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Wednesday, January 26, 2011

Statutory standing and merits confusion

One aspect of merits/jurisdiction confusion that I have not explored in detail (yet) is "statutory standing"--how Article III standing relates to whether a plaintiff has rights under a statute and whether he can sue to enforce those rights. Is this a question of standing (which, unfortunately, is treated as a preliminary question of Article III jurisdiction) or the substantive merits of a statutory claim?

In Thompson v. North American Stainless, the plaintiff filed a retaliation claim when he was fired by NAS after his fiancee, who also worked for NAS, had filed a sex discrimination charge with the EEOC. Yesterday, the Court unanimously held that Title VII was violated by such a firing and that the man was a "person claiming to be aggrieved" within the meaning of Title VII; the latter issue was the major focus of the opinion. The Court considered the link between the statutory requirement of a "person claiming to be aggrieved" and the injury-in-fact requirements of Article III. It concluded that the statutory language means more than minimal Article III standing (which was easily satisfied in this case). Instead, the Court imported the "zone of interests" test from the Administrative Procedures Act and judicial review of agency decisions into straight judicial statutory causes of action. Person aggrieved means that, in addition to suffering an injury-in-fact for Article III purposes, the plaintiff holds an interest "arguably [sought] to be protected" by Title VII. It concluded that he did, since the purpose of Title VII is to protect employees from deliberate unlawful acts.

For my purposes, the important point is that the Court handled this as a merits issue and not a justiciability issue. The district court had granted summary judgment in favor of the defendant and the en banc Sixth Circuit had affirmed on that basis. And the Supreme Court spoke entirely in merits terms.  That seems exactly right. Since merits go to "who can sue whom for what conduct and what remedy" under controlling law, then that is precisely what Thompson was about--whether Thompson could sue NAS for firing him in these circumstances under Title VII. Thompson appears to set up an Article III benchmark for statutory causes of action, but now outside the administrative context--when Congress creates a statutory right to sue in a person, the new cause of action must be understood and measured against the limits of Article III justiciability. Nothing new there--that is the point of Lujan, among other cases. But that question can be resolved as one of substantive merits under the statute, not as a preliminary Article III issue. Since I am not going to be able to get rid of justiciability altogether, I think I can live with this solution.

Posted by Howard Wasserman on January 26, 2011 at 09:35 AM in Civil Procedure, Howard Wasserman | Permalink

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Comments

This has also been addressed in the context of ERISA.

Coan v. Kaufman, 457 F. 3d 250, 256 (2d Cir. 2006): "Although we have referred to a plaintiff's status as a "participant" under ERISA as a question of "standing," it is a statutory requirement, not a constitutional one. Unlike Article III standing, which ordinarily should be determined before reaching the merits, statutory standing may be assumed for the purposes of deciding whether the plaintiff otherwise has a viable cause of action."

Harzewski v. Guidant Corp., 489 F. 3d 799, 804-05 (7th Cir. 2007): "Except in extreme cases . . . the question whether an ERISA plaintiff is a "participant" entitled to recover benefits under the Act should be treated as a question of statutory interpretation fundamental to the merits of the suit rather than as a question of the plaintiff's right to bring the suit."

Vaughn v. Bay Environmental Management, Inc., 567 F. 3d 1021, 1022 (9th Cir. 2008): "Although the district court dismissed the case for lack of subject matter jurisdiction, a dismissal for lack of statutory standing is properly viewed as a dismissal for failure to state a claim rather than a dismissal for lack of subject matter jurisdiction. See Lanfear v. Home Depot, Inc., 536 F.3d 1217, 1221-22 (11th Cir.2008) (clarifying that statutory standing under ERISA is a question of merits rather than subject matter jurisdiction); Harzewski v. Guidant Corp., 489 F.3d 799, 803-04 (7th Cir.2007) (same)."

Posted by: AF | Jan 28, 2011 12:35:33 PM

Howard,
FYI: The Foreign Sovereign Immunities Act implicates similar standing versus jurisdiction problems.

Best,
Jen Kreder

Posted by: Jen Kreder | Jan 27, 2011 4:34:45 PM

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