Yesterday [March 26, 2024], SCOTUS heard oral arguments on whether FDA exceeded its role in easing the rules on the drug mifepristone that can be used for medication abortion. Many justices across the ideological spectrum were very skeptical on whether the plaintiffs had legal standing to even sue. Yet I never saw several well known precedents on standing / pleading adequacy addressed by any of the justices.

  • General prohibition on 3rd party standing

It is the law in the US that a plaintiff generally cannot assert that a 3rd party not before the court, suffered, or is about to suffer, imminent , concrete and traceable harm inflicted by the defendants. Quoting from Warth v. Seldin linked case above:

Second, even when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.

The general rule applies unless exceptions such as certified class action on behalf of all similarly situated plaintiffs who were legally injured, or the infeasibility of those harmed pursuing suit themselves (i.e: next friend doctrine), applies, which none do in this case before SCOTUS.

  • Failure to state a claim - Twiqbal - Bell Atlantic v. Twombly and Ashcroft v. Iqbal

The adequacy of initial pleadings standard was raised via Twiqbal for all civil federal claims. The plaintiffs (i.e: anti-abortion doctors here) must plead that concrete and specific harm was probable and not merely possible. As responses from lawyer Erin Hawley arguing on behalf of plaintiffs evidenced, probable harm was not met as none of the 2 doctors in their affidavit said they had to take care of women who suffered medically due to increased availability of mifepristone.

If I am not misreading these precedents, it would seem these are additional ways to easily shut down the plaintiffs case. Comparing the case yesterday against the aforementioned precedents, jurisdiction is civil, and no other material differences can be seen.


What explains then, why no justices mentioned rule against 3rd party standing or Twiqbal*?*

1 Answer 1


Short Answer

What explains then, why no justices mentioned rule against 3rd party standing or Twiqbal?

Third party standing and Twiqbal involve two completely different legal doctrines that have almost no overlap with each other.

As discussed in greater length below, in this case, in U.S. Supreme Court oral arguments, "Third-Party Standing" in the sense the term is used in the question was discussed at length, while Twiqbal issues were not discussed for reasons that make sense.

If I am not misreading these precedents

The question is misreading these precedents. The question includes some misunderstandings about both legal doctrines.

Long Answer

Third-party standing was considered

The question uses the term "third-party standing" in one of the correct senses of the definition of this term, but gets tripped up by a question of customary usage of the term as opposed to synonyms for it, when it is used in legal argument, that would have been very hard to discern from a legal dictionary or other authoritative source.

Third-party standing is relevant to the U.S. Supreme Court consideration of Mifepristone and FDA, specifically, Food and Drug Administration v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine. Oral arguments were held in the U.S. Supreme Court on March 26, 2024 in those cases, and some standing issues were discussed in those oral arguments. SCOTUS blog summarizes those oral arguments here, noting that:

The arguments today centered mostly on whether any of the doctors who are plaintiffs have a legal right to sue, known as standing, based on their theory that they might face treating a woman who used mifepristone and ended up in an emergency room with complications that would require a doctor with a conscience objection to abortion to participate in such a procedure. U.S. Solicitor General Elizabeth Prelogar said this is too tenuous a connection, and they therefore did not have standing.

The justices were skeptical that abortion opponent doctors had standing. As the question notes:

Many justices across the ideological spectrum were very skeptical on whether the plaintiffs had legal standing to even sue.

Standing to sue is a jurisdictional requirement to bring a lawsuit in federal court as a matter of constitutional law under Article III, Section 2 of the United States Constitution. The fact that standing to sue is a subset of the law of jurisdiction is important to answering the Twiqbal part of the question.

The question uses the term "third-party standing" in a sense where it is more common to simply say "standing" or "legal standing" which are the same thing as and are used as a short hand way of saying "the prohibition on third-party standing", in the broad sense that this term was used in the question.

Usually, however, in an oral legal argument, the term "third-party standing" is used more narrowly than it was in the question, to refer only to the exception cases when a third-party does have standing to sue for harm to another, such as a case brought by a guardian for the person harmed or by an organization whose members were harmed.

The term "third-party standing" language wasn't discussed much, or at all, in these oral arguments (I haven't listened to the whole thing so I don't know which is true), because this case didn't clearly fall within any of the recognized exception cases to the general rule that legal standing arising from a personal and particularized harm to the person bringing the lawsuit is jurisdictionally required to bring a lawsuit.

The pros and cons of standing arguments

The attractive part of dismissing a case based upon lack of standing, is that it can result in the dismissal of a case at the outset with a minimum of litigation costs, and without forcing the courts to make binding precedents on legal issues before it is necessary to do so.

The down side of dismissing a case based upon lack of standing is that it leaves the door open to someone new who does have standing bringing a new case in the future. It doesn't resolve the underlying legal issue once and for all. In the meantime, any important questions of law that were raised in the case dismissed for lack of standing remain unresolved on the merits. If the conduct is illegal, then this allows illegal conduct to persist. If the conduct is legal, this prevents people from confidently relying on its legality as the act going forward, exposing themselves to risk because they would be worried that they guessed wrong and were acting illegally.

Twiqbal doesn't apply to motions to dismiss for lack of standing

Twiqbal is shorthand for a rule regarding how factually specific you have to be in writing a complaint that was created in the Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (an anti-trust case) and Ashcroft v. Iqbal, 556 US 662 (2009) (a civil rights case related to alleged discrimination against Muslims in terrorism investigations after 9-11) pair of cases of the U.S. Supreme Court that greatly heightened the factual specificity required in a complaint in a civil action in federal court to which no other special rules regarding pleading specificity applies.

Both Twombly and Iqbal are usually discussed together, giving rise to the hybrid "Twiqbal" term used in secondary authority discussions of the doctrine, because for the first couple of years after Twombly was decided, it wasn't clear if the new pleading requirement was specific to complex commercial cases like that anti-trust case in the Twombly case (as basically a common law extension of the rule that cases alleging fraud have to be pleaded with particularity) even though the Twombly case didn't expressly say that, or if the new pleading requirement was more broadly applicable to all civil lawsuits, as Iqbal clarified.

Prior to these cases, a complaint could only be dismissed on its face if no set of fact consistent with those alleged in the complaint could provide grounds for a court to rule in favor of the person bringing the complaint, so long as it was sufficiently specific to let a defendant know in a broad sense what event or transaction is the subject of the lawsuit. This was known as "notice pleading" and was the rule in almost all state and federal courts for fifty years (with little controversy, notwithstanding the U.S. Supreme Court's counterfactual protestations to the contrary in Twombly), once the U.S. Supreme Court established this rule for pleading in federal lawsuits in the case of Conley v. Gibson, 355 U. S. 41, 47 (1957).

The current requirement is not that one "must plead that concrete and specific harm was probable and not merely possible." Instead, the current requirement is that the claim for relief in a complaint (or counterclaim or cross-claim or third-party complaint) must contain plausible non-conclusory factual allegations that, if true, on their face, make it plausible that the party bringing the claim is entitled to relief from the court.

For example, Twombly was an anti-trust case brought where the complaint did not refer to any "smoking gun" evidence of an anti-competitive agreement to prove that there had been anti-trust violation by the defendants who were leading competitors in the same industry. Under the Twombly rule you have to say something like "at a conference on March 30, 2023 there was a private meeting at which executives Alice, Bob, and Mary who represented of all major companies in the industry were present at which they agreed to sell gasoline at no less than 50 cents above the wholesale price" rather than "all major companies in the industry have entered into a gasoline price fixing agreement", and rather than the even more vague and conclusory "the defendants entered into an agreement that violates the Sherman Anti-Trust Act."

Previously, under the notice pleading regime, you could say that the fact that every gas station is charging the same amount in excess of the wholesale price makes it possible that there was an anti-competitive agreement and you could try to find the "smoking gun" regarding how that agreement came to be through depositions and document discovery after the case was underway.

Twiqbal applies only to motions under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on the merits, rather than for motions to dismiss for jurisdictional reasons. (Historically, and in a handful of states today in state court, this kind of motion was called a "demurrer").

An FRCP 12(b)(6) motion is always decided based upon the face of the complaint including documents referenced in it and facts of which the court may take judicial notice, but never considers affidavits or other evidence beyond the four corners of the complaint and the documents it references. (Judicial notice is a legal doctrine that allows judges to rely upon facts not in a motion or brief of a party or complaint that is not reasonably subject to question, either because it is common almanac-type knowledge, like the fact that 2023 is not a leap year, or that there are 16 ounces in a pint, or that Colorado became a U.S. state in 1876, or because the information is part of a court file or public record to which the court has easy access).

Standing issues are governed by a rule to which Twiqbal doesn't apply

Twiqbal isn't applicable to jurisdiction issues, such as standing, which are, instead, resolved under different subdivisions of Federal Rule of Civil Procedure 12(b) pertaining to jurisdiction. Specifically, a motion to dismiss a claim for lack of standing is filed under Federal Rule of Civil Procedure 12(b)(1) since it is a matter of subject-matter jurisdiction.

Jurisdictional disputes in a federal court case raised in motions under FRCP 12 are resolved after considering evidence such as affidavits, exhibits not referenced in the complaint, and if necessary, testimony at an evidentiary hearing subject to cross-examination from live witnesses. Basically, for those familiar with civil procedure in the U.S., a motion disputing subject-matter jurisdiction starts out as a de facto motion for summary judgment rather than as a motion to dismiss under FRCP 12(b)(6), and can be converted to a mini-bench trial, if necessary.

The fact that an affidavit of a doctor was discussed in this case shows that this case didn't have a Twiqbal issue (or at least not a Twiqbal issue that the U.S. Supreme Court thought was important to grant certiorari upon) because the Federal Rule of Civil Procedure 12(b)(6) motions that Twiqbal governs, by definition, do not involve affidavits.

What is controversial about Twiqbal?

The main controversy over Twiqbal is that it makes it effectively impossible for plaintiffs without access to inside information secured without mandatory court disclosures to bring a lawsuit when some key information necessary to prove the case is in the sole possession of the defendants in a case, even if there is considerable circumstantial evidence to suggest that such inside information exists. This was the fact pattern in both Twombly and Iqbal. Thus, the doctrine strongly benefits secretive big businesses and governments that are acting unlawfully.

Twiqbal also increases the cost and uncertainty of litigation to enforce the rights of plaintiffs, and delays cases across a wide variety of kinds of litigation, even when complaints are not dismissed. And, it also puts plaintiffs seeking to bring suit in sprawling factually complex cases which may involve many parties over a long time period in a bind between the Federal Rule of Civil Procedure 8(a)(2) requirement that a complaint be "a short and plain statement of the claim showing that the pleader is entitled to relief" and the Twiqbal requirement that strong encourages (without quite requiring) plaintiffs to provide a detailed recitation of non-conclusory facts showing every element of every claim against each and every party to the case, which is often anything but "short" in a factually involved, complex case with many parties.

On the other hand, Twiqbal protects big businesses and governments that are acting lawfully from being sued based on vague allegations merely because someone suspects, but does not know, that they are secretly acting illegally, often with only flimsy reasons for holding those suspicions.

Not all lower court orders entered under FRCP 12(b)(6) are subject to appellate review.

There is also another reason that Twiqbal issues are hard to get before the U.S. Supreme Court to review on appeal, which does not apply to appellate review of standing issues.

Many kinds of trial court errors in applying Twiqbal are not subject to appellate review, because it only comes up in connection with Federal Rule of Civil Procedure 12(b)(6) motions, and some kinds of appellate court ruling on those motions are not subject to direct appeals.

Denial of a Federal Rule of Civil Procedure 12(b)(6) motion is not an appealable order. You can appeal the case if your case, or part of it, is dismissed at the outset on the pleadings under FRCP 12(b)(6). If your entire case is dismissed under FRCP 12(b)(6) you can appeal immediately. If your case is dismissed in part, you can appeal that ruling when the entire case is over. But, a denial of the motion that allows the case to move forward procedurally, but doesn't grant the plaintiff any actual relief, can't be appealed in an ordinary direct appeal, because it is an "interlocutory order, i.e. because it doesn't finally resolve the rights of the plaintiffs on the merits.

If an FRCP 12(b)(6) motion is denied, your remedy is to try to have the case dismissed on a motion for summary judgment which can considered affidavits and exhibits but does not resolve facts in an evidentiary hearing (the denial of a motion for summary judgment is also an interlocutory order that can't be appealed) and then, if you lose on a motion for summary judgment, to lose at trial and appeal the ruling in the plaintiff's favor at trial on the grounds that the evidence presented at trial did not support a ruling in the plaintiff's favor on any valid legal theory.

Lack of standing, in contrast, because it is a form of subject-matter jurisdiction, can and must be considered by any court considering the question at any stage of a court case, whether or not it is raised by the parties. See, e.g., Federal Rule of Civil Procedure 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").

The U.S. Supreme Court considers only the issues upon which it granted certiorari review.

Another factor is relevant to what the U.S. Supreme Court considers in oral argument in any case.

Usually, when the U.S. Supreme Court grants certiorari to review a particular lower court ruling, it limits its review to one or two narrowly defined legal issues and does not reconsider every legal issue presented in the case.

Even if Twiqbal had been an issue in the trial court and the appellate court, and it may well have been with respect to non-jurisdictional issues in this case in a way that the U.S. Supreme Court didn't find interesting. If the issue upon which the U.S. Supreme Court granted certiorari doesn't include a Twiqbal legal issue, then the U.S. Supreme Court won't consider it.

So, in general, it is rarely surprising if the U.S. Supreme Court declines to consider one or more legal issues that the facts of the case before it raise or could present.

This case was interesting enough for the U.S. Supreme Court to consider because of the jurisdictional issues and the merits of the case presented, not because any disputes over how specifically the complaint was worded were interesting in this case.


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