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Lujan v. Defenders of Wildlife, 504 U.S. 555, 570-71 n.5 (1992)

In response to comments from folks who read BONY v Romero on this site, a case cited in Romero was Lujan, which case focused on standing – a term every reader here is fondly familiar with. 

A lot can be gleaned from Lujan which has been cited over 15,000 times – worth reading to learn why this case was cited so much.

While the current events are not about endangered species, per se, ironically, it is time to start addressing a new ‘endangered specie being threatened as a result of the destruction or adverse modification of habitat that has  reached a critical mass over the past 5 years.  For decades we have looked out for and protected, as we should, innocent species and their rights to live and survive without threats of man-made devices. 

Now we, as individuals, and families, are the ones being threatened in our habitats by the MILLIONS; yet no entity or agency is doing anything about it.   We have become the new endangered species and it is time focus is on us and our habitats.

Lujan is not solely about wildlife conservation, but legal concerns, it just ironically focuses on the subject matter of preserving species – a topical subject involving human habitation in a form of ‘specie survival’ for American families today.

In Lujan . . . Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical. 16 U. S. C. § 1536(a)(2).

While the Constitution of the United States divides all power conferred upon the Federal Government into “legislative Powers,”Art. I, § 1, “[t]he executive Power,” Art. II, § 1, and “[t]he judicial Power,” Art. III, § 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to “Cases” and “Controversies,” but an executive inquiry can bear the name “case” (the Hoffa case) and a legislative dispute can bear the name “controversy” (the Smoot-Hawley controversy). Obviously, then, the Constitution’s central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts.

In The Federalist No. 48, Madison expressed the view that “[i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere,” whereas “the executive power [is] restrained within a narrower compass and .. . more simple in its nature,” and “the judiciary [is] described by landmarks still less uncertain.” One of those landmarks, setting apart the “Cases” and “Controversies” that are of the justiciable sort referred to in Article III —” serv[ing] to identify those disputes which are appropriately resolved through the judicial process,” Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) — is the doctrine of standing.  Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U. S. 737, 751 (1984).

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements.

First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is

(a)     concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972);[1] and

(b)     “actual or imminent, not `conjectural’ or `hypothetical,’ ” Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95, 102 (1983)).

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.” Simon v. Eastern Ky. Welfare *561 Rights Organization, 426 U. S. 26, 41-42 (1976).

Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43.

The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, 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 required at the successive stages of the litigation.   Lujan, supra, at 871, 883-889; Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting).

The takeaway – it requires the party seeking review be himself among the injured. 

To survive summary judgment a party has to submit affidavits or other evidence showing, through specific facts, not only listed claims were being threatened by activities elsewhere [i.e., MERS, servicers, trustees], but also one or more of a party’s members would thereby be directly affected apart from their special interest in the subject [again, investors, servicers, MERS, trustees]. 

Moral of the story as it relates to our readers, only the party that was the true source of funds in these real estate transactions could suffer ‘injury’ – and only one to a customer – the odds are the party in these mortgage cases was never injured and was in fact made whole by insurance, default swaps, bailouts, advances, etc. 

So instead of ‘what’s in your wallet?’ it’s ‘who’s in your wallet?’  Answers we will know in this mortgage mess.

There is a lot to learn from Lujan, keep reading and glean what you can!

Lujan_v._Defenders_of_Wildlife

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