It is common among academics to deride the coherence of the Supreme Court’s various opinions explaining the doctrine of “standing” under Article III of the Constitution. Most of the criticism is quite well deserved. Indeed, I thought it difficult for the Court to do anything that would actually make standing doctrine more incoherent. But I underestimated the Court. For, in the recent decision of Camreta v. Greene, the Court managed to take the jumbled mess of doctrine that applies to standing for district courts, and duplicated it for appellate courts.
Let’s start with what had been relatively clear about standing prior to Camreta. First, the version of standing that needs to be met in order to meet the “case or controversy” requirement of Article III has three basic elements: injury “in fact,” traceability, and redressability. Briefly, plaintiffs must show that they have been (or will shortly be) injured by the acts of the defendants about which they are complaining, and that the court can order some relief that will likely alleviate that injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Second, the focus for standing is generally on the facts as they existed at the outset of the lawsuit. Prior to 2000 this was less clear, but the Supreme Court’s decision in Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167 (2000), distinguished between standing and mootness. The Court confessed that it had caused some confusion by equating the two with such phrases as “the doctrine of mootness is the doctrine of standing set in a time frame” and “the personal stake needed at the outset of a litigation for standing must be kept throughout its existence” (to avoid mootness). Well, the Court said, these phrases were not entirely accurate. They are distinct doctrines, and standing governs the facts as they existed at the outset of the case.
Third, the three elements of standing are required parts of a plaintiff’s case and they must be pled and proved just like any other elements: at the pleading stage, general allegations might suffice, at the summary judgment stage, plaintiffs must set forth evidence sufficient to show that a trier of fact could conclude that the three elements are met, and at the trial stage, plaintiffs must prove the three elements to the trier of fact by whatever standard is applicable, usually the “preponderance of the evidence” standard. Lujan, 504 U.S. at 561.
Now, to be sure, the Court did not adhere to these three features in rock-steady fashion. Seven years after Laidlaw’s insistence that standing was focused on the outset of a lawsuit, the Court analyzed the standing of plaintiffs in Parents Involved In Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 718-20 (2007), and focused almost entirely on the facts as they existed at the time the Court was hearing the case. The next year, though, the Court reverted to form with Davis v. FEC, 554 U.S. 724 (2008), holding that a candidate who looked like he would suffer a competitive injury from the “millionaire’s amendment” in the Bipartisan Campaign Reform Act when he filed his complaint, but who never did (because his opponent did not take advantage of it) had standing.
Now enter Camreta. In Camreta, the plaintiff alleged that the seizure and questioning of her nine-year-old daughter violated the Fourth Amendment and sought damages. The Ninth Circuit, following the permissible (but no longer mandatory) two-part qualified immunity test, agreed that the actions did indeed violate the Fourth Amendment, at least at the summary judgment stage, but held that the two state officials in question (a CPS worker and a policeman) had qualified immunity. The two officials appealed the Ninth Circuit’s finding that they had violated the Fourth Amendment, and the first (and last) question that the Court addressed was whether it had jurisdiction to hear an appeal. The Court’s curious answer: well, it did and it didn’t. Specifically, the Court held that it had jurisdiction to hear an appeal from one of the two prevailing parties, but that the case was moot because the nine-year-old was now almost eighteen and had moved from the area.
The first question had to do with “appellate standing.” An appellant must meet the same Article III prerequisites of injury, traceability, and redressability that a plaintiff must at the outset of the case. In Camreta, the Court held that, because the CPS worker (Mr. Camreta) was still at his job, he would be affected by those portions of the Ninth Circuit opinion that dealt with the Fourth Amendment. (The police officer, on the other hand, had left his job and did not have a continuing stake in the outcome.)
But trying to shoehorn the idea of “appellate standing” into traditional standing doctrine creates problems. Injured? Injured by whom? Mr. Camreta was not injured by the plaintiff, but rather by the Ninth Circuit’s opinion. (He was not injured by its favorable judgment. Prior to Camreta, that would have been fatal to his appeal.) How is this injury to be redressed? By a Supreme Court opinion which disagrees with the Ninth Circuit’s opinion, but which does nothing at all to the Ninth Circuit’s judgment? Will the Supreme Court identify those paragraphs of the lower court’s opinion that need to be excised (reversed? vacated?) in order for the relief to fix the appellant’s injury?
What of the requirement that standing is to be determined at the outset of the lawsuit? Plainly, that does not work for appellate standing, since an appealing defendant would not have been injured at all at the outset of the lawsuit. How about the outset of the appeal? If Mr. Camreta had a job that was affected by the Ninth Circuit opinion when he filed the petition for a writ of certiorari, but then changed jobs later to one in which it was less likely that he would be affected, would he still have had standing?
And perhaps the worst aspect of “appellate standing” is that the very notion that standing is an essential part of the injured party’s (and injured appellant’s) case (or appeal), to be proven with varying degrees of proof at different stages of the litigation, flies out the window. There is no discovery or trial in the Supreme Court, and thus no means by which the opposing party can challenge the appellant’s assertion of injury as one would have in the district court. How did the Court know that Mr. Camreta continued to have a job that would be affected by the Ninth Circuit’s opinion? Because he said so, that’s how. (The attorneys for plaintiff-respondent only found out that the police officer had changed jobs when they checked a social media internet site.) No one had the opportunity to examine him on that question, and its truth or falsity—and, more importantly, the truth or falsity of any representation made by litigants in the Supreme Court to satisfy “appellate standing” is obviously far less certain as a consequence.
Finally, the creation of all of this confusion on standing was for naught because the Court also said that the respondent, too, must have a continuing stake in the litigation; that is, a reason to (in this case) defend the opinion of the Ninth Circuit. And she did not because her daughter was no longer a child and the family no longer lived in the area. The Court did not precisely say which respondents in this situation—ones whose damages claims had been dismissed and who had not appealed that dismissal—would have a continuing stake, but it cited Los Angeles v. Lyons, 461 U.S. 95 (1983) on each occasion when it mentioned this requirement. Lyons, of course, dealt with standing to seek forward-looking injunctive relief. Mr. Lyons had been choked by police officers in the L.A. police department during an arrest, and the Court held that he did not have standing to seek injunctive relief because the likelihood that he would again be choked seemed remote. And, if that is the standard, it seems obvious that the vast majority of respondents in Fourth Amendment cases will not have the necessary continuing stake to defend a ruling that immunized defendants violated the Fourth Amendment. Fourth Amendment violations, like the chokehold on Mr. Lyons, generally are not repeated on the same person. (The girl in Camreta would not have been likely to be seized illegally again even if she were only twelve and still living in the area when the Supreme Court heard the case.) The Court’s assertion, then, that “in a dispute of this kind, both the plaintiff and the defendant ordinarily retain a stake in the outcome” is utterly incomprehensible. Just the opposite is true.
And that, of course, means that many efforts by the courts of appeals to clarify the parameters of the Fourth Amendment are going to be subject to vacatur (as happened in Camreta). A defendant that loses on the question of a substantive violation, but wins on qualified immunity, will be able to appeal the loss on constitutionality and (if there is no cross-appeal) demand that the opinion’s unfavorable paragraphs be excised. Not only has Camreta muddied the waters of standing doctrine, it may very well muddy other doctrines as well.