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Judge Kavanaugh and justiciability

Aaron Nielson is an associate law professor at Brigham Young University and the weekly author of D.C. Circuit Review–Reviewed at the Notice & Comment Blog.

The U.S. Court of Appeals for the District of Columbia Circuit is an unusual court. Because it disproportionately hears lawsuits involving the United States, it often wades into the “famously murky” waters of the political-question doctrine, as well as the equally murky doctrines of standing, final agency action, and ripeness and mootness. In fact, the local rules require parties in “direct review” cases—cases in which challenges to an administrative agency action must be brought directly in the D.C. Circuit, instead of in a district court first—to address standing. All of these issues involve questions of justiciability: whether, as a threshold matter, a federal court has the authority at all to decide the legal merits of a case. I can attest, moreover, that the D.C. Circuit takes justiciability seriously. When I was a clerk, a judge promised to take any clerk to lunch who found a meritorious, unbriefed justiciability issue.

It is safe to say that Judge Brett Kavanaugh has spent untold hours thinking about justiciability. When I teach the political question doctrine, I assign the en banc decision in El-Shifa Pharmaceutical Industries Co. v. United States, a case I discuss below about a 1998 U.S. missile strike on a Sudanese pharmaceutical plant. Kavanaugh’s concurrence is well worth your time.

For this post, I’ve been asked to survey Kavanaugh’s justiciability opinions and consider how his confirmation might change the Supreme Court’s approach to these issues. I don’t think he would change it all that much. For one thing (to be sure, with some notable exceptions), there is often a great deal of consensus among the justices on justiciability, so even if Kavanaugh were a revolutionary (and he’s not), he wouldn’t be the swing vote anyway. I’m also not sure there would be much difference between Kavanaugh and Justice Anthony Kennedy for many of these kinds of cases, so even if the court were divided, a Kennedy/Kavanaugh switch wouldn’t shift things. Even so, Kavanaugh’s justiciability opinions merit a read because they show his mind at work.

Article III standing

Kavanaugh has addressed standing many times during his tenure on the D.C. Circuit. “Standing” (and this is a simplification) is the constitutional requirement that before a court can decide the merits of a plaintiff’s legal claim, the plaintiff must show that it is likely that the defendant caused or will cause an actual injury to the plaintiff. In other words, in lawsuits challenging regulations—the D.C. Circuit’s bread and butter—it’s not enough that a person, or a public interest group, or a business is merely upset with a new regulation or believes the regulation is unlawful. Whether a regulation is likely to cause some actual injury can be a very tricky question, but one with high stakes: If a plaintiff lacks standing, the court cannot constitutionally hear the plaintiff’s legal claims, no matter how meritorious. My sense is that although Kavanaugh enjoys thinking through standing puzzles, he understands the stakes for the litigants of a ruling on standing and tries to keep his analysis grounded in common sense.

Even when Kavanaugh rejects a claim, he sometimes uses his discussion of standing to show that he has heard the plaintiff’s argument and taken it seriously. In Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Employees of Library of Cong., Inc. v. Billington, a group of employees sued the Library of Congress for not extending to them the same benefits (such as meeting space, etc.) that it extended to other employee groups. While holding that the group failed to state a claim, Kavanaugh (joined by Judges David Tatel and David Sentelle) stressed that it had standing to sue and that its concern merited meaningful recognition:

The Library argues that plaintiffs have failed to allege an injury in fact because “the privileges to employees who participate … in recognized organizations are insubstantial.” If the Library views the privileges of recognition as so insubstantial, perhaps it would have been better off granting recognition and avoiding litigation. In fact, however, the benefits of recognition are not trivial, and denial of those benefits constitutes an injury in fact.

Nor is this an isolated example. In Coalition for Mercury-Free Drugs v. Sebelius, Kavanaugh (joined by Judges Judith Rogers and Stephen Williams) rejected on standing grounds a challenge to the Food and Drug Administration’s decision to allow “vaccines that contain thimerosal, a mercury-based preservative” but went out of his way to “recognize plaintiffs’ genuine concern.” And in Newdow v. Roberts, the majority dismissed a challenge to the use of the phrase “so help me God” in presidential inaugural ceremonies. Kavanaugh concurred in the judgment, but he would have held that the plaintiffs had standing.

And even when he has sided against challengers, he has kept the door open for them to take another shot. In Public Citizen, Inc. v. National Highway Traffic Safety Administration, Public Citizen maintained that it had standing to challenge a tire-safety standard on the ground that the standard would increase the risk of injury to the organization’s members. Kavanaugh (joined by Judges Sentelle and Raymond Randolph) disagreed: “Under Public Citizen’s theory of probabilistic injury, after an agency takes virtually any action, virtually any citizen—because of a fractional chance of benefit from alternative action—would have standing to obtain judicial review of the agency’s choice.” Nonetheless, Kavanaugh gave Public Citizen another chance to see if it could fit within a narrower theory; Sentelle declined to “join the majority’s decision to allow Public Citizen a further attempt to establish standing.”  The following year, the court (in a per curiam decision) again concluded there was no standing.

Kavanaugh’s approach to standing is generally pretty practical. In Energy Future Coalition v. Environmental Protection Agency, biofuel manufacturers challenged the EPA’s refusal to allow a biofuel to be used as a test fuel. Even though the regulation in question was directed at vehicle manufacturers, not biofuel manufacturers, Kavanaugh (joined by Tatel and Judge Cornelia Pillard) found standing:

If the Government prohibits or impedes Company A from using Company B’s product, does Company B have standing to sue? … [S]uppose the District of Columbia bans or makes it harder for concession stands to sell hot dogs. Does a local hot dog manufacturer have standing to sue? … In such cases, both Company A and Company B are an object of the action (or forgone action) at issue, so there is ordinarily little question that they have standing under Lujan. So it is here.

Similarly, in Hall v. Sebelius, Kavanaugh (joined by Judge Douglas Ginsburg) opened his opinion this way:

This is not your typical lawsuit against the Government. Plaintiffs here have sued because they don’t want government benefits. They seek to disclaim their legal entitlement to Medicare Part A benefits for hospitalization costs. Plaintiffs want to disclaim their legal entitlement to Medicare Part A benefits because their private insurers limit coverage for patients who are entitled to Medicare Part A benefits.

Kavanaugh ruled against the plaintiffs on the merits (as it turns out, you can turn down the money, but not the entitlement to the money—although Judge Karen Henderson disagreed), but he concluded that they had standing “because their private insurance has been curtailed as a direct result of their legal entitlement to Medicare.” Still, Kavanaugh does not think common sense is a substitute for record evidence supporting a particular standing theory. In Communities for a Better Environment v. EPA, Kavanaugh (joined by Williams and Judge Janice Rogers Brown) rejected on standing grounds a challenge to the EPA’s refusal to set a secondary standard for carbon monoxide because he agreed with the agency that the connection to climate change was too speculative: “For the reasons identified by EPA, petitioners’ theory of causation is simply a bridge too far given the current record.”

To be sure, not everyone agrees with every Kavanaugh standing opinion. In In re Navy Chaplaincy, a group of Protestant chaplains sued to enjoin the Navy from allegedly using its retirement program to favor Catholic chaplains. Kavanaugh (joined by Judge Laurence Silberman) concluded there was no standing, explaining (among many other points; this one should be read in full) that “mere personal offense to government action does not give rise to standing to sue.” Rogers sharply dissented: “The court ignores all of this precedent in adopting the novel conception that appellants are not harmed for purposes of standing under the Establishment Clause unless the Navy itself directly uses religious words or symbols as occurred in the religious display cases.”

Kavanaugh also does not always agree with his colleagues. In Morgan Drexen, Inc., v. Consumer Financial Protection Bureau, Rogers, joined by Pillard, dismissed a challenge to the CFPB’s authority on standing grounds. In his short dissent, Kavanaugh stated that the CFPB “is regulating a business that [the attorney] engages in. That is enough for standing. We have a tendency to make standing law more complicated than it needs to be.” And in Grocery Manufacturers Association v. EPA, he disagreed with Sentelle, who ruled that members of the food industry lacked prudential standing (a form of standing that isn’t constitutionally based) to challenge an EPA ethanol rule because it would increase demand for corn: “This is Economics 101 and requires no elaborate chain of reasoning.” (Tatel’s short concurrence is also worth a read.)

The political question doctrine

At least as a matter of vote tallies, it is also unlikely that a Justice Kavanaugh would meaningfully change the Supreme Court’s approach to the political question doctrine (i.e., the doctrine under which some courts will not decide some questions that should be addressed by the other branches). In Zivotofsky v. Clinton, Chief Justice John Roberts (writing for a good chunk of the court) held that determining whether “Jerusalem, Israel” could be included as a birthplace location on a passport was justiciable. On the D.C. Circuit, Kavanaugh—joined by Rogers and Ginsburg—voted (unsuccessfully) to rehear en banc the decision that the Supreme Court later reversed. After Zivotofsky, the Supreme Court’s path may be set for a while.

That said, Kavanaugh’s analysis may win some adherents. In El-Shifa Pharmaceutical Industries Co. v. United States, mentioned above, Kavanaugh—joined in full by then-Chief Judge Sentelle and in part by Ginsburg and Rogers—concurred in an en banc judgment that dismissed claims brought by a pharmaceutical company and its owner after a factory in Sudan was destroyed by a U.S. missile strike. Arguing that the suit should have been dismissed for failure to state a claim rather than on justiciability grounds, Kavanaugh strongly disagreed with both the majority’s decision to apply the political question doctrine and its analysis:

The key point for purposes of my political question analysis is this: Plaintiffs do not allege that the Executive Branch violated the Constitution. Rather, plaintiffs allege that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive. … If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. … Applying the political question doctrine in statutory cases  … would systematically favor the Executive Branch over the Legislative Branch.

Candidly, I’m not sure who is right in El-Shifa; that’s why it is a good case to assign students. And Kavanaugh’s analysis should give pause to those who say he is reflexively pro-executive. The main point of his opinion in El-Shifa is to stress that Congress has a role too.

In Harbury v. Hayden, Kavanaugh (joined by Randolph and Williams) affirmed a dismissal of claims brought by a woman against various U.S. government officials allegedly involved in killing her husband during Guatemala’s civil war in the 1990s. Noting that “[t]he political question doctrine is an important tenet of separation of powers and judicial restraint,” albeit one “notorious for its imprecision,” Kavanaugh applied the doctrine because he concluded that D.C. Circuit precedent compelled the result.

Final agency action

In recent years, the Supreme Court has issued two important—and (mostly) unanimous—decisions on what is reviewable final agency action: U.S. Army Corps of Engineers v. Hawkes Co., Inc. and Sackett v. EPA. In both, the Supreme Court expanded the scope of reviewable decisions. Given that uniformity, it is again unlikely that a Justice Kavanaugh would make much of a difference here.

Nonetheless, Kavanaugh has addressed the topic, and he takes the final agency action requirement seriously. His most important case on this subject may be In re Murray Energy Corp. There, a number of petitioners, including a coalition of states, tried to challenge the EPA’s Clean Power Plan before it was finalized. Kavanaugh (joined by Judge Thomas Griffith) concluded that “[p]roposed rules meet neither of the two requirements for final agency action.” Henderson wrote separately. Similarly, in National Mining Association v. McCarthy, a mining association sought review of an EPA guidance memo. Kavanaugh (joined by Griffith and Judge Sri Srinivasan) concluded there was no final agency action: “One might think that an agency memo entitled ‘Final Guidance’ would be final. But that would be wrong, at least under the sometimes-byzantine case law. An agency action is final only if it is both ‘the consummation of the agency’s decisionmaking process’ and a decision by which ‘rights or obligations have been determined’ or from which ‘legal consequences will flow.’”

Ripeness and Mootness

Finally, I also doubt that a Justice Kavanaugh would fundamentally change the Supreme Court’s approach to ripeness and mootness. “Ripeness” essentially asks whether it’s too early for a court to decide the merits of claim, and “mootness” essentially asks whether it’s too late. Nonetheless, he has issued several noteworthy opinions on the subject.

His most significant ripeness decision is probably State National Bank of Big Spring v. Lew, which reflects a nuanced approach to justiciability. Kavanaugh (joined by Rogers and Pillard), confronted challenges to “the constitutionality of various provisions of the Dodd-Frank Act.” On one hand, he concluded that “a regulated entity” need not violate a law to challenge the constitutionality of an agency’s structure, nor the constitutionality of the president’s appointment of the agency’s director. On the other hand, he rejected the notion that challengers could attack the possible future exercise of an allegedly unconstitutional power when the question of how that power might be used was speculative.

Another noteworthy opinion is Kavanaugh’s dissent in American Bird Conservancy, Inc. v. Federal Communications Commission (per curiam, Rogers and Judge Merrick Garland). The petitioners challenged the agency’s approach to communication towers. Yet the FCC was still evaluating the effects of those towers on birds. Kavanaugh compared the situation to one in which a petitioner challenges an order while the agency is still considering a petition for reconsideration and stressed that “[d]ismissing this case on ripeness grounds would serve the interests of judicial economy, permit the Executive Branch to carefully re-examine and resolve environmental issues related to communications towers and birds on a nationwide basis, and impose minimal hardship on the petitioners who are themselves participating in the nationwide rulemaking proceeding.”

As to mootness, in Hamdan v. United States, Kavanaugh (joined by Sentelle and Ginsburg) addressed whether an appeal of a conviction by a military tribunal was moot once the detainee was released from custody. Kavanaugh analogized to a conviction in an ordinary court, in which case a direct appeal is generally not mooted by release. Ginsburg concurred to note his agreement with Kavanaugh’s reading of precedent but also his discomfort with that precedent. (This opinion presumably will receive some attention for its merits analysis; the mootness aspect, however, is important too.)


There is a lot more that could be said, but this post is long enough. Unless you are deep in the weeds of “Admin Law” and “Fed Courts” (give it a try; it isn’t a bad place to be), justiciability is not the jazziest topic. Here is my bottom-line assessment: Although not everyone will agree with all of his justiciability opinions, Kavanaugh’s views on the whole strike me as pretty mainstream. And that is not a bad thing. Justiciability can be fuzzy (sometimes to a fault), but the D.C. Circuit takes it seriously, and Kavanaugh is no exception. Should he be confirmed, I expect that trend will continue.

Recommended Citation: Aaron Nielson, Judge Kavanaugh and justiciability, SCOTUSblog (Aug. 14, 2018, 2:38 PM),