Page:United States Reports 502 OCT. TERM 1991.pdf/623

 502US2$28K 02-10-99 15:12:54 PAGES OPINPGT

Cite as: 502 U. S. 437 (1992)

465

Scalia, J., dissenting

II It is axiomatic that “a litigant first must clearly demonstrate that he has suffered an ‘injury in fact’ ” in order to assert Article III standing to sue. Whitmore, supra, at 155. In assessing a claim to injury, “[w]e presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record,” Renne v. Geary, 501 U. S. 312, 316 (1991) (internal quotation marks omitted). See also Bender v. Williamsport Area School Dist., 475 U. S. 534, 546 (1986); it is accordingly “the burden of the party who seeks the exercise of jurisdiction in his favor. . . clearly to allege facts demonstrating” that he has been injured. FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990) (internal quotation marks omitted). This burden is “substantially more difficult” to bear when the asserted injury is “highly indirect and results from the independent action of some third party not before the court”—for the simple reason that there are more variables involved. Allen v. Wright, 468 U. S. 737, 757–759 (1984). See also Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 42, 44–45 (1976); Warth v. Seldin, 422 U. S. 490, 504–505 (1975). It is incumbent upon the plaintiff to eliminate those variables through “specific, concrete facts,” showing that the third party actually acted as he maintains and that the injury actually occurred. Id., at 508. As I have mentioned, the plaintiff ’s success in meeting this burden is to be assessed under the rules governing the stage the litigation has reached. See Lujan, supra, at 884–885. See also Gladstone, supra, at 115, and n. 31; Simon, supra, at 45, n. 26; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). Wyoming’s motion for summary judgment thus cannot be granted unless Wyoming has demonstrated that “there is no genuine issue” as to its injury, Fed. Rule Civ. Proc. 56(c), see Adickes v. S. H. Kress & Co., 398 U. S. 144, 157 (1970)—which means that “[i]f reasonable minds could differ as to the import of the evidence,” the motion must be