About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

46 Admin. & Reg. L. News 22 (2020-2021)
Four Opinions on Access to the Courts from the Supreme Court's 2019-20 Term

handle is hein.journals/admreln46 and id is 54 raw text is: Four Opinions on Access to the Courts From the Supreme Court's 2019-20 Term Richard W. Murphy* The last term was a fairly quiet one for administrative law issues bearing on access to the courts for judicial review of agency action. Four cases, however, seem especially noteworthy and are summarized below. The first two offer guid- ance on standing-and also indicate that Justices Thomas and Gorsuch are eager for a fundamental reworking of that doctrine. The third continues theR RICHARD Court's remorseless process of narrowing the availability of the Bivens remedy to obtain damages for violations of select constitutional rights. The fourth, by contrast, opens the door a bit wider to statutory claims for damages with a relatively broad approach to the Tucker Act's waiver of sovereign immunity. A Dog That Didn't Bark About Third-Party Standing Last term'sJune Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020), is notable for what it didn't say about third-party standing. To understand the significance of this silence, we have to cast our minds back to Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). In this unanimous opinion authored by Justice Scalia, the Court explained that prudential standing, although never exhaustively defined, has been thought to implicate three principles: (1) a bar on generalized grievances; (2) a requirement that claims must seek to protect interests that fall within the zone of interests protected by D W.A the law invoked; and (3) a general prohibition on third-party standing. Characterizing these doctrines as prudential is problematic, however, given that federal courts have a virtually unflag- ging obligation to resolve cases that fall within their jurisdiction. The Lexmark Court explained that much of this tension is illusory given that two of these three prudential doctrines actually MURPHY are rooted in constitutional or statutory law. The Court noted that more recent precedents characterized the bar on generalized grievances as rooted in Article III's limitation of the judicial power to resolution of cases and contro- versies. The Court also explained that the zone-of-interests test should be regarded as a general rule for determining the scope of statutory causes of action created by Congress. Application of the zone-of-interests test is therefore a statutory requirement rather than an exercise of free-floating judicial discretion. As for third-party standing, the Court, after hinting that the doctrine might be refrained in terms of whether a plaintiff has a cause of action, declared that determining its proper place in the standing firma- ment can await another day. In June Medical, however, almost all the justices-besides Justice Thomas-passed on an opportunity to continue Lexmark's demolishment of prudential standing doctrine. The plaintiffs, abortion providers and clinics, sued to block enforcement of Louisiana's Unsafe Abortion Protection Act, which required doctors to have admitting privileges within thirty miles of where abor- tions are performed or induced. The case implicated third-party standing because the plaintiffs sought to enforce the constitutional rights of their potential patients. The state of Louisiana failed to raise this argument until its cross-petition for certiorari and had declared to the district court that there was no question that the physicians had standing. The liberal wing of the Court, which still had four justices, held that the state had waived its third-party standing objection. This plurality also explained that waiver or forfeiture were possible because third-party standing is a prudential doctrine that does not emanate from the jurisdictional case-or-controversy requirement of Article III. After finding waiver, the plurality explained why the state's third-party standing objection was invalid on its merits in any event. To this end, the plurality string-cited to nine cases in which the Court had permit- ted abortion providers to sue to enforce the rights of their actual or potential patients. The plurality then string-cited to a dozen cases for the proposition that plaintiffs generally may assert third-party rights where regulation of the plaintiff (e.g., an abortion provider) will indirectly cause violation of a third-party's rights (e.g., the rights of a patient). The plurality added that the possibility of sanctions against the plaintiffs eliminated the risk that their claims were abstract or hypothetical and ensured proper * AT&T Professor of Law, Texas Tech University School of Law. ADMINISTRATIVE & REGULATORY LAW NEWS 22 VOL 46, NO 2

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most