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.
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