Standing Alone: Standing Under the Fair Housing Act

By Michael E. Rosman

Missouri Law Review, July 8, 1995

In 1980, one of the leading authorities on housing law noted that the Supreme Court had been “especially active” in the 1970’s in addressing standing problems in cases with allegations of housing discrimination; n1 indeed, he wrote that “standing problems in fair housing cases seem to have grown out of all proportion to their proper place in this field.” n2 The Supreme Court returned to standing a few years later, n3 but has since fallen silent and left the development of standing law in housing cases to the lower courts. However, a recent decision of the Supreme Court has suggested to some scholars that the validity of the Court’s prior precedents on housing law standing may be in doubt. n4

This article examines some of that development, particularly under the Fair Housing Act. n5 Recent decisions of the circuit courts have produced some results that many may consider counterintuitive. For example, the Second Circuit has recently ruled that anyone who reads an advertisement that violates Section 3604(c) of the Fair Housing Act n6 has standing to sue,

[*548] irrespective of whether the reader has any interest in housing. n7 At the same time, several different circuit courts have held that organizations that spend money in seeking to uncover illegal discriminatory housing practices have standing by virtue of that fact alone, creating, in essence, “citizen standing” without any provision in the statute authorizing such standing. n8

In this article, I argue that these decisions result from several causes, including some questionable readings of leading Supreme Court decisions. Primarily, however, I believe the courts, including the Supreme Court, have not focused with any care on interpretative rules for statutes; that is, rules that identify what statutory language, or other criteria, suggests broad standing and what statutory language suggests narrow standing. In the last part of this article, I take a few cautious steps in this direction.

Most academic work on standing has focused on its constitutional status. Some excellent articles, including a fairly recent and thorough article by Professor Cass Sunstein, n9 argue that the Supreme Court decisions elevating standing to a constitutional doctrine are ahistorical, and that the focus in any standing questions should be whether the substantive law (be it constitutional or statutory) creates a cause of action for the plaintiff. I take no issue with this position because, in the context of the Fair Housing Act, there seems little doubt that the Courts are doing nothing more than trying, at least, to interpret the statute. n10 But once it is decided that an examination of substantive law (as opposed to ostensibly immutable Article III requirements) is required, the next step, it seems, is to look for language in the substantive law that will tell us something about standing. The commentators have not explored this

[*549] question in any depth. n11 This Article suggests that the courts are having some difficulty doing that as well, and begins to take that next step.

The problem the courts are having, unfortunately, is traceable to the same constitutional requirements that have vexed cogent analysis under Article III. Because of the constitutional and prudential structure the Court has used to analyze standing, the Court has focused upon two questions related to that structure in interpreting statutes. Did Congress intend to “remove the prudential barriers”? Did Congress create a “right,” the violation of which constitutes an “injury-in-fact” for Article III purposes? Moreover, the focus on these odd questions has deflected attention from the question the Court should be asking, viz., whom did Congress want to enforce the duties imposed upon the defendant by this statute? In short, the distortions of the constitutional analysis have had ripple effects, such that even if the constitutional analysis is somehow repaired by the commentators, it is not clear that statutory analysis will also improve.

Part I of this article reviews the general principles of standing as they have been enunciated in the last few decades by the Supreme Court. I focus on several specific problems in the doctrine which are of interest in the interpretation of statutes generally, and the interpretation of the FHA in particular. Specifically, I note the Supreme Court holdings that certain language in statutory standing provisions requires the removal of the so-called “prudential rules”–and the lower courts’ resistance to that instruction and their application of those rules in spite of it.

Part I then focuses on what I refer to as the “statutory rights gambit,” that is, the ability of Congress to create a “right,” the violation of which constitutes an “injury-in-fact” for purposes of Article III. I suggest that the Supreme Court has given us two rather different theories of this gambit: one theory holding that any “real” injury qualifies under Article III regardless of any congressional assistance and that Congress can make anything it wants (“real” or otherwise) an “injury”; and the other theory limiting both the injuries that qualify under Article III without congressional assistance and the ones that Congress can create by passing a statute. (I also argue that the latter theory did not come into existence full blown and without precedent in Lujan v. Defenders).


Part II examines the analysis of the “injury” requirement in Ragin v. Harry Macklowe, n12 and points out that similar statutory language has been given quite different interpretations in other statutes. Part III examines those circuit court decisions which have ruled on standing for organizational plaintiffs under the Fair Housing Act, and argues that the circuits, unwittingly or otherwise, have created a “citizens standing” provision in the Fair Housing Act.

Finally, in Part IV, I suggest that both the so-called Article III requirements and the prudential rules identified by the Court are fairly good standing rules that can be used as a baseline in interpreting statutes. More particularly, I argue that in an era in which “plain meaning” interpretations of statutes are in ascendancy, only a clear and unambiguous message from Congress that those rules are not applicable should lead to their elimination.


It is hard to read any significant number of cases or articles about standing without coming to the conclusion that few hold the internal coherence of that doctrine in high regard. The Supreme Court itself has declared that “generalizations about standing . . . are largely worthless as such” n13 and that the various required elements enumerated by the Court are “not susceptible of precise definition.” n14 Commentators have been no more generous. n15 These criticisms and concerns aside, the Court plainly has set forth what it believes are the basic elements of standing.

There are two elements in current standing doctrine, the constitutional and the prudential. The constitutional elements are said to derive from the “case or controversy” n16 provision of Article III, n17 and the Court has stated

[*551] that standing is the most important concept in Article III. n18 There are three constitutional elements: (1) injury “in fact,” i.e., an injury that is concrete, particularized and, if not already inflicted, imminent; (2) causation, between the allegedly illegal acts of the defendant and the injury “in fact;” and (3) redressability of the claimed injury. n19 These are said to be constitutional minima, required to be present in every case. Prudential rules, on the other hand, are judge-made rules which the Court has devised to remove cases which are inconsistent with the limited role of the courts in a democracy. Although the Court has never claimed to set forth a complete list of these prudential rules, it frequently mentions three: (1) litigants should not assert the rights of third parties; (2) litigants should not assert “generalized grievances”; and (3) the injury claimed should be in the “zone of interests” of the statute or provision in question. n20

It would be difficult (and more than a little arrogant) to quickly summarize the major criticisms of current standing doctrine, but a number of elements have been stated often enough to outline. First, as a historical matter, injury “in fact” has not been a requirement of our jurisprudence. n21 Various forms of actions have been long accepted in this country–the qui tam action, the “informer” action, the “relator” action, and various forms of writs–which could be brought by an individual citizen who was not damaged in any way by the acts of the defendant, but who sought nonetheless to bring those acts to the attention of a court. n22 These were, say the commentators,

[*552] the equivalent of the modern “citizen” suit which has been the victim of the Court’s modern standing decisions.

The commentators generally ascribe the beginning of the development of standing law to the combination of two somewhat inconsistent judicial themes: conservative judges using it to uphold the distinction between regulatory objects and regulatory beneficiaries (and thus upholding traditional commonlaw notions of property rights), and judges like Justices Frankfurter and Brandeis using it to limit the attacks on New Deal legislation and the delegation of authority to the administrative state (along with similar doctrines like ripeness and reviewability). n23 But at its outset, standing doctrine employed a “legal injury” test, which, more or less, asked whether the interest claimed by the plaintiff was one protected by the statute or common law principle in question, or whether the statute intended plaintiff to have standing. n24 In this sense, early “standing” cases were analogous to the

[*553] analyses of Judges Cardozo and Andrews in Palsgraf n25 and the modern cases considering whether a statute grants a “private right of action.” n26

The “legal injury” test was expanded in the post World War II era, until it was abandoned in ADPSO n27 where the Court, depending upon one’s perspective, either adopted or created from whole cloth the injury “in fact” test. n28 The logical correlations of “causation” and “redressability” came shortly thereafter. n29 While the injury “in fact” test was created to further expand “standing,” n30 the commentators argue that it was subsequently employed by the Burger and Rehnquist Courts to resurrect the distinction between regulatory objects and regulatory beneficiaries and to deny standing to plaintiffs bringing certain kinds of “public value” litigation. n31

The critics of modern standing doctrine, for the most part, seem to agree that the “legal interest” test had more going for it than current doctrine. In any standing case, they say, the question should really be whether the positive

[*554] law upon which the plaintiff bases his or her claim grants that plaintiff the right to sue. n32 It is not sufficient that the defendant violated the law; it must also be the case that the plaintiff is someone who has the right to bring a lawsuit. n33 To ascertain this, one should simply examine the substantive law upon which plaintiffs bring their claims. In this regard, the prudential “zone of interests” test–which essentially asks the “merits”–like question of whether the injury suffered by the plaintiff was within the “zone” of injuries against which Congress (or any other law-creating entity) wanted to protect–is one that the commentators believe should be deployed more frequently, and with more bite, than it has in the past. n34 (In its current form,

[*555] the “zone of interests” test asks only if a particular plaintiff is “arguably” within the zone of interests that Congress wanted to protect). n35 The degree and extent to which the Court is willing to transform the “zone of interests” test into a significant substantive limit on those who can bring a cause of action–that is, into something like the “legal injury” test looked back upon with such nostalgia by the commentators–remains to be seen. n36

The critics of modern standing law also seem fairly united in their conclusion that, whatever role notions of standing might have in suits against government agents seeking to force them to conduct themselves in accordance with law, it has absolutely no purpose or role in suits between two private

[*556] actors. n37 In such cases, the question of standing should be entirely subsumed in the question of whether the plaintiff has a cause of action under the statute.

Indeed, in the Fair Housing Act context, a separate “standing” inquiry can only lead to mischief since if a plaintiff’s case is dismissed only on “standing” grounds, she could presumably pursue the claim in a forum in which Article III is inapplicable. n38 But if the “standing” decision was really a determination that the Fair Housing Act does not provide relief for a particular kind of plaintiff, it is a merits-based decision which should have res judicata effect. n39 The attempt by the courts to create a separate “standing” law within a statutory framework has left the law more than a little confused.

With this in mind, then, I now explore the dilemma of standing in cases brought pursuant to the Fair Housing Act.

A. Eliminating Prudence

A statute can modify standing principles in two different ways. First, a law can identify a “right” the violation of which constitutes an injury “in fact.” n40 Second, Congress can, in passing a statute, instruct the courts to

[*557] ignore any prudential limitations on standing, and to consider any case brought by a plaintiff who can meet the Article III minimum requirements. This subsection identifies this second phenomenon and notes the lower courts’ resistance to it.

The notion that Congress can eliminate “prudential” standing rules has received remarkably little notice or criticism from the commentators. Included among the “prudential” rules is the “zone of interests” test, favored among the commentators (particularly in its stricter applications) because it asks a question similar to the question involved in the “legal injury” test, viz., did Congress intend a particular plaintiff or class of plaintiffs to be able to bring a claim? n41 It is rather odd to say that Congress intended to eliminate the “prudential” tests. With respect to the zone of interests test, this means that Congress meant to eliminate any inquiry into its own intent as to who should have standing. Moreover, as discussed below, Congress’ intent to ignore its own intent is apparently gleaned by examining its intent.

1. Trafficante and Gladstone

The Supreme Court first found that Congress had eliminated prudential barriers to standing in interpreting Section 3610(a) n42 of the Fair Housing Act in Trafficante v. Metropolitan Life Insurance Co. n43 In that case, two plaintiffs, one black and one white, claimed that the defendants had discriminated against non-whites on the basis of race in the rental of apartments, and that they, tenants at the apartment building at which such discrimination was taking place, had been injured in that (1) they had lost the

[*558] social benefits of living in an integrated community; (2) they had missed business and professional advantages that would have accrued if they had lived with members of minority groups; and (3) they had been stigmatized from being residents of a “white ghetto.” n44 Relying primarily on the fact that suits by private persons were the main method of enforcement under the Fair Housing Act, and the fact that Section 3610 permitted its provisions to be utilized by any “person aggrieved,” a phrase defined as “any person who claims to have been injured by a discriminatory housing practice,” the Court concluded that Congress intended to define standing under Section 3610 “‘as broadly as is permitted by Article III of the Constitution.'” n45 In that lastcited phrase, the Court quoted Hackett v. McGuire Bros., n46 a case in which the Third Circuit had held that the standing provisions of Title VII were as broad as Article III permitted. In Trafficante, the Court went on to quote various pieces of legislative history from the Fair Housing Act–specifically broad statements by Senators Javits and Mondale to the effect that the purpose of the Act was to replace ghettos with integrated living patterns and that discrimination hurts “‘the whole community'” n47 –despite the fact that it conceded that “the legislative history of the Act is not too helpful.” n48 Since the plaintiffs in Trafficante had alleged injury “with particularity,” n49 the Court held that they had standing to proceed.

At first glance, the Court in Trafficante appears to be stating that the “injuries” suffered by the various plaintiffs were, and had always been, injuries “in fact” for Article III purposes. The only work that the Fair Housing Act performed, under this view, is to remove the prudential barriers that prohibited individuals suffering such injuries from suing. This view is tempered, however, by the cryptic concurring opinion of Justice White. n50 Justice White

[*559] claimed that the injuries suffered by the plaintiffs in Trafficante would not have met Article III requirements without the Fair Housing Act. But since the FHA gave those authorized to complain to the agency the “right” to sue in court, the concurring Justices also concluded that they had standing. n51 In doing so, they begged a rather significant question, one which has haunted Article III jurisprudence ever since: Why were the injuries in Trafficante insufficient under Article III without the FHA?

Since the Court had identified the existence of the injury “in fact” requirement only a few years before Trafficante, in ADPSO, the precise meaning of a standing definition extended to Article III limits was not particularly clear at the time. To some degree, this was rectified in Gladstone, Realtors v. Village of Bellwood, n52 a case that considered the scope of standing under what was then Section 3612 of the Fair Housing Act. n53 In Gladstone, the Court laid out both the Article III requirements and various prudential requirements of standing and noted that Congress had the authority to remove the latter, but not the former. n54 Since the rule against the assertion

[*560] of the rights of third parties and the application of the “zones of interest” test were identified as prudential barriers, n55 it became clear that those tests were amongst those scuttled by the holding in Trafficante that Congress had eliminated the prudential barriers in passing the FHA.

The specific question in Gladstone was whether the somewhat differentlyworded provision of Section 3612 also eliminated prudential barriers. n56 The Court, relying significantly on the structure of the Fair Housing Act and its legislative history, concluded that Sections 3610 and 3612 were designed to provide alternative remedies to the same class of plaintiffs, and thus held that standing under Section 3612 should be determined without consideration of prudential barriers. n57 In ascertaining whether the plaintiffs had alleged an injury “in fact” sufficient to satisfy the requirements of Article III, the Court held that (1) one plaintiff, the Village of Bellwood (in a part of which, it was alleged, that blacks, but not whites, were shown apartments), had standing because the alleged racial steering of the defendants could have reduced the demand for housing within the village, and lowered property prices and the concomitant tax base; n58 and (2) other plaintiffs who lived within the area that was the object of the alleged racial steering had standing because they had been deprived, like the plaintiffs in Trafficante upon whose injury the Gladstone allegations were obviously modeled, of the social and professional benefits of living in an integrated community. n59 These latter plaintiffs were

[*561] also deemed to have alleged that the value of their homes had gone down, and the Court held that this allegation as well was sufficient to meet the standing requirement. n60

Much of the key to understanding Fair Housing Act standing lies in footnote 9 of the Gladstone opinion. n61 Because the Court held that “prudential barriers” had been eliminated, it rejected the defendants’ argument that because the Fair Housing Act granted no “right” to the plaintiffs to have one’s community protected from the evils of segregation, the plaintiffs lacked standing under Section 3612. Of some importance here is the fact that the Court seemed to accept the premise of defendants’ argument (i.e., that the Fair Housing Act granted no “right” to interracial associations or a particular value for homes). n62 It was sufficient for the Court that someone’s Fair Housing Act rights were being violated (or that a violation had taken place), and that plaintiffs suffered some real “injury” as a consequence of that violation. n63

Footnote 9, when combined with the “statutory rights gambit” discussed later, n64 demonstrates that the Court distinguishes between two different forms of congressional modification to the standing rules: viz., the creation of a right (the violation of which constitutes an injury for purposes of Article III) and the elimination of the prudential rules. It also, I believe, undercuts the view espoused in both Justice White’s concurrence in Trafficante and Warth v. Seldin that the Fair Housing Act granted a “right” to be free from the consequences of racial discrimination. If that were so, then the plaintiffs in Gladstone really did have their own rights violated, and footnote 9 makes very little sense. n65


2. Title VII And The ADEA

Given the Supreme Court’s unambiguous elimination of prudential barriers in Trafficante and Gladstone, it is somewhat surprising to examine some of the subsequent decisions of the lower courts interpreting the very similar standing language of Title VII. n66 It seems plain that many of the lower courts like the prudential barriers and are reluctant to give them up.

Because the Court in Trafficante cited the Third Circuit decision of Hacker v. McGuire Bros., a case involving Title VII, the circuit courts have repeatedly said that Congress intended standing under Title VII, like the Fair Housing Act, to extend to all who can meet the Article III requirements. n67 Moreover, when faced with a plaintiff alleging a loss of benefits from interracial association, the injury “in fact” specifically identified by the Supreme Court in Trafficante and one of the ones from Gladstone, courts dutifully have granted standing. n68


Yet, the lower courts seem reluctant to jettison all of the prudential barriers. Despite the fact that the Supreme Court has made clear that the “zone of interests” test is a prudential barrier, n69 and not part of the Article III requirements, the Eighth Circuit has specifically applied, n70 and the Second Circuit has affirmed, n71 precisely that test in assessing Title VII standing. n72 Of equal importance, the courts have ruled as if various prudential barriers impeded the standing of Title VII plaintiffs. The Ninth Circuit has ruled that a shareholder cannot bring a derivative suit against the corporation’s directors for the waste of assets caused by a discriminatory hiring policy, although it would seem that corporate directors that fail to maximize the quality of a corporation’s workforce by pursuing a non-discriminatory policy have injured

[*564] the corporation. n73 Courts have also rejected claims by male employees who claim that their salary is lower because they are in a “job group” which is discriminated against because it is predominantly female. n74 The obvious rejoinder that a lower salary is indeed an injury–perhaps even as important as the loss of benefits from interracial association–has been ignored (or perhaps worse). n75 The lower courts, it seems, like the prudential barriers and are

[*565] reluctant to permit a whole slew of cases to proceed where the plaintiffs are essentially asserting other people’s rights.

The courts are not alone. Perhaps the leading treatise on employment discrimination, n76 in listing the three elements of Article III standing, includes the prudential “zone of interests” test, n77 and throughout its brief discussion on standing, repeatedly refers unquestioningly to cases that applied the “zone of interests” test. n78

A similar phenomenon can be seen with the Age Discrimination and Employment Act (the “ADEA”). The ADEA, like the Fair Housing Act and Title VII, provides that a civil action may be brought by “any person aggrieved.” n79

Perhaps the most interesting situation is created by an employment policy which discriminates against everyone over 30 or 35. n80 Under Trafficante, a 36 year old would presumably have standing because (1) the policy violates the rights of those over 40, who are protected by the ADEA; and (2) the plaintiff is injured by the policy. n81 The cases have ignored the application of Trafficante and ruled against such plaintiffs. n82


One case, Allen v. American Home Foods, Inc., n83 did hold that individuals under 40 can bring a lawsuit when a plant that included many workers over 40 was closed because of the age of those older workers. Consistent with their erroneous belief that the employment discrimination statutes should use a “zone of interests” test in determining standing, the Larsons have concluded that this case was wrongly decided, arguing that, were it otherwise, “there would seem to be few limits on who can sue for ADEA violations, so long as the employer action affects at least someone in the protected class.” n84 Of course, that was indeed the point of Trafficante and Gladstone–that so long as someone’s rights were violated, anyone injured by the act which violated those rights could sue. n85

B. Defining Injury

The historic validity (or lack thereof) notwithstanding, the first of the three constitutionally required elements of standing is injury “in fact.” The Court uses words like “distinct,” “palpable” and “not abstract” to describe the required injury, but it concedes that there is no “precise definition” to the term and that “in many cases standing question can be answered chiefly by comparing the allegations of the particular complaint to those made in prior standing cases.” n86

That is what I intend to do in this section. Before attempting that, though, I set forth a baseline definition of “injury”–one which the Court certainly does not employ–to use as a basis of comparison: the utilitarian injury. A utilitarian injury is one which leaves a person worse off than he was previously, i.e., one which reduces his or her “utility.” Simply put, a utilitarian injury is one which makes an individual feel worse. n87


In using Supreme Court decisions to answer certain questions about standing, I will focus on questions that are particularly relevant to cases under the Fair Housing Act. First, is mental distress an injury “in fact?” Second, what types of injury “in fact” are “judicially cognizable,” and how can Congress “define” an injury through the “statutory rights gambit?” In answering that last question, I will also consider the relatively recent case of Lujan v. Defenders of Wildlife. n88

1. Injury and Mental Distress

At first glance, the answer to the question of whether “mental distress” n89 is an appropriate Article III injury is obvious. Intentional infliction of emotional distress is a fairly well established tort under most states’ laws, and nothing the Supreme Court has ever said has suggested that such claims cannot be heard in federal court. Indeed, the Court has analogized Fair Housing Act claims to precisely such torts. n90

But the requirement that an injury be “particularized” has led in some instances to conclude that not every form of mental distress will be recognized by the Court as a sufficient injury “in fact.” Mental distress caused by acts which have only a remote connection to the plaintiff (and which, thus, could be asserted by a large number of people) do not meet the “particularity”

[*568] requirement of Article III. n91 For example, the Court has held that the stigma attached from being treated unequally is a sufficient injury to meet Article III. n92 But the unequal treatment must be personal. In Allen v. Wright, n93 the Court held that merely being part of a group which is being treated unequally, without a showing that the individual bringing suit was somehow personally treated in an unequal way, is not enough. n94


Similarly, the Supreme Court has not permitted citizens to sue when they perceive the government acting in an unconstitutional fashion. In Schlesinger v. Reservists Committed To Stop The War, n95 the Court held that citizens could not sue merely because they believed that the government was violating the Incompatibility Clause of the Constitution n96 by allowing members of Congress to remain in the armed forces reserves, characterizing it as an abstract interest. n97 In a suit to have the CIA Act declared unconstitutional because it permitted the CIA to receive funds without providing a detailed statement of account in violation of the Constitution, n98 the Court held that the plaintiff’s injury as a citizen in being unable to intelligently follow the actions of his government did not qualify under Article III. n99 And in Valley Forge Christian College v. Americans United For Separation Of Church And State, n100 the Court rejected a challenge by a group of citizens dedicated to the separation of church and state to the grant of land to a religiouseducational organization, holding that individuals did not have a personal right to a separationist government or a spiritual stake in the Establishment Clause. n101

No doubt each of the plaintiffs in Schlesinger, Richardson, and Valley Forge suffered some kind of utilitarian injury. They objected to the governmental violation of law (as well, no doubt, as the policies those violations seemed to be implementing), and no doubt probably suffered some form of mental distress. But impersonal mental distress does not do the trick under Article III. The Supreme Court, concerned about an avalanche of lawsuits that might result, has limited standing to those who suffered mental distress as a consequence of some “personal” treatment.


One can understand the Court’s concern. The “particularity” requirement is weak enough as it is. n102 As Justice O’Connor noted in Allen, a contrary holding with respect to the stigma of inequality would give standing to members of the disfavored group in Hawaii to challenge policies in Maine. n103 But the result is that the measure of whether the injury meets constitutional standards has very little to do with the injury itself, but rather with the way the injury was inflicted. My mental distress, after all, may be just as strong when I see someone else being mistreated as it is when I am mistreated. The difference between what is and what is not an injury “in fact” sufficient for Article III purposes must depend on something other than the injury itself. n104

2. The Statutory Rights Gambit

To distinguish between mental distress that the law will recognize as an injury “in fact,” and that which it will not, the Court sometimes uses the term “cognizable” injury in fact. Thus, in Allen v. Wright, the Court stated that the “stigmatic” injury suffered by the plaintiffs was not “judicially cognizable” n105 –an expression that, in that instance, merely referred to the fact that it was not an injury that met the Article III “particularity” requirement. But the Court has used the word “cognizable” in another sense as well, referring to the fact that injuries can become “judicially cognizable” because a law has been passed which provides for redress for that injury. n106 This is what I have characterized as the “statutory rights gambit.”


The Court has repeatedly said that the injury “in fact” requirement can be met by the invasion of a legal right created by law. n107 Although the Court seems usually to be referring to a federal statute passed by Congress, the Court has also indicated that the “legal right” might be created by a judicial decree n108 or a state statute. n109

But in defining a “legal right” the invasion of which can constitute an injury for Article III purposes, is Congress limited at all? Is the doctrine needed (or appropriate) only for “injuries” that are not real injuries at all, or do some “real” (i.e., particularized, palpable and not abstract) injuries still require congressional assistance before they qualify under Article III? And if certain particularized and concrete “injuries” need congressional assistance before they become “cognizable,” what is it that distinguishes those injuries from the injuries that need no congressional assistance? In other words, why are these injuries not Article III injuries to begin with?

As we shall see, the Court has not given consistent answers to these questions over time. Case law has, in fact, given us two different visions of the “statutory rights gambit.” The first holds that there are some actual (or “de facto”) injuries that do not make the grade as Article III injuries without statutory assistance, and that need a congressional boost. This vision, in the version recently revived in Defenders of Wildlife, also limits Congress to de facto injuries when defining rights. n110 The second vision, the one primarily employed in Fair Housing Act cases, holds that Congress can create any right it chooses regardless of whether we would consider the invasion of that right an “injury” in any true sense. Under this vision, if Congress gives us a right not to see the color purple, we have standing to sue when we see that color regardless of whether our seeing the color purple has injured us in any meaningful sense.


a. The Early Years

The first vision has roots in Justice White’s concurrence in Trafficante n111 and in Warth v. Seldin. n112 In Warth, the Court rejected a claim that certain plaintiffs had standing to sue for violations of the Equal Protection Clause of the Fourteenth Amendment n113 because they had been deprived of the benefits of interracial association n114 –precisely the kind of injury upheld in Trafficante. The Court stated that there was no Fair Housing Act claim involved and therefore the injury caused by the deprivation of the benefits of interracial association was not a “judicially cognizable injury.” n115 Warth relied upon Justice White’s concurrence in Trafficante for its holding, specifically citing it for the proposition that “Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of a statute.” n116 While this marks the embryonic development of the statutory rights gambit, it started out its life in a rather confused state (a state it has never quite outgrown). The Warth Court found that the Fair Housing Act had granted residents of housing facilities a “right to be free from the adverse consequences” of discrimination. n117 This sounds very much like a right to be free from an injury, which seems like a rather odd definition for a “right.” Moreover, it naturally begs the question: what is the difference between an “adverse consequence” (which to the uninitiated sounds very much like an injury) and an “injury-in-fact”? If they are the same, of course, then the creation of a “right” not to be injured serves the

[*573] same purpose as expanding standing to the Article III limits (and casts doubt upon my suggestion that there are two distinct ways in which Congress can affect standing). n118

The underlying supposition of Warth is that there are actual, particularized injuries which simply do not cut it as Article III injuries-in-fact without the assistance of a statute. So too, injuries that can be recognized without a statute are a subset of all possible Article III injuries. (Thus, Justice White’s assertion in Trafficante that the injuries there would not have met Article III requirements without the existence of the Fair Housing statute). The injuries that can be recognized by a statute may be real and particular injuries, just like the injuries in Trafficante, but they need that statutory assistance to qualify under Article III. The statutory assistance is to create a “right” not to be injured in ways that the Constitution and/or the common law do not recognize.

As discussed in somewhat greater detail in the discussion of Lujan, this vision of the statutory rights gambit runs into several problems (not the least of which is the case law supporting a different vision). For the moment, one might note that there is nothing in the reported cases which tells us what injuries make it as Article III injuries without statutory assistance, and why they do and others do not. n119 Indeed, as far as I am aware, those who espouse this vision of the statutory rights gambit have never explained this distinction.

Even more curiously, Warth states that the substantive law involved will affect the viability of an injury “in fact.” Indeed, while insisting that standing was an issue apart from the merits, the Court specifically held that it will often turn on the nature and source of the claim asserted n120 –statements that seem to conflict with one another and that require us to strain language (“apart from the merits”?) to make sense of the opinion. n121

Consider, for example, a woman denied housing because of her sex in 1967 (one year prior to the passage of the Fair Housing Act). n122 It seems

[*574] bizarre to say that the woman lacked standing because she had not suffered a “cognizable” injury; n123 our intuition would suggest that she simply lacked a cause of action. And if the word “cognizable” is intended to mean nothing more than that the plaintiff has no cause of action, it really makes no sense to characterize it as a standing issue. That, of course, is precisely the point that the critics of modern standing doctrine make, i.e., that “standing” really is a question on the merits, and should be treated as such. n124


b. A Different View Develops

As noted earlier, the Warth vision of the Fair Housing Act as providing a “right” for those who had suffered “adverse consequences” of discrimination appears to have been abandoned in footnote 9 of Gladstone. n125 There, as we have seen, the Court seems to have rejected the premise that those suffering from the denial of the benefits of interracial neighborhoods had had their “rights” violated, and returned to the Trafficante majority theme that all those “injured” (for Article III purposes) had standing to sue even without a violation of a “right.” But this reversal did not affect the viability of the statutory rights gambit in general, which continued to be cited.

Indeed, shortly after Gladstone, the Court decided Havens Realty Corp. v. Coleman, n126 in which a different vision of the statutory rights gambit is first applied. In Havens Realty, two of the plaintiffs were “testers,” i.e., individuals “who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful steering practices.” n127 The complaint alleged that a white tester was told that certain apartments were available, but that the black tester was not told of their availability. n128 In considering whether those plaintiffs had standing, the Court found that in passing Section 3604(d)–which makes it illegal to make a misrepresentation about the availability of housing “to any person because of race, color, religion, sex or national origin” n129 –“Congress . . . conferred on all ‘persons’ a legal right to truthful information about available housing.” n130 Because the black tester alleged that he had received

[*576] false information because of his race, he was deemed to have standing. n131 Since the white tester did not allege that he had been given false information, he did not have standing. n132

A few notes about Havens Realty and the second vision of the statutory rights gambit are in order. First, the Court did not look for any utilitarian injury. It did not look for any “adverse consequence” or injury, as in Trafficante. It made no effort to determine whether the testers were worse off in some factual sense, i.e., whether they had suffered some economic or noneconomic injury “in fact.” To the contrary, it held that if “the tester . . . approached the real estate agent fully expecting that he would receive false information,” it would not “negate the simple fact of injury within the meaning of section [36]04(d).” n133 Under common law claims like fraudulent inducement, we normally require plaintiffs to show that they relied on the false information because, without such a showing, it seems unlikely that the plaintiff suffered any injury. As interpreted in Havens Realty, section 3604(d) eliminates that requirement.

Judge Posner and several commentators have noted that the idea that such an individual has suffered a factual injury is difficult to swallow. n134 I would go further and state that, in at least some instances, the tester might be better off after having received the false information. The tester, in general, is an individual committed to eradicating discrimination from the field of housing, and may truly believe that the persons being “tested” engage in illegal discrimination but have yet to be detected. It is not altogether unreasonable to assume that a tester might be elated or receive some other form of “mental joy”–or whatever the name for the opposite of mental distress is–upon

[*577] learning that his or her efforts have contributed to the ferreting out of evil. n135

Second, by using the statute to assume an injury “in fact,” the Court sidestepped the analysis in Trafficante and Gladstone, in which the Court discerned various actual injuries to the plaintiffs (the loss of the benefits of interracial association, a diminished tax base, etc.). It would not have been impossible to fit Havens Realty into that scheme if the plaintiffs alleged an injury like mental distress or the stigma from having been treated unequally–the kind of “dignity tort” that the Court will recognize as an injury “in fact.” n136 But that, of course, would have required that the plaintiffs to allege and prove that they did suffer mental distress, n137 a step that this second vision of the statutory rights gambit avoids. n138


Third, Havens Realty, when read with Gladstone, makes clear that Congress has two different methods of modifying the standing rules, each one independent of the other. Footnote 9 of Gladstone makes plain that Congress can remove prudential barriers without creating any “legal rights” the violation of which would constitute an injury for Article III purposes. n139 And Havens Realty makes clear that Congress can create a “legal right” regardless of whether the “prudential barriers” have been removed. n140

Recognition of the fact that Congress has two different means of modifying the rules of standing lends some perspective to the oft-quoted phrase that the “injury-causation-redressability” requirement is a constitutional minima that Congress cannot abrogate. n141 When Congress wants to simply eliminate certain standing rules, it is so limited. It can only eliminate prudential barriers. But if Congress uses the statutory rights gambit, and creates a legal right the violation of which will meet the injury “in fact” requirement, it can indeed “abrogate” the Article III minima because the Court will not examine the “factual” existence of an “injury” beyond the violation of a legal right. n142


Concededly both the Supreme Court and the lower courts n143 have used fuzzy language on occasion which confuse the two methods of modifying the standing rules. Moreover, after Lujan v. Defenders of Wildlife, the confusion has only increased. n144 Nonetheless, the different methods of modifying the standing rules are particularly important for determining standing under the Fair Housing Act since the Court has applied both of them.

Finally, it deserves mention that the method of statutory interpretation in Havens Realty was very much a “plain meaning” interpretation. It would not have been altogether unreasonable to interpret the word “person” in Section 3604(d) to mean a person with a real interest in housing. The Court did not go that way. Congress said “any person,” it must have meant “any person,” and more importantly for purposes of Havens Realty, it must have wanted to confer the legal right in question upon “any person.”

* * *

In finding that the Fair Housing Act either has removed prudential barriers or has created a “legal right,” the Court is presumably just interpreting the statute. That is, for a case of statutory standing, the Court is trying to do what the critics of modern standing doctrine want it to do: make a determination on the merits as to whom Congress wanted to give standing. Thus, critics argue that the entire enterprise of determining “standing” is of no particular use here, and the Court would be better off simply recognizing that it is making a “merits” determination. n145 Moreover, by failing to comprehend the relationship between standing and the “merits,” the Court has

[*580] made some questionable calls, n146 and has led the lower courts to even more questionable calls.

c. The Statutory Rights Gambit After Defenders

In 1992, the Court decided Lujan v. Defenders of Wildlife, n147 a case that Professor Sunstein has said “may well be one of the most important standing cases since World War II” and, in terms of number of statutes apparently invalidated, “ranks among the most important in history.” n148 Defenders involved an interpretation of Endangered Species Act of 1973 by the Interior Department that limited the obligation which the statute imposed upon all federal agencies, viz., to consult with the Interior Secretary to insure that all agency actions were not likely to jeopardize the continued existence of any endangered species, n149 to agency actions taken in the United States. Plaintiffs challenged that interpretation as inconsistent with the statute. n150

The Court first held that the plaintiffs did not have a specific, concrete, particularized injury “in fact,” and a plurality further held that even if such an injury could be discerned, it was not redressable. n151 In the part of the decision most relevant to the discussion here, the Court then considered a provision of the statute that permitted “any person” to commence a civil suit to enjoin anyone violating the statute. n152 The Court held that Congress did not have the authority, under Article III, to grant standing to individuals who had suffered no injury in fact. n153 Specifically, the Court held that in

[*581] defining “injury,” Congress was limited to creating Article III de jure injuries from previously existing de facto injuries. n154

The consequences of this decision would be particularly severe for the Fair Housing Act. As already noted, the Court in Havens Realty did nothing to ascertain whether the false information suffered by the testers was a previously existing de facto injury, and it is far from clear that it was. As Dean Nichol has noted, it does not seem that black testers like those in Havens Realty would have standing if Scalia’s opinion in Defenders becomes the standard analytic framework for statutory standing. n155 If he is right, then Professor Schwemm’s prediction in 1980–that the chances were slim that “the Court would ever hold that a plaintiff’s injury is covered by Title VIII but that it is inadequate to meet article III requirements” n156 –may be sorely tested.

In addition to being difficult to reconcile with the holding of Havens Realty, the opinion in Defenders appears to be inconsistent with language in certain earlier opinions as well. For example, in Linda R.S. v. Richard D., n157 the Court stated in dicta that the requirement of an actual injury was

[*582] needed “at least in the absence of a statute expressly conferring standing” and that the invasion of a statutorily-created right “creates standing, even though no injury would exist without the statute.” n158

Justice Scalia’s decision is also difficult to reconcile with the Court’s previous cases recognizing the propriety of nominal damages. n159 Nominal damages, after all, are a recognition of the fact that the plaintiff has not suffered an “injury,” not even mental distress, for which we can provide damages. Rather, the violation of law is considered sufficiently important that a declaration of rights is deemed appropriate. n160

I do not, however, view the Defenders decision as quite the apocalypse that others do. n161 Although Justice Scalia’s opinion was joined by five other Justices for its discussion of the “citizen standing” provision, Justice Kennedy (joined by Justice Souter) wrote separately to set forth his “interpretation” of the majority’s decision. Whether or not the word “interpretation” accurately characterizes Justice Kennedy’s opinion, his opinion obviously carries significant weight because without him and Justice Souter, Justice Scalia’s opinion would have lacked a majority. n162 Justice Kennedy’s concurrence saw the flaw in the statute in a somewhat more limited way. Justice Kennedy

[*583] wrote that Congress could define any sort of “statutory injury,” so long as it was “concrete,” n163 but that it must “identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” n164 Congress can create a legal right not to see the color purple, this view seems to hold, but it must make it clear that that is the right whose invasion creates an injury affords standing. It cannot simply declare an aversion to the color purple and give all citizens the right to sue when someone violates its antipurple law. In Kennedy’s view, the flaw in the Endangered Species Act was that it did not identify the “injury” that was supposedly inflicted upon any persons by a violation of the Act. n165

In this regard, Justice Kennedy did not make a significant change in the statutory rights gambit. He did not, for example, limit the injuries that Congress could define to pre-existing de facto injuries, he merely wanted a clear statement of what the injury is. From this view, Congress cannot merely grant individuals a right to standing without explaining why, and the decision is not inconsistent with prior precedent. n166 Justice Kennedy may have an

[*584] overly formalistic view of what Congress must do, but it is a formalism that, once known, is fairly easy to meet. n167

While this interpretation addresses some of the concerns raised by the critics of Defenders, it must be conceded that Justice Kennedy’s view creates some anomalous results in statutory interpretation. Where Congress said very little about standing, as in Havens Realty, the Court was willing to interpret a law that prohibited a certain set of acts against “any person” as conferring a “right” on such individuals, the violation of which would constitute an injury for purposes of Article III, and which would thus give standing to those whose “rights” were violated. Yet where Congress made a specific statement about standing, as in Defenders, the Court was not willing to accept it because there was no discussion of “injury” or “rights.” Thus, under Justice Kennedy’s concurrence, and perhaps in considering the Supreme Court’s jurisprudence as a whole, it appears that the best way for Congress to authorize broad standing is to say as little about it as possible.

C. Causation

The controversial decisions concerning the second element of Article III standing, causation, have involved actions challenging government action, where the Court expresses doubt that the illegal acts that the governmental defendants are allegedly perpetrating are causing the injury about which plaintiffs are complaining. n168 Where damages against private parties are in- [*585] volved, the concerns are far less substantial. n169 Presumably, all that would be needed for causation in such cases is the same sort of showing involved in most tort cases: proximate cause, i.e., “but for” causation plus a limited causal chain. n170 In a private damages cases, the only damages that should be recovered are those caused by the defendants’ acts (or those that are specifically authorized by statute or common law, like punitive damages or attorneys’ fees). If a plaintiff has some element of damages caused by defendants’ acts, he or she has met Article III requirements. n171


In Ragin v. Harry Macklowe Real Estate Co., n172 the Second Circuit took the Havens Realty paradigm and concluded that the Fair Housing Act granted all persons a right not to see advertising which indicates an illegal preference. This section examines that decision, and compares its

[*586] interpretation of the Fair Housing Act with the interpretation of similar statutes.

Harry Macklowe involved allegations that the defendant, a leasing and managing agent for two luxury apartments in Manhattan, placed advertisements in The New York Times. n173 These advertisements depicted human models, most of whom were white, n174 and were said to violate Section 3604(c) n175 of the Fair Housing Act by indicating a preference in the sale or rental of housing on the basis of race. n176 The plaintiffs were four black individuals who saw the advertisements and an organization whose mission was to eliminate discrimination from the New York housing market. n177 For purposes of discussing the standing of the individual plaintiffs, the court assumed that they were not actively looking for apartments at the time that they viewed the advertisements placed by the defendants. n178

The court went through the Supreme Court’s analysis in Havens Realty and concluded that “there is no significant difference between the statutorily recognized injury suffered by the tester in Havens Realty and the injury suffered by the [individual plaintiffs], who were confronted by advertisements indicating a preference based on race.” n179 The court concluded that the district court (which had reached the same conclusion) n180 was “constrained to find that the individual plaintiffs had standing.” n181

Even on its own terms, that is, as an interpretation of the decision of the Supreme Court in Havens Realty, the decision of the Second Circuit is hardly a tour de force. In Havens Realty, the Court emphasized that Section 3604(d) prohibited the provision of false information to “any person,” and the Court relied on this language to conclude that Congress wanted to grant a “right” to precisely that class of people, i.e., persons. n182 Section 3604(c) contains no

[*587] reference to “persons” or any subset thereof, and is, indeed, the only subsection of Section 3604 that has no such reference. The Court could conceivably have concluded that the absence of any specifically defined group to whom the duty of Section 3604(c) was owed distinguished that subsection from the other provisions of Section 3604, and required a different result as to standing.

Professor Winter has made a similar point in trying to explain certain Supreme Court decisions on standing. Professor Winter asks why the Supreme Court has found “informational rights” (the deprivation of which will give an individual standing) under the Fair Housing Act and the Freedom of Information Act, n183 but, at the same time, has held that an individual deprived of information requested pursuant to the statement and account clause of the United States Constitution n184 has no standing. n185 Professor Winter suggests that the differing results might be explained by the fact that the statement and account clause, unlike the FHA and FOIA, only states what the government should do and does not address the problem of individual persons who ask for information. n186 Similarly, Section 3604(c) only states what is unlawful. It does not state to whom the protection is afforded.

More importantly, by focusing on “rights” granted by the statute (as Havens Realty instructed), the analysis of the Second Circuit in Harry Macklowe seems to obscure the underlying goal of a statutory standing inquiry, viz., whom did Congress want to enforce the provision in question? In Havens Realty, the Court focused on the words “any person” (which specifically described those to whom improper statements could not be made) and concluded, without going past those words, that a “right” had been granted and that Congress wanted all such individuals to have standing. In Harry Macklowe, the Second Circuit reached a similar conclusion about congressional intent without the assistance of those words. But is it really a sensible conclusion that Congress wanted everyone who reads a newspaper to

[*588] have standing? Should not a court want a significant amount of clarity in the statute or conclusive legislative history before reaching that conclusion?

Harry Macklowe is also intriguing, as was Havens Realty, for the road not taken. Each of the individual plaintiffs in Harry Macklowe alleged that he or she had suffered emotional damages, and were awarded $ 2500 in compensatory damages. n187 If such emotional damage constituted an injury “in fact,” then the court could have used simple Trafficante-Gladstone analysis, and avoided all mention of “rights.” n188 After all, even if the “right” not to see discriminatory advertisement is limited to those actually seeking housing, it seems safe to assume that someone’s rights were violated by the discriminatory advertising at issue. Footnote 9 of Gladstone does the rest.

Along the same lines, it is curious that the Second Circuit, while citing Defenders for the proposition that an injury may exist solely by virtue of the violation of a right created by statute, n189 made no mention of the suggestion in Defenders that only preexisting de facto injuries could be used in the creation of such rights. In Harry Macklowe, the better part of valor was to avoid any investigation of the amorphous contours the Supreme Court has given to “factual” injuries.

Given the statutory interpretation given to Section 3604(c) by the Second Circuit, it is once again instructive to examine the interpretations given to similar language in similar statutes. Both the Section 704(b) in Title VII n190

[*589] and Section 4(e) of the ADEA n191 prohibit discriminatory advertisements in language quite similar to that in Section 3604(c). Yet the lower courts–admittedly prior to Havens Realty–have held that an individual must have an actual interest in the employment in question and be deterred by the advertisements in order to have standing under the discriminatory advertising provisions of the employment discrimination statutes. n192 Perhaps more striking is the fact that the EEOC, hardly an organization that one would suspect of unduly narrowing plaintiffs’ rights in the employment discrimination area, n193 maintains the same position, and has maintained the same position both before and after Havens Realty. n194


The Lanham Act provides an even more interesting contrast. Section 43(a) of the Lanham Act prohibits any person from “using . . . any . . . false or misleading description of fact, or false or misleading representation of fact, which– (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities or geographic origin of his or her or another person’s goods, services, or commercial activities[.]” n195 It further creates a private right of action for the benefit of “any person who believes that he or she is or is likely to be damaged by such act.” n196 That is, the Lanham Act is a law against false advertising, and specifically grants standing to “damaged” (as opposed to aggrieved or injured) persons. Yet not only have the courts not created a “right” to truthful advertising from the Lanham Act, a violation of which would give standing to any reader, most courts (with the Second Circuit leading the way) limit standing to competitors of the defendant, and do not even allow actual purchasers of the product standing. n197

* * *

Once again, the statutory standing decisions in the Fair Housing Act seem to reach peculiar results which are significantly different from the interpretation of similar or nearly identical language in other statutes. In the last section of this article, I will briefly explore some suggested rules for interpreting standing provisions of statutes that would result in more sensible (or, at least, more uniform) decisions. Prior to that, however, I examine one other area of Fair Housing Act standing: the standing granted to organizational plaintiffs, where the “citizen standing” ostensibly killed by Defenders of Wildlife has snuck in the back door.


Fair Housing Act litigation frequently has been brought by “fair housing organizations,” private organizations dedicated to the principle of non- [*591] discriminatory housing. n198 In general, organizations are permitted standing on two different grounds: as a representative of its members (third-party standing) or based upon an injury to itself (first-party standing). For several reasons, fair housing organizations usually seek standing on the latter ground. n199

The standard for first-party standing was set forth in Havens Realty. There the Court ruled that “first-party” standing for organizations involves “the same inquiry as in the case of an individual,” n200 presumably the tri-partite inquiry required by Article III. Since the subsequent analysis of the Court has been used (or, in my opinion, misused) extensively, it deserves full quotation:

In the instant case, [plaintiff’s] complaint contained the following claims of injury to the organization:

“Plaintiff . . . has been frustrated by defendants’ racial steering practices in its efforts to assist equal access to housing through counseling and other referral services. Plaintiff . . . has had to devote significant resources to identify and counteract the defendant’s racially discriminatory policy.”

If, as broadly alleged, [defendants’] steering practices have perceptibly impaired [plaintiff’s] ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable

[*592] injury to the organization’s activities, with the consequent drain on the organization’s resources, constitutes far more than simply a setback to the organization’s abstract social interests. n201

It would be best to concede at the outset that neither the complaint quoted by the Court, or the Court’s opinion, is a model of clarity. n202 There are at least the following four interpretations of the latter:

1. Because of the defendants’ discriminatory policies, people were confused about their rights under the Fair Housing Act. Plaintiff-organization was obligated to spend more money educating and counselling those individuals than it otherwise would have.