Article III Standing Requirements

There are several requirements that a case must meet before it can be heard by a federal court. One of the most confusing is the standing requirement. In order to have standing to bring suit in federal court, the plaintiff must have suffered an "injury in fact." This means the injury must have been caused in some way by the actions of the defendant, and the court must be able to provide a form of redress.

Article III, Section 2, Clause 1 states:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

How Does a Party Prove They Have Standing?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Perhaps the most important element of the requirement of adverse parties may be found in the "complexities and vagaries" of the standing doctrine. "The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated."1 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 constitutional questions."2 This practical conception of standing has now given way to a primary emphasis upon separation of powers as the guide. "[T]he 'case or controversy' requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are 'founded in concern about the proper—and properly limited—role of the courts in a democratic society.'"3

Standing as a doctrine is composed of both constitutional and prudential restraints on the power of the federal courts to render decisions,4 and is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action.5 As such, it is often interpreted according to the prevailing philosophies of judicial activism and restraint, and narrowly or broadly in terms of the viewed desirability of access to the courts by persons seeking to challenge legislation or other governmental action. The trend in the 1960s was to broaden access; in the 1970s, 1980s, and 1990s, it was to narrow access by stiffening the requirements of standing, although Court majorities were not entirely consistent. The major difficulty in setting forth the standards is that the Court's generalizations and the results it achieves are often at variance.6

The standing rules apply to actions brought in federal courts, and they have no direct application to actions brought in state courts.7

Generalized or Widespread Injuries

Persons do not have standing to sue in federal court when all they can claim is that they have an interest or have suffered an injury that is shared by all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I, § 6, cl. 2, was denied standing.8 "The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract. . . . [The] claimed nonobservance [of the clause], standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance."9

Notwithstanding that a generalized injury that all citizens share is insufficient to confer standing, where a plaintiff alleges that the defendant's action injures him in "a concrete and personal way," "it does not matter how many [other] persons have [also] been injured. . . . [W]here a harm is concrete, though widely shared, the Court has found injury in fact."10

Constitutional Standards: Injury in Fact, Causation, and Redressability

Although the Court has been inconsistent, it has now settled upon the rule that, at "an irreducible minimum," the constitutional requisites under Article III for the existence of standing are that the plaintiff must personally have: 1) suffered some actual or threatened injury; 2) that injury can fairly be traced to the challenged action of the defendant; and 3) that the injury is likely to be redressed by a favorable decision.11

For a time, the actual or threatened injury requirement noted above included an additional requirement that such injury be the product of "a wrong which directly results in the violation of a legal right."12 In other words, the injury needs to be "one of property, one arising out of contract, one protected against tortuous invasion, or one founded in a statute which confers a privilege."13 It became apparent, however, that the "legal right" language was "demonstrably circular: if the plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied standing, his interest is not legally protected."14 Despite this test, the observable tendency of the Court was to find standing in cases which were grounded in injuries far removed from property rights.15

In any event, the "legal rights" language has now been dispensed with. Rejection of this doctrine occurred in two administrative law cases in which the Court announced that parties had standing when they suffered "injury in fact" to some interest, "economic or otherwise," that is arguably within the zone of interest to be protected or regulated by the statute or constitutional provision in question.16 Political,17 environmental, aesthetic, and social interests, when impaired, now afford a basis for making constitutional attacks upon governmental action.18 "But deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing."19 Moreover, while Congress has the power to define injuries and articulate "chains of causation" that will give rise to a case or controversy, a plaintiff does not "automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize a person to sue to vindicate that right."20

The breadth of the "injury-in-fact" concept may be discerned in a series of cases involving the right of private parties to bring actions under the Fair Housing Act to challenge alleged discriminatory practices, even where discriminatory action was not directed against parties to a suit. These cases held that the subjective and intangible interests of enjoying the benefits of living in integrated communities were sufficient to permit the plaintiffs to attack actions that threatened or harmed those interests.21 There also is the important case of FEC v. Akins,22 which addresses the ability of Congress to confer standing and to remove prudential constraints on judicial review. Congress had afforded persons access to Commission information and had authorized "any person aggrieved" by the actions of the FEC to sue. The Court found "injury-in-fact" present where plaintiff voters alleged that the Federal Election Commission had denied them information respecting an organization that might or might not be a political action committee.23 Another area where the Court has interpreted this term liberally are injuries to the interests of individuals and associations of individuals who use the environment, affording them standing to challenge actions that threatened those environmental conditions.24

Even citizens who bring qui tam actions under the False Claims Act—actions that entitle the plaintiff ("relator") to a percentage of any civil penalty assessed for violation—have been held to have standing, on the theory that the government has assigned a portion of its damages claim to the plaintiff, and the assignee of a claim has standing to assert the injury in fact suffered by the assignor.25 Citing this holding and historical precedent, the Court upheld the standing of an assignee who had promised to remit the proceeds of the litigation to the assignor.26 The Court noted that "federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians at litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; and so forth."27

Beyond these historical anomalies, the Court has indicated that, for parties lacking an individualized injury to seek judicial relief on behalf of an absent third party, there generally must be some sort of agency relationship between the litigant and the injured party.28 In Hollingsworth v. Perry,29 the Court considered the question of whether the official proponents of Proposition 8,30 a state measure that amended the California Constitution to define marriage as a union between a man and a woman, had standing to defend the constitutionality of the provision on appeal. After rejecting the argument that the proponents of Proposition 8 had a particularized injury in their own right,31 the Court considered the argument that the plaintiffs were formally authorized through some sort of official act to litigate on behalf of the State of California.

Although the proponents were authorized by California law to argue in defense of the proposition,32 the Court found that this authorization, by itself, was insufficient to create standing. The Court expressed concern that, although California law authorized the proponents to argue in favor of Proposition 8, the proponents were still acting as private individuals, not as state officials33 or as agents that were controlled by the state.34 Because the proponents did not act as agents or official representatives of the State of California in defending the law, the Court held that the proponents only possessed a generalized interest in arguing in defense of Proposition 8 and, therefore, lacked standing to appeal an adverse district court decision.35

More broadly, the Court has been wary in constitutional cases of granting standing to persons who alleged threats or harm to interests that they shared with the community of people at large; it is unclear whether this rule against airing "generalized grievances" through the courts36 has a constitutional or a prudential basis.37

In a number of cases, particularly where a plaintiff seeks prospective relief, such as an injunction or declaratory relief, the Supreme Court has strictly construed the nature of the injury-in-fact necessary to obtain such judicial remedy. First, the Court has been hesitant to assume jurisdiction over matters in which the plaintiff seeking relief cannot articulate a concrete harm.38 For example, in Laird v. Tatum, the Court held that plaintiffs challenging a domestic surveillance program lacked standing when their alleged injury stemmed from a "subjective chill," as opposed to a "claim of specific present objective harm or a threat of specific future harm."39 And in Spokeo, Inc. v. Robins, the Court explained that a concrete injury requires that an injury must "actually exist" or there must be a "risk of real harm," such that a plaintiff who alleges nothing more than a bare procedural violation of a federal statute cannot satisfy the injury-in-fact requirement.40

Second, the Court has required plaintiffs seeking equitable relief to demonstrate that the risk of a future injury is of a sufficient likelihood; past injury is insufficient to create standing to seek prospective relief.41 The Court has articulated the threshold of likelihood of future injury necessary for standing in such cases in various ways,42 generally refusing to find standing where the risk of future injury is speculative.43 More recently, in Clapper v. Amnesty International USA, the Court held that, in order to demonstrate Article III standing, a plaintiff seeking injunctive relief must prove that the future injury, which is the basis for the relief sought, must be "certainly impending;" a showing of a "reasonable likelihood" of future injury is insufficient.44 Moreover, the Court in Amnesty International held that a plaintiff cannot satisfy the imminence requirement by merely "manufacturing" costs incurred in response to speculative, non-imminent injuries.45 A year after Amnesty International, the Court in Susan B. Anthony List v. Driehaus46 reaffirmed that pre-enforcement challenges to a statute can occur "under circumstances that render the threatened enforcement sufficiently imminent."47 In Susan B. Anthony List, an organization planning to disseminate a political advertisement, which was previously the source of an administrative complaint under an Ohio law prohibiting making false statements about a candidate or a candidate's record during a political campaign, challenged the prospective enforcement of that law. The Court, in finding that the plaintiff's future injury was certainly impending, relied on the history of prior enforcement of the law with respect to the advertisement, coupled with the facts that "any person" could file a complaint under the law, and any threat of enforcement of the law could burden political speech.48

Of increasing importance are causation and redressability, the second and third elements of standing, recently developed and held to be of constitutional requisite. A plaintiff must show its injuries are fairly traceable to the conduct complained of.49 Thus, poor people who had been denied service at certain hospitals were held to lack standing to challenge IRS policy of extending tax benefits to hospitals that did not serve indigents because they could not show that alteration of the tax policy would cause the hospitals to alter their policies and treat them.50 Low-income persons seeking the invalidation of a town's restrictive zoning ordinance were held to lack standing because they had failed to allege with sufficient particularity that the complained-of injury—inability to obtain adequate housing within their means—was fairly attributable to the ordinance instead of to other factors, so that voiding of the ordinance might not have any effect upon their ability to find affordable housing.51 Similarly, the link between fully integrated public schools and allegedly lax administration of tax policy permitting benefits to discriminatory private schools was deemed too tenuous, the harm flowing from private actors not before the courts and the speculative possibility that directing denial of benefits would result in any minority child being admitted to a school.52

But the Court did permit plaintiffs to attack the constitutionality of a law limiting the liability of private utilities in the event of nuclear accidents and providing for indemnification, on a showing that "but for" the passage of the law there was a "substantial likelihood," based upon industry testimony and other material in the legislative history, that the nuclear power plants would not be constructed and that therefore the environmental and aesthetic harm alleged by plaintiffs would not occur. Thus, voiding the law would likely relieve the plaintiffs of the complained of injuries.53 And in a case where a creditor challenged a bankruptcy court's structured dismissal of a Chapter 11 case that denied the creditor the opportunity to obtain a settlement or assert a claim with "litigation value," the Court held that a decision in the creditor's favor was likely to redress the loss.54 Operation of these requirements makes difficult but not impossible the establishment of standing by persons indirectly injured by governmental action, that is, action taken as to third parties that is alleged to have injured the claimants as a consequence.55

In a case permitting a plaintiff contractors' association to challenge an affirmative-action, set-aside program, the Court seemed to depart from several restrictive standing decisions in which it had held that the claims of attempted litigants were too "speculative" or too "contingent."56 The association had sued, alleging that many of its members "regularly bid on and perform construction work" for the city and that they would have bid on the set-aside contracts but for the restrictions. The Court found the association had standing because certain prior cases under the Equal Protection Clause established a relevant proposition. "When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The 'injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit."57 The association, therefore, established standing by alleging that its members were able and ready to bid on contracts but that a discriminatory policy prevented them from doing so on an equal basis.58

Redressability can be present in an environmental "citizen suit" even when the remedy is civil penalties payable to the government. The civil penalties, the Court explained, "carried with them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would redress [plaintiffs'] injuries by abating current violations and preventing future ones."59

Current Standing Doctrine

Standing to challenge governmental action on statutory or other non-constitutional grounds has a constitutional content to the degree that Article III requires a "case" or "controversy," necessitating a litigant who has sustained or will sustain an injury so that he will be moved to present the issue "in an adversary context and in a form historically viewed as capable of judicial resolution."60 Liberalization of standing in the administrative law field has been notable.

The "old law" required that in order to sue to contest the lawfulness of agency administrative action, one must have suffered a "legal wrong," that is, "the right invaded must be a legal right,"61 requiring some resolution of the merits preliminarily. An injury-in-fact was insufficient. A "legal right" could be established in one of two ways. It could be a common-law right, such that if the injury were administered by a private party, one could sue on it;62 or it could be a right created by the Constitution or a statute.63 The statutory right most relied on was the judicial review section of the Administrative Procedure Act, which provided 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."64 Early decisions under this statute interpreted the language as adopting the "legal interest" and "legal wrong" standard then prevailing as constitutional requirements of standing, which generally had the effect of limiting the type of injury cognizable in federal court to economic ones.65

In 1970, however, the Court promulgated a two-pronged standing test: if the litigant (1) has suffered injury-in-fact and if he (2) shows that the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statutory guarantee in question, he has standing.66 Of even greater importance was the expansion of the nature of the cognizable injury beyond economic injury to encompass "aesthetic, conservational, and recreational" interests as well.67 "Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process."68 Thus, plaintiffs who pleaded that they used the natural resources of the Washington area, that rail freight rates would deter the recycling of used goods, and that their use of natural resources would be disturbed by the adverse environmental impact caused by the nonuse of recyclable goods, had standing as "persons aggrieved" to challenge the rates set. Neither the large numbers of persons allegedly injured nor the indirect and less perceptible harm to the environment was justification to deny standing. The Court granted that the plaintiffs might never be able to establish the "attenuated line of causation" from rate setting to injury, but that was a matter for proof at trial, not for resolution on the pleadings.69

Much debate has occurred in recent years with respect to the validity of "citizen suit" provisions in the environmental laws, especially in light of the Court's retrenchment in constitutional standing cases. The Court in insisting on injury in fact as well as causation and redressability has curbed access to citizen suits,70 but that Congress may expansively confer substantial degrees of standing through statutory creations of interests remains true.

Footnotes

  1. Flast v. Cohen, 392 U.S. 83, 99 (1968). This characterization is not the view of the present Court; see Allen v. Wright, 468 U.S. 737, 750, 752, 755–56, 759–61 (1984). In taxpayer suits, it is appropriate to look to the substantive issues to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. Id. at 102; United States v. Richardson, 418 U.S. 166, 174–75 (1974)Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 78–79 (1978).
  2. Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have a personal, ideological interest sufficiently strong to create adverseness is not alone enough to confer standing; rather, the adverseness is the consequence of one being able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Americans United, 454 U.S. 464, 482–486 (1982)Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 225–226 (1974). Nor is the fact that, if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id. at 227.
  3. Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). All the standards relating to whether a plaintiff is entitled to adjudication of his claims must be evaluated "by reference to the Art. III notion that federal courts may exercise power only 'in the last resort, and as a necessity,' . . . and only when adjudication is 'consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.'" Id. at 752 (quoting, respectively, Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 345 (1892), and Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the strengthening of the separation-of-powers barrier to standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60, 571–78 (1992).
  4. E.g.Valley Forge Christian College v. Americans United, 454 U.S. 464, 471–476 (1982)Allen v. Wright, 468 U.S. 737, 750–751 (1984).
  5. C. Wright, Handbook of the Law of Federal Courts 60 (4th ed. 1983).
  6. "[T]he concept of 'Art. III standing' has not been defined with complete consistency in all of the various cases decided by this Court . . . [and] this very fact is probably proof that the concept cannot be reduced to a one-sentence or one-paragraph definition." Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982). Generalizations about standing to sue are largely worthless as such. Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 151 (1970). For extensive consideration of the doctrine, see Hart & Wechsler (6th ed.), supra at 100–183.
  7. Thus, state courts could adjudicate a case brought by a person who had no standing in the federal sense. If the plaintiff lost, he would have no recourse in the U.S. Supreme Court, because of his lack of standing, Tileston v. Ullman, 318 U.S. 44 (1943)Doremus v. Board of Education, 342 U.S. 429 (1952), but if plaintiff prevailed, the losing defendant might be able to appeal, because he might be able to assert sufficient injury to his federal interests. ASARCO Inc. v. Kadish, 490 U.S. 605 (1989).
  8. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974).
  9. 418 U.S. at 217. See also United States v. Richardson, 418 U.S. 166, 176–77 (1974)Valley Forge Christian College v. Americans United, 454 U.S. 464, 483 (1982)Allen v. Wright, 468 U.S. 737, 754 (1984)Whitmore v. Arkansas, 495 U.S. 149 (1990)Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–77 (1992); Lance v. Coffman, 549 U.S. 437, 441 (2007) (per curiam). Cf. Ex parte Levitt, 302 U.S. 633 (1937); Laird v. Tatum, 408 U.S. 1 (1972).
  10. Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 517, 522 (2007) (internal quotation marks omitted). In this case, "EPA maintain[ed] that because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable jurisdictional obstacle." The Court, however, found that "EPA's steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both 'actual' and 'imminent.'" Id. at 517, 521.
  11. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Importantly, standing is not "dispensed in gross," and, accordingly, a plaintiff must demonstrate standing for each claim "he seeks to press and for each form of relief that is sought." See Davis v. FEC, 554 U.S. 724, 734 (2008). Moreover, when there are multiple parties to a lawsuit brought in federal court, "[f]or all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor as of right." See Town of Chester v. Laroe Estates, Inc., 581 U.S. ___, No. 16–605, slip op. at 6 (2017). A litigant must also maintain standing to pursue an appeal. See, e.g.Hollingsworth v. Perry, 570 U.S. 693, 705 (2013) ; see also, e.g.Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 219 (2020) (stating that a petitioner had "appellate standing" where the petitioner suffered a "concrete injury" that was "traceable to the decision below" and could be redressed by the Court).
  12. Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938)Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151–152 (1951) (Justice Frankfurter concurring). But see Frost v. Corporation Comm'n, 278 U.S. 515 (1929)City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958).
  13. Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939).
  14. C. Wright, supra at 65–66.
  15. E.g.Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (indirect injury to organization and members by governmental maintenance of list of subversive organizations); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (same); Abington School Dist. v. Schempp, 374 U.S. 203, 224 n.9 (1963) (parents and school children challenging school prayers); McGowan v. Maryland, 366 U.S. 420, 430–431 (1961) (merchants challenging Sunday closing laws); Baker v. Carr, 369 U.S. 186, 204–208 (1962) (voting rights).
  16. Ass'n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970)Barlow v. Collins, 397 U.S. 159 (1970). The "zone of interest test" is a prudential rather than constitutional standard. The Court sometimes uses other language to characterize this test. Thus, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), the Court refers to injury in fact as "an invasion of a legally protected interest," but in context, here and in the cases cited, it is clear the reference is to any interest that the Court finds protectable under the Constitution, statutes, or regulations.
  17. Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999).
  18. E.g.Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992)Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1991)Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72–74 (1978)Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261–263 (1977)Singleton v. Wulff, 428 U.S. 106, 112–113 (1976)Warth v. Seldin, 422 U.S. 490, 498–499 (1975)O'Shea v. Littleton, 414 U.S. 488, 493–494 (1974)Linda R.S. v. Richard D., 410 U.S. 614, 617–618 (1973).
  19. Summers v. Earth Island Institute, 129 S. Ct. 1142, 1151 (2009) (environmental group that was denied the opportunity to file comments with the United States Forest Service regarding a Forest Service action denied standing for lack of concrete injury). On the other hand, where a party has successfully established a legal right, a threat to the enforcement of that legal right gives rise to a separate legal injury. Salazar v. Buono, 559 U.S. ___, No. 08–472, slip op. at 8 (2010) (plurality opinion) ("A party that obtains a judgment in its favor acquires a 'judicially cognizable' interest in ensuring compliance with that judgment").
  20. See Spokeo, Inc. v. Robins, 578 U.S. ___, No. 13-1339, slip op. at 9 (2016)see also Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1620 (2020) (rejecting the argument that the existence of a general cause of action for participants in a defined-benefit plan in the Employee Retirement Income Security Act of 1974 sufficed to provide Article III standing). The phrase "chains of causation" originates from Justice Kennedy's concurrence in Defenders of Wildlife, in which he states that in order to properly define an injury that can be vindicated in an Article III court, "Congress must . . . identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit." 504 U.S. at 580 (Kennedy, J., concurring).
  21. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972)Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979)Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
  22. 524 U.S. 11 (1998).
  23. That the injury was widely shared did not make the claimed injury a "generalized grievance," the Court held, but rather in this case, as in others, the denial of the statutory right was found to be a concrete harm to each member of the class.
  24. Sierra Club v. Morton, 405 U.S. 727, 735 (1972)United States v. SCRAP, 412 U.S. 669, 687–88 (1973)Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72–74 (1978). But the Court has refused to credit general allegations of injury untied to specific governmental actions. E.g.Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)SCRAP in particular is disfavored as too broad. Lujan v. Defenders of Wildlife, 504 U.S. at 566. Moreover, unlike the situation in taxpayer suits, there is no requirement of a nexus between the injuries claimed and the constitutional rights asserted. In Duke Power, 438 U.S. at 78–81, claimed environmental and health injuries grew out of construction and operation of nuclear power plants but were not directly related to the governmental action challenged, the limitation of liability and indemnification in cases of nuclear accident. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 264–65 (1991)Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000).
  25. Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000). The Court confirmed its conclusion by reference to the long tradition of qui tam actions, since the Constitution's restriction of judicial power to "cases" and "controversies" has been interpreted to mean "cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process." Id. at 774.
  26. Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269 (2008) (payphone operators had assigned claims against long-distance carriers to "aggregators" to sue on their behalf). Chief Justice Roberts, in a dissent joined by Justices Scalia, Thomas, and Alito, stated that the aggregators lacked standing because they "have nothing to gain from their lawsuit." Id. at 2549.
  27. Id at 2543.
  28. See, e.g.Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1620 (2020) (rejecting the argument that uninjured participants in a defined-benefit plan could sue as the plan's representatives because, unlike "guardians, receivers, and executors," the plaintiffs had not been "legally or contractually appointed to represent the plan"); Gollust v. Mendell, 501 U.S. 115, 124–25 (1991) (requiring plaintiff in shareholder-derivative suit to maintain a financial stake in the litigation's outcome to avoid "serious constitutional doubt whether that plaintiff could demonstrate the standing required by Article III's case-or-controversy limitation").
  29. 570 U.S. ___, No. 12-144, slip op. (2013).
  30. Under the relevant provisions of the California Elections Code, "'[p]roponents of an initiative or referendum measure' means . . . the elector or electors who submit the text of a proposed initiative or referendum to the Attorney General . . . ; or . . . the person or persons who publish a notice of intention to circulate petitions, or, where publication is not required, who file petitions with the elections official or legislative body." Cal. Elec. Code § 342 (West 2003).
  31. Hollingsworth, slip op. at 7–9.
  32. California's governor and state and local officials declined to defend Proposition 8 in federal district court, so the proponents were allowed to intervene. After the federal district court held the proposition unconstitutional, the government officials elected not to appeal, so the proponents did. The federal court of appeals certified a question to the California Supreme Court on whether the official proponents of the proposition had the authority to assert the state's interest in defending the constitutionality of Proposition 8, see Perry v. Schwarzenegger, 628 F.3d 1191, 1193 (2011), which was answered in the affirmative, see Perry v. Brown, 265 P.3d 1002, 1007 (Cal. 2011).
  33. See Hollingsworth, slip op. at 12 (citing Karcher v. May, 484 U.S. 72 (1987)).
  34. The Court noted that an essential feature of agency is the principal's right to control the agent's actions. Here, the proponents "decided what arguments to make and how to make them." Id. at 15. The Court also noted that the proponents were not elected to their position, took no oath, had no fiduciary duty to the people of California, and were not subject to removal. Id.
  35. Id. at 709–10. Similarly, in Virginia House of Delegates v. Bethune-Hill, the Court concluded that one chamber of the Virginia legislature lacked standing to represent the Commonwealth's interests for two reasons: (1) Virginia law designated the Virginia Attorney General as the Commonwealth's exclusive representative in litigation; and (2) the chamber claimed earlier in the litigation that it was vindicating its own interests, as opposed to those of Virginia. See 139 S. Ct. 1945, 1951–52 (2019).
  36. See, e.g.Gill v. Whitford, 585 U.S. ___, No. 16-1161, slip op. at 14 (2018) (holding that, in order to have standing to raise a claim of vote dilution as a result of partisan gerrymandering, plaintiffs must allege that their own particular district has been gerrymandered; claims of gerrymandering by those who do not live in a gerrymandered district amount to a generalized grievance); see also United States v. Hays, 515 U.S. 737, 744–45 (1995) (same rationale for allegations of racial gerrymandering).
  37. Compare Warth v. Seldin, 422 U.S. 490, 499–500 (1975) (prudential), with Valley Forge Christian College v. Americans United, 454 U.S. 464, 485, 490 (1982) (apparently constitutional). In Allen v. Wright, 468 U.S. 737, 751 (1984), it is again prudential.
  38. See generally Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) ("[D]eprivation of a . . . right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing."); see, e.g.Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1618, 1621–22 (2020) (holding that participants in a defined-benefit plan lacked a concrete stake in a lawsuit seeking monetary and injunctive relief to remedy alleged mismanagement of the plan where the plaintiffs' monthly payments were fixed and not tied to plan performance); Cal. Bankers Ass'n v. Shultz, 416 U.S. 21, 73 (1974) (plaintiffs alleged that Treasury regulations would require them to report currency transactions, but made no additional allegation that any of the information required by the Secretary will tend to incriminate them).
  39. 408 U.S. 1, 14–15 (1972).
  40. See 578 U.S. ___, No. 13-1339, slip op. at 8–10 (2016). Nonetheless, the Spokeo Court cautioned that "intangible" injuries, such as violations of constitutional rights like freedom of speech or the free exercise of religion, can amount to "concrete" injuries. Id. at 8–9 ("'Concrete' is not, however, necessarily synonymous with 'tangible.'"). In determining whether an intangible harm amounts to a concrete injury, the Court noted that history and the judgment of Congress can inform a court's conclusion about whether a particular plaintiff has standing. Id. at 9.
  41. See City of Los Angeles v. Lyons, 461 U.S. 95, 110 (1983) (holding that a victim of a police chokehold seeking injunctive relief was unable to show sufficient likelihood of recurrence as to him).
  42. See Davis v. FEC, 554 U.S. 724, 734 (2008) ("[T]he injury required for standing need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct.").
  43. See, e.g.Rizzo v. Goode, 423 U.S. 362, 372 (1976) ("[I]ndividual respondents' claim to 'real and immediate' injury rests not upon what the named petitioners might do to them in the future . . . but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman's perception of departmental disciplinary procedures."); O'Shea v. Littleton, 414 U.S. 488, 497 (1974) (no "sufficient immediacy and reality" to allegations of future injury that rest on the likelihood that plaintiffs will again be subjected to racially discriminatory enforcement and administration of criminal justice).
  44. 568 U.S. 398, 410–11 (2013). In adopting a "certainly impending" standard, the five-Justice majority observed that earlier cases had not uniformly required literal certainty. Id. at 414 n.5. Amnesty International's limitation on standing may be particularly notable in certain contexts, such as national security, where evidence necessary to prove a "certainly impending" injury may be unavailable to a plaintiff.
  45. Id. at 410–11. In Amnesty International, defense attorneys, human rights organizations, and others challenged prospective, covert surveillance of the communications of certain foreign nationals abroad as authorized by the FISA Amendments Act of 2008. The Court found the plaintiffs lacked standing because they failed to show, inter alia, what the government's targeting practices would be, what legal authority the government would use to monitor any of the plaintiffs' overseas clients or contacts, whether any approved surveillance would be successful, and whether the plaintiffs' own communications from within the United States would incidentally be required. Id. at 411–14. Moreover, the Court rejected that the plaintiffs could demonstrate an injury-in-fact as a result of costs that they had incurred to guard against a reasonable fear of future harm (such as, travel expenses to conduct in person conversations abroad in lieu of conducting less costly electronic communications that might be more susceptible to surveillance) because those costs were the result of an injury that was not certainly impending. Id. at 415–18.
  46. 573 U.S. ___, No. 13-193, slip op. (2014).
  47. Relying on Amnesty International, the Court in Susan B. Anthony List held that an allegation of future injury may suffice if the injury is 'certainly impending' or there is a 'substantial risk' that the harm may occur. Susan B. Anthony List, slip op. at 8 (quoting Amnesty Int'l, slip op. at 10, 15, n.5). cf. Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621 (2020) (concluding that participants in a defined-benefit plan lacked standing because they failed to adequately plead that the plan managers had "substantially increased the risk that the plan and the employer would fail and be unable to pay the participants' future pension benefits"). The Court framed the imminence requirement similarly in Department of Commerce v. New York, a suit brought by the State of New York to enjoin the inclusion of a question on the census about a person's citizenship. See 588 U.S. ___, No. 18-966, slip op. at 9 (2019). In holding that the state had standing to sue, the Court deferred to the lower court's findings that New York's alleged injury of being deprived of federal funding as a result of the reinstatement of a citizenship question on the census had a "sufficient likelihood," given evidence in the record of lower response rates by noncitizen households and the likely decrease in federal funding resulting from an undercount. Id. at 9–10. While previous Court decisions have viewed pre-enforcement challenges as a question of "ripeness", see The Ripeness DoctrineinfraSusan B. Anthony List held that the doctrine of ripeness ultimately boil[s] down to the same question as standing and, therefore, viewed the case through the lens of Article III standing. Susan B. Anthony List, slip op. at 7 n.5.
  48. Id. at 14–17 (internal quotation marks omitted).
  49. See Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 79 (1978)see, e.g.Food Mktg. Inst. v. Argus Leader Media, 588 U.S. ___, No. 18-481, slip op. at 4–5 (2019) (holding that a ruling allowing, but not requiring, an agency to withhold information under the Freedom of Information Act redresses injuries resulting from disclosure when the government has "unequivocally" stated that it will not disclose the contested information absent a court order); Wittman v. Personhuballah, 578 U.S. ___, No. 14-1504, slip op. at 4–5 (2016) (dismissing a challenge to a redistricting plan by a congressman, who conceded that regardless of the result of the case he would run in his old district, any injury suffered could not be redressed by a favorable ruling). Although "causation" and "redressability" were initially articulated as two facets of a single requirement, the Court now views them as separate inquiries. See Sprint Commc'ns Co., L.P. v. APCC Servs., 554 U.S. 269, 286–87 (2008). The former examines a causal connection between the allegedly unlawful conduct and the alleged injury, whereas the latter examines the likelihood that the judicial relief requested would redress that injury. Id. at 273, 286–87.
  50. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976)See also Linda R.S. v. Richard D., 410 U.S. 614 (1973) (mother of a child born out of wedlock lacked standing to contest prosecutorial policy of using child support laws to coerce support of children born to wedded parents only, as it was "only speculative" that prosecution of father would result in support rather than jailing). However, in Summers v. Earth Island Inst., 129 S. Ct. 1142, 1151 (2009), the Court noted in dicta that, if a plaintiff is denied a procedural right, the fact that the right had been accorded by Congress "can loosen the strictures of the redressability prong of our standing inquiry." Thus, standing may exist even though a court's enforcing a procedural right accorded by Congress, such as the right to comment on a proposed federal agency action, will not guarantee the plaintiff success in persuading the agency to adopt the plaintiff's point of view.
  51. Warth v. Seldin, 422 U.S. 490 (1975). In Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 (1977), however, a person who alleged he was seeking housing in the community and that he would qualify if the organizational plaintiff were not inhibited by allegedly racially discriminatory zoning laws from constructing housing for low-income persons like himself was held to have shown a "substantial probability" that voiding of the ordinance would benefit him.
  52. Allen v. Wright, 468 U.S. 737 (1984)But see Heckler v. Mathews, 465 U.S. 728 (1984), where persons denied equal treatment in conferral of benefits were held to have standing to challenge the treatment, although a judicial order could only have terminated benefits to the favored class. In that event, members would have secured relief in the form of equal treatment, even if they did not receive benefits. See also Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987)Orr v. Orr, 440 U.S. 268, 271–273 (1979).
  53. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72–78 (1978). The likelihood of relief in some cases appears to be rather speculative at best. E.g.Bryant v. Yellen, 447 U.S. 352, 366–368 (1980)Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160–162 (1981).
  54. See Czyzewski v. Jevic Holding Corp., 580 U.S. ___, No. 15-649, slip op. at 11 (2017) (holding that the "mere possibility" that a plaintiff's injury will not be remedied by a favorable decision is insufficient to conclude the plaintiff lacks standing because of want of redressability); see also Clinton v. City of New York, 524 U.S. 417, 430–31 (1998) (holding that the imposition of a "substantial contingent liability" qualifies as an injury for purposes of Article III standing).
  55. Warth v. Seldin, 422 U.S. 490, 505 (1975)Allen v. Wright, 468 U.S. 737, 756–761 (1984).
  56. Thus, it appears that had the Court applied its standard in the current case, the results would have been different in such cases as Linda R. S. v. Richard D., 410 U.S. 614 (1973)Warth v. Seldin, 422 U.S. 490 (1975)Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976)Allen v. Wright, 468 U.S. 737 (1984).
  57. Northeastern Fla. Ch. of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1993). The Court derived the proposition from another set of cases. Turner v. Fouche, 396 U.S. 346 (1970)Clements v. Fashing, 457 U.S. 957 (1982)Regents of the Univ. of California v. Bakke, 438 U.S. 265, 281 n.14 (1978).
  58. 508 U.S. at 666. But see, in the context of ripeness, Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), in which the Court, over the dissent's reliance on Jacksonville, 509 U.S. at 81–82, denied the relevance of its distinction between entitlement to a benefit and equal treatment. Id. at 58 n.19.
  59. Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 187 (2000).
  60. Ass'n of Data Processing Service Org. v. Camp, 397 U.S. 150, 151–152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101 (1968). "But where a dispute is otherwise justiciable, the question whether the litigant is a 'proper party to request an adjudication of a particular issue,' [quoting Flastsupra, at 100], is one within the power of Congress to determine." Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972).
  61. Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939)See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938)Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).
  62. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). This was apparently the point of the definition of legal right as "one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege." Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 137–138 (1939).
  63. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). The Court approached this concept in two interrelated ways. (1) It might be that a plaintiff had an interest that it was one of the purposes of the statute in question to protect in some degree. Chicago Junction Case, 264 U.S. 258 (1924)Alexander Sprunt & Son v. United States, 281 U.S. 249 (1930)Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky Utilities Co., 390 U.S. 1 (1968), a private utility was held to have standing to contest allegedly illegal competition by TVA on the ground that the statute was meant to give private utilities some protection from certain forms of TVA competition. (2) It might be that a plaintiff was a "person aggrieved" within the terms of a judicial review section of an administrative or regulatory statute. Injury to an economic interest was sufficient to "aggrieve" a litigant. FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir. 1943), cert. dismissed as moot, 320 U.S. 707 (1943).
  64. 5 U.S.C. § 702See also 47 U.S.C. § 202(b)(6) (FCC); 15 U.S.C. § 77i(a) (SEC); 16 U.S.C. § 825a(b) (FPC).
  65. FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940)City of Chicago v. Atchison, T. & S.F. Ry. Co., 357 U.S. 77, 83 (1958)Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7 (1968).
  66. Ass'n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970)Barlow v. Collins, 397 U.S. 159 (1970). Justices Brennan and White argued that only injury-in-fact should be requisite for standing. Id. at 167. In Clarke v. Securities Industry Ass'n, 479 U.S. 388 (1987), the Court applied a liberalized zone-of-interest test. But see Lujan v. National Wildlife Federation, 497 U.S. 871, 885–889 (1990)Air Courier Conf. v. American Postal Workers Union, 498 U.S. 517 (1991). In applying these standards, the Court, once it determined that the litigant's interests were "arguably protected" by the statute in question, proceeded to the merits without thereafter pausing to inquire whether in fact the interests asserted were among those protected. Arnold Tours v. Camp, 400 U.S. 45 (1970)Investment Company Institute v. Camp, 401 U.S. 617 (1971)Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 320 n.3 (1977). Almost contemporaneously, the Court also liberalized the ripeness requirement in review of administrative actions. Gardner v. Toilet Goods Ass'n, Inc., 387 U.S. 167 (1967)Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)See also National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479 (1998), in which the Court found that a bank had standing to challenge an agency ruling expanding the role of employer credit unions to include multi-employer credit unions, despite a statutory limit that any such union could be of groups having a common bond of occupation or association. The Court held that a plaintiff did not have to show it was the congressional purpose to protect its interests. It is sufficient if the interest asserted is "arguably within the zone of interests to be protected . . . by the statute." Id. at 492 (internal quotation marks and citation omitted). But the Court divided 5-to-4 in applying the test. See also Bennett v. Spear, 520 U.S. 154 (1997).
  67. Ass'n of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970).
  68. Sierra Club v. Morton, 405 U.S. 727, 734 (1972). Moreover, said the Court, once a person establishes that he has standing to seek judicial review of an action because of particularized injury to him, he may argue the public interest as a "representative of the public interest", as a "private attorney general," so that he may contest not only the action which injures him but the entire complex of actions of which his injury-inducing action is a part. Id. at 737–738, noting Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942)FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940)See also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. (1979)Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982) (noting ability of such party to represent interests of third parties).
  69. United States v. SCRAP, 412 U.S. 669, 683–690 (1973). As was noted above, this case has been disparaged by the later Court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 566–67 (1992)Whitmore v. Arkansas, 495 U.S. 149, 158–160 (1990).
  70. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)But see Bennett v. Spear, 520 U.S. 154 (1997) (fact that citizen suit provision of Endangered Species Act is directed at empowering suits to further environmental concerns does not mean that suitor who alleges economic harm from enforcement of Act lacks standing); FEC v. Akins, 524 U.S. 11 (1998) (expansion of standing based on denial of access to information).

 

 

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