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Wednesday, June 18, 2014

More on SBA List and standing

Marty Lederman offers some thoughts at SCOTUSBlog on the future of standing after SBA List. He focuses on something I glossed over a bit: The seeming inconsistency between Clapper, which required that an injury be "certainly impending," and prior case law (referred to in passing in a footnote in Clapper) which only required a "substantial risk" of harm. In SBA List, Justice Thomas presents them as alternative standards. Marty parses the decision, suggesting the Court applied a uniquely forgiving standard there, given that there was little chance (not even substantial and certainly not "certainly impending") of the state bringing a criminal prosecution on top of the administrative proceedings that were more likely. He also argues that the Court has the flexibility to make the requirements looser or stricter, depending on future contexts (considering, e,g., whether free speech is involved or whether election issues are involved or something else).

That "something else" might be the difference between challenges to regulations of the public's primary conduct as opposed to regulations of law-enforcement techniques and practices.

Posted by Howard Wasserman on June 18, 2014 at 12:53 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


But we get to the same place, since the take-away from this case is we are not sure what is left for ripeness to do. The question of imminence was swallowed by standing (and the Court has twice acknowledged the overlap, then used standing as the basis for decision). And the Court suggested that the two "prudential" aspects of ripeness, on which the Sixth Circuit relied, may not be part of ripeness at all.

As for standing on the original complaint and arguing mootness: As a plaintiff, it seems to me that voluntary cessation is the wrong way to get around mootness. That typically applies to promises not to enact or enforce administrative regulations or to make enforcement decisions, but not to the termination of of particular proceedings. The reinstitution of proceedings likely creates a new proceeding, subject to a new challenge, but it is not reinstating the earlier challenged action. The better ground, I think, would be to argue capable of repetition, although I doubt they would win on that.

Posted by: Howard Wasserman | Jun 18, 2014 7:01:15 PM

Duh. Forget the last bit. The SBA attorneys didn't screw up too badly because they, um, won. But I still submit they should have kept in the prior claim and fought over mootness.

Posted by: Curious | Jun 18, 2014 1:05:40 PM

In reverse order:

"Second, since you acknowledge that ripeness could be an issue at this stage and ripeness and standing overlap ( if not one swallowing the other), then standing as to the amended pleading makes sense."

Sure, they overlap, but not completely, and not completely in a very important way. There are exceptions to ripeness (and mootness) that wouldn't be possible if they were constitutional limitations. And, in fact, one or two of those exceptions apparently applied in a very important way. But...

"First, standing is claim-specific; a plaintiff can have standing as to some claims and not as to others."

This is the answer. Though, insofar as SCOTUS pegs AIII standing on the "case and controversy" language, it can't be right, right? That is, if there is a legitimate case and controversy with respect to one claim between two parties, the AIII analysis really should be over at that point, right? The matter is properly in federal court, at which point it becomes a nonconstitutional exercise in determining what claims the court can and can't adjudicate.

In any event, counsel for SBA really screwed up by amending the complaint to omit a claim for the actual (though terminated) investigation. If they had just kept the complaint as is, or kept the prior claim and just added a prospective one (which is probably unnecessary, since I assume they were asking for dec relief that would have that effect) then they would have had a fighting chance in the subsequent mootness/voluntary cessation kerfuffle. (There was a Tenth Circuit case along those lines a few years ago in which the agency dropped the investigation because of an intervening third party act; the state won, if I recall correctly, but that doesn't mean the Sixth would go the same way.)

Posted by: Curious | Jun 18, 2014 1:01:54 PM

Two things. First, standing is claim-specific; a plaintiff can have standing as to some claims and not as to others. Usually that's remedy-based (standing for damages but not for equitable relief). But it could be that a plaintiff is challenging both ongoing and future enforcement.

Second, since you acknowledge that ripeness could be an issue at this stage and ripeness and standing overlap ( if not one swallowing the other), then standing as to the amended pleading makes sense.

Posted by: Howard Wasserman | Jun 18, 2014 12:40:30 PM


Howard, that's not exactly how I read the chain of events. The lawsuit ultimately taken up to SCOTUS apparently was, in fact, filed while there were ongoing state proceedings (on October 14, 2010). The state moved to stay the action under Younger, and the request was granted (as it should have been). The complaining candidate lost, he withdrew his complaint, and the administrative proceedings were dropped. The court lifted the stay, then the SBA amended its complaint -- which had never been dismissed, much less dismissed with prejudice -- to challenge future proceedings.

The usual rule is that if there is standing at the moment the lawsuit is filed, there will be standing throughout the case, regardless if subsequent events operate to remove the injury. Mootness and ripeness are the (non-AIII) doctrines that kick in at that point to weed out cases that shouldn't be in court. The one thing I don't know for sure is whether the rule changes if you amend your complaint during the course of the lawsuit to solely allege a harm that doesn't constitute an injury-in-fact, but to be honest, I'd be shocked if that constitutes a constitutional defect. The case is properly brought under AIII standing principles.

Posted by: Curious | Jun 18, 2014 12:22:50 PM

The lawsuit was over ads they wanted to run in the future, but for fear they again would be subject to proceedings (with past proceedings being evidence of likely imminent harm).

An action once the earlier proceedings had begun probably would have been Younger-barred.

Posted by: Howard Wasserman | Jun 18, 2014 12:08:34 PM

Quick question. If I understand the facts correctly, there was an active complaint and ongoing investigation when the SBA lawsuit was filed. Doesn't that resolve the standing question full stop? In other words, the fact pattern of investigation->lawsuit->cessation of investigation is a mootness one, right? Not standing? What am I missing (besides, apparently, a period key on my keyboard)?

Posted by: Curious | Jun 18, 2014 11:22:37 AM

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