Page 712, after Part 4, add the following:

Statutes of Limitations and Corner Post.

In September 2024, Senator Coons introduced S. 4751, The Agency Stability Restoration Act of 2024, which would overrule Corner Post. The bill would add one sentence to section 702: “Except as otherwise expressly provided by law, a person bringing an action under this section shall bring that action not later than 6 years after the date of the final agency action with respect to which the person seeks judicial review.”

Page 750. Add the following before Note 2.

     The Ninth Circuit in Regents had stated that the Chaney presumption does not apply if “[a]n agency’s nonenforcement decision . . . is based solely on a belief that the agency lacked the lawful authority to do otherwise.” CB page 749 (emphasis added). That implies that if an agency declines to enforce both because of a legal conclusion and as an exercise of prosecutorial discretion that the Chaney presumption would apply and the decision be unreviewable (again, depending on the challenger’s theory). The D.C. Circuit so held in Citizens for Responsibility and Ethics in Washington v. FEC, 993 F.3d 880 (D.C. Cir. 2021). The FEC had split 2-2 as to whether to pursue an enforcement action for violation of the campaign finance laws. The two commissioners who voted against pursuing the matter stated that (a) the alleged violator was not covered by the statute and (b) “proceeding further would not be an appropriate use of Commission resources.” In short, they relied on a legal conclusion and on prosecutorial discretion. The relevant statute allows challenges to FEC nonenforcement decisions that are “contrary to law.” In a 2-1 decision, the court concluded that “we lack authority to second guess a dismissal based even in part on enforcement discretion.” In dissent, Judge Millett objected that this ruling meant that “a federal agency can immunize its conclusive legal determinations and evidentiary analyses from judicial review simply by tacking a cursory reference to prosecutorial discretion onto the end of a lengthy and substantive merits discussion.”

Page 776. Add the following after note 8.

9. FDA v. R.J. Reynolds Vapor Co., 145 S. Ct. 1984 (2025), was a run-of-the-mill zone-of-interests test that illustrates how the Court’s approach may encourage forum-shopping. The Family Prevention and Tobacco Control Act (“TCA”) requires any manufacturer to apply for and receive approval from the Food and Drug Administration (“FDA”) before it can market any “new tobacco product.” After the FDA denied Reynolds’s application to market a flavored e-cigarette, Reynolds joined with retailers that sell other Reynolds products and would have sold the new product if FDA had approved Reynolds’s application to sue in the Fifth Circuit. The TCA provides that “any person adversely affected” by denial of an application to market a new tobacco product may petition for review. Were the retailers “adversely affect”? That is, were they within the zone of interests?

Treating the question as a statutory one under the TCA, a 7-Justice majority held that the retailers had standing, adhering to the rather undemanding approach the Court has developed in cases under the APA. Justice Jackson, joined by Justice Sotomayor, dissented; she insisted that the Court must “examine exactly whom Congress intended to protect,” and here that was not retailers. The majority focused on the word “any” in the statute and the word “arguably” in its precedents; it just was not very interested in careful scrutiny of statutory structure and particulars.

At the end of her dissent, Justice Jackson more than hints at what is going on here:

No one disputes that RJR Vapor itself qualifies as a “person adversely affected” by the FDA’s denial of its marketing application. Therefore, it is not as though RJR Vapor had no options—it most certainly could have brought a lawsuit challenging the FDA’s denial in the D.C. Circuit or in the Fourth Circuit, where it has its principal place of business. So, stepping back, one wonders: Why does it even matter whether the tobacco retailers RJR Vapor has chosen to pair up with have the ability to sue? . . .

[The statute allows a challenge to be brought either in the D.C. Circuit or in the circuit where the petitioner resides.] As it turns out, at the time RJR Vapor filed its application, the D. C. Circuit and the Fourth Circuit had each already rejected on the merits similar challenges that other flavored e-cigarette manufacturers had filed. It thus became (perhaps) imperative from RJR Vapor’s perspective that its own lawsuit challenging the FDA’s denial of its flavored e-cigarette marketing applications be filed somewhere else. To accomplish that objective—i.e., to facilitate RJR Vapor’s end run around [the statute’s] venue restrictions—RJR Vapor needed another party to bring its legal challenge to court.

It is not hard to see where this is going. RJR Vapor teamed up with a Texas-based retailer that sold the relevant e-cigarettes—respondent Avail Vapor Texas, LLC—and, together, they filed a joint petition in the Fifth Circuit . . . . The possibility that the courts would allow venue to be established based on Avail Vapor’s presence on the petition gave RJR Vapor hope that its substantive legal challenge would move forward in a more applicant-friendly venue. . . .

Would it be appropriate for the Court to adjust its standing rules so as to create a barrier to forum shopping?

Page 794. Add the following new principal case before subsection 6.

Biden v. Nebraska

Page 798. Add the following before subsection 7.

d. Associational Standing
    On page 776, the casebook describes the famous case of Sierra Club v. Morton, holding that the Sierra Club lacked standing to challenge federal approval of a ski area in a national forest. A setback for an organization’s mission is not a cognizable injury in fact. Yet the Sierra Club and similar organizations bring lawsuits all the time. Lujan (casebook page 777) is an example; how did Defenders of Wildlife get into court (at least initially) when it was not injured by the action complained of any more than the Sierra Club was?
     The answer is implicit in the focus on the individual affidavits in Lujan. The plane-ticketless individuals were not themselves parties to the lawsuit; they were members of Defenders of Wildlife, and Defenders of Wildlife (along with two other environmental organizations) was a party. The foundational decision establishing such “associational standing” (sometimes “organizational standing” or “representational standing”) is Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333 (1977). There, the Court allowed a state agency created to advance the interests of apple growers to sue because (a) the members would have had standing to sue in their own right, (b) the interest it sought to protect was germane to the Commission’s purpose, and (c) “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” In practice, the fights are almost always about the first of these three requirements, as was the case in Lujan. The second just does not arise; membership organizations do not bring non-germane lawsuits. And the third will rarely matter if the relief sought is injunctive (as it necessarily is in all APA suits), which obviates the need for any individualized determination of damages.
     Most cases resting on associational standing rise or fall, then, on the question whether the individual members would have standing in their own right rather than on some issue particular to associational standing. (Again, see Lujan.) A recent exception, however, is Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023), which set aside affirmative action programs at Harvard and the University of North Carolina. There UNC contested associational standing on the ground that the plaintiff was not a genuine membership organization.

     Petitioner, Students for Fair Admissions (SFFA), is a nonprofit organization founded in 2014 whose purpose is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law.” . . .

Respondents do not contest that SFFA satisfies the three-part test for organizational standing articulated in Hunt, and like the courts below, we find no basis in the record to conclude otherwise. Respondents instead argue that SFFA was not a “genuine ‘membership organization’” when it filed suit, and thus that it could not invoke the doctrine of organizational standing in the first place. According to respondents, our decision in Hunt established that groups qualify as genuine membership organizations only if they are controlled and funded by their members. And because SFFA’s members did neither at the time this litigation commenced, respondents’ argument goes, SFFA could not represent its members for purposes of Article III standing.

Hunt involved the Washington State Apple Advertising Commission, a state agency whose purpose was to protect the local apple industry. The Commission brought suit challenging a North Carolina statute that imposed a labeling requirement on containers of apples sold in that State. The Commission argued that it had standing to challenge the requirement on behalf of Washington's apple industry. We recognized, however, that as a state agency, “the Commission [wa]s not a traditional voluntary membership organization ..., for it ha[d] no members at all.” As a result, we could not easily apply the three-part test for organizational standing, which asks whether an organization's members have standing. We nevertheless concluded that the Commission had standing because the apple growers and dealers it represented were effectively members of the Commission. The growers and dealers “alone elect[ed] the members of the Commission,” “alone ... serve[d] on the Commission,” and “alone finance[d] its activities”—they possessed, in other words, “all of the indicia of membership.” The Commission was therefore a genuine membership organization in substance, if not in form. . . .

Here, SFFA is indisputably a voluntary membership organization with identifiable members—it is not, as in Hunt, a state agency that concededly has no members. As the First Circuit in the Harvard litigation observed, at the time SFFA filed suit, it was “a validly incorporated 501(c)(3) nonprofit with forty-seven members who joined voluntarily to support its mission.” Meanwhile in the UNC litigation, SFFA represented four members in particular—high school graduates who were denied admission to UNC. Those members filed declarations with the District Court stating “that they have voluntarily joined SFFA; they support its mission; they receive updates about the status of the case from SFFA’s President; and they have had the opportunity to have input and direction on SFFA’s case.” Where, as here, an organization has identified members and represents them in good faith, our cases do not require further scrutiny into how the organization operates. Because SFFA complies with the standing requirements demanded of organizational plaintiffs in Hunt, its obligations under Article III are satisfied.

Associational standing is not especially controversial. Should it be? If Article III really requires that the plaintiff have suffered an injury in fact, so the Sierra Club cannot challenge a project destroying a pristine forest, how is the defect cured because it has members who are injured? Any relief may benefit the member, but it is awarded to the organization and it is the organization that can enforce it. That formal argument may be overwhelmed by practical consideration that the individual member could just sue on her own behalf, though the suit is initiated, directed, and lawyered by the organization.

Some worry that the tool might get out of hand. The Association of American Retired Persons (AARP) has 38 million members and its stated mission is “empower people to choose how they live as they age.” Is there any lawsuit it could not bring?

The Supreme Court has never seriously revisited Hunt, which is now almost half a century old. But Justice Thomas thinks it should do so. In FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), a unanimous Court held that individual doctors opposed to abortion did not have standing to challenge the FDA’s approval of mifepristone. The mere desire to make mifepristone less available was not an injury in fact, and possible downstream conscience and economic injuries to the doctors were too speculative and attenuated to satisfy causation requirements. The Alliance of Hippocratic Medicine lacked standing in its own right for want of an injury in fact (like the Sierra Club) and could not sue on behalf of its members because they lacked standing. Writing for himself only, Justice Thomas took on the whole idea of associational standing. Excerpts follow.

Our doctrine permits an association to have standing based purely upon a member's injury, not its own. If a single member of an association has suffered an injury, our doctrine permits that association to seek relief for its entire membership—even if the association has tens of millions of other, non-injured members. As I have already explained in the context of third-party standing, Article III does not allow a plaintiff to seek to vindicate someone else's injuries. It is difficult to see why that logic should not apply with equal force to an association as to any other plaintiff. I thus have serious doubts that an association can have standing to vicariously assert a member's injury. . . .

 Second, our associational-standing doctrine does not appear to comport with the requirement that the plaintiff present an injury that the court can redress. . . . Although the association is the plaintiff in the suit, it has no injury to redress. The party who needs the remedy—the injured member—is not before the court. Without such members as parties to the suit, it is questionable whether “relief to these nonparties ... exceed[s] constitutional bounds.”

  Consider the remedial problem when an association seeks an injunction, as the Alliance did here. “We have long held” that our equity jurisdiction is limited to “the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution.” And, “as a general rule, American courts of equity did not provide relief beyond the parties to the case.” For associations, that principle would mean that the relief could not extend beyond the association. But, if a court entered “[a]n injunction that bars a defendant from enforcing a law or regulation against the specific party before the court—the associational plaintiff—[it would] not satisfy Article III because it w[ould] not redress an injury.”

  Our precedents have provided a workaround for this obvious remedial problem through the invention of the so-called “universal injunction.” Universal injunctions typically “prohibit the Government from enforcing a policy with respect to anyone.” By providing relief beyond the parties to the case, this remedy is “legally and historically dubious.”. . . Because no party should be permitted to obtain an injunction in favor of nonparties, I have difficulty seeing why an association should be permitted to do so for its members. Associational standing thus seems to distort our traditional understanding of the judicial power.

  In addition to these Article III concerns, there is tension between associational standing and other areas of law. First, the availability of associational standing subverts the class-action mechanism. . . .  Associational standing . . . allows a party to effectively bring a class action without satisfying any of the ordinary requirements. Second, associational standing creates the possibility of asymmetrical preclusion. The basic idea behind preclusion is that a party gets only one bite at the apple. If a party litigates and loses an issue or claim, it can be barred from reasserting that same issue or claim in another suit. In general, preclusion prevents the relitigation of claims or issues only by a party to a previous action, and we have been careful to limit the exceptions to that rule. In the context of associational standing, the general rule would mean that preclusion applies only to the association, even though the purpose of the association's suit is to assert the injuries of its members. But, if the association loses, it is not clear whether the adverse judgment would bind the members. Associational standing might allow a member two bites at the apple—after an association's claims are rejected, the underlying members might be able to assert the exact same issues or claims in a suit in their own names. . . .

I am particularly doubtful of associational-standing doctrine because the Court has never attempted to reconcile it with the traditional understanding of the judicial power. Instead, the Court departed from that traditional understanding without explanation, seemingly by accident. To date, the Court has provided only practical reasons for its doctrine. . . . But, considerations of practical judicial policy cannot overcome the Constitution’s mandates. The lack of any identifiable justification further suggests that the Court should reconsider its associational-standing doctrine. . . .

No party challenges our associational-standing doctrine today. That is understandable; the Court consistently applies the doctrine, discussing only the finer points of its operation. See, e.g., Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181, 199–201 (2023). In this suit, rejecting our associational-standing doctrine is not necessary to conclude that the plaintiffs lack standing. In an appropriate case, however, the Court should address whether associational standing can be squared with Article III's requirement that courts respect the bounds of their judicial power.

Page 807. Add the following to note 4.

Compare the approach to redressability in Massachusetts v. EPA, especially that of the dissenters, with Justice Kavanaugh’s opinion for a 7-Justice majority in Diamond Alternative Energy LLC v. EPA, 145 S. Ct. 2121 (2025). This was a challenge to EPA’s approval of California regulations capping the number of gasoline-powered cars that could be sold in the state. The suit was brought not by automobile companies, who were directly regulated by the challenged rules, but by fuel producers, worried that they would sell less of their product. The D.C. Circuit held that the fuel producers lacked standing; the Supreme Court reversed.

[T]he injury in fact and causation elements of the fuel producers’ standing, which no party disputes, are straightforward.

As for injury in fact, the fuel producers make money by selling fuel. Therefore, the decrease in purchases of gasoline and other liquid fuels resulting from the California regulations hurts their bottom line. Those monetary costs “are of course an injury.” United States v. Texas.

As for causation, EPA’s approval authorized California (and ultimately 17 other States) to enforce regulations that require lower fleet-wide greenhouse-gas emissions and the electrification of automakers’ vehicle fleets, thereby reducing purchases of liquid fuels such as gasoline. The regulations likely cause fuel producers’ monetary injuries because the regulations likely cause a decrease in purchases of gasoline and other liquid fuels for automobiles. Indeed, that is the whole point of the regulations.

As for redressability, invalidating the California regulations would likely redress at least some of the fuel producers’ monetary injuries. Even “one dollar” of additional revenue for the fuel producers would satisfy the redressability component of Article III standing. And as we will explain, it is “likely” that invalidating the California regulations would result in more revenue for the fuel producers from additional sales of gasoline and other liquid fuels. . . .

In this case, those commonsense economic principles support the fuel producers’ standing. The California regulations force automakers to manufacture more electric vehicles and fewer gasoline-powered vehicles. The standards force automakers to produce a fleet of vehicles that, as a whole, uses significantly less gasoline and other liquid fuels. California's regulation of automakers’ vehicle fleets in turn will likely “cause downstream or upstream economic injuries to others in the chain,” such as producers of gasoline and other liquid fuels. Alliance for Hippocratic Medicine.

By the same token, the fuel producers persuasively contend that invalidating California’s regulations would likely mean more gasoline-powered automobiles, which would in turn likely mean more sales of gasoline and other liquid fuels by the fuel producers. Because the fuel producers have suffered classic monetary injury caused by a government regulatory action, it would be surprising and unusual if invalidating the regulations did not redress the fuel producers’ injuries.

Justice Kavanaugh does not cite Mass v. EPA, but the opinion is much closer to the majority in that case than to the dissent.

In dissent, Justice Jackson took the majority to task for a lack of evenhandedness, resting “its decision on a theory of standing that the Court has refused to apply in cases brought by less powerful plaintiffs.”

[T]the Court seems inconsistent in its willingness to premise redressability on commonsense inferences about third-party behavior. That inconsistency, which we reinforce with today's holding, tends to redound to the benefit of particular litigants. But nothing in Article III's text or history justifies relying on “commonsense” inferences in one standing context and not another. The Constitution does not distinguish between plaintiffs whose claims are backed by the Chamber of Commerce and those who seek to vindicate their rights to fair housing, desegregated schools, or privacy. But if someone reviewing our case law harbored doubts about that proposition, today's decision will do little to dissuade them.

Is she right?

Page 810. Add the following new principal case before subsection 8.

United States v. Texas