Opposition Brief — Inner City Press/Community on the Move v. Board of Governors of the Federal Reserve System

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| Supreme Court, U.S.

FILED

MAY 21 1998

No. 97-1514

F PHE CLERK

In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

INNER City PRESS/COMMUNITY ON THE MOVE, ETAL.,

PETITIONERS

BOARD OF GOVERNORS OF THE

FEDERAL RESERVE SYSTEM, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

JAMES V. MATTINGLY, JR.

General Counsel

RICHARD M. ASHTON

Associate General Counsel

KATHERINE H. WHEATLEY

Assistant General Counsel

YVONNE F. MIZUSAWA

Senior Attorney

Board of Governors of the

Federal Reserve System

Washington, D.C. 20551

CO ENO NR TET ILIA LITE BINGE PI LON LE IAMS IE IER EPS R EEE IS SS

QUESTION PRESENTED

Whether the court of appeals correctly dismissed

the petition for review of an order of the Board of

Governors of the Federal Reserve System for lack of

Article III standing.

TABLE OF CONTENTS

Opinions below .........sceeseeeesseceeeseeeeseneeeseneenraaeaenrcesensnees

| Jurisdiction ............ccccccccrsssccccsconcccvesccessscesescsscscescceescees

Statement ...0.0..-ccccccersecscvecssscsssssvcesvcesevecscssessssoscccsoeeveess

AYQuMEeNt .........cccccesseeeceseeneeeeseeneeesssereseereceanensnnenaaecannees

COMONABION .0.<ccccsccecvccsssccssesevencosescasesevecsncssonssessescscssossess

| TABLE OF AUTHORITIES

Cases:

Fair Employment Council v. BMC Marketing Corp.,

28 F.3d 1268 (D.C. Cir. 1994) .........cceseeeeneeeeeeeeeereeees

Havens Realty Corp. v. Coleman, 455 U.S. 363

CI sc cukwiuphnnnaherbahencnneovorensvseonetoctepbarceeseoss

Hunt v. Washington Apple Adver. Comm’n., 432

U.S. B83 (1977) .......ccccesecoccccccccrsccececescernssccsnsoccescoees

Lujan v. Defenders of Wildlife, 504 U.S. 555

GBI iccccccnsnincccdensinnccesdeencscsesesovssecevonsessressosvsoyeavoes

Schlesinger v. Reservists Comm. to Stop the War,

418 U.S. 208 (1974) .........ccccseccereeeeceeeeseeeeeserseeeeeeenens

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S.

BE COTE) occ ecnvcccsvceséscsscnceccsnscatsrsistessuvescesscnsescoesonese

Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C.

Cir.), cert. denied, 498 U.S. 980 (1990) ............222+++

Steel Co. v. Citizens for a Better Env’t, 118 S. Ct.

BI CIBIBD oii ccsnccccccccevsinesececesssesuscnsnsatencenscesocscoresss

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S.

AGA (CIDER) oncccccccceccsccssvccssnescsceveccccsevensoscseccsescncoossoss

Warth v. Seldin, 422 U.S. 490 (1975) ........::cceeeseneees 4,

Constitution and statute:

U.S. Const. Art. [1] .............cccccoseresecsorserecsesees 2, 3, 4, 5,

Community Reinvestment Act of 1977, 12 U.S.C. 2901

CL SOG. rrcseceseeceenseccreresccccesessssnescenansecencesensenccssaensasees

§ 804(a), 12 U.S.C. 2903(a) ..........:eeeeeeeeeeesereeeereees

(IIT)

~] =]

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1997

No. 97-1514

INNER City PRESS/COMMUNITY ON THE MOVE, ETAL.,

PETITIONERS

vU.

BOARD OF GOVERNORS OF THE

FEDERAL RESERVE SYSTEM, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-3a)

is reported at 130 F.3d 1088. The order of the Board of

Governors of the Federal Reserve System (Board)

approving the notice by Banc One Corporation (Banc

One) to merge with First USA, Inc. (First USA)

(Pet. App. 4a-20a) is reported at 83 Fed. Res. Bull. 602.

JURISDICTION

The judgment of the court of appeals was entered on

December 12, 1997. The petition for a writ of certio-

rari was filed on March 12, 1998. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

In early 1997, Bane One filed a notice with the

Board for approval to merge with First USA. After a

request for comments on the notice was published in

the Federal Register, the Board received comments

from a number of parties including petitioners Inner

City Press/Community on the Move (ICP), the Dela-

ware Community Reinvestment Action Council

(DCRAC), and Black Citizens for Justice, Law &

Order (BCJLO).

Petitioners claimed, among other things, that Banc

One’s record of meeting community credit needs in

accordance with the Community Reinvestment Act of

1977 (CRA), 12 U.S.C. 2901 et seqg., should weigh

against approval. In evaluating Bane One’s proposal,

the Board considered petitioners’ comments, Banc

One’s responses, and the CRA performance record of

Bane One, its subsidiaries, and First USA. The

Board concluded that the relevant factors, including

the organizations’ CRA performance, were consistent

with approval and issued an order approving the ac-

quisition. Pet. App. 4a-20a.

Petitioners filed a petition for review of the Board’s

order and a motion for an emergency stay with the

court of appeals. The court of appeals granted Banc

One’s unopposed motion for leave to intervene and

denied petitioners’ motion for a stay. The court di-

rected the parties to address the issue of standing in

any future filings. Pet. 6.

The Board and Banc One later moved to dismiss the

petition for review for lack of Article III standing.

The court of appeals, in a per curiam opinion, dis-

missed the petition. Pet. App. la-3a. Noting that peti-

tioners’ participation in the proceedings before the

= >|

Board does not, without more, satisfy the Article III

requirement of injury in fact, the court held that peti-

tioners lack Article III standing. /d. at 2a-3a.

ARGUMENT

The court of appeals correctly rejected petitioners’

claim of Article III standing to challenge the Board’s

determination that Bane One’s acquisition of First

USA was consistent with the CRA. Nothing in the

opinion of the court of appeals warrants this Court’s

review. The decision of the court of appeals is not in

conflict with any decision of another court of appeals

or of this Court. Nor does the opinion of the court of

appeals implicate an important or unsettled question

of law.

1. Petitioners claim (Pet. 8-10) that the court of

appeals erred by “fail{ing] to consider whether peti-

tioners had established organizational standing.”

Nothing in the court’s opinion suggests, however,

that it failed to consider whether the petitioner or-

ganizations had standing on their own behalf. Peti-

tioners, the Board, and Banc One all briefed the issue

of organizational standing before the court of appeals.

The court had the benefit of those briefs when it

issued its ruling. The court held that, “[wJhile peti-

tioners may have satisfied prudential standing by

virtue of their participation in administrative pro-

ceedings, * * * they have not demonstrated Article

II] standing.” Pet: App. 3a. It is therefore evident

that the court considered the issue of organizational

standing in dismissing the petition.

2. In any event, petitioners’ allegations are insuffi-

cient to establish organizational standing. This

Court recently reiterated that, as an “irreducible

constitutional minimum,” to establish standing under

Article III, a party must demonstrate that: (i) it has

suffered an “injury in fact” that is “concrete and

actual or imminent, not conjectural or hypothetical”;

(ii) there is “causation—a fairly traceable connection

between the plaintiff’s injury and the complained-of

conduct”; and (iii) there is “redressability—a_likeli-

hood that the requested relief will redress the alleged

injury.” Steel Co. v. Citizens for a Better Env’t, 118

S. Ct. 1003, 1016-1017 (1998) (internal quotation marks

and citations omitted). An organizational plaintiff

may have standing to sue on its own behalf, Warth v.

Seldin, 422 U.S. 490, 511 (1975), but the organization

must meet the same Article III requirements as an

individual plaintiff, Havens Realty Corp. v. Coleman,

455 U.S. 363, 378 (1982).

Petitioners first argue (Pet. 10) that “the Board

has frustrated the organizational purposes of peti-

tioners.” That allegation, however, does not consti-

tute an injury in fact under Article III. To establish

an injury in fact, an organization must show “con-

crete and demonstrable injury to [its} * * *

activities—with [a] consequent drain on _ [its]

resources—constitut{ing] far more than simply a

setback to [its] * * * abstract social interests.”

Havens Realty, 455 U.S. at 379. Petitioners’ “ab-

stract concern with a subject that could be affected by

an adjudication does not substitute for the concrete

injury vequired by Artficle] III.” Simon v. Eastern

Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976).

Petitioners also claim (Pet. 10) that, because of the

Board’s order, they “must expend greater efforts,

energy, and resources to obtain mortgages, consumer

credit, and other banking services for their mem-

bers.” That allegation, too, is insufficient to establish

injury in fact, because it is unsupported by “specific,

concrete facts.” See Warth, 422 U.S. at 508.

Although petitioners’ affidavits' contain state-

ments that they must “expend more time and re-

sources counseling and assisting those in need of

credit” because of the Board’s order, see, e.g., Lee Aff.

{ 7, they provide no specific facts to support that con-

clusion. For example, petitioners have not even

shown that they experienced an influx of individuals

seeking counseling as a result of the Board’s order,

see Fair Employment Council v. BMC Marketing

Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994); that the

Board’s order stymied their efforts to provide indi-

viduals with access to credit, see Havens Realty, 455

U.S. at 379; that the order decreased the resources

available for counseling and other programs, see

Hunt v. Washington Apple Adver. Comm’n., 432

U.S. 333, 345 (1977); or that the order required them

to “devote scarce resources” to “counteract” its dele-

terious effects, see Spann v. Colonial Village, Inc.,

899 F.2d 24, 28 (D.C. Cir.), cert. denied, 498 U.S. 980

(1990). In the absence of details of that type, petit-

ioners’ allegations lack the concreteness and particu-

larity required by Article III.’

' To support their standing, petitioners rely on affidavits by

three members of their organizations. See Affidavit of Mat-

thew R. Lee, sworn to September 10, 1997 (Lee Aff.); Affidavit

of Nickie Christopher Chance, sworn to September 9, 1997

(Chance Aff.); Affidavit of Rashmi Rangan, sworn to Septem-

ber 9, 1997 (Rangan Aff.).

* Likewise, petitioners’ assertions that, “{i]f the [Board] is

not required to take into consideration * * * the CRA records

of Bane One and its subsidiaries,” petitioners “will be compelled

to spend even greater resources to assist [their] members” 1in4

“will not be able to maintain all of [their] current programm

Even assuming petitioners have alleged cognizable

injuries, they have failed to demonstrate causation

and redressability. Causation and redressability are

particularly difficult to demonstrate when, as in this

case, the petitioners’ “asserted injury arises from the

government’s allegedly unlawful regulation (or lack

of regulation) of someone else.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 562 (1992).

Although petitioners allege that they spent time

and resources counseling individuals in need of credit,

they do not allege that the counseling was necessi-

tated by the Board’s order. See, e.g., Lee Aff. | 8;

Chance Aff. 10; Rangan Aff. ¢4 11, 13. Only affiant

Lee even mentions Banc One, alleging that “in 1995,

ICP provided fair lending and fair housing counseling

to individuals and associations in Louisiana, who were

concerned about, and injured by, Premier Bancorp.,

Inc. * * * , which Bane One then partially con-

trolled.” Lee Aff. ¢ 5. That counseling took place two

years before the Board’s order in this case, so there

cannot be a causal connection between the order and

the counseling.

Petitioners have also failed to show that their

alleged injuries would be redressed by reversal of the

Board’s order. Reversal of the order would not reim-

burse petitioners for any of their expenditures. And,

given the very general nature of the CRA’s mandate,

see 12 U.S.C. 2903(a), it is pure speculation that re-

versal of the order would result in heightened CRA

efforts on the part of Banc One that would benefit

petitioners. Because “[nlone of the specific items of

efforts,” Chance Aff. ¥ 12; Lee Aff. 4 13, are “pure specula-

tion” and do not meet the requirements of Article III. Lujan

v. Defenders of Wildlife, 504 U.S. 555, 567 (1992).

enti,

relief sought * * * would serve to reimburse

[petitioners] for [their] lusses,” petitioners have

failed to demonstrate standing under Article III. See

Steel Co., 118 S. Ct. at 1018.

3. Finally, petitioners cannot circumvent the re-

quirements of Article III by their claim (Pet. 7-8)

that, if organizations such as they do not have stand-

ing to challenge Board orders, “a citizen’s right to

benefits under the CRA” will be “emasculate[d].”

The absence of alternative plaintiffs cannot cure a

plaintiff's lack of standing. Schlesinger v. Reservists

Comm. to Stop the War, 418 U.S. 208, 227 (1974).

Further, the Court “repeatedly has rejected claims of

standing predicated on ‘the right, possessed by every

citizen, to require that the Government be adminis-

tered according to law.’” Valley Forge Christian

College v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 482-483 (1982)

(internal citations omitted). In the absence of per-

sonal, particularized harm, petitioners have no stand-

ing to enforce the “right to benefits under the CRA”

on behalf of the community at large. See ‘arth, 422

U.S. at 502 (“Petitioners must allege and show that

they personally have been injured, not that injury has

been suffered by other, unidentified members of the

class to which they belong and which they purport to

represent.”).

CONCLUSION

For the foregoing reasons, the petition for a writ of .

certiorari should be denied.

Respectfully submitted.