Distinct Sources of Law and Distinct Doctrines: Federal Jurisdiction and Prudential Standing

• Publication year: 2021

DISTINCT SOURCES OF LAW AND DISTINCT DOCTRINES: FEDERAL JURISDICTION AND PRUDENTIAL STANDING

William James Goodling

Abstract: Federal courts are courts of limited jurisdiction. Their jurisdiction is limited by subject-matter jurisdiction, personal jurisdiction, and, to an uncertain extent, standing. While it is well established that Article III standing is jurisdictional, the federal circuit courts are divided on whether judge-made prudential standing is jurisdictional, and the Supreme Court has not directly weighed in. The jurisdictional status of a doctrine has two important procedural consequences. First, litigants cannot forfeit a defense for lack of jurisdiction, meaning that such a defense can be raised for the first time on appeal. Second, federal courts have a sua sponte obligation to ensure that jurisdiction is proper. This Comment contends that prudential standing should not be considered jurisdictional but that federal courts should nevertheless have the discretion to raise the issue sua sponte. Prudential standing should not be considered jurisdictional because considering a court-created doctrine as jurisdictional violates the basic principle that only the Constitution and Congress hold the power to set federal courts' jurisdiction, because a recent line of Supreme Court cases reinforces that court-created doctrines cannot be jurisdictional, and because prudential standing concerns litigants' lack of rights on the merits, not federal courts' adjudicatory authority. Federal courts, however, should have a discretionary sua sponte ability to raise the issue because prudential standing is an inherently flexible doctrine, and because federal courts raise in their discretion three other non-jurisdictional doctrines-the requirement that habeas corpus petitioners exhaust state remedies, Pullman abstention doctrine, and prudential ripeness doctrine-that, like prudential standing, originated as judge-made doctrines designed to protect interests beyond the litigants' individual interests.

INTRODUCTION

"Jurisdiction," the Supreme Court has warned, "is a word of many, too many, meanings."(fn1) Accordingly, in a line of more than ten cases over the last decade,(fn2) the Court has sought to "bring some discipline" to the use of the term.(fn3) In this line of cases, the Court has refined the analysis concerning when a rule will be considered jurisdictional by distinguishing between jurisdictional rules,(fn4) on the one hand, and elements of the merits(fn5) or claim-processing rules,(fn6) on the other hand.

Despite this Supreme Court case law, a conspicuous jurisdictional question involving standing doctrine remains unresolved. Standing encompasses two distinct doctrines: prudential standing is a judge-made doctrine, while Article III standing derives from the U.S. Constitution.(fn7) Broadly speaking, both doctrines aim to limit the lawsuits in federal courts to only "real, earnest, and vital controvers[ies],"(fn8) so as to ensure "the proper-and properly limited-role of the courts in a democratic society."(fn9) While the Court has clearly established that Article III standing is jurisdictional,(fn10) the Court has not directly weighed in on whether prudential standing is jurisdictional,(fn11) and the federal circuits are mired in a "deep and important circuit split" on the issue.(fn12) Three circuit courts hold that prudential standing is jurisdictional,(fn13) and seven circuit courts hold that it is not.(fn14)

Rather than a matter of semantics, whether prudential standing is jurisdictional has "considerable practical importance for judges and litigants"(fn15) because jurisdictional rules alter "the normal operation of our adversarial system."(fn16) In the normal adversarial system, if a party fails to raise an issue in district court proceedings, the party generally waives the issue on appeal.(fn17) For jurisdictional issues, by contrast, a party does not waive disputing the issue on appeal by failing to dispute it in proceedings below, and, moreover, federal courts must raise jurisdictional issues sua sponte if jurisdiction is lacking.(fn18) Because of these "drastic"(fn19) jurisdictional procedures, litigants may be "disturbingly disarm[ed]"(fn20) when the issue is raised for the first time on appeal, and "many months of work on the part of the attorneys and the court may be wasted" if jurisdiction is found to be lacking.(fn21) Despite this potential for waste and unfairness, overriding structure-of-government concerns underlie these jurisdictional procedures: jurisdiction defines the institutional power of federal courts, and ensuring that federal courts only enter judgments within their proper institutional role is simply too fundamental to be waived.(fn22)

This Comment is divided into two parts: Background(fn23) and Argument.(fn24) First, the Background briefly surveys the relevant aspects of the other elements of federal jurisdiction: subject-matter jurisdiction,(fn25) personal jurisdiction,(fn26) and Article III standing.(fn27) Second, the Background discusses prudential standing doctrine and the circuit courts' divergent positions on whether it is jurisdictional.(fn28) Third, the Background discusses the recent line of Supreme Court cases that has refined the analysis concerning when a rule should be considered jurisdictional.(fn29)

The Argument advances two propositions. First, the Argument contends that prudential standing should not be considered jurisdictional,(fn30) because only the Constitution and Congress hold the power to set federal courts' jurisdiction,(fn31) because the Supreme Court's recent cases concerning jurisdiction reinforce that court-created doctrines cannot be jurisdictional,(fn32) and because prudential standing concerns litigants' lack of substantive rights on the merits, not federal courts' adjudicatory authority.(fn33) Second, the Argument contends that federal courts should nevertheless have the sua sponte discretion to raise prudential standing after a litigant has waived the issue,(fn34) because prudential standing is an inherently flexible doctrine,(fn35) and because federal courts raise in their discretion three other non-jurisdictional doctrines-the requirement that habeas corpus petitioners exhaust state remedies, Pullman abstention doctrine, and prudential ripeness doctrine-that, like prudential standing, originated as judge-made doctrines designed to protect interests beyond the litigants' individual interests.(fn36)

I. BACKGROUND

A. Subject-Matter Jurisdiction

Subject-matter jurisdiction is the authority of a court to decide a particular type of case.(fn37) Article III of the Constitution provides that the "judicial Power of the United States shall extend to" nine categories of "Cases" and "Controversies," such as suits arising under the Constitution, laws, and treaties of the United States.(fn38) This provision of Article III, however, does not itself confer jurisdiction on lower federal courts.(fn39) Instead, Congress must authorize by statute lower federal court jurisdiction, within the outermost scope of potential jurisdiction provided by Article III's nine categories of cases.(fn40) This is so because under Article III, Congress has the discretion whether to create lower federal courts,(fn41) which the Supreme Court has reasoned implies that Congress also holds the lesser power to define their jurisdiction.(fn42) Congress currently has set the district courts' subject-matter jurisdiction to include matters arising under the Constitution, laws, and treaties of the United States,(fn43) suits between diverse parties,(fn44) and various subject-specific claims,(fn45) such as admiralty and maritime disputes.(fn46) Congress currently has set the courts of appeals' subject-matter jurisdiction to include all appeals from final decisions of the district courts.(fn47)

A party cannot consent to subject-matter jurisdiction or waive the defense of lack of subject-matter jurisdiction.(fn48) This rule is rooted in the rationale that parties, by their failure to dispute subject-matter jurisdiction, should not be able to confer jurisdiction on a federal court when Congress and the Constitution have not vested jurisdiction in the court.(fn49) The rule is so inflexible that even the party who originally invoked federal jurisdiction can successfully challenge subject-matter jurisdiction after losing on the merits.(fn50) Moreover, all federal courts- trial and appellate-have a sua sponte obligation to dismiss a case if subject-matter jurisdiction is lacking in the case before the court.(fn51) The appellate courts additionally have a sua sponte obligation to dismiss a case if subject-matter jurisdiction was lacking in the court below, even if it is satisfied in the appellate court.(fn52)

In the American adversarial legal system, federal courts rarely have the sua sponte obligation to address an issue in a party's suit.(fn53) However, structural considerations require that courts ensure that subject-matter jurisdiction is proper even if litigants overlook it or attempt to consent to it.(fn54) Because federal courts are courts of limited jurisdiction, allowing litigants to expand by consent the subject-matter jurisdiction of federal courts would be an invasion of state courts' jurisdiction.(fn55) Equally important, allowing litigants to expand the subject-matter jurisdiction of federal courts would authorize the federal judiciary to hear matters that Congress and the...