The Ripeness Doctrine

Article III of the United States Constitution gives federal courts jurisdiction over certain types of disputes. In the Supreme Court's early days, it interpreted Article III to develop tests for "justiciability." How do we know when a federal court is the proper venue for a dispute? Or, in the case of the ripeness doctrine, when can federal courts be involved in a dispute?

What does Article III Say?

Article III, Section 2:

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.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

What Is the Ripeness Doctrine?

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

Like the other justiciability doctrines,1 the ripeness doctrine defines the limits of a federal court's jurisdiction to adjudicate certain disputes.2 Ripeness concerns "the timing of judicial intervention," and prevents federal courts from "entangling themselves in abstract disagreements" by adjudicating disputes too early.3 Any party to the litigation—as well as the judge—may challenge a case as unripe at any stage in the litigation, including for the first time on appeal.4 To determine whether a particular dispute is ripe for judicial resolution, courts employ the Abbott Laboratories test, named after the Supreme Court's decision in Abbott Laboratories v. Gardner.5 The Abbott Laboratories standard requires courts to evaluate two factors to determine whether a dispute is ripe: "(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration" until a later time.6 A claim may be unripe if it is based upon future events that may not occur as predicted or at all.7 If waiting to decide a case would put the court in a better position to resolve the dispute, such as when further factual development would help the court adjudicate the case, the case may be unripe and therefore nonjusticiable.8 As discussed below, ripeness issues arise in a wide variety of contexts, including challenges to administrative agencies' actions or policies and pre-enforcement challenges to criminal statutes.9

The ripeness doctrine stems partly from Article III's constitutional command that the federal courts only hear "Cases" and "Controversies."10 To the extent that ripeness derives from Article III of the Constitution, it overlaps with other justiciability doctrines that are also derived from the "Case" or "Controversy" requirement, especially the standing doctrine.11 Thus, in recent years, the Supreme Court has increasingly recognized that because standing and ripeness are based on the same constitutional limitations on the federal courts' jurisdiction, they frequently "boil down to the same question."12 In particular, the Supreme Court has observed that the standing doctrine's temporal inquiry into whether the plaintiff has suffered an imminent injury overlaps substantially with the ripeness doctrine's inquiry into whether withholding judicial consideration of a dispute would cause "the parties a sufficient 'hardship.'"13

In addition to its constitutional dimension, the ripeness doctrine is also partly based on prudential considerations that do not directly derive from the Constitution.14 The Supreme Court has recognized that, even when Article III of the U.S. Constitution does not forbid a court from deciding an issue, it may nonetheless be appropriate for courts to postpone adjudicating that issue because subsequent events may make it easier or unnecessary to resolve that dispute.15 Thus, to determine whether a case is ripe for adjudication, the court must assess not only whether the case is presently justiciable within the meaning of Article III's case or controversy requirement, but also whether it would be prudent to decide the case at the present time.16 The Supreme Court, however, has not squarely articulated which aspects of the ripeness doctrine are mandated by the Constitution and which are instead based solely on prudential concerns.17 Moreover, as explained in greater detail below, the Supreme Court has recently questioned the continuing vitality of the ripeness doctrine's prudential dimension.18 As a result, presently it is unclear whether—and, if so, when—federal courts should dismiss a case as prudentially unripe.

Common Ripeness Issues

The Supreme Court has considered ripeness issues in various substantive contexts, including administrative law cases, criminal law cases, and regulatory takings cases. In doing so, the Court has developed specific legal rules that apply in each context.

Administrative Law

Challenges to federal administrative agencies' actions, decisions, and policies often implicate the ripeness doctrine.19 In such cases, courts consider "whether judicial intervention would inappropriately interfere with further administrative action."20 The ripeness doctrine thereby not only "protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties," but also "prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies."21 For example, in Ohio Forestry Association, Inc. v. Sierra Club, an environmental organization challenged the United States Forest Service's interim federal land and resource management plan on the ground that it permitted too much logging and clearcutting of trees.22 The Supreme Court concluded that the organization's challenge was unripe,23 in part because reviewing the plan immediately could obstruct the Forest Service from refining its policies by either revising the plan or applying it to specific sites.24

Criminal Law

The Supreme Court has frequently scrutinized the ripeness of pre-enforcement challenges to criminal statutes.25 The Court has explained that, when challenging a criminal statute, the plaintiff need not "first expose himself to actual arrest or prosecution."26 Rather, it is sufficient for the plaintiff to allege that he (1) intends to engage in constitutionally protected activity prohibited by the statute and (2) faces a "credible threat of prosecution."27 For example, an abortion provider who faces "a sufficiently direct threat" that a state will prosecute him for violating a statute that criminalizes abortion need not necessarily await prosecution before challenging that statute's constitutionality.28

Conversely, a challenger who cannot claim that he has "ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible" cannot "allege a dispute susceptible to resolution by a federal court."29 For example, in Poe v. Ullman, the plaintiffs challenged the constitutionality of a state statute that criminalized the use of contraceptive devices.30 Even though the statute had been on the books for more than eight decades, the state had only attempted to enforce it on a single occasion, and drugstores in the state commonly and openly sold such devices without any apparent fear of prosecution.31 Thus, the plaintiffs faced no reasonable fear of prosecution, and the Court accordingly held that the constitutionality of the statute was not ripe for decision.32

One might argue, however, that the Court has not always applied these principles consistently. In Epperson v. Arkansas, for example, the plaintiff challenged the constitutionality of an Arkansas statute that made it a misdemeanor to teach the theory of evolution in public schools and universities.33 No teacher had ever been prosecuted under the challenged statute.34 Even though the plaintiff did not appear to face a reasonable threat of prosecution, the Court concluded—with minimal discussion—that the plaintiff had nonetheless presented a justiciable controversy.35 Epperson is therefore arguably inconsistent with the Court's other ripeness cases. The Court has attempted to reconcile Epperson by focusing on the age of the statute being challenged; a challenge to a criminal statute that has been on the books for decades yet has almost never been enforced will likely not be ripe for immediate review, whereas a pre-enforcement challenge to a statute that is "recent and not moribund" may be justiciable.36 That distinction, however, may not be altogether satisfying; the anti-evolution statute in Epperson had been on the books for four decades, yet the Supreme Court nonetheless deemed the plaintiff's challenge ripe for immediate adjudication.37 Thus, as the Court itself has intimated, it is not always easy to predict whether any given pre-enforcement challenge to a criminal statute will be justiciable.38

Takings Cases

Until very recently, the Supreme Court applied special ripeness rules in regulatory takings cases in which a litigant alleges that a governmental entity has "taken" his property without paying "just compensation" as the Fifth Amendment requires.39 Under the doctrine established in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,40 a plaintiff could not pursue a takings claim against a state entity in federal court until the plaintiff had (1) received a final decision from the state government regarding the challenged regulation's application to his property; and (2) sought compensation through state-provided procedures.41 Williamson County's context-specific ripeness rule created potentially significant obstacles for takings plaintiffs. As the Court later held in San Remo Hotel, L.P. v. City & County of San Francisco, when a plaintiff first litigates a takings claim in state court as mandated by Williamson County, the federal full faith and credit statute bars the plaintiff from relitigating the Takings Clause issues in a subsequent federal lawsuit.42 Thus, under Williamson County and San Remo, a plaintiff could not file a takings lawsuit in federal court before pursuing his claim in state court, yet if he lost in state court, his subsequent federal lawsuit would fail as well.43 The Court ultimately concluded that this special ripeness rule imposed "an unjustifiable burden on takings plaintiffs" and conflicted with the Court's Takings Clause jurisprudence.44 The Court therefore overruled Williamson County in Knick v. Township of Scott.45 After Knick, a property owner may bring a takings claim in a federal court without first seeking compensation in state court.46

Learn More

Footnotes

  1. See generally ArtIII.S1.1.1.1 Judicial Vesting Clause: Doctrine and Practice through ArtIII.S1.1.1.2.4.2 Retroactivity of Supreme Court Decisions.
  2. See, e.g.Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 670 n.2 (2010) ("Ripeness reflects constitutional considerations that implicate 'Article III limitations on judicial power,' as well as 'prudential reasons for refusing to exercise jurisdiction.'") (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)).
  3. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). See also Renne v. Geary, 501 U.S. 312, 320 (1991) ("Justiciability concerns not only the standing of litigants to assert particular claims, but also the appropriate timing of judicial intervention."); Anderson v. Green, 513 U.S. 557, 559 (1995) (per curiam) ("[R]ipeness is peculiarly a question of timing.") (quoting Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974)); Buckley v. Valeo, 424 U.S. 1, 114 (1976) (per curiam) (same). Statutory and other non-constitutional restrictions may limit the appropriate timing of judicial intervention as well. See, e.g.Woodford v. Ngo, 548 U.S. 81, 88–89 (2006) ("[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.") (quoting McKart v. United States, 395 U.S. 185, 193 (1969)); Dalton v. Specter, 511 U.S. 462, 469 (1994) (holding that, as a general matter, only "final agency action[s]" are subject to judicial review under the Administrative Procedure Act) (quoting 5 U.S.C. § 704).
  4. E.g., DBSI/TRI IV Ltd. P'ship v. United States, 465 F.3d 1031, 1038 (9th Cir. 2006) ("[R]ipeness [is a] jurisdictional issue[] that may be raised at any time, even for the first time on appeal."); Utah v. U.S. Dep't of Interior, 210 F.3d 1193, 1196 n.1 (10th Cir. 2000) (similar). See also Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 808 (2003) ("[T]he question of ripeness may be considered on a court's own motion.").
  5. 387 U.S. 136 (1967).
  6. Nat'l Park Hosp. Ass'n, 538 U.S. at 808. See also, e.g.Stolt-Nielsen S.A., 559 U.S. at 670 n.2 (same); Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998) (same); Texas v. United States, 523 U.S. 296, 300–01 (1998)Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 201 (1983) (same).
  7. See Texas, 523 U.S. at 300 ("A claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.'") (quoting Thomas, 473 U.S. at 580–81). See also Trump v. New York, No. 20-366, slip op. at 4 (2020) (applying this rule).
  8. See, e.g.Nat'l Park Hosp. Ass'n, 538 U.S. at 812 ("[F]urther factual development would 'significantly advance our ability to deal with the legal issues presented.'") (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 82 (1978)); Ohio Forestry Ass'n, 523 U.S. at 737 (same); Webster v. Reprod. Health Servs., 492 U.S. 490, 506 (1989) ("It will be time enough for federal courts to address the meaning of the preamble [to the challenged statute] should it be applied to restrict the activities of appellees in some concrete way.").
  9. See ArtIII.S2.C1.2.6.3.4.1 Contexts in Which the Supreme Court Has Frequently Encountered Ripeness Issues: Overview through ArtIII.S2.C1.2.6.3.4.4 Contexts in Which the Supreme Court Has Frequently Encountered Ripeness Issues: Takings Cases.
  10. See U.S. Const. art. III, § 2, cl. 1See also, e.g.Trump, No. 20-366, slip op. at 3–4 (explaining that the ripeness doctrine "originat[es] in the case-or-controversy requirement of Article III"); Stolt-Nielsen S.A., 559 U.S. at 670 n.2 ("Ripeness reflects constitutional considerations that implicate 'Article III limitations on judicial power.'") (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)); Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 138 (1974) ("Issues of ripeness involve, at least in part, the existence of a live 'Case or Controversy.'").
  11. See Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975) ("The standing question thus bears close affinity to questions of ripeness—whether the harm asserted has matured sufficiently to warrant judicial intervention."); Trump, No. 20-366, slip op. at 3–4 (describing standing and ripeness as "related doctrines"); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) ("The doctrines of mootness, ripeness, and political question all originate in Article III's 'case' or 'controversy' language, no less than standing does."). See generally Article III Standing Requirements.
  12. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014) (similar); Trump, No. 20-366, slip op. at 7 (dismissing case on both standing and ripeness grounds).
  13. MedImmune, 549 U.S. at 128 n.8 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).See Aricle III Standing Requirements (discussing the standing doctrine's imminent injury requirement); Lujan, 504 U.S. at 560 (applying that requirement).
  14. Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 82 (1978)See also, e.g.Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 808 (2003) ("The ripeness doctrine is 'drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.'") (quoting Reno, 509 U.S. at 57 n.18).
  15. See, e.g.Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 733 n.7 (1997) ("The agency does not question that Suitum properly presents a genuine 'case or controversy' sufficient to satisfy Article III, but maintains only that Suitum's action fails to satisfy our prudential ripeness requirements."); Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 735 (1998) ("The ripeness doctrine reflects a judgment that the disadvantages of premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of . . . postimplementation litigation.").
  16. See, e.g.Duke Power, 438 U.S. at 81 (concluding that the case presented a ripe "Case or Controversy" as a constitutional matter, and that "[t]he prudential considerations embodied in the ripeness doctrine also argue[d] strongly for a prompt resolution of the claims presented").
  17. See, e.g., Armstrong World Indus., Inc. ex rel. Wolfson v. Adams, 961 F.2d 405, 411 n.12 (3d Cir. 1992) (observing that "[t]he Supreme Court itself has not been consistent with respect to the constitutional and prudential aspects of ripeness").
  18. Aricle III Standing Requirements.
  19. See, e.g.Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 808 (2003) ("Absent a statutory provision providing for immediate judicial review, a regulation is not ordinarily considered the type of agency action 'ripe' for judicial review . . . until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him.") (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891 (1990)) (brackets omitted). See also E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 128 n.19 (1977) (concluding that "consideration of whether EPA's variance provision has the proper scope would be premature"). Several non-constitutional doctrines, including the "exhaustion" doctrine and the "final agency action" doctrine, may also influence the appropriate timing of challenges to administrative actions. See, e.g.Woodford v. Ngo, 548 U.S. 81, 88–89 (2006) ("[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.") (quoting McKart v. United States, 395 U.S. 185, 193 (1969)); Dalton v. Specter, 511 U.S. 462, 469 (1994) (holding that, as a general matter, only "final agency action[s]" are subject to judicial review under the Administrative Procedure Act) (quoting 5 U.S.C. § 704).
  20. Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1998)Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 479 (2001)See also Lujan, 497 U.S. at 894 ("[W]e intervene in the administration of the laws only when, and to the extent that, a specific 'final agency action' has an actual or immediately threatened effect. . . . Until confided to us, however, more sweeping actions are for the other branches [of the federal government].").
  21. Ohio Forestry Ass'n, Inc., 523 U.S. at 732–33 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967)abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). See also Nat'l Park Hosp. Ass'n, 538 U.S. at 807–08 (same); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 200 (1983) (same).
  22. Ohio Forestry Ass'n, Inc., 523 U.S. at 728.
  23. Id. at 732.
  24. Id. at 735 ("[F]rom the agency's perspective, immediate judicial review directed at the lawfulness of logging and clearcutting could hinder agency efforts to refine its policies: (a) through revision of the Plan, e.g., in response to an appropriate proposed site-specific action that is inconsistent with the Plan, or (b) through application of the Plan in practice, e.g., in the form of site-specific proposals, which are subject to review by a court applying purely legal criteria.").
  25. See, e.g.Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167–68 (2014)Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 297–302 (1979)Doe v. Bolton, 410 U.S. 179, 188–89 (1973)Epperson v. Arkansas, 393 U.S. 97, 101–02 (1968)Poe v. Ullman, 367 U.S. 497, 498–509 (1961).
  26. Babbitt, 442 U.S. at 298 (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)) (brackets omitted).
  27. Id. (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)).
  28. See Doe, 410 U.S. at 188.
  29. Babbitt, 442 U.S. at 298–99 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).
  30. 367 U.S. at 498.
  31. See id. at 501–02.
  32. See id. at 508. Cf. Griswold v. Connecticut, 381 U.S. 479, 480–81 (1965) (deeming a challenge to an anti-contraceptive statute justiciable where appellants had been arrested for violating the statute, found guilty, and fined).
  33. See 393 U.S. 97, 98–99 (1968).
  34. Id. at 101–02.
  35. See id. at 102.
  36. See Doe v. Bolton, 410 U.S. 179, 188–89 (1973).
  37. See Epperson, 393 U.S. at 98, 101–02.
  38. See Poe v. Ullman, 367 U.S. 497, 508 (1961) (remarking, in the course of dismissing as unripe a pre-enforcement challenge to a criminal statute, that "[j]usticiability is . . . not a legal concept with fixed content or susceptible of scientific verification").
  39. The Fifth Amendment's "Takings Clause" ("[N]or shall private property be taken for public use, without just compensation."). See Horne v. Dep't of Agric., 569 U.S. 513, 524–28 (2013)Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 560 U.S. 702, 729 & n.10 (2010)Palazzolo v. Rhode Island, 533 U.S. 606, 618, 620–22 (2001)Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 733–34 (1997)Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1010–14 (1992)Yee v. City of Escondido, 503 U.S. 519, 533–34 (1992)Preseault v. ICC, 494 U.S. 1, 11–17 (1990)First English Evangelical Lutheran Church of Glendale v. Cty. of Los Angeles, 482 U.S. 304, 312 n.6 (1987)MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 348–53 (1986)Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 190–91, 195, 200 (1985)overruled by Knick v. Twp. of Scott, No. 17-647 (U.S. June 21, 2019)See also, e.g., Knick, No. 17-647, slip op. at 22 (characterizing the aforementioned cases as articulating "a 'prudential' ripeness rule"); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 339 (2002) ("[I]t is the interest in informed decisionmaking that underlies our decisions imposing a strict ripeness requirement on landowners asserting regulatory takings claims."); Pennell v. City of San Jose, 485 U.S. 1, 8–10 (1988) (holding that "it would be premature" to consider challenger's claim that local ordinance violated the Takings Clause). See generally The Fifth Amendment's "Takings Clause" (defining and discussing regulatory takings).
  40. 473 U.S. at 186, 190–91, 195, 200.
  41. Suitum, 520 U.S. at 734 (quoting Williamson Cty., 473 U.S. at 186, 194) (brackets omitted). See also, e.g., Palazzolo, 533 U.S. at 618, 620–22.
  42. 545 U.S. 323, 326–48 (2005). See also 28 U.S.C. § 1738 (Full Faith and Credit Act); Full Faith and Credit Under the Constitution.
  43. Knick, No. 17-647, slip op. at 1–2 ("The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning.").
  44. Id. at 2.
  45. Id. at 23.
  46. Id. at 2, 23.

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