MainStreet Realtors v. Calumet City IL ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4377
MAINSTREET ORGANIZATION OF REALTORS, successor
by name change to REALTOR ASSOCIATION OF
WEST/SOUTH SUBURBAN CHICAGOLAND,
Plaintiff-Appellee,
v.
CALUMET CITY, ILLINOIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 2271—Milton I. Shadur, Judge.
____________
ARGUED SEPTEMBER 7, 2007—DECIDED OCTOBER 17, 2007
____________
Before BAUER, POSNER, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The plaintiff in this civil rights
lawsuit is an association of real estate brokers in a portion
of the Chicago metropolitan area that includes Calumet
City. The City enacted an ordinance that forbids the sale
of a house without an inspection to determine whether it
is in compliance with the City’s building and zoning
codes. If it is not, the house must be brought into compli-
ance with the code. Such “point of sale” ordinances are
common. They aim to prevent the surreptitious conversion
2 No. 06-4377
of single-family homes to multi-family dwellings and to
retard the physical deterioration of the housing stock.
Delman v. City of Cleveland Heights, 534 N.E.2d 835, 836-37
(Ohio 1989); Butcher v. City of Detroit, 401 N.W.2d 260, 262
(Mich. App. 1986) (per curiam); Currier v. City of Pasadena,
121 Cal. Rptr. 913, 914-15 (App. 1975); see also Dome Realty,
Inc. v. City of Paterson, 416 A.2d 334, 337-38 (N.J. 1980). The
association currently claims that the ordinance deprives
homeowners of property without due process of law;
other claims have fallen by the wayside. The suit seeks to
enjoin the enforcement of the ordinance. The association
sought and obtained a preliminary injunction from the
district court and the City has appealed.
We do not reach the merits of the suit or express an
opinion on them. Real estate brokers, in our judgment, do
not have standing to challenge a law that impedes the sale
of property they would like to broker; and their associa-
tion’s standing is derivative from theirs and falls with it.
National Solid Waste Management Ass’n v. Pine Belt Regional
Solid Waste Management, 389 F.3d 491, 497-99 (5th Cir. 2004).
A complication is that there are two different issues of
standing. There is Article III standing, which requires just
an injury in fact, and “prudential” standing, a more
complex, judge-made concept of standing. We think there
is standing in the first sense but not the second. There is
standing in the first sense because the brokers may well be
harmed by the ordinance. By adding to the cost of selling
residential property, the ordinance (if allowed to go into
effect) is likely to reduce the brokers’ commissions in two
ways. The higher the cost of selling property, the less
property will be sold, and so the fewer commissions the
brokers will be paid. And anything that reduces the
salability of property reduces its market value, and the
No. 06-4377 3
lower the price at which a house is sold the smaller the
commission the broker will receive. Of course a seller
might try to charge a higher price in order to cover some
of the cost of complying with the ordinance, and a broker’s
commission is normally a percentage of the sale price. But
the seller’s attempt would fail if indeed the ordinance
reduces the value of the property to prospective pur-
chasers.
Against this it can be argued that the ordinance will
boost property values in Calumet City and by doing so
perhaps make the brokers better off rather than worse off.
That is possible, but standing in the Article III sense does
not require a certainty or even a very high probability
that the plaintiff is complaining about a real injury, suf-
fered or threatened. A suit to redress an injury to the
plaintiff is a “case” or “controversy” within the mean-
ing that the courts have imprinted on these words of
Article III of the Constitution, Allen v. Wright, 468 U.S. 737,
750-51 (1984), as long as there is some nonnegligible,
nontheoretical, probability of harm that the plaintiff’s suit
if successful would redress. As we have noted repeatedly,
the fact that a loss or other harm on which a suit is based
is probabilistic rather than certain does not defeat stand-
ing. E.g., Korczak v. Sedeman, 427 F.3d 419, 422-23 (7th Cir.
2005); North Shore Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th
Cir. 1991). Thus, as we said in Hoover v. Wagner, 47 F.3d
845, 847 (7th Cir. 1995), in reliance on the Supreme Court’s
decision in Pennell v. City of San José, 485 U.S. 1, 8 (1988),
“All that a plaintiff need show to establish standing to
sue [in the Article III sense] is a reasonable probabil-
ity—not a certainty—of suffering tangible harm unless he
obtains the relief that he is seeking in the suit.” A case is
not dismissed for failure to invoke federal jurisdiction just
4 No. 06-4377
because the plaintiff fails to prove injury. Ordinarily and
here the allegation is enough.
It is true that if the federal courts could decide cases
brought by persons on whom a defendant’s alleged
misconduct could not possibly inflict tangible harm, so that
a person living in California who read about Calumet
City’s point of sale ordinance could have brought the
present suit, the power of the federal courts relative to the
other branches of government would be magnified alarm-
ingly. In Aurora Loan Services, Inc. v. Craddieth, 442 F.3d
1018, 1024 (7th Cir. 2006), we gave the following example
of the kind of case that Article III standing therefore
excludes from the federal courts: “[T]here is a sense in
which I am ‘injured’ when I become upset by reading about
the damage caused that fine old vineyard in Burgundy by
a band of marauding teetotalers, yet that injury would not
be an ‘injury’ that conferred standing to sue under Article
III.” That is not this case. This is not a case of some abstract
psychic harm or a one-day-I’ll-be-hurt allegation, as in
Lujan v. Defenders of Wildlife, Inc., 504 U.S. 555, 560 (1992).
The challenged ordinance is quite likely to delay the sale of
homes in the area serviced by the real estate brokers whose
association has brought this suit, to reduce sales prices, and
thus to reduce the brokers’ commissions, and this likeli-
hood of a tangible economic loss to them suffices to confer
Article III standing.
But there is also a nonconstitutional doctrine, entirely
judge-made, of standing, to which the unilluminating
term “prudential standing” has been affixed. Valley Forge
Christian College v. Americans United for Separation of Church
& State, Inc., 454 U.S. 464, 474-75 (1982); Majors v. Abell, 317
F.3d 719, 722 (7th Cir. 2003); Grand Council of Crees v. Federal
Energy Regulatory Commission, 198 F.3d 950, 954 (D.C. Cir.
No. 06-4377 5
2000); Prime Media, Inc. v. City of Brentwood, 485 F.3d 343,
349 (6th Cir. 2007). This doctrine precludes the federal
courts from exercising jurisdiction over some types of case
that Article III would not forbid the courts to adjudicate. It
is this doctrine that bars the present suit from being
adjudicated in a federal court.
The doctrine is various. The strand relevant to this case
governs the situation in which the injury on which the
plaintiff founds his suit is derivative from the injury
suffered by the defendant’s immediate victim. Often the
harm from a harmful act will ramify far beyond that
victim, as the present case illustrates. The initial victims
of an ordinance impeding the sale of homes are home-
owners who would like to sell—or perhaps all homeowners
subject to the ordinance; for as we said, any impairment of
the salability of a property reduces its value because
salability (“alienability” in an older legal vocabulary) is
one of the rights that, along with such other rights as the
right to the exclusive enjoyment of the property, make a
fee-simple interest more valuable than other interests in
property, such as that of a licensee. But anything that
impedes the sale of property, and by impeding it reduces
the number of sales and the average sale price, harms
other people besides the owners. It harms real estate
brokers, sure, but it also harms title insurance com-
panies, mortgage lenders, termite inspectors, moving
companies, interior decorators, renovators, prospective
home buyers, sellers of “for sale” signs, suppliers of paint
for the “for sale” signs, lessors of real estate brokers’
offices, colleges that the children of real estate brokers can
no longer afford to attend because the brokers’ incomes
have declined (and the children themselves, of course), and
so on ad infinitum, or at least ad nauseam. If all these
incidental victims could sue, the courts would be over-
6 No. 06-4377
whelmed. Moreover, the victims with the largest
stakes—namely the homeowners impeded in selling
their homes—who are also the potential plaintiffs with
the first-hand information about the operation of the
ordinance, are likely to be trampled in the rush to the
courthouse. It is not only in bankruptcy that “clouds of
persons indirectly affected by the acts and entitlements
of others may buzz about, delaying final resolution of
cases.” In re Deist Forest Products, Inc., 850 F.2d 340, 341 (7th
Cir. 1988).
The brokers’ suit thus is barred by the principle that,
subject to certain exceptions, one cannot sue in a federal
court to enforce someone else’s legal rights. Id.; Elk Grove
Unified School District v. Newdow, 542 U.S. 1, 17-18 (2004);
Warth v. Seldin, 422 U.S. 490, 508-10 (1975); Massey v.
Helman, 196 F.3d 727, 740-42 (7th Cir. 1999). The brokers
are not suing to enforce their constitutional property rights;
they have no rights in commissions they may someday
earn on sales of property with whose owners they have as
yet no brokerage contract. They are suing to enforce the
property rights of the owners of residential property. A
member of the plaintiff association who had a brokerage
contract with a homeowner harmed by the ordinance might
be able to argue that the contract gave him (the broker) a
property right of which he was being deprived. But that is
not the claim; the claim is that the broker can litigate the
alleged deprivation of the homeowner’s property right. No
doubt some members of the association own homes in
Calumet City, since they work there. But the association
that is the plaintiff in this case is suing on behalf of its
members’ interests as brokers, not as homeowners.
We mentioned exceptions. Craig v. Boren, 429 U.S. 190,
193-94 (1976), is illustrative. A liquor dealer who wanted to
No. 06-4377 7
sell beer to males under the age of 21 because females
could buy it at age 18 claimed that the difference in eligibil-
ity was a denial of equal protection. He thus was trying to
litigate a constitutional claim belonging to someone else.
But the statute he was challenging was aimed at liquor
dealers and so he had as definite a stake in the vindication
of the claim as a doctor forbidden by law to perform an
abortion has in vindicating his patients’ right to undergo
the procedure. See Kowalski v. Tesmer, 543 U.S. 125, 130
(2004); U.S. Dept. of Labor v. Triplett, 494 U.S. 715, 720 (1990);
Secretary of State of Maryland v. Joseph H. Munson Co., 467
U.S. 947, 954-58 (1984); Singleton v. Wulff, 428 U.S. 106, 113-
18 (1976) (plurality opinion). He was an immediate rather
than a remote victim. In contrast, Calumet City’s ordinance
imposes no duties or sanctions on real estate brokers.
We need not worry that unless the doctrine limiting
third-party standing is bent in this case there will be
nobody to obtain a ruling on the constitutionality of the
Calumet City ordinance. Compare Lepelletier v. FDIC, 164
F.3d 37, 43 (D.C. Cir. 1999). Even if the harm to the individ-
ual homeowner who encounters delay and expense in
selling his house because of the ordinance is too slight to
motivate him to bear the expense of bringing a lawsuit,
all the homeowners in Calumet City can be joined in a
class action, since all will have suffered a possible diminu-
tion in the value of their property as a result of the ordi-
nance. As there is no hindrance to the primary victims’
enforcing their rights, there is no reason to allow the
brokers into the litigation arena. See Kowalski v. Tesmer,
supra, 543 U.S. at 131. Hindrance would be the effect of
allowing this suit to go forward.
It would be more perspicuous to describe the doctrine
that bars the brokers at the threshold as that of remoteness,
8 No. 06-4377
and illustrate it with reference to the rule of antitrust law
that denies the right of a purchaser from a cartel’s custom-
ers to sue the cartel for damages even if the customer
passed on the cartel overcharge to their purchasers. Illinois
Brick Co. v. Illinois, 431 U.S. 720 (1977). There is Article III
standing, but there is no right to sue—not because there
is no antitrust violation, but because it is efficient to
confine the right to suit to the immediate customer of the
cartel rather than to multiply the number of plaintiffs and
burden the court with having to apportion damages
between the first and second tiers of purchasers.
Notice that while the practical objections to allowing the
second-tier purchaser to sue are identical to the objec-
tions to allowing someone harmed by the infringement of
another’s rights to sue, the antitrust case doesn’t fit
squarely into the “no-third-party-standing” pigeonhole.
The second-tier purchaser is not complaining about the
cartel’s violation of the first-tier purchasers’ rights; he is
claiming that he too has a right under antitrust law not
to be victimized (even if indirectly) by a cartel. If we
don’t want him to be allowed to sue we can say he has
no right under antitrust law and thus turn it into a third-
party case. But it is cleaner to say that the injury is too
remote; that the first-tier purchaser has better informa-
tion about the presence of cartel pricing and should
therefore have the right to sue, as there will be better
enforcement that way. Similarly, the brokers’ injury in this
case is too remote to sustain standing even if they might
be thought to have a property right, perhaps in contracts
that they have signed with homeowners who want to sell
but because of the ordinance are less likely to be able to do
so at an attractive price. The cases differ because the
brokers are not seeking damages, and therefore the issue
No. 06-4377 9
of apportionment presented by the antitrust case does not
arise. But the problem of allowing a derivative victim
to preempt the claims of the immediate victim is the
same in both cases.
The only wrinkle in this case is that the City did not
argue remoteness until we raised the issue at oral argu-
ment. And because the remoteness doctrine is not juris-
dictional in the sense that Article III standing is—if there
is no Article III standing, the court is obliged to dismiss
the suit even if the standing issue has not been raised—
it may seem that it can be waived or forfeited just like
any other nonjurisdictional defense to a suit.
But nonconstitutional lack of standing belongs to an
intermediate class of cases in which a court can notice an
error and reverse on the basis of it even though no party
has noticed it and the error is not jurisdictional, at least in
the conventional sense. Another example is the failure of a
petitioner for federal habeas corpus to have exhausted his
state remedies. Even when exhaustion is not a jurisdic-
tional prerequisite to judicial review, the court can in its
discretion dismiss for failure to exhaust. Granberry v. Greer,
481 U.S. 129, 130-33 (1987); see also Champagne v.
Schlesinger, 506 F.2d 979, 982 (7th Cir. 1974) (failure to
exhaust administrative remedies); Taylor v. United States
Treasury Dept., 127 F.3d 470, 477 (5th Cir. 1997). Abstention
in favor of another court or an agency is still another
example of a doctrine that a court can invoke on its own
initiative in a case that is within its jurisdiction. Bellotti v.
Baird, 428 U.S. 132, 143 n. 10 (1976); International College of
Surgeons v. City of Chicago, 153 F.3d 356, 360-61 (7th Cir.
1998); San Remo Hotel v. City & County of San Francisco, 145
F.3d 1095, 1105 (9th Cir. 1998).
Those are not cases about remoteness; what connects
them to our case is the presence of interests that are not
10 No. 06-4377
represented by the parties, whether the interests of missing
parties (such as homeowners, in this case) or the independ-
ent interests of the court. When judicial or administrative
remedies have not been exhausted, the court is at risk of
making an ill-informed ruling because it lacks the benefit
of another tribunal’s expertise; or an unnecessary ruling
because the agency might have resolved the case and the
loser not have sought judicial review; or a ruling that
gratuitously affronts another judicial system. As we said
in Waldron v. McAtee, 723 F.2d 1348, 1351 (7th Cir. 1983),
“when a court abstains in order to avoid unnecessary
constitutional adjudication (’Pullman’ abstention, after
Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941)), it is
not seeking to protect the rights of one of the parties; it is
seeking to promote a harmonious federal system by
avoiding a collision between the federal courts and state
(including local) legislatures.”
In a typical case of remoteness, such as the cartel case
that we mentioned, the cartel’s members may not care
which tier of purchasers sues them. Neither may Calumet
City care whether it is sued by real estate brokers or
homeowners. Indeed, in both cases the defendants might
prefer the derivative victim to sue, because his stake may
be smaller than the immediate victim’s stake, or, being
at a further remove from the alleged misconduct than
the immediate victim, he may be a less informed and
therefore less effective plaintiff. The immediate victim is
harmed the most and knows the most, but is not before
the court to assert his interest in controlling litigation
against the wrongdoer.
Because what we are calling the doctrine of remoteness
is a method of judicial protection of absent parties or other
unrepresented interests, a court can invoke it on its own
No. 06-4377 11
initiative, as many cases make clear. See, e..g., Delorme v.
United States, 354 F.3d 810, 815 (8th Cir. 2004); American
Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352, 1357-58
(D.C. Cir. 2000); Community First Bank v. National Credit
Union Administration, 41 F.3d 1050, 1053 (D.C. Cir. 1994);
Thompson v. County of Franklin, 15 F.3d 245, 247-49 (2d Cir.
1994). It is true, as pointed out in a careful discussion in
UPS Worldwide Forwarding, Inc. v. United States Postal
Service, 66 F.3d 621, 626 n. 6 (3d Cir. 1995), that the issue
has not been definitively resolved by the Supreme Court.
But the Court signaled its answer in Warth v. Seldin, supra.
It explained that the bar against third-party standing is
“founded in concern about the proper—and properly
limited—role of the courts in a democratic society,” that
it sets “limits on the class of persons who may invoke the
courts’ decisional and remedial powers,” and that both
Article III standing and prudential standing “are threshold
determinants of the propriety of judicial intervention.” 422
U.S. at 498-99, 518. Note also the statement in Allen v.
Wright, supra, that both sorts of standing place “limits on
the exercise of federal jurisdiction.” 468 U.S. at 751 (empha-
sis added).
A sentence in Lindley v. Sullivan, 889 F.2d 124, 129 (7th
Cir. 1989), could be read to say that a party’s failure to
object to third-party standing bars judicial consideration
of it. But that would not be a correct reading. For what
we meant was simply that such a failure is a ground for
refusing to consider the doctrine. This must be the correct
interpretation because the sentence is not elaborated and
the only authority cited for it is the Supreme Court’s
opinion in Craig v. Boren, supra, 429 U.S. at 193-94, which
holds that failure to invoke the doctrine is a ground for
refusing to invoke it, not that it bars invocation. And the
12 No. 06-4377
court in Lindley went on to hold that the requirements of
nonconstitutional standing had been satisfied. That would
have been inconsistent with its saying that it had no power
to address the issue unless it were raised by a party.
Lindley has twice been cited by this court for the proposi-
tion that a court is barred from raising a prudential-stand-
ing issue on its own initiative. MacLauchlan v. Prudential Ins.
Co. of America, 970 F.2d 357, 359 n. 1 (7th Cir. 1992); United
Transportation Board v. Surface Transportation Board, 183 F.3d
606, 610-11 (7th Cir. 1999). In United Transportation, as in
Lindley, the opinion goes on to discuss whether the require-
ments of nonconstitutional standing are satisfied and
concludes that they are. The opinion says, moreover, only
that the standing issue was “waived,” which is not quite
the same as saying that the court could not reach it—which
in fact it did. MacLauchlan does state flatly, albeit in a
footnote, that “we may not raise prudential standing issues
sua sponte.” But in the curious circumstances of that case
we think the statement should be regarded as dictum
rather than holding. The plaintiff was the widow of a man
who had applied for a life insurance policy and died before
the application was approved. The widow argued that the
insurance company (the defendant) was legally obligated
to issue the policy and that therefore she was entitled to a
judgment for the proceeds. Apparently she had not been
named in the application as a beneficiary, so there was a
question of her right to sue. The district court rejected the
suit on the merits without bothering to determine her right
to sue, and the insurance company, which had raised the
issue in the district court, abandoned it in our court, which
agreed with the district court that the suit had no merit.
There would have been no point to our raising the issue of
prudential standing; it would simply have delayed the
resolution of an obviously meritless appeal.
No. 06-4377 13
Because the real estate brokers and their association do
not have standing to challenge the Calumet City point of
sale ordinance, the preliminary injunction issued by the
district court is vacated and the suit is dismissed with-
out prejudice.
SYKES, Circuit Judge, concurring. I agree with my col-
leagues that the preliminary injunction must be vacated
and the case dismissed for lack of standing. The court’s
analysis of prudential standing doctrine is comprehen-
sive, and I join the panel’s conclusion that the plaintiff’s
alleged injury is too remote to permit it to litigate this
constitutional claim. I disagree, however, that the plaintiff
has gotten over the first hurdle of establishing constitu-
tional standing; Article III’s case-or-controversy require-
ments are not met here.
The MainStreet Organization of Realtors (“the Associa-
tion”) brought this action seeking declaratory
and injunctive relief to “redress the deprivation . . . of
rights guaranteed to the Realtor Association, its Members,
and the citizens of [Calumet City] by the Fourth, Fifth and
Fourteenth Amendments.” These deprivations, accord-
ing to the complaint, were caused by the City’s point-of-
sale code compliance ordinance. The Fourth Amendment
claim alleged that the ordinance impermissibly subjects the
City’s property owners to warrantless inspections; the Fifth
Amendment claim alleged unconstitutional takings of
14 No. 06-4377
property without just compensation; and the Fourteenth
Amendment claims alleged that the ordinance violates
equal protection and deprives the owners of their property
without due process of law. Only the due process claim
remains.
The district court granted the Association’s motion for
a preliminary injunction prohibiting the City from enforc-
ing the ordinance. The City responded by amending the
ordinance. The district court then dissolved the first
injunction as moot but was dissatisfied with the City’s
efforts and entered a second injunction prohibiting en-
forcement of the amended ordinance. The amended
ordinance, like its predecessor, requires that real property
in the City be inspected for compliance with the City’s
building and zoning codes before it is sold. Generally
speaking, ownership may not be transferred until the
property complies with building and zoning codes or
adequate provision is made to bring the property up to
code. As the court notes, point-of-sale ordinances like
this one are common building and zoning code enforce-
ment measures and are aimed at maintaining the quality
of municipal housing stocks.
As to associational standing (see Hunt v. Wash. State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977)), the Association
alleged that the City’s point-of-sale ordinance “adversely
affect[ed]” its member-brokers’ “ability to consummate real
estate transactions.” The bulk of the Association’s com-
plaint, however, is devoted to the effect of the ordinance
on the rights of the City’s property owners, not the Associa-
tion’s members. The same is true of the Association’s
motion for a preliminary injunction. The district court
gave the question of the Association’s standing short
shrift, summarily concluding that “the interest that . . .
No. 06-4377 15
[the Association’s members] are entitled to protect is
essentially their business interest. It’s a deprivation of
the ability to earn commission[s] on sales.”
The court appears to reject this holding—rightly,
I think—for the rather obvious reason that the Associa-
tion’s members “have no rights in commissions they may
someday earn on sales of property with whose owners
they have as yet no brokerage contract.” Majority op., at 6.
But the court also concludes that the possibility of re-
duced future commissions—commissions the brokers
have no arguable legal right or expectation to receive—is
enough to confer constitutional standing. I cannot see
how this can be reconciled.
It is clear, as the court notes, that “Calumet City’s
ordinance imposes no duties or sanctions on real estate
brokers.” Majority op., at 7. The very nature of the claims
initially asserted—warrantless property inspections,
unconstitutional takings of property, deprivations of
property in violation of equal protection and due pro-
cess—demonstrates that the rights the ordinance is al-
leged to infringe belong to the property owners, not the
real estate brokers. As such, the court concludes (and
I agree) that “[t]he brokers are not suing to enforce their
constitutional property rights[,] . . . [t]hey are suing to
enforce the property rights of the owners of residential
property.” Majority op., at 6. But this means the Associa-
tion has failed to establish Article III standing, not just
that prudential standing considerations preclude this
suit, as the court concludes. An injury to the City’s real
property owners does not confer standing on the City’s real
estate brokers simply because they are collaterally af-
fected. Without some cognizable injury to their own rights,
the brokers (and derivatively, the Association) lack consti-
16 No. 06-4377
tutional standing to sue, and judicial policy governing
third-party standing does not come into play.1
“The ‘core component’ of the requirement that a litigant
have standing to invoke the authority of a federal court ‘is
an essential and unchanging part of the case-or-controversy
requirement of Article III.’ ” DaimlerChrysler Corp. v. Cuno,
126 S. Ct. 1854, 1861 (2006) (quoting Lujan v. Defenders of
Wildlife, Inc., 504 U.S. 555, 560 (1992)). The “threshold
question in every federal case” is “whether the plaintiff
has ‘alleged such a personal stake in the outcome of the
controversy’ as to warrant his invocation of federal-court
jurisdiction and to justify exercise of the court’s remedial
1
Prudential standing considerations generally prohibit “a
litigant’s raising another person’s legal rights,” Elk Grove Unified
Sch. Dist. v. Newdow, 542 U.S. 1, 11-12 (2004), but this doctrine
kicks in to bar suit (or not) only after the litigant has estab-
lished his own Article III standing to sue. In Newdow, for
example, the plaintiff established constitutional standing to
challenge the practice of daily recitation of the Pledge of
Allegiance in his daughter’s school as an unconstitutional
interference with his right as a parent to direct the religious
education of his daughter. Id. at 9-10. The Supreme Court
concluded that although Article III requirements were met,
prudential considerations required dismissal of the father’s
suit because a state court had awarded legal custody to the
child’s mother, depriving the father of his right under state law
to sue to vindicate his daughter’s rights as her “next friend.” Id.
at 17-18. The Court held: “In our view, it is improper for the
federal courts to entertain a claim by a plaintiff whose stand-
ing to sue is founded on family law rights that are in dispute
when prosecution of the lawsuit may have an adverse effect on
the person who is the source of the plaintiff’s claimed standing.”
Id. at 17.
No. 06-4377 17
powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99
(1975) (emphasis added) (quoting Baker v. Carr, 369 U.S.
186, 204 (1962)). This is because “[t]he Art. III judicial
power exists only to redress or otherwise to protect against
injury to the complaining party, even though the court’s
judgment may benefit others collaterally.” Id. at 499.
The familiar requirements of Article III standing are:
“First, the plaintiff must have suffered an injury in fact—an
invasion of a legally protected interest which is (a) concrete
and particularized . . . and (b) actual or imminent, not
conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citations
and internal quotations omitted). “Second, there must be a
causal connection between the injury and the conduct
complained of—the injury has to be fairly . . . trace[able] to
the challenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party not
before the court.” Id. (internal quotations omitted). And
“[t]hird, it must be likely, as opposed to merely specula-
tive, that the injury will be redressed by a favorable
decision.” Id. at 561 (internal quotations omitted). Thus, a
federal court’s jurisdiction “can be invoked only when the
plaintiff himself has suffered ‘some threatened or actual
injury resulting from the putatively illegal action.’ ” Warth,
422 U.S. at 499 (emphasis added) (quoting Linda R.S. v.
Richard D., 410 U.S. 614, 617 (1973)).
The Supreme Court has made it clear that “when the
plaintiff is not himself the object of the government action
or inaction he challenges, standing is not precluded, but
it is ordinarily ‘substantially more difficult’ to establish.
Lujan, 504 U.S. at 562 (quoting Allen v. Wright, 468 U.S. 737,
758 (1984)). Where the “plaintiff’s asserted injury arises
from the government’s allegedly unlawful regulation (or
lack of regulation) of someone else[,] . . . causation and
18 No. 06-4377
redressability ordinarily hinge on the response of the
regulated (or regulable) third party to the government
action or inaction—and perhaps the response of others
as well.” Id.; see also DH2, Inc. v. U.S. S.E.C., 422 F.3d
591, 596 (7th Cir. 2005). “In this situation, ‘much more
is needed’ to establish standing . . . .” DH2, Inc., 422 F.3d
at 596 (quoting Lujan, 504 U.S. at 562).
Finally, “[t]he party invoking federal jurisdiction bears
the burden of establishing the[ ] elements” of standing.
Lujan, 504 U.S. at 561; see also DaimlerChrysler, 126 S. Ct. at
1861 n.3. These are “not mere pleading requirements but
rather an indispensable part of the plaintiff’s case,” and
“each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence re-
quired at the successive stages of the litigation.” Lujan,
504 U.S. at 561. At the pleading stage, the plaintiff must
allege facts that, assuming their truth, would establish the
injury-in-fact elements necessary to support standing. At
summary judgment, those facts must be supported in the
usual way (by affidavit or other evidence), and at trial they
must be proven. Id.
In light of these well-established principles, it is hard
to understand the court’s categorical statement that a
“case is not dismissed for failure to invoke federal juris-
diction just because the plaintiff fails to prove injury.”
Majority op., at 3-4. To the contrary, it is the plaintiff’s
burden to prove injury-in-fact, Lujan, 504 U.S. at 561-62,
and cases are often dismissed for failure of the plaintiff to
carry that burden. See, e.g., DaimlerChrysler, 126 S. Ct. at
1868; Lujan, 504 U.S. at 562; Winkler v. Gates, 481 F.3d 977,
988 (7th Cir. 2007); DH2, Inc., 422 F.3d at 596-97. Also,
I cannot agree with the court’s view that “[o]rdinarily
No. 06-4377 19
and here the allegation [of injury] is enough,” as long as
“there is some nonnegligable, nontheoretical, probability
of harm.” Majority op., at 3-4. This treats the constitu-
tional minimums as trifling requirements easily satisfied
by almost any allegation of injury, leaving only pruden-
tial standing considerations to be consulted. But the
Supreme Court has long emphasized that the case-or-
controversy requirement is critical to the legitimacy of
the court’s role: “That requirement states a limitation on
judicial power, not merely a factor to be balanced in the
weighing of so-called ‘prudential’ considerations.” Valley
Forge Christian Coll. v. Ams. United for Separation of Church
& State, Inc., 454 U.S. 464, 475 (1982) (“[N]either the coun-
sels of prudence nor the policies implicit in the ‘case or
controversy’ requirement should be mistaken for the
rigorous Art. III requirements themselves.”).
I do not mean to suggest that “to establish standing
a plaintiff must establish that a right of his has been
infringed; that would conflate the issue of standing with
the merits of the suit.” Aurora Loan Servs., Inc. v. Craddieth,
442 F.3d 1018, 1024 (7th Cir. 2006). Rather, the plaintiff
“must have a colorable claim to such a right.” Id. Thus,
“[a]lthough standing in no way depends on the merits
of the plaintiff’s contention that particular conduct is
illegal, . . . it often turns on the nature and source of the
claim asserted.” Warth, 422 U.S. at 500. Accordingly, “[i]t is
not enough that he claims to have been injured by the
defendant’s conduct. ‘The alleged injury must be legally
and judicially cognizable.’ ” Craddieth, 442 F.3d at 1024
(quoting Raines v. Byrd, 521 U.S. 811, 819 (1997)). That is,
“the injury must be to the sort of interest that the law
protects when it is wrongfully invaded.” Id.
This case advanced beyond the pleading stage to the
entry of a preliminary injunction, which of course requires
20 No. 06-4377
the plaintiff to shoulder the burden of establishing a
likelihood of success on the merits. Christian Legal Soc’y v.
Walker, 453 F.3d 803, 859 (7th Cir. 2006). This includes the
elements of standing and usually requires the plaintiff to
move beyond mere allegations. But the Association’s
motion for a preliminary injunction did no more than
rely on the complaint, almost all of which, as I have
noted, pertains to the rights of the City’s property owners.
As to its members’ interests, the Association alleged only
that the point-of-sale ordinance adversely affected its
members’ ability to consummate real estate transactions.
This is not a legally protected interest; the brokers do not
have a generalized right to consummate real estate trans-
actions or earn commissions.
It is certainly true as a practical economic matter that
real estate brokers have an interest in consummating
as many transactions as they can at the highest prices
possible so as to maximize the amount of commissions they
earn. But this is nothing more than an aspiration, not an
expectation or right; no law, state or federal, protects
this interest. That the point-of-sale ordinance has the
potential to reduce commissions does not alone establish
injury for purposes of constitutional standing; the Associa-
tion must establish that the brokers’ interest in future
commissions is “the sort of interest that the law protects
when it is wrongfully invaded.” Craddieth, 442 F.3d at 1024.
It has not done so. The brokers do not have a colorable due
process claim to future commissions; the Association does
not argue otherwise. Indeed, the Association has invoked
no principle of law—constitutional, statutory, or common
law—as an arguable source of legal protection for its
members’ interests. The injury asserted here, while perhaps
a plausible practical one, is not “legally and judicially
No. 06-4377 21
cognizable.” Raines, 521 U.S. at 819. Without a claim of
injury to a legally protected interest, the brokers cannot
establish Article III standing.
Moreover, because the point-of-sale ordinance regulates
real property owners, not brokers, the claim asserted
here arises from the City’s allegedly unconstitutional
regulation of someone other than the Association’s mem-
bers, and “much more is needed” to establish standing.
Lujan, 504 U.S. at 562. The attenuated injury asserted by
the Association is insufficient to satisfy this standard.
The brokers’ alleged injury (even assuming it is legally
cognizable and judicially redressable) depends upon the
independent action of third parties not before the
court—namely, the property owners upon whom the
ordinance operates, building inspectors and zoning
authorities, and prospective buyers of real property in the
City who are just as likely to pay more, not less, for prop-
erty that complies with the City’s codes. This is too con-
jectural to satisfy the “much more” that is needed to
establish standing where the challenged regulation bur-
dens someone other than the plaintiff.
In short, the brokers’ alleged injury is “a diffuse and
speculative harm,” and more fundamentally, the “interest
asserted is not a legally protected one.” DH2, Inc., 422 F.3d
at 596-97. The suit therefore must be dismissed for lack of
Article III standing. Of course, my disagreement with my
colleagues on this point means only that the case is
doubly dismissible; I join the court’s conclusion that
prudential third-party standing doctrine bars the Associa-
tion from bringing this claim. But if the Supreme Court’s
recent standing jurisprudence means anything, it is that
constitutional standing prerequisites are to be closely
monitored and scrupulously enforced. See Hein v. Freedom
22 No. 06-4377
from Religion Found., 127 S. Ct. 2553, 2562 (2007) (“No
principle is more fundamental to the judiciary’s proper
role in our system of government than the constitutional
limitation of federal-court jurisdiction to actual cases or
controversies.”) (quotation omitted); DaimlerChrysler,
126 S. Ct. at 1861 (“The case-or-controversy limitation is
crucial in maintaining the tripartite allocation of power
set forth in the Constitution.”) (internal quotations omit-
ted). This is (or should be) true even when there is a
prudential doctrine handy to guard against unwarranted
extensions of judicial authority. I see little reason to think
the Court would be inclined to relax the constitutional
minimums in third-party standing cases.
The “federal courts sit ‘solely[ ] to decide on the rights
of individuals,’ ” Hein, 127 S. Ct. at 2562 (quoting Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803)), “and
must ‘refrai[n] from passing upon the constitutionality of
an act . . . unless obliged to do so in the proper perfor-
mance of our judicial function, when the question is raised
by a party whose interests entitle him to raise it.’ ” Id.
(quoting Valley Forge, 454 U.S. at 474). The brokers’ rights
are not at issue here; their Association therefore is not
entitled to litigate the question of the constitutionality
of the City’s point-of-sale ordinance. I join the court in
vacating the preliminary injunction and dismissing the suit,
but for lack of constitutional, as well as prudential, stand-
ing.
No. 06-4377 23
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-17-07