     18-474-cv
     Citizens for Responsibility and Ethics in Washington v. Trump

 1                        UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3
 4                                     August Term, 2018
 5
 6             (Argued: October 30, 2018                  Decided: March 20, 2020)
 7
 8                                      Docket No. 18‐474
 9
10   _____________________________________
11
12          Citizens for Responsibility and Ethics in Washington, Restaurant
13          Opportunities Centers United, Inc., Jill Phaneuf, and Eric Goode,
14
15                                     Plaintiffs‐Appellants,
16
17                                               v.
18
19                       Donald J. Trump, in his official capacity as
20                       President of the United States of America,
21
22                                     Defendant‐Appellee.
23   _____________________________________
24
25   Before:
26
27          JOHN M. WALKER, PIERRE N. LEVAL, Circuit Judges.1
28
29                                               DEEPAK GUPTA, Gupta Wessler PLLC,
30                                               Washington, D.C. (Jonathan E. Taylor,
31                                               Joshua Matz, and Daniel Townsend,
32                                               Gupta Wessler PLLC, Washington, D.C.;
33                                               Joseph M. Sellers, Daniel A. Small,
34                                               Cohen Milstein Sellers & Toll PLLC,


     1
      Judge Christopher F. Droney, who was originally part of the panel assigned to hear this
     case, retired from the Court effective January 1, 2020. The remaining two members of the
     panel are in agreement regarding this order. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b).
 1                                         Washington, D.C.; Norman L. Eisen,
 2                                         Stuart C. McPhail, Adam J. Rappaport,
 3                                         Citizens for Responsibility and Ethics in
 4                                         Washington, Washington, D.C.;
 5                                         Laurence H. Tribe, Harvard Law School,
 6                                         Cambridge, MA, on the brief), for
 7                                         Plaintiffs‐Appellants.
 8
 9                                         HASHIM M. MOOPPAN, Department
10                                         of Justice, Washington, D.C., (Chad A.
11                                         Readler, Michael S. Raab, Megan
12                                         Barbero, Department of Justice,
13                                         Washington, D.C., on the brief), for
14                                         Defendant‐Appellee.
15
16   PER CURIAM:

17         It is hereby ORDERED that the chapter of the panel opinion of September

18   13, 2019 captioned “Zone of Interests” is amended by deleting the passage from

19   its fourth paragraph (beginning “The district court’s analysis erred on the

20   merits . . .”) to the end of the chapter. The chapter is further amended in the

21   first and second paragraphs so that they are consistent with the above deletion,

22   and at the end of the chapter by addition of a footnote acknowledging and

23   explaining the deletion. The chapter in amended form shall read as follows:

24         ii.   Zone of Interests


25               The district court also erred in its reliance on the zone of

26         interests test as a basis for finding lack of jurisdiction. The
                                            2
 1   Supreme Court has recently clarified that the zone of interests test

 2   is not a test of subject matter jurisdiction. In Lexmark Int’l Inc. v.

 3   Static   Control   Components,     the   Supreme      Court,    while

 4   acknowledging that past decisions had characterized the zone of

 5   interests test as part of a “‘prudential’ branch of standing,”

 6   reconsidered the question and clarified both that the “prudential”

 7   label is a misnomer and that the test does not implicate Article III

 8   standing. 572 U.S. 118, 126–27 (2014). Rather, the Court explained

 9   that the test asks whether the plaintiff “has a cause of action under

10   the [law]” on the basis of the facts alleged. Id. at 128. The Court

11   emphasized that the test is not “jurisdictional” because “the

12   absence of a valid . . . cause of action does not implicate subject‐

13   matter jurisdiction.” Id. at 128 n.4 (internal quotation marks

14   omitted). In Bank of America v. City of Miami, 137 S.Ct. 1296 (2017),

15   the Court reaffirmed that the zone of interests test asks whether

16   the complaint states an actionable claim under a statute (and not

17   whether the plaintiff has standing and the court has subject matter

18   jurisdiction). The City of Miami majority reiterated that the Article


                                       3
 1   III standing requirements are injury, causation, and redressability,

 2   and reinforced Lexmark’s essential point that the zone of interests

 3   question is “whether the statute grants the plaintiff the cause of

 4   action that he asserts.” Id. at 1302.


 5         Accordingly, while it had previously been appropriate to

 6   consider whether plaintiffs fall within the zone of interests in

 7   deciding whether a plaintiff has standing and the court has subject

 8   matter jurisdiction, the Supreme Court has unambiguously

 9   rejected that approach. The district court thus misconstrued the

10   nature of the zone of interests doctrine.FN

11


12

13   Footnote — The original published version of this opinion
14   contained, in this chapter, a discussion of the merits of the zone‐
15   of‐interests question. That discussion is deleted in order that it not
16   serve as a precedent on the question whether the Complaint states
17   a claim upon which relief may be granted. Because, under Lexmark,
18   the merits of the zone‐of‐interests question do not bear on the
19   court’s subject matter jurisdiction, that discussion had no
20   pertinence to whether the district court erred in granting the
21   President’s motion under Rule 12(b)(1).


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