# Opposition Brief — Inner City Press/Community on the Move v. Board of Governors of the Federal Reserve System > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2390%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1998 - **Citation:** 524 U.S. 937 ## Text | 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.| 3 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 5 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. SETH P. WAXMAN Solicitor General 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 MAY 1998 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2390%3A2. Public record. Not legal advice.