Supplementary Materials

Federal Courts and the Federal System
Professor Raab
Fall 2015
Supplementary Materials

Table of Contents
Page
United States v. Windsor, 133 S. Ct. 2675 (2013) ...........................................................................1
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) ............................................................................18
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) .............................................34
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167 (2000) .................................................................................................................... 52
Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) ............75
National Park Hospitality Association v. Department of the Interior,
538 U.S. 803 (2003) .................................................................................................................... 82
City of Erie v. Pap's A.M., 529 U.S. 277 (2000) ...........................................................................92
Wellness International Network, Ltd. v. Sharif, 135 S. Ct. 1932 (2015) .......................................99
Chicago Tribune Company v. Board of Trustees of the University of Illinois,
680 F.3d 1001 (7th Cir. 2012) .................................................................................................. 118
Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013) ...................................................123

i

UNITED STATES v. WINDSOR
133 S. Ct. 2675 (2013)
Justice KENNEDY delivered the opinion of the Court.
Two women then resident in New York were married in a lawful ceremony in Ontario, Canada,
in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer
died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax
exemption for surviving spouses. She was barred from doing so, however, by a federal law, the
Defense of Marriage Act, which excludes a same-sex partner from the definition of “spouse” as
that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the
constitutionality of this provision. The United States District Court and the Court of Appeals ruled
that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a
refund. This Court granted certiorari and now affirms the judgment in Windsor's favor.
I
In 1996, as some States were beginning to consider the concept of same-sex marriage, see, e.g.,
Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), and before any State had acted to permit it,
Congress enacted the Defense of Marriage Act (DOMA), 110 Stat. 2419. DOMA contains two
operative sections: Section 2, which has not been challenged here, allows States to refuse to
recognize same-sex marriages performed under the laws of other States. See 28 U.S.C. § 1738C.
Section 3 is at issue here. It amends the Dictionary Act in Title 1, § 7, of the United States Code
to provide a federal definition of “marriage” and “spouse.” Section 3 of DOMA provides as
follows:
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of the United States, the word
‘marriage’ means only a legal union between one man and one woman as husband and wife, and
the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1
U.S.C. § 7.
The definitional provision does not by its terms forbid States from enacting laws permitting
same-sex marriages or civil unions or providing state benefits to residents in that status. The
enactment's comprehensive definition of marriage for purposes of all federal statutes and other
regulations or directives covered by its terms, however, does control over 1,000 federal laws in
which marital or spousal status is addressed as a matter of federal law. See GAO, D. Shah, Defense
of Marriage Act: Update to Prior Report 1 (GAO–04–353R, 2004).
Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term
relationship. Windsor and Spyer registered as domestic partners when New York City gave that
right to same-sex couples in 1993. Concerned about Spyer's health, the couple made the 2007 trip
to Canada for their marriage, but they continued to reside in New York City. The State of New
York deems their Ontario marriage to be a valid one. See 699 F.3d 169, 177–178 (C.A.2 2012).
Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA denies

federal recognition to same-sex spouses, Windsor did not qualify for the marital exemption from
the federal estate tax, which excludes from taxation “any interest in property which passes or has
passed from the decedent to his surviving spouse.” 26 U.S.C. § 2056(a). Windsor paid $363,053 in
estate taxes and sought a refund. The Internal Revenue Service denied the refund, concluding that,
under DOMA, Windsor was not a “surviving spouse.” Windsor commenced this refund suit in the
United States District Court for the Southern District of New York. She contended that DOMA
violates the guarantee of equal protection, as applied to the Federal Government through the Fifth
Amendment.
While the tax refund suit was pending, the Attorney General of the United States notified the
Speaker of the House of Representatives, pursuant to 28 U.S.C. § 530D, that the Department of
Justice would no longer defend the constitutionality of DOMA's § 3. Noting that “the Department
has previously defended DOMA against ... challenges involving legally married same-sex
couples,” App. 184, the Attorney General informed Congress that “the President has concluded that
given a number of factors, including a documented history of discrimination, classifications based
on sexual orientation should be subject to a heightened standard of scrutiny.” Id., at 191. The
Department of Justice has submitted many § 530D letters over the years refusing to defend laws it
deems unconstitutional, when, for instance, a federal court has rejected the Government's defense
of a statute and has issued a judgment against it. This case is unusual, however, because the § 530D
letter was not preceded by an adverse judgment. The letter instead reflected the Executive's own
conclusion, relying on a definition still being debated and considered in the courts, that heightened
equal protection scrutiny should apply to laws that classify on the basis of sexual orientation.
Although “the President ... instructed the Department not to defend the statute in Windsor,” he
also decided “that Section 3 will continue to be enforced by the Executive Branch” and that the
United States had an “interest in providing Congress a full and fair opportunity to participate in the
litigation of those cases.” Id., at 191–193. The stated rationale for this dual-track procedure
(determination of unconstitutionality coupled with ongoing enforcement) was to “recogniz[e] the
judiciary as the final arbiter of the constitutional claims raised.” Id., at 192.
In response to the notice from the Attorney General, the Bipartisan Legal Advisory Group
(BLAG) of the House of Representatives voted to intervene in the litigation to defend the
constitutionality of § 3 of DOMA. The Department of Justice did not oppose limited intervention
by BLAG. The District Court denied BLAG's motion to enter the suit as of right, on the rationale
that the United States already was represented by the Department of Justice. The District Court,
however, did grant intervention by BLAG as an interested party. See Fed. Rule Civ. Proc. 24(a)(2).
On the merits of the tax refund suit, the District Court ruled against the United States. It held
that § 3 of DOMA is unconstitutional and ordered the Treasury to refund the tax with interest. Both
the Justice Department and BLAG filed notices of appeal, and the Solicitor General filed a petition
for certiorari before judgment. Before this Court acted on the petition, the Court of Appeals for the
Second Circuit affirmed the District Court's judgment. It applied heightened scrutiny to
classifications based on sexual orientation, as both the Department and Windsor had urged. The
United States has not complied with the judgment. Windsor has not received her refund, and the
Executive Branch continues to enforce § 3 of DOMA.
2

In granting certiorari on the question of the constitutionality of § 3 of DOMA, the Court
requested argument on two additional questions: whether the United States' agreement with
Windsor's legal position precludes further review and whether BLAG has standing to appeal the
case. All parties agree that the Court has jurisdiction to decide this case; and, with the case in that
framework, the Court appointed Professor Vicki Jackson as amicus curiae to argue the position that
the Court lacks jurisdiction to hear the dispute. * * * * She has ably discharged her duties.
In an unrelated case, the United States Court of Appeals for the First Circuit has also held § 3
of DOMA to be unconstitutional. A petition for certiorari has been filed in that case. Pet. for Cert.
in Bipartisan Legal Advisory Group v. Gill, O.T. 2012, No. 12–13.
II
It is appropriate to begin by addressing whether either the Government or BLAG, or both of
them, were entitled to appeal to the Court of Appeals and later to seek certiorari and appear as
parties here.
There is no dispute that when this case was in the District Court it presented a concrete
disagreement between opposing parties, a dispute suitable for judicial resolution. “[A] taxpayer has
standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to
pay such a tax causes a real and immediate economic injury to the individual taxpayer.” Hein v.
Freedom From Religion Foundation, Inc., 551 U.S. 587, 599 (2007) (plurality opinion) (emphasis
deleted). Windsor suffered a redressable injury when she was required to pay estate taxes from
which, in her view, she was exempt but for the alleged invalidity of § 3 of DOMA.
The decision of the Executive not to defend the constitutionality of § 3 in court while
continuing to deny refunds and to assess deficiencies does introduce a complication. Even though
the Executive's current position was announced before the District Court entered its judgment, the
Government's agreement with Windsor's position would not have deprived the District Court of
jurisdiction to entertain and resolve the refund suit; for her injury (failure to obtain a refund
allegedly required by law) was concrete, persisting, and unredressed. The Government's position—
agreeing with Windsor's legal contention but refusing to give it effect—meant that there was a
justiciable controversy between the parties, despite what the claimant would find to be an
inconsistency in that stance. Windsor, the Government, BLAG, and the amicus appear to agree
upon that point. The disagreement is over the standing of the parties, or aspiring parties, to take an
appeal in the Court of Appeals and to appear as parties in further proceedings in this Court.
The amicus' position is that, given the Government's concession that § 3 is unconstitutional,
once the District Court ordered the refund the case should have ended; and the amicus argues the
Court of Appeals should have dismissed the appeal. The amicus submits that once the President
agreed with Windsor's legal position and the District Court issued its judgment, the parties were no
longer adverse. From this standpoint the United States was a prevailing party below, just as
Windsor was. Accordingly, the amicus reasons, it is inappropriate for this Court to grant certiorari
and proceed to rule on the merits; for the United States seeks no redress from the judgment entered
against it.
This position, however, elides the distinction between two principles: the jurisdictional
3

requirements of Article III and the prudential limits on its exercise. See Warth v. Seldin, 422 U.S.
490, 498 (1975). The latter are “essentially matters of judicial self-governance.” Id., at 500. The
Court has kept these two strands separate: “Article III standing, which enforces the Constitution's
case-or-controversy requirement, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–562
(1992); and prudential standing, which embodies ‘judicially self-imposed limits on the exercise of
federal jurisdiction,’ Allen [v. Wright,] 468 U.S. [737,] 751 (1984)].” Elk Grove Unified School
Dist. v. Newdow, 542 U.S. 1, 11–12 (2004).
The requirements of Article III standing are familiar:
“First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural or
hypothetical.”’ Second, there must be a causal connection between the injury and the conduct
complained of—the injury has to be ‘fairly ... trace[able] to the challenged action of the
defendant, and not ... th[e] result [of] the independent action of some third party not before the
court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be
‘redressed by a favorable decision.’” Lujan, supra, at 560–561 (footnote and citations omitted).
Rules of prudential standing, by contrast, are more flexible “rule[s] ... of federal appellate
practice,” Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 333 (1980), designed to protect the
courts from “decid[ing] abstract questions of wide public significance even [when] other
governmental institutions may be more competent to address the questions and even though
judicial intervention may be unnecessary to protect individual rights.” Warth, supra, at 500.
In this case the United States retains a stake sufficient to support Article III jurisdiction on
appeal and in proceedings before this Court. The judgment in question orders the United States to
pay Windsor the refund she seeks. An order directing the Treasury to pay money is “a real and
immediate economic injury,” Hein, 551 U.S., at 599, indeed as real and immediate as an order
directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if
it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national
Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States
to pay money that it would not disburse but for the court's order. The Government of the United
States has a valid legal argument that it is injured even if the Executive disagrees with § 3 of
DOMA, which results in Windsor's liability for the tax. Windsor's ongoing claim for funds that the
United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It
would be a different case if the Executive had taken the further step of paying Windsor the refund
to which she was entitled under the District Court's ruling.
This Court confronted a comparable case in INS v. Chadha, 462 U.S. 919 (1983). A statute by
its terms allowed one House of Congress to order the Immigration and Naturalization Service
(INS) to deport the respondent Chadha. There, as here, the Executive determined that the statute
was unconstitutional, and “the INS presented the Executive's views on the constitutionality of the
House action to the Court of Appeals.” Id., at 930. The INS, however, continued to abide by the
statute, and “the INS brief to the Court of Appeals did not alter the agency's decision to comply
with the House action ordering deportation of Chadha.” Ibid. This Court held “that the INS was
sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would
4

otherwise take,” ibid., regardless of whether the agency welcomed the judgment. The necessity of a
“case or controversy” to satisfy Article III was defined as a requirement that the Court's “‘decision
will have real meaning: if we rule for Chadha, he will not be deported; if we uphold [the statute],
the INS will execute its order and deport him.’” Id., at 939–940 (quoting Chadha v. INS, 634 F.2d
408, 419 (C.A.9 1980)). This conclusion was not dictum. It was a necessary predicate to the Court's
holding that “prior to Congress' intervention, there was adequate Art. III adverseness.” 462 U.S., at
939. The holdings of cases are instructive, and the words of Chadha make clear its holding that the
refusal of the Executive to provide the relief sought suffices to preserve a justiciable dispute as
required by Article III. In short, even where “the Government largely agree[s] with the opposing
party on the merits of the controversy,” there is sufficient adverseness and an “adequate basis for
jurisdiction in the fact that the Government intended to enforce the challenged law against that
party.” Id., at 940, n. 12.
It is true that “[a] party who receives all that he has sought generally is not aggrieved by the
judgment affording the relief and cannot appeal from it.” Roper, supra, at 333, see also Camreta v.
Greene, 563 U.S. ––––, ––––, 131 S.Ct. 2020, 2030 (2011) (“As a matter of practice and prudence,
we have generally declined to consider cases at the request of a prevailing party, even when the
Constitution allowed us to do so”). But this rule “does not have its source in the jurisdictional
limitations of Art. III. In an appropriate case, appeal may be permitted ... at the behest of the party
who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the
requirements of Art. III.” Roper, supra, at 333–334.
While these principles suffice to show that this case presents a justiciable controversy under
Article III, the prudential problems inherent in the Executive's unusual position require some
further discussion. The Executive's agreement with Windsor's legal argument raises the risk that
instead of a “‘real, earnest and vital controversy,’” the Court faces a “friendly, non-adversary,
proceeding ... [in which] ‘a party beaten in the legislature [seeks to] transfer to the courts an inquiry
as to the constitutionality of the legislative act.’” Ashwander v. TVA, 297 U.S. 288, 346 (1936)
(Brandeis, J., concurring) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345
(1892)). Even when Article III permits the exercise of federal jurisdiction, prudential
considerations demand that the Court insist upon “that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962).
There are, of course, reasons to hear a case and issue a ruling even when one party is reluctant
to prevail in its position. Unlike Article III requirements—which must be satisfied by the parties
before judicial consideration is appropriate—the relevant prudential factors that counsel against
hearing this case are subject to “countervailing considerations [that] may outweigh the concerns
underlying the usual reluctance to exert judicial power.” Warth, 422 U.S., at 500–501. One
consideration is the extent to which adversarial presentation of the issues is assured by the
participation of amici curiae prepared to defend with vigor the constitutionality of the legislative
act. With respect to this prudential aspect of standing as well, the Chadha Court encountered a
similar situation. It noted that “there may be prudential, as opposed to Art. III, concerns about
sanctioning the adjudication of [this case] in the absence of any participant supporting the validity
of [the statute]. The Court of Appeals properly dispelled any such concerns by inviting and
accepting briefs from both Houses of Congress.” 462 U.S., at 940. Chadha was not an anomaly in
5

this respect. The Court adopts the practice of entertaining arguments made by an amicus when the
Solicitor General confesses error with respect to a judgment below, even if the confession is in
effect an admission that an Act of Congress is unconstitutional. See, e.g., Dickerson v. United
States, 530 U.S. 428 (2000).
In the case now before the Court the attorneys for BLAG present a substantial argument for the
constitutionality of § 3 of DOMA. BLAG's sharp adversarial presentation of the issues satisfies the
prudential concerns that otherwise might counsel against hearing an appeal from a decision with
which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss
the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well,
extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be
without precedential guidance not only in tax refund suits but also in cases involving the whole of
DOMA's sweep involving over 1,000 federal statutes and a myriad of federal regulations. For
instance, the opinion of the Court of Appeals for the First Circuit, addressing the validity of
DOMA in a case involving regulations of the Department of Health and Human Services, likely
would be vacated with instructions to dismiss, its ruling and guidance also then erased. See
Massachusetts v. United States Dept. of Health and Human Servs., 682 F.3d 1 (C.A.1 2012). Rights
and privileges of hundreds of thousands of persons would be adversely affected, pending a case in
which all prudential concerns about justiciability are absent. That numerical prediction may not be
certain, but it is certain that the cost in judicial resources and expense of litigation for all persons
adversely affected would be immense. True, the very extent of DOMA's mandate means that at
some point a case likely would arise without the prudential concerns raised here; but the costs,
uncertainties, and alleged harm and injuries likely would continue for a time measured in years
before the issue is resolved. In these unusual and urgent circumstances, the very term “prudential”
counsels that it is a proper exercise of the Court's responsibility to take jurisdiction. For these
reasons, the prudential and Article III requirements are met here; and, as a consequence, the Court
need not decide whether BLAG would have standing to challenge the District Court's ruling and its
affirmance in the Court of Appeals on BLAG's own authority.
The Court's conclusion that this petition may be heard on the merits does not imply that no
difficulties would ensue if this were a common practice in ordinary cases. The Executive's failure
to defend the constitutionality of an Act of Congress based on a constitutional theory not yet
established in judicial decisions has created a procedural dilemma. On the one hand, as noted, the
Government's agreement with Windsor raises questions about the propriety of entertaining a suit in
which it seeks affirmance of an order invalidating a federal law and ordering the United States to
pay money. On the other hand, if the Executive's agreement with a plaintiff that a law is
unconstitutional is enough to preclude judicial review, then the Supreme Court's primary role in
determining the constitutionality of a law that has inflicted real injury on a plaintiff who has
brought a justiciable legal claim would become only secondary to the President's. This would
undermine the clear dictate of the separation-of-powers principle that “when an Act of Congress is
alleged to conflict with the Constitution, ‘[i]t is emphatically the province and duty of the judicial
department to say what the law is.’” Zivotofsky v. Clinton, 566 U.S. ––––, ––––, 132 S.Ct. 1421,
1427–1428 (2012) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). Similarly, with
respect to the legislative power, when Congress has passed a statute and a President has signed it, it
poses grave challenges to the separation of powers for the Executive at a particular moment to be
able to nullify Congress' enactment solely on its own initiative and without any determination from
6

the Court.
The Court's jurisdictional holding, it must be underscored, does not mean the arguments for
dismissing this dispute on prudential grounds lack substance. Yet the difficulty the Executive faces
should be acknowledged. When the Executive makes a principled determination that a statute is
unconstitutional, it faces a difficult choice. Still, there is no suggestion here that it is appropriate for
the Executive as a matter of course to challenge statutes in the judicial forum rather than making
the case to Congress for their amendment or repeal. The integrity of the political process would be
at risk if difficult constitutional issues were simply referred to the Court as a routine exercise. But
this case is not routine. And the capable defense of the law by BLAG ensures that these prudential
issues do not cloud the merits question, which is one of immediate importance to the Federal
Government and to hundreds of thousands of persons. These circumstances support the Court's
decision to proceed to the merits.
****
The judgment of the Court of Appeals for the Second Circuit is affirmed.
It is so ordered.
****
Justice SCALIA, with whom Justice THOMAS joins, and with whom THE CHIEF JUSTICE joins
as to Part I, dissenting.
This case is about power in several respects. It is about the power of our people to govern
themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the
latter, with the predictable consequence of diminishing the former. We have no power to decide
this case. And even if we did, we have no power under the Constitution to invalidate this
democratically adopted legislation. The Court's errors on both points spring forth from the same
diseased root: an exalted conception of the role of this institution in America.
I
A
The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this
case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of
We the People, who created it as a barrier against judges' intrusion into their lives. They gave
judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real,
concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what
should happen in this lawsuit. They agree that the court below got it right; and they agreed in the
court below that the court below that one got it right as well. What, then, are we doing here?
The answer lies at the heart of the jurisdictional portion of today's opinion, where a single
sentence lays bare the majority's vision of our role. The Court says that we have the power to
decide this case because if we did not, then our “primary role in determining the constitutionality of
a law” (at least one that “has inflicted real injury on a plaintiff”) would “become only secondary to
the President's.” * * * But wait, the reader wonders—Windsor won below, and so cured her injury,
7

and the President was glad to see it. True, says the majority, but judicial review must march on
regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an
Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty
of the judicial department to say what the law is.” * * *
That is jaw-dropping. It is an assertion of judicial supremacy over the people's Representatives
in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the
apex of government, empowered to decide all constitutional questions, always and everywhere
“primary” in its role.
This image of the Court would have been unrecognizable to those who wrote and ratified our
national charter. They knew well the dangers of “primary” power, and so created branches of
government that would be “perfectly coordinate by the terms of their common commission,” none
of which branches could “pretend to an exclusive or superior right of settling the boundaries
between their respective powers.” The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961)
(J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule
against the black-robed supremacy that today's majority finds so attractive. So it was that Madison
could confidently state, with no fear of contradiction, that there was nothing of “greater intrinsic
value” or “stamped with the authority of more enlightened patrons of liberty” than a government of
separate and coordinate powers. Id., No. 47, at 301.
For this reason we are quite forbidden to say what the law is whenever (as today's opinion
asserts) “‘an Act of Congress is alleged to conflict with the Constitution.’” * * * We can do so only
when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party.
The “judicial Power” is not, as the majority believes, the power “‘to say what the law is,’” * * *,
giving the Supreme Court the “primary role in determining the constitutionality of laws.” The
majority must have in mind one of the foreign constitutions that pronounces such primacy for its
constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See,
e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans
have understood it (and their English ancestors before them) is the power to adjudicate, with
conclusive effect, disputed government claims (civil or criminal) against private persons, and
disputed claims by private persons against the government or other private persons. Sometimes
(though not always) the parties before the court disagree not with regard to the facts of their case
(or not only with regard to the facts) but with regard to the applicable law—in which event (and
only in which event) it becomes the “‘province and duty of the judicial department to say what the
law is.’” * * *
In other words, declaring the compatibility of state or federal laws with the Constitution is not
only not the “primary role” of this Court, it is not a separate, free-standing role at all. We perform
that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before
us. Then, and only then, does it become “‘the province and duty of the judicial department to say
what the law is.’” That is why, in 1793, we politely declined the Washington Administration's
request to “say what the law is” on a particular treaty matter that was not the subject of a concrete
legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed.
1893). And that is why, as our opinions have said, some questions of law will never be presented to
this Court, because there will never be anyone with standing to bring a lawsuit. See Schlesinger v.
8

Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974); United States v. Richardson, 418
U.S. 166, 179 (1974). As Justice Brandeis put it, we cannot “pass upon the constitutionality of
legislation in a friendly, non-adversary, proceeding”; absent a “‘real, earnest and vital controversy
between individuals,’” we have neither any work to do nor any power to do it. Ashwander v. TVA,
297 U.S. 288, 346 (1936) (concurring opinion) (quoting Chicago & Grand Trunk R. Co. v.
Wellman, 143 U.S. 339, 345 (1892)). Our authority begins and ends with the need to adjudge the
rights of an injured party who stands before us seeking redress. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992).
That is completely absent here. Windsor's injury was cured by the judgment in her favor. And
while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this
suit is far from ordinary. Whatever injury the United States has suffered will surely not be
redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor
General's brief on the merits reads: “For the foregoing reasons, the judgment of the court of appeals
should be affirmed.” Brief for United States (merits) 54 (emphasis added). That will not cure the
Government's injury, but carve it into stone. One could spend many fruitless afternoons ransacking
our library for any other petitioner's brief seeking an affirmance of the judgment against it.FN1 What
the petitioner United States asks us to do in the case before us is exactly what the respondent
Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment
was correct. And the same was true in the Court of Appeals: Neither party sought to undo the
judgment for Windsor, and so that court should have dismissed the appeal (just as we should
dismiss) for lack of jurisdiction. Since both parties agreed with the judgment of the District Court
for the Southern District of New York, the suit should have ended there. The further proceedings
have been a contrivance, having no object in mind except to elevate a District Court judgment that
has no precedential effect in other courts, to one that has precedential effect throughout the Second
Circuit, and then (in this Court) precedential effect throughout the United States.
FN1. For an even more advanced scavenger hunt, one might search the annals of Anglo–
American law for another “Motion to Dismiss” like the one the United States filed in
District Court: It argued that the court should agree “with Plaintiff and the United States”
and “not dismiss” the complaint. (Emphasis mine.) Then, having gotten exactly what it
asked for, the United States promptly appealed.
We have never before agreed to speak—to “say what the law is”—where there is no
controversy before us. In the more than two centuries that this Court has existed as an institution,
we have never suggested that we have the power to decide a question when every party agrees with
both its nominal opponent and the court below on that question's answer. The United States
reluctantly conceded that at oral argument. See Tr. of Oral Arg. 19–20.
The closest we have ever come to what the Court blesses today was our opinion in INS v.
Chadha, 462 U.S. 919 (1983). But in that case, two parties to the litigation disagreed with the
position of the United States and with the court below: the House and Senate, which had intervened
in the case. Because Chadha concerned the validity of a mode of congressional action—the onehouse legislative veto—the House and Senate were threatened with destruction of what they
claimed to be one of their institutional powers. The Executive choosing not to defend that
power,FN2 we permitted the House and Senate to intervene. Nothing like that is present here.
9

FN2. There the Justice Department's refusal to defend the legislation was in accord with its
longstanding (and entirely reasonable) practice of declining to defend legislation that in its
view infringes upon Presidential powers. There is no justification for the Justice
Department's abandoning the law in the present case. The majority opinion makes a point of
scolding the President for his “failure to defend the constitutionality of an Act of Congress
based on a constitutional theory not yet established in judicial decisions,” * * *. But the
rebuke is tongue-in-cheek, for the majority gladly gives the President what he wants.
Contrary to all precedent, it decides this case (and even decides it the way the President
wishes) despite his abandonment of the defense and the consequent absence of a case or
controversy.
To be sure, the Court in Chadha said that statutory aggrieved-party status was “not altered by
the fact that the Executive may agree with the holding that the statute in question is
unconstitutional.” Id., at 930–931. But in a footnote to that statement, the Court acknowledged
Article III's separate requirement of a “justiciable case or controversy,” and stated that this
requirement was satisfied “because of the presence of the two Houses of Congress as adverse
parties.” Id., at 931, n. 6. Later in its opinion, the Chadha Court remarked that the United States'
announced intention to enforce the statute also sufficed to permit judicial review, even absent
congressional participation. Id., at 939. That remark is true, as a description of the judicial review
conducted in the Court of Appeals, where the Houses of Congress had not intervened. (The case
originated in the Court of Appeals, since it sought review of agency action under 8 U.S.C.
§ 1105a(a) (1976 ed.).) There, absent a judgment setting aside the INS order, Chadha faced
deportation. This passage of our opinion seems to be addressing that initial standing in the Court of
Appeals, as indicated by its quotation from the lower court's opinion, 462 U.S., at 939–940. But if
it was addressing standing to pursue the appeal, the remark was both the purest dictum (as
congressional intervention at that point made the required adverseness “beyond doubt,” id., at 939),
and quite incorrect. When a private party has a judicial decree safely in hand to prevent his injury,
additional judicial action requires that a party injured by the decree seek to undo it. In Chadha, the
intervening House and Senate fulfilled that requirement. Here no one does.
The majority's discussion of the requirements of Article III bears no resemblance to our
jurisprudence. It accuses the amicus (appointed to argue against our jurisdiction) of “elid[ing] the
distinction between ... the jurisdictional requirements of Article III and the prudential limits on its
exercise.” * * * * It then proceeds to call the requirement of adverseness a “prudential” aspect of
standing. Of standing. That is incomprehensible. A plaintiff (or appellant) can have all the standing
in the world—satisfying all three standing requirements of Lujan that the majority so carefully
quotes, * * * —and yet no Article III controversy may be before the court. Article III requires not
just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the
validity of the complaint. It is not the amicus that has done the eliding of distinctions, but the
majority, calling the quite separate Article III requirement of adverseness between the parties an
element (which it then pronounces a “prudential” element) of standing. The question here is not
whether, as the majority puts it, “the United States retains a stake sufficient to support Article III
jurisdiction,” ibid. the question is whether there is any controversy (which requires contradiction)
between the United States and Ms. Windsor. There is not.
10

I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness
as nothing more than a “prudential” aspect of the sole Article III requirement of standing.
(Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling
courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.)
Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality
of a federal statute achieved that goal by effecting a remarkably similar but completely opposite
distortion of the principles limiting our jurisdiction. The Court's notorious opinion in Flast v.
Cohen, 392 U.S. 83, 98–101 (1968), held that standing was merely an element (which it
pronounced to be a “prudential” element) of the sole Article III requirement of adverseness. We
have been living with the chaos created by that power-grabbing decision ever since, see Hein v.
Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007), as we will have to live with the
chaos created by this one.
The authorities the majority cites fall miles short of supporting the counterintuitive notion that
an Article III “controversy” can exist without disagreement between the parties. In Deposit
Guaranty Nat. Bank v. Roper, 445 U.S. 326 (1980), the District Court had entered judgment in the
individual plaintiff's favor based on the defendant bank's offer to pay the full amount claimed. The
plaintiff, however, sought to appeal the District Court's denial of class certification under Federal
Rule of Civil Procedure 23. There was a continuing dispute between the parties concerning the
issue raised on appeal. The same is true of the other case cited by the majority, Camreta v. Greene,
563 U.S. ––––, 131 S.Ct. 2020 (2011). There the District Court found that the defendant state
officers had violated the Fourth Amendment, but rendered judgment in their favor because they
were entitled to official immunity, application of the Fourth Amendment to their conduct not
having been clear at the time of violation. The officers sought to appeal the holding of Fourth
Amendment violation, which would circumscribe their future conduct; the plaintiff continued to
insist that a Fourth Amendment violation had occurred. The “prudential” discretion to which both
those cases refer was the discretion to deny an appeal even when a live controversy exists—not the
discretion to grant one when it does not. The majority can cite no case in which this Court
entertained an appeal in which both parties urged us to affirm the judgment below. And that is
because the existence of a controversy is not a “prudential” requirement that we have invented, but
an essential element of an Article III case or controversy. The majority's notion that a case between
friendly parties can be entertained so long as “adversarial presentation of the issues is assured by
the participation of amici curiae prepared to defend with vigor” the other side of the issue, * * *
effects a breathtaking revolution in our Article III jurisprudence.
It may be argued that if what we say is true some Presidential determinations that statutes are
unconstitutional will not be subject to our review. That is as it should be, when both the President
and the plaintiff agree that the statute is unconstitutional. Where the Executive is enforcing an
unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the
unconstitutionality of the law, the litigation should end in an order or a consent decree enjoining
enforcement. This suit saw the light of day only because the President enforced the Act (and thus
gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally
chosen (more appropriately, some would say) neither to enforce nor to defend the statute he
believed to be unconstitutional, see Presidential Authority to Decline to Execute Unconstitutional
Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2, 1994)—in which event Windsor would not have
been injured, the District Court could not have refereed this friendly scrimmage, and the
11

Executive's determination of unconstitutionality would have escaped this Court's desire to blurt out
its view of the law. The matter would have been left, as so many matters ought to be left, to a tug of
war between the President and the Congress, which has innumerable means (up to and including
impeachment) of compelling the President to enforce the laws it has written. Or the President could
have evaded presentation of the constitutional issue to this Court simply by declining to appeal the
District Court and Court of Appeals dispositions he agreed with. Be sure of this much: If a
President wants to insulate his judgment of unconstitutionality from our review, he can. What the
views urged in this dissent produce is not insulation from judicial review but insulation from
Executive contrivance.
The majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch 137, 177
(1803) that “[i]t is emphatically the province and duty of the judicial department to say what the
law is.” * * *. But that sentence neither says nor implies that it is always the province and duty of
the Court to say what the law is—much less that its responsibility in that regard is a “primary” one.
The very next sentence of Chief Justice Marshall's opinion makes the crucial qualification that
today's majority ignores: “Those who apply the rule to particular cases, must of necessity expound
and interpret that rule.” 1 Cranch, at 177 (emphasis added). Only when a “particular case” is before
us—that is, a controversy that it is our business to resolve under Article III—do we have the
province and duty to pronounce the law. For the views of our early Court more precisely
addressing the question before us here, the majority ought instead to have consulted the opinion of
Chief Justice Taney in Lord v. Veazie, 8 How. 251 (1850):
“The objection in the case before us is ... that the plaintiff and defendant have the same interest,
and that interest adverse and in conflict with the interest of third persons, whose rights would be
seriously affected if the question of law was decided in the manner that both of the parties to this
suit desire it to be.
“A judgment entered under such circumstances, and for such purposes, is a mere form. The
whole proceeding was in contempt of the court, and highly reprehensible.... A judgment in form,
thus procured, in the eye of the law is no judgment of the court. It is a nullity, and no writ of error
will lie upon it. This writ is, therefore, dismissed.” Id., at 255–256.
There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this
case; just a desire to place this Court at the center of the Nation's life. 1 Cranch, at 177.
B
A few words in response to the theory of jurisdiction set forth in Justice ALITO's dissent:
Though less far reaching in its consequences than the majority's conversion of constitutionally
required adverseness into a discretionary element of standing, the theory of that dissent similarly
elevates the Court to the “primary” determiner of constitutional questions involving the separation
of powers, and, to boot, increases the power of the most dangerous branch: the “legislative
department,” which by its nature “draw[s] all power into its impetuous vortex.” The Federalist, No.
48, at 309 (J. Madison). Heretofore in our national history, the President's failure to “take Care that
the Laws be faithfully executed,” U.S. Const., Art. II, § 3, could only be brought before a judicial
tribunal by someone whose concrete interests were harmed by that alleged failure. Justice ALITO
would create a system in which Congress can hale the Executive before the courts not only to
12

vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution
of its laws.FN3 This would lay to rest Tocqueville's praise of our judicial system as one which
“intimately bind[s] the case made for the law with the case made for one man,” one in which
legislation is “no longer exposed to the daily aggression of the parties,” and in which “[t]he
political question that [the judge] must resolve is linked to the interest” of private litigants. A. de
Tocqueville, Democracy in America 97 (H. Mansfield & D. Winthrop eds. 2000). That would be
replaced by a system in which Congress and the Executive can pop immediately into court, in their
institutional capacity, whenever the President refuses to implement a statute he believes to be
unconstitutional, and whenever he implements a law in a manner that is not to Congress's liking.
FN3. Justice ALITO attempts to limit his argument by claiming that Congress is injured
(and can therefore appeal) when its statute is held unconstitutional without Presidential
defense, but is not injured when its statute is held unconstitutional despite Presidential
defense. I do not understand that line. The injury to Congress is the same whether the
President has defended the statute or not. And if the injury is threatened, why should
Congress not be able to participate in the suit from the beginning, just as the President can?
And if having a statute declared unconstitutional (and therefore inoperative) by a court is an
injury, why is it not an injury when a statute is declared unconstitutional by the President
and rendered inoperative by his consequent failure to enforce it? Or when the President
simply declines to enforce it without opining on its constitutionality? If it is the
inoperativeness that constitutes the injury—the “impairment of [the legislative] function,”
as Justice ALITO puts it, * * *—it should make no difference which of the other two
branches inflicts it, and whether the Constitution is the pretext. A principled and predictable
system of jurisprudence cannot rest upon a shifting concept of injury, designed to support
standing when we would like it. If this Court agreed with Justice ALITO's distinction, its
opinion in Raines v. Byrd, 521 U.S. 811 (1997), which involved an original suit by
Members of Congress challenging an assertedly unconstitutional law, would have been
written quite differently; and Justice ALITO's distinguishing of that case on grounds quite
irrelevant to his theory of standing would have been unnecessary.
Justice ALITO's notion of standing will likewise enormously shrink the area to which “judicial
censure, exercised by the courts on legislation, cannot extend,” ibid. For example, a bare majority
of both Houses could bring into court the assertion that the Executive's implementation of welfare
programs is too generous—a failure that no other litigant would have standing to complain about.
Moreover, as we indicated in Raines v. Byrd, 521 U.S. 811, 828 (1997), if Congress can sue the
Executive for the erroneous application of the law that “injures” its power to legislate, surely the
Executive can sue Congress for its erroneous adoption of an unconstitutional law that “injures” the
Executive's power to administer—or perhaps for its protracted failure to act on one of his
nominations. The opportunities for dragging the courts into disputes hitherto left for political
resolution are endless.
Justice ALITO's dissent is correct that Raines did not formally decide this issue, but its
reasoning does. The opinion spends three pages discussing famous, decades-long disputes between
the President and Congress—regarding congressional power to forbid the Presidential removal of
executive officers, regarding the legislative veto, regarding congressional appointment of executive
officers, and regarding the pocket veto—that would surely have been promptly resolved by a
13

Congress–vs.–the–President lawsuit if the impairment of a branch's powers alone conferred
standing to commence litigation. But it does not, and never has; the “enormous power that the
judiciary would acquire” from the ability to adjudicate such suits “would have made a mockery of
[Hamilton's] quotation of Montesquieu to the effect that ‘of the three powers above mentioned ...
the JUDICIARY is next to nothing.’” Barnes v. Kline, 759 F.2d 21, 58 (C.A.D.C.1985) (Bork, J.,
dissenting) (quoting The Federalist No. 78 (A. Hamilton)).
To be sure, if Congress cannot invoke our authority in the way that JUSTICE ALITO proposes,
then its only recourse is to confront the President directly. Unimaginable evil this is not. Our
system is designed for confrontation. That is what “[a]mbition ... counteract[ing] ambition,” The
Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care
enough about the matter, they have available innumerable ways to compel executive action without
a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing
says “enforce the Act” quite like “... or you will have money for little else.”) But the condition is
crucial; Congress must care enough to act against the President itself, not merely enough to instruct
its lawyers to ask us to do so. Placing the Constitution's entirely anticipated political arm wrestling
into permanent judicial receivership does not do the system a favor. And by the way, if the
President loses the lawsuit but does not faithfully implement the Court's decree, just as he did not
faithfully implement Congress's statute, what then? Only Congress can bring him to heel by ...
what do you think? Yes: a direct confrontation with the President.
II
For the reasons above, I think that this Court has, and the Court of Appeals had, no power to
decide this suit. We should vacate the decision below and remand to the Court of Appeals for the
Second Circuit, with instructions to dismiss the appeal. Given that the majority has volunteered its
view of the merits, however, I proceed to discuss that as well.
****
I dissent.
Justice ALITO, with whom Justice THOMAS joins as to Parts II and III, dissenting.
Our Nation is engaged in a heated debate about same-sex marriage. That debate is, at bottom,
about the nature of the institution of marriage. Respondent Edith Windsor, supported by the United
States, asks this Court to intervene in that debate, and although she couches her argument in
different terms, what she seeks is a holding that enshrines in the Constitution a particular
understanding of marriage under which the sex of the partners makes no difference. The
Constitution, however, does not dictate that choice. It leaves the choice to the people, acting
through their elected representatives at both the federal and state levels. I would therefore hold that
Congress did not violate Windsor's constitutional rights by enacting § 3 of the Defense of Marriage
Act (DOMA), 110 Stat. 2419, which defines the meaning of marriage under federal statutes that
either confer upon married persons certain federal benefits or impose upon them certain federal
obligations.
I
I turn first to the question of standing. In my view, the United States clearly is not a proper
14

petitioner in this case. The United States does not ask us to overturn the judgment of the court
below or to alter that judgment in any way. Quite to the contrary, the United States argues
emphatically in favor of the correctness of that judgment. We have never before reviewed a
decision at the sole behest of a party that took such a position, and to do so would be to render an
advisory opinion, in violation of Article III's dictates. For the reasons given in Justice SCALIA's
dissent, I do not find the Court's arguments to the contrary to be persuasive.
Whether the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) has
standing to petition is a much more difficult question. It is also a significantly closer question than
whether the intervenors in Hollingsworth v. Perry, ante, ––– U.S., at ––––, 133 S.Ct. 1521—which
the Court also decides today—have standing to appeal. It is remarkable that the Court has
simultaneously decided that the United States, which “receive[d] all that [it] ha[d] sought” below,
Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 333 (1980), is a proper petitioner in this case
but that the intervenors in Hollingsworth, who represent the party that lost in the lower court, are
not. In my view, both the Hollingsworth intervenors and BLAG have standing.FN1
FN1. Our precedents make clear that, in order to support our jurisdiction, BLAG must
demonstrate that it had Article III standing in its own right, quite apart from its status as an
intervenor. See Diamond v. Charles, 476 U.S. 54 (1986) (“Although intervenors are
considered parties entitled, among other things, to seek review by this Court, an intervenor's
right to continue a suit in the absence of the party on whose side intervention was permitted
is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III”
(citation omitted)); Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)
(“Standing to defend on appeal in the place of an original defendant, no less than standing
to sue, demands that the litigant possess a direct stake in the outcome” (internal quotation
marks omitted)); id., at 65 (“An intervenor cannot step into the shoes of the original party
unless the intervenor independently fulfills the requirements of Article III” (internal
quotation marks omitted)).
A party invoking the Court's authority has a sufficient stake to permit it to appeal when it has
“‘suffered an injury in fact’ that is caused by ‘the conduct complained of’ and that ‘will be
redressed by a favorable decision.’” Camreta v. Greene, 563 U.S. ––––, ––––, 131 S.Ct. 2020,
2028 (2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992)). In the present
case, the House of Representatives, which has authorized BLAG to represent its interests in this
matter,FN2 suffered just such an injury.
FN2. H. Res. 5, 113th Cong., 1st Sess., § 4(a)(1)(B) (2013) (“[BLAG] continues to speak
for, and articulates the institutional position of, the House in all litigation matters in which it
appears, including in Windsor v. United States”).
In INS v. Chadha, 462 U.S. 919 (1983), the Court held that the two Houses of Congress were
“proper parties” to file a petition in defense of the constitutionality of the one-house veto statute,
id., at 930, n. 5 (internal quotation marks omitted). Accordingly, the Court granted and decided
petitions by both the Senate and the House, in addition to the Executive's petition. Id., at 919, n. *.
That the two Houses had standing to petition is not surprising: The Court of Appeals' decision in
Chadha, by holding the one-house veto to be unconstitutional, had limited Congress' power to
15

legislate. In discussing Article III standing, the Court suggested that Congress suffered a similar
injury whenever federal legislation it had passed was struck down, noting that it had “long held that
Congress is the proper party to defend the validity of a statute when an agency of government, as a
defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable
or unconstitutional.” Id., at 940.
The United States attempts to distinguish Chadha on the ground that it “involved an unusual
statute that vested the House and the Senate themselves each with special procedural rights—
namely, the right effectively to veto Executive action.” Brief for United States (jurisdiction) 36.
But that is a distinction without a difference: just as the Court of Appeals decision that the Chadha
Court affirmed impaired Congress' power by striking down the one-house veto, so the Second
Circuit's decision here impairs Congress' legislative power by striking down an Act of Congress.
The United States has not explained why the fact that the impairment at issue in Chadha was
“special” or “procedural” has any relevance to whether Congress suffered an injury. Indeed,
because legislating is Congress' central function, any impairment of that function is a more
grievous injury than the impairment of a procedural add-on.
The Court's decision in Coleman v. Miller, 307 U.S. 433 (1939), bolsters this conclusion. In
Coleman, we held that a group of state senators had standing to challenge a lower court decision
approving the procedures used to ratify an amendment to the Federal Constitution. We reasoned
that the senators' votes—which would otherwise have carried the day—were nullified by that
action. See id., at 438 (“Here, the plaintiffs include twenty senators, whose votes against
ratification have been overridden and virtually held for naught although if they are right in their
contentions their votes would have been sufficient to defeat ratification. We think that these
senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes”);
id., at 446 (“[W]e find no departure from principle in recognizing in the instant case that at least the
twenty senators whose votes, if their contention were sustained, would have been sufficient to
defeat the resolution ratifying the proposed constitutional amendment, have an interest in the
controversy which, treated by the state court as a basis for entertaining and deciding the federal
questions, is sufficient to give the Court jurisdiction to review that decision”). By striking down § 3
of DOMA as unconstitutional, the Second Circuit effectively “held for naught” an Act of Congress.
Just as the state-senator-petitioners in Coleman were necessary parties to the amendment's
ratification, the House of Representatives was a necessary party to DOMA's passage; indeed, the
House's vote would have been sufficient to prevent DOMA's repeal if the Court had not chosen to
execute that repeal judicially.
Both the United States and the Court-appointed amicus err in arguing that Raines v. Byrd, 521
U.S. 811 (1997), is to the contrary. In that case, the Court held that Members of Congress who had
voted “nay” to the Line Item Veto Act did not have standing to challenge that statute in federal
court. Raines is inapposite for two reasons. First, Raines dealt with individual Members of
Congress and specifically pointed to the individual Members' lack of institutional endorsement as a
sign of their standing problem: “We attach some importance to the fact that appellees have not
been authorized to represent their respective Houses of Congress in this action, and indeed both
Houses actively oppose their suit.” Id., at 829; see also ibid., n. 10 (citing cases to the effect that
“members of collegial bodies do not have standing to perfect an appeal the body itself has declined
to take” (internal quotation marks omitted)).
16

Second, the Members in Raines—unlike the state senators in Coleman—were not the pivotal
figures whose votes would have caused the Act to fail absent some challenged action. Indeed, it is
telling that Raines characterized Coleman as standing “for the proposition that legislators whose
votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue
if that legislative action goes into effect (or does not go into effect), on the ground that their votes
have been completely nullified.” 521 U.S., at 823. Here, by contrast, passage by the House was
needed for DOMA to become law. U.S. Const., Art. I, § 7 (bicameralism and presentment
requirements for legislation).
I appreciate the argument that the Constitution confers on the President alone the authority to
defend federal law in litigation, but in my view, as I have explained, that argument is contrary to
the Court's holding in Chadha, and it is certainly contrary to the Chadha Court's endorsement of
the principle that “Congress is the proper party to defend the validity of a statute” when the
Executive refuses to do so on constitutional grounds. 462 U.S., at 940. See also 2 U.S.C. § 288h(7)
(Senate Legal Counsel shall defend the constitutionality of Acts of Congress when placed in
issue).FN3 Accordingly, in the narrow category of cases in which a court strikes down an Act of
Congress and the Executive declines to defend the Act, Congress both has standing to defend the
undefended statute and is a proper party to do so.
FN3. Buckley v. Valeo, 424 U.S. 1 (1976), is not to the contrary. The Court's statements
there concerned enforcement, not defense.
****
I respectfully dissent.

17

HOLLINGSWORTH v. PERRY
133 S. Ct. 2652 (2013)
Chief Justice ROBERTS delivered the opinion of the Court.
The public is currently engaged in an active political debate over whether same-sex couples
should be allowed to marry. That question has also given rise to litigation. In this case, petitioners,
who oppose same-sex marriage, ask us to decide whether the Equal Protection Clause “prohibits
the State of California from defining marriage as the union of a man and a woman.” Pet. for Cert. i.
Respondents, same-sex couples who wish to marry, view the issue in somewhat different terms:
For them, it is whether California—having previously recognized the right of same-sex couples to
marry—may reverse that decision through a referendum.
Federal courts have authority under the Constitution to answer such questions only if necessary
to do so in the course of deciding an actual “case” or “controversy.” As used in the Constitution,
those words do not include every sort of dispute, but only those “historically viewed as capable of
resolution through the judicial process.” Flast v. Cohen, 392 U.S. 83, 95 (1968). This is an essential
limit on our power: It ensures that we act as judges, and do not engage in policymaking properly
left to elected representatives.
For there to be such a case or controversy, it is not enough that the party invoking the power of
the court have a keen interest in the issue. That party must also have “standing,” which requires,
among other things, that it have suffered a concrete and particularized injury. Because we find that
petitioners do not have standing, we have no authority to decide this case on the merits, and neither
did the Ninth Circuit.
I
In 2008, the California Supreme Court held that limiting the official designation of marriage to
opposite-sex couples violated the equal protection clause of the California Constitution. In re
Marriage Cases, 43 Cal.4th 757, 183 P.3d 384. Later that year, California voters passed the ballot
initiative at the center of this dispute, known as Proposition 8. That proposition amended the
California Constitution to provide that “[o]nly marriage between a man and a woman is valid or
recognized in California.” Cal. Const., Art. I, § 7.5. Shortly thereafter, the California Supreme
Court rejected a procedural challenge to the amendment, and held that the Proposition was properly
enacted under California law. Strauss v. Horton, 46 Cal.4th 364, 474–475, 207 P.3d 48, 122
(2009).
According to the California Supreme Court, Proposition 8 created a “narrow and limited
exception” to the state constitutional rights otherwise guaranteed to same-sex couples. Id., at 388,
207 P.3d, at 61. Under California law, same-sex couples have a right to enter into relationships
recognized by the State as “domestic partnerships,” which carry “the same rights, protections, and
benefits, and shall be subject to the same responsibilities, obligations, and duties under law ... as
are granted to and imposed upon spouses.” Cal. Fam. Code Ann. § 297.5(a) (West 2004). In In re
Marriage Cases, the California Supreme Court concluded that the California Constitution further
guarantees same-sex couples “all of the constitutionally based incidents of marriage,” including the
right to have that marriage “officially recognized” as such by the State. 43 Cal.4th, at 829,
18

183 P.3d, at 433–434. Proposition 8, the court explained in Strauss, left those rights largely
undisturbed, reserving only “the official designation of the term ‘marriage’ for the union of
opposite-sex couples as a matter of state constitutional law.” 46 Cal.4th, at 388, 207 P.3d, at 61.
Respondents, two same-sex couples who wish to marry, filed suit in federal court, challenging
Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment
to the Federal Constitution. The complaint named as defendants California's Governor, attorney
general, and various other state and local officials responsible for enforcing California's marriage
laws. Those officials refused to defend the law, although they have continued to enforce it
throughout this litigation. The District Court allowed petitioners—the official proponents of the
initiative, see Cal. Elec.Code Ann. § 342 (West 2003)—to intervene to defend it. After a 12–day
bench trial, the District Court declared Proposition 8 unconstitutional, permanently enjoining the
California officials named as defendants from enforcing the law, and “directing the official
defendants that all persons under their control or supervision” shall not enforce it. Perry v.
Schwarzenegger, 704 F.Supp.2d 921, 1004 (N.D.Cal.2010).
Those officials elected not to appeal the District Court order. When petitioners did, the Ninth
Circuit asked them to address “why this appeal should not be dismissed for lack of Article III
standing.” Perry v. Schwarzenegger, Civ. No. 10–16696 (C.A.9, Aug. 16, 2010), p. 2, 2010 WL
3212786. After briefing and argument, the Ninth Circuit certified a question to the California
Supreme Court:
“Whether under Article II, Section 8 of the California Constitution, or otherwise under California
law, the official proponents of an initiative measure possess either a particularized interest in the
initiative's validity or the authority to assert the State's interest in the initiative's validity, which
would enable them to defend the constitutionality of the initiative upon its adoption or appeal a
judgment invalidating the initiative, when the public officials charged with that duty refuse to do
so.” Perry v. Schwarzenegger, 628 F.3d 1191, 1193 (2011).
The California Supreme Court agreed to decide the certified question, and answered in the
affirmative. Without addressing whether the proponents have a particularized interest of their own
in an initiative's validity, the court concluded that “[i]n a postelection challenge to a voter-approved
initiative measure, the official proponents of the initiative are authorized under California law to
appear and assert the state's interest in the initiative's validity and to appeal a judgment invalidating
the measure when the public officials who ordinarily defend the measure or appeal such a judgment
decline to do so.” Perry v. Brown, 52 Cal.4th 1116, 1127, 265 P.3d 1002, 1007 (2011).
Relying on that answer, the Ninth Circuit concluded that petitioners had standing under federal
law to defend the constitutionality of Proposition 8. California, it reasoned, “‘has standing to
defend the constitutionality of its [laws],’” and States have the “prerogative, as independent
sovereigns, to decide for themselves who may assert their interests.” Perry v. Brown, 671 F.3d
1052, 1070, 1071 (2012) (quoting Diamond v. Charles, 476 U.S. 54, 62 (1986)). “All a federal
court need determine is that the state has suffered a harm sufficient to confer standing and that the
party seeking to invoke the jurisdiction of the court is authorized by the state to represent its
interest in remedying that harm.” 671 F.3d, at 1072.
19

On the merits, the Ninth Circuit affirmed the District Court. The court held the Proposition
unconstitutional under the rationale of our decision in Romer v. Evans, 517 U.S. 620 (1996). 671
F.3d, at 1076, 1095. In the Ninth Circuit's view, Romer stands for the proposition that “the Equal
Protection Clause requires the state to have a legitimate reason for withdrawing a right or benefit
from one group but not others, whether or not it was required to confer that right or benefit in the
first place.” 671 F.3d, at 1083–1084. The Ninth Circuit concluded that “taking away the official
designation” of “marriage” from same-sex couples, while continuing to afford those couples all the
rights and obligations of marriage, did not further any legitimate interest of the State. Id., at 1095.
Proposition 8, in the court's view, violated the Equal Protection Clause because it served no
purpose “but to impose on gays and lesbians, through the public law, a majority's private
disapproval of them and their relationships.” Ibid.
We granted certiorari to review that determination, and directed that the parties also brief and
argue “Whether petitioners have standing under Article III, § 2, of the Constitution in this case.”
568 U.S. ––––, 133 S.Ct. 786 (2012).
II
Article III of the Constitution confines the judicial power of federal courts to deciding actual
“Cases” or “Controversies.” § 2. One essential aspect of this requirement is that any person
invoking the power of a federal court must demonstrate standing to do so. This requires the litigant
to prove that he has suffered a concrete and particularized injury that is fairly traceable to the
challenged conduct, and is likely to be redressed by a favorable judicial decision. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–561 (1992). In other words, for a federal court to have
authority under the Constitution to settle a dispute, the party before it must seek a remedy for a
personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it
may be, is insufficient by itself to meet Art. III's requirements.” Diamond, supra, at 62.
The doctrine of standing, we recently explained, “serves to prevent the judicial process from
being used to usurp the powers of the political branches.” Clapper v. Amnesty Int'l USA, 568 U.S. –
–––, ––––, 133 S.Ct. 1138, 1146 (2013). In light of this “overriding and time-honored concern
about keeping the Judiciary's power within its proper constitutional sphere, we must put aside the
natural urge to proceed directly to the merits of [an] important dispute and to ‘settle’ it for the sake
of convenience and efficiency.” Raines v. Byrd, 521 U.S. 811, 820 (1997) (footnote omitted).
Most standing cases consider whether a plaintiff has satisfied the requirement when filing suit,
but Article III demands that an “actual controversy” persist throughout all stages of litigation.
Already, LLC v. Nike, Inc., 568 U.S. ––––, ––––, 133 S.Ct. 721, 726 (2013) (internal quotation
marks omitted). That means that standing “must be met by persons seeking appellate review, just as
it must be met by persons appearing in courts of first instance.” Arizonans for Official English v.
Arizona, 520 U.S. 43, 64 (1997). We therefore must decide whether petitioners had standing to
appeal the District Court's order.
Respondents initiated this case in the District Court against the California officials responsible
for enforcing Proposition 8. The parties do not contest that respondents had Article III standing to
do so. Each couple expressed a desire to marry and obtain “official sanction” from the State, which
was unavailable to them given the declaration in Proposition 8 that “marriage” in California is
20

solely between a man and a woman. App. 59.
After the District Court declared Proposition 8 unconstitutional and enjoined the state officials
named as defendants from enforcing it, however, the inquiry under Article III changed.
Respondents no longer had any injury to redress—they had won—and the state officials chose not
to appeal.
The only individuals who sought to appeal that order were petitioners, who had intervened in
the District Court. But the District Court had not ordered them to do or refrain from doing
anything. To have standing, a litigant must seek relief for an injury that affects him in a “personal
and individual way.” Defenders of Wildlife, supra, at 560, n. 1. He must possess a “direct stake in
the outcome” of the case. Arizonans for Official English, supra, at 64 (internal quotation marks
omitted). Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their
only interest in having the District Court order reversed was to vindicate the constitutional validity
of a generally applicable California law.
We have repeatedly held that such a “generalized grievance,” no matter how sincere, is
insufficient to confer standing. A litigant “raising only a generally available grievance about
government—claiming only harm to his and every citizen's interest in proper application of the
Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it
does the public at large—does not state an Article III case or controversy.” Defenders of Wildlife,
supra, at 573–574; see Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam ) (“Our refusal to
serve as a forum for generalized grievances has a lengthy pedigree.”); Allen v. Wright, 468 U.S.
737, 754 (1984) (“an asserted right to have the Government act in accordance with law is not
sufficient, standing alone, to confer jurisdiction on a federal court”); Massachusetts v. Mellon, 262
U.S. 447, 488 (1923) (“The party who invokes the [judicial] power must be able to show ... that he
has sustained or is immediately in danger of sustaining some direct injury ... and not merely that he
suffers in some indefinite way in common with people generally.”).
Petitioners argue that the California Constitution and its election laws give them a “‘unique,’
‘special,’ and ‘distinct’ role in the initiative process—one ‘involving both authority and
responsibilities that differ from other supporters of the measure.’” Reply Brief 5 (quoting 52
Cal.4th, at 1126, 1142, 1160, 265 P.3d, at 1006, 1017–1018, 1030). True enough—but only when it
comes to the process of enacting the law. Upon submitting the proposed initiative to the attorney
general, petitioners became the official “proponents” of Proposition 8. Cal. Elec.Code Ann. § 342
(West 2003). As such, they were responsible for collecting the signatures required to qualify the
measure for the ballot. §§ 9607–9609. After those signatures were collected, the proponents alone
had the right to file the measure with election officials to put it on the ballot. § 9032. Petitioners
also possessed control over the arguments in favor of the initiative that would appear in California's
ballot pamphlets. §§ 9064, 9065, 9067, 9069.
But once Proposition 8 was approved by the voters, the measure became “a duly enacted
constitutional amendment or statute.” 52 Cal.4th, at 1147, 265 P.3d, at 1021. Petitioners have no
role—special or otherwise—in the enforcement of Proposition 8. See id., at 1159, 265 P.3d, at
1029 (petitioners do not “possess any official authority ... to directly enforce the initiative measure
in question”). They therefore have no “personal stake” in defending its enforcement that is
21

distinguishable from the general interest of every citizen of California. Defenders of Wildlife,
supra, at 560–561.
Article III standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it
simply as a ‘vehicle for the vindication of value interests.’” Diamond, 476 U.S., at 62. No matter
how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their]
advocacy,” * * * (KENNEDY, J., dissenting), that is not a “particularized” interest sufficient to
create a case or controversy under Article III. Defenders of Wildlife, 504 U.S., at 560, and n. 1,; see
Arizonans for Official English, 520 U.S., at 65 (“Nor has this Court ever identified initiative
proponents as Article–III–qualified defenders of the measures they advocated.”); Don't Bankrupt
Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077 (1983)
(summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision
holding the initiative unconstitutional).
III
A
Without a judicially cognizable interest of their own, petitioners attempt to invoke that of
someone else. They assert that even if they have no cognizable interest in appealing the District
Court's judgment, the State of California does, and they may assert that interest on the State's
behalf. It is, however, a “fundamental restriction on our authority” that “[i]n the ordinary course, a
litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the
legal rights or interests of third parties.” Powers v. Ohio, 499 U.S. 400, 410 (1991). There are
“certain, limited exceptions” to that rule. Ibid. But even when we have allowed litigants to assert
the interests of others, the litigants themselves still “must have suffered an injury in fact, thus
giving [them] a sufficiently concrete interest in the outcome of the issue in dispute.” Id., at 411,
(internal quotation marks omitted).
In Diamond v. Charles, for example, we refused to allow Diamond, a pediatrician engaged in
private practice in Illinois, to defend the constitutionality of the State's abortion law. In that case, a
group of physicians filed a constitutional challenge to the Illinois statute in federal court. The State
initially defended the law, and Diamond, a professed “conscientious object[or] to abortions,”
intervened to defend it alongside the State. 476 U.S., at 57–58.
After the Seventh Circuit affirmed a permanent injunction against enforcing several provisions
of the law, the State chose not to pursue an appeal to this Court. But when Diamond did, the state
attorney general filed a “‘letter of interest,’” explaining that the State's interest in the proceeding
was “‘essentially co-terminous with the position on the issues set forth by [Diamond].’” Id., at 61.
That was not enough, we held, to allow the appeal to proceed. As the Court explained, “[e]ven if
there were circumstances in which a private party would have standing to defend the
constitutionality of a challenged statute, this [was] not one of them,” because Diamond was not
able to assert an injury in fact of his own. Id., at 65 (footnote omitted). And without “any judicially
cognizable interest,” Diamond could not “maintain the litigation abandoned by the State.” Id., at
71.
For the reasons we have explained, petitioners have likewise not suffered an injury in fact, and
therefore would ordinarily have no standing to assert the State's interests.
22

B
Petitioners contend that this case is different, because the California Supreme Court has
determined that they are “authorized under California law to appear and assert the state's interest”
in the validity of Proposition 8. 52 Cal.4th, at 1127, 265 P.3d, at 1007. The court below agreed:
“All a federal court need determine is that the state has suffered a harm sufficient to confer
standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state
to represent its interest in remedying that harm.” 671 F.3d, at 1072. As petitioners put it, they “need
no more show a personal injury, separate from the State's indisputable interest in the validity of its
law, than would California's Attorney General or did the legislative leaders held to have standing in
Karcher v. May, 484 U.S. 72 (1987).” Reply Brief 6.
In Karcher, we held that two New Jersey state legislators—Speaker of the General Assembly
Alan Karcher and President of the Senate Carmen Orechio—could intervene in a suit against the
State to defend the constitutionality of a New Jersey law, after the New Jersey attorney general had
declined to do so. 484 U.S., at 75, 81–82. “Since the New Jersey Legislature had authority under
state law to represent the State's interests in both the District Court and the Court of Appeals,” we
held that the Speaker and the President, in their official capacities, could vindicate that interest in
federal court on the legislature's behalf. Id., at 82.
Far from supporting petitioners' standing, however, Karcher is compelling precedent against it.
The legislators in that case intervened in their official capacities as Speaker and President of the
legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of
its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v.
Taylor, 477 U.S. 131, 137 (1986). To vindicate that interest or any other, a State must be able to
designate agents to represent it in federal court. See Poindexter v. Greenhow, 114 U.S. 270, 288
(1885) (“The State is a political corporate body [that] can act only through agents”). That agent is
typically the State's attorney general. But state law may provide for other officials to speak for the
State in federal court, as New Jersey law did for the State's presiding legislative officers in
Karcher. See 484 U.S., at 81–82.
What is significant about Karcher is what happened after the Court of Appeals decision in that
case. Karcher and Orechio lost their positions as Speaker and President, but nevertheless sought to
appeal to this Court. We held that they could not do so. We explained that while they were able to
participate in the lawsuit in their official capacities as presiding officers of the incumbent
legislature, “since they no longer hold those offices, they lack authority to pursue this appeal.” Id.,
at 81.
The point of Karcher is not that a State could authorize private parties to represent its interests;
Karcher and Orechio were permitted to proceed only because they were state officers, acting in an
official capacity. As soon as they lost that capacity, they lost standing. Petitioners here hold no
office and have always participated in this litigation solely as private parties.
The cases relied upon by the dissent * * * provide petitioners no more support. The dissent's
primary authorities, in fact, do not discuss standing at all. See Young v. United States ex rel.
Vuitton et Fils S. A., 481 U.S. 787 (1987); United States v. Providence Journal Co., 485 U.S. 693
23

(1988). And none comes close to establishing that mere authorization to represent a third party's
interests is sufficient to confer Article III standing on private parties with no injury of their own.
The dissent highlights the discretion exercised by special prosecutors appointed by federal
courts to pursue contempt charges. * * * Such prosecutors do enjoy a degree of independence in
carrying out their appointed role, but no one would suppose that they are not subject to the ultimate
authority of the court that appointed them. See also Providence Journal, supra, at 698–707
(recognizing further control exercised by the Solicitor General over special prosecutors).
The dissent's remaining cases, which at least consider standing, are readily distinguishable. See
Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771–778
(2000) (justifying qui tam actions based on a partial assignment of the Government's damages
claim and a “well nigh conclusive” tradition of such actions in English and American courts dating
back to the 13th century); Whitmore v. Arkansas, 495 U.S. 149, 162–164 (1990) (justifying “next
friend” standing based on a similar history dating back to the 17th century, requiring the next friend
to prove a disability of the real party in interest and a “significant relationship” with that party);
Gollust v. Mendell, 501 U.S. 115, 124–125 (1991) (requiring plaintiff in shareholder-derivative suit
to maintain a financial stake in the outcome of the litigation, to avoid “serious constitutional doubt
whether that plaintiff could demonstrate the standing required by Article III's case-or-controversy
limitation”).
C
Both petitioners and respondents seek support from dicta in Arizonans for Official English v.
Arizona, 520 U.S. 43. The plaintiff in Arizonans for Official English filed a constitutional challenge
to an Arizona ballot initiative declaring English “‘the official language of the State of Arizona.’”
Id., at 48. After the District Court declared the initiative unconstitutional, Arizona's Governor
announced that she would not pursue an appeal. Instead, the principal sponsor of the ballot
initiative—the Arizonans for Official English Committee—sought to defend the measure in the
Ninth Circuit. Id., at 55–56, 58. Analogizing the sponsors to the Arizona Legislature, the Ninth
Circuit held that the Committee was “qualified to defend [the initiative] on appeal,” and affirmed
the District Court. Id., at 58, 61.
Before finding the case mooted by other events, this Court expressed “grave doubts” about the
Ninth Circuit's standing analysis. Id., at 66. We reiterated that “[s]tanding to defend on appeal in
the place of an original defendant ... demands that the litigant possess ‘a direct stake in the
outcome.’ ” Id., at 64 (quoting Diamond, 476 U.S., at 62). We recognized that a legislator
authorized by state law to represent the State's interest may satisfy standing requirements, as in
Karcher, supra, at 82, but noted that the Arizona committee and its members were “not elected
representatives, and we [we]re aware of no Arizona law appointing initiative sponsors as agents of
the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made
law of the State.” Arizonans for Official English, supra, at 65.
Petitioners argue that, by virtue of the California Supreme Court's decision, they are authorized
to act “‘as agents of the people’ of California.” Brief for Petitioners 15 (quoting Arizonans for
Official English, supra, at 65). But that Court never described petitioners as “agents of the people,”
or of anyone else. Nor did the Ninth Circuit. The Ninth Circuit asked—and the California Supreme
24

Court answered—only whether petitioners had “the authority to assert the State's interest in the
initiative's validity.” 628 F.3d, at 1193, 52 Cal.4th, at 1124, 265 P.3d, at 1005. All that the
California Supreme Court decision stands for is that, so far as California is concerned, petitioners
may argue in defense of Proposition 8. This “does not mean that the proponents become de facto
public officials”; the authority they enjoy is “simply the authority to participate as parties in a court
action and to assert legal arguments in defense of the state's interest in the validity of the initiative
measure.” Id., at 1159, 265 P.3d, at 1029. That interest is by definition a generalized one, and it is
precisely because proponents assert such an interest that they lack standing under our precedents.
And petitioners are plainly not agents of the State—“formal” or otherwise, * * *. As an initial
matter, petitioners' newfound claim of agency is inconsistent with their representations to the
District Court. When the proponents sought to intervene in this case, they did not purport to be
agents of California. They argued instead that “no other party in this case w[ould] adequately
represent their interests as official proponents.” Motion to Intervene in No. 09–2292 (ND Cal.), p.
6 (emphasis added). It was their “unique legal status” as official proponents—not an agency
relationship with the people of California—that petitioners claimed “endow[ed] them with a
significantly protectable interest” in ensuring that the District Court not “undo[ ] all that they ha[d]
done in obtaining ... enactment” of Proposition 8. Id., at 10, 11.
More to the point, the most basic features of an agency relationship are missing here. Agency
requires more than mere authorization to assert a particular interest. “An essential element of
agency is the principal's right to control the agent's actions.” 1 Restatement (Third) of Agency
§ 1.01, Comment f (2005) (hereinafter Restatement). Yet petitioners answer to no one; they decide
for themselves, with no review, what arguments to make and how to make them. Unlike
California's attorney general, they are not elected at regular intervals—or elected at all. See Cal.
Const., Art. V, § 11. No provision provides for their removal. As one amicus explains, “the
proponents apparently have an unelected appointment for an unspecified period of time as
defenders of the initiative, however and to whatever extent they choose to defend it.” Brief for
Walter Dellinger 23.
“If the relationship between two persons is one of agency ..., the agent owes a fiduciary
obligation to the principal.” 1 Restatement § 1.01, Comment e. But petitioners owe nothing of the
sort to the people of California. Unlike California's elected officials, they have taken no oath of
office. E.g., Cal. Const., Art. XX, § 3 (prescribing the oath for “all public officers and employees,
executive, legislative, and judicial”). As the California Supreme Court explained, petitioners are
bound simply by “the same ethical constraints that apply to all other parties in a legal proceeding.”
52 Cal.4th, at 1159, 265 P.3d, at 1029. They are free to pursue a purely ideological commitment to
the law's constitutionality without the need to take cognizance of resource constraints, changes in
public opinion, or potential ramifications for other state priorities.
Finally, the California Supreme Court stated that “[t]he question of who should bear
responsibility for any attorney fee award ... is entirely distinct from the question” before it. Id., at
1161, 265 P.3d, at 1031. (emphasis added). But it is hornbook law that “a principal has a duty to
indemnify the agent against expenses and other losses incurred by the agent in defending against
actions brought by third parties if the agent acted with actual authority in taking the action
challenged by the third party's suit.” 2 Restatement § 8.14, Comment d. If the issue of fees is
25

entirely distinct from the authority question, then authority cannot be based on agency.
Neither the California Supreme Court nor the Ninth Circuit ever described the proponents as
agents of the State, and they plainly do not qualify as such.
IV
The dissent eloquently recounts the California Supreme Court's reasons for deciding that state
law authorizes petitioners to defend Proposition 8. * * * We do not “disrespect[ ]” or “disparage[ ]”
those reasons. * * * Nor do we question California's sovereign right to maintain an initiative
process, or the right of initiative proponents to defend their initiatives in California courts, where
Article III does not apply. But as the dissent acknowledges, * * * standing in federal court is a
question of federal law, not state law. And no matter its reasons, the fact that a State thinks a
private party should have standing to seek relief for a generalized grievance cannot override our
settled law to the contrary.
The Article III requirement that a party invoking the jurisdiction of a federal court seek relief
for a personal, particularized injury serves vital interests going to the role of the Judiciary in our
system of separated powers. “Refusing to entertain generalized grievances ensures that ... courts
exercise power that is judicial in nature,” Lance, 549 U.S., at 441, and ensures that the Federal
Judiciary respects “the proper—and properly limited—role of the courts in a democratic society,”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotation marks omitted).
States cannot alter that role simply by issuing to private parties who otherwise lack standing a
ticket to the federal courthouse.
***
We have never before upheld the standing of a private party to defend the constitutionality of a
state statute when state officials have chosen not to. We decline to do so for the first time here.
Because petitioners have not satisfied their burden to demonstrate standing to appeal the
judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal.
The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss
the appeal for lack of jurisdiction.
It is so ordered.
Justice KENNEDY, with whom Justice THOMAS, Justice ALITO, and Justice SOTOMAYOR
join, dissenting.
The Court's opinion is correct to state, and the Supreme Court of California was careful to
acknowledge, that a proponent's standing to defend an initiative in federal court is a question of
federal law. Proper resolution of the justiciability question requires, in this case, a threshold
determination of state law. The state-law question is how California defines and elaborates the
status and authority of an initiative's proponents who seek to intervene in court to defend the
initiative after its adoption by the electorate. Those state-law issues have been addressed in a
meticulous and unanimous opinion by the Supreme Court of California.
26

Under California law, a proponent has the authority to appear in court and assert the State's
interest in defending an enacted initiative when the public officials charged with that duty refuse to
do so. The State deems such an appearance essential to the integrity of its initiative process. Yet the
Court today concludes that this state-defined status and this state-conferred right fall short of
meeting federal requirements because the proponents cannot point to a formal delegation of
authority that tracks the requirements of the Restatement of Agency. But the State Supreme Court's
definition of proponents' powers is binding on this Court. And that definition is fully sufficient to
establish the standing and adversity that are requisites for justiciability under Article III of the
United States Constitution.
In my view Article III does not require California, when deciding who may appear in court to
defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court's
view of how a State should make its laws or structure its government. The Court's reasoning does
not take into account the fundamental principles or the practical dynamics of the initiative system
in California, which uses this mechanism to control and to bypass public officials—the same
officials who would not defend the initiative, an injury the Court now leaves unremedied. The
Court's decision also has implications for the 26 other States that use an initiative or popular
referendum system and which, like California, may choose to have initiative proponents stand in
for the State when public officials decline to defend an initiative in litigation. See M. Waters,
Initiative and Referendum Almanac 12 (2003). In my submission, the Article III requirement for a
justiciable case or controversy does not prevent proponents from having their day in court.
These are the premises for this respectful dissent.
I
As the Court explains, the State of California sustained a concrete injury, sufficient to satisfy
the requirements of Article III, when a United States District Court nullified a portion of its State
Constitution. * * * * To determine whether justiciability continues in appellate proceedings after
the State Executive acquiesced in the District Court's adverse judgment, it is necessary to ascertain
what persons, if any, have “authority under state law to represent the State's interests” in federal
court. Karcher v. May, 484 U.S. 72, 82 (1987); see also Arizonans for Official English v. Arizona,
520 U.S. 43, 65 (1997).
As the Court notes, the California Elections Code does not on its face prescribe in express
terms the duties or rights of proponents once the initiative becomes law. * * * * If that were the end
of the matter, the Court's analysis would have somewhat more force. But it is not the end of the
matter. It is for California, not this Court, to determine whether and to what extent the Elections
Code provisions are instructive and relevant in determining the authority of proponents to assert the
State's interest in postenactment judicial proceedings. And it is likewise not for this Court to say
that a State must determine the substance and meaning of its laws by statute, or by judicial
decision, or by a combination of the two. See Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957)
(plurality opinion); Dreyer v. Illinois, 187 U.S. 71, 84 (1902). That, too, is for the State to decide.
This Court, in determining the substance of state law, is “bound by a state court's construction
of a state statute.” Wisconsin v. Mitchell, 508 U.S. 476, 483 (1993). And the Supreme Court of
California, in response to the certified question submitted to it in this case, has determined that
27

State Elections Code provisions directed to initiative proponents do inform and instruct state law
respecting the rights and status of proponents in postelection judicial proceedings. Here, in reliance
on these statutes and the California Constitution, the State Supreme Court has held that proponents
do have authority “under California law to appear and assert the state's interest in the initiative's
validity and appeal a judgment invalidating the measure when the public officials who ordinarily
defend the measure or appeal such a judgment decline to do so.” Perry v. Brown, 52 Cal.4th 1116,
1127, 265 P.3d 1002, 1007 (2011).
The reasons the Supreme Court of California gave for its holding have special relevance in the
context of determining whether proponents have the authority to seek a federal-court remedy for
the State's concrete, substantial, and continuing injury. As a class, official proponents are a small,
identifiable group. See Cal. Elec.Code Ann. § 9001(a) (West Cum.Supp. 2013). Because many of
their decisions must be unanimous, see §§ 9001(b)(1), 9002(b), they are necessarily few in number.
Their identities are public. § 9001(b)(2). Their commitment is substantial. See §§ 9607–9609 (West
Cum.Supp. 2013) (obtaining petition signatures); § 9001(c) (monetary fee); §§ 9065(d), 9067, 9069
(West 2003) (drafting arguments for official ballot pamphlet). They know and understand the
purpose and operation of the proposed law, an important requisite in defending initiatives on
complex matters such as taxation and insurance. Having gone to great lengths to convince voters to
enact an initiative, they have a stake in the outcome and the necessary commitment to provide
zealous advocacy.
Thus, in California, proponents play a “unique role ... in the initiative process.” 52 Cal.4th, at
1152, 265 P.3d, at 1024. They “have a unique relationship to the voter-approved measure that
makes them especially likely to be reliable and vigorous advocates for the measure and to be so
viewed by those whose votes secured the initiative's enactment into law.” Ibid.; see also id., at
1160, 265 P.3d, at 1030 (because of “their special relationship to the initiative measure,”
proponents are “the most obvious and logical private individuals to ably and vigorously defend the
validity of the challenged measure on behalf of the interests of the voters who adopted the initiative
into law”). Proponents' authority under state law is not a contrivance. It is not a fictional construct.
It is the product of the California Constitution and the California Elections Code. There is no basis
for this Court to set aside the California Supreme Court's determination of state law.
The Supreme Court of California explained that its holding was consistent with recent decisions
from other States. Id., at 1161–1165, 265 P.3d, at 1031–1033. In Sportsmen for I–143 v. Fifteenth
Jud. Ct., 2002 MT 18, 308 Mont. 189, 40 P.3d 400, the Montana Supreme Court unanimously held
that because initiative sponsors “may be in the best position to defend their interpretation” of the
initiative and had a “direct, substantial, legally protectable interest in” the lawsuit challenging that
interpretation, they were “entitled to intervene as a matter of right.” Id., at 194–195, 40 P.3d, at
403. The Alaska Supreme Court reached a similar unanimous result in Alaskans for a Common
Language Inc. v. Kritz, 3 P.3d 906 (2000). It noted that, except in extraordinary cases, “a sponsor's
direct interest in legislation enacted through the initiative process and the concomitant need to
avoid the appearance of [a conflict of interest] will ordinarily preclude courts from denying
intervention as of right to a sponsoring group.” Id., at 914.
For these and other reasons, the Supreme Court of California held that the California Elections
Code and Article II, § 8, of the California Constitution afford proponents “the authority ... to assert
28

the state's interest in the validity of the initiative” when State officials decline to do so. 52 Cal.4th,
at 1152, 265 P.3d, at 1024. The court repeated this unanimous holding more than a half-dozen
times and in no uncertain terms. See id., at 1126, 1127, 1139, 1149, 1151, 1152, 1165, 265 P.3d, at
1006, 1007, 1015, 1022, 1024, 1025, 1033; see also id., at 1169–1170, 265 P.3d, at 1036–1037
(Kennard, J., concurring). That should suffice to resolve the central issue on which the federal
question turns.
II
A
The Court concludes that proponents lack sufficient ties to the state government. It notes that
they “are not elected,” “answer to no one,” and lack “‘a fiduciary obligation’” to the State. * * * *
But what the Court deems deficiencies in the proponents' connection to the State government, the
State Supreme Court saw as essential qualifications to defend the initiative system. The very object
of the initiative system is to establish a lawmaking process that does not depend upon state
officials. In California, the popular initiative is necessary to implement “the theory that all power of
government ultimately resides in the people.” 52 Cal.4th, at 1140, 265 P.3d, at 1016 (internal
quotation marks omitted). The right to adopt initiatives has been described by the California courts
as “one of the most precious rights of [the State's] democratic process.” Ibid. (internal quotation
marks omitted). That historic role for the initiative system “grew out of dissatisfaction with the
then governing public officials and a widespread belief that the people had lost control of the
political process.” Ibid. The initiative's “primary purpose,” then, “was to afford the people the
ability to propose and to adopt constitutional amendments or statutory provisions that their elected
public officials had refused or declined to adopt.” Ibid.
The California Supreme Court has determined that this purpose is undermined if the very
officials the initiative process seeks to circumvent are the only parties who can defend an enacted
initiative when it is challenged in a legal proceeding. See id., at 1160, 265 P.3d, at 1030; cf.
Alaskans for a Common Language, supra, at 914 (noting that proponents must be allowed to
defend an enacted initiative in order to avoid the perception, correct or not, “that the interests of
[the proponents] were not being defended vigorously by the executive branch”). Giving the
Governor and attorney general this de facto veto will erode one of the cornerstones of the State's
governmental structure. See 52 Cal.4th, at 1126–1128, 265 P.3d, at 1006–1007. And in light of the
frequency with which initiatives' opponents resort to litigation, the impact of that veto could be
substantial. K. Miller, Direct Democracy and the Courts 106 (2009) (185 of the 455 initiatives
approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were
challenged in court). As a consequence, California finds it necessary to vest the responsibility and
right to defend a voter-approved initiative in the initiative's proponents when the State Executive
declines to do so.
Yet today the Court demands that the State follow the Restatement of Agency. * * * * There
are reasons, however, why California might conclude that a conventional agency relationship is
inconsistent with the history, design, and purpose of the initiative process. The State may not wish
to associate itself with proponents or their views outside of the “extremely narrow and limited”
context of this litigation, 52 Cal.4th, at 1159, 265 P.3d, at 1029, or to bear the cost of proponents'
legal fees. The State may also wish to avoid the odd conflict of having a formal agent of the State
(the initiative's proponent) arguing in favor of a law's validity while state officials (e.g., the
29

attorney general) contend in the same proceeding that it should be found invalid.
Furthermore, it is not clear who the principal in an agency relationship would be. It would
make little sense if it were the Governor or attorney general, for that would frustrate the initiative
system's purpose of circumventing elected officials who fail or refuse to effect the public will. Id.,
at 1139–1140, 265 P.3d, at 1016. If there is to be a principal, then, it must be the people of
California, as the ultimate sovereign in the State. See ibid., 265 P.3d, at 1015–1016 (quoting Cal.
Const., Art. II, § 1) (“‘All political power is inherent in the people’”). But the Restatement may
offer no workable example of an agent representing a principal composed of nearly 40 million
residents of a State. Cf. 1 Restatement (Second) of Agency, p. 2, Scope Note (1957) (noting that
the Restatement “does not state the special rules applicable to public officers”); 1 Restatement
(First) of Agency, p. 4, Scope Note (1933) (same).
And if the Court's concern is that the proponents are unaccountable, that fear is neither well
founded nor sufficient to overcome the contrary judgment of the State Supreme Court. It must be
remembered that both elected officials and initiative proponents receive their authority to speak for
the State of California directly from the people. The Court apparently believes that elected officials
are acceptable “agents” of the State, * * * but they are no more subject to ongoing supervision of
their principal—i.e., the people of the State—than are initiative proponents. At most, a Governor or
attorney general can be recalled or voted out of office in a subsequent election, but proponents, too,
can have their authority terminated or their initiative overridden by a subsequent ballot measure.
Finally, proponents and their attorneys, like all other litigants and counsel who appear before a
federal court, are subject to duties of candor, decorum, and respect for the tribunal and co-parties
alike, all of which guard against the possibility that initiative proponents will somehow fall short of
the appropriate standards for federal litigation.
B
Contrary to the Court's suggestion, this Court's precedents do not indicate that a formal agency
relationship is necessary. In Karcher v. May, 484 U.S. 72 (1987), the Speaker of the New Jersey
Assembly (Karcher) and President of the New Jersey Senate (Orechio) intervened in support of a
school moment-of-silence law that the State's Governor and attorney general declined to defend in
court. In considering the question of standing, the Court looked to New Jersey law to determine
whether Karcher and Orechio “had authority under state law to represent the State's interest in both
the District Court and Court of Appeals.” Id., at 82. The Court concluded that they did. Because the
“New Jersey Supreme Court ha[d] granted applications of the Speaker of the General Assembly
and the President of the Senate to intervene as parties-respondent on behalf of the legislature in
defense of a legislative enactment,” the Karcher Court held that standing had been proper in the
District Court and Court of Appeals. Ibid. By the time the case arrived in this Court, Karcher and
Orechio had lost their presiding legislative offices, without which they lacked the authority to
represent the State under New Jersey law. This, the Court held, deprived them of standing. Id., at
81. Here, by contrast, proponents' authority under California law is not contingent on officeholder
status, so their standing is unaffected by the fact that they “hold no office” in California's
Government. * * * *
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), is consistent with the premises
of this dissent, not with the rationale of the Court's opinion. * * * * There, the Court noted its
30

serious doubts as to the aspiring defenders' standing because there was “no Arizona law appointing
initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the
constitutionality of initiatives made law of the State.” 520 U.S., at 65. The Court did use the word
“agents”; but, read in context, it is evident that the Court's intention was not to demand a formal
agency relationship in compliance with the Restatement. Rather, the Court used the term as
shorthand for a party whom “state law authorizes” to “represent the State's interests” in court. Ibid.
Both the Court of Appeals and the Supreme Court of California were mindful of these
precedents and sought to comply with them. The state court, noting the importance of Arizonans
for Official English, expressed its understanding that “the high court's doubts as to the official
initiative proponents' standing in that case were based, at least in substantial part, on the fact that
the court was not aware of any ‘Arizona law appointing initiative sponsors as agents of the people
of Arizona to defend ... the constitutionality of initiatives made law of the State.’ ” 52 Cal.4th, at
1136–1137, 265 P.3d, at 1013–1014 (quoting 520 U.S., at 65). Based on this passage, it concluded
that “nothing in [Arizonans for Official English] indicates that if a state's law does authorize the
official proponents of an initiative to assert the state's interest in the validity of a challenged state
initiative when the public officials who ordinarily assert that interest have declined to do so, the
proponents would not have standing to assert the state's interest in the initiative's validity in a
federal lawsuit.” Id., at 1137, 265 P.3d, at 1014.
The Court of Appeals, too, was mindful of this requirement. Perry v. Brown, 671 F.3d 1052,
1072–1073 (C.A.9 2012). Although that panel divided on the proper resolution of the merits of this
case, it was unanimous in concluding that proponents satisfy the requirements of Article III.
Compare id., at 1070–1075 (majority opinion), with id., at 1096–1097 (N.R. Smith, J., concurring
in part and dissenting in part). Its central premise, ignored by the Court today, was that the “State's
highest court [had] held that California law provides precisely what the Arizonans Court found
lacking in Arizona law: it confers on the official proponents of an initiative the authority to assert
the State's interests in defending the constitutionality of that initiative, where state officials who
would ordinarily assume that responsibility choose not to do so.” Id., at 1072 (majority opinion).
The Court of Appeals and the State Supreme Court did not ignore Arizonans for Official English;
they were faithful to it.
C
The Court's approach in this case is also in tension with other cases in which the Court has
permitted individuals to assert claims on behalf of the government or others. For instance, Federal
Rule of Criminal Procedure 42(a)(2) allows a court to appoint a private attorney to investigate and
prosecute potential instances of criminal contempt. Under the Rule, this special prosecutor is not
the agent of the appointing judge; indeed, the prosecutor's “determination of which persons should
be targets of the investigation, what methods of investigation should be used, what information will
be sought as evidence,” whom to charge, and other “decisions ... critical to the conduct of a
prosecution, are all made outside the supervision of the court.” Young v. United States ex rel.
Vuitton et Fils S. A., 481 U.S. 787, 807 (1987). Also, just as proponents have been authorized to
represent the State of California, “‘[p]rivate attorneys appointed to prosecute a criminal contempt
action represent the United States,’” United States v. Providence Journal Co., 485 U.S. 693, 700
(1988). They are “appointed solely to pursue the public interest in vindication of the court's
authority,” Young, supra, at 804, an interest that—like California's interest in the validity of its
31

laws—is “unique to the sovereign,” Providence Journal Co., supra, at 700. And, although the
Court dismisses the proponents' standing claim because initiative proponents “are not elected” and
“decide for themselves, with no review, what arguments to make and how to make them” in
defense of the enacted initiative, ante, at 2666, those same charges could be leveled with equal if
not greater force at the special prosecutors just discussed. See Young, supra, at 807.
Similar questions might also arise regarding qui tam actions, see, e.g., Vermont Agency of
Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771–778 (2000); suits involving
“next friends” litigating on behalf of a real party in interest, see, e.g., Whitmore v. Arkansas, 495
U.S. 149, 161–166 (1990); or shareholder-derivative suits, see, e.g., Gollust v. Mendell, 501 U.S.
115, 125–126 (1991). There is no more of an agency relationship in any of these settings than in
the instant case, yet the Court has nonetheless permitted a party to assert the interests of another.
That qui tam actions and “next friend” litigation may have a longer historical pedigree than the
initiative process, * * * is no basis for finding Article III's standing requirement met in those cases
but lacking here. In short, the Court today unsettles its longtime understanding of the basis for
jurisdiction in representative-party litigation, leaving the law unclear and the District Court's
judgment, and its accompanying statewide injunction, effectively immune from appellate review.
III
There is much irony in the Court's approach to justiciability in this case. A prime purpose of
justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state
officials whose preference is to lose the case. The doctrine is meant to ensure that courts are
responsible and constrained in their power, but the Court's opinion today means that a single
district court can make a decision with far-reaching effects that cannot be reviewed. And rather
than honor the principle that justiciability exists to allow disputes of public policy to be resolved by
the political process rather than the courts, see, e.g., Allen v. Wright, 468 U.S. 737, 750–752
(1984), here the Court refuses to allow a State's authorized representatives to defend the outcome
of a democratic election.
The Court's opinion disrespects and disparages both the political process in California and the
well-stated opinion of the California Supreme Court in this case. The California Supreme Court,
not this Court, expresses concern for vigorous representation; the California Supreme Court, not
this Court, recognizes the necessity to avoid conflicts of interest; the California Supreme Court, not
this Court, comprehends the real interest at stake in this litigation and identifies the most proper
party to defend that interest. The California Supreme Court's opinion reflects a better understanding
of the dynamics and principles of Article III than does this Court's opinion.
Of course, the Court must be cautious before entering a realm of controversy where the legal
community and society at large are still formulating ideas and approaches to a most difficult
subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject. As the
California Supreme Court recognized, “the question before us involves a fundamental procedural
issue that may arise with respect to any initiative measure, without regard to its subject matter.” 52
Cal.4th, at 1124, 265 P.3d, at 1005 (emphasis in original). If a federal court must rule on a
constitutional point that either confirms or rejects the will of the people expressed in an initiative,
that is when it is most necessary, not least necessary, to insist on rules that ensure the most
committed and vigorous adversary arguments to inform the rulings of the courts.
32

***
In the end, what the Court fails to grasp or accept is the basic premise of the initiative process.
And it is this. The essence of democracy is that the right to make law rests in the people and flows
to the government, not the other way around. Freedom resides first in the people without need of a
grant from government. The California initiative process embodies these principles and has done so
for over a century. “Through the structure of its government, and the character of those who
exercise government authority, a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U.S.
452, 460 (1991). In California and the 26 other States that permit initiatives and popular
referendums, the people have exercised their own inherent sovereign right to govern themselves.
The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of
Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative's
proponents to defend the law if and when the State's usual legal advocates decline to do so. The
Court's opinion fails to abide by precedent and misapplies basic principles of justiciability. Those
errors necessitate this respectful dissent.

33

STEEL CO., aka CHICAGO STEEL & PICKLING CO.
v. CITIZENS FOR A BETTER ENVIRONMENT
523 U.S. 83 (1998)
Justice SCALIA delivered the opinion of the Court.
This is a private enforcement action under the citizen-suit provision of the Emergency Planning and
Community Right-To-Know Act of 1986 (EPCRA), 100 Stat. 1755, 42 U.S.C. § 11046(a)(1). The
case presents the merits question, answered in the affirmative by the United States Court of Appeals
for the Seventh Circuit, whether EPCRA authorizes suits for purely past violations. It also presents
the jurisdictional question whether respondent, plaintiff below, has standing to bring this action.
I
Respondent, an association of individuals interested in environmental protection, sued petitioner,
a small manufacturing company in Chicago, for past violations of EPCRA. EPCRA establishes a
framework of state, regional and local agencies designed to inform the public about the presence of
hazardous and toxic chemicals, and to provide for emergency response in the event of healththreatening release. Central to its operation are reporting requirements compelling users of specified
toxic and hazardous chemicals to file annual "emergency and hazardous chemical inventory forms"
and "toxic chemical release forms," which contain, inter alia, the name and location of the facility,
the name and quantity of the chemical on hand, and, in the case of toxic chemicals, the wastedisposal method employed and the annual quantity released into each environmental medium. 42
U.S.C. §§ 11022 and 11023. The hazardous-chemical inventory forms for any given calendar year
are due the following March 1st, and the toxic-chemical release forms the following July 1st.
§§ 11022(a)(2) and 11023(a).
Enforcement of EPCRA can take place on many fronts. The Environmental Protection Agency
(EPA) has the most powerful enforcement arsenal: it may seek criminal, civil, or administrative
penalties. § 11045. State and local governments can also seek civil penalties, as well as injunctive
relief. §§ 11046(a)(2) and (c). For purposes of this case, however, the crucial enforcement
mechanism is the citizen-suit provision, § 11046(a)(1), which likewise authorizes civil penalties and
injunctive relief, see § 11046(c). This provides that "any person may commence a civil action on his
own behalf against ... [a]n owner or operator of a facility for failure," among other things, to
"[c]omplete and submit an inventory form under section 11022(a) of this title ... [and] section
11023(a) of this title." § 11046(a)(1). As a prerequisite to bringing such a suit, the plaintiff must,
60 days prior to filing his complaint, give notice to the Administrator of the EPA, the State in which
the alleged violation occurs, and the alleged violator. § 11046(d). The citizen suit may not go
forward if the Administrator "has commenced and is diligently pursuing an administrative order or
civil action to enforce the requirement concerned or to impose a civil penalty." § 11046(e).
In 1995 respondent sent a notice to petitioner, the Administrator, and the relevant Illinois
authorities, alleging--accurately, as it turns out--that petitioner had failed since 1988, the first year
34

of EPCRA's filing deadlines, to complete and to submit the requisite hazardous-chemical inventory
and toxic-chemical release forms under §§ 11022 and 11023. Upon receiving the notice, petitioner
filed all of the overdue forms with the relevant agencies. The EPA chose not to bring an action
against petitioner, and when the 60-day waiting period expired, respondent filed suit in Federal
District Court. Petitioner promptly filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) and (6), contending that, because its filings were up to date when the complaint was filed,
the court had no jurisdiction to entertain a suit for a present violation; and that, because EPCRA does
not allow suit for a purely historical violation, respondent's allegation of untimeliness in filing was
not a claim upon which relief could be granted.
The District Court agreed with petitioner on both points. * * * * The Court of Appeals reversed,
concluding that citizens may seek penalties against EPCRA violators who file after the statutory
deadline and after receiving notice. * * * *
II
We granted certiorari in this case to resolve a conflict between the interpretation of EPCRA adopted
by the Seventh Circuit and the interpretation previously adopted by the Sixth Circuit in Atlantic
States Legal Foundation, Inc. v. United Musical Instruments, U.S.A., Inc., 61 F.3d 473 (1995)--a
case relied on by the District Court, and acknowledged by the Seventh Circuit to be "factually
indistinguishable," 90 F.3d, at 1241-1242. Petitioner, however, both in its petition for certiorari and
in its briefs on the merits, has raised the issue of respondent's standing to maintain the suit, and hence
this Court's jurisdiction to entertain it. Though there is some dispute on this point, see Part III, infra,
this would normally be considered a threshold question that must be resolved in respondent's favor
before proceeding to the merits. Justice STEVENS' opinion concurring in the judgment, however,
claims that the question whether § 11046(a) permits this cause of action is also "jurisdictional," and
so has equivalent claim to being resolved first. Whether that is so has significant implications for
this case and for many others, and so the point warrants extended discussion.
It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of
action does not implicate subject-matter jurisdiction, i.e., the courts' statutory or constitutional power
to adjudicate the case. * * * * As we stated in Bell v. Hood, 327 U.S. 678, 682 (1946), "[j]urisdiction
... is not defeated ... by the possibility that the averments might fail to state a cause of action on
which petitioners could actually recover." Rather, the District Court has jurisdiction if "the right of
petitioners to recover under their complaint will be sustained if the Constitution and laws of the
United States are given one construction and will be defeated if they are given another," id., at 685,
unless the claim "clearly appears to be immaterial and made solely for the purpose of obtaining
jurisdiction or where such a claim is wholly insubstantial and frivolous." Id., at 682-683 * * *.
Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is
proper only when the claim is "so insubstantial, implausible, foreclosed by prior decisions of this
Court, or otherwise completely devoid of merit as not to involve a federal controversy." Oneida
Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974) * * *. Here, respondent wins
under one construction of EPCRA and loses under another, and Justice STEVENS does not argue
that respondent's claim is frivolous or immaterial--in fact, acknowledges that the language of the
35

citizen-suit provision is ambiguous. * * * *
****
Justice STEVENS' concurrence devotes a large portion of its discussion to cases in which a
statutory standing question was decided before a question of constitutional standing. * * * * They
also are irrelevant here, because it is not a statutory standing question that Justice STEVENS would
have us decide first. He wishes to resolve, not whether EPCRA authorizes this plaintiff to sue (it
assuredly does), but whether the scope of the EPCRA right of action includes past violations. Such
a question, we have held, goes to the merits and not to statutory standing. * * * *
Though it is replete with extensive case discussions, case citations, rationalizations, and syllogoids
(see post, at 120, n.12, and n.2, infra), Justice STEVENS' opinion conspicuously lacks one central
feature: a single case in which this Court has done what he proposes, to wit, call the existence of a
cause of action "jurisdictional," and decide that question before resolving a dispute concerning the
existence of an Article III case or controversy. Of course, even if there were not solid precedent
contradicting Justice STEVENS' position, the consequences are alone enough to condemn it. It
would turn every statutory question in an EPCRA citizen suit into a question of jurisdiction. Under
Justice STEVENS' analysis, § 11046(c)'s grant of "jurisdiction in actions brought under
[§ 11046(a)]" withholds jurisdiction over claims involving purely past violations if past violations
are not in fact covered by § 11046(a). By parity of reasoning, if there is a dispute as to whether the
omission of a particular item constituted a failure to "complete" the form; or as to whether a
particular manner of delivery complied in time with the requirement to "submit" the form; and if the
court agreed with the defendant on the point; the action would not be "brought under [§ 11046(a)],"
and would be dismissed for lack of jurisdiction rather than decided on the merits. Moreover, those
statutory arguments, since they are "jurisdictional," would have to be considered by this Court even
though not raised earlier in the litigation--indeed, this Court would have to raise them sua sponte.
* * * * Congress of course did not create such a strange scheme. In referring to actions "brought
under" § 11046(a), § 11046(c) means suits contending that § 11046(a) contains a certain
requirement. If Justice STEVENS is correct that all cause-of-action questions may be regarded as
jurisdictional questions, and thus capable of being decided where there is no genuine case or
controversy, it is hard to see what is left of that limitation in Article III.
III
In addition to its attempt to convert the merits issue in this case into a jurisdictional one, Justice
STEVENS' concurrence proceeds * * * to argue the bolder point that jurisdiction need not be
addressed first anyway. Even if the statutory question is not "fram[ed] ... in terms of 'jurisdiction,'"
but is simply "characterize[d] ... as whether respondent's complaint states a 'cause of action,'" "it is
also clear that we have the power to decide the statutory question first." * * * This is essentially the
position embraced by several Courts of Appeals, which find it proper to proceed immediately to the
merits question, despite jurisdictional objections, at least where (1) the merits question is more
readily resolved, and (2) the prevailing party on the merits would be the same as the prevailing party
were jurisdiction denied. * * * * The Ninth Circuit has denominated this practice--which it
36

characterizes as "assuming" jurisdiction for the purpose of deciding the merits--the "doctrine of
hypothetical jurisdiction." See, e.g., United States v. Troescher, 99 F.3d 933, 934, n.1 (1996).
****
We decline to endorse such an approach because it carries the courts beyond the bounds of
authorized judicial action and thus offends fundamental principles of separation of powers. This
conclusion should come as no surprise, since it is reflected in a long and venerable line of our cases.
"Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare
the law, and when it ceases to exist, the only function remaining to the court is that of announcing
the fact and dismissing the cause." Ex parte McCardle, 7 Wall. 506, 514 (1868). "On every writ of
error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then
of the court from which the record comes. This question the court is bound to ask and answer for
itself, even when not otherwise suggested, and without respect to the relation of the parties to it."
Great Southern Fire Proof Hotel Co. v. Jones, supra, 177 U.S., at 453. The requirement that
jurisdiction be established as a threshold matter "spring[s] from the nature and limits of the judicial
power of the United States" and is "inflexible and without exception." Mansfield, C. & L.M.R. Co.
v. Swan, 111 U.S. 379, 382 (1884).
This Court's insistence that proper jurisdiction appear begins at least as early as 1804, when we set
aside a judgment for the defendant at the instance of the losing plaintiff who had himself failed to
allege the basis for federal jurisdiction. Capron v. Van Noorden, 2 Cranch 126 (1804). Just last
Term, we restated this principle in the clearest fashion, unanimously setting aside the Ninth Circuit's
merits decision in a case that had lost the elements of a justiciable controversy:
"[E]very federal appellate court has a special obligation to 'satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are
prepared to concede it. Mitchell v. Maurer, 293 U.S. 237, 244 (1934). See Juidice v. Vail, 430
U.S. 327, 331-332 (1977) (standing). 'And if the record discloses that the lower court was without
jurisdiction this court will notice the defect, although the parties make no contention concerning
it. [When the lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the
merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.'
United States v. Corrick, 298 U.S. 435, 440 (1936) (footnotes omitted)." Arizonans for Official
English v. Arizona, 520 U.S. 43, 73 (1997), quoting Bender v. Williamsport Area School Dist.,
475 U.S. 534, 541 (1986) (brackets in original).
Justice STEVENS' arguments contradicting all this jurisprudence--and asserting that a court may
decide the cause of action before resolving Article III jurisdiction--are readily refuted. First, his
concurrence seeks to convert Bell v. Hood, 327 U.S. 678 (1946), into a case in which the cause-ofaction question was decided before an Article III standing question. * * * * "Bell," Justice STEVENS
asserts, "held that we have jurisdiction to decide [whether the plaintiff has stated a cause of action]
even when it is unclear whether the plaintiff's injuries can be redressed." Post, at 118. The
italicized phrase (the italics are his own) invites the reader to believe that Article III redressability
was at issue. Not only is this not true, but the whole point of Bell was that it is not true. In Bell,
which was decided before Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388
37

(1971), the District Court had dismissed the case on jurisdictional grounds because it believed that
(what we would now call) a Bivens action would not lie. This Court held that the nonexistence of
a cause of action was no proper basis for a jurisdictional dismissal. Thus, the uncertainty about
"whether the plaintiff's injuries can be redressed" to which Justice STEVENS refers is simply the
uncertainty about whether a cause of action existed--which is precisely what Bell holds not to be an
Article III "redressability" question. It would have been a different matter if the relief requested by
the plaintiffs in Bell (money damages) would not have remedied their injury in fact; but it of course
would. Justice STEVENS used to understand the fundamental distinction between arguing no cause
of action and arguing no Article III redressability, having written for the Court that the former
argument is "not squarely directed at jurisdiction itself, but rather at the existence of a remedy for
the alleged violation of ... federal rights," which issue is "'not of the jurisdictional sort which the
Court raises on its own motion.'" Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,
440 U.S. 391, 398 (1979) (STEVENS, J.) (quoting Mt. Healthy Bd. of Ed. v. Doyle, 429 U.S. 274,
279 (1977)).
Justice STEVENS also relies on National Railroad Passenger Corp. v. National Assn. of Railroad
Passengers, 414 U.S. 453 (1974). * * * * But in that case, we did not determine whether a cause of
action existed before determining that the plaintiff had Article III standing; there was no question
of injury in fact or effectiveness of the requested remedy. Rather, National Railroad Passenger
Corp. determined whether a statutory cause of action existed before determining whether (if so) the
plaintiff came within the "zone of interests" for which the cause of action was available. 414 U.S.,
at 465, n.13. The latter question is an issue of statutory standing. It has nothing to do with whether
there is case or controversy under Article III. [FN2]
FN2. Justice STEVENS thinks it illogical that a merits question can be given priority over
a statutory standing question (National Railroad Passenger Corp.) and a statutory standing
question can be given priority over an Article III question (the cases discussed post, at 115117), but a merits question cannot be given priority over an Article III question. See post,
at 120, n.12. It seems to us no more illogical than many other "broken circles" that appear
in life and the law: that Executive agreements may displace state law, for example, see
United States v. Belmont, 301 U.S. 324, 330-331 (1937), and that unilateral presidential
action (renunciation) may displace Executive agreements, does not produce the "logical"
conclusion that unilateral presidential action may displace state law. The reasons for
allowing merits questions to be decided before statutory standing questions do not support
allowing merits questions to be decided before Article III questions. As National Railroad
Passenger Corp. points out, the merits inquiry and the statutory standing inquiry often
"overlap," 414 U.S., at 456. The question whether this plaintiff has a cause of action under
the statute, and the question whether any plaintiff has a cause of action under the statute are
closely connected--indeed, depending upon the asserted basis for lack of statutory standing,
they are sometimes identical, so that it would be exceedingly artificial to draw a distinction
between the two. The same cannot be said of the Article III requirement of remediable injury
in fact, which (except with regard to entirely frivolous claims) has nothing to do with the text
of the statute relied upon. Moreover, deciding whether any cause of action exists under a

38

particular statute, rather than whether the particular plaintiff can sue, does not take the court
into vast, uncharted realms of judicial opinion-giving; whereas the proposition that the court
can reach a merits question when there is no Article III jurisdiction opens the door to all sorts
of "generalized grievances," Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,
217 (1974), that the Constitution leaves for resolution through the political process.
Much more extensive defenses of the practice of deciding the cause of action before resolving
Article III jurisdiction have been offered by the courts of appeals. They rely principally upon two
cases of ours, Norton v. Mathews, 427 U.S. 524 (1976) and Secretary of Navy v. Avrech, 418 U.S.
676 (1974) (per curiam). Both are readily explained, we think, by their extraordinary procedural
postures. In Norton, the case came to us on direct appeal from a three-judge District Court, and the
jurisdictional question was whether the action was properly brought in that forum rather than in an
ordinary district court. We declined to decide that jurisdictional question, because the merits
question was decided in a companion case, Mathews v. Lucas, 427 U.S. 495 (1976), with the
consequence that the jurisdictional question could have no effect on the outcome: If the three-judge
court had been properly convened, we would have affirmed, and if not we would have vacated and
remanded for a fresh decree from which an appeal could be taken to the Court of Appeals, the
outcome of which was foreordained by Lucas. Norton v. Mathews, supra, at 531. Thus, Norton did
not use the pretermission of the jurisdictional question as a device for reaching a question of law that
otherwise would have gone unaddressed. Moreover, the Court seems to have regarded the merits
judgment that it entered on the basis of Lucas as equivalent to a jurisdictional dismissal for failure
to present a substantial federal question. The Court said: "This disposition [Lucas] renders the
merits in the present case a decided issue and thus one no longer substantial in the jurisdictional
sense." 427 U.S., at 530-531. We think it clear that this peculiar case, involving a merits issue
dispositively resolved in a companion case, was not meant to overrule, sub silentio, two centuries
of jurisprudence affirming the necessity of determining jurisdiction before proceeding to the merits.
****
Avrech also involved an instance in which an intervening Supreme Court decision definitively
answered the merits question. The jurisdictional question in the case had been raised by the Court
sua sponte after oral argument, and supplemental briefing had been ordered. * * * * Before the
Court came to a decision, however, the merits issue in the case had been conclusively resolved in
Parker v. Levy, 417 U.S. 733 (1974), a case argued the same day as Avrech. The Court was
unwilling to decide the jurisdictional question without oral argument, Avrech, supra, at 677, but
acknowledged (with some understatement) that "even the most diligent and zealous advocate could
find his ardor somewhat dampened in arguing a jurisdictional issue where the decision on the merits
is ... foreordained," id., at 678. Accordingly, the Court disposed of the case on the basis of the
intervening decision in Parker, in a minimalist two-page per curiam opinion. The first thing to be
observed about Avrech is that the supposed jurisdictional issue was technically not that. The issue
was whether a court-martial judgment could be attacked collaterally by a suit for back pay. Although
Avrech, like the earlier case of United States v. Augenblick, 393 U.S. 348 (1969), characterized this
question as jurisdictional, we later held squarely that it was not. See Schlesinger v. Councilman, 420
U.S. 738, 753 (1975). In any event, the peculiar circumstances of Avrech hardly permit it to be cited

39

for the precedent-shattering general proposition that an "easy" merits question may be decided on
the assumption of jurisdiction. To the contrary, the fact that the Court ordered briefing on the
jurisdictional question sua sponte demonstrates its adherence to traditional and constitutionally
dictated requirements. * * * *
Other cases sometimes cited by the lower courts to support "hypothetical jurisdiction" are similarly
distinguishable. United States v. Augenblick, as we have discussed, did not involve a jurisdictional
issue. In Philbrook v. Glodgett, 421 U.S. 707, 721 (1975), the jurisdictional question was whether,
in a suit under 28 U.S.C. § 1343(3) against the Commissioner of the Vermont Department of Social
Welfare for deprivation of federal rights under color of state law by denying payments under a
federally funded welfare program, the plaintiff could join a similar claim against the Secretary of
Health, Education, and Welfare. The merits issue of statutory construction involved in the claim
against the Secretary was precisely the same as that involved in the claim against the Commissioner,
and the Secretary (while challenging jurisdiction) assured the Court that he would comply with any
judgment entered against the Commissioner. The Court's disposition of the case was to dismiss the
Secretary's appeal under what was then Court Rule 40(g), for failure to brief the jurisdictional
question adequately. Normally, the Court acknowledged, its obligation to inquire into the
jurisdiction of the District Court might prevent this disposition. But here, the Court concluded, "the
substantive issue decided by the District Court would have been decided by that court even if it had
concluded that the Secretary was not properly a party," and "the only practical difference that resulted
... was that its injunction was directed against him as well as against [the Commissioner]," which the
Secretary "has [not] properly contended to be wrongful before this Court." Id., at 721-722. And
finally, in Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74 (1970), we reserved the
question whether we had jurisdiction to issue a writ of prohibition or mandamus because the
petitioner had not exhausted all available avenues before seeking relief under the All Writs Act, 28
U.S.C. § 1651, and because there was no record to review. Id., at 86-88. The exhaustion question
itself was at least arguably jurisdictional, and was clearly treated as such. Id., at 86. * * * *
While some of the above cases must be acknowledged to have diluted the absolute purity of the rule
that Article III jurisdiction is always an antecedent question, none of them even approaches approval
of a doctrine of "hypothetical jurisdiction" that enables a court to resolve contested questions of law
when its jurisdiction is in doubt. Hypothetical jurisdiction produces nothing more than a hypothetical
judgment--which comes to the same thing as an advisory opinion, disapproved by this Court from
the beginning. Muskrat v. United States, 219 U.S. 346, 362 (1911); Hayburn's Case, 2 Dall. 409
(1792). Much more than legal niceties are at stake here. The statutory and (especially) constitutional
elements of jurisdiction are an essential ingredient of separation and equilibration of powers,
restraining the courts from acting at certain times, and even restraining them from acting
permanently regarding certain subjects. See United States v. Richardson, 418 U.S. 166, 179 (1974);
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974). For a court to
pronounce upon the meaning or the constitutionality of a state or federal law when it has no
jurisdiction to do so is, by very definition, for a court to act ultra vires.

40

IV
Having reached the end of what seems like a long front walk, we finally arrive at the threshold
jurisdictional question: whether respondent, the plaintiff below, has standing to sue. Article III, § 2
of the Constitution extends the "judicial Power" of the United States only to "Cases" and
"Controversies." We have always taken this to mean cases and controversies of the sort traditionally
amenable to and resolved by the judicial process. Muskrat v. United States, supra, at 356-357. Such
a meaning is fairly implied by the text, since otherwise the purported restriction upon the judicial
power would scarcely be a restriction at all. Every criminal investigation conducted by the Executive
is a "case," and every policy issue resolved by congressional legislation involves a "controversy."
These are not, however, the sort of cases and controversies that Article III, § 2, refers to, since "the
Constitution's central mechanism of separation of powers depends largely upon common
understanding of what activities are appropriate to legislatures, to executives, and to courts." Lujan
v. Defenders of Wildlife, 504 U.S. 555, 559-560 (1992). Standing to sue is part of the common
understanding of what it takes to make a justiciable case. Whitmore v. Arkansas, 495 U.S. 149, 155
(1990). [FN4]
FN4. Our opinion is not motivated, as Justice STEVENS suggests, by the more specific
separation-of-powers concern that this citizen's suit "somehow interferes with the Executive's
power to 'take Care that the Laws be faithfully executed,' Art. II, § 3," post, at 129. The
courts must stay within their constitutionally prescribed sphere of action, whether or not
exceeding that sphere will harm one of the other two branches. This case calls for nothing
more than a straightforward application of our standing jurisprudence, which, though it may
sometimes have an impact on presidential powers, derives from Article III and not Article II.
The "irreducible constitutional minimum of standing" contains three requirements. Lujan v.
Defenders of Wildlife, supra, at 560. First and foremost, there must be alleged (and ultimately
proven) an "injury in fact"--a harm suffered by the plaintiff that is "concrete" and "actual or
imminent, not 'conjectural' or 'hypothetical.'" Whitmore v. Arkansas, supra, at 149, 155 (quoting Los
Angeles v. Lyons, 461 U.S. 95, 101-102 (1983)). Second, there must be causation--a fairly traceable
connection between the plaintiff's injury and the complained-of conduct of the defendant. Simon v.
Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). And third, there must be
redressability--a likelihood that the requested relief will redress the alleged injury. Id., at 45-46; see
also Warth v. Seldin, 422 U.S. 490, 505 (1975). This triad of injury in fact, causation, and
redressability [FN5] comprises the core of Article III's case-or-controversy requirement, and the party
invoking federal jurisdiction bears the burden of establishing its existence. See FW/PBS, Inc. v.
Dallas, 493 U.S. 215, 231 (1990).
FN5. Contrary to Justice STEVENS' belief that redressability "is a judicial creation of the
past 25 years," post, at 124, the concept has been ingrained in our jurisprudence from the
beginning. Although we have packaged the requirements of constitutional "case" or
"controversy" somewhat differently in the past 25 years--an era rich in three-part tests--the
point has always been the same: whether a plaintiff "personally would benefit in a tangible
41

way from the court's intervention." Warth, supra, 422 U.S., at 508. For example, in Marye
v. Parsons, 114 U.S. 325, 328-329 (1885), we held that a bill in equity should have been
dismissed because it was a clear case of "damnum absque injuria." Although the
complainant alleged a breach of contract by the State, the complainant "asks no relief as to
that, for there is no remedy by suit to compel the State to pay its debts .... The bill as framed,
therefore, calls for a declaration of an abstract character." Because courts do not "sit[ ] to
determine questions of law in thesi," we remanded with directions to dismiss the bill. Id.,
at 328-330.
Also contrary to Justice STEVENS' unprecedented suggestion, * * * redressability–like the
other prongs of the standing inquiry--does not depend on the defendant's status as a
governmental entity. There is no conceivable reason why it should. If it is true, as Justice
STEVENS claims, that all of the cases in which the Court has denied standing because of a
lack of redressability happened to involve government action or inaction, that would be
unsurprising. Suits that promise no concrete benefit to the plaintiff, and that are brought to
have us "determine questions of law in thesi," Marye, supra, at 330, are most often inspired
by the psychological smart of perceived official injustice, or by the government-policy
preferences of political activists. But the principle of redressability has broader application
than that.
We turn now to the particulars of respondent's complaint to see how it measures up to Article III's
requirements. This case is on appeal from a Rule 12(b) motion to dismiss on the pleadings, so we
must presume that the general allegations in the complaint encompass the specific facts necessary
to support those allegations. Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990). The
complaint contains claims "on behalf of both [respondent] itself and its members." * * * * It
describes respondent as an organization that seeks, uses, and acquires data reported under EPCRA.
It says that respondent "reports to its members and the public about storage and releases of toxic
chemicals into the environment, advocates changes in environmental regulations and statutes,
prepares reports for its members and the public, seeks the reduction of toxic chemicals and further
seeks to promote the effective enforcement of environmental laws." App. 5. The complaint asserts
that respondent's "right to know about [toxic chemical] releases and its interests in protecting and
improving the environment and the health of its members have been, are being, and will be adversely
affected by [petitioner's] actions in failing to provide timely and required information under
EPCRA." Ibid. The complaint also alleges that respondent's members, who live in or frequent the
area near petitioner's facility, use the EPCRA-reported information "to learn about toxic chemical
releases, the use of hazardous substances in their communities, to plan emergency preparedness in
the event of accidents, and to attempt to reduce the toxic chemicals in areas in which they live, work
and visit." Ibid. The members' "safety, health, recreational, economic, aesthetic and environmental
interests" in the information, it is claimed, "have been, are being, and will be adversely affected by
[petitioner's] actions in failing to file timely and required reports under EPCRA." Ibid.
As appears from the above, respondent asserts petitioner's failure to provide EPCRA information
in a timely fashion, and the lingering effects of that failure, as the injury in fact to itself and its

42

members. We have not had occasion to decide whether being deprived of information that is
supposed to be disclosed under EPCRA--or at least being deprived of it when one has a particular
plan for its use--is a concrete injury in fact that satisfies Article III. Cf. Lujan v. Defenders of
Wildlife, 504 U.S., at 578. And we need not reach that question in the present case because,
assuming injury in fact, the complaint fails the third test of standing, redressability.
The complaint asks for (1) a declaratory judgment that petitioner violated EPCRA; (2) authorization
to inspect periodically petitioner's facility and records (with costs borne by petitioner); (3) an order
requiring petitioner to provide respondent copies of all compliance reports submitted to the EPA;
(4) an order requiring petitioner to pay civil penalties of $25,000 per day for each violation of
§§ 11022 and 11023; (5) an award of all respondent's "costs, in connection with the investigation and
prosecution of this matter, including reasonable attorney and expert witness fees, as authorized by
Section 326(f) of [EPCRA]"; and (6) any such further relief as the court deems appropriate. App. 11.
None of the specific items of relief sought, and none that we can envision as "appropriate" under the
general request, would serve to reimburse respondent for losses caused by the late reporting, or to
eliminate any effects of that late reporting upon respondent. [FN7]
FN7. Justice STEVENS claims that redressability was found lacking in our prior cases
because the relief required action by a party not before the Court. * * * * Even if that were
so, it would not prove that redressability is lacking only when relief depends on the actions
of a third party. But in any event, Justice STEVENS has overlooked decisions that destroy
his premise. See Lyons, 461 U.S., at 105; O'Shea v. Littleton, 414 U.S. 488, 495-496 (1974).
He also seems to suggest that redressability always exists when the defendant has directly
injured the plaintiff. If that were so, the redressability requirement would be entirely
superfluous, since the causation requirement asks whether the injury is "fairly ... trace[able]
to the challenged action of the defendant, and not ... th[e] result [of] the independent action
of some third party not before the court." Simon v. Eastern Ky. Welfare Rights Organization,
426 U.S. 26, 41-42 (1976).
The first item, the request for a declaratory judgment that petitioner violated EPCRA, can be
disposed of summarily. There being no controversy over whether petitioner failed to file reports, or
over whether such a failure constitutes a violation, the declaratory judgment is not only worthless
to respondent, it is seemingly worthless to all the world. See Lewis v. Continental Bank Corp.,
494 U.S. 472, 479 (1990).
Item (4), the civil penalties authorized by the statute, see § 11045(c), might be viewed as a sort of
compensation or redress to respondent if they were payable to respondent. But they are not. These
penalties--the only damages authorized by EPCRA--are payable to the United States Treasury. In
requesting them, therefore, respondent seeks not remediation of its own injury--reimbursement for
the costs it incurred as a result of the late filing--but vindication of the rule of law--the
"undifferentiated public interest" in faithful execution of EPCRA. Lujan v. Defenders of Wildlife,
supra, at 577 * * *. This does not suffice. Justice STEVENS thinks it is enough that respondent will
be gratified by seeing petitioner punished for its infractions and that the punishment will deter the
43

risk of future harm.* * * * If that were so, our holdings in Linda R. S. v. Richard D., 410 U.S. 614
(1973), and Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26 (1976), are inexplicable.
Obviously, such a principle would make the redressability requirement vanish. By the mere bringing
of his suit, every plaintiff demonstrates his belief that a favorable judgment will make him happier.
But although a suitor may derive great comfort and joy from the fact that the United States Treasury
is not cheated, that a wrongdoer gets his just deserts, or that the nation's laws are faithfully enforced,
that psychic satisfaction is not an acceptable Article III remedy because it does not redress a
cognizable Article III injury. See, e.g., Allen v. Wright, 468 U.S. 737, 754-755 (1984); Valley Forge
Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 482483 (1982). Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal
court; that is the very essence of the redressability requirement.
Item (5), the "investigation and prosecution" costs "as authorized by Section 326(f)," would
assuredly benefit respondent as opposed to the citizenry at large. Obviously, however, a plaintiff
cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit.
The litigation must give the plaintiff some other benefit besides reimbursement of costs that are a
byproduct of the litigation itself. An "interest in attorney's fees is ... insufficient to create an Article
III case or controversy where none exists on the merits of the underlying claim." Lewis v.
Continental Bank Corp., 494 U.S., at 480 (citing Diamond v. Charles, 476 U.S. 54, 70-71 (1986)).
Respondent asserts that the "investigation costs" it seeks were incurred prior to the litigation, in
digging up the emissions and storage information that petitioner should have filed, and that
respondent needed for its own purposes. * * * * The recovery of such expenses unrelated to litigation
would assuredly support Article III standing, but the problem is that § 326(f), which is the
entitlement to monetary relief that the complaint invokes, covers only the "costs of litigation." [FN8]
§ 11046(f). Respondent finds itself, in other words, impaled upon the horns of a dilemma: for the
expenses to be reimbursable under the statute, they must be costs of litigation; but reimbursement
of the costs of litigation cannot alone support standing. [FN9]
FN8. Section 326(f) reads: "The court, in issuing any final order in any action brought
pursuant to this section, may award costs of litigation (including reasonable attorney and
expert witness fees) to the prevailing party or the substantially prevailing party whenever the
court determines such an award is appropriate." 42 U.S.C. § 11046(f).
FN9. Justice STEVENS contends, post, at 123-124, n.16, that this argument involves us in
a construction of the statute, and thus belies our insistence that jurisdictional issues be
resolved first. It involves us in a construction of the statute only to the extent of rejecting as
frivolous the contention that costs incurred for respondent's own purposes, not in preparation
for litigation (and hence sufficient to support Article III standing) are nonetheless "costs of
litigation" under the statute. As we have described earlier, our cases make clear that
frivolous claims are themselves a jurisdictional defect. * * * *
The remaining relief respondent seeks (item (2), giving respondent authority to inspect petitioner's
facility and records, and item (3), compelling petitioner to provide respondent copies of EPA
44

compliance reports) is injunctive in nature. It cannot conceivably remedy any past wrong but is
aimed at deterring petitioner from violating EPCRA in the future. * * * * The latter objective can
of course be "remedial" for Article III purposes, when threatened injury is one of the gravamens of
the complaint. If respondent had alleged a continuing violation or the imminence of a future
violation, the injunctive relief requested would remedy that alleged harm. But there is no such
allegation here--and on the facts of the case, there seems no basis for it. Nothing supports the
requested injunctive relief except respondent's generalized interest in deterrence, which is
insufficient for purposes of Article III. See Los Angeles v. Lyons, 461 U.S., at 111.
The United States, as amicus curiae, argues that the injunctive relief does constitute remediation
because "there is a presumption of [future] injury when the defendant has voluntarily ceased its
illegal activity in response to litigation," even if that occurs before a complaint is filed. * * * * This
makes a sword out of a shield. The "presumption" the Government refers to has been applied to
refute the assertion of mootness by a defendant who, when sued in a complaint that alleges present
or threatened injury, ceases the complained-of activity. See, e.g., United States v. W.T. Grant Co.,
345 U.S. 629, 632 (1953). It is an immense and unacceptable stretch to call the presumption into
service as a substitute for the allegation of present or threatened injury upon which initial standing
must be based. See Los Angeles v. Lyons, supra, at 109. To accept the Government's view would
be to overrule our clear precedent requiring that the allegations of future injury be particular and
concrete. O'Shea v. Littleton, 414 U.S. 488, 496-497 (1974). "Past exposure to illegal conduct does
not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by
any continuing, present adverse effects." Id., at 495-496; see also Renne v. Geary, 501 U.S. 312, 320
(1991) ("[T]he mootness exception for disputes capable of repetition yet evading review ... will not
revive a dispute which became moot before the action commenced"). Because respondent alleges
only past infractions of EPCRA, and not a continuing violation or the likelihood of a future violation,
injunctive relief will not redress its injury.
* * *
Having found that none of the relief sought by respondent would likely remedy its alleged injury
in fact, we must conclude that respondent lacks standing to maintain this suit, and that we and the
lower courts lack jurisdiction to entertain it. However desirable prompt resolution of the merits
EPCRA question may be, it is not as important as observing the constitutional limits set upon courts
in our system of separated powers. EPCRA will have to await another day.
The judgment is vacated and the case remanded with instructions to direct that the complaint be
dismissed.
It is so ordered.

45

Justice O'CONNOR, with whom Justice KENNEDY joins, concurring.
I join the Court's opinion. I agree that our precedent supports the Court's holding that respondent
lacks Article III standing because its injuries cannot be redressed by a judgment that would, in effect,
require only the payment of penalties to the United States Treasury. As the Court notes, * * *, had
respondent alleged a continuing or imminent violation of the Emergency Planning and Community
Right-To-Know Act of 1986 (EPCRA), 100 Stat. 1755, 42 U.S.C. § 11046, the requested injunctive
relief may well have redressed the asserted injury.
I also agree with the Court's statement that federal courts should be certain of their jurisdiction
before reaching the merits of a case. As the Court acknowledges, however, several of our decisions
"have diluted the absolute purity of the rule that Article III jurisdiction is always an antecedent
question." * * * * The opinion of the Court adequately describes why the assumption of jurisdiction
was defensible in those cases, * * *, and why it is not in this case, * * *. I write separately to note
that, in my view, the Court's opinion should not be read as cataloging an exhaustive list of
circumstances under which federal courts may exercise judgment in "reserv[ing] difficult questions
of ... jurisdiction when the case alternatively could be resolved on the merits in favor of the same
party," Norton v. Mathews, 427 U.S. 524, 532 (1976).
Justice BREYER, concurring in part and concurring in the judgment.
I agree with the Court that the respondent in this case lacks Article III standing. I further agree that
federal courts often and typically should decide standing questions at the outset of a case. That order
of decision (first jurisdiction then the merits) helps better to restrict the use of the federal courts to
those adversarial disputes that Article III defines as the federal judiciary's business. But my
qualifying words "often" and "typically" are important. The Constitution, in my view, does not
require us to replace those words with the word "always." The Constitution does not impose a rigid
judicial "order of operations," when doing so would cause serious practical problems.
This Court has previously made clear that courts may "reserve[ ] difficult questions of ...
jurisdiction when the case alternatively could be resolved on the merits in favor of the same party."
Norton v. Mathews, 427 U.S. 524, 532 (1976). That rule makes theoretical sense, for the difficulty
of the jurisdictional question makes reasonable the court's jurisdictional assumption. And that rule
makes enormous practical sense. Whom does it help to have appellate judges spend their time and
energy puzzling over the correct answer to an intractable jurisdictional matter, when (assuming an
easy answer on the substantive merits) the same party would win or lose regardless? More
importantly, to insist upon a rigid "order of operations" in today's world of federal court caseloads
that have grown enormously over a generation means unnecessary delay and consequent added cost.
See L. Mecham, Judicial Business of the United States Courts: 1996 Report of the Director 16, 18,
23; Report of the Proceedings of the Judicial Conference of the United States 106, 115, 143 (1971)
(indicating that between 1971 and 1996, annual appellate court caseloads increased from 132 to 311
cases filed per judgeship, and district court caseloads increased from 341 to 490 cases filed per
judgeship). It means a more cumbersome system. It thereby increases, to at least a small degree, the
46

risk of the "justice delayed" that means "justice denied."
For this reason, I would not make the ordinary sequence an absolute requirement. Nor, even though
the case before us is ordinary, not exceptional, would I simply reserve judgment about the matter.
Ante, at 110-111 (O'CONNOR, J., concurring). I therefore join only Parts I and IV of the Court's
opinion.
Justice STEVENS, with whom Justice SOUTER joins as to Parts I, III, and IV, and with whom
Justice GINSBURG joins as to Part III, concurring in the judgment.
This case presents two questions: (1) whether the Emergency Planning and Community Right-toKnow Act of 1986 (EPCRA), 42 U.S.C. § 11001 et seq., confers federal jurisdiction over citizen
suits for wholly past violations; and (2) if so, whether respondent has standing under Article III of
the Constitution. The Court has elected to decide the constitutional question first and, in doing so,
has created new constitutional law. Because it is always prudent to avoid passing unnecessarily on
an undecided constitutional question, see Ashwander v. TVA, 297 U.S. 288, 345-348 (1936)
(Brandeis, J., concurring), the Court should answer the statutory question first. Moreover, because
EPCRA, properly construed, does not confer jurisdiction over citizen suits for wholly past violations,
the Court should leave the constitutional question for another day.
I
The statutory issue in this case can be viewed in one of two ways: whether EPCRA confers
"jurisdiction" over citizen suits for wholly past violations, or whether the statute creates such a
"cause of action." Under either analysis, the Court has the power to answer the statutory question
first.
****
The Court disagrees, arguing that the standing question must be addressed first. Ironically,
however, before "first" addressing standing, the Court takes a long excursion that entirely loses sight
of the basic reason why standing is a matter of such importance to the proper functioning of the
judicial process. The "gist of the question of standing" is whether plaintiffs have "alleged such a
personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions." [FN14] The Court completely disregards this core purpose of
standing in its discussion of "hypothetical jurisdiction." Not only is that portion of the Court's
opinion pure dictum because it is entirely unnecessary to an explanation of the Court's decision; it
is also not informed by any adversary submission by either party. Neither the topic of "hypothetical
jurisdiction," nor any of the cases analyzed, distinguished, and criticized in Part III, was the subject
of any comment in any of the briefs submitted by the parties or their amici. It therefore did not
benefit from the "concrete adverseness" that the standing doctrine is meant to ensure. The
discussion, in short, "comes to the same thing as an advisory opinion, disapproved by this Court from
47

the beginning." Ante, at 101; see also Muskrat v. United States, 219 U.S. 346, 362 (1911) (stressing
that Article III limits federal courts to "deciding cases or controversies arising between opposing
parties"). * * * *
FN14. Baker v. Carr, 369 U.S., at 204.
The doctrine of "hypothetical jurisdiction" is irrelevant because this case presents us with a choice
between two threshold questions that are intricately interrelated--as there is only a standing problem
if the statute confers jurisdiction over suits for wholly past violations. The Court's opinion reflects
this fact, as its analysis of the standing issue is predicated on the hypothesis that § 326 may be read
to confer jurisdiction over citizen suits for wholly past violations. If, as I think it should, the Court
were to reject that hypothesis and construe § 326, * * * the standing discussion would be entirely
unnecessary. Thus, ironically, the Court is engaged in a version of the "hypothetical jurisdiction"
that it has taken pains to condemn at some length.
II
There is an important reason for addressing the statutory question first: to avoid unnecessarily
passing on an undecided constitutional question. New York Transit Authority v. Beazer, 440 U.S.
568, 582-583 (1979); Ashwander v. TVA, 297 U.S. 288, 345-348 (1936) (Brandeis, J., concurring).
* * * * Whether correct or incorrect, the Court's constitutional holding represents a significant
extension of prior case law.
The Court's conclusion that respondent does not have standing comes from a mechanistic
application of the "redressability" aspect of our standing doctrine. "Redressability," of course, does
not appear anywhere in the text of the Constitution. Instead, it is a judicial creation of the past 25
years, see Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 38, 41-46 (1976);
Linda R. S. v. Richard D., 410 U.S. 614, 617-618 (1973)--a judicial interpretation of the "Case"
requirement of Article III, Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-561 (1992). * * * *
In every previous case in which the Court has denied standing because of a lack of redressability,
the plaintiff was challenging some governmental action or inaction. Leeke v. Timmerman, 454 U.S.
83, 85-87 (1981) (per curiam) (suit against Director of the Department of Corrections and another
prison official); Simon, 426 U.S., at 28 (suit against the Secretary of the Treasury and the
Commissioner of Internal Revenue); Warth v. Seldin, 422 U.S. 490, 493 (1975) (suit against the
town of Penfield and members of Penfield's Zoning, Planning, and Town Boards); Linda R. S., 410
U.S., at 615-616, 619 (suit against prosecutor); see also Renne v. Geary, 501 U.S. 312, 314 (1991)
(suit against the City and County of San Francisco, its board of supervisors, and other local officials).
* * * * None of these cases involved an attempt by one private party to impose a statutory sanction
on another private party. [FN20]
FN20. This distinction is significant, as our standing doctrine is rooted in separation of
powers concerns. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-578 (1992); Allen
48

v. Wright, 468 U.S. 737, 750 (1984) * * *.
In addition, in every other case in which this Court has held that there is no standing because of a
lack of redressability, the injury to the plaintiff by the defendant was indirect (e.g., dependent on the
action of a third party). * * * * Thus, as far as I am aware, the Court has never held--until today--that
a plaintiff who is directly injured [FN22] by a defendant lacks standing to sue because of a lack of
redressability. [FN23]
FN22. Assuming that EPCRA authorizes suits for wholly past violations, then Congress has
created a legal right in having EPCRA reports filed on time. Although this is not a
traditional injury:
"[W]e must be sensitive to the articulation of new rights of action that do not have clear
analogs in our common-law tradition .... Congress has the power to define injuries and
articulate chains of causation that will give rise to a case or controversy where none existed
before ...." Lujan v. Defenders of Wildlife, 504 U.S., at 580 (KENNEDY, J., concurring in
part and concurring in judgment); see also Havens Realty Corp. v. Coleman, 455 U.S. 363,
373-374 (1982); Warth v. Seldin, 422 U.S. 490, 500 (1975).
FN23. In another context, the Court has specified that there is a critical distinction between
whether a defendant is directly or indirectly harmed. In Lujan v. Defenders of Wildlife, a case
involving a challenge to Executive action, the Court stated:
"When the suit is one challenging the legality of government action or inaction, the nature
and extent of facts that must be averred (at the summary judgment stage) or proved (at the
trial stage) in order to establish standing depends considerably upon whether the plaintiff is
himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little
question that the action or inaction has caused him injury, and that a judgment preventing or
requiring the action will redress it. When, however, as in this case, a plaintiff's asserted
injury arises from the government's allegedly unlawful regulation (or lack of regulation) of
someone else, much more is needed. In that circumstance, causation and redressability
ordinarily hinge on the response of the regulated (or regulable) third party to the government
action or inaction--and perhaps on the response of others as well." 504 U.S., at 561-562
(emphasis in original).
The Court acknowledges that respondent would have had standing if Congress had authorized some
payment to respondent. * * * * Yet the Court fails to specify why payment to respondent--even if
only a peppercorn--would redress respondent's injuries, while payment to the Treasury does not.
Respondent clearly believes that the punishment of the Steel Company, along with future deterrence
of the Steel Company and others, redresses its injury, and there is no basis in our previous standing
holdings to suggest otherwise.
When one private party is injured by another, the injury can be redressed in at least two ways: by
49

awarding compensatory damages or by imposing a sanction on the wrongdoer that will minimize the
risk that the harm-causing conduct will be repeated. Thus, in some cases a tort is redressed by an
award of punitive damages; even when such damages are payable to the sovereign, they provide a
form of redress for the individual as well.
History supports the proposition that punishment or deterrence can redress an injury. In past
centuries in England, * * * in the American colonies, and in the United States, * * * private persons
regularly prosecuted criminal cases. The interest in punishing the defendant and deterring violations
of law by the defendant and others was sufficient to support the "standing" of the private prosecutor
even if the only remedy was the sentencing of the defendant to jail or to the gallows. Given this
history, the Framers of Article III surely would have considered such proceedings to be "Cases" that
would "redress" an injury even though the party bringing suit did not receive any monetary
compensation. [FN26]
FN26. When such a party obtains a judgment that imposes sanctions on the wrongdoer, it is
proper to presume that the wrongdoer will be less likely to repeat the injurious conduct that
prompted the litigation. The lessening of the risk of future harm is a concrete benefit.
The Court's expanded interpretation of the redressability requirement has another consequence.
Under EPCRA, Congress gave enforcement power to state and local governments. 42 U.S.C.
§ 11046(a)(2). Under the Court's reasoning, however, state and local governments would not have
standing to sue for past violations, as a payment to the Treasury would no more "redress" the injury
of these governments than it would redress respondent's injury. This would be true even if Congress
explicitly granted state and local governments this power. Such a conclusion is unprecedented.
It could be argued that the Court's decision is rooted in another separation of powers concern: that
this citizen suit somehow interferes with the Executive's power to "take Care that the Laws be
faithfully executed," Art. II, § 3. It is hard to see, however, how EPCRA's citizen-suit provision
impinges on the power of the Executive. As an initial matter, this is not a case in which respondent
merely possesses the "undifferentiated public interest" in seeing EPCRA enforced. Ante, at 106; see
also Lujan v. Defenders of Wildlife, 504 U.S., at 577. Here, respondent--whose members live near
the Steel Company--has alleged a sufficiently particularized injury under our precedents. App. 5
(complaint alleges that respondent's members "reside, own property, engage in recreational activities,
breathe the air, and/or use areas near [the Steel Company's] facility").
Moreover, under the Court's own reasoning, respondent would have had standing if Congress had
authorized some payment to respondent. * * * * This conclusion is unexceptional given that
respondent has a more particularized interest than a plaintiff in a qui tam suit, an action that is deeply
rooted in our history. * * * *
Yet it is unclear why the separation of powers question should turn on whether the plaintiff receives
monetary compensation. In either instance, a private citizen is enforcing the law. If separation of
powers does not preclude standing when Congress creates a legal right that authorizes compensation
50

to the plaintiff, it is unclear why separation of powers should dictate a contrary result when Congress
has created a legal right but has directed that payment be made to the federal Treasury.
Indeed, in this case (assuming for present purposes that respondent correctly reads the statute) not
only has Congress authorized standing, but the Executive Branch has also endorsed its interpretation
of Article III. * * * * It is this Court's decision, not anything that Congress or the Executive has done,
that encroaches on the domain of other branches of the Federal Government. [FN27]
FN27. Ironically, although the Court insists that the standing question must be answered first,
it relies on the merits when it answers the standing question. Proof that the Steel Company
repeatedly violated the law by failing to file EPCRA reports for eight years should suffice
to establish the district court's power to impose sanctions, or at least to decide what sanction,
if any, is appropriate. Evidence that the Steel Company was ignorant of the law and has
taken steps to avoid future violations is highly relevant to the merits of the question whether
any remedy is necessary, but surely does not deprive the district court of the power to decide
the remedy issue. Cf. United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) ("Here the
defendants told the court that the interlocks no longer existed and disclaimed any intention
to revive them. Such a profession does not suffice to make a case moot although it is one of
the factors to be considered in determining the appropriateness of granting an injunction
against the now-discontinued acts").
It is thus quite clear that the Court's holding today represents a significant new development in our
constitutional jurisprudence. Moreover, it is equally clear that the Court has the power to answer
the statutory question first. It is, therefore, not necessary to reject the Court's resolution of the
standing issue in order to conclude that it would be prudent to answer the question of statutory
construction before announcing new constitutional doctrine.
III
****
IV
For these reasons, I concur in the Court's judgment, but do not join its opinion.
Justice GINSBURG, concurring in the judgment.
Congress has authorized citizen suits to enforce the Emergency Planning and Community Right-toKnow Act of 1986, 42 U.S.C. § 11001 et seq. Does that authorization, as Congress designed it,
permit citizen suits for wholly past violations? For the reasons stated by Justice STEVENS in Part
III of his opinion, I agree that the answer is "No." I would follow the path this Court marked in
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 60-61 (1987), and
resist expounding or offering advice on the constitutionality of what Congress might have done, but
did not do.

51

FRIENDS OF THE EARTH, INC. v.
LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.
528 U.S. 167 (2000)
Justice GINSBURG delivered the opinion of the Court.
This case presents an important question concerning the operation of the citizen-suit provisions of
the Clean Water Act. Congress authorized the federal district courts to entertain Clean Water Act
suits initiated by "a person or persons having an interest which is or may be adversely affected." 33
U.S.C. §§ 1365(a), (g). To impel future compliance with the Act, a district court may prescribe
injunctive relief in such a suit; additionally or alternatively, the court may impose civil penalties
payable to the United States Treasury. § 1365(a). In the Clean Water Act citizen suit now before us,
the District Court determined that injunctive relief was inappropriate because the defendant, after
the institution of the litigation, achieved substantial compliance with the terms of its discharge
permit. 956 F.Supp. 588, 611 (D.S.C.1997). The court did, however, assess a civil penalty of
$405,800. Id., at 610. The "total deterrent effect" of the penalty would be adequate to forestall future
violations, the court reasoned, taking into account that the defendant "will be required to reimburse
plaintiffs for a significant amount of legal fees and has, itself, incurred significant legal expenses."
Id., at 610-611.
The Court of Appeals vacated the District Court's order. 149 F.3d 303 (C.A.4 1998). The case
became moot, the appellate court declared, once the defendant fully complied with the terms of its
permit and the plaintiff failed to appeal the denial of equitable relief. "[C]ivil penalties payable to
the government," the Court of Appeals stated, "would not redress any injury Plaintiffs have
suffered." Id., at 307. Nor were attorneys' fees in order, the Court of Appeals noted, because absent
relief on the merits, plaintiffs could not qualify as prevailing parties. Id., at 307, n.5.
We reverse the judgment of the Court of Appeals. The appellate court erred in concluding that a
citizen suitor's claim for civil penalties must be dismissed as moot when the defendant, albeit after
commencement of the litigation, has come into compliance. In directing dismissal of the suit on
grounds of mootness, the Court of Appeals incorrectly conflated our case law on initial standing to
bring suit, see, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), with our case
law on post-commencement mootness, see, e.g., City of Mesquite v. Aladdin's Castle, Inc., 455 U.S.
283 (1982). A defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not
suffice to moot a case. The Court of Appeals also misperceived the remedial potential of civil
penalties. Such penalties may serve, as an alternative to an injunction, to deter future violations and
thereby redress the injuries that prompted a citizen suitor to commence litigation.
I
A
In 1972, Congress enacted the Clean Water Act (Act), also known as the Federal Water Pollution

52

Control Act, 86 Stat. 816, as amended, 33 U.S.C. § 1251 et seq. Section 402 of the Act, 33 U.S.C.
§ 1342, provides for the issuance, by the Administrator of the Environmental Protection Agency
(EPA) or by authorized States, of National Pollutant Discharge Elimination System (NPDES)
permits. NPDES permits impose limitations on the discharge of pollutants, and establish related
monitoring and reporting requirements, in order to improve the cleanliness and safety of the Nation's
waters. Noncompliance with a permit constitutes a violation of the Act. § 1342(h).
Under § 505(a) of the Act, a suit to enforce any limitation in an NPDES permit may be brought by
any "citizen," defined as "a person or persons having an interest which is or may be adversely
affected." 33 U.S.C. §§ 1365(a), (g). Sixty days before initiating a citizen suit, however, the wouldbe plaintiff must give notice of the alleged violation to the EPA, the State in which the alleged
violation occurred, and the alleged violator. § 1365(b)(1)(A). "[T]he purpose of notice to the alleged
violator is to give it an opportunity to bring itself into complete compliance with the Act and thus
... render unnecessary a citizen suit." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,
Inc., 484 U.S. 49, 60 (1987). Accordingly, we have held that citizens lack statutory standing under
§ 505(a) to sue for violations that have ceased by the time the complaint is filed. Id., at 56-63. The
Act also bars a citizen from suing if the EPA or the State has already commenced, and is "diligently
prosecuting," an enforcement action. 33 U.S.C. § 1365(b)(1)(B).
The Act authorizes district courts in citizen-suit proceedings to enter injunctions and to assess civil
penalties, which are payable to the United States Treasury. § 1365(a). In determining the amount
of any civil penalty, the district court must take into account "the seriousness of the violation or
violations, the economic benefit (if any) resulting from the violation, any history of such violations,
any good-faith efforts to comply with the applicable requirements, the economic impact of the
penalty on the violator, and such other matters as justice may require." § 1319(d). In addition, the
court "may award costs of litigation (including reasonable attorney and expert witness fees) to any
prevailing or substantially prevailing party, whenever the court determines such award is
appropriate." § 1365(d).
B
In 1986, defendant-respondent Laidlaw Environmental Services (TOC), Inc., bought a hazardous
waste incinerator facility in Roebuck, South Carolina, that included a wastewater treatment plant.
(The company has since changed its name to Safety-Kleen (Roebuck), Inc., but for simplicity we will
refer to it as "Laidlaw" throughout.) Shortly after Laidlaw acquired the facility, the South Carolina
Department of Health and Environmental Control (DHEC), acting under 33 U.S.C. § 1342(a)(1),
granted Laidlaw an NPDES permit authorizing the company to discharge treated water into the North
Tyger River. The permit, which became effective on January 1, 1987, placed limits on Laidlaw's
discharge of several pollutants into the river, including--of particular relevance to this case--mercury,
an extremely toxic pollutant. The permit also regulated the flow, temperature, toxicity, and pH of
the effluent from the facility, and imposed monitoring and reporting obligations.
Once it received its permit, Laidlaw began to discharge various pollutants into the waterway;
53

repeatedly, Laidlaw's discharges exceeded the limits set by the permit. In particular, despite
experimenting with several technological fixes, Laidlaw consistently failed to meet the permit's
stringent 1.3 ppb (parts per billion) daily average limit on mercury discharges. The District Court
later found that Laidlaw had violated the mercury limits on 489 occasions between 1987 and 1995.
956 F.Supp., at 613-621.
On April 10, 1992, plaintiff-petitioners Friends of the Earth (FOE) and Citizens Local
Environmental Action Network, Inc. (CLEAN) (referred to collectively in this opinion, together with
later joined plaintiff-petitioner Sierra Club, as "FOE") took the preliminary step necessary to the
institution of litigation. They sent a letter to Laidlaw notifying the company of their intention to file
a citizen suit against it under § 505(a) of the Act after the expiration of the requisite 60-day notice
period, i.e., on or after June 10, 1992. Laidlaw's lawyer then contacted DHEC to ask whether DHEC
would consider filing a lawsuit against Laidlaw. The District Court later found that Laidlaw's reason
for requesting that DHEC file a lawsuit against it was to bar FOE's proposed citizen suit through the
operation of 33 U.S.C. § 1365(b)(1)(B). 890 F.Supp. 470, 478 (D.S.C.1995). DHEC agreed to file
a lawsuit against Laidlaw; the company's lawyer then drafted the complaint for DHEC and paid the
filing fee. On June 9, 1992, the last day before FOE's 60-day notice period expired, DHEC and
Laidlaw reached a settlement requiring Laidlaw to pay $100,000 in civil penalties and to make
"'every effort'" to comply with its permit obligations. 890 F.Supp., at 479-481.
On June 12, 1992, FOE filed this citizen suit against Laidlaw under § 505(a) of the Act, alleging
noncompliance with the NPDES permit and seeking declaratory and injunctive relief and an award
of civil penalties. Laidlaw moved for summary judgment on the ground that FOE had failed to
present evidence demonstrating injury in fact, and therefore lacked Article III standing to bring the
lawsuit. Record, Doc. No. 43. In opposition to this motion, FOE submitted affidavits and deposition
testimony from members of the plaintiff organizations. Record, Doc. No. 71 (Exhs. 41-51). The
record before the District Court also included affidavits from the organizations' members submitted
by FOE in support of an earlier motion for preliminary injunctive relief. Record, Doc. No. 21 (Exhs.
5-10). After examining this evidence, the District Court denied Laidlaw's summary judgment motion,
finding--albeit "by the very slimmest of margins"--that FOE had standing to bring the suit. App. in
No. 97-1246(C.A.4), pp. 207-208 (Tr. of Hearing 39-40 (June 30, 1993)).
Laidlaw also moved to dismiss the action on the ground that the citizen suit was barred under 33
U.S.C. § 1365(b)(1)(B) by DHEC's prior action against the company. The United States, appearing
as amicus curiae, joined FOE in opposing the motion. After an extensive analysis of the LaidlawDHEC settlement and the circumstances under which it was reached, the District Court held that
DHEC's action against Laidlaw had not been "diligently prosecuted"; consequently, the court allowed
FOE's citizen suit to proceed. 890 F.Supp., at 499. [FN1] The record indicates that after FOE
initiated the suit, but before the District Court rendered judgment, Laidlaw violated the mercury
discharge limitation in its permit 13 times. 956 F.Supp., at 621. The District Court also found that
Laidlaw had committed 13 monitoring and 10 reporting violations during this period. Id., at 601.
The last recorded mercury discharge violation occurred in January 1995, long after the complaint
was filed but about two years before judgment was rendered. Id., at 621.

54

FN1. The District Court noted that "Laidlaw drafted the state-court complaint and settlement
agreement, filed the lawsuit against itself, and paid the filing fee." 890 F.Supp., at 489.
Further, "the settlement agreement between DHEC and Laidlaw was entered into with
unusual haste, without giving the Plaintiffs the opportunity to intervene." Ibid. The court
found "most persuasive" the fact that "in imposing the civil penalty of $100,000 against
Laidlaw, DHEC failed to recover, or even to calculate, the economic benefit that Laidlaw
received by not complying with its permit." Id., at 491.
On January 22, 1997, the District Court issued its judgment. 956 F.Supp. 588 (D.S.C.1997). It
found that Laidlaw had gained a total economic benefit of $1,092,581 as a result of its extended
period of noncompliance with the mercury discharge limit in its permit. Id., at 603. The court
concluded, however, that a civil penalty of $405,800 was adequate in light of the guiding factors
listed in 33 U.S.C. § 1319(d). 956 F.Supp., at 610. In particular, the District Court stated that the
lesser penalty was appropriate taking into account the judgment's "total deterrent effect." In reaching
this determination, the court "considered that Laidlaw will be required to reimburse plaintiffs for a
significant amount of legal fees." Id., at 610-611. The court declined to grant FOE's request for
injunctive relief, stating that an injunction was inappropriate because "Laidlaw has been in
substantial compliance with all parameters in its NPDES permit since at least August 1992." Id., at
611.
FOE appealed the District Court's civil penalty judgment, arguing that the penalty was inadequate,
but did not appeal the denial of declaratory or injunctive relief. Laidlaw cross-appealed, arguing,
among other things, that FOE lacked standing to bring the suit and that DHEC's action qualified as
a diligent prosecution precluding FOE's litigation. The United States continued to participate as
amicus curiae in support of FOE.
On July 16, 1998, the Court of Appeals for the Fourth Circuit issued its judgment. 149 F.3d 303.
The Court of Appeals assumed without deciding that FOE initially had standing to bring the action,
id., at 306, n.3, but went on to hold that the case had become moot. The appellate court stated, first,
that the elements of Article III standing--injury, causation, and redressability–must persist at every
stage of review, or else the action becomes moot. Id., at 306. Citing our decision in Steel Co., the
Court of Appeals reasoned that the case had become moot because "the only remedy currently
available to [FOE]--civil penalties payable to the government--would not redress any injury [FOE
has] suffered." Id., at 306-307. The court therefore vacated the District Court's order and remanded
with instructions to dismiss the action. In a footnote, the Court of Appeals added that FOE's "failure
to obtain relief on the merits of [its] claims precludes any recovery of attorneys' fees or other
litigation costs because such an award is available only to a 'prevailing or substantially prevailing
party.'" Id., at 307, n.5 (quoting 33 U.S.C. § 1365(d)).
According to Laidlaw, after the Court of Appeals issued its decision but before this Court granted
certiorari, the entire incinerator facility in Roebuck was permanently closed, dismantled, and put up
for sale, and all discharges from the facility permanently ceased. Respondent's Suggestion of
Mootness 3.
55

We granted certiorari, 525 U.S. 1176 (1999), to resolve the inconsistency between the Fourth
Circuit's decision in this case and the decisions of several other Courts of Appeals, which have held
that a defendant's compliance with its permit after the commencement of litigation does not moot
claims for civil penalties under the Act. * * *
II
A
The Constitution's case-or-controversy limitation on federal judicial authority, Art. III, § 2,
underpins both our standing and our mootness jurisprudence, but the two inquiries differ in respects
critical to the proper resolution of this case, so we address them separately. Because the Court of
Appeals was persuaded that the case had become moot and so held, it simply assumed without
deciding that FOE had initial standing. See Arizonans for Official English v. Arizona, 520 U.S. 43,
66-67 (1997) (court may assume without deciding that standing exists in order to analyze mootness).
But because we hold that the Court of Appeals erred in declaring the case moot, we have an
obligation to assure ourselves that FOE had Article III standing at the outset of the litigation. We
therefore address the question of standing before turning to mootness.
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992), we held that, to satisfy Article III's
standing requirements, a plaintiff must show (1) it has suffered an "injury in fact" that is (a) concrete
and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision. An association has standing
to bring suit on behalf of its members when its members would otherwise have standing to sue in
their own right, the interests at stake are germane to the organization's purpose, and neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit.
Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977).
Laidlaw contends first that FOE lacked standing from the outset even to seek injunctive relief,
because the plaintiff organizations failed to show that any of their members had sustained or faced
the threat of any "injury in fact" from Laidlaw's activities. In support of this contention Laidlaw
points to the District Court's finding, made in the course of setting the penalty amount, that there had
been "no demonstrated proof of harm to the environment" from Laidlaw's mercury discharge
violations. 956 F.Supp., at 602; see also ibid. ("[T]he NPDES permit violations at issue in this
citizen suit did not result in any health risk or environmental harm.").
The relevant showing for purposes of Article III standing, however, is not injury to the environment
but injury to the plaintiff. To insist upon the former rather than the latter as part of the standing
inquiry (as the dissent in essence does * * *) is to raise the standing hurdle higher than the necessary
showing for success on the merits in an action alleging noncompliance with an NPDES permit.
Focusing properly on injury to the plaintiff, the District Court found that FOE had demonstrated
sufficient injury to establish standing. * * * For example, FOE member Kenneth Lee Curtis averred

56

in affidavits that he lived a half-mile from Laidlaw's facility; that he occasionally drove over the
North Tyger River, and that it looked and smelled polluted; and that he would like to fish, camp,
swim, and picnic in and near the river between 3 and 15 miles downstream from the facility, as he
did when he was a teenager, but would not do so because he was concerned that the water was
polluted by Laidlaw's discharges. * * * Curtis reaffirmed these statements in extensive deposition
testimony. For example, he testified that he would like to fish in the river at a specific spot he used
as a boy, but that he would not do so now because of his concerns about Laidlaw's discharges. * * *
Other members presented evidence to similar effect. CLEAN member Angela Patterson attested
that she lived two miles from the facility; that before Laidlaw operated the facility, she picnicked,
walked, birdwatched, and waded in and along the North Tyger River because of the natural beauty
of the area; that she no longer engaged in these activities in or near the river because she was
concerned about harmful effects from discharged pollutants; and that she and her husband would like
to purchase a home near the river but did not intend to do so, in part because of Laidlaw's discharges.
* * * CLEAN member Judy Pruitt averred that she lived one-quarter mile from Laidlaw's facility and
would like to fish, hike, and picnic along the North Tyger River, but has refrained from those
activities because of the discharges.* * * FOE member Linda Moore attested that she lived 20 miles
from Roebuck, and would use the North Tyger River south of Roebuck and the land surrounding it
for recreational purposes were she not concerned that the water contained harmful pollutants. * * *
In her deposition, Moore testified at length that she would hike, picnic, camp, swim, boat, and drive
near or in the river were it not for her concerns about illegal discharges. * * * CLEAN member Gail
Lee attested that her home, which is near Laidlaw's facility, had a lower value than similar homes
located further from the facility, and that she believed the pollutant discharges accounted for some
of the discrepancy. * * * Sierra Club member Norman Sharp averred that he had canoed
approximately 40 miles downstream of the Laidlaw facility and would like to canoe in the North
Tyger River closer to Laidlaw's discharge point, but did not do so because he was concerned that the
water contained harmful pollutants. * * *
These sworn statements, as the District Court determined, adequately documented injury in fact.
We have held that environmental plaintiffs adequately allege injury in fact when they aver that they
use the affected area and are persons "for whom the aesthetic and recreational values of the area will
be lessened" by the challenged activity. Sierra Club v. Morton, 405 U.S. 727, 735 (1972). See also
Defenders of Wildlife, 504 U.S., at 562-563 ("Of course, the desire to use or observe an animal
species, even for purely esthetic purposes, is undeniably a cognizable interest for purposes of
standing.").
Our decision in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), is not to the contrary.
In that case an environmental organization assailed the Bureau of Land Management's "land
withdrawal review program," a program covering millions of acres, alleging that the program
illegally opened up public lands to mining activities. The defendants moved for summary judgment,
challenging the plaintiff organization's standing to initiate the action under the Administrative
Procedure Act, 5 U.S.C. § 702. We held that the plaintiff could not survive the summary judgment
motion merely by offering "averments which state only that one of [the organization's] members uses

57

unspecified portions of an immense tract of territory, on some portions of which mining activity has
occurred or probably will occur by virtue of the governmental action." 497 U.S., at 889.
In contrast, the affidavits and testimony presented by FOE in this case assert that Laidlaw's
discharges, and the affiant members' reasonable concerns about the effects of those discharges,
directly affected those affiants' recreational, aesthetic, and economic interests. These submissions
present dispositively more than the mere "general averments" and "conclusory allegations" found
inadequate in National Wildlife Federation. Id., at 888. Nor can the affiants' conditional statements
--that they would use the nearby North Tyger River for recreation if Laidlaw were not discharging
pollutants into it--be equated with the speculative "'some day' intentions" to visit endangered species
halfway around the world that we held insufficient to show injury in fact in Defenders of Wildlife.
504 U.S., at 564.
Los Angeles v. Lyons, 461 U.S. 95 (1983), relied on by the dissent, * * *, does not weigh against
standing in this case. In Lyons, we held that a plaintiff lacked standing to seek an injunction against
the enforcement of a police chokehold policy because he could not credibly allege that he faced a
realistic threat from the policy. 461 U.S., at 107, n.7. In the footnote from Lyons cited by the
dissent, we noted that "[t]he reasonableness of Lyons' fear is dependent upon the likelihood of a
recurrence of the allegedly unlawful conduct," and that his "subjective apprehensions" that such a
recurrence would even take place were not enough to support standing. Id., at 108, n.8. Here, in
contrast, it is undisputed that Laidlaw's unlawful conduct--discharging pollutants in excess of permit
limits--was occurring at the time the complaint was filed. Under Lyons, then, the only "subjective"
issue here is "[t]he reasonableness of [the] fear" that led the affiants to respond to that concededly
ongoing conduct by refraining from use of the North Tyger River and surrounding areas. Unlike the
dissent, * * *, we see nothing "improbable" about the proposition that a company's continuous and
pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their
recreational use of that waterway and would subject them to other economic and aesthetic harms.
The proposition is entirely reasonable, the District Court found it was true in this case, and that is
enough for injury in fact.
Laidlaw argues next that even if FOE had standing to seek injunctive relief, it lacked standing to
seek civil penalties. Here the asserted defect is not injury but redressability. Civil penalties offer
no redress to private plaintiffs, Laidlaw argues, because they are paid to the government, and
therefore a citizen plaintiff can never have standing to seek them.
Laidlaw is right to insist that a plaintiff must demonstrate standing separately for each form of relief
sought. See, e.g., Lyons, 461 U.S., at 109 (notwithstanding the fact that plaintiff had standing to
pursue damages, he lacked standing to pursue injunctive relief); see also Lewis v. Casey, 518 U.S.
343, 358, n.6 (1996) ("[S]tanding is not dispensed in gross."). But it is wrong to maintain that
citizen plaintiffs facing ongoing violations never have standing to seek civil penalties.
We have recognized on numerous occasions that "all civil penalties have some deterrent effect."
Hudson v. United States, 522 U.S. 93, 102 (1997); see also, e.g., Department of Revenue of Mont.
58

v. Kurth Ranch, 511 U.S. 767, 778 (1994). More specifically, Congress has found that civil penalties
in Clean Water Act cases do more than promote immediate compliance by limiting the defendant's
economic incentive to delay its attainment of permit limits; they also deter future violations. This
congressional determination warrants judicial attention and respect. "The legislative history of the
Act reveals that Congress wanted the district court to consider the need for retribution and
deterrence, in addition to restitution, when it imposed civil penalties. ... [The district court may] seek
to deter future violations by basing the penalty on its economic impact." Tull v. United States, 481
U.S. 412, 422-423 (1987).
It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due
to illegal conduct ongoing at the time of suit, a sanction that effectively abates that conduct and
prevents its recurrence provides a form of redress. Civil penalties can fit that description. To the
extent that they encourage defendants to discontinue current violations and deter them from
committing future ones, they afford redress to citizen plaintiffs who are injured or threatened with
injury as a consequence of ongoing unlawful conduct.
The dissent argues that it is the availability rather than the imposition of civil penalties that deters
any particular polluter from continuing to pollute. * * * This argument misses the mark in two ways.
First, it overlooks the interdependence of the availability and the imposition; a threat has no deterrent
value unless it is credible that it will be carried out. Second, it is reasonable for Congress to
conclude that an actual award of civil penalties does in fact bring with it a significant quantum of
deterrence over and above what is achieved by the mere prospect of such penalties. A would-be
polluter may or may not be dissuaded by the existence of a remedy on the books, but a defendant
once hit in its pocketbook will surely think twice before polluting again. [FN2]
FN2. The dissent suggests that there was little deterrent work for civil penalties to do in this
case because the lawsuit brought against Laidlaw by DHEC had already pushed the level of
deterrence to "near the top of the graph." * * * This suggestion ignores the District Court's
specific finding that the penalty agreed to by Laidlaw and DHEC was far too low to remove
Laidlaw's economic benefit from noncompliance, and thus was inadequate to deter future
violations. 890 F.Supp. 470, 491-494, 497-498 (D.S.C.1995). And it begins to look
especially farfetched when one recalls that Laidlaw itself prompted the DHEC lawsuit, paid
the filing fee, and drafted the complaint. * * *
We recognize that there may be a point at which the deterrent effect of a claim for civil penalties
becomes so insubstantial or so remote that it cannot support citizen standing. The fact that this
vanishing point is not easy to ascertain does not detract from the deterrent power of such penalties
in the ordinary case. * * * *
****
In this case we need not explore the outer limits of the principle that civil penalties provide
sufficient deterrence to support redressability. Here, the civil penalties sought by FOE carried with
59

them a deterrent effect that made it likely, as opposed to merely speculative, that the penalties would
redress FOE's injuries by abating current violations and preventing future ones--as the District Court
reasonably found when it assessed a penalty of $405,800. 956 F.Supp., at 610-611.
Laidlaw contends that the reasoning of our decision in Steel Co. directs the conclusion that citizen
plaintiffs have no standing to seek civil penalties under the Act. We disagree. Steel Co. established
that citizen suitors lack standing to seek civil penalties for violations that have abated by the time
of suit. 523 U.S., at 106-107. We specifically noted in that case that there was no allegation in the
complaint of any continuing or imminent violation, and that no basis for such an allegation appeared
to exist. Id., at 108; * * *. In short, Steel Co. held that private plaintiffs, unlike the Federal
Government, may not sue to assess penalties for wholly past violations, but our decision in that case
did not reach the issue of standing to seek penalties for violations that are ongoing at the time of the
complaint and that could continue into the future if undeterred. [FN4]
FN4. In insisting that the redressability requirement is not met, the dissent relies heavily on
Linda R. S. v. Richard D., 410 U.S. 614 (1973). That reliance is sorely misplaced. In
Linda R. S., the mother of an out-of-wedlock child filed suit to force a district attorney to
bring a criminal prosecution against the absentee father for failure to pay child support. Id.,
at 616. In finding that the mother lacked standing to seek this extraordinary remedy, the
Court drew attention to "the special status of criminal prosecutions in our system," id., at
619, and carefully limited its holding to the "unique context of a challenge to [the nonenforcement of] a criminal statute," id., at 617. Furthermore, as to redressability, the relief
sought in Linda R. S.--a prosecution which, if successful, would automatically land the
delinquent father in jail for a fixed term, id., at 618, with predictably negative effects on his
earning power--would scarcely remedy the plaintiff's lack of child support payments. In this
regard, the Court contrasted "the civil contempt model whereby the defendant 'keeps the keys
to the jail in his own pocket' and may be released whenever he complies with his legal
obligations." Ibid. The dissent's contention * * * that "precisely the same situation exists
here" as in Linda R. S. is, to say the least, extravagant.
Putting aside its mistaken reliance on Linda R. S., the dissent's broader charge that citizen
suits for civil penalties under the Act carry "grave implications for democratic governance,"
* * *, seems to us overdrawn. Certainly the federal Executive Branch does not share the
dissent's view that such suits dissipate its authority to enforce the law. In fact, the
Department of Justice has endorsed this citizen suit from the outset, submitting amicus briefs
in support of FOE in the District Court, the Court of Appeals, and this Court. * * * As we
have already noted, * * *, the Federal Government retains the power to foreclose a citizen
suit by undertaking its own action. 33 U.S.C. § 1365(b)(1)(B). And if the Executive Branch
opposes a particular citizen suit, the statute allows the Administrator of the EPA to
"intervene as a matter of right" and bring the Government's views to the attention of the
court. § 1365(c)(2).

60

B
Satisfied that FOE had standing under Article III to bring this action, we turn to the question of
mootness.
The only conceivable basis for a finding of mootness in this case is Laidlaw's voluntary conduct-either its achievement by August 1992 of substantial compliance with its NPDES permit or its more
recent shutdown of the Roebuck facility. It is well settled that "a defendant's voluntary cessation of
a challenged practice does not deprive a federal court of its power to determine the legality of the
practice." City of Mesquite, 455 U.S., at 289. "[I]f it did, the courts would be compelled to leave
'[t]he defendant ... free to return to his old ways.'" Id., at 289, n.10 (citing United States v. W.T. Grant
Co., 345 U.S. 629, 632 (1953)). In accordance with this principle, the standard we have announced
for determining whether a case has been mooted by the defendant's voluntary conduct is stringent:
"A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate
Export Assn., 393 U.S. 199, 203 (1968). The "heavy burden of persua[ding]" the court that the
challenged conduct cannot reasonably be expected to start up again lies with the party asserting
mootness. Ibid.
The Court of Appeals justified its mootness disposition by reference to Steel Co., which held that
citizen plaintiffs lack standing to seek civil penalties for wholly past violations. In relying on Steel
Co., the Court of Appeals confused mootness with standing. The confusion is understandable, given
this Court's repeated statements that the doctrine of mootness can be described as "the doctrine of
standing set in a time frame: The requisite personal interest that must exist at the commencement
of the litigation (standing) must continue throughout its existence (mootness)." Arizonans for
Official English, 520 U.S., at 68, n.22 (quoting United States Parole Comm'n v. Geraghty, 445 U.S.
388, 397 (1980), in turn quoting Monaghan, Constitutional Adjudication: The Who and When, 82
Yale L.J. 1363, 1384 (1973)) (internal quotation marks omitted).
Careful reflection on the long-recognized exceptions to mootness, however, reveals that the
description of mootness as "standing set in a time frame" is not comprehensive. As just noted, a
defendant claiming that its voluntary compliance moots a case bears the formidable burden of
showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected
to recur. Concentrated Phosphate Export Assn., 393 U.S., at 203. By contrast, in a lawsuit brought
to force compliance, it is the plaintiff's burden to establish standing by demonstrating that, if
unchecked by the litigation, the defendant's allegedly wrongful behavior will likely occur or
continue, and that the "threatened injury [is] certainly impending." Whitmore v. Arkansas, 495 U.S.
149, 158 (1990) (citations and internal quotation marks omitted). Thus, in Lyons, as already noted,
we held that a plaintiff lacked initial standing to seek an injunction against the enforcement of a
police chokehold policy because he could not credibly allege that he faced a realistic threat arising
from the policy. 461 U.S., at 105-110. Elsewhere in the opinion, however, we noted that a citywide
moratorium on police chokeholds–an action that surely diminished the already slim likelihood that
any particular individual would be choked by police--would not have mooted an otherwise valid
61

claim for injunctive relief, because the moratorium by its terms was not permanent. Id., at 101. The
plain lesson of these cases is that there are circumstances in which the prospect that a defendant will
engage in (or resume) harmful conduct may be too speculative to support standing, but not too
speculative to overcome mootness.
Furthermore, if mootness were simply "standing set in a time frame," the exception to mootness
that arises when the defendant's allegedly unlawful activity is "capable of repetition, yet evading
review" could not exist. When, for example, a mentally disabled patient files a lawsuit challenging
her confinement in a segregated institution, her postcomplaint transfer to a community-based
program will not moot the action, * * *, despite the fact that she would have lacked initial standing
had she filed the complaint after the transfer. Standing admits of no similar exception; if a plaintiff
lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet
evading review will not entitle the complainant to a federal judicial forum. See Steel Co., 523 U.S.,
at 109 ("'the mootness exception for disputes capable of repetition yet evading review ... will not
revive a dispute which became moot before the action commenced'") (quoting Renne v. Geary, 501
U.S. 312, 320 (1991)).
We acknowledged the distinction between mootness and standing most recently in Steel Co.:
"The United States ... argues that the injunctive relief does constitute remediation because 'there
is a presumption of [future] injury when the defendant has voluntarily ceased its illegal activity in
response to litigation,' even if that occurs before a complaint is filed.... This makes a sword out of
a shield. The 'presumption' the Government refers to has been applied to refute the assertion of
mootness by a defendant who, when sued in a complaint that alleges present or threatened injury,
ceases the complained-of activity.... It is an immense and unacceptable stretch to call the
presumption into service as a substitute for the allegation of present or threatened injury upon
which initial standing must be based." 523 U.S., at 109.
Standing doctrine functions to ensure, among other things, that the scarce resources of the federal
courts are devoted to those disputes in which the parties have a concrete stake. In contrast, by the
time mootness is an issue, the case has been brought and litigated, often (as here) for years. To
abandon the case at an advanced stage may prove more wasteful than frugal. This argument from
sunk costs [FN5] does not license courts to retain jurisdiction over cases in which one or both of the
parties plainly lacks a continuing interest, as when the parties have settled or a plaintiff pursuing a
nonsurviving claim has died. See, e.g., DeFunis v. Odegaard, 416 U.S. 312 (1974) (per curiam)
(non-class-action challenge to constitutionality of law school admissions process mooted when
plaintiff, admitted pursuant to preliminary injunction, neared graduation and defendant law school
conceded that, as a matter of ordinary school policy, plaintiff would be allowed to finish his final
term); Arizonans, 520 U.S., at 67 (non-class-action challenge to state constitutional amendment
declaring English the official language of the State became moot when plaintiff, a state employee
who sought to use her bilingual skills, left state employment). But the argument surely highlights
an important difference between the two doctrines. See generally Honig v. Doe, 484 U.S. 305, 329332 (1988) (REHNQUIST, C. J., concurring).

62

FN5. Of course we mean sunk costs to the judicial system, not to the litigants. Lewis v.
Continental Bank Corp., 494 U.S. 472 (1990) (cited by the dissent * * *) dealt with the latter,
noting that courts should use caution to avoid carrying forward a moot case solely to
vindicate a plaintiff's interest in recovering attorneys' fees.
In its brief, Laidlaw appears to argue that, regardless of the effect of Laidlaw's compliance, FOE
doomed its own civil penalty claim to mootness by failing to appeal the District Court's denial of
injunctive relief. * * * This argument misconceives the statutory scheme. Under § 1365(a), the
district court has discretion to determine which form of relief is best suited, in the particular case,
to abate current violations and deter future ones. "[A] federal judge sitting as chancellor is not
mechanically obligated to grant an injunction for every violation of law." Weinberger v. RomeroBarcelo, 456 U.S. 305, 313 (1982). Denial of injunctive relief does not necessarily mean that the
district court has concluded there is no prospect of future violations for civil penalties to deter.
Indeed, it meant no such thing in this case. The District Court denied injunctive relief, but expressly
based its award of civil penalties on the need for deterrence. See 956 F.Supp., at 610-611. As the
dissent notes,* * *, federal courts should aim to ensure "'the framing of relief no broader than
required by the precise facts.'" Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222
(1974). In accordance with this aim, a district court in a Clean Water Act citizen suit properly may
conclude that an injunction would be an excessively intrusive remedy, because it could entail
continuing superintendence of the permit holder's activities by a federal court--a process burdensome
to court and permit holder alike. See City of Mesquite, 455 U.S., at 289 (although the defendant's
voluntary cessation of the challenged practice does not moot the case, "[s]uch abandonment is an
important factor bearing on the question whether a court should exercise its power to enjoin the
defendant from renewing the practice").
Laidlaw also asserts, in a supplemental suggestion of mootness, that the closure of its Roebuck
facility, which took place after the Court of Appeals issued its decision, mooted the case. The
facility closure, like Laidlaw's earlier achievement of substantial compliance with its permit
requirements, might moot the case, but--we once more reiterate--only if one or the other of these
events made it absolutely clear that Laidlaw's permit violations could not reasonably be expected to
recur. Concentrated Phosphate Export Assn., 393 U.S., at 203. The effect of both Laidlaw's
compliance and the facility closure on the prospect of future violations is a disputed factual matter.
FOE points out, for example--and Laidlaw does not appear to contest--that Laidlaw retains its
NPDES permit. These issues have not been aired in the lower courts; they remain open for
consideration on remand.[FN6]
FN6. We note that it is far from clear that vacatur of the District Court's judgment would be
the appropriate response to a finding of mootness on appeal brought about by the voluntary
conduct of the party that lost in the District Court. See U.S. Bancorp Mortgage Co. v.
Bonner Mall Partnership, 513 U.S. 18 (1994) (mootness attributable to a voluntary act of a
nonprevailing party ordinarily does not justify vacatur of a judgment under review); see also
Walling v. James V. Reuter, Inc., 321 U.S. 671 (1944).

63

****
For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit
is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice STEVENS, concurring.
Although the Court has identified a sufficient reason for rejecting the Court of Appeals' mootness
determination, it is important also to note that the case would not be moot even if it were absolutely
clear that respondent had gone out of business and posed no threat of future permit violations. The
District Court entered a valid judgment requiring respondent to pay a civil penalty of $405,800 to
the United States. No post-judgment conduct of respondent could retroactively invalidate that
judgment. A record of voluntary post-judgment compliance that would justify a decision that
injunctive relief is unnecessary, or even a decision that any claim for injunctive relief is now moot,
would not warrant vacation of the valid money judgment.
Furthermore, petitioners' claim for civil penalties would not be moot even if it were absolutely clear
that respondent's violations could not reasonably be expected to recur because respondent achieved
substantial compliance with its permit requirements after petitioners filed their complaint but before
the District Court entered judgment. As the Courts of Appeals (other than the court below) have
uniformly concluded, a polluter's voluntary post-complaint cessation of an alleged violation will not
moot a citizen-suit claim for civil penalties even if it is sufficient to moot a related claim for
injunctive or declaratory relief. * * * This conclusion is consistent with the structure of the Clean
Water Act, which attaches liability for civil penalties at the time a permit violation occurs. 33 U.S.C.
§ 1319(d) ("Any person who violates [certain provisions of the Act or certain permit conditions and
limitations] shall be subject to a civil penalty ..."). It is also consistent with the character of civil
penalties, which, for purposes of mootness analysis, should be equated with punitive damages rather
than with injunctive or declaratory relief. See Tull v. United States, 481 U.S. 412, 422-423 (1987).
No one contends that a defendant's post-complaint conduct could moot a claim for punitive damages;
civil penalties should be treated the same way.
The cases cited by the Court in its discussion of the mootness issue all involved requests for
injunctive or declaratory relief. In only one, Los Angeles v. Lyons, 461 U.S. 95 (1983), did the
plaintiff seek damages, and in that case the opinion makes it clear that the inability to obtain
injunctive relief would have no impact on the damages claim. Id., at 105, n.6. There is no
precedent, either in our jurisprudence, or in any other of which I am aware, that provides any support
for the suggestion that post-complaint factual developments that might moot a claim for injunctive
or declaratory relief could either moot a claim for monetary relief or retroactively invalidate a valid
money judgment.

64

Justice KENNEDY, concurring.
Difficult and fundamental questions are raised when we ask whether exactions of public fines by
private litigants, and the delegation of Executive power which might be inferable from the
authorization, are permissible in view of the responsibilities committed to the Executive by Article II
of the Constitution of the United States. The questions presented in the petition for certiorari did not
identify these issues with particularity; and neither the Court of Appeals in deciding the case nor the
parties in their briefing before this Court devoted specific attention to the subject. In my view these
matters are best reserved for a later case. With this observation, I join the opinion of the Court.
Justice SCALIA, with whom Justice THOMAS joins, dissenting.
The Court begins its analysis by finding injury in fact on the basis of vague affidavits that are
undermined by the District Court's express finding that Laidlaw's discharges caused no demonstrable
harm to the environment. It then proceeds to marry private wrong with public remedy in a union that
violates traditional principles of federal standing--thereby permitting law enforcement to be placed
in the hands of private individuals. Finally, the Court suggests that to avoid mootness one needs
even less of a stake in the outcome than the Court's watered-down requirements for initial standing.
I dissent from all of this.
I
Plaintiffs, as the parties invoking federal jurisdiction, have the burden of proof and persuasion as
to the existence of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (hereinafter
Lujan); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). The plaintiffs in this case fell far short
of carrying their burden of demonstrating injury in fact. The Court cites affiants' testimony asserting
that their enjoyment of the North Tyger River has been diminished due to "concern" that the water
was polluted, and that they "believed" that Laidlaw's mercury exceedances had reduced the value of
their homes. * * * These averments alone cannot carry the plaintiffs' burden of demonstrating that
they have suffered a "concrete and particularized" injury, Lujan, 504 U.S., at 560. General
allegations of injury may suffice at the pleading stage, but at summary judgment plaintiffs must set
forth "specific facts" to support their claims. Id., at 561. And where, as here, the case has proceeded
to judgment, those specific facts must be "'supported adequately by the evidence adduced at trial,'"
ibid. (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115, n.31 (1979)). In this
case, the affidavits themselves are woefully short on "specific facts," and the vague allegations of
injury they do make are undermined by the evidence adduced at trial.
Typically, an environmental plaintiff claiming injury due to discharges in violation of the Clean
Water Act argues that the discharges harm the environment, and that the harm to the environment
injures him. This route to injury is barred in the present case, however, since the District Court
concluded after considering all the evidence that there had been "no demonstrated proof of harm to
the environment," 956 F.Supp. 588, 602 (D.S.C.1997), that the "permit violations at issue in this
citizen suit did not result in any health risk or environmental harm," ibid., that "[a]ll available data
65

... fail to show that Laidlaw's actual discharges have resulted in harm to the North Tyger River," id.,
at 602-603, and that "the overall quality of the river exceeds levels necessary to support ... recreation
in and on the water," id., at 600.
The Court finds these conclusions unproblematic for standing, because "[t]he relevant showing for
purposes of Article III standing ... is not injury to the environment but injury to the plaintiff." * * *
This statement is correct, as far as it goes. We have certainly held that a demonstration of harm to
the environment is not enough to satisfy the injury-in-fact requirement unless the plaintiff can
demonstrate how he personally was harmed. * * * In the normal course, however, a lack of
demonstrable harm to the environment will translate, as it plainly does here, into a lack of
demonstrable harm to citizen plaintiffs. While it is perhaps possible that a plaintiff could be harmed
even though the environment was not, such a plaintiff would have the burden of articulating and
demonstrating the nature of that injury. Ongoing "concerns" about the environment are not enough,
for "[i]t is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the
plaintiff's subjective apprehensions," Los Angeles v. Lyons, 461 U.S. 95, 107, n.8 (1983). At the
very least, in the present case, one would expect to see evidence supporting the affidavits' bald
assertions regarding decreasing recreational usage and declining home values, as well as evidence
for the improbable proposition that Laidlaw's violations, even though harmless to the environment,
are somehow responsible for these effects. Cf. Gladstone, supra, at 115 (noting that standing could
be established by "convincing evidence" that a decline in real estate values was attributable to the
defendant's conduct). Plaintiffs here have made no attempt at such a showing, but rely entirely upon
unsupported and unexplained affidavit allegations of "concern."
Indeed, every one of the affiants deposed by Laidlaw cast into doubt the (in any event inadequate)
proposition that subjective "concerns" actually affected their conduct. Linda Moore, for example,
said in her affidavit that she would use the affected waterways for recreation if it were not for her
concern about pollution. Record, Doc. No. 71 (Exhs. 45, 46). Yet she testified in her deposition that
she had been to the river only twice, once in 1980 (when she visited someone who lived by the river)
and once after this suit was filed. Record, Doc. No. 62 (Moore Deposition 23-24). Similarly,
Kenneth Lee Curtis, who claimed he was injured by being deprived of recreational activity at the
river, admitted that he had not been to the river since he was "a kid," (Curtis Deposition, pt. 2, p. 38),
and when asked whether the reason he stopped visiting the river was because of pollution, answered
"no," id., at 39. As to Curtis's claim that the river "looke[d] and smell[ed] polluted," this condition,
if present, was surely not caused by Laidlaw's discharges, which according to the District Court "did
not result in any health risk or environmental harm." 956 F.Supp., at 602. The other affiants cited
by the Court were not deposed, but their affidavits state either that they would use the river if it were
not polluted or harmful (as the court subsequently found it is not), Record, Doc. No. 21 (Exhs. 7, 8,
and 9), or said that the river looks polluted (which is also incompatible with the court's findings),
ibid. (Exh. 10). These affiants have established nothing but "subjective apprehensions."
The Court is correct that the District Court explicitly found standing--albeit "by the very slimmest
of margins," and as "an awfully close call." App. in No. 97-1246 (C.A.4), p. 207-208 (Tr. of Hearing
39-40 (June 30, 1993)). That cautious finding, however, was made in 1993, long before the court's

66

1997 conclusion that Laidlaw's discharges did not harm the environment. As we have previously
recognized, an initial conclusion that plaintiffs have standing is subject to reexamination, particularly
if later evidence proves inconsistent with that conclusion. Gladstone, 441 U.S., at 115, and n.31;
Wyoming v. Oklahoma, 502 U.S. 437, 446 (1992). Laidlaw challenged the existence of injury in fact
on appeal to the Fourth Circuit, but that court did not reach the question. Thus no lower court has
reviewed the injury-in-fact issue in light of the extensive studies that led the District Court to
conclude that the environment was not harmed by Laidlaw's discharges.
Inexplicably, the Court is untroubled by this, but proceeds to find injury in fact in the most casual
fashion, as though it is merely confirming a careful analysis made below. Although we have
previously refused to find standing based on the "conclusory allegations of an affidavit," Lujan v.
National Wildlife Federation, 497 U.S. 871, 888 (1990), the Court is content to do just that today.
By accepting plaintiffs' vague, contradictory, and unsubstantiated allegations of "concern" about the
environment as adequate to prove injury in fact, and accepting them even in the face of a finding that
the environment was not demonstrably harmed, the Court makes the injury-in-fact requirement a
sham. If there are permit violations, and a member of a plaintiff environmental organization lives
near the offending plant, it would be difficult not to satisfy today's lenient standard.
II
The Court's treatment of the redressability requirement–which would have been unnecessary if it
resolved the injury-in-fact question correctly--is equally cavalier. As discussed above, petitioners
allege ongoing injury consisting of diminished enjoyment of the affected waterways and decreased
property values. They allege that these injuries are caused by Laidlaw's continuing permit violations.
But the remedy petitioners seek is neither recompense for their injuries nor an injunction against
future violations. Instead, the remedy is a statutorily specified "penalty" for past violations, payable
entirely to the United States Treasury. Only last Term, we held that such penalties do not redress
any injury a citizen plaintiff has suffered from past violations. Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 106-107 (1998). The Court nonetheless finds the redressability
requirement satisfied here, distinguishing Steel Co. on the ground that in this case the petitioners
allege ongoing violations; payment of the penalties, it says, will remedy petitioners' injury by
deterring future violations by Laidlaw. * * * It holds that a penalty payable to the public "remedies"
a threatened private harm, and suffices to sustain a private suit.
That holding has no precedent in our jurisprudence, and takes this Court beyond the "cases and
controversies" that Article III of the Constitution has entrusted to its resolution. Even if it were
appropriate, moreover, to allow Article III's remediation requirement to be satisfied by the indirect
private consequences of a public penalty, those consequences are entirely too speculative in the
present case. The new standing law that the Court makes--like all expansions of standing beyond
the traditional constitutional limits--has grave implications for democratic governance. I shall
discuss these three points in turn.

67

A
In Linda R. S. v. Richard D., 410 U.S. 614 (1973), the plaintiff, mother of an illegitimate child,
sought, on behalf of herself, her child, and all others similarly situated, an injunction against
discriminatory application of Art. 602 of the Texas Penal Code. Although that provision made it a
misdemeanor for "any parent" to refuse to support his or her minor children under 18 years of age,
it was enforced only against married parents. That refusal, the plaintiff contended, deprived her and
her child of the equal protection of the law by denying them the deterrent effect of the statute upon
the father's failure to fulfill his support obligation. The Court held that there was no Article III
standing. There was no "'direct' relationship," it said, "between the alleged injury and the claim
sought to be adjudicated," since "[t]he prospect that prosecution will, at least in the future, result in
payment of support can, at best, be termed only speculative." Id., at 618. "[Our cases] demonstrate
that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another." Id., at 619.
Although the Court in Linda R. S. recited the "logical nexus" analysis of Flast v. Cohen, 392 U.S.
83 (1968), which has since fallen into desuetude, "it is clear that standing was denied ... because of
the unlikelihood that the relief requested would redress appellant's claimed injury." Duke Power Co.
v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 79, n.24 (1978). There was no "logical
nexus" between nonenforcement of the statute and Linda R. S.'s failure to receive support payments
because "[t]he prospect that prosecution will ... result in payment of support" was "speculative,"
Linda R. S., supra, at 618--that is to say, it was uncertain whether the relief would prevent the injury.
[FN1] Of course precisely the same situation exists here. The principle that "in American
jurisprudence ... a private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another" applies no less to prosecution for civil penalties payable to the State than
to prosecution for criminal penalties owing to the State.
FN1. The decision in Linda R. S. did not turn, as today's opinion imaginatively suggests, on
the father's short-term inability to pay support if imprisoned. * * * The Court's only comment
upon the imprisonment was that, unlike imprisonment for civil contempt, it would not
condition the father's release upon payment. The Court then continued: "The prospect that
prosecution will, at least in the future,"--i.e., upon completion of the imprisonment--"result
in payment of support can, at best, be termed only speculative." Linda R. S., 410 U.S., at
618.
The Court's opinion reads as though the only purpose and effect of the redressability requirement
is to assure that the plaintiff receive some of the benefit of the relief that a court orders. That is not
so. If it were, a federal tort plaintiff fearing repetition of the injury could ask for tort damages to be
paid, not only to himself but to other victims as well, on the theory that those damages would have
at least some deterrent effect beneficial to him. Such a suit is preposterous because the
"remediation" that is the traditional business of Anglo-American courts is relief specifically tailored
to the plaintiff's injury, and not any sort of relief that has some incidental benefit to the plaintiff. Just
as a "generalized grievance" that affects the entire citizenry cannot satisfy the injury-in-fact
68

requirement even though it aggrieves the plaintiff along with everyone else, see Lujan, 504 U.S., at
573-574, so also a generalized remedy that deters all future unlawful activity against all persons
cannot satisfy the remediation requirement, even though it deters (among other things) repetition of
this particular unlawful activity against these particular plaintiffs.
Thus, relief against prospective harm is traditionally afforded by way of an injunction, the scope
of which is limited by the scope of the threatened injury. Lewis v. Casey, 518 U.S. 343, 357-360
(1996); Lyons, 461 U.S., at 105-107, and n.7. In seeking to overturn that tradition by giving an
individual plaintiff the power to invoke a public remedy, Congress has done precisely what we have
said it cannot do: convert an "undifferentiated public interest" into an "individual right" vindicable
in the courts. Lujan, supra, at 577; Steel Co., 523 U.S., at 106. The sort of scattershot redress
approved today makes nonsense of our statement in Schlesinger v. Reservists Comm. to Stop the
War, 418 U.S. 208, 222 (1974), that the requirement of injury in fact "insures the framing of relief
no broader than required by the precise facts." A claim of particularized future injury has today been
made the vehicle for pursuing generalized penalties for past violations, and a threshold showing of
injury in fact has become a lever that will move the world.
B
As I have just discussed, it is my view that a plaintiff's desire to benefit from the deterrent effect
of a public penalty for past conduct can never suffice to establish a case or controversy of the sort
known to our law. Such deterrent effect is, so to speak, "speculative as a matter of law." Even if that
were not so, however, the deterrent effect in the present case would surely be speculative as a matter
of fact.
The Court recognizes, of course, that to satisfy Article III, it must be "likely," as opposed to "merely
speculative," that a favorable decision will redress plaintiffs' injury, Lujan, supra, at 561. * * *
Further, the Court recognizes that not all deterrent effects of all civil penalties will meet this
standard--though it declines to "explore the outer limits" of adequate deterrence, * * *. It concludes,
however, that in the present case "the civil penalties sought by FOE carried with them a deterrent
effect" that satisfied the "likely [rather than] speculative" standard. Ibid. There is little in the Court's
opinion to explain why it believes this is so.
The Court cites the District Court's conclusion that the penalties imposed, along with anticipated
fee awards, provided "adequate deterrence." * * * There is absolutely no reason to believe, however,
that this meant "deterrence adequate to prevent an injury to these plaintiffs that would otherwise
occur." The statute does not even mention deterrence in general (much less deterrence of future harm
to the particular plaintiff) as one of the elements that the court should consider in fixing the amount
of the penalty. (That element can come in, if at all, under the last, residual category of "such other
matters as justice may require." 33 U.S.C. § 1319(d).) The statute does require the court to consider
"the seriousness of the violation or violations, the economic benefit (if any) resulting from the
violation, any history of such violations, any good-faith efforts to comply with the applicable
requirements, [and] the economic impact of the penalty on the violator...." Ibid.; see 956 F.Supp.,
69

at 601. The District Court meticulously discussed, in subsections (a) through (e) of the portion of
its opinion entitled "Civil Penalty," each one of those specified factors, and then--under subsection
(f) entitled "Other Matters As Justice May Require," it discussed "1. Laidlaw's Failure to Avail Itself
of the Reopener Clause," "2. Recent Compliance History," and "3. The Ever-Changing Mercury
Limit." There is no mention whatever--in this portion of the opinion or anywhere else--of the degree
of deterrence necessary to prevent future harm to these particular plaintiffs. Indeed, neither the
District Court's final opinion (which contains the "adequate deterrence" statement) nor its earlier
opinion dealing with the preliminary question whether South Carolina's previous lawsuit against
Laidlaw constituted "diligent prosecution" that would bar citizen suit, see 33 U.S.C. § 1365(b)(1)(B),
displayed any awareness that deterrence of future injury to the plaintiffs was necessary to support
standing.
The District Court's earlier opinion did, however, quote with approval the passage from a District
Court case which began: "'Civil penalties seek to deter pollution by discouraging future violations.
To serve this function, the amount of the civil penalty must be high enough to insure that polluters
cannot simply absorb the penalty as a cost of doing business.'" App. 122, quoting PIRG v. Powell
Duffryn Terminals, Inc., 720 F.Supp. 1158, 1166 (D.N.J. 1989). When the District Court concluded
the "Civil Penalty" section of its opinion with the statement that "[t]aken together, this court believes
the above penalty, potential fee awards, and Laidlaw's own direct and indirect litigation expenses
provide adequate deterrence under the circumstances of this case," 956 F.Supp., at 611, it was
obviously harking back to this general statement of what the statutorily prescribed factors (and the
"as justice may require" factors, which in this case did not include particularized or even generalized
deterrence) were designed to achieve. It meant no more than that the court believed the civil penalty
it had prescribed met the statutory standards.
The Court points out that we have previously said "'all civil penalties have some deterrent effect,'"
* * *. That is unquestionably true: As a general matter, polluters as a class are deterred from
violating discharge limits by the availability of civil penalties. However, none of the cases the Court
cites focused on the deterrent effect of a single imposition of penalties on a particular lawbreaker.
Even less did they focus on the question whether that particularized deterrent effect (if any) was
enough to redress the injury of a citizen plaintiff in the sense required by Article III. They all
involved penalties pursued by the government, not by citizens. * * *
If the Court had undertaken the necessary inquiry into whether significant deterrence of the
plaintiffs' feared injury was "likely," it would have had to reason something like this: Strictly
speaking, no polluter is deterred by a penalty for past pollution; he is deterred by the fear of a penalty
for future pollution. That fear will be virtually nonexistent if the prospective polluter knows that all
emissions violators are given a free pass; it will be substantial under an emissions program such as
the federal scheme here, which is regularly and notoriously enforced; it will be even higher when a
prospective polluter subject to such a regularly enforced program has, as here, been the object of
public charges of pollution and a suit for injunction; and it will surely be near the top of the graph
when, as here, the prospective polluter has already been subjected to state penalties for the past
pollution. The deterrence on which the plaintiffs must rely for standing in the present case is the

70

marginal increase in Laidlaw's fear of future penalties that will be achieved by adding federal
penalties for Laidlaw's past conduct.
I cannot say for certain that this marginal increase is zero; but I can say for certain that it is entirely
speculative whether it will make the difference between these plaintiffs' suffering injury in the future
and these plaintiffs' going unharmed. In fact, the assertion that it will "likely" do so is entirely
farfetched. The speculativeness of that result is much greater than the speculativeness we found
excessive in Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 43 (1976), where we
held that denying § 501(c)(3) charitable-deduction tax status to hospitals that refused to treat
indigents was not sufficiently likely to assure future treatment of the indigent plaintiffs to support
standing. And it is much greater than the speculativeness we found excessive in Linda R. S. v.
Richard D.,* * *, where we said that "the prospect that prosecution [for nonsupport] will ... result
in payment of support can, at best, be termed only speculative," 410 U.S., at 618.
In sum, if this case is, as the Court suggests, within the central core of "deterrence" standing, it is
impossible to imagine what the "outer limits" could possibly be. The Court's expressed reluctance
to define those "outer limits" serves only to disguise the fact that it has promulgated a revolutionary
new doctrine of standing that will permit the entire body of public civil penalties to be handed over
to enforcement by private interests.
C
Article II of the Constitution commits it to the President to "take Care that the Laws be faithfully
executed," Art. II, § 3, and provides specific methods by which all persons exercising significant
executive power are to be appointed, Art. II, § 2. As Justice KENNEDY'S concurrence correctly
observes, the question of the conformity of this legislation with Article II has not been argued--and
I, like the Court, do not address it. But Article III, no less than Article II, has consequences for the
structure of our government, see Schlesinger, 418 U.S., at 222, and it is worth noting the changes
in that structure which today's decision allows.
By permitting citizens to pursue civil penalties payable to the Federal Treasury, the Act does not
provide a mechanism for individual relief in any traditional sense, but turns over to private citizens
the function of enforcing the law. A Clean Water Act plaintiff pursuing civil penalties acts as a selfappointed mini-EPA. Where, as is often the case, the plaintiff is a national association, it has
significant discretion in choosing enforcement targets. Once the association is aware of a reported
violation, it need not look long for an injured member, at least under the theory of injury the Court
applies today. * * * And once the target is chosen, the suit goes forward without meaningful public
control. [FN2] The availability of civil penalties vastly disproportionate to the individual injury
gives citizen plaintiffs massive bargaining power--which is often used to achieve settlements
requiring the defendant to support environmental projects of the plaintiffs' choosing. See Greve,
The Private Enforcement of Environmental Law, 65 Tulane L.Rev. 339, 355-359 (1990). Thus is
a public fine diverted to a private interest.

71

FN2. The Court points out that the government is allowed to intervene in a citizen suit, see
* * * 33 U.S.C. § 1365(c)(2), but this power to "bring the Government's views to the
attention of the court," * * *, is meager substitute for the power to decide whether
prosecution will occur. Indeed, according the Chief Executive of the United States the ability
to intervene does no more than place him on a par with John Q. Public, who can intervene-whether the government likes it or not--when the United States files suit. § 1365(b)(1)(B).
To be sure, the EPA may foreclose the citizen suit by itself bringing suit. 33 U.S.C.
§ 1365(b)(1)(B). This allows public authorities to avoid private enforcement only by accepting
private direction as to when enforcement should be undertaken--which is no less constitutionally
bizarre. Elected officials are entirely deprived of their discretion to decide that a given violation
should not be the object of suit at all, or that the enforcement decision should be postponed. [FN3]
See § 1365(b)(1)(A) (providing that citizen plaintiff need only wait 60 days after giving notice of
the violation to the government before proceeding with action). This is the predictable and
inevitable consequence of the Court's allowing the use of public remedies for private wrongs.
FN3. The Court observes that "the federal Executive Branch does not share the dissent's view
that such suits dissipate its authority to enforce the law," since it has "endorsed this citizen
suit from the outset." * * * Of course, in doubtful cases a long and uninterrupted history of
presidential acquiescence and approval can shed light upon the constitutional understanding.
What we have here--acquiescence and approval by a single Administration--does not deserve
passing mention.
III
Finally, I offer a few comments regarding the Court's discussion of whether FOE's claims became
moot by reason of Laidlaw's substantial compliance with the permit limits. I do not disagree with
the conclusion that the Court reaches. Assuming that the plaintiffs had standing to pursue civil
penalties in the first instance (which they did not), their claim might well not have been mooted by
Laidlaw's voluntary compliance with the permit, and leaving this fact-intensive question open for
consideration on remand, as the Court does,* * *, seems sensible. * * * In reaching this disposition,
however, the Court engages in a troubling discussion of the purported distinctions between the
doctrines of standing and mootness. I am frankly puzzled as to why this discussion appears at all.
Laidlaw's claimed compliance is squarely within the bounds of our "voluntary cessation" doctrine,
which is the basis for the remand. * * * [FN5] There is no reason to engage in an interesting
academic excursus upon the differences between mootness and standing in order to invoke this
obviously applicable rule. [FN6]
FN5. Unlike Justice STEVENS' concurrence, the opinion for the Court appears to recognize
that a claim for civil penalties is moot when it is clear that no future injury to the plaintiff at
the hands of the defendant can occur. The concurrence suggests that civil penalties, like
traditional damages remedies, cannot be mooted by absence of threatened injury. The
analogy is inapt. Traditional money damages are payable to compensate for the harm of past
72

conduct, which subsists whether future harm is threatened or not; civil penalties are privately
assessable (according to the Court) to deter threatened future harm to the plaintiff. Where
there is no threat to the plaintiff, he has no claim to deterrence. The proposition that
impossibility of future violation does not moot the case holds true, of course, for civilpenalty suits by the government, which do not rest upon the theory that some particular
future harm is being prevented.
FN6. The Court attempts to frame its exposition as a corrective to the Fourth Circuit, which
it claims "confused mootness with standing." * * * The Fourth Circuit's conclusion of
nonjusticiability rested upon the belief (entirely correct, in my view) that the only remedy
being pursued on appeal, civil penalties, would not redress FOE's claimed injury. 149 F.3d
303, 306 (1998). While this might be characterized as a conclusion that FOE had no
standing to pursue civil penalties from the outset, it can also be characterized, as it was by
the Fourth Circuit, as a conclusion that, when FOE declined to appeal denial of the
declaratory judgment and injunction, and appealed only the inadequacy of the civil penalties
(which it had no standing to pursue) the case as a whole became moot. Given the Court's
erroneous conclusion that civil penalties can redress private injury, it of course rejects both
formulations--but neither of them necessitates the Court's academic discourse comparing the
mootness and standing doctrines.
Because the discussion is not essential--indeed, not even relevant--to the Court's decision, it is of
limited significance. Nonetheless, I am troubled by the Court's too-hasty retreat from our
characterization of mootness as "the doctrine of standing set in a time frame." Arizonans for Official
English v. Arizona, 520 U.S. 43, 68, n.22 (1997). We have repeatedly recognized that what is
required for litigation to continue is essentially identical to what is required for litigation to begin:
There must be a justiciable case or controversy as required by Article III. "Simply stated, a case is
moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest
in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). A Court may not proceed to hear
an action if, subsequent to its initiation, the dispute loses "its character as a present, live controversy
of the kind that must exist if [the Court is] to avoid advisory opinions on abstract propositions of
law." Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam). * * * Because the requirement of a
continuing case or controversy derives from the Constitution, Liner v. Jafco, Inc., 375 U.S. 301, 306,
n.3 (1964), it may not be ignored when inconvenient, * * *, or, as the Court suggests, to save "sunk
costs," * * *.
It is true that mootness has some added wrinkles that standing lacks. One is the "voluntary
cessation" doctrine to which the Court refers. But it is inaccurate to regard this as a reduction of the
basic requirement for standing that obtained at the beginning of the suit. A genuine controversy must
exist at both stages. And just as the initial suit could be brought (by way of suit for declaratory
judgment) before the defendant actually violated the plaintiff's alleged rights, so also the initial suit
can be continued even though the defendant has stopped violating the plaintiff's alleged rights. The
"voluntary cessation" doctrine is nothing more than an evidentiary presumption that the controversy
reflected by the violation of alleged rights continues to exist. Steel Co., 523 U.S., at 109. Similarly,

73

the fact that we do not find cases moot when the challenged conduct is "capable of repetition, yet
evading review" does not demonstrate that the requirements for mootness and for standing differ.
"Where the conduct has ceased for the time being but there is a demonstrated probability that it will
recur, a real-life controversy between parties with a personal stake in the outcome continues to
exist." Honig v. Doe, 484 U.S. 305, 341 (1988) (SCALIA, J., dissenting) (emphasis omitted).
Part of the confusion in the Court's discussion is engendered by the fact that it compares standing,
on the one hand, with mootness based on voluntary cessation, on the other hand. * * * The required
showing that it is "absolutely clear" that the conduct "could not reasonably be expected to recur" is
not the threshold showing required for mootness, but the heightened showing required in a particular
category of cases where we have sensibly concluded that there is reason to be skeptical that cessation
of violation means cessation of live controversy. For claims of mootness based on changes in
circumstances other than voluntary cessation, the showing we have required is less taxing, and the
inquiry is indeed properly characterized as one of "'standing set in a time frame.'" See Arizonans,
supra, at 67, 68, n. 22 (case mooted where plaintiff's change in jobs deprived case of "still vital claim
for prospective relief"); Spencer v. Kemna, 523 U.S. 1, 7 (1998) (case mooted by petitioner's
completion of his sentence, since "throughout the litigation, the plaintiff must have suffered, or be
threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable
judicial decision") (internal quotation marks omitted); Lewis, supra, at 478-480 (case against state
mooted by change in federal law that eliminated parties' "personal stake" in the outcome).
In sum, while the Court may be correct that the parallel between standing and mootness is imperfect
due to realistic evidentiary presumptions that are by their nature applicable only in the mootness
context, this does not change the underlying principle that "'[t]he requisite personal interest that must
exist at the commencement of the litigation ... must continue throughout its existence....'" Arizonans,
supra, at 68, n.22 (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980)).
*

*

*

By uncritically accepting vague claims of injury, the Court has turned the Article III requirement
of injury in fact into a "mere pleading requirement," Lujan, 504 U.S., at 561; and by approving the
novel theory that public penalties can redress anticipated private wrongs, it has come close to
"mak[ing] the redressability requirement vanish," Steel Co., supra, at 107. The undesirable and
unconstitutional consequence of today's decision is to place the immense power of suing to enforce
the public laws in private hands. I respectfully dissent.

74

LEXMARK INTERNATIONAL, INC. v.
STATIC CONTROL COMPONENTS, INC.
134 S. Ct. 1377 (2014)
Justice SCALIA delivered the opinion of the Court.
This case requires us to decide whether respondent, Static Control Components, Inc., may sue
petitioner, Lexmark International, Inc., for false advertising under the Lanham Act, 15 U.S.C.
§ 1125(a).
I. Background
Lexmark manufactures and sells laser printers. It also sells toner cartridges for those printers
(toner being the powdery ink that laser printers use to create images on paper). Lexmark designs its
printers to work only with its own style of cartridges, and it therefore dominates the market for
cartridges compatible with its printers. That market, however, is not devoid of competitors. Other
businesses, called “remanufacturers,” acquire used Lexmark toner cartridges, refurbish them, and
sell them in competition with new and refurbished cartridges sold by Lexmark.
Lexmark would prefer that its customers return their empty cartridges to it for refurbishment
and resale, rather than sell those cartridges to a remanufacturer. So Lexmark introduced what it
called a “Prebate” program, which enabled customers to purchase new toner cartridges at a 20–
percent discount if they would agree to return the cartridge to Lexmark once it was empty. Those
terms were communicated to consumers through notices printed on the toner-cartridge boxes,
which advised the consumer that opening the box would indicate assent to the terms—a practice
commonly known as “shrinkwrap licensing,” see, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447,
1449 (C.A.7 1996). To enforce the Prebate terms, Lexmark included a microchip in each Prebate
cartridge that would disable the cartridge after it ran out of toner; for the cartridge to be used again,
the microchip would have to be replaced by Lexmark.
Static Control is not itself a manufacturer or remanufacturer of toner cartridges. It is, rather,
“the market leader [in] making and selling the components necessary to remanufacture Lexmark
cartridges.” 697 F.3d 387, 396 (C.A.6 2012) (case below). In addition to supplying remanufacturers
with toner and various replacement parts, Static Control developed a microchip that could mimic
the microchip in Lexmark's Prebate cartridges. By purchasing Static Control's microchips and
using them to replace the Lexmark microchip, remanufacturers were able to refurbish and resell
used Prebate cartridges.
Lexmark did not take kindly to that development. In 2002, it sued Static Control, alleging that
Static Control's microchips violated both the Copyright Act of 1976, 17 U.S.C. § 101 et seq., and
the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq. Static Control counterclaimed,
alleging, among other things, violations of § 43(a) of the Lanham Act, 60 Stat. 441, codified at 15
U.S.C. § 1125(a). Section 1125(a) provides:
“(1) Any person who, on or in connection with any goods or services, or any container for
goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof,
or any false designation of origin, false or misleading description of fact, or false or misleading
75

representation of fact, which—
“(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection, or association of such person with another person, or as to the origin, sponsorship, or
approval of his or her goods, services, or commercial activities by another person, or
“(B) in commercial advertising or promotion, misrepresents the nature, characteristics,
qualities, or geographic origin of his or her or another person's goods, services, or commercial
activities,
“shall be liable in a civil action by any person who believes that he or she is or is likely to be
damaged by such act.”
Section 1125(a) thus creates two distinct bases of liability: false association, § 1125(a)(1)(A),
and false advertising, § 1125(a)(1)(B). See Waits v. Frito–Lay, Inc., 978 F.2d 1093, 1108 (C.A.9
1992). Static Control alleged only false advertising.
As relevant to its Lanham Act claim, Static Control alleged two types of false or misleading
conduct by Lexmark. First, it alleged that through its Prebate program Lexmark “purposefully
misleads end-users” to believe that they are legally bound by the Prebate terms and are thus
required to return the Prebate-labeled cartridge to Lexmark after a single use. App. 31, ¶ 39.
Second, it alleged that upon introducing the Prebate program, Lexmark “sent letters to most of the
companies in the toner cartridge remanufacturing business” falsely advising those companies that it
was illegal to sell refurbished Prebate cartridges and, in particular, that it was illegal to use Static
Control's products to refurbish those cartridges. Id., at 29, ¶ 35. Static Control asserted that by
those statements, Lexmark had materially misrepresented “the nature, characteristics, and qualities”
of both its own products and Static Control's products. Id., at 43–44, ¶ 85. It further maintained that
Lexmark's misrepresentations had “proximately caused and [we]re likely to cause injury to [Static
Control] by diverting sales from [Static Control] to Lexmark,” and had “substantially injured [its]
business reputation” by “leading consumers and others in the trade to believe that [Static Control]
is engaged in illegal conduct.” Id., at 44, ¶ 88. Static Control sought treble damages, attorney's fees
and costs, and injunctive relief.FN1
FN1. Lexmark contends that Static Control's allegations failed to describe “commercial
advertising or promotion” within the meaning of 15 U.S.C. § 1125(a)(1)(B). That question
is not before us, and we express no view on it. We assume without deciding that the
communications alleged by Static Control qualify as commercial advertising or promotion.
The District Court granted Lexmark's motion to dismiss Static Control's Lanham Act claim. It
held that Static Control lacked “prudential standing” to bring that claim, App. to Pet. for Cert. 83,
relying on a multifactor balancing test it attributed to Associated Gen. Contractors of Cal., Inc. v.
Carpenters, 459 U.S. 519 (1983). The court emphasized that there were “more direct plaintiffs in
the form of remanufacturers of Lexmark's cartridges”; that Static Control's injury was “remot[e]”
because it was a mere “byproduct of the supposed manipulation of consumers' relationships with
remanufacturers”; and that Lexmark's “alleged intent [was] to dry up spent cartridge supplies at the
remanufacturing level, rather than at [Static Control]'s supply level, making remanufacturers
76

Lexmark's alleged intended target.” App. to Pet. for Cert. 83.
The Sixth Circuit reversed the dismissal of Static Control's Lanham Act claim. 697 F.3d, at
423. Taking the lay of the land, it identified three competing approaches to determining whether a
plaintiff has standing to sue under the Lanham Act. It observed that the Third, Fifth, Eighth, and
Eleventh Circuits all refer to “antitrust standing or the [Associated General Contractors] factors in
deciding Lanham Act standing,” as the District Court had done. Id., at 410 (citing Conte Bros.
Automotive, Inc. v. Quaker State–Slick 50, Inc., 165 F.3d 221, 233–234 (C.A.3 1998); Procter &
Gamble Co. v. Amway Corp., 242 F.3d 539, 562–563 (C.A.5 2001); Gilbert/Robinson, Inc. v.
Carrie Beverage–Missouri, Inc., 989 F.2d 985, 990–991 (C.A.8 1993); Phoenix of Broward, Inc. v.
McDonald's Corp., 489 F.3d 1156, 1162–1164 (C.A.11 2007)). By contrast, “[t]he Seventh, Ninth,
and Tenth [Circuits] use a categorical test, permitting Lanham Act suits only by an actual
competitor.” 697 F.3d, at 410 (citing L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9
F.3d 561, 575 (C.A.7 1993); Waits, supra, at 1108–1109; Stanfield v. Osborne Industries, Inc., 52
F.3d 867, 873 (C.A.10 1995)). And the Second Circuit applies a “‘reasonable interest’ approach,”
under which a Lanham Act plaintiff “has standing if the claimant can demonstrate ‘(1) a reasonable
interest to be protected against the alleged false advertising and (2) a reasonable basis for believing
that the interest is likely to be damaged by the alleged false advertising.’” 697 F.3d, at 410 (quoting
Famous Horse, Inc. v. 5th Avenue Photo Inc., 624 F.3d 106, 113 (C.A.2 2010)). The Sixth Circuit
applied the Second Circuit's reasonable-interest test and concluded that Static Control had standing
because it “alleged a cognizable interest in its business reputation and sales to remanufacturers and
sufficiently alleged that th[o]se interests were harmed by Lexmark's statements to the
remanufacturers that Static Control was engaging in illegal conduct.” 697 F.3d, at 411.
We granted certiorari to decide “the appropriate analytical framework for determining a party's
standing to maintain an action for false advertising under the Lanham Act.” Pet. for Cert. i; 569
U.S. ––––, 133 S.Ct. 2766 (2013).FN2
FN2. Other aspects of the parties' sprawling litigation, including Lexmark's claims under
federal copyright and patent law and Static Control's claims under federal antitrust and
North Carolina unfair-competition law, are not before us. Our review pertains only to Static
Control's Lanham Act claim.
II. “Prudential Standing”
The parties' briefs treat the question on which we granted certiorari as one of “prudential
standing.” Because we think that label misleading, we begin by clarifying the nature of the question
at issue in this case.
From Article III's limitation of the judicial power to resolving “Cases” and “Controversies,”
and the separation-of-powers principles underlying that limitation, we have deduced a set of
requirements that together make up the “irreducible constitutional minimum of standing.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). The plaintiff must have suffered or be imminently
threatened with a concrete and particularized “injury in fact” that is fairly traceable to the
challenged action of the defendant and likely to be redressed by a favorable judicial decision. Ibid.
Lexmark does not deny that Static Control's allegations of lost sales and damage to its business
reputation give it standing under Article III to press its false-advertising claim, and we are satisfied
77

that they do.
Although Static Control's claim thus presents a case or controversy that is properly within
federal courts' Article III jurisdiction, Lexmark urges that we should decline to adjudicate Static
Control's claim on grounds that are “prudential,” rather than constitutional. That request is in some
tension with our recent reaffirmation of the principle that “a federal court's ‘obligation’ to hear and
decide” cases within its jurisdiction “is ‘virtually unflagging.’” Sprint Communications, Inc. v.
Jacobs, 571 U.S. ––––, ––––, 134 S.Ct. 584, 591 (2013) (quoting Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). In recent decades, however, we
have adverted to a “prudential” branch of standing, a doctrine not derived from Article III and “not
exhaustively defined” but encompassing (we have said) at least three broad principles: “‘the
general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication
of generalized grievances more appropriately addressed in the representative branches, and the
requirement that a plaintiff's complaint fall within the zone of interests protected by the law
invoked.’” Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Allen v.
Wright, 468 U.S. 737, 751 (1984)).
Lexmark bases its “prudential standing” arguments chiefly on Associated General Contractors,
but we did not describe our analysis in that case in those terms. Rather, we sought to “ascertain,” as
a matter of statutory interpretation, the “scope of the private remedy created by” Congress in § 4 of
the Clayton Act, and the “class of persons who [could] maintain a private damages action under”
that legislatively conferred cause of action. 459 U.S., at 529, 532. We held that the statute limited
the class to plaintiffs whose injuries were proximately caused by a defendant's antitrust violations.
Id., at 532–533. Later decisions confirm that Associated General Contractors rested on statutory,
not “prudential,” considerations. See, e.g., Holmes v. Securities Investor Protection Corporation,
503 U.S. 258, 265–268 (1992) (relying on Associated General Contractors in finding a proximatecause requirement in the cause of action created by the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1964(c)); Anza v. Ideal Steel Supply Corp., 547 U.S. 451,
456 (2006) (affirming that Holmes “relied on a careful interpretation of § 1964(c)”). Lexmark's
arguments thus do not deserve the “prudential” label.
Static Control, on the other hand, argues that we should measure its “prudential standing” by
using the zone-of-interests test. Although we admittedly have placed that test under the
“prudential” rubric in the past, see, e.g., Elk Grove, supra, at 12, it does not belong there any more
than Associated General Contractors does. Whether a plaintiff comes within “the ‘zone of
interests' ” is an issue that requires us to determine, using traditional tools of statutory
interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff's
claim. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 97, and n. 2 (1998); Clarke v.
Securities Industry Assn., 479 U.S. 388, 394–395 (1987); Holmes, supra, at 288 (SCALIA, J.,
concurring in judgment). As Judge Silberman of the D.C. Circuit recently observed, “ ‘prudential
standing’ is a misnomer” as applied to the zone-of-interests analysis, which asks whether “this
particular class of persons ha[s] a right to sue under this substantive statute.” Association of Battery
Recyclers, Inc. v. EPA, 716 F.3d 667, 675–676 (2013) (concurring opinion).FN3
FN3. The zone-of-interests test is not the only concept that we have previously classified as
an aspect of “prudential standing” but for which, upon closer inspection, we have found that
78

label inapt. Take, for example, our reluctance to entertain generalized grievances—i.e., suits
“claiming only harm to [the plaintiff's] and every citizen's interest in proper application of
the Constitution and laws, and seeking relief that no more directly and tangibly benefits him
than it does the public at large.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–574
(1992). While we have at times grounded our reluctance to entertain such suits in the
“counsels of prudence” (albeit counsels “close[ly] relat[ed] to the policies reflected in”
Article III), Valley Forge Christian College v. Americans United for Separation of Church
and State, Inc., 454 U.S. 464, 475 (1982), we have since held that such suits do not present
constitutional “cases” or “controversies.” See, e.g., Lance v. Coffman, 549 U.S. 437, 439
(2007) (per curiam ); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344–346 (2006);
Defenders of Wildlife, supra, at 573–574. They are barred for constitutional reasons, not
“prudential” ones. The limitations on third-party standing are harder to classify; we have
observed that third-party standing is “‘closely related to the question whether a person in
the litigant's position will have a right of action on the claim,’” Department of Labor v.
Triplett, 494 U.S. 715, 721, n. ** (1990) (quoting Warth v. Seldin, 422 U.S. 490, 500, n. 12
(1975)), but most of our cases have not framed the inquiry in that way. See, e.g., Kowalski
v. Tesmer, 543 U.S. 125, 128–129 (2004) (suggesting it is an element of “prudential
standing”). This case does not present any issue of third-party standing, and consideration
of that doctrine's proper place in the standing firmament can await another day.
In sum, the question this case presents is whether Static Control falls within the class of
plaintiffs whom Congress has authorized to sue under § 1125(a). In other words, we ask whether
Static Control has a cause of action under the statute.FN4 That question requires us to determine the
meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply
traditional principles of statutory interpretation. We do not ask whether in our judgment Congress
should have authorized Static Control's suit, but whether Congress in fact did so. Just as a court
cannot apply its independent policy judgment to recognize a cause of action that Congress has
denied, see Alexander v. Sandoval, 532 U.S. 275, 286–287 (2001), it cannot limit a cause of action
that Congress has created merely because “prudence” dictates.
FN4. We have on occasion referred to this inquiry as “statutory standing” and treated it as
effectively jurisdictional. See, e.g., Steel Co. v. Citizens for Better Environment, 523 U.S.
83, 97, and n. 2 (1998); cases cited id., at 114–117 (Stevens, J., concurring in judgment).
That label is an improvement over the language of “prudential standing,” since it correctly
places the focus on the statute. But it, too, is misleading, since “the absence of a valid (as
opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the
court's statutory or constitutional power to adjudicate the case.' ” Verizon Md. Inc. v. Public
Serv. Comm'n of Md., 535 U.S. 635, 642–643 (2002) (quoting Steel Co., supra, at 89); see
also Grocery Mfrs. Assn. v. EPA, 693 F.3d 169, 183–185 (Kavanaugh, J., dissenting), and
cases cited therein; Pathak, Statutory Standing and the Tyranny of Labels, 62 Okla. L.Rev.
89, 106 (2009).
III. Static Control's Right To Sue Under § 1125(a)
Thus, this case presents a straightforward question of statutory interpretation: Does the cause of
action in § 1125(a) extend to plaintiffs like Static Control? The statute authorizes suit by “any
person who believes that he or she is likely to be damaged” by a defendant's false advertising.
79

§ 1125(a)(1). Read literally, that broad language might suggest that an action is available to anyone
who can satisfy the minimum requirements of Article III. No party makes that argument, however,
and the “unlikelihood that Congress meant to allow all factually injured plaintiffs to recover
persuades us that [§ 1125(a)] should not get such an expansive reading.” Holmes, 503 U.S., at 266
(footnote omitted). We reach that conclusion in light of two relevant background principles already
mentioned: zone of interests and proximate causality.
A. Zone of Interests
First, we presume that a statutory cause of action extends only to plaintiffs whose interests “fall
within the zone of interests protected by the law invoked.” Allen, 468 U.S., at 751. The modern
“zone of interests” formulation originated in Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150 (1970), as a limitation on the cause of action for judicial
review conferred by the Administrative Procedure Act (APA). We have since made clear, however,
that it applies to all statutorily created causes of action; that it is a “requirement of general
application”; and that Congress is presumed to “legislat[e] against the background of” the zone-ofinterests limitation, “which applies unless it is expressly negated.” Bennett v. Spear, 520 U.S. 154,
163 (1997); see also Holmes, supra, at 287–288 (SCALIA, J., concurring in judgment). It is
“perhaps more accurat[e],” though not very different as a practical matter, to say that the limitation
always applies and is never negated, but that our analysis of certain statutes will show that they
protect a more-than-usually “expan[sive]” range of interests. Bennett, supra, at 164. The zone-ofinterests test is therefore an appropriate tool for determining who may invoke the cause of action in
§ 1125(a). FN5
FN5. Although we announced the modern zone-of-interests test in 1971, its roots lie in the
common-law rule that a plaintiff may not recover under the law of negligence for injuries
caused by violation of a statute unless the statute “is interpreted as designed to protect the
class of persons in which the plaintiff is included, against the risk of the type of harm which
has in fact occurred as a result of its violation.” W. Keeton, D. Dobbs, R. Keeton, &
D. Owen, Prosser and Keeton on Law of Torts § 36, pp. 229–230 (5th ed. 1984); see cases
cited id., at 222–227; Gorris v. Scott, [1874] 9 L.R. Exch. 125 (Eng.). Statutory causes of
action are regularly interpreted to incorporate standard common-law limitations on civil
liability—the zone-of-interests test no less than the requirement of proximate causation, see
Part III–B, infra.
We have said, in the APA context, that the test is not “ ‘especially demanding,’ ” Match–E–Be–
Nash–She–Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. ––––, ––––, 132 S.Ct. 2199,
2210 (2012). In that context we have often “conspicuously included the word ‘arguably’ in the test
to indicate that the benefit of any doubt goes to the plaintiff,” and have said that the test “forecloses
suit only when a plaintiff's ‘interests are so marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed that’ ” Congress authorized that plaintiff
to sue. Id., at ––––, 132 S.Ct., at 2210. That lenient approach is an appropriate means of preserving
the flexibility of the APA's omnibus judicial-review provision, which permits suit for violations of
numerous statutes of varying character that do not themselves include causes of action for judicial
review. “We have made clear, however, that the breadth of the zone of interests varies according to
the provisions of law at issue, so that what comes within the zone of interests of a statute for
purposes of obtaining judicial review of administrative action under the ‘“generous review
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provisions”’ of the APA may not do so for other purposes.” Bennett, supra, at 163 (quoting Clarke,
479 U.S., at 400, n. 16, in turn quoting Data Processing, supra, at 156).
Identifying the interests protected by the Lanham Act, however, requires no guesswork, since
the Act includes an “unusual, and extraordinarily helpful,” detailed statement of the statute's
purposes. H.B. Halicki Productions v. United Artists Communications, Inc., 812 F.2d 1213, 1214
(C.A.9 1987). Section 45 of the Act, codified at 15 U.S.C. § 1127, provides:
“The intent of this chapter is to regulate commerce within the control of Congress by making
actionable the deceptive and misleading use of marks in such commerce; to protect registered
marks used in such commerce from interference by State, or territorial legislation; to protect
persons engaged in such commerce against unfair competition; to prevent fraud and deception in
such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of
registered marks; and to provide rights and remedies stipulated by treaties and conventions
respecting trademarks, trade names, and unfair competition entered into between the United
States and foreign nations.”
Most of the enumerated purposes are relevant to false-association cases; a typical falseadvertising case will implicate only the Act's goal of “protect [ing] persons engaged in [commerce
within the control of Congress] against unfair competition.” Although “unfair competition” was a
“plastic” concept at common law, Ely–Norris Safe Co. v. Mosler Safe Co., 7 F.2d 603, 604 (C.A.2
1925) (L. Hand, J.), it was understood to be concerned with injuries to business reputation and
present and future sales. See Rogers, Book Review, 39 Yale L.J. 297, 299 (1929); see generally
3 Restatement of Torts, ch. 35, Introductory Note, pp. 536–537 (1938).
We thus hold that to come within the zone of interests in a suit for false advertising under
§ 1125(a), a plaintiff must allege an injury to a commercial interest in reputation or sales. A
consumer who is hoodwinked into purchasing a disappointing product may well have an injury-infact cognizable under Article III, but he cannot invoke the protection of the Lanham Act—a
conclusion reached by every Circuit to consider the question. See Colligan v. Activities Club of
N. Y., Ltd., 442 F.2d 686, 691–692 (C.A.2 1971); Serbin v. Ziebart Int'l Corp., 11 F.3d 1163, 1177
(C.A.3 1993); Made in the USA Foundation v. Phillips Foods, Inc., 365 F.3d 278, 281 (C.A.4
2004); Procter & Gamble Co., 242 F.3d, at 563–564; Barrus v. Sylvania, 55 F.3d 468, 470 (C.A.9
1995); Phoenix of Broward, 489 F.3d, at 1170. Even a business misled by a supplier into
purchasing an inferior product is, like consumers generally, not under the Act's aegis.
* * * *
To invoke the Lanham Act's cause of action for false advertising, a plaintiff must plead (and
ultimately prove) an injury to a commercial interest in sales or business reputation proximately
caused by the defendant's misrepresentations. Static Control has adequately pleaded both elements.
The judgment of the Court of Appeals is affirmed.
It is so ordered.

81

NATIONAL PARK HOSPITALITY ASSOCIATION
v. DEPARTMENT OF THE INTERIOR
538 U.S. 803 (2003)
Justice THOMAS delivered the opinion of the Court.
Petitioner, a nonprofit trade association that represents concessioners doing business in the national
parks, challenges a National Park Service (NPS) regulation that purports to render the Contract
Disputes Act of 1978 (CDA), 92 Stat. 2383, 41 U.S.C. § 601 et seq., inapplicable to concession
contracts. We conclude that the controversy is not yet ripe for judicial resolution.
I
The CDA establishes rules governing disputes arising out of certain Government contracts. [FN1]
The statute provides that these disputes first be submitted to an agency's contracting officer. § 605.
A Government contractor dissatisfied with the contracting officer's decision may seek review either
from the United States Court of Federal Claims or from an administrative board in the agency. See
§§ 606, 607(d), 609(a). Either decision may then be appealed to the United States Court of Appeals
for the Federal Circuit. [FN2] See 28 U.S.C. § 1295; 41 U.S.C. § 607(g).
FN1. Title 41 U.S.C. § 602(a) provides:
"Unless otherwise specifically provided herein, this chapter applies to any express or implied
contract (including those of the nonappropriated fund activities described in sections 1346
and 1491 of title 28) entered into by an executive agency for-"(1) the procurement of property, other than real property in being;
"(2) the procurement of services;
"(3) the procurement of construction, alteration, repair or maintenance of real property; or,
"(4) the disposal of personal property."
FN2. The CDA also provides that a prevailing contractor is entitled to prejudgment interest.
§ 611.
Since 1916 Congress has charged NPS to "promote and regulate the use of the Federal areas known
as national parks," "conserve the scenery and the natural and historic objects and the wild life
therein," and "provide for [their] enjoyment [in a way that] will leave them unimpaired for the
enjoyment of future generations." An Act To establish a National Park Service, 39 Stat. 535, 16
U.S.C. § 1. To make visits to national parks more enjoyable for the public, Congress authorized
NPS to "grant privileges, leases, and permits for the use of land for the accommodation of visitors."
§ 3, 39 Stat. 535. Such "privileges, leases, and permits" have become embodied in national parks
concession contracts.
The specific rules governing national parks concession contracts have changed over time. In 1998,
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however, Congress enacted the National Parks Omnibus Management Act of 1998 (1998 Act or
Act), Pub. L. 105-391, 112 Stat. 3497 (codified with certain exceptions in 16 U.S.C. §§ 5951-5966),
establishing a new and comprehensive concession management program for national parks. The
1998 Act authorizes the Secretary of the Interior to enact regulations implementing the Act's
provisions, § 5965.
NPS, to which the Secretary has delegated her authority under the 1998 Act, promptly began a
rulemaking proceeding to implement the Act. After notice and comment, final regulations were
issued in April 2000. 65 Fed. Reg. 20630 (2000) (codified in 36 CFR pt. 51). The regulations define
the term "concession contract" as follows:
"A concession contract (or contract) means a binding written agreement between the Director and
a concessioner .... Concession contracts are not contracts within the meaning of 41 U.S.C. 601 et
seq. (the Contract Disputes Act) and are not service or procurement contracts within the meaning
of statutes, regulations or policies that apply only to federal service contracts or other types of
federal procurement actions." [FN3] 36 CFR § 51.3 (2002).
FN3. For ease of reference, throughout this opinion we will refer to the second sentence
quoted in the text as § 51.3.
Through this provision NPS took a position with respect to a longstanding controversy with the
Department of Interior's Board of Contract Appeals (IBCA). Beginning in 1989, the IBCA ruled that
NPS concession contracts were subject to the CDA, see R & R Enterprises, 89-2 B.C.A., ¶ 21708,
pp. 109145-109147 (1989), and subsequent attempts by NPS to convince the IBCA otherwise proved
unavailing, National Park Concessions, Inc., 94-3 B.C.A., ¶ 27104, pp. 135096-135098 (1994).
II
Petitioner challenged the validity of § 51.3 in the District Court for the District of Columbia. Amfac
Resorts, L.L.C. v. United States Dept. of Interior, 142 F.Supp.2d 54, 80-82 (2001). The District
Court upheld the regulation, applying the deference principle of Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). The court concluded that the CDA is
ambiguous on whether it applies to concession contracts and found NPS' interpretation of the CDA
reasonable. 142 F.Supp.2d, at 80-82.
The Court of Appeals for the District of Columbia Circuit affirmed, albeit on different grounds.
Amfac Resorts, L.L.C. v. United States Dept. of Interior, 282 F.3d 818, 834-835 (2002). Recognizing
that NPS "does not administer the [CDA], and thus may not have interpretative authority over its
provisions," the court placed no reliance on Chevron but simply "agree [d]" with NPS' reading of the
CDA, finding that reading consistent with both the CDA and the 1998 Act. 282 F.3d, at 835. We
granted certiorari to consider whether the CDA applies to contracts between NPS and concessioners
in the national parks. 537 U.S. 1018 (2002). Because petitioner has brought a facial challenge to
the regulation and is not litigating any concrete dispute with NPS, we asked the parties to provide
83

supplemental briefing on whether the case is ripe for judicial action. Tr. of Oral Arg. 62.
III
Ripeness is a justiciability doctrine designed "to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements over administrative policies, and
also to protect the agencies from judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v.
Gardner, 387 U.S. 136, 148-149 (1967); accord, Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S.
726, 732-733 (1998). The ripeness doctrine is "drawn both from Article III limitations on judicial
power and from prudential reasons for refusing to exercise jurisdiction," Reno v. Catholic Social
Services, Inc., 509 U.S. 43, 57, n.18 (1993) (citations omitted), but, even in a case raising only
prudential concerns, the question of ripeness may be considered on a court's own motion. Ibid.
(citing Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974)).
Determining whether administrative action is ripe for judicial review requires us to evaluate (1) the
fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court
consideration. Abbott Laboratories, supra, at 149. "Absent [a statutory provision providing for
immediate judicial review], a regulation is not ordinarily considered the type of agency action 'ripe'
for judicial review under the [Administrative Procedure Act (APA)] until the scope of the
controversy has been reduced to more manageable proportions, and its factual components fleshed
out, by some concrete action applying the regulation to the claimant's situation in a fashion that
harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a
practical matter requires the plaintiff to adjust his conduct immediately ... .)" Lujan v. National
Wildlife Federation, 497 U.S. 871, 891 (1990). Under the facts now before us, we conclude this case
is not ripe.
We turn first to the hardship inquiry. The federal respondents concede that, because NPS has no
delegated rulemaking authority under the CDA, the challenged portion of § 51.3 cannot be a
legislative regulation with the force of law. * * * * They note, though, that "agencies may issue
interpretive rules 'to advise the public of the agency's construction of the statutes and rules which it
administers,'" Brief for Federal Respondents 15, n. 6 (quoting Shalala v. Guernsey Memorial
Hospital, 514 U.S. 87, 99 (1995)) (emphasis added), and seek to characterize § 51.3 as such an
interpretive rule.
We disagree. Unlike in Guernsey Memorial Hospital, where the agency issuing the interpretative
guideline was responsible for administering the relevant statutes and regulations, NPS is not
empowered to administer the CDA. Rather, the task of applying the CDA rests with agency
contracting officers and boards of contract appeals, as well as the Federal Court of Claims, the Court
of Appeals for the Federal Circuit, and, ultimately, this Court. Moreover, under the CDA, any
authority regarding the proper arrangement of agency boards belongs to the Administrator for
Federal Procurement Policy. See 41 U.S.C. § 607(h) ("Pursuant to the authority conferred under the
Office of Federal Procurement Policy Act [41 U.S.C. § 401 et seq.], the Administrator is authorized
84

and directed, as may be necessary or desirable to carry out the provisions of this chapter, to issue
guidelines with respect to criteria for the establishment, functions, and procedures of the agency
boards ..."). Consequently, we consider § 51.3 to be nothing more than a "general statemen[t] of
policy" designed to inform the public of NPS' views on the proper application of the CDA. 5 U.S.C.
§ 553(b)(3)(A).
Viewed in this light, § 51.3 does not create "adverse effects of a strictly legal kind," which we have
previously required for a showing of hardship. Ohio Forestry Assn., Inc., 523 U.S., at 733. Just like
the Forest Service plan at issue in Ohio Forestry, § 51.3 "do[es] not command anyone to do anything
or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any formal legal license,
power, or authority; [it] do[es] not subject anyone to any civil or criminal liability; [and it] create[s]
no legal rights or obligations." Ibid.
Moreover, § 51.3 does not affect a concessioner's primary conduct. Toilet Goods Assn., Inc. v.
Gardner, 387 U.S. 158, 164 (1967); Ohio Forestry Assn., supra, at 733-734. Unlike the regulation
at issue in Abbott Laboratories, which required drug manufacturers to change the labels,
advertisements, and promotional materials they used in marketing prescription drugs on pain of
criminal and civil penalties, see 387 U.S., at 152-153, the regulation here leaves a concessioner free
to conduct its business as it sees fit. See also Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171
(1967) (regulations governing conditions for use of color additives in foods, drugs, and cosmetics
were "self-executing" and had "an immediate and substantial impact upon the respondents").
We have previously found that challenges to regulations similar to § 51.3 were not ripe for lack of
a showing of hardship. In Toilet Goods Assn., for example, the Food and Drug Administration
(FDA) issued a regulation requiring producers of color additives to provide FDA employees with
access to all manufacturing facilities, processes, and formulae. 387 U.S., at 161-162. We concluded
the case was not ripe for judicial review because the impact of the regulation could not "be said to
be felt immediately by those subject to it in conducting their day-to-day affairs" and "no
irremediabl[y] adverse consequences flow[ed] from requiring a later challenge." Id., at 164. Indeed,
the FDA regulation was more onerous than § 51.3 because failure to comply with it resulted in the
suspension of the producer's certification and, consequently, could affect production. See id., at 165,
and n.2. Here, by contrast, concessioners suffer no practical harm as a result of § 51.3. All the
regulation does is announce the position NPS will take with respect to disputes arising out of
concession contracts. While it informs the public of NPS' view that concessioners are not entitled
to take advantage of the provisions of the CDA, nothing in the regulation prevents concessioners
from following the procedures set forth in the CDA once a dispute over a concession contract
actually arises. And it appears that, notwithstanding § 51.3, the IBCA has been quite willing to apply
the CDA to certain concession contracts. Watch Hill Concessions, Inc., 01-1 B.C.A., ¶ 31298,
pp. 154520-154521 (IBCA 2001) (concluding that concession contract was subject to the CDA
despite the contrary language in § 51.3).
Petitioner contends that delaying judicial resolution of this issue will result in real harm because
the applicability vel non of the CDA is one of the factors a concessioner takes into account when
85

preparing its bid for NPS concession contracts. * * * * Petitioner's argument appears to be that mere
uncertainty as to the validity of a legal rule constitutes a hardship for purposes of the ripeness
analysis. We are not persuaded. If we were to follow petitioner's logic, courts would soon be
overwhelmed with requests for what essentially would be advisory opinions because most business
transactions could be priced more accurately if even a small portion of existing legal uncertainties
were resolved. [FN4] In short, petitioner has failed to demonstrate that deferring judicial review will
result in real hardship.
FN4. Petitioner notes that its complaint challenged not only the regulation but also two
specific prospectuses issued by NPS in late 2000. Thus, petitioner argues, even if the first
challenge is not ripe, the latter two are reviewable under the Tucker Act, 28 U.S.C.
§ 1491(b)(1). * * * * Petitioner did not seek certiorari review on these issues; accordingly,
we decline to consider them. See this Court's Rule 14.1(a); Yee v. Escondido, 503 U.S. 519,
535-536 (1992).
Similarly, Justice BREYER's reliance on the Tucker Act to show that the hardship
requirement of Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), has been satisfied,
* * * is misplaced. The fact that one "congressional statute" authorizes "immediate judicial
relief from [certain types of] agency determinations," ibid., says nothing about whether
"immediate judicial review" is advisable for challenges brought against other types of agency
actions based on a different statute.
We consider next whether the issue in this case is fit for review. Although the question presented
here is "a purely legal one" and § 51.3 constitutes "final agency action" within the meaning of § 10
of the APA, 5 U.S.C. § 704, Abbott Laboratories, supra, at 149, we nevertheless believe that further
factual development would "significantly advance our ability to deal with the legal issues presented,"
Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 82 (1978); accord, Ohio
Forestry Assn., Inc., 523 U.S., at 736-737; Toilet Goods Assn., supra, at 163. While the federal
respondents generally argue that NPS was correct to conclude that the CDA does not cover
concession contracts, they acknowledge that certain types of concession contracts might come under
the broad language of the CDA. * * * * Similarly, while petitioner and respondent Xanterra Parks
& Resorts, LLC, present a facial challenge to § 51.3, both rely on specific characteristics of certain
types of concession contracts to support their positions. * * * In light of the foregoing, we conclude
that judicial resolution of the question presented here should await a concrete dispute about a
particular concession contract.
***
For the reasons stated above, we vacate the judgment of the Court of Appeals insofar as it addressed
the validity of § 51.3 and remand with instructions to dismiss the case with respect to this issue.
It is so ordered.

86

Justice STEVENS, concurring in the judgment.
Petitioner seeks this Court's resolution of the straightforward legal question whether the Contract
Disputes Act of 1978 (CDA), 41 U.S.C. § 601 et seq., applies to concession contracts with the
National Park Service. Though this question is one that would otherwise be appropriate for this
Court to decide, in my view petitioner has not satisfied the threshold requirement of alleging
sufficient injury to invoke federal-court jurisdiction. If such allegations of injury were present,
however, this case would not raise any of the concerns that the ripeness doctrine was designed to
avoid.
I
The CDA provides certain significant protections for private parties contracting with federal
agencies. It authorizes de novo review of a contractor's disputed decision, payment of prejudgment
interest if a dispute with the agency is resolved in the contractor's favor, and expedited procedures
for resolving minor disputes. §§ 607-612. The value to contractors of these protections have not
been quantified in this case, but they are unquestionably significant.
Ever since the enactment of the CDA in 1978, the National Park Service has insisted that the statute
does not apply to contracts with concessionaires who operate restaurants, lodges, and gift shops in
the national parks. See, e.g., Lodging of Federal Respondents 1. In its view, the statute applies to
Government contracts involving the procurement of goods or services that the Government agrees
to pay for, not to licenses issued by the Government to concessionaires who sell goods and services
to the public. After the enactment of the National Parks Omnibus Management Act of 1998, 16
U.S.C. §§ 5951-5966, the Park Service issued a regulation restating that position. 36 CFR § 51.3
(2002). There is nothing tentative or inconclusive about the agency's position. The promulgation
of the regulation indicated that the agency had determined that a clear statement of its interpretation
of the CDA would be useful to potential concessionaires bidding for future contracts. Under the
Park Service's view, nearly 600 concession contracts in 131 national parks fall outside of the CDA.
Lodging of Federal Respondents 6.
Petitioner is a trade association whose members are parties to such contracts and periodically enter
into negotiations for future contracts. They are undisputedly interested in knowing whether disputes
that are sure to arise under some of those contracts will be resolved pursuant to the CDA procedures
or the less favorable procedures that will apply if the Park Service regulation is valid.
II
In our leading case discussing the "ripeness doctrine" we explained that the question whether a
controversy is "ripe" for judicial resolution has a "twofold aspect, requiring us to evaluate both the
fitness of the issues for judicial decision and the hardship to the parties of withholding court
consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967). Both aspects of the
inquiry involve the exercise of judgment, rather than the application of a black-letter rule.
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The first aspect is the more important and it is satisfied in this case. The CDA applies to any
express or implied contract for the procurement of property, services, or construction. 41 U.S.C.
§ 602(a). In the view of the Park Service, a procurement contract is one that obligates the
Government to pay for goods and services that it receives, whereas concession contracts authorize
third parties to provide services to park area visitors. Petitioner, on the other hand, argues that the
contracts provide for the performance of services that discharge a public duty even though the
Government does not pay the concessionaires. Whichever view may better reflect the intent of the
Congress that enacted the CDA, it is perfectly clear that this question of statutory interpretation is
as "fit" for judicial decision today as it will ever be. Even if there may be a few marginal cases in
which the applicability of the CDA may depend on unique facts, the regulation's blanket exclusion
of concession contracts is either a correct or an incorrect interpretation of the statute. The issue has
been fully briefed and argued and, in my judgment, is ripe for decision.
The second aspect of the ripeness inquiry is less clear and less important. If there were reason to
believe that further development of the facts would clarify the legal question, or that the agency's
view was tentative or apt to be modified, only a strong showing of hardship to the parties would
justify a prompt decision. In this case, it is probably correct that the hardship associated with a
delayed decision is minimal. On the other hand, as the Park Service's decision to promulgate the
regulation demonstrates, eliminating the present uncertainty about the applicable dispute resolution
procedures will provide a benefit for all interested parties. If petitioner had alleged sufficient injury
arising from the Park Service's position, I would favor the exercise of our discretion to consider the
case ripe for decision. Because such an allegation of injury is absent, however, petitioner does not
have standing to have this claim adjudicated.
III
To establish an Article III case or controversy, a litigant must establish that he has "standing."
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). To have standing, a "plaintiff must allege personal
injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the
requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984). This requirement specifically applies
to parties challenging the validity of administrative regulations. See Sierra Club v. Morton, 405 U.S.
727, 735 (1972).
In the complaint filed in the District Court, petitioner alleged that the resolution of the merits of its
dispute over the validity of the Park Service regulation was important, but it failed to allege that the
existence of the regulation had caused any injury to it or to its members:
"The applicability of the CDA to concession contracts is important to concessioners because NPS
concession contracts are of lengthy duration, often require significant upfront financial
commitments, and by their terms provide the agency with broad unilateral discretion to alter many
aspects of those contracts over time. The unlawful decision by the NPS to exempt itself from the
CDA is thus of great importance to the contract solicitation process." App. 22.

88

At oral argument, counsel reiterated that the resolution of this question was "important" and that
concessionaires "need to know now, in terms of deciding whether to bid on certain contracts, what
their rights are under those contracts." Tr. of Oral Arg. 7-8. After argument, when asked to brief
the issue of ripeness, petitioner stated that its members "need to know before a dispute arises--and
in fact, before deciding whether to bid on a concessions contract--what procedural mechanisms will
apply to contractual disputes," and that "the prices at which concessioners 'compete for Government
contract business' would be directly affected." Supplemental Brief for Petitioner 1, 5 (citations
omitted). It is fair to infer from the record before us, however, that petitioner's members have bid
on, and been awarded, numerous contracts without having the benefit of a definitive answer to the
important legal question that their complaint has identified.
Neither in its complaint in the District Court, nor in its briefing or argument before this Court, has
petitioner identified a specific incident in which the Park Service's regulation caused a
concessionaire to refuse to bid on a contract, to modify its bid, or to suffer any other specific injury.
Rather, petitioner has focused entirely on the importance of knowing whether the Park Service's
position is valid. While it is no doubt important for petitioner and its members to know as much as
possible about the future of their business transactions, importance does not necessarily establish
injury. Though some of petitioner's members may well have suffered some sort of injury from the
Park Service's regulation, neither the allegations of the complaint nor the evidence in the record
identifies any specific injury that would be redressed by a favorable decision on the merits of the
case. Accordingly, petitioner has no standing to pursue its claim.
For this reason, I concur in the Court's judgment.
Justice BREYER, with whom JUSTICE O'CONNOR joins, dissenting.
Like the majority, I believe that petitioner National Park Hospitality Association has standing here
to pursue its legal claim, namely, that the dispute resolution procedures set forth in the Contract
Disputes Act of 1978 (CDA), 41 U.S.C. § 601 et seq., apply to national park concession contracts.
But, unlike the majority, I believe that the question is ripe for our consideration.
I cannot agree with Justice STEVENS that the trade association lacks Article III standing to bring
suit on behalf of its members. * * * * In my view, the National Park Service's definition of
"concession contract" to exclude the CDA's protections (a definition embodied in the regulation
about which the Association complains, see 36 CFR § 51.3 (2002)) causes petitioner and its
members "injury in fact." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (discussing
requirements of "injury in fact," causation, and redressability); see also Hunt v. Washington State
Apple Advertising Comm'n, 432 U.S. 333, 343 (1977) (association's standing based on injury to a
member).
For one thing, many of petitioner's members are parties to, as well as potential bidders for, park
concession contracts. Lodging for Federal Respondents 6 (listing 590 concession contracts in 131
parks). Those members will likely find that disputes arise under the contracts. And in resolving
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such disputes, the Park Service, following its regulation, will reject the concessioners' entitlement
to the significant protections or financial advantages that the CDA provides. See 41 U.S.C. §§ 605612; ante, at 2033 (STEVENS, J., concurring in judgment). In the circumstances present here, that
kind of injury, though a future one, is concrete and likely to occur.
For another thing, the challenged Park Service interpretation causes a present injury. If the CDA
does not apply to concession contract disagreements, as the Park Service regulation declares, then
some of petitioner's members must plan now for higher contract implementation costs. Given the
agency's regulation, bidders will likely be forced to pay more to obtain, or to retain, a concession
contract than they believe the contract is worth. That is what the Association argues. * * * *
Certain general allegations in the underlying complaints support this claim. * * * * And several
uncontested circumstances indicate that such allegations are likely to prove true.
First, as the record makes clear, the trade association has a widespread membership, and many of
its members regularly bid on contracts that, through cross-references to the Park Service regulation,
embody the Park Service's interpretation. * * * * Second, related contract solicitations are similarly
widespread and recurring, involving numerous bidders. Third, after investigation, the relevant
congressional committee found that the "way potential contractors view the disputes-resolving
system influences how, whether, and at what prices they compete for government contract business."
S. Rep. No. 95-1118, p. 4 (1978), U.S. Code Cong. & Admin. News 1978, pp. 5235, 5238. Fourth,
the CDA provides a prevailing contractor with prejudgment interest, and authorizes expedited
procedures. 41 U.S.C. §§ 607(f), 608, 611. These are factors that make the inapplicability of the
CDA more costly to successful bidders. See S. Rep. No. 95-1118, at 2-4; ante, at 2032-2033
(STEVENS, J., concurring in judgment).
These circumstances make clear that petitioner's members will likely suffer a concrete monetary
harm, either now or in the foreseeable future. Such a showing here is sufficient to satisfy the
Constitution's standing requirements. And the threatened injuries, present and future--monetary
harm, injuries to a potential or actual contractual relationship, and injuries that arguably fall within
the CDA's protective scope--are sufficient to satisfy "prudential" standing requirements as well. See
Federal Election Comm'n v. Akins, 524 U.S. 11, 19-20 (1998); Association of Data Processing
Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970). Cf. Columbia Broadcasting System,
Inc. v. United States, 316 U.S. 407, 421-422 (1942).
Given this threat of immediate concrete harm (primarily in the form of increased bidding costs),
this case is also ripe for judicial review. As Justice STEVENS explains in Parts I and II of his
opinion, the case now presents a legal issue--the applicability of the CDA to concession contracts
--that is fit for judicial determination. That issue is a purely legal one, demanding for its resolution
only use of ordinary judicial interpretive techniques. * * * * The relevant administrative action, i.e.,
the agency's definition of "concession contract" under the National Parks Omnibus Management Act
of 1998, 16 U.S.C. §§ 5951-5966, has been "formalized," Abbott Laboratories v. Gardner, 387 U.S.
136, 148 (1967). It is embodied in an interpretive regulation issued after notice and public comment
and pursuant to the Department of the Interior's formal delegation to the National Park Service of
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its own statutorily granted rulemaking authority, § 5965; ante, at 2029. (Unlike the majority, I would
apply to the regulation the legal label "interpretive rule," not "general statement of policy," ante, at
2031 (internal quotation marks and alteration omitted), though I agree with the majority that, because
the Park Service does not administer the CDA, see ante, at 2031, we owe its conclusion less
deference.) The Park Service's interpretation is definite and conclusive, not tentative or likely to
change; as the majority concedes, the Park Service's determination constitutes "final agency action"
within the meaning of the Administrative Procedure Act. Ante, at 2032 (internal quotation marks
omitted).
The only open question concerns the nature of the harm that refusing judicial review at this time
will cause the Association's members. See Abbott Laboratories, supra, at 149. The fact that
concessioners can raise the legal question at a later time, after a specific contractual dispute arises,
see ante, at 2032, militates against finding this case ripe. So too does a precedential concern: Will
present review set a precedent that leads to premature challenges in other cases where agency
interpretations may be less formal, less final, or less well suited to immediate judicial determination?
See ante, at 2032.
But the fact of immediate and particularized (and not totally reparable) injury during the bidding
process offsets the first of these considerations. And the second is more than offset by a related
congressional statute that specifies that prospective bidders for Government contracts can obtain
immediate judicial relief from agency determinations that unlawfully threaten precisely this kind of
harm. See 28 U.S.C. § 1491(b)(1) (allowing prospective bidder to object, for instance, to
"solicitation by a Federal agency for bids ... for a proposed contract" and permitting review of related
allegation of "any ... violation of statute or regulation in connection with a procurement or a
proposed procurement"). See also R. Nash, S. Schooner, & K. O'Brien, The Government Contracts
Reference Book 308, 423 (2d ed. 1998). This statute authorizes a potential bidder to complain of
a proposed contractual term that, in the bidder's view, is unlawful, say, because it formally
incorporates a regulation that embodies a specific, allegedly unlawful, remedial requirement. * * * *
That being so, i.e., the present injury in such a case being identical to the present injury at issue here,
I can find no convincing prudential reason to withhold Administrative Procedure Act review.
In sum, given this congressional policy, the concrete nature of the injury asserted by petitioner, and
the final nature of the agency action at issue, I see no good reason to postpone review. I would find
the issue ripe for this Court's consideration. And I would affirm the decision of the Court of Appeals
on the merits, primarily for the reasons set forth in its opinion as supplemented here by the
Government.

91

CITY OF ERIE v. PAP'S A.M.
529 U.S. 277 (2000)
Justice O'CONNOR announced the judgment of the Court and delivered the opinion of the Court
with respect to Parts I and II, and an opinion with respect to Parts III and IV, in which THE CHIEF
JUSTICE, Justice KENNEDY, and Justice BREYER join.
The city of Erie, Pennsylvania, enacted an ordinance banning public nudity. Respondent
Pap's A.M. (hereinafter Pap's), which operated a nude dancing establishment in Erie, challenged the
constitutionality of the ordinance and sought a permanent injunction against its enforcement. The
Pennsylvania Supreme Court, although noting that this Court in Barnes v. Glen Theatre, Inc., 501
U.S. 560 (1991), had upheld an Indiana ordinance that was "strikingly similar" to Erie's, found that
the public nudity sections of the ordinance violated respondent's right to freedom of expression under
the United States Constitution. 553 Pa. 348, 356, 719 A.2d 273, 277 (1998). This case raises the
question whether the Pennsylvania Supreme Court properly evaluated the ordinance's
constitutionality under the First Amendment. We hold that Erie's ordinance is a content-neutral
regulation that satisfies the four-part test of United States v. O'Brien, 391 U.S. 367 (1968).
Accordingly, we reverse the decision of the Pennsylvania Supreme Court and remand for the
consideration of any remaining issues.
I
On September 28, 1994, the city council for the city of Erie, Pennsylvania, enacted Ordinance 751994, a public indecency ordinance that makes it a summary offense to knowingly or intentionally
appear in public in a "state of nudity." * * * Respondent Pap's, a Pennsylvania corporation, operated
an establishment in Erie known as "Kandyland" that featured totally nude erotic dancing performed
by women. To comply with the ordinance, these dancers must wear, at a minimum, "pasties" and a
"G-string." On October 14, 1994, two days after the ordinance went into effect, Pap's filed a
complaint against the city of Erie, the mayor of the city, and members of the city council, seeking
declaratory relief and a permanent injunction against the enforcement of the ordinance.
The Court of Common Pleas of Erie County granted the permanent injunction and struck down the
ordinance as unconstitutional. * * * On cross appeals, the Commonwealth Court reversed the trial
court's order. 674 A.2d 338 (1996).
The Pennsylvania Supreme Court granted review and reversed, concluding that the public nudity
provisions of the ordinance violated respondent's rights to freedom of expression as protected by the
First and Fourteenth Amendments. 553 Pa. 348, 719 A.2d 273 (1998). * * *
****
Concluding that the ordinance unconstitutionally burdened respondent's expressive conduct, the
Pennsylvania court then determined that, under Pennsylvania law, the public nudity provisions of
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the ordinance could be severed rather than striking the ordinance in its entirety. Accordingly, the
court severed §§ 1(c) and 2 from the ordinance and reversed the order of the Commonwealth Court.
* * * Because the court determined that the public nudity provisions of the ordinance violated Pap's
right to freedom of expression under the United States Constitution, it did not address the
constitutionality of the ordinance under the Pennsylvania Constitution or the claim that the ordinance
is unconstitutionally overbroad. * * *
In a separate concurrence, two justices of the Pennsylvania court noted that, because this Court
upheld a virtually identical statute in Barnes, the ordinance should have been upheld under the
United States Constitution. 553 Pa., at 364, 719 A.2d, at 281. They reached the same result as the
majority, however, because they would have held that the public nudity sections of the ordinance
violate the Pennsylvania Constitution. Id., at 370, 719 A.2d, at 284.
The city of Erie petitioned for a writ of certiorari, which we granted. 526 U.S. 1111 (1999). Shortly
thereafter, Pap's filed a motion to dismiss the case as moot, noting that Kandyland was no longer
operating as a nude dancing club, and Pap's was not operating a nude dancing club at any other
location. Respondent's Motion to Dismiss as Moot 1. We denied the motion. 527 U.S. 1034 (1999).
II
As a preliminary matter, we must address the justiciability question. "'[A] case is moot when the
issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome.'"
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S.
486, 496 (1969)). The underlying concern is that, when the challenged conduct ceases such that
"'there is no reasonable expectation that the wrong will be repeated,'" United States v. W.T. Grant
Co., 345 U.S. 629, 633 (1953), then it becomes impossible for the court to grant "'any effectual relief
whatever' to [the] prevailing party," Church of Scientology of Cal. v. United States, 506 U.S. 9, 12
(1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). In that case, any opinion as to the
legality of the challenged action would be advisory.
Here, Pap's submitted an affidavit stating that it had "ceased to operate a nude dancing
establishment in Erie." Status Report Re Potential Issue of Mootness 1 (Sept. 8, 1999). Pap's asserts
that the case is therefore moot because "[t]he outcome of this case will have no effect upon
Respondent." Respondent's Motion to Dismiss as Moot 1. Simply closing Kandyland is not
sufficient to render this case moot, however. Pap's is still incorporated under Pennsylvania law, and
it could again decide to operate a nude dancing establishment in Erie. See Petitioner's Brief in
Opposition to Motion to Dismiss 3. Justice SCALIA differs with our assessment as to the likelihood
that Pap's may resume its nude dancing operation. Several Members of this Court can attest,
however, that the "advanced age" of Pap's owner (72) does not make it "absolutely clear" that a life
of quiet retirement is his only reasonable expectation. Cf. Friends of Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167 (2000). Moreover, our appraisal of Pap's affidavit
is influenced by Pap's failure, despite its obligation to the Court, to mention a word about the
potential mootness issue in its brief in opposition to the petition for writ of certiorari, which was
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filed in April 1999, even though, as Justice SCALIA points out, Kandyland was closed and that
property sold in 1998. See Board of License Comm'rs of Tiverton v. Pastore, 469 U.S. 238, 240
(1985) (per curiam). Pap's only raised the issue after this Court granted certiorari.
In any event, this is not a run of the mill voluntary cessation case. Here it is the plaintiff who,
having prevailed below, now seeks to have the case declared moot. And it is the city of Erie that
seeks to invoke the federal judicial power to obtain this Court's review of the Pennsylvania Supreme
Court decision. Cf. ASARCO Inc. v. Kadish, 490 U.S. 605, 617-618 (1989). The city has an ongoing
injury because it is barred from enforcing the public nudity provisions of its ordinance. If the
challenged ordinance is found constitutional, then Erie can enforce it, and the availability of such
relief is sufficient to prevent the case from being moot. See Church of Scientology of Cal. v. United
States, supra, at 13. And Pap's still has a concrete stake in the outcome of this case because, to the
extent Pap's has an interest in resuming operations, it has an interest in preserving the judgment of
the Pennsylvania Supreme Court. Our interest in preventing litigants from attempting to manipulate
the Court's jurisdiction to insulate a favorable decision from review further counsels against a finding
of mootness here. See United States v. W.T. Grant Co., supra, at 632; cf. Arizonans for Official
English v. Arizona, 520 U.S. 43, 74 (1997). Although the issue is close, we conclude that the case
is not moot, and we turn to the merits.
*****
We hold * * * that Erie's ordinance is a content-neutral regulation that is valid under O'Brien.
Accordingly, the judgment of the Pennsylvania Supreme Court is reversed, and the case is remanded
for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice SCALIA, with whom Justice THOMAS joins, concurring in the judgment.
I
In my view, the case before us here is moot. The Court concludes that it is not because respondent
could resume its nude dancing operations in the future, and because petitioners have suffered an
ongoing, redressable harm consisting of the state court's invalidation of their public nudity ordinance.
As to the first point: Petitioners do not dispute that Kandyland no longer exists; the building in
which it was located has been sold to a real estate developer, and the premises are currently being
used as a comedy club. We have a sworn affidavit from respondent's sole shareholder, Nick Panos,
to the effect that Pap's "operates no active business," and is "a 'shell' corporation." More to the point,
Panos swears that neither Pap's nor Panos "employ[s] any individuals involved in the nude dancing
business," "maintain[s] any contacts in the adult entertainment business," "has any current interest
in any establishment providing nude dancing," or "has any intention to own or operate a nude
dancing establishment in the future." [FN1] App. to Reply to Brief in Opposition to Motion to
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Dismiss 7-8.
FN1. Curiously, the Court makes no mention of Panos' averment of no intention to operate
a nude dancing establishment in the future, but discusses the issue as though the only factor
suggesting mootness is the closing of Kandyland. * * * I see no basis for ignoring this
averment. The only fact mentioned by the Court to justify regarding it as perjurious is that
respondent failed to raise mootness in its brief in opposition to the petition for certiorari.
That may be good basis for censure, but it is scant basis for suspicion of perjury--particularly
since respondent, far from seeking to "insulate a favorable decision from review," * * * asks
us in light of the mootness to vacate the judgment below. Reply to Brief in Opposition to
Motion to Dismiss 5.
Petitioners do not contest these representations, but offer in response only that Pap's could very
easily get back into the nude dancing business. The Court adopts petitioners' line, concluding that
because respondent is still incorporated in Pennsylvania, it "could again decide to operate a nude
dancing establishment in Erie." * * * That plainly does not suffice under our cases. The test for
mootness we have applied in voluntary-termination cases is not whether the action originally giving
rise to the controversy could not conceivably reoccur, but whether it is "absolutely clear that the ...
behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate
Export Assn., Inc., 393 U.S. 199, 203 (1968) (emphasis added). Here I think that test is met.
According to Panos' uncontested sworn affidavit, Pap's ceased doing business at Kandyland, and the
premises were sold to an independent developer, in 1998--the year before the petition for certiorari
in this case was filed. It strains credulity to suppose that the 72-year-old Mr. Panos shut down his
going business after securing his victory in the Pennsylvania Supreme Court, and before the city's
petition for certiorari was even filed, in order to increase his chances of preserving his judgment in
the statistically unlikely event that a (not yet filed) petition might be granted. Given the timing of
these events, given the fact that respondent has no existing interest in nude dancing (or in any other
business), given Panos' sworn representation that he does not intend to invest--through Pap's or
otherwise--in any nude dancing business, and given Panos' advanced age, [FN2] it seems to me that
there is "no reasonable expectation," even if there remains a theoretical possibility, that Pap's will
resume nude dancing operations in the future. [FN3]
FN2. The Court asserts that "[s]everal Members of this Court can attest ... that the 'advanced
age'" of 72 "does not make it 'absolutely clear' that a life of quiet retirement is [one's] only
reasonable expectation." * * * That is trés gallant, but it misses the point. Now as
heretofore, Justices in their seventies continue to do their work competently--indeed, perhaps
better than their youthful colleagues because of the wisdom that age imparts. But to respond
to my point what the Court requires is citation of an instance in which a Member of this
Court (or of any other court, for that matter) resigned at the age of 72 to begin a new career-or more remarkable still (for this is what the Court suspects the young Mr. Panos is up to)
resigned at the age of 72 to go judge on a different court, of no greater stature, and located
in Erie, Pennsylvania rather than Palm Springs. I base my assessment of reasonable
expectations not upon Mr. Panos' age alone, but upon that combined with his sale of the

95

business and his assertion, under oath, that he does not intend to enter another.
FN3. It is significant that none of the assertions of Panos' affidavit is contested. Those
pertaining to the sale of Kandyland and the current noninvolvement of Pap's in any other
nude dancing establishment would seem readily verifiable by petitioners. The statements
regarding Pap's and Panos' intentions for the future are by their nature not verifiable, and it
would be reasonable not to credit them if either petitioners asserted some reason to believe
they were not true or they were not rendered highly plausible by Panos' age and his past
actions. Neither condition exists here.
The situation here is indistinguishable from that which obtained in Arizonans for Official English
v. Arizona, 520 U.S. 43 (1997), where the plaintiff-respondent, a state employee who had sued to
enjoin enforcement of an amendment to the Arizona Constitution making English that State's official
language, had resigned her public-sector employment. We held the case moot and, since the
mootness was attributable to the "'unilateral action of the party who prevailed in the lower court,'"
we followed our usual practice of vacating the favorable judgment respondent had obtained in the
Court of Appeals. Id., at 72 (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership,
513 U.S. 18, 23 (1994)).
The rub here is that this case comes to us on writ of certiorari to a state court, so that our lack of
jurisdiction over the case also entails, according to our recent jurisprudence, a lack of jurisdiction
to direct a vacatur. See ASARCO Inc. v. Kadish, 490 U.S. 605, 621, n.1 (1989). The consequences
of that limitation on our power are in this case significant: A dismissal for mootness caused by
respondent's unilateral action would leave petitioners subject to an ongoing legal disability, and a
large one at that. Because the Pennsylvania Supreme Court severed the public nudity provision from
the ordinance, thus rendering it inoperative, the city would be prevented from enforcing its public
nudity prohibition not only against respondent, should it decide to resume operations in the future,
and not only against other nude dancing establishments, but against anyone who appears nude in
public, regardless of the "expressiveness" of his conduct or his purpose in engaging in it.
That is an unfortunate consequence (which could be avoided, of course, if the Pennsylvania
Supreme Court chose to vacate its judgments in cases that become moot during appeal). But it is
not a consequence that authorizes us to entertain a suit the Constitution places beyond our power.
And leaving in effect erroneous state determinations regarding the Federal Constitution is, after all,
not unusual. It would have occurred here, even without the intervening mootness, if we had denied
certiorari. And until the 1914 revision of the Judicial Code, it occurred whenever a state court
erroneously sustained a federal constitutional challenge, since we did not even have statutory
jurisdiction to entertain an appeal. Compare Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 85-87 with
Act of Dec. 23, 1914, ch. 2, 38 Stat. 790. In any event, the short of the matter is that we have no
power to suspend the fundamental precepts that federal courts "are limited by the case-or-controversy
requirement of Art. III to adjudication of actual disputes between adverse parties," Richardson v.
Ramirez, 418 U.S. 24, 36 (1974), and that this limitation applies "at all stages of review," Preiser
v. Newkirk, 422 U.S. 395, 401 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459, n.10 (1974)
96

(internal quotation marks omitted)).
Which brings me to the Court's second reason for holding that this case is still alive: The Court
concludes that because petitioners have an "ongoing injury" caused by the state court's invalidation
of its duly enacted public nudity provision, our ability to hear the case and reverse the judgment
below is itself "sufficient to prevent the case from being moot." * * * Although the Court does not
cite any authority for the proposition that the burden of an adverse decision below suffices to keep
a case alive, it is evidently relying upon our decision in ASARCO, which held that Article III's
standing requirements were satisfied on writ of certiorari to a state court even though there would
have been no Article III standing for the action producing the state judgment on which certiorari was
sought. We assumed jurisdiction in the case because we concluded that the party seeking to invoke
the federal judicial power had standing to challenge the adverse judgment entered against them by
the state court. Because that judgment, if left undisturbed, would "caus[e] direct, specific, and
concrete injury to the parties who petition for our review," ASARCO, 490 U.S., at 623-624, and
because a decision by this Court to reverse the State Supreme Court would clearly redress that injury,
we concluded that the original plaintiffs' lack of standing was not fatal to our jurisdiction. Id., at
624.
I dissented on this point in ASARCO, see id., at 634 (REHNQUIST, C. J., concurring in part and
dissenting in part, joined by SCALIA, J.), and remain of the view that it was incorrectly decided.
But ASARCO at least did not purport to hold that the constitutional standing requirements of injury,
causation, and redressability may be satisfied solely by reference to the lower court's adverse
judgment. It was careful to note--however illogical that might have been, see id., at 635--that the
parties "remain[ed] adverse," and that jurisdiction was proper only so long as the "requisites of a case
or controversy are also met," id., at 619, 624. Today the Court would appear to drop even this fig
leaf. [FN4] In concluding that the injury to Erie is "sufficient" to keep this case alive, the Court
performs the neat trick of identifying a "case or controversy" that has only one interested party.
FN4. I say "appear" because although the Court states categorically that "the availability of
... relief [from the judgment below] is sufficient to prevent the case from being moot," it
follows this statement, in the next sentence, with the assertion that Pap's, the state court
plaintiff, retains a "concrete stake in the outcome of this case." * * * Of course, if the latter
were true a classic case or controversy existed, and resort to the exotic theory of "standing
by virtue of adverse judgment below" was entirely unnecessary.
II
For the reasons set forth above, I would dismiss this case for want of jurisdiction. * * *
Justice SOUTER, concurring in part and dissenting in part.
I join Parts I and II of the Court's opinion and agree with the analytical approach that the plurality
employs in deciding this case. Erie's stated interest in combating the secondary effects associated
97

with nude dancing establishments is an interest unrelated to the suppression of expression under
United States v. O'Brien, 391 U.S. 367 (1968), and the city's regulation is thus properly considered
under the O'Brien standards. I do not believe, however, that the current record allows us to say that
the city has made a sufficient evidentiary showing to sustain its regulation, and I would therefore
vacate the decision of the Pennsylvania Supreme Court and remand the case for further proceedings.
Justice STEVENS, with whom Justice GINSBURG joins, dissenting.
***
It is clear beyond a shadow of a doubt that the Erie ordinance was a response to a more specific
concern than nudity in general, namely, nude dancing of the sort found in Kandyland. * * * Given
that the Court has not even tried to defend the ordinance's total ban on the ground that its censorship
of protected speech might be justified by an overriding state interest, it should conclude that the
ordinance is patently invalid. For these reasons, as well as the reasons set forth in Justice White's
dissent in Barnes, I respectfully dissent.

98

WELLNESS INTERNATIONAL NETWORK, LTD. v. SHARIF
135 S. Ct. 1932 (2015)

Justice SOTOMAYOR delivered the opinion of the Court.
Article III, § 1, of the Constitution provides that “[t]he judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish.” Congress has in turn established 94 District Courts and 13 Courts of
Appeals, composed of judges who enjoy the protections of Article III: life tenure and pay that
cannot be diminished. Because these protections help to ensure the integrity and independence of
the Judiciary, “we have long recognized that, in general, Congress may not withdraw from” the
Article III courts “any matter which, from its nature, is the subject of a suit at the common law, or
in equity, or in admiralty.” Stern v. Marshall, 131 S.Ct. 2594, 2609 (2011) (internal quotation
marks omitted).
Congress has also authorized the appointment of bankruptcy and magistrate judges, who do not
enjoy the protections of Article III, to assist Article III courts in their work. The number of
magistrate and bankruptcy judgeships exceeds the number of circuit and district judgeships. * * *
And it is no exaggeration to say that without the distinguished service of these judicial colleagues,
the work of the federal court system would grind nearly to a halt. * * *
Congress’ efforts to align the responsibilities of non-Article III judges with the boundaries set by
the Constitution have not always been successful. In Northern Pipeline Constr. Co. v. Marathon
Pipe Line Co., 458 U.S. 50 (1982) (plurality opinion), and more recently in Stern, this Court held
that Congress violated Article III by authorizing bankruptcy judges to decide certain claims for
which litigants are constitutionally entitled to an Article III adjudication. This case presents the
question whether Article III allows bankruptcy judges to adjudicate such claims with the parties’
consent. We hold that Article III is not violated when the parties knowingly and voluntarily consent
to adjudication by a bankruptcy judge.
I
A
Before 1978, district courts typically delegated bankruptcy proceedings to “referees.” Executive
Benefits Ins. Agency v. Arkison,134 S.Ct. 2165, 2170 (2014). Under the Bankruptcy Act of 1898,
bankruptcy referees had “[s]ummary jurisdiction” over “claims involving ‘property in the actual or
constructive possession of the bankruptcy court’”—that is, over the apportionment of the
bankruptcy estate among creditors. Ibid. (alteration omitted). They could preside over other
proceedings—matters implicating the court’s “plenary jurisdiction”—by consent. Id., at 2170; see
also MacDonald v. Plymouth County Trust Co., 286 U.S. 263, 266–267 (1932).
In 1978, Congress enacted the Bankruptcy Reform Act, which repealed the 1898 Act and gave the
newly created bankruptcy courts power “much broader than that exercised under the former referee
99

system.”. The Act “[e]liminat[ed] the distinction between ‘summary’ and ‘plenary’ jurisdiction”
and enabled bankruptcy courts to decide “all ‘civil proceedings arising under title 11 [the
Bankruptcy title] or arising in or related to cases under title 11.’” Ibid. (emphasis deleted).
Congress thus vested bankruptcy judges with most of the “‘powers of a court of equity, law, and
admiralty,’” id., at 55, without affording them the benefits of Article III. This Court therefore held
parts of the system unconstitutional in Northern Pipeline.
Congress responded by enacting the Bankruptcy Amendments and Federal Judgeship Act of 1984.
Under that Act, district courts have original jurisdiction over bankruptcy cases and related
proceedings. 28 U.S.C. §§ 1334(a), (b). But “[e]ach district court may provide that any or all”
bankruptcy cases and related proceedings “shall be referred to the bankruptcy judges for the
district.” § 157(a). Bankruptcy judges are “judicial officers of the United States district court,”
appointed to 14–year terms by the courts of appeals, and subject to removal for cause. §§ 152(a)(1),
(e). “The district court may withdraw” a reference to the bankruptcy court “on its own motion or on
timely motion of any party, for cause shown.” § 157(d).
When a district court refers a case to a bankruptcy judge, that judge’s statutory authority depends
on whether Congress has classified the matter as a “[c]ore proceedin[g]” or a “[n]on-core
proceedin[g],” §§ 157(b)(2), (4)—much as the authority of bankruptcy referees, before the 1978
Act, depended on whether the proceeding was “summary” or “plenary.” Congress identified as
“[c]ore” a nonexclusive list of 16 types of proceedings, § 157(b)(2), in which it thought bankruptcy
courts could constitutionally enter judgment. * * * Congress gave bankruptcy courts the power to
“hear and determine” core proceedings and to “enter appropriate orders and judgments,” subject to
appellate review by the district court. § 157(b)(1); see § 158. But it gave bankruptcy courts more
limited authority in non-core proceedings: They may “hear and determine” such proceedings, and
“enter appropriate orders and judgments,” only “with the consent of all the parties to the
proceeding.” § 157(c)(2). Absent consent, bankruptcy courts in non-core proceedings may only
“submit proposed findings of fact and conclusions of law,” which the district courts review de
novo. § 157(c)(1).
B
Petitioner Wellness International Network is a manufacturer of health and nutrition products. * * *
Wellness and respondent Sharif entered into a contract under which Sharif would distribute
Wellness’ products. The relationship quickly soured, and in 2005, Sharif sued Wellness in the
United States District Court for the Northern District of Texas. Sharif repeatedly ignored Wellness’
discovery requests and other litigation obligations, resulting in an entry of default judgment for
Wellness. The District Court eventually sanctioned Sharif by awarding Wellness over $650,000 in
attorney’s fees. This case arises from Wellness’ long-running—and so far unsuccessful—efforts to
collect on that judgment.
In February 2009, Sharif filed for Chapter 7 bankruptcy in the Northern District of Illinois. The
bankruptcy petition listed Wellness as a creditor. Wellness requested documents concerning
Sharif’s assets, which Sharif did not provide. Wellness later obtained a loan application Sharif had
filed in 2002, listing more than $5 million in assets. When confronted, Sharif informed Wellness
and the Chapter 7 trustee that he had lied on the loan application. The listed assets, Sharif claimed,
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were actually owned by the Soad Wattar Living Trust (Trust), an entity Sharif said he administered
on behalf of his mother, and for the benefit of his sister. Wellness pressed Sharif for information on
the Trust, but Sharif again failed to respond.
Wellness filed a five-count adversary complaint against Sharif in the Bankruptcy Court. See App.
5–22. Counts I–IV of the complaint objected to the discharge of Sharif’s debts because, among
other reasons, Sharif had concealed property by claiming that it was owned by the Trust. Count V
of the complaint sought a declaratory judgment that the Trust was Sharif’s alter ego and that its
assets should therefore be treated as part of Sharif’s bankruptcy estate. Id., at 21. In his answer,
Sharif admitted that the adversary proceeding was a “core proceeding” under 28 U.S.C. § 157(b)—
i.e., a proceeding in which the Bankruptcy Court could enter final judgment subject to appeal.
See §§ 157(b)(1), (2)(J); App. 24. Indeed, Sharif requested judgment in his favor on all counts of
Wellness’ complaint and urged the Bankruptcy Court to “find that the Soad Wattar Living Trust is
not property of the [bankruptcy] estate.” Id., at 44.
A familiar pattern of discovery evasion ensued. Wellness responded by filing a motion for
sanctions, or, in the alternative, to compel discovery. Granting the motion to compel, the
Bankruptcy Court warned Sharif that if he did not respond to Wellness’ discovery requests a
default judgment would be entered against him. Sharif eventually complied with some discovery
obligations, but did not produce any documents related to the Trust.
In July 2010, the Bankruptcy Court issued a ruling finding that Sharif had violated the court’s
discovery order. See App. to Pet. for Cert. 92a–120a. It accordingly denied Sharif’s request to
discharge his debts and entered a default judgment against him in the adversary proceeding. And it
declared, as requested by count V of Wellness’ complaint, that the assets supposedly held by the
Trust were in fact property of Sharif’s bankruptcy estate because Sharif “treats [the Trust’s] assets
as his own property.” Id., at 119a.
Sharif appealed to the District Court. Six weeks before Sharif filed his opening brief in the District
Court, this Court decided Stern. In Stern, the Court held that Article III prevents bankruptcy courts
from entering final judgment on claims that seek only to “augment” the bankruptcy estate and
would otherwise “exis[t] without regard to any bankruptcy proceeding.” 131 S.Ct., at 2614, 2618.
Sharif did not cite Stern in his opening brief. Rather, after the close of briefing, Sharif moved for
leave to file a supplemental brief, arguing that in light of In re Ortiz, 665 F.3d 906 (C.A.7 2011)—a
recently issued decision interpreting Stern—“the bankruptcy court’s order should only be treated as
a report and recommendation.” App. 145. The District Court denied Sharif’s motion for
supplemental briefing as untimely and affirmed the Bankruptcy Court’s judgment.
The Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. 727 F.3d 751
(2013). The Seventh Circuit acknowledged that ordinarily Sharif’s Stern objection would “not [be]
preserved because he waited too long to assert it.” 727 F.3d, at 767. * * * But the court determined
that the ordinary rule did not apply because Sharif’s argument concerned “the allocation of
authority between bankruptcy courts and district courts” under Article III, and thus “implicate [d]
structural interests.” Id., at 771. Based on those separation-of-powers considerations, the court held
that “a litigant may not waive” a Stern objection. Id., at 773. Turning to the merits of Sharif’s
contentions, the Seventh Circuit agreed with the Bankruptcy Court’s resolution of counts I–IV of
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Wellness’ adversary complaint. It further concluded, however, that count V of the complaint
alleged a so-called “Stern claim,” that is, “a claim designated for final adjudication in the
bankruptcy court as a statutory matter, but prohibited from proceeding in that way as a
constitutional matter.” Executive Benefits, 134 S.Ct., at 2170. The Seventh Circuit therefore ruled
that the Bankruptcy Court lacked constitutional authority to enter final judgment on count V. * * *
We granted certiorari, 134 S.Ct. 2901 (2014), and now reverse the judgment of the Seventh Circuit.
***
II
Our precedents make clear that litigants may validly consent to adjudication by bankruptcy courts.

A
Adjudication by consent is nothing new. Indeed, “[d]uring the early years of the Republic, federal
courts, with the consent of the litigants, regularly referred adjudication of entire disputes to nonArticle III referees, masters, or arbitrators, for entry of final judgment in accordance with the
referee’s report.” Brubaker, The Constitutionality of Litigant Consent to Non–Article III
Bankruptcy Adjudications, 32 Bkrtcy. L. Letter No. 12, p. 6 (Dec. 2012); see, e.g., Thornton v.
Carson, 7 Cranch 596, 597 (1813) (affirming damages awards in two actions that “were referred,
by consent under a rule of Court to arbitrators”); Heckers v. Fowler, 2 Wall. 123, 131 (1865)
(observing that the “[p]ractice of referring pending actions under a rule of court, by consent of
parties, was well known at common law,” and “is now universally regarded ... as the proper
foundation of judgment”); Newcomb v. Wood, 97 U.S. 581, 583 (1878) (recognizing “[t]he power
of a court of justice, with the consent of the parties, to appoint arbitrators and refer a case pending
before it”).
The foundational case in the modern era is Commodity Futures Trading Comm’n v. Schor, 478
U.S. 833 (1986). The Commodity Futures Trading Commission (CFTC), which Congress had
authorized to hear customer complaints against commodities brokers, issued a regulation allowing
itself to hear state-law counterclaims as well. William Schor filed a complaint with the CFTC
against his broker, and the broker, which had previously filed claims against Schor in federal court,
refiled them as counterclaims in the CFTC proceeding. The CFTC ruled against Schor on the
counterclaims. This Court upheld that ruling against both statutory and constitutional challenges.
On the constitutional question (the one relevant here) the Court began by holding that Schor had
“waived any right he may have possessed to the full trial of [the broker’s] counterclaim before an
Article III court.” Id., at 849. The Court then explained why this waiver legitimated the CFTC’s
exercise of authority: “[A]s a personal right, Article III’s guarantee of an impartial and independent
federal adjudication is subject to waiver, just as are other personal constitutional rights”—such as
the right to a jury—“that dictate the procedures by which civil and criminal matters must be tried.”
Id., at 848–849.
The Court went on to state that a litigant’s waiver of his “personal right” to an Article III court is
not always dispositive because Article III “not only preserves to litigants their interest in an
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impartial and independent federal adjudication of claims ..., but also serves as ‘an inseparable
element of the constitutional system of checks and balances.’ ... To the extent that this structural
principle is implicated in a given case”—but only to that extent—“the parties cannot by consent
cure the constitutional difficulty....” Id., at 850–851.
Leaning heavily on the importance of Schor’s consent, the Court found no structural concern
implicated by the CFTC’s adjudication of the counterclaims against him. While “Congress gave the
CFTC the authority to adjudicate such matters,” the Court wrote,
“the decision to invoke this forum is left entirely to the parties and the power of the federal
judiciary to take jurisdiction of these matters is unaffected. In such circumstances, separation of
powers concerns are diminished, for it seems self-evident that just as Congress may encourage
parties to settle a dispute out of court or resort to arbitration without impermissible incursions on
the separation of powers, Congress may make available a quasi-judicial mechanism through
which willing parties may, at their option, elect to resolve their differences.” Id., at 855.
The option for parties to submit their disputes to a non-Article III adjudicator was at most a “de
minimis” infringement on the prerogative of the federal courts. Id., at 856.
A few years after Schor, the Court decided a pair of cases—Gomez v. United States, 490 U.S. 858
(1989), and Peretz v. United States, 501 U.S. 923 (1991)—that reiterated the importance of consent
to the constitutional analysis. Both cases concerned whether the Federal Magistrates Act authorized
magistrate judges to preside over jury selection in a felony trial; * * * the difference was that Peretz
consented to the practice while Gomez did not. That difference was dispositive.
In Gomez, the Court interpreted the statute as not allowing magistrate judges to supervise voir dire
without consent, emphasizing the constitutional concerns that might otherwise arise. See 490 U.S.,
at 864. In Peretz, the Court upheld the Magistrate Judge’s action, stating that “the defendant’s
consent significantly changes the constitutional analysis.” 501 U.S., at 932. The Court concluded
that allowing a magistrate judge to supervise jury selection—with consent—does not violate
Article III, explaining that “litigants may waive their personal right to have an Article III judge
preside over a civil trial,” id., at 936 (citing Schor, 478 U.S., at 848), and that “[t]he most basic
rights of criminal defendants are similarly subject to waiver,” 501 U.S., at 936. And “[e]ven
assuming that a litigant may not waive structural protections provided by Article III,” the Court
found “no such structural protections ... implicated by” a magistrate judge’s supervision of voir
dire:
“Magistrates are appointed and subject to removal by Article III judges. The ‘ultimate decision’
whether to invoke the magistrate’s assistance is made by the district court, subject to veto by the
parties. The decision whether to empanel the jury whose selection a magistrate has supervised
also remains entirely with the district court. Because ‘the entire process takes place under the
district court’s total control and jurisdiction,’ there is no danger that use of the magistrate
involves a ‘congressional attemp[t] “to transfer jurisdiction [to non-Article III tribunals] for the
purpose of emasculating” constitutional courts.’” Id., at 937 (citations omitted; alteration in
original). * * *
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The lesson of Schor, Peretz, and the history that preceded them is plain: The entitlement to an
Article III adjudicator is “a personal right” and thus ordinarily “subject to waiver,” Schor, 478
U.S., at 848. Article III also serves a structural purpose, “barring congressional attempts ‘to transfer
jurisdiction [to non-Article III tribunals] for the purpose of emasculating’ constitutional courts and
thereby prevent [ing] ‘the encroachment or aggrandizement of one branch at the expense of the
other.’” Id., at 850 (citations omitted). But allowing Article I adjudicators to decide claims
submitted to them by consent does not offend the separation of powers so long as Article III courts
retain supervisory authority over the process.
B
The question here, then, is whether allowing bankruptcy courts to decide Stern claims by consent
would “impermissibly threate[n] the institutional integrity of the Judicial Branch.” Schor, 478 U.S.,
at 851. And that question must be decided not by “formalistic and unbending rules,” but “with an
eye to the practical effect that the” practice “will have on the constitutionally assigned role of the
federal judiciary.” Ibid.; see Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568,
587 (“[P]ractical attention to substance rather than doctrinaire reliance on formal categories should
inform application of Article III”). The Court must weigh
“the extent to which the essential attributes of judicial power are reserved to Article III courts,
and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction
and powers normally vested only in Article III courts, the origins and importance of the right to
be adjudicated, and the concerns that drove Congress to depart from the requirements of Article
III.” Schor, 478 U.S., at 851 (internal quotation marks omitted).
Applying these factors, we conclude that allowing bankruptcy litigants to waive the right to Article
III adjudication of Stern claims does not usurp the constitutional prerogatives of Article III courts.
Bankruptcy judges, like magistrate judges, “are appointed and subject to removal by Article III
judges,” Peretz, 501 U.S., at 937; see 28 U.S.C. §§ 152(a)(1), (e). They “serve as judicial officers
of the United States district court,” § 151, and collectively “constitute a unit of the district court”
for that district, § 152(a)(1). Just as “[t]he ‘ultimate decision’ whether to invoke [a] magistrate
[judge]’s assistance is made by the district court,” Peretz, 501 U.S., at 937, bankruptcy courts hear
matters solely on a district court’s reference, § 157(a), which the district court may withdraw sua
sponte or at the request of a party, § 157(d). “[S]eparation of powers concerns are diminished”
when, as here, “the decision to invoke [a non-Article III] forum is left entirely to the parties and the
power of the federal judiciary to take jurisdiction” remains in place. Schor, 478 U.S., at 855.
Furthermore, like the CFTC in Schor, bankruptcy courts possess no free-floating authority to
decide claims traditionally heard by Article III courts. Their ability to resolve such matters is
limited to “a narrow class of common law claims as an incident to the [bankruptcy courts’]
primary, and unchallenged, adjudicative function.” Id., at 854. “In such circumstances, the
magnitude of any intrusion on the Judicial Branch can only be termed de minimis.” Id., at 856.
Finally, there is no indication that Congress gave bankruptcy courts the ability to decide Stern
claims in an effort to aggrandize itself or humble the Judiciary. As in Peretz, “[b]ecause ‘the entire
process takes place under the district court’s total control and jurisdiction,’ there is no danger that
use of the [bankruptcy court] involves a ‘congressional attemp[t] “to transfer jurisdiction [to non104

Article III tribunals] for the purpose of emasculating” constitutional courts.’ ” 501 U.S., at 937
(citation omitted); see also Schor, 478 U.S., at 855 (allowing CFTC’s adjudication of counterclaims
because of “the degree of judicial control saved to the federal courts, as well as the congressional
purpose behind the jurisdictional delegation, the demonstrated need for the delegation, and the
limited nature of the delegation” (citation omitted)); Pacemaker Diagnostic Clinic of America, Inc.
v. Instromedix, Inc., 725 F.2d 537, 544 (C.A.9 1984) (en banc) (Kennedy, J.) (magistrate judges
may adjudicate civil cases by consent because the Federal Magistrates Act “invests the Article III
judiciary with extensive administrative control over the management, composition, and operation
of the magistrate system”). * * *
Congress could choose to rest the full share of the Judiciary’s labor on the shoulders of Article III
judges. But doing so would require a substantial increase in the number of district judgeships.
Instead, Congress has supplemented the capacity of district courts through the able assistance of
bankruptcy judges. So long as those judges are subject to control by the Article III courts, their
work poses no threat to the separation of powers.
C
Our recent decision in Stern, on which Sharif and the principal dissent rely heavily, does not
compel a different result. That is because Stern—like its predecessor, Northern Pipeline—turned
on the fact that the litigant “did not truly consent to” resolution of the claim against it in a nonArticle III forum. 131 S.Ct., at 2614.
To understand Stern, it is necessary to first understand Northern Pipeline. There, the Court
considered whether bankruptcy judges “could ‘constitutionally be vested with jurisdiction to decide
[a] state-law contract claim’ against an entity that was not otherwise part of the bankruptcy
proceedings.” 131 S.Ct., at 2609–2610. In answering that question in the negative, both the
plurality and then-Justice Rehnquist, concurring in the judgment, noted that the entity in question
did not consent to the bankruptcy court’s adjudication of the claim. See 458 U.S., at 80, n. 31
(plurality opinion); id., at 91 (opinion of Rehnquist, J.). The Court confirmed in two later cases that
Northern Pipeline turned on the lack of consent. See Schor, 478 U.S., at 849 (“[I]n Northern
Pipeline, ... the absence of consent to an initial adjudication before a non-Article III tribunal was
relied on as a significant factor in determining that Article III forbade such adjudication”); Thomas,
473 U.S., at 584.
Stern presented the same scenario. The majority cited the dissent’s observation that Northern
Pipeline “establish[ed] only that Congress may not vest in a non-Article III court the power to
adjudicate, render final judgment, and issue binding orders in a traditional contract action arising
under state law, without consent of the litigants, and subject only to ordinary appellate review,” 131
S.Ct., at 2615 (emphasis added; internal quotation marks omitted). To which the majority
responded, “Just so: Substitute ‘tort’ for ‘contract,’ and that statement directly covers this case.”
Id., at 2615; see also id., at 2614 (defendant litigated in the Bankruptcy Court because he “had
nowhere else to go” to pursue his claim). Because Stern was premised on nonconsent to
adjudication by the Bankruptcy Court, the “constitutional bar” it announced, see post, at 1957
(ROBERTS, C.J., dissenting), simply does not govern the question whether litigants may validly
consent to adjudication by a bankruptcy court.
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An expansive reading of Stern, moreover, would be inconsistent with the opinion’s own description
of its holding. The Court in Stern took pains to note that the question before it was “a ‘narrow’
one,” and that its answer did “not change all that much” about the division of labor between district
courts and bankruptcy courts. Id., at 2620; see also id., at 2620 (stating that Congress had
exceeded the limitations of Article III “in one isolated respect”). That could not have been a fair
characterization of the decision if it meant that bankruptcy judges could no longer exercise their
longstanding authority to resolve claims submitted to them by consent. Interpreting Stern to bar
consensual adjudications by bankruptcy courts would “meaningfully chang[e] the division of
labor” in our judicial system, contra, id., at 2620. * * *
In sum, the cases in which this Court has found a violation of a litigant’s right to an Article III
decisionmaker have involved an objecting defendant forced to litigate involuntarily before a nonArticle III court. The Court has never done what Sharif and the principal dissent would have us
do—hold that a litigant who has the right to an Article III court may not waive that right through
his consent.
D
The principal dissent warns darkly of the consequences of today’s decision. See post, at 1958 –
1960. To hear the principal dissent tell it, the world will end not in fire, or ice, but in a bankruptcy
court. The response to these ominous predictions is the same now as it was when Justice Brennan,
dissenting in Schor, first made them nearly 30 years ago:
“This is not to say, of course, that if Congress created a phalanx of non-Article III tribunals
equipped to handle the entire business of the Article III courts without any Article III supervision
or control and without evidence of valid and specific legislative necessities, the fact that the
parties had the election to proceed in their forum of choice would necessarily save the scheme
from constitutional attack. But this case obviously bears no resemblance to such a scenario....”
478 U.S., at 855 (citations omitted).
Adjudication based on litigant consent has been a consistent feature of the federal court system
since its inception. Reaffirming that unremarkable fact, we are confident, poses no great threat to
anyone’s birthrights, constitutional or otherwise.
III
Sharif contends that to the extent litigants may validly consent to adjudication by a bankruptcy
court, such consent must be express. We disagree.
Nothing in the Constitution requires that consent to adjudication by a bankruptcy court be express.
Nor does the relevant statute, 28 U.S.C. § 157, mandate express consent; it states only that a
bankruptcy court must obtain “the consent”—consent simpliciter—“of all parties to the
proceeding” before hearing and determining a non-core claim. § 157(c)(2). And a requirement of
express consent would be in great tension with our decision in Roell v. Withrow, 538 U.S. 580
(2003). That case concerned the interpretation of § 636(c), which authorizes magistrate judges to
“conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in
106

the case,” with “the consent of the parties.” * * * The specific question in Roell was whether, as a
statutory matter, the “consent” required by § 636(c) had to be express. The dissent argued that
“[r]eading § 636(c)(1) to require express consent not only is more consistent with the text of the
statute, but also” avoids constitutional concerns by “ensur[ing] that the parties knowingly and
voluntarily waive their right to an Article III judge.” 538 U.S., at 595 (opinion of THOMAS, J.).
But the majority—thus placed on notice of the constitutional concern—was untroubled by it,
opining that “the Article III right is substantially honored” by permitting waiver based on “actions
rather than words.” Id., at 589, 590.
The implied consent standard articulated in Roell supplies the appropriate rule for adjudications by
bankruptcy courts under § 157. Applied in the bankruptcy context, that standard possesses the same
pragmatic virtues—increasing judicial efficiency and checking gamesmanship—that motivated our
adoption of it for consent-based adjudications by magistrate judges. See id., at 590. It bears
emphasizing, however, that a litigant’s consent—whether express or implied—must still be
knowing and voluntary. Roell makes clear that the key inquiry is whether “the litigant or counsel
was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to
try the case” before the non-Article III adjudicator. Ibid.; see also id., at 588, n. 5 (“notification of
the right to refuse” adjudication by a non-Article III court “is a prerequisite to any inference of
consent”). * * *
IV
It would be possible to resolve this case by determining whether Sharif in fact consented to the
Bankruptcy Court’s adjudication of count V of Wellness’ adversary complaint. But reaching that
determination would require a deeply factbound analysis of the procedural history unique to this
protracted litigation. Our resolution of the consent question—unlike the antecedent constitutional
question—would provide little guidance to litigants or the lower courts. Thus, consistent with our
role as “a court of review, not of first view,” Nautilus, Inc. v. Biosig Instruments, Inc.,134 S.Ct.
2120, 2131 (2014) (internal quotation marks omitted), we leave it to the Seventh Circuit to decide
on remand whether Sharif’s actions evinced the requisite knowing and voluntary consent, and also
whether, as Wellness contends, Sharif forfeited his Stern argument below.
***
The Court holds that Article III permits bankruptcy courts to decide Stern claims submitted to them
by consent. The judgment of the United States Court of Appeals for the Seventh Circuit is therefore
reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice ALITO, concurring in part and concurring in the judgment.
I join the opinion of the Court insofar as it holds that a bankruptcy judge’s resolution of a “Stern
claim” * * * with the consent of the parties does not violate Article III of the Constitution. The
Court faithfully applies Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986). No
one believes that an arbitrator exercises “[t]he judicial Power of the United States,” Art. III, § 1, in
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an ordinary, run-of-the mill arbitration. And whatever differences there may be between an
arbitrator’s “decision” and a bankruptcy court’s “judgment,” those differences would seem to fall
within the Court’s previous rejection of “formalistic and unbending rules.” Schor, supra, at 851.
Whatever one thinks of Schor, it is still the law of this Court, and the parties do not ask us to revisit
it.
Unlike the Court, however, I would not decide whether consent may be implied. While the
Bankruptcy Act just speaks of “consent,” 28 U.S.C. § 157(c)(2), the Federal Rules of Bankruptcy
Procedure provide that “[i]n non-core proceedings final orders and judgments shall not be entered
on the bankruptcy judge’s order except with the express consent of the parties,” Rule 7012(b).
When this Rule was promulgated, no one was thinking about a Stern claim. But now, assuming that
Rule 7012(b) represents a permissible interpretation of § 157, the question arises whether a Stern
claim should be treated as a non-core or core claim for purposes of the bankruptcy rules. See
Executive Benefits Ins. Agency v. Arkison, 134 S.Ct. 2165, 2172–2173 (2014) (holding that, for
reasons of severability, a bankruptcy court should treat a Stern claim as a non-core claim).
There is no need to decide that question here. In this case, respondent forfeited any Stern objection
by failing to present that argument properly in the courts below. Stern vindicates Article III, but
that does not mean that Stern arguments are exempt from ordinary principles of appellate
procedure. See B & B Hardware, Inc. v. Hargis Industries, Inc., 135 S.Ct. 1293, 1304 (2015).

Chief Justice ROBERTS, with whom Justice SCALIA joins, and with whom Justice THOMAS
joins as to Part I, dissenting.
The Bankruptcy Court in this case granted judgment to Wellness on its claim that Sharif’s
bankruptcy estate contained assets he purportedly held in a trust. Provided that no third party
asserted a substantial adverse claim to those assets, the Bankruptcy Court’s adjudication “stems
from the bankruptcy itself” rather than from “the stuff of the traditional actions at common law
tried by the courts at Westminster in 1789.” Stern v. Marshall, 131 S.Ct. 2594, 2609 (2011)
(internal quotation marks omitted). Article III poses no barrier to such a decision. That is enough to
resolve this case.
Unfortunately, the Court brushes aside this narrow basis for decision and proceeds to the serious
constitutional question whether private parties may consent to an Article III violation. In my view,
they cannot. By reserving the judicial power to judges with life tenure and salary protection, Article
III constitutes “an inseparable element of the constitutional system of checks and balances”—a
structural safeguard that must “be jealously guarded.” Northern Pipeline Constr. Co. v. Marathon
Pipe Line Co., 458 U.S. 50, 58, 60 (1982) (plurality opinion).
Today the Court lets down its guard. Despite our precedent directing that “parties cannot by
consent cure” an Article III violation implicating the structural separation of powers, Commodity
Futures Trading Comm’n v. Schor, 478 U.S. 833, 850–851 (1986), the majority authorizes litigants
to do just that. The Court justifies its decision largely on pragmatic grounds. I would not yield so
fully to functionalism. The Framers adopted the formal protections of Article III for good reasons,
and “the fact that a given law or procedure is efficient, convenient, and useful in facilitating
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functions of government, standing alone, will not save it if it is contrary to the Constitution.” INS v.
Chadha, 462 U.S. 919, 944 (1983).
The impact of today’s decision may seem limited, but the Court’s acceptance of an Article III
violation is not likely to go unnoticed. The next time Congress takes judicial power from Article III
courts, the encroachment may not be so modest—and we will no longer hold the high ground of
principle. The majority’s acquiescence in the erosion of our constitutional power sets a precedent
that I fear we will regret. I respectfully dissent.
I
The Court granted certiorari on two questions in this case. The first is whether the Bankruptcy
Court’s entry of final judgment on Wellness’s claim violated Article III based on Stern. The second
is whether an Article III violation of the kind recognized in Stern can be cured by consent. Because
the first question can be resolved on narrower grounds, I would answer it alone.
A
The Framers of the Constitution “lived among the ruins of a system of intermingled legislative and
judicial powers.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995). Under British rule, the
King “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and
payment of their salaries.” The Declaration of Independence ¶ 11. Between the Revolution and the
Constitutional Convention, state legislatures routinely interfered with judgments of the courts. This
history created the “sense of a sharp necessity to separate the legislative from the judicial power.”
Plaut, 514 U.S., at 221; see Perez v. Mortgage Bankers Assn., 135 S.Ct. 1199, 1215–1217 (2015)
(THOMAS, J., concurring in judgment). The result was Article III, which established a judiciary
“truly distinct from both the legislature and the executive.” The Federalist No. 78, p. 466
(C. Rossiter ed. 1961) (A. Hamilton).
Article III vests the “judicial Power of the United States” in “one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish.” Art. III, § 1. The
judges of those courts are entitled to hold their offices “during good Behaviour” and to receive
compensation “which shall not be diminished” during their tenure. Ibid. The judicial power extends
“to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and
Treaties” and to other enumerated matters. Art. III, § 2. Taken together, these provisions define the
constitutional birthright of Article III judges: to “render dispositive judgments” in cases or
controversies within the bounds of federal jurisdiction. Plaut, 514 U.S., at 219 (internal quotation
marks omitted).
With narrow exceptions, Congress may not confer power to decide federal cases and controversies
upon judges who do not comply with the structural safeguards of Article III. Those narrow
exceptions permit Congress to establish non-Article III courts to exercise general jurisdiction in the
territories and the District of Columbia, to serve as military tribunals, and to adjudicate disputes
over “public rights” such as veterans’ benefits. Northern Pipeline, 458 U.S., at 64–70 (plurality
opinion).
Our precedents have also recognized an exception to the requirements of Article III for certain
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bankruptcy proceedings. When the Framers gathered to draft the Constitution, English statutes had
long empowered nonjudicial bankruptcy “commissioners” to collect a debtor’s property, resolve
claims by creditors, order the distribution of assets in the estate, and ultimately discharge the debts.
See 2 W. Blackstone, Commentaries *471–488. This historical practice, combined with Congress’s
constitutional authority to enact bankruptcy laws, confirms that Congress may assign to non-Article
III courts adjudications involving “the restructuring of debtor-creditor relations, which is at the
core of the federal bankruptcy power.” Northern Pipeline, 458 U.S., at 71 (plurality opinion).
Although Congress may assign some bankruptcy proceedings to non-Article III courts, there are
limits on that power. In Northern Pipeline, the Court invalidated statutory provisions that permitted
a bankruptcy court to enter final judgment on a creditor’s state law claim for breach of contract.
Because that claim arose not from the bankruptcy but from independent common law sources, a
majority of the Court determined that Article III required an adjudicator with life tenure and salary
protection. See id., at 84; id., at 90–91 (Rehnquist, J., concurring in judgment).
Congress responded to Northern Pipeline by allowing bankruptcy courts to render final judgments
only in “core” bankruptcy proceedings. 28 U.S.C. § 157(b). Those judgments may be appealed to
district courts and reviewed under deferential standards. § 158(a). In non-core proceedings,
bankruptcy judges may submit proposed findings of fact and conclusions of law, which the district
court must review de novo before entering final judgment. § 157(c)(1).
In Stern, we faced the question whether a bankruptcy court could enter final judgment on an action
defined by Congress as a “core” proceeding—an estate’s counterclaim against a creditor based on
state tort law. § 157(b)(2)(C). We said no. Because the tort claim neither “stem[med] from the
bankruptcy itself” nor would “necessarily be resolved in the claims allowance process,” it fell
outside the recognized exceptions to Article III. 131 S.Ct., at 2618. Like the contract claim in
Northern Pipeline, the tort claim in Stern involved “the stuff of the traditional actions at common
law tried by the courts at Westminster in 1789.” Id. at 2609 (quoting Northern Pipeline, 458 U.S.,
at 90 (Rehnquist, J., concurring in judgment)). Congress had no power under the Constitution to
assign the resolution of such a claim to a judge who lacked the structural protections of Article III.
B
The question here is whether the claim Wellness submitted to the Bankruptcy Court is a “Stern
claim” that requires final adjudication by an Article III court. See Executive Benefits Ins. Agency v.
Arkison, (2014) (assuming without deciding that a fraudulent conveyance action is a “Stern
claim”). As the Court recounts, Wellness alleged that Sharif had concealed about $5 million of
assets by claiming that they were owned by a trust. Wellness sought a declaratory judgment that the
trust was in fact Sharif’s alter ego and that its assets should accordingly be part of his bankruptcy
estate. The Bankruptcy Court granted final judgment (based on Sharif’s default) to Wellness,
declaring that the trust assets were part of Sharif’s estate because he had treated them as his own
property. Ante, at 1940 – 1941.
In my view, Article III likely poses no barrier to the Bankruptcy Court’s resolution of Wellness’s
claim. At its most basic level, bankruptcy is “an adjudication of interests claimed in a res.” Katchen
v. Landy, 382 U.S. 323, 329 (1966) (internal quotation marks omitted). Wellness asked the
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Bankruptcy Court to declare that assets held by Sharif are part of that res. Defining what constitutes
the estate is the necessary starting point of every bankruptcy; a court cannot divide up the estate
without first knowing what’s in it. See 11 U.S.C. § 541(a). As the Solicitor General explains,
“Identifying the property of the estate is therefore inescapably central to the restructuring of the
debtor-creditor relationship.” Brief for United States as Amicus Curiae 14.
****
II
The Court “expresses no view” on whether Wellness’s claim was a Stern claim. Ante, at 1942, n. 7.
Instead, the Court concludes that the Bankruptcy Court had constitutional authority to enter final
judgment on Wellness’s claim either way. The majority rests its decision on Sharif’s purported
consent to the Bankruptcy Court’s adjudication. But Sharif has no authority to compromise the
structural separation of powers or agree to an exercise of judicial power outside Article III. His
consent therefore cannot cure a constitutional violation.
A
“[I]f there is a principle in our Constitution ... more sacred than another,” James Madison said on
the floor of the First Congress, “it is that which separates the Legislative, Executive, and Judicial
powers.” 1 Annals of Cong. 581 (1789). A strong word, “sacred.” Madison was the principal
drafter of the Constitution, and he knew what he was talking about. By diffusing federal powers
among three different branches, and by protecting each branch against incursions from the others,
the Framers devised a structure of government that promotes both liberty and accountability. See
Bond v. United States, 131 S.Ct. 2355, 2364–2365 (2011); Free Enterprise Fund v. Public
Company Accounting Oversight Bd., 561 U.S. 477, 497–501 (2010) (PCAOB ); Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
Preserving the separation of powers is one of this Court’s most weighty responsibilities. In
performing that duty, we have not hesitated to enforce the Constitution’s mandate “that one branch
of the Government may not intrude upon the central prerogatives of another.” Loving v. United
States, 517 U.S. 748, 757 (1996). We have accordingly invalidated executive actions that encroach
upon the power of the Legislature, see NLRB v. Noel Canning, 134 S.Ct. 2550 (2014); Youngstown,
343 U.S. 579; legislative actions that invade the province of the Executive, see PCAOB, 561 U.S.
477; Bowsher v. Synar, 478 U.S. 714 (1986); Chadha, 462 U.S. 919; Myers v. United States, 272
U.S. 52 (1926); and actions by either branch that trench upon the territory of the Judiciary, see
Stern, 131 S.Ct. 2594; Plaut, 514 U.S. 211; United States v. Will, 449 U.S. 200 (1980); United
States v. Klein, 13 Wall. 128 (1872); Hayburn’s Case, 2 Dall. 409 (1792).
In these and other cases, we have emphasized that the values of liberty and accountability protected
by the separation of powers belong not to any branch of the Government but to the Nation as a
whole. See Bowsher, 478 U.S., at 722. A branch’s consent to a diminution of its constitutional
powers therefore does not mitigate the harm or cure the wrong. “Liberty is always at stake when
one or more of the branches seek to transgress the separation of powers.” Clinton v. City of New
York, 524 U.S. 417, 450 (1998) (KENNEDY, J., concurring). When the Executive and the
Legislature agreed to bypass the Article I, § 7, requirements of bicameralism and presentment by
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creating a Presidential line-item veto—a very pragmatic proposal—the Court held that the
arrangement violated the Constitution notwithstanding the voluntary participation of both branches.
Id., at 421 (majority opinion). Likewise, the Court struck down a one-House “legislative veto” that
violated Article I, § 7, even though Presidents and Congresses had agreed to include similar
provisions in hundreds of laws for more than 50 years. Chadha, 462 U.S., at 944–945.
In neither of these cases did the branches’ willing embrace of a separation of powers violation
weaken the Court’s scrutiny. To the contrary, the branches’ “enthusiasm” for the offending
arrangements “‘sharpened rather than blunted’ our review.” Noel Canning, 134 S.Ct., at 2593
(SCALIA, J., concurring in judgment) (quoting Chadha, 462 U.S., at 944). In short, because the
structural provisions of the Constitution protect liberty and not just government entities, “the
separation of powers does not depend on ... whether ‘the encroached-upon branch approves the
encroachment.’ ” PCAOB, 561 U.S., at 497 (quoting New York v. United States, 505 U.S. 144, 182
(1992)).
B
If a branch of the Federal Government may not consent to a violation of the separation of powers,
surely a private litigant may not do so. Just as a branch of Government may not consent away the
individual liberty interest protected by the separation of powers, so too an individual may not
consent away the institutional interest protected by the separation of powers. To be sure, a private
litigant may consensually relinquish individual constitutional rights. A federal criminal defendant,
for example, may knowingly and voluntarily waive his Sixth Amendment right to a jury trial by
pleading guilty to a charged offense. See Brady v. United States, 397 U.S. 742 (1970). But that
same defendant may not agree to stand trial on federal charges before a state court, a foreign court,
or a moot court, because those courts have no constitutional authority to exercise judicial power
over his case, and he has no power to confer it. A “lack of federal jurisdiction cannot be waived or
be overcome by an agreement of the parties.” Mitchell v. Maurer, 293 U.S. 237, 244 (1934).
As the majority recognizes, the Court’s most extensive discussion of litigant consent in a separation
of powers case occurred in Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986).
There the Court held that Article III confers both a “personal right” that can be waived through
consent and a structural component that “safeguards the role of the Judicial Branch in our tripartite
system.” Id., at 848, 850. “To the extent that this structural principle is implicated in a given case,
the parties cannot by consent cure the constitutional difficulty for the same reason that the parties
by consent cannot confer on federal courts subject-matter jurisdiction beyond the limitations
imposed by Article III.” Id., at 850–851. Thus, when “Article III limitations are at issue, notions of
consent and waiver cannot be dispositive because the limitations serve institutional interests that
the parties cannot be expected to protect.” Id., at 851.
Schor’s holding that a private litigant can consent to an Article III violation that affects only his
“personal right” has been vigorously contested. See id., at 867 (Brennan, J., dissenting) (“Because
the individual and structural interests served by Article III are coextensive, I do not believe that a
litigant may ever waive his right to an Article III tribunal where one is constitutionally required”);
Granfinanciera, 492 U.S., at 70 (SCALIA, J., concurring in part and concurring in judgment). But
whatever the merits of that position, nobody disputes that Schor forbids a litigant from consenting
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to a constitutional violation when the structural component of Article III “is implicated.” 478 U.S.,
at 850–851. Thus, the key inquiry in this case—as the majority puts it—is “whether allowing
bankruptcy courts to decide Stern claims by consent would ‘impermissibly threaten the institutional
integrity of the Judicial Branch.’” Ante, at 1944 (quoting Schor, 478 U.S., at 851; alteration
omitted).
One need not search far to find the answer. In Stern, this Court applied the analysis from Schor to
bankruptcy courts and concluded that they lack Article III authority to enter final judgments on
matters now known as Stern claims. The Court noted that bankruptcy courts, unlike the
administrative agency in Schor, were endowed by Congress with “substantive jurisdiction reaching
any area of the corpus juris,” power to render final judgments enforceable without any action by
Article III courts, and authority to adjudicate counterclaims entirely independent of the bankruptcy
itself. 131 S.Ct., at 2613–2616. The Court concluded that allowing Congress to bestow such
authority on non-Article III courts would “compromise the integrity of the system of separated
powers and the role of the Judiciary in that system.” Id., at 2620. If there was any room for doubt
about the basis for its holding, the Court dispelled it by asking a question: “Is there really a threat
to the separation of powers where Congress has conferred the judicial power outside Article III
only over certain counterclaims in bankruptcy?” Id., at 2620. “The short but emphatic answer is
yes.” Ibid.
In other words, allowing bankruptcy courts to decide Stern claims by consent would
“impermissibly threaten the institutional integrity of the Judicial Branch.” Ante, at 1944 (internal
quotation marks and alteration omitted). It is little wonder that the Court of Appeals felt itself
bound by Stern and Schor to hold that Sharif’s consent could not cure the Stern violation. 727 F.3d
751, 771 (C.A.7 2013). Other Courts of Appeals have adopted the same reading. See In re BP RE,
L.P., 735 F.3d 279, 287 (C.A.5 2013); Waldman v. Stone, 698 F.3d 910, 917–918 (C.A.6 2012).
The majority attempts to avoid this conclusion through an imaginative reconstruction of Stern. As
the majority sees it, Stern “turned on the fact that the litigant ‘did not truly consent to’ resolution of
the claim” against him in the Bankruptcy Court. Ante, at 1946 (quoting 131 S.Ct., at 2614). That is
not a proper reading of the decision. The constitutional analysis in Stern, spanning 22 pages,
contained exactly one affirmative reference to the lack of consent. See ibid. That reference came
amid a long list of factors distinguishing the proceeding in Stern from the proceedings in Schor and
other “public rights” cases. 131 S.Ct., at 2614–2616. Stern ‘s subsequent sentences made clear that
the notions of consent relied upon by the Court in Schor did not apply in bankruptcy because
“creditors lack an alternative forum to the bankruptcy court in which to pursue their claims.” 131
S.Ct., at 2615 (quoting Granfinanciera, 492 U.S., at 59, n. 14). Put simply, the litigant in Stern did
not consent because he could not consent given the nature of bankruptcy.
There was an opinion in Stern that turned heavily on consent: the dissent. 131 S.Ct., at 2627–2629
(opinion of BREYER, J.). The Stern majority responded to the dissent with a counterfactual: Even
if consent were relevant to the analysis, that factor would not change the result because the litigant
did not truly consent. Id., at 2614–2616. Moreover, Stern held that “it does not matter who”
authorizes a bankruptcy judge to render final judgments on Stern claims, because the
“constitutional bar remains.” Id., at 2619. That holding is incompatible with the majority’s
conclusion today that two litigants can authorize a bankruptcy judge to render final judgments on
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Stern claims, despite the constitutional bar that remains.
The majority also relies heavily on the supervision and control that Article III courts exercise over
bankruptcy courts. * * * As the majority notes, court of appeals judges appoint bankruptcy judges,
and bankruptcy judges receive cases only on referral from district courts (although every district
court in the country has adopted a standing rule automatically referring all bankruptcy filings to
bankruptcy judges, see 1 Collier on Bankruptcy ¶ 3.02[1], p. 3–26 (16th ed. 2014)). The problem is
that Congress has also given bankruptcy courts authority to enter final judgments subject only to
deferential appellate review, and Article III precludes those judgments when they involve Stern
claims. The fact that Article III judges played a role in the Article III violation does not remedy the
constitutional harm. We have already explained why.
It is a fundamental principle that no branch of government can delegate its constitutional functions
to an actor who lacks authority to exercise those functions. See Whitman v. American Trucking
Assns., Inc., 531 U.S. 457, 472 (2001); Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936). Such
delegations threaten liberty and thwart accountability by empowering entities that lack the
structural protections the Framers carefully devised. See Department of Transportation v.
Association of American Railroads, 135 S.Ct. 1225, 1236–1238 (2015) (ALITO, J., concurring); id.
at 1240–1241 (THOMAS, J., concurring in judgment); Mistretta v. United States, 488 U.S. 361,
417–422 (1989) (SCALIA, J., dissenting). Article III judges have no constitutional authority to
delegate the judicial power—the power to “render dispositive judgments”—to non-Article III
judges, no matter how closely they control or supervise their work. Plaut, 514 U.S., at 219 (internal
quotation marks omitted).
In any event, the majority’s arguments about supervision and control are not new. They were
considered and rejected in Stern. See 131 S.Ct., at 2619 (“it does not matter who appointed the
bankruptcy judge or authorized the judge to render final judgments”); see also Northern Pipeline,
458 U.S., at 84–86 (plurality opinion); id., at 91 (Rehnquist, J., concurring in judgment). The
majority points to no differences between the bankruptcy proceeding in Stern and the bankruptcy
proceeding here, except for Sharif’s purported consent. The majority thus treats consent as
“dispositive” in curing the structural separation of powers violation—precisely what Schor said
consent could not do. 478 U.S., at 851.
C
Eager to change the subject from Stern, the majority devotes considerable attention to defending
the authority of magistrate judges, who may conduct certain proceedings with the consent of the
parties under 28 U.S.C. § 636. No one here challenges the constitutionality of magistrate judges or
disputes that they, like bankruptcy judges, may issue reports and recommendations that are
reviewed de novo by Article III judges. The cases about magistrate judges cited by the majority
therefore have little bearing on this case, because none of them involved a constitutional challenge
to the entry of final judgment by a non-Article III actor. See Roell v. Withrow, 538 U.S. 580 (2003)
(statutory challenge only); Peretz v. United States, 501 U.S. 923 (1991) (challenge to a magistrate
judge’s conduct of voir dire in a felony trial); Gomez v. United States, 490 U.S. 858 (1989) (same).
The majority also points to 19th-century cases in which courts referred disputes to non-Article III
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referees, masters, or arbitrators. Ante, at 1942. In those cases, however, it was the Article III court
that ultimately entered final judgment. E.g., Thornton v. Carson, 7 Cranch 596, 600, 3 L.Ed. 451
(1813) (“the Court was right in entering the judgment for the sums awarded”). Article III courts do
refer matters to non-Article III actors for assistance from time to time. This Court does so regularly
in original jurisdiction cases. See, e.g., Kansas v. Nebraska, 135 S.Ct. 1042, 1048–1049 (2015).
But under the Constitution, the “ultimate responsibility for deciding” the case must remain with the
Article III court. Id., at at 1051 (quoting Colorado v. New Mexico, 467 U.S. 310, 317 (1984)).
****
The discussion of magistrate judges, masters, arbitrators, and the like fits with the majority’s focus
on the supposedly dire consequences that would follow a decision that parties cannot consent to the
final adjudication of Stern claims in bankruptcy courts. Of course, it “goes without saying” that
practical considerations of efficiency and convenience cannot trump the structural protections of
the Constitution. Stern, 131 S.Ct., at 2619; see Perez, 135 S.Ct., at 1223–1224 (THOMAS, J.,
concurring in judgment) (“Even in the face of perceived necessity, the Constitution protects us
from ourselves.”). And I find it hard to believe that the Framers in Philadelphia, who took great
care to ensure that the Judiciary was “truly distinct” from the Legislature, would have been
comforted to know that Congress’s incursion here could “only be termed de minimis.” Ante, at
1945 (quoting Schor, 478 U.S., at 856).
In any event, the majority overstates the consequences of enforcing the requirements of Article III
in this case. As explained in Part I, Wellness’s claim may not be a Stern claim, in which case the
bankruptcy statute would apply precisely as Congress wrote it. Even if Wellness’s claim were a
Stern claim, the District Court would not need to start from scratch. As this Court held in Arkison,
the District Court could treat the bankruptcy judge’s decision as a recommendation and enter
judgment after performing de novo review. 134 S.Ct., at 2170.
In Stern, the Court cautioned that Congress “may no more lawfully chip away at the authority of
the Judicial Branch than it may eliminate it entirely.” 131 S.Ct., at 2620. The majority sees no
reason to fret, however, so long as two private parties consent. Ante, at 1945 – 1946, n. 10. But
such parties are unlikely to carefully weigh the long-term structural independence of the Article III
judiciary against their own short-term priorities. Perhaps the majority’s acquiescence in this
diminution of constitutional authority will escape notice. Far more likely, however, it will amount
to the kind of “blueprint for extensive expansion of the legislative power” that we have resisted in
the past. PCAOB, 561 U.S., at 500, 130 S.Ct. 3138 (quoting Metropolitan Washington Airports
Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 277 (1991)).
The encroachment at issue here may seem benign enough. Bankruptcy judges are devoted
professionals who strive to be fair to all sides, and litigants can be trusted to protect their own
interests when deciding whether to consent. But the fact remains that Congress controls the salary
and tenure of bankruptcy judges, and the Legislature’s present solicitude provides no guarantee of
its future restraint. See Glidden Co. v. Zdanok, 370 U.S. 530, 534 (1962) (plurality opinion). Once
Congress knows that it can assign federal claims to judges outside Article III with the parties’
consent, nothing would limit its exercise of that power to bankruptcy. Congress may consider it
advantageous to allow claims to be heard before judges subject to greater legislative control in any
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number of areas of federal concern. As for the requirement of consent, Congress can find ways to
“encourage” consent, say by requiring it as a condition of federal benefits. That has worked to
expand Congress’s power before. See, e.g., College Savings Bank v. Florida Prepaid
Postsecondary Ed. Expense Bd., 527 U.S. 666, 686, (1999) (“Congress may, in the exercise of its
spending power, condition its grant of funds to the States upon their taking certain actions that
Congress could not require them to take”); South Dakota v. Dole, 483 U.S. 203, 207 (1987) (same).
Legislative designs of this kind would not displace the Article III judiciary overnight. But steady
erosion of Article III authority, no less than a brazen usurpation, violates the constitutional
separation of powers. In a Federal Government of limited powers, one branch’s loss is another
branch’s gain, see PCAOB, 561 U.S., at 500, so whether a branch aims to “arrogate power to itself”
or to “impair another in the performance of its constitutional duties,” the Constitution forbids the
transgression all the same. Loving, 517 U.S., at 757. As we have cautioned, “[s]light
encroachments create new boundaries from which legions of power can seek new territory to
capture.” Stern, 131 S.Ct., at 2620 (internal quotation marks omitted).
The Framers understood this danger. They warned that the Legislature would inevitably seek to
draw greater power into its “impetuous vortex,” The Federalist No. 48, at 309 (J. Madison), and
that “power over a man’s subsistence amounts to a power over his will,” id., No. 79, at 472 (A.
Hamilton) (emphasis deleted). In response, the Framers adopted the structural protections of
Article III, “establishing high walls and clear distinctions because low walls and vague distinctions
will not be judicially defensible in the heat of interbranch conflict.” Plaut, 514 U.S., at 239. As this
Court once put it, invoking Frost, “Good fences make good neighbors.” Id., at 240.
Ultimately, however, the structural protections of Article III are only as strong as this Court’s will
to enforce them. In Madison’s words, the “great security against a gradual concentration of the
several powers in the same department consists in giving to those who administer each department
the necessary constitutional means and personal motives to resist encroachments of the others.”
The Federalist No. 51, at 321–322 (J. Madison). The Court today declines to resist encroachment
by the Legislature. Instead it holds that a single federal judge, for reasons adequate to him, may
assign away our hard-won constitutional birthright so long as two private parties agree. I hope I
will be wrong about the consequences of this decision for the independence of the Judicial Branch.
But for now, another literary passage comes to mind: It profits the Court nothing to give its soul for
the whole world ... but to avoid Stern claims?
I respectfully dissent.
Justice THOMAS, dissenting.
Like THE CHIEF JUSTICE, I would have remanded this case to the lower courts to determine,
under the proper standard, whether Wellness’ alter-ego claim is a Stern claim. See Stern v.
Marshall, 131 S.Ct. 2594 (2011). I write separately to highlight a few questions touching on the
consent issue that merit closer attention than either the Court or THE CHIEF JUSTICE gives them.
I agree with THE CHIEF JUSTICE that individuals cannot consent to violations of the
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Constitution, but this principle has nothing to do with whose interest the violated provision
protects. Anytime the Federal Government acts in a manner inconsistent with the separation of
powers, it acts in excess of its constitutional authority. That authority is carefully defined by the
Constitution, and, except through Article V’s amendment process, that document does not permit
individuals to bestow additional power upon the Government.
The majority today authorizes non-Article III courts to adjudicate, with consent, claims that we
have held to require an exercise of the judicial power based on its assessment that few “structural
interests” are implicated by consent to the adjudication of Stern claims. See ante, at 1941 – 1942,
1944. That reasoning is flawed. It matters not whether we think the particular violation threatens
the structure of our Government. Our duty is to enforce the Constitution as written, not as revised
by private consent, innocuous or otherwise. Worse, amidst the tempest over whether “structural
interests” are implicated when an individual consents to adjudication of Stern claims by a nonArticle III court, both the majority and THE CHIEF JUSTICE fail to grapple with the antecedent
question: whether a violation of the Constitution has actually occurred. That question is a difficult
one, and the majority makes a grave mistake by skipping over it in its quest to answer the question
whether consent can authorize a constitutional violation. Because I would resolve this case on
narrower grounds, I need not decide that question here. I nevertheless write separately to highlight
the complexity of the issues the majority simply brushes past.
****
Whether parties may consent to bankruptcy court adjudication of Stern claims is a difficult
constitutional question. It turns on issues that are not adequately considered by the Court or briefed
by the parties. And it cannot—and should not—be resolved through a cursory reading of Schor,
which itself is hardly a model of careful constitutional interpretation. For these reasons, I would
resolve the case on the narrow grounds set forth in Part I of THE CHIEF JUSTICE’s opinion. I
respectfully dissent.

117

CHICAGO TRIBUNE COMPANY
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS
680 F.3d 1001 (7th Cir. 2012)
Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge.
Beginning in 2009, the Chicago Tribune published a series of articles collectively known as
“Clout Goes to College.” The Tribune revealed that the University of Illinois had a special process
for reviewing the applications of persons with well-placed supporters. Many applicants considered
through this process were admitted even though they would not have been under the University's
normal criteria. The President of the University system, the Chancellor of one campus, and seven
of the nine members of the University's Board of Trustees eventually resigned. Wikipedia collects
some of this information in an entry entitled “University of Illinois clout scandal”.
The Tribune sought additional information through the Illinois Freedom of Information Act,
5 ILCS 140/1 to 140/11.5. The University is covered by this statute and therefore must make
requested documents available, unless an exemption applies. 5 ILCS 140/1.2, 140/3. The Tribune
requested, for every applicant in “Category I” (one of the categories of clout-heavy applicants), the
names and addresses of the applicants' parents and the identity of everyone “involved in such
applicants' applications.” In response, the University invoked Exemption 1(a), which provides that
agencies will withhold “[i]nformation specifically prohibited from disclosure by federal or State law
or rules and regulations implementing federal or State law.” 5 ILCS 140/7(1)(a). It pointed to
20 U.S.C. § 1232g(b)(1), part of the Family Education Rights and Privacy Act of 1974 (FERPA or
“the 1974 Act”), as the federal statute that in the University's view specifically prohibits the
disclosure. It provides:
No funds shall be made available under any applicable program to any educational agency or
institution which has a policy or practice of permitting the release of education records (or
personally identifiable information contained therein other than directory information, as defined
in paragraph (5) of subsection (a) of this section) of students without the written consent of their
parents to any individual, agency, or organization....
Section 1232g(b)(1) has some exceptions, but none covers what the Tribune wants. The
University asserted that even though the Tribune sought the identities of applicants' parents rather
than students, identifying parents necessarily would disclose “education records” or “personally
identifiable information” about many students—which after all is the Tribune's goal. The
newspaper's articles were about persons admitted despite not meeting the University's normal criteria
rather than people whose applications were turned down.
The University added: “[W]e would anticipate that additional exemptions of the Illinois FOIA
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likely would apply if all of the responsive records were gathered and reviewed. For example, we
would expect that responsive documents would contain information exempt from disclosure pursuant
to several provisions of the Act, including the following: section 7(1)(b)(i) (‘files and personal
information maintained with respect to ... students ... receiving ... educational ... services ... from ...
public bodies'); section 7(1)(b) (unwarranted invasion of personal privacy); and section 7(1)(f)
(drafts/predecisional deliberative communications).” The Tribune asked for review within the
University's administrative hierarchy. A letter from the University's President rejected the Tribune's
appeal.
The Tribune's claim of access to these documents arises under Illinois law, so one would have
expected the next step to be a suit in state court. The parties are not of diverse citizenship, and
anyway it is not possible to sue an arm of state government in federal court to vindicate a claim
under state law. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900,
79 L.Ed.2d 67 (1984). Yet instead of seeking the documents through state litigation, the Tribune
asked a federal district court for a declaratory judgment that the University misunderstands FERPA.
The district court granted the Tribune's motion for summary judgment, 781 F.Supp.2d 672
(N.D.Ill.2011), after concluding that the phrase “prohibited from disclosure by federal or State law”
in 5 ILCS 140/7(1)(a) means only statutes that directly forbid disclosure. The 1974 Act, by contrast,
tells the Secretary of Education when it is lawful to grant federal money to a unit of state
government. The district judge understood § 1232g(b)(1) to take state law or policy as a given and
provide or withhold federal funds accordingly. The University, by contrast, proposes to take the
federal grant as a given and treat the conditions as if they were statutory, rather than as terms of
state-federal cooperation. As the district court saw things, Illinois may commit a breach of contract
if it releases the information the Tribune requested, but no federal law “prohibits” disclosure within
the meaning of 5 ILCS 140/7(1)(a).
The briefs of both sides in this court contend that 28 U.S.C. § 1331, the federal-question
jurisdiction, supplies subject-matter jurisdiction for this suit. The district judge must have assumed
likewise. But the United States, whose brief as amicus curiae supports the University's understanding
of the 1974 Act, also observes that there is serious doubt about subject-matter jurisdiction, because
the Tribune's claim to the documents arises under state rather than federal law. The University may
have a federal defense to the Tribune's claim, but it is blackletter law that a federal defense differs
from a claim arising under federal law. See, e.g., Merrell Dow Pharmaceuticals Inc. v. Thompson,
478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). And although the University, as the natural
defendant in state court, might have been able to seek a federal declaratory judgment under the
mirror-image doctrine applicable to declaratory litigation, see NewPage Wisconsin System Inc. v.
United Steel Workers, 651 F.3d 775 (7th Cir.2011) (collecting authority), the Tribune rather than the
University commenced this suit. The Tribune is the natural plaintiff and cannot use 28 U.S.C.
§ 2201, the declaratory-judgment statute, to have a federal court blot out a potential federal defense
to its own potential state-law suit. See, e.g., Franchise Tax Board v. Construction Laborers Vacation
Trust, 463 U.S. 1, 16, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Skelly Oil Co. v. Phillips Petroleum
Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950).

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We asked the parties to file supplemental briefs addressing subject-matter jurisdiction. Both sides
contend that jurisdiction is proper under the approach of Grable & Sons Metal Products, Inc. v.
Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). Yet
Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 126 S.Ct. 2121, 165 L.Ed.2d 131
(2006), shows that Grable does not alter the rule that a potential federal defense is not enough to
create federal jurisdiction under § 1331. See also Bennett v. Southwest Airlines Co., 484 F.3d 907,
rehearing denied, 493 F.3d 762 (7th Cir.2007). Some of the language in Grable could be read to say
that all important federal issues should be resolved in a federal forum, but Empire Healthchoice
concluded that Grable should not be so understood.
Indeed, Grable has nothing to do with using federal defenses to move litigation to federal court.
In Grable the federal issue was part of the plaintiff's own claim. The Internal Revenue Service had
seized real property to satisfy a tax lien and sold the property to Darue. Grable, the taxpayer, filed
a quiet-title action in state court, asserting that Darue's title was invalid because the IRS had given
notice of the seizure in the wrong way (by certified mail rather than a process server). The Supreme
Court had to decide whether a claim “arises under” federal law for the purpose of § 1331 when one
element of a claim depends on state law and another on federal law. It concluded that the claim is
federal when “a state-law claim necessarily raise[s] a stated federal issue, actually disputed and
substantial, which a federal forum may entertain without disturbing any congressionally approved
balance of federal and state judicial responsibilities.” 545 U.S. at 314, 125 S.Ct. 2363. This
formulation can lead to problems in application, see Samuel C. Johnson 1988 Trust v. Bayfield
County, 649 F.3d 799 (7th Cir.2011), though often matters will be straightforward. In Empire
Healthchoice, for example, the Court observed that Grable depended on the fact that the dispute
“centered on the action of a federal agency (IRS) and its compatibility with a federal statute, the
question qualified as ‘substantial,’ and its resolution was both dispositive of the case and would be
controlling in numerous other cases.” 547 U.S. at 700, 126 S.Ct. 2121. Take away those
ingredients—none was satisfied in Empire Healthchoice—and there is no federal jurisdiction.
Here, unlike Grable, the claim for the documents arises under state law, and only state law;
the Tribune's request for the information does not depend on even a smidgeon of federal law. No
federal agency's decision has been contested. The University has a potential defense under § 7(1)(a),
but even that may depend on state rather than federal law. (We expand on this observation below.)
The § 7(1)(a) exemption is not necessarily dispositive. Recall that the University's letter rejecting
the Tribune's request mentioned § 7(1)(b)(i), which entitles student records to protection. It is not
clear to us that the 1974 Act and the implementing regulations forbid disclosure of any document
that is outside the scope of the § 7(1)(b)(i) exemption. A state court therefore might rule in the
University's favor wholly as a matter of state law—which suggests that the federal issue not only is
not “necessarily” presented, but may never be presented at all, rendering a federal court's decision
nothing but an advisory opinion. The University has other potential state-law defenses as well.
Let us return to the question whether the University's reliance on § 7(1)(a) creates a question of
federal law. The Tribune assumes that availability of Exemption 1(a) depends entirely on
§ 1232g(b)(1). The meaning of § 1232g is a question of federal law, to be sure. But before a court

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reaches any federal issue, it must resolve the meaning of § 7(1)(a) itself, and that's a question of
Illinois law. It provides, recall, that “[i]nformation specifically prohibited from disclosure by federal
or State law” is exempt from the Illinois Freedom of Information Act. What does it mean to say that
information is “specifically prohibited from disclosure by federal ... law”? The 1974 Act does not
by itself forbid any state to disclose anything. It says that the Secretary of Education must not make
grants to state bodies whose policy allows the disclosure of student records. Any state can turn down
the money and disclose whatever it wants. The most one can say about federal law is that, if a state
takes the money, then it must honor the conditions of the grant, including nondisclosure. See Owasso
Independent School District v. Falvo, 534 U.S. 426, 428, 122 S.Ct. 934, 151 L.Ed.2d 896 (2002);
United States v. Miami University, 294 F.3d 797 (6th Cir.2002). Honoring a grant's conditions is a
matter of contract rather than a command of federal law. It is of course possible that information is
“specifically prohibited from disclosure by federal ... law” when the state has entered into a
contractual commitment with the federal government under which disclosure is forbidden as long
as the contract lasts. But it is also possible that for the purpose of § 7(1)(a) information is
“specifically prohibited from disclosure by federal ... law” only when federal law is
unconditional—when there is nothing the state can do (such as turning down proffered funds) to
honor the pro-disclosure norm in the Illinois FOIA.
This is not just a semantic quibble. Illinois cannot avoid the effects of its commitment to the
federal government by giving a narrow reading to “specifically prohibited from disclosure by federal
... law”. Even if Illinois law purports to command the disclosure of particular information, the
Supremacy Clause means that federal law prevails. The University thus can assert a defense directly
under federal law independent of § 7(1)(a). But that “pure” argument about the meaning of the 1974
Act belongs in federal court only in a suit by the United States. Gonzaga University v. Doe, 536 U.S.
273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), holds that § 1232g, on which the University relies,
does not support a private right of action in federal court. See also Astra USA, Inc. v. Santa Clara
County, ––– U.S. ––––, 131 S.Ct. 1342, 179 L.Ed.2d 457 (2011) (third-party beneficiaries of federal
funding contracts cannot sue in federal court to enforce the conditions). Section 1232g can be
enforced defensively (as a matter of contract) in state court, or in a federal suit by the United States.
That's how Miami University came to federal court; the United States filed its own suit to enforce
the conditions the state university had accepted with the federal grants.
What happened in this case is hard to reconcile with Gonzaga University. The Tribune, a stranger
to the contract between the University of Illinois and the Department of Education, filed a suit in
which (on the Tribune's view) the only issue is the effect of § 1232g(b)(1). Doe, the private party in
Gonzaga University, was at least a student and thus a beneficiary of the 1974 Act's privacy
protections. If a student cannot file suit in federal court to enforce § 1232g(b)(1), why would a
non-beneficiary of the statute (and non-party to the contract) be entitled to a judicial ruling on its
scope? To put this differently, it was important in Grable that the question at hand—how must the
Commissioner of Internal Revenue notify a taxpayer whose property is about to be confiscated to
satisfy a tax debt?—is one that federal courts are supposed to resolve, for the benefit of both federal
taxpayers and the national government. By contrast, under Gonzaga University, the question the
Tribune wants to raise—what privacy protections follow from states' decisions to accept funds under

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the 1974 Act?—is one the federal courts are supposed not to resolve, unless the United States sues
in its own name to enforce the conditions of the grant.
Grable held that federal jurisdiction does not depend on the existence of a private right of action
for damages, so we do not hold that Gonzaga University has a jurisdictional effect. What we do
conclude is that Grable does not overrule the holdings of Skelly Oil and many later decisions that the
natural plaintiff in a claim arising under state law cannot use a declaratory-judgment action to litigate
an anticipated federal defense in federal court. The Tribune accordingly must proceed in a court of
Illinois.
There is a substantial public interest in the information the Tribune seeks. There is also a
substantial public interest, under both § 1232g(b)(1) and 5 ILCS 140/7(b)(1), in protecting the
legitimate privacy of students and their families. Because the Tribune's claim to the information
arises under Illinois law, the state court is the right forum to determine the validity of whatever
defenses the University presents to the Tribune's request. We do not express any opinion on whether
the information the Tribune seeks relates to student records within the meaning of the 1974 Act and
the implementing regulations. The district court's judgment is vacated, and the case is remanded with
instructions to dismiss for want of subject-matter jurisdiction.

122

SPRINT COMMUNICATIONS, INC. v. JACOBS
134 S. Ct. 584 (2013)
Justice GINSBURG delivered the opinion of the Court.
This case involves two proceedings, one pending in state court, the other in federal court. Each
seeks review of an Iowa Utilities Board (IUB or Board) order. And each presents the question
whether Windstream Iowa Communications, Inc. (Windstream), a local telecommunications
carrier, may impose on Sprint Communications, Inc. (Sprint), intrastate access charges for
telephone calls transported via the Internet. Federal-court jurisdiction over controversies of this
kind was confirmed in Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635 (2002).
Invoking Younger v. Harris, 401 U.S. 37 (1971), the U.S. District Court for the Southern District of
Iowa abstained from adjudicating Sprint's complaint in deference to the parallel state-court
proceeding, and the Court of Appeals for the Eighth Circuit affirmed the District Court's abstention
decision.
We reverse the judgment of the Court of Appeals. In the main, federal courts are obliged to
decide cases within the scope of federal jurisdiction. Abstention is not in order simply because a
pending state-court proceeding involves the same subject matter. New Orleans Public Service, Inc.
v. Council of City of New Orleans, 491 U.S. 350, 373 (1989) (NOPSI ) (“[T]here is no doctrine that
... pendency of state judicial proceedings excludes the federal courts.”). This Court has recognized,
however, certain instances in which the prospect of undue interference with state proceedings
counsels against federal relief. See id., at 368.
Younger exemplifies one class of cases in which federal-court abstention is required: When
there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the
state prosecution. This Court has extended Younger abstention to particular state civil proceedings
that are akin to criminal prosecutions, see Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), or that
implicate a State's interest in enforcing the orders and judgments of its courts, see Pennzoil Co. v.
Texaco Inc., 481 U.S. 1 (1987). We have cautioned, however, that federal courts ordinarily should
entertain and resolve on the merits an action within the scope of a jurisdictional grant, and should
not “refus[e] to decide a case in deference to the States.” NOPSI, 491 U.S., at 368.
Circumstances fitting within the Younger doctrine, we have stressed, are “exceptional”; they
include, as catalogued in NOPSI, “state criminal prosecutions,” “civil enforcement proceedings,”
and “civil proceedings involving certain orders that are uniquely in furtherance of the state courts'
ability to perform their judicial functions.” Id., at 367–368. Because this case presents none of the
circumstances the Court has ranked as “exceptional,” the general rule governs: “[T]he pendency of
an action in [a] state court is no bar to proceedings concerning the same matter in the Federal court
having jurisdiction.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817
(1976) (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910)).
I
Sprint, a national telecommunications service provider, has long paid intercarrier access fees to
the Iowa communications company Windstream (formerly Iowa Telecom) for certain long distance
calls placed by Sprint customers to Windstream's in-state customers. In 2009, however, Sprint
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decided to withhold payment for a subset of those calls, classified as Voice over Internet Protocol
(VoIP), after concluding that the Telecommunications Act of 1996 preempted intrastate regulation
of VoIP traffic.FN1 In response, Windstream threatened to block all calls to and from Sprint
customers.
FN1. The Federal Communications Commission has yet to provide its view on whether the
Telecommunications Act categorically preempts intrastate access charges for VoIP calls.
See In re Connect America Fund, 26 FCC Rcd. 17663, 18002, ¶ 934 (2011) (reserving the
question whether all VoIP calls “must be subject exclusively to federal regulation”).
Sprint filed a complaint against Windstream with the IUB asking the Board to enjoin
Windstream from discontinuing service to Sprint. In Sprint's view, Iowa law entitled it to withhold
payment while it contested the access charges and prohibited Windstream from carrying out its
disconnection threat. In answer to Sprint's complaint, Windstream retracted its threat to discontinue
serving Sprint, and Sprint moved, successfully, to withdraw its complaint. Because the conflict
between Sprint and Windstream over VoIP calls was “likely to recur,” however, the IUB decided to
continue the proceedings to resolve the underlying legal question, i.e., whether VoIP calls are
subject to intrastate regulation. Order in Sprint Communications Co. v. Iowa Telecommunications
Servs., Inc., No. FCU–2010–0001, 2010 WL 421105 (IUB, Feb. 1, 2010), p. 6 (IUB Order). The
question retained by the IUB, Sprint argued, was governed by federal law, and was not within the
IUB's adjudicative jurisdiction. The IUB disagreed, ruling that the intrastate fees applied to VoIP
calls.FN2
FN2. At the conclusion of the IUB proceedings, Sprint paid Windstream all contested fees.
Seeking to overturn the Board's ruling, Sprint commenced two lawsuits. First, Sprint sued the
members of the IUB (respondents here)FN3 in their official capacities in the United States District
Court for the Southern District of Iowa. In its federal-court complaint, Sprint sought a declaration
that the Telecommunications Act of 1996 preempted the IUB's decision; as relief, Sprint requested
an injunction against enforcement of the IUB's order. Second, Sprint petitioned for review of the
IUB's order in Iowa state court. The state petition reiterated the preemption argument Sprint made
in its federal-court complaint; in addition, Sprint asserted state law and procedural due process
claims. Because Eighth Circuit precedent effectively required a plaintiff to exhaust state remedies
before proceeding to federal court, see Alleghany Corp. v. McCartney, 896 F.2d 1138 (1990),
Sprint urges that it filed the state suit as a protective measure. Failing to do so, Sprint explains,
risked losing the opportunity to obtain any review, federal or state, should the federal court decide
to abstain after the expiration of the Iowa statute of limitations. See Brief for Petitioner 7–8.FN4
FN3. For convenience, we refer to respondents collectively as the IUB.
FN4. Since we granted certiorari, the Iowa state court issued an opinion rejecting Sprint's
preemption claim on the merits. Sprint Communications Co. v. Iowa Utils. Bd., No. CV–
8638, App. to Joint Supp. Brief 20a–36a (Iowa Dist.Ct., Sept. 16, 2013). The Iowa court
decision does not, in the parties' view, moot this case, see Joint Supp. Brief 1, and we agree.
Because Sprint intends to appeal the state-court decision, the “controversy ... remains live.”
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 291, n.7 (2005).
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As Sprint anticipated, the IUB filed a motion asking the Federal District Court to abstain in
light of the state suit, citing Younger v. Harris, 401 U.S. 37 (1971). The District Court granted the
IUB's motion and dismissed the suit. The IUB's decision, and the pending state-court review of it,
the District Court said, composed one “uninterruptible process” implicating important state
interests. On that ground, the court ruled, Younger abstention was in order. Sprint Communications
Co. v. Berntsen, No. 4:11–cv–00183–JAJ (S.D.Iowa, Aug. 1, 2011), App. to Pet. for Cert. 24a.
For the most part, the Eighth Circuit agreed with the District Court's judgment. The Court of
Appeals rejected the argument, accepted by several of its sister courts, that Younger abstention is
appropriate only when the parallel state proceedings are “coercive,” rather than “remedial,” in
nature. 690 F.3d 864, 868 (2012); cf. Guillemard–Ginorio v. Contreras–Gómez, 585 F.3d 508, 522
(C.A.1 2009) (“[P]roceedings must be coercive, and in most cases, state-initiated, in order to
warrant abstention.”). Instead, the Eighth Circuit read this Court's precedent to require Younger
abstention whenever “an ongoing state judicial proceeding ... implicates important state interests,
and ... the state proceedings provide adequate opportunity to raise [federal] challenges.” 690 F.3d,
at 867 (citing Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 432,
(1982)). Those criteria were satisfied here, the appeals court held, because the ongoing state-court
review of the IUB's decision concerned Iowa's “important state interest in regulating and enforcing
its intrastate utility rates.” 690 F.3d, at 868. Recognizing the “possibility that the parties [might]
return to federal court,” however, the Court of Appeals vacated the judgment dismissing Sprint's
complaint. In lieu of dismissal, the Eighth Circuit remanded the case, instructing the District Court
to enter a stay during the pendency of the state-court action. Id., at 869.
We granted certiorari to decide whether, consistent with our delineation of cases encompassed
by the Younger doctrine, abstention was appropriate here. 569 U.S. ––––, 133 S.Ct. 1805
(2013).FN5
FN5. The IUB agrees with Sprint that our decision in Burford v. Sun Oil Co., 319 U.S. 315
(1943), cannot independently sustain the Eighth Circuit's abstention analysis. See Brief for
Respondents 9; cf. New Orleans Public Service, Inc. v. Council of City of New Orleans, 491
U.S. 350, 359 (1989).
II
A
Neither party has questioned the District Court's jurisdiction to decide whether federal law
preempted the IUB's decision, and rightly so. In Verizon Md. Inc. v. Public Serv. Comm'n of Md.,
535 U.S. 635 (2002), we reviewed a similar federal-court challenge to a state administrative
adjudication. In that case, as here, the party seeking federal-court review of a state agency's
decision urged that the Telecommunications Act of 1996 preempted the state action. We had “no
doubt that federal courts ha[d federal question] jurisdiction under [28 U.S.C.] § 1331 to entertain
such a suit,” id., at 642, and nothing in the Telecommunications Act detracted from that
conclusion, see id., at 643.
Federal courts, it was early and famously said, have “no more right to decline the exercise of
jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat.
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264, 404 (1821). Jurisdiction existing, this Court has cautioned, a federal court's “obligation” to
hear and decide a case is “virtually unflagging.” Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 817 (1976). Parallel state-court proceedings do not detract from that
obligation. See ibid.
In Younger, we recognized a “far-from-novel” exception to this general rule. New Orleans
Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 364 (1989) (NOPSI ). The
plaintiff in Younger sought federal-court adjudication of the constitutionality of the California
Criminal Syndicalism Act. Requesting an injunction against the Act's enforcement, the federalcourt plaintiff was at the time the defendant in a pending state criminal prosecution under the Act.
In those circumstances, we said, the federal court should decline to enjoin the prosecution, absent
bad faith, harassment, or a patently invalid state statute. See 401 U.S., at 53–54. Abstention was in
order, we explained, under “the basic doctrine of equity jurisprudence that courts of equity should
not act ... to restrain a criminal prosecution, when the moving party has an adequate remedy at law
and will not suffer irreparably injury if denied equitable relief.” Id., at 43–44. “[R]estraining equity
jurisdiction within narrow limits,” the Court observed, would “prevent erosion of the role of the
jury and avoid a duplication of legal proceedings and legal sanctions.” Id., at 44. We explained as
well that this doctrine was “reinforced” by the notion of “‘comity,’ that is, a proper respect for state
functions.” Ibid.
We have since applied Younger to bar federal relief in certain civil actions. Huffman v. Pursue,
Ltd., 420 U.S. 592 (1975), is the pathmarking decision. There, Ohio officials brought a civil action
in state court to abate the showing of obscene movies in Pursue's theater. Because the State was a
party and the proceeding was “in aid of and closely related to [the State's] criminal statutes,” the
Court held Younger abstention appropriate. Id., at 604.
More recently, in NOPSI, 491 U.S., at 368, the Court had occasion to review and restate our
Younger jurisprudence. NOPSI addressed and rejected an argument that a federal court should
refuse to exercise jurisdiction to review a state council's ratemaking decision. “[O]nly exceptional
circumstances,” we reaffirmed, “justify a federal court's refusal to decide a case in deference to the
States.” Ibid. Those “exceptional circumstances” exist, the Court determined after surveying prior
decisions, in three types of proceedings. First, Younger precluded federal intrusion into ongoing
state criminal prosecutions. See ibid. Second, certain “civil enforcement proceedings” warranted
abstention. Ibid. (citing, e.g., Huffman, 420 U.S., at 604). Finally, federal courts refrained from
interfering with pending “civil proceedings involving certain orders ... uniquely in furtherance of
the state courts' ability to perform their judicial functions.” 491 U.S., at 368 (citing Juidice v. Vail,
430 U.S. 327, 336, n.12 (1977), and Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 13 (1987)). We have
not applied Younger outside these three “exceptional” categories, and today hold, in accord with
NOPSI, that they define Younger 's scope.
B
The IUB does not assert that the Iowa state court's review of the Board decision, considered
alone, implicates Younger. Rather, the initial administrative proceeding justifies staying any action
in federal court, the IUB contends, until the state review process has concluded. The same
argument was advanced in NOPSI, 491 U.S., at 368. We will assume without deciding, as the
Court did in NOPSI, that an administrative adjudication and the subsequent state court's review of
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it count as a “unitary process” for Younger purposes. Id., at 369. The question remains, however,
whether the initial IUB proceeding is of the “sort ... entitled to Younger treatment.” Ibid.
The IUB proceeding, we conclude, does not fall within any of the three exceptional categories
described in NOPSI and therefore does not trigger Younger abstention. The first and third
categories plainly do not accommodate the IUB's proceeding. That proceeding was civil, not
criminal in character, and it did not touch on a state court's ability to perform its judicial function.
Cf. Juidice, 430 U.S., at 336, n.12 (civil contempt order); Pennzoil, 481 U.S., at 13 (requirement
for posting bond pending appeal).
Nor does the IUB's order rank as an act of civil enforcement of the kind to which Younger has
been extended. Our decisions applying Younger to instances of civil enforcement have generally
concerned state proceedings “akin to a criminal prosecution” in “important respects.” Huffman, 420
U.S., at 604, 95 S.Ct. 1200. See also Middlesex, 457 U.S., at 432 (Younger abstention appropriate
where “noncriminal proceedings bear a close relationship to proceedings criminal in nature”). Such
enforcement actions are characteristically initiated to sanction the federal plaintiff, i.e., the party
challenging the state action, for some wrongful act. See, e.g., Middlesex, 457 U.S., at 433–434
(state-initiated disciplinary proceedings against lawyer for violation of state ethics rules). In cases
of this genre, a state actor is routinely a party to the state proceeding and often initiates the action.
See, e.g., Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986) (stateinitiated administrative proceedings to enforce state civil rights laws); Moore v. Sims, 442 U.S.
415, 419–420 (1979) (state-initiated proceeding to gain custody of children allegedly abused by
their parents); Trainor v. Hernandez, 431 U.S. 434, 444 (1977) (civil proceeding “brought by the
State in its sovereign capacity” to recover welfare payments defendants had allegedly obtained by
fraud); Huffman, 420 U.S., at 598 (state-initiated proceeding to enforce obscenity laws).
Investigations are commonly involved, often culminating in the filing of a formal complaint or
charges. See, e.g., Dayton, 477 U.S., at 624 (noting preliminary investigation and complaint);
Middlesex, 457 U.S., at 433 (same).
The IUB proceeding does not resemble the state enforcement actions this Court has found
appropriate for Younger abstention. It is not “akin to a criminal prosecution.” Huffman, 420 U.S., at
604. Nor was it initiated by “the State in its sovereign capacity.” Trainor, 431 U.S., at 444. A
private corporation, Sprint, initiated the action. No state authority conducted an investigation into
Sprint's activities, and no state actor lodged a formal complaint against Sprint.
In its brief, the IUB emphasizes Sprint's decision to withdraw the complaint that commenced
proceedings before the Board. At that point, the IUB argues, Sprint was no longer a willing
participant, and the proceedings became, essentially, a civil enforcement action. See Brief for
Respondents 31.FN6 The IUB's adjudicative authority, however, was invoked to settle a civil dispute
between two private parties, not to sanction Sprint for commission of a wrongful act. Although
Sprint withdrew its complaint, administrative efficiency, not misconduct by Sprint, prompted the
IUB to answer the underlying federal question. By determining the intercarrier compensation
regime applicable to VoIP calls, the IUB sought to avoid renewed litigation of the parties' dispute.
Because the underlying legal question remained unsettled, the Board observed, the controversy was
“likely to recur.” IUB Order 6. Nothing here suggests that the IUB proceeding was “more akin to a
criminal prosecution than are most civil cases.” Huffman, 420 U.S., at 604.
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FN6. To determine whether a state proceeding is an enforcement action under Younger,
several Courts of Appeals, as noted, see supra, at 590, inquire whether the underlying state
proceeding is “coercive” rather than “remedial.” See, e.g., Devlin v. Kalm, 594 F.3d 893,
895 (C.A.6 2010). Though we referenced this dichotomy once in a footnote, see Ohio Civil
Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 627, n.2 (1986), we do not
find the inquiry necessary or inevitably helpful, given the susceptibility of the designations
to manipulation.
In holding that abstention was the proper course, the Eighth Circuit relied heavily on this
Court's decision in Middlesex. Younger abstention was warranted, the Court of Appeals read
Middlesex to say, whenever three conditions are met: There is (1) “an ongoing state judicial
proceeding, which (2) implicates important state interests, and (3) ... provide[s] an adequate
opportunity to raise [federal] challenges.” 690 F.3d, at 867 (citing Middlesex, 457 U.S., at 432).
Before this Court, the IUB has endorsed the Eighth Circuit's approach. Brief for Respondents 13.
The Court of Appeals and the IUB attribute to this Court's decision in Middlesex extraordinary
breadth. We invoked Younger in Middlesex to bar a federal court from entertaining a lawyer's
challenge to a New Jersey state ethics committee's pending investigation of the lawyer. Unlike the
IUB proceeding here, the state ethics committee's hearing in Middlesex was indeed “akin to a
criminal proceeding.” As we noted, an investigation and formal complaint preceded the hearing, an
agency of the State's Supreme Court initiated the hearing, and the purpose of the hearing was to
determine whether the lawyer should be disciplined for his failure to meet the State's standards of
professional conduct. 457 U.S., at 433–435. See also id., at 438 (Brennan, J., concurring in
judgment) (noting the “quasi-criminal nature of bar disciplinary proceedings”). The three
Middlesex conditions recited above were not dispositive; they were, instead, additional factors
appropriately considered by the federal court before invoking Younger.
Divorced from their quasi-criminal context, the three Middlesex conditions would extend
Younger to virtually all parallel state and federal proceedings, at least where a party could identify
a plausibly important state interest. See Tr. of Oral Arg. 35–36. That result is irreconcilable with
our dominant instruction that, even in the presence of parallel state proceedings, abstention from
the exercise of federal jurisdiction is the “exception, not the rule.” Hawaii Housing Authority v.
Midkiff, 467 U.S. 229, 236 (1984) (quoting Colorado River, 424 U.S., at 813). In short, to guide
other federal courts, we today clarify and affirm that Younger extends to the three “exceptional
circumstances” identified in NOPSI, but no further.
***
For the reasons stated, the judgment of the United States Court of Appeals for the Eighth
Circuit is
Reversed.

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