Don't Sleep on Standing

One of the lessons I learned when clerking on the U.S. Court of Appeals for the D.C. Circuit is that it is always important to consider Article III standing when suing the federal government, even if the government does not raise standing as a defense. I can still recall an oral argument at which one of the judges effectively told a litigant they could sit down if they could not explain the basis upon which they were invoking the jurisdiction of a federal court. This is particularly important in the D.C. Circuit given its rules.

Today, in Entergy Arkansas v. FERC, Judge Randolph provides a reminder of why it is  always important to brief standing. His opinion begins:

In this consolidated case, a series of Entergy companies petition for review of three Federal Energy Regulatory Commission orders. FERC had rejected tariff changes proposed by Midcontinent Independent System Operator, reasoning that the new tariff would give Entergy too much market power. Entergy urges us to find that FERC’s decisions were arbitrary and capricious.

We do not reach the merits of this dispute. Entergy lacks standing. The company’s opening brief failed to discuss standing, thereby forfeiting any arguments in support of this jurisdictional prerequisite. Entergy’s omission of standing also ran afoul of Circuit Rule 28(a)(7). Given both the forfeiture principles inherent in Rule 28(a)(7) and our court’s past practice, dismissal is the appropriate consequence. Even if we were to consider the standing arguments Entergy now belatedly advances, the company has not demonstrated the necessary concrete, imminent, and redressable injury.

In the body of the opinion, Judge Randolph explains that forfeiture applies to standing, and it is not sufficient to address standing for the first time in a reply brief. Indeed, this is codified in D.C. Circuit rule 28(a)(7), which provides:

In cases involving direct review in this court of administrative actions, the brief of the appellant or petitioner must set forth the basis for the claim of standing. This section, entitled “Standing,” must follow the summary of argument and immediately precede the argument. When the appellant’s or petitioner’s standing is not apparent from the administrative record, the brief must include arguments and evidence establishing the claim of standing. See Sierra Club v. EPA, 292 F.3d Rule 28895, 900-01 (D.C. Cir. 2002). If the evidence is lengthy, and not contained in the administrative record, it may be presented in a separate addendum to the brief. If it is bound with the brief, the addendum must be separated from the body of the brief (and from any other addendum) by a distinctly colored separation page. Any addendum exceeding 40 pages must be bound separately from the brief.

The petitioner here did not follow this rule, and thus they find themselves on the losing side. From Judge Randolph’s opinion:

Entergy’s opening brief provided neither argument, nor analysis, nor evidence to support its standing. The words “standing,” “injury,” “traceability,” and “redressability” do not appear in the document. In its responsive brief, FERC argued that Entergy lacked standing. Only then, in the reply brief, did Entergy argue that “the bases for Entergy’s standing [were] readily apparent.” Reply Br. 3 n.1. But even if the bases and evidence were there, the argumentation was not. No reasonable reader of the principal Entergy brief would walk away with a clear understanding of petitioners’ precise injuries, the chain of causation, and how a decision of this court could redress those harms. Its brief was about an APA challenge, not standing.

As Judge Randolph notes, the failure to demonstrate standing is grounds for dismissal.

The opinion goes on to explain why Entergy’s late-made arguments for standing were still insufficient, but that does not lessen the larger point: Brief standing and pay attention to circuit rules.

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