3.2 Ripeness
The doctrine of standing determines who may properly sue in federal court while the doctrines of ripeness and mootness deal with when such a suit is appropriate. Nevertheless, the “distinct and palpable” injury prong of standing analysis overlaps with the ripeness inquiry. Both essentially turn on whether the plaintiff’s injury, which is threatened but has not yet occurred, is sufficiently likely, concrete, and imminent to be regarded as a “case or controversy.” As a result, such cases may be decided either on standing or ripeness grounds./142/ The underlying concern is whether the potential injury is too speculative, thereby offering the court an inadequate factual record for review and raising the possibility that the court would, in essence, be doing nothing more than issuing an advisory opinion./143/ So understood, it is easy to explain why most ripeness cases deal with pre-enforcement review of civil or criminal statutes or regulations./144/ In general, the Supreme Court has held in these cases that ripeness turns on two considerations: the hardship to the parties if the court withholds review and the fitness of the issues for determination./145/
The Supreme Court’s most recent case on ripeness, National Park Hospitality Association. v. Department of the Interior, is illustrative./146/ In that case, a trade association representing concessioners in national parks challenged a federal regulation, regarded as a general statement of policy, announcing the Department’s view that national park concession contracts were not subject to the Contract Disputes Act. The Court found the claim unripe. First, it held that the Department’s legal position on the applicability of the CDA did not impose any duties or obligations on the concessioners, cause any change in their behavior or even prohibit them from resorting to the CDA./147/ The uncertainty over the applicability of the CDA, which affected the concessioner’s willingness to bid on contracts, was not sufficient hardship./148/ Further, the Court held that, although the issue was purely a legal one, the applicability of the CDA may depend on the type of contract at issue, suggesting that review should wait until there was a concrete dispute over a specific contract./149/
II.A. Hardship from Denying Review
In general, the greater the potential hardship from denying review, the greater the chance the case is ripe. Significant hardship is often found in cases in which the plaintiff faces a decision whether to comply with a statute or regulation at significant financial cost or not to comply and face potential criminal or civil penalties./150/ In such cases, the plaintiff need not wait until a prosecution for challenging the law as a defense. Similarly, the Court has found there to be hardship warranting review where a plaintiff is faced with foregoing arguably constitutional conduct or facing prosecution./151/ The certainty of prosecution, even if not imminent, enhances the argument for ripeness./152/ Consequently, in cases raising potential ripeness issues, an advocate is advised to detail the potential costs of compliance and non-compliance and the historical record of enforcement.
II.B. Fitness of Record for Review
If the issue presented involves purely a question of law or a concrete factual context that would not be enhanced by further factual development, there is a greater chance of finding the claim to be ripe./153/ In contrast, ripeness is less likely when the factual record does not permit necessary interest balancing or a necessary assessment of the effect of the challenged law on the plaintiff’s conduct. For example, in Socialist Labor Party v. Gilligan, the Court found unripe a challenge to a law alleged to have made it more difficult to place the name of a candidate on the ballot for election./154/ The Court noted that the record was “extraordinarily skimpy” and offered insufficient evidence of the effect of the law on plaintiff’s efforts./155/ In these cases, it is wise to develop, in advance of filing, as detailed a factual record as possible so that, for example, declarations can be offered in response to a motion to dismiss on ripeness grounds.
II.C. Final Considerations
Two more recent developments in the law of ripeness may be of particular interest to legal services attorneys. First, the Court made it somewhat more difficult to challenge government benefit rules prior to application for those benefits. In Reno v. Catholic Social Services, the Court distinguished between rules that regulate behavior and rules that govern the potential receipt of benefits, holding that challenges to benefit rules are generally not ripe until the agency receives and denies the application, even though those rules may have deterred applications./156/ Second, in Thunder Basin Coal Co. v. Reich, the Court held that Congress impliedly precludes pre-enforcement review of rules when it provides for some other means of review in the relevant statute./157/
142. See, e.g., O’Shea v. Littleton, 414 U.S. 488 (1974) (decided on standing grounds).
143. See Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967) (ripeness doctrine is intended to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.”). The doctrine involves both constitutional and prudential limitations. Reno v. Catholic Soc. Servs., 509 U.S. 45, 58 n.18 (1993).
144. The Declaratory Judgment Act, 28 U.S.C. § 2201, was intended as a vehicle to allow plaintiffs to determine whether an intended course of conduct was legally permissible without either violating the law and potentially suffering the consequences or forgoing the conduct that was in fact permissible. Nonetheless, the Act does not alter the constitutionally required ripeness doctrine. See Calderon v. Ashmus, 523 U.S. 740 (1998); Aetna Life Ins. v. Haworth, 300 U.S. 227 (1937).
145. Abbott Labs., 387 U.S. at 149. For a case in which the Court applied these considerations and found various challenges to a state statute dealing with agricultural workers to be either ripe and unripe, see Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979).
146. Nat’l Park Hospitality Ass’n. v. Dep’t of the Interior, 538 U.S. 803 (2003).
150. Compare Abbott Labs., 387 U.S. at 152-53 with Toilet Goods Ass’n. v. Gardner, 387 U.S. 158, 165 (1967). See also Kreschollek v. S. Stevedoring Co., 78 F.3d 868 (3rd Cir. 1996) (challenge to constitutionality of workers’ compensation termination procedures is ripe prior to termination, the hardship being potentially years of lost income).
151. See Steffel v. Thompson, 415 U.S. 452 (1974) (pre-enforcement challenge to shopping center’s refusal to permit handbilling is ripe); U.S. Civil Service Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548 (1973) (challenge to Hatch Act); see also R.I. Ass’n. of Realtors v. Whitehouse, 199 F.3d 26 (1st Cir. 1999) (challenge to state statute criminalizing use of certain public records was ripe when association abandoned a specific plan to use them).
152. Compare Reg’l Rail Reorg. Cases, 419 U.S. 102 (1974) (challenged reconveyances of rail property was not imminent, but was inevitable) with Reno v. Catholic Soc. Servs., 509 U.S. 43 (1993) (speculative that a member of the plaintiff class who had not yet applied for legal immigration status would be injured by INS rules); Poe v. Ullman, 367 U.S. 497 (1961) (challenge to law preventing use of contraceptives was not ripe when there was only one prosecution in eighty years). See also Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995) (challenge by 58 year-old to state statute reducing benefits of some municipal employees when they turn 65 is ripe, the hardship being uncertainty in making future financial plans).
153. Compare Ruckleshaus v. Monsanto, 467 U.S. 986 (1984) (takings claim not ripe because of insufficient factual development) with Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568 (1985) (Article III claim ripe because it was purely legal). See also Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431 (9th Cir. 1996) (challenge to Cuban travel ban was ripe even though plaintiffs had not applied for available exemptions because it could firmly be predicted that such applications would be denied).
154. Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972).
156. Reno v. Catholic Soc. Servs., 509 U.S. 43 (1993).
157. Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994); see also Shalala v. Ill. Council on Long Term Care, 529 U.S. 1 (2000).
Updated 2006