Tuesday, March 25, 2014
Clearing brush on standing and merits
While SCOTUS has successfully disentangled jurisdiction and merits over the past several years, it has not done much with standing and its unfortunate conflation with merits. Tuesday's decision in Lexmark int'l v. Static Control Components perhaps marks a first step toward drawing sharper distinctions. The issue in the case was whether Static Control could bring a false advertising claim under the Lanham Act against Lexmark, even though the companies are not competitors.
The parties and the lower courts framed this in terms of the "zone of interests" test for prudential standing. The Court unanimously rejected that framing (as well as the closely related "statutory standing"), saying it has nothing to do with subject matter jurisdiction or standing. Zone of interests goes to whether the plaintiff falls within the class of people whom Congress authorized to sue through the statutory cause of action. This is a pure merits inquiry, akin to whether a plaintiff is an "employee" under Title VII. The focus is on the pleading (citing Iqbal) and whether the plaintiff has sufficiently alleged a claim that falls within the scope of the congressionally created cause of action.
Moreover, in footnote 3, the Court potentially cast doubt on all "prudential standing" as an "inapt" label. Prudential standing has historically consisted of three doctrines: Zone of Interest; No Third-Party Standing; and No Generalized Grievances. This case establishes the first as a merits inqury. In FN 3, the Court said that recent cases have treated the third as a matter of the Article III case-or-controversy requirement rather than as prudential. As for the second, the Court noted that some cases suggesting it is "closely related" to whether the plaintiff has a right of action, although most cases have not framed it that way. It expressly left that question for another day, although the tenor of this opinion and this footnote suggest a reluctance to keep this category alive. In other words, something is either a true Article III inquiry or a merits inquiry, with no fuzzy middle ground.
As an admitted adherent to the William Fletcher "it's all merits improperly constitutionalized" view of standing, this is a move in the right direction.
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I was hoping you'd post on this. So, do you think that all the cases cited in Steel Co, which are alluded to but not expressly disagreed with in footnote 4 of Lexmark, where the Court held that zone of interests inquiries were non-merits questions that a court could decide before a difficult question of subject-matter jurisdiction, were implicitly overruled today?
Posted by: Anon | Mar 25, 2014 4:00:18 PM
Msybe. I kept waiting for some discussion of Steel Co., which seemed to treat statutory standing as real standing (despite a lot of good language about the jurisdiction/merits divide), which contradicts what the Court did today. This aspect of it was mentioned in FN 4, but that was it.
Posted by: Howard Wasserman | Mar 25, 2014 4:52:16 PM
Does the case dial up the Tw-Iqbal standard at all? As I was reading it, it seemed to me like the Court was encouraging federal defendants generally to consider more carefully the use of a motion to dismiss to nail down the pleading of proximate causation. Not sure though ...
Thoughts, as a Civ Pro guru?
Posted by: Joe Miller | Mar 25, 2014 5:24:01 PM
Well, I thought what the majority said in Steel Co - or at least what it said in Ruhrgas and Sinochem it said in Steel Co. - was that a court can pick any non-merits, non-jurisdictional ground on which to dismiss a case. And statutory standing wasn't real standing, but it wasn't a merits ground of dismissal either, so it was okay to address it before jurisdiction. And then in Sinochem, we're told a court can dismiss on grounds of forum non conveniens without reaching jurisdictional issues, and forum non conveniens certainly isn't jurisdictional, but it is non-merits. So I don't think prudential standing has to be treated as real standing for that part of Steel Co. to survive, but it does have to be a "threshold ground for denying audience to a case on the merits." Whether the zone of interests test is still such a ground after today is extremely muddy to me.
Posted by: Anon | Mar 25, 2014 5:36:49 PM
I didn't necessarily read it that way. But I certainly can see a wave of defendants using 12(b)(6) to challenge the allegations of proximate cause, with the usual inconsistent results from district courts.
Posted by: Howard Wasserman | Mar 25, 2014 5:37:41 PM