Friday, February 10, 2017

The issue of standing, as discussed by CA9 in Washington v. Trump

The issue in Washington v. Trump (2017 U.S. App. LEXIS 2369) was the federal government's motion for an emergency stay of the district court's temporary restraining order [TRO] while its appeal of that order proceeds.

The Ninth Circuit Court of Appeals, in a per curiam opinion, noted that it "must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay."

Whether the states had standing to bring this case was addressed in the following:

The [federal] Government argues that the district court lacked subject matter jurisdiction because the States have no standing to sue. We have an independent obligation to ascertain our jurisdiction, Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), and we consider the Government's argument de novo, see, e.g., Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1098 (9th Cir. 2016). We conclude that the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings.
The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law. See, e.g., Hontz v. State, 714 P.2d 1176, 1180 (Wash. 1986) (en banc); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001).

Specifically, the States allege that the teaching and research missions of their universities are harmed by the Executive Order's effect on their faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.

According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa.


Under the "third party standing" doctrine, these injuries to the state universities give the States standing to assert the rights of the students, scholars, and faculty affected by the Executive Order. See Singleton v. Wulff, 428 U.S. 106, 114-16 (1976) (explaining that third-party standing is allowed when the third party's interests are "inextricably bound up with the activity the litigant wishes to pursue"; when the litigant is "fully, or very nearly, as effective a proponent of the right" as the third party; or when the third party is less able to assert her own rights). Vendors, for example, "have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function." Craig v. Boren, 429 U.S. 190, 195 (1976). Likewise, doctors have been permitted to assert the rights of their patients. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965). And advocacy organizations such as the NAACP have been permitted to assert the constitutional rights of their members. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958).


We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States' injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.

We therefore hold that the States have standing

[Note footnote 5: The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as parens patriae. Because we conclude that the States' proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments. ]

On 9 February 2017, the CAFC touched on the issue of standing in PPG v. Valspar, 2017 U.S. App. LEXIS 2310. The "Consumer Watchdog" case was mentioned:

The evidence presented by PPG demonstrates that it possessed more than a "general grievance concerning" these patents, sufficient to show "a particularized, concrete interest in the patentability" of the subject matter, as discussed in Consumer Watchdog v. Wisconsin Alumni Research Foundation, 753 F.3d 1258, 1263 (Fed. Cir. 2014).
PPG's standing thus differs from the scenario we faced in Consumer Watchdog. Unlike Consumer Watchdog, PPG is and was "engaged in . . . activity involving [the patented subject matter] that could form the basis for an infringement claim," and has "other connection[s] to the [patents] or the claimed subject matter," Consumer Watchdog, 753 F.3d at 1261, sufficient to "have a particularized, concrete stake in the outcome of the reexamination," id. at 1262. This stake is enhanced by the "estoppel provisions contained within the inter partes reexamina-tion statute." Id. This is sufficient to establish PPG's standing to appeal the Board's decision.

PPG also stresses the statutory appeal paths for judicial review of PTAB decisions. It is unlikely that the legislative intent was, by silence, to limit appeals from PTAB decisions to parties then in litigation in the district court. In any event, as we recognized in Consumer Watchdog, although the immediacy and redressability requirements for Article III standing can be relaxed when Congress accords a procedural right to a litigant-e.g., the right to appeal an administrative decision-the "requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute." Id. at 1261

Of the matter of "third party standing," the Third Circuit in PENNSYLVANIA PSYCHIATRIC SOCIETY, 280 F.3d 278 has addressed the issue.

While successful third-party standing claims have involved alleged violations of third parties' constitutional rights, Singleton and its progeny have not stipulated that constitutional claims are a prerequisite. It is true that the rule against third-party standing normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves. Furthermore, the United States Supreme Court has noted that courts must consider the relationship of the litigant to the person whose rights are being asserted, the ability of the person to advance his own rights, and the impact of the litigation on third-party interests. But the Court has not held that a constitutional claim must also be alleged. Simply raising a third party's constitutional claims will not in and of itself satisfy the requirements for third-party standing. For instance, a litigant may not assert a third party's Fourth Amendment rights against unreasonable search and seizure to prevent the admission of damaging evidence.

The Third Circuit in Amato 952 F.2d 742 observed

The longstanding basic rule of third party standing is that "in the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties." Powers v Ohio, 113 L. Ed. 2d 411, 111 S Ct 1364, 1370 (1991). The rule serves at least two judicial purposes. First, the rule fosters judicial restraint: courts faced with unsettled questions avoid pronouncements that are perhaps unnecessary and undesirable because the rightholders do not wish to assert their rights. See Secretary of State of Maryland v Munson, 467 U.S. 947, 955, 104 S Ct 2839, 81 L. Ed. 2d 786 (1984); Singleton v Wulff, 428 U.S. 106, 113-14, 96 S Ct 2868, 49 L. Ed. 2d 826 (1976) (plurality opinion). Second, the rule assures concrete, sharp presentation of the issues and enables courts to avoid ruling on abstract grievances. Generally, the third party will be the best advocate of its own position, and the plaintiff may place a slightly different, self-interested "spin" on its presentation. See Munson, 467 U.S. at 955; Singleton, 428 U.S. at 114.

The general rule against third party standing is not ironclad, however. The rule does not reflect an Article III "Case or Controversy" requirement, but stems from prudential concerns. See, for example, Caplin & Drysdale, Chartered v United States, 491 U.S. 617, 623 n. 3, 109 S Ct 2646, 105 L. Ed. 2d 528 (1989); Hodel v Irving, 481 U.S. 704, 711; 107 S. Ct. 2076 , 95 L. Ed. 2d 668 (1987); Craig v Boren, 429 U.S. 190, 193, 97 S Ct 451, 50 L. Ed. 2d 397 (1976). Accordingly, in limited circumstances where the policies supporting the general rule are not served, the Supreme Court has approved third party standing. See Singleton, 428 U.S. at 114-15. Where rightholders are unable to raise their own rights and their relationship with the plaintiff suggests an identity of interests, courts can be more certain that the litigation is necessary and that the issues will be framed clearly and effectively. See id at 114-16. Moreover, other policy considerations, notably the fear of chilling expression in First Amendment cases, may at times outweigh the policies behind the general rule against [page 749] third party standing. See, for example, Munson, 467 U.S. at 956-60.

The Supreme Court has thus recognized the dangers inherent in third party standing, yet has also recognized that third party standing may at times be appropriate. While the Justices have frequently disagreed on the proper outcomes in third party standing cases, the Court's opinions do give federal courts rather clear guidance on what factors are relevant in determining whether to make an exception to the general rule. Where a plaintiff asserting third party standing has suffered concrete, redressable injury (that is, the plaintiff has Article III standing), federal courts are to examine at least three additional factual elements before allowing the suit to proceed. Caplin & Drysdale, 491 U.S. at 623 n. 3. First, the court must examine the relationship between the plaintiff and the third party whose rights are asserted; second, the court must consider the ability of the third party to advance its own rights -- whether some obstacle impedes the rightholder's own suit; and third, the court must inquire into the impact on third party interests -- whether the plaintiff and the third party have consistent interests. Id.

Separately, from 20 F.3d 1118:

A second factor recognized by the Supreme Court as a justification for third-party standing is the existence of a substantial relationship between the litigant and the third party. As the Supreme Court recognized in Singleton, in certain circumstances "the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter." 428 U.S. at 115, 96 S. Ct. at 2874. In the past, the Supreme Court has recognized various relationships that may give rise to third-party standing. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 481, 85 S. Ct. 1678, 1679, 14 L. Ed. 2d 510 (1965) (doctor-patient); United States Dep't of Labor v. Triplett, 494 U.S. 715, 721, 110 S. Ct. 1428, 1432, 108 L. Ed. 2d 701 (1990) (attorney-client); Craig v. Boren, 429 U.S. 190, 192-93, 97 S. Ct. 451, 454, 50 L. Ed. 2d 397 (1976) (vendor-vendee). Where this "congruence of interests" exists, it may be "necessary and appropriate" for the litigant to raise the rights of the third party. Powers, 499 U.S. at 414, 111 S. Ct. at 1372.


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