Thursday, April 13, 2017
Michael Morley has posted on SSRN a draft of his essay, Spokeo: The Quasi-Hohfeldian Plaintiff and the Non-Federal Federal Question. Here’s the abstract:
In Spokeo, Inc. v. Robins, the Supreme Court held that, to have a justiciable claim in federal court under a federal statute, a plaintiff must show that it suffered a “particularized” and “concrete” injury. Even when Congress creates a cause of action, Article III requires federal courts to ensure that the plaintiff has suffered a sufficiently concrete injury before exercising jurisdiction over its claim.
Spokeo requires us to re-think the traditional dichotomy between Hohfeldian plaintiffs, who have suffered concrete and particularized injury, and non-Hohfeldian (or ideological) plaintiffs, who have suffered no such harm. The case requires recognition of a third category: the quasi-Hohfeldian plaintiff, who has suffered a particularized injury because its statutory rights were violated, but no concrete harm because the violation caused no real damage. At first blush, Spokeo appears to bar quasi-Hohfeldian plaintiffs from federal court. Congress can easily allow federal courts to exercise jurisdiction over their claims, however, simply by statutorily redesignating such plaintiffs as relators, relabeling statutory damages as civil fines, and recharacterizing private rights of action as qui tam claims brought on behalf of the Government.
Friday, April 7, 2017
After changing the Senate rules yesterday to eliminate the possibility of a filibuster for Supreme Court nominees, the Senate has just confirmed Tenth Circuit Judge Neil Gorsuch to the vacant seat on the Supreme Court. His first weeks on the job feature oral arguments in several cases raising civil procedure and federal courts issues.
Monday, April 17:
- Perry v. Merit Systems Protection Board
- Town of Chester v. Laroe Estates
- California Public Employees Retirement System v. ANZ Securities
Tuesday, April 25:
Thursday, February 9, 2017
Today the Ninth Circuit issued its opinion in Washington v. Trump, refusing to grant the federal government’s request for a stay of Judge Robart’s TRO:
- Yes to appellate jurisdiction
- Yes to Article III standing for Washington and Minnesota
- No to the federal government’s request to narrow the TRO
Although this resolves the federal government’s request for a stay, the Ninth Circuit also issued a briefing schedule for the federal government’s appeal of the TRO itself:
Friday, January 20, 2017
Aaron Bruhl has posted on SSRN a draft of his article, One Good Plaintiff is Not Enough. Here’s the abstract:
This Article concerns an aspect of Article III standing that has figured in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one plaintiff has standing. This practice of partially bypassing the requirement of standing is not limited to cases in which the plaintiffs are about to lose on other grounds anyway. Put differently, courts are willing to assume that all plaintiffs have standing as long as one plaintiff has it and then decide the merits either for or against all plaintiffs despite doubts as to the standing of some of those plaintiffs. We could call this the “one-plaintiff rule.”
This Article examines the one-plaintiff rule from normative and positive perspectives. On the normative side, the goal is to establish that the one-plaintiff rule is erroneous in light of principle, precedent, and policy. All plaintiffs need standing, even if all of them present similar legal claims and regardless of the form of relief they seek. To motivate the normative inquiry, the Article also explains why the one-plaintiff rule is harmful as a practical matter, namely because it assigns concrete benefits and detriments to persons to whom they do not belong. The Article’s other principal goal is to explain the puzzle of how the mistaken one-plaintiff rule could attain such widespread acceptance despite the importance usually attributed to respecting Article III’s limits on judicial power. The explanatory account assigns the blame for the one-plaintiff rule to the incentives of courts and litigants as well as to the development of certain problematic understandings of the nature of judicial power.
Friday, January 13, 2017
Whether intervenors participating in a lawsuit as of right under Federal Rule of Civil Procedure 24(a) must have Article III standing (as three circuits have held), or whether Article III is satisfied so long as there is a valid case or controversy between the named parties (as seven circuits have held).
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Thursday, January 5, 2017
Now running on the Courts Law section of JOTWELL is my essay, Comparative Avoidance. I review Erin Delaney’s recent article, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016).
Tuesday, November 8, 2016
Today the Supreme Court hears oral argument in Bank of America v. Miami, which involves standing to sue under the Fair Housing Act. Here are the questions presented:
- By limiting suit to "aggrieved person[s]," did Congress require that an FHA plaintiff plead more than just Article III injury-in-fact?
- The FHA requires plaintiffs to plead proximate cause. Does proximate cause require more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies?
You can find links to all of the briefing at SCOTUSblog.
[Update: Here is the oral argument transcript.]
Thursday, October 13, 2016
Last week, the U.S. Court of Appeals for the Third Circuit issued its decision in Schuchardt v. President of the United States (3d Cir. No. 15-3491). The plaintiff filed a lawsuit challenging NSA surveillance activities, but the district court dismissed for lack of standing. The Third Circuit reversed, with an opinion that begins:
This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt’s second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court’s order and remand.
The court goes on to discuss the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA, as well as the general pleading standard set forth in Twombly and Iqbal.
It’s worth noting that a case similar to Schuchardt is currently pending in the Fourth Circuit. Wikimedia Foundation v. NSA (4th Cir. No. 15-2560) is scheduled for oral argument in December. If readers are interested, below is a link to an amicus brief in the Wikimedia case that I filed on behalf of various civil procedure and federal courts professors:
Tuesday, August 30, 2016
Scott Dodson has posted on SSRN a draft of his article, Jurisdiction and Its Effects, which is forthcoming in the Georgetown Law Journal. Here’s the abstract:
Jurisdiction is experiencing an identity crisis. The Court has given jurisdiction three different identities: jurisdiction as power, jurisdiction as defined effects, and jurisdiction as positive law. These identities are at war with each other, and each is unsustainable on its own. The result has been a breakdown in the application of the basic question of what is jurisdictional and what is not.
I aim to rehabilitate jurisdiction. Jurisdiction is none of the three identities above. Rather, jurisdiction determines forum in a multi-forum system. It seeks not to limit a particular court in isolation but instead to define boundaries and relationships among forums. Because it speaks to relationships generally, jurisdiction exhibits neither unique nor immutable effects. Instead, positive law can prescribe whatever effects - including waivability, forfeitability, and even equitable discretion - best fit a particular jurisdictional rule.
This identity for jurisdiction resolves tensions across a wide range of doctrines. For example, it reconciles personal jurisdiction and original subject-matter jurisdiction as jurisdictional kin, a pair long estranged because of personal jurisdiction’s waivability. Other categorizations are more surprising. For example, venue, abstention, and even the Federal Arbitration Act are all jurisdictional because they select among forums, while Article III standing is non-jurisdictional because it does not. These categorizations are unconventional, but they ultimately produce a more coherent, consistent, and useful jurisdictional identity.
Monday, August 29, 2016
Last week the U.S. Court of Appeals for the Second Circuit issued its decision in Nicosia v. Amazon.com, Inc., holding that the plaintiff’s suit against Amazon should not be dismissed for failure to state a claim based on the mandatory arbitration provision in Amazon’s Conditions of Use.
Of course there’s considerable discussion of the Federal Arbitration Act and substantive contract law, but the court also addresses pleading standards, the relationship between Rule 12(b)(6) motions and motions to compel arbitration, and standing (the latter with respect to the plaintiff’s request for a preliminary injunction).
Wednesday, July 13, 2016
Fred Smith has posted a draft of his article, Undemocratic Restraint, on SSRN. Here’s the abstract:
For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed “prudential” limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.
The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as questions of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?
This Article argues that it is unlikely that recategorizing prudential rules will do much to facilitate representative democracy. Worse, constitutionalizing prudential limits reduces dialogue among the branches, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.
Wednesday, May 18, 2016
The Supreme Court issued Spokeo, Inc. v. Robins, No. 13-1339, earlier this week. In a majority opinion unlikely to make anyone happy, the Court vacated the Ninth Circuit’s decision, which held that Robins had adequately alleged Article III standing, and remanded.
A Brief Recap
Robins’ complaint alleged that Spokeo maintained an inaccurate consumer report about him on its website, in violation of the Fair Credit Reporting Act’s requirement that consumer reporting agencies “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” In particular, Robins alleged that a photo purporting to be Robins on the site wasn’t him, and that the site incorrectly stated that he was in his 50s, married, employed in a professional or technical field, has children, has a graduate degree, and is in the top 10% for wealth.
The upshot of this disseminated misinformation, Robins alleged, was that when he was “out of work” and “actively seeking employment,” he encountered “[imminent and ongoing] actual harm to [his] employment prospects.”
The Majority Opinion
You wouldn’t know that Robins alleged actual harm to his employment prospects by reading the majority opinion, which didn’t mention it. Instead, the majority opinion by Justice Alito (joined by Roberts, Kennedy, and Thomas and inexplicably by Breyer and Kagan) managed to further stultify constitutional standing doctrine by seizing on the Court’s prior repetition of the phrase “concrete and particularized” in describing the “injury in fact” required for standing. The Court now finds it obvious that these are separate, distinct requirements: (1) concrete and (2) particularized (although the Court cited no case that actually discussed these terms separately). The Ninth Circuit, held the majority, applied the “particularized” branch but not the “concreteness” branch.
Friday, January 22, 2016
I'm overcoming my reticence to post twice about one of my articles, because I want to promote the law students at St. Thomas University School of Law who have labored to establish the new St. Thomas Journal of Complex Litigation (JCL). The final version of my article, "Spokeo, Inc. v. Robins: The Illusory 'No-Injury' Class Reaches the Supreme Court," has just been posted on the JCL website. The abstract is available on SSRN here.
The St. Thomas JCL is pleased to accept submissions through ExpressO or Scholastica from judges, attorneys, law faculty, and law students. Information on submissions is here.
Monday, November 30, 2015
In another recent essay on Spokeo, Inc. v. Robins (see also here and here), Professor Joan E. Steinman (IIT-Chicago-Kent College of Law) has posted on SSRN her article, Spokeo, Where Shalt Thou Stand? This article is forthcoming in Vanderbilt Law Review, Vol. 68 (2015).
Professor F. Andrew Hessick (University of Utah - S.J. Quinney School of Law) has posted on SSRN his article, "Understanding Standing." The article is forthcoming in Vanderbilt Law Review En Banc.
Spokeo, Inc. v. Robins, which is before the Supreme Court this term, poses a fundamental question of Article III standing: Does a person have standing to sue to seek redress for the violation of a substantive statutory right, even if he did not suffer any factual harm from the violation of that right?
Standing is one of the doctrines that define the power of the federal judiciary. Federal courts cannot hear all disputes. Instead, Article III authorizes them to resolve only “cases” and “controversies.” The Supreme Court has interpreted those terms to authorize federal courts to resolve only those disputes that were “traditionally amenable to, and resolved by, the judicial process.” This restriction, the Court has said, is critical to maintaining the separation of powers. According to the Court, standing enforces these limits on the judicial power.
Despite standing’s importance to maintaining the federal judiciary’s proper role in the federal government, the Court has been inconsistent on what a plaintiff must show to establish standing. Some cases say that the violation of an individual right is enough; others suggest that a factual harm is required. That inconsistency underlies the standing dispute in Spokeo. If the purpose of Article III standing is to protect the separation of powers by restricting federal courts to resolving only those disputes that courts historically could hear, the answer to that question is clear: the violation of a legal right alone should support Article III standing.
Friday, November 13, 2015
I have recently posted on SSRN an article, "Spokeo, Inc. v. Robins: The Illusory 'No-Injury' Class Reaches the Supreme Court." The article is forthcoming in the newly-established St. Thomas Journal of Complex Litigation, which is currently welcoming submissions.
The Supreme Court’s grant of certiorari in Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (Mem.) (2015) casts a shadow on the long-accepted constitutional principle that Congress has the authority to enact a statute to regulate corporations’ behavior for the public good, and to provide a private right of action to a person as to whom the statute is violated. That right of action often provides for the award of a minimum amount of statutory damages as an alternative or in addition to actual damages.
Congress has enacted numerous such statutes, including the one at issue in Spokeo, the Fair Credit Reporting Act (“FCRA”), which was passed forty-five years ago. Suddenly, within the last ten years, corporate litigation activists have invented a new argument to avoid regulatory statutes that provide for statutory damages. They claim that a “mere” statutory violation is an “injury in law” rather than the “injury in fact” required for Article III standing. And they are launching a frontal assault on Congress’s constitutional authority to enact any statute that provides a private right of action for its violation, accusing Congress of thereby violating Article III by “creating standing.”
Corporate litigation activists then apply to a class representative the argument that the violation of a person’s statutory rights is not an “injury in fact,” and call the result a “no-injury class.” The appellation “no-injury class” is another misleading verbal weapon of recent vintage.
This article hopes to makes three small contributions to the burgeoning literature on Spokeo, which at this writing has not yet been decided. First, the Question Presented to the Supreme Court is misleading and overbroad. It implies that the plaintiff in Spokeo, Thomas Robins, has been found not to have suffered any “concrete harm,” but the case is still at the pleading stage. Thus, the question is simply whether Robins’s complaint contains sufficient allegations of injury, assumed to be true on a motion to dismiss, to establish Article III standing. Further, the Question Presented implies that a ruling involving the FCRA (the statute at issue in Spokeo) will be generalizable to all other statutes that create a private right of action and allow statutory damages, without recognizing the many variations in these statutes’ language and operation.
Second, the article sketches the historical legal difference between the words “injury” and “damage.” “Injury” connotes the violation of one’s legal right, even if one has not sustained any actual harm, while “damage” means a loss or harm, even if one has no legal right to sue. The Supreme Court has adhered to these meanings since Marbury v. Madison. Given that historical distinction, the term “injury in fact” is confusing and somewhat self-contradictory: under the definition of “injury” as the violation of a legal right, the term “injury in fact” is akin to “violation of a legal right in fact.” Further, the petitioner Spokeo’s newly-discovered phrase “injury in law” – which has never been used in a single United States Supreme Court opinion -- is redundant. Under the definition of “injury” as the violation of a legal right, the phrase “injury in law” is akin to “legal right in law.” But however nonsensical, the epithet “injury in law” serves a useful purpose for corporate activists: it minimizes, even ridicules, so-called “technical,” “trifling” statutes that regulate corporate behavior.
Finally, the petitioner Spokeo and its numerous business-oriented amici could have made the very same argument they are making in Spokeo – that the violation of the Fair Credit Reporting Act is not itself an “injury in fact” – only nine years ago in Safeco Insurance Co. v. Burr, 551 U.S. 47 (2007), but did not. In Safeco, the putative class alleged that insurers Safeco and GEICO had not complied with the FCRA’s requirement of sending the class members notice of an “adverse action” when the insurers did not charge them the lowest available insurance rate because of a less-than-perfect credit report. The defendants’ amici repeatedly stated that the plaintiffs in Safeco had not alleged any “actual harm” or “actual damages” even though they sought $1,000 in statutory damages for each member of the class (as the FCRA allows). Thus, Safeco presented exactly the same alleged “no-injury” situation, under exactly the same statute, as Spokeo. Yet the Safeco petitioners and their amici (four of which are also amici in Spokeo) failed to argue that the class representatives lacked Article III standing or that violation of the FCRA was not an “injury in fact.” It seems fair to ask why not, if the Article III argument is so compelling. One might speculate that the reason is that corporate litigation activists have only recently contrived the “statutory-violation-is-not-an-injury-in-fact” argument.
Saturday, November 7, 2015
Professor Howard Wasserman has posted on SSRN his essay, Fletcherian Standing, Merits, and Spokeo, Inc. v. Robins.
This essay offers an exercise in wishful jurisdictional and procedural thinking. As part of a Supreme Court Roundtable on Spokeo, Inc. v. Robins, it argues for William Fletcher's conception of standing as an inquiry into the substantive merits of a claim and of whether the plaintiff has a valid cause of action. This approach is especially necessary in statutory cases; along with its constitutional power to create new rights, duties, and remedies, Congress should have a free hand in deciding who and how those rights and duties should be enforced. Spokeo, which involves a claim for damages for publication of allegedly false consumer-credit information in violation of a federal statute, illustrates the wisdom and benefits of Fletcher's approach.
Monday, November 2, 2015
The Supreme Court hears oral argument today in Spokeo, Inc. v. Robins, which presents the question:
Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.
For our earlier coverage, see here, here, and here. You should also check out Amy Howe’s preview of the argument for SCOTUSblog and the Vanderbilt Law Review’s En Banc Roundtable on the case, available here.
UPDATE: The transcript of the oral argument has now been posted.
Saturday, October 17, 2015
Mark Leyse filed a putative class action against Bank of America after a telemarketer seeking to advertise BoA’s credit cards left a message on the landline shared by Leyse and his roommate. The message allegedly violated the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227(b)(1)(B), which prohibits any person from “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission.”
Bank of America filed an initial Rule 12(b)(6) motion to dismiss on grounds of collateral estoppel. The district court agreed, but the Third Circuit reversed.
Bank of America then filed a second 12(b)(6) motion to dismiss on the ground that Leyse lacked statutory standing to sue because his roommate, not he, is the telephone subscriber “and intended recipient of the call, as the number was associated with [his roommate’s] name in the telemarketing company’s records.” Again, the district court dismissed, and the Third Circuit reversed.
The court first held that it was error for the district court to have considered BoA’s second 12(b)(6) motion. A dismissal for lack of statutory standing is not jurisdictional, but “is effectively the same as a dismissal for failure to state a claim” pursuant to Rule 12(b)(6). Rule 12(h)(2) provides that a second motion to dismiss for failure to state a claim “may be raised (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial” – none of which had occurred. However, the court held that the error did not require reversal:
A district court’s decision to consider a successive Rule 12(b)(6) motion to dismiss is usually harmless, even if it technically violates Rule 12(g)(2). So long as the district court accepts all of the allegations in the complaint as true, the result is the same as if the defendant had filed an answer admitting these allegations and then filed a Rule 12(c) motion for judgment on the pleadings, which Rule 12(h)(2)(B) expressly permits.
Thus, the court continued to the merits of the motion. The TCPA “was intended to combat, among other things, the proliferation of automated telemarketing calls (known as “robocalls”) to private residences, which Congress viewed as a nuisance and an invasion of privacy.”
As was forcefully stated by Senator Hollings, the Act’s sponsor, “Computerized calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall.”
Accordingly, the Act “provides that a ‘person or entity’ may bring an action to enjoin violations of the statute and recover actual damages or $500 in statutory damages per violation.”
Noting a split among courts in interpreting the statutory standing to sue under this section, the Third Circuit found that Leyse fell “within the class of plaintiffs Congress has authorized to sue.”
[I]t is clear that the Act’s zone of interests encompasses more than just the intended recipients of prerecorded telemarketing calls. It is the actual recipient, intended or not, who suffers the nuisance and invasion of privacy. This does not mean that all those within earshot of an unwanted robocall are entitled to make a federal case out of it. Congress’s repeated references to privacy convince us that a mere houseguest or visitor who picks up the phone would likely fall outside the protected zone of interests. On the other hand, a regular user of the phone line who occupies the residence being called undoubtedly has the sort of interest in privacy, peace, and quiet that Congress intended to protect.
Leyse v. Bank of America Nat'l Ass'n, No. 14-4073 (3d Cir. Oct. 14, 2015).
Thursday, September 17, 2015
Academics filed no amicus briefs in favor of Petitioner Spokeo.
Two other articles on Article III standing have recently been posted on SSRN:
'Spooky Action at a Distance': Intangible Injury in Fact in the Information Age by Seth F. Kreimer of University of Pennsylvania Law School. Abstract:
Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of "Psychic Injury." Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and space free from spooky entities like "Psychic Injury."
Albert Einstein famously took the position that quantum mechanics could not be a proper and complete theory on the ground that "[P]hysics should represent a reality in time and space, free from spooky actions at a distance." The problem that ultimately overtook Einstein's argument was that experimental results vindicating quantum mechanics stubbornly continued to appear in the journals. The burden of this paper is to demonstrate that spooky "injuries in fact" involving information have stubbornly continued to appear in United States Reports. It demonstrates that the Court has regularly adjudicated the controversies of the information age: disputes regarding illicit acquisition of information, denial of access to information, improper exposure to information and intellectual property. And it argues that the Court will continue to do so.
These adjudications fatally undermine an account of Article III that insists on "direct" "tangible" and "palpable" injuries to physical or economic interests as the price of admission to the federal courthouse, and profoundly alter notions of "particularized" and "imminent" injury. Information is by nature intangible, and information plays an increasingly dominant role in our social, economic, political and cultural life. Information is largely non-rivalrous and non-excludable. Violations of duties regarding information thus regularly result in injuries that are "general" rather than "particularized." And, with the advent of the Internet, informational harm is pandemically "imminent": information can be spookily and instantaneously "present" at opposite ends of the country, or of the globe.
Article III Standing for Private Plaintiffs Challenging Greenhouse Gas Regulations by Bradford C. Mank of University of Cincinnati Law School. Abstract:
An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may never bring climate change suits because such suits are generalized grievances and the Massachusetts exception for GHG suits applies only to states. However, dissenting from the Ninth Circuit’s denial of a rehearing en banc, three judges argued that the panel’s opinion was overly broad in interpreting the Massachusetts decision to deny standing rights to all non-state GHG plaintiffs. In recent district court decisions, two different federal judges concluded that private plaintiffs may have Article III standing to challenge the government’s regulation of climate change or greenhouse gases. In Center for Biological Diversity v. EPA, the Western District of Washington held the plaintiff suffered concrete standing injuries from the defendant EPA’s approval of Washington’s and Oregon’s decisions not to identify any waters experiencing ocean acidification as impaired under the Clean Water Act (CWA). In distinguishing the Washington Environmental Council decision, the district court concluded that the plaintiffs demonstrated local GHG impacts, and local mitigation efforts could partially redress the injuries to their members. In Murray Energy Corporation v. Gina McCarthy, Administrator of EPA, the Northern District of West Virginia concluded that that the plaintiffs sufficiently established that the EPA violated its duty under the Clean Air Act (CAA) to examine the employment impacts of its enforcement and regulations under the Act on employment in the coal mining industry to have standing. The Murray decision’s focus on employment injuries could be used to provide standing in a challenge to GHG regulations. While there is an argument that expanding standing to non-state GHG plaintiffs could flood the federal courts with too many suits, courts can manage the number of climate change suits by requiring a meaningful demonstration of a connection between GHG emissions and harms to the plaintiffs, and by giving substantial deference to reasonable government regulatory policies in this area.