Wednesday, October 28, 2020

Smith on Davis on Standing for State and Local Governments

Today on the Courts Law section of JOTWELL is Fred Smith’s essay, Assessing the Rise of the Governmental Plaintiff. Fred reviews Seth Davis’s recent article, The New Public Standing, 71 Stan. L. Rev. 1229 (2019).

 

 

 

October 28, 2020 in Federal Courts, Recent Scholarship, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Friday, October 16, 2020

SCOTUS Will Hear Census Case This November

Today the Supreme Court set oral argument in Trump v. New York for Monday, November 30. Here are the questions presented, which include a question on the lower court's authority to grant relief under Article III:

Congress has provided that, for purposes of apportioning seats in the House of Representatives, the President shall prepare “a statement showing the whole number of persons in each State * * * as ascertained under the * * * decennial census of the population.” 2 U.S.C. 2a(a). It has further provided that the Secretary of Commerce shall take the decennial census “in such form and content as he may determine,” 13 U.S.C. 141(a), and shall tabulate the results in a report to the President, 13 U.S.C. 141(b). The President has issued a Memorandum instructing the Secretary to include within that report information enabling the President to implement a policy decision to exclude illegal aliens from the base population number for apportionment “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” 85 Fed. Reg. 44,679, 44,680 (July 23, 2020). At the behest of plaintiffs urging that the exclusion of illegal aliens would unconstitutionally alter the apportionment and chill some persons from participating in the census, a three-judge district court declared the Memorandum unlawful and enjoined the Secretary from including the information in his report. The questions presented are:

(1) Whether the relief entered satisfies the requirements of Article III of the Constitution.

(2) Whether the Memorandum is a permissible exercise of the President’s discretion under the provisions of law governing congressional apportionment.

Here is the lower court's opinion. You can follow the merits briefs as they come in at SCOTUSblog and at the Supreme Court website.

 

 

October 16, 2020 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (1)

Monday, October 5, 2020

October Term 2020 SCOTUS Arguments Begin Today (Remotely)

The Supreme Court begins oral argument by telephone conference this morning. If you want to listen in, here’s some information from the Supreme Court’s press release:

The Court will hear oral arguments by telephone conference on October 5, 6, 7, 13, and 14. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The oral arguments are scheduled to begin at 10 a.m. On days when more than one case will be heard, there will be a three minute pause before the second case begins.

The Court will provide a live audio feed of the arguments to ABC News (the network pool chair), the Associated Press, and C-SPAN, and they will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for public access. * * *

The oral argument audio and a transcript of the oral arguments will be posted on the Court's website following oral argument each day.

Today’s arguments include Carney v. Adams, which presents some interesting standing and severability issues.

 

October 5, 2020 in Federal Courts, Recent Decisions, Standing, State Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, August 28, 2020

Second Circuit En Banc Decision on Standing in the SDNY Trump Emoluments Suit

Last week the Second Circuit denied President Trump’s petition for en banc rehearing in CREW v. Trump. This left in place the panel decision (953 F.3d 178) reversing the district court’s dismissal for lack of standing.

Here’s a link to the en banc ruling, which features several separate opinions and statements:

José A. Cabranes, Circuit Judge, dissents by opinion from the denial of rehearing en banc.

Steven J. Menashi, Circuit Judge, joined by Debra Ann Livingston and Richard J. Sullivan, Circuit Judges, dissents by opinion from the denial of rehearing en banc.

John M. Walker, Jr., Circuit Judge, filed a statement with respect to the denial of rehearing en banc.

Pierre N. Leval, Circuit Judge, filed a statement with respect to the denial of rehearing en banc.

 

 

August 28, 2020 in Federal Courts, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, June 29, 2020

SCOTUS Decision in June Medical Services: Standing, Standards of Review, and Stare Decisis

Today the Supreme Court issued its decision in June Medical Services L.L.C. v. Russo. By a 5-4 vote, the Court strikes down Louisiana’s admitting-privileges law (Act 620) as imposing an undue burden on women seeking an abortion. The five-Justice majority comes from Justice Breyer’s opinion, which is joined by Justices Ginsburg, Sotomayor, and Kagan, and Chief Justice Roberts’ concurring opinion. Justices Thomas, Alito, Gorsuch, and Kavanaugh dissent—each of them authoring dissenting opinions.

In addition to the substantive constitutional issues regarding access to abortion, the case implicates some interesting civil procedure and federal courts issues: standing, standards of review, and stare decisis.

1. Standing

The standing issue is whether the plaintiffs, who were abortion providers and clinics, could challenge the Louisiana law as infringing their patients’ rights. Justice Breyer’s opinion concludes that Louisiana waived its standing argument:

The State’s argument rests on the rule that a party cannot ordinarily “‘rest his claim to relief on the legal rights or interests of third parties.’” Kowalski v. Tesmer, 543 U. S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U. S. 490, 499 (1975)). This rule is “prudential.” 543 U. S., at 128–129. It does not involve the Constitution’s “case-or-controversy requirement.” Id., at 129; see Craig v. Boren, 429 U. S. 190, 193 (1976); Singleton v. Wulff, 428 U. S. 106, 112 (1976). And so, we have explained, it can be forfeited or waived. See Craig, 429 U. S., at 193–194.

Louisiana had argued in the lower courts that “there was ‘no question that the physicians had standing to contest’ Act 620.” This was an “unmistakable concession,” according to Justice Breyer. He adds that “even if the State had merely forfeited its objection by failing to raise it at any point over the last five years, we would not now undo all that has come before on that basis.” He explains:

What we said some 45 years ago in Craig applies equally today: “[A] decision by us to forgo consideration of the constitutional merits”—after “the parties have sought or at least have never resisted an authoritative constitutional determination” in the courts below—“in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence.” 429 U. S., at 193–194 (quotation altered).

Justice Breyer also questions whether Louisiana’s standing argument would be persuasive in any event, noting that “[w]e have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.”

Chief Justice Roberts concurs in Justice Breyer’s standing analysis: “For the reasons the plurality explains, ante, at 11–16, I agree that the abortion providers in this case have standing to assert the constitutional rights of their patients.”

2. Standard of Appellate Review

Another procedural issue is the standard of appellate review regarding the district court’s findings. Justice Breyer’s opinion notes:

We start from the premise that a district court’s findings of fact, “whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. Rule Civ. Proc. 52(a)(6). In “‘applying [this] standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’” Anderson v. Bessemer City, 470 U. S. 564, 573 (1985) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 123 (1969)).

And the opinion concludes:

We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion. We also agree with its ultimate legal conclusion that, in light of these findings and our precedents, Act 620 violates the Constitution.

Chief Justice Roberts also emphasizes the deferential standard of review:

The question is not whether we would reach the same findings from the same record. These District Court findings “entail[ed] primarily . . . factual work” and therefore are “review[ed] only for clear error.” U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___, ___ (2018) (slip op., at 6, 9). Clear error review follows from a candid appraisal of the comparative advantages of trial courts and appellate courts.

3. Stare Decisis

And of course, the case presents important questions of stare decisis, especially in light of the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, which struck down Texas’s admitting privileges requirement. Stare decisis is key to Chief Justice Roberts’ tie-breaking fifth vote in favor of the plaintiffs: “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” Roberts concludes:

Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur in the judgment of the Court that the Louisiana law is unconstitutional.

 

 

June 29, 2020 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Supreme Court Cases | Permalink | Comments (0)

Friday, May 29, 2020

Notre Dame Law Review Symposium Issue on State Standing

The Notre Dame Law Review has published its symposium issue, Federal Courts, Practice & Procedure: State Standing. It features contributions by Tara Grove, Ernie Young, Andy Hessick, Brad Mank & Mike Solimine, Jonathan Nash, Ann Woolhandler & Michael Collins, Robert Mikos, Katherine Crocker, Seth Davis, and Aziz Huq.  

 

 

May 29, 2020 in Conferences/Symposia, Federal Courts, Recent Scholarship, Standing | Permalink | Comments (0)

Thursday, May 21, 2020

I Sue Dead People? An Interesting Decision from the Ninth Circuit

Last month, the Ninth Circuit issued an interesting decision in LN Management v. JPMorgan Chase Bank. The opinion is authored by Sixth Circuit Judge Danny Boggs (sitting by designation). It begins:

There are a number of ways to accomplish litigation regarding interests once held by a dead person. One can institute or join probate proceedings, for instance, or sue the executor of an estate in courts of general jurisdiction, or in some circumstances proceed directly against the successors of the deceased. Rarely do we see efforts to actually engage the dead in litigation. This case turns on such a question, which is of first impression in this circuit: can you sue a dead person?1

The answer may seem obvious. Yet strangely, in the 129-year history of this court, we have never been called upon to rule on this issue. We do so today, and we resolve the question in the negative.

And here is footnote 1:

There is ample extrajudicial literature bearing on this question. Dead men, we know from multiple authorities, would not make good litigants. They “tell no tales,” so they would be bad witnesses and deponents. See PIRATES OF THE CARIBBEAN: DEAD MEN TELL NO TALES (Walt Disney Pictures 2017). Since “you can’t take it with you,” they are judgment-proof defendants. See GEORGE S. KAUFMAN & MOSS HART, YOU CAN’T TAKE IT WITH YOU 75 (Dramatists Play Svc., Inc. 1937). And there is persuasive authority that, in whichever of the two traditional locations the deceased is now to be found, obtaining personal jurisdiction and serving of process would be difficult. See U. S. ex rel. Mayo v. Satan & his Staff, 54 F.R.D. 282, 283 (W.D. Pa. 1971) (finding no personal jurisdiction over defendant notwithstanding the “unofficial account” of The Devil and Daniel Webster); State Senator Ernie Chambers v. God, No. 1075-462, (Neb. Douglas Cty. Dist. Ct. Oct. 8, 2008) (dismissing case due to impossibility of service on Defendant), appeal dismissed; order vacated (Neb. Ct. App., No. 08-1180, Feb. 25, 2009).

 

 

May 21, 2020 in Federal Courts, Recent Decisions, Standing | Permalink | Comments (0)

Friday, May 1, 2020

SCOTUS in May: oral arguments of interest

If you’re planning to listen in to live Supreme Court arguments over the next couple of weeks, here’s the full May calendar.

And here are some cases that present interesting procedural, jurisdictional, or other fed-courts-y issues:

Wednesday, May 6:

Little Sisters of the Poor v. Pennsylvania (19-431) and Trump v. Pennsylvania (19-454), which are consolidated for oral argument, include the following questions presented (among others):

(1) Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court; and

(2) Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.

Barr v. American Association of Political Consultants (19-631) has an interesting severance issue. Here’s the question presented: Whether the government-debt exception to the TCPA's automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

Monday, May 11:

McGirt v. Oklahoma (18-9526) presents the question: Whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction as “justiciable matter” in Indian country over Indians accused of major crimes enumerated under the Indian Major Crimes Act--which are under exclusive federal jurisdiction.

Tuesday, May 12:

In Trump v. Mazars USA (19-715) and Trump v. Deutsche Bank AG (19-760), the Court has directed the parties to file supplemental briefs addressing “political question doctrine or related justiciability principles.”

Wednesday, May 13:

Colorado Department of State v. Baca (19-518) presents this question on standing (among others): Whether a presidential elector who is prevented by their appointing State from casting an Electoral College ballot that violates state law lacks standing to sue their appointing State because they hold no constitutionally protected right to exercise discretion.

 

 

May 1, 2020 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, March 2, 2020

Big Article III Standing and Severability Questions in Today's SCOTUS Cert Grants on the Affordable Care Act

Today the Supreme Court granted certiorari in California v. Texas and Texas v. California and consolidated the two cases. These cases involve the constitutionality of the minimum-coverage provision (also known as the “individual mandate”) of the Patient Protection and Affordable Care Act (ACA). They also present important questions regarding Article III standing (whether the individual and state plaintiffs have standing to challenge the minimum-coverage provision of the ACA) and severability (if the minimum-coverage provision is unconstitutional, can it be severed from the rest of the ACA).

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

March 2, 2020 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, February 7, 2020

D.C. Circuit Finds Lack of Article III Standing in Emoluments Suit Against Trump

Today a D.C. Circuit panel (Judges Henderson, Tatel & Griffith) issued its decision in Blumenthal v. Trump. The per curiam opinion begins:

In this case, 215 Members of the Congress (Members) sued President Donald J. Trump based on allegations that he has repeatedly violated the United States Constitution’s Foreign Emoluments Clause (Clause). The district court’s denial of the President’s motion to dismiss begins with a legal truism: “When Members of Congress sue the President in federal court over official action, a court must first determine whether the dispute is a ‘Case’ or ‘Controversy’ under Article III of the United States Constitution, rather than a political dispute between the elected branches of government.” Blumenthal v. Trump, 335 F. Supp. 3d 45, 49–50 (D.D.C. 2018). Although undoubtedly accurate, the district court’s observation fails to tell the rest of the story, which story we set forth infra. Because we conclude that the Members lack standing, we reverse the district court and remand with instructions to dismiss their complaint.

Download Blumenthal v. Trump (D.C. Cir. Feb. 7 2020)

February 7, 2020 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Wednesday, January 22, 2020

Divided Ninth Circuit panel finds no Article III standing in climate change lawsuit

Last week the Ninth Circuit issued a decision in Juliana v. United States, covered earlier here and here. Judge Hurwitz authored the majority opinion, joined by Judge Murguia, finding that the plaintiffs lacked Article III standing to pursue their claims against the federal government. The opinion begins:

In the mid-1960s, a popular song warned that we were “on the eve of destruction.” The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.

The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.

District Court Judge Josephine Staton, sitting by designation, wrote a dissenting opinion. It begins:

In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.

My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.

Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction. So viewed, plaintiffs’ claims adhere to a judicially administrable standard. And considering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and temporary reprieve would constitute meaningful redress. Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province. For these reasons, I respectfully dissent.

 

 

 

January 22, 2020 in Federal Courts, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Friday, December 6, 2019

SCOTUS cert grant on Article III standing (and severability and political balance on the Delaware courts)

Today the Supreme Court granted certiorari in Carney v. Adams, which presents the following questions:

(1) Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”?

(2) Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?

The Court also directed the parties to brief and argue “whether respondent has demonstrated Article III standing.”

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

 

 

December 6, 2019 in Federal Courts, Recent Decisions, Standing, State Courts, Supreme Court Cases | Permalink | Comments (0)

Friday, November 8, 2019

Class Certification Order in Pay Discrimination Case Brought by US Women's Soccer Team

Today Judge Klausner of the U.S. District Court for the Central District of California certified both a damages class and an injunctive relief class in Morgan v. United States Soccer Federation. The plaintiffs are members of the U.S. Women’s National Soccer Team, alleging violations of the Equal Pay Act and Title VII based on discrepancies in pay between them and the Men’s National Team.

Here is today’s order:

Download Morgan v US Soccer Federation - Order 2019-11-08

And here is coverage from ESPN: https://www.espn.com/soccer/united-states-usaw/story/3984769/uswnt-wins-ruling-to-pursue-gender-discrimination-suit-as-class-action

 

 

 

November 8, 2019 in Class Actions, Federal Rules of Civil Procedure, In the News, Recent Decisions, Standing | Permalink | Comments (0)

Friday, October 4, 2019

The Friday Before First Monday: SCOTUS Cert Grant in Louisiana Abortion Case Presents Questions About Standing

Today the Supreme Court granted petitions for certiorari arising from a challenge to Louisiana’s abortion regulations. The cases are June Medical Services LLC v. Gee (18-1323), and Gee v. June Medical Services, LLC (18-1460).

The first petition asks whether the Louisiana law is unconstitutional, especially in light of the Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). The second petition is about standing, presenting the following questions:

1. Can abortion providers be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a “close” relationship with their patients and a “hindrance” to their patients’ ability to sue on their own behalf?

2. Are objections to prudential standing waivable (per the Fourth, Fifth, Seventh, Ninth, Tenth, and Federal Circuits) or non-waivable (per the D.C., Second, and Sixth Circuits)?

You can follow the case at SCOTUSblog [18-1323 &  18-1460] or on the Supreme Court’s website [18-1323 & 18-1460].

 

 

 

 

 

 

October 4, 2019 in Federal Courts, Recent Decisions, Standing, Supreme Court Cases | Permalink | Comments (0)

Friday, September 13, 2019

Second Circuit Revives Emoluments Lawsuit Against Trump

Today, the Second Circuit issued its decision in Citizens for Responsibility and Ethics in Washington v. Trump, a lawsuit against President Trump alleging violations of the Emoluments Clauses of the U.S. Constitution. Judge Leval’s majority opinion begins:

Plaintiffs—Eric Goode, a restaurateur and hotelier, and Restaurant Opportunities Center United (“ROC”), a non‐partisan, member‐based  organization of restaurants and restaurant workers—appeal from the judgment of the United States District Court for the Southern District of New York (Daniels, J.) dismissing their complaint against Defendant Donald J. Trump, the President of the United States, for lack of subject matter jurisdiction. The complaint seeks declaratory and injunctive relief for the President’s alleged violations of the Domestic and Foreign Emoluments Clauses of the United States Constitution. The President moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiffs did not have standing to sue. The district court granted the motion, concluding that Plaintiffs lack Article III standing, they fall outside the zone of interests of the Emoluments Clauses, their claims do not present a ripe case or controversy within the meaning of Article III, and their suit is barred by the political question doctrine. For the reasons below, we vacate the judgment and remand for further proceedings. 

Judge Walker authored a dissenting opinion.

 

 

 

September 13, 2019 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Tuesday, July 23, 2019

Davis on State Standing

Seth Davis has published The New Public Standing, 71 Stan. L. Rev. 1229 (2019). Here’s the abstract:

Today’s public litigants are not citizens or individual taxpayers who, suffering no injury of their own, seek instead to stand for the public. Instead, they are states that have suffered financial injuries. In recent years, states have brought many high-profile public law cases against the federal government based upon financial injuries. State standing to sue the federal government for financial injuries is the new public standing.

This Article’s goal is to offer a comprehensive account of the new public standing. It argues that we should not hope—or expect—that the federal courts will treat the new public standing with the disfavor they have shown to citizen and taxpayer standing. Nor, however, should we hope or expect that the federal courts will treat the new public standing as indistinguishable from private standing based upon financial injuries.

One aspect of this thesis is doctrinal and normative. Under the U.S. Supreme Court’s Article III jurisprudence, financial injuries are the paradigmatic example of an injury in fact that supports standing to sue, as contrasted with an ideological injury that does not suffice for standing. What makes the new public standing doctrinally difficult is that while some financial injuries to states mirror those to private parties, others do not. And what makes these cases normatively difficult is that the state attorneys general who sue based upon financial injuries to their states are ideological litigants. The new public standing thus requires us to rethink the terms of the debate about state standing to sue the federal government.

Another aspect of this thesis is descriptive and positive. To ground its normative analysis, this Article attempts to identify the ideological, institutional, and political factors that have contributed to the new public standing and that will shape its future prospects. Analysis of these factors leads to the conclusion that the Court will preserve the new public standing while tinkering with its remedial scope. The new public standing will prove more durable than citizen and taxpayer standing for the public, but will not substitute for the promise of an individual standing upon her conscience in federal court.

 

 

 

July 23, 2019 in Federal Courts, Recent Scholarship, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, June 17, 2019

SCOTUS Decision in Virginia House of Delegates v. Bethune-Hill: Virginia House Lacks Standing to Appeal Ruling Striking Down 2011 Legislative Districts

Today the Supreme Court issued a 5-4 decision in Virginia House of Delegates v. Bethune-Hill. Justice Ginsburg authors the majority opinion, joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch. The Court rules that the Virginia House of Delegates lacks standing to appeal a three-judge district court’s decision that Virginia’s 2011 legislative districts had been racially gerrymandered in violation of the Equal Protection Clause.

The majority first rejects the argument that the State of Virginia had designated its House of Delegates to litigate on its behalf. It then finds that the House of Delegates lacks “standing in its own right,” because it had suffered no “legally and judicially cognizable” injury. Justice Ginsburg writes: “This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage.”

Justice Alito authors a dissenting opinion, joined by Chief Justice Roberts and Justices Breyer and Kavanaugh.

 

 

June 17, 2019 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, March 20, 2019

SCOTUS Decision in Frank v. Gaos

Today the Supreme Court issued its decision in Frank v. Gaos (covered earlier here). The Court had initially granted certiorari to decide “[w]hether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.’” Following oral argument, however, the Court ordered supplemental briefing on whether any plaintiff had Article III standing under the Supreme Court’s 2016 decision in Spokeo v. Robins.

Today’s per curiam opinion remands the case for the lower courts to consider the standing question:

After reviewing the supplemental briefs, we conclude that the case should be remanded for the courts below to address the plaintiffs’ standing in light of Spokeo. The supplemental briefs filed in response to our order raise a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument. We “are a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. We therefore vacate and remand for further proceedings. Nothing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question.

Justice Thomas dissented. He would have found that the plaintiffs’ allegations were sufficient to establish standing but that “the class action should not have been certified, and the settlement should not have been approved.”

 

 

 

March 20, 2019 in Class Actions, Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, August 7, 2018

Brescia on State Standing

Ray Brescia has published On Objects and Sovereigns: The Emerging Frontiers of State Standing, 96 Or. L. Rev. 363 (2018). From the conclusion:

By taking positions at time adverse to the federal government in the courts through public law litigation, regardless of the administration or political party in power, states can serve as political and constitutional counterweights when they perceive that the federal government is threatening their interests and those of their constituents. They do this by bringing very public law litigation and making sweeping allegations of unconstitutional behavior of the federal government. States appear able to pursue such claims through the federal courts, even when the courts have expressed a reluctance to recognize state authority to sue in a representational capacity and when standing doctrine more generally appears less willing to recognize public harms. By characterizing the harms they allege as those that resemble what a private litigant might assert, however, states appear to have found an approach to vindicating public law interests dressed down in the raiment of private law harms. By doing so, their claims appear to have faced courts more receptive to such harms and more willing to entertaining such suits. Whether this approach generates the type of concrete adverseness the standing doctrine is supposed to surface and brings to light the true nature of the harms at stake that deserve attention by the courts, remains to be seen.

 

 

August 7, 2018 in Federal Courts, Recent Scholarship, Standing | Permalink | Comments (0)

Thursday, July 26, 2018

SDNY rules on motions to dismiss cases challenging addition of a citizenship status question to 2020 census

Today U.S. District Judge Jesse Furman (S.D.N.Y.) issued an opinion and order granting in part and denying in part the defendants’ motion to dismiss two related cases, New York v. United States Department of Commerce and New York Immigration Coalition v. United States Department of Commerce. The plaintiffs in these cases are challenging—on a number of grounds—Commerce Secretary Wilbur Ross’s decision to reinstate a question on citizenship status for the 2020 census. The upshot, as the court summarizes is this:

Plaintiffs’ claims under the Enumeration Clause — which turn on Secretary Ross’s power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross’s purposes and not merely on his power — may proceed.

In reaching this conclusion, the opinion covers a number of interesting issues, including Article III standing, the political question doctrine, and whether the plaintiffs plausibly alleged discriminatory animus for purposes of their equal protection claim under the Due Process Clause.

Download SDNY Opinion and Order 07-26-2018

 

 

 

July 26, 2018 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Subject Matter Jurisdiction, Twombly/Iqbal | Permalink | Comments (0)