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standing

Clapper v. Amnesty International USA (11-1025)

in
Oral argument: 
October 29, 2012
Court below: 
United States Court of Appeals for the Second Circuit

In 2008, Congress passed the FISA Amendments Act of 2008 (FAA), which revised the procedures for authorizing certain foreign intelligence collection, including expanded authority to collect information on persons outside of the United States using electronic surveillance.  Additionally, the new procedures allow the government to disclose less information before targeting people reasonably believed to be abroad. Shortly after Congress passed the FAA, several organizations, including Amnesty International and the American Civil Liberties Union (ACLU), filed a lawsuit in federal court challenging the act’s constitutionality.  The district court dismissed the lawsuit because it found the organizations lacked standing.  The Second Circuit Court of Appeals reversed, and now the Supreme Court must decide if Amnesty International and other organizations have a sufficient stake to allow them to move forward with their constitutional challenges to the FAA. Amnesty International and other organizations argue that they have standing based on a reasonable fear that the government will monitor some of their communications and based on the costly methods used to prevent that monitoring. Director of National Intelligence James Clapper argues that the groups do not have standing because their injuries are not imminent, they do not have ongoing or present injuries, and self-inflicted harms are not recognizable injuries. The decision in this case will likely result in a rebalancing of the competing interest in government transparency and safeguarding national security. Further, the decision will likely cause one side to incur greater costs either in litigating more cases based on alleged, unproven surveillance or in protecting confidential communications against unknowable surveillance.

Questions Presented: 

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)- referred to here as Section 1881a- allows the Attorney General and Director of National Intelligence to authorize jointly the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the Foreign Intelligence Surveillance Court's prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Respondents are United States persons who may not be targeted for surveillance under Section 1881a. Respondents filed this action on the day that Section 1881a was enacted, seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a. The question presented is:

Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using Section 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.

Issue

Does a group of international organizations, lawyers, and media personnel have standing to sue for prospective relief based on their allegation that the United States would imminently acquire their international communications using surveillance authorized under the Foreign Intelligence Surveillance Act of 1978?

Written by: 
Michaela Dudley
Allison Nolan
Edited by: 
Brandon Bodnar
Additional Resources: 

First American Financial Corp. v. Edwards (10-708)

in

Oral argument: Nov. 30, 2011

Appealed from: United States Court of Appeals for the Ninth Circuit (June 21, 2010)

In this case, the Supreme Court will decide whether a plaintiff has Article III standing to sue under the Real Estate Settlement Procedures Act (“RESPA”) when the plaintiff alleges no injury-in-fact. Respondent Denise Edwards contends that she has standing because, through RESPA, Congress identified a specific harm resulting from a conflict of interest between title insurance service firms and title agents who enter exclusive agreements to exchange referrals for kickbacks. Edwards argues that Congress tethered that harm to a certain class of plaintiffs, which includes Edwards. Respondent First American Financial Corporation rejoins that a plaintiff must allege a personal and concrete harm to gain Constitutional standing. Under this standard, First American asserts that Edwards alleged no such harm and thus lacks standing to sue. The Court’s decision here has the potential to greatly enhance plaintiffs’ ability to organize class actions and obtain relief for statutory violations in various industries and differing legal frameworks.

Reynolds v. United States (10-6549)

in

Oral argument: Oct. 3, 2011

Appealed from: United States Court of Appeals for the Third Circuit

Billy Joe Reynolds, a registered sex offender, was convicted for failing to update his registration upon moving from Missouri to Pennsylvania. Under the newly enacted Sex Offender Registration and Notification Act (“SORNA”), sex offenders are required to update the federal registry within three days of a change of residence. An Interim Rule issued by the Attorney General applied the statute retroactively to all sex offenders convicted before SORNA’s enactment, including Reynolds. Reynolds challenged the legality of the Interim Rule but the circuit court dismissed his case for lack of standing. In the current suit, Reynolds argues that SORNA’s registration requirements are not applicable to individuals with pre-SORNA convictions. Reynolds adds that the Interim Rule made SORNA’s registration requirements applicable to him, thus giving him standing to challenge the Rule. The Supreme Court's decision will determine whether pre-SORNA sex offenders can state a claim against the Interim Rule, thus potentially delaying the government’s efforts in creating an effective national sex offender registry system. The decision may also prevent the government from issuing harsh new registration requirements without notice to individuals in Reynolds’s situation.

Bond v. United States (09-1227)

in

Oral argument: Feb. 22, 2011

Appealed from: United States Court of Appeals for Third Circuit (Sept. 17, 2009)

TENTH AMENDMENT, TREATY POWER, STATE SOVEREIGNTY, STANDING

Petitioner Carol Anne Bond spread chemicals around the home of Myrlinda Haynes to seek revenge for Haynes’s impregnation by Bond’s husband. Bond was charged with several crimes, including use of a chemical weapon under 18 U.S.C. § 229(a)(1). Congress enacted the statute pursuant to the Chemical Weapons Convention of 1993 in order to meet American obligations under the Convention. Bond appealed to the Third Circuit Court of Appeals on several grounds, including a claim that 18 U.S.C. § 299(a)(1) violates the Tenth Amendment because the police power to prosecute criminals is a power reserved to the states. The Third Circuit found that as a private party attempting to claim a violation of state sovereignty under the Tenth Amendment, Bond lacked standing. Bond appealed to the Supreme Court on the issue of her standing. In addition to determining whether private parties have standing to bring suit under the Tenth Amendment, the decision may also impact the scope of Congress’s authority to enact statutes implementing international treaty obligations, and what checks, if any, exist on that power.

Hemi Group, LLC v. City of New York (08-969)

in

Oral argument: Nov. 3, 2009

Appealed from: United States Court of Appeals for the Second Circuit (Sept. 2, 2008)

RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT, RICO, TAXES, STANDING, INJURY

Both the State and the City of New York have enacted laws that require the imposition of taxes on all cigarettes sold or used within their boundaries. The City of New York sued a group of Internet cigarette retailers under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The City of New York claimed that the retailers had violated federal and state laws in selling cigarettes to New York residents without charging a tax on tobacco products, constituting a form of consumer fraud as well as tax evasion. The District Court for the Southern District of New York dismissed the City's claims, holding that the City did not plead that the Internet retailers were an enterprise as defined by RICO. The Court of Appeals for the Second Circuit vacated the judgment of the lower court and held that the State could hold the retailers liable for its loss of tax revenue. The Supreme Court's decision in this case will affect the ability of Internet sites to sell tobacco products at a discounted price, as well as refine the application of RICO in civil suits.

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