# Petition — Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0346%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 454 U.S. 464 ## Text 80-327 No. Supreme Court, U. S. FILED AUG3 0 1980 L_MicHaeL RODAK, JR., CLERK Supreme Court of the United States October Term, 1980 VALLEY FORGE CHRISTIAN COLLEGE, : Petitioner, and THE UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, THE UNITED STATES OF AMERICA v. AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, INC.. ANDREW LEIGH GUNN, EDWARD E. DOERR, GIOELE SETTEMBRINI, and E. MALLARY BINNS, Respondents. ‘ PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. C. Ciarkx Honcson, Jr., GEORGANNE DAHER TERRILL, STRADLEY, RONON, STEVENS & YOUNG, 1300 Two Girard Plaza, Philadelphia, Pennsylvania. 19102 Telephone: (215) 569-3800 Attorneys for Petitioner, Valley Forge Christian College. International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711 QUESTIONS PRESENTED 1. If pursuant to Act of Congress the federal govern- ment transfers to a church-related college personal and real property which is “surplus” to governmental require- ments, will a citizen-separationist or any citizen, without taxpayer status, have standing to challenge the transfer as action which violates the Establishment Clause? 2. Does the alleged violation of a citizen’s right “. . . to a Government that does not establish religion”,’ satisfy the injury in fact requirement of standing, where the citi- zen fails to meet the criteria for taxpayer standing man- dated by this Court in Flast v. Cohen, 392 U. S. 83 (1968)? ? 1. Americans United for Separation of Church and State, et al. v. United States Department of Health, Education end Welfare, et al., 619 F. 2d 252, 254 (3d Cir. 1980) (A. 1). 2. The caption of this case identifies the names of all parties to the proceeding in the United States Court of Appeals for the Third Circuit. (i) TABLE OF CONTENTS SS NE (LEU cp adecncccedenstvccccesecctones GEATEMENT OF JUREBDEGTION 0.020000 sccccscesccccccsccene CONSTITUTIONAL AND STATUTORY PROVISIONS .............++ a SC i ec enebaneeereeeeasccces APPENDIX: Opinion of the United States Court of Appeals for the Third Circuit, Americans United for Separation of Church and State, Inc., Gunn, Andrew Leigh, Doerr, Edward D., Settembrini, Gioele, Binns, E. Mallary, Appellants v. United States Department of Health, Education and Welfare, United States of America, Northeast Bible College, a/k/a Valley Forge Chris- tian College, No. 79-1221, filed April 8, 1980, 619 AMER: . is sedectbuccongicceetaadnpae's Order of the United States District Court for the Eastern District of Pennsylvania, Americans United for Sepa- ration of Church and State, Inc., Andrew Leigh Gunn, Edward E. Doerr, Gioele Settembrini, and E. Mallary Binns, Plaintiffs v. The United States Department of Health, Education and Welfare, The United States of America, and Valley Forge Chris- tian College, Defendants, Civil Action No. 77-1321, SCE: DOOD: ccedsncs ec voncinedebeasve Al TABLE OF CONTENTS (Continued). Page Judgment of the United States Court of Appeals for the Third Circuit, Americans United for Separation of Church and State, Inc., Gunn, Andrew, Leigh, Doerr, Edward D., Settembrini, Gioele, Binns, E. Mallary, Appellants v. The United States Department of Health, Education and Welfare, The United States of America, Northeast Bible College, a/k/a Valley Forge Christian College, No. 79-1221, dated April GU SANK, cRNA Sees Sdnens edn ceetecsesocqseneep A45 Order Denying Petition for Rehearing En Banc of the United States Court of Appeals for the Third Circuit, Americans United for Separation of Cherch and State, Inc., et al, Appellants v. The United States Department of Health, Education and Welfare, et al. No. 79-1221, dated June 3, 1980 ..............00. A47 United States Constitution, Relevant Articles and Amend- SLs 5 5's chs Rade we a bh ve wag seneendaa ened ae A49 Federal Property and Administrative Services Act of 1949, 40 U. S. C. § 471 et seq. (1970), relevant provisions A50 (iti) TABLE OF AUTHORITIES Cases: Page Alabama v. Texas, 347 U. S. 272 (1954) .........seceeeees 10 American Jewish Congress v. Vance, 575 F. 2d 939 (D. C. SE ee SCs in senchot.iaesd cvigbbesdecevse ee 8, 15 Americans United for Separation of Church and State, Inc., et al. v. United States Department of Health, Education and Welfare, et al., 619 F. 2d 252 (3d Cir. 1980) ...i, 1,5, 10, 11, 12, 13, 16, 17, 19, 20 Arlington Hts. v. Metro Housing Corp., 429 U. S. 252 (1977) 14 Ashwander v. T. V. A., 297 U. S. 288 (1936) .............. 10 Ass'n of Data Processing v. Camp, 397 U. S. 150 (1970) ..... 17 Damar ¥. Cate, SEP UW. G.TBS (IBGE)... cc nccccvnsccscccces 16 Boston Stock Exch. v. State Tax Comm., 429 U.S. 318 (1977) 14 Flast v. Cohen, 392 U. S. 83 (1968) ......... i, 9, 10, 12, 13, 15, 16 Frothingham v. Mellon, 262 U. S. 447 (1923) ............. 10 Hunt v. McNair, 413 U. S. 734 (1973) .........cccececeees 6 Kleppe v. New Mexico, 426 U. S. 529 (1976) .............. 10 Roemer v. Board of Public Works of Maryland, 426 U. S. 736 DEE ReUCRGh EN eke Socbesd onccdeebapecesteeecuns 6 Schempp v. Abington School District, 374 U. S. 203 (1963) 16 Schlesinger v. Reservists Committee to Stop the War, 418 SO kc sececenns 8, 10, 11, 15, 16, 18, 20 Sierra Club v. Morton, 405 U. S. 727 (1972) ...........45. 8, 15 Simon v. Eastern Kentucky Welfare Rts. Org., 423 U. S. 26 8, 15, 16 Tilton v. Richardson, 403 U, S, 672 (1971) .............05. 6, 20 U. S. v. Richardson, 418 U. S. 166 (1974) ..............4. 8, 10 Van Brocklin v. Tennessee, 117 U. S. 151 (1886) .......... 10 Walz v. Tax Commission, 397 U. S. 664 (1970) ............ 19 Warth v. Seldin, 422 U. S. 490 (1975) ......... cece eee ees 8,14 (iv) TABLE OF AUTHORITIES (Continued) Statutes: Page ne irs achonbsiesseesis el pag eetivocs 2 ed: oda aeuvubhshecsceeccdhensesectsen 5 Federal Property and Administrative Services Act of 1949, Se Ones ta ON k C0 00R, (IIIS) ni. oc ccc cccccccccess 3, 4,5,9 United States Constitution: ee CO ced anibledecesnccewseeveheos se 10 RSS EE re i, 3, 6, 9, 12, 13, 19 Tic cu clal ccsnsdbeyescbsccnccvdedese 17 OG Sota dnl scudiiegd sonic dacccdcvueese’ 3,9 GN 3,9 i «li. live rau teekbteccecsbeaseteass 3, 5, 13, 19 Ee eas tc reas ct bea oaseecényabeevetes 10 a a FS a Pe 10 Authorities: Sorauf, The Wall of Separation (Princeton University Press Diu MEER oe cheddans sanededvodescesesaaess see 15, 19 L. Tribe, American Constitutional Law § 319, at 85 (1978)... 1 (v) OPINIONS The December 15, 1978 order of the District Court granting Petitioner's motion for summary judgment is un- reported. (A42) _ The three opinions of the United States Court of Appeals for the Third Circuit (majority opinion by Adams, J., concurring opinion by Rosenn, J., dissenting opinion by Weis, J.) are reported as: Americans United for Separation of Church and State, Inc., et al. v. United States Depart- ment of Health, Education and Welfare, et al. at 619 F. 2d 252 (3d Cir. 1980) (Al) (1) 2 Petition for Writ of Certiorari JURISDICTION On April 8, 1980, the United States Court of Appeals for the Third Circuit rendered the judgment which peti- tioner seeks to have reviewed. On June 3, 1980, that Court denied petitioner’s petition for rehearing en banc. The jurisdiction of this Court is invoked pursuant to 28 U. S. C. § 1254(1). Petition for Writ of Certiorari 3 CONSTITUTIONAL AND STATUTORY PROVISIONS U. S. Const. Art. I, § 8, Cl. 1 A49 U. S. Const. Art. III, § 2, Cl. 1 A49 U. S. Const. Art. IV, § 3, Cl. 2 A49 U. S. Const. Amend. I A50 Federal Property and Administrative Services Act of 1949, 40 U. S. C. § 471 et seq. (1970) A50, 51 . 4 Petition for Writ of Certiorari STATEMENT OF THE CASE In 1973, the Secretary of Defense ordered the closing of a military hospital near Valley Forge, Pennsylvania, having declared the facility “excess” to the requirements of all military branches of the Defense Department. There- after, the property was reported as “excess” to the General Services Administration (“GSA”) which offered the facility to all other federal government agencies in accordance with the procedures prescribed by the Federal Property and Administrative Services Act of 1949 (“Federal Property Act”).’ No other agency indicated a need for the facility whereupon GSA declared the property “surplus”* to the requirements of the federal government. The hospital property was assigned to the Department of Health, Edu- cation and Welfare (“HEW”) for disposal to either a health or an educational institution in accordance with procedures prescribed by the Federal Property Act.’ Several health or educational institutions, some public, others private applied to become transferees of portions of the tract. Following extensive studies done by local and federal agencies of the merits of these applicants, the Peti- tioner, Valley Forge Christian College, was selected to receive a portion of the real estate and some personal property formerly utilized by the military hospital. Peti- tioner, which is affiliated with the Assemblies of God Church, had been conducting its educational activity at a facility it had outgrown. 3. 40 U. S. C. § 471 et seq. (1970) (A. 50). 4. “Surplus” is defined in regulations promulgated under the Federal Property Act and “. . . when used with respect to real property means any excess real property not required for the needs and the discharge and the responsibilities of all Federal Agencies as determined by the Administrator or his designee.” 45 CFR Part 12. 5. 40 U. S. C. § 484(k)(1) (A. 50). Petition for Writ of Certiorari 5 In accordance with the Federal Property Act,” HEW granted Petitioner a “public benefit allowance” pursuant to which it must earn the right to use the property over a period of thirty years through a bestowal of public bene- fits in conducting its educational program. In August, 1976, HEW conveyed a portion" of the hospital property to Petitioner. Subsequently, Petitioner relocated its campus to the property and rehabilitated the facility at substantial cost. For the last four years, Peti- tioner has continuously occupied and maintained the fa- cility as a college. This action was instituted against the Petitioner by the filing of an amended complaint on July 12, 1977." The Respondents and plaintiffs in the District Court are Americans United for Separation of Church and State, Inc., a non-profit corporation, and four individuals who are em- ployed by the organization. Jurisdiction of the District Court is founded upon 28 U. S. C. § 1331, since the Re- spondents alleged that their claim arose under the First Amendment. The amended complaint challenged HEW’s transfer of the property on allegations that Petitioner's sectarian ° 6. 40 U.S. C. § 484(k)(1)(C) (A. 51). 7. Petitioner received approximately 77 acres. with buildings from a tract consisting of approximately 180 acres which had been utilized by the military hospital until its closure three years before. 8. The complaint was originally filed in the United States District Court for the District of Columbia naming as a defendant only HEW. It was transferred, apparently with the agreement of Respondents and HEW, to the United States District Court for the Eastern District of Pennsylvania on March 24, 1977. An amended complaint filed July 12, 1977 named Petitioner as a co-defendant with HEW. 9. Judge Adams wrote: “The Valley Forge Christian College is admittedly sectarian.” Americans United, supra, at 253 (A. 3). The “admission” to which the Court refers is certainly not one of 6 Petition for Writ of Certiorari character disqualified it under the Establishment Clause as a transferee of government property. Respondent sought a declaration that the transfer violated the First Amend- ment, that the transaction be rescinded, that HEW be enjoined from making the transfer and that Respondents be awarded their attorneys’ fees and costs. (Amended Complaint ) Following the completion of discovery,” HEW moved to dismiss the complaint and Petitioner moved for summary judgment. Both motions sought dismissal of the action on the grounds that Respondents lacked stand- ing to sue. The District Court, in an unreported order dated December 15, 1978 (A. 42), granted the parties’ motions and dismissed the complaint. 9. (Cont'd. ) the Petitioners. Since the complaint was dismissed prior to a trial on the merits, the question of whether or not this institution would or would not qualify under the First Amendment to be a transferee of surplus property has never been litigated. For a college to be “sectarian” or “church-related” is hardly co-extensive with “religion” as used in the Establishment Clause. See Roemer v. Board of Public Works of Maryland, 426 U. S. 736 (1976); Hunt v. McNair, 413 U. S. 734 (1973); Tilton v. Richardson, 403 U. S. 672 (1971). 10. Respondents’ interrogatories to HEW and to Petitioner were answered. Petitioner's interrogatories and requests for pro- duction of documents addressed to Respondents were answered. Petitioner took the depositions of the individual Respondents, Andrew Leigh Gunn, Edward E. Doerr, Giole Settembrini and E. Mallory Binns. The depositions were transcribed and filed. Affidavits of Lois M. Sparklin, an employee of HEW, William J. Sheehan, Executive Director of the President's Economic Adjust- ment Committee and the Director of the Office of Economic Adjustment, Office of the Secretary of Defense; and Richard Coff- man, an appraiser, were filed in connection with Fetitioner’s motion for summary judgment. The foregoing in addition to the pleadings constitute in the main the record before the District Court and the Court of Appeals, Petition for Writ of Certiorari 7 Respondents appealed to the United States Court of Appeals for the Third Circuit and on April 8, 1980 that Court filed its three opinions (majority, concurring and dissent) and by vote of two to one reversed the District Court and directed that the action be remanded. On June 3, 1980, the Third Circuit denied Petitioner's petition for a rehearing en banc. This petition for a writ of cer- tiorari followed. 8 Petition for Writ of Certiorari ARGUMENT The Majority Has Embraced a Concept of Standing Presented to the Court in 1968 and Not Accepted by It at That Time, or Since. If the Basic Principles of Standing Prove to Be Unworkable or Undesirable, Then It Is the Supreme Court and Not a Court of Appeals That Has the Right to Change Them. Weis, J. Dissenting, Americans United, 619 F. 2d 252, 271 (3d Cir. 1980). (A. 41) A Court of Appeals has repudiated Flast v. Cohen," formulated a unique, unheard of and unknown test au- thorizing citizen standing for constitutional litigation, ignored five other opinions of this Court and placed itself in conflict with at least one other circuit."* The judgment of the Third Circuit deserves review by this Court at the behest of Petitioner, a tiny college of about 500 students ** threatened with the loss of its campus after four years of happy occupancy. Petitioner's “wrongdoing” was to apply, with other applicants, for a piece of surplus government property under a procedure authorized by federal statute. Until this lawsuit, the Fed- eral Property Act had never been challenged in its thirty- one year history; none of the hundreds and hundreds of 11. 392 U. S. 83 (1968). 12. Simon v. Eastern Kentucky Welfare Rts. Org., 423 U. S. 26; Warth v. Seldin, 422 U. S. 490 (1975); Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208 (1974); U. S. wv Richardson, 418 U. S. 166 (1974); Sierra Club v. Morton, 405 U. S. 727 (1972). 13. American Jewish Congress v. Vance, 575 F. 2d 939 (D. C. Cir. 1978). 14. This was the student enrollment for the academic year (1977-1978). Defendant Valley Forge Christian College Answers to Plaintiffs Interrogatories, No. 24. Petition for Writ of Certiorari 9 surplus property transfers to health and educational insti- tutions (including those which were church-related) had ever been questioned. Petitioner has been fighting for its life, strangled by litigation: first, as a defendant in a case of first impression in the District Court, and now as the unwilling victim of a fundamental change in standing jurisprudence, having been ordered by the Circuit Court to proceed to a trial in the District Court unless this Court will intercede. The amended complaint asserted that each of the in- dividual Respondents were taxpayers who challenged the transfer of surplus government property as violative of the Establishment Clause. (Amended Complaint {{ 3-6) This Court’s heralded decision in Flast permitted tax- payers access to a federal court to challenge the constitu- tionality of a congressional exercise of the power to tax and spend provided (a) that the taxpayer could demon- strate a logical link between his taxpayer status and the type of legislative enactment challenged and (b) that he could establish a nexus between taxpayer status and the precise nature of the constitutional infringement alleged. Flast required that the legislation challenged be a con- gressional exercise of the taxing and spending power granted by Art. I, § 8 of the Constitution. Flast and sub- sequent opinions of this Court have explained that the taxpayer can demonstrate the existence of a logical con- nection between taxpayer status and the constitutional provision assailed only by statutes whose constitutional source was the taxing and spending power of Art. I, § 8. The Federal Property Act challenged by these Respond- ents is the exercise of the power granted to Congress under Art. IV, §3, Cl. 2, referred to as the “Property Clause.” (A. 49) That clause authorizes Congress to pass appropriate legislation respecting the disposition of federal property. The Federal Property Act of 1949 is 10 Petition for Writ of Certiorari undeniably a congressional exercise of its power granted under the property clause and not of its taxing and spend- ing power. Van Brocklin v. Tennessee, 117 U. S. 151 (1886); Ashwander v. T. V. A., 297 U. S. 288 (1936); Alabama v. Texas, 347 U. S. 272 (1954) and Kleppe v. New Mexico, 426 U. S. 529 (1976). This Court has consistently applied Flast in denying prospective plaintiffs the right to utilize the federal courts to complain about congressional action whose power source is not the taxing and spending clause. See, U. S. v. Richardson, 418 J. S. 166 (1974) (standing denied because legislation in question was enacted pursuant to Art. I, §9, Cl. 7) and Schlesinger v. Reservists Commit- tee to Stop the War, 418 U. S. 208 (1974) (standing denied where the taxpayer’s challenge was to action under the “Incompatibility Clause” of Art. I, §6, Cl. 2); see also, Frothingham v. Mellon, 262 U. S. 447 (1923) (deny- ing standing to a taxpayer challenging legislation em- powered by the Fifth and Tenth Amendments). In fidelity to these precepts, the District Court dismissed the complaint. The Court of Appeals agreeing that the Respondents failed the Flast criteria and hence lacked taxpayers’ stand- ing,” nevertheless reversed, holding “. . . the Establish- ment Clause creates in each citizen a ‘personal constitu- tional right’ to a Government that does not establish religion.” Americans United, supra at 265. (A. 29) In so doing, Judge Adams observed that this case presented the Court below with the opportunity to answer: 15. The majority wrote: We do not dispute the district court’s determination that under the law as it presently exists, individuals asserting solely their interest as taxpayers have standing to challenge only exercises of the taxing and spending power, and not actions authorized by other constitutional provisions. Americans United, supra, 260 (A. 18). Petition for Writ of Certiorari ll ... the novel and important question posed by Jus- tice Fortas in Flast which the Court did not reach and thus did not decide: whether the vital interest of a citizen in the establishment issue, without reference to his taxpayer's status, would be acceptable as a basis for [standing to bring] this [kind of] challenge. Americans United, supra at 262. (A, 21-22) The Court of Appeals’ response to this question is remarkable: “An allegation of injury in fact to an interest pro- tected by the Establishment Clause is all that is re- quired for standing.” (Emphasis supplied) Ameri- cans United, supra at 265. (A. 28) To the complex literature of standing, already overbur- dened with formulae and criteria, the Circuit Court has added the concept chat plaintiffs’ “shared individuated " right” in a government that does not establish religion is the “direct” or “concrete” injury required by a plaintiff who seeks to deploy the federal judicial machinery. This phraseology, alien to the language of standing, does not overcome this Court's refusal to recognize standing for a plaintiff whose injury is no more than “abstract injury in non-observance of the Constitution asserted by [plaintiffs] as citizens.” Schlesinger, supra at 223, n. 13. As will be seen, these Respondents are ideological plaintiffs, “sepa- rationists”, Americans United, supra at 261 (A. 18) who are unaffected and unharmed by the transfer, but who 16. The majority opinion defines “individuated” in this fashion: To be individuated, ‘an interest need only be expressible in terms of the individual litigants’ concrete satisfaction or ex- periences; but such saitfsactions or experiences need not be unique to the litigant’ (quoting L. Tribe, American Constitu: tional Law § 319, at 85 (1978) Americans United, supra 259 (A. 14). 12 Petition for Writ of Certiorari seek to engage in “forensic” litigation; they do not invoke the judicial process for the healing of injury. If Re- spondents have standing, then the Third Circuit's opinion has guaranteed to every citizen the right to a federal forum to debate his grievances with government. For this Court to follow the majority's lengthy journey to repudiate Flast and ultimately recognize citizen stand- ing demands a consideration and acceptance of several subsidiary premises: First, that the Flast Court was limited by the plead- ings: had the Flast plaintiffs alleged something more than their taxpayer status, this Court would have held in Flast “, . . that the Establishment Clause does create in every citizen a personal constitutional right, such that any citi- zen, including taxpayers, may contest under that clause the constitutionality of federal expenditures.” Americans United, supra at 262. (A. 21) Secondly, the Court must appreciate that while these Respondents pleaded only their taxpayer status, actually their “essential contention”, Americans United, supra 234 (A. 4) is that government conduct injured them offering this Court the opportunity that it did not have in Flast to change the law. Finally, this Court must agree that the ideology of an absolute separatist position distinguishes these Re- spondents from the rest of the American citizenry and warrants standing, or alternatively, independent of their separatist goals, these plaintiffs as citizens have standing to sue under the Establishment Clause, even though they have not achieved taxpayer status. Flast Revisited and Retreaded The Court of Appeals agreed with the District Court that Respondents lacked taxpayer standing but said that the District Court erred in misperceiving” . . . the legal Petition for Writ of Certiorari 13 identity assumed by the [Respondents] in this case.” Americans United, supra at 254. (A. 4) “the heart of [Respondents’] complaint is that the challenged govern- mental action caused ‘injury in fact’ to their shared in- dividuated right to a government that . . .” does not vio- late the First Amendment. If the heart of the complaint be located within its four corners, then it beats strongly over injury to the individual Respondents as taxpayers; the murmur of injury to a “shared individuated right” heard by the Court can be neither seen nor heard by any fair examination of the amended complaint." The fact that the pleadings in this case are different than the pleadings in Flast, says the Court below, offers it the opportunity to embrace a theory which, but for pleading inhibitions, this Court in 1968 was rendered un- able to articulate. The fallacy of this perception is that neither the amended complaint nor the record here support, nor did the record in Flast or the subsequent opinions of this Court indicate that apart from taxpayer status any citizen has standing. As to the record below, the amended complaint identi- fies the individuals as taxpayers and the organizational plaintiff as a non-profit corporation. It is asserted that each taxpayer “. . . would be deprived of the fair and 17. As to each of the allegations respecting the plaintiffs’ status, the complaint pleads: [the individual] is a citizen of the United States (Amended Complaint {{ 3-6). Even the statement of the claim does not relate the injury personally to Respondents. They allege: the granting of property or other financial assistance to such colleges is a violation of the Establishment Clause of the First Amendment of the Constitution of the United States of America which states ‘Congress shall make no law respecting the establishment of religion .. .. (Amended Complaint, { 12) 14 Petition for Writ of Certiorari constitutional use of his (her) tax dollar for constitutional purposes in violation of his (her) rights under the First Amendment... .”. (Amended Complaint, {8) No other basis of standing is asserted. Discovery conducted both by interrogatories and depositions was unilluminating as to Respondents’ supposed stake in the outcome of this liti- gation. Respondent Gunn, for example, said he sustained a pocketbook injury because if property was given away he would be obliged as another taxpayer to “. . . make up the difference.” '* Another, while agreeing that the future reduction of taxes would be “comparatively small”, nevertheless linked the injury to his taxpayer status."” The organizational Respondent's standing to sue is based upon the assumed status of its members as federal taxpayers and upon their personal right to redress alleged constitutional grievances. (Amended Complaint, §2) It did not claim taxpayer status; it cannot be a Flast plaintiff. The amended complaint may be read to suggest that the organization Respondent tenders its special interest in maintenance of the constitutional principle of church and state as a basis for its standing to sue. This Court has held a party may have standing to as- sert only its own rights, and not the rights of third parties. Arlington Hts. v. Metro Housing Corp., 429 U. S. 252 (1977). Only where the organization itself has been in- jured, may it thereafter assert the rights of its members provided that the organization’s injury is the same as theirs. Warth v. Seldin, 422 U. S. 490 (1975); see also, Boston Stock Exch. v. State Tax Comm., 429 U. S. 318 (1977). In according this organization standing, Judge Adams fails to apply the criteria which this Court announced in Warth, supra, which are: first, that the organization must seek judicial relief from injury to itself and second, that it must 18, Gunn Deposition at 12. 19. Doerr Deposition at 35. Petition for Writ of Certiorari 15 at least assert the adverse effect of the challenged action on its members’ associational ties. Warth, supra at 511. The organization satisfied neither of these criteria. This Court's opinion in Sierra Club v. Morton” is an absolute prohibition to “special interest” organizational standing. In Sierra Club, this Court expressly disapproved the organizational plaintiff's historic interest in conservation and held that “mere interest in a problem” no matter how longstanding and no matter how qualified the organiza- tion, does not meet the standing test of “distinct and pal- pable injury” to challenge governmental action. Sierra Club, supra at 739. See also, Simon v. East Kentucky Welfare Rts. Org., supra; Schlesinger, supra at 226; Ameri- can Jewish Congress v. Vance, 575 F. 2d 939 (D. C. Cir. 1978) (denying standing to the separationist *' plaintiff and holding that “sheer motivation and commitment to the subject matter of a suit, no matter how strong, cannot sub- stitute for judicially cognizable injury”. Id. at 943. The Court's contention that but for pleading limita- tions, Flast would have announced the principle espoused by the majority below smacks more of rationalization than it does of ratio decidendi. None of the opinions of the Flast Court complains of pleading limitations. Nothing in the majority opinion suggests a “feel” of more than a con- ditional willingness to open the door to taxpayer suits. The opinions of the three-judge court which decided the Flast case below do not support this focus. That complaint as- serts taxpayer status and constitutional violation. The re- search of Judge Weis below, dissenting, who combed the 20, 405 U. S, 727. 21. The plaintiff in this case, the American Jewish Congress, was named by one scholar as one of the three leading separation- ists groups in America. The other two are the Respondent organi- zation and the American Civil Liberties Union. Sorauf, The Wall of Separation (Princeton University Press 1976). 16 Petition for Writ of Certiorari record and briefs before this Court in Flast, persuasively demonstrates that not only does the record not support the majority's version of what happened, but that the identical theory adopted by the Circuit Court here was rejected there. He concludes: It cannot be said, therefore, that the Supreme Court was not strongly urged to adopt the theory that the majority here now advances. American United, supra at270. (A. 38) Since Flast, this Court has been presented with fre- quent opportunities to embrace the hypothesis of the majority or to forecast in dictum that it is constitutionally viable. On each occasion this Court has convincingly re- affirmed Flast. See, Schlesinger, supra, and Simon, supra. Though the opinion of the Court below acknowledges the requirements that “[cloncrete injury, whether actual or threatened, has been an indispensable element of a dispute and the prerequisite to taxpayer standing”, Schlesinger, supra at 221, it does no more than pay lip service to this principle. Judge Adams’ vonclusion that the violation of a “per- sonal constitutional right is in and of itself a sufficiently definite injury to warrant standing” draws support from his reading of Baker v. Carr, 369 U. S. 186 (1962) and Schempp v. Abington School District, 374 U. S$. 203 (1963). He wrote: The Supreme Court has often recognized that an alle- gation of “particular concrete injury” to a plaintiff's fundamental rights, as distinguished from the “abstract injury” in non observance of the Constitution asserted by litigants as citizens, can supply standing. Ameri- cans United, supra at 264. (A. 25) Petition for Writ of Certiorari 17 But, in Baker the injury was direct and perceptible since the right to vote was threatened by dilution and in Schempp parents’ and students’ religious beliefs were im- pacted by a religious exercise. To say that these Respond- ents are entitled to a government which will not establish religion without any other noticeable impact is to say now to the Schlesinger plaintiff that he is entitled to a govern- ment that will not violate the incompatibility clause and to the Richardson plaintiff that a citizen is entitled to a government which will not violate Art. I, §9, Cl. 7 (re- lating to the accountability of public monies). Gloss, rather than substance is the result of laminating the “zone of interests” test of Data Processing into the analysis. Americans United, supra at 264. (A. 26) If government action violates a right protected by a statute or clause of the Constitutiou, the zone of non-economic values recognized in Data Processing is not needed. Yet, the Court implies that the Respondents’ injury may have something to do with their “spiritual stake and First Amendment values.” Americans United, supra at 264. (A. 26) There is no suggestion anywhere in this record that the Respondents’ spiritual values have been damaged by the government action here challenged. No other non- economic value or indirect loss was pleaded and hence employment of the zone of interests test by the Court strains the point and remains puzzling. Citizen-Separationists Are Ideological Plaintiffs; Citizens at Large Are Not Entitled to Standing At several points in its opinion, the Court appears to distinguish these Respondents from the citizenry at large by creating standing for special interest groups, here, separationists.” The Court was no doubt concerned with 22. For an exposition of the separationist philosophy, qua ideology, see Sorauf, supra. 18 Petition for Writ of Certiorari overcoming the Schlesinger holding that “. . . standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public . . .” Schlesinger, supra at 220. Yet, it seems most unwise to accord standing to citizens who distinguish themselves from the polity by virtue of a historic or deep commitment to a principle. Special inter- est groups with deep commitments to all manner of ideo- logical principles can be said to be differentiated from the citizenry at large. Standing for a citizen-separationist with- out taxpayer standing is the precedent for standing to sue for organizations and individuals who are citizen- conservationists, citizen-segregationists, citizen-liberals and citizen-conversatives and endless hyphenated standing formulations. While the pleadings state that the organizational plain- tiff has been committed to the principle of separation of church and state, the individual Respondents cannot dis- tinguish their injury as anything different from that to citizenry at large. Respondent Settembrini testified that the injury “could be defined as general,” and can “also be defined as specific” ** Two other Respondents admitted that their injury was shared in common with other tax- payers.”* The Court affirmed that the Respondents “. . . are decidedly not ideological plaintiffs . . . intent on adjudi- cating their own generalized views concerning the legality of the challenged action.” Americans United, supra. Separationism is an ideology, a point of view from which church-state issues are approached. This Court has never adopted the absolute as the approach to church-state rela- tions; as Chief Justice Burger observed: “The course of constitutional neutrality . . . cannot be an absolute straight 23. Settembrini Deposition at 13-14. 24. Gunn Deposition at 25-26; Doerr Deposition at 36. Petition for Writ of Certiorari 19 line; rigidity could well defeat the basic purpose [of the First Amendment]}”, Walz v. Tax Commission, 397 U. S. 664, 669 (1970). It is a view which competes with others such as “accommodationists” ” which is equally an ideol- ogy. More to the mark, separationism is not the law of the land, the violation of which gives rise to a personal right of redress. Respondents’ depositions illustrate the wisdom of this Court's rationale for consistently closing federal courts to the litigation of rhetoric. Lacking harm or injury, Re- spondents by their lawsuit instead sought to debate what should have been done with the property. One Re- spondent thought it should have been utilized for the gen- eral welfare of all taxpayers.”* Others thought it should be sold.” That a federal court not be used to permit citi- zens to second guess governmental choices, but only to redress wrongs is the foundation of this Court’s standing rules. That foundation crumbles with the adoption of the opinion of the Third Circuit. As the majority opinion winds to conclusion, Judge Adams appears to relinquish reliance upon these citizens as separationists and modifies the hypothesis to conclude that all citizens can challenge Establishment Clause vio- lations without taxpayer status. An allegation of injury in fact to an interest protected by the Establishment Clause is all that is required for standing. Americans United, supra at 265. (A. 28) No case decided by this Court has permitted citizen standing to challenge governmental action absent con- 25. The term “accomodationist” appears in Sorauf, The Wall of Separation (Princeton University Press 1976) in a chapter called “The Accommodationist Defendants”. 26. Settembrini Deposition at 13. 27. Gunn Deposition at 12. 20 Petition for Writ of Certiorari crete injury commonly supplied by taxpayer status. The concept of citizen standing was rejected by this Court in Schlesinger. It is apparent, as this Court observed in Schlesinger: The only interest all citizens share in the claim ad- vanced by Respondents is one which presents injury in the abstract. Respondents seek to have the Judi- cial Branch compel the Executive Branch to act in conformity with the [Schlesinger reads the Incom- patability Clause, but the Establishment Clause cer- tainly fits], an interest shared by all citizens. Id. at 217. The majority, conscious of the Schlesinger and Rich- ardson limitations attempts a distinction which is verbal at most: The decision in Reservists and Richardson appear to be based on the inadequate nature of the plaintiffs’ alleged injury in fact. Americans United, supra at 263. (A. 24) Yet, the only difference between the injury alleged in those cases and that alleged here are the differing clauses of the Constitution. The Court of Appeals has said that for non-observance of the Establishment Clause a citizen suffers “concrete” injury; however, the same citizen is rendered uninjured and powerless to rectify the non- observance of all other clauses of the Constitution. In its laborious journey to endorse citizen standing, it would seem that the Third Circuit failed to observe this Court’s admonition in Schlesinger: Our system of government leaves many crucial deci- sions to the political processes. The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing. Schlesinger, supra at 227. Petition for Writ of Certiorari 21 CONCLUSION Valley Forge Christian College respectfully prays the Court to issue a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit. Respectfully submitted, C. Crark Hopcson, Jr. GEORGANNE DAHER TERRILL STRADLEY, RONON, STEVENS & YOUNG 1300 Two Girard Plaza Philadelphia, PA 19102 (215) 569-3800 Attorneys for Petitioner, Valley Forge Christian College Appendix. Opinion of the United States Court of Appeals for the Third Circuit, Americans United for Separation of Church and State, Inc., Gunn, Andrew Leigh, Doerr, Edward D., Settembrini, Gioele, Binns, E. Mallary, Appellants v. United States Department of Health, Education and Welfare, United States of America, Northeast Bible College, a/k/a Valley Forge Chris- tian College, No. 79-1221, filed April 8, 1980, 619 F2d 252 (1980). UNITED STATES COURT OF APPEALS For THE Tuirp Circuit NO. 79-1221 AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, INC., GUNN, ANDREW, LEIGH, DOERR, EDWARD D., SETTEMBRINI, GIOELE, BINNS, E. MALLARY, Appellants v. THE UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, THE UNITED STATES OF AMERICA, NORTHEAST BIBLE COLLEGE, a/k/a VALLEY FORGE CHRISTIAN COLLEGE (Al) A2 Court of Appeals Opinion On AppeAL FroM THE Unrrep States Districr Court FOR THE EASTERN District OF PENNSYLVANIA C. A. No. 77-1321 Argued October 12, 1979 Reassigned, February 7, 1980 Before: ApAMs, ROsENN and Weis, Circuit Judges (Filed April 8, 1980) OPINION OF THE COURT. Apams, Circuit Judge. 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 citi- zens, have standing to challenge the transfer of govern- ment property to a concededly religious organization. I. FAcruAL BACKGROUND In August 1976, the Denartment of Health, Educa- tion and Welfare (HEW) conveyed 77 acres of surplus government property located in Valley Forge, Pennsyl- vania, 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 educa- tional purposes.’ 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, L 40 U.S.C. § 484(k) (1976). Court of Appeals Opinion A3 and to grant discounts, known as “public benefit allow- ances,” to transferees.? In exchange for its agreement to use the property in conformance with specified educa- tional 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 pay- ment 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 tho supervision of the Assem- blies 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 participa- tion in Christian activities is mandatory for all students. Numerous transfers of government property to hun- dreds of church-denominated institutions have been au- thorized 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 re- ceived. Since the enactment of this Act, HEW has au- thorized more than 650 separate transfers of surplus government property to various religious institutions. The total fair market value of government property trans- ferred 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. 2. Id. 45 C. F. R. § 12 (1978). A4 Court of Appeals Opinion 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 di- rectors, citizens and taxpayers of the United States, chal- lenged 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 constitu- tional principle of the separation of church and state.” The plaintiffs alleged that this property transfer consti- tuted a violation of their individual rights protected by the Establishment Clause of the First Amendment, and sought declaratory and injunctive relief to void the trans- fer. On the defendants’ motion, the district court dis- missed 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 gov- ernmental 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 religiofi. Because the constitutional injury complained of by the plaintiffs gives them a sufficient “personal stake” in the present Court of Appeals Opinion A5 controversy to assure the court a “complete perspective” of the issues, and because the interest they seek to pro- tect 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. Il. THe STANDING REQUIREMENT IN GENERAL 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.”* 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.‘ Although the case or controversy requirement provides the framework within which the question of standing in federal courts must be considered,’ Article III merely delimits the jurisdiction of 3. U.S. Const. art. III, § 2, states: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and mari- time Jurisdiction;—to controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—be- tween citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 4, Flast v, Cohen, 392 U. S, 83, 99 (1968). 5. Association of Data Processing Serv. Organizations v. Camp, 397 U. S. 150, 151 (1970). A6 Court of Appeals Opinion federal courts; it neither defines nor is it synonymous with the doctrinal limitations of standing. As the Su- preme Court has asserted, “the question of standing is related only to whether the dispute sought to be adjudi- cated will be presented in an adversary context and in a form historically viewed as capable of judicial resolu- tion.”* Yet, the doctrine of standing reflects as well a blend of policy considerations that are “not always clearly distinguished from the constitutional limitation.” ' Courts and commentators have been confounded for many years by the question of standing.’ To a consider- able 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.”* 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 chal- lenged and to the type of question he wishes to have adjudicated.” *° For this reason, the Supreme Court has 6. Flast v. Cohen, 392 U. S. 83, 101 (1968), quoted in Associa- tion of Data Processing Serv. Organization v. Camp, 397 U. S. 150, 151-52 (1970). 7. Id. at 97 (quoting Barrows v. Jackson, 346 U. S, 249, 255 (1953) ). 8. One recent commentator has insisted that the law of stand- ing “lacks a conceptual framework” and amounts to “little more than a set of disjointed rules dealing with a common subject.” Tushnet, The New Law of Standing: A Plea for Abandonment, 62 Cornell L. Rev. 663 (1977). Another has concluded that the “whole law of standing is so confused and cluttered . . . ‘hat the lower courts and practitioners especially need Supreme Cow: guidance.” K. Davis, Administrative Law of the Seventies § 22.00.-01, at 167 (Supp. 1977). 9. United States ex rel. Chapman v. Federal Power Comm., 345 U.S. 153, 156 (1953). 10, Flast v. Cohen, 392 U. S. 83, 101 (1968). Court of Appeals Opinion A7 declared that “[g]eneralizations about standing to sue are largely worthless as such.” "' Only by distinguishing the different contexts in which the Supreme Court has at- tempted to give “some meaningful form . . . to the juris- dictional limitations placed on federal court power by the concept of standing,” ” is it possible to reach some com- prehension 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.’ 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." 11. Association of Data Processing Serv. Organizations v. Camp, 397 U. S. 150, 151 (1970). 12. Flast v. Cohen, 392 U. S. 83, 99 (1968). 13. See, e.g., Perkins v. Lukens Steel Co., 310 U. S. 113, 125 (1940); Tennessee Elec. Power Co. v. TVA, 306 U. S. 118, 137 (1939); Alabama Power Co. v. Ickes, 302 U. S. 464, 479 (1938). 14. Tenessee Power Co, v. TVA, 306 U. S, 118, 136-37, 147 (1939). The “legal interest” inquiry was a product of the traditional legal order in which a court's basic function was to settle disputes between private individuals regarding property or liberty of person. As civil litigation against government officials evolved, there re- mained a need to perceive an ownership claim before courts could recognize an individual whose ownership interest could be adjudi- cated. It was only natural for courts to seek to accommodate such litigation within the existing structure of legal thinking and lan- guage appropriate to private dispute settlement. Challenges to governmental action thus triggered judicial inquiry into whether such action had invaded the complainant's legally protected inter- est. Courts in effect sought guidance from other areas of the law in order to determine whether a plaintiff's alleged interest was de- serving of judicial protection. Scott, Standing in the Supreme Court—A Functional Analysis, 86 Harv. L. Rev. 645, 650 (1973). For an illuminating discussion, see J. Vining, Legal Identity 13-33 (1978). A8 Court of Appeals Opinion 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." 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.” '* Litigants in- creasingly recognized, and desired to attack, the impact of governmental conduct on these so-called “noneconomic” values. Judicial reluctance to deny standing to such indi- viduals consequently led to the conceptualization of in- dividual and organizational interests in noneconomic values as legally protected interests. As the “legal inter- est” 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 Organization v. Camp“ and Barlow v. Collins,"* the “legal interest” test for standing, which “had become symbolically definitive even as it was increasingly 15. As Justice Frankfurter elaborated: “A litigant ordinarily has standing to challenge governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. . . . Or standing may be based on an interest created by the Constitution or a statute. . . . But if no compar- able commonlaw right exists and no such constitutional or statutory interest has been created, relief is not available judicially.” Joint Anti-Fascist Refugee Comm. v. McGrath, 351 U. S. 123, 152 (1951) (concurring opinion ). 16. J. Vining, supra note 14, at 23. 17. 397 U. S. 150 (1970). 18, 397 U. S. 159 (1970). Court of Appeals Opinion A9 ignored,” *® 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 chal- lenged official action has caused the plaintiff “injury in fact, economic or otherwise,” *’ to an interest “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” ™ 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 out- come.” 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 19. J. Vining, supra note 14, at 26-27. 20. Data Processing Serv. Organizations v. Camp, 397 U. S. at 152. 21. Id. at 153. 22. Baker v. Carr, 369 U. S. 186, 204 (1962), quoted in Flast v. Cohen, 392 U. S. 83, 101 (1968). For a discussion of the distinction between “personal” and “ex- ternal” preferences see R. Dworkin, Taking Rights Seriously 234-39 (1977). External preferences need not be independent of, indeed they may reinforce, personal preferences. See Sierra Club v. Morton, 405 U. S. 727, 738 (1972) (“The test of injury in fact goes only to the question of standing to obtain judicial review. Once this standing is established, the party may assert the interests of the general public in support of his claims for equitable relief.” ). Al0 Court of Appeals Opinion . . . questions.”™* 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.” * 23. Baker v. Carr, 369 U. S. 186, 204 (1962), quoted in Barlow v. Collins, 397 U. S. at 170-71 (Brennan, J., concurring and dissent- ing). “We may reasonably expect,” as Justice Brennan noted in Barlow, “that a person so harmed will, as best he can, contest the issues with the necessary adverseness, and pursue the litigation vigorously.” 397 U. S. at 172-73 (footnote omitted). 24. Barlow v. Collins, 397 U. S. at 171 (Brennan, J., concurring and dissenting) (footnote omitted) (quoting in part Flast v. Cohen, 392 U. S. at 99-100). The discrediting of the “legal interest” test, as Professor Vining has suggested, represented “not simply an incre- mental development, but a shift in the axioms of legal thinking” supra note 14, at 39. “The ‘legal interest’ test,” the Supreme Court said in Data Processing, “goes to the merits. The question of stand- ing is different.” 397 U. S. at 153. This important distinction be- tween whether a plaintiff is a proper party to request an adjudica- tion vf a particular issue and whether that issue itself is justiciable had been drawn by the Court two years previous in Flast v. Cohen, 392 U. S. 83, 95 (1968). Prior to that decision, however, the exist- ence or nonexistence of a “legal interest” was not, as the Supreme Court subsequently held, “a matter quite distinct from the problem of standing.” Association of Data Processing Serv. Organizations v. Camp, 397 U. S. at 153 n. 1. On the contrary, prior statements had bound together standing, the merits, and the remedy. If the plain- tiff was given standing to assert his claims, his interests were legally protected; if he was denied standing, his interests were not legally protected. The separation in Data Processing and Barlow of the question of standing to sue, on the one hand, from those of the merits and the remedy, on the other, thus reflected a fundamental departure. It represented a new awareness of judicial power and a willingness to address issues and provide remedies even when “the merits do not seem to focus on the situation of a particular individ- Court of Appeals Oxinion All The categories of injury that may be alleged to sup- port a litigant’s standing to sue have increased consider- ably since the modern formulation of the standing doc- trine 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.” In particular, the Court indicated that injury to aesthetic, conservational, recreational, and spiritual values may satisfy the “injury in fact” requirement.” Dictum in Data Processing to the effect that the al- leged injury necessary to confer standing need not be of an economic nature was soon fortified. In Sierra Club v. Morton,” the complainant alleged that a road develop- ment 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 Su- preme 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 24, (Cont'd) ual” or “no remedy restoring or protecting a person as such and by ‘name’ is appropriate.” J. Vining, supra note 14, at 44. 25. 397 U, S. at 154. 26. Id. 27. 405 U. S. 727 (1972). Al2 Court of Appeals Opinion harm may amount to ‘injury in fact’ sufficient to lay the basis for standing.” ** The Court later validated environ- mental injury as a basis for standing. In United States v. SCRAP,” 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.” An allegation 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,” 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 Abing- ton School District v. Schempp,” 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 28. Id. at 734. 29, 412 U. S. 669 (1973). 30. Id. at 688-89. 31. 369 U. S. 186 (1962). 32. 374 U. S. 203 (1963). Court of Appeals Opinion Al3 than an injury to a cognizable interest.” The accept- ance of new categories of judicially cognizable injury has not eliminated the basic principle that to invoke ju- dicial 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 in- dividuals 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.** Failure to set forth in- dividuated 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 alleged injury is “shared by the many rather than by the few does not make them less deserving of legal protection through the judicial process.”* So long as an allega- tion of personal injury to a cognizable interest represents 33. Sierra Club v. Morton, 405 U. S. at 734-35. 34. E.g. Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974); Sierra Club v. Morton, 405 U. S. at 734-35. The Sierra Court readily conceded that “an organization whose members are injured may represent those members in a proceeding for judicial review.” But it nonetheless refused to confer standing on the plaintiff organiza- tion because the Club failed to allege that it or its members would be affected in any of their activities by the challenged action. As the Court explained: “The requirement that a party seeking review must allege facts showing that he himself is adversely affected does not insulate executive action from judicial review, nor does it pre- vent any public interest from being protected through the judicial process. It does serve as at least a rough attempt to put the de- cision as to whether review will be sought in the hands of those who have a direct stake in the outcome.” Id. at 739-40. 35. Id. at 734. Al4 Court of Appeals Opinion “an individuated interest of the litigant as distinguished from the polity as a whole,” it supplies the “personal stake in the outcome” needed for standing regardless of how many individuals share that injury. To be individu- ated, “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.” * C. 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 avers no special harm, but sues rather as a taxpayer to vindicate the interests of taxpayers generally.“ In the absence of any allegation of individuated injury, however, an individual suing in his capacity as a taxpayer may nonetheless be able to demonstrate, under certain limited circumstances, a sufficient “personal stake in the outcome” to allow him to argue the merits of the cause. Flast v. Cohen™ enunciated the modern law of fed- eral taxpayer standing. As defined by the Court, the question presented there was “whether a litigant asserting only his status as a taxpayer has standing to maintain a 36. L. Tribe, American Constitutional Law § 3-19, at 85 (1978). 37. Id. As the Court later held in United States v. SCRAP, 412 U. S. at 687: “standing is not to be denied simply because many people suffer the same injury.” 38. Barlow v. Collins, 397 U. S. 159, 172 n. 5 (1970) (Brennan, J., concurring in the result and dissenting ). 39. 392 U. S. 83 (1968). Court of Appeals Opinion Al5 suit in federal court.” *° Plaintiff-taxpayers in that case disputed the expenditure of federal funds to finance instruction and materials for use in religious schools on the ground that this abridged the Establishment Clause. In granting standing, the Supreme Court set forth two rules governing its decision. First, in order to maintain a suit, a “taxpayer must establish a logical link between that status and the type of legislative enactment at- tacked.” *' The Court apparently believed that such link could be demonstrated only if a successful suit might possibly result in some decrease in taxes. “Thus,” the Court explained, “a taxpayer will be a proper party to al- lege the unconstitutionality only of exercises of congres- sional power under the taxing and spending clause of Art. I, § 8 of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the ad- ministration of an essentially regulatory statute.” Sec- ond, the taxpayer must establish a nexus between his taxpayer status and the nature of the constitutional transgression claimed. “Under this requirement,” the Court declared, “the taxpayer must show that the chal- lenged enactment exceeds specific constitutional limita- tions imposed upon the exercise of congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8.”" Because the program attacked in Flast dealt with a substantial expenditure of tax funds, rather than an inci- dental payment in the administration of an essentially regulatory statute, the Court found that the plaintiff- 40. Id. at 91 (emphasis added). 41. Id. at 102. 42. Id. 43. Id. at 102-03. Al6 Court of Appeals Opinion taxpayer satisfied the first requirement. The Court then discerned, on the basis of a remark by James Madison,“ an intent on the part of the Framers of the Constitution to protect taxpayers, as special beneficiaries, from the use of the taxing and spending power to support religion. “The Establishment Clause was designed as a specific bulwark against potential abuses of governmental power,” the Court elaborated, and it “operates as a specific con- stitutional limitation upon the exercise by Congress of the taxing and spending power.” The Court accordingly granted the plaintiffs standing, “That the Framers could at most have intended to protect taxpayers as a means to the protection of religious liberty was inconsequential: it was enough that they were protected as secondary beneficiaries.” ** The two-part nexus test of Flast has been criticized. It is uncertain why a taxpayer should be precluded from questioning congressional spending authorized by a con- stitutional provision other than the taxing and spending clause. All government disbursements and expenditures, it has been asserted, are exercises of the spending power, even if also supported by some other constitutional pro- vision. In addition, it is often difficult to distinguish gov- ernmental action that is primarily spending from activities primarily regulatory. The Court has nevertheless “drawn a sharp if artificial distinction” ‘’ between attacks by tax- 44, “‘[T]he same authority which can force a citizen to con- tribute three pence only of his property for the support of any one establishment, may force him to conform to any other establish- ment in all cases whatsoever. [Memorial and Remonstrance Against Religious Assessments.] 2 Writings of James Madison 183, 186 (Hunt ed. 1901).’” 392 U. S. at 103. 45. Id at 104. 46. J. Vining, supra note 14, at 109. 47. L. Tribe, supra note 36, § 3-19, at 84 n. 18 (1978). Court of Appeals Opinion Al7 payers on spending programs as such and attacks on other kinds of programs. As for the distinction between specific and nonspecific limitations on the taxing and spending power, it has been forcefully argued that a taxpayer's stake in the outcome of the dispute is the same regardless of the nature of the limitation. “A person who has standing to challenge for one kind of illegality that adversely affects him,” Professor Davis contends, “necessarily has standing to challenge for another kind of illegality that adversely affects him to the same extent.” ** The Supreme Court has offered no guidelines for distinguishing between specific and nonspecific limitations. And while the Court expressly left open the question whether the Constitution contains other specific limitations,” taxpayer standing to challenge official action has since been strictly confined to actions premised on the Establishment Clause. III. StranpinG UNDER THE ESTABLISHMENT CLAUSE The district court first refused to recognize the plain- tiffs’. standing under the Establishment Clause. Then it denied jurisdiction on the assumption that the allegation of injury to plaintiffs’ economic interests in reduced taxes offered the only possible basis for standing. From this assumption, the district court decided that the plaintiffs lack standing as taxpayers under Flast, because they can- not show a logical link between their taxpayer interest and the claim sought to be adjudicated. The legislation authorizing the transfer in question was enacted pursuant to the property clause of the Constitution, which provides Congress the “Power to dispose of . . . Property belonging to the United States.”"* Relying on the suggestion in 48. Davis, Standing—Taxpayers and Others, 35 U. Chi. L. Rev. 601, 604 (1968). 49. Flast v. Cohen, 392 U. S. at 105. 50. U. S. Const. art. IV, § 3, cl. 2. Al8 Court of Appeals Opinion Flast that litigants asserting their interest as taxpayers have standing “to allege the unconstitutionality only of exercises of Congressional power under the taxing and spending clause,” the district court concluded that the logical nexus between the asserted taxpayer interest and the disposition of the property challenged here is too strained to bring the plaintiffs within the narrow contours of taxpayer standing. We do not dispute the district court’s determination that under the law as it presently exists, individuals as- serting solely their interest as taxpayers have standing to challenge only exercises of the taxing and spending power, and not actions authorized by other constitutional provisions. Inasmuch as litigants suing in the capacity of taxpayers must show that the activity in question involves substantial taxing and spending, it may well be that the plaintiffs here lack taxpayer standing. We do question, however, the assumption by the district court that the only basis advanced by the plaintiffs in support of their standing claim is, or must be, alleged injury to their inter- est as taxpayers. The heart of plaintiffs’ complaint is that the chal- lenged governmental action caused “injury in fact” to their shared individuated right to a government that “shall make no law respecting the establishment of religion.” Even the plaintiffs themselves would acknowledge that their allegation of taxpayers status is essentially an as- sumed role, set forth in response to uncertain pleading requirements. Plaintiffs have no reason to expect, nor perhaps do they care about, any personal tax saving that might result should they prevail. The crux of the interest at stake, the plaintiffs argue, is found in the Establish- ment Clause, not in the supposed loss of money, as such. As a matter of primary identity, the plaintiffs are not so much taxpayers as separationists, and their main concern Court of Appeals Opinion Al9 is not a reduction in taxes, but their declared goal of separation of church and state. As enunciated in Flast, the doctrine of taxpayer stand- ing was not meant to qualify the general standing re- quirement of a “personal stake in the outcome.” To the contrary, Flast’s purpose was to outline a limited set of circumstances in which an allegation of financial injury in the form of increased tax liability by itself might be considered an acceptable stake on which to predicate standing, quite apart from eny allegation of individuated injury to other judicially cognizable interests. Indeed, the Flast court apparently found itself forced to premise standing on the plaintiff's taxpayer interest, solely be- cause it discerned no other allegation of injury that could supply the requisite personal stake in the outcome. The Court described its “point of reference” as well as its “starting point for analysis,” to be “the standing of indi- viduals who assert only the status of federal taxpayers.” ™ As viewed by the Court, the question presented was “under what circumstances a federal taxpayer whose in- terest stemmed solely from the taxes he paid to the Treas- ury ‘[would] be deemed to have the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer qua taxpayer consistent with the constitutional limitations of Article III.’”* In no case outside the 51. 392 U. S. at 91, 102. Although the court apparently under- stood the plaintiffs to be premising their standing solely on their status as taxpayers—and decided the case on that basis—the plain- tiffs in their brief to the Court did assert not only this “pocketbook injury,” but also “an injury to the right to live under a government which separates itself strictly from the church and church affairs.” Brief for Appellant at 37. 52. United States v. Richardson, 418 U. S. 166, 205 (1974) (Stewart, J., dissenting) (quoting in part Flast v. Cohen, 392 U. S. 83, 101 (1968) ). A20 Court of Appeals Opinion context of taxpayer suits, however, has the Supreme Court demanded a subject matter nexus between the injury as- serted and the constitutional claim sought to be adjudi- cated. Indeed, in Schlesinger v. Reservists to Stop the War the Court explicitly rejected such a broad compass for the Flast nexus requirement. For the nexus criteria developed in Flast for taxpayer standing, “were not in- tended as a litmus test to resolve all conceivable standing questions in the federal courts.”"* They were fashioned, rather, “solely as a determinant of standing of plaintiffs alleging only injury as taxpayers to challenge federal legis- lation.” The Court recently affirmed this position in Duke Power Co. v. Carolina Environmental Study Group, by expressly stating that outside the context of taxpayers’ suits, a litigant must demonstrate nothing more than “in- jury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury to satisfy the ‘case or controversy’ requirement.” The enormous labor spent by the Court to extend standing to the plaintiff in Flast through the precarious opening of taxpayer standing is best understood as a - function of the Court’s acknowledged “point of refer- ence’—it found no allegation of injury except that claimed by the litigants in their capacity as a federal tax- payer. It was this perceived limitation in the pleadings and nothing else, we believe, which constrained the Court 53. 418 U. S. 208, id. at 225 n. 15 (1974). This requirement, the Court noted, “is not appropriate on a claim of citizen standing since the Flast nexus test is not applicable where the taxing and spending power is not challenged. . . .” 54. United States v. Richardson, 418 U. S. at 205. 55. Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 238 (1974) (Brennan, J., dissenting). 56, 438 U. S. 59, 79 (1978) (footnote omitted). Court of Appeals Opinion A21 in Flast from deciding that the plaintiffs’ interest in the establishment issue, without reference to their taxpayer status, would supply a stake sufficient to support standing. The underlying justification for according standing in Flast it seems, was the implicit recognition that the Estab- lishment Clause does create in every citizen a personal constitutional right, such that any citizen, including tax- payers, may contest under that clause the constitutionality of federal expenditures. As previously suggested, it is because “each citizen has a personal stake in ensuring that the Government not establish a religion,” that “a citizen apparently does suffer a sufficiently personal injury to confer standing when he is taxed to support a religious institution.” *’ In contrast to the construction of the plaintiffs’ con- tentions in Flast, the litigants here do allege injury in fact to an interest other than the economic interest they share as taxpayers. They claim that the challenged ac- tion injures their important concern in the separation of church and state and that this is within the zone of inter- ests protected by the Establishment Clause of the First Amendment. Thus, their appeal squarely presents the novel and important question posed by Justice Fortas in Flast, which the Court did not reach and thus did not decide: whether “the vital interest of a citizen in the establishment issue, without reference to his taxpayer's 57. Richardson v. United States, 465 F. 2d 844, 865 (3d Cir. 1972) (in banc) (Adams, J., dissenting), rev'd, 418 U. S. 166 (1974). “[T]he establishment clause was surely intended to protect not merely or even primarily taxpayers as such, but all citizens of the new nation who believed in religious liberty and feared enforced conformity to a state religion; it would therefore seem to follow that any citizen should have standing in a case like Flast, since each has a logical nexus between his status as citizen and the claim that federal programs violate the first amendment.” Scott, supra note 14, at 662. A22 Court of Appeals Opinion status, would be acceptable as a basis for [standing to bring] this [kind of] challenge.” * The question of “the vital interest of a citizen in the establishment issue” must be distinguished from the ques- tion of “citizen standing” as such. The Supreme Court has consistently admonished that a citizen who suffers equally with all other citizens will not be heard to raise generalized grievances about the conduct of the Govern- ment.” In Reservists, for example, individuals suing as citizens attempted to prevent certain members of Congress from serving at the same time as officers of the Armed Forces reserve.” They alleged that the incompatibility clause of Article I, § 6 renders members of Congress “in- eligible to hold a commission in the Armed Forces Reserve during his [or her] continuance in office.” *' Holding that the plaintiff lacked standing, the Court stated: “standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share. Concrete injury whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form tradi- tionally capable of judicial resolution.” All citizens, 58. 392 U. S. at 115-16 (concurring opinion), 59. E.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974). 60. 418 U. S. at 227-28. Standing in their capacity as tax- payers was denied on the basis of Flast v. Cohen, 329 U. S. 83, 102-3 (1968). 61. 418 U. S. 208 (1974). The incompatibility clause states: “no person holding any office under the United States shall be a member of either House during his Continuance in Office.” U. S. Const. art. I, § 6. 62. Id. at 209. Court of Appeals Opinion A23 the Court noted, share equally an interest in constitutional government. “In some fashion, every provision of the Constitution was meant to serve the interests of all.” “ Yet, to recognize “[s]uch a generalized interest” as a suf- ficient basis for citizen standing to enforce judicially all constitutional provisions, “simply because citizens are the ultimate beneficiaries,” the Court concluded, “has no boundaries.” “ A similar question was raised in United States v. Richardson.” There, a taxpayer and citizen sought to challenge a statute that allowed the Central Intelligence Agency to avoid publicly accounting for its receipts and expenditures, in alleged violation of Article I, §9’s re- quirement that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Although the Court con- ceded that the plaintiff had a genuine interest in the use of public funds, it found his claims “plainly undifferenti- ated” and “common to all members of the public.” ” Accordingly, because he had failed to demonstrate a “personal stake in the outcome, . . . or a particular, concrete injury . . . in short, something more than ‘gen- eralized grievances, ”“ the plaintiff was denied standing. Ideological plaintiffs, with simply “a mere ‘interest in a problem’ ”,** will not be permitted to assert the public interest in a constitutional claim. 63. Id. at 226-27. 64. Id. at 227. 65. 418 U. S. 166 (1974). 66. Id. at 177 (quoting Ex parte Levitt, 302 U. S. 633, 634 (1937) (per curiam) ). 67. Id. at 106. 68. Sierra Club v. Morton, 405 U. S. 727, 739 (1972). A24 Court of Appeals Opinion The decisions in Reservists and Richardson appear to be based on the inadequate nature of the plaintiff's al- leged injury in fact. In both cases, the Court sought to distinguish the “abstract injury in nonobservance of the Constitution asserted by respondents as citizens” from what it described as “direct” or “concrete” injury. As applied by the Court, however, the “injury in fact” re- quirement was not independent from the related inquiry regarding the interest sought to be protected. Thus, in Schlesinger, the Court noted that, unlike allegations as- serting violation of “some limitation of the Constitution,” in which case “it can only be a matter of speculation whether the claimed violation has caused concrete injury to the particular complainant,” an allegation of “con- crete injury” to “fundamental . . . rights” may supply “a personal stake . . . sufficient to support standing.” In similar fashion, the Court in Richardson found it “open to serious question whether the Framers of the Constitu- tion ever imagined that general directives to the Con- gress or the Executive would be subject to enforcement by an individual citizen.” It would appear, therefore, that the Court's consistent refusal to grant “citizen stand- ing” to ideological plaintiffs seeking to litigate the public interest has turned as much on the inadequacy of the alleged interest sought to be protected as it has on the deficiency of the injury alleged.” 69. Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. at 223 n. 15. 70. Id. 71. 418 U. S. at 178 n. 11. 72. In a recent article, Professor Tushnet has argued that a preference by the Supreme Court for “better” plaintiffs stands as an implied limitation upon the conferral of standing. See supra note 8, at 690-93. In both Reservists and Richardson, the Supreme Court recognized a similar argument “that if respondents could not Court of Appeals Opinion A25 The Supreme Court has often recognized that an al- legation of “particular concrete injury” to a plaintiffs fundamental rights, as distinguished from the “abstract injury” in nonobservance of the Constitution asserted by litigants as citizens, can supply a personal stake in the outcome sufficient to support standing.” Thus, in Baker v. Carr," an asserted injury to the plaintiff's fundamental right to vote was deemed a sufficient personal stake to 72. (Cont'd. ) obtain judicial review of petitioner's action, ‘then as a practical matter no one [could]’”; but in each case the Court emphasized that the lack of a better plaintiff was “irrelevant” to the question of standing. “The assumption that if respondents have no standing to sue, no one would have standing,” the Court stressed, “is not a reason to find standing.” Schlesinger v. Reservists to Stop the War, 418 U. S. at 227; see United States v. Richardson, 418 U. S. at 179. Much as the lack of a better plaintiff is insufficient by itself to confer standing on a litigant, the possible availability of a better plaintiff would also appear irrelevant to the question of an individ- ual litigant’s standing to maintain a particular claim. Whenever a party's standing is challenged the question for decision is simply whether that litigant “has a sufficient stake in an otherwise justi- ficable controversy to obtain judicial resolution of that controversy.” Sierra Club v. Morton, 405 U. S. at 731. In the present appeal, for instance, it might well be argued that Americans United is not as “good” a plaintiff as would be a nonsectarian educational institution that had actually applied for the award of government property in question, but lost out to the Valley Forge Christian College. Yet the fact that such an organization might make a “better plaintiff” cannot justify a denial of standing to plaintiffs here inasmuch as they in fact allege injury in fact to an individuated right protected by the Constitution. 73. Abington School Dist. v. Schempp, 374 U. S. 203 (1963); Baker v. Carr, 369 U. S. 186 (1962); see Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 223 n. 13 (1974); United States v. SCRAP, 412 U. S. 669, 689 n. 14 (1973). 74, 369 U. S. 186 (1962). A26 Court of Appeals Opinion support standing. And in Schempp,” the Court sum- marily affirmed the plaintiffs’ standing to raise substantive challenges on the basis of the Establishment Clause. In so doing, the Court noted in particular that “the require- ments for standing to challenge state action under the Establishment Clause, unlike those relating to the Free Exercise Clause, do not include proof that particular re- ligious ‘freedoms are infringed.” "* Moreover, in Data Processing the Supreme Court expressly instructed that “a spiritual stake in First Amendment values [is] suf- ficient to give standing to raise issues concerning the Establishment Clause.” This is not to suggest, however, that a litigant claiming only that a contested action deprives someone else, or the public generally, of a con- stitutional right has alleged a personal stake in a contro- versy sufficient to confer standing. Indeed, the require- ment of an allegation by plaintiffs that they have suffered injury in fact “embodies a refusal by Article III courts to resolve disputes involving only generalized grievances, or only the rights or interests of third parties.” “ 75. 374 U. S. 203 (1963). 76. Id. at 224 n. 9. 77. 397 U. S. at 154. 78. L. Tribe, supra note 36, § 3-19 at 82. See Note, “Standing to Assert Constitutional Jus Tertii, 88 Harv. L. Rev. 423, 428-30 (1974). In the case of overbreadth challenges under the free speech clause of the First Amendment, the Supreme Court has ex- tended the concept of standing to allow individuals whose con- duct may be regulated or proscribed by a statute to assert that the statute is unconstitutionally overbroad with respect to third parties not before the court. Broadrick v. Oklahoma, 413 U. S. 601 (1973). Moreover, the Court has granted standing in such cases not only to one who has been charged with a violation of the statute but also to one merely threatened with such prose- Court of Appeals Opinion A27 The litigants in the present appeal, however, are de- cidedly not ideological plaintiffs, lacking any personal stake in the controversy yet intent on adjudicating their own generalized views concerning the legality of the challenged action. On the contrary, plaintiffs hers ad- vance neither an abstract nor a generalized complaint but set forth instead a particular and concrete injury to a right that is allegedly protected by the constitutional guarantee raised. Nor do the plaintiffs rest their com- plaint on the claim that the disputed action deprives someone else, or the public generally, of a legal right. Their claim, rather, is that the challenged transfer of government property to a religious institution seriously injures their individual and personal constitutional right of religious liberty and separation of church and state. Unlike the general limitations at issue in Reservists and Richardson, certain other constitutional provisions, such as the First Amendment, create legal rights in individuals. Yet, unless individuals claiming an encroachment of their legal rights have some recourse other than the political process for the vindication and protection of those rights, the proud claim that individual citizens have rights against the government may be emptied of significance. As the Supreme Court has stated: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicis- situdes of political controversy, to place them beyond the 78. (Cont'd. ) cution. Dombrowski v. Pfister, 380 U. S. 479 (1965). Even under this liberalized approach, however, the litigant seeking to challenge the allegedly overbroad statute must be either specifically charged or threatened with prosecution under that statute. A plaintiff not so charged or threatened but who nonetheless challenges such a statute lacks the personal stake in the outcome of the controversy for the conferral of standing. See Laird v. Tatum, 408 U. S. 1 (1972). A28 Cuurt of Appeals Opinion reach of majorities and to establish them as legal principles to be applied by the courts.” ” The claim that individual citizens are entitled to judi- cial enforcement of their rights does not, of course, tell us exactly what Constitutional rights individuals have against the government. But plaintiffs need not establish that they actually have a legal right under the Establish- ment Clause to be free from the kind of governmental conduct in question. An allegation of injury in fact to an interest protected by the Establishment Clause is all that is required for standing. Only if the court determines, after consideration of the merits, that the governmental action is barred by the Establishment Clause, will it thereby recognize legal rights in the plaintiffs. It is cer- tainly not irrelevant to the prior determination, however, that the very first words of the Bill of Rights declare that: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The two clauses do not represent separate and distinct con- ceptions, but a unified one; together they serve the broad common purpose of religious liberty. As a means to that end, we believe it is at the very least arguable that the 79. West Virginia State Bd. of Educ. v. Barnette, 319 U. S. 624, 638 (1943). In particular, the Court indicated that: “One's right to speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” Id 80. U. C. Const. amend. I. As one constitutional scholar has argued: “It is no historical ac- cident that the two religion-related guarantees of the Bill of Rights are stated as the very first provisions of that historic document. . . . the draftsmen of the Bill of Rights, working in the perspective of a history known to them all, put first things first.” Jones, Church-State Relations: Our Constitutional Heritage, in Religion and Contemporary Society 156, 163 (H. Stahmer ed. 1963). Court of Appeals Opinion A29 Establishment Clause creates in each citizen a “personal constitutional right” to a government that does not estab- lish religion.“' The essence of the argument, as Justice Harlan recognized, is “that freedom from establishment is a right that inheres in every citizen, thus any citizen should be permitted to challenge any measure that con- ceivably involves establishment.” “ As a cornerstone of our government, it may well be that the Establishment Clause should be enforceable at the demand of every in- dividual who claims injury to an interest protected thereby. Justice Brennan, for one, has expressly rejected the sug- gestion that the Establishment Clause “is not one of the provisions of the Bill of Rights which in terms protects a ‘freedom’ of the individual. . . . The fallacy in this con- tention,” he wrote, “is that it underestimates the role of the Establishment Clause, as a co-guarantor, with the Free Exercise Clause, of religious liberty.” ™ TV. CoNncLusION One of the central purposes of judicial review is to restrain overreaching majorities from violating the rights 81. See Flast v. Cohen, 392 U. S. at 114 (Stewart, J., concur- ring ). 82. Id. at 129 n. 18 (Harlan, J., dissenting). Justice Harlan’s major difficulty with the argument was that it might be extewded to certain other provisions of the constitution—e.g., the Ninth and Tenth Amendments. “{A]ny doctrine of standing premised upon the generality or relative importance of a constitutional command would, [he thought], very substantially increase the number of situ- ations in which individualized citizens could present for adjudica- tion ‘generalized grievances’ about the conduct of government.” He conceded that these Amendments, however, may be merely “tub[s] for the whale.” And he praised such a doctrine of standing for “at least be[ing] internally consistent.” Id. 83. Abington School Dist. v. Schempp, 374 U. S. 203, 256 (1963) (Brennan, J., concurring ). A30 Court of Appeals Opinion of individuals that the Constitution was designed to protect. Yet, under the defendants’ view, Congress could transfer to a particular religious organization such naticnal facilities as the Naval Observatory or the Army War College, secure in the knowledge that any individual citizen attempting to challenge such action as an abridge- ment of his or her rights under the Establishment Clause would not even be granted standing to make the claim. As Chief Justice Marshall wrote long ago in Marbury v. Madison, “[t]he very essence of civil liberty certainly con- sists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” “* The con- stitutional “injury in fact” complained of by the plaintiffs here gives them a sufficient “personal stake in the out- come” to assure a complete perspective of the issues in- volved. And we are convinced that the interest which the plaintiffs assert and seek to safeguard here is within the zone of interests protected by the Establishment Clause. Accordingly, the judgment of the district court dis- missing the complaint for lack of standing will be reversed, and the case remanded for proceedings consistent with this opinion. RosEnn, Circuit Judge, Concurring. I agree with Judge Adams’ analysis that Americans United for Separation of Church and State, Inc., (Ameri- cans United) has standing under the Establishment Clause to challenge the transfer of surplus government property to a religious organization. I write separately, however, because I believe there is an additional reason which requires that we find standing. Simply stated, I believe that the plaintiffs have standing because they possess the 84. 5 U. S. 87, 102, 1 Cranch 137, 161 (1803). Court of Appeals Opinion A31 necessary adversity of interest and, as a practical matter, no one is better suited to bring this lawsuit and thus vindicate the freedoms embodied in the Establishment Clause. The Establishment Clause, and the first amendment of which it is a part, operates to protect the rights of po- litical minorities against abuses by political majorities. See J. Madison, Memorial and Remonstrance against Re- ligious Assessments. Thus, the first amendment, with its protections of fundamental rights, must be enforceable by the judicial branch of government, for it is by its very nature and terms designed to protect against possible abuse by the political branch. See West Virginia State Board of Education v. Barnette, 319 U. S. 624, 638 (1943). The first amendment is different from some provisions of the Constitution which do not depend primarily upon judicial enforcement for their efficacy and where alleged violations thereof thus do not give rise to a judicially cognizable controversy. © 2 Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974).’ The first amendment, however, is unlike the constitu- tional provisions at issue in Richardson and Schlesinger. 1. In Richardson the Supreme Court held that the plaintiff lacked standing to bring an action seeking to enforce the provisions of Article I, § 9, cl. 7 of the Constitution. The Court stated: “It is therefore open to serious question whether the Framers of the Con- stitution ever imagined that general directions to the Congress or the Executive would be subject to enforcement by an individual citizen.” 418 U. S. at 178 n. 11. Furthermore, the Court noted that even if a judicial remedy were unavailable, the plaintiff mighi still obtain relief at the polls, through the operation of the electoral process. Id. at 179. Similarly, the Court observed in Schlesinger that “[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” 418 U, S. at 227. A32 Court of Appeals Opinion There is no doubt that it is “subject to enforcement by an individual citizen.” See United States v. Richardson, supra, 418 U. S. at 178 n. 11. Furthermore, because the first amendment is designed to protect against abuses by political majorities, it need not, and indeed must not, de- pend upon the political process for vindication and pro- tection. The fundamental nature of first amendment interests and their nonmajoritarian nature is reflected in the lib- eralized standing rules that have been applied to over- breadth challenges under the Free Speech Clause. Within certain constraints, one whose conduct may be permissibly regulated or proscribed may, nevertheless, assert that the statute is unconstitutionally overbroad with respect to third parties not before the court. See Broadrick v. Okla- homa, 413 U. S. 601 (1973). If standing were not al- lowed in such cases, important rights of free speech would be rendered unenforceable. The existence of an over- broad statute may deter parties not before the court from engaging in constitutionally protected conduct. That very deterrence or chilling effect might well prevent a ju- dicially cognizable controversy from arising, thus effec- tively shielding the statute from review. The more effec- tively a statute deterred protected activity, the more likely it would be to escape judicial review. The Free Speech Clause would thereby be severely weakened. The scope of the liberalized standing rules in the free speech area is, I suggest, governed in part by the Court's realization of the need for an available plaintiff. When an individual has himself been charged with a violation of a statute, the Court is willing to allow him to challenge it, even though his conduct is permissibly regulable, be- cause of the Court’s concern that it will not otherwise have an opportunity to examine the challenged statute. See Broadrick v. Oklahoma, supra, 413 U. S. at 612. The indi- Court of Appeals Opinion A33 vidual charged under the statute has an obvious interest in demonstrating its validity. This assures the requisite adversity necessary for judical decisionmaking. Statutes alleged to violate the Free Speech or Free Exercise Clauses are likely to have a perceptible impact or focus upon individual conduct. Thus, even though all citizens may be said to have a generalized interest in free speech or free exercise values, that is insufficient to confer standing. There is normally an available class of likely plaintiffs better situated to challenge the offending statute. Similarly, statutes allegedly violative of the Establishment Clause may also be directed at the regulation of individual conduct. In Abington School District v. Schempp, 374 U. S. 205 (1963), for example, a state statute required the reading of Bible passages to public school students. There, students and their parents brought suit, challenging the statute under the Establishment Clause. The Court found that the children and their parents were directly affected by the statute and thus had standing to complain. 374 U. S. at 224 n. 9. Unlike statutes allegedly violative of the Free Exer- cise and Free Speech Clauses statutes alleged to violate the Establishment Clause may not have an individual impact sufficient to confer standing in the traditional sense. Rather, such statutes may have the more general effect or purpose of aiding religion. In such circumstances, there is not an available class of likely plaintiffs whose conduct has been or will be circumscribed by the existence of the offending statute and who will thus have standing to seek judicial review. In Flast v. Cohen, 392 U. S. 83 (1968), however, the Supreme Court largely filled this gap by granting taxpayer standing to those challenging actions under the taxing and spending clause of the Con- stitution which are alleged to violate the Establishment Clause. A34 Court of Appeals Opinion In the case before us, we are presented with a statute that does not arise under the taxing and spending power. Thus, I agree that there is not taxpayer standing. Further- more, the statute at issue here is not directed at the regulation of individual conduct. Although it is possible to conceive of economic interets that might give rise to a plaintiff who meets traditional standing requirements, that will be relatively rare and is certainly not the case here.*? Americans United is likely to be the best available plaintiff. If they do not have standing, it is probable that the transfer of property at issue here, and other simi- lar transfers (of which there are apparently a substantial number, maj. op. at A2) would be placed beyond judicial review. In respect to such actions, the Establishment Clause would be rendered virtually unenforceable. It is apparent that Americans United and those four of its directors named as individual plaintiffs, possess the requisite adversity of interest necessary to insure legiti- mate and effective judicial decisionmaking. Americans United is a non-profit organization some 90,000 strong with a historic and documented commitment to vindica- tion of Establishment Clause interests. As stated by its Articles of Incorporation, Americans United’s purpose is 2. Judge Adams observes that: In the present appeal, for instance, it might well be argued that Americans United is not as “good” a plaintiff as would be a nonsectarian educational institution that had actually applied for the award of government property in question, but lost out to the Valley Forge Christian College. Yet the fact that such an organization might make a “better plaintiff’ cannot justify a denial of standing to Americans United. . . . Maj. op. at A25. I agree. I would however further observe that the record contains no indication that there was any applicant other than the appellee competing for the transfer of the property. Nor do I believe that there ordinarily will be such a “better” plaintiff. Court of Appeals Opinion A35 “to defend, maintain and promote religious liberty and the constitutional principle of the separation of church and state.” Organizational purpose is, by itself, normally an insufficient basis on which to rest standing. See Sierra Club v. Morton, 405 U. S. 727, 739 (1972). Nevertheless, in the context of the case before us, and the need to pro- vide a judicial forum for the vindication of Establishment Clause interests, I believe that it provides an additional indication that Americans United and the individual plain- tiffs meet applicable standing requirements. Accordingly, I join Judge Adams in reversing the judgment of the district court. Wels, Circuit Judge, dissenting. The majority concedes, and I agree, that the plaintiffs do not have taxpayer standing. I also agree that the rules of standing are at best far from clear. Nevertheless, it seems to me that the grant of standing to the plaintiffs runs contra to the Supreme Court’s pronouncements in this complex area of the law. Although the Court has expanded the categories of assertible injuries to include such matters as aesthetic and environmental well-being, United States v. Students Chal- lenging Regulatory Agency Proceedings (SCRAP), 412 U. S. 669, 686-87 (1973), it has not abandoned its insist- ence upon the presence of “injury in fact,” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 72-74 (1978). This factor has been said to be based on the necessity that the plaintiff have “such a per- sonal 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 . . . questions.” Baker v. Carr, 369 U. S. 186, 204 (1962). It has also been held at various times that injury in fact is a necessary predicate to the A36 Court of Appeals Opinion Article III requirement of case or controversy. Both reasons have been subjected to critical commentary.’ Analysis of the raison d'etre of the injury in fact pre- requisite may be interesting, but it does not provide much enlightenment in resolving standing questions. No general definition of injury in fact has been particularly conclusive, with such descriptions as “specific,” “concrete,” and “per- sonal” having found their way into opinions. The cases depend to a very large extent upon their factual back- grounds, furnishing but little effective guidance for future determinations. Out of the morass that is the American law of stand- ing, however, several principles emerge. First, a general- ized grievance brought by concerned citizens seeking to enforce a particular constitutional guarantee has been deemed too abstract to satisfy the injury in fact com- ponent of standing. Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974). Second, a taxpayer’s standing to promote constitutional governance has been confined to situations where a specific limitation on the congressional taxing and spending power has been alleged. This narrow opening to standing was expounded in Flast v. Cohen, 392 U. S. 83 (1968), where a taxpayer was granted standing to challenge an expenditure of federal funds for sectarian schools on the premise that the estab- lishment clause is a limitation on Congress’s power over the fisc. But in United States v. Richardson, supra, the Court rejected an attempt to expand taxpayer standing 1. See, e.g., Bogen, Standing Up For Flast: Taxpayer and Citizen Standing to Raise Constitutional Issues, 67 Ky. L. J. 147 (1978); Davis, Standing: Taxpayers and Others, 35 U. Cu. L. Rev. 601 (1968). See also United States Parole Commission v. Geraghty, — U.S. —, —, 48 U. S. L. W. 4296, 4302 (U. S. March 19, 1980) (Powell, J., dissenting ). Court of Appeals Opinion A37 to reach disputes over issues other than the taxing and spending power because of a lack of any causal connec- tion between plaintiff's status and the asserted injurious conduct. In the case at bench, the majority essentially finds a different kind of “citizen standing” derived from “a shared individuated right to a government that ‘shall make no law respecting the establishment of religion.” Manu- script at 17. Although there is respected scholarly com- mentary approving that approach, it does not find support in the United States Reports. In Flast v. Cohen, supra, Justice Fortas, in a con- currence, floated the idea that “[p]erhaps the vital interest of a citizen in the establishment issue, without reference to his taxpayer's status, would be acceptable as a basis for this challenge.” 392 U. S. at 115-16. It is obvious that there were not enough votes approving this concept, for otherwise the majority would not have found it nec- essary to construct the complicated and detailed formula it used to bypass the venerable prohibition against tax- payer standing. Certainly, the opinion would have been simpler had a majority of the Court approved the Fortas concept. It does not suffice to say that the Flast Court was limited by the plaintiffs’ pleadings to a consideration only of the taxpayer issue. In the three-judge district court, Judge Frankel, in dissent, urged that the plaintiffs be given standing, not because they alleged that their tax dollars were being distributed unconstitutionally, but because they were asserting violations of the establishment clause—the same argument made by the majority here. See Flast v. Gardner, 271 F. Supp. 1, 11-13 (S. D. N. Y. 1967). In their brief filed with the Supreme Court, more- over, the Flast plaintiffs disclaimed that their principal motive was to keep taxes down. They sued, in their words, A38 Court of Appeals Opinion “to prevent a pocketbook injury but only because that is part of what they deem a much graver injury, an injury to the right to live under a government which separates itself strictly from the church and church affairs.” Brief for Appellant at 37. The briefs of several amici reflect the same approach: “[T]he rights advanced here are not primarily mone- tary in nature. . . . [T]he dominant inducement for this action is the protection of individual and social freedom. .. .” Brief for National Council of Churches at 9. “Thus, as Judge Frankel suggested, an economic analysis of the plaintiff's interest is inappropriate in a case of this kind. Ibid. The proper analysis must comprehend the nature of the rights confirmed by the Establishment Clause, and the identity of the party upon whom these rights are conferred. . . . [T]he plaintiffs in this case, as citizens, contend that the Elementary and Secondary Education Act infringes the rights conferred upon them by the First Amend- ment. Their status as injured citizens, and nothing else, gives them the requisite interest to maintain their suit.” Brief for Americans for Public Schools at 8. It cannot be said, therefore, that the Supreme Court was not strongly urged to adopt the theory that the majority here now advances. If as the majority suggests, however, the Flast Court felt itself bound by the pleadings, then that same limita- tion must necessarily apply to us as well. The amended complaint, upon which the district court reached its deci- Court of Appeals Opinion A39 sion, identifies the plaintiffs as “taxpayers.” The corporate plaintiff is described as an organization of taxpayers, and each individual is listed as a taxpayer who “would be de- prived of the fair and constitutional use of his (her) tax dollar for constitutional purposes in violation of his (her) rights under the First Amendment...” (App. 9.) The Flast complaint also identified the plaintiffs as taxpayers and protested the use of federal funds to finance instruction in sectarian schools. Thus, there is no sub- stantial difference between the two complaints, certainly none that would permit consideration of citizen standing in one case and not in the other. The plaintiffs do not allege any direct injury that the transfer of the property has inflicted upon them or any direct benefit that will accrue to them as a result of the requested judicial action. Their freedom of religion is not alleged to be affected in any respect. Rather, the com- plaint alleges that the granting of the property is a viola- tion of the establishment clause and asks that the con- veyance be declared void or that the college be required to return the property to the government. Neither of these actions would directly affect any of the plaintiffs. The lack of cognizable injury to the plaintiffs places them in the same posture as those in Schlesinger v. Re- servists Committee to Stop the War, supra. There, the Court reiterated the requirement that the party seeking review must himself have suffered an injury and said: “Abstract injury is not enough.” Id. at 219, quoting O’Shea v. Littleton, 414 U. S. 488, 494 (1974). That hold- ing was made in the face of a complaint that sought to force members of Congress to act in conformity with the incompatibility clause—“an interest shared by all citizens.” Id. at 217. “[T]hat claimed nonobservance, standing alone, would adversely affect only the generalized interest A40 Court of Appeals Opinion of all citizens in constitutional governance, and that is an abstract injury.” Id. (footnote omitted). Similarly, in United States v. Richardson, supra, the Court repeated the necessity for the plaintiffs’ allegations of “particular concrete injury as a result of the operation of this statute,” id. at 177, the statute in question being one authorizing private accounting by the Central Intel- ligence Agency. In that case the Court took pains to dispel the notion that standing should be conferred simply because if the plaintiff could not litigate the issue, no one could. Id. at 179. As the Richardson majority ob- served, such a situation supports the argument that the issue is one “committed to the surveillance of Congress, and ultimately to the political process.” Id. I, for one, am unwilling to believe that Congress, re- sponsive as it is to public opinion, is likely to give away either the Naval Observatory or the Army War College.’ To my mind, the Schlesinger and Richardson observations apply just as clearly to the generalized complaints of the plaintiffs here. Accordingly, I can find no principled basis for distinguishing the cases. In light of this authority, I do not find persuasive the argument that the establishment clause creates a right capable of being enforced by all citizens. As Justice Har- lan indicated in his Flast dissent, premising standing on a hierarchical view of constitutional commands would increase, without any logical basis, “the number of situa- tions in which individual citizens could present for ad- judication ‘generalized grievances about the conduct of 2. The Valley Forge hospital was originally constructed in 1942 to treat wounded servicemen during World War II. As one real estate appraiser wrote, “[T]hese buildings were constructed several years ago for one purpose only, that is for an army hospital, and it is my feeling that they have little or no use, generally speak- ing, for other purposes.” (App. 242.) Court of Appeals Opinion A4l government.” 392 U. S. at 129-30 n. 18, quoting id. at 106 (majority opinion). Nor do other cases relied on by the majority support its position. Both Abington School District v. Schempp, 374 U. S. 203 (1963), and Baker v. Carr, supra, are readily distinguished because the plain- tiffs there suffered particularized injuries. In Schempp, the parents and their children were directly affected by the presence of classroom prayer. And in Baker, the harm alleged was the devaluation of plaintiffs’ individual votes. See L. Tree, AMERICAN ConsTITUTIONAL Law § 3.19, at 86-87 (1978). The majority has embraced a concept of standing presented to the Court in 1968 and not accepted by it at that time, or since. If the basic principles of standing prove to be unworkable or undesirable, then it is the Su- preme Court and not a court of appeals that has the right to change them. See Hicks v. Miranda, 422 U. S. 332, 343-45 (1975). I find no indication in Reservists and Richardson that the Court has gone beyond what Flast contained, and I would therefore affirm the district court. A42 District Court Order Order of the United States District Court for the Eastern District of Pennsylvania, Americans United For Sepa- ration of Church and State, Inc., Andrew Leigh Gunn, Edward E. Doerr, Gioele Settembrini, and E. Mallary Bins, Plaintiffs v. The United States Department of Health, Education and Welfare, The United States of America, and Valley Forge Christian College, De- fendants, Civil Action No. 77-1321, Filed December 15, 1978. IN THE UNITED STATES DISTRICT COURT For THE EASTERN District OF PENNSYLVANIA Civi. Action No. 77-1321 AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, INC. ANDREW LEIGH GUNN, EDWARD E. DOERR, GIOELE SETTEM- BRINI, AND E. MALLARY BINNS, Plaintiffs v. THE UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE THE UNITED STATES OF AMERICA, AND VALLEY FORGE CHRISTIAN COLLEGE, Defendants ORDER Anp Now, this 15th day of December, 1978, after consideration of the arguments and briefs of counsel, the District Court Order A43 motions of defendant Department of Health, Education and Welfare to dismiss the complaint and of defendant Valley Forge Christian College for summary judgment are granted for the reason that plaintiffs lack standing to maintain this action. 1. The only basis advanced by the individual plain- tiffs in support of their claim to standing is their status as taxpayers; the only basis advanced by the organizational plaintiff in support of its claim to standing is the status of its members as taxpayers; 2. It is well established that in order to achieve tax- payer standing, plaintiffs’ cause of action must be a chal- lenge to a Congressional exercise of the taxing and spend- ing power, U. S. Const. Art. I, §8. Flast v. Cohen, 392 U. S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). 3. Plaintiffs challenge is to a transfer of property pursuant to the Federal Property and Administrative Serv- ices Act of 1949, 40 U. S. C. § 471 et seq. 4. A transfer of property pursuant to the Federal Property and Administrative Services Act is an exercise of Congressional property power, U. S. Const., Art. IV, § 3, cl. 2; see United States v. Cassiagnol, 420 F. 2d 868, 876 (4th Cir.), cert. denied, 397 U. S. 1044, 90 S. Ct. 1364 (1970); Kern Copters, Inc. v. Allied Helicopter Service, Inc., 277 F. 2d 308, 313 (9th Cir. 1960). 5. Since plaintiffs do not challenge an exercise of Congressional taxing and spending power, they lack stand- ing to maintain this action; Flast v. Cohen, supra; Mease v. Heinz, No. 78-1106 (E. D. Pa. Oct. , 1978). 6. Plaintiffs have also failed to allege that they have suffered any actual or concrete injwry beyond a general- ized grievance common to e!’ taxpayers; for this reason A44 District Court Order also, plaintiffs lack standing to bring this action; see Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1975); Mease v. Heinz, supra. By THE COURT: J. Witt1aM Dirter, Jr., J. 12/15/78 Copy TO: J. T. Action, Esq. R. S. Forster, Esq. (Asst. U. S. Atty.) Ball & Skelly C. C. Hodgson, Esq. Court of Appeals Judgment A45 Judgment of the United States Court of Appeals for the Third Circuit, Americans United for Separation of Church and State, Inc., Gunn, Andrew, Leight, Doerr, Edward D., Settembrini, Gioele, Binns, E. Mallary, Appellants v. The United States Department of Health, Education and Welfare, The United States of America, Northeast Bible College, a/k/a Valley Forge Christian College, No. 79-1221, Dated April 8, 1980. UNITED STATES COURT OF APPEALS For THE Tuirp Circuit No. 79-1221 AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, INC., GUNN, ANDREW, LEIGH, DOERR, EDWARD D., SETTEMBRINI, GIOELE, BINNS, E. MALLARY, Appellants v. THE UNITED STATES DEPARTMENT OF HEALTH, EDUCATION and WELFARE, THE UNITED STATES OF AMERICA, NORTHEAST BIBLE COLLEGE, A/K/A VALLEY FORGE CHRISTIAN COLLEGE (D. C. Civil Action No. 77-1321) On ApPeEAL From THE UNITED States District Covat For THE EASTERN District OF PENNSYLVANIA A46 Court of Appeals Judgment Present: ApAmMs, RosENN an [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0346%3A01. Public record. Not legal advice.