggests no concrete standards for determining who should have standing to appeal. In these circumstances, *352 I believe a functional analysis of administrative standing is appropriate. Such an analysis would examine the nature of the asserted interest, the relationship of his interest to the functions of the agency, and whether an award of standing would contribute to the attainment of these functions.

There is nothing revolutionary about such an approach to administrative standing. Several commentators have suggested adoption of a functional standard. 11 Moreover, the elements of a functional approach can be discerned in our prior decisions— most prominently, in fact, in the very cases cited by appellees for the proposition that judicial standing limitations should govern.

The seminal decision on administrative standing pointing toward a functional approach is Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328 , 359 F.2d 994 (1966). We held there that standing to intervene in a Federal Communications Commission license renewal proceeding is not limited to those alleging economic injury or electrical interference, but extends also to responsible representatives of the listening public. We ruled that “the concept of standing is a practical and functional one designed to insure that only those with' a genuine and legitimate interest can participate in a proceeding.” Id. 123 U.S.App.D.C. at 336 , 359 F.2d at 1002 . Given this standard, we could “see no reason to exclude those with such an obvious and acute concern as the listening audience.” Id. Moreover, we found that the Commission had insufficient resources to fulfill its obligation to assure balanced broadcast programming. Representatives of the listening public, acting as “private attorneys general” enforcing the Commission’s Fairness Doctrine, would therefore provide valuable assistance. Id. 123 U.S.App.D.C. at 337-38 , 359 F.2d at 1003-04 . We specifically rejected the Commission’s argument that a broad rule of standing would overwhelm the Commission with “hosts” of protestors, and found that the Commission had authority to adopt rules to screen out spurious petitions and “limit public intervention to spokesmen who can be helpful.” Id. 123 U.S.App.D.C. at 339 , 359 F.2d at 1005 .

In National Welfare Rights Organization v. Finch, 139 U.S.App.D.C. 46 , 429 F.2d 725 (1970), we expanded the rationale of United Church of Christ, making the functional elements of the analysis even more explicit. We held that organizations of welfare recipients were entitled to take part in hearings conducted by the Department of Health, Education and Welfare to determine if state welfare programs were in conformance with federal standards. A functional-type analysis of the organizations’ standing served as an alternative ground for the decision:

As intervenors in conformity hearings appellants may serve the public interest in the maintenance of an efficient state-federal cooperative welfare system. Appellants’ role would be analogous to that of persons accorded standing, not for the protection of their own private interests, but because they are especially well suited to represent an element of the public interest. Thus they serve as “private attorneys general.”

Id. 139 U.S.App.D.C. at 59 , 429 F.2d at 738 . As in United Church of Christ, supra, we noted that the “threat of hundreds of intervenors” was more apparent than real. The appropriate way to limit the possibility of abuse was “by controlling the proceeding so that all participants are required to adhere to the issues and to refrain from introducing cumulative or irrelevant evidence,” not by “excluding parties who have a right to participate.” Id., quoting Virginia Petrol *353 eum Jobbers Ass’n v. FPC, 105 U.S.App.D.C. 172 , 265 F.2d 364 n.1 (1959). 12

These authorities suggest a functional analysis composed of the following factors:

(1) The nature of the interest asserted by the potential participant.

(2) The relevance of this interest to the goals and purposes of the agency.

(3) The qualifications of the potential participant to represent this interest.

(4) Whether other persons could be expected to represent adequately this interest.

(5) Whether special considerations indicate that an award of standing would not be in the public interest.

Such a standard would have to be flexible, of course, and the appropriate variables might well vary from one context to another. 13 The important point is that administrative standing should be tailored to the functions of the agency, not to arcane doctrine from another area of the law.

Under such an approach, there can be little doubt that the Secretary acted properly in finding that the United States Fish and Wildlife Service, the National Forest Service, and the State of Alaska had standing to appeal the eligibility determinations of the BIA area director. In fact, although the standing discussion of the Alaska Na-five Claims Appeals Board, acting for the Secretary, relied in part on a consideration of judicial standing concepts, it also included an elementary functional analysis.

The federal agencies and the State of Alaska maintained that if certain villages were eligible to take public lands, their own flexibility in selecting such lands would be impaired. The Board found that this interest established “a nexus with the village sufficient to assure the presentation of factual evidence relevant to the village’s eligibility.” State of Alaska v. Village of Solomon, Final Decision of Board and Secretary (Sept. 16, 1974) at 4. Thus, the Board found that the asserted interest was relevant to one of the principal purposes of the Act — -determination of eligibility “with the fullest possible command of the relevant facts.” Id. the board concluded that it was proper to recognize appellants’ standing, “particularly when the Secretary’s factfinding obligation would be thwarted by a more restrictive approach.” Id. No suggestion, was made by the Board that appellants were not qualified to represent the interest they asserted, that affording them an appeal would result in duplicative presentations, or that there were any considerations of public policy militating against recognizing their standing. 14

*354 Under these circumstances, the Board was amply justified in finding that appellants had standing. Further analysis of standing concepts, judicial or otherwise, was unwarranted and unnecessary.

. See text and notes at nn. 5-7 infra.

. See Glidden Co. v. Zdanok, 370 U.S. 530, 552 , 82 S.Ct. 1459, 1474 , 8 L.Ed.2d 671 (1962) (opinion of Harlan, X, joined by Brennan and Stewart, XI.) (“[Wjhether a tribunal is to be recognized as one created under Article III depends basically upon whether its establishing legislation complies with the limitations of that article; whether, in other words, its business is the federal business there specified and its judges and judgments are allowed the independence there expressly or impliedly made requisite.”); Gardner v. FCC, 174 U.S.App.D.C. 234, 238 , 530 F.2d 1086 , 1090 n.18 (1976) (“[A]djudicafive agencies are really a type of ‘legislative court,’ which operates free from the restrictions of Article III.”).

. Cf. Palmore v. United States, 411 U.S. 389 , 93 S.Ct. 1670 , 36 L.Ed.2d 342 (1973) (Article I tribunal need not comply with the tenure and salary provisions of Article III.)

. National Cable Television Ass’n v. United States, 415 U.S. 336, 342 , 94 S.Ct. 1146 , 39 L.Ed.2d 370 (1974).

. Martin-Trigona v. Federal Reserve Bd., 166 U.S.App.D.C. 30, 33 , 509 F.2d 363, 366 (1975) (Bazelon, C. J.); see also American Civil Liberties Union v. FCC, 523 F.2d 1344, 1347 (9th Cir. 1975); National Welfare Rights Org. v. Finch, 139 U.S.App.D.C. 46, 53-54 , 429 F.2d 725, 732-33 (1970); Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 334 , 359 F.2d 994 , 1000 n.8 (1966) and cases cited. For cases recognizing a distinction between judicial and administrative standing see, e. g., Pittsburgh & W.Vir. Ry. Co. v. United States, 281 U.S. 479 , 50 S.Ct. 378 , 74 L.Ed. 980 (1930); Alexander Sprunt & Son, Inc. v. United States, 281 U.S. 249 , 50 S.Ct. 315 , 74 L.Ed. 832 (1930); Gardner v. FCC, 174 U.S.App.D.C. 234, 238 , 530 F.2d 1086, 1090 (1976); Chemehuevi Tribe of Indians v. FPC, 160 U.S.App.D.C. 83, 88 , 489 F.2d 1207 , 1212 n.12 (1973); United States v. Board of Sch. Com’rs. of Indianapolis, Ind., 466 F.2d 573, 577 (7th Cir. 1972); National Motor Freight Traffic Ass’n v. United States, 205 F.Supp. 529, 593-94 (D.D.C.), aff'd, 371 U.S. 223 , 83 S.Ct. 311 , 9 L.Ed.2d 273 (1962), reh. denied and opinion clarified, 372 U.S. 246 , 83 S.Ct. 688 , 9 L.Ed.2d 709 (1963). Commentators have generally recognized that there are practical and theoretical differences between administrative and judicial standing. See 3 K. Davis, Administrative Law Treatise 239-43 (1958); L. Jaffe, Judicial Control of Administrative Action! 524 (1965); Shapiro, Some Thoughts on Intervention Before Courts, Agencies and Arbitrators, 81 Harv.L.Rev. 721, 726, 767 (1968).

. As we stated in Gardner v. FCC, 174 U.S.App.D.C. 234, 238 , 530 F.2d 1086, 1090 (1976):

Within their legislative mandates, agencies are free to hear, actions brought by parties who might be without party standing if the same issues happened to be before a federal court. The agencies’ responsibility for implementation of statutory purposes justifies a wider discretion, in determining what actions to entertain, than is allowed to the courts by either the constitution or the common law.

See also Martin-Trigona v. Federal Reserve Bd., 166 U.S.App.D.C. 30, 33 , 509 F.2d 363 , 366 n.10 (1975); National Welfare Rights Org. v. Finch, 139 U.S.App.D.C. 46 , 53, 429 F.2d 725 , 732 (1970).

. See also American Communications Association v. United States, 298 F.2d 648, 650-51 (2d Cir. 1962). Martin-Trigona v. Federal Reserve Bd., 166 U.S.App.D.C. 30 , 509 F.2d 363 (1975) is exceptional, in that we there sustained a denial of a petitioner’s request for a hearing, relying in part on judicial standing concepts. The decision was a limited one, however, and we made it clear that “the different policies applicable to standing before this Court and before an administrative agency might in a different context require different concepts of standing.” Id. 166 U.S.App.D.C. at 33 , 509 F.2d at 366 n.10. The denial of administrative standing would have been proper in any event under a functional analysis, see Part II infra, since the petitioner refused to state the nature of his interest. Id. 166 U.S.App.D.C. at 34 , 509 F.2d at 367 .

. See 40 Fed.Reg. 33172 et seq. (1975), codified as 43 C.F.R. § 4.900 et seq. (1976).

. Generally, an appeals court must apply the law — including regulations — in effect at the time it renders its decision, “unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley v. School Bd. of the City of Richmond, 416 U.S. 696, 711 , 94 S.Ct. 2006, 2016 , 40 L.Ed.2d 476 (1974); Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 281-82 , 89 S.Ct. 518 , 21 L.Ed.2d 474 (1969). Since the court concludes that the federal agencies and the State of Alaska had administrative standing under 43 C.F.R. § 4.700 , maj. op. at 10, 13, it is unnecessary to consider whether 43 C.F.R. § 4.902 should be applied retrospectively to this case. See Nixon v. Sampson, Nos. 75-2194 & 2195 (D.C.Cir., March 22, 1978).

.§ 4.700 Who may appeal.

Any party aggrieved by an adjudicatory action or decision of a Department official relating to rights or privileges based upon law in any case or proceeding in which Departmental regulations allow a right of appeal to the head of the Department from such action or decision, should direct his appeal to the Director, Office of Hearings and Appeals, if the case is not one which lies within the appellate review jurisdiction of an established Appeals Board and is not excepted from the review authority delegated to the Director. No appeal will lie when the action of the Departmental official was based solely upon administrative or discretionary authority of such official.

43 C.F.R. § 4.700 (1976).

. See Crampton, The Why, Where and How of Broadened Public Participation in the Administrative Process, 60 Geo.L.J. 525 (1972); Gellhorn, Public Participation in Administrative Proceedings, 81 Yale L.J. 359 (1972); Jacks, The Public and Peaceful Atom: Participation in AEC Regulatory Proceedings, 52 Tex.L.Rev. 466 (1974); Shapiro, supra note 5; cf. Scott, Standing in the Supreme Court — A Functional Analysis, 86 Harv.L.Rev. 645 (1973).

. See also Marine Space Enclosures, Inc. v. F.M.C., 137 U.S.App.D.C. 9, 22-24 , 420 F.2d 577 , 590-92 (1969).

. One important distinction might be between a would-be participant seeking to institute a new administrative hearing or appeal, and one merely seeking to intervene in an on-going proceeding. An award of standing in the former circumstances is clearly more burdensome than in the latter. See 3 K. Davis, Administrative Law Treatise 241 (1958). Since intervention generally has no effect on what decisions are reached, or when they are rendered, it might be appropriate in considering requests for intervention merely to focus on (1) whether the potential intervenor represents a point of view that would assist in illuminating the issues; (2) whether he is qualified to represent this point of view; (3) whether other parties to the proceeding could be expected to represent this perspective; and (4) whether there are special considerations that indicate intervention would not be in the public interest.

.The Board’s functional-type analysis is also found, virtually verbatim, in U.S. Fish & Wildlife Service v. Village of Bells Flats, Final Decision of Board and Secretary (Sept. 20, 1974) at 2-3; and U.S. Forest Service v. Anton Larsen, Inc., Final Decision of Board and Secretary (Oct. 3, 1974) at 2-3. It is alluded to in State of Alaska v. Alexander Creek, Inc., Final Decision of Board and Secretary (Oct. 23, 1974) at 8. The full statement of the analysis in Village of Solomon is as follows:

It is recognized, as argued by the Respondents, that courts have applied [judicial] tests to determine the standing of litigants before them. However, it must also be remembered that the Board is an administrative body, not a court.

The Board acts in this proceeding for the Secretary, who has been directed by Congress in Section 11(b)(3) of the Act to determine village eligibility through consideration of census data or other evidence, and to “make findings of fact in each instance.”

* * * * , * sk

*354 In carrying out this duty, delegated to it by the Secretary, the Board is authorized, in its discretion, to direct hearings. (43 CFR 2651.-2(a)(5); 43 CFR 4.704).

It is clearly the purpose of such hearings to enable the Secretary, through the Board, to fulfill his statutory obligation of deciding village eligibility appeals with the fullest possible command of the relevant facts.

This purpose is best served by recognizing standing of a party who demonstrates a nexus with the village sufficient to assure the presentation of factual evidence relevant to the village’s eligibility.

The Board will therefore be guided by a relatively broad concept of standing, particularly when the Secretary’s fact-finding obligation would be thwarted by a more restrictive approach.