26 Opinion of BRENNAN, J. tent of its financial ability" and stated that a low charitable record was not conclusive on the point. Accordingly, in the absence of some showing to the contrary by the petitioners, it readily can be inferred that a hospital under the earlier Ruling would provide some indigent services, the maximum extent being the point at which the benefits received from the favorable tax status were exactly offset by the cost of the services conferred. If respondents had demonstrated at the summary judgment stage a connection between the disputed Ruling withdrawing this incentive and the hospitals affecting them, they would have certainly made a showing of injury to their "opportunity and ability" to receive medical care sufficient under SCRAP for standing to challenge the governmental action. We may properly wonder where the Court, armed with its "fatally speculative pleadings" tool, will strike next. To pick only the most obvious examples, Will minority schoolchildren now have to plead and show that in the absence of illegal governmental "encouragement" of private segregated schools, such schools would not "elect to forgo" their favorable tax treatment, and that this will "result in the availability" to complainants of an integrated educational system? See Green v. Kennedy, 309 F. Supp. 1127 (DC 1970), later decision reported sub nom. Green v. Connally, 330 F. Supp. 1150, summarily aff'd sub nom. Coit v. Green, 404 U. S. 997 (1971). Or will black Americans be required to plead and show that in the absence of illegal governmental encouragement, private institutions would not "elect to 11 11 I note that this Court summarily affirmed in Coit v. Green, a case in which the standing issue was expressly raised on appeal. See Jurisdictional Statement 11 in No. 71-425, O. T. 1971. The court below in that case found standing without any such gratuitous allegations or showings respecting injury in fact. 309 F. Supp., at 1132. Opinion of BRENNAN, J. 426 U.S. forgo" favorable tax treatment, and that this will "result in the availability" to complainants of services previously denied? See McGlotten v. Connally, 338 F. Supp. 448 (DC 1972); Pitts v. Wisconsin Dept. of Revenue, 333 F. Supp. 662 (ED Wis. 1971). As perusal of these reported decisions reveals, the lower courts have not assumed that such allegations and proofs were somehow required by Art, III. C Of course, the most disturbing aspect of today's opinion is the Court's insistence on resting its decision regarding standing squarely on the irreducible Art. III minimum of injury in fact, thereby effectively placing its holding beyond congressional power to rectify. Thus, any time Congress chooses to legislate in favor of certain interests by setting up a scheme of incentives for third parties, judicial review of administrative action that allegedly frustrates the congressionally intended objective will be denied, because any complainant will be required to make an almost impossible showing. Clearly the Legislative Branch of the Government cannot supply injured individuals with the means to make the factual showing in a specific context that the Court today requires. More specific indications of a congressional desire to confer standing upon such individuals would be germane, not to the Art. III injuryin-fact requirement, but only to the Court's "zone of interests" test for standing, that branch of standing lore which the Court assiduously avoids reaching. Ante, at 39 n. 19.12 12 This is apparently the point the Court wishes to drive home by means of the following statement, ante, at 41 n. 22: "The reference in Linda R. S. to 'a statute expressly conferring standing' was in recognition of Congress' power to create new interests the invasion of which will confer standing. . . . When 26 Opinion of BRENNAN, J. In our modern-day society, dominated by complex legislative programs and large-scale governmental involvement in the everyday lives of all of us, judicial review of administrative action is essential both for protection of individuals illegally harmed by that action, Flast v. Cohen, 392 U. S. 83, 111 (1968) (Douglas, J., concurring), and to ensure that the attainment of congressionally mandated goals is not frustrated by illegal action, Barlow v. Collins, 397 U. S., at 173-175, and n. 9 (opinion of BRENNAN, J.). See Albert, 83 Yale L. J., supra, n. 8, at 451-456. In dissenting from the Court's earlier creation of the "zone of interests" test applicable to standing for review under the Administrative Procedure Act, an inquiry that confuses standing with aspects of reviewability and the merits, I said: "[I]n my view alleged injury in fact, reviewability, and the merits pose questions that are largely distinct from one another, each governed by its own considerations. To fail to isolate and treat each inquiry independently of the other two, so far as possible, is to risk obscuring what is at issue in a given case, and thus to risk uninformed, poorly reasoned decisions that may result in injustice. Too often these various questions have been merged into one confused inquiry, lumped under the general rubric of 'standing.' The books are full of opinions that dismiss a plaintiff for lack of 'standing' when dismissal, if proper at all, actually rested either upon the plaintiff's failure to prove on the merits the existence of the legally protected interest that he claimed, or on his failure to prove that the challenged agency action Congress has so acted, the requirements of Art. III remain: '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."" Opinion of BRENNAN, J. 426 U.S. was reviewable at his instance." Barlow v. Collins, supra, at 176.13 Today, however, the Court achieves an even worse result through its manipulation of injury in fact, stretching that conception far beyond the narrow bounds within which it usefully measures a dimension of Art. III justiciability. The Court's treatment of injury in fact without any "particularization" in light of either the policies properly implicated or our relevant precedents threatens that it shall "become a catchall for an unarticulated discretion on the part of this Court" to insist that the federal courts "decline to adjudicate" claims that it prefers they not hear. Poe v. Ullman, 367 U. S., at 530 (Harlan, J., dissenting). 13 See also Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev. 450, 469 (1970). After today's decision the lower courts will understandably continue to lament the intellectual confusion created by this Court under the rubric of the law of standing. E. g., Scanwell Laboratories v. Shaffer, 137 U. S. App. D. C. 371, 373, 424 F. 2d 859, 861 (1970): "The law of standing as developed by the Supreme Court has become an area of incredible complexity. Much that the Court has written appears to have been designed to supply retrospective satisfaction rather than future guidance. The Court has itself characterized its law of standing as a 'complicated specialty of federal jurisdiction.' . . . One cannot help asking why this should be true." Syllabus MATHEWS, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. DIAZ ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA No. 73-1046. Argued January 13, 1975-Reargued January 12, 1976-Decided June 1, 1976 Title 42 U. S. C. § 1395o (2) qualifies for enrollment in the Medicare supplemental medical insurance program residents of the United States who are 65 or older, but in subsection (B) denies eligibility to aliens unless they have been admitted for permanent residence and also have resided in the United States for at least five years. Appellee Diaz filed a class action suit in the District Court attacking the constitutionality of § 13950 (2) (B), and thereafter the District Court granted leave to add appellees Clara and Espinosa as plaintiffs and to file an amended complaint, which alleged that Clara had been disqualified for the same reasons as Diaz (lack of citizenship, nonadmission for permanent residence, and inability to meet the five-year residence requirement), but explained that Espinosa, though lawfully admitted for permanent residence, had not attempted to enroll because he could not meet the durational residence requirement. Appellant filed a motion to dismiss on the ground that appellees had not exhausted their administrative remedies. Two days later, Espinosa applied for enrollment and so advised the court. Though none of the appellees completely exhausted available avenues for administrative review, appellant acknowledged that the applications of Diaz and Clara raised no disputed factual issues and that the interlocutory denials of their applications should be treated as final for purposes of this litigation, and conceded that Espinosa's application could not be allowed under the statute. The District Court overruled appellant's motion and held that the five-year residence requirement violated due process and that, since it could not be severed from the requirement of admission for permanent residence, the alien-eligibility provisions of §13950 (2)(B) were entirely unenforceable. Held: 1. The District Court had jurisdiction over Espinosa's claim, which (unlike the other appellees' claims) squarely raises the question of the constitutionality of the five-year residence requirement. Pp. 74-77. 209-904 O-78-8 |