Rachel Evans v. James T. Lynn v. The Town of New Castle, Appellee-Intervenor

ON REHEARING EN BANC

Before KAUFMAN, Chief Judge, and MOORE, FEINBERG, MANSFIELD, MULLIGAN, OAKES, TIMBERS, GURFEIN, VAN GRAAFEILAND and MES-KILL, Circuit Judges.

MOORE, Circuit Judge:

Some three weeks after a divided panel of this Court reversed Judge Pollack’s dismissal of appellants’ complaint1 the Supreme Court announced its decision in Warth v. Seldin,2 a case which originated in this Circuit.3 Thereupon the federal appellees urged the reconsideration of this case en banc;4 citing both the impact of Warth on the earlier panel holding, and the importance of that holding to principles of standing generally. A majority of the en banc panel felt similarly, and a rehearing was ordered on August 11, 1975, pursuant to F.R.App.P. 35(a). The appeal was submitted without further oral argument.

In light of the Supreme Court’s opinion in Warth v. Seldin, supra, and the many recent Supreme Court decisions on the subject of “standing” — or, more accurately, the lack thereof — referred to in the dissent from the original panel’s decision, 537 F.2d 571, we now hold that the appellants lack standing to maintain this action because they have sustained no injury as a consequence of appellees’ actions. Accordingly, we affirm the district court’s dismissal of the complaint as to all appellees.5

I.

The facts, insofar as they bear on appellants’ standing to sue, are substantially undisputed, and have been fully set forth in the earlier opinions and dissent. A brief summary will suffice at this point.

In 1969, the King-Greeley Sewer District (“District”), a special purpose district within the Town of New Castle (“Town”) in Westchester County (“County”), sought federal aid from the Department of Housing and Urban Development (“HUD”) for the construction of a sanitary sewer facility in the hamlet of Chappaqua. In 1972, the Town sought federal funds from the Department of Interior’s Bureau of Outdoor Recreation (“BOR”) in order to acquire Turner Swamp (“Turner”) for preservation as a wildlife area and public park. Both of these grants were approved. Thereafter the Tri-State Regional Planning Council (“Tri-State”), a regional “clearinghouse” in the area for coordination and review of federal grants, declined to review the propriety of the grants.

Appellants — who do not dispute the need of Chappaqua’s residents for a sewer or the desirability of preserving Turner for public *590recreational use — filed an action in federal district court claiming that the grants amounted to support of the Town’s primarily white, single-family housing pattern in violation of the federal government’s affirmative duty to eliminate discrimination and encourage fair housing opportunities in the United States.6 Appellants allege that they are persons “aggrieved” by the action of the federal agencies and Tri-State within the meaning of the Administrative Procedure Act, 5 U.S.C. § 702, and the 1968 Civil Rights Act, 42 U.S.C. § 3610(a) and (d). Standing to sue is asserted on the ground that appellants are low and moderate income individuals7 belonging to minority groups who have suffered, as a result of the federal agencies’ “absence of meaningful civil rights enforcement”,8 a lessening of “federal impetus”9 to encourage integration and fair housing in the County. Appellants make no specific allegations of damage.

Appellants do not reside in the Town. They make no claim that they have ever sought or been refused housing in the Town. They have no interest in any Town property, or connection with any past or proposed housing project in the Town. They do not allege that either of the challenged projects will discriminate against them. They make no claim that the federal funds were diverted from any actual or proposed housing project that could have been of benefit to them. In short, they allege no specific, personal, adverse results whatsoever from the grants for sewer and park construction.10

II.

The aid of the federal courts is not freely available to all who seek it. Access to the courts is restricted by judicial discretion,11 regulated by statute,12 and subject to the overriding limitation13 of Article III of the Constitution that the federal courts decide only cases and controversies.14 The case and controversy requirement is a jurisdictional limitation which can be enlarged neither by act of Congress nor by the courts sua sponte. Because it is jurisdictional in nature and Constitutional in origin, it is a “threshold requirement”15 which must be satisfied before the federal court can take cognizance of any claim. As was recently stated by the Supreme Court in Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975):

The exercise of judicial power under Art. Ill of the Constitution depends on the existence of a case or controversy. As the Court noted in North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 a federal court has neither the power to render advisory opinions nor “to decide questions that cannot affect the rights of litigants in the case before them.” Its judgments must resolve “ ‘a *591real and substantial controversy admitting of specific relief through a decree of a conclusive character; as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’” Ibid, quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1987). (Emphasis supplied).

The hallmark of a case or controversy is the presence of adverse interests between parties who have a substantial personal stake in the outcome of the litigation.16 Standing to sue, in its Constitutional sense, is the showing by a plaintiff that his particular grievance meets this standard,17 the “essence”18 of which is the presence of “injury in fact”19 suffered by the plaintiff as a result of the defendant’s actions.20

Mere interest in, or concern over, a prospective defendant’s acts — no matter how deeply felt — is insufficient to demonstrate injury in fact.21 What must be shown is a “specific and perceptible harm”22 — a “concrete injury”23 actually suffered by the particular plaintiff,24 or else clearly imminent,25 which is capable of resolution and redress in the federal courts.26 Abstract or hypothetical injury is not enough:27

*592Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency’s action. And it is equally clear that the allegations must be true and capable of proof at trial. United States v. SCRAP, supra, at 412 U.S. 688-9, 93 S.Ct. at 2416 (emphasis supplied).

While a particular statute may confer rights upon a' party, it cannot abrogate the Constitutional requirement that a plaintiff in fact suffer some injury due to a breach of the law in order to maintain an action in the federal courts.28 Whether or not a plaintiff falls within the “zone of interests”29 protected by the statute— whether he can, in other words, rightfully assert whatever rights are granted by statute — is an entirely separate inquiry from the question of whether injury has been suffered per se. When it rejected the notion of “legal interest” as a test for determining standing to sue, the Supreme Court held in Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970):

The “legal interest” test goes to the merits. The question of standing is different. It concerns, apart from the “case” or “controversy” test, thé question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. 397 U.S. at 153, 90 S.Ct. at 830.

Recognition of the practical need for a “zone of interests” type determination was evidenced by the Court’s comment, in the same case, that “[wjhere statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action.”30 However, as Chief Justice Burger subsequently made clear, such an inquiry does not supersede or in any way encroach upon the threshold determination of injury in fact.31

Although we there [referring to Association of Data Processing Service Org., Inc. v. Camp, supra ] noted that the categories of judicially cognizable injury were being broadened, we have more recently stressed that the broadening of categories “is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.” Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972). And, in defining the nature of that injury, we have only recently stated flatly: “Abstract injury is not enough.” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 218, 94 S.Ct. 2925, 2931, 41 L.Ed.2d 706 (1974). (citation omitted; emphasis in original).

The Constitutional limitation imposed by the case or controversy requirement has *593been specifically applied to the “person aggrieved” language of section 810(a), 42 U.S.C., of the Civil Rights Act of 1968, on which appellants primarily rely to support their claims of standing. In Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), the Supreme Court held that where housing discrimination was alleged, the language of § 810(a) reflected “a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.”32 The petitioners’ standing to sue was upheld on the express ground that

Individual injury or injury in fact to petitioners, the ingredient found missing in Sierra Club v. Morton [supra] is alleged here. 409 U.S. at 209, 93 S.Ct. at 367 (emphasis supplied).

III.

Any doubt that the appellants in this case have alleged only abstract injury which is constitutionally insufficient to sustain their standing to sue, has been resolved by the Supreme Court’s decision in Warth v. Seldin, supra, Warth involved a Constitutional challenge to the zoning practices in the suburban town of Penfield, New York. Among the petitioners were individuals who asserted standing to sue on the basis of their status as low and moderate income individuals who were members of a minority group, and were suffering from the town’s exclusionary pattern of housing which preserved it as a primarily white enclave of single-family dwellings33 — the same civil rights allegations which are made by appellants in the present case.34 *594Writing for the Court, Mr. Justice Powell reiterated the primacy of Article Ill’s requirement of injury in fact irrespective of any right of action granted by statute,35 and concluded that the petitioners had failed to allege such injury. Because the Court’s analysis bears so directly on the instant case, we quote at length from the Warth opinion.

. [W]e turn first to the claims of Petitioners Ortiz, Reyes, Sinkler, and Broadnax, each of whom asserts standing as a person of low or moderate income and, coincidentally, as a member of a minority racial or ethnic group. We must assume, taking the allegations of the complaint as true, that Penfield’s zoning ordinance and the pattern of enforcement by respondent officials have had the purpose and effect of excluding persons of low and moderate income, many of whom are members of racial or ethnic minority groups. We also assume, for purposes here, that such intentional exclusionary practices, if proved in a proper case, would be adjudged violative of the constitutional and statutory rights of the persons excluded.
“But the fact that these petitioners share attributes common to persons who may have been excluded from residence in the town is an insufficient predicate for the conclusion that petitioners themselves have been excluded, or that the respondents’ assertedly illegal actions have violated their rights. 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. Unless these petitioners can thus demonstrate the requisite case or controversy between themselves personally and respondents, “none may seek relief on behalf of himself or any other member of the class.” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). See, e. g., Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 550-551, 7 L.Ed.2d 512 (1962).
In their complaint, petitioners alleged in conclusory terms that they are among the persons excluded by respondents’ actions. None of them has ever resided in Penfield; each claims at least implicitly that he desires, or has desired, to do so. Each asserts, moreover, that he made some effort at some time, to locate housing in Penfield that was at once within his means and adequate for his family’s needs. Each claims that his efforts proved fruitless. We may assume, as petitioners allege, that respondents’ actions have contributed, perhaps substantially, to the cost of housing in Penfield. But there remains the question whether petitioners’ inability to locate suitable housing in Penfield reasonably can be said to have resulted, in any concretely demonstrable way, from respondents’ alleged constitutional and statutory infractions. Petitioners must allege facts from which it reasonably could be inferred that, absent the respondents’ restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease in Penfield and *595that, if the court affords the relief requested, the asserted inability of petitioners will be removed. Linda R. S. v. Richard D., supra.
We find the record devoid of the necessary allegations. .
******
Petitioners here rely on little more than the remote possibility, unsubstantiated by allegations of fact, that their situation might have been better had respondents acted otherwise, and might improve were the court to afford relief.
We hold only that a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the courts’ intervention. Absent the necessary allegations of demonstrable, particularized injury, there can be no confidence of a “real need to exercise the power of judicial review” or that relief can be framed “no [broader] than required by the precise facts to which the court’s ruling would be applied.” Schlesinger v. Reservists Committee to Stop the War, supra, 418 U.S., at 221-222, 94 S.Ct., at 2932.” Warth v. Seldin, supra, at 422 U.S. 502-4, 507-8, 95 S.Ct. at 2207-8, 2209-10 (footnotes omitted; emphasis supplied in part; brackets in original).

The same rationale applies with equal, if not greater, force to the case at bar. Here, appellants have failed to allege any facts whatsoever indicative of injury suffered by them as a result of the grants to the District and the Town. They do not claim, as did the petitioners in Warth, that they unsuccessfully sought housing in the Town, or that the Town arbitrarily rejected housing proposals of benefit to them. They claim only that, had the grants not been approved, the monies could conceivably have gone to some other, as yet totally imaginary project in the County which might have had the result of making more housing available to them. This goes beyond even the realms of “remote possibility” which were rejected in Warth. It amounts to pure speculation and conjecture and, needless to say, it is completely inadequate to demonstrate the requisite injury under Article III.

We note that, as in Warth, the injunctive relief sought by the appellants here would not likely result in any improvement of their housing status. Indeed, since the appellants here do not allege that the grants deprived them of any actual housing opportunities — in contrast to the Warth petitioners, who claimed that they had been deprived of the benefits of at least two proposed housing developments — there is even less likelihood in this case that an injunction restraining the federal agencies would result in any betterment of appellants’ housing status in the County. The link between the ill allegedly suffered and the remedy requested is so tenuous as to approach the non-existent.

IV.

The Supreme Court has warned repeatedly in the past of the hazards in straying from the Constitutional requirement of a case or controversy.36 Absent adherence to the Constitutional mandate, courts become forums for the vindication of personal values and political preferences, usurping the legislative branch as the focus for public debate and lobby, and usurping as well the executive’s primary responsibility for the implementation of federal law. Federal courts cannot, consistent with the Constitution, exercise their jurisdiction to vindicate litigants’ chosen causes;37 they are empowered only to grant specific relief in response *596to, and in order to remedy, a particularized showing of individual injury.38*

This is not the time, or especially the place, to attempt a general dissertation on judicial supervision of the functioning of administrative agencies. To guard against any such danger it may be tritely said today that the draftsmen of the Constitution in 1789 were not altogether unaware of little-changing human tendencies to endeavor to seize power. The well-defined role assigned to the judiciary is to be found in Article III of that Constitution. To avoid a possible tendency to seek declaratory judgments or advisory opinions on matters possibly hypothetical, the role of the courts under Article III is confined to passing upon an actual “case or controversy”. Even within these restricted limits the courts over the years have not suffered from want of business.

Two recent decisions of the Supreme Court would seem to illustrate the continued vitality of Article III and the reluctance of that Court to become an arbiter of all human ills. They are Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), and Hills v. Gautreaux, - U.S.-, 96 S.Ct. 1538, 47 L.Ed.2d 792, 44 LW 4480 (1976). The Supreme Court in Milliken reversed the Court of Appeals’ affirmance 39 of a multi-district desegregation order, on the grounds that the order constituted an impermissible — indeed, unconstitutional — exercise of the federal courts’ equitable powers.40

In Gautreaux the Court reiterated the importance of this consideration in the strongest language:

Although the Milliken opinion discussed the many practical problems that would be encountered in the consolidation of numerous school districts by judicial decree, the Court’s decision rejecting the metropolitan area desegregation order was actually based on fundamental limitations on the remedial powers of the federal courts to restructure the operation of local and state government entities. That power is not plenary. It “may be exercised ‘only on the basis of a constitutional violation.’ ” 418 U.S. at [738, 94 S.Ct. at 3124, 41 L.Ed.2d, at 1087], quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 [91 S.Ct. 1267, 1276, 28 L.Ed. 554, 566-67]. See Rizzo v. Goode, 423 U.S. 362, [96 S.Ct. 598, 46 L.Ed.2d 561]. Once a constitutional violation is found, a federal court is required to tailor “the scope of the remedy” to fit “the nature and extent of the constitutional violation.” 418 U.S. at 744 [94 S.Ct. at 3127, 41 L.Ed.2d at 1091]; Swann, supra, [402 U.S.] at 16, [91 S.Ct. at 1276, 28 L.Ed.2d at 566-67],
******
[T]he Milliken decision was based on basic limitations on the exercise of the equity power of the federal courts
******
The District Court’s desegregation order in Milliken was held to be an impermissible remedy not because it envisioned relief against a wrongdoer extending beyond the city in which the violation occurred but because it contemplated a judicial decree restructuring the operation of local government entities that were not implicated in any constitutional violation.
-U.S. at-, 96 S.Ct. at 1544, 44 LW at 4483, 4484.

*597Applying these principles to the facts before it, the court in Gautreaux concluded that the wrong which was properly complained of by the plaintiffs below 41 was not constitutionally insufficient to support the remedy sought; appropriateness and feasibility of remedy were of crucial importance and a prerequisite to the exercise of the courts’ equitable powers42 The necessity for continued adherence to the Article III requirements of standing and the proper limitations on the exercise of equity powers was underscored in Mr. Chief Justice Burger’s majority opinion in United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), in which the Court held that the taxpayer plaintiff lacked standing to sue.

“As our society has become more complex, our numbers more vast, our lives more varied, and our resources more strained, citizens increasingly request the intervention of the courts on a greater variety of issues than at any period of our national development. The acceptance of new categories of judicially cognizable injury has not eliminated the basic principle that to invoke judicial power the claimant must have a ‘personal stake in the outcome,’ ... in short, something more than ‘generalized grievances,’ . . . .” 418 U.S. 166, 179-80, 94 S.Ct. 2948 (citations omitted).

Concurring in the holding in Richardson, 418 U.S. at 180, 94 S.Ct. 2940, Mr. Justice Powell offered a cogent analysis of the dangers inherent in the relaxation of the historic and Constitutional restraints on judicial power; we would do well to recall his words:

Relaxation of standing requirements is directly related to the expansion of judicial power. It seems to me inescapable that allowing unrestricted taxpayer or citizen standing would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government. I also believe that repeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches. We should be every mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a non-representative, and in large measure insulated, judicial branch. 418 U.S. 188, 94 S.Ct. 2952.
* * * * * *
[W]e risk a progressive impairment of the effectiveness of the federal courts if their limited resources are diverted increasingly from their historic role to the resolution of public-interest suits brought by litigants who cannot distinguish themselves from all taxpayers or all citizens. The irreplaceable value of the power articulated by Mr. Chief Justice Marshall lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the counter-majoritarian implications of judicial review and the *598democratic principles upon which our Federal Government in the final analysis rests. 418 U.S. 192, 94 S.Ct. 2954.

In this action, appellants are invoking the Court’s jurisdiction solely to impose upon the appellees priorities which the appellants favor. Sincere as their views may be, they are not properly addressed to the courts. Disagreement with government action or policy, however strongly felt, does not, standing alone, constitute an “injury” in the Constitutional sense which is cognizable in the federal courts and susceptible of remedy by the judicial branch; it is a matter properly addressed to the Congress or the Executive.

Accordingly, the judgment of the district court is affirmed, and appellants’ complaint is hereby dismissed.

. Evans v. Lynn, 376 F.Supp. 327 (S.D.N.Y. 1974), rev’d, 537 F.2d 579 (2d Cir. 1975). At the time the earlier opinions were announced, James T. Lynn was the Secretary of Housing and Urban Development. He has been succeeded by Carla A. Hills, who now appears as appellee of record pursuant to F.R.App.P. 43(c).

. 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

. Warth v. Seldin, 495 F.2d 1187 (2d Cir., 1974). The Court’s opinion, subsequently affirmed by the Supreme Court, n. 2 supra, was announced by Judge Hays and concurred in by Judges Moore and Timbers.

. Appellee’s petition was brought pursuant to F.R.App.P. 35(b).

. The earlier panel’s affirmance of the dismissal as to Tri-State Regional Planning Council is, of course, left undisturbed.

. Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d, and Title VIII of the 1968 Civil Rights Act, 42 U.S.C. § 3601, respectively.

. These terms are nowhere defined in appellants’ briefs or memoranda.

. Appellants’ brief on rehearing at 21.

. Ibid.

. On the contrary, Mrs. Evans has conceded that since September, 1973, she has resided in housing which is altogether satisfactory to her.

. See, Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970).

. Ibid.

. Id., citing Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911).

. These two terms are used interchangeably; “controversy” is distinguishable from “case”, if at all, in that it is generally held to embrace only civil actions. See C. Wright, Federal Courts § 2 (1970); cf. United States v. Nixon, 418 U.S. 683, 696-7, 94 S.Ct. 3090, 3102, 41 L.Ed.2d 1039 (1974).

. In O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) the Supreme Court dismissed petitioners’ complaint on the ground that it

“failed to satisfy the threshold requirement imposed by Art. Ill of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy.” 414 U.S. at 493, 94 S.Ct. at 675 (emphasis supplied).

. In the well-known cases of Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), the Supreme Court framed the issue in the following manner:

“Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for the illumination of difficult constitutional questions? This is the gist of the question of standing.”

See, also, Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 217-218, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974); Socialist Labor Party v. Gilligan, 406 U.S. 585, 586-7, 92 S.Ct. 1716, 1718, 32 L.Ed.2d 317 (1972). Cf. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959-960, 22 L.Ed.2d 113 (1969).

. “ ‘[I]n terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution’.” Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 151-2, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970), quoting Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968).

. “[Wjhatever else the ‘case or controversy’ requirement embodie[s], its essence is a requirement of ‘injury in fact’.” Schlesinger v. Reservists to Stop the War, supra at 418 U.S. 218, 94 S.Ct. 2931, citing Association of Data Processing Service Org., Inc. v. Camp, supra at 397 U.S. 152, 90 S.Ct. 829.

. Ibid.

. See, Flast v. Cohen, supra, at 392 U.S. 102, 88 S.Ct. 1953-4; Warth v. Seldin, supra, at 422 U.S. 504-5, 95 S.Ct. 2208; Linda R. S. v. Richard D., 410 U.S. 614, 618, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973).

. Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972).

. United States v. SCRAP, 412 U.S. 669, 689, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973).

. Schlesinger v. Reservists to Stop the War, supra at 418 U.S. 222, 94 S.Ct. 2932.

. Sierra Club v. Morton, supra at 405 U.S. 740, 92 S.Ct. 1368-9; United States v. SCRAP, at 412 U.S. 687, 93 S.Ct. 2415-6.

. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).

. Preiser v. Newkirk, supra at 422 U.S. 401, 95 S.Ct. 2334.

. See, North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971), wherein the Court, quoting Aetna Life Ins. Co. v. Haworth, supra at 300 U.S. 240-1, 57 S.Ct. 464, held that:

“To be cognizable in a federal court, a suit ‘must be definite and concrete, touching the legal relations of parties having adverse legal interests. * * * It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ” (quotation marks omitted and emphasis supplied).

See, also, Schlesinger v. Reservists to Stop the War, supra, at 418 U.S. 221-222, 94 S.Ct. at 2932, quoting from McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151, 164, 35 S.Ct. 69, 59 L.Ed. 169 (1914); DeFunis v. Odegaard, 416 *592U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974); and most recently, Rizzo v. Goode, 423 U.S. 362, 371-72, 96 S.Ct. 598, 604, 46 L.Ed.2d 561, 44 L.W. 4095, 4098 (1976).

. See, O'Shea v. Littleton, supra at 414 U.S. 493-494, 94 S.Ct. 675; Schlesinger v. Reservists to Stop the War, supra at 418 U.S. 218, 94 S.Ct. 2931.

“We have previously noted that Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute. But such statutes do not purport to bestow the right to sue in the absence of any indication that invasion of the statutory right has occurred or is likely to occur."
O’Shea v. Littleton, supra at 414 U.S. 493-4, n. 2, 94 S.Ct. 675 (quotation mark and citations omitted; emphasis supplied).

. Association of Data Processing Service Org., Inc. v. Camp, supra at 397 U.S. 153, 90 S.Ct. 830.

. Ibid, (emphasis supplied).

. See, also, Sierra Club v. Morton, supra at 405 U.S. 733, n. 5, 92 S.Ct. 1365, wherein the Court, finding that the petitioner had suffered no injury in fact, did not reach the issues concerning the “zone of interests” under the statute.

. 409 U.S. at 209, 93 S.Ct. at 367 (quotation marks and citation omitted; emphasis supplied). See, also, Rizzo v. Goode, supra 423 U.S. at 370-71, 96 S.Ct. at 604, at 44 L.W. 4098, wherein the Court reached a similar conclusion respecting the right to allege deprivation of civil rights under 42 U.S.C. § 1983 (Civil Rights Act of 1871); and Association of Data Processing Service Org., Inc. v. Camp, supra at 397 U.S. 153-4, 90 S.Ct. 830, and Sierra Club v. Morton, supra at 405 U.S. 739, 92 S.Ct. 1368, wherein the Court held similarly respecting suits brought under Administrative Procedure Act § 702.

. Warth v. Seldin, supra, 422 U.S. at 492-496, 95 S.Ct. at 2203-4.

. Appellants have pleaded the violation of a federal statute as the basis for their action and their standing to sue. However, the alleged violation exists only because the grants were purportedly made to a locality which, through the maintenance of zoning laws, has preserved itself as an allegedly affluent white suburb which is inaccessible to the appellants. Their claims of damage flow — if at all — from the Town’s exclusionary practices, not from the specific grant of federal aid. This is an indirect route to the same charge made more directly in Warth, to wit, an alleged exclusion from housing of their choice in a more integrated neighborhood.

We note that the appellants at bar are not the only plaintiffs who have attempted indirectly to attack local housing laws by pleading the violation of federal housing law. In Cornelius v. City of Parma, 374 F.Supp. 730 (N.D. Ohio 1974), aff’d 521 F.2d 1401 (6th Cir. 1975), cert. denied 424 U.S. 955, 96 S.Ct. 1430, 47 L.Ed.2d 360, 44 LW 3501 (1976), five assertedly low income black individuals residing outside the city of Parma joined with two white citizens of Parma and three organizations in charging that Parma’s discriminatory housing practices— specifically, local ordinances prohibiting low income housing projects absent a referendum and establishing a height limitation for buildings — violated, inter alia, the Fair Housing Act of 1968, 42 U.S.C. § 3601; jurisdiction was asserted under 42 U.S.C. § 3612. The district court stated that

“A fair reading of the complaint indicates that its basic thrust is directed against Par-ma’s adoption and implementation of the ordinances previously discussed in regard to the Government’s suit. It is alleged that the City’s conduct, in enacting and implementing these ordinances, was aimed at setting up barriers to exclude low and moderate income blacks and other minorities from living in the City. The ordinances are said to have the further' effect of maintaining the virtually all-white character and image of Parma, depriving white residents of Parma of the benefits of an integrated community, discouraging prospective builders and sponsors of low-income housing from building within the City of Parma, interfering generally with federally assisted housing programs, and excluding blacks and other minorities from equal access to jobs in the Parma area as well as equal access to educational opportunities. The plaintiffs in Cornelius seek as relief a declaration that the ordinances are void and of no effect, an injunction against Parma and its agents from engaging in further discriminatory housing practices and affirmative remedial action.
* * * * * *
“. . . The challenged conduct of Par-ma in enacting the ordinances has not as yet *594directly and immediately injured plaintiffs. No actual conflict has yet arisen between the rights of the low and moderate income plaintiffs and the actions of the defendants relative to these ordinances. Indicative of the presence of abstract injury only is the fact that if the Court were to entertain this suit and on the merits declare the suspect ordinances invalid, this judicial action would not serve as the catalyst for the construction of the housing undeniably needed by plaintiffs.” 374 F.Supp. at 733, 739 (emphasis supplied) The district court held, as we hold here, that

the asserted cause of action did not present a case or controversy. 374 F.Supp. at 739. The district court’s holding was affirmed without opinion by the Court of Appeals, and certiorari was recently denied by the Supreme Court which apparently continues to adhere to the holding in Warth v. Seldin, supra.

. “. . Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. Ill’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.”

422 U.S. at 501, 95 S.Ct. at 2206 (citation omitted; emphasis supplied).

. See, e. g., North Carolina v. Rice, supra at 404 U.S. 246, 92 S.Ct. 404; Sierra Club v. Morton, supra at 405 U.S. 732, n. 3, 92 S.Ct. 1365; Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-2, 24 L.Ed.2d 214 (1969); Flast v. Cohen, supra at 392 U.S. 96, 88 S.Ct. 1950; cf. Warth v. Seldin, supra at 422 U.S. 499-500, 95 S.Ct. 2205-6.

. United States v. SCRAP, supra at 412 U.S. 687, 93 S.Ct. 2415-6.

. Warth v. Seldin, supra at 422 U.S. 499, 95 S.Ct. 2205.

. Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973).

. “The view of the dissenters [who urge affirmance of the lower court’s desegregation order], that the existence of a dual system in [the City of Detroit] can be made the basis of a decree requiring cross-district transportation of pupils, cannot be supported on the grounds that it represents merely the devising of a suitably flexible remedy for the violation of rights already established by our prior decisions. It can be supported only by drastic expansion of the constitutional right itself, an expansion without any support in either constitutional principle or precedent.” 418 U.S. at 747, 94 S.Ct. at 3128 (footnote omitted).

. In Milliken the question of “standing” was not involved although the Chief Justice in his opinion must have been aware of this necessity because in a footnote he stated “the standing of the NAACP as a proper party plaintiff was not contested in the trial court and is not an issue in this case.” 418 U.S. at 722, note 2, 94 S.Ct. at 3116.

. In Gautreaux there was no question but that the plaintiffs (respondents in the Supreme Court had standing to seek vindication of their rights and the defendants made no challenge respecting standing before the district court when they moved to dismiss the action. See Gautreaux v. Chicago Housing Authority, 296 F.Supp. 907 (N.D.Ill.1969).