Emory Law Journal

Prudential Standing, the Zone of Interests, and the New Jurisprudence of Jurisdiction
Micah J. Revell Executive Managing Editor, Emory Law Journal; J.D. Candidate, Emory University School of Law (2014). I would like to thank Professor Jonathan R. Nash for his insight, guidance, and patience throughout the writing process. I am also indebted to the editorial board of the Emory Law Journal, especially Elizabeth Redpath, Elizabeth Dunn, and Joel Langdon, for their thoughtful suggestions and punctilious edits. Finally, and most importantly, I am grateful to my wife, Mary-Marshall, for her steadfast love and support throughout the writing process and law school as a whole.

Abstract

Threshold limitations on the availability of judicial review are ubiquitous in the modern federal court system. While many are fact-specific and malleable, the most foundational one, jurisdiction, is not. The D.C. Circuit recently held that prudential standing, specifically the zone of interests test, is a jurisdictional limitation on the court’s power to decide a case. This holding directly contradicts several other circuits, which have held that prudential standing is not jurisdictional and may be waived when the parties fail to raise it. Twenty years ago, this decision likely would not have garnered much attention because jurisdictional dismissals were common for a wide swath of reasons. However, the Supreme Court has recently honed its concept of jurisdiction and has cautioned courts to use the label sparingly.

The Supreme Court has referred to the zone of interests test repeatedly as a prudential considerationone that is judge-made. However, scholars and courts alike have questioned this categorization and applied the test in a conflicting manner. The categorization of the zone of interests test as a constitutional, statutory, or prudential limitation is fundamental to determining its function within the newly refined law of jurisdiction. Nevertheless, courts have largely ignored this determination in recent treatments.

This Comment addresses that paucity, arguing that the Supreme Court has built and sustained the zone of interests test on prudential standing grounds. Prudential standing, properly understood in the context of the larger prudential body of law, cannot function in a jurisdictional manner under the Court’s recent cases. Accordingly, the zone of interests test, as currently defined, should not be wielded in a jurisdictional manner.

Introduction

“Unlike the Article III standing inquiry . . . prudential standing is not a jurisdictional limitation on our review.” 1Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1050, 1065 n.17 (9th Cir. 2008) (internal quotation marks omitted).

“[T]he theory plainly fails to demonstrate prudential standing. . . . We therefore dismiss all petitions for lack of jurisdiction.” 2Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 179–80 (D.C. Cir. 2012), reh’g denied, 704 F.3d 1005 (D.C. Cir. 2013), cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2881 (2013).

Litigants and courts alike face threshold limitations on the availability of judicial review. Litigants, among other requirements, must possess standing to bring their claims. Standing always requires plaintiffs satisfy the constitutional requirements of Article IIIinjury in fact, causation, and redressability. 3Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). In addition to this constitutional minimum, plaintiffs must often satisfy a second set of standing requirements, referred to as prudential standing. Prudential standing is judge-made law and generally encompasses several separate guidelines. 4Allen v. Wright, 468 U.S. 737, 751 (1984). Generally, the three prudential standing doctrines are (1) the prohibition against litigating generalized grievances, (2) the prohibition against litigating the rights of a third party, and (3) the requirement that the plaintiff’s interest falls within the zone of interests that the statute was designed to protect. Id. While all three will be addressed, this Comment focuses on the zone of interests test.

Courts, on the other hand, have the responsibility to ensure that they only intervene in cases when they have jurisdiction to do so. Jurisdiction can be defined as the court’s power to hear and decide a case. 5Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). Because courts must refuse to hear a case when that power is lacking, they have an independent responsibility to ensure their jurisdiction exists. 6See Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012). Moreover, if jurisdiction is found wanting at any point in litigation, the court must dismiss the case immediately, sometimes even vacating a final judgment. 7See Fed. R. Civ. P. 12(h)(3); see also Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011). Accordingly, a court’s decision to interpret any doctrine or rule as a jurisdictional limitation has sweeping consequencesit can yield untold hours of litigation moot and deny parties with uncontested Article III standing the opportunity to seek or gain relief. 8See Henderson, 131 S. Ct. at 1202 (“Branding a rule as going to a court’s subject-matter jurisdiction alters the normal operation of our adversarial system.”); see also Gonzalez, 132 S. Ct. at 648.

Recently, food and automotive interest groups experienced this sting firsthand in Grocery Manufacturers Association v. EPA. 9693 F.3d 169 (D.C. Cir. 2012), reh’g denied, 704 F.3d 1005 (D.C. Cir. 2013), cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2881 (2013). Several groups across industry lines challenged the EPA’s partial waivers of requirements for the introduction of E15 gasoline into the energy market. 10Id. at 172. While two of the D.C. Circuit judges found that one group satisfied the requirements of Article III standing, 11Id. at 179–80, 182. Only one group needed to satisfy the standing requirements. Id. at 175. the split panel held that the same group failed to satisfy the zone of interests test of prudential standing. 12See id. at 182 (Kavanaugh, J., dissenting). Accordingly, the majority dismissed for lack of jurisdiction. 13Id. at 180 (majority opinion).

Judge Kavanaugh dissented, writing, “[P]rudential standing is not jurisdictional, meaning that it can be forfeited and need not be considered by the court if the defendant or respondent does not assert it.” 14Id. at 182 (Kavanaugh, J., dissenting). The parties appealed directly from the agency decision but did not raise prudential standing in the briefs or at oral argument. See id. at 171, 185. The intervenor raised the challenge. Id. at 185 n.5. Judge Kavanaugh disagreed with the majority, which held that the court was required to raise prudential standing sua sponte. See id. at 185. In any event, Judge Kavanaugh would have found that the parties had prudential standing. Id. at 186. For Judge Kavanaugh, the Supreme Court’s pronounced effort to refine the application of the “jurisdictional label” in recent years foreclosed its use in dismissing a case for a lack of prudential standing. 15See id. at 182–83. Notably, Judge Kavanaugh described the zone of interests test as a question of whether Administrative Procedure Act (APA) § 702 provided a cause of action to the aggrieved parties. See id. at 183 & n.3. That cause of action does not speak to a court’s power to hear the case but rather the parties’ right of review. Id. at 183 n.3. For support, Judge Kavanaugh appealed to the circuit majority, which has adopted this view. See id. at 184–85. That argument hinges upon the Supreme Court’s holding that a cause of action goes to the merits of a claim and not the jurisdiction of the court. See infra notes 187–93 and accompanying text. However, this Comment approaches the zone of interests test a step before Judge Kavanaugh’s dissent, essentially arguing that the Supreme Court’s articulation of the zone of interests test precludes even reading it as a statutory cause of action. He highlighted the split that the decision solidified between the D.C. Circuit and its sister circuits. 16See Grocery Mfrs. Ass’n, 693 F.3d at 184–85. The Fifth, Seventh, Ninth, Tenth, Eleventh, and Federal Circuits have all held that prudential standing is not jurisdictional and is subject to waiver. Id. The Second, Sixth, and D.C. Circuits have held to the contrary. See Wight v. BankAmerica Corp., 219 F.3d 79, 90 (2d Cir. 2000); Cmty. First Bank v. Nat’l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994); Animal Legal Def. Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994); Thompson v. Cnty. of Franklin, 15 F.3d 245, 248 (2d Cir. 1994). Moreover, he stressed, this determination was far from an ethereal or hypothetical one—the EPA likely would have lost on the merits had the court reached them. 17Grocery Mfrs. Ass’n v. EPA, 704 F.3d 1005, 1005, 1007 (D.C. Cir. 2013) (Kavanaugh, J., dissenting) (denying petition for rehearing en banc) (“The panel’s standing holding is outcome-determinative because EPA will lose if we reach the merits. The E15 waiver plainly violates the statutory text.”). While not failsafe, Judge Kavanaugh’s conclusion is bolstered by the fact that Judge Tatel, who concurred in the panel judgment, indicated that he personally agreed that prudential standing should not be jurisdictional. Grocery Mfrs. Ass’n, 693 F.3d at 180 (Tatel, J., concurring). He would have reached the merits if the D.C. Circuit precedent did not clearly state that a lack of prudential standing was jurisdictional. See id.

On the surface, whether the zone of interests test is jurisdictional should be an easy question. The Court has repeatedly described the test as a prudential consideration. 18See, e.g., Bennett v. Spear, 520 U.S. 154, 162 (1997). It should be noted from the outset that these terms“prudential standing” and “zone of interests”are not interchangeable. The confusion in Grocery Manufacturers stems, in part, from conflation of the terms. The actual holding of the case was not that the zone of interests test is jurisdictional, but that prudential standing is jurisdictional. See Grocery Mfrs. Ass’n, 693 F.3d at 179–80 (majority opinion). While that conflation is not uncommon, it is immensely harmful to the discussion. The zone of interests may be seen as prudential standing, but the reverse is not trueprudential standing encompasses more than the zone of interests test. This conflation is the equivalent of labeling all whiskey “bourbon” or all fruit “oranges.” The practical importance can be seen in the Supreme Court’s holding that other doctrines of prudential standing are not jurisdictional. See infra Part III, nn.300–01 and accompanying text. In this sense, the panel’s decision is flatly wrong. Accordingly, this Comment will use the labels with more precision. As this Comment will discuss, the foundation of prudential considerations rests not in external limitations imposed upon the Court, such as those imposed by Article III of the Constitution, but in the Court’s caution to exercise its own legitimate authority. 19See infra Part III.A. However, the Court has also provided seemingly conflicting foundations for the zone of interests test and called into question its proper home among the prudential doctrines. 20See infra Part I.B. Because of this confusion, scholars have called for the Court to relocate the test to a more appropriate position within its standing jurisprudence. 21See, e.g., Radha A. Pathak, Statutory Standing and the Tyranny of Labels, 62 Okla. L. Rev. 89, 102 (2009) (“[T]he actual application of the zone of interests test, in contrast to the way it is often described, supports the view that it should be understood as nothing more than an interpretation of the APA.” (footnote omitted)). But see Joshua L. Sohn, The Case for Prudential Standing, 39 U. Mem. L. Rev. 727, 728 (2009) (arguing that constitutional standing provisions should be absorbed into the prudential analysis).

This Comment will argue that the Court has planted and cultivated the zone of interests test in the soil of prudential considerations. While several cases may cast doubt on this determination, the Court’s recent jurisprudence legitimizes the prudential reading as the correct one. This understanding is pivotal in determining how the zone of interests test functions in light of the Court’s recent articulation of jurisdiction. In parsing the zone of interests test to determine whether it is jurisdictional, the circuit courts have failed to give proper credence to the Supreme Court’s clearly articulated view that the test is prudential. However desirable and important it may be, prudential standing, properly understood in the context of the larger prudential body of law, cannot function in a jurisdictional manner under the Court’s recent cases. Accordingly, the zone of interests test cannot, and should not, be used by courts to abdicate jurisdiction over a case or controversy.

To that end, Part I of this Comment examines the development of the zone of interests test, tracing the Court’s justification for it at each iteration. It will give particular attention to whether the test is constitutional, statutory, or prudential. Part II examines the Court’s recent movement to refine jurisdiction, focusing on the potential sources for jurisdictional rules. It will explain how the Court analyzes those sources to determine whether they are jurisdictional, deducing an essential framework for application.

Part III applies the new framework of jurisdiction to the salient points of prudential standing, concluding that the two doctrines function in a complementary but distinct fashion. It then presents compelling examples of this distinction and addresses why the zone of interests test functions more efficiently when viewed as a prudential standing doctrine. Ultimately, this Comment concludes that the zone of interests test, as currently defined, is a prudential standing doctrine and cannot function in a jurisdictional manner.

I. The Zone of Interests Test as a Prudential Doctrine

The zone of interests test can be succinctly stated: “The interest [the plaintiff] asserts must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that he says was violated.” 22Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)). However, that simple phrase belies the complexity and deep unrest implicated by the doctrine. The zone of interests test has been called many things in its forty-three years of existence, both by the Court and its commentators. 23See, e.g., Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396 (1987) (“The ‘zone of interests’ formula in Data Processing has not proved self-explanatory . . . .”).

Despite the criticism, the Court has long classified the zone of interests test as a prudential doctrine 24See infra Part I. a prudential doctrine being one that is judge-made. 2533 Charles Alan Wright & Charles H. Koch, Federal Practice and Procedure § 8413 (2006) (“Prudential considerations are limitations on the courts’ power that the judiciary itself has devised . . . .”). Wright and Koch describe the application of prudential considerations as “discretionary” and grounded in a desire to limit judicial intervention to disputes where a decision would be meaningful. See id. (“Simply because the Constitution gives courts power does not mean that it is either wise or necessary for them to exercise that power.”). Some commentators, however, reject this prudential gloss and instead argue that the test is ultimately a statutory imposition required by the APA. 26See Jonathan R. Siegel, Zone of Interests, 92 Geo. L.J. 317, 341 (2004); see also Pathak, supra note 21 at 102. The Court’s language at times could be read to support such an interpretation. 27See infra Part I.B. Thus, understanding the source of the zone of interests test stands as the first stop in determining whether it should be read to limit the jurisdiction of the courts.

This section catalogs a few of the more important and divergent cases, focusing on the Court’s treatment of the zone of interests test with respect to its prudential classification and distinct role in the standing evaluation. 28For an in-depth treatment of the less prominent cases not addressed herein, as well as the lower court reactions, see Siegel, supra note 26, at 319–41. See generally Sanford A. Church, Note, A Defense of the “Zone of Interests” Standing Test, 1983 Duke L.J. 447 (discussing the early zone of interests cases). Particular attention will be given to the Court’s justification for creating and utilizing the zone of interests test. This section will begin by examining the seminal case for the test, Association of Data Processing Service Organizations v. Camp. 29397 U.S. 150 (1970). Then it will move to subsequent cases that sent conflicting messages about the test’s prudential status. Finally, it will examine the most recent cases concerning the zone of interests test, which lead to the conclusion that the test is a category of prudential standing.

A. The Inception of the Zone of Interests Test

The zone of interests test first appeared in Association of Data Processing Service Organizations v. Camp. 30Id. at 153. In Data Processing, the plaintiffs, sellers of data processing services, challenged a ruling by the Comptroller of the Currency that allowed banks to sell the same services. 31Id. at 151. The plaintiffs alleged this ruling was in violation of the Bank Service Corporation Act of 1962, § 4, which stated, “No bank service corporation may engage in any activity other than the performance of bank services for banks.” 32Id. at 155 (quoting 12 U.S.C. § 1864 (1964)). The trial court dismissed the case, finding the plaintiffs lacked standing. 33Id. at 151. The court of appeals affirmed. 34Id. The Supreme Court reversed, holding that the plaintiffs had standing and the case should be heard on the merits. 35Id. at 158. The Court’s opinion in Data Processing highlights two considerations that are salient to this Comment: (1) the development of the Court’s bifurcated standing analysis and (2) the role of prudential considerations in that standing analysis.

First, the Court delineated a new, bifurcated framework for determining standing in APA cases. The Court abandoned its prior framework, the legal interest test, 36Id. at 153. The legal interest test can be described as withholding standing “‘unless the right invaded is a legal right,one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.’” Id. (quoting Tenn. Elec. Power Co. v. TVA, 306 U.S. 118, 137–38 (1939)). The Court held that the legal interest test went to the merits of a case rather than a litigant’s standing. Id. at 153. Interestingly, the Court proceeded to find the plaintiff’s interest within the zone of interest through the statutory/congressional intent framework. Id. It then stated: “We do not put the issue in those words, for they implicate the merits. We do think, however, that § 4 arguably brings a competitor within the zone of interests protected by it.” Id. at 156. and instead required the plaintiff to suffer harm cognizable under both Article III of the Constitution and the review portions of the APA. 37Id. at 153. The first prong of the new standing framework emphasized the constitutional requirement that a plaintiff sustain an “injury in fact.” 38Id. at 152. This is the foundation of the modern Article III standing analysis, which requires injury in fact, causation, and redressability. See Siegel, supra note 26, at 320. The plaintiffs satisfied this requirement by showing they would suffer financial harm through direct competition from the banks. 39Data Processing, 397 U.S. at 152. The second prong of the standing analysis examined “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” 40Id. at 153. Ensuing confusion over this bifurcation is hardly surprising given the fact that the Court seemed confused itself when explaining standing. It observed earlier in the same opinion, “Generalizations about standing to sue are largely worthless . . . . One generalization is, however, necessary and that is that the question of standing in the federal courts is to be considered in the framework of Article III which restricts judicial power to ‘cases’ and ‘controversies.’” Id. at 151. Yet, it folded concerns “apart from the ‘case’ or ‘controversy’ test” directly into the standing evaluation. See id. at 153. Given the conflation, it seems even this generalization was “largely worthless.” The Court made clear that this second prong was not mandated by the Constitution by stating that it stood “apart from the ‘case’ or ‘controversy’ test.” 41Id. Applying the second prong, the Court interpreted the language of the APA as “grant[ing] standing to a person ‘aggrieved by agency action within the meaning of a relevant statute.’” 42Id. at 153–54 (quoting 5 U.S.C. § 702 (Supp. IV 1964)). In the Court’s opinion, the relevant statute, the Bank Services Corporation Act of 1962, brought the plaintiffs’ interest within its zone of interests. 43Id. at 156. Accordingly, the plaintiffs satisfied both prongs of the standing analysis.

Second, the Data Processing Court discussed the foundation for the non-constitutional second prong of the standing inquiryprudential considerations. Acknowledging the broad reviewability provisions of the APA, the Court intimated a desire to somehow limit the growing class of those permitted to challenge agency action. 44See id. at 154. To that end, it wrote, “Apart from Article III jurisdictional questions, problems of standing, as resolved by this Court for its own governance, have involved a ‘rule of self-restraint.’” 45Id. (quoting Barrows v. Jackson, 346 U.S. 249, 255 (1953)). The Court had previously used that exact language to describe its prohibition on litigants bringing claims based on the rights of third parties. 46Barrows, 346 U.S. at 255. It is worth noting that the Barrows language clearly distinguished jurisdictional issues from those of “judicial self-restraint.” Id. (“Apart from the jurisdictional requirement, this Court has developed a complementary rule of self-restraint for its own governance . . . .” (emphasis added)). The Data Processing opinion muddled this clarity. By applying the same language to the zone of interests test, the Court grouped it alongside that prohibition. 47See Data Processing, 397 U.S. at 154 (quoting Barrows, 346 U.S. at 255). The Court did not use the term “prudential” to describe either doctrine at that point. 48See id. With regard to standing, the term “prudential” has a less than clear history. Judge Fletcher attributed its ascent to common usage to Alexander Bickel’s “passive virtues.” See William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 252 (1988) (citing Alexander M. Bickel, The Least Dangerous Branch 111 (2d ed. 1986)). Originally, Bickel used the term to describe the Supreme Court’s discretion in crafting its docket. Id. It is now far more broadly applied to all courts’ discretion. Id. In any event, the idea of judicial “self-restraint” dates back for some time. See, e.g., Barrows, 346 U.S. at 255. But, the Court did not affix the “prudential” label to any of these doctrines of self-restraint until the mid-1970s. See Warth v. Seldin, 422 U.S. 490, 498 (1975); United States v. Richardson, 418 U.S. 166, 181 (1974) (Powell, J., concurring). However, it clearly voiced its ability to decline certain questions based on the wisdom of doing so, rather than out of constitutional necessity. 49See Data Processing, 397 U.S. at 154.

Justice Brennan concurred in the result but strongly dissented from the majority’s creation of a two-tiered standing inquiry. 50See id. at 167–68 (Brennan, J., concurring in the result and dissenting). For Justice Brennan, the only standing requirement consistent with the Court’s jurisprudence was that of the constitutional injury in fact. 51Id. at 168 (citing Flast v. Cohen, 392 U.S. 83 (1968)). By imposing the zone of interests test, the majority “perpetuat[ed] the discredited requirement” that the plaintiff show a legally protected interest to establish standing. 52Id. at 168. Moreover, Justice Brennan argued that the majority “encourage[d] more [instances of confusing merits with standing] by engrafting its wholly unnecessary and inappropriate second step upon the constitutional requirement for standing.” 53Id. at 169. He acknowledged the need for the statutory inquiry but proposed that it be performed, independent of the standing inquiry, as an “aspect of reviewability.” 54Id. (emphasis removed). Justice Brennan preferred to keep the merits and standing inquiry separate and viewed their merger as likely to “encourage[] badly reasoned decisions.” 55See id. at 170.

The zone of interests test appeared in twelve additional cases in the 1970s. 56See Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 n.6 (1979); Bos. Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 321 n.3 (1977); Singleton v. Wulff, 428 U.S. 106, 111 (1976); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 39 n.19 (1976); United States v. Richardson, 418 U.S. 166, 176 n.9 (1974); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 n.16 (1974); Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers, 414 U.S. 453, 469 (1974); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686 (1973); Sierra Club v. Morton, 405 U.S. 727, 733 (1972); Inv. Co. Inst. v. Camp, 401 U.S. 617, 641 (1971) (Harlan, J., dissenting); Arnold Tours, Inc. v. Camp, 400 U.S. 45, 46 (1970); Barlow v. Collins, 397 U.S. 159, 159 (1970). However, with few exceptions, each subsequent case added little to the original test for actions brought under the APA. 57See Siegel, supra note 26, at 320–24 (discussing subsequent cases and their failure to clarify the test). The Court did, however, make a notable expansion of the test to actions not brought under the APA when it required that a plaintiff’s injury fall within the zone of interests of the Commerce Clause. 58See, e.g., Bos. Stock Exch., 429 U.S. at 320–21 n.3 (applying the zone of interests to the Commerce Clause). The application of the zone of interests test to the Commerce Clause was just the first of many subsequent applications to cases not involving the APA. This facet of the zone of interests test has sparked its own body of literature and, while intriguing, is too broad a discussion to include in this Comment. Additionally, Justice Brennan continued to protest the use of the test for the reasons set forth in his Data Processing dissent. 59See, e.g., Schlesinger, 418 U.S. at 235–36, 238 (Brennan, J., dissenting) (“The risk of ambiguity and injustice can be minimized by cleanly severing, so far as possible, the inquiries into reviewability and the merits from the determination of standing.” (internal quotation marks omitted) (citing Barlow, 397 U.S. at 176)).

B. Confusion in Its Development

While cases in the initial decade of the zone of interests test might not have shed much light on its application, they were mostly uniform. Moving into the 1980s, however, the Court authored opinions that seemed to present divergent perspectives on the source of the test. The Court ratified the doctrine as prudential early in the decade. 60See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474–75 (1982). However, in attempting to clarify bubbling circuit confusion, it later embraced a view that relegated the zone of interests test to a rule of statutory interpretation that relied on congressional intent. 61See Air Courier Conference of Am. v. Postal Workers Union, 498 U.S. 517, 524 (1991); Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987).

Although the Court laid the groundwork for treating the zone of interests test as prudential in Data Processing, it did not explicitly refer to the test as such in the 1970s. 62While not adopted by the Court, Justice Powell had previously written that the zone of interests should “undoubtedly” be treated as a prudential limitation. See United States v. Richardson, 418 U.S. 166, 196 n.18 (1974) (Powell, J., concurring). The Court, however, officially adopted the “prudential” label in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., a case concerning taxpayer standing. 63454 U.S. at 475. The Court ultimately decided the case on grounds other than the zone of interests test. 64Instead, the Court found the plaintiff lacked standing under Article III, obviating the need to address any prudential standing deficiency. See id. at 485–86 (“[The plaintiffs] fail to identify any personal injury suffered by them . . . other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III . . . .”). However, the Court’s inclusion of the test among the prudential standing doctrines, as well as its subsequent discussion of prudential standing, sheds more light (for purposes of this Comment) on understanding the zone of interests test than any previous case.

First, the Valley Forge Court explained that “[t]he term ‘standing’ subsumes a blend of constitutional requirements and prudential considerations.” 65Id. at 471. Notably, this approach differed from the Court’s previous generalization that standing should be analyzed in the Article III framework alone. See supra note 40. This language signaled the Court’s full embrace of the bifurcated standing analysis. The Court proceeded to list three rules which it deemed prudential: (1) a plaintiff must assert his own rights and not those of a third party, 66Valley Forge, 454 U.S. at 474 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). (2) the Court declines to hear “abstract questions of wide public significance which amount to generalized grievances,” 67See id. at 474–75 (quoting Warth, 422 U.S. at 499–500 (1975)) (internal quotation marks omitted). and (3) a “plaintiff’s complaint [must] fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” 68See id. at 475 (quoting Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)) (internal quotation marks omitted).

Second, the Valley Forge Court taught that, although prudential standing considerations are closely related to Article III requirements, they are distinct concepts and should not be confused. 69See id. (“Merely to articulate these principles is to demonstrate their close relationship . . . . But neither the counsels of prudence nor the policies implicit in the ‘case or controversy’ requirement should be mistaken for the rigorous Art. III requirements themselves.”). The Court explicitly noted that “[the Article III] requirement states a limitation on judicial power, not merely a factor to be balanced in the weighing of so-called ‘prudential’ considerations.” 70Id. Without explaining the full nature of what “prudential considerations” were or how they functioned, this treatment clearly distinguished them from the Article III factors, which limit judicial power. Accordingly, the Valley Forge Court clarified that the zone of interests test is a prudential standing doctrine and that prudential standing, unlike constitutional standing, does not impose limits on judicial power.

Compared to the decade in which the test was conceived, the 1980s saw few zone of interests cases. 71“Zone of interests cases” should be taken to mean the test was not merely mentioned offhand, but applied by the Court in some way. See Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396–400 (1987); Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 231 n.4 (1986); Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345–46 (1984). Allen v. Wright mentioned the test, but merely in a way echoing the prudential classification from Valley Forge. See Allen v. Wright, 468 U.S. 737, 751 (1984). Given the few cases in which the Supreme Court utilized, let alone explained, the zone of interests test, lower courts struggled to apply it. 72See Siegel, supra note 26, at 322–24. However, most courts eventually interpreted the test to require an inquiry into whether Congress, through the relevant statute, had sought to benefit the plaintiff. 73See id. at 324.

The Court set out to correct this misapplication in Clarke v. Securities Industry Association and, in so doing, provided two important considerations. 74479 U.S. 388. First, the Clarke Court clarified that the bar for satisfaction of the zone of interests test was lower than what the circuits were requiring. 75See id. at 399–400. Specifically, the test was not “to be especially demanding” and “there need be no indication of congressional purpose to benefit the would-be plaintiff.” 76Id. Accordingly, the right of review was to be denied only “if the 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 intended to permit the suit.” 77Id. at 399.

Second, the Clarke Court seemed to view the zone of interests test not as a prudential doctrine, but rather as a lens of statutory interpretation. Acknowledging that the test “ha[d] not proved self-explanatory,” the Court took the opportunity to provide an exegesis of Data Processing. 78See id. at 394–98. At the core of its discussion, the Court did not mention that the zone of interests test fell among the prudential standing doctrines or even that it was a doctrine of self-governance or self-restraint. Rather, the Court’s only explanation painted the test as a judicially created gloss on the meaning of APA § 702, which grants the “aggrieved person” a right of review. 79See id. at 395. The Court found this gloss necessary because it did not perceive Congress intended to allow suit by “every person suffering injury in fact.” 80See id.

Although the Court recognized that it had “occasionally listed the ‘zone of interest’ inquiry among general prudential considerations bearing on standing,” 81Id. at 400 n.16 (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982)). this was more of an afterthought and did not occur in the exegesis of the doctrine. With Clarke, the Court indicated that the zone of interests test was merely a doctrine of statutory interpretation. 82See Siegel, supra note 26, at 327. While the distinction between doctrines of statutory interpretation and prudential considerations could seem arbitrary, the trickle down impact of a shift like this is difficult to overstate. Essentially, the Court moved from viewing the zone of interests test as a limitation created by judicial self-imposition to one imposed upon the Court by the text of the APA. 83This distinction between external statutory imposition and prudential self-imposition will be particularly relevant in discussions infra Part III. Without the appeal to or exposition of prudential concerns, the Clarke decision introduced significant ambiguity to the foundation and function of the zone of interests test.

Four years later, the Court again decided a case on the zone of interests test in Air Courier Conference of America v. American Postal Workers Union. 84498 U.S. 517 (1991). In Air Courier, the American Postal Workers Union challenged a Postal Service ruling that allowed private carriers to participate in “international remailing.” 85See id. at 519–20. The union alleged that the participation of the private companies in the international mail market would harm its workers’ employment interests. 86See id. at 521. The decision is important for two reasons: (1) for the first time, the Court found that plaintiffs lacked standing under the zone of interests test 87Id. at 530. Only once prior to this case had the Court arguably declined to find a plaintiff’s interest within the zone of interests. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984). But even in Block, the Court did not explicitly apply the zone of interests test. Rather, it held that “[t]he structure of this Act implies that Congress intended to preclude [the plaintiff’s] challenges.” Id. at 352. and (2) again the Court did not mention prudential considerations in its analysis.

First, after analyzing the statutory scheme, the Court declined to extend standing to the plaintiffs. 88Air Courier, 498 U.S. at 530. The first prong of the Court’s standing analysis, the constitutional injury in fact, was not appealed. 89See id. at 524. The Postal Service, along with the ACCA, was the petitioner in this case. See id. at 521. It filed a motion for summary judgment against the Union, which was granted at the trial level. See id. The appellate court reversed, determining the Union satisfied the zone of interests test. Id. Thus, the Supreme Court assumed that the Union had constitutional standing and then sought to determine whether Congress intended to protect the Union’s interest under the relevant statute. 90See id. at 524–25 (“We must inquire, then, as to Congress’ intent in enacting the [relevant statutes] in order to determine whether postal workers were meant to be within the zone of interests protected by those statutes.”). After analyzing the language and history of the statute, the Court stated that it would not make the “substantial extension” of Clarke and Data Processing that would be necessary to find the Union within the statute’s zone of interests. 91See id. at 530.

The Court dismissed the case on the sole ground that the plaintiffs lacked standing. 92See id. at 530–31. Moreover, this lack of standing was not based on Article III deficiencies, but merely a failure to satisfy the zone of interests test. 93See id. Ultimately, whether the Court made the correct statutory application makes little difference. The practical outworking is what mattersthe decision gave teeth to the Court’s requirement that a plaintiff must satisfy both prongs of its standing evaluation. 94Even at this point, however, the Court did not refer to the requirement as jurisdictional. See id.

Second, throughout the Court’s entire exposition of the zone of interests test and the relevant statutory material, it did not mention the test as a prudential doctrine, either explicitly or implicitly. 95See id. at 529–31. Taken in light of Clarke, the decision’s lack of prudential considerations signaled a full embrace of the zone of interests test as a tool of statutory interpretation, rather than a judicially created doctrine of prudence. Air Courier, thus, was the high-water mark for viewing the zone of interests test independently from its prudential origins. 96Even so, the Court never described the zone of interests test as an imposition from the APA. Rather, it felt the gloss on the statute necessary to effectuate what it perceived was congressional intent to limit the growing class of litigants. See Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 395 (1987).

C. Recent Cases: Consistently Applying the Zone of Interests Test as a Prudential Requirement

Although the Clarke and Air Courier decisions seemed to direct the zone of interests test away from its prudential roots, the Court reclaimed the test’s heritage beginning with Bennett v. Spear, 97520 U.S. 154 (1997). a unanimous opinion. 98Id. at 156. Cases following Bennett, up to the present, have shown that the Court continues to articulate the zone of interests test as a prudential standing requirement.

The Bennett Court raised three important considerations. Primarily, it addressed whether the Endangered Species Act’s citizen suit provision 9916 U.S.C. § 1540(g) (1994). abrogated the zone of interests test, allowing any citizen, more or less, to bring suit under it. 100See Bennett, 520 U.S. at 161. In the end, the Court found the language of the statute“any person may commence a civil suit” 10116 U.S.C. § 1540(g)(1). to be purposefully broad and inclusive, relaxing the zone of interests entirely. 102See Bennett, 520 U.S. at 164–66. It reasoned, “Congress legislates against the background of our prudential standing doctrine, which applies unless it is expressly negated.” 103Id. at 163. The possible implications of this paragraph will be discussed subsequently. See infra Part III.C. Thus, Congress intended the citizen suit provision to establish an express negation. 104See Bennett, 520 U.S. at 163–64.

Second, and more salient to this discussion, the Court returned to the prudential bedrock of the zone of interests test. Prior to reaching the conclusion on the negation of the test, Justice Scalia, writing for the unanimous Court, dedicated nearly two pages to recapping and summarizing its place within the Court’s jurisprudence. 105See id. at 162–63. Again dividing standing into constitutional and prudential considerations, the Court reaffirmed that the zone of interests test is “judicially self-imposed,” rather than an “immutable requirement[] of Article III.” 106See id. at 162. Moreover, the Court affirmed that it “specifically listed [the zone of interests] among other prudential standing requirements of general application,” showing its view that the zone of interests test stands among the two other categories of prudential standingthe prohibition against third-party standing and the refusal to hear generalized grievances. 107See id. at 162–63. This quoted language was in specific reference to the zone of interests test’s applicability across all statutory and constitutional provisions, as opposed to just the APA. See id.

Third, Bennett presented the Court with perhaps its only explicit opportunity to confront whether prudential standing, specifically the zone of interests test, should be read as a jurisdictional limitation on the courts. The case came before the Court after the district court dismissed it for a lack of jurisdiction, determining the plaintiffs lacked standing under the zone of interests test. 108Id. at 160–61. The court of appeals affirmed. 109Id. at 161. This posture presented a unique opportunity for the Court to clarify whether the test was jurisdictional. However, the Court did not address the question because it reversed the lower courts, finding that the plaintiff did have standing under the zone of interests test. 110See id. at 166. While the avoidance may have been either intentional or arbitrary, perhaps the fact that jurisdiction was not quite in focus yet had something to do with the aversion. The Court did not take up the jurisdictional fight until the following year. See infra note 143 and accompanying text.

After Bennett the Court has shown no intention to back away from the classification of the zone of interests test as prudential. Nor has the Court shied away from the bifurcated standing analysis. In fact, the Court has seemed to take both for granted. 111See, e.g., FEC v. Akins, 524 U.S. 11, 20 (1998) (“[P]rudential standing is satisfied when the injury asserted by a plaintiff arguably falls within the zone of interests . . . .” (internal quotation marks omitted)). For instance, in Elk Grove Unified School District v. Newdow, 112542 U.S. 1 (2004). the Court explained the two-fold standing inquiryconstitutional and prudentialand then listed the zone of interests test in the prudential category. 113See id. at 11–12. The Court reaffirmed prudential standing as “judicially self-imposed limits on the exercise of federal jurisdiction.” 114See id. (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)) (internal quotation marks omitted). Moreover, it described prudential concerns as “closely related to Art. III concerns but essentially matters of judicial self-governance.” 115Id. at 12 (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). The Court ultimately dismissed the case under its long-standing practice of refusing to hear matters hinging upon family law disputes. See id. at 17–18. However, the majority took the opportunity to fold this practice into the prudential standing body of law, a decision that drew strong criticism from Chief Justice Rehnquist and Justices O’Connor and Thomas. See id. at 18–19 (Rehnquist, C.J., concurring in the judgment).

Most recently, the Court decided Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak. 116132 S. Ct. 2199 (2012). In Patchak, the Secretary of the Interior sought to acquire property for a band of Pottawatomi Indians under 25 U.S.C. § 465. 117See id. at 2203. The band intended to use the land for gaming purposes. 118Id. Patchak, a resident who lived “in close proximity” to the property, challenged the action, asserting the acquisition was not authorized by § 465. 119See id. at 2203. Patchak alleged no personal stake in the property to be acquired, but rather destruction of his lifestyle through “increased traffic, increased crime, decreased property values, an irreversible change in the rural character of the area, and other aesthetic, socioeconomic, and environmental problems.” See id. at 2203–04 (internal quotation marks omitted). The band and Secretary countered that Patchak lacked prudential standing. 120Id. at 2210.

The Court found that Patchak did in fact satisfy the zone of interests test. 121See id. at 2210–11. Three facets of the analysis shed light on the Court’s current view of the test. First, the Court took for granted that the test is a form of “prudential standing.” It implicitly endorsed the use of the term by the defendants and utilized the term to describe the test. 122See id. at 2210. Second, it affirmed the view that standing, at least in APA cases, always requires both Article III injury-in-fact and satisfaction of the zone of interests test. 123See id. Third, citing Clarke, it affirmed that the threshold for the test is low. 124See id.

In light of these recent cases, three principles are evident. First, the zone of interests test is a prudential doctrineone self-imposed by the Court for its own governance. It is clearly not a constitutional imposition. Although the Clarke and Air Courier decisions indicated that the zone of interests test sprung from statutory imposition, the Court never explicitly rejected the test as a prudential limitation. From Bennett to the present, the Court has implicitly rejected the statutory imposition reading by consistently describing the zone of interests test as prudential. Second, the Court requires that the plaintiff fall within the zone of interests of the relevant statute to secure a right of review when challenging under the APA. Mere satisfaction of the Article III standing component is not enough. Third, the Court is emphatic that the test be satisfied when prudential standing is raised, but it has never referred to the test as jurisdictional. Although the Court had an explicit opportunity to address whether the zone of interests test is jurisdictional, the Court declined to take it by finding the plaintiff within the zone of interests and reversing the jurisdictional dismissal. Ambiguity remains then as to whether the Court considers the test jurisdictional.

II. Jurisdiction’s New Scope

This Comment has shown why the zone of interests test is categorized as a prudential doctrine. 125See supra Part I. However, that categorization mattered little for purposes of determining the doctrine’s jurisdictionality until recently. Twenty years ago, as the Bennett decision indicates, 126See supra note 110. the question of whether prudential standing was jurisdictional would not have been appropriate (or even material) because of the loose construction most courts gave to jurisdiction. 127See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006) (acknowledging that even the Supreme Court had misused the term). Over the last fifteen years, the Court has recognized the haphazard application of jurisdiction and the egregious consequences associated with that misapplication. 128See Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); Arbaugh, 546 U.S. at 510. In remedy, the Court has sought to curtail what it deemed “‘drive-by jurisdictional rulings.’” 129See Arbaugh, 546 U.S. at 511 (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998)). The Court applied this label to “unrefined dispositions” that failed to consider “whether the dismissal should be for lack of subject matter jurisdiction or for failure to state a claim.” See id. at 511 (quoting Da Silva v. Kinsho Int’l Corp., 229 F.3d 358, 361 (2d Cir. 2000)) (internal quotation mark omitted). Moreover, the Court emphasized that this type of ruling does not hold precedential effect upon its jurisprudence. See id. (citing Steel Co., 523 U.S. at 91); see also Henderson, 131 S. Ct. at 1202 (explaining the Court’s effort to “bring some discipline to the use of [jurisdiction]”); see generally Howard M. Wasserman, The Demise of “Drive-by Jurisdictional Rulings”, 105 Nw. U. L. Rev. Colloquy 184 (2011), http://www.law.northwestern. edu/lawreview/colloquy/2011/3/LRColl2011n3Wasserman.pdf (examining the recent focus of the Court on limiting the use of the term “jurisdictional”). Beginning with Steel Co. v. Citizens for a Better Environment in 1998, 130523 U.S. 83. Notably, the shift began during the same time frame that the Court moved to fully embrace the zone of interests test as a prudential doctrine. See supra note 110. the Court has regularly spoken, albeit indirectly at times, to the definition of jurisdiction, gradually building a repository of what it is and what it is not.

Accordingly, the zone of interests test’s prudential status does not end the inquiry into its jurisdictional status. Rather it advances the discussion to the question of what sources the Court considers appropriate sources of jurisdiction. While constitutional provisions have long been viewed as such, this discussion will illustrate that less-than-constitutional rules can be jurisdictional as well. The purpose of this section, then, is to sort through the relevant portions of two recent groups of cases, assembling a coherent and contemporary framework of jurisdiction.

A. The Harsh Consequences of Jurisdictional Deficiency

The first group of cases outlines the stringent boundaries and harsh consequences of jurisdiction. These might be said to embody the general legal community’s understanding of jurisdiction and, thus, do not require as much explanation. Moreover, these cases assure that the popular understanding of jurisdiction is alive and well in recent applications.

In United States v. Cotton, an appeal out of the Fourth Circuit questioned the Fourth Circuit’s precedent that defective indictments were jurisdictional. 131See 535 U.S. 625, 629 (2002). The Fourth Circuit had, to that point, relied upon Ex parte Bain, 121 U.S. 1 (1887), a case in which the Court utilized an “elastic concept[ion] of jurisdiction” to remedy constitutional wrongs it could not have otherwise reached due to the then existing limitations on its review of criminal convictions. See Cotton, 535 U.S. at 630. In Cotton the Court overruled Ex parte Bain. Id. at 631. The Supreme Court held that deficiencies in an indictment are not a jurisdictional limitation on a court. 132Cotton, 535 U.S. at 630. The Supreme Court took the opportunity to elucidate two interrelated principles. First, jurisdiction should be understood as “the courts’ statutory or constitutional power to adjudicate the case.” 133Id. at 630 (quoting Steel Co., 523 U.S. at 89) (internal quotation marks omitted). Second, the fact that subject-matter jurisdiction concerns a court’s power to even hear a case means that subject-matter jurisdiction “can never be forfeited or waived.” 134Id. at 630.

In 2012 the Court decided Gonzalez v. Thaler, 135132 S. Ct. 641 (2012). a case in which it clearly summarized its current understanding of jurisdiction. 136See id. at 648. Reiterating and drawing from Cotton, the Supreme Court emphasized that “courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented” when those issues go to subject-matter jurisdiction. 137See id.; accord Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999); cf. Bowles v. Russell 551 U.S. 205, 214 (2007) (explaining that the “Court has no authority to create equitable exceptions to jurisdictional requirements”). Moreover, these objections may be raised at any point throughout the litigation and, if valid, “lead a court midway through briefing to dismiss a complaint in its entirety.” 138Gonzalez, 132 S. Ct. at 648. Such “drastic” consequences mean that jurisdictional infirmity can waste “[m]any months of work on the part of the attorneys and the court.” 139Id. (quoting Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011)) (internal quotation marks omitted).

Thus, the limitations and consequences that the jurisdictional label connotes are unambiguous. One can imagine how this power (or lack thereof) might easily become a blunt instrument in courts’ hands. A particularly difficult or potentially time-consuming case could be jettisoned with a simple determination by the judge that the court lacks jurisdiction. Alternatively, a judge might utilize a proposed lack of jurisdiction to further other personal or policy goals. 140See Perry Dane, Jurisdictionality, Time, and the Legal Imagination, 23 Hofstra L. Rev. 1, 95–96 (1994) (“The language is a hook that judges use when they want to achieve certain ends, like construing a rule strictly and literally, or raising a legal issue sua sponte, or engaging in collateral review of another court’s judgment.”). One scholar even suggests that jurisdiction can be construed at points as a “conclusory label for a judicial refusal to act.” 141Id. at 96.

B. Reining in a Severe Doctrine

Perhaps for legitimacy concerns, but certainly to facilitate consistent jurisprudence, 142See Kontrick v. Ryan, 540 U.S. 443, 455 (2004). the Court has tempered its affirmation of jurisdiction’s strong effects by steadily articulating the scope of its application. The cases that follow in this section develop both the scope of application and the reasons behind that limitation, with particular focus placed upon the sourceConstitution or statuteof each jurisdictional limitation.

Steel Co. v. Citizens for a Better Environment, 143523 U.S. 83 (1998). best known for abolishing the practice of hypothetical jurisdiction, 144See id. at 94. Hypothetical jurisdiction can be described as the practice of “proceed[ing] 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.” Id. at 93. provided fodder that became foundational for the Court’s movement to refine the breadth of jurisdiction. 145Justice Scalia coined the term “drive-by jurisdictional rulings” in this opinion. Id. at 91. The plaintiff-respondent, Citizens for a Better Environment, brought a citizen suit under the Emergency Planning and Community Right-to-Know Act (EPCRA) 14642 U.S.C. § 11046(a)(1) (1994). against the petitioner for past violations involving compliance with form-filing deadlines. 147See Steel Co., 523 U.S. at 86–87. The defendant filed the necessary but delinquent forms prior to the suit. 148See id. at 87–88. Thus, the primary question before the Court was whether the relevant EPCRA provision, § 11046(a), permitted suit for purely historical violations. 149See id. at 88. While the Court ultimately dismissed the case for want of Article III standing, 150See id. at 109–10. The Court ultimately held that the plaintiff lacked constitutional standing to bring the suit because redress was not possible. See id. it took the opportunity to address at least three pertinent concerns for the refining of jurisdiction.

First, the Court defined jurisdiction, explained its sources, and outlined the consequences of its absence. Jurisdiction should be understood as the courts’ “power to adjudicate the case.” 151Id. at 89. For commentary on the idea of jurisdiction as power, see Howard M. Wasserman, Jurisdiction, Merits, and Procedure: Thoughts on a Trichotomy, 102 Nw. U. L. Rev. 1547, 1547–48 (2008) (“[Jurisdiction] can broadly be defined as the court’s raw, baseline power and legitimate authority to hear and resolve the legal and factual issues in a class of cases.”). But see Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 Hastings L.J. 1613, 1620 (2003) (“[J]urisdiction cannot truly be a matter of power but instead must be a matter of something like legitimate authority.”). That power can be granted, enlarged, or limited by two sourcesthe Constitution or a statute. 152See Steel Co., 523 U.S. at 89. Drawing from long-standing precedent, Justice Scalia wrote, “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.” 153See id. at 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)) (internal quotation marks omitted). Accordingly, the question of a court’s jurisdiction must be resolved prior to making any determination on the merits, hypothetical or otherwise. 154See id. To proceed otherwise would be to render an advisory opinion. 155See id. at 101. The Court leveraged this definition and function to reform jurisdiction in cases following Steel Co. 156See, e.g., United States v. Cotton, 535 U.S. 625, 630 (2002).

Second, Justice Scalia explained that a clear statutory cause of action was not required for the court to have jurisdiction. 157See Steel Co., 523 U.S. at 89. While the majority found only the (constitutional) standing issue jurisdictional, Justice Stevens insisted in his concurrence that the issue of whether the relevant statute permitted the cause of action was equally jurisdictional. See id. at 114–15 (Stevens, J., concurring in the judgment). Justice Scalia found this an important enough issue to devote over twelve pages to refuting it. See id. at 89–102 (majority opinion). He wrote, “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 . . . .” 158Id. at 89. However, the possibility that the averments fail to state a cause of action upon which relief could be granted does not defeat jurisdiction. 159Id. (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)). In Bell v. Hood the Court established that competing statutory constructions, one of which would entitle the plaintiff to recover, are sufficient to entertain the case. 160See id. (quoting Bell, 327 U.S. at 685). Therefore, in order to dismiss the claim for lack of jurisdiction, “the federal claim . . . [must be] ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.’” 161Id. (quoting Oneida Indian Nation of N.Y. v. Cnty. of Oneida, 414 U.S. 661, 666 (1974)).

Third, he explained the practical implication that, if differing statutory constructions could provide or preclude a cause of action, courts would be forced to enter a hair-splitting interpretative mode to even determine jurisdiction. 162See id. at 92–93. To “call the existence of a cause of action ‘jurisdictional,’ . . . would turn every statutory question in an EPCRA citizen suit into a question of jurisdiction.” 163See id. at 92. Amidst the onslaught of rhetoric, the conclusion from Steel Co. is plain: the arguable lack of a statutory cause of action is not fatal to jurisdiction and need not be considered prior to establishing jurisdiction.

Six years later, the Court in Kontrick v. Ryan shed more light on the jurisdictional question when it considered whether time constraints within the Bankruptcy Code were jurisdictional. 164See 540 U.S. 443, 455 (2004). Two observations are noteworthy. First, the Court held that the Bankruptcy Rules were not jurisdictional. 165See id. at 454. It explained that “claim-processing rules [like the Bankruptcy Rules] . . . do not delineate what cases bankruptcy courts are competent to adjudicate.” 166Id. Like the Federal Rules of Civil Procedure, 167In describing the Federal Rules of Civil Procedure, the Court wrote, “‘[I]t is axiomatic’ that such rules ‘do not create or withdraw federal jurisdiction.’” Id. at 453 (alteration in original) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978)). the Bankruptcy Rules do not “extend or limit the jurisdiction of the courts.” 168See id. at 453–54 (quoting Fed. R. Bankr. P. 9030) (internal quotation mark omitted). The Court explained that the rules are simply a court-adopted means of properly administering the jurisdiction that Congress has already given courts. 169See id. at 454. The Bankruptcy Rules are by no means a traditional prudential doctrine. However, they share a thread with prudential standing in that they are used to guide the Court in administering the jurisdiction the Court already possesses. See supra note 25. In short, the Court created the Bankruptcy Rules, and they are not jurisdictional.

Furthermore, Kontrick marked the first explicit modern admonition by the Court for judges and litigants to limit the use of the term “jurisdiction.” The Court acknowledged the confusion surrounding the “less than meticulous” use of the term, both within its case law and that of the lower courts 170See Kontrick, 540 U.S. at 454. Taking the opportunity to recount a few of its missteps in this regard, 171See id. (citing United States v. Robinson, 361 U.S. 220, 228–29 (1960) (describing Fed. R. Civ. P. 6(b) and Fed. R. Crim. P. 45(b), both concerning time enlargement, as jurisdictional)). the Court admonished that “[c]larity would be facilitated if courts and litigants used the label ‘jurisdictional’ . . . only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicative authority.” 172Id. at 455.

The prominent Title VII case Arbaugh v. Y & H Corp. 173546 U.S. 500 (2006). implicitly built upon the foundations laid by Steel Co. and Kontrick. Justice Ginsburg, writing for an undivided Court, described the case as “concern[ing] the distinction between two sometimes confused or conflated concepts: federal-court ‘subject-matter’ jurisdiction over a controversy; and the essential ingredients of a federal claim for relief.” 174Id. at 503. Arbaugh brought suit against her former employer, Y & H Corp., for sexual harassment. 175Id. at 503–04. The trial court returned a verdict for Arbaugh in the amount of $40,000. 176Id. at 504. Y & H then raised, for the first time, that it could not be sued under Title VII of the Civil Rights Act of 1964 17742 U.S.C. § 2000e-2 (2000). because it failed to satisfy the fifteen-employee threshold for an employer as defined under § 2000e(b). 178See Arbaugh, 546 U.S. at 504, 509. The trial court dismissed the case, determining that the statutory threshold for fifteen employees was jurisdictional. 179Id. at 504. The court of appeals affirmed. 180Id. at 501. The Supreme Court reversed. 181Id. at 516.

Overall, the opinion gave two clarifications. First, the Court indicated that it would not consider every statute Congress enacted as speaking to jurisdiction. Rather, Congress must clearly state its intention for a statute to limit jurisdiction in order for the Court to treat it as such. Second, the Court emphasized the distinction between jurisdiction and the merits of the case, highlighting the practical consequences. 182For a discussion of this distinction, see Wasserman, supra note 151, at 1548 (“Merits, by contrast, are defined by who can sue whom, what real-world conduct can provide basis for a suit, and the legal consequences of a defendant’s failure to conform that conduct to its legal duties.”). But see, e.g., Lee, supra note 151, at 1613 (“I will argue that the conventional wisdom about jurisdiction is misleading, and, on occasion, dangerous. It is misleading because it is based on a false premisethat the true concept of jurisdiction is distinct from the true concept of the merits.”).

After recapping the strong effect of labeling a statute as jurisdictional, the Court exercised caution by declining to extend the label to the fifteen-employee threshold. 183See Arbaugh, 546 U.S. at 515. The Court explained that Congress has the power to designate any statute as jurisdictional. 184See id. at 514–15 (citing 28 U.S.C. § 1332’s “monetary floor”). Thus, congressional failure to designate the relevant Title VII statutes as such indicated that Congress did not intend them to be jurisdictional. 185See id. at 515–16. Therefore, the Court held that unless Congress clearly ranks a statutory limitation as jurisdictional, courts should not treat it as such. 186Id. at 516. Accordingly, although statutes have the ability to create or withhold jurisdiction, they are not by default jurisdictional.

Instead, the Court explained that the statutory provision should be seen as an element of the claim for relief, a merits consideration. 187See id. (“Applying that readily administrable bright line to this case, we hold that the threshold number of employees for application of Title VII is an element of a plaintiff’s claim for relief, not a jurisdictional issue.”). The effect of this realization or “bright-line rule,” at least for consideration here, is to shift the governing Federal Rule of Civil Procedure (FRCP) away from a 12(b)(1) 188Fed. R. Civ. P. 12(b)(1) (indicating that a 12(b)(1) motion must be raised in responsive pleadings). or 12(h)(3) 189Fed. R. Civ. P. 12(h)(3) (indicating that a 12(h)(3) motion may be raised at any point in the litigation). motion to dismiss for lack of subject-matter jurisdiction. 190See Arbaugh, 546 U.S. at 506–07. The notable inference is that any statute not “rank[ed]” by Congress as jurisdictional speaks to the claim for relief 191See id. at 516. and is, thus, subject to the motion to dismiss requirements of FRCP 12(b)(6) as “fail[ing] to state a claim upon which relief can be granted.” 192Fed. R. Civ. P. 12(b)(6). Consequently, failure to question the cause of action under FRCP 12(b)(6) or 12(h)(3) 193Fed. R. Civ. P. 12(h)(2) provides that a failure to state a claim upon which relief may be granted may be raised in the pleadings, a motion for judgment on the pleadings, or at trial. constitutes a waiver of the defense and cannot be remedied by a challenge to the jurisdiction of the court under FRCP 12(b)(1). While the Court later fleshed out the doctrinal backbone for this distinction, the mere fact that failure to state a claim is distinct from the concept of jurisdiction is remarkably important.

While Arbaugh presented a unified front from the Court, Bowles v. Russell 194551 U.S. 205 (2007). proved that not all of the dust of jurisdictional reform had settled. Only a year after Arbaugh, the Court considered whether statutory deadlines for the timely filing of an appeal 195The specific statute at issue was 28 U.S.C. § 2107(c), which allows a district court the discretion to reopen the time to file an appeal for a period of fourteen days. Id. at 207. The district court properly granted the motion to reopen but provided the petitioner an erroneously elongated filing date. See id. The petitioner complied with the erroneous date and, accordingly, filed after time had run out. See id. were jurisdictional. 196See id. at 206. Seemingly at odds with recent cases, the five–four majority held that the statutory timelines were jurisdictional. 197See id. at 206–07. Regardless of the petitioner’s compliance with the district court’s issued deadline, the Supreme Court held that the appeal was barred because it was jurisdictionally out of time. See id. Three aspects of Bowles are helpful in reconciling the case and understanding its role in the development of jurisdiction: (1) the Court’s rationale for the jurisdictional label, (2) the Court’s efforts to distinguish Arbaugh and Kontrick, and (3) the dissent’s response to those arguments.

First, in holding that the appeal filing deadlines were jurisdictional, the majority relied on two pillars: (1) the Court’s longstanding precedent of treating statutory time limits for taking an appeal as jurisdictional, and (2) Congress’s intention that the statute be ranked as jurisdictional. 198See id. at 209–11. The Court explained that “even prior to the creation of the circuit courts of appeals, [it] regarded statutory limitations on the timing of appeals as limitations on its own jurisdiction.” 199Id. at 210. It then cited a history of cases that explicitly treated those filing deadlines as jurisdictional. 200See id. Moreover, the Court read Congress’s explicit limitation of time for filing as an indication that it viewed the deadlines as jurisdictional. 201See id. at 213.

Second, the majority attempted to distinguish the type of rules addressed in Kontrick and Arbaugh, which it had held were nonjurisdictional. 202See id. at 210–13.Kontrick, the Court reasoned, dealt with the Bankruptcy Rules, which were court-developed guidelines to facilitate orderly business. 203See id. at 210–11. Fundamentally, these were not statutory impositions, thus not appropriately jurisdictional. Arbaugh received a single sentence: “[T]he statutory limitation was an employee-numerosity requirement, not a time limit.” 204Id. at 211. In an effort to retain the doctrinal backbone of the Court’s jurisprudence, Justice Thomas wrote that “‘subject-matter’ jurisdiction obviously extends to ‘classes of cases . . . falling within a court’s adjudicatory authority,’ but it is no less ‘jurisdictional’ when Congress prohibits federal courts from adjudicating an otherwise legitimate ‘class of cases’ after a certain period has elapsed from final judgment.” 205Id. at 213 (alteration in original) (citation omitted) (internal quotation marks omitted).

Unsurprisingly, Justice Souter’s dissent took issue with the majority’s effort to distinguish the statute at issue as jurisdictional. 206Id. at 216–17 (Souter, J., dissenting). Besides the doctrine at stake, the effect of the decision was unduly harsh, especially considering the fact that Bowles likely relied on an erroneous timeline provided by the district court. See id. at 206–07 (majority opinion). Particularly, Justice Souter was not persuaded that the rule’s statutory status amounted to congressional demarcation of jurisdiction. 207See id. at 217 (Souter, J., dissenting). Disagreeing with the majority’s reconciliation efforts, Justice Souter wrote, “A filing deadline is the paradigm of a claim-processing rule, not of a delineation of cases that federal courts may hear, and so it falls outside the class of limitations on subject-matter jurisdiction unless Congress says otherwise.” 208See id. at 218 (responding to the majority’s citation to Kontrick and reconciliation of the definition of jurisdiction with the holding).

Despite the confusion caused in Bowles, Reed Elsevier, Inc. v. Muchnick 209130 S. Ct. 1237 (2010). more or less cleared the air. The Reed Elsevier decision coalesced the twelve years of intervening cases between itself and Steel Co. into a succinct framework on jurisdiction 210See id. at 1243–45. and reconciled Bowles in a way that was at least indicative of the Court’s intended direction, if not intellectually satisfying. 211See id. at 1247–48. Justice Ginsburg provided further clarity in her concurrence. See id. at 1250–51 (Ginsburg, J., concurring in part and concurring in the judgment). Notably, Justice Ginsburg authored the unanimous opinion in Arbaugh, establishing the bright-line test that highlighted Congress’s role in granting jurisdiction. See Arbaugh v. Y & H Corp., 546 U.S. 500 (2006). Concurring in Reed Elseveir, she acknowledged the tension between Arbaugh and Bowles, going so far as to state that “Bowles moved in a different direction” than the carefully executed steps toward refinement leading up to and through Arbaugh. See Reed Elsevier, 130 S. Ct. at 1250 (Ginsburg, J., concurring in part and concurring in the judgment). She did, however, propose a simple way to reconcile the two cases: Bowles’s reliance on a history of jurisdictional treatment rested on the same line of cases that Congress had left undisturbed. See id. at 1251. The result is a sort of implicit endorsement (by congressional inaction) that the statute was jurisdictional. The case concerned an issue similar to Arbaughwhether a litigant’s failure to satisfy a statutory provision would deprive a federal court of subject-matter jurisdiction to hear the case. 212See Reed Elsevier, 130 S. Ct. at 1241 (majority opinion). While in Arbaugh the question was whether the defendant could be sued, the issue in Reed Elsevier was whether the plaintiff met the prerequisites to bring suit. See id. at 1245. The Copyright Act, § 411, states, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.” 213Id. (quoting § 411(a)). However, several plaintiffs in a class action settlement for copyright infringement had not registered their copyright. 214Id. at 1242. Nevertheless, the district court approved their settlement. 215Id. The defendants did not raise a jurisdictional challenge at any point during the district court proceedings. 216Id. On appeal, the court vacated the settlement, holding that the district court did not have jurisdiction because of the § 411 deficiency. 217See id. at 1243. The Supreme Court reversed. 218Id. at 1249.

The Court found that a copyright holder’s failure to satisfy the registration requirement of § 411 did not deprive the district court of jurisdiction. 219Id. at 1241. Justice Thomas, writing for the majority, conscripted the Arbaugh bright-line test to determine whether the statute was jurisdictional. 220See id. at 1244–45 (“If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” (quoting Arbaugh v. Y & H Corp., 546 U.S. 515, 515–16 (2006)) (internal quotation marks omitted)). However, what the Court originally deemed a bright-line test, Justice Thomas appeared to take in three separate steps. Expositing Arbaugh, he explained that the statute at issue there did “not ‘clearly stat[e]’ that the employee numerosity threshold on Title VII’s scope ‘count[s] as jurisdictional.’” 221Id. at 1244 (alterations in original) (quoting Arbaugh, 546 U.S. at 515–16). Justice Thomas immediately thereafter stated, “And nothing in our prior Title VII cases compelled the conclusion that even though the numerosity requirement lacks a clear jurisdictional label, it nonetheless imposed a jurisdictional limit.” Id. This allusion to the precedential evaluation leaves room for Bowles yet makes for an awkward and broad substep in the evaluation. Nor did the statute, in its text or structure, “demonstrate that Congress ‘rank[ed]’ that requirement as jurisdictional.” 222Id. (alteration in original) (citing Arbaugh, 546 U.S. at 513–16). Rather than stop at that all-or-nothing determination, he then looked to context to determine if Congress had implicitly endorsed a long line of the Court’s cases that held the statute to be jurisdictional. 223See id. However, that question as well was answered in the negative. 224See id. Consequently, the statute could not be said to speak to the jurisdiction of the courts and, inferentially, spoke to the merits of the case. 225See id. Applying that framework to § 414 of the Copyright Act, the Court found that none of those jurisdictional qualifications existed, making it nonjurisdictional. 226See id. at 1248.

Three months later, with jurisdiction settling into its own, the Court again addressed the distinction between merits and jurisdiction in Morrison v. National Australia Bank Ltd. 227130 S. Ct. 2869 (2010). The plaintiffs, Australians who had purchased shares in National Australia Bank, brought suit against it for violations under § 10(b) of the Securities and Exchange Act. 228Id. at 2876. However, the alleged securities fraud took place outside the United States. 229See id. The trial court dismissed the case for lack of jurisdiction under FRCP 12(b)(1) because it considered § 10(b) inapplicable to crimes committed outside the United States. 230See id. The circuit court affirmed on similar grounds. 231Id. The Supreme Court reversed, holding the territorial reach of the statute to be a question for the merits. 232See id. at 2877 (explaining that “to ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question”—it is not a question of whether the court has the power to hear the case).

Again, the Court considered the issue to be a question of whether the plaintiff’s allegations entitled him to relief, thus resolvable on a 12(b)(6) motion. 233See id. One phrase in particular stood out: “The District Court here had jurisdiction under 15 U.S.C. § 78aa to adjudicate the question whether § 10(b) applies to National’s conduct.” 234Id. (footnote omitted). Thus, the question of whether the cause of action was available to the plaintiffs should have been resolved on the merits, rather than before reaching them, because it did not impinge upon the “tribunal’s power to hear a case.” 235See id. (internal quotation marks omitted).

Finally, the Supreme Court appears to have landed on what it considers jurisdictional in Henderson ex rel. Henderson v. Shinseki. 236131 S. Ct. 1197 (2011). In Henderson, the plaintiff missed the statutory 120-day filing deadline 23738 U.S.C. § 7266(a) (2006). to appeal a decision of the Board of Veterans’ Appeals to the Veterans Court. 238Henderson, 131 S. Ct. at 1201. Veterans Court is an Article I tribunal that hears appeals from the Board of Veterans’ Appeals. See 38 U.S.C. §§ 7251, 7252(a) (2006). Its decisions are appealable to the United States Court of Appeals for the Federal Circuit. See § 7292(c). The Veterans Court relied on Bowles in holding that the statutory timeline for filing an appeal was jurisdictional and dismissed the case for a lack of jurisdiction. 239See Henderson, 131 S. Ct. at 1202. The Federal Circuit affirmed. 240Id. A unanimous Supreme Court reversed, holding that, although the filing deadline rule was “important,” it was not jurisdictional. 241See id. at 1200, 1206.

The opinion invoked the Arbaugh/Reed Elsevier analysis, looking for any “clear” indication that Congress ranked the rule as jurisdictional. 242See id. at 1203. However, because the context of the statute and the Court’s longstanding treatment of the rule are sufficiently informative, “Congress, of course, need not use magic words in order to speak clearly on this point.” 243See id. But, the Court found no clear words and no congressional intent evident in the structure of the statute to implicate jurisdiction. 244See id. at 1205–06. The rule, therefore, was not jurisdictional.

As demonstrated in Henderson, the Court has now arrived at a seemingly stable point in its articulation of jurisdiction. It has delineated what jurisdiction is, how to determine whether something functions as such, and what happens when it is lacking. Jurisdiction is a court’s legitimate authority to hear a case, grounded in constitutionally or statutorily granted power. 245See Reed Elsevier, Inc. v. Muchnik, 130 S. Ct. 1237, 1243 (2010). This definition stands in contrast to the rights or responsibilities of the partiescauses of action and the merits of a claim. 246See id. Courts, as a threshold issue, must address whether they have the power to adjudicate the case, meaning jurisdiction must be authenticated regardless of whether the parties raise it. 247See Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012). It is not subject to exception or waiver. 248See United States v. Cotton, 535 U.S. 625, 630 (2002).

Determining the jurisdictional quality of a provision depends on its origin. Jurisdictional limitations can spring from two foundationsArticle III of the Constitution or statutory provisions promulgated by Congress. Article III limitations are always jurisdictional. However, if the limitation is not of the Article III ilk, the Court employs a three-step test to determine if Congress “ranked” the statutory provision as jurisdictional. First, does the text of the statute speak plainly about jurisdiction? Second, if not, does the context of the statute indicate that Congress intended the statute to be jurisdictional? Third, even if the context does not, does a long line of cases from the Court treating the provision as jurisdictional show congressional acceptance of such a practice? If these are all answered in the negative, the statutory provision may be important, but not jurisdictional. Instead, these nonjurisdictional statutory limitations should be seen as going to the merits of the case.

III. Prudential Standing and the Zone of Interests Test: Distinct from Jurisdiction

While Article III standing is unquestionably jurisdictional because it is imposed by the Constitution, 249See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102–04 (1998). the Court has yet to explicitly address whether the second prong of the standing analysisprudential standingbears the same imprimatur. 250See Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 184 (D.C. Cir. 2012) (“[A]lthough the Supreme Court has not yet directly addressed whether prudential standing is jurisdictional, the Court has suggested that it is not.”), reh’g denied, 704 F.3d 1005 (D.C. Cir. 2013), cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2881 (2013). Even without the Court’s explicit pronouncement, some scholars and judges have assumed that prudential standing is nonjurisdictional. 251See infra note 278; cf. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 885 (1983) (discussing prudential standing as “subject to elimination by the Court or by Congress”). However, several circuits remain unconvinced and continue to apply the zone of interests test in a jurisdictional manner. 252See Grocery Manufacturers, 693 F.3d at 185; Wight v. BankAmerica Corp., 219 F.3d 79, 90 (2d Cir. 2000); Cmty. First Bank v. Nat’l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994); Animal Legal Def. Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994); Thompson v. Cnty. of Franklin, 15 F.3d 245, 248 (2d Cir. 1994).

The confusion is not entirely unwarranted. Several functions or features of the prudential standing analysis can leave even the attentive reader with the impression that courts wield prudential standing in a jurisdictional manner. For example, the discussion of prudential standing often falls in the section of an opinion that broadly addresses jurisdiction. 253See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). If that were not confusing enough, the evaluation of prudential standing usually is intertwined with or immediately follows the discussion of Article III standing, which is jurisdictional. 254See, e.g., id. at 472–76. Moreover, courts, including the Supreme Court, have dismissed cases for a lack of prudential standing in a manner that oddly resembles a jurisdictional defect. 255See, e.g., Air Courier Conference of Am. v. Postal Workers Union, 498 U.S. 517, 530 (1991). Amidst this confusion, some scholars have called for the dissolution of the constitutional standing requirement and an adoption of the prudential “abstention” category to encompass all standing considerations. See, e.g., Heather Elliott, The Functions of Standing, 61 Stan. L. Rev. 459, 464 (2008); cf. Sohn, supra note 21, at 728 (arguing that all constitutional standing doctrines be absorbed into the prudential category).

Notwithstanding these conflicting signals, prudential standing, although related to Article III standing, is not jurisdictional in nature. This section will establish that conclusion by first comparing the respective sources of prudential standing and jurisdiction, determining that they are complimentary, but distinct. In illustration of this distinction, it will then provide practical examples of prudential standing and the broader prudential body of law that display the nonjurisdictionality of the doctrine. Finally, it confronts potential difficulties with reading the zone of interests test as nonjurisdictional, concluding that the test, for doctrinal and practical reasons, best aligns with a nonjurisdictional reading.

A. Because Prudential Standing Is a Judicial Self-Imposition, It Does Not Fit in the New Framework of Jurisdiction

First and foremost, the sources of jurisdiction and prudential standing are distinct. This section will highlight that doctrinal distinction by examining the opposing language scattered throughout the cases that address each limitation. It will then explain the effect of that distinction, as observable in Bowles v. Russell.

Jurisdiction is the power or legitimate authority of the court originating from one of two sourcesArticle III of the Constitution or a statutory provision promulgated by Congress. 256See supra Part II. Prudential standing, on the other hand, is not based on constitutional or statutory grounds. From the outset, the Court distinguished prudential standing from the requirements of Article III. 257See supra notes 44–45 and accompanying text; see also supra notes 69–70 and accompanying text. Most subsequent opinions that have broached prudential standing have done so with similar language, clearly distinguishing the constitutional limitations imposed by Article III from the prudential reservation of action. 258See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“[S]ome of [standing’s] elements express merely prudential considerations that are part of judicial self-government . . . .”); Valley Forge, 454 U.S. at 475 (“[Article III standing] states a limitation on judicial power, not merely a factor to be balanced in the weighing of so-called ‘prudential’ considerations.”); Warth v. Seldin, 422 U.S. 490, 498 (1975) (“This inquiry [into standing] involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.”); see also CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011) (“Though all are termed ‘standing,’ the differences between statutory, constitutional, and prudential standing are important. Constitutional and prudential standing are about, respectively, the constitutional power of a federal court to resolve a dispute and the wisdom of so doing.” (quoting Graden v. Conexant Sys., Inc., 496 F.3d 291, 295 (3d Cir. 2007))). Moreover, with the exception of Clarke and Air Courier, the Court has not moored prudential standing of any sort to a statutory requirement.

Instead of constitutional or statutory justification, the Court has avowed that it engages prudential standing considerations for “its own governance” in a manner involving a “rule of self-restraint.” 259Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 154 (1970) (quoting Barrows v. Jackson, 346 U.S. 249, 255 (1953)) (internal quotation marks omitted). Neither constitutional nor statutory limitations can be properly described as judicial self-governancethey are by definition impositions upon the Court from outside its chambers. Thus, the Court’s effort to administer its docket in an orderly fashion may run concomitantly with constitutional and statutory limitations, but it rests in no other justification save that of prudence. While the debate on whether the Court has the ability to create or police its jurisdiction carries on in some circles, 260See, e.g., Eric J. Segall, Standing Between the Court and the Commentators: A Necessity Rationale for Public Actions, 54 U. Pitt. L. Rev. 351, 371 (1993) (discussing Professor Redish’s thesis that the refusal to hear a case on abstention doctrine grounds abrogates congressional authority in determining jurisdiction). the Court has indicated that it trusts Congress with the delineation of its statutory jurisdiction and itself for parsing constitutional jurisdictional bounds. 261See Bowles v. Russell, 551 U.S. 205, 210–13 (2007); Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006). Because prudential standing is neither constitutional nor statutory, it cannot be labeled jurisdictional.

An example from the Supreme Court’s reasoning in this regard is instructive. Although Bowles did not specifically address prudential standing, it did illustrate the distinction between Court-developed doctrine and limits imposed upon the Court from outside its chambers. 262See Bowles, 551 U.S. at 210–13. The Bowles Court held that the statutory timelines for filing appeals were jurisdictional. 263See id. at 206–07. The Court, however, contrasted those jurisdictional, statutory timelines with the nonjurisdictional Bankruptcy Rules addressed in Kontrick. 264See id. at 210–11. Both sets of rules placed procedural time limits on filing in the appropriate court. The difference, according to the Court, lay in the sources of the limitations. Notably, “[b]ecause [o]nly Congress may determine a lower federal court’s subject-matter jurisdiction, it was improper for courts to use the term ‘jurisdictional’ to describe emphatic time prescriptions in rules of court [like those at issue in Kontrick].” 265Id. at 211 (second alteration in original) (citation omitted) (quoting Kontrick v. Ryan, 540 U.S. 443, 452, 454 (2004)) (internal quotation marks omitted). Thus, in Bowles, the Court explicitly labeled the Bankruptcy Rules as nonjurisdictional because they were created by the Court. That court creation stands in opposition to not only the immutable requirements of Article III, but also the clear intent of Congress to put forth a jurisdictional statute.

Moreover, in declining to ascribe jurisdictional import to the Bankruptcy Rules, the Supreme Court signaled that it could not limit the jurisdiction of the courts. This prohibition was galvanized with the words, “Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider.” 266Id. at 212 (emphasis added); see also supra note 265 and accompanying text. Although the Court was specifically distinguishing the Bankruptcy Rules (Court made for orderly administration) from appellate filing deadlines promulgated by Congress, it ultimately taught that jurisdiction does not appropriately refer to the court’s self-imposition of limitation.

It should be noted that the source of the limitation for each of the prudential standing doctrines has not remained static. For instance, the prohibition against bringing generalized grievances has vacillated between a constitutional and prudential home. 267See Craig A. Stern, Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing to Sue?, 12 Lewis & Clark L. Rev. 1169, 1204–14 (2008) (recapping the Court’s inconsistent view of the proper classification for the generalized grievances prohibition). However, this inconsistency does not contradict the idea that prudential standing emanates from the Court itself. In fact, one scholar acknowledges that the Court shifts the doctrine to its prudential home when it desires more flexibility in application. 268See id. at 1217. If anything, this pattern emphasizes the nonjurisdictionality of prudential standing.

B. Practical Illustrations Demonstrate that Prudential Standing Is Not Jurisdictional

While the Court’s reasoning in Bowles and Kontrick illustrates the distinction between Court-made doctrines and statutory or constitutional impositions, it does not specifically extend the distinction to prudential standing. Although that extension is no stretch, practical examples of the underlying rationale at work in the Court’s treatment of prudential doctrines are helpful. This section will first examine examples of exceptions the Court has made to prudential standing requirements. Second, it will study the flexible order in which courts engage prudential standing as compared to the required order for jurisdiction. Third, it will draw from the Court’s recent treatment of other prudential doctrines besides prudential standing.

1. Prudential Standing, Unlike Jurisdiction, Is Subject to Exceptions

In the presence of a jurisdictional defect, a court must dismiss the case without giving the parties an opportunity for waiver. 269See United States v. Cotton, 535 U.S. 625, 630 (2002). Even the Supreme Court does not have the power to make exceptions to cure a lack of subject-matter jurisdiction, even for compelling equitable considerations. 270See Bowles, 551 U.S. at 214 (explaining that the “Court has no authority to create equitable exceptions to jurisdictional requirements”). Prudential standing does not function with the same inflexibility and compulsion.

The Supreme Court has waived at least one of the three prudential standing requirements, the prohibition against third-party standing, in the presence of “competing considerations.” 271See, e.g., Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984) (“[T]here are situations where competing considerations outweigh any prudential rationale against third-party standing, and . . . this Court has relaxed the prudential-standing limitation when such concerns are present.”). The Court in Warth v. Seldin stated, “In some circumstances, countervailing considerations may outweigh the concerns underlying the usual reluctance to exert judicial power when the plaintiff’s claim to relief rests on the legal rights of third parties.” 272Warth v. Seldin, 422 U.S. 490, 500–01 (1975). Moreover, the idea that “usual reluctance to exert judicial power” exists in prudential standing circumstances presupposes that the power exists in those circumstances. See id. Reluctance necessitates discretion, which is wholly absent in the presence of jurisdictional limitations. The Court emphasized in Craig v. Boren that prudential standing serves specific ends. 273See 429 U.S. 190, 193 (1976). When those ends were not furthered by the application of the doctrine, the Court did not feel obliged to observe its bounds. 274See id. at 193 (“These prudential objectives, thought to be enhanced by restrictions on third-party standing, cannot be furthered here . . . .”). Moreover, it stated that adhering inflexibly to the prudential requirements in that instance would “foster repetitive and time-consuming litigation under the guise of caution and prudence.” 275See id. at 193–94.

The language surrounding this prohibition is enough to deduce that the rule is a generality and not an immovable bulwark. 276See, e.g., Hodel v. Irving, 481 U.S. 704, 711 (1987) (“[O]ne of these prudential principles is that the plaintiff generally must assert his own legal rights and interests. That general principle, however, is subject to exceptions.” (citation omitted)). The Court has affirmed its understanding of this possibility as recently as 2004. 277See Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004) (“We have not treated this rule [against third-party standing] as absolute . . . .”). Building upon that construction, the Court’s recent articulations on the doctrine against third-party standing acknowledge that it is not jurisdictional. See infra note 299. While this observation might not fully frame the other two prudential standing doctrines as subject to exception, 278See 20 Charles Alan Wright & Mary Kay Kane, Federal Practice & Procedure § 14 (2d ed. 2011) (“[T]he Court itself is free to disregard one of the prudential rules when it thinks it appropriate to do so. The jus tertii rule [or the prohibition on third-party standing], in particular, often has been disregarded by the Court in cases that seemed to it proper.”). it does unequivocally teach that the prudential standing umbrella as a whole is not jurisdictional.

2. Prudential Standing May Be Addressed in a Different Order than Jurisdiction

The Supreme Court has not minced words in establishing that courts may not consider merits questions prior to ensuring proper jurisdiction exists. For instance, the Steel Co. decision clearly established that a court is not free to bypass a jurisdictional question to address the merits of a case when it condemned the use of “hypothetical jurisdiction.” 279See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998); see also supra note 144. Courts, including the Supreme Court, have not treated prudential standing with the same zealous supervision.

While the Steel Co. discussion was set in the context of the Article III question, Justice Scalia did not cabin the prohibition against hypothetical jurisdiction to issues of constitutional jurisdiction. 280See Steel Co., 523 U.S. at 101 (“The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers . . . .”). He described the assumption of “[h]ypothetical jurisdiction” as creating a “hypothetical judgment,” which is the same as issuing an advisory opinion, a practice long forbidden. 281Id. (citing Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792)). The Court’s subsequent opinions have broadly applied the description of a court’s power as jurisdiction to not only constitutional limits, but also those imposed by Congress. 282See supra Part II.B. Therefore, “[f]or 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.” 283Steel Co., 523 U.S. at 101–02.

Accordingly, if prudential standing were jurisdictional, a court could not bypass it to rule on the merits in any given case. It would be an essential ingredient of the recipe for legitimate authority. The Supreme Court, however, has not treated it as such. Even while distinguishing cases within Steel Co., the Court relied on an implicit understanding that prudential standing was not jurisdictional. 284See 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.15 (3d ed. 2008) (“[T]he standing question that was put aside involved statutory standing under the ‘zone of interests’ test, a matter that is not jurisdictional—there is no illogic in the rule that a merits question can be given priority over a statutory standing question, but not over a constitutional standing question.”). The courts of appeals, at least those that have addressed it recently, have decided the prudential-standing-as-jurisdictional question in a similar manner. 285See Bd. of Miss. Levee Comm’rs v. EPA, 674 F.3d 409, 417–18 (5th Cir. 2012); Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1050, 1065 n.17 (9th Cir. 2008); Gilda Indus., Inc. v. United States, 446 F.3d 1271, 1280 (Fed. Cir. 2006). Even the D.C. Circuit seems to have previously embraced this rationale and foregone the determination of prudential standing to decide a case on the easier merits question. 286See Fraternal Order of Police v. United States, 173 F.3d 898, 905 (D.C. Cir. 1999) (citing Steel Co., 523 U.S. 83 (1998)) (“It is, however, permissible to reject a claim on the merits without having explicitly resolved the prudential standing issue. For one reason, as the Court has explained, overlap between the merits and prudential standing is sometimes so great as to make any distinction artificial.”). This ordering of prudential standing compared to that of jurisdiction displays the difference between the two.

3. Other Prudential Doctrines (Besides Standing) Are Not Jurisdictional

Given the infrequency and terseness with which the Court has explained prudential standing, especially the zone of interests test, a broader discussion of prudential, or judge-made, doctrine is helpful. The Court’s recent treatment of ripeness, 287Ripeness determines whether a controversy is at the appropriate stage of development for judicial review. See Wright, Miller & Cooper, supra note 284, § 3532.1 (“The central perception is that courts should not render decisions absent a genuine need to resolve a real dispute.”). another justiciability doctrine, illuminates the relationship between the prudential doctrines, jurisdiction, and waiver. 288See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1767 n.2 (2010); see also Stop the Beach Renourishment, Inc. v. Fla. Dept. of Envtl. Prot., 130 S. Ct. 2592, 2610 (2010). Ripeness, like standing, encompasses both constitutional and prudential considerations. The Court has recognized that ripeness stems from both “Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” 289See, e.g., Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993). This language mirrors the language of the prudential standing cases, which describe the dual sources of standing as Article III and prudential concerns. See supra Part III.A, specifically note 265 and accompanying text. In Stolt-Nielsen S.A. v. AnimalFeeds International Corp., the majority took the opportunity to clarify the distinction between those sources and how that distinction affects jurisdiction and waiver. 290See 130 S. Ct. 1758, 1767 n.2 (2010). The Court approached the ripeness question in these two separate stepsconstitutional and prudential.

The constitutional analysis was relatively straightforward. The Court took for granted that the constitutional components of ripeness were jurisdictional. 291See id. However, the petitioner satisfied the constitutional component, giving the Court jurisdiction. 292See id.

The analysis became more fascinating, however, when the Court raised two mirror issues relevant to the prudential standing discussion. First, the majority rejected the argument that a failure to satisfy prudential ripeness should preclude judicial review. 293See id. Writing for the majority, Justice Alito stated, “[W]e reject that argument as waived, and we see no reason to disregard the waiver.” 294See id. (citation omitted) (citing Sprietsma v. Mercury Marine, 537 U.S. 51, 56 n.4 (2002)). Second, the majority declined to raise the prudential objection on its own motion in the specific case. 295See id. However, it specifically left open the possibility that a federal court could raise a motion concerning prudential ripeness sua sponte in a similar case. 296See id. (“We express no view as to whether, in a similar case, a federal court may consider a question of prudential ripeness on its own motion.”) (citing Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (“[E]ven in a case raising only prudential concerns, the question of ripeness may be considered on a court’s own motion.”)). This absence of obligation reinforces the argument that the Court does not view the prudential doctrines as jurisdictional.

The Court decided Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection 297130 S. Ct. 2592 (2010). just two months after Stolt-Nielsen S.A. Again, the Court reiterated that parties could waive ripeness arguments not implicating constitutional concerns by a failure to raise them. 298See id. at 2610. It took the analysis one step further, however, in explicitly stating that ripeness (at least of the prudential strain) is not jurisdictional. 299See id. Moreover, the Court addressed prudential ripeness in the same few sentences as the doctrine against third-party standinga prudential standing doctrine. 300See id. With little fanfare, the Court lumped the two doctrines together, writing, “Neither objection [of ripeness or third-party standing] appeared in the briefs in opposition to the petition for writ of certiorari, and since neither is jurisdictional, we deem both waived.” 301Id. (emphasis added) (footnote omitted). This nonchalance toward the nonjurisdictionality of the prohibition against third-party standing indicates that the Court assumes that prudential concerns, including those of standing, are nonjurisdictional.

These two cases display the practical outworking of the distinct sources of limitation between jurisdictional and prudential doctrine. 302See supra Part III.A. More broadly, the preceding illustrations teach that the Court does not view the prudential doctrines, standing or otherwise, as limitations on its power to hear a case. With a sense of symmetry, the Court analyzes external impositions from the Constitution and Congress 303Congressional mandates could be said to receive slightly lower deference than constitutional ones, but only to the extent that Congress must explicitly state that the statute is jurisdictional according to the Arbaugh/Reed Elsevier analysis. See supra notes 221–25 and accompanying text. much more mechanically than it does self-imposed limitations.

C. Overcoming Potential Hurdles for Accepting the Zone of Interests Test as Nonjurisdictional

Given the conclusions that the zone of interests test is a prudential doctrine 304See supra Part I. and that prudential doctrines are nonjurisdictional, 305See supra Part III.A–B. it follows that the zone of interests test cannot be a jurisdictional limitation. While doctrinal support for this conclusion is compelling, some may see the preservation of judicial discretion instead of a mandatory blanket test as inefficient. 306Cf. Jonathan Remy Nash, On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction, 65 Vand. L. Rev. 509, 529 (2012) (arguing that rules, rather than standards, are a more efficient means to outline jurisdictional boundaries). This section will briefly explore one avenue through which the Court could advance that agenda. In response, it provides both doctrinal and practical reasons why that approach is inappropriate.

One loophole that the Court might look to exploit is the third step of the Arbaugh/Reed Elsevier test. That third step allows statutory rules that the Court has applied as jurisdictional, even without explicit or contextual congressional admonition to do so, to be jurisdictional if the Court determines that Congress has implicitly endorsed that application by leaving those cases unturned. 307See supra notes 221–22 and accompanying text. This argument could be supported by the Bennett Court’s statement that “Congress legislates against the background of our prudential standing doctrine.” 308Bennett v. Spear, 520 U.S. 154, 163 (1997); see supra note 103 and accompanying text.

However, the cards are stacked against that application in at least three ways. First, Bennett dealt specifically with a statute that the Court had treated as jurisdictional. 309See Bennett, 520 U.S. at 164. Thus, the Court would have to clearly recast the zone of interests test as a statutory imposition to apply this exception. 310See supra Part I (arguing that the zone of interests is not a statutory imposition). Second, even if the Court recast the zone of interests test, the resulting statutory imposition would merely require that courts search for a cause of action. 311See supra note 15. However, the Kontrick and Arbaugh decisions counsel that the cause of action goes to the merits of a case and therefore cannot be jurisdictional. 312See supra note 15; see also supra notes 169, 187 and accompanying text. Finally, the Bennett exception requires the Court to have treated the statute as jurisdictional in a long line of its cases. 313See Bennett, 520 U.S. at 163. The Court’s treatment of the zone of interests test might have appeared mandatory at points, but it has never treated the test as jurisdictional. 314See supra Part I. The Court had explicitly and repeatedly labeled the timelines at issue in Bennett as jurisdictional. See supra Part I.

Beyond concerns of doctrinal fidelity, the practical efficiency gain of labeling the zone of interests test jurisdictional would be, at best, overstated. In fact, retaining the discretionary nature of the zone of interests test is seemingly more efficient. Were the zone of interests test jurisdictional, courts would be required to raise it sua sponte if the parties did not, obligating courts to engage in statutory interpretation to determine jurisdiction in every APA case. Besides putting the cart before the horse, this practice at times would run dangerously close to sending courts into what Justice Scalia cautioned against in Steel Co.requisite and extensive statutory parsing to determine jurisdiction. 315See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 85, 92–93 (1998); see also supra notes 162–63 and accompanying text.

Instead, treating the zone of interests test as prudential alleviates this compulsion, saving precious judicial resources when the issue does not appear relevant. Litigants, then, bear the initial burden of raising the zone of interests test when the plaintiff may not be arguably within it. 316In Grocery Manufacturers, EPA did not raise the zone of interests test. See supra note 14. Had the issue been one worth briefing, the EPA, which is well versed in administrative law standing requirements, would have certainly raised it. However, the courts retain ultimate discretion to raise the test if the litigants fail to do so. 317Cf. supra note 296 and accompanying text (explaining courts’ ability, but not compulsion, to raise prudential concerns sua sponte). This framework leaves little room for the zone of interests test to be ignored when it matters, yet streamlines the analysis for both the courts and litigants. In the end, treating the zone of interests test as prudential, not jurisdictional, makes good sense on doctrinal and practical grounds.

Conclusion

This Comment has shown that prudential standing in general, and specifically the zone of interests test, is not a jurisdictional limitation on the Court. Jurisdictional limitations stem from either constitutional or statutory impositions. Prudential standing and the zone of interests test originate from neither, but instead are based on the judiciary’s self-created and -imposed restraint. These matters of judicial self-governance should not be employed to narrow the availability of jurisdiction. Rather, judges should use them as a guide, but feel free to disregard their general wisdom in order to avoid the pernicious consequences that the Court cautioned against in its development of jurisdictionwaste of judicial resources, prejudice to litigants, and months of wasted work. 318See Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011).

To this point, clarity on courts’ appropriate use of prudential standing to dismiss cases has been encumbered by the absence of an adequately clear doctrine of jurisdiction. However, the Supreme Court’s recent illumination of jurisdiction leaves no room for the lower courts to dismiss zone of interests cases on jurisdictional grounds, claiming they lack the power or ability to adjudicate them. Unfortunately, in June 2013, the Court declined the opportunity to clarify the zone of interests test, perpetuating the contentious circuit split, when it denied certiorari to Grocery Manufacturers. Lower courts need guidance and the Court should provide it, clarifying the zone of interests test in the same manner as it has jurisdiction, at a minimum holding that the test is not jurisdictional.

Footnotes

1Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1050, 1065 n.17 (9th Cir. 2008) (internal quotation marks omitted).

2Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 179–80 (D.C. Cir. 2012), reh’g denied, 704 F.3d 1005 (D.C. Cir. 2013), cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2881 (2013).

3Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

4Allen v. Wright, 468 U.S. 737, 751 (1984). Generally, the three prudential standing doctrines are (1) the prohibition against litigating generalized grievances, (2) the prohibition against litigating the rights of a third party, and (3) the requirement that the plaintiff’s interest falls within the zone of interests that the statute was designed to protect. Id. While all three will be addressed, this Comment focuses on the zone of interests test.

5Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998).

6See Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012).

7See Fed. R. Civ. P. 12(h)(3); see also Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011).

8See Henderson, 131 S. Ct. at 1202 (“Branding a rule as going to a court’s subject-matter jurisdiction alters the normal operation of our adversarial system.”); see also Gonzalez, 132 S. Ct. at 648.

9693 F.3d 169 (D.C. Cir. 2012), reh’g denied, 704 F.3d 1005 (D.C. Cir. 2013), cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2881 (2013).

10Id. at 172.

11Id. at 179–80, 182. Only one group needed to satisfy the standing requirements. Id. at 175.

12See id. at 182 (Kavanaugh, J., dissenting).

13Id. at 180 (majority opinion).

14Id. at 182 (Kavanaugh, J., dissenting). The parties appealed directly from the agency decision but did not raise prudential standing in the briefs or at oral argument. See id. at 171, 185. The intervenor raised the challenge. Id. at 185 n.5. Judge Kavanaugh disagreed with the majority, which held that the court was required to raise prudential standing sua sponte. See id. at 185. In any event, Judge Kavanaugh would have found that the parties had prudential standing. Id. at 186.

15See id. at 182–83. Notably, Judge Kavanaugh described the zone of interests test as a question of whether Administrative Procedure Act (APA) § 702 provided a cause of action to the aggrieved parties. See id. at 183 & n.3. That cause of action does not speak to a court’s power to hear the case but rather the parties’ right of review. Id. at 183 n.3. For support, Judge Kavanaugh appealed to the circuit majority, which has adopted this view. See id. at 184–85. That argument hinges upon the Supreme Court’s holding that a cause of action goes to the merits of a claim and not the jurisdiction of the court. See infra notes 187–93 and accompanying text. However, this Comment approaches the zone of interests test a step before Judge Kavanaugh’s dissent, essentially arguing that the Supreme Court’s articulation of the zone of interests test precludes even reading it as a statutory cause of action.

16See Grocery Mfrs. Ass’n, 693 F.3d at 184–85. The Fifth, Seventh, Ninth, Tenth, Eleventh, and Federal Circuits have all held that prudential standing is not jurisdictional and is subject to waiver. Id. The Second, Sixth, and D.C. Circuits have held to the contrary. See Wight v. BankAmerica Corp., 219 F.3d 79, 90 (2d Cir. 2000); Cmty. First Bank v. Nat’l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994); Animal Legal Def. Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994); Thompson v. Cnty. of Franklin, 15 F.3d 245, 248 (2d Cir. 1994).

17Grocery Mfrs. Ass’n v. EPA, 704 F.3d 1005, 1005, 1007 (D.C. Cir. 2013) (Kavanaugh, J., dissenting) (denying petition for rehearing en banc) (“The panel’s standing holding is outcome-determinative because EPA will lose if we reach the merits. The E15 waiver plainly violates the statutory text.”). While not failsafe, Judge Kavanaugh’s conclusion is bolstered by the fact that Judge Tatel, who concurred in the panel judgment, indicated that he personally agreed that prudential standing should not be jurisdictional. Grocery Mfrs. Ass’n, 693 F.3d at 180 (Tatel, J., concurring). He would have reached the merits if the D.C. Circuit precedent did not clearly state that a lack of prudential standing was jurisdictional. See id.

18See, e.g., Bennett v. Spear, 520 U.S. 154, 162 (1997). It should be noted from the outset that these terms“prudential standing” and “zone of interests”are not interchangeable. The confusion in Grocery Manufacturers stems, in part, from conflation of the terms. The actual holding of the case was not that the zone of interests test is jurisdictional, but that prudential standing is jurisdictional. See Grocery Mfrs. Ass’n, 693 F.3d at 179–80 (majority opinion). While that conflation is not uncommon, it is immensely harmful to the discussion. The zone of interests may be seen as prudential standing, but the reverse is not trueprudential standing encompasses more than the zone of interests test. This conflation is the equivalent of labeling all whiskey “bourbon” or all fruit “oranges.” The practical importance can be seen in the Supreme Court’s holding that other doctrines of prudential standing are not jurisdictional. See infra Part III, nn.300–01 and accompanying text. In this sense, the panel’s decision is flatly wrong. Accordingly, this Comment will use the labels with more precision.

19See infra Part III.A.

20See infra Part I.B.

21See, e.g., Radha A. Pathak, Statutory Standing and the Tyranny of Labels, 62 Okla. L. Rev. 89, 102 (2009) (“[T]he actual application of the zone of interests test, in contrast to the way it is often described, supports the view that it should be understood as nothing more than an interpretation of the APA.” (footnote omitted)). But see Joshua L. Sohn, The Case for Prudential Standing, 39 U. Mem. L. Rev. 727, 728 (2009) (arguing that constitutional standing provisions should be absorbed into the prudential analysis).

22Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)).

23See, e.g., Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396 (1987) (“The ‘zone of interests’ formula in Data Processing has not proved self-explanatory . . . .”).

24See infra Part I.

2533 Charles Alan Wright & Charles H. Koch, Federal Practice and Procedure § 8413 (2006) (“Prudential considerations are limitations on the courts’ power that the judiciary itself has devised . . . .”). Wright and Koch describe the application of prudential considerations as “discretionary” and grounded in a desire to limit judicial intervention to disputes where a decision would be meaningful. See id. (“Simply because the Constitution gives courts power does not mean that it is either wise or necessary for them to exercise that power.”).

26See Jonathan R. Siegel, Zone of Interests, 92 Geo. L.J. 317, 341 (2004); see also Pathak, supra note 21 at 102.

27See infra Part I.B.

28For an in-depth treatment of the less prominent cases not addressed herein, as well as the lower court reactions, see Siegel, supra note 26, at 319–41. See generally Sanford A. Church, Note, A Defense of the “Zone of Interests” Standing Test, 1983 Duke L.J. 447 (discussing the early zone of interests cases).

29397 U.S. 150 (1970).

30Id. at 153.

31Id. at 151.

32Id. at 155 (quoting 12 U.S.C. § 1864 (1964)).

33Id. at 151.

34Id.

35Id. at 158.

36Id. at 153. The legal interest test can be described as withholding standing “‘unless the right invaded is a legal right,one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.’” Id. (quoting Tenn. Elec. Power Co. v. TVA, 306 U.S. 118, 137–38 (1939)). The Court held that the legal interest test went to the merits of a case rather than a litigant’s standing. Id. at 153. Interestingly, the Court proceeded to find the plaintiff’s interest within the zone of interest through the statutory/congressional intent framework. Id. It then stated: “We do not put the issue in those words, for they implicate the merits. We do think, however, that § 4 arguably brings a competitor within the zone of interests protected by it.” Id. at 156.

37Id. at 153.

38Id. at 152. This is the foundation of the modern Article III standing analysis, which requires injury in fact, causation, and redressability. See Siegel, supra note 26, at 320.

39Data Processing, 397 U.S. at 152.

40Id. at 153. Ensuing confusion over this bifurcation is hardly surprising given the fact that the Court seemed confused itself when explaining standing. It observed earlier in the same opinion, “Generalizations about standing to sue are largely worthless . . . . One generalization is, however, necessary and that is that the question of standing in the federal courts is to be considered in the framework of Article III which restricts judicial power to ‘cases’ and ‘controversies.’” Id. at 151. Yet, it folded concerns “apart from the ‘case’ or ‘controversy’ test” directly into the standing evaluation. See id. at 153. Given the conflation, it seems even this generalization was “largely worthless.”

41Id.

42Id. at 153–54 (quoting 5 U.S.C. § 702 (Supp. IV 1964)).

43Id. at 156.

44See id. at 154.

45Id. (quoting Barrows v. Jackson, 346 U.S. 249, 255 (1953)).

46Barrows, 346 U.S. at 255. It is worth noting that the Barrows language clearly distinguished jurisdictional issues from those of “judicial self-restraint.” Id. (“Apart from the jurisdictional requirement, this Court has developed a complementary rule of self-restraint for its own governance . . . .” (emphasis added)). The Data Processing opinion muddled this clarity.

47See Data Processing, 397 U.S. at 154 (quoting Barrows, 346 U.S. at 255).

48See id. With regard to standing, the term “prudential” has a less than clear history. Judge Fletcher attributed its ascent to common usage to Alexander Bickel’s “passive virtues.” See William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 252 (1988) (citing Alexander M. Bickel, The Least Dangerous Branch 111 (2d ed. 1986)). Originally, Bickel used the term to describe the Supreme Court’s discretion in crafting its docket. Id. It is now far more broadly applied to all courts’ discretion. Id. In any event, the idea of judicial “self-restraint” dates back for some time. See, e.g., Barrows, 346 U.S. at 255. But, the Court did not affix the “prudential” label to any of these doctrines of self-restraint until the mid-1970s. See Warth v. Seldin, 422 U.S. 490, 498 (1975); United States v. Richardson, 418 U.S. 166, 181 (1974) (Powell, J., concurring).

49See Data Processing, 397 U.S. at 154.

50See id. at 167–68 (Brennan, J., concurring in the result and dissenting).

51Id. at 168 (citing Flast v. Cohen, 392 U.S. 83 (1968)).

52Id. at 168.

53Id. at 169.

54Id. (emphasis removed).

55See id. at 170.

56See Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 100 n.6 (1979); Bos. Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 321 n.3 (1977); Singleton v. Wulff, 428 U.S. 106, 111 (1976); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 39 n.19 (1976); United States v. Richardson, 418 U.S. 166, 176 n.9 (1974); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 n.16 (1974); Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers, 414 U.S. 453, 469 (1974); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686 (1973); Sierra Club v. Morton, 405 U.S. 727, 733 (1972); Inv. Co. Inst. v. Camp, 401 U.S. 617, 641 (1971) (Harlan, J., dissenting); Arnold Tours, Inc. v. Camp, 400 U.S. 45, 46 (1970); Barlow v. Collins, 397 U.S. 159, 159 (1970).

57See Siegel, supra note 26, at 320–24 (discussing subsequent cases and their failure to clarify the test).

58See, e.g., Bos. Stock Exch., 429 U.S. at 320–21 n.3 (applying the zone of interests to the Commerce Clause). The application of the zone of interests test to the Commerce Clause was just the first of many subsequent applications to cases not involving the APA. This facet of the zone of interests test has sparked its own body of literature and, while intriguing, is too broad a discussion to include in this Comment.

59See, e.g., Schlesinger, 418 U.S. at 235–36, 238 (Brennan, J., dissenting) (“The risk of ambiguity and injustice can be minimized by cleanly severing, so far as possible, the inquiries into reviewability and the merits from the determination of standing.” (internal quotation marks omitted) (citing Barlow, 397 U.S. at 176)).

60See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474–75 (1982).

61See Air Courier Conference of Am. v. Postal Workers Union, 498 U.S. 517, 524 (1991); Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987).

62While not adopted by the Court, Justice Powell had previously written that the zone of interests should “undoubtedly” be treated as a prudential limitation. See United States v. Richardson, 418 U.S. 166, 196 n.18 (1974) (Powell, J., concurring).

63454 U.S. at 475.

64Instead, the Court found the plaintiff lacked standing under Article III, obviating the need to address any prudential standing deficiency. See id. at 485–86 (“[The plaintiffs] fail to identify any personal injury suffered by them . . . other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III . . . .”).

65Id. at 471. Notably, this approach differed from the Court’s previous generalization that standing should be analyzed in the Article III framework alone. See supra note 40. This language signaled the Court’s full embrace of the bifurcated standing analysis.

66Valley Forge, 454 U.S. at 474 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).

67See id. at 474–75 (quoting Warth, 422 U.S. at 499–500 (1975)) (internal quotation marks omitted).

68See id. at 475 (quoting Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)) (internal quotation marks omitted).

69See id. (“Merely to articulate these principles is to demonstrate their close relationship . . . . But neither the counsels of prudence nor the policies implicit in the ‘case or controversy’ requirement should be mistaken for the rigorous Art. III requirements themselves.”).

70Id.

71“Zone of interests cases” should be taken to mean the test was not merely mentioned offhand, but applied by the Court in some way. See Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396–400 (1987); Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 231 n.4 (1986); Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345–46 (1984). Allen v. Wright mentioned the test, but merely in a way echoing the prudential classification from Valley Forge. See Allen v. Wright, 468 U.S. 737, 751 (1984).

72See Siegel, supra note 26, at 322–24.

73See id. at 324.

74479 U.S. 388.

75See id. at 399–400.

76Id.

77Id. at 399.

78See id. at 394–98.

79See id. at 395.

80See id.

81Id. at 400 n.16 (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982)).

82See Siegel, supra note 26, at 327.

83This distinction between external statutory imposition and prudential self-imposition will be particularly relevant in discussions infra Part III.

84498 U.S. 517 (1991).

85See id. at 519–20.

86See id. at 521.

87Id. at 530. Only once prior to this case had the Court arguably declined to find a plaintiff’s interest within the zone of interests. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984). But even in Block, the Court did not explicitly apply the zone of interests test. Rather, it held that “[t]he structure of this Act implies that Congress intended to preclude [the plaintiff’s] challenges.” Id. at 352.

88Air Courier, 498 U.S. at 530.

89See id. at 524. The Postal Service, along with the ACCA, was the petitioner in this case. See id. at 521. It filed a motion for summary judgment against the Union, which was granted at the trial level. See id. The appellate court reversed, determining the Union satisfied the zone of interests test. Id.

90See id. at 524–25 (“We must inquire, then, as to Congress’ intent in enacting the [relevant statutes] in order to determine whether postal workers were meant to be within the zone of interests protected by those statutes.”).

91See id. at 530.

92See id. at 530–31.

93See id.

94Even at this point, however, the Court did not refer to the requirement as jurisdictional. See id.

95See id. at 529–31.

96Even so, the Court never described the zone of interests test as an imposition from the APA. Rather, it felt the gloss on the statute necessary to effectuate what it perceived was congressional intent to limit the growing class of litigants. See Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 395 (1987).

97520 U.S. 154 (1997).

98Id. at 156.

9916 U.S.C. § 1540(g) (1994).

100See Bennett, 520 U.S. at 161.

10116 U.S.C. § 1540(g)(1).

102See Bennett, 520 U.S. at 164–66.

103Id. at 163. The possible implications of this paragraph will be discussed subsequently. See infra Part III.C.

104See Bennett, 520 U.S. at 163–64.

105See id. at 162–63.

106See id. at 162.

107See id. at 162–63. This quoted language was in specific reference to the zone of interests test’s applicability across all statutory and constitutional provisions, as opposed to just the APA. See id.

108Id. at 160–61.

109Id. at 161.

110See id. at 166. While the avoidance may have been either intentional or arbitrary, perhaps the fact that jurisdiction was not quite in focus yet had something to do with the aversion. The Court did not take up the jurisdictional fight until the following year. See infra note 143 and accompanying text.

111See, e.g., FEC v. Akins, 524 U.S. 11, 20 (1998) (“[P]rudential standing is satisfied when the injury asserted by a plaintiff arguably falls within the zone of interests . . . .” (internal quotation marks omitted)).

112542 U.S. 1 (2004).

113See id. at 11–12.

114See id. (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)) (internal quotation marks omitted).

115Id. at 12 (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). The Court ultimately dismissed the case under its long-standing practice of refusing to hear matters hinging upon family law disputes. See id. at 17–18. However, the majority took the opportunity to fold this practice into the prudential standing body of law, a decision that drew strong criticism from Chief Justice Rehnquist and Justices O’Connor and Thomas. See id. at 18–19 (Rehnquist, C.J., concurring in the judgment).

116132 S. Ct. 2199 (2012).

117See id. at 2203.

118Id.

119See id. at 2203. Patchak alleged no personal stake in the property to be acquired, but rather destruction of his lifestyle through “increased traffic, increased crime, decreased property values, an irreversible change in the rural character of the area, and other aesthetic, socioeconomic, and environmental problems.” See id. at 2203–04 (internal quotation marks omitted).

120Id. at 2210.

121See id. at 2210–11.

122See id. at 2210.

123See id.

124See id.

125See supra Part I.

126See supra note 110.

127See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006) (acknowledging that even the Supreme Court had misused the term).

128See Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); Arbaugh, 546 U.S. at 510.

129See Arbaugh, 546 U.S. at 511 (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998)). The Court applied this label to “unrefined dispositions” that failed to consider “whether the dismissal should be for lack of subject matter jurisdiction or for failure to state a claim.” See id. at 511 (quoting Da Silva v. Kinsho Int’l Corp., 229 F.3d 358, 361 (2d Cir. 2000)) (internal quotation mark omitted). Moreover, the Court emphasized that this type of ruling does not hold precedential effect upon its jurisprudence. See id. (citing Steel Co., 523 U.S. at 91); see also Henderson, 131 S. Ct. at 1202 (explaining the Court’s effort to “bring some discipline to the use of [jurisdiction]”); see generally Howard M. Wasserman, The Demise of “Drive-by Jurisdictional Rulings”, 105 Nw. U. L. Rev. Colloquy 184 (2011), http://www.law.northwestern. edu/lawreview/colloquy/2011/3/LRColl2011n3Wasserman.pdf (examining the recent focus of the Court on limiting the use of the term “jurisdictional”).

130523 U.S. 83. Notably, the shift began during the same time frame that the Court moved to fully embrace the zone of interests test as a prudential doctrine. See supra note 110.

131See 535 U.S. 625, 629 (2002). The Fourth Circuit had, to that point, relied upon Ex parte Bain, 121 U.S. 1 (1887), a case in which the Court utilized an “elastic concept[ion] of jurisdiction” to remedy constitutional wrongs it could not have otherwise reached due to the then existing limitations on its review of criminal convictions. See Cotton, 535 U.S. at 630. In Cotton the Court overruled Ex parte Bain. Id. at 631.

132Cotton, 535 U.S. at 630.

133Id. at 630 (quoting Steel Co., 523 U.S. at 89) (internal quotation marks omitted).

134Id. at 630.

135132 S. Ct. 641 (2012).

136See id. at 648.

137See id.; accord Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999); cf. Bowles v. Russell 551 U.S. 205, 214 (2007) (explaining that the “Court has no authority to create equitable exceptions to jurisdictional requirements”).

138Gonzalez, 132 S. Ct. at 648.

139Id. (quoting Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011)) (internal quotation marks omitted).

140See Perry Dane, Jurisdictionality, Time, and the Legal Imagination, 23 Hofstra L. Rev. 1, 95–96 (1994) (“The language is a hook that judges use when they want to achieve certain ends, like construing a rule strictly and literally, or raising a legal issue sua sponte, or engaging in collateral review of another court’s judgment.”).

141Id. at 96.

142See Kontrick v. Ryan, 540 U.S. 443, 455 (2004).

143523 U.S. 83 (1998).

144See id. at 94. Hypothetical jurisdiction can be described as the practice of “proceed[ing] 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.” Id. at 93.

145Justice Scalia coined the term “drive-by jurisdictional rulings” in this opinion. Id. at 91.

14642 U.S.C. § 11046(a)(1) (1994).

147See Steel Co., 523 U.S. at 86–87.

148See id. at 87–88.

149See id. at 88.

150See id. at 109–10. The Court ultimately held that the plaintiff lacked constitutional standing to bring the suit because redress was not possible. See id.

151Id. at 89. For commentary on the idea of jurisdiction as power, see Howard M. Wasserman, Jurisdiction, Merits, and Procedure: Thoughts on a Trichotomy, 102 Nw. U. L. Rev. 1547, 1547–48 (2008) (“[Jurisdiction] can broadly be defined as the court’s raw, baseline power and legitimate authority to hear and resolve the legal and factual issues in a class of cases.”). But see Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 Hastings L.J. 1613, 1620 (2003) (“[J]urisdiction cannot truly be a matter of power but instead must be a matter of something like legitimate authority.”).

152See Steel Co., 523 U.S. at 89.

153See id. at 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)) (internal quotation marks omitted).

154See id.

155See id. at 101.

156See, e.g., United States v. Cotton, 535 U.S. 625, 630 (2002).

157See Steel Co., 523 U.S. at 89. While the majority found only the (constitutional) standing issue jurisdictional, Justice Stevens insisted in his concurrence that the issue of whether the relevant statute permitted the cause of action was equally jurisdictional. See id. at 114–15 (Stevens, J., concurring in the judgment). Justice Scalia found this an important enough issue to devote over twelve pages to refuting it. See id. at 89–102 (majority opinion).

158Id. at 89.

159Id. (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).

160See id. (quoting Bell, 327 U.S. at 685).

161Id. (quoting Oneida Indian Nation of N.Y. v. Cnty. of Oneida, 414 U.S. 661, 666 (1974)).

162See id. at 92–93.

163See id. at 92.

164See 540 U.S. 443, 455 (2004).

165See id. at 454.

166Id.

167In describing the Federal Rules of Civil Procedure, the Court wrote, “‘[I]t is axiomatic’ that such rules ‘do not create or withdraw federal jurisdiction.’” Id. at 453 (alteration in original) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978)).

168See id. at 453–54 (quoting Fed. R. Bankr. P. 9030) (internal quotation mark omitted).

169See id. at 454. The Bankruptcy Rules are by no means a traditional prudential doctrine. However, they share a thread with prudential standing in that they are used to guide the Court in administering the jurisdiction the Court already possesses. See supra note 25.

170See Kontrick, 540 U.S. at 454.

171See id. (citing United States v. Robinson, 361 U.S. 220, 228–29 (1960) (describing Fed. R. Civ. P. 6(b) and Fed. R. Crim. P. 45(b), both concerning time enlargement, as jurisdictional)).

172Id. at 455.

173546 U.S. 500 (2006).

174Id. at 503.

175Id. at 503–04.

176Id. at 504.

17742 U.S.C. § 2000e-2 (2000).

178See Arbaugh, 546 U.S. at 504, 509.

179Id. at 504.

180Id. at 501.

181Id. at 516.

182For a discussion of this distinction, see Wasserman, supra note 151, at 1548 (“Merits, by contrast, are defined by who can sue whom, what real-world conduct can provide basis for a suit, and the legal consequences of a defendant’s failure to conform that conduct to its legal duties.”). But see, e.g., Lee, supra note 151, at 1613 (“I will argue that the conventional wisdom about jurisdiction is misleading, and, on occasion, dangerous. It is misleading because it is based on a false premisethat the true concept of jurisdiction is distinct from the true concept of the merits.”).

183See Arbaugh, 546 U.S. at 515.

184See id. at 514–15 (citing 28 U.S.C. § 1332’s “monetary floor”).

185See id. at 515–16.

186Id. at 516.

187See id. (“Applying that readily administrable bright line to this case, we hold that the threshold number of employees for application of Title VII is an element of a plaintiff’s claim for relief, not a jurisdictional issue.”).

188Fed. R. Civ. P. 12(b)(1) (indicating that a 12(b)(1) motion must be raised in responsive pleadings).

189Fed. R. Civ. P. 12(h)(3) (indicating that a 12(h)(3) motion may be raised at any point in the litigation).

190See Arbaugh, 546 U.S. at 506–07.

191See id. at 516.

192Fed. R. Civ. P. 12(b)(6).

193Fed. R. Civ. P. 12(h)(2) provides that a failure to state a claim upon which relief may be granted may be raised in the pleadings, a motion for judgment on the pleadings, or at trial.

194551 U.S. 205 (2007).

195The specific statute at issue was 28 U.S.C. § 2107(c), which allows a district court the discretion to reopen the time to file an appeal for a period of fourteen days. Id. at 207. The district court properly granted the motion to reopen but provided the petitioner an erroneously elongated filing date. See id. The petitioner complied with the erroneous date and, accordingly, filed after time had run out. See id.

196See id. at 206.

197See id. at 206–07. Regardless of the petitioner’s compliance with the district court’s issued deadline, the Supreme Court held that the appeal was barred because it was jurisdictionally out of time. See id.

198See id. at 209–11.

199Id. at 210.

200See id.

201See id. at 213.

202See id. at 210–13.

203See id. at 210–11.

204Id. at 211.

205Id. at 213 (alteration in original) (citation omitted) (internal quotation marks omitted).

206Id. at 216–17 (Souter, J., dissenting). Besides the doctrine at stake, the effect of the decision was unduly harsh, especially considering the fact that Bowles likely relied on an erroneous timeline provided by the district court. See id. at 206–07 (majority opinion).

207See id. at 217 (Souter, J., dissenting).

208See id. at 218 (responding to the majority’s citation to Kontrick and reconciliation of the definition of jurisdiction with the holding).

209130 S. Ct. 1237 (2010).

210See id. at 1243–45.

211See id. at 1247–48. Justice Ginsburg provided further clarity in her concurrence. See id. at 1250–51 (Ginsburg, J., concurring in part and concurring in the judgment). Notably, Justice Ginsburg authored the unanimous opinion in Arbaugh, establishing the bright-line test that highlighted Congress’s role in granting jurisdiction. See Arbaugh v. Y & H Corp., 546 U.S. 500 (2006). Concurring in Reed Elseveir, she acknowledged the tension between Arbaugh and Bowles, going so far as to state that “Bowles moved in a different direction” than the carefully executed steps toward refinement leading up to and through Arbaugh. See Reed Elsevier, 130 S. Ct. at 1250 (Ginsburg, J., concurring in part and concurring in the judgment). She did, however, propose a simple way to reconcile the two cases: Bowles’s reliance on a history of jurisdictional treatment rested on the same line of cases that Congress had left undisturbed. See id. at 1251. The result is a sort of implicit endorsement (by congressional inaction) that the statute was jurisdictional.

212See Reed Elsevier, 130 S. Ct. at 1241 (majority opinion). While in Arbaugh the question was whether the defendant could be sued, the issue in Reed Elsevier was whether the plaintiff met the prerequisites to bring suit. See id. at 1245.

213Id. (quoting § 411(a)).

214Id. at 1242.

215Id.

216Id.

217See id. at 1243.

218Id. at 1249.

219Id. at 1241.

220See id. at 1244–45 (“If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” (quoting Arbaugh v. Y & H Corp., 546 U.S. 515, 515–16 (2006)) (internal quotation marks omitted)).

221Id. at 1244 (alterations in original) (quoting Arbaugh, 546 U.S. at 515–16). Justice Thomas immediately thereafter stated, “And nothing in our prior Title VII cases compelled the conclusion that even though the numerosity requirement lacks a clear jurisdictional label, it nonetheless imposed a jurisdictional limit.” Id. This allusion to the precedential evaluation leaves room for Bowles yet makes for an awkward and broad substep in the evaluation.

222Id. (alteration in original) (citing Arbaugh, 546 U.S. at 513–16).

223See id.

224See id.

225See id.

226See id. at 1248.

227130 S. Ct. 2869 (2010).

228Id. at 2876.

229See id.

230See id.

231Id.

232See id. at 2877 (explaining that “to ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question”—it is not a question of whether the court has the power to hear the case).

233See id.

234Id. (footnote omitted).

235See id. (internal quotation marks omitted).

236131 S. Ct. 1197 (2011).

23738 U.S.C. § 7266(a) (2006).

238Henderson, 131 S. Ct. at 1201. Veterans Court is an Article I tribunal that hears appeals from the Board of Veterans’ Appeals. See 38 U.S.C. §§ 7251, 7252(a) (2006). Its decisions are appealable to the United States Court of Appeals for the Federal Circuit. See § 7292(c).

239See Henderson, 131 S. Ct. at 1202.

240Id.

241See id. at 1200, 1206.

242See id. at 1203.

243See id.

244See id. at 1205–06.

245See Reed Elsevier, Inc. v. Muchnik, 130 S. Ct. 1237, 1243 (2010).

246See id.

247See Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012).

248See United States v. Cotton, 535 U.S. 625, 630 (2002).

249See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102–04 (1998).

250See Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 184 (D.C. Cir. 2012) (“[A]lthough the Supreme Court has not yet directly addressed whether prudential standing is jurisdictional, the Court has suggested that it is not.”), reh’g denied, 704 F.3d 1005 (D.C. Cir. 2013), cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2880 (2013), and cert. denied, 133 S. Ct. 2881 (2013).

251See infra note 278; cf. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 885 (1983) (discussing prudential standing as “subject to elimination by the Court or by Congress”).

252See Grocery Manufacturers, 693 F.3d at 185; Wight v. BankAmerica Corp., 219 F.3d 79, 90 (2d Cir. 2000); Cmty. First Bank v. Nat’l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994); Animal Legal Def. Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994); Thompson v. Cnty. of Franklin, 15 F.3d 245, 248 (2d Cir. 1994).

253See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982).

254See, e.g., id. at 472–76.

255See, e.g., Air Courier Conference of Am. v. Postal Workers Union, 498 U.S. 517, 530 (1991). Amidst this confusion, some scholars have called for the dissolution of the constitutional standing requirement and an adoption of the prudential “abstention” category to encompass all standing considerations. See, e.g., Heather Elliott, The Functions of Standing, 61 Stan. L. Rev. 459, 464 (2008); cf. Sohn, supra note 21, at 728 (arguing that all constitutional standing doctrines be absorbed into the prudential category).

256See supra Part II.

257See supra notes 44–45 and accompanying text; see also supra notes 69–70 and accompanying text.

258See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“[S]ome of [standing’s] elements express merely prudential considerations that are part of judicial self-government . . . .”); Valley Forge, 454 U.S. at 475 (“[Article III standing] states a limitation on judicial power, not merely a factor to be balanced in the weighing of so-called ‘prudential’ considerations.”); Warth v. Seldin, 422 U.S. 490, 498 (1975) (“This inquiry [into standing] involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.”); see also CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011) (“Though all are termed ‘standing,’ the differences between statutory, constitutional, and prudential standing are important. Constitutional and prudential standing are about, respectively, the constitutional power of a federal court to resolve a dispute and the wisdom of so doing.” (quoting Graden v. Conexant Sys., Inc., 496 F.3d 291, 295 (3d Cir. 2007))).

259Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 154 (1970) (quoting Barrows v. Jackson, 346 U.S. 249, 255 (1953)) (internal quotation marks omitted).

260See, e.g., Eric J. Segall, Standing Between the Court and the Commentators: A Necessity Rationale for Public Actions, 54 U. Pitt. L. Rev. 351, 371 (1993) (discussing Professor Redish’s thesis that the refusal to hear a case on abstention doctrine grounds abrogates congressional authority in determining jurisdiction).

261See Bowles v. Russell, 551 U.S. 205, 210–13 (2007); Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006).

262See Bowles, 551 U.S. at 210–13.

263See id. at 206–07.

264See id. at 210–11.

265Id. at 211 (second alteration in original) (citation omitted) (quoting Kontrick v. Ryan, 540 U.S. 443, 452, 454 (2004)) (internal quotation marks omitted).

266Id. at 212 (emphasis added); see also supra note 265 and accompanying text.

267See Craig A. Stern, Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing to Sue?, 12 Lewis & Clark L. Rev. 1169, 1204–14 (2008) (recapping the Court’s inconsistent view of the proper classification for the generalized grievances prohibition).

268See id. at 1217.

269See United States v. Cotton, 535 U.S. 625, 630 (2002).

270See Bowles, 551 U.S. at 214 (explaining that the “Court has no authority to create equitable exceptions to jurisdictional requirements”).

271See, e.g., Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984) (“[T]here are situations where competing considerations outweigh any prudential rationale against third-party standing, and . . . this Court has relaxed the prudential-standing limitation when such concerns are present.”).

272Warth v. Seldin, 422 U.S. 490, 500–01 (1975). Moreover, the idea that “usual reluctance to exert judicial power” exists in prudential standing circumstances presupposes that the power exists in those circumstances. See id. Reluctance necessitates discretion, which is wholly absent in the presence of jurisdictional limitations.

273See 429 U.S. 190, 193 (1976).

274See id. at 193 (“These prudential objectives, thought to be enhanced by restrictions on third-party standing, cannot be furthered here . . . .”).

275See id. at 193–94.

276See, e.g., Hodel v. Irving, 481 U.S. 704, 711 (1987) (“[O]ne of these prudential principles is that the plaintiff generally must assert his own legal rights and interests. That general principle, however, is subject to exceptions.” (citation omitted)).

277See Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004) (“We have not treated this rule [against third-party standing] as absolute . . . .”). Building upon that construction, the Court’s recent articulations on the doctrine against third-party standing acknowledge that it is not jurisdictional. See infra note 299.

278See 20 Charles Alan Wright & Mary Kay Kane, Federal Practice & Procedure § 14 (2d ed. 2011) (“[T]he Court itself is free to disregard one of the prudential rules when it thinks it appropriate to do so. The jus tertii rule [or the prohibition on third-party standing], in particular, often has been disregarded by the Court in cases that seemed to it proper.”).

279See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998); see also supra note 144.

280See Steel Co., 523 U.S. at 101 (“The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers . . . .”).

281Id. (citing Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792)).

282See supra Part II.B.

283Steel Co., 523 U.S. at 101–02.

284See 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531.15 (3d ed. 2008) (“[T]he standing question that was put aside involved statutory standing under the ‘zone of interests’ test, a matter that is not jurisdictional—there is no illogic in the rule that a merits question can be given priority over a statutory standing question, but not over a constitutional standing question.”).

285See Bd. of Miss. Levee Comm’rs v. EPA, 674 F.3d 409, 417–18 (5th Cir. 2012); Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1050, 1065 n.17 (9th Cir. 2008); Gilda Indus., Inc. v. United States, 446 F.3d 1271, 1280 (Fed. Cir. 2006).

286See Fraternal Order of Police v. United States, 173 F.3d 898, 905 (D.C. Cir. 1999) (citing Steel Co., 523 U.S. 83 (1998)) (“It is, however, permissible to reject a claim on the merits without having explicitly resolved the prudential standing issue. For one reason, as the Court has explained, overlap between the merits and prudential standing is sometimes so great as to make any distinction artificial.”).

287Ripeness determines whether a controversy is at the appropriate stage of development for judicial review. See Wright, Miller & Cooper, supra note 284, § 3532.1 (“The central perception is that courts should not render decisions absent a genuine need to resolve a real dispute.”).

288See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, 1767 n.2 (2010); see also Stop the Beach Renourishment, Inc. v. Fla. Dept. of Envtl. Prot., 130 S. Ct. 2592, 2610 (2010).

289See, e.g., Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993). This language mirrors the language of the prudential standing cases, which describe the dual sources of standing as Article III and prudential concerns. See supra Part III.A, specifically note 265 and accompanying text.

290See 130 S. Ct. 1758, 1767 n.2 (2010).

291See id.

292See id.

293See id.

294See id. (citation omitted) (citing Sprietsma v. Mercury Marine, 537 U.S. 51, 56 n.4 (2002)).

295See id.

296See id. (“We express no view as to whether, in a similar case, a federal court may consider a question of prudential ripeness on its own motion.”) (citing Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (“[E]ven in a case raising only prudential concerns, the question of ripeness may be considered on a court’s own motion.”)).

297130 S. Ct. 2592 (2010).

298See id. at 2610.

299See id.

300See id.

301Id. (emphasis added) (footnote omitted).

302See supra Part III.A.

303Congressional mandates could be said to receive slightly lower deference than constitutional ones, but only to the extent that Congress must explicitly state that the statute is jurisdictional according to the Arbaugh/Reed Elsevier analysis. See supra notes 221–25 and accompanying text.

304See supra Part I.

305See supra Part III.A–B.

306Cf. Jonathan Remy Nash, On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction, 65 Vand. L. Rev. 509, 529 (2012) (arguing that rules, rather than standards, are a more efficient means to outline jurisdictional boundaries).

307See supra notes 221–22 and accompanying text.

308Bennett v. Spear, 520 U.S. 154, 163 (1997); see supra note 103 and accompanying text.

309See Bennett, 520 U.S. at 164.

310See supra Part I (arguing that the zone of interests is not a statutory imposition).

311See supra note 15.

312See supra note 15; see also supra notes 169, 187 and accompanying text.

313See Bennett, 520 U.S. at 163.

314See supra Part I. The Court had explicitly and repeatedly labeled the timelines at issue in Bennett as jurisdictional. See supra Part I.

315See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 85, 92–93 (1998); see also supra notes 162–63 and accompanying text.

316In Grocery Manufacturers, EPA did not raise the zone of interests test. See supra note 14. Had the issue been one worth briefing, the EPA, which is well versed in administrative law standing requirements, would have certainly raised it.

317Cf. supra note 296 and accompanying text (explaining courts’ ability, but not compulsion, to raise prudential concerns sua sponte).

318See Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011).

Executive Managing Editor, Emory Law Journal; J.D. Candidate, Emory University School of Law (2014). I would like to thank Professor Jonathan R. Nash for his insight, guidance, and patience throughout the writing process. I am also indebted to the editorial board of the Emory Law Journal, especially Elizabeth Redpath, Elizabeth Dunn, and Joel Langdon, for their thoughtful suggestions and punctilious edits. Finally, and most importantly, I am grateful to my wife, Mary-Marshall, for her steadfast love and support throughout the writing process and law school as a whole.