Opinion for the court filed by Circuit Judge TAMM.
TAMM, Circuit Judge:
The present appeal requires this court to delve once more into the ever-increasing underbrush of legal precedents applying the doctrine of standing to challenge administrative acts by a federal agency. The appellant, Machinery Dealers National Association (MDNA), is a trade association representing approximately 350 members who buy and sell used industrial machinery. Along with a senator and three congressmen,
Upon Lockheed's motion, which was joined by GSA, the district court dismissed the plaintiffs' complaint.
A. The Statutory Scheme
Any sale of government property to a private party must comply with the provisions of the Federal Property and Administrative Services Act. Under the Act, property subject to the control of a federal agency which is not required for the discharge of the agency's responsibilities may be declared "excess".
With certain exceptions, disposals must be accomplished through publicly advertised, competitive bidding.
B. Course of Negotiation, Declaration of Excess, and Effectuation of Sale
Prior to 1968, the government-owned portions of Plant No. 14 were dedicated to the use of and under the control of the Department of Defense (DOD). In that year,
C. Allegations of Illegality and Claim to Relief
MDNA claims that the negotiation and sale of Plant No. 14 to Lockheed violated two provisions of the Act and also constituted arbitrary and capricious action on the part of GSA. First, MDNA contends that DOD could not properly declare Plant No. 14 surplus because the condition requiring Lockheed to maintain the plant's defense production capacity for five years demonstrates that DOD had a continuing need for the plant.
On the basis of these arguments MDNA seeks a judicial declaration that GSA's attempted sale to Lockheed was unlawful and of no force or effect and an order requiring GSA to "take immediate steps to exercise full right, title, interest and control over said Property."
II. INJURY IN FACT
Under the "case or controversy" requirement of Article III of the Constitution, a claim is justiciable in the federal courts only if the claimant has "`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 powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (emphasis in original). Yet in the view we take of this case we do not reach the question whether the injury here alleged meets the "irreducible Art. III case-or-controversy requirements for standing," United States v. Richardson, 418 U.S. 166, 180-81, 94 S.Ct. 2940, 2949, 41 L.Ed.2d 678 (1974) (Powell, J., concurring), because we are governed by the Administrative Procedure Act, 5 U.S.C. § 702 (1970), which grants standing to challenge administrative action to any "person suffering legal wrong . . . or adversely affected or aggrieved" by it. See United States v. Students Challenging Regulatory Agency Procedure (SCRAP), 412 U.S. 669, 687-90 & n.14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 384, 424 F.2d 859, 872 (1970); cf. K. Davis, Administrative Law of the Seventies § 22.02-11, at 509 (1976); Currie, The Supreme Court and Federal Jurisdiction: 1975 Term, 1976 Sup.Ct.Rev. 183, 184. If the plaintiff fails the statutory test of showing the challenged action has adversely affected him, we need not address the constitutional issue. To meet this threshold requirement, a plaintiff must demonstrate
A. Characteristics of Injury in Fact
An "injury in fact" need not be substantial to support federal court jurisdiction over this challenge to agency action; an identifiable trifle will suffice. United States v. SCRAP, supra, 412 U.S. at 689 n.14, 93 S.Ct. 2405; K. Davis, Administrative Law Treatise §§ 22.09-5, 22.09-6 (Supp.1970). The injury may be one which MDNA's members have already sustained
Standing alone, these generalized criteria for assessing the jurisdictional adequacy of a demonstration of "injury in fact" are nebulous and difficult of application. We must therefore look to the analytical method employed by the Supreme Court in recent decisions for guidance in resolving MDNA's standing claim.
In Linda R. S. v. Richard D., supra, a mother of an illegitimate child sought an injunction to require prosecution of the putative father under a state statute criminalizing the failure to support a child. The statute had been consistently construed to apply solely to the parents of legitimate children, resulting, according to the mother, in a challengeable deprivation of equal protection. She claimed standing to present such a challenge in federal court on the basis of economic injury to her interest in securing child support from the father. The Supreme Court observed that, even assuming the requested relief were granted,
410 U.S. at 618, 93 S.Ct. at 1149. Subsequent cases have affirmed the principle that a claimant is required to show a substantial probability that the requested relief would benefit him in some perceptible, tangible fashion. See, e. g., Simon v. Eastern Kentucky Welfare Rights Organization, supra; Bowker v. Morton, supra.
The disposition of some of the claims presented in Warth v. Seldin, supra, indicates the proper application of this criterion where a plaintiff claims interference to the profitability of an on-going business. In Warth, two associations of housing contractors sought to challenge a zoning ordinance which barred construction of low-income housing. The Court held that one association had failed to "show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention" because it failed to refer to any project of its members with which the enforcement of the ordinance interfered at the time the lawsuit was commenced. 422 U.S. at 516, 95 S.Ct. 2197, 2214. The other association claimed by affidavit to represent "`at least seventeen' groups that have been, are, or will be involved in the development of low- and moderate-cost housing," which groups allegedly
422 U.S. at 516-17, 95 S.Ct. at 2214. Without further mention of the "non-excepted" association members, the Supreme Court found that this second association also lacked standing. It therefore appears that to establish standing to seek redress for an economic injury to a competitive interest, a plaintiff must demonstrate that within a reasonably proximate period prior to the commencement of the suit some action to further that competitive interest had been taken and had been interfered with, or that such action to be taken in the future was contemplated at that time.
The proper application of the criteria requiring concrete, perceptible harm of a real, non-speculative nature is illustrated by the disposition in California Bankers Association v. Shultz, supra, 416 U.S. at 67-69, 94 S.Ct. 1494. Therein individual bank depositors and an association representing other bank depositors sought an injunction against enforcement of a regulation that required financial institutions to report each cash transaction involving more than $10,000. The individual depositors and the representative association claimed that this regulation contravened fourth amendment protections against unreasonable searches. The Court held, however, that they lacked standing, stating:
416 U.S. at 68, 94 S.Ct. at 1521 (footnote omitted).
Absent a showing that the plaintiffs are within the class of persons whose interests are necessarily, or with substantial probability, affected by the challenged agency action, the nexus between allegedly illegal agency action and the interests of the claimants is too speculative, and therefore the statutory requirement that the plaintiff be "aggrieved" or "adversely affected" is not satisfied. Inclusion within such a class may not be inferred from facts indicating only potential inclusion, for that would improperly allow speculation and
B. Analysis of MDNA's Demonstration of "Injury in Fact"
In light of the foregoing discussion of the criteria of standing and of the Supreme Court's application of these criteria, we find MDNA's proffered demonstration of "injury in fact" inadequate.
1. Injury to Interest in Selling to Lockheed
MDNA's first claim is that some members have in the past sold machinery to Lockheed and that during the foreseeable future Lockheed's needs for such machinery have been satisfied through the sale of Plant No. 14. Thereby, MDNA reasons, its members have been injured through the elimination of opportunities to profit through future sales to Lockheed.
We note, initially, that prior to the sale of Plant No. 14 the very machinery which Lockheed has now purchased subject to a five year use restriction was being operated by Lockheed for similar (if not the very same) purposes under authority granted by DOD.
Assuming, as we must, that this claim is true,
2. Injury to Interest in Bidding for Plant No. 14
MDNA's second allegation of "injury in fact" relates to its members' interest in bidding competitively for the machinery
Therefore, in light of the holding in Warth v. Seldin, supra, MDNA may challenge the failure to advertise for competitive bidding only upon demonstration that its members presently participate in or contemplate participation in a viable business project which had adequate resources and an existent intent to purchase property such as Plant No. 14 as a whole. No such project or intent was alleged by MDNA in its complaint which claimed only that its members were interested in purchasing "some of the property sold to Lockheed." The depositions of MDNA's officers only raised the possibility that a group of members might organize and, with the possible involvement of unnamed real estate investors, might together have adequate resources to bid competitively for Plant No. 14 as a whole.
3. Injury Through Increased Competition
Although not alleged in its complaint nor referred to by the district court in its memorandum and order of dismissal, MDNA claims a third "injury in fact" on appeal.
The lone evidence of this claimed resale of the machinery in Plant No. 14 is a flyer, distributed by an MDNA member, announcing an auction of machinery which lists some of the machinery obtained by Lockheed through the challenged sale.
Additionally, MDNA has not demonstrated that the November 1973 auction actually resulted in an injury to its members through increased competition. The record does not disclose who received notice of this auction other than MDNA's members, nor who bid on the machinery.
There being no demonstration on the part of MDNA which adequately indicates that one or more of its members could have established that the sale of Plant No. 14 resulted in an "injury in fact" to their interests qua members of MDNA, MDNA lacks standing to challenge the sale. For this reason, the district court's dismissal of the action is
The district court found that MDNA's allegations of economic injury to its members constituted an attempt to obtain standing to challenge GSA's conduct of the sale of Plant No. 14 as competitors, and that, as such, the question of MDNA's standing to invoke federal court jurisdiction under § 10 of the Administrative Procedure Act, 5 U.S.C. § 702, was governed by Ass'n of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). The three-part standard established by the Supreme Court therein requires that a claimant seeking standing as a competitor injured through administrative action of a federal agency must allege (1) that due to the challenged action, he incurred an "injury in fact" within the meaning of Article III of the U.S. Constitution; (2) that the interest thereby injured is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question; and (3) that review of the administrative action is not otherwise precluded. Without determining if MDNA's allegations of injury met the requirements for an Article III "injury in fact", the district court found that the Act did not arguably protect the class of competitive interests which MDNA claimed had been injured, and on this basis dismissed the action.
MDNA's subsequent request for reconsideration was denied by order dated Feb. 24, 1975. J.A. at 40. The claims of the congressional plaintiffs were given further consideration, but following the decisions of this court in Public Citizen v. Sampson, aff'd mem., 169 U.S.App.D.C. 301, 515 F.2d 1018 (1975), and Stokes v. GSA, aff'd mem., 169 U.S.App.D.C. 301, 515 F.2d 1018 (1975), the parties consented to a dismissal of these claims which was accomplished by order dated June 18, 1975. J.A. at 42. Notice of appeal was filed by MDNA on Aug. 18, 1975.
Studley Depo., at 130-31 (emphasis added).
This testimony must be read in light of the testimony of Robert Tannen, General Manager of MDNA, and Sidney Mandell, then President of MDNA:
Tannen Depo., at 50-51 (emphasis added).
Mandell Depo., at 77-79 (emphasis added).
Even when read as favorably to MDNA as is reasonable, this testimony does not demonstrate any non-speculative basis for finding that a viable syndicate existed or was contemplated by MDNA members.
At least one recent decision indicates, however, that an appellate court can go beyond the allegations included in the pleadings to identify from the record any other injuries which might meet the Article III standard for standing. Urban Contrs. Alliance v. Bi-State Develop. Agency, 531 F.2d 877, 880 n.3 (8th Cir. 1976). We therefore reluctantly undertake analysis of this third claimed "injury in fact."
MDNA has not included a request for damages in its complaint. Injury from increased competition could be the source of such a claim, however, and we note that with respect to that issue the Supreme Court has just about said it all in Warth v. Seldin, supra:
422 U.S. at 515, 95 S.Ct. at 2214.