author: Mr. Justice Douglas Mr. Justice Brennan,

text:
    BARLOW et al. v. COLLINS, EXECUTIVE DIRECTOR, ALABAMA AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE, et al.
    No. 249.
    Argued November 19, 1969
    Decided March 3, 1970

      Harold Edgar argued the cause for petitioners pro hac vice. With him on the briefs were Lee A. Albert and Jonathan Weiss.

      Peter L. Strauss argued the cause for respondents. With him on the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Alan S. Rosen-thal, and Norman G. Knopf.

   Mr. Justice Douglas

delivered the opinion of the Court.

The question to be decided in this case is whether tenant farmers eligible for payments under the upland cotton program enacted as part of the Food and Agriculture Act of 1965, 79 Stat. 1194, 7 U. S. C. § 1444 (d) (1964 ed., Supp. IV), have standing to challenge the validity of a certain amended regulation promulgated by the respondent Secretary of Agriculture in 1966.

The upland cotton program incorporates a 1938 statute, § 8 (g) of the Soil Conservation and Domestic Allotment Act, as amended, 52 Stat. 35 and 205, 16 U. S. C. § 590h (g), thereby permitting participants in the program to assign payments only “as security for cash or advances to finance making a crop.” The regulation of the respondent Secretary of Agriculture in effect until 1966 defined “making a crop” to exclude assignments to secure “the payment of the whole or any part of a cash . . . rent for a farm.”' 20 Fed. Reg. 6512 (1955). Following passage of the 1965 Act, however, and before any payments were made under it, the Secretary deleted the exclusion and amended the regulation expressly to define “making a crop” to include assignments to secure “the payment of cash rent for land used [for planting, cultivating, or harvesting]." 31 Fed. Reg. 2815 (1966).

Petitioners, cash-rent tenant farmers suing on behalf of themselves and other farmers similarly situated, filed this action in the District Court for the Middle District of Alabama. They sought a declaratory judgment that the amended regulation is invalid and unauthorized by statute, and an injunction prohibiting the respondent federal officials from permitting assignments pursuant to the amended regulation. Their complaint alleged that the petitioners are suffering irreparable injury under the amended regulation, because it provides their landlord “with the opportunity to demand that [they] and all those similarly situated assign the [upland cotton program] benefits in advance as a condition to obtaining a lease to work the land.” As a result, the complaint stated, the tenants are required to obtain financing of all their other farm needs — groceries, clothing, tools, and the like — from the landlord as well, since prior to harvesting the crop they lack cash and any source of credit other than the landlord. He, in turn, the complaint alleges, levies such high prices and rates of interest on these supplies that the tenants’ crop profits are consumed each year in debt payments. Petitioners contend that they can attain á “modest measure of economic independence” if they are able to use their “advance subsidy payments . . . [to] form cooperatives to buy [supplies] at wholesale and reasonable prices in lieu of the excessive prices demanded by [the landlord] of . . . captive consumers with no funds to purchase elsewhere.” Thus, petitioners allege that they suffer injury in fact from the operation of the amended regulation.

The District Court, in an unreported opinion, held that the petitioners “lack standing to maintain this action against these [respondent] governmental officials,” because the latter “have not taken any action which directly invades any legally protected interest of the plaintiffs.” The Court of Appeals for the Fifth Circuit affirmed, one judge dissenting. 398 F. 2d 398. It held that petitioners lacked standing not only because they alleged no invasion of a legally protected interest but also because petitioners “have not shown us, nor have we found, any provision of the Food and Agriculture Act of 1965 which either expressly or impliedly gives [petitioners] standing to challenge this administrative regulation or gives the Courts authority to review such administrative action.” Id., at 402. We granted certiorari. 395 U. S. 958.

Our decision in Data Processing Service v. Camp, ante, p. 150, leads us to reverse here.

First, there is no doubt that in the context of this litigation the tenant farmers, petitioners here, have the personal stake and interest that impart the concrete adverseness required by Article III.

Second, the tenant farmers are clearly within the zone of interests protected by the Act.

Implicit in the statutory provisions and their legislative history is a congressional intent that the Secretary protect the interests of tenant farmers. Both of the relevant statutes expressly enjoin the Secretary to do so. The Food and Agriculture Act of 1965 states that “[t]he Secretary shall provide adequate safeguards to protect the interests of tenants . . . .” 79 Stat. 1196, 7 U. S. C. § 1444 (d) (10) (1964 ed., Supp. IV). Title 7 U. S. C. § 1444 (d) (13) (1964 ed., Supp. IV), as noted earlier, incorporates by reference § 8 (g), as amended, 52 Stat. 35 and 205, 16 U. S. C. § 590h (g). Section 8 (b) of that Act, in turn, provides that “the Secretary shall, as far as practicable, protect the interests of tenants . . . .” 52 Stat. 32, 16 U. S. C. § 590h (b). The legislative history of the “'making a crop” provision, though sparse, similarly , indicates a congressional intent to benefit the tenants. They are persons “aggrieved by agency action within the meaning of a relevant statute” as those words are used in 5 U. S. C. § 702 (1964 ed., Supp. IV).

Third, judicial review of the Secretary’s action is not precluded. The Court of Appeals rested its holding on the view that no provision of the Food and Agriculture Act of 1965 “expressly or impliedly . . . gives the Courts authority to review such administrative action.” 398 F. 2d, at 402. Whether agency action is reviewable often poses difficult questions of congressional intent; and the Court must decide if Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion.

The Administrative Procedure Act, 5 U. S. C. § 701 (a) (1964 ed., Supp. IV), allows judicial review of agency action except where “(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” The amended regulation here under challenge was promulgated under 16 U. S. C. § 590d (3) which authorizes the Secretary to “prescribe such regulations, as he may deem proper to carry out the provisions of this chapter.” Plainly this provision does not expressly preclude judicial review, nor does any other provision in either the 1938 or 1965 Act. Nor does the authority to promulgate such regulations “as he may deem proper” in § 590d (3) constitute a commitment of the task of defining “making a crop” entirely to the discretionary judgment of the Executive Branch without the intervention of the courts. On the contrary, since the only or principal dispute relates to the meaning of the statutory term, the controversy must ultimately be resolved, not on the basis of matters within the special competence of the Secretary, but by judicial application of canons of statutory construction. See Texas Gas Transmission Corp. v. Shell Oil Co., 363 U. S. 263, 268-270. “The role of the courts should, in particular, be viewed hospitably where . . . the question sought to be reviewed does not significantly engage the agency’s expertise. ‘[Wjhere the only or principal dispute relates to the meaning of the statutory term’. . . [the controversy] presents issues on which courts, and not [administrators], are relatively more expert.” Hardin v. Kentucky Utilities Co., 390 U. S. 1, 14 (Harlan, J., dissenting). Therefore the permissive term “as he may deem proper,” by itself, is not to be read as a congressional command which precludes a judicial determination of the correct application of the governing canons.

The question then becomes whether nonreviewability can fairly be inferred. As we said in Data Processing Service, preclusion of judicial review of administrative action adjudicating private rights is not lightly to be inferred. See Leedom v. Kyne, 358 U. S. 184; Harmon v. Brucker, 355 U. S. 579; Stark v. Wickard, 321 U. S. 288; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94. Indeed, judicial review of such administrative action is the rule, and nonreview-ability an exception which must be demonstrated. In Abbott Laboratories v. Gardner, 387 U. S. 136, 140, we held that “judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” A clear command of the statute will preclude review; and such a command of the statute may be inferred from its purpose. Switchmen’s Union v. National Mediation Board, 320 U. S. 297. It is, however, “only upon a showing of 'clear and convincing evidence’ of a contrary legislative intent" that the courts should restrict access to judicial review. Abbott Laboratories v. Gardner, supra, at 141. The right of judicial review is ordinarily inferred where congressional intent to protect the interests of the class of which the plaintiff is a member can be found; in such cases, unless members of the protected class may have judicial review the statutory objectives might not be realized. See the Chicago Junction Case, 264 U. S. 258; Hardin v. Kentucky Utilities, supra.

We hold that the statutory scheme at issue here is to be read as evincing a congressional intent that petitioners may have judicial review of the Secretary’s action.

The judgments of the Court of Appeals and of the District Court are vacated and the case is remanded to the District Court for a hearing on the merits.

It is so ordered.

Mr. Justice Brennan,

with whom Mr. Justice White joins,

concurring in the result and dissenting.

I concur in the result in both cases but dissent from the Court’s treatment of the question of standing to challenge agency action.

The Court’s approach to standing, set out in Data Processing, has two steps: (1) since “the framework of Article III . . . restricts judicial power to 'cases’ and ‘controversies,’ ” the first step is to determine “whether the plaintiff alleges that the challenged action has caused him injury in fact"; (2) if injury in fact is alleged, the relevant statute or constitutional provision is then examined to determine “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.”

My view is that the inquiry in the Court’s first step is the only one that need be made to determine standing. I had thought we discarded the notion of any additional requirement when we discussed standing solely in terms of its constitutional content in Flast v. Cohen, 392 U. S. 83 (1968). By requiring a second, nonconstitutional step, the Court comes very close to perpetuating the discredited requirement that conditioned standing on a showing by the plaintiff that the challenged governmental action invaded one of his legally protected interests. Barlow is a typical illustration of the harm that resulted from that requirement. The only substantial issue in that case goes to the merits: does the statutory language “making a crop” create a legally protected interest for tenant farmers in the form of a prohibition against the assignment of their federal benefits to secure cash rent? By confusing the merits with the plaintiffs’ standing to challenge the Secretary’s action, both the District Court and the Court of Appeals denied the farmers the focused and careful decision on the merits to which they are clearly entitled. Although this Court properly reverses the Court of Appeals on that account, it encourages more Barlow decisions by engrafting its wholly unnecessary and inappropriate second step upon the constitutional requirement for standing.

Before the plaintiff is allowed to argue the merits, it is true that a canvass of relevant statutory materials must be made in cases challenging agency action. But the canvass is made, not to determine standing, but to determine an aspect of reviewability, that is, whether Congress meant to deny or to allow judicial review of the agency action at the instance of the plaintiff. The Court in the present cases examines the statutory materials for just this purpose but only after making the same examination during the second step of its standing inquiry. Thus in Data Processing the Court determines that the petitioners have standing because they alleged injury in fact and because “§ 4 [of the Bank Service Corporation Act of 1962] arguably brings a competitor within the zone of interests protected by it.” The Court then determines that the Comptroller's action is reviewable at the instance of the plaintiffs because “[b]oth [the Bank Service Corporation Act and the National Bank Act] are clearly ‘relevant’ statutes within the meaning of [the Administrative Procedure Act, 5 U. S. C. § 702 (1964 ed., Supp. IV)]. The Acts do not in terms protect a specified group. But their general policy is apparent ; and those whose interests are directly affected by a broad or narrow interpretation of the Acts are easily identifiable. It is clear that petitioners, as competitors of national banks that are engaging in data processing services, are within that class of 'aggrieved' persons who, under § 702, are entitled to judicial review of 'agency action.’ ” Again in Barlow, the plaintiff tenant farmers are found to have standing because they alleged injury in fact and because “tenant farmers are . . . within the zone of interests protected by the Act.” Examination of the same statutory materials subsequently leads the Court to the conclusion that the tenant farmers are entitled to judicial review of the Secretary's action because “the statutory scheme ... is to be read as evincing a congressional intent that petitioners may have judicial review of the Secretary's action.”

I submit that in making such examination of statutory materials an element in the determination of standing, the Court not only performs a useless and unnecessary exercise but also encourages badly reasoned decisions, which may well deny justice in this complex field. When agency action is challenged, standing, reviewability, and the merits pose discrete, and often complicated, issues which can best be resolved by recognizing and treating them as such.

I

Standing

Although Flast v. Cohen was not a case challenging agency action, its determination of the basis for standing should resolve that question for all cases. We there confirmed what we said in Baker v. Carr, 369 U. S. 186, 204 (1962), that the “gist of the question of standing” is whether the party seeking relief has “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 illumination of difficult . . . questions.” “In other words,” we said in Flast, “when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue” and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action invaded. 392 U. S., at 99-100. The objectives of the Article III standing requirement are simple: the avoidance of any use of a “federal court as a forum [for the airing of] generalized grievances about the conduct of government,” and the creation of a judicial context in which “the questions will be framed with the necessary specificity, . . . the issues . . . contested with the necessary adverseness and . . . the litigation . . . pursued with the necessary vigor to assure that the . . . challenge will be made in a form traditionally thought to be capable of judicial resolution.” Id., at 106. Thus, as we held in Flast, “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.” Id., at 101. See also Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 83-84 (1958).

In light of Flast, standing exists when the plaintiff alleges, as the plaintiffs in each of these cases alleged, that the challenged action has caused him injury in fact, economic or otherwise. He thus shows that he has the requisite “personal stake in the outcome” of his suit. Baker v. Carr, supra, at 204. We may reasonably expect that a person so harmed will, as best he can, frame the relevant questions with specificity, contest the issues with the necessary adverseness, and pursue the litigation vigorously. Recognition of his standing to litigate is then consistent with the Constitution, and no further inquiry is pertinent to its existence.

II

Reviewability

When the legality of administrative action is at issue, standing alone will not entitle the plaintiff to a decision on the merits. Pertinent statutory language, legislative history, and public policy considerations must be examined to determine whether Congress precluded all judicial review, and, if not, whether Congress nevertheless foreclosed review to the class to which the plaintiff belongs. Under the Administrative Procedure Act (APA), “statutes [may] preclude judicial review” or “agency action [may be] committed to agency discretion by law.” 5 U. S. C. § 701 (a) (1964 ed., Supp. IV). In either ease, the plaintiff is out of court, not because he had no standing to enter, but because Congress has stripped the judiciary of authority to review agency action. Review may be totally foreclosed, as in Schilling v. Rogers, 363 U. S. 666 (1960), or, if permitted, it may nonetheless be denied to the plaintiff’s class. But the governing principle laid down in Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967), is that “judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.”

The APA provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U. S. C. § 702 (1964 ed., Supp. IV). Congressional intent that a particular plaintiff have review may be found either in express statutory language granting it to the plaintiff’s class, or, in the absence of such express language, in statutory indicia from which a right to review may be inferred. Where, as in the instant cases, there is no express grant of review, reviewability has ordinarily been inferred from evidence that Congress intended the plaintiff’s class to be a beneficiary of the statute under which the plaintiff raises his claim. See, for example, the Chicago Junction Case, 264 U. S. 258 (1924); Hardin v. Kentucky Utilities Co., 390 U. S. 1 (1968); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920 (C. A. 2d Cir. 1968). In light of Abbott Laboratories, slight indicia that the plaintiff’s class is a beneficiary will suffice to support the inference.

III

The Merits

If it is determined that a plaintiff who alleged injury-in fact is entitled to judicial review, inquiry proceeds to the merits — to whether the specific legal interest claimed by the plaintiff is protected by the statute and to whether the protested agency action invaded that interest. It is true, of course, that matters relevant to the merits will already have been touched tangentially in the determination of standing and, in some cases, in the determination of reviewability. The aspect of the merits touched in establishing standing is the identification of injury in fact, the existence of which the plaintiff must prove. The merits are also touched in establishing reviewability in cases where the plaintiff's right to review must be inferred from evidence that his class is a statutory beneficiary. The same statutory indicia that afford the plaintiff a right to review also bear on the merits, because they provide evidence that the statute protects his class, and thus that he is entitled to relief if he can show that the challenged agency action violated the statute. Evidence that the plaintiff’s class is a statutory beneficiary, however, need not be as strong for the purpose of obtaining review as for the purpose of establishing the plaintiff’s claim on the merits. Under Abbott Laboratories, slight beneficiary indicia will suffice to establish his right to have review and thus to reach the merits.

IV

To reiterate, in my view alleged injury in fact, re-viewability, 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 was reviewable at his instance.

The risk of ambiguity and injustice can be minimized by cleanly severing, so far as possible, the inquiries into reviewability and the merits from the determination of standing. Today’s decisions, however, will only compound present confusion and breed even more litigation over standing. In the first place, the Court’s formulation of its nonconstitutional element of standing is obscure. What precisely must a plaintiff do to establish that “the interest sought to be protected ... is arguably within the zone of interests to be protected or regulated by the statute”? How specific an “interest” must he advance? Will a broad, general claim, such as competitive interest, suffice, or must he identify a specific legally protected interest? When, too, is his interest “arguably” within the appropriate “zone”? Does a mere allegation that it falls there suffice? If more than an allegation is required, is the plaintiff required to argue the merits? And what is the distinction between a “protected” and a “regulated” interest? Is it possible that a plaintiff may challenge agency action under a statute that unquestionably regulates the interest at stake, but that expressly excludes the plaintiff’s class from among the statutory beneficiaries?

In the second place, though the Court insists that its nonconstitutional standing inquiry does not involve a determination of the merits, I have grave misgivings on this score. The formulation of the inquiry most certainly bears a disquieting similarity to the erroneous notion that a plaintiff has no standing unless he can establish the existence of a legally protected interest. Finally, assuming that the inquiry does not, in fact, focus on the merits, then surely it serves only to determine whether the challenged agency action is reviewable at the instance of the plaintiff in cases where there is no express statutory grant of review to members of his class. And, if this is so, it has no place in the determination of standing. In terms of treating related questions with one another, this inquiry is best made in the reviewability context. The Constitution requires for standing only that the plaintiff allege that actual harm resulted to him from the agency action. Investigation to determine whether the constitutional requirement has been met has nothing in common with the inquiry into statutory language, legislative history, and public policy that must be made to ascertain whether Congress has precluded or limited judicial review. More fundamentally, an approach that treats separately the distinct issues of standing, reviewability, and the merits, and decides each on the basis of its own criteria, assures that these often complex questions will be squarely faced, thus contributing to better reasoned decisions and to greater confidence that justice has in fact been done. The Court's approach does too little to guard against the possibility that judges will use standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits. The Court’s approach must trouble all concerned with the function of the judicial process in today’s world. As my Brother Douglas has said: “The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained. . . . [Wjhere wrongs to individuals are done ... it is abdication for courts to close their doors.” Flast v. Cohen, supra, at 111 (concurring opinion).

       The Secretary of Agriculture is authorized by 7 U. S. C. § 1444 (d) (5) (1964 ed., Supp. IV) to pay a farmer in advance of tire growing season up to 50% of the estimated benefits due him. Section 1444 (d) (13) (1964 ed., Supp. IV) authorizes the farmer to assign such benefits subject to the limitations of § 8 (g) added by the 1938 Act, 16 U. S. C. § 590h (g). Section 8 (g) as enacted in 1938 and as it read in 1965 established an exception to the general prohibition against assignment of federal monies in the Anti-Assignment Act, 31 U. S. C. § 203. Section 8 (g) provided:
      “A payment which may be made to a farmer under this section, may be assigned, without discount, by him in writing as security for cash or advances to finance making a crop. Such assignment shall be signed by the farmer and witnessed by a member of the county or other local committee .... Such assignment shall include the statement that the assignment is not made to pay or secure any preexisting indebtedness. This provision shall not authorize any suit against or impose any liability upon the Secretary ... if payment to the farmer is made without regard to the existence of any such assignment.” 52 Stat. 35 and 205, 16 U. S. C. § 590h (g) (emphasis added).
      Section 8 (g) was amended by 80 Stat. 1167 (1966) to permit assignments not only to finance “making a crop” but also to fund “handling or marketing an agricultural commodity, or performing a conservation practice.” 16 U. S. C. § 590h (g) (1964 ed., Supp. IV).

       20 Fed. Reg. 6512 (1955) provided:

        “Payment may be assigned to finance making a crop. A payment which may be made to a farmer . . . under section 8 of the Soil Conservation and Domestic Allotment Act, as amended, may be assigned only as security for cash or advances to finance making a crop for the current crop year. To finance making a crop means (a) to finance the planting, cultivating, or harvesting of a crop, including the purchase of equipment required therefor; (b) to provide food, clothing, and other necessities required by the assignor or persons dependent upon the assignor; or (c) to finance the carrying out of soil or water conservation practices. Nothing contained herein shall be construed to authorize an assignment given to secure the payment of the whole or any part of the purchase price of a farm or the payment of the whole or any part of a cash or fixed commodity rent for a farm.”

       32 Fed. Reg. 14921 (1967), 7 CFR § 709.3 (1969) now provides:

        “Purposes jor which a payment may he assigned.

      “(a) A payment which may be made to a producer under any program to which this part is applicable may be assigned only as security for cash or advances to finance making a crop,, handling or marketing an agricultural commodity, or performing a conservation practice, for the current crop year. No assignment may be made to secure or pay any preexisting indebtedness of any nature whatsoever.
      “(b) To finance making a crop means (1) to finance the planting, cultivating, or harvesting of a crop, including the purchase of equipment required therefor and the payment of cash rent for land used therefor, or (2) to provide food, clothing, and other necessities required by the producer or persons dependent upon him.
      “(c) Nothing contained herein shall be construed to authorize an assignment given to secure the payment of the whole or any part of the purchase price of a farm or the payment of the whole or any part of a fixed commodity rent for a farm.”

       The respondents, in addition to the Secretary of Agriculture, are the State Executive Director of the Agricultural Stabilization and Conservation Service in Alabama, and the administrator of that Service in the U. S. Department of Agriculture. The complaint also included counts against petitioners’ landlord alleging that he acted improperly to deprive them of their right to receive subsidy payments, and, further, that some of the petitioners had been illegally evicted because of their participation in litigation with respect to the cotton program, and, in the case of one petitioner, because of his candidacy for Alabama Agricultural Stabilization and Conservation Service county committeeman. The District. Court denied the landlord’s motion to dismiss these counts and transferred them for trial to the Southern District of Alabama. That ruling is not before us.

       The complaint stated that some of the petitioners “were denied the right to work the land” when they refused to execute assignments to their landlord. The complaint also alleged that “[p]laintiffs have been tenant farmers on this land from eleven to sixty-one years . . . and [two of them] have been on this land all their lives.”

       In connection with the amended regulations, the Secretary issued under § 1444 (d) (10) various rules designed to ensure that tenants receive their fair share of the federal payments. 31 Fed. Reg. 4887-4888; 7 CFR §§ 722.817, 794.3.

       See the remarks of Representative Fulmer, 82 Cong. Rec. 844 (1937), and of Senator Adams, id., at 1756. The fact that assignments could be made at all indicated a congressional concern for the fanners’ welfare, in light of the general statutory prohibition on assignment of federal claims embodied in the Anti-Assignment Act, 31 U. S. C. § 203. This concern was noted in a letter from the Secretary of Agriculture to the President of the Senate in January 1952, in which the Secretary stated that § 8 (g) “was enacted for the purpose of creating additional credit to farmers to assist them in financing farming operations.” S. Rep. No. 1305, 82d Cong., 2d Sess., 3.

      [Tliis opinion applies also to No. 85, Association of Data Processing Service Organizations, Inc., et al. v. Camp, Comptroller of the Currency, et al., ante, p. 150.]

       Cf. the language in Associated Industries v. Ickes, 134 F. 2d 694, 700 (C. A. 2d Cir. 1943): "In a suit in a federal court by a citizen against a government officer, complaining of alleged past . . . unlawful conduct by the defendant, there is no justiciable 'controversy' . . . unless the citizen shows that such conduct ... invades ... a private substantive legally protected interest of the plaintiff citizen; such invaded interest must be either of a 'recognized' character, at ‘common law’ or a substantive private legally protected interest created by statute [or Constitution].”

       Reviewability has often been treated as if it involved a single issue: whether agency action is conclusive and beyond judicial challenge by anyone. In reality, however, reviewability is equally concerned with a second issue: whether the particular plaintiff then requesting review may have it. See the Administrative Procedure Act, 5 U. S. C. §§ 701 (a) and 702 (1964 ed., Supp. IV). Both questions directly concern the extent to which persons harmed by agency action may challenge its legality.

       Other elements of justiciability are, for instance, ripeness, e. g., Poe v. Ullman, 367 U. S. 497 (1961), mootness, e. g., United States v. W. T. Grant Co., 345 U. S. 629 (1953), and the policy against friendly or collusive suits, e. g., Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 (1892); United States v. Johnson, 319 U. S. 302 (1943). “Justiciability” is also the term of art used to refer to the constitutional necessity that courts not deal with certain issues lest they “intrude into areas committed to the other branches of government.” Flast, supra, at 95. The political-question doctrine has its analogue in the sphere of administrative law in the concept of nonreviewability. See, e. g., Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U. S. 103 (1948); Schilling v. Rogers, 363 U. S. 666 (1960). And, of course, federal courts may not decide questions over which they lack jurisdiction, e. g., Brown Shoe Co. v. United States, 370 U. S. 294, 305 (1962); American Fire & Casualty Co. v. Finn, 341 U. S. 6, 17-18 (1951). Thus, on many grounds other than an absence of standing, a court may dismiss a lawsuit without proceeding to the merits to determine whether the plaintiff presents a claim upon which relief may be granted, and, if so, whether he has borne his burden of proof.

       It is true, of course, that in certain types of litigation parties may properly request judicial resolution of issues not “presented in an adversary context.” See Davis, Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601, 607 (1968). But in most instances, among them private challenges to agency action, the plaintiff must establish his adverseness to obtain standing.

       Thus, for purposes of standing, it is sufficient that a plaintiff allege damnum absque injuria, that is, he has only to allege that he has suffered harm as a result of the defendant’s action. Injury in fact has generally been economic in nature, but it need not be. See, e. g., Scenic Hudson Preservation Conf. v. FPC, 354 F. 2d 608 (C. A. 2d Cir. 1965); Office of Communication of United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 359 F. 2d 994 (1966). The more “distinctive or discriminating” the harm alleged and the more clearly it is linked to the defendant’s action, the more easily a plaintiff may meet the constitutional test. See L. Jaffe, Judicial Control of Administrative Action 501 (1965). The plaintiffs in the present cases alleged distinctive and discriminating harm, obviously linked to the agency action. Thus, I do not consider what must be alleged to satisfy the standing requirement by parties who have sustained no special harm themselves but sue rather as taxpayers or citizens to vindicate the interests of the general public.

       Past decisions of this Court indicate I that a person who has suffered injury in fact meets the relevant Article III requirement. See, for example, FCC v. Sanders Bros. Radio Station, 309 U. S. 470, 476-477 (1940); Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 (1942). In these decisions the Court permitted parties economically harmed by administrative action to challenge it although no legal interest of the parties was found to have been invaded by the action. The Court stated in Scripps-Howard Radio, supra, at 14, that “[t]he Communications Act of 1934 did not create new private rights. The purpose of the Act was to protect the public interest in communications. By § 402 (b) (2) Congress gave the right of appeal to persons ‘aggrieved or whose interests are adversely affected’ by Commission action.” Accordingly, since Congress cannot expand the Article III jurisdiction of federal courts, Muskrat v. United States, 219 U. S. 346 (1911), it follows that injury in fact renders a party adverse under the Constitution. Cf. K. Davis, 3 Administrative Law Treatise § 22.02, at 211 (1958); Jaffe, supra, n. 5, at 336.

       See, e. g., the Securities Act of 1933, which provides that “[a]ny person aggrieved by an order of the Commission may obtain a review,” 15 U. S. C. § 77i (a), and the Federal Power Act, which grants review to “[a]ny party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding . . . .” 16 U. S. C. § 825l (b).

       Section 702 also provides that "[a] person suffering legal wrong because of agency action ... is entitled to judicial review thereof.” Though a person suffering such wrong is clearly entitled to review, he need not show the existence of a legally protected interest to establish either his standing or his right to review. The existence of that interest is a question of the merits.

       This is particularly the case when the plaintiff is the only party likely to challenge the action. Refusal to allow him review would, in effect, commit the action wholly to agency discretion, thus risking frustration of the statutory objectives.

       If the alleged legal interest is clearly frivolous, or proof to substantiate the alleged injury in fact is wholly lacking, the plaintiff can be hastened from court by summary judgment.

         E. g., Tennessee Power Co. v. TV A, 306 U. S. 118 (1939); Association of Data Processing Service Organizations, Inc. v. Camp, 406 F. 2d 837, 843 (C. A. 8th Cir. 1969); Barlow v. Collins, 398 F. 2d 398, 401 (C. A. 5th Cir. 1968).

        E. g., Association of Data Processing Service Organizations, Inc. v. Camp, supra, at 843; Barlow v. Collins, supra, at 401-402; Harrison-Halsted Community Group, Inc. v. Housing & Home Finance Agency, 310 F. 2d 99 (C. A. 7th Cir. 1962).

       In cases involving statutes that do expressly grant the plaintiff a right to review, there would be no need for the Court's second standing inquiry — unless it serves to provide a preview of the merits.

       I would apply my view that all examination of statutory language and congressional intent, as they bear on the right of the plaintiff to challenge agency action, should be made only in the reviewability context even if the pertinent statutory material speaks of “standing” or “statutory aid to standing.” Statutory materials, of course, would be properly consulted in the determination of standing if they purport to define what constitutes injury in fact.


source: Caselaw Access Project

author: Mr. Justice Harlan

license: Public Domain

text:
    UNITED STATES v. W. M. WEBB, INC., et al.
    No. 63.
    Argued November 17, 1969
    Decided March 3, 1970

      Solicitor General Griswold argued the cause for the United States. With him on the briefs were Assistant Attorney General Walters, Harris Weinstein, Matthew J. Zinn, Louis M. Kauder, and Robert I. Waxman.

      Joseph J. Lyman argued the cause and filed a brief for respondents.
   Mr. Justice Harlan

delivered the opinion of the Court.

The respondents in this case, which was consolidated below, own boats that are used in commercial fishing in the Atlantic Ocean and the Gulf of Mexico. Their fishing is carried out through contractual arrangements, shaped by established custom, with boat captains, who man the boats and manage their day-to-day operation. The question before the Court is whether the captains and crewmen of the boats are the “employees” of the respondents within the provisions of the Federal Insurance Contributions Act (FICA) and the Federal Unemployment Tax Act (FUTA), which impose taxes on employers to finance government benefits for employees.

I

During the taxable periods involved here, the respondents’ vessels were engaged in fishing for menhaden, a nonedible fish that is processed and used for various industrial purposes. The owner of each vessel equipped the vessel and secured the services of an experienced fisherman to be captain. The captain then assembled a crew. The captain customarily served on the same vessel for a full season, and occasionally for several consecutive seasons, although the oral arrangements between owners and captains permitted either to terminate the relationship at the end of any fishing trip. The fishing trips lasted from one to several days.

The vessels were operated from docking facilities owned by fish-processing plants, and discharged their catch at these plants upon the completion of each trip. The plants paid respondents for the fish according to the volume of the catch, and respondents paid the captains and crews on the same basis, following terms that had been negotiated in advance. Neither captains nor crews were guaranteed any earnings if they failed to catch fish. While respondents determined the plant to which the vessels would report and generally where and when the fishing would take place, the captains managed the details of the operation of the boats and the manner of fishing.

Respondents filed tax returns as employers under the FICA and the FUTA, and paid the employer’s share of the taxes due on the earnings of the captains and crews. After making the appropriate claims for refunds, they sued for refunds in the District Court for the Eastern District of Louisiana. The District Court, sitting without a jury, determined after trial that the captains and crews were not respondents’ employees for the purposes of these tax statutes. The trial court noted that both the FICA and the FUTA define “employee” as any individual who has employee status under “the usual common law rules” applicable to a determination of the master-servant relationship. It found “without merit” the Government’s contention “that the common-law governing the relationship of the taxpayer and the fishermen in pursuing fishing ventures in the Gulf of Mexico and the Atlantic Ocean is the general maritime law.” 271 F. Supp. 249, 257 (1967). The court found further that the degree of control exercised by respondents over these fishing activities was not sufficient, under the common-law standards governing land-based occupations, to create the relationship of employer and employee between respondents and the captains and crews. Respondents were thus held entitled to their refunds.

On appeal, the Court of Appeals for the Fifth Circuit affirmed. It reviewed the facts and observed that “it is clear that under maritime law the captain is the agent of the owner . . . and the crew hands are employees,” and that “[i]f we were free to apply maritime law as a test of the employer-employee relationship, we would reverse the decision of the district court.” 402 F. 2d 956, 959 (1968). However, the Court of Appeals agreed with the District Court that the statutes’ prescription of “common law rules” barred application of maritime standards.

This conclusion conflicts with the approach of the Court of Claims in Cape Shore Fish Co. v. United States, 165 Ct. Cl. 630, 330 F. 2d 961 (1964). In that decision the court found scallop fishermen, operating under arrangements similar to those here, to be employees of the shipowner for the purposes of these statutes. It reached this conclusion by applying to the facts the standards of maritime law. We granted certiorari in this case, 394 U. S. 996 (1969), to resolve this conflict, and to clarify the application to maritime workers of these important federal statutes.

II

The parties agree that both the FICA and the FUTA impose taxes on employers measured by the compensation paid to employees, and that in terms of this case the two statutes define “employee” identically. In the FICA “employee” is defined to include “any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee,” and the language of the FUTA is to the same effect. These definitions were not included in the original Social Security Act as it was adopted in 1935, which defined “employee” merely by specifying that it “includes an officer of a corporation,” but were added by amendment in 1948. We must consider the events that prompted the amendment.

In 1935 the draftsmen of the Social Security Act apparently thought it unnecessary to elucidate the meaning of “employee” because they assumed that the term, as it was applied to varying factual situations, would be given the “usual” meaning it bore at common law. See S. Rep. No. 1255, 80th Cong., 2d Sess., 3-4 (1948). However, over the years of applying the Act to a myriad of work relationships, the lower federal courts developed somewhat varying approaches, certain courts relying more heavily on common-law precedents and others attempting to discern a special meaning for the term from the purposes of the legislation. In addition, the courts tended to look to local precedents to determine the common-law standards, producing different results for similar factual situations in various parts of the country. This divergence of views led this Court, in 1947, to render two decisions in an attempt to clarify the governing standards. United States v. Silk, 331 U. S. 704; Bartels v. Birmingham, 332 U. S. 126.

In Silk, the Court upheld the lower courts’ determination that certain truck drivers were, under the circumstances, independent contractors rather than employees, but it upset a similar ruling with respect to a group of men who unloaded coal from railroad cars. In Bartels the Court, reversing the Court of Appeals, held that the members of certain dance bands were not employees of the owners of the dance halls at which they were engaged, despite contractual provisions characterizing them as employees. While the Court’s opinions in these cases stressed many of the factors that had been important in common-law determinations of employee status, they also contained language that could be read to detach the question of statutory coverage from the common-law tests. The Court stated, in Bartels, that “in the application of social legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service.” 332 U. S., at 130.

Acting upon this language, the executive agencies set about replacing their original regulation, which had defined the employment relation in terms of the incidents of employment at common law, with a new regulation that would embody the test of “economic reality.” However, the proposed new regulation never took effect. Within two months of its announcement, a resolution was introduced in both the House of Representatives and the Senate calling for “a reassertion of congressional intent regarding the application of the act.” S. Rep. No. 1255, supra, at 7. This resolution, which was finally passed over the President's veto, added to the statutes the present definitions of “employee.”

The report of the Senate Finance Committee on the resolution makes clear a congressional purpose to disapprove the proposed regulation and to reaffirm that determinations of employee status were to be based on the traditional legal tests. The Committee seems to have thought that the Silk and Bartels decisions had applied traditional common-law standards, despite the language in the opinions suggesting a less constrictive approach. However, noting that the Treasury Department claimed support in those decisions for its contemplated new departure, the Committee declared: “But if it be contended that the Supreme Court has invented new law for determining an 'employee' under the social-security system in these cases, then the purpose of this resolution is to reestablish the usual common-law rules, realistically applied.” Id., at 2.

The causes of congressional dissatisfaction with the proposed regulation were twofold. As a fiscal matter, the Committee cited testimony that the new regulation would extend social security benefits to between 500,000 and 750,000 new workers, who had not been covered previously and had not contributed to the trust fund from which benefits would be paid, thus endangering the integrity of the fund. More generally, the Committee was fearful of the uncertainty that would be created by the new regulation, and the discretion it would give to the executive agencies in determining the applicability of the statutes. The report stated:

“In a word, by unbounded and shifting criteria, [the proposed regulation] would confer in those administering the Social Security Act full discretion to include, or to exclude, from the coverage of the act any person whom they might decide to be, or might decide not to be, an 'employee'; and like discretion to fasten tax liabilities and the administrative duties and costs of compliance with the act upon any person whom they might decide to be an 'employer.'
“The proposed regulation discards the common-law rules for distinguishing the employer-employee relationship distilled from many decisions by many courts out of many insights of real situations, for a new rule of nebulous character.
“Under the proposed regulation an ‘employee' is ‘an individual in a service relationship who is dependent as a matter of economic reality upon the business to which he renders service and not upon his own business as an independent contractor.’
“The rule, obviously, will not serve to make the necessary distinctions. Who, in this whole world engaged in any sort of service relationship, is not dependent as a matter of economic reality on some other person? . . .
“[T]he proposed regulation concerns itself mainly, as was stated to your committee by a witness at the hearings: . . with making it abundantly clear that on virtually no state of facts may anyone be certain whether or not he has a tax liability until the Commissioner has made up his mind about it.’ ” Id., at 7, 10, 11.

The Committee stated that, in contrast to the proposed regulation, whose “basic principle ... is a dimensionless and amorphous abstraction,” the existing regulation was “not devoid of uncertainty, but its basis is in established standards of law which frame and limit its application.” Id., at 12. The conclusions stated in the House Report were similar. H. R. Rep. No. 1319, 80th Cong., 2d Sess. (1948). By the resolution, Congress unequivocally tied the coverage of these tax provisions to the body of decisional law defining the employer-employee relationship in various occupations.

In none of the discussions of the 1948 resolution was there any discussion of maritime employees. The respondents argue that, by failing to make specific provision for the application of maritime law to seagoing occupations, Congress impliedly decreed that those occupations should be gauged by the standards of the “common law” applicable to land-based activities. They rely in part on the fact that the phrase “common law” is sometimes used in contradistinction to the “maritime law” traditionally applied in courts of admiralty, and they also point to the fact that the Senate Report stressed the degree of the employer’s control over the employee’s work as central to the Committee’s understanding of the common-law tests of employment. The Senate Report quoted with approval the then-existing regulation, substantially identical to the one now in effect, which stated:

“Every individual is an employee if the relationship between him and the person for whom he performs services is the legal relationship of employer and employee.
“Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done.” S. Rep. No. 1255, supra, at 3.

Respondents argue that this language indicates a congressional intent that, where the maritime nature of a vocation makes impracticable the degree of control generally exercised by land-based employers over their employees, the land-based standards must nevertheless be applied, with the result that no “employment" exists for the purposes of those statutes.

Ill

We do not think Congress intended the anomalous result of having maritime activities subject to standards, for social security tax purposes, other than those that are relevant to seafaring enterprises. Such a result is not necessary to accomplish the dual concerns underlying the 1948 amendment. Application of maritime standards to determine the status of members of fishing ventures will not open brand new areas of social security coverage. To the contrary, the employee status of captains and crewmen engaged in fishing operations similar to these is supported by a Treasury Department interpretation, applying maritime standards, that was issued in 1940, immediately after maritime employees were first brought within the coverage of the Social Security Act by amendment in 1939. S. S. T. 387, 1940-1 Cum. Bull. 192; see Social Security Act Amendments of 1939, §§ 606, 614, 53 Stat, 1383, 1392, as amended, 26 U. S. C. §§ 3121 (b), 3306 (c). This ruling, which the Social Security Administration has accepted for purposes of paying benefits to claimants, had existed for eight years before Congress added the present definitions of “employee” to the statutes. It was not mentioned at the time of the 1948 amendment. Since the ruling represented the accepted view of both the taxing and paying agencies, Congress could have had no concern that payment of benefits to maritime employees would constitute an uncompensated drain on the social security fund.

More important, the chief concern behind the 1948 amendment — avoiding the uncertainty of the proposed “economic reality” test — is wholly satisfied if seafaring work relationships are tested against the standards of maritime, rather than land-based, decisional law. Congress’ fearfulness of the “nebulous” nature of the proposed regulation indicates that it used the phrase “usual common law rules” in a generic sense, to mean the standards developed by the courts through years of adjudication, rather than in a technical sense to mean those standards developed by “common law” courts as opposed to courts of admiralty. Maritime law, the common law of seafaring men, provides an established network of rules and distinctions that are practically suited to the necessities of the sea, just as land-based decisional law provides a body of rules adapted to the various forms of domestic employment. The goal of minimizing uncertainty can be accomplished, in the maritime field, by resort to the “usual” rules of maritime jurisprudence.

This conclusion is not weakened by the emphasis given, both in the Senate Report and in the regulation, to the factor of control. Control is probably the most important factor under maritime law, just as it is under the tests of land-based employment. It may be true that, in most maritime relationships, the workers enjoy discretion that is unusually broad if measured by land-based standards — a discretion dictated by the seafaring nature of the activity. However, except where there is nearly total relinquishment of control through a bare-boat, or demise, charter, the owner may nevertheless be considered, under maritime law, to have sufficient control to be charged with the duties of an employer. See, e. g., The Norland, 101 F. 2d 967 (C. A. 9th Cir. 1939); G. Gilmore & C. Black, The Law of Admiralty § 4-23 (1957). Congress’ stress on the importance of control reflects the primacy of that factor in the rules governing the most common, land-based vocations, which were certainly foremost in the congressional mind at the time of the 1948 amendment. It does not preclude the application, in different areas, of decisional rules that vary in the precise degree of control that is required. Cf. Deecy Products Co. v. Welch, 124 F. 2d 592, 598-599 (C. A. 1st Cir. 1941); McGuire v. United States, 349 F. 2d 644 (C. A. 9th Cir. 1965).

The guidelines in the regulation also allow for such flexibility, as is attested by the existence, for nearly 30 years, of the Treasury ruling, S. S. T. 387, confirming the employee status of fishermen such as those involved here. Now, as in 1948, the regulation proceeds, after the language already quoted, to elaborate some of the factors other than control that may be important:

“The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services.” 26 CFR § 31.3121 (d)—1 (c)(2).

It is clear that this brief sketch of relevant factors cannot be intended to provide a workable test, complete in itself, displacing the complex of common-law rules Congress so carefully tried to preserve. Rather, the regulation provides a summary of the principles of the common law, intended as an initial guide for the determination, required by the first sentence of the regulation, whether a relationship “is the legal relationship of employer and employee.” The thrust of both statute and regulation is that the standards that are to govern in any field are those that the courts customarily apply to define this “legal relationship.”

We conclude that the Court of Appeals erred in declining to judge the status of the captains and crewmen against the standards of maritime law. Accordingly, the judgment is reversed, and the case is remanded to that court for proceedings consistent with this opinion.

It is so ordered.

       26 U. S. C. § 3101 et seq.

       26 U. S. C. § 3301 et seq.

       The District Court found that the periods were, for different respondents, January 1, 1956, through December 31, 1956, and July 1, 1957, through December 1,1958.

       We are not called upon to, and do not, intimate any view on the correctness of the Court of Appeals’ statement on this score.

       The definitions provide:
      “For purposes of [the FICA], the term 'employee’ means— (1) any officer of a corporation; or (2) any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee; or (3) [any member of several specific occupations, not including fishing, when certain conditions are satisfied]." 26 U. S. C. § 3121 (d).
      “For purposes of [the FUTA], the term 'employee’ includes an officer of a corporation, but such term does not include — (1) any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an independent contractor, or (2) any individual (except an officer of a corporation) who is not an employee under such common law rules.” 26 U. S. C. § 3306 (i).

       Social Security Act § 1101 (a)(6), 49 Stat. 647. The language of § 1101 (a) (6) was carried over to §§ 1426 (c) and 1607 (h) of the Internal Revenue Code of 1939, the predecessors of present §§ 3121 (d) and 3306 (i) of Title 26, respectively. See 53 Stat. 178, 188.

       Compare, e. g., Jones v. Goodson, 121 F. 2d 176 (C. A. 10th Cir. 1941); Radio City Music Hall Corp. v. United States, 135 F. 2d 715 (C. A. 2d Cir. 1943); United States v. Mutual Trucking Co., 141 F. 2d 655 (C. A. 6th Cir. 1944); McGowan v. Lazeroff, 148 F. 2d 512 (C. A. 2d Cir. 1945); United States v. Wholesale Oil Co., 154 F. 2d 745 (C. A. 10th Cir. 1946), with United States v. Vogue, Inc., 145 F. 2d 609 (C. A. 4th Cir. 1944); United States v. Aberdeen Aerie, 148 F. 2d 655 (C. A. 9th Cir. 1945); Grace v. Magruder, 80 U. S. App. D. C. 53, 148 F. 2d 679 (1945).

       See S. Rep. No. 1255, supra, at 6.

       In Silk, the Court said:
      “As the federal social security legislation is an attack on recognized evils in our national economy, a constricted interpretation of the phrasing by the courts would not comport with its purpose. . . .
      . . When [the problem of differentiating between employee and independent contractor] arose in the administration of the National Labor Relations Act, we pointed out that the legal standards to fix responsibility for acts of servants, employees or agents had not been reduced to such certainty that it could be said there was ‘some simple, uniform and easily applicable test.’ The word ‘employee,’ we said, was not there used as a word of art, and its content in its context was a federal problem to be construed ‘in the light of the mischief to be corrected and the end to be attained.’ We concluded that, since that end was the elimination of labor disputes and industrial strife, ‘employees’ included workers who were such as a matter of economic reality. . . . We rejected the test of the ‘technical concepts pertinent to an employer’s legal responsibility to third persons for acts of his servants.’. . . Labor Board v. Hearst Publications, 322 U. S. 111, 120, 123, 124, 128, 129, 131.
      “Application of the social security legislation should follow the same rule that we applied to the National Labor Relations Act in the Hearst ease.” 331 U. S., at 712-714.

       1 Fed. Reg., pt. 2, at 1764 (1936), promulgated November 9, 1936 (Treasury Department); 2 Fed. Reg., pt. 1, at 1276 (1937), promulgated July 20, 1937 (Social Security Board).

       12 Fed. Reg. 7966 (1947).

       H. J. Res. 296, 62 Stat. 438; see H. R. Doc. No. 711, 80th Cong., 2d Sess. (veto message of President Truman). This 1948 amendment put the definitions in both statutes in the negative form now found in 26 U. S. C. § 3306 (i), see n. 5, supra. The Social Security Act Amendments of 1950 restyled the predecessor of § 3121 (d), giving it the form non' possessed by that provision, without changing the applicable principles except to extend coverage to specified classes of workers irrespective of their common-law status. § 205, 64 Stat. 536; see H. R. Rep. No. 2771, 81st Cong., 2d Sess., 104 (1950); cf. S. Rep. No. 1669, 81st Cong., 2d Sess., 17-18 (1950); H. R. Rep. No. 1300, 81st Cong., 1st Sess., 80-91, 189-207 (1949).

       In a report published just two weeks before the enactment of the resolution (commenting on H. R. 6777, a bill that contained the same amendment ultimately accomplished by the resolution), the House Committee on Ways and Means stated:
      “Our failure to act may be further construed as conferring upon the administrative agencies and the courts an unbridled license to say, at will, whether an individual is an employee or an independent contractor ....
      “[T]he basic, controlling factor is whether the policy of the Congress shall be to cover as employees only those who are employees under the common-law rule, or to cover a broader class of individuals under some nebulous hypothesis with no bounds to its application.” H. R. Rep. No. 2168, 80th Cong., 2d Sess., 9 (1948).

       26 CFR § 31.3121 (d)-1-(e).

       Subsequent amendments to the social security laws make it now even clearer that classification of some maritime workers as employees will not threaten the social security fund. The Social Security Act Amendments of 1950 extended benefits coverage to the self-employed for the first, time. 64 Stat. 502, 540; see H. R. Rep. No. 1300, 81st Cong., 1st Sess., 9-10 (1949). Benefits for the self-employed are financed by taxes paid by them under the Self-Employment- Contributions Act, 26 U. S. C. § 1401 et seq.; see H. R. Rep. No. 1300, supra, at 135-145; S. Rep. No. 1669, 81st Cong., 2d Sess., 153-166 (1950). Therefore, the captains and crewmen are eligible for social security benefits whether they are considered employees or self-employed.

       A conclusion that maritime standards could not be applied might frustrate Congress’ evident expectation that the FICA and FUTA legislation would apply to seamen, and specifically to fishermen. As noted above, the 1939 amendments extended the statutes to cover maritime employees. Additionally, 26 U. S. C. § 3121 (b)(4) provides an exemption for service by aliens on foreign vessels, and § 3306 (c) (17) exempts fishermen on vessels that do not exceed 10 tons in displacement. These provisions raise the inference that fishermen on larger vessels were expected to be covered, under the general “common law rules” provision. However, if shipowners were relieved of the employers’ tax liabilities unless their relationship with the captains and crews were of the sort that would constitute an employer-employee relationship in a land-based activity, application of the statutes to fishermen might be seriously limited.

       See, e. g., Cape Shore Fish Co. v. United States, 165 Ct. Cl. 630, 637-641, 330 F. 2d 961, 965-968 (1964); G. Gilmore & C. Black, The Law of Admiralty § 4-21 (1957).

       See, e. g., Radio City Music Hall Corp. v. United States, 135 F. 2d 715, 717-718 (C. A. 2d Cir. 1943).

       See H. R. Rep. No. 2168, supra, n. 13, at 9-10:
      “Ample flexibility is possible under [the common-law] rule to accommodate peculiar or unusual employment relationships so frequently found in our complex economic system.
      “The common-law concept of master and servant, of course, is no more fixed and immutable than the common law itself. Hence it will produce in practice varying results under varying circumstances and in different jurisdictions. But such variations will not. offend the common-law rule itself. . . .
      . “. . . There is nothing to fear from differences in the application of the common-law tests, but there is much to fear from the abandonment of recognized common-law principles in resolving such questions of fact. Such abandonment would simply amount to reliance upon no recognized body of legal principles20

       Other factors that may have significance are discussed in United States v. Silk, 331 U. S. 704 (1947); Enochs v. Williams Packing Co.,
        370 U. S. 1 (1962); Kirkconnell v. United States, 171 Ct. Cl. 43, 347 F. 2d 260 (1965); Illinois Tri-Seal Products, Inc. v. United States, 173 Ct. Cl. 499, 353 F. 2d 216 (1965).

       We find no support for a contrary conclusion in the fact that, shortly after the District Court’s decision in this case, the Treasury Department unsuccessfully sought an amendment to § 3121 (d) (3) defining “employee” to include the captains and crews of commercial fishing vessels without regard to their status under the general definition in § 3121 (d) (2), see n. 5, supra. See the bill that became the Social Security Amendments of 1967, H. R. 12080, §§ 504 (b)(1), (2) (as amended by the Senate); S. Rep. No. 744, 90th Cong., 1st Sess., 203-205, 320-324 (1967); H. R. Rep. No. 1030, 90th Cong., 1st Sess., 74 (1967) (Conference Report deleting the amendment). That the Treasury also chose to proceed on the legislative front does not impair the argument put forth by the United States here, and Congress’ failure to adopt the amendment is a dubious indication of the position of Congress in 1967 on the question before us, let alone the position of a different Congress in 1948. Cf. United States v. Price, 361 U. S. 304, 310-312 (1960); United States v. Wise, 370 U. S. 405, 411 (1962).


author: Mr. Justice Brennan Mr. Justice White,

text:
    INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 1416, AFL-CIO v. ARIADNE SHIPPING CO., LTD., et al.
    No. 231.
    Argued January 13, 1970
    Decided March 9, 1970

      Seymour M. Waldman argued the cause for petitioner. With him on the briefs were Louis Waldman, Martin Markson, and Seymour A. Gopman.

      Richard M. Leslie argued the cause for respondents. With him on the brief was Thomas H. Anderson.

      Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come filed a memorandum for the National Labor Relations Board as amicus curiae.

   Mr. Justice Brennan

delivered the opinion of the Court.

The question presented here is whether the National Labor Relations Act, 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq., pre-empts state jurisdiction to enjoin peaceful picketing protesting substandard wages paid by foreign-flag vessels to American longshoremen working in American ports. The Florida courts held that there was no pre-emption, citing McCulloch v. Sociedad Nacional, 372 U. S. 10 (1963), and lucres Steamship Co. v. International Maritime Workers Union, 372 U. S. 24 (1963). We granted certiorari. 396 U. S. 814 (1969). We reverse.

In 1966 the respondents, a Liberian corporation and a Panamanian corporation, operated cruise ships to the Caribbean from Port Everglades and Miami, Florida. Respondent Ariadne Shipping Company operated the S. S. Ariadne, of Liberian registry, with a crew subject to Liberian ship's articles. Respondent Evangeline Steamship Company operated S. S. Bahama Star, of Panamanian registry, with a crew subject to Panamanian ship’s articles. The uncontradicted evidence showed that “[ljoading of the ship, stowage and loading of automobiles, loading cargo and ship stowage” occurred whenever either vessel berthed at Port Everglades or Miami, “[pjart of it [performed] by employees of the ship and some of it by outside labor.” The petitioner is a labor organization representing longshoremen in the Miami area. Although none of those doing the long-shore work for the ships belonged to the union, whenever either vessel docked at Port Everglades or Miami in May 1966, petitioner stationed a picket near the vessel to patrol with a placard protesting that the longshore work was being done under substandard wage conditions. Respondents obtained temporary injunctive relief against the picketing from the Circuit Court for Dade County. That court rejected petitioner’s contention that the subject matter was pre-empted, holding that under McCul-loch the picketing was beyond the reach of the regulatory power of the National Labor Relations Board, and hence could be enjoined, since it violated Florida law. The temporary injunction was affirmed by the District Court of Appeal for the Third District of Florida in a brief per curiam order citing McCulloch and Incres. 195 So. 2d 238 (1967). Thereafter the Circuit Court, without further hearing, made the injunction permanent. The District Court of Appeal again affirmed, although noting that the testimony “tended to show” that the picketing was carried on to protest against the substandard wages paid for the longshore work. 215 So. 2d 51, 53 (1968). The Supreme Court of Florida denied review in an unreported order.

McCulloch and lucres construed the National Labor Relations Act to preclude Board jurisdiction over labor disputes concerning certain maritime operations of foreign-flag vessels. Specifically, Incres, 372 U. S., at 27, held that “maritime operations of foreign-flag ships employing alien seamen are not in 'commerce’ within the meaning of § 2 (6) [of the Act].” See also Benz v. Compania Naviera Hidalgo, 353 U. S. 138 (1957). This construction of the statute, however, was addressed to situations in which Board regulation of the labor relations in question would necessitate inquiry into the “internal discipline and order” of a foreign vessel, an intervention thought likely to “raise considerable disturbance not only in the field of maritime law but in our international relations as well." McCulloch, 372 U. S., at 19.

In Benz a foreign-flag vessel temporarily in an American port was picketed by an American seamen’s union, supporting the demands of a foreign crew for more favorable conditions than those in the ship’s articles which they signed under foreign law, upon joining the vessel in a foreign port. In McCulloch an American seamen’s union petitioned for a representation election among the foreign crew members of a Honduran-flag vessel who were already represented by a Honduran union, certified under Honduran labor law. Again, in lucres the picketing was by an American union formed “for the primary purpose of organizing foreign seamen on foreign-flag ships.” 372 U. S., at 25-26. In these cases, we concluded that, since the Act primarily concerns strife between American employers and employees, we could reasonably expect Congress to have stated expressly any intention to include within its coverage disputes between foreign ships and their foreign crews. Thus we could not find such an intention by implication, particularly since to do so would thrust the National Labor Relations Board into “a delicate field of international relations,” Benz, 353 U. S., at 147. Assertion of jurisdiction by the Board over labor relations already governed by foreign law might well provoke “vigorous protests from foreign governments and . . . international problems for our Government,” McCulloch, 372 U. S., at 17, and “invite retaliatory action from other nations,” id., at 21. Moreover, to construe the Act to embrace disputes involving the “internal discipline and order” of a foreign ship would be to impute to Congress the highly unlikely intention of departing from “the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship,” a principle frequently recognized in treaties with other countries. Ibid.

The considerations that informed the Court’s construction of the statute in the cases above are clearly inapplicable to the situation presented here. The participation of some crew members in the longshore work does not obscure the fact that this dispute centered on the wages to be paid American residents, who were employed by each foreign ship not to serve as members of its crew but rather to do casual longshore work. There is no evidence that these occasional workers were involved in any internal affairs of either ship which would be governed by foreign law. They were American residents, hired to work exclusively on American docks as longshoremen, not as seamen on respondents’ vessels. The critical inquiry then is whether the longshore activities of such American residents were within the “maritime operations of foreign-flag ships” which McCulloch, lucres, and Benz found to be beyond the scope of the Act.

We hold that their activities were not within these excluded operations. The American longshoremen’s short-term, irregular and casual connection with the respective vessels plainly belied any involvement on their part with the ships’ “internal discipline and order.” Application of United States law to resolve a dispute over the wages paid the men for their longshore work, accordingly, would have threatened no interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law. We therefore find that these longshore operations were in “commerce” within the meaning of § 2 (6), and thus might have been subject to the regulatory power of the National Labor Relations Board.

The jurisdiction of the National Labor Relations Board is exclusive and pre-emptive as to activities that are “arguably subject” to regulation under § 7 or § 8 of the Act. San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959). The activities of petitioner in this case met that test. The union’s peaceful primary picketing to protest wage rates below established area standards arguably constituted protected activity under § 7. See Steelworkers v. NLRB, 376 U. S. 492, 498-499 (1964); Garner v. Teamsters Union, 346 U. S. 485, 499-500 (1953).

Reversed.

Mr. Justice White,

with whom The Chief Justice and Mr. Justice Stewart join,

concurring.

I agree with the majority that the Florida courts were in error in concluding that the National Labor Relations Act does not govern relations between the operators of foreign-flag vessels and the American longshoremen who work on such vessels while they are in American ports. However, I would not rest reversal on the conclusion that the union’s conduct in this case was “ ‘arguably subject’ to regulation under § 7 or § 8 of the Act.” The union’s picketing was clearly not proscribed by any part of § 8 of the Act. The only possible dispute could be over whether the picketing was activity protected by § 7 of the Act or whether the picketing was neither protected nor prohibited by the Act and therefore was subject to state regulation or prohibition. If the National Labor Relations Act provided an effective mechanism whereby an employer could obtain a determination from the National Labor Relations Board as to whether picketing is protected or unprotected, I would agree that the fact that picketing is “arguably” protected should require state courts to refrain from interfering in deference to the expertise and national uniformity of treatment offered by the NLRB. But an employer faced with “arguably protected” picketing is given by the present federal law no adequate means of obtaining an evaluation of the picketing by the NLRB. The employer may not himself seek a determination from the Board and is left with the unsatisfactory remedy of using “self help” against the pickets to try to provoke the union to charge the employer with an unfair labor practice.

So long as employers are effectively denied determinations by the NLRB as to whether “arguably protected” picketing is actually protected except when an employer is willing to threaten or use force to deal with picketing, I would hold that only labor activity determined to be actually, rather than arguably, protected under federal law should be immune from state judicial control. To this extent San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), should be reconsidered. I concur in the Court’s judgment in this case because in my view the record clearly indicates that the peaceful, nonobstructive picketing on the public docks near the ships was union activity protected under the National Labor Relations Act. See Garner v. Teamsters Union, 346 U. S. 485, 499-500 (1953).

       A picket was also stationed in front of the terminal through which passengers embarked and disembarked. This picket carried a sign alleging that the ships were unsafe, and passed out handbills to the same effect.

       The injunctive order was in four paragraphs. Paragraphs 1 and 2 prohibited picketing with signs, or distributing handbills stating, alleging, or inferring that the vessels were unsafe. The petitioner abandoned its appeal from these provisions and they are not before us. Paragraph 4 was set aside on appeal. See n. 3, infra. Paragraph 3 therefore is the only provision under review in this Court. It prohibits petitioner from:
      “Picketing or patrolling with signs or placards indicating or inferring that a labor dispute exists between [respondents] and [petitioner], by any statement, legend or language alleging [that respondents] pay their employees substandard wages.”
      Initially petitioner directed the picketing not at respondents’ ships but at Eastern Steamship Lines, Inc., a Florida corporation that acted as respondents’ general agent. Eastern obtained a temporary injunction, 193 So. 2d 73 (1966), whereupon petitioner shifted the picketing to the ships themselves.

       The Court of Appeal set aside paragraph 4 of the injunction which prohibited “[b]y any manner or by any means, including picketing or the distribution of handbills, inducing or attempting to induce customers and potential customers of [respondents] to cease doing business with [respondents].” 215 So. 2d, at 52 n. 1.

       We put to one side situations in which the longshore work, although involving activities on an American dock, is carried out entirely by a ship’s foreign crew, pursuant to foreign ship’s articles.

       The Board has reached the same conclusion in similar situations. See, e. g., International Longshoremen’s & Warehousemen’s Union, Local 13, 161 N. L. R. B. 451 (1966); Marine Cooks & Stewards Union, 156 N. L. R. B. 753 (1966); New York Shipping Assn., Inc., 116 N. L. R. B. 1183 (1956). Cf. Uravic v. Jarka Co., 282 U. S. 234 (1931).
      Our conclusion makes it unnecessary to consider petitioner’s further contention that in the absence of any evidence of an illegal objective, prohibition of peaceful picketing to publicize substandard wages deprived petitioner of freedom of speech in violation of the First and Fourteenth Amendments.