Plaintiffs who wish to pursue a claim under federal law generally must clear two standing hurdles: (1) prudential standing and (2) Article III standing. The former encompasses “the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751 (1984).
Is prudential standing jurisdictional? Last Friday in Grocery Manufacturers Association v. E.P.A., the D.C. Circuit answered this question in the affirmative, creating a split among the circuits. No. 10-1380 consolidated with 10-1414, 11-1002, 11-1046, 11-1072, 11-1086 (D.C. Cir. Aug. 17, 2012).
Dissenting, Judge Brett Kavanaugh criticized the majority’s position as inconsistent with recent guidance provided by the Supreme Court:
In recent years, the terminology of jurisdiction has been put under a microscope at the Supreme Court. And the Court has not liked what it has observed — namely, sloppy and profligate use of the term "jurisdiction" by lower courts and, at times in the past, the Supreme Court itself. These recent Supreme Court cases have significantly tightened and focused the analysis governing when a statutory requirement is jurisdictional.
Id. (Kavanaugh, J., dissenting). Although Judge Kavanaugh conceded that the Supreme Court has yet to directly address the issue, he read the Court’s recent guidance as suggesting that prudential standing is not jurisdictional. Moreover, Judge Kavanaugh pointed out that the D.C. Circuit’s decision conflicts with decisions from the other circuits that have addressed the issue:
Several courts of appeals have addressed the prudential standing issue in recent years — that is, since the Supreme Court's intensified focus on proper use of the term jurisdiction. And those courts likewise have determined that prudential standing is not jurisdictional. See, e.g., Board of Mississippi Levee Commissioners v. EPA, 674 F.3d 409, 417 (5th Cir. 2012) ("Unlike constitutional standing, prudential standing arguments may be waived."); Independent Living Center of Southern California, Inc. v. Shewry, 543 F.3d 1050, 1065 n.17 (9th Cir. 2008) ("Unlike the Article III standing inquiry, whether ILC maintains prudential standing is not a jurisdictional limitation on our review. By failing to articulate any argument challenging ILC's prudential standing, the Director has waived that argument.") (citation and internal quotation marks omitted); Rawoof v. Texor Petroleum Co., 521 F.3d 750, 756 (7th Cir. 2008) ("Prudential-standing doctrine is not jurisdictional in the sense that Article III standing is.") (internal quotation marks omitted); Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007) ("Prudential standing is not jurisdictional in the same sense as Article III standing. . . . We could therefore decline to address this argument, as it was not raised in the court below."); Gilda Industries, Inc. v. United States, 446 F.3d 1271, 1280 (Fed. Cir. 2006) ("In the end, we do not need to reach or decide the question whether Gilda satisfies the standing requirements of the Administrative Procedure Act, because the government did not contend in its brief that Gilda's complaint should be barred by the zone of interests test. The government has thus waived that argument."); see also, e.g., American Iron & Steel Institute v. OSHA, 182 F.3d 1261, 1274 n.10 (11th Cir. 1999) ("We can pretermit the more difficult question regarding whether the Doctors' members' interests fall within the zone of interests protected by the OSH Act because prudential standing is flexible and not jurisdictional in nature.") (citations omitted).
Id. Judge Kavanaugh capped off his dissenting opinion with the following remarks, which are sure to catch the Supreme Court's attention:
Contrary to the weight of authority and the direction marked by the Supreme Court, the majority opinion here concludes that prudential standing is jurisdictional. The majority opinion thus creates a deep and important circuit split on this important issue. In my respectful view, the Supreme Court's recent decisions on jurisdiction show that the majority opinion is incorrect on this point.
Id. (internal citations omitted).