Chapter 3: The Case or Controversy Requirement and Other Preliminary Hurdles

Updated 2013

This chapter discusses several constitutionally or prudentially imposed limitations on the pursuit of federal litigation. First, the chapter surveys the doctrine of standing and discusses constitutional and prudential requirements as well as associational and third-party standing. Second, the chapter covers ripeness and mootness, including mootness in the context of class action litigation. Questions of mootness may arise at any time in litigation and, as suggested in Chapter 9 of this Manual, the doctrine of mootness has emerged as an important issue in the recovery of attorney's fees. Third, the chapter examines a significant prerequisite to pursuit of federal litigation in some types of cases: exhaustion of mandatory or voluntary administrative remedies, and the preclusive effects that availability of or utilization of administrative agency and/or state court adjudication have on subsequent federal court litigation.

Updated 2013

3.1 Standing

Updated 2015 by Jeffrey S. Gutman

Attorneys need to understand the law of standing in order to minimize the likelihood of having to litigate the issue. Avoiding a standing defense requires a careful selection of plaintiffs, thoughtful choice of claims and relief sought, and specific allegation of facts in the complaint. Skillful pleading, therefore, should focus not only on the merits of the claims but also on the standing of the plaintiffs to advance them. Failure to do so may result in delay of the case at best, and dismissal of the case at worst.

3.1.A. Overview

The law of standing has its roots in Article III’s case and controversy requirement./1/ The U.S. Supreme Court has established a three-part test for standing. The “irreducible constitutional minimum of standing” requires the plaintiff to establish:

First ... an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent,” not “conjectural” or “hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”/2/

While the standing test is easily stated, it can be difficult to apply. The Supreme Court has observed that “[g]eneralizations about standing to sue are largely worthless as such.”/3/

The Supreme Court also imposes “prudential” limitations on standing to ensure sufficient "concrete adverseness."/4/ These include limitations on the right of a litigant to raise another person’s legal rights, a rule barring adjudication of generalized grievances more appropriately addressed legislatively, and the requirement that a plaintiff’s complaint must fall within the zone of interests protected by the statute at issue./5/

The Supreme Court has made it clear that the burden of establishing standing rests on the plaintiff./6/ At each stage of the litigation—from the initial pleading stage, through summary judgment, and trial—the plaintiff must carry that burden./7/ Standing must exist on the date the complaint is filed and throughout the litigation./8/ Moreover, standing cannot be conferred by agreement and can be challenged at any time in the litigation, including on appeal, by the defendants or, in some circumstances, by the court sua sponte./9/ Finally, plaintiffs must demonstrate standing for each claim and each request for relief./10/ There is no “supplemental” standing: standing to assert one claim does not create standing to assert claims arising from the same nucleus of operative facts./11/

In this Chapter, we canvass the important Supreme Court cases on standing and attempt to extract useful generalizations to employ in practice. A brief caveat is in order. Standing cases are very fact specific. While the general discussion here may assist you in understanding the outlines of the standing inquiry, you will need to do specialized research in the area in which your case arises. Just as important, you must carefully interview your clients and perform other necessary factual investigation to assess precisely how your client has or will be injured by the action or policy you contemplate challenging.

3.1.B. The Constitutional and Prudential Requirements of Standing

Inherent in the constitutional limitation of judicial power on cases and controversies is the requirement of “concrete adverseness” between the parties to a lawsuit. The rise of public interest law litigation involving claims of non-economic loss has forced the Supreme Court to craft an analytical framework for determining whether the requisite adversity is present. The Court requires that plaintiffs establish that the challenged conduct caused or threatens to cause them an injury in fact to judicially cognizable interests. By establishing that they personally suffered injury, plaintiffs demonstrate that they are sufficiently associated with the controversy to be permitted to litigate it. The question of injury raises two questions – (1) what kinds of injuries count for purposes of standing and (2) how certain the injury must be if it has not yet occurred.

3.1.B.1. Injury in Fact

 The following section discusses several types of injuries considered by the Supreme Court in the standing analysis.

3.1.B.1.a. Economic Interests

The Supreme Court has had no difficultly determining that economic interests are legally protected interests./12/ More difficult is determining when economic injury that has yet to occur is sufficiently imminent and likely to confer standing. The Court has been relatively forgiving in this regard. Economic injury need not have already occurred but can result from policies that, for example, are likely to deprive the plaintiff of a competitive advantage or a bargaining chip./13/ In Clinton v. New York, for instance, the Court held that New York had standing to challenge the veto of legislation permitting the state to keep disputed Medicaid funds./14/ The veto left the state’s ability to retain the funds uncertain, subject to the outcome of a request for a waiver. Despite this uncertainty, the Court regarded the “revival of a substantial contingent liability” sufficient to confer standing./15/

Noting that states are to be given “special solicitude” in the standing analysis because of their stake in protecting their “quasi-sovereign” interests, the Supreme Court held that Massachusetts had demonstrated an economic injury in the recent “global warming” case./16/ Massachusetts, other states, cities and private organizations petitioned the Environmental Protection Agency to regulate greenhouse gas emissions under the Clean Air Act. The plaintiffs challenged the Environmental Protection Agency's subsequent decision not to do so on the ground that it lacked statutory authority and if it did, that setting emissions standards at that time was unwise. Relying on declarations by scientists, the Court held that Massachusetts faced “climate change risks” associated with rising sea levels which threatened state-owned coastal lands./17/ The Court noted that remediation would cost hundreds of millions of dollars./18/ As explained below, the Court found these risks to be sufficiently certain and imminent to support standing. 

3.1.B.1.b. Non-economic Interests

Non-economic interests have proven more difficult for the Supreme Court to analyze. Most of the important cases have arisen in the environmental law context.  The Court has recognized that environmental, recreational, and aesthetic injuries are legally cognizable for standing, but has had difficulty in defining the circumstances in which such injuries are sufficiently concrete and imminent to confer standing. Sierra Club v. Morton, for example, arose from a challenge to a decision by the U.S. Department of the Interior to license the construction of a ski resort./19/ The Sierra Club claimed that the license agreement was illegal and asserted standing based upon its long-standing interest in, and concern for, the protection of the environment and its experience in environmental litigation. The Sierra Club did not plead that it or its members would suffer any adverse consequence by virtue of the license. Acknowledging that loss of recreational opportunities or aesthetic enjoyment may be cognizable injuries, the Court held that the Sierra Club failed to plead a particular cognizable injury associated with the license, and it therefore lacked standing to sue. On remand to the district court, the Sierra Club amended the complaint to allege that its members would suffer such injuries and ultimately succeeded in blocking the development./20/

Sierra Club is significant both for what it permits and what it prohibits. By recognizing that non-economic injury suffices for injury in fact, Sierra Club loosened the requirement of injury in fact. By holding that a specialized interest in a particular issue may not give rise to injury sufficient to challenge unlawful conduct, Sierra Club precluded citizen suits to enforce the law. Subsequent cases expanded these principles.

United States v. Students Challenging Regulatory Agency Procedures (SCRAP) represents the high watermark of environmental standing./21/ In SCRAP, the Supreme Court held that a student organization assembled for the purpose of litigation had standing to challenge the Interstate Commerce Commission’s approval of increased rail freight rates that would increase the cost of recycling scrap metal. The students claimed to suffer aesthetic injury when using parks and to suffer injury when breathing polluted air as a result of reduced recycling. Even though the injuries would generally be suffered by virtually everyone and the connection between the challenged policy and the claimed injuries was highly attenuated, the Court found standing. The Court, however, has made it subsequently clear that SCRAP lies at the very margin of standing doctrine, if not beyond./22/

The Supreme Court recognized the role of carefully pleading injury in Duke Power Company v. Carolina Environmental Study Group./23/ Organizations and individuals who lived close to a planned nuclear power plant challenged the constitutionality of federal legislation capping the potential liability of a plant operator for a nuclear disaster. Plaintiffs alleged that, absent the liability cap, the plant could not profitably be built, thereby tying the harm that would result from construction of the plant to the liability cap. Plaintiffs claimed that use of two local lakes to produce steam and to cool the reactor would release small amounts of non-natural radiation and would cause a “sharp increase” in water temperature, which in turn would harm their interest in the recreational use of the lakes./24/ Relying upon Sierra Club and SCRAP, the Court held that the injuries were sufficient to confer standing. The Court also held that the plaintiffs satisfied the causation and redressability requirements for standing, discussed below.

Since Duke Power, the Court has been less receptive to claims of environmental standing. In Lujan v. National Wildlife Federation, for example, the plaintiffs challenged the Interior Department’s efforts to review and classify hundreds of parcels of public lands in a manner that might have resulted in their use for mining./25/ Relying on affidavits, plaintiffs claimed injury to their recreational and aesthetic enjoyment of lands in the vicinity of public lands that had been opened to mining and oil and gas leasing claims. The Court rejected standing. The public lands at issue were massive tracts of land, only a small portion of which were subject to the challenged decisions. The Court held that an interest in lands that simply lay in the vicinity of areas subject to development was inadequate to confer standing.

Similarly, Lujan v. Defenders of Wildlife involved a provision in the Endangered Species Act that required federal agencies to consult with the Interior Department to make sure that any programs authorized or funded by the agency do not adversely affect endangered species./26/ In Defenders of Wildlife, plaintiff organizations and individuals challenged an Interior Department regulation that had the effect of limiting the consultative scope of the Act only to projects undertaken within the United States rather than abroad as well. Plaintiffs alleged that reducing this consultative arrangement would increase the rate of extinction of endangered species overseas. Again, the Supreme Court recognized that a desire to observe animals was a cognizable interest, but held that plaintiffs failed to demonstrate that they “would thereby be ‘directly’ affected apart from their ‘special interest’ in th[e] subject.”/27/ Affiants claimed only that they had visited the habitats of endangered species abroad and intended to revisit them. The Court observed that “[s]uch ‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases require.’”/28/

The Supreme Court’s more recent decision in Friends of the Earth v. Laidlaw Environmental Services involved standing under the citizen-suit provision of the Clean Water Act./29/ That provision authorizes the federal courts to hear actions for injunctive relief and civil penalties by “a person or persons having an interest which is or may be adversely affected.”/30/ Laidlaw received a permit to discharge certain pollutants into a river but repeatedly exceeded those limits. South Carolina sued Laidlaw and quickly settled for $100,000 in civil penalties and a promise to comply with the permit. Friends of the Earth subsequently filed suit, seeking additional civil penalties and injunctive relief. The issue before the Court was whether plaintiffs had standing to seek civil penalties after Laidlaw had complied with the discharge permit.

The Court held that plaintiffs had established injury in fact, Through affidavits and deposition testimony they detailed their desire to recreate on the nearby river and to enjoy its aesthetic beauty, but explained their hesitance to do so because of the pollution./31/ Distinguishing National Wildlife Federation and Defenders of Wildlife, the Court held that the affidavits and testimony presented by Friends of the Earth members asserted that Laidlaw's  discharges, and the affiants' reasonable concerns about the effects of those discharges, directly affected those affiants' recreational, aesthetic, and economic interests. The court stated that the submissions presented more than the mere "general averments" and "conclusory allegations" found inadequate in National Wildlife Federation. The Court further found that the affiants' conditional statements -- that they would use the nearby North Tyger River for recreation if Laidlaw were not discharging pollutants into it -- were not like the speculative "'some day" intentions to visit endangered species halfway around the world that we held insufficient to show injury in fact in Defenders of Wildlife."/32/

Friends of the Earth offers useful guidance to advocates who need to identify potential plaintiffs and plead their injuries in the complaint or in affidavits.  Unlike plaintiffs in National Wildlife Federation, the Friends of the Earth plaintiffs alleged direct injury from the pollutants in question to the particular area in which they wished to recreate./33/ Unlike plaintiffs in Defenders of Wildlife, the plaintiffs in Friends of the Earth alleged that they would use the river without the discharges, not that they might someday do so./34/ Notwithstanding the Court's opinion in Earth Island Institute, discussed below, Friends of the Earth suggests that the Court remains receptive to finding injury in fact in environmental cases where plaintiffs are able to allege a clear wish to avail themselves of recreational or aesthetic opportunities in a particular, proximate area, but assert that they had not done so because of reasonable concern of harm.

3.1.B.1.c. Injuries to Statutory Rights

Statutory rights can create the cognizable legal interest required for standing, but Defenders of Wildlife seemed to place limits on this general principle. A majority of the Court found the “citizen suit” provision of the Endangered Species Act unconstitutional./35/ The Act permitted “any person” to obtain judicial review of agency action that is alleged to violate the Act. The plurality opinion, authored by Justice Scalia, recognized that the Court had frequently held that “[t]he ... injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’”/36/ However, relying on the line of “generalized grievance” cases, Justice Scalia stated that Congress could recognize cognizable injuries by statute but could not dispense with the concrete-injury requirement. Justices Kennedy and Souter joined this holding, forming a majority, on slightly narrower grounds. They noted that “Congress must, at the very least, identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.”/37/ That was something the citizen-suit provision of the Act failed to do./38/

In so holding, the Supreme Court did not purport to overturn a line of cases arising under the Fair Housing Act of 1968./39/ In those cases, the Court held that Congress may create by statute a right, the deprivation of which constitutes the injury in fact necessary for standing, even when the plaintiff would have suffered no judicially cognizable injury without the statute. In Trafficante v. Metropolitan Life Insurance Company, cited with apparent approval in Defenders of Wildlife, the Court held that Congress created a right to be free from the effects of racially discriminatory housing practices directed at others./40/ Thus, white residents of an apartment complex had standing to challenge the exclusion of black rental applicants because they suffered the loss of the benefits of life in an integrated community./41/ Defenders of Wildlife would suggest that such antidiscrimination laws can create new cognizable injuries, but that such statutes can permit only those particularly and concretely suffering such injuries to enforce these laws./42/ Indeed, acknowledging contrary authority under the Fair Housing Act, the Supreme Court recently held that the "person aggrieved" right to sue provisions in Title VII is narrower than Article III standing./43/  Instead, the Court equated the "person aggrieved" language with the "zone of interest" test found in APA standing jurisprudence./44/

3.1.B.1.d. Procedural Injury

The Supreme Court has addressed an additional form of injury—other than economic, recreational, and aesthetic injury—of potential value to legal aid attorneys. In Defenders of Wildlife, plaintiffs sought standing on the ground that the Act in question created a procedural right in the form of interagency consultation that was allegedly violated. The Court rejected the view that anyone could have standing to assert this abstract “procedural right.”/45/ The Court did, however, note that “‘procedural rights’ are special: the person who has been accorded a procedural right to protect his concrete interest can assert that right without meeting all the normal standards for redressability and immediacy.”/46/ Plaintiffs have, in short, standing to challenge the alleged violation of procedures so long as the procedures are designed to protect some concrete substantive interest of the plaintiff and that it is "substantively probable" that breach of those procedures will injure those interests./47/ Otherwise, the claim of standing is regarded as nothing more than a generalized interest in the government’s compliance with laws./48/

The Supreme Court's decision in Massachusetts v. Environmental Protection Agency clearly reinforces, if not expands, this form of standing./49/ In that case, Massachusetts challenged the Environmental Protection Agency’s decision not to regulate greenhouse gases pursuant to the Clean Air Act, which expressly authorizes challenges for actions unlawfully withheld. Holding that Massachusetts could advance this challenge without meeting the ordinary standards for redressability and immediacy, the Court held that "when a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant."/50/ 

3.1.B.2. Actual and Imminent Injury

Once a cognizable injury has been asserted, the Supreme Court has long cautioned that the injury in fact be "actual and imminent, not conjectural or hypothetical."/51/ Our discussion of non-economic injuries above describes the Court's approach to this requirement of standing in several of the earlier cases. A more recent case, Summers v. Earth Island Institute, a closely divided environmental standing decision, follows the logic of Defenders of Wildlife./52/ In Earth Island, a number of environmental organizations challenged Forest Service regulations which exempted small timber salvage sale projects from notice, comment and appeal processes set forth in a federal statute. The challenge occurred in the context of one particular sale.  After that specific controversy settled, the challenge proceeded generally against the regulations, but the absence of a particular factual context in which the regulation was applied to a specific timber sale doomed standing. The affiant asserted plans to visit national forests in the future, but he failed to allege an intent to visit a particular tract subject to a sale covered by the regulation. The dissent pointed out that there was a "realistic likelihood" that a member of one of the plaintiff organizations would visit an affected tract because the Forest Service conceded that it would engage in thousands of projects exempt from the regulation in the future. The Court, however, rejected reliance on "probabilistic standing" based on a realistic threat of harm. Instead, it insisted that organizational plaintiffs use member affidavits to show that they will imminently use specific tracts./53Earth Island presents particular challenges in situations in which there is a settlement in an action filed by a plaintiff to challenge application of a legal rule in a particular context as part of a broader effort to overturn the rule generally.

Although the analysis might well have been more forgiving because of its focus on the standing of state,/54/ the question of "actual and imminent" harm was squarely presented in Massachusetts v. Environmental Protection Agency./55/ In Massachusetts, the state alleged injury to its coastline from Environmental Protection Agency's failure to regulate the greenhouse gasses that contribute to global warming. Based on scientific evidence presented, the Court found support in the plaintiffs' allegations linking greenhouse gasses to global warming, chiding the dissent as being among the only naysayers on this point./56/ It also credited an affidavit from a scientist explaining that rising seas had already encroached on the Massachusetts coastline./57/A useful lesson from Massachusetts, made even more clear in Earth Island, is to be prepared for an anticipated motion to dismiss on standing grounds with credible and detailed affidavits that (1) demonstrate the affiant's clear intention to engage in activities, consistent with past practices, that (2) will, if taken, cause the affiant direct and highly probable injury.

A recent example is Monsanto v. Geertson Seed Farms in which conventional alfalfa seed farms and farmers challenged the Department of Agriculture's decision to deregulate a form of genetically modified alfalfa./58/ The Court accepted the trial court's conclusion that the decision gave rise to a "significant risk" of contamination to conventional alfalfa crops./59/ Citing a declaration of a farmer who stated that he would in the future test his crops to ensure that they were free of genetically modified alfalfa, which imposed costs on his business, the Court held that the farmers' injuries were sufficiently concrete to afford them standing./60/

In seeming tension with Monsanto, Clapper v. Amnesty International, squarely addressed the question of future injury and exposed the deep rift in the Court on how to define the degree of certainty required of plaintiffs to establish standing when asserting future injury./61/ In Clapper, a group of journalists, attorneys and others challenged as unconstitutional a provision in the amended Foreign Surveillance Intelligence Act which authorized the government to engage in electronic surveillance of their sources and clients overseas. The plaintiffs contended that their sources and clients are the kinds of people likely to be subject to such surveillance and, fearing future surveillance, they had undertaken costly measures, such as foreign travel instead of phone calls or e-mail, to communicate with these individuals, or had limited their electronic contacts to maintain their confidentiality. 

In a 5-4 decision, the majority initially observed that the standing requirement is particularly exacting when the case challenges the constitutionality of actions taken by another branch of the federal government and when the issue relates to intelligence gathering and foreign affairs./62/ However, relying on cases outside that context, the Court held that the threatened injury must be "certainly impending."/63/ It found that plaintiff had not satisfied that formidable standard. The Court regarded the plaintiffs' fear that the government will target their contacts or clients as speculative, citing affidavits that expressly stated that the affiant assumed their communications would be monitored. In context, an allegation of certain surveillance was not possible. Even if the government targeted the communications of those connected to the plaintiffs, the request to do so required review of the Foreign Intelligence Surveillance Court and the Court announced its reluctance "to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment."/64/ The plaintiffs further contended that their fear of surveillance caused them present injuries when they took measures, including foreign travel, to avoid being overheard. The majority rejected that assertion as nothing more than an effort to "manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending."/65/ The dissent observed that there was, in reality, a "very high likelihood" that the government would intercept the communications involving the plaintiffs because their clients and contacts were the kinds of people of great concern to the government, the content of the communications would be of interest to the government, they had been previously targeted for surveillance, and the government has the capacity to conduct surveillance of these communications./66/ The dissent further challenged the notion that the "certainly impending" standard was the required threshold for standing, citing many cases, including Monsanto, applying a less rigorous probabilistic standard./67/

 In a footnote that hedged the standard, the majority acknowledged that “we have found standing based on a ‘substantial risk’ that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm,” but held that, if the “certainly impending” and “substantial risk” standards are different, the plaintiffs did not satisfy the more forgiving “substantial risk” requirement either./68/

The Supreme Court’s more recent standing decision in Susan B. Anthony List v. Dreihaus,/69/ sheds further light on the applicable standard. Susan B. Anthony was a pre-enforcement challenge to an Ohio statute that prohibited “false statements” concerning candidates or public officials during political campaigns for nomination or election. Any person can file a complaint about such statements with a state commission that, in turn, must refer the matter to a county prosecutor if the commission determines by clear and convincing evidence that the false-statement law was violated.

Of relevance here, the Court cited Clapper and held that “[a]n allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.”/70/  A showing of either standard may therefore be sufficient. In the pre-enforcement context, that standard may be satisfied when the plaintiff expresses an intent to engage in arguably unlawful speech and there is a “credible threat” of enforcement./71/  The Court held that standard was satisfied by the combination of burdensome administrative proceedings before the commission combined with the subsequent threat of criminal prosecution because prior speech, likely to be repeated, had previously been found unlawful in a proceeding before the commission mooted by the withdrawal of the claim. 

At least in the context of a pre-enforcement challenge, the Court in Susan B. Anthony appeared to temper  Clapper's "certainly impending" language and leave opportunities to continue to argue the viability of the alternative “substantial risk” formulation.

3.1.B.3. Distinct and Palpable Injury

One of the goals of public law litigation is to force the government to comply with the Constitution and federal statutes. In the absence of more specific injuries, plaintiffs have claimed that the Constitution confers upon all citizens the right to a lawful government and upon all federal taxpayers the right not to be taxed to support unlawful governmental activity. In a largely unbroken line of cases, the Supreme Court has refused to permit litigation of these so-called citizen or taxpayer suits./72/

In United States v. Richardson/73 / and Schlesinger v. Reservists Committee to Stop the War/74/, the Court held that injury resulting from the allegedly unlawful expenditure of tax monies did not confer standing because of the “‘comparatively minute, remote, fluctuating and uncertain’ impact on the taxpayer.”/75/ With respect to the interest of citizens in lawful government, the Court repeatedly characterized the injury to plaintiffs as citizens as “remote,” “abstract,” “generalized,” and “undifferentiated,” rather than “concrete.” Because of this, the Court has held that this “motivation [to enforce the Constitution] is not a substitute for the actual injury” required for standing./76/ Clapper reiterated the Court's long-standing rejection of the notion that standing doctrine should be applied to permit some plaintiff standing for fear that the law or practice could go otherwise unchallenged./77/

The Court expounded on these principles in Warth v. Seldin, where the Court coined the phrase “distinct and palpable injury” to capture the requirement that plaintiffs must plead more than a generalized or undifferentiated grievance against the government./78/ “Distinct” generally means that the challenged act or policy affects the plaintiff differently from citizens at large. “Palpable” means that the resulting injury is concrete and not abstract or hypothetical. The Court explained in Warth that the prohibition against citizen standing and taxpayer standing did not derive from Article III. Rather, the requirements that a plaintiff suffer a distinct and palpable injury are “essentially matters of judicial self-governance.”/79/ Thus, while the requirement of injury in fact is rooted in Article III, the requirement that the injury be distinct and palpable is a prudential limitation on standing created to effectuate the separation of powers. Because the requirement is prudential, Congress can dispense with it./80/

Allen v. Wright culminated the demise of both citizen standing and taxpayer standing./81/ Parents of African American public school children, residing in school districts undergoing desegregation, challenged the Internal Revenue Service’s failure to deny tax-exempt status to discriminatory private schools in their respective districts. Plaintiffs did not allege that their children wished to attend these private schools. Rather, the parents alleged that governmental financial assistance to discriminatory schools both harmed them and impaired their ability to have the public schools desegregated. Treating the claim as an abstract allegation that the government stigmatized African American citizens by subsidizing race discrimination, the Court held that the claim did not state a distinct and palpable injury./82/ The Court found that stigmatic injury “accords a basis for standing only to ‘those persons who are personally denied equal treatment’ by the challenged discriminatory conduct.”/83/

The Supreme Court returned to the topic of generalized grievances in Hollingsworth v. Perry, the case challenging California's Proposition 8 banning gay marriage on due process and equal protection grounds./84/ In Hollingsworth, the state defendants refused to defend the constitutionality of Proposition 8, and the official sponsors of the successful voter initiative sought to intervene to defend it. The Supreme Court held that they lacked standing to do so because they had no direct stake in the outcome of the case. Once the initiative passed, the Court reasoned, the proponents had the same generalized interest in its legality as any other citizen of California./85/

Nonetheless, the Court has sometimes found standing based upon claims of injury that can be described only as generalized or abstract. In Federal Election Commission v. Akins, for example, voters challenged a decision by the Federal Election Commission that a particular organization was not a “political committee.”/86/ Political committees must make certain disclosures to the Commission; those disclosures, in turn, may be made public. The Court found that plaintiff voters had standing because the voters were not afforded access to information that might assist them in casting their vote, even though all voters could have claimed the same thing./87/ Akins might be justified on the grounds that the right of information at issue was statutorily created and that a statute gave “aggrieved” parties a right to challenge the FEC decision. That would put Akins closer to Trafficante than Defenders of Wildlife, discussed above.

3.1.B.4. Injury Fairly Traceable to the Challenged Conduct

In addition to alleging injury in fact, the plaintiff must demonstrate that the injury is fairly traceable to the defendant’s unlawful conduct. In cases in which the government acts against the plaintiff, causation is simple. When, however, governmental action or inaction relates to third parties or only indirectly affects the plaintiff, the question becomes whether the causal connection between action and injury is sufficient to confer standing. The Supreme Court has found standing in some cases notwithstanding an attenuated or uncertain chain of causation./88 / At the same time, the Court has denied standing in cases in which the chain seemed both shorter and more certain./89/ The Court’s standing causation jurisprudence has been markedly inconsistent and offers few lessons for general application.

The Court first articulated the requirements of causation and redressability in Linda R.S. v. Richard D./90/ Plaintiff, an unmarried mother, sued to compel a local prosecutor to enforce the state’s criminal nonsupport statute against the father of her child. She asserted that her injury was the refusal of the child’s father to provide support and claimed that the state’s refusal to enforce the statute against unmarried fathers violated the Equal Protection Clause. The Court held that the mother lacked standing because she did not show that enforcement or threat of enforcement of the statute would cause the father to make child support payments.”/91/ There was, in short, an insufficient showing that the state’s enforcement policy was the cause of her injury: the non-receipt of child support.

In Warth, low-income plaintiffs who wished to reside in Penfield, New York, challenged zoning restrictions that effectively precluded the construction of low and moderate-income housing within the city. The Court held that the individual plaintiffs lacked standing because they failed to “allege facts from which it reasonably could be inferred that, absent the [city’s] restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease in Penfield.”/92/ The ability to purchase a home in Penfield turned on both the willingness of the developer to build homes there without the restrictions and the plaintiffs’ financial capability to do so. Both were regarded as too speculative. Because the plaintiffs failed to establish that city zoning practices caused their injury, they were not allowed to challenge those practices.

By contrast, the Court later held in Village of Arlington Heights v. Metropolitan Housing Development Corporation that a developer of low-income housing and one of its putative tenants had standing to challenge exclusionary zoning practices./93/ The developer had contracted to buy property contingent upon its rezoning for multiple family use and filed a properly documented application. When the city denied the application, the developer sued. Although financing for the project was uncertain, the Court held that the developer had standing to challenge the city’s action because an injunction would remove a barrier to development./94/ The individual plaintiff alleged that he would seek and qualify for housing in the proposed development in order to move closer to his job. Finding that the city’s action frustrated the individual plaintiff’s specific plan and that an injunction would create at least a “substantial probability” of development, the Court concluded that he too had standing./95/

Plaintiffs in Arlington Heights overcame standing problems by paying attention to detail. Rather than mount an abstract challenge to exclusionary zoning practices on behalf of developers who hoped to develop at some future time and tenants who hoped to rent somewhere, they identified a developer and an individual with specific injuries more closely traceable to city action. Because they pled a commitment to act if relief were granted, these plaintiffs also established a greater likelihood of redressability. By recognizing from the outset the importance of establishing that exclusionary zoning caused the inability to develop or to rent, they overcame the Warth obstacle. Arlington Heights represents a wise response to Warth: to identify with precision the injury and to demonstrate the link between the injury and official action./96/

Simon v. Eastern Kentucky Welfare Rights Organization, in contrast, demonstrates the hazards of filing a suit without giving due regard to standing./97 / In that case, various individuals and organizations challenged an Internal Revenue Ruling which permitted some hospitals to deny admission to non-emergency indigent patients without jeopardizing their tax-exempt status. Plaintiffs each claimed to have been denied hospital treatment because of their indigence and asserted that the revised revenue ruling “encouraged” and “was encouraging” the continued denial of treatment. Plaintiffs pled that each of the hospitals was tax-exempt and received substantial private contributions.

The Court held that the plaintiffs failed to establish that the denial of treatment was fairly traceable to the revised revenue ruling. The Court reasoned that, in the absence of such evidence, “[i]t is purely speculative whether the denials of service . . . fairly can be traced to [Internal Revenue Service's] ‘encouragement’ or instead result from decisions made by the hospitals without regard to the tax implications.”/98/ Eastern Kentucky Welfare Rights Organization presented a particular challenge to the plaintiffs because they needed establish a causal relationship between a policy and the actions of a third party. Causation is much easier to show when it turns on the plaintiffs' own actions or decisions not to act. Friends of the Earth is a good example. The Court did not require the plaintiffs to demonstrate that particular discharges into a river had caused them injury or increased their risk of injury. Rather, the Court found it sufficient that the discharges generally created “reasonable concerns” about their effects and that these concerns directly and reasonably affected plaintiffs’ recreational and aesthetic interests when plaintiffs chose not to use the river./99

The Court's recent decision  in Massachusetts v. Environmental Protection Agency involved a somewhat different concept of causation./100/ There, the Environmental Protection Agency conceded a causal link between greenhouse gasses and global warning, but argued that Environmental Protection Agency’s failure to regulate new car emissions contributed very little to the asserted injuries and that regulation would not help global warming because of greenhouse gas emissions from other countries.  The Court held that causation is present even if there is a tentative or incremental link between the challenged action (or inaction) and asserted injury./101/ The earlier cases measured causation in terms of the degree to which the link between conduct and injury was clear or certain.  In a sense, causation was clear and certain in Massachusetts; the issue was, instead, the extent to which the link must be quantitatively significant.  On that point, the Court was rather forgiving, although it suggested that a more relaxed standard was in order when a state is the plaintiff.

 

3.1.B.5. Relief  Sought to Redress Injury


A corollary to the Supreme Court’s requirement for standing that the injury alleged be fairly traceable to the challenged conduct is the separate requirement that the relief sought must redress the injury. In the great majority of cases the inquiry into causation and redressability are indistinguishable. Thus, in Warth the Court held that there was no reason to suppose that the elimination of exclusionary zoning would enable the plaintiffs to obtain housing in Penfield. In Eastern Kentucky Welfare Rights Organization, the Court held that there was no reason to think that revoking the IRS Revenue Ruling at issue would assure that the next ill or injured poor person would be admitted to a hospital. Furthermore, in Allen, the Court held it was entirely speculative that revoking tax-exempt status for allegedly discriminatory private schools would serve to foster public school integration. What is peculiar about the Court’s concern for redressability is the elevation of the question of remedial efficacy to constitutional status.

While the scope of equitable relief to redress unlawful governmental action has long been a matter of controversy, not until City of Los Angeles v. Lyons did the Court clearly articulate the requirement of remedial efficacy as a constitutional component of standing./102/ The plaintiff in Lyons sought damages and injunctive relief after being choked by city police officers. He alleged that the city permitted the police department to use unnecessary choke holds indiscriminately. The Court conceded that Lyons had standing to sue for damages./103/ However, the Court held that he lacked standing to seek injunctive relief. An injunction would not redress his injury because it was unlikely that he would be arrested and choked again. 

Lyons differs dramatically from Warth and Eastern Kentucky Welfare Rights Organization. In the earlier cases, the Court’s concern for remedial efficacy was a corollary to the requirement that the plaintiff establish that the injury was fairly traceable to defendant’s unlawful conduct. If the causal link between the defendant’s conduct and the plaintiff’s injury was tenuous, then it followed that injunctive relief against that conduct was unlikely to remedy the injury. Thus, the requirement of remedial efficacy grew out of the focus upon causation; whenever causation was in doubt, so too was remedial efficacy.

The notion of uncertainty in redressability arose in a different context in Defenders of Wildlife. In that case, plaintiffs challenged a regulation that did not require funding agencies to consult with the government before granting funds to projects that might harm endangered species. The Court found that plaintiffs had not demonstrated redressability because the funding agencies were not otherwise bound by any consultation requirement and because the funding agencies supplied only a small percentage of the financing for certain projects./104 / Even if those funds were withdrawn, the plaintiffs did not show that the project would be suspended or cause less harm to the endangered species, a showing that would be formidable, if not impossible.

The ability of prospective injunctive relief to remedy past wrongs dealt with in Lyons has echoes in Steel Company v. Citizens for a Better Environment./105/ In Steel Company, plaintiff sued a manufacturing firm for past violations of a federal statute requiring users of certain toxic and hazardous chemicals to file forms with the Environmental Protection Agency that detail the name, quantity, and disposal methods of various chemicals. The Environmental Protection Agency alerted the firm that it had failed to file the forms for several years. The firm then did so. Suing the firm for violating the statute, the plaintiff asserted that the company’s failure to file these forms precluded the plaintiff from learning about its operations. The plaintiff sought declaratory and injunctive relief and civil penalties.

The Court found that the plaintiff failed the redressability prong of the standing test. With respect to injunctive relief, the plaintiff sought an order permitting it to inspect the firm’s facilities and records and requiring the firm to submit future forms to the Environmental Protection Agency. The Court held that such relief would not redress the injury previously caused when the firm failed to file the forms. The plaintiff did not allege that such a violation was going to happen again, and, without it, there was no basis for prospective injunctive relief.

In contrast, the Court’s approach to redressability in Massachusetts v. Environmental Protection Agency was somewhat more forgiving./106/ There, the Court emphasized that the relief requested need not remedy the entire injury suffered by the plaintiff; regulation of greenhouse gas emissions from new cars will not solve the global warming problem./107/ The Court, though, seized on Environmental Protection Agency statements underscoring the need to address the problem, including voluntary measures. These statements suggested Environmental Protection Agency’s recognition that some regulation must offer some prospect for at least slowing global warming. Holding that the redressability prong can be satisfied even if relief only promises modest reductions in remote risk, the Court held that:

In sum —at least according to petitioners’ uncontested affidavits—the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek./108/

The clear message of Lyons and Steel Company is to choose plaintiffs with care and, whenever possible, to choose plaintiffs who have suffered recurrent application of the practice or policy at issue. In preparing a claim seeking injunctive relief based upon past conduct, the attorney must therefore articulate in the complaint the reasons why the risk of recurrence is more than speculative.  When the acts or omissions promise to continue into the future, the less demanding perspective of Massachusetts offers potentially valuable support for creative redressability arguments./109

R econciling these standing cases is not realistically possible. However, the Court seems far more likely to find standing in cases brought pursuant to a specific federal statute which reflected Congress' intent and desire for judicial intervention./110/ Such statutes evidence a legislative judgment that certain classes of plaintiffs suffer injury in fact when the statute is violated, that the violation causes the injury, and that such injury is redressable by the statutory remedies provided. These statutes also explicitly reflect Congress’ desire that courts intervene to resolve disputes arising from the statutes. As the Court recently put it, “Congress [can] define new legal rights, which in turn will confer standing to vindicate an injury caused to the claimant.”/111/ With the exception of Defenders of Wildlife, the Court found standing in each case arising from such statutes. When, however, the action does not arise from such statutes and there is no explicit legislative mandate for intervention, the Court takes a much narrower view of standing. This is particularly true in cases, often involving constitutional questions, that pose challenges to the judicial function when standards of decision are not readily available or discernible/112 / and when separation of powers issues are present./113/

3.1.C. Associational Standing

Groups may have standing in a representative capacity, in an individual capacity, or in both. A group has standing in a representative capacity when it represents the rights of its members. Such standing is an exception to the general prohibition on third-party standing. An association has standing in an individual capacity (or qua group) when it asserts its own rights as an organization.

3.1.C.1. Representative Capacity

The leading case articulating the standing requirements for groups that sue in a representative capacity is Hunt v. Washington Apple Advertising Commission./114/ The Court stated in Hunt:

Thus we have recognized that an association has standing to bring suit on behalf of its members when:

(a) its members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit./115/

The first prong of the Hunt test establishes a traditional standing inquiry grounded in Article III’s case or controversy requirement. The second prong is also constitutionally based and is designed to ensure that the association has both a concrete stake in the outcome of the litigation and will approach it with adversarial vigor. In contrast, the Supreme Court has ruled that the third prong is a prudential limitation in the same sense as third-party standing discussed below./116/

With respect to the first element, when an organization asserts standing in a representative capacity, Hunt does not require the organization to allege that it has suffered any injury. Rather, the organization must establish that those whom it represents have suffered an injury sufficient to confer standing./117/ The organization need not establish that a substantial number of its members have suffered injury. Injury to a single member will do./118/ However, that member must be specifically identified.  In Earth Island Institute, the Supreme Court rejected the sufficiency for standing purposes of an assertion that some members of a large membership organization probably will experience harm./119/ Instead, submit affidavits from specific members directly affected by the challenged conduct.

An issue commonly litigated relating to the first prong is whether the plaintiff is the sort of association entitled to avail itself of associational standing. Voluntary membership organizations, such as trade organizations, plainly qualify./120/ Organizations whose members are compelled to join, such as some trade unions and bar associations, may qualify as well./121/ Matters become more difficult when the association is not a traditional membership organization. The association may have standing if the association is “the functional equivalent of a traditional membership organization.”/122/ That is, if the individuals in the organization select its leaders, guide its activities, and finance its efforts, the association may have standing./123/ If not, the association lacks standing./124/

Second, Hunt also requires some community of interest between the group and the injured member. By requiring the interests that the suit seeks to protect to be germane to the organization’s purpose, Hunt limits the capacity of groups to define their purpose in terms sufficiently broad to permit the group to represent whoever’s interests happen to suit it at a given moment./125/ This requirement has been described as “undemanding.”/126/

Third, Hunt permits representative standing only when neither the claim nor the relief sought require the participation of an injured individual. This element is typically satisfied when the plaintiff association seeks injunctive or declaratory relief generally benefiting the association and its members,/127/ even when there is a need for some limited participation of association members in fact discovery or at trial./128/ The application of the third prong in cases with a conflict among an association’s membership resulted in an interesting split in the circuits./129/ Unless Congress eliminates the third element of the Hunt test by statutorily authorizing suit for damages,/130/ associational claims for damages run afoul of this third prong because the claims require individualized proof of damage and representative standing is therefore inappropriate./131/ Because Hunt vests trial courts with some discretion in resolving claims of associational standing, the better practice when group standing appears tenuous is to join at least one named individual as plaintiff in litigation brought by a group asserting associational standing. The presence of an individual with standing should discourage the court—and opposing counsel—from delving deeply into the question of the group’s associational standing.

3.1.C.2. Advantages and Disadvantages of Associational Standing

Given that a group asserting representative standing will fare no better than its individual members in establishing the requisite injury, one can fairly ask why associational standing is worth pursuing. The principal advantage of group standing lies in its use to obtain the benefits of a class action without the bother of class certification. Those benefits include the opportunity to obtain a judgment in favor of everyone adversely affected and to avoid mootness.

Including a representative organization as a plaintiff may justify broader relief than would otherwise be available in a single plaintiff action. It also may avoid mootness of questions tied to the passing stake in the controversy of individual members. Representative claims thereby effectively shift the case and controversy focus from whether a particular individual has a live claim to whether any group member has a live claim. In this sense, representative standing resembles a class action without the problems posed by the requirement of class certification.

Indeed, the Supreme Court recognized the propriety of representative group standing as an appropriate alternative to class action litigation for injunctive relief in International Union, United Automobile, Aerospace and Agricultural Implement Workers./132/ In that case, the government argued that the Court should modify Hunt to require representative groups to proceed under Rule 23. Rejecting that argument, the Court reaffirmed Hunt. Representative groups, the Court held, may be superior to an “ad hoc union of injured plaintiffs” proceeding as a class action./133/ Because associations are often borne of a desire to vindicate common interests, they are likely to be adequate representatives of their members and “can draw upon a preexisting reservoir of expertise and capital.”/134/ The Court’s reaffirmation of associational standing suggests the potential value of such standing as an alternative to the vagaries of class certification.

Representative group standing also may enable an individual member who does not wish to appear as a named plaintiff, or does not have the resources to do so, to avoid direct participation in the lawsuit. For a variety of reasons, some individuals are reluctant to sue in their own name. However, their membership in a group can confer representative standing on the group. On the other hand, damages are not available in cases involving associational standing.

An organization may also see representative group standing as a device to strengthen the organization within a community./135/ By appearing as the lead plaintiff in a major lawsuit, the group acquires visibility; when it wins, it acquires clout. While these considerations may appear irrelevant to the development of a successful lawsuit, they may matter greatly to a fledgling organization.

3.1.C.3. Organizational Standing

An organization that suffers injury in its own right—rather than, or in addition to, an injury to the rights of its members—has individual standing as a group./136/ When the group asserts an injury to its own interests, the group has standing qua group, irrespective of any injury to members./137/ Thus, a group that suffers or will suffer economic harm,/138/ or diminution in membership attributable to unlawful conduct, has an individual injury sufficient to confer standing./139/ So would an organization claiming that an agency violated its statutory right to information./140/ However, the facts relating to this harm are subject to discovery./141/ Prior to litigation, prospective organizational plaintiffs should be advised to keep careful records of membership loss or diversion of resources./142/

Only in limited circumstances, absent economic harm or diminution in membership, do courts uphold the assertion of standing for groups that suffer an injury to their organizational goals./143/ While Havens Realty and Arlington Heights, discussed above, expand marginally the opportunity for an organization to establish individual standing based upon injury to its non-economic agenda, they do not undermine Sierra Club, Schlesinger and Allen v. Wright, all of which prohibit standing based upon a general injury to a group’s ideological interests./144/ Thus, group standing deriving from injury to the group’s non-economic interests offers only limited possibilities for litigation.

In structuring a claim by a group suing qua group, every effort should be made to identify and plead some kind of economic harm, frustration of a core interest, or membership loss flowing from the challenged conduct. Because combining individual group standing with associational group standing increases the likelihood of success in establishing standing, a group asserting injury to its own interests should, whenever possible, also plead representative standing.

3.1.D. Prudential Limitations on Standing

As a matter of judicial self-governance, the Court has also held that prudential considerations counsel against standing even in cases in which the Article III case or controversy requirement has been satisfied. These considerations are motivated by the Court’s reluctance to decide matters of national significance that it regards as being more appropriately resolved by other branches of government and unlikely to protect the interests presented./145/ The Court has identified three prudential doctrines: (1) the limitation on taxpayer or generalized grievance standing, discussed above, (2) the zone of interests test and (3) limitations on third-party standing.

3.1.D.1. The Zone-of-Interests Test

Beginning in Association of Data Processing Service Organizations Incorporated v. Camp/146/, the Court has required that plaintiffs establish that their grievance “must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.”/147/ This prudential limitation on standing is “founded in concern about the proper—and properly limited—role of the courts in a democratic society.”/148/ The limitation may be set aside by Congress./149/ The zone-of-interests test originally arose from an interpretation of the standing provision in the Administrative Procedure Act./150/ The Court, however, has expanded it to apply to any provision of law./151/

In Block v. Community Nutrition Institute, the Court suggested a liberal standard for applying the zone-of-interests test./152/ A plaintiff fails the test when there is express legislative intent to preclude review./153/ The presumption is in favor of judicial review, which may be overcome only by clear and convincing evidence found in the legislative scheme./154/ Subsequently, the Court expressly stated that the zone-of-interest test “is not meant to be especially demanding,” precluding standing only when “the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot be assumed that Congress intended to permit the suit.”/155/

The Court has more recently continued to adhere to a relaxed interpretation of the zone-of-interests test. In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchuk, the Court found that a neighboring property owner, concerned about the use of land purchased by the government for a tribe which intended it for gaming purposes, fell within the zone of interests of the statute authorizing the purchase because the eventual use of the land is to be considered in making the purchase./156/ In National Credit Union Administration v. First National Bank and Trust Company, the Court allowed a competing bank to challenge an order which was issued by the National Credit Union Administration and enlarged the charter of a credit union./157/ The Court reasoned that the underlying Act’s purpose was to limit the scope of memberships in credit unions—an interest shared by competing banks. Nonetheless, the Court has applied the test to deny standing. In Air Courier Conference v. American Postal Workers Union, the Court held that the postal worker’s union did not have standing to challenge the suspension of the monopoly over extremely urgent letters under the Postal Express Statutes, noting that those statutes were not intended to protect jobs./158/

3.1.D.2. Third Party Standing

Third-party standing issues arise when a party seeks relief by asserting the rights of third parties not before the court. Generally, parties may seek only to vindicate their own legal rights rather than those of others./159/ The presumption against third-party or jus tertii standing rests on prudential principles rather than an application of Article III limitations on standing./160/ Those prudential limitations, in turn, are grounded upon concerns that third parties may not wish to have their rights asserted, that parties are less likely to advocate vigorously the rights of others, and that the quality of judicial decision making may suffer when concrete evidence of harm is not presented by those suffering it./161/ The Supreme Court has generally permitted third-party standing in cases when enforcement of the challenged law or conduct affects third parties indirectly, but has been somewhat less willing to sanction use of third-party standing in other contexts./162/

The Court developed a three-part test, each prong of which must be satisfied in order to bring third-party claims: “[t]he litigant must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute; the litigant must have a close relationship to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests.”/163/ As this test has been applied, however, the Court has found standing even in cases in which the second or third prong has not been clearly established.

The first prong of the test has been rigorously enforced. The plaintiff must satisfy traditional constitutional standing requirements; the challenged law or conduct must injure the party in order for that party to assert the rights or interests of third parties. These requirements have been found to be satisfied when, for example, the plaintiff challenges laws that cause it economic harm,/164/ or a criminal defendant challenges jury selection procedures./165/

With respect to the second prong, the Supreme Court has not articulated specific standards for the degree of the closeness of the relationship between the plaintiff and the third party whose rights are asserted, or the nature of the relationship which satisfies this criterion. Nonetheless, a number of cases offer significant guidance.

In Singleton v. Wulff, a leading case in this area, the Supreme Court held that a physician had standing to assert the rights of patients in challenging a state statute limiting Medicaid-covered abortions. The Court noted the close relationship between doctor and patient and stated that the relationship was directly implicated by the law challenged. Similarly, the Court permitted an attorney to challenge a statute limiting the ability to recover attorney fees in black lung benefit cases on the ground that the statute violated his client’s due process right to legal representation./166/ In so doing, the Court observed that third-party standing was appropriate in cases in which the limitation or restriction challenged by the plaintiff prevented the third party from establishing a lawful relationship with the plaintiff./167/

This notion explains a number of cases in which the Court held that suppliers of products may challenge restrictions on sales by asserting the rights of customers to obtain the product. In Craig v. Boren, for example, a seller of beer was permitted to challenge on equal protection grounds an Oklahoma law that prohibited sales of 3.2 percent beer to men under 21, while allowing the sale to women aged 18 to 21./168/ While the relationship between a tavern and customers seems more tenuous than that between a doctor and patient or an attorney and client, the Court justified its holding on the ground that the seller “is entitled to assert those concomitant rights of third parties that would be ‘diluted or adversely affected’ should her constitutional challenge fail and the statutes remain in force.”/169/ Similarly, the Court has permitted booksellers to assert the First Amendment rights of book buyers/170/ and sellers of contraceptives to assert the privacy rights of customers./171/

With respect to the third prong of the test, the Supreme Court frequently permits third-party standing when the third party is unlikely to assert its own interests. Most recently, the Court permitted third-party standing in jury selection cases. In Powers v. Ohio, a white criminal defendant appealed his conviction on the ground that the prosecutor’s use of peremptory challenges violated the equal protection rights of prospective African American jurors./172/ The Court first found that discriminatory use of peremptory challenges caused the defendant injury in fact, regardless of race, because such use called into question the fairness of the trial./173/ Second, the Court held that the connection between the defendant and excluded jurors was “as close as, if not closer than” those in cases such as Triplett because “[v]oir dire permits a party to establish a relation, if not a bond of trust, with the jurors.”/174/ Somewhat more convincingly, the Court further noted that the defendant was likely to advocate vigorously on behalf of the excluded jurors in order to secure a reversal of his conviction./175/ The Court held that excluded jurors were unlikely to challenge their exclusion since the costs were high and potential benefits low, but that, even if they did, they would be unable to obtain declaratory or injunctive relief./176/ The Powers rationale has been extended to civil cases/177/ and challenges to the selection of grand jurors./178/

The question of barriers to third parties enforcing their own rights has also featured prominently in cases involving unlawful racial covenants and the distribution of contraceptives. In Barrows v. Jackson, for example, whites who sued for violating racially restrictive covenants in their deeds were permitted to assert the equal protection rights of African Americans, who could not sue as they were not parties to the covenant./179/ In Eisenstadt v. Baird, a doctor who was prosecuted for distributing contraceptives to unmarried persons was permitted to assert the rights of such persons./180/ Such persons were not subject to prosecution and were thereby “denied a forum in which to assert their own rights.”/181/

At the same time, one can imagine scenarios in which young males interested in buying 3.2 percent beer, Medicaid beneficiaries, individuals wishing to obtain contraceptives, and African Americans seeking to purchase property encumbered by a racially restrictive covenant could assert their rights in litigation that they would initiate. This suggests a reasonably relaxed approach to the third prong of the test. However, this may be more reflective of the Court’s more generally forgiving approach to standing in the 1970s. The more recent cases in the jury selection area did not raise significant third-prong problems. However, the Court’s most recent third-party standing case struck a more cautionary note, focusing more on legal barriers to third-parties bringing claims than their likelihood of success in doing so. In Kowalski v. Tesmer, the Court held that pro se criminal defendants who plead guilty were not hindered in challenging a state statute forbidding the appointment of appellate counsel./182/

At least two justices have suggested that the Supreme Court revisit and clarify the law of third-party standing. In Miller v. Albright, a woman born abroad and out of wedlock to an American father and a foreign mother challenged, along with her father, a provision in the Immigration and Nationality Act that created different citizenship requirements for those born abroad of an alien father and American mother as opposed to those born abroad to an alien mother and American father./183/ The lawsuit asserted that the father’s equal protection rights were violated. Nonetheless, the district court dismissed the father’s claim for lack of standing. The father did not appeal.

Citing only Craig, the plurality opinion written by Justice Stevens and joined by Chief Justice Rehnquist held that third-party standing was appropriate. Addressing the issue in more detail, Justice Breyer, on behalf of Justices Souter and Ginsburg, who dissented on other grounds, agreed. Justice O’Connor, joined by Justice Kennedy, would have denied third-party standing on the ground that the father did not face sufficient barriers to asserting his own rights. Justices Scalia and Thomas expressed agreement with Justice O’Connor but cited Craig to suggest that the third prong of the test was not especially demanding. Justice Scalia concluded that “[o]ur law on this subject is in need of what may charitably be called clarification.”/184/

The most sensible approach to litigation in the face of uncertainty is to avoid third-party standing problems by joining appropriate additional plaintiffs. Creating a complex and unnecessary obstacle to the assertion of a claim by attempting to have one plaintiff assert the rights of others makes no sense. Simply join representative individuals whose rights are at issue as named plaintiffs.

Third-party standing rules are more clearly developed in the context of overbreadth claims. The prototypical overbreadth claim arises when regulation of activity protected by the First Amendment is challenged on the ground that the regulation sweeps substantial protected as well as unprotected conduct or expression within its prohibition. When plaintiff is engaging in expression clearly subject to permissible regulation under a properly drawn restraint, the overbreadth challenge raises third-party standing issues.

The leading case is Secretary of State of Maryland v. Joseph H. Munson Company/185/ The Court held that a plaintiff invoking third-party standing in an overbreadth case must establish only that he had suffered injury in fact and that he would adequately frame the issues./186/ To demonstrate injury in fact in an overbreadth case, the plaintiff must demonstrate “a genuine threat of enforcement” of the statute against his future activities./187/ Underlying the special third-party standing rule for overbreadth cases is the risk that the absent party whose rights are at issue may refrain from the protected activity rather than sue to vindicate First Amendment rights. Should that happen, society loses the views of those who are silenced.

_________________________________________________________________________________


1.   Summers v. Earth Island Institute, 555 U.S. 488, 492-93 (2009); DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 340-41 (2006).

2. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Summers, 555 U.S. at 493. 

3. Association of Data Processing Service Organizations Incorporated v. Camp, 397 U.S. 150, 151 (1970).

4. United States v. Windsor, 133 S. Ct. 2675, 2687 (2013) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). See, e.g., Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (relying on principles of prudential standing to deny standing to student’s father who sought to challenge requirement that his daughter recite Pledge of Allegiance, when father’s right to act on his daughter’s behalf was founded on disputed issues of state family law).

5. The Supreme Court examined the distinction between Article III and prudential limitations on standing in the unusual context presented in Windsor, the recent case that invalidated the Defense of Marriage Act. There, the Supreme Court held that the United States had standing to appeal a trial court’s decision to require it to pay a tax refund although it refused to defend the statute on which it had denied and continued to deny the request for refund. The Court further held that the importance of the issues, the prospect of time-consuming and costly litigation over DOMA were the appeal dismissed, and the presentation by a Congressional group that intervened to support the constitutionality of DOMA counseled against dismissing the appeal on prudential  grounds. Windsor, 133 S. Ct. at 2684–89.

6. DaimlerChrysler, 547 U.S. at 342, n.3; FW/PBS Incorporated v. Dallas, 493 U.S. 215, 231 (1990).

7. Defenders of Wildlife, 504 U.S. at 561.

8. Davis v. Federal Election Commission, 554 U.S. 724, 734 (2008).

9. While the Supreme Court reviews standing sua sponte “where [it] [has been erroneously assumed below,” it does not examine standing “simply to reach an issue for which standing has been denied below,” a conclusion not challenged in the appellant’s petition for certiorari.  Adarand Constructors Incorporated v. Mineta, 534 U.S. 103, 110 (2001). By contrast, courts of appeal are obliged to examine standing under all circumstances. See, e.g., Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 47 (D.C. Cir. 1999).

10. Monsanto Company v. Geerston Seed Farms, 130 S. Ct. 2743, 2754 (2010) (plaintiffs must demonstrate standing to pursue each form of relief sought); Davis, 554 U.S. at 734; City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).

11. DaimlerChrysler, 547 U.S. at 353.

12. Clinton v. New York, 524 U.S. 417, 432 (1998). See also United States v. Windsor, 133 S. Ct. 2675 (2013) (government had standing to appeal order to pay tax refund despite its refusal to defend basis for that refusal); Vermont Agency of Natural Resources v. United States, 529 U.S. 765 (2000) (relator in qui tam action has standing to challenge injury suffered by government because Congress assigned relator an entitlement to a percentage of any monetary recovery).

13. Clinton, 524 U.S. at 432-34 (finding cooperative has standing to challenge veto of tax benefit enacted to foster ability to purchase processing plants); Association of Data Processing Service Organizations Incorporated v. Camp , 397 U.S. 150, 154-56 (1970) (data processing service providers have standing to challenge decision to permit banks to provide such services to other banks)

14. Clinton, 524 U.S. at 432-33.

15. Id. at 431.

16. Massachusetts v. Environmental Protection Agency549 U.S. 497, 520 (2007).

17. Id. at 522.

18. Id. at 523.

19 Sierra Club v. Morton, 405 U.S. 727 (1972).

20. See Sierra Club v. Morton, 348 F. Supp. 219 (N.D. Cal. 1972).

21. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973).

22. Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990).

23. Duke Power Company v. Carolina Environmental Study Group, 438 U.S. 59 (1978).

24. Id. at 73. The Supreme Court suggested that the threat of a core meltdown and the present consequences in terms of personal anxiety and decreased property values of that threat were too speculative to confer standing.

25. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).

26. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). 

27. Id. at 563 (citations omitted).

28. Id. at 564. The Supreme Court also disposed of alternative theories asserting standing by those who use any part of a “contiguous ecosystem,” by those interested in seeing endangered animals, and by those with a professional interest in animals. Id. at 565-66.

29. Friends of the Earth v. Laidlaw Environmental Services528 U.S. 167 (2000).  

30. Friends of the Earth, 528 U.S. at 174, quoting Clean Water Act, 33 U.S.C.  §§ 1365(a), (g). Even the dissent declined to conclude that this statute was unconstitutional in the sense that the citizen-suit provision in the Endangered Species Act was in Defenders of Wildlife.

31.Friends of the Earth, 528 U.S. at 183.

32. Id. at 184 (citing Defenders of Wildlife, 504 U.S. at 564).

33. Id. at 183-184.

34. Id. at 184.

35. Defenders of Wildlife, 504 U.S. at 576-78.

36. Id. at 578 (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).

37. Id. at 580.

38. The Supreme Court granted certiorari in First American Financial Corporation v. Edwards, 610 F.3d 514 (9th Cir. 2010), which presented a question whether a plaintiff has standing to challenge a violation of the Real Estate Settlement Procedures Act in the absence of an allegation that the alleged violation resulted in an overcharge, but later dismissed it as improvidently granted. First American Financial Corporation v. Edwards, 132 S. Ct. 2536 (2012).

39. Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3612 .

40Trafficante v. Metropolitan Life Insurance Company, 409 U.S. 205 (1972).

41. Id. at 208. Following Trafficante, the Supreme Court later held that cities and homeowners had standing to challenge racial steering practices, Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109-15 (1979) and that “testers,” individuals posing as prospective buyers or renters, had standing to sue for racially motivated misrepresentations that housing was unavailable. Havens Realty Corporation v. Coleman, 455 U.S. 363, 372-75 (1982).

42. Cf. Vermont Agency of Natural Resources v. United States, 529 U.S. 765, 773 (2000) (concluding that realtor has standing under False Claims Act as the Act may be regarded as partially assigning the United States’ damage claims to third parties). For an interesting recent case holding that emotional injury is not cognizable for standing, over a spirited dissent, see Chaplaincy of Full Gospel Churches v. U.S. Navy, 534 F.3d 756 (D.C. Cir. 2008).

43. Thompson v. North American Stainless, 131 S. Ct. 863, 869-70 (2011).

44. Id. at 870 (employee fired after his fiancee filed an Equal Employment Opportunity claim can sue for retaliation under Title VII).

45. Lujan v. Defenders of Wildlife, 504 U.S. 555 , 572 (1992).

46. Id. at 573 n.7. The example used by the Supreme Court involved one who was living next to a proposed dam and had standing to challenge the failure to prepare an environmental impact statement even though there was no guarantee that such a statement would result in the dam not being built. See also Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009).

47Defenders of Wildlife, 504 U.S. at 573 n.8; Earth Island Institute, 555 U.S. at 496-97. Compare Center for Biological Diversity v. U.S. Department of Interior563 F.3d 466, 479 (D.C. Cir. 2009) (finding standing) with New York Regional Interconnect Incorporated v. Federal Energy Regulatory Commission, 634 F.3d 581, 587 (D.C. Cir. 2011) (finding standing) and Center for Law and Education v. U.S. Department of Education, 396 F.3d 1152 (D.C. Cir. 2005) (rejecting standing). Courts of appeal decisions applying “procedural rights” standing include Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 51 (D.C. Cir. 1999) (holding that plaintiff may sue for the denial of procedural rights in the Forest Service’s grant of authority to drill on federal lands even though there was “no certainty” that the drilling would take place), and Moreau v. Federal Energy Regulatory Commission, 982 F.2d 556, 564 (D.C. Cir. 1993) (plaintiffs had standing to contest the agency’s failure to give them notice of proceedings and to hold an evidentiary hearing regarding the construction of a natural gas pipeline notwithstanding the plaintiffs’ failure to show that such pre-deprivation safeguards would have changed the outcome). See also Salmon Spawning and Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008); Defenders of Wildlife v. Environmental Protection Agency, 420 F.3d 946, 957-58 (9th Cir. 2005); Yesler Terrace Community Council v. Cisneros, 37 F.3d 442, 446-47 (9th Cir. 1994); Florida Audubon Society v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996); Banks v. Secretary of the Indiana Family and Social Services Administration, 997 F.2d 231, 238-39 (7th Cir. 1993) (plaintiffs eligible for Medicaid have standing to challenge Medicaid agency’s failure to give notice and hearing before denying reimbursement claims).

48. See, e.g. Bensman v. U.S. Forest Service, 408 F.3d 945 (7th Cir. 2005) (rejecting, in Appeals Reform Act case, informational injury as a sufficient substantive interest to warrant procedural injury standing); but see WildEarth Guardians v. Salazar, 859 F. Supp. 2d 83, 92 (D.D.C. 2012) ("To establish informational standing, a plaintiff must (1) identify a statute that, on plaintiff's reading, directly requires the defendant to disclose information that the plaintiff has a right to obtain, (2) show that it has been denied the information to which it is entitled, and (3) provide a credible claim that the information would be helpful to it.") (citing FEC v. Akins, 524 U.S. 11, 21 (1998)).

49. Massachusetts v. Environmental Protection Agency549 U.S. 497 (2007).

50. Id. at 517-18. In this context the Court cited Sugar Cane Growers Cooperative of Florida v. Veneman, 289 F.3d 89, 94-95 (D.C. 2002) ("A [litigant] who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result.")

51. Earth Island Institute, 555 U.S. at 493.

52. Id. at 488. 

53. Id. at 499-500.

54. See Center for Biological Diversity v. U. S. Department of Interior, 563 F.3d 466, 476-77 (D.C. Cir. 2009) (rejecting traditional standing in challenge to approval of offshore oil and gas leasing for failure to account to climate change on Outer Continental Shelf areas). 

55. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).

56. Id. at 523 n.21.

57. Id. at 522.

58. Monsanto Company, 130 S. Ct. 2743.

59. Id. at 2755.

60. Id.

61. Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013).

62. Id.

63. Id. at 1143.

64. Id. at 1150.

65. Id. at 1151.

66. Id. at 1157.

67. Id. at 1160-61.

68. Clapper, 133 S. Ct. at 1150 n.5.

69. Susan B. Anthony List v. Dreihaus, 134 S. Ct. 2334 (2014).

70Id. at 2341.

 71 . Id. at 2342-43.

72 The most recent Supreme Court case on this point is DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 341-46 (2006), in which the Court rejected state and municipal taxpayer standing for the same reasons that it had done so in prior federal taxpayer standing cases. The only area in which the Supreme Court has approved of taxpayer standing is in certain suits challenging spending on grounds that it violates the Establishment Clause. Flast v. Cohen, 392 U.S. 83 (1968), which established this exception has between frequently distinguished and narrowed.  See Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 1436 (2011) (Arizona taxpayers have no standing to challenge law permitting tax credits for contributions to organizations which provide scholarships to students attending private and parochial schools, distinguishing tax credits from government expenditures); Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007) (finding taxpayers have no standing to challenge conferences sponsored by the President's Faith-Based and Community Initiatives Centers because those offices were funded from general Executive Branch appropriations, distinguishing Flast v. Cohen, 392 U.S. 83 (1968), in which plaintiffs challenged the distribution of funds to religious schools pursuant to Congressional spending power legislation); Bowen v. Kendrick, 487 U.S. 589 (1988); Grand Rapids School District v. Ball, 473 U.S. 373 (1985), overruled in part on other grounds by Agostini v. Felton, 521 U.S. 203 (1997); Flast v. Cohen, 392 U.S. 83 (1968).  In DaimlerChrysler, the Court expressly refused to expand this exception to Commerce Clause challenges to state tax or spending decisions.  DaimlerChrysler, 547 U.S. at 347-48.

73. United States v. Richardson, 418 U.S. 166 (1974).

74. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974).

75. Richardson, 418 U.S. at 172.

76. Schlesinger, 418 U.S. at 226.

77. Clapper, 133 S. Ct. 1138.

78. Warth v. Seldin, 422 U.S. 490 (1975).

79. Id. at 500.

80. See, e.g., Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997).

81.  Allen v. Wright, 468 U.S. 737 (1984).

82. Id. at 753-59. The Supreme Court found that the latter claim stated a cognizable injury – a reduced ability to receive an integrated education. However, the Court held that the plaintiffs failed to show that revocation of tax exemption of discriminatory private schools would enhance the cause of integration. Such a showing required several layers of speculation: how many schools actually received favorable tax treatment, the extent to which they discriminated, whether they would change any policies if their tax exempt status were revoked, whether white parents would leave the school if the school changed its policies, and whether sufficient numbers of white students would leave and attend public schools to meaningfully alter the racial balance. 

83. Id. at 755.

84. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).

85. Id. at 2662-63. In Lance v. Coffman, the Supreme Court similarly found that four Colorado voters lacked standing to challenge a provision of the Colorado Constitution interpreted to permit a redistricting plan on the grounds that it violated the Elections Clause in the Federal Constitution. The Court viewed the complaint as only asserting an injury that the government was not following the law. Lance v. Coffman, 549 U.S. 437 (2007) (per curiam).

86.  Federal Election Commission v. Akins, 524 U.S. 11 (1998).

87. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) presented a similar issue: everyone is affected by global warming. The Court, however, held that just because climate risks are "widely shared" does not minimize Massachusetts' interest in the litigation.  Massachusetts, 549 U.S. at 522 (citing Akins). For similar cases, see Heckler v. Mathews, 465 U.S. 728, 739 (1984) (men have standing to challenge constitutionality of social security statute that treated men and women differently even though prevailing could not possibly help them); Havens Realty Corporation. v. Coleman, 455 U.S. 363, 373-74 (1982) (tester has standing to challenge discrimination). For an explanation why the Supreme Court finds standing in some cases presenting generalized grievances and not others, see Richard Pierce, Administrative Law Treatise § 16.4 at 1152-53 (5th ed. 2010).

88. Duke Power Company v. Carolina Study Group, 438 U.S. 59 (1978); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973); see also Bryant v. Yellen, 447 U.S. 352 (1980).

89. Professor Pierce opines that these cases reflect the Supreme Court’s use of causation to preclude review of cases that pose difficult justiciability issues on other grounds. Pierce, supra note 73 , § 16.5 at 1165-66.

90. Linda R.S. v. Richard D., 410 U.S. 614 (1973).

91. Id. at 618.

92. Warth, 422 U.S. at 504.

93. Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977).

94. Id. at 261-62.

95.  Id. at 264.

96. Environmental litigants in Duke Power Company v. Carolina Study Group, 438 U.S. 59 (1978) also overcame Warth’s stringent causation requirement. By introducing the testimony of industry representatives before congressional committees expressing their unwillingness to develop nuclear power without a liability cap, plaintiffs established that, but for the cap, the plants would likely not be built. When the utility company asserted it could proceed without the cap, plaintiffs introduced the company’s letter to Congress, which said that its suppliers and contractors would not proceed without the cap. Thus, plaintiffs demonstrated that the cap caused the aesthetic injuries of which they complained.

97. Simon v. Eastern Kentucky Welfare Organization, 426 U.S. 26 (1976).

98. Id. at 42-43.

99. Friends of the Earth, 528 U.S. at 183 (2000). In an interesting American with Disabilities Act case, the Ninth Circuit held that a plaintiff who resided several hundred miles from a convenience store, but who intended to return to the store when it became accessible had standing. Doran v. 7-Eleven, Incorporated, 524 F.3d 1034, 1041 (9th Cir. 2008).

100. Massachusetts v. Environmental Protection Agency549 U.S. 497 (2007).

101Id. at 523.

102. City of Los Angeles v. Lyons, 461 U.S. 95 (1983).

103. While Lyons and its progeny do not bar damage claims, those claims frequently are of only uncertain value. Individual defendants assert the defense of qualified immunity, state agencies assert immunity under the Eleventh Amendment, and local governmental bodies assert that the challenged action is not attributable to the governmental body. See generally the discussion of immunities and municipal liability in Chapter 8 of this MANUAL.

104. Lujan v. Defenders of Wildlife, 504 U.S. 555, 568-71  (1992).

105. Steel Company v. Citizens for a Better Environment, 523 U.S. 83 (1998).

106. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). Again, caution is warranted because the apparently unique standing analysis applicable when states are plaintiffs.

107. Id. at 546.

108. Id.

109. With regard to redressability, the Court rejected the notion that plaintiffs lacked standing to seek a civil money penalty simply because the penalty was to be paid to the government rather than to them. The Court deferred to Congress’ judgment that civil penalties deter unlawful conduct. Because civil penalties were seen as "likely" to discourage violators from continuing their misconduct and deter future violations, plaintiffs would achieve redress even though they would not pocket the money.

110. Pierce, supra note 73, §16.7; see also Federal Election Commission v. Akins, 524 U.S. 11 (1998); Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982); and Trafficante v. Metropolitan Life Insurance Company, 409 U.S. 205 (1975) discussed infra.

111. Vermont Agency of Natural Resources v. United States, 529 U.S. 765, 773 (2000).

112. Pierce, supra note 82, §16.7.  This may explain cases like Warth v. Seldin, 422 U.S. 490 (1975), Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976); Linda R.S. v. Richard D., 410 U.S. 614 (1973), and certain taxpayer standing cases.

113. Clapper, 133 S. Ct. 1138.

114. Hunt v. Washington Apple Advertising Commission, 432 U.S. 333 (1977).

115. Id. at 343; see also Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 181 (2000) (association successfully demonstrates standing of members through declarations).

116. United Food and Commercial Workers v. Brown Group, 517 U.S. 544, 556-57 (1996) (holding that the prong “may guard against the hazard of litigating a case to the damages stage only to find plaintiff lacking detailed records or the evidence necessary to show the harm with sufficient specificity. And it may hedge against any risk that the damages recovered by the association will fail to find their way into the pockets of the members on whose behalf injury is claimed”).

117. See, e.g., Northeastern Florida Chapter of the Associated General Contractors v. City of Jacksonville, 508 U.S. 656, 666 (1993) (injury-in-fact requirement in equal protection case does not require plaintiff to prove that she would have obtained benefit in absence of challenged barrier).

118. United Food and Commercial Workers, 517 U.S. at 555; ACLU of Ohio Foundation v. Ashbrook, 375 F.3d 484, 489-90 (6th Cir. 2004) (identifying single member who appeared in a courthouse to challenge display there on Establishment Clause grounds); Consumer Federation of America v. Federal Communications Commission, 348 F.3d 1009, 1011-12 (D.C. Cir. 2003). Examples of a case in which a plaintiff could have identified an injured member, but failed to so are Disability Rights Wisconsin v. Walworth County Board of Supervisors, 522 F.3d 796, 802-03 (7th Cir. 2008) and National Alliance for the Mentally Ill v. Board of County Commissioners, 376 F.3d 1292, 1296 (11th Cir. 2004).

119. Earth Island Institute, 555 U.S. at 497-98.

120. Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 342 (1977).

121. Id. at 345.

122. Gettman v. Drug Enforcement Administration, 290 F.3d 430, 435 (D.C. Cir. 2002); Fund Democracy, LLC v. S.E.C., 278 F.3d 21, 26 (D.C. Cir. 2002).

123. In Hunt, a state agency whose members were voted on by apple growers was found to have standing. Hunt, 432 U.S. at 344. Even though not a membership entity, the agency served the interests of a definable group of people, possessed “indicia” of membership organizations, and had a financial nexus with its constituents. See also Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1110 (9th Cir. 2003) (federally authorized protection and advocacy organization would have standing to sue on behalf of disabled constituents as an association, despite not having membership, if one constituent had standing); Doe v. Stincer, 175 F.3d 879, 885 (11th Cir. 1999) (same).

124. Gettman, 290 F.3d at 435 (magazine with readership lacks associational standing); Fund Democracy, 278 F.3d  at 26 (one-person business that represents an informal consortium of groups lacks standing); Association for Retarded Citizens of Dallas v. Dallas County Mental Health and Mental Retardation Board of Trustees, 19 F.3d 241 (5th Cir. 1994) (public interest advocacy group lacks standing based solely on resources directed toward representing disabled persons in response to actions of another party).

125. See, e.g., Ranchers Cattlemen Action Legal Fund v. U.S. Department of Agriculture, 415 F.3d 1078, 1103-1104 (9th Cir. 2005) (nonprofit association representing cattle producers on international trade and market issues does not have standing to bring National Environmental Policy Act claims).

126. Humane Society of the United States v. Hodel, 840 F.2d 45, 58 (D.C. Cir. 1988). See Building and Construction Trades Council of Buffalo v. Downtown Development, Incorporated, 448 F.3d 138, 146-49 (2d Cir. 2006).

127. Pennell v. City of San Jose, 485 U.S. 1, 7 (1988); International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America v. Brock, 477 U.S. 274 (1986); Hospital Council of Western Pennsylvania  v. City of Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991).

128. Borrero v. United HealthCare of New York, Incorporated, 610 F.3d 1296, 1306 (11th Cir. 2010); Pharmaceutical Care Management Association v. Rowe, 429 F.3d 294, 310-311 (1st Cir. 2005); Pennsylvania Psychiatric Society v. Green Spring Health Services, Incorporated, 280 F.3d 278, 283-87 (3d Cir.), cert. denied, 537 U.S. 881 (2002); Retired Chicago Police Association v. City of Chicago, 7 F.3d. 584, 603 (7th Cir. 1993); Hospital Council, 949 F.2d at 89.

129. Retired Chicago Police Association, 7 F.3d at 603-07 (surveying circuit split); see also National B. Edmonds, Comment, Associational Standing for Organizations with Internal Conflicts of Interest, 69 U. CHI. L. REV. 351 (2002).

130. United Food and Commercial Workers v. Brown Group, 517 U.S. 544, 554-59 (1996).

131. See Warth v. Seldin, 422 U.S. 490, 515 (1975); Bano v. Union Carbide Corporation, 361 F.3d 696, 714 (2d Cir. 2004) (noting that no Supreme Court or circuit court case has approved of representational standing in cases seeking monetary relief, Indian organizations lack standing to bring damage claims for Bhopal-related injuries on behalf of members).

132. International Union, United Automobile, Aerospace, and Agricultural Implement Workers, 477 U.S. at 274.

133. Id. at 289.

134. Id.

135. Legal Services Corporation (LSC) restrictions permit the representation of groups, corporations, and associations which meet financial eligibility requirements.  45 C.F.R. § 1611.6(a) .

136. That injury can be one defined by Congress. For example, in Addiction Specialists v. Township of Hampton, 411 F.3d 399, 405-07 (3d Cir. 2005), a methadone clinic had standing to pursue American with Disabilities Act and Rehabilitation Act claims for injunctive and compensatory relief based on its association with its clients. See also Innovative Health Systems, Incorporated v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997).

137. Representative and organizational standing must be distinguished. See Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 639, 649 (2d Cir. 1998) (group had standing because of economic harm to the organization, but organization did not have representative standing to seek damages for individual members).

138. This economic harm may take the form of expenditures that would not be required but for the challenged action. See Fair Housing Council v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012); Mid-Hudson Catskill Rural Migrant Ministry, Incorporated v. Fine Host Corporation, 418 F.3d 168, 174-75 (2d Cir. 2005); Smith v. Pacific Properties and Development Corporation, 358 F.3d 1097, 1105-06 (9th Cir. 2004) (reversing dismissal of complaint by advocacy group for the disabled which alleged that it diverted resources to monitor and publicize alleged discrimination), cert. denied, 543 U.S. 869 (2004).

139. See, e.g., NAACP v. Alabama, 357 U.S. 449, 459-60 (1958); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 157-59 (1951) (Frankfurter, J., Douglas, J., and Burton, J., concurring); M.O.C.H.A. Society v. City of Buffalo, 199 F. Supp. 2d 40, 46 (W.D.N.Y. 2002) (finding associational standing based on loss of membership); Wyoming Timber Industry Association v. U.S. Forest Service, 80 F. Supp. 2d 1245, 1253 (D. Wyo. 2000) (validating organizational standing based on economic harm to a trade association); but see Minnesota Federation of Teachers v. Randall, 891 F.2d 1354, 1359 (8th Cir. 1989) (holding that fear of potential loss of union membership is insufficient to confer organizational standing).

140. See Friends of Animals v. Salazar, 626 F.Supp.2d 102, 111-13 (D.D.C. 2009).

141. Membership rolls, for example, may be discoverable depending on whether “good cause” exists for a protective order pursuant to Federal Rule of Civil Procedure 26(c). See generally Courier-Journal v. Marshall, 828 F.2d 361, 364-67 (6th Cir. 1987) (affirming the district court’s use of discretion in fashioning a protective order that recognizes the associational rights of nonparty members of the Ku Klux Klan).

142. Failure to cite to such record evidence in the district court waives the assertion of organizational standing on appeal. National Alliance for the Mentally Ill v. Board of County Commissioners, 376 F.3d 12192, 1295-96 (2004).

143. But see American Canoe Association v. City of Louisa Water and Sewer Commission, 389 F.3d 536 (6th Cir. 2004) (organizations have standing to challenge failure to comply with the reporting and monitoring that the Clean Water Act requires because lack of such information impaired organizations’ missions to monitor and report on environmental issues).

144. See Havens Realty Corporation v. Coleman, 455 U.S. 363, 372-80 (1982) (organization dedicated to open housing has standing to challenge realty company’s discriminatory practices because they injured the group’s ability to advance its purposes and caused a diversion of resources responding to complaints about the company).

145. See Elk Grove Unified School District v. Newdow, 542 U.S. 1, 11-12 (2004) (invoking principles of prudential limitations to reject standing of father to challenge constitutionality of the Pledge of Allegiance on behalf of his daughter when his right to do so was clouded by unsettled issues of state family law). Compare Windsor, 133 S. Ct. at 2686-89 (holding that prudential considerations did not persuade Court's consideration of constitutionality of DOMA when intervenor presented adversarial argument and interests of thousands of people were at issue).

146. Association of Data Processing Service Organizations, Incorporated v. Camp, 397 U.S. 150 (1970).

147Bennett v. Spear, 520 U.S. 154, 162 (1997).

148. Warth v. Seldin, 422 U.S. 490, 498 (1975).

149. Congress must do so explicitly, such as through enactment of a citizen-suit provision. See, e.g., Bennett, 520 U.S. at 164 n.2.

150. Administrative Procedure Act, 5 U.S.C. § 702.

151.  Bennett, 520 U.S. at 163. See, e.g. Thinket Ink Information Resources, Incorporated v. Sun Microsystems, Incorporated, 368 F.3d 1053 (9th Cir. 2004) (minority-owned business falls within zone of interests of 42 U.S.C. § 1981 if it suffers racial discrimination or has an imputed racial identity).

152. Block v. Community Nutrition Institute, 467 U.S. 340 (1984).

153. The Block Court unanimously held that consumers of milk lacked standing to challenge milk marketing orders because there was evidence of congressional intent to deny consumers a right to obtain judicial review of such orders. Id. at 347-48.

154. Id. at 351.

155. Clarke v. Security Industry Association, 479 U.S. 388, 399-400 (1987).

156. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchuk, 132 S. Ct. 2199, 2210-12 (2012).

157. National Credit Union Administration v. First National Bank and Trust Company, 522 U.S. 479 (1998).

158.  Air Courier Conference v. American Postal Workers Union, 498 U.S. 517, 524-25 (1991).

159. The Supreme Court recently distinguished third-party standing cases from cases in which an assignee of a legal claim files suit. In such actions, the assignee asserts their own legal rights, not those of another, even when the assignee has promised to repay the assignor money recovered in the litigation. Sprint Communications v. APCC Services, 128 S. Ct. 2531 (2008).

160. See United Food and Commercial Workers Union v. Brown Group, 517 U.S. 544, 557 (1996).

161. See Singleton v. Wulff, 428 U.S. 106, 114-15 (1976); Erwin Chemerinsky, Federal Jurisdiction 84-91 (5th ed. 2007).

162. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (attorneys lack standing to challenge state process for appointing appellate counsel for indigent defendants who plead guilty).

163. Powers v. Ohio, 499 U.S. 400, 411 (1991) (citations omitted); see Kowalski, 125 S. Ct. at 567.

164.  See Singleton, 428 U.S. at 119 (doctor suffers loss of Medicaid reimbursement income).

165.  See Powers, 499 U.S. at 411 (discriminatory use of peremptory challenges harms criminal defendant).

166. U.S. Department of Labor v. Triplett, 494 U.S. 715, 720-21 (1990). In its most recent third-party standing case, the Supreme Court held that criminal defense attorneys did not have third-party standing to assert claims of future clients. Kowalski, 543 U.S. at 130-31.  

167. Triplett, 494 U.S. at 720. This principle might have been applied in Kowalski, but was not.

168. Craig v. Boren, 429 U.S. 190 (1976).

169. Id. at 195. Craig’s sweep is potentially quite broad. The articulated justification for the decision admits of no logical limit, and how the third prong, discussed infra, was satisfied is difficult to see. The Supreme Court observed that the law banned the sale, not the consumption, of 3.2 percent beer, but this hardly seems a substantial barrier blocking young men from challenging the statute.

170. Virginia v. American Booksellers Association, 484 U.S. 383, 392 (1988).

171. Carey v. Population Services International, 431 U.S. 678, 682-83 (1977); Eisenstadt v. Baird, 405 U.S. 438, 443 (1972); but see Tileston v. Ullman, 318 U.S. 44, 45-46 (1943) (denying standing of doctor to challenge laws prohibiting use of contraceptives on behalf of patients).

172. Powers v. Ohio, 499 U.S. 400 (1991).

173. Id. at 411-12.

174. Id. at 413.

175. Id. at 413-14.

176. Id. at 415.

177. Edmonson v. Leesville Concrete Company, 500 U.S. 614, 629 (1991).

178. Campbell v. Louisiana, 523 U.S. 392, 397-98 (1998).

179. Barrows v. Jackson, 346 U.S. 249 (1953).

180. Eisenstadt v. Baird, 405 U.S. 438 (1972).

181. Id. at 446.

182. Kowalski v. Tesmer, 543 U.S. 125, 131-32 (2004). Such a defendant subsequently did so successfully. Halbert v. Michigan, 545 U.S. 605 (2005) (due process and equal protection clauses require appointment of counsel for defendants convicted on guilty pleas in applying for leave to appeal in intermediate court).

183. Miller v Albright, 523 U.S. 420 (1998).

184. Id. at 451 n.1; see also Kowalski, 543 U.S. at 134-36 (Thomas, J., concurring).

185. Secretary of State v. Joseph H. Munson Company , 467 U.S. 947 (1984).

186. Anyone who has suffered injury is unlikely to be unable to frame the issues adequately. Thus, the only real requirement is the irreducible minimum requirement of injury in fact.

187. City of Houston v. Hill, 482 U.S. 451, 459 (1987) (quoting Steffel v. Thompson, 415 U.S. 452, 475 (1974)). Thus, in Hill, an individual who had been arrested four times but never convicted under an ordinance prohibiting interference with a police officer had standing to seek to enjoin future enforcement on the ground of overbreadth.

Updated 2015 by Jeffrey S. Gutman

3.2 Ripeness

Updated 2012 by Jeffrey S. Gutman

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. Ripeness doctrine intersects with several related doctrines. In cases involving a challenge to government action, ripeness is closely related to exhaustion of administrative remedies and the Administrative Procedure Act requirement of a final agency action. In these and other contexts, aspects of the "injury in fact" prong of standing analysis overlap 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./1/ As a result, such cases may be decided either on standing or ripeness grounds./2/ 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./3/ So understood, it is easy to explain why many ripeness cases deal with pre-enforcement review of civil or criminal statutes or regulations./4/

Ripeness doctrine involves both constitutional and prudential limitations./5/ The Second Circuit explained the distinction as follows:

Constitutional ripeness is a doctrine that, like standing, is a limitation on the power of the judiciary. It prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it. But when a court declares that a case is not prudentially ripe, it means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay. It does not mean that the case is not a real or concrete dispute affecting cognizable current concerns of the parties within the meaning of Article III. . . .  But that, and its degree, is just one - albeit important - factor the court must consider. Prudential ripeness is, then, a tool that courts may use to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may require premature examination of, especially, constitutional issues that time may make easier or less controversial./6/

In general, the Supreme Court has held that ripeness requires a two-part inquiry. First, in cases involving pre-enforcement review of agency regulations, the Court initially employed a presumption in favor of review which would be overcome by clear and convincing legislative intent to preclude it./7/ Second, in the absence of such preclusion and in cases that do not involve challenges to government action, ripeness turns on two considerations: the fitness of the issues for determination and the hardship to the parties if the court withholds review./8/ The Second Circuit has held that each consideration is relevant to both the constitutional and prudential aspects of ripeness./9/ In contrast, the First Circuit has held that the first consideration is grounded in constitutional and prudential limitations, while the second is solely prudential in nature./10/ There is support for the notion that the factors should be considered on a sliding scale, a strong showing with respect to one can compensate for a weak showing on the other./11/

The Supreme Court’s most recent case on ripeness, National Park Hospitality Association v. Department of the Interior, illustrates an application of both inquiries./12/ In that case, a trade association representing concessioners in national parks challenged a federal regulation 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 Contract Disputes Act did not impose any duties or obligations on the concessioners, cause any change in their behavior or even prohibit them from resorting to the Contract Disputes Act./13/ The uncertainty over the applicability of the Contract Disputes Act, which affected the concessioners' willingness to bid on contracts, was not sufficient hardship./14/ Second, the Court held that, although the issue was purely a legal one, the applicability of the Contract Disputes Act may depend on the type of contract at issue, suggesting that review should wait until there was a concrete dispute over a specific contract./15/

3.2.A. 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./16/ 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./17/ The Court noted that the record was “extraordinarily skimpy” and offered insufficient evidence of the effect of the law on plaintiff’s efforts./18/ In these cases, it is wise to develop in advance of filing as detailed a factual record as possible so that declarations can be offered in response to a motion to dismiss on ripeness grounds.

3.2.B. 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./19/ In such cases, the plaintiff need not wait until a prosecution for challenging the law as a defense. The Court has found there to be hardship warranting review where a plaintiff is faced with foregoing arguably constitutional conduct or facing prosecution./20/ The question in these pre-enforcement review cases generally turns on the degree of certainty that the affected party intends to act imminently to violate a challenged law and the certainty of prosecution if it does./21/ The certainty of enforcement is informed by whether prosecuting authorities have warned of enforcement, disclaimed enforcement or have a history of enforcement.  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.

3.2.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./22/ Second, in Thunder Basin Coal Company 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./23/

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1. Bova v. City of Medford, 564 F.3d 1093, 1095 (9th Cir. 2009); Airline Professionals Association of the Brotherhood of Teamsters v. Airborne, 332 F.3d 983, 987 (6th Cir. 2003). The Court has held that "[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." Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agricultural Products Company, 473 U.S. 568, 580-81 (1985) (internal quotation marks omitted)).

2. See, e.g., MedImmune, Incorporated v. Genentech, Incorporated, 549 U.S. 118, 127 n. 8 (2007); O’Shea v. Littleton, 414 U.S. 488 (1974) (decided on standing grounds).

3. See Abbott Laboratories 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.”).

4. 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 Insurance Company v. Haworth, 300 U.S. 227 (1937). At the same time, some pre-enforcement review cases are analyzed in terms of standing, rather than ripeness.  See, e.g., Ord v. District of Columbia, 587 F.3d 1136 (D.C. 2009).

5. Reno v. Catholic Social Services, Incorporated, 509 U.S. 45, 58 n.18 (1993).

6. Simmonds v. Immigration and Naturalization Service, 326 F.3d 351, 357 (2d Cir. 2003).

7. Abbott Laboratories, 387 U.S. at 142. That approach was modified in Thunder Basin Coal Company v. Reich, 510 U.S. 200 (1994) in which the Court found implied intent to preclude pre-enforcement review in a statute's provision for administrative review of adverse agency action.

8. Abbott Laboratories, 387 U.S. at 149; Devia v. Nuclear Regulatory Commission, 492 F.3d 421, 423-25 (D.C. Cir. 2007). 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 or unripe, see Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979). 

9. Simmonds, 326 F.3d at 359. See also New York Civil Liberties Union v. Grandeau, 528 F.3d 122 (2d Cir. 2008) (Sotomayor, J.) (finding constitutionally ripe claim prudentially unripe for review).

10. McInnis-Misenor v. Maine Medical Center, 319 F.3d 63, 70 (1st Cir. 2003) (both prongs must be satisfied). The D.C. Circuit takes a slightly different approach. If there are no institutional interests favoring postponement of review, the party seeking immediate review need not show hardship.  AT&T. v. Federal Communication Commission, 349 F.3d 692, 299 (D.C. Cir. 2003).

11. McInnis-Misenor, 319 F.3d at 70.

12National Park Hospitality Association. v. Department of the Interior, 538 U.S. 803 (2003).

13. Id. at 809-10.

14. Id. at 811.

15. Id. at 812.

16. Compare Ruckleshaus v. Monsanto, 467 U.S. 986 (1984) (takings claim not ripe because of insufficient factual development) with Thomas v. Union Carbide Agricultural Products Company, 473 U.S. 568 (1985) (claim that Article III prohibited Congress from selecting binding arbitration as a means for resolving disputes in the Federal Insecticide, Fungicide, and Rodenticide Act's registration scheme was ripe because it was purely legal). See also National Association of Home Builders v. U.S. Army Corps of Engineers, 417 F.3d 1272, 1281-82 (D.C. Cir. 2005) (claim that agency action was arbitrary and capricious presented issues of law that were presumptively reviewable); 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).

17. Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972).

18. Id. at 587-88.

19. Compare Abbott Laboratories, 387 U.S. at 152-53 with Toilet Goods Association v. Gardner, 387 U.S. 158, 165 (1967). See also Center. for Biological Diversity v. Kempthorne, 588 F.3d 701, 709 (9th Cir. 2009) (environmental threat is hardship to environmental organization); Kreschollek v. Southern Stevedoring Company, 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); 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).  

20. 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 Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973) (challenge to Hatch Act); see also  (challenge to state statute criminalizing use of certain public records was ripe when association abandoned a specific plan to use them).

21. Compare Regional Rail Reorganization Cases, 419 U.S. 102 (1974) (challenged reconveyances of rail property was not imminent, but was inevitable) with Reno v. Catholic Social Services, Incorporated, 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 Immigration and Naturalization Service 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 Stormans, Incorporated v. Selecky, 586 F.3d 1109, 1122-25 (9th Cir. 2009); Rhode Island Association of Realtors, Incorporated v. Whitehouse, 199 F.3d 26 (1st Cir. 1999).

22. Reno v. Catholic Social Services, Incorporated, 509 U.S. 43 (1993).

23. Thunder Basin Coal Company. v. Reich, 510 U.S. 200 (1994); National Taxpayers Union v. Social Security Administration, 376 F.3d 239 (4th Cir. 2004); see also Shalala v. Illinois Council on Long Term Care, 529 U.S. 1 (2000).

Updated 2012 by Jeffrey S. Gutman

3.3 Mootness

Updated 2015 by Jeffrey S. Gutman

Both the law of standing and the law of mootness derive from Article III’s requirement that the judicial power of the United States extends only to cases and controversies./1/ While the law of standing involves whether the plaintiff had suffered or is threatened with injury in fact at the time of the filing of the complaint, the law of mootness inquires whether events subsequent to the filing of suit have eliminated the controversy between the parties. Generally, the burden of showing standing rests with the plaintiff, while the burden of demonstrating mootness lies with the defendant./2/ Like standing, because mootness implicates the court’s jurisdiction, it can be raised at any time and cannot be resolved by stipulation./3/ Moreover, counsel for the plaintiff has a duty to bring to the court’s attention facts which may raise an issue of mootness./4/ Advocates can expect to encounter mootness issues in light of the Supreme Court’s decision in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, because governmental defendants often try to moot out cases in order to avoid paying attorney fees./5/

3.3.A. Considering Mootness

Mootness issues can arise in cases in which the plaintiff challenges actions or policies which are temporary in nature, in which factual developments after the suit is filed resolve the harm alleged, and in which claims have been settled.

Generally, a case is not moot so long as the plaintiff continues to have an injury for which the court can award relief, even if entitlement to the primary relief has been mooted and what remains is small./6/ Put differently, the presence of a “collateral” injury is an exception to mootness./7/ As a result, distinguishing claims for injunctive relief from claims for damages is important. Because damage claims seek compensation for past harm, they cannot become moot./8/ Short of paying plaintiff the damages sought, a defendant can do little to moot a damage claim. The virtual impossibility that unpaid damage claims can become moot gives rise to a technique for avoiding mootness: plead a claim for damages if the claim has a reasonable basis./9/ Although later events may moot the claim for injunctive relief, the claim for damages presents an opportunity to determine the legality of the conduct at issue./10/ An interest in attorney fees, however, will not save a case involving nothing more from mootness./11/ Similarly, in considering mootness, it is important to distinguish between claims for different forms of injunctive relief. For example, claims for retroactive injunctive relief are not moot simply because claims for prospective relief are. The past injury has not been remedied.

In the absence of a claim for damages, a suggestion of mootness should not trigger a reflexive response in opposition to dismissal./12/ Before investing substantial time and resources in an attempt to resuscitate an apparently moot claim, consider carefully whether any benefit is to be gained. Some cases are truly moot when no present consequences are traceable to the challenged conduct, and, for whatever reason, the conduct is unlikely ever to recur./13/ In such cases, resisting dismissal without prejudice on the ground of mootness makes no sense. The suggestion of mootness should be an occasion to reevaluate both the factual and legal merits of a lawsuit. While the natural reaction during litigation is to resist, there are times when it is better to fight another day with a different plaintiff.

If such a fight is appropriate, it will likely be over whether one of the well-established exceptions to mootness applies or how the exception may apply in the class action context. We, therefore, focus upon three issues: When does the voluntary cessation of unlawful conduct render a case moot? When does the termination of an injury “capable of repetition yet evading review” render a case moot? How are mootness principles applied in class actions?

3.3.B. Exceptions to Mootness

The Court has considered three principal exceptions to the mootness doctrine.

3.3.B.1. Voluntary Cessation of Unlawful Conduct

A defendant may not moot a claim for injunctive relief simply by ceasing the unlawful conduct. A contrary rule would encourage the resumption of unlawful conduct following the dismissal of litigation. In United States v. W.T. Grant Company, the Supreme Court held that the voluntary cessation of illegal conduct would moot a case only if the defendant established that “there is no reasonable expectation that the wrong will be repeated.”/14/ Unless the defendant meets that “heavy” burden, the court has the power to hear the case and the discretion to grant injunctive relief./15/

Two recent cases illustrate the relative difficulty in persuading a court to dismiss a case on mootness grounds on the basis of voluntary cessation. In Friends of the Earth v. Laidlaw Environmental Services, the Court held that a claim for civil penalties intended to deter a polluter from exceeding discharge limits in a permit was not necessarily moot, even when the facility at issue had closed, because the defendant retained the permit./16/ In City of Erie v. Pop’s A.M., the Court rejected the suggestion of mootness filed by a prevailing plaintiff in a challenge to city restrictions on adult dancing establishments./17/ Notwithstanding that the club had closed, the Court noted the city’s continued stake in wishing to enforce the statute enjoined by the lower courts and the possibility that the plaintiff would reopen a new club./18/

Mootness, then, requires a sensitive fact-based prediction of the probability of recurrence, an analysis of the plaintiff’s continued need for relief,/19/ the defendant’s representations of future intent, and the public interest in resolution of the dispute. The burden of demonstrating mootness rests on the defendant, and the essential inquiry is the genuineness of the defendant’s claim of self-correction./20/ At the same time, the plaintiff should be prepared to explain why, as a prudential matter, the court should issue declaratory and injunctive relief despite the defendant’s representations./21/ When, as in City of Erie, the claim implicates public rather than private interests, a reduced risk of recurrence is sufficient to avoid mootness./22/

With respect to suits against governmental entities, mootness issues arise when the relevant agency or official declares in some way that it will no longer follow the challenged policy or when superseding or amending legislation is enacted. Courts generally look favorably on assertions of discontinuance by public officials./23/ However, if the assertion of discontinuance is not complete or permanent, the suggestion of mootness is likely to be denied./24/ Moreover, the defendant who discontinues the challenged conduct while proclaiming its legality is particularly unlikely to succeed in mooting a case./25/

Public officials routinely discontinue challenged conduct in response to changes in legislative and administrative provisions governing that conduct. The voluntary cessation of illegal conduct because of the enactment of superseding or repealing legislation ordinarily moots a claim for injunctive relief unless there is a “substantial likelihood” that the statute will be reenacted./26/ There is little risk of recurrence absent further legislation. If, however, the prior statute remains enforceable, challenged implementing regulations remain in effect, or the statutory amendment does not fully resolve the plaintiff’s claim, the case is not moot./27/ For example, in City of Mesquite v. Aladdin’s Castle Incorporated, the Court held that repeal of a challenged ordinance did not moot the claim for injunctive relief given the city’s stated intention to reenact the ordinance should the suit be dismissed./28/ From an advocacy perspective, establishing the defendant’s belief in the legality of the conduct at issue early in the litigation is, therefore, useful. Probing in discovery facts relevant to the possibility of resumption of the challenged policy is also advisable. Courts frequently reject suggestions of mootness when the defendant fails to offer some assurance that the challenged policy will not be resumed./29/

3.3.B.2. Conduct Capable of Repetition Yet Evading Review

Challenges to recurrent conduct of short duration often avoid mootness under the exception for acts “capable of repetition yet evading review.” Conduct is capable of repetition but evading review when (1) the duration of the challenged action is too short to be litigated fully before the cessation or expiration of the challenged conduct, and (2) the plaintiff is reasonably expected to be subject to the same action in the future./30/ Determining whether this exception applies therefore requires an assessment of the probability of repetition or recurrence, the risk that repeated harm will be of sufficiently short duration so as to evade review and remedy, and the extent to which repetition may affect the plaintiff./31/

This branch of the mootness doctrine frequently overlaps with voluntary cessation. The choice between the two is significant because of the differing burdens. The defendant has the heavy burden of showing that voluntary cessation of unlawful conduct moots a case, while the plaintiff has the burden of showing that conduct is capable of repetition yet evading review./32/

First, actions evade review when they are “too short to be fully litigated prior to cessation or expiration.”/33/ The question is whether the action is inherently of brief duration or whether it can be reviewed in sufficient time for the plaintiff to obtain a meaningful remedy if she prevails./34/ Therefore, if circumstances suggest that a possible recurrence of challenged conduct could be litigated should it arise, courts decline to invoke the exception. Such circumstances include the possible use of motions for preliminary injunction, emergency stays, and expedited appeals. Should a plaintiff fail to attempt to avail itself of these procedural opportunities, courts are disinclined to regard the matter as evading review./35/ Advocates are, therefore, advised first to pursue these avenues for relief when appropriate.

Second, the Supreme Court has been inconsistent in its treatment of the requirement that the conduct be shown to be capable of repetition; the Court wavered between the more stringent requirement of a “demonstrated probability” and the less stringent requirement of a “reasonable expectation” of repetition./36/ In City of Los Angeles v. Lyons, a challenge to a city policy of using choke holds to subdue suspected criminals, the Court held that a generalized showing that conduct might recur was not sufficient to trigger the exception./37/ The Court stated that the “doctrine applies only in exceptional situations, and generally only in those cases in which the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.”/38/

However, in Honig v. Doe, the Court limited Lyons./39/ The Court stated that Lyons held only that the Court was “unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.”/40/ The Court held that a “reasonable expectation” of recurrence was sufficient to overcome a suggestion of mootness: “in numerous cases ... we have found controversies capable of repetition based on expectations that, while reasonable, were hardly demonstrably probable.”/41/ Such a reasonable expectation may be found in the history of the plaintiff’s relationship with the defendant./42/

Third, the plaintiff must show that he, rather than simply anyone, “will again be subjected to the alleged illegality.”/43/ Despite this restrictive language, the Court has invoked the exception in circumstances in which the probability of recurrence to the plaintiff is not obvious. Litigation involving the regulation of abortion,/44/ elections,/45/ and press access to trials/46/ has proceeded despite claims of mootness without any apparent basis for a finding of probable recurrence./47/ The public importance of the issue may explain the more relaxed approach in these narrow categories of cases./48/  At the same time, the nature of the recurrent action need not be exactly the same as the first, at least in as-applied election law cases./49/

3.3.C. Mootness and Class Actions

Class actions raise the question of whether the claims of the class become moot when the individual claims of the class representatives are moot. In litigation involving recurrent conduct of short duration, pleading a claim as a class action before the conduct terminates may offer a greater likelihood of avoiding mootness. Once certified, the case does not become moot as long as the challenged conduct threatens a member of the class. Thus, class actions shift the mootness inquiry from whether there is a reasonable likelihood that the conduct will again affect the plaintiff to whether there is a reasonable likelihood that the conduct will affect the plaintiff class.

In Sosna v. Iowa, the first significant case dealing with the issue of mootness in class action practice, plaintiff, on behalf of a class, challenged a state requirement that a petitioner for divorce reside in the state for one year prior to filing the petition./50/ By the time the case was argued before the Supreme Court, the year period had ended, the named plaintiff was divorced, and the law would not again affect the plaintiff. The Court, nevertheless, found the case not to be moot because the certified class had acquired a legal status separate from the plaintiff and there were members of the class with live claims. Sosna suggests that this doctrine applies only to cases in which the named plaintiff’s claim was of brief duration and would, therefore, otherwise evade review.

In Franks v. Bowman Transportation Company, the Court appeared to relax the Sosna rule./51/ There, the named representative of a sub-class challenging racial discrimination in employment selection was subsequently fired for cause and thus not entitled to relief. He did not, therefore, present a claim capable of repetition, yet evading review. Nonetheless, the Court held that so long as there were members of the certified class with live claims, the case was not moot./52/ The Court suggested that the Sosna requirement of claims capable of repetition, yet evading review applies with greater force in constitutional litigation where the Court has a particular duty to avoid unnecessary constitutional adjudication./53/ The Court, moreover, has not been inclined to apply Sosna and Franks in cases in which an intervening act, such as passage of corrective legislation, moots the claims not only of the named class representatives, but also of a sizeable number of the class members as well./54/

The classes in Sosna and Franks were certified before the question of mootness arose. The rules regarding mootness of uncertified classes is somewhat unsettled and seems to turn on the nature of the interests of the class representatives, the nature of act mooting the class representatives’ claims, and whether the claims are inherently transitory or capable of repetition. In U. S. Parole Commission v. Geraghty, a leading case in this area, the plaintiff sued on behalf of a class challenging parole release guidelines./55/ The district court denied certification and entered judgment for the defendants. Although the plaintiff completed his sentence while his appeal was pending, mooting his personal challenge to the guidelines, the Supreme Court held that he could, nevertheless, pursue an appeal from the final judgment on the ground that class certification was wrongly denied./56/

Geraghty specifically holds that a putative class action does not necessarily become moot when the claim of the named plaintiff expires after denial of class certification. Rather, the plaintiff in Geraghty retained a personal stake in his asserted right to represent a certified class, a stake sufficient to promote vigorous advocacy./57/ Moreover, in Deposit Guaranty National Bank v. Roper, the defendant may not moot a proposed class action prior to certification by making a full offer of judgment to the individual plaintiffs and receiving such judgment over the objections of the plaintiffs./58/ Plaintiffs retained sufficient interest to appeal the denial of class certification; otherwise, defendants could “pick off” named plaintiffs, thereby defeating the purpose of the class action device./59/

Outside the appellate context, some courts have blanketly held that mootness of the class representatives’ claims before class certification moots the case because there is no certified class to have an identity apart from the proposed class representatives./60/ Yet, there are two recognized exceptions to this general principle./61/ First, as described above, the class representative may argue that the challenged conduct is capable of being repeated as to her. Second, she may assert that others will be affected by the inherently transitory conduct. Geraghty recognized that “[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” In such cases, certification can relate back to the filing of the complaint./62/ To establish that a class should nevertheless be certified, the plaintiff should show that the transitory nature of the claim is such that it will inevitably expire before a class can be certified and that there is a constant group of people affected by the challenged policy./63/ The plaintiff should also show reasonable diligence in filing the complaint and seeking class certification./64/ Such diligence may be demonstrated by filing a motion for class certification with the complaint and proceeding with class discovery promptly./65/

Geraghty is not a foolproof defense to mootness. The Court left district courts with considerable discretion in matters of class certification. Should a trial court dismiss before ruling on certification, Geraghty allows appeal on the question of class certification, not the merits. As a matter of practice, in certain cases the advocate may wish to consider avoiding the mootness issue by moving to amend the complaint to add claims of “live” representative plaintiffs./66/ Whether this is possible may turn on the nature and duration of the claim at issue. Doing so requires the advocate to be vigilant in continuing to identify such plaintiffs following the commencement of litigation. Choosing not to name identified class representatives in a complaint in order to hold them in “reserve” for this purpose may raise difficult ethical issues and should not be undertaken without exploration of these issues. In any event, it is wise to move for class certification simultaneously with filing the complaint, or as shortly thereafter as is possible, particularly in cases of inherently short duration.

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1. See Friends of the Earth v. Laidlaw Environmental Services, Incorporated, 528 U.S. 167, 180 (2000).

2. Id. at 190.

3. Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.23 (1997).

4. Id.

5. Buckhannon Board and Care Home, Incorporated v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 608-10 (2001), discussed in Chapter 9 of this MANUAL. See also Gill Deford, The Prevailing Winds After Buckhannon, 36 Clearinghouse Rev. 313 (Sept.-Oct. 2002).

6. In Chafin v. Chafin, 133 S. Ct. 1017 (2013), the Supreme Court discussed mootness at length in a complex child abduction case and held that the dispute between the parents was not moot because issues regarding the custody of the child remained unresolved. The Court noted that the prospects of success of the suit were irrelevant to the mootness question, and uncertainty about the effectiveness and enforceability of any future order did not moot the case. Chafin, 133 S. Ct. at 1024-26. A case is moot, however, when the court cannot give any “effectual” relief to the party seeking it. See Knox v. Service Employees International Union, Local 1000, 132 S. Ct. 2277, 2287 (2012); Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992); Firefighter’s Local 1784 v. Stotts, 467 U.S. 561, 571 (1984); see also Tory v. Cochran, 544 U.S. 734, 736-37 (2005) (death of attorney Johnnie Cochran did not moot injunction enjoining plaintiff from defaming Cochran). A case can, of course, become moot when the plaintiff has abandoned their claims, but such abandonment must be unequivocal. Pacific Bell Telephone Company v. Linkline Communications, 555 U.S. 438, 446 (2009).

7. See, e.g., In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005).

8. Board of Pardons v. Allen, 482 U.S. 369, 370 n.1 (1987), illustrates the use of a damage claim to avoid mootness. Prisoners who were denied parole without a statement of reasons challenged the denial. They claimed that the state statute mandating release under certain circumstances created a liberty interest in eligibility for parole protected by the Fourteenth Amendment. Plaintiffs sought damages as well as declaratory and injunctive relief. Although plaintiffs were later released, mooting their individual claims for injunctive relief, their damage claims remained alive. Because the immunity of defendants was not settled, the Supreme Court reached the merits, holding that plaintiffs had a cognizable liberty interest in the processing of their parole applications. The Court remanded the case for further proceedings. See also City of Richmond v. J.A. Croson Company, 488 U.S. 469, 478 n.l (1989). An inability to pay a damages judgment at present does not moot a claim. See United States v. Behrman, 235 F.3d 1049, 1053 (7th Cir. 2000). However, if the judgment seemingly could never be paid, a claim might be dismissed on prudential grounds. See, e.g., Federal Deposit Insurance Corporation v. Kooyomjian, 220 F.3d 10, 14-15 (1st Cir. 2000).

9. See Alvarez v. Smith, 558 U.S. 87, 130 S. Ct. 576, 580 (2009) (finding case seeking declaratory and injunctive relief moot when case was settled, noting that no request for damages was pled in the complaint). One approach to avoiding mootness in due process and other cases is to request nominal damages. Carey v Piphus, 435 U.S. 247, 254 (1978); see Morgan v. Plano Independent School District, 589 F.3d 740, 748 n.31 (5th Cir. 2009) (collecting cases); Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002) (“A live claim for nominal damages will prevent dismissal for mootness.”); Davis v District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998) (“The violation of certain constitutional rights, characterized by the Supreme Court as ‘absolute,’ will support a claim for nominal damages without any showing of actual injury.”); Hotel and Restaurant Employees Union Local 25 v. Smith, 846 F.2d 1499, 1503 (D.C. Cir. 1988); Beyah v. Coughlin, 789 F.2d 986, 988-89 (2d Cir. 1986); see also O’Connor v. Washburn University, 416 F.3d 1216, 1222 (10th Cir. 2005) (Establishment Clause claim); Blau v. Fort Thomas Public School District, 401 F.3d 381, 387 (6th Cir. 2005); (First Amendment claim); Utah Animal Rights Coalition. v. Salt Lake City Corporation, 371 F.3d 1248, 1257 (10th Cir. 2004) (First Amendment claim). But see Lister v. Lucey, 575 F.2d 1325, 1336 (7th Cir. 1978).

10. The use of damage claims to avoid mootness has limits. States and their agencies are immune under the Eleventh Amendment; those who act in a judicial capacity enjoy absolute immunity, and other officials enjoy qualified immunity. See Chapter 8 of this MANUAL. The assertion of a damage claim against a defendant who clearly enjoys immunity does not save a claim for injunctive relief from mootness. See Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009). Before embarking on a damage claim of questionable validity, the attorney should consider Federal Rule of Civil Procedure 11. See Chapter 4.2 of this MANUAL.

11. See Lewis v. Continental Bank Corporation, 494 U.S. 472, 480 (1990); Cornucopia Institute v. U.S. Department of Agriculture, 560 F.3d 673, 676 (7th Cir. 2009); Spirit of the Sage Council v. Norton, 411 F.3d 225, 229 (D.C. Cir. 2005).

12. A request for a declaratory judgment does not alone save a case from mootness when claims for injunctive relief are moot. Green v. Mansour, 474 U.S. 64, 67-72 (1985); Cornucopia Institute, 560 F.3d at 676 (finding request for declaratory relief moot when documents sought under the Freedom of Information Act were released); but see Super Tire Engineering Company v. McCorkle, 416 U.S. 115, 122-23 (1974) (finding request for declaratory judgment in labor case not moot after the end of strike mooted claim for injunctive relief). Generally, the mootness inquiry is not diminished in declaratory judgment actions. Gator.com Corp. v. L.L. Bean Incorporated, 398 F.3d 1125, 1129 (9th Cir. 2005).

13. Litigation challenging discontinued practices or policies that continue to produce collateral harm is not moot. See, e.g., Reno v. Bossier Parish School Board, 528 U.S. 320, 327 (2000) (challenge to redistricting plan following election is not moot because prior plan represents a baseline for evaluating future challenges); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 568-72 (1984) (city’s challenge to injunction prohibiting layoffs based on seniority system not mooted by recall of laid-off employees when injunction would require city to ignore seniority rights in future layoffs and would affect its ability to recruit new employees by precluding it from offering the protection of layoff by seniority); Jago v. Van Curen, 454 U.S. 14, 21 n.3 (1981) (challenge to procedures leading to rescission of forthcoming parole not mooted by later release on parole when later release subject to restrictions not contemplated by original grant of parole); Youakim v. Miller, 425 U.S. 231, 236 n.2 (1976) (challenge to reduction in benefits for foster children related to foster parents not mooted by increase in benefits when effect is to discourage acceptance of other family members awaiting placement); Super Tire Engineering Company v McCorkle, 416 U.S. 115, 127 (1974) (challenge to rule denying Aid to Families with Dependent Children benefits to strikers not mooted by settlement of strike when rule affects every labor dispute and collective bargaining agreement).

14. United States v. W.T. Grant Company, 345 U.S. 629, 633 (1953); see also Friends of the Earth v. Laidlaw Environmental Services, Incorporated, 528 U.S. 167, 189, 193 (2000) (quoting and citing United States v. Concentrate Phosphate Export Association, 393 U.S. 199, 203 (1968)) (“A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”); Adarand Constructors v. Slater, 528 U.S. 216, 222 (2000) (burden of showing non-recurrence lies with party asserting mootness).

15. A different issue arises when a third party voluntarily discontinues conduct that is the focus of the litigation. In Iron Arrow Honor Society v. Heckler, 464 U.S. 67 (1983), the secretary of the U.S. Department of Health, Education, and Welfare informed the University of Miami that the university had violated Title IX by permitting a student organization that barred women from membership to conduct its initiation ceremony on campus. The organization sued the secretary to enjoin further enforcement of the interpretation of Title IX. During the litigation, the university informed the organization that, irrespective of the outcome of the litigation, the organization would not be permitted to return to campus until the organization stopped discriminating. Because the university’s action effectively superseded the secretary’s action, the Supreme Court held the challenge to the secretary’s interpretation of Title IX moot, reasoning that the interpretation no longer could affect the organization. The Court did not decide whether the W.T. Grant standard applied to the voluntary acts of third parties; the Court reasoned that, even if it did, the public statement of the university president banning the organization from campus established that the controversy between the organization and the Department of Health, Education, and Welfare was unlikely ever to recur.

16. Friends of the Earth, 528 U.S. at 193-94.

17. City of Erie v. Pap’s A.M., 529 U.S. 277, 287-88 (2000).

18. Compare City News and Novelty Incorporated v. City of Waukesha, 531 U.S. 278, 284 (2001) (unsuccessful challenge to city licensing ordinance is moot when adult-oriented business decided not to renew license).

19. For a recent case touching on this factor, see Camreta v. Greene, 131 S. Ct. 2020, 2033-35 (2011).

20. Compare Sheely v. MRI Radiology Network, 505 F.3d 1173, 1187 (11th Cir. 2007) (defendant's failure to admit to wrongdoing suggests that cessation was driven by desire to avoid liability) and DeJohn v. Temple University, 537 F.3d 301, 309 (3rd Cir. 2008) (challenge to sexual harassment policy not moot when policy changed well into litigation and university continued to defend it) with Larsen v. U. S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (challenge to quota policy for chaplains moot when plaintiffs did not allege that replaced policy would be reinstated) and Wisconsin Right to Life, Incorporated v. Schober, 366 F.3d 485, 491-92 (7th Cir. 2004) (accepting assertions of state election board that it would not enforce a campaign finance law found unconstitutional, but not struck from the state code); 13A Charles A. Wright et al., Federal Practice and Procedure § 3533.7 at 353 (2d ed. 1984).

21. See Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir. 2005) (plaintiff did not show need for injunctive relief against prior restraint policy when new supervisor disclaimed the policy as only that of her predecessor), cert. denied, 547 U.S. 1004 (2006).

22. See United States v. W.T. Grant Company, 345 U.S. 629, 632 (1953); Desiderio v. National Association of Securities Dealers, 191 F.3d 198, 201-02 (2d Cir. 1999).

23. See, e.g., Coalition of Airline Pilots Associations v. Federal Aviation Administration, 370 F.3d 1184, 1190 (D.C. Cir. 2004); Committee in Solidarity with People of El Salvador v. Sessions, 929 F.2d 742, 744-45 (D.C. Cir. 1991); Mosley v. Hairston, 920 F.2d 409, 419 (6th Cir. 1990); Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987) (removal of city seal containing the word Christianity from water tanks, vehicles, and uniforms and promise not to display it in the future moot challenge to display).

24. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (“[i]nterim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”); Demery v. Arpaio, 378 F.3d 1020, 1025-26 (9th Cir. 2004) (sheriff stated intent to again show challenged webcams of jail facility on-line); Radio-Television News Directors Association v. Federal Communications Commission, 229 F.3d 269, 270-72 (D.C. Cir. 2000).

25. Knox v. Service Employees International Union, Local 1000, 132 S. Ct 2277, 2287 (2012); Sasnett v. Litscher, 197 F.3d 290, 291-92 (7th Cir. 1999); United States v. Laerdal Manufacturing Corporation, 73 F.3d 852, 856 (9th Cir. 1995); Donovan v. Cunningham, 716 F.2d 1455, 1461-62 (5th Cir. 1983). See Walling v. Helmerich, 323 U.S. 37, 43 (1944).

26. National Advertising Company v. City of Miami, 402 F.3d 1329, 1334 (11th Cir. 2005) (zoning ordinance); see Citizens for Responsible Government State Political Action Committee v. Davidson, 236 F.3d 1174, 1181-84 (10th Cir. 2000) (election law); Mosley v. Hairston, 920 F.2d 409, 413-15 (6th Cir. 1990) (Aid to Families with Dependent Children statute); Fraternal Order of Police Lodge 121 v. City of Hobart, 864 F.2d 551, 553 (7th Cir. 1988) (wage and hour statute); see also Green v. Mansour, 474 U.S. 67-72 (1986) (prospective challenge to Aid to Families with Dependent Children benefit calculation rendered moot by superseding legislation requiring claimed deductions); Princeton University v Schmid, 455 U.S. 100 (1982) (per curiam) (repeal of university regulations moots challenge to their validity); Wright et al., supra note 207, § 3533.6.

27. See Allee v. Medrano, 416 U.S. 802 (1974) (superseding legislation mooted challenge to prior legislation except to extent that pending criminal prosecutions subject to injunction for bad-faith prosecution remain); Washington v. Daley, 173 F.3d 1158, 1164-65 (9th Cir. 1999); Amoco Production Company v. Fry, 118 F.3d 812, 815-16 (D.C. Cir. 1997).

28. City of Mesquite v. Aladdin’s Castle Incorporated, 455 U.S. 283, 288-89 (1982).

29. See Pederson v. Louisiana State University, 213 F.3d 858, 874-75 (5th Cir. 2000); Norman-Bloodsaw v. Lawrence Berkeley Laboratories, 135 F.3d 1260, 1274-75 (9th Cir. 1998); American Iron and Steel Institute v. Environmental Protection Agency, 115 F.3d 979, 1006-07 (D.C. Cir. 1997).

30. Spencer v. Kemna, 523 U.S. 1, 17 (1996); Murphy v. Hunt, 455 U.S. 478, 482 (1982).

31. The Supreme Court in Renne v. Geary, 501 U.S. 312, 320 (1991), also suggested that the capable-of-repetition doctrine “will not revive a dispute which became moot before the action commenced.” The decision, criticized in Wright et al., supra note 207, § 3533.8 at 495 (Supp. 2003), has been repeated in Friends of the Earth v. Laidlaw Environmental Services, Incorporated, 528 U.S. 167, 191 (2000) and Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 109 (1998). Taken literally, the holding may threaten to limit this branch of mootness doctrine.

32. Nonetheless, the Supreme Court found claims not to be moot on these grounds on many occasions. See, e.g., International Organization of Masters v. Brown, 498 U.S. 466, 472-73 (1991) (challenge to union election rule); Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988) (challenge to state law on electoral initiatives); Honig v. Doe, 484 U.S. 305, 317-18 (1988) (claim under Education for the Handicapped Act); Burlington Northern Railroad Company v. Brotherhood of Maintenance of Way Employes, 481 U.S. 429, 436 n.4 (1987) (labor dispute); United States v. New York Telephone Company, 434 U.S. 159, 165 n.6 (1977) (challenge to order requiring pen register surveillance).

33. The most recent case on point is Turner v. Rogers, 131 S. Ct. 2507 (2011), in which the Court held that a post-release challenge to the state's failure to provide a non-custodial parent counsel in a civil contempt proceeding at which he sentenced for one year was not moot because one year was too short a period to litigate the question and because he was likely to subject to the same proceeding because he remained in arrears.  See also Spencer v. Kemna, 523 U.S. 1, 17 (1998); see Brock v. Roadway Express Incorporated, 481 U.S. 252, 258 (1987). The D.C. Circuit held that “orders of less than two years’ duration ordinarily evade review.” Burlington Northern Railroad Company v. Surface Transportation Board, 75 F.3d 685, 690 (D.C. Cir. 1996); see also Fund for Animals, Incorporated v. Hogan, 428 F.3d 1059, 1064 (D.C. Cir. 2005); Public Utilities Commission of California v,. Federal Energy Regulatory Commission, 236 F.3d 708, 714 (D.C. Cir. 2001) (holding that orders regarding two-year contracts evaded review for purpose of mootness); Bourgeois v. Peters, 387 F.3d 1303, 1309 (11th Cir. 2004) (one year); Irish Gay and Lesbian Organization v. Guiliani, 143 F.3d 638, 648 (2nd Cir. 1998) (a few weeks between denial of march permit and march).

34. See Davis v. Federal Energy Commission, 554 U.S. 724, 735 (2008); Del Monte Fresh Produce Company v. United States, 570 F.3d 316, 321-22 (D.C. Cir. 2009).

35. See, e.g.Armstrong v. Federal Aviation Administration, 515 F.3d 1294, 1297 (D.C. Cir. 2008); Iowa Protection and Advocacy Services. v. Tanager, Incorporated, 427 F.3d 541, 544 (8th Cir. 2005); Minnesota Humane Society v. Clark, 184 F.3d 795, 797 (8th Cir. 1999); Freedom Party v. New York State Board of Elections, 77 F.3d 660, 662-63 (2d Cir. 1996); United States v. Taylor, 8 F.3d 1074, 1076-77 (6th Cir. 1993).

36. Federal Energy Commission v. Wisconsin Right to Life, 551 U.S. 449, 463 (2007) (referring to both formulations); see Buckley v. Archer-Daniels-Midland Company, 111 F.3d 524, 527-28 (7th Cir. 1997) (applying various standards of the possibility of recurrence, such as “reasonable expectation,” “demonstrated probability,” and not “highly unlikely”).

37. City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Buckley, 111 F.3d at 527-28 (“demonstrated possibility” required) (quoting Board of Education v. Steven L., 89 F.3d 464, 468 (7th Cir. 1996)).

38. Lyons, 461 U.S. at 109; see also Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (challenge to state constitutional provision denying pretrial release in sexual assault case mooted by conviction; no probability that plaintiff will again be arrested and detained pending trial); Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam) (challenge to procedures governing release on parole mooted by unconditional release; no probability that plaintiff will again be affected by procedures).

39. Honig v. Doe, 484 U.S. 305, 305 (1988).

40. Id. at 320.

41. Id. at 319 n.6. See Alvarez v. Smith, 130 S. Ct. 576, 581 (2009) (plaintiffs will "likely" not be subject to challenged state procedures again). This does not mean that a showing of theoretical or even possible recurrence is enough to avoid mootness. See Lillbask ex rel. Mauclaire v. Connecticut Department of Education, 397 F.3d 77, 86 (2d Cir. 2005).

42. See Olmstead v. L.C., 527 U.S. 581, 594 n.6 (1999) (action to require treatment for disabilities not moot even after plaintiffs were placed in requested programs because they had many institutional placements in the past).

43. Lyons, 461 U.S. at 107-8; DeFunis v. Odegaard, 416 U.S. 312, 318-19 (1974). Typical examples are when a student or youth challenges a policy but later graduates or matures to adulthood before resolution of the case. See Stotts v. Community Unit School District 1, 230 F.3d 989, 990-91 (7th Cir. 2000); Cole v. Oroville Union High School District, 228 F.3d 1092, 1098 (9th Cir. 2000). Cases seeking equitable relief involving prison conditions brought by inmates who are transferred or released are commonly moot for the same reason. See Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009); Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Smith v. Hundley, 190 F.3d 852, 855-56 (8th Cir. 1999); Kerr v. Farrey, 95 F.3d 472, 475-76 (7th Cir. 1996).

44. In Roe v. Wade, 410 U.S. 113, 124 (1973), the Supreme Court held that the conclusion of a pregnancy did not moot a challenge to a statute prohibiting abortions without any showing that the plaintiff was likely to suffer another unwanted pregnancy.

45. Litigation brought by candidates challenging ballot access restrictions does not become moot when the election is complete. Norman v. Reed, 502 U.S. 279, 288 (1992); Anderson v. Celebrezze, 460 U.S. 780, 784 n.3 (1983); Moore v. Ogilvie, 394 U.S. 814, 816 (1969). The Supreme Court shows no interest in the question of whether the affected candidate is likely to run for election again. See also Mandel v. Bradley, 432 U.S. 173, 175 n.1 (1977); Storer v Brown; 415 U.S. 724, 737 n.8 (1974); Brown v. Chote, 411 U.S. 452 (1973). But see Golden v. Zwickler, 394 U.S. 103, 109-10 (1969).

46. E.g., Press-Enterprise Company v. Superior Court, 478 U.S. 1, 6-7 (1986) (challenge to denial of access to pretrial hearing not mooted by release of transcript because plaintiff could be assumed to be subject again to exclusion from hearings); Globe Newspaper Company v. Superior Court, 457 U.S. 596, 602 (1982) (challenge to exclusion from portions of criminal trial involving testimony by minor who claimed to be victim of sexual battery not mooted by completion of trial for same reason); Richmond Newspapers Incorporated v. Virginia, 448 U.S. 555, 563 (1980) (challenge to exclusion from criminal trial not mooted by completion of trial for same reason); Nebraska Press Association v. Stuart, 427 U.S. 539, 546 (1976) (challenge to restrictions on press coverage expiring when jury was empanelled was not moot).

47. A recent interesting example of this proposition is found in United States v. Howard, 429 F.3d 843, 848 (9th Cir. 2005). There, the court found a challenge to a policy of shackling pre-trial detainees for initial appearances was not moot after the plaintiffs had made their appearances, even though it was unknown whether the particular plaintiffs would again be arrested, because they challenged an on-going government policy.

48. See Alton and Southern Railway Company v. International Machinists and Aerospace Workers, 463 F.2d 872, 880 (D.C. Cir. 1972); accord United States v. W.T. Grant Company, 345 U.S. 629, 632 (1953) (repetition or review element, “together with a public interest in having the legality of the practices settled, militates against a mootness conclusion”).

49. Federal Energy Commission v. Wisconsin Right to Life, Incorporated, 551 U.S. 449, 463-64 (2007).  See Del Monte Fresh Produce Company v. United States, 570 F.3d 316, 324 (D.C. Cir. 2009) (the mootness question is not whether the precise facts will recur, but whether the legal wrong is likely to recur).

50. Sosna v. Iowa, 419 U.S. 393, 402-03 (1975).

51Franks v. Bowman Transportation Company, 424 U.S. 747 (1976).

52. Id. at 755-57.

53. See Kremens v. Bartley, 431 U.S. 119, 133-37 (1977).

54. Id. at 131-32 (remanding case for substitution of new class representatives).

55. U.S. Parole Commission v. Geraghty, 445 U.S. 388, 398-9 (1980).

56. Although Geraghty was allowed to challenge the denial of class certification on appeal, he was not allowed to litigate the merits until a class was properly certified. The Supreme Court noted that should an appellate court affirm denial of class certification, it would necessarily also affirm dismissal on the ground of mootness. Because the court of appeals had ruled that the class should have been certified, the Supreme Court remanded Geraghty to the district court for consideration of whether Geraghty should represent the class or whether another class representative should be appointed.

57. Geraghty, 445 U.S. at 403-04.

58. Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980). The Supreme Court distinguished these principles in Genesis Healthcare Corporation v. Symczyk, 133 S. Ct. 1523 (2013), in which it found moot a collective action under the Fair Labor Standards Act when the plaintiff, unjoined by any opt-ins, received an offer of judgment for full relief before moving for conditional certification. The Court stated that collective actions under the FLSA are "fundamentally different" than Rule 23 class actions. Symczyk, 133 S. Ct. at 1529.

59. Id. at 339.

60. See Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001); Lusardi v. Xerox Corporation, 975 F.2d 964, 975 (3rd Cir. 1992).

61. For recent cases describing the two exceptions, see Olson v. Brown, 594 F.3d. 577 (7th Cir. 2010); Clark v. State Farm Mutual Automobile Insurance Company, 590 F.3d 1134, 1139 (10th Cir. 2009).

62. U.S. Parole Commission v. Geraghty, 445 U.S. 388, 399 (1980); see also County of Riverside v. McLaughlin, 500 U.S. 44, 50 (1991); see also Gerstein v. Pugh, 420 U.S. 103, 111 n. 11 (1975) (class action challenging state practice of holding criminal defendants accused by information without a probable cause hearing was not moot when the named class representatives were convicted because it was not certain that any named plaintiff would be in pre-trial detention long enough for the judge to rule on class certification). Even the pendency of a motion for class certification in a non-transitory case has been held to save a claim from mootness. See Zeidman v. J. Ray McDermott and Company, 651 F.2d 1030, 1051 (5th Cir. 1981); Susman v. Lincoln American Corporation, 587 F.2d 866, 869-71 (7th Cir. 1978).

63. See County of Riverside, 500 U.S. at 51-52 (1991) (“That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction.... In such cases, the 'relation back' doctrine is properly invoked to preserve the merits of the case for judicial determination.”); Wade v. Kirkland, 118 F.3d 667, 669-70 (9th Cir. 1997); Robidoux v. Celani, 987 F.2d 931, 938-39 (2d Cir. 1993) (class action challenging delays in processing welfare applications; such delays are inherently transitory); Basel v. Knebel, 551 F.2d 395, 396 n.1 (D.C. Cir. 1977). For cases in which plaintiffs did not establish this, see Cruz, 252 F.3d at 534-34; Egan v Davis, 118 F.3d 1148, 1149-51 (7th Cir. 1997); Rocky v. King, 900 F.2d 864, 767-71 (5th Cir. 1990); Ahmed v. University of Toledo, 822 F.2d 26, 27-28 (6th Cir. 1987).

64. See Banks v. National Collegiate Athletic Association, 977 F.2d 1081, 1085-86 (7th Cir. 1992), cert. denied, 508 U.S. 908 (1993); see also Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994) (claim found moot, noting that no class certification motion had been filed); Brunet v. City of Columbus, 1 F.3d 390, 400 (6th Cir. 1993) (same). In Weiss v. Regal Collections, 385 F.3d 337, 342-49 (3d Cir. 2003), the court interestingly found, in the Rule 68 context, that plaintiff’s claim was not moot even though he had not yet filed a motion for class certification, because there was no apparent delay in his not doing so. See also Eckert v. Equitable Life Assurance Society, 227 F.R.D. 60, 63-64 (E.D.N.Y. 2005).

65. See Christiano v. Courts of the Justices of the Peace, 115 F.R.D. 240, 244-47 (D. Del. 1987).

66. Advocates in LSC-funded programs may not file or participate in class action litigation. 45 C.F.R. § 1617.

Updated 2015 by Jeffrey S. Gutman

3.4 Exhaustion and Preclusion

Updated 2012

This section discusses the circumstances under which a prospective federal court plaintiff may be required to exhaust judicial or administrative remedies before filing an action in federal court, and the preclusion implications of having such remedies available or pursuing such remedies when they are not statutorily mandated.

3.4.A. Overview

To determine whether exhaustion is required, first examine the federal statute that provides the right sought to be enforced for explicit or implicit exhaustion requirements. If exhaustion is required, determine whether one of the recognized exceptions to exhaustion of remedies applies to the circumstances of the case. When exhaustion of remedies is not required, as in Section 1983 actions,/1/ consider whether to pursue, nevertheless, available local or state administrative remedies./2/ This entails an assessment of the needs of the client, the certainty and speed of such relief, opportunities to obtain useful information for a subsequent judicial appeal, and the expense of litigation of a case through trial in federal court. Furthermore, and of particular importance, assess the possibility that pursuing such remedies will have claim or issue preclusive effect in any subsequent federal action. The prospect of litigating multiple federal claims or combining federal and state law claims, which have different exhaustion requirements, adds another layer of complexity to the assessment.

3.4.B. Statutory Exclusion

Exhaustion of federal or state administrative remedies is required when Congress explicitly requires exhaustion as a prerequisite to bringing an action in federal court./3/ Such an expression must be specific and clear./4/ For example, 42 U.S.C. § 1997e(a), part of the Prison Litigation Reform Act, provides: “No action shall be brought with respect to prison conditions … until such administrative remedies are exhausted.” The Supreme Court has held that this language reflected Congress’ intent to require exhaustion in all cases and to eliminate any discretion to permit exceptions./5/

The interpretive question in cases with an explicit exhaustion requirement is the breadth of the statutory exhaustion provision./6/ For example, the Individuals with Disabilities Education Act provides that, “before the filing of a civil action ... seeking relief that is also available under [the Act], the procedures ... of this section shall be exhausted.”/7/  Most courts have held that an IDEA plaintiff cannot avoid exhaustion simply by requesting relief, such as money damages, that the IDEA cannot provide.  As a result, many of these cases turn on subtle, fact-based inquiries into whether a due process hearing could redress to some degree the injury alleged./8/

 When Congress has required exhaustion, the next inquiry is whether the requirement is jurisdictional or non-jurisdictional./9/ When the exhaustion requirement is framed in jurisdictional terms, the court lacks jurisdiction unless the plaintiff has exhausted its remedies. It is presumed that the exhaustion requirement is not jurisdictional, but the presumption may be overcome if the statute otherwise provides in "sweeping and direct" terms./10/ Jurisdictional exhaustion, which is rooted in Congressional control over the jurisdiction of the federal courts, may not be waived and is not subject to any exceptions./11/ Non-jurisdictional exhaustion, in contrast, is based on prudential considerations: "giving agencies the opportunity to correct their own errors, affording parties and courts the benefits of agencies' expertise, [and] compiling a record adequate for judicial review...."/12/ Exhaustion of administrative remedies is not required in cases of non-jurisdictional exhaustion when the interests in the petitioner in prompt review outweigh the government's prudential interests./13/

 Without an explicit statutory requirement for exhaustion, “courts are guided by congressional intent in determining whether application of the doctrine would be consistent with the statutory scheme.”/14/ Thus, implied exhaustion requirements are often determined by resort to "sound judicial discretion," based on statutory interpretation and legislative history./15/ In these circumstances, “courts play an important role in determining the limits of an exhaustion requirement and may impose such a requirement even where Congress has not expressly so provided.”/16/

Be careful when filing claims under several statutes. Exhaustion is sometimes excused when there is a constitutional challenge to the agency's administrative process./17/ The agency may also waive a non-jurisdictional exhaustion requirement./18/ Combining claims from a federal statute that does not require exhaustion with one that does have an exhaustion requirement can result in enforcement of an exhaustion requirement for both statutory claims./19/   

3.4.C. Common-Law Duty of Exhaustion

When “Congress has not clearly required exhaustion, sound judicial discretion governs.”/20/ Exercise of this discretion involves balancing the interests of the plaintiff in accessing a federal forum promptly against the institutional interests advanced when exhaustion is required./21/

The Supreme Court in McCarthy v. Madigan identified three circumstances which, if present, would weigh against requiring exhaustion. The first occurs when requiring exhaustion would unduly prejudice a subsequent court action, such as when the administrative process is either delayed or does not otherwise allow the plaintiff to avert irreparable harm./22/ In Bowen v. City of New York, for example, the Court found that a class of social security disability insurance claimants would suffer irreparable injury if they were required to fully exhaust their administrative remedies with the Social Security Administration./23/ Second, exhaustion is not required when the administrative remedy is shown to be inadequate or would be futile./24/ Such might be the case when the agency is unable to grant an effective remedy or is unable to consider the issues presented./25/ A number of cases, frequently in the IDEA context, hold that administrative remedies are inadequate when the plaintiffs claim systemic failures and seek system-wide relief./26/ Moreover, exhaustion is not required when the challenge is to the agency procedures themselves./27/ Third, the Court found a waiver of exhaustion appropriate when agency bias is shown./28/ Applying these factors, the Court in McCarthy held that a federal prisoner did not have to exhaust the FBI's administrative remedy procedure before filing a Bivens action in federal court./29/

3.4.D. Preclusion

If exhaustion of judicial or administrative remedies is not required, the advocate has to assess whether to pursue such remedies voluntarily or to proceed with federal litigation. The reality of limited resources often strongly influences this decision. The cost of federal court discovery, hiring expert witnesses, and preparing the case for trial is often too high for legal services organizations. Administrative proceedings have financial advantages, such as free transcripts, agency experts, and may make exhausting a voluntary remedy a compelling choice. Often, the more complex decision is how the administrative proceeding can be utilized to best preserve an opportunity for later federal court review of the legal issues underlying the claim or agency action. Use of techniques such as the submission of Proposed Findings of Fact during the hearing process may help when the relatively quick and inexpensive administrative forum offers significant advantages, and the potential preclusion issues are deemed acceptable risks.

In some types of matters, it may be appropriate to proceed to federal court. For instance, it may be necessary to first seek preliminary injunctive relief in federal court in order to preserve the status quo or to resolve an issue about administrative process before going through a voluntary administrative remedy. The deferential standard of review of agency decisions has to be factored into the desirability of administrative proceedings in advance of federal court litigation. Finally, because final state court judgments or administrative decisions may have preclusive effect in subsequent federal litigation, voluntary exhaustion has potential dangers when there is a fair likelihood of losing on the administrative level. Preclusion is an affirmative defense that must be pled and proven by the defendant./30/

3.4.D.1. Claim Preclusion

In 28 U.S.C. § 1738, the full-faith and credit statute, Congress “required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.”/31/ Federal courts apply state preclusion law to determine whether a state court judgment precludes a subsequent federal suit./32/ The Supreme Court has since held that final state court judgments bar Title VII actions/33/ and actions brought under 42 U.S.C. § 1983./34/ State court judgments affirming administrative decisions similarly have preclusive effect under Section 1738./35/

The preclusive effect of unreviewed administrative decisions is not governed by Section 1738./36/ Section 83(1) of the Restatement (Second) of Judgments outlines the basic principles:

If the administrative adjudication has the essential elements of an adjudication, and preclusion is consistent with the scheme of remedies, then a valid and final administrative determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court./37/

The preclusive effect of administrative determinations raises three basic questions: (1) When does administrative adjudication have the essential elements of adjudication?/38/ (2) What claim did the administrative agency resolve (and thus preclude from re-litigation)? (3) Did Congress by statute direct courts to apply preclusion?

The first question—the required degree of formality to the administrative hearing—is relevant to both claim and issue preclusion (discussed infra). When the agency engages in a trial-type proceeding, the resulting findings of fact are likely to have preclusive effect. Features of a trial-type proceeding include the following safeguards:

(1) opportunity for representation by counsel; (2) pretrial discovery; (3) the opportunity to present memoranda of law; (4) examinations and cross-examinations at the hearing; (5) the opportunity to introduce exhibits; (6) the chance to object to evidence at the hearing; and (7) final findings of fact and conclusions of law./39/

These safeguards go beyond the minimum due process requirements identified in Goldberg v. Kelly./40/ There is little consistency as to whether proceedings with fewer safeguards may have preclusive effect./41/

The second question concerns when a claim brought in a first action is sufficiently similar to one sought to be brought later in federal court to require preclusion. Section 24 of the influential Restatement of Judgments defines the “same” claim as one arising out of the same transaction or series of transactions. “Transactions,” in turn, “are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.”/42/ Put more practically, whether a second lawsuit is based upon the same claim litigated in a prior action “turns on the essential similarity of the underlying events giving rise to the various claims.”/43/ To determine whether causes of action are sufficiently similar to apply preclusion,“[c]ourts consider the similarity of the acts complained, the material factual allegations in each suit and the witnesses and documentation required to prove each claim.”/44/

The third question to apply in determining the preclusive effect of administrative determinations is whether Congress has required courts to apply preclusion to implement a particular statute. Congress may, by statute, overturn the presumptive application of preclusion of administrative determinations./45/ The leading case on this point is University of Tennessee v. Elliott./46/ In Elliott, the university fired an African American employee. He appealed the decision administratively, claiming that the termination was racially motivated. The administrative law judge disagreed. Elliott then filed a Title VII and Section 1983 suit in federal court. The university argued that the administrative law judge’s findings precluded re-litigation of the discrimination issue. The Court held that the language of the statute reflected Congress’ intent that unreviewed state administrative proceedings had no preclusive effect on Title VII claims./47/ The Court, however, found no evidence of such intent in Section 1983. Moreover, the Court found, giving preclusive effect to administrative fact-finding in Section 1983 actions advances repose, conserves resources, and promotes federalism./48/

Even when all the requirements for claim preclusion appear to be satisfied, some courts do not apply it when important federal rights are at stake. For example, in Gjellum v. City of Birmingham, a Medicaid case, the Eleventh Circuit decided that the federal common law of preclusion did not require application of state claim preclusion rules to unreviewed state administrative decisions in a subsequent Section 1983 suit:/49/

We conclude that the importance of the federal rights at issue, the desirability of avoiding the forcing of litigants to file suit initially in federal court rather than seek relief in an unreviewed administrative proceeding, and the limitations of state agencies as adjudicators of federal rights override the lessened federalism concerns implicated outside the contours of the full faith and credit statute. In addition, claim preclusion, unlike issue preclusion, does not create a risk of inconsistent results in this context after Elliott because claim preclusion seeks to prevent litigation of issues that were not adjudicated before the state agency./50/

In Dionne v. Mayor and City Council of Baltimore, a case challenging an adverse employment decision on procedural due process grounds, the Fourth Circuit agreed with this reasoning./51/ The court observed that the plaintiff could not have raised constitutional law theories or sought broader remedies available under Section 1983 before the local administrative agency./52/ The court concluded that the state court system could not have served as an adequate and unitary alternative forum for the assertion of all theories and remedies./53/ As a result, applying claim preclusion to unreviewed state agency determinations would discourage plaintiffs from pursuing the generally cheaper and more efficient route of seeking an administrative remedy in order to preserve their federal rights./54/

The Seventh Circuit has agreed with the Eleventh Circuit’s analysis of the limits to enforcing preclusion. In Waid v. Merrill Area Public Schools, the Seventh Circuit reviewed a teacher’s suit brought under Section 1983 and Title IX of the Education Amendments Act of 1972 and held that claim preclusion did not prevent bringing the Title IX claim after going through a state administrative proceeding./55/ The Seventh Circuit concluded, based upon its examination of the state agency’s limited jurisdiction, that claim preclusion did not apply because “it is clear that she could not have consolidated all of her claims in a single lawsuit.”/56/ If the state administrative forum were adequate in allowing all claims to be brought, state preclusion law, the opinion suggests, could be applied. However, the Seventh Circuit also cited the Eleventh Circuit’s decision in Gjellum for the proposition that deference to state administrative process and state preclusion law is limited when that would impair enforcement of federal rights./57/

On the other hand, other courts have expanded application of the preclusion doctrine beyond findings of fact to encompass preclusion of subsequent litigation of conclusions of law. In Miller v. County of Santa Cruz, the Ninth Circuit held that unreviewed state agency determinations were entitled to be given preclusive effect in subsequent Section 1983 litigation./58/ The Ninth Circuit recognized that, based upon its assessment of the adequacy of the state administrative forum, it was going farther than the Supreme Court required federal courts to go in Elliott:

Elliott requires us to give preclusive effect, at a minimum, to the fact finding of state administrative tribunals. We have gone further, however, and held that “the federal common law rules of preclusion described in Elliott  extend to state administrative adjudications of legal as well as factual issues, even if unreviewed, so long as the state proceeding satisfies the requirements of fairness outlined in [United States v. Utah Construction and Mining Co., 384 U.S. 394, 422 (1966)].”/59/

The Eighth Circuit has followed the Ninth. In Plough v. West Des Moines Community School District, the Eighth Circuit concluded that both claim and issue preclusion applied to an unreviewed state agency determination./60/ The plaintiff opposed a defense of claim preclusion in his Section 1983 action, contending that Elliott required issue preclusion only for fact-finding, and the state agency’s determination of a legal question (that his due process rights had not been violated) was not entitled to be given preclusive effect under federal law. The court concluded that plaintiff had a full and fair opportunity to litigate his claims in the administrative process, and, therefore, state law on claim preclusion should be applied to the questions of law as well as the findings of fact.

3.4.D.2. Issue Preclusion

The Restatement (Second) of Judgments, Section 27, provides:

When (1) an issue of fact or law is (2) actually litigated and determined by (3) a valid and final judgment, and (4) the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.

The Supreme Court has approved application of the federal common law principle of issue preclusion to litigation of federal claims between parties as well as expansion to non-mutual defensive and offensive use of issue preclusion./61/ However, the Court has declined to employ issue preclusion when the party against whom it was asserted did not have a “full and fair opportunity to litigate the issue” in the earlier case./62/

 Most recently, the Court explored this issue in a case involving "virtual representation," a doctrine in tension with the notion that one is not bound by a judgment in a case in which they have not been made a party./63/ Taylor v. Sturgell involved successive FOIA suits for the same documents by two different plaintiffs. The Court identified six exceptions to the rule against non-party preclusion: agreement to be bound, presence of a legal relationship between the party to be bound and the party to the judgment, the party bound was "adequately represented" by a party, the non-party assumed control over the litigation, relitigation by proxy and when a statute precludes relitigation./64/  The Court rejected expansion of these categories to include a seventh - virtual representation.  Indeed the Court emphasized the limited scope of the "adequate" representation to require 1) alignment of the interests of the non-party and her representative; 2) the representative party or the court protected the interests of the non-party and 3) sometimes notice of the original suit to those alleged to be represented./65/

Application of issue preclusion to federal litigation is probably most relevant to legal services practice when the fact finding of an administrative agency is proposed to be given preclusive effect in a subsequent Section 1983 action./66/ The Court in University of Tennessee v. Elliott held that sound policy considerations warranted the application of issue preclusion to the fact-finding of administrative bodies acting in a judicial capacity to the same extent as the findings would receive in state court./67/ As discussed above, Congress has the authority expressly or implicitly to limit the usual preclusive effect given to unreviewed agency decisions./68/ If Congress does not limit enforcement of preclusion, the federal court applies state law preclusion doctrine.

Such applications of preclusion are highly fact-dependent and not susceptible to generalization. Typically litigated questions are whether the issues decided administratively are the same as those at stake in the subsequent federal case, whether the applicable administrative process afforded the party potentially subject to preclusion a full and fair opportunity to litigate,/69/ and whether the burden of proof in the administrative hearing is the same as that applied in a subsequent Section 1983 case./70/

____________________________________________________________________________________


1. For further discussion of exhaustion in the Section 1983 context, see Chapter 5.1.A.4 of this MANUAL.

2. Patsy v. Board of Regents, 457 U.S. 496, 501 (1982).

3. McCarthy v. Madigan, 503 U.S. 140, 144 (1991).

4. Id.

5. See Jones v. Bock, 549 U.S. 199, 212-14 (2007) (failure to exhaust is an affirmative defense; inmates need not plead exhaustion in their complaints); Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001). See also Woodford v. Ngo, 548 U.S. 81 (2006) (Prison Litigation Reform Act’s exhaustion requirement is not satisfied by filing an untimely or procedurally defective administrative grievance or appeal).

6. For example, in Equal Employment Opportunity Commission v. Lutheran Social Services, 186 F.3d 959 (D.C. Cir. 1999), the D.C. Circuit wrestled with the question whether a Civil Rights Act provision providing that a recipient of a subpoena “may petition” the agency to revoke the subpoena required the recipient to so petition. In a 2-to-1 decision, the Court concluded that it did not. Id. at 965.

7Individuals with Disabilities Education Act, 20 U.S.C. §§1415(i)(2)A), (l).

8. Blanchard v. Morton School District, 420 F.3d 918, 920-22 (9th Cir. 2005); Covington v. Knox County School System, 205 F.3d 912 (6th Cir. 2000); Witte v. Clark County School District, 197 F.3d 1271 (9th Cir. 1999); W.B. v Matula, 67 F.3d 484 (3d Cir. 1995) (no exhaustion); Payne v. Peninsula School District, 598 F.3d 1123, 1127-28 (9th Cir. 2010); S.E. v. Grant County Board of Education 544 F.3d 633, 642-43 (6th Cir. 2008), cert. denied, 129 S. Ct. 2075 (2009); Cave v. East Meadow Union Free School District, 514 F.3d 240, 246-47 (2d Cir. 2008); Frazier v Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002); Charlie F. v. Board of Education, 98 F.3d 989 (7th Cir. 1996); N.B. v. Alachua County School Board, 84 F.3d 1376 (11th Cir. 1996) (requiring exhaustion).

9Avocados Plus, Incorporated v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004).

10. Id. at 1248.

11Id.

12. Marine Mammal Conservancy, Incorporated v. U.S. Department of Agriculture, 134 F.3d 409, 414 (D.C. Cir. 1998).

13. Avocados Plus, 370 F.3d at 1247 (finding exhaustion non-jurisdictional)  For cases wrestling with the distinction in situations where there are circuit splits, see Dawson Farms, LLC v. Farm Service Agency, 504 F.3d 592 (5th Cir. 2007) and Ace Property and Casualty Insurance Company v. Federal Crop Insurance Corporation, 440 F.3d 992 (8th Cir. 2006). See also Hettinga v. United States, 560 F.3d 498 (D.C. Cir. 2009). The Supreme Court has also wrestled frequently with the scope of exhaustion when 42 U.S.C. § 405(g), which governs judicial review of Department of Health and Human Services benefit determinations. See Shalala v. Illinois Council on Long-Term Care, 529 U.S. 1 (2000); Bowen v. Michigan Academy of Family Physicians, 487 U.S. 667 (1986);  Heckler v. Ringer, 466 U.S. 602 (1984); Mathews v. Eldridge, 424 U.S. 319 (1976); Weinberger v. Salfi, 422 U.S. 749 (1975).

14. Patsy v. Board of Regents, 457 U.S. 496, 502, n.4 (1982).

15. McCarthy v. Madigan, 503 U.S. 140, 144 (1991).

16 Alacare Incorporated v. Baggiano, 785 F.2d 963, 966 (11th Cir. 1986) (quoting Patsy, 457 U.S. at 501).

17. Barry v. Barchi, 443 U.S. 55, 63 n.10 (1979); Kreschollek v. Southern Stevedoring Company, 78 F.3d 868, 875 (3d Cir. 1996).

18. Heckler v. Day, 467 U.S. 104, 110 n.4 (1984);  Mathews v. Diaz, 426 U.S. 67, 72-73 (1970); Weinberger v. Salfi, 422 U.S. 749, 765-77 (1975). 

19Cave v. East Meadow Union Free School District, 514 F.3d 240 (2d Cir. 2009) (student with Rehabilitation Act, ADA and § 1983 claims must exhaust IDEA remedies); Babicz v. School Board of Broward County, 135 F.3d 1420 (11th Cir.), cert. denied, 525 U.S. 816 (1998) (student filing claims under Rehabilitation Act, ADA and IDEA must exhaust IDEA remedies when IDEA relief is available).  

20. McCarthy, 503 U.S. at 144. Such is the case in which there is only a regulatory exhaustion requirement. See Equal Employment Opportunity Commission v. Bashas' Incorporated, 2009 U.S. Dist. LEXIS 97736 at *12 (D. Ariz. Sept. 30, 2009).

21. Those interests were summarized in Weinberger v. Salfi, 422 U.S. 749, 765 (1975): “Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for review.”

22McCarthy, 503 U.S. at 146-47; Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corporation, 489 U.S. 561 (1989).

23. Bowen v. City of New York, 476 U.S. 467 (1986). The court noted that a “severe medical setback” might result from the “trauma of having disability benefits cut off” and “the ordeal of having to go through the administrative appeal process:” Id. at 483.

24. McCarthy, 503 U.S. at 147-48; Honig v. Doe, 484 U.S. 305, 327 (1988); Durand v. Hanover Insurance Group, Incorporated, 560 F.3d 436 (6th Cir. 2008) (ERISA claim); Porter v. Board of Trustees of Manhattan Beach Unified School District, 307 F.3d 1064, 1070 (9th Cir. 2002) (IDEA claim).

25. See, e.g., Taylor v. Vermont Department of Education, 313 F.3d 768, 790 (2d Cir. 2002).

26. See McQueen v. Colorado Springs School District No. 11, 488 F.3d 868, 874-75 (10th Cir. 2007); Handberry v. Thompson, 446 F.3d 335, 343 (2d Cir. 2006); J.S. v. Attica Central Schools, 386 F.3d 107, 113-14 (2d Cir. 2004).

27Gibson v. Berryhill, 411 U.S. 564, 575 (1973).

28. McCarthy, 503 U.S. at 148-49.

29. A common fourth exception is where the litigant raises a colorable constitutional claim that is collateral to her substantive claim of entitlement. See Clarinda Home Health v Shalala, 100 F.3d 526 (8th Cir. 1996); see also Bowen v. City of New York, 476 U.S. 467 , 483, 485 (1986); Mathews v. Eldridge, 424 U.S. 319 (1976).

30. Taylor v. Sturgell, 553 U.S. 880, 128 S. Ct. 2161, 2179-80 (2008).

31. Allen v. McCurry, 449 U.S. 90, 96 (1980).

32. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985).

33. Kremer v. Chemical Construction Corporation, 456 U.S. 461, 466 (1982).

34. Migra v. Warren City School Board of Education, 465 U.S. 75 (1984). In Migra, the Supreme Court discussed the difference between two distinct branches of the res judicata doctrine: “Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. This effect is referred to as direct or collateral estoppel. . . . Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar.” Id. at 77.  See also Taylor, 128 S. Ct. at 2170-72 (2008).  

35. Kremer, 456 U.S. at 461.

36. University of Tennessee v. Elliott, 478 U.S. 788, 794 (1986).

37. The general rule of res judicata is found in Section 24 of the Restatement (Second) of Judgments (1982). Generally, a final judgment on the merits precludes the same parties or parties in privity with them from litigating the same claim in a subsequent lawsuit. Claim preclusion bars the relitigation in federal court of both claims subject to a final state court judgment and of claims which were not raised in state court.

38. See United States v. Utah Construction and Mining Company, 384 U.S. 394, 422 (1966) (putting the question “whether the parties had an adequate opportunity to litigate”). In Haring v. Prosise, 462 U.S. 306, 317-18 (1983), the Supreme Court further held that, “as a general matter, even when issues have been raised, argued, and decided in a prior proceeding, and therefore are preclusive under state law, re-determination of [the] issues [may nevertheless be] warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.”

39. Taylor v. Messmer, 2010 U.S. Dist. LEXIS 11003, 2010 WL 607089 (W.D. Pa. Feb. 9, 2010), citing Reed v. Amax Coal Company, 971 F.2d. 1295, 1300 (7th Cir. 1992). See also Kleenwell Biohazard Waste v. Nelson, 48 F.3d 391, 394-95 (9th Cir.) cert. denied, 515 U.S. 1143 (1995); Hall v. Marion School District, 31 F.3d 183, 191-92 (4th Cir. 1994).

40Goldberg v. Kelly, 397 U.S. 254 (1970).

41. Johnson v. County of Nassau, 411 F. Supp. 2d 171 (E.D.N.Y. 2006) is a recent example of a court struggling with this question in the context of the preclusive effect of a no discrimination finding by the New York State Division of Human Rights on subsequent §§ 1981 and 1983 claims. See also Clark v. Alexander, 85 F.3d 146 (4th Cir. 1996), holding that implementation of the Goldberg due process requirements ensured an adequate Section 8 certificate termination hearing. However, rather than give the hearing fact-finding issue preclusive effect in a later appeal to federal court, the court of appeals held that deference should be given to the findings: the fact-finding should be reviewed under a substantial-evidence standard and not be given preclusive effect.

42. Restatement (Second) of Judgments § 24 (1982).

43. Churchill v. Star Enterprises, 183 F.3d 184, 194 (3d Cir. 1999).

44. Lubrizol v. Exxon Corporation, 929 F.2d 960, 963 (3d Cir. 1991). The formulations used by the courts differ somewhat from case to case. The Ninth Circuit, for example, looks at four factors to determine the identity of claims: "(1) whether the two suits arise out of the same transactional nucleus of facts; (2) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (3) whether the two suits involved infringement of the same right; and (4) whether substantially the same evidence is presented in the two actions." ProShipLine Incorporated v. Aspen Infrastructures, 594 F.3d 681, 688 (9th Cir. 2010). In the Eleventh Circuit, "if a case arises out of the same nucleus of operative facts, or is based upon the same factual predicate, as a former action, ... the two cases are really the same 'claim' or 'cause of action' for purposes of res judicata." Griswold v. County of Hillsborough, 598 F.3d 1289, 1293 (11th Cir. 2010).  

45. The Supreme Court directed the lower courts to assume that Congress intended the presumption of preclusive effect of administrative findings to apply unless Congress indicated otherwise. Astoria Federal Savings v. Solimino, 501 U.S. 104, 108 (1991). That indication, however, need not be clear and precise. Id. (language of Age Discrimination in Employment Act implies that Congress intended administrative findings not to have preclusive effect).

46. University of Tennessee v. Elliott, 478 U.S. 788 (1986).

47. Id. at 795-96; see also Caver v. City of Trenton, 420 F.3d 243, 259 (3d Cir. 2005). Some of the recent cases on this point deal with the preclusive effect of administration claims brought under the Sarbanes-Oxley Act. See Stone v. Instrumentation Laboratory Company, 591 F.3d 239 (4th Cir. 2009); Tice v. Bristol-Myers Squibb Company, 325 F. App'x 114 (3d Cir. 2009). 

48. Id. at 798.

49. Gjellum v. City of Birmingham, 829 F.2d 1056 (11th Cir. 1987).

50. Id. at 1064.

51. Dionne v. Mayor and City Council of Baltimore, 40 F.3d 677, 682 (4th Cir. 1994).

52. Id. at 683.

53. Id.

54. Dionne, 40 F.3d at 684. Edmundson v. Borough of Kennett Square, 4 F.3d 186, 192-93 (3d Cir. 1993) (constitutional determinations by administrative agency have no preclusive effect).

55Waid v. Merrill Area Public School, 91 F.3d 857 (7th Cir. 1996) (overruled in part on other grounds in Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 129 S. Ct. 788 (2009)).

56. Id. at 866.

57Id. at 865.

58. Miller v. County of Santa Cruz, 39 F.3d 1030 (9th Cir. 1994), cert. denied, 515 U.S. 1160 (1995).

59. Id. at 1032.

60. Plough v. West Des Moines Community School District, 70 F.3d 512 (8th Cir. 1995).

61. See Parklane Hosiery Company v. Shore, 439 U.S. 322 (1979) (offensive); Blonder-Tongue Laboratories, Incorporated v. University of Illinois Foundation, 402 U.S. 313 (1971) (defensive).

62See Allen v. McCurry, 449 U.S. 90, 94-95 (1980).

63. Taylor v. Sturgell, 553 U.S. 880, 128 S. Ct. 2161 (2008).

64. Id., 128 S. Ct. at 2172-73.

65. Id., 128 S. Ct. at 2176.

66. See University of Tennessee v. Elliott, 478 U.S. 788 (1986).

67. Id. at 798-99. Federal courts give the same preclusive effect to the decisions of state administrative agencies as the state itself would, subject to the procedural requirements of the Due Process Clause. Kremer v. Chemical Construction Corporation, 456 U.S. 461, 481-82 (1982).

68. See, e.g., Kosakow v. New Rochelle Radiology Associates, 274 F.3d 706, 728-29 (2d Cir. 2001) (no evidence that Congress intended to limit preclusion under the Family and Medical Leave Act).

69. See Burkybile v. Board of Education, 411 F.3d 306, 312 (2d Cir. 2005) (since plaintiff had fair opportunity to litigate in administrative proceeding, findings of fact are given preclusive effect in subsequent § 1983 claim). Kosakow offers a particularly careful and thoughtful examination of these issues with respect to the Family Medical Leave Act and New York preclusion law. Kosakow concluded that the federal plaintiff did not have an adequate opportunity in the administrative hearing to litigate whether the decision to terminate her employment was made for legitimate business reasons. See also Swineford v. Snyder County, 15 F.3d 1258 (3d Cir. 1994) (unemployment compensation hearing). Unreviewed unemployment compensation hearing decisions are ordinarily not given preclusive effect because of the limited legal issues addressed and the particular nature of the forum.

70. See, e.g., Dias v. Elique, 436 F.3d 1125, 1129-31 (9th Cir. 2006).

Updated 2012