# Petition for a Writ of Certiorari — Clinton Community Hospital Corp. v. Southern Maryland Medical Center

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 422 U.S. 1048

## Text

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ee Soe Ca a eens cr ig eee l
PRN Soa nF ERE A ERs eee 2
er ee Sere reer peor 2
Statutory provisions involved ................ 2
DE OF OD Si ce a 5 A ie ae ee 3

Reasons for granting writ:

1. The decision below conflicts with the decision
of another Court of Appeals as to the proper
interpretation of the “zone of interest” part of the
Supreme Court’s standing test, and also raises significant
and recurring problems concerning efforts to obtain
I NE, hk heck, ak ene te es eae 7

2. The decision below conflicts with decisions of
other Federal Courts as to the issue of whether a Plaintiff
alleging economic injury can satisfy the “injury in fact”
part of the standing test under the National
Environmental Policy Act, 42 U.S.C. §4321,etseq. .... 10

3. The decision below is clearly wrong and
conflicts with the decision of another Court of Appeals as
to the proper interpretation of Section 102 (2) (C) of
Pee a cs Es sibs Ole bole ce oP a ee PAS 14

Conclusion .

Appendix (opinion and judgment of Court of Appeals and

SE C5 ere ON a7 ae App. 1
C. TATIONS
CASES:
1. | Association of Data Processing Services Organi-
zations, Inc. v. Camp, 397 U.S. 150 (1970) .
ae PRR Te ete oe bes C8 PSE eh A243

2. Barlow v. Collins, 397 U.S. 159 (1970) ....... 43a

ii
3. Businessmen Affected Severely By The Yearly
Action Plans, Inc. v. D.C. City Council, 339 F.

Fae CR CU URE ss kee ge ke He ee 15
4. Getty Oil Company (Eastern Operations) v.
Ruckelshaus, 342 F. Supp. 1006 (D. Dela. 1972) ..
BE Gas SPOS LS a oe PUA Tt es geen aa ar 11, 12, 14
5. Hanly v. Kleindeinst, 471 F. 2d 823 (2nd Cir. 1972) . 15
Hanly v. Mitchell, 460 F. 2d 640 (2nd Cir. 1972) .. 16
7. McLean Gardens Residents Association v. National
Capital Planning Commission, 2 ELR 20659
Rtas MEU ts a os a hoa ha a ce a wos 15
8. National Helium Corporation v. Morton, 326 F.
See 130 Rae B78 a ee 11, 12, 14
9. Pizitz v. Volpe 2 ELR 20378 (M.D. Ala. 1972) ..
Sad RAR OR ORS a0. wake 10, 12, 13, 14

10. Sierra Club v. Hickel, 433 F. 2d 24 (9th Cir. 1970) 7, 10
11. Sierra Club V. Morton, 405 U.S. 727 (1972) 10, 12, 13

12. Tierrasanta Community Council v. Richardson,
4 ELR 20809 (6.D. Calf. 1973)... ....... 16

13. U.S. v. Students Challenging Regulatory Agency,
Procedures (SCRAP), 412 U.S. 669 (1973)

14. Warm Springs Task Force v. Gribble, 417 U.S. 1301
(1974)

1S. Zlotnick v. Redevelopment Land Agency, 2ELR
Bae CPAs SPURS oe be 2 10, 12, 13, 14

MISCELLANEOUS

Davis, The Liberalized Law of Standing, 37 UNIV. OF
CHICAGO L. REV. 450 (1970).

Anderson, NEPA in the Courts, (Resources for the Future,
Inc. 1973)

In The |
Supreme Court of the . States
974

OCTOBER TERM, 1

No.

CLINTON COMMUNITY HOSPITAL C ) RATION,
Petitioner

Vv.

SOUTHERN MARYLAND MEDICAL\CENTER,
SECRETARY OF HEALTH, EDUCATION AND WELF ARE,
SECRETARY OF HOUSING AND URBAN ELOPMENT
Respondents

PETITION FOR A WRIT OF CERTIORARY TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

The Petitioner Clinton Community Hospital orporation
respectfully prays that a writ of certiorari issue te review the
judgment and opinion of the United States Court of ppeals for
the Fourth Circuit entered in this proceeding on F@bruary 10,
1975.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,
appears in the appendix hereto. The opinion of the District
Court of the United States for the District of aryland,
reported at 374 F. Supp. 450 (D. Md. 1974), also a in the
appendix hereto.

2

JURISDICTION

The judgment of the Court of Appeals for the Fourth
Circuit was entered on February 10, 1975, and this petition for
certiorari was filed within 90 days of that date. This Court’s
jurisdiction is invoked under 28 U.S.C. 1254 (1).

QUESTIONS PRESENTED

1. Whether Petitioner has standing to sue under the
National Environmental Policy Act, 42 U.S.C. 4321; the
Comprehensive Health Planning Act, 42 U.S.C. 246; The
National Housing Act, 12 U.S.C. 1715 z-7; the Noise Control
Act of 1972, 42 U.S.C. 4901-4917; and the Public Health
Service Act, 42 U.S.C. 291 d(a)(1).

2. Whether the National Environmental Policy Act
covers the situai.«:: where the major federal action is itself to be
placed in a hostile or unfavorable environment.

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42, Chapter 55. National
Environmental Policy.
§ 4332. Cooperation of agencies; reports; availability of
information; recommendations; international and national
coordination of efforts

The Congress authorizes and directs that, to the
fullest extent possible:. . .(2) all agencies of the Federal
Government Shall—

. . (C) include in every recommendation or report on
proposals for legislation and other major Federal actions
significantly affecting the quality of the human
environment, a detailed statement by the responsible
official on—

(i) the environmental impact of the proposed action,

(ii) Any adverse environmental effects which cannot
be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of
man’s environment and the maintenance and
enhancement of long-term productivity, and

oe ea A RN,

3

(v) and irreversible and irretrievable commitments of
resources which would be involved in the proposed
action should it be implemented.

Prior to: making any detailed statement, the responsible
Federal official shall consult with and obtain the comments of
any Federal agency which has jurisdiction by law or special
expertise with respect to any environmental impact involved.
Copies of such statement and the comments and views of the
appropriate Federal, State, and local agencies which are
authorized to develop and enforce environmental standards,
shall be made available to the President, the Council on
Environmental Quality and to the public as provided by section

552 of Title 5 and shall accompany the proposal through the —

existing agency review processes.
STATEMENT OF THE CASE “

Two groups are competing to build one hospital to serve
the southern portion of Prince George’s County, Maryland.
Petitioner, Clinton Hospital, is an existing 33-bed hospital,
while Respondent, Southern Maryland Medical Center
(“SMMC”) is a loose aggregation of doctors proposing to build a
new hospital. :

The competition centers principally over possession of the
coveted “Certificate of Need.” Without the Certificate of Need,
no construction can take place because it is the touchstone that
opens up Federal largess in the form of financing aids such as
HUD mortgage insurance. Moreover, full reimbursement for
capital expenditures under medicaid, medicare and maternal
and child health programs will not be niade without the
Certificate of Need.

The Certificate of Need program has its origins in 42
U.S.C. 246, which enunciates a Federal program allocating
funds to the states to cover the costs of administering state
operated comprehensive health planning programs.

Unfortunately, Maryland, which has set up a
Comprehensive Health Planning Agency and several areawide
planning , the
re srirnge Health Planning and Public Health Services
and the Noise Control Act*, appellant Clinton
aman Hospital, brought this suit in ‘the Maryland Federal
District Court in October, 1973 against the Southern Maryland
Medical Center, HEW Secretary Weinberger, and HUD Secretary
Lynn to enjoin the construction of SMMC’s hospital. SMMC is a
joint venture of several physicians to construct a 200-bed
hospital slightly more than three miles due south of a major
runway at Andrews Air Force Base in Prince George’s County, :
Maryland. Appellant is a 33-bed facility located some two miles
northwest of SMMC’s proposed site. '
Stripped to its essentials, appellant’s ‘argument is that
SMMC’s proposed hospital would be adversely affected by its
environment, specifically the air base and concomitant air
traffic. The District Court granted SMMC’s motion to dismiss
and sua sponte dismissed the case against the Secretaries.
The District Judge correctly held that appellant had no
standing to sué¢. In the fourth paragraph of the appellant’s
amended complaint it is stated:

!

“Plaintiff (appellant) has:a pecuniary interest in the
outcome of this proceeding, inasmuch as the construction
of the SMMC hospital two miles from Plaintiff's existing
hospital will result in its eventual closing, since, as a 33 bed
hospital, it will be unable to Loieeriaes with the proposed
200 bed hospital. .

If it has in ‘fact suffered an injury, appellant’s economic well
being vis-a-vis its competitors is certainly not arguably within
the zone of interests to be protected” by, the Federal
environmental laws. Association of Data Processing: Service
Organizations, Inc. v. Camp, 397 US 150, 153 (1970).

1 42 USC 4331-4334 (1970).
212 USC 17152z-7(4) (4) (1970)'
342 USC 291d(aX1) (1970)

42 USC 246 (1966)
5 42 USC 4901-4917 (1972)

App. 2

Additionally, as the District Court noted, appellant has
failed to state a claim upon which relief can be granted. It
contends that injunctive relief is in order because cf the impact
of the existing environment on the proposed hospitai. Such
claim turns the statutory scheme 180 degrees around. As it is
stated, the claim was properly dismissed by the District Court.

‘For these and the reasons stated by the District Court, we
affirm the dismissal of the case. Clinton Community Hospital
Corporation v. Southern Maryland Medical Center, et. al., 374
FS 450 (D.Md. 1974).

Affirmed

App. 3

OPINION OF THE DISTRICT COURT

Issued April 16, 1974

The plaintiff Clinton Community Hosptial Corporation
(CCH) on October 3, 1973 filed a Complaint for Injunction
against Southern Maryland Medical Center (SMMC), allegedly a
joint venture consisting of several doctors proposing to organize
and construct a new hospital on lard owned by the defendant
medical center lying some 17,000 feet due south of a major
runway serving Andrews Air Force Base in Prince George’s
County, Maryland.

The Plaintiff hospital, located approximately two miles
northwest of defendant’s proposed hospital site, brought its suit
allegedly to enjoin construction of the new facility “for and on
behalf of the proposed employees and consumers of the
hospital services” to be provided at the new hospital and
medical complex. Jurisdiction was invoked under the provisions
of the National Environmental Policy Act (NEPA), particularly
42 U.S.C. §4331(b)(2) and (3), it being the contention of the
plaintiff that construction of the new hospital at the site
proposed would constitute a risk to health and safety and
would have other undesirable and unintended consequences in
violation of the spirit and policy of Section 4331 (b)(2) and (3)
of the Act.

While the original complaint is prolix and replete with
unnecessary evidentiary detail, the eighty-six paragraphs spread
over 14 pages when sifted down convey plaintiff's view that
departing and landing aircraft would pass directly over the
proposed facility endangering the patients and employees in
several ways. First, it is claimed that the continuous movement
of aircraft presents substantial risk of an air accident involving
the crash of planes or large debris. Next, the noise created by
the aircraft would be unacceptable to patients of the medical
center. Third, radar in the aircraft would adversely affect vital
equipment such as pacemakers and X-ray units and the latter
could alter the guidance systems of the aircraft. The rich fuel
mixture employed by incoming and outgoing airplanes would

App. 4

result in heavy fumes and jet ash in the air which would also
affect the patients and employees using the facility. Finally, the
landing lights of approaching aircraft would enter the patients’
rooms on the southern side of the proposed building.

Plaintiff further contended that defendant obtained approval
of the plans for the new hospital by the Health Advisory
Committee for Prince George’s County after defendant applied
for and received a grant of feasibility from the United States
Department of Health, Education and Welfare (HEW) to obtain
financing from the Department of Housing and Urban
Development (HUD), and that such was granted without an
environmental impact statement required by 42 U.S.C.
§ 4332(c) of every agency of the United States before approving
major federal actions which may affect tic environment.
Plaintiff also alleged that HEW was preparing an impact
statement not yet released, that considers only the effect of
noise pollution.

On October 30, 1973 defendant filed a motion to dismiss
under Rule 12(b)(6) asserting that the National Environmental
Policy Act does not create any substantive private right
whereunder private individuals or corporations can state a cause
of action or claim upon which relief may be granted against
other private individuals or corporations.

The Court scheduled a hearing on defendant’s motion to
dismiss for January 3, 1974. On December 28, 1973 plaintiff
filed a Motion for Leave to Amend Complaint in order to join
HEW and HUD as parties defendant, and on the same day the
Court signed an order granting the motion and permitting such
amended complaint to be filed.

Following the hearing on January 3, 1974, the Court on
January 10, 1974 signed a further order directing plaintiff by
January 18, 1974 to file his amended complaint adding HEW
and HUD as defendants and asserting plaintiff's claims against
those agencies.

On January 17, 1974 plaintiff filed a 53 page Amended
Complaint for Injunction containing this time 194 numbered
paragraphs, to which was attached a 21 page “Memorandum of
Law Filed in Conjunction with Amended Complaint of
Injunction” and appended to these two documents are 128
pages of “exhibits” consisting of magazine articles, letters,

App. 5

charts, official correspondence and sundry other material
apparently designed to lend factual support to the complaint.
The authority for the filing of the “‘exhibits” is by no means
clear. Defendant Southern Maryland Medical Center has
renewed its Motion to Dismiss and the two federal defendants
Caspar Weinberger, Secretary of HEW, and James Lynn,
Secretary of HUD, have moved pursuant to Rule 12(f) to strike
the Amended Complaint for Injunction, memoranda of law and
documents attached thereto as failing to meet the requirements
of Rule 8(a).

The Amended Complaint

The amended complaint adopts a notable shift in emphasis in
that it does not in terms purport to be brought for the benefit
of the employees and patients of the new facility defendant
Southern Maryland Medical Center seeks to erect. Instead, it
now appears that Plaintiff has a pecuniary interest in the
outcome of this proceeding, inasmuch as the construction of
the SMMC hospital two miles from plaintiff's existing hospital
will result in its eventual closing, since as a 33 bed hospital, it
will be unable to compete with the proposed 200 bed hospital
proposed by SMMC.”

The amended complaint while complaining principally that
defendants are engaged or about to engage in acts and practices
contrary to the National Environmental Policy Act (42 U.S.C.
§ 4331 et. seq.) and the Noise Control Act of 1972 (42 U.S.C.
§§ 4901-4917), invokes the jurisdiction of this Court on the
foilowing basis.

Jurisdiction and Venue

3. The action arises under the following Federal
Statutes:

A. Sections 101 to 104 of the National
Environmental Protection Act (42 USC 4331 to 4334).

B. Section 242(d)(4) of the National Housing
Act (12 USC 1715z7(d)(4)).

C. Section 604(a)(1) of the Public Health
Service Act (42 USC 291d(a)(1))

App. 6

I). Comprehensive Health Planning and Public
Health Seivices Act (42 USC 246).

E. Noise Control Act of 1972 (42 USC
4901-4917) as hereinafter more fully appears. The matter
in controversy exceeds, exclusive of interest and cost, the
sum of $10,000.”

Boiled down, the amended complaint sets out four broad
claims for relief.

(1) It alleges that NEPA has been violated first in that HEW
instead of preparing an Environmental Impact Statement in
connection with the proposed project, has prepared a Marginal
Environmental Impact Statement (MEIS) addressed only to the
impact that the proposed hospital would have on the land
selected by Southern Maryland Medical Center, rather than the
effect of the already existing environment on the hospital when
constructed. Plainuff in paragraph 100 likens the subject matter
of the MEIS “to an examination of the impact of planting a
pansy bed in an artillery shell testing field and limiting the
inquiry as to what adverse effect the pansy bed will have on the
surrounding grass.” Plaintiff secondly alleges that the MEIS
“avoids the central issue of whether patients, doctors and staff
are part of the environment which government agencies are
directed to protect under the National Environmental Policy
Act.” _— id.

(2) As to the violation of the cited section of the National
Housing Act, plaintiff has directly alleged only that the HUD
mortgage insurance authorized by the section should not be
issued in the absence of a proper environmental impact
statement. That allegation states, at best, a violation of the
NEPA, not of the Housing Act. However, the Court has
assumed that the plaintiff is also alleging violations of the
conditions for HUD insurance set out by 12 USC § 1715z-7
itself.

(3) The complaint further alleges that the Comprehensive
Health Planning Act, 42 USC 246, has been violated in that the
agencies of the State of Maryland operating pursuant to that
Act are improperly constituted and have not filed a plan as
required by the Act. (These allegations will be discussed in
greater detail below.)

App. 7

(4) The complaint also alleges violations of the Noise
Control Act, 42 USC § § 4901 et seq., in that HEW has not
consulted with the Administrator of the Environmental
Protection Agency concerning research on noise control that
might affect the SMMC site. HEW is also alleged to have
violated the policy guidelines set out in 42 USC § 4901(b).

Motion to Dismiss

Preliminarily, the Court noted that only defendant Southern
Maryland Medical Center has moved to dismiss for failure to
state a claim, pursuant to Rule 12(b)(6), Fed.R.Civ.P. The
federal defendants not having filed such a motion, the question
arises whether the Court would therefore be precluded from
considering any failure on the part of the plaintiff to state a
claim against them. Martin v. Broadcast Music, Inc., 248 F.2d
530, at 531 (9th Cir. 1957); Gutensohn v. Kansas City Southern
Rwy. Co., 140 F.2d 950 (8th Cir. 1944).

More recently, courts have held that where circumstances
warrant, dismissal of the whole complaint on the court’s own
motion may be proper. Robins v. Rarback, 325 F.2d 929 (2nd
Cir. 1963); Sutton v. Hilco Homes Corp. 283 F.Supp. 492, at
494, fn.2 (E.D. Pa. 1968); 5 Wright & Miller, Federal Practice
and Procedure, § 1357, at 593, tn. 43. As the ninth Circuit
noted in Dodd ». Spokane County, Washington, 393 F.2d 330,
at 334 (1968),

{Tghe court in practical effect invoked on
ifown motion Rule 12(b)(6), Fed.R.Civ.P.
fhis the court has the right to do if the
‘proper procedural steps were taken and if
the determination is correct on the merits.

The court in the latter case held that the procedural steps had
not been taken in that the plaintiff had no notice of the
proposed action and no opportunity to file even a written
argument. See also Literature Inc. v. Quinn, 482 F.2d 372 (Ast
Cir. 1973).

App. 8

It is this Court’s conclusion that those procedural steps have
been met, or rendered unnecessary in the instant case. As has
been noted, the plaintiff already has been afforded an
opportunity to amend its complaint in response to SMMC’s first
motion to dismiss. That first motion was exhaustively argued at
the hearing held on January 3, 1974. Second, the issued raised
by SMMC’s second motion to dismiss apply equally to the
Federal defendants; third, the same issues again have been
exhaustively discussed by the plaintiff in a twenty-one page
Memorandum of Law, which the Court has treated as an
opposition to the SMMC Motion to Dismiss. Consequently this
Court feels that the requirements of fairness and judicial
efficiency are best served by considering in a single opinion
whether plaintiff has stated a claim on which relief may be
granted against any of the named defendants.

Additionally, the Court notes that the Federal defendants
have filed a Motion to Strike the Amended Complaint, its
supporting “Exhibits” and the Memorandum of Law, arguing
that they are prolix and confusing and in clear violation of Rule
8. The Court agrees with the observation at page 2 in the
Memorandum of Points and Authorities filed in support of that
motion that as regards the Amended Complaint “From page 7
to page 51 we are confronted with a confusing mixture of legal
allegations, statements of opinion, quotations from documents
and hearings in no particular order or discernible pattern. All of
this clearly violates Rule 8(e)(1).”’ Even granting, as plaintiff has
argued in its Memorandum in Opposition to the Motion to
Strike, that a plaintiff “suing in the environmental context is
confronted with a rather harsh burden on its ability to
demonstrate standing” and as plaintiff in that memorandum
himself admits, a need in this case to “allege those facts tending
to demonstrate that the NEPA and the Noise Control Act
would be equally applicable to a situation where the proposed
project would be the object of the adverse environmental
factors, rather than the perpetrator or the one that inflicts harm
upon the environment”, attaining those goals if they were
attainable would be aided more by clarity and brevity than by
the prolixity evidence in the Amended Complaint. In view of
the disposal of the suit on the merits, the Court need not
determine how to enforce compliance with Rule 8.

App. 9

Since the respective positions of the parties on whether a
cause Jf action has been stated have been fully set forth both in
the oral argument before the Court on January 3, 1974 and in
the memoranda subsequently filed, the Court feels no useful
purpose would be served by hearing further argument on the

point.

The NEPA Claims

Before addressing the substantive basis of plaintiff's NEPA
claim, the Court will consider whether the plaintiff has standing
to raise any such claim.

The fundamental tests for standing in such a suit as this were
set out by the Supreme Court in Association of Data Processing
Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827
(1970) and Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361,
31 L.Ed.2d 636 (1972). The tests are twofold.

First, to maintain an action a plaintiff must show he has
sustained actual injury “injury in fact”. Data Processing, 90 S.
Ct. at 829; Sierra Club, 92 S. Ct. at 1365. The second
requirement is that plaintiff fall within the “zone of interests to
be protected or regulated by the statute or constitutional
guarantee in question.” Data Processing, at 830.

Plaintiff advances what amount to two alternative theories of
standing for his NEPA claims. As to one, this Court concludes,
he has alleged injury in fact, but does not come within the
necessary zone of interest. As to the other, he has not shown
injury in fact within the test established by Sierra Club.

Plaintiff first asserts standing as a competitor to SMMC.
Despite all the references to the environment, it is apparent that
plaintiff's real aim is not to improve the quality of life for this
and future generations, but rather to prevent the building of a
competitive hospital by highlighting the disadvantages of the
competitor’s site near an existing air base. While showing a real

_injury, this status is not within the area protected or regulated
by NEPA.

In Zlotnick v. District of Columbia Redevelopment Land

App. 10

Agency, 2 ELR 20235 (D.D.C. 1972), Judge Gerhard Gesell
dismissed a suit by city property owners to enjoin
condemnation of their land for urban revewal. Judge Gesell held
they could not compel the prepartion of a more adequate
impact statement, because their object really was the protection
of their own financial interests. Judge Gesell in the course of his
opinion stated:

It is not enough that an inadequate environmental
impact statement may have been filed for these very
preliminary stages of a much larger project that will take
years to complete. To have standing grounded on a federal
statute plaintiffs must assert an interest ‘arguable within
the zone of interests to be protected or regulated by the
statute . . . in question.’ Association of Data Processing
Serv. Organizations, Inc. v. Camp, 397 U.S. 150 153
(1970); Blackhawk Heating and Plumbing Co. v. Driver,
433 F.2d 1137, 1140 (D.C. Cir. 1970). Plaintiffs can at
best claim only a remote, insubstantial, highly speculative
and ephemeral interest in the environment. They have
nothing but their own financial interest to protect as their
continuing efforts to achieve financial settlement
emphasize. Obviously they would abandon _ their
environment concerns in a moment if the price were right.

Similarly in Pizits vy. Volpe, businessmen sought to attack an
impact statement for a parkway overpass project as inadequate}
Although the District Court did consider the sufficiency of the
impact statement and held it in compliance with all NEPA
standards, it did characterize the suit as a “spurious” NEPA case
in language which this Court feels would aptly describe the
present suit:

The Court has characterized plaintiff's case as
‘spurious’ because, as the pleadings reflect,
plaintiffs primary concern in filing and
prosecuting this litigation was to avert a
threatened loss of business. The environmental
aspects of the case were brought in only to
maintain the action. Of course, the National

12ELR 20378 (M.D. Ala. 1972), aff'd, 467 F.2d 208, 2ELR 20379 (Sth Cir.
1972).

App. ll

Environmental Policy Act was not designed to
prevent loss of profits, but was intended only to
promote governmental awareness of
environmental problems.

Plaintiff has no standing under NEPA as a competitor to SMMC.

A second ground for plaintiff's NEPA claim apparently is
that as a hospital it too enjoys the environment, and like any
other “consumer” of the environment may seek to prevent
harm to it. While plaintiff does not claim economic harm from
any lost enjoyment of the environment, the Supreme Court has
made clear that injury to “esthetic and environmental
well-being” may also amount to injury in fact. Sierra Club,
supra, at 1366.

The question then is whether a corporation such as the
plaintiff can be said to have any “aesthetic” sensitivity. The
Sierra Club case held that even a club with avowed
environmental concerns could not sue in its own name if it
could not allege any particularized injury. 92 S.Ct. at 1368.

Although conceding that the Sierra Club has a long standing
“special interest” in the environment, the Court felt nonetheless
that no injury in fact was shown. A fortiori, the plaintiff in the
case at bar—who has not alleged any previous commitment to
conservation—cannot show any harm accruing to it from
potential damage to environment.?

Approaching the question in another way, the argument
certainly could be made that corporations are per se, incapable
of suffering “‘aesthetic”’ injury. Here one may draw an analogy
from the law of privacy. It is clear that corporations do not
enjoy the right to privacy. In U.S. v. Morton Salt Co., 338 U.S.
632, at 652; 70 S.Ct. 357, at 368 (1950), the Supreme Court

2The Supreme Court further specifically distinguished and approved its earlier
holding that clubs do have standing to sue for injuries to their members. See NAACP
v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); see also Ward v.
Ackroyd, 344 F.Supp. 1202 (D.Md. 1972); National Association for Community
Development v. Hodgson, 356 F.Supp. 1399 (D.D.C. 1973). Those rulings are of no
help to this plaintiff who has not alleged injury to any members, and who has not
joined any shareholders or officers, cf. First National Bank of Homestead v. Watson,
363 F. Supp. 466 (D.D.C. 1973).

App. 12

ruled that Corporations could not resist an FTC subpoena on
invasion of privacy grounds, saying,

{Cjorporations can claim no equality with individuals
in the enjoyment of a right to privacy. [Citation
omitted.]. They are endowed with public attributes.
They have a collective impact upon society from
which they derive the privilege of acting as artificial
entities.

In Hale v. Henkel, 201 U.S. 43, at 78; 26 S.Ct. 370, at 380
(1906), Justice Harlan concurring, said,

Ir my opinion, a corporation—‘an artificial being,
invisible, intangible, and existing only in
contemplation of law’—cannot claim the immunity
given by the 4th Amendment; for it is not of the
‘people’ within the meaning of that Amendment.

Again, 62 Am. Jur. 2d Privacy § 11, at 692 reads,

Since the right of privacy is primarily designed to
protect the feelings and sensibilities of human beings
rather than to safeguard property, business, or other
pecuniary interests, the courts have denied this right
to corporations and other institutions.

While, obviously, some of the concerns that prompted the denial
to corporations of the right of privacy are not relevant to their
enjoyment of the environment, it is clear that the statement of
policy in Section 101 of NEPA, 42 USC §4331, especially
Subsection (c) (“each person should enjoy a_ healthful
environment . . .”) is directed at the feelings and sensibilities of
human beings, and not to “artificial entities’’.

Accordingly, this Court concludes that plaintiff cannot as a
corporation assert an injury to its esthetic enjoyment of the
environment.

While the conclusion that plaintiff is without standing to
raise NEPA claims disposes of the issue, the Court also notes
that the claims lack substantitive basis.

Plaintiff's argument that an environmental impact statement
must examine the effects of Andrews Air Force Base on the
SMMC might have point if Plaintiff had built its hospital on the

App. 13

land now owned by SMMC and the United States had then
sought to build the Air Base where it is now located. The
plaintiff might have a claim under NEPA that the effect of the
project (i.e., the Air Base) on the existing environment
(including its hospital) would call for an environmental impact
study. In the present case, however, the project is the proposed
competitive hospital, and in the Court’s view, under NEPA the
involved agencies must consider the effect of the hospital
building on the surrounding environment, not the effect of the
environment on the hospital.

Additionally, plaintiff argues that “‘the people who will be
patients, will be working and will be visiting the hospital are
themselves a part of the environment and are entitled to those
considerations to which the NEPA was directed”? If this is the
closest the plaintiff can come to a legitimate environmental
concern, in the Court’s view it is clearly beyond the zone of
interests which NEPA protects.

No support can be found, in the text of NEPA, in its
legislative history, or in the cases construing it, for this
extraordinary and bizarre proposition. The term “environment”
is not defined in the Act, but there are indications that it does
not include human beings. For example, Section 101(b)(2), 42
USC §4331(b)(2) envisions as one of the ends of the national
policy, to

assure for all Americans safe, healthful, productive,
and esthetically and culturally pleasing surround-
ings. [Emphasis added.]

It would be an egregious and unwarranted extension of the
scope of NEPA to require that any “major Federal action”
which would affect people—thus encompassing virtually every
government program—be suspended until an environmental
impact statement is prepared. To state the proposition is to
show its absurdity.

The Court concludes, therefore, that plaintiff has failed to
state a claim upon which relief can be granted under NEPA and

3 Plaintiff's “Memorandum in Opposition to Federal Defendant’s Motion to
Strike”, p. 3.

App. 14

that the 194 paragraphs and 53 pages of the amended complaint
mount up only to a spurious NEPA suit.

The Claims under the National Housing Act,
12 USC § 1715z-7

The section of the Act cited by the plaintiff permits the .
Secretary of HUD to grant mortgage insurance to nonprofit ‘
hospitals, provided certain conditions are met. It appears that
plaintiff's asserted claims under this Act are in Jarge measure
claims under NEPA. To that extent, they have already been
discussed; to the extent they assert other grounds they are
prematurely presented.

Plaintiff does not allege that any mortgage insurance has yet
been authorized or granted. Paragraphs 4, 5, 6, 94 and 95 of the
Amended Complaint. Should such insurance be, granted, it is
conceivable that plaintiff might have a cause of action, as a
competitor to’ the recipient, under the doctrine of Data
Processing, supra, and under the provisions of § 10(a) of the
Administrative Procedure Act,5 USC § 702. However, review of
agency action under that Act is authorized only when the
action is final. 5 USC § 704. |

The problem [ of finality or ripeness] is best seen in a
twofold aspect, requiring us to evaluate both the
fitness of the issues for judicial discretion and the
hardship ‘to the parties of ‘withholding court —
consideration.

Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507,
at 1515, 18 L.Ed.2d 681 (1967).

In this case, delay will work no hardship on the plaintiff. If
HUD insurance is vital to SMMC, construction will not be
completed without it; if the insurance is not vital, then CCH
accomplishes nothing more by blocking the HUD insurance now
than at a later time.

More importantly, it is clear that the issues posed by
plaintiffs allegations are not sufficiently concrete to permit
review, since HUD has made 10 decision whatever. See Hanley

i

App. 15
v. Volpe, 305 F. Supp. 977 (E.D. Wis. 1969)4

Plaintiff also lists 42 USC §291 d(a\(1) as a source of its
claims, but none of ‘the allegations of the amended complaint
involve that statute.5> Since 12 USC § 1715z-7(4) refers to this

' section of Title 42, this Court has assumed that the claimed

violation relates only to the HUD claim.

This Court concludes that challenge to the HUD mortgage
insurance is, premature, and should therefore be dismissed.
Should HUD eventually make a determination adverse to
plaintiff, that will be the time for plaintiff to consider whether
an action can be brought for review. |

Lyris ‘Claims under the !
‘Comprehensive Health Planning Act
42 USC § 246

Plaintiff's allegations under this Act’ require considerable
discussion.

42 USC §246(a) authorizes the Secretary of HEW to grant
funds to the states for comprehensive health planning, provided
certain conditions are met. One such condition is that the state
designate. an agency to receive the funds, § 246(a)(1); under
Article 41, Section 59C, Annot. Code of Md., an agency titled
the Comprehensive Health Planning Agency (CHPA) is so
designated.

!

/

4Piaintiff alleges that, under a “Memorandum. of Agreement” HEW makes
determinations of approvability, and that HUD “‘as a practical matter . . . under

‘ normal circumstances accepts HEW’s review and recommendations ‘2s the basis for

FHA approval.” Amended Complaint, paragraph 18. Plaintiff also alleges that HEW
has granted SMMC “feasibility . . . approximately nine months ago”. Amended
complaint, paragraph 95. This Court does not consider that these allegations create
finality at this stage, since HUD approval while possible and perhaps even probable, is
not inevitable.

\
/

SThere isa possibility that plaintiff has made assertions meant to apply equally to
42 USC §291d(a)(1) and 42 USC §246. If that is the case, then the discussion
below of 42 USC §246 also applies to the claims under 42 USC '§2914.

‘

/

App. 16

Article 43, Section 559 Annot. Code of Md. authorizes the
Secretary of the State’s Department of Health and Mental
Hygiene to license hospitals. Subsection (a-10) of that section
directs that no license be granted

unless the hospital . . . conforms to or is not
inconsistent with the comprehensive health plan
developed and applicable for the particular area.
Where no comprehensive health plan has been
developed for a particular area, the State’s
comprehensive health planning agency shall make the
determinations required. This reference is to the
comprehensive health plan developed and effective
under § S9C of Article 41 of this Code.

The subsection also states:

- + .the Prince George’s County health planning
advisory committee shall be deemed the interim
regional health facilities planning agency for Prince
George’s County pending designation of a permanent
planning agency for any region | hat, shall include
Prince George’s County.

Plaintiff alleges that the CHPA adopted a plan in 1970, against
which the SMMC and CCH proposals (to build and to extend,
respectively) were apparently to be measured. Paragraphs 44-54,
Amended Complaint.

The County Health Planning Advisory Committee (HPAC)
recommended on March 10, 1971 that plaintiff's application for
a hospital expansion be denied; on March 29, 1971, the CHPA
endorsed that recommendation. On November 1, 1972, A
Board of Review of the Department of Health and Mental
Hygiene also endorsed those recommendations. Paragraphs 69,
70 and 75 of the Amended Complaint. The Secretary then
denied plaintiff a Certificate of Necessity. Paragraph 91. At
about the same time, apparently, SMMC’s application was
approved by the same bodies. Paragraphs 89, 90, 91 and 93.

App. 17

(2) that the 1970 Plan was not a Plan as required by law;

(3) that the members and personnel of the HPAC and
CHPA were incompetent, biased or both.

Tl.ese allegations appear to imply three legal claims:
(:\) that the actions violated state statutes;

(B) that the actions, insofar as they led to final decisions on
licensing both SMMC and CCH, violated 42 USC § 246;

(c) That the actions, as part of the process leading to HUD
Mortgage insurance for SMMC violate 12 USC
§ 1715z-7.

The first claim does not by itself state a claim cognizable in
federal court, as no federal right is asserted. 28 USC § 1331.
Plaintiff's resort to the state courts (Paragraphs 73-77) indicates
its recognition of that conclusion.

The second cause of action is more troublesome. Unra ts
apparently federally funded; if plaintiff were within the zone of
interest of the Act, and if it were injured directly by an action
of that agency, it may be that it would be able to maintain an
action in this Court. New York City Coalition for Community
Health v. Lindsay, 362 F.Supp. 434 (S.D.N.Y. 1973). But
neither condition is met in this instance.

If the CHPA acted improperly, it was in violation of both
federal and state law. Furthermore, its recommendations were
but one step toward the final action of the Secretary of Health
and Mental Hygiene. If the Secretary or the Board of Review
acted improperly, they were in violation only of state law, since
they are neither funded by nor responsible to the federal
government. Consequently, the alleged violation of a federal
statute is but a minor portion of plaintiff's grievance.

For that reason, plaintiff has not stated a federal claim within
the jurisdiction of this Court.

A mere incidental or collateral federal question may
appear or may durk in the background of the record,
but this is not, a sufficient or adequate basis upon

6 The Secretary’s action’ may also be part of the procedure leading to the HUD
mortgage insurance. In that character, they are not final actions reviewable by this
Court; see pages 13-14 supra.

App. 18

which federal jurisdiction may attach.

Screven County v. Brier Creek Hunting and
Fishing Club, 202 F.2d 369, at 370 (Sth
Cir. 1953)

See also Burgess v. Charlottesville Savings & Loan Assoc., 477
F.2d 40, at 44 (4th Cir. 1973).

Another description of the same doctrine is

that when the controversy between the parties may
be decided under local law without the necessity of
interpreting a federal statute, there is no federal
jurisdiction.
Cabana Management Inc. y. Hyatt Corp.,
441 F.2d 862, 864 (Sth Cir. 1971)

See generally Gully v. First National Bank, 299 U.S. 109, 57
S. Ct. 96, 81-L.Ed. 70 (1936); Hines v. Cenla Community
Action Committee, 474 F.2d 1052 (Sth Cir. 1973).

Furthermore, it is doubtful whether plaintiff has standing in
these circumstances to challenge the actions or make-up of the
CHPA. The primary purpose of the agency under the federal act
is to improve the health planning of the state. It is not at all
clear that a hospital affected by an action of CHPA pursuant to
a wholly separate state statute (Article 43, Section 559) can be
held to be within the zone of interest of the federal act under
the rule of Data Processing. See Hines, supra, at 1056; cf.
Gomez v. Board of State Employment Services, 417 F.2d 569
(Sth Cir. 1969).

The third claim, as the Court has already described, is not yet
ripe for judicial review. The extent to which CHPA’s
recommendation (even if improperly arrived at) may or may
not have contributed to a HUD action adverse to plaintiff can
only be determined when such action is final.

Claims under the Noise Control Act,
42 USC § § 4901 et seq.

Plaintiff has cited 42 USC § 4903 (c)(2) as the source of its
claim, Amended ‘Complaint, Paragraph 22, and alleges that the
section has been violated in that HEW has not consulted with

App. 19

the Environmental Protection Agency concerning the noise in
the environment of the SMMC, and in that HEW “has failed to
carry out its programs as it relates to the SMMC project in a
manner consistent with the policy declared in Title 42, Section
4901(b).” Paragraphs 166 and 167, This Court concludes that
the plaintiff lacks standing to bring such an action, for the
reasons advanced at the outset of this memorandum in the
discussion of standing under NEPA.

It is true that 42 USC §4911(a) authorizes suits by private
citizens to remedy the “violation of any noise control
requirement”. However, as defined in Subsection (f) of the
same section, a “requirement” is created by regulations
promulgated by the Environmental Protection Agency or
Federal Aviation Agency. Plaintiff has alleged the existence of
no relevant regulation, and has therefore not stated a claim for
which relief can be granted. See, e. g., Burton v. Peartree, 326
F.Supp. 755, at 761 (E.D. Pa. 1971); Cross v. Board of
Supervisors of San Mateo County, 326 F. Supp. 634 (N.D. Cal.
1968), affirmed 442 F.2d 362 (9th Cir. 1971).

Conclusion

For all the foregoing reasons, this Court will grant the Motion
to Dismiss filed by the Southern Maryland Medical Center, and
will on its own motion order the dismissal of the action as to
defendants Weinberger and Lynn. An order giving effect to this
ruling is attached to this Memorandum.

(Signed) Herbert L. Murray
United States District Judge

Dated April 16, 1974

App. 20

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CLINTON COMMUNITY .
HOSPITAL CORPORATION

v. ® Civil No. 73-981-HM

SOUTHERN MARYLAND
MEDICAL CENTER et. al. =

ORDER

For the reasons stated in the Court’s Memorandum filed this
date, it is this 16th day of April, 1974, by the United States
District Court for the District of Maryland, hereby

ORDERED that the Motion to Dismiss Amended Complaint
for Injunction filed by defendant Southern Maryland Medical
Center be, and the same hereby is, Granted, and it is further

ORDERED that plaintiff's Amended Complaint for
Injunction as against all of the defendants be, and the same
hereby is, Dismissed Without Leave to Amend, with costs to
defendants.

(Signed) Herbert L. Murray
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0726%3A1. Public record. Not legal advice.