     10-3005-cv
     Mahon v. Ticor Title Insurance Company

 1                     UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                              August Term 2010
 6
 7          (Argued: May 16, 2011           Decided: June 25, 2012)
 8
 9                         Docket No. 10-3005-cv
10        -----------------------------------------------------x

11   DEBORAH MAHON, on behalf of herself and all others
12   similarly situated,
13
14             Plaintiff-Appellant,
15
16
17                        -- v. --
18
19   TICOR TITLE INSURANCE COMPANY and TICOR TITLE INSURANCE
20   COMPANY OF FLORIDA,
21
22             Defendants-Appellees,
23
24   CHICAGO TITLE INSURANCE COMPANY,
25
26             Defendant.1
27
28        -----------------------------------------------------x
29
30   B e f o r e :   WALKER, HALL, and CHIN, Circuit Judges.

31        Appeal from a partial judgment of the United States District

32   Court for the District of Connecticut (Alvin W. Thompson, Judge)

33   dismissing from the case Defendants-Appellees Ticor Title

34   Insurance Company and Ticor Title Insurance Company of Florida on

35   the basis that Plaintiff-Appellant Deborah Mahon lacks Article


     1
 1        The Clerk of Court is respectfully directed to amend the
 2   case caption to read as shown above.

                                        1
 1   III standing to sue them because she does not allege that they

 2   injured her.   Mahon argues that the district court erred because

 3   Article III requires only that she have suffered an injury at the

 4   hands of one, and not all, of the named defendants.   We reject

 5   Mahon’s argument and affirm the district court’s partial

 6   judgment.

 7        Judge HALL concurs in a separate opinion.

 8                                  INGRID L. MOLL (Mathew P. Jasinski,
 9                                  on the brief), Motley Rice LLC,
10                                  Hartford, C.T., for Plaintiff-
11                                  Appellant Deborah Mahon.
12
13                                  STEWART I. EDELSTEIN, Cohen and
14                                  Wolf, P.C., Bridgeport, C.T., for
15                                  Defendants-Appellees Ticor Title
16                                  Insurance Company and Ticor Title
17                                  Insurance Company of Florida.
18
19   JOHN M. WALKER, JR., Circuit Judge:

20        Plaintiff Deborah Mahon appeals from a partial judgment of

21   the United States District Court for the District of Connecticut

22   (Alvin W. Thompson, Judge) dismissing from the case Defendants-

23   Appellees Ticor Title Insurance Company (“Ticor”) and Ticor Title

24   Insurance Company of Florida (“Ticor Florida”).   The district

25   court concluded that Mahon lacks Article III standing to sue

26   Ticor and Ticor Florida because she does not allege that they

27   injured her.

28        Mahon argues that the district court erred because, under

29   Article III of the Constitution, a plaintiff need only

30   demonstrate an injury resulting from the conduct of at least one

                                      2
 1   defendant.   So long as this constitutional minimum is satisfied,

 2   Mahon contends, the plaintiff may sue certain other parties

 3   whether or not they injured her.

 4        For the reasons that follow, we reject Mahon’s argument and

 5   AFFIRM the judgment of the district court.

 6                               BACKGROUND

 7   I. Facts as Alleged in the Complaint

 8        Chicago Title Insurance Company (“Chicago Title”) and the

 9   Ticor entities, wholly-owned subsidiaries of Fidelity National

10   Financial, Inc., provide title insurance to individuals in the

11   State of Connecticut.   Title insurance protects against the risk

12   of a title challenge.   In mortgage transactions, lenders

13   generally require borrowers to obtain title insurance to protect

14   their interest in the mortgaged property.

15        Under Connecticut law, title insurers must file premium rate

16   schedules with the Insurance Commissioner and charge premiums in

17   accordance with these schedules.       See Conn. Gen. Stat. § 38a-

18   419(a), (c).   Chicago Title and the Ticor entities coordinated

19   with one another in preparing their rate schedules.       Their

20   schedules set a basic rate for new mortgages and a reduced rate

21   for refinance transactions, which generally require the title

22   insurer to perform less work and involve less risk.

23        Chicago Title and the Ticor entities routinely concealed the

24   reduced rate for refinance transactions from their customers.        In


                                        3
 1   June 2003, for example, Plaintiff-Appellant Deborah Mahon

 2   refinanced the existing mortgage on a property in Branford,

 3   Connecticut, and purchased title insurance for the property from

 4   Chicago Title.   At the closing, Chicago Title’s agent did not

 5   disclose to Mahon her eligibility for the discounted refinance

 6   rate and charged her the full rate.

 7   II. Procedural History

 8        On April 28, 2009, Mahon sued Chicago Title and the Ticor

 9   entities for the overcharge on behalf of herself and similarly

10   situated individuals.    She alleges a class comprised of those who

11   paid for title insurance from Chicago Title or the Ticor entities

12   in Connecticut and who qualified for but paid more than the

13   reduced refinance rate.   Mahon alleges that Chicago Title and the

14   Ticor entities’ practice of overcharging on title insurance for

15   refinanced properties violates the Connecticut Unfair Trade

16   Practices Act (“CUTPA”), Conn. Gen. Stat. § 42-110b(a).   She also

17   brings claims for unjust enrichment, breach of implied contract,

18   and money had and received.

19        Mahon alleges that it was Chicago Title’s conduct that

20   injured her personally.   She does not allege any dealings with

21   the Ticor entities.   Nevertheless, Mahon’s complaint asserts that

22   the Ticor entities are proper defendants in her putative class

23   action because they are “juridically linked” to Chicago Title.

24   In other words, because Chicago Title and the Ticor entities are


                                       4
 1   wholly-owned subsidiaries of the same parent company, share

 2   resources in Connecticut, coordinated in drafting their premium

 3   rate schedules, and operate in the same manner with respect to

 4   overcharging Connecticut borrowers in refinance transactions,

 5   Mahon asserts that she can represent a class of borrowers injured

 6   by Ticor and Ticor Florida, as well as borrowers injured by

 7   Chicago Title, notwithstanding her own lack of injury with

 8   respect to the Ticor entities.   The juridical link doctrine stems

 9   from dicta in the Ninth Circuit’s opinion in La Mar v. H & B

10   Novelty & Loan Co., 489 F.2d 461 (9th Cir. 1973).       The decision

11   recognized, but did not apply, two exceptions to the general rule

12   that a plaintiff cannot bring a class action against parties that

13   did not injure her.   Id. at 466.       One of these exceptions permits

14   a plaintiff to bring a class action against parties that did not

15   injure her (hereinafter “non-injurious parties”) if those parties

16   are “juridically related” to the party that did injure her, and

17   if it would be “expeditious” to sue all the parties in one

18   action.   Id.

19        In response to Mahon’s complaint, the Ticor entities moved

20   to dismiss all counts against them for lack of standing.2       They

21   argued that Mahon lacks Article III standing to sue them because

22   she does not allege any personal injury at their hands, and



     2
 1        The Ticor entities and Chicago Title also moved to dismiss
 2   certain claims on other grounds not relevant to this appeal.

                                         5
 1   because the relationship between Chicago Title and the Ticor

 2   entities as alleged in her complaint is insufficient to establish

 3   a juridical link.

 4        The district court granted the motion, dismissing all claims

 5   against the Ticor entities.   It did not, however, directly

 6   address the issue framed in the Ticor entities’ motion.   While

 7   the Ticor entities had argued that the allegations in Mahon’s

 8   complaint were insufficient to establish a juridical link, the

 9   district court addressed whether, assuming that the allegations

10   in the complaint did establish a juridical link, the juridical

11   link was relevant to Article III standing.   It answered this

12   question in the negative, holding that the juridical link

13   doctrine relates only to the question of class certification

14   under the Federal Rules and thus has no bearing on the Article

15   III standing inquiry.    It concluded that Mahon lacks Article III

16   standing to sue the Ticor entities whether or not they are

17   juridically linked to Chicago Title because she suffered no

18   injury as a result of their conduct.

19        Mahon moved for entry of final judgment as to the Ticor

20   entities and for certification to appeal under Federal Rule of

21   Civil Procedure 54(b).   The district court granted the motion,

22   finding there to be no just reason for delay.

23

24


                                       6
 1                               DISCUSSION

 2        On appeal, Mahon agrees with the district court that the

 3   potential presence of a juridical link between Chicago Title and

 4   the Ticor entities does not bear on her Article III standing to

 5   sue the Ticor entities.   She argues, however, that the district

 6   court misconstrued Article III’s requirements.      Article III does

 7   not, she contends, require a plaintiff to demonstrate that she

 8   was injured by the conduct of each defendant.      Rather, she argues

 9   that a plaintiff need only demonstrate injury resulting from the

10   conduct of one defendant to pass the Article III threshold.      Once

11   the plaintiff passes this threshold, she contends, Article III

12   does not prevent her from suing non-injurious defendants in the

13   same suit.   Because Mahon alleges that Chicago Title injured her,

14   she argues that her lack of injury at the hands of the Ticor

15   entities is irrelevant to the Article III inquiry.

16        We review de novo the district court’s dismissal of Mahon’s

17   claims against the Ticor entities, accepting as true all well-

18   pleaded material allegations of the complaint.      Selevan v. N.Y.

19   Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009).

20        Article III, Section 2 of the Constitution limits the

21   jurisdiction of the federal courts “to the resolution of ‘cases’

22   and ‘controversies.’”   Id. at 89.      This limitation is “founded in

23   concern about the proper -- and properly limited -- role of the

24   courts in a democratic society.”       Warth v. Seldin, 422 U.S. 490,


                                        7
 1   498 (1975).   “[W]hether the plaintiff has made out a ‘case or

 2   controversy’ between himself and the defendant . . . is the

 3   threshold question in every federal case, determining the power

 4   of the court to entertain the suit.”   Id.   “[T]o ensure that this

 5   ‘bedrock’ case-or-controversy requirement is met, courts require

 6   that plaintiffs establish their ‘standing’ as ‘the proper

 7   part[ies] to bring’ suit.”   Selevan, 584 F.3d at 89 (quoting W.R.

 8   Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106

 9   (2d Cir. 2008)).   “If plaintiffs lack Article III standing, a

10   court has no subject matter jurisdiction to hear their claim.”

11   Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco

12   Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005).

13        To satisfy the “‘irreducible constitutional minimum’ of

14   standing,” a plaintiff must demonstrate (1) a personal injury in

15   fact (2) that the challenged conduct of the defendant caused and

16   (3) which a favorable decision will likely redress.   Alliance for

17   Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d

18   218, 228 (2d Cir. 2011) (quoting Lujan v. Defenders of Wildlife,

19   504 U.S. 555, 560-61 (1992)).   Demonstrating that the defendant’s

20   allegedly unlawful conduct caused injury to the plaintiff herself

21   is thus generally an essential component of Article III




                                      8
 1   standing.3

 2        Mahon’s proposed interpretation of Article III -- that it

 3   permits suits against non-injurious defendants as long as one of

 4   the defendants in the suit injured the plaintiff -- is

 5   unprecedented.   No decision that we can discern has ever adopted

 6   such a broad interpretation of constitutional standing.   Although

 7   Mahon’s proposed interpretation does not depend on the juridical

 8   link doctrine, it does stem from her attempt, based on the

 9   juridical link doctrine, to bring a class action against non-

10   injurious defendants.

11        As discussed briefly above, the juridical link doctrine

12   arose from the Ninth Circuit’s decision in La Mar, 489 F.2d 461.

13   The decision addressed “whether a plaintiff having a cause of

14   action against a single defendant can institute a class action

15   against the single defendant and an unrelated group of defendants

16   who have engaged in conduct closely similar to that of the single

17   defendant on behalf of all those injured by all the defendants.”

18   Id. at 462.   Relying on class certification requirements under

19   Rule 23(a) of the Federal Rules of Civil Procedure, the court

20   concluded that the named plaintiffs in the cases before it could



     3
 1        There are various exceptions to this general principle not
 2   relevant to this case. See, e.g., Powers v. Ohio, 499 U.S. 400,
 3   410-11 (1991) (discussing circumstances in which a plaintiff may
 4   assert claims of a third party, inter alia, with whom the
 5   plaintiff has “a close relation” and who would be hindered in
 6   bringing suit).

                                      9
 1   not bring a class action against defendants that did not injure

 2   them: “a plaintiff who has no cause of action against the

 3   defendant can not ‘fairly and adequately protect the interests’

 4   of those who do have such causes of action . . . even though the

 5   plaintiff may have suffered an identical injury at the hands of a

 6   party other than the defendant.”      Id. at 466 (quoting Fed. R.

 7   Civ. P. 23(a)(4)).   In dicta, however, the court suggested that

 8   there are two exceptions to this rule, neither applicable in the

 9   case before it.   One exception covers cases in which the named

10   plaintiff’s injuries “are the result of a conspiracy or concerted

11   schemes between the defendants,” and another -- the one which

12   gave rise to the juridical link doctrine -- covers cases in which

13   it would be “expeditious” to combine the defendants into one

14   action because they are “juridically related.”     Id. at 466.      The

15   court did not discuss the scope of these exceptions.

16         Although the court did not apply either of the exceptions,

17   it did note that Article III standing issues would arise were it

18   to have permitted the plaintiffs to bring class actions against

19   non-injurious defendants.   Id. at 464.     Because it rejected the

20   class actions on the basis of Rule 23, it assumed the presence of

21   standing.   Id.   The court made clear, however, that its

22   “assumption is not intended to foreclose the [standing] issue.”

23   Id.

24


                                      10
 1        Decisions adopting the juridical link doctrine in La Mar’s

 2   wake have generally dealt with the Article III standing issue in

 3   one of two ways -- or ignored it altogether.   First, a number of

 4   decisions have merged the issue with the Rule 23 analysis,

 5   concluding that a plaintiff entitled under the juridical link

 6   doctrine to represent a class against non-injurious defendants

 7   has Article III standing to sue the non-injurious defendants.

 8   See, e.g., Vulcan Golf, LLC v. Google Inc., 552 F. Supp. 2d 752,

 9   762 (N.D. Ill. 2008)(“Article III standing issues are inherently

10   intertwined with the class certification determination due to the

11   plaintiffs’ invocation of the juridical link doctrine.”); In re

12   Mut. Funds Inv. Litig., 519 F. Supp. 2d 580, 586-87 & n.9 (D. Md.

13   2007); Hudson v. City of Chicago, 242 F.R.D. 496, 502 (N.D. Ill.

14   2007); Glover v. Standard Federal Bank, No. Civ. 972068

15   (DWF/SRN), 2001 WL 34635707, at *2-3 (D. Minn. June 11, 2001).

16   Other decisions have maintained the distinction between class

17   certification and Article III standing, but have held that a

18   court should decide class certification first and treat the class

19   as a whole as the relevant entity for Article III purposes.

20   See, e.g., Payton v. County of Kane, 308 F.3d 673, 680-82 (7th

21   Cir. 2002), cert. denied sub nom., Carroll County v. Payton, 540

22   U.S. 812 (2003); In re Relafen Antitrust Litig., 221 F.R.D. 260,

23   268-69 (D. Mass 2004).

24


                                    11
 1        Although either of these approaches could warrant reversal

 2   of the district court’s decision here, we find both to be flawed.

 3   First, whether or not Rule 23 would permit a plaintiff to

 4   represent a class against non-injurious defendants cannot affect

 5   the plaintiff’s Article III standing to sue the non-injurious

 6   defendants.    A federal rule cannot alter a constitutional

 7   requirement.   It is well established that “a plaintiff must

 8   demonstrate standing for each claim [s]he seeks to press.”

 9   DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006).      Thus,

10   with respect to each asserted claim, “[a] plaintiff must always

11   have suffered a distinct and palpable injury to [her]self.”

12   Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979)

13   (internal quotation marks omitted).   “In no event . . . may

14   Congress abrogate the Art. III minima . . . .”   Id.; see also

15   Lewis v. Casey, 518 U.S. 343, 357 (1996) (“‘That a suit may be a

16   class action . . . adds nothing to the question of standing, for

17   even named plaintiffs who represent a class must allege and show

18   that they personally have been injured, not that injury has been

19   suffered by other, unidentified members of the class to which

20   they belong and which they purport to represent.’” (alterations

21   in original) (quoting Simon v. E. Ky. Welfare Rights Org., 426

22   U.S. 26, 40 n.20 (1976))).

23        Second, we also disagree with the approach that analyzes

24   class certification before Article III standing and treats the


                                      12
 1   class as the relevant legal entity.    This approach is adopted and

 2   articulated most clearly in the Seventh Circuit’s Payton

 3   decision.   In Payton, six former arrestees brought a putative

 4   class action against nineteen Illinois counties, challenging

 5   their practice, in accordance with state law, of imposing a bail

 6   fee in addition to the set bail amount.     308 F.3d at 675.

 7   Finding that the named plaintiffs alleged dealings with only two

 8   of the nineteen counties, the district court dismissed the class

 9   action for lack of Article III standing.4    Id. at 675-76.

10        The Seventh Circuit reversed.     It first noted that the

11   juridical link doctrine could allow the named plaintiffs to

12   represent a class that included individuals injured by other

13   counties.   Id. at 677-80.   Next, it held that the district court

14   should have addressed class certification before Article III

15   standing and, if it were to have certified the class, should have

16   looked only at whether the class as a whole had Article III

17   standing to sue each defendant.    Id. at 680-81.

18        In reaching this conclusion, the Seventh Circuit relied on

19   the Supreme Court’s statement in Ortiz v. Fibreboard Corp., that

20   “class certification issues are . . . logically antecedent to

21   Article III concerns, and themselves pertain to statutory



     4
 1        As the Seventh Circuit noted, the district court did not
 2   explain why it dismissed the plaintiffs’ claims against the two
 3   counties that had allegedly injured them. Payton, 308 F.3d at
 4   676-77.

                                       13
 1   standing, which may properly be treated before Article III

 2   standing.”   Payton, 308 F.3d at 680 (quoting Ortiz v. Fibreboard

 3   Corp., 527 U.S. 815, 831 (1999)).       The Seventh Circuit

 4   characterized this language as a “directive to consider issues of

 5   class certification prior to issues of standing.”      Id.

 6        We do not think Ortiz stands for such a broad proposition.

 7   Ortiz involved the propriety of a mandatory limited-fund

 8   settlement class that would resolve a multitude of

 9   asbestos-related claims.    527 U.S. at 821-30.    The class included

10   both claimants with asbestos-related diseases and claimants who

11   had been exposed to asbestos but had not yet manifested any

12   injury.   Id.   at 825-26 & n.5.   Objectors to the class settlement

13   raised arguments based on issues of class certification and

14   issues of Article III standing.     Id. at 830-31.    The Article III

15   objections focused on the arguable lack of injury in fact to the

16   exposure-only plaintiffs.   Id. at 831.      The Court declined to

17   address the Article III issues.     It explained that “the class

18   certification issues are, as they were in Amchem, ‘logically

19   antecedent’ to Article III concerns . . . and themselves pertain

20   to statutory standing, which may properly be treated before

21   Article III standing.”   Id. (quoting Amchem Prods., Inc. v.

22   Windsor, 521 U.S. 591, 612 (1997)).       The Court went on to reject

23   the class on the basis of Rule 23 concerns.      Id. at 832-65.

24


                                        14
 1        The Court’s language regarding the logical antecedence of

 2   class certification issues appears to us to be a description of

 3   the case before it, and not, as the Payton decision maintained, a

 4   general directive regarding the order in which a court should

 5   treat class certification and Article III standing in every class

 6   action.   Because the Article III concerns would arise only if the

 7   Court affirmed class certification, and because the Rule 23 class

 8   certification issues were dispositive, it was logical for the

 9   Court to treat those issues first.   The Court’s recognition that,

10   in Amchem, class certification issues also were “logically

11   antecedent” to Article III concerns suggests that, in other

12   cases, they are not.   See, e.g., Rivera v. Wyeth-Ayerst Labs.,

13   283 F.3d 315, 319 & n.6 (5th Cir. 2002) (noting that standing is

14   an inherent prerequisite to the class certification inquiry, but

15   that “there is a limited exception for suits in which the class

16   certification issues are ‘logically antecedent to the existence

17   of any Article III issues’” (quoting Amchem, 521 U.S. at 612)).

18   Moreover, in Amchem, the Court made clear that it was the

19   dispositive nature of the class certification issues in the

20   particular case that permitted the exception to the usual rule of

21   dealing with the Article III issues first: “the class

22   certification issues are dispositive; because their resolution

23   here is logically antecedent to the existence of any Article III

24   issues, it is appropriate to reach them first.”   521 U.S. at 612


                                     15
 1   (emphasis added) (internal quotation marks, citations, and

 2   alterations omitted).   The Amchem Court cited an earlier case in

 3   which, because the issue of mootness was dispositive, it had also

 4   declined to address Article III standing.   Id. (citing Arizonans

 5   for Official English v. Arizona, 520 U.S. 43, 66-67 (1997)).      As

 6   such, we think the Court’s “logical antecedence” language is

 7   relevant when resolution of class certification obviates the need

 8   to decide issues of Article III standing.   We do not read it, as

 9   the Payton court did, as instructing courts to always treat class

10   certification first and to treat the class as the relevant entity

11   for Article III purposes.

12        Mahon, perhaps recognizing the flaws in the two approaches

13   to Article III standing discussed above, embraces neither.   She

14   argues, in essence, that there is no Article III standing problem

15   in juridical link cases: as long as the injurious defendant is

16   sued in the same case, Article III does not prevent a plaintiff

17   from suing non-injurious defendants.   Mahon, however, fails to

18   explain why a plaintiff’s injury resulting from the conduct of

19   one defendant should have any bearing on her Article III standing

20   to sue other defendants, even if they engaged in similar conduct

21   that injured other parties.   Cf. Blum v. Yaretsky, 457 U.S. 991,

22   999 (1982) (“Nor does a plaintiff who has been subject to

23   injurious conduct of one kind possess by virtue of that injury

24   the necessary stake in litigating conduct of another kind,


                                     16
 1   although similar, to which he has not been subject.” (citing

 2   Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-67 (1972)); see

 3   also DaimlerChrysler Corp., 547 U.S. at 335 (“[A] plaintiff must

 4   demonstrate standing for each claim [s]he seeks to press . . .

 5   .”).   The only case Mahon cites to support her interpretation is

 6   Payton, which, as we discussed above, rests on the notion that

 7   courts should treat class certification before Article III

 8   standing.   The case does not support Mahon’s novel interpretation

 9   of Article III.   Indeed, Payton’s extensive discussion of the

10   proper sequence in which a court should decide class

11   certification and Article III standing makes clear that it did

12   not adopt an interpretation of Article III like that which Mahon

13   proposes here.

14          In sum, we decline to adopt Mahon’s novel and unsupported

15   interpretation of Article III, and conclude that the district

16   court properly dismissed all of Mahon’s claims against the Ticor

17   entities for lack of Article III standing.

18                                CONCLUSION

19          For the foregoing reasons, we AFFIRM the judgment of the

20   district court.




                                      17
 1   Hall, J., Concurring in the Judgment

 2          I concur with the result reached by the majority opinion because I agree that

 3   Mahon lacked Article III standing to sue the Ticor defendants. I disagree, however, with

 4   the majority’s implication that the juridical link doctrine and Article III standing are

 5   wholly independent. (See Maj. Op. 11.) Both implicate the same jurisprudential

 6   concern—delimiting who may bring another person’s case. Thus, while it is true that the

 7   mere invocation of the juridical link doctrine cannot bestow Article III standing that

 8   otherwise would be lacking, there will be cases in which the presence of a juridical link

 9   will suggest that Article III is also satisfied. While the doctrines are logically distinct,

10   they are not necessarily independent.

11          Citing inter alia Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), the

12   majority correctly explains that a plaintiff, to prove Article III standing, must generally

13   allege an injury to herself. But that rule is less universal than the majority’s succinct

14   footnote lets on. Notwithstanding Lujan and similar cases, which describe the general

15   requirements for Article III standing, a long line of Supreme Court and Second Circuit

16   cases has allowed certain plaintiffs, in certain limited situations, to bring claims that are

17   not strictly their own. Collectively, these exceptions can helpfully be termed jus tertii

18   standing, or standing premised on the permission to assert a third party’s rights. Cf.

19   Robert Allen Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court,

20   71 Yale L.J. 599, 600 (1962).

21          In some cases, a plaintiff has been permitted to bring claims on behalf of a third

22   party who is unlikely to be able to sue. See, e.g., Powers v. Ohio, 499 U.S. 400, 410-11


                                                    1
 1   (1991) (parties in a litigation allowed to raise the claims of prospective jurors to be free

 2   from discriminatory jury selection); Eisenstadt v. Baird, 405 U.S. 438, 443-44 (1972)

 3   (doctor prosecuted for distributing contraceptives allowed to assert rights of his patients

 4   to have access to contraceptives); Barrows v. Jackson, 346 U.S. 249, 257-58 (1953)

 5   (individual sued for breaching a racially restrictive covenant allowed to assert the rights

 6   of blacks in the community); see also Campbell v. Louisiana, 523 U.S. 392, 397 (1998)

 7   (applying Powers to a white defendant’s challenge to the exclusion of black jurors).

 8   Other cases have permitted a plaintiff with a sufficiently “close” relationship to a third

 9   party to assert that third party’s rights. See, e.g., Craig v. Boren, 429 U.S. 190, 193

10   (1976) (bartender challenging law permitting eighteen-year-old women, but not men, to

11   buy 3.2% beer); Singleton v. Wulff, 428 U.S. 106, 114-17 (1976) (physicians challenging

12   state statute that prohibited Medicaid payments for nontherapeutic abortions). Still others

13   have allowed plaintiffs to bring First Amendment overbreadth challenges on behalf of

14   others. E.g., Sec’y of State of Md. v. J.H. Munson Co., 467 U.S. 947, 958 (1984).

15   Individual citizens may bring qui tam actions on behalf of the government, see 31 U.S.C.

16   § 3730(b); Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529

17   U.S. 765, 773-74 (2000) (False Claims Act can be regarded as “a partial assignment of

18   the Government’s damages claim,” and so it is the United States’ injury in fact which

19   confers Article III standing on the qui tam relator), and states can bring parens patriae

20   suits on behalf of their citizens, see Connecticut v. Physicians Health Services of

21   Connecticut, Inc., 287 F.3d 110, 119 (2d Cir. 2002); but see Alfred L. Snapp & Son, Inc.

22   v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982) (state must articulate an interest


                                                   2
 1   apart from the interests of the particular private parties). Although the literal language of

 2   Lujan might be read to foreclose Article III standing in all these scenarios, case law both

 3   pre- and post-Lujan continues to permit these claims, notwithstanding the absence of a

 4   direct injury to the plaintiff.1

 5          It is never easy to generalize from individual exceptions, but most of the jus tertii

 6   doctrines rest, as unifying principle, on an analytical distinction between claims asserting

 7   private interests and those asserting public interests. See 13B Charles Alan Wright et al.,

 8   Federal Practice & Procedure § 3531.9 (3d ed. 2011). “When private rights are involved,

 9   it is easy to understand that one person cannot seek to recover on a claim that belongs to

10   someone else.” Id. However, “when a party properly in court seeks to sustain its own

11   opposition to a public act by invoking the interests of others,” courts sometimes accept

12   jurisdiction. Id. (emphasis added).

13          In my view, the same distinction between public and private interests is at the core

14   of the juridical link doctrine. Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966)

15   (three-judge panel), one of the seminal juridical link cases, allowed a class of current and

16   former detainees in local Alabama jails to sue a class of state sheriffs and wardens for


            1
             I acknowledge that our circuit has said that “third-party standing requirements—
     unlike mootness requirements—are prudential rather than constitutional in nature.”
     Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 511 n.5 (2d Cir. 2005) (citing
     Kane v. Johns-Manville Corp., 843 F.2d 636, 643 (2d Cir. 1988)). As we explained in
     Kane, however, “the third-party standing doctrine has been considered a valuable
     prudential limitation, self-imposed by the federal courts.” 843 F.2d at 643 (emphasis
     added). Thus it is helpful to distinguish between jus tertii standing, which grants
     standing by permitting claims that a stricter reading of Article III would prohibit, and the
     prudential doctrine of “third-party standing,” which withdraws standing that Article III
     would normally permit.

                                                   3
 1   violating the detainees’ constitutional rights, even though the named plaintiffs had no

 2   contact with many of the defendant class members. Id. at 328-29. Similarly, Broughton

 3   v. Brewer, 298 F. Supp. 260 (S.D. Ala. 1969) (three-judge panel), certified a class of

 4   persons “whose poverty or lack of apparent means of livelihood renders them susceptible

 5   to arrest under . . . Alabama vagrancy laws” to sue most of the state’s law enforcement

 6   apparatus, despite the named plaintiffs’ lack of injury at the hands of most of the

 7   defendants. Id. at 267 (typographical error corrected). From within this circuit, we have

 8   DeAllaume v. Perales, 110 F.R.D. 299 (S.D.N.Y. 1986), in which a putative class of New

 9   York state welfare recipients sought to challenge a common, state-directed method fifty-

10   eight county commissioners used to calculate certain heating subsidies. Id. at 302. The

11   lone representative plaintiff did not, of course, have a colorable claim against each

12   defendant, but the district court granted certification because “a unified policy link[ed]

13   the members of the proposed defendant class,” and the requirements of Rule 23 had

14   otherwise been satisfied. Id. at 304.

15          In La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 469 (9th Cir. 1973), the

16   Ninth Circuit distinguished Washington and Broughton, explaining that certification was

17   proper there because the defendants were “juridically related in a manner that suggests a

18   single resolution of the dispute would be expeditious.” Id. at 466, 469. At its core, the

19   “juridical link” present in Washington and Broughton, and absent in La Mar, was the fact

20   that all defendants were government employees who had to follow a uniform state




                                                   4
 1   policy.2 489 F.2d at 470. Wright & Miller’s discussion of the juridical link doctrine

 2   explicitly limits it to suits challenging individual actions that are compelled by state law:

 3          An exception to [the rule that at least one named plaintiff must have
 4          standing vis-à-vis each named defendant] has been made in several cases in
 5          which the defendant class was composed of public officials, however. In
 6          these cases standing has been found even though the representative was
 7          injured by the conduct of only one of the officials because the court
 8          determined that the defendants were so closely related that they should be
 9          treated substantially as a single unit. This approach—sometimes referred to
10          as the “juridical link” test—applies in cases in which as a matter of law
11          each official must act in the same manner, so that the plaintiff class claims
12          are identical for all defendant class members.
13
14   7AA Charles Alan Wright et al., Federal Practice & Procedure § 1785.1 (3d ed. 2011)

15   (footnotes omitted).

16          To be sure, some decisions have extended the juridical link doctrine beyond its

17   traditional public-sector locus to create private defendant classes. See William D.

18   Henderson, Comment, Reconciling the Juridical Links Doctrine with the Federal Rules of

19   Civil Procedure and Article III, 67 U. Chi. L. Rev. 1347, 1356-57 (2000) (listing cases).

20   But the doctrine’s root is in concerted government actions. And the situations in which it

21   has been most valuable and least controversial—suits against individuals acting pursuant

22   to a government policy—are also situations in which the Supreme Court’s Article III

23   jurisprudence has been more accommodating to a plaintiff’s attempt to sue a defendant

24   who injured someone else. See 13B Charles Alan Wright et al., Federal Practice &

25   Procedure § 3531.9 (3d ed. 2011). Some of the values supporting the continuing vitality

            2
             A similar fact pattern was present in Payton v. County of Kane, 308 F.3d 673,
     680 (7th Cir. 2002), although for the reasons set forth in the majority’s opinion the
     Seventh Circuit’s basis for exercising jurisdiction in that case was unsound. (See Maj.
     Op. 12-14.)

                                                   5
 1   of the juridical link doctrine are also at play in the Article III context, and in that sense

 2   (and that sense only) it is true that “Article III standing issues are inherently intertwined

 3   with the class certification determination” in juridical link cases. Vulcan Golf, LLC v.

 4   Google Inc., 552 F. Supp. 2d 752, 762 (N.D. Ill. 2008).

 5          They certainly are not intertwined in the sense that Vulcan Golf would suggest—

 6   that the presence of a juridical link can somehow create standing. See Gladstone

 7   Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 (1979) (“ In no event . . . may Congress

 8   abrogate the Art[icle] III minima” of standing). But they are not unrelated. The

 9   canonical juridical link cases such as Washington, Broughton, and Payton, are cases in

10   which numerous defendants are being sued for acting at the direction of a single

11   governmental policy. To the extent the plaintiffs there were seeking to vindicate public

12   rights, some of the justifications for a more expansive approach to standing might also

13   come into play. Conversely, invoking the juridical link doctrine in a lawsuit attempting

14   to vindicate private rights not only pushes the doctrine outside of its traditional

15   theoretical basis, but also raises serious Article III problems.

16          Thus, because plaintiffs in classic public rights juridical link cases also are more

17   likely to be able to establish one of the classic public rights exceptions to the direct-injury

18   standing rule, I disagree with the majority’s suggestion that the two doctrines are

19   unrelated.




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