Litigating Article III standing: a proposed solution to the serious (but unrecognized) separation of powers problem.

• Author: Redish, Martin H.

INTRODUCTION I. LIMITATIONS ON SUBJECT MATTER JURISDICTION AS MANIFESTATIONS OF THE SEPARATION OF POWERS THEORY. A. The Case-or-Controversy Requirement, the Private Rights Model, and Article III Standing B. Issue- and Party-Based Limitations on Subject Matter Jurisdiction C. Courts as Courts: Contrasting the Case-or-Controversy Requirement with Issue- or Party-Based Limitations on Jurisdiction II. LITIGATING ARTICLE III STANDING: THE PUZZLING CURRENT PRACTICE AND WHY IT UNDERMINES THE SEPARATION OF POWERS A. Jurisdictional Primacy and Rule 12(b)(1) B. The Progressively Shifting Burden Approach to Litigating Article III Standing C. The Prejudgment Footprint and the Separation of Powers III. MODIFYING THE LITIGATION OF STANDING TO PROTECT THE SEPARATION OF POWERS: A PROPOSED SOLUTION IV. ANTICIPATING CRITICISMS OF THE PROPOSED SOLUTION A. Seventh Amendment Right to a Jury Trial B. Inefficiency and Delay C. Efficacy of the Proposed Solution CONCLUSION INTRODUCTION

At one point or another, every law student likely encounters Lujan v. Defenders of Wildlife, in which the Supreme Court succinctly restated the elements of Article III standing (1) before deciding that the plaintiffs lacked it. (2) But what likely escapes notice, even of students fresh out of a Civil Procedure course, is that the Lujan Court decided the issue of standing on a motion for summary judgment, (3) rather than on a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The Court did so even though a challenge to standing unquestionably involves a challenge to subject matter jurisdiction. Moreover, its decision to reject standing came several years after the Eighth Circuit had decided that the plaintiffs had adequately alleged standing to survive a motion to dismiss. (4) In a manner identical to standard treatment of issues on the merits, the Lujan Court confirmed that the plaintiff's burden to produce evidence supporting Article III standing progressively increases as litigation proceeds from the motion to dismiss stage to the summary judgment stage and, eventually, to trial. (5) As a result, the parties and courts endured years of litigation only to discover that there was no valid case or controversy in the first place. This outcome was strange because a court's exercise of its coercive power over litigants absent a case or controversy violates fundamental separation of powers principles. (6)

To understand the problem, it is helpful to review the role of standing in implementing Article III's case-or-controversy requirement. The case-or-controversy requirement is arguably the most important limitation on federal courts' jurisdiction. It prevents the unelected judiciary from exercising executive or legislative powers, the exclusive province of the politically accountable branches of government, (7) and restricts federal courts to their traditional adjudicatory role. (8) As the Supreme Court recognized in Marbury v. Madison, this traditional adjudicatory role was limited to the resolution of real private disputes. (9) In our constitutional democracy, then, the judiciary may make law only as an incident to the resolution of live disputes. Accordingly, the Court has required any plaintiff seeking an Article III federal forum to demonstrate standing by satisfying three criteria: (1) a concrete injury in fact, (2) that is fairly traceable to the defendant's conduct, and (3) that can be redressed by a favorable decision. (10) A generalized injury or a mere desire to see that the law is enforced does not suffice. (11) Under this private-rights model, the plaintiff must establish Article III standing to satisfy the case-or-controversy requirement, thus preserving the delicate balance of separation of powers.

If a federal court exercised its coercive power over a litigant in a proceeding that did not satisfy the case-or-controversy requirement, it would upset this careful balance. True, as a formal matter, a court exercises its coercive power only upon entry of a final judgment. Some might therefore argue that it makes no difference whether a federal court determines standing at the outset of a suit on a Rule 12(b)(1) motion to dismiss or at the close of the far more extended process of pleading, discovery, and summary judgment. But the practical realities of modern litigation suggest that a court exercises coercive power well before final judgment. (12) As the Supreme Court has recognized in nonjurisdictional contexts, even allowing a plaintiff to obtain discovery can coerce a defendant into an in terrorem settlement--effectively causing litigants to modify their primary conduct absent a formally coercive court order. (13) The costs and burdens of litigation are likely to influence or even coerce litigant behavior long before the formal resolution of a suit.

When this inescapable reality combines with the foundational separation of powers concerns motivating Article III's case-or-controversy requirement, Lujan's method for determining constitutional standing becomes extremely problematic. By declining to demand the requisite showing of injury in fact, traceability, and redressability at the very outset of a suit, the Lujan approach pressures defendants to settle--even in the absence of a genuine case or controversy. For this reason, it is critical to resolve disputes over subject matter jurisdiction (both legal and factual) at the very outset of litigation. It is especially important to do so if the existence of a case or controversy is in doubt, because a court risks straying beyond its judicial role and thus threatening the separation of powers.

Rules 12(b)(1) and 12(h) of the Federal Rules of Civil Procedure together address this concern by (1) allowing litigants to challenge a court's subject matter jurisdiction at any time, (2) prohibiting litigants from waiving challenges to subject matter jurisdiction, and (3) requiring federal courts to raise the issue sua sponte if the parties fail to do so. (14) Although not explicitly permitted by the Rules, it is well established that a court evaluating a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) may look beyond the pleadings and engage in fact finding. (15) This process may involve ordering limited discovery related to issues involving subject matter jurisdiction and making credibility determinations as needed. (16)

The Supreme Court, however, has mysteriously chosen to handle disputes over Article III standing as if Rule 12(b)(1) does not exist. (17) Instead of requiring lower courts to resolve standing issues fully (including any necessary factual determinations) through a Rule 12(b)(1) motion as soon as they are raised, the Court treats standing exactly the way it treats any other issue on the merits. Thus, if the defendant challenges the plaintiff's standing by filing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court will resolve the motion just as it resolves other Rule 12(b)(6) motions by taking the plaintiffs allegations of standing in the complaint as true. If the defendant chooses to challenge standing by means of a summary judgment motion under Rule 56 of the Federal Rules of Civil Procedure, a court will require the plaintiff to produce enough evidence to enable a reasonable factfinder to find that she has standing. In ruling on summary judgment, a court will construe all evidence in the plaintiffs favor. (18) In other words, just as they do for resolution of issues on the substantive merits, courts impose a progressively shifting burden of proof for issues of standing as litigation proceeds. As a result, courts often fail to determine conclusively whether the plaintiff has Article III standing until the trial stage.

This practice is troubling because it can subject the parties to lengthy and costly litigation even though the plaintiff may ultimately lack Article III standing. By deferring resolution of the standing issue, courts force defendants into a Hobson's choice--either incur the expense of litigation or settle the case--without having conclusively established the existence of a valid case or controversy. Thus, courts effectively force defendants to modify their primary conduct in response to the cloud of federal litigation hanging over them. (19) Under circumstances in which a plaintiff lacks constitutionally authorized standing, a court's exercise of power in a manner that induces settlement violates separation of powers. The Supreme Court seems blissfully unaware of these consequences, even though it readily recognizes the link between separation of powers, the case-or-controversy requirement, and Article III standing in other contexts.

The problem is not confined to waste and inefficiency. The Court's current practice also undermines the constitutional limits of the federal judiciary in our democratic system. The federal judiciary is central to our governmental structure yet, by design, lacks political accountability. (20) To the extent that the federal courts coercively impact the lives of citizens in a manner not incident to the resolution of live disputes, they have exceeded their legitimate role in a democratic society and seriously undermined our constitutionally dictated system of separation of powers.

To remedy this situation, the Court should instruct lower courts to resolve questions about Article III standing as soon as its existence is put into doubt. (21) Specifically, courts should address all factual issues relevant to standing by conducting limited discovery and making credibility determinations without inferences in favor of the plaintiff. This proposal requires all issues of standing to be raised on a Rule 12(b)(1) motion to dismiss rather than on a Rule 12(b)(6) motion to dismiss, a Rule 56 summary judgment motion, or any other motion associated with the merits of the dispute. Such an approach would ensure that...