Sixth Circuit: Inner City Contracting LLC v. Charter Twp. of Northville

 Despite being a disappointed bidder for a government contract, the plaintiff alleged a specific injury, and therefore the claim isn't presumptively disfavored for purposes of standing. The dignitary harm in racial discrimination and the lost profits from the contract suffice for Article III standing.

A corporation's claim of racial discrimination falls within the zone of interests of the statute prohibiting racial discrimination in contract awards. Supreme Court holding saying that a corporation has no racial identity referred to constitutional standing, not statutory standing.  

Claims against state government entities must be under the general statute (S1983), as there is no cause of action against states under the particular statute.  Under the general statute, establishing that a contract was awarded to a higher bidder of a certain race states a claim absent any proffer as to the racial identity of the plaintiff corporation.

Private company reviewing bids and making a recommendation wasn't a state actor for purposes of the statute. Lack of investigation of bidding process insufficient for municipal liability.  No equal protection or due process claim where alleged discrimination was by the private entity of a private-public collaboration. No property interest in a lost contract bid, where the state actor had discretion to accept the bid.

Inner City Contracting LLC v. Charter Twp. of Northville

 

Second Circuit: Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen

Sufficient injury for standing where an investor has progressively accumulated a position in a fund, and the administrators pass a measure limiting the voting rights by default above a certain imminent threshold; this is not a "someday intention," and the possibility that the terms could be renegotiated after a proffer would merely constitute another injury from the costs.

Diminishment of the value of the shares is an injury in law, as it violates the statute; as the loss in value is analogous to conversion or other tort claim, there is a sufficient historical analogue to establish the concrete nature of the harm.

Default restriction on the voting rights of the shares of some purchasers inherently violates the statutory requirement of present, equal voting rights in shares.  The share-shareholder distinction has only been recognized in limited terms, such as compliance with incorporation requirements, and other shareholder-based restrictions on voting are less fundamental than blocking the voting rights entirely.

Plain meaning of the statute controls, rather than interpretations of its stated purposes.

Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen

First Circuit: Milton, MA v. FAA

 Municipality's claimed injury to itself from revised airport flight-paths is insufficiently particularized to itself as a municipality to confer standing.  Similarly, the losses from litigation and challenge costs aren't injuries, since the function of a municipality is to spend money on things that might benefit the citizens.   Argument that the plans caused people to move away is legally and factually distinct, and therefore raised too late in the reply brief.

Milton, MA v. FAA

Second Circuit: Connecticut Parents Union v. Russell-Tucker et al.

 

An advocacy organization seeking organizational standing to challenge a government action can't merely rely on its expenditure of funds in opposition to the measure, even at the request of its members; it must establish an injury in fact by showing an involuntary material burden on its established core activities.

Claim for expenditures against the measure needs to be supported by proof that existing activies were hindered, and that the expenditures were material.

https://www.ca2.uscourts.gov/decisions/isysquery/748b2117-a5a7-43e5-a2d7-29a6eab2bab0/1/doc/20-1998_amd_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/748b2117-a5a7-43e5-a2d7-29a6eab2bab0/1/hilite/

Tenth Circuit: Lupia v. Medicredit

 Although insufficient harm under common law, the improper phone call from a debt collection agency was of the same kind of harm recognized at common law as intrusion upon seclusion, and Congress addressed this type of harm in the creation of the statute.

Summary judgment for the nonmovant wasn't on novel grounds of which the movant had insufficient notice; the nonmovant is entitled to point out that the motion for summary jusgment is unsupported by the evidence. 

Bona fide error defense unavailable as a matter of law, since no reasonable jury could find that the policies were designed to avoid the making of unauthorized calls.

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110562706.pdf

Sixth Circuit: Carl Ward v. Nat'l Patient Account Servs

 

Plaintiff does not have standing under the statute to challenge the lack of sufficient identification of the debt collector, which resulted in the sending of correspondence to the wrong company, since the error does not bear a close relationship to traditional harms, and confusion is insufficient concrete injury.

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0182p-06.pdf

Ninth Circuit: East Bay Sanctuary Covenant v. Joseph Biden

 

Amended opinion, Concurrences and Dissents from Denial of En Banc.

CONCURRING WITH DENIAL OF EN BANC:

Sufficient injury to the organization for standing.

Substance and revision of opinion congruent with usual en banc process.

DISSENT FROM DENIAL OF EN BANC:

Court is not a Platonic Guardian of the Constitution and laws.

The organizations did not sustain sufficient injury for standing, since the statute doesn't make it more difficult to provide legal services to immigrants.  Redirection of resources and diminished client pool are insufficient.

Generally, the statute holds that anyone can apply for asylum, but gives the Executive discretion as to whether to grant it.  Panel conflates the right to apply with the right to receive.

DISSENT FROM DENIAL OF EN BANC:

Published motions panel opinions are precedential, and make law of the case.  

East Bay Sanctuary Covenant v. Joseph Biden

DC Circuit: Gerald Hawkins v. Debra Haaland

 

Concurrent procedural regulation of waters reserved to the Tribe in a treaty with the Federal Government isn't an unlawful delegation constituting a procedural injury to those holding inferior rights to take the water, since the Tribe's treaty right to ensure sufficient water levels requires no concurrence from the Federal Government.  Even absent the concurrent regulation procedures, the Tribe's right to the water would remain, leaving the plaintiffs without a possibility for redress sufficient to justify Article III standing.

Gerald Hawkins v. Debra Haaland

Eleventh Circuit: PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC, et al

 

Assume without deciding that the District Court erred in holding that the document was not sufficiently authenticated in liminal proceedings because three of the signatures were not authenticated.

Foreign state's law treats champerty as an affirmative defense to formation; since the champerty claim implicated the merits determination, summary judgment standard would likely be appropriate, even in the context of a motion to dismiss.  

Appeal of champerty finding that doesn't mention the procedural posture of the determination below forfeits any challenge to the standard of review.  

Since the litigation trust created by the injured party as both grantor and beneficiary and to which the claim was assigned in an exchange for value would retain a fixed percentage of any recovery, the agreement was void for champerty under the state's law, and the litigation trust therefore did not have sufficient Article III standing.

PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC, et al

Second Circuit: Fund Liquidation Holdings LLC v. Bank of America Corp.

 

The notice of appeal properly identified the party taking the appeal, the orders that were the subject of the appeal, and the court to which the appeal was being taken; the jurisdictional element of the rules of appeal were satisfied, and since notice was given of intent to appeal all orders, the description of the appellant in the caption as successor in interest to an entity that only accounted for some of the claims was excusable.

As assignment of claim doesn't undo an injury, the claim filed by an entity that had already assigned the interest had sufficient Article III standing; assignment of claim is distinct from grant of power of attorney, which would trigger a prudential limitation on standing.

While choice of law for corporations usually looks to the location of the business, choice of law for partnerships looks to the law of the forum.  Questions of state law can be dispositive in the federal standing inquiry.

Although legal capacity of parties isn't a jurisdictional element in standing, existence of the entity is, and since the jurisdiction provided for no wind-up time, the non-existent parties did not have standing at the time the suit was filed.

A suit filed by a non-existent entity is not a nullity; so long as there is a real party in interest willing to join the suit at the time the suit is filed and the real party in interest ratifies, is substituted, or is joined within a reasonable time, there is sufficient subject matter jurisdiction for the action at the time of filing.  Since procedural reforms have allowed for nominal parties, this doesn't offend the Constitution.  Court retains the right under the rules to deny joinder for equitable reasons. Circuit split flagged on the nullity doctrine.

Equitable tolling is available for new plaintiffs joined to existing class actions.

Fund Liquidation Holdings LLC v. Bank of America Corp.

DC Circuit: Nalini Kapur v. FCC

 

No standing for a minority percentage owner of a television station seeking to undo multiple sales of the business, because even if every administrative decision was reversed and every deal unwound, the business would be back in the hands of the majority percentage owner who would then have the power to sell the station again.

Nalini Kapur v. FCC

Seventh Circuit: Sonja Pennell v. Global Trust Management, LLC

 

Stress and confusion caused by the receipt of dunning letter is insufficient Article III injury for standing to sue under the debt collection statute.

Sonja Pennell v. Global Trust Management, LLC

Fourth Circuit: National Veterans Legal Svc v. DOD

 

As the information in the government database is open to the public by the terms of the relevant statute, the unavailability of portions of it is an injury sufficient for Article III standing.

When an agency removed all internal hearing records from public access after the discovery of personally identifiable information contrary to statute, the decision was not a final agency determination of rights and obligations susceptible to APA challenge; the present challenge is a programmatic attack on the pace of record restoration.

National Veterans Legal Svc v. DOD

Eleventh Circuit: Charles K. Breland, Jr. v. USA, et al.

 

Bankruptcy court's removal of the debtor-in-possession in favor of a trustee prompted a loss of authority over the estate that constituted sufficient injury for Article III standing to challenge the removal.

Charles K. Breland, Jr. v. USA, et al.

Second Circuit: People of the State of New York v. Griepp

Clear error to exclude evidence in preliminary injunction hearing as hearsay following finding that the situation lacked sufficient urgency to justify admitting hearsay; in a preliminary injunction hearing, the hearsay nature of the evidence always goes to the weight of the evidence.

Clear error to exclude a category of evidence in a preliminary injunction hearing after determining that two documents of the type were unreliable, and another after being unable to determine the reliability of that type of evidence (latter harmless error).  Everything in for appropriate weight. 

For purposes of the obstruction statutes, a minor delay is not per se a reasonable obstruction; the court must still determine if the delay was a reasonable one.

Placement of signs on a sidewalk in a manner that does not functionally exclude access can still be an attempt to intimidate or obstruct within the terms of the statute, even if no pedestrians appear.

When a protester's actions necessitate that an escort step in front of the protected person, the protester has caused the physical obstruction defined in the statute.

Regardless of the consensual nature of the conversation, speaking to someone inside a vehicle through an open door or placing hands on the car while speaking impeded the car from driving away, and could be considered obstruction.

When taken in the context of recent local violence, and given the subjective fear that the listeners felt, stating that death might come at any time would objectively be taken as a true threat not protected by the First Amendment; similar statements conjoined with an exhortation to repent, or referencing disasters distinct from recent local violence present a different question.

As the decision to have an abortion involves a formidable and poignant process, protesters' seeking to force their ideals on patients approaching a facility creates an inference of intent to harass, annoy or alarm.  An explicit or implicit request to be left alone dispels the legitimate intent of potential interlocutors.

Likely repetition of the violations of the statutes suffices to establish irreparable harm for the injunction.

In the interests of judicial economy, cross-appeal of non-movants' early motions not referenced in the memorandum denying the preliminary injunction are appropriately addressed in the appeal of the denial of the injunction under pendent jurisdiction.

Abortion facility speech limitations are content neutral, as they apply to every abortion facility in any context.

Statutes not void for vagueness, given general definitions in criminal code.

Municipal statute creating a cause of action for "any person" legitimizes a parens patriae action by the state in which the municipality is located; sufficient quasi-sovereign interest demonstrated here.

Concurrence:

Municipal statute is a state statute, since the municipality is a creation of the state; certifying the question to the state would be necessary to determine if the state could act parens patriae by its own statute.

Concur/Dissent:

General dissent as to not honoring the determinations of the finder of fact.

Since the cause of action doesn't list government bodies and the rest of the code generally does, and the statute designates a specific enforcement entity with power to seek an injunction, the state does not have parens patriae standing.

Courts are permitted to consider hearsay in a preliminary injunction hearing; they are not required to do so.

Statute's restriction on making access unreasonably difficult or dangerous explicitly excludes de minimis interference.  Concluding otherwise impermissibly burdens speech. 

Finder of fact held that a reasonable observer familiar with the speaker's preaching would not have interpreted the statements about impending death as true threats.

Irreparable harm finding requires ongoing plans and activities.

People of the State of New York v. Griepp

Seventh Circuit: James Sweeney v. Kwame Raoul

Although the union is compelled by state law to serve as the exclusive bargaining agent for the relevant unit, including its nonmembers, and the courts have recently held that it is unable to assess compulsory representation fees on nonmembers, an injury giving Article III standing for a First Amendment challenge to the state statute would require an actual instance of a nonmember requiring representation under the statute, and standing would also require that a named defendant threatened an imminent enforcement of the state law.

James Sweeney v.  Kwame Raoul

DC Circuit: State of New Jersey v. EPA

 

Court has independent obligation to assure itself that parties have standing where the question is raised by an intervenor.

Although the Act contemplates state regulations and statutes that go further than its requirements, a state's claim that inadequate record-keeping demands will hamper enforcement is sufficient for standing, as the possibility of state action to remove the harm doesn't obviate the harm for purposes of standing, and additionally, and subsequent changes in state enforcement would have to be approved by the agency.  Possibility of future harms from enforcement in other states is also sufficient for standing.

Rulemaking sufficiently explained its enforcement trigger levels and adequately addressed enforcement concerns.

Dissent:

Harm too attenuated for standing -- one theory requires an out of state polluter who applied under the permit scheme and pollutes undetetected, and the other theory relies on speculative noncompliance within the state.

State of New Jersey v. EPA

Seventh Circuit: Driftless Area Land Conservanc v. Michael Huebsch

 CJ:

Denial of a motion to intervene as of right, or, in the alternative, permissively is sufficiently final for appellate review even when made without prejudice, and the court invites the potential intervenor to file a "standby" motion not formalized in the rules.

Risk of nullification of right held under permit to build lucrative electrical transmission line suffice for standing in case adjudicating the permit.

Where a regulatory agency is defending a permit that vests economic rights in a company, the shared interests are not sufficient for a higher threshhold of shared interests.  For the intermediate threshhold, more is required than simply being in favor of the same outcome.  As the company's rights of eminent domain and its interest in the pace of the project are outside the regulator's remit, the company is entitled to intervene as a matter of right under the intermediate standard.

Driftless Area Land Conservanc v.  Michael Huebsch

DC Circuit: Committee on the Judiciary v. Donald McGahn, II

 

Administration official's noncompliance with unchallenged legislative subpoena in furtherance of an enumerated power of the congress is sufficient concrete injury for Article III standing.

As the rules of the House delegate the subpoena power to the committee plaintiff, the harm is sufficiently particularized.

Appearance with sought documents would redress the harm.

Absent questions of individual particularized harm, separation of powers concerns do not inherently implicate standing.

Judicial enforcement of legislative subpoenas is the longstanding practice, doesn't disrupt balancing between legislative and executive since challenges to the subpoenas can be disputed, and much of the relevant precedent deals with the standing of individual legislators.

Dissent:

Judicial interference has only been the norm for about 40 years, other mechanisms exist.

Dissent:

Justiciability implicates injury-in-fact, as the analogy between harming a person and harming a branch of government is imprecise; separation of powers is inherently a consideration proper to standing analysis; denial of enumerated prerogative opens the door too widely; would permanently entangle the DC Circuit in the oversight process; Scotus has never resolved an interbranch dispute; unlike the Senate, the House has no legislative authority to seek judicial enforcement of subpoenas; even assuming standing arguendo, House plaintiff has no statutory or equitable cause of action; judicial enforcement diminishes the threat of impeachment.

Committee on the Judiciary v. Donald McGahn, II

DC Circuit: United States House of Representatives v. Steven Mnuchin (ORDER)

 

(Denial of en banc with remand to consider intervening precedent.)

Dissent from remand:

Parties did not necessarily agree with the implied QP of the consolidated cases.  Gathering for en banc and then punting wastes resources.

Dissent from remand:

Nonjusticiable.  Especially when only raised by one chamber.  Granting en banc sua sponte prior to panel holding was rare, and presumably done to cabin the holding with respect to the facts of the companion case.

United States House of Representatives v. Steven Mnuchin (ORDER)