Friday, November 15, 2013

Ripe for Review or a “Stale Slice of Precedent”? Eighth Circuit and D.C. Circuit Raise Question of Whether Prudential Standing is Jurisdictional, Waivable

In Lucas v. Jerusalem Café, LLC, 721 F.3d 927 (8th Cir. 2013), the U.S. Court of Appeals for the Eighth Circuit declined to decide the question of whether prudential standing was waivable, but in the process canvassed the federal appellate case law on a subject that has produced strong opinions from federal judges, including in a 2012 D.C. Circuit decision holding that prudential standing is jurisdictional.

In Lucas, six employees of a cafe claimed that their former employer did not pay them minimum wage and overtime for their work over a three year period, in violation of the Fair Labor Standards Act (FLSA). Id. at 930-933. At the trial level, the plaintiffs won a jury verdict, and the district court entered judgment for them. The employer appealed to the Eighth Circuit, arguing for the first time that, as undocumented individuals without work authorization, the employees were not in the zone of interest of the FLSA, and thus lacked prudential standing to sue. Id. at 938.

Before deciding a case, a federal court must have both constitutional standing and prudential standing. Unlike with constitutional standing, Congress can – and sometimes does – override the requirements of prudential standing through statute. See Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 400 n.16 (U.S. 1987). In brief, the three elements of prudential standing are: (1) litigants may not assert the rights of third parties; (2) courts should refrain from adjudicating matters of wide public significance which amount to generalized grievances more appropriately resolved by other branches of government; and (3) litigants must demonstrate that their asserted interests are arguably within the zone of interests intended to be protected by the statute, rule, or constitutional provision upon which the claim is based. See Allen v. Wright, 468 U.S. 737, 751 (1984); Int’l Ass’n of Firefighters of Saint Louis v. City of Ferguson, 283 F.3d 969, 973-74 (8th Cir. 2002).

On appeal in Lucas, the Eighth Circuit faced the question of whether the appellant-employer’s prudential standing argument was waivable, as it had not been raised before the lower court. The Eighth Circuit noted first that “our court has never directly decided whether prudential standing is a waivable exercise in judicial self-restraint or a jurisdictional bar ‘determining the power of the court to entertain the suit.’” Lucas, 721 F.3d at 938 (quoting Urban Contractors Alliance of St. Louis v. Bi-State Dev. Agency, 531 F.2d 877, 881 (8th Cir. 1976). The Eighth Circuit ultimately declined to resolve the waivability issue in Lucas. Instead, the court concluded that regardless of whether prudential standing was waivable or jurisdictional, under either analysis the employees had prudential standing, because the FLSA covered all employees in the U.S. (except those expressly exempted), not just those authorized to work in the country. Id.

In raising the question of the whether prudential standing is waivable, and then declining to answer it, the Eighth Circuit cited Judge Brett Kavanaugh’s dissent in Grocery Manufacturers Association v. EPA, 693 F.3d 169 (D.C. Cir. 2012). In that case, a two-judge majority in the D.C. Circuit, composed of Chief Judge Sentelle and Judge Tatel, held that a group of trade associations lacked prudential standing to challenge the Renewable Fuel Standard waivers granted by the EPA because the associations were not in the “zone of interests to be protected or regulated by” the Energy Policy Act at issue in the case. Id. at 179 (quoting Nat'l Petrochem. Refiners Ass'n v. EPA, 287 F.3d 1130, 1147, 351 U.S. App. D.C. 127 (D.C. Cir. 2002)).  The EPA had not raised prudential standing as a defense to the lawsuit, and so the majority’s conclusion was based upon its unspoken assumption that the court had the capacity to examine prudential standing sua sponte. This action meant that, in the court’s view, prudential standing was a jurisdictional principle, rather than a waivable one.

In a strongly-worded dissent, Judge Kavanaugh argued that the majority’s decision was contrary to those of the Fifth, Seventh, Ninth, Tenth, Eleventh, and Federal Circuits, all of which have concluded that prudential standing is flexible, not jurisdictional, and that federal appellate courts have the power to deem a prudential standing defense waived if it had not been argued at the lower court level. Id. at 184 n.10 (citing Board of Mississippi Levee Commissioners v. EPA, 674 F.3d 409, 417 (5th Cir. 2012); Independent Living Center of Southern California, Inc. v. Shewry, 543 F.3d 1050, 1065 n.17 (9th Cir. 2008); Rawoof v. Texor Petroleum Co., 521 F.3d 750, 756 (7th Cir. 2008); Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007); Gilda Industries, Inc. v. United States, 446 F.3d 1271, 1280 (Fed. Cir. 2006); American Iron & Steel Institute v. OSHA, 182 F.3d 1261, 1274 n.10 (11th Cir. 1999)).

Judge Kavanaugh noted that the majority’s opinion was also contrary to recent D.C. Circuit decisions finding that prudential standing was not jurisdictional. Id. at 185 n.4 (citing American Chiropractic Ass'n v. Leavitt, 431 F.3d 812, 816 (D.C. Cir. 2005); Toca Producers v. FERC, 411 F.3d 262, 265 (D.C. Cir. 2005); Amgen Inc. v. Smith, 357 F.3d 103, 111 (D.C. Cir. 2004)). He said that only older D.C. Circuit opinions on the subject held that prudential standing is jurisdictional, and therefore the majority was “cling[ing] to a stale slice of our precedent - precedent which not only has been undermined by subsequent Supreme Court decisions but also has not been followed by our Court in several recent cases.” Id.

Judge Kavanaugh went on to opine that the majority’s conclusion “creates a deep and important circuit split on this important issue.” Id. at 185. Although the Supreme Court has not directly decided the issue, it has stated that the resolution of prudential standing is a “threshold question,” which “may be resolved before addressing jurisdiction.” Id. at 184 (quoting Tenet v. Doe, 544 U.S. 1, 7 (2005)) (emphasis in original).

For now, the weight of authority appears to be on Judge Kavanaugh’s side. As he noted in his dissent, the majority of the Circuits have answered the question as he would, and the D.C. Circuit itself has issued several opinions agreeing with his view. See American Chiropractic Ass'n, 431 F.3d at 816; Toca Producers, 411 F.3d at 265; Amgen Inc., 357 F.3d at 111. If other courts join the D.C. Circuit in its holding, the Supreme Court may be apt to resolve the split on the issue.

For additional discussion about this matter, see: Bradford C. Mank, Is Prudential Standing Jurisdictional?, 46 Case W. Res. L. Rev. (forthcoming 2013), available at (last visited November 15, 2013). 

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