Standing to Appeal IPR Judgments: When does a Statute Create Injury-in-Fact?

by Dennis Crouch

JTEKT Corporation vs. GKN Automotive LTD. (Supreme Court 2018)

In 2016, JTEKT (Toyota) an inter partes review (IPR) petition challenging GKN’s Patent No. 8,215,440 (2wd/4wd dual drive-train).  During the IPR, GKN disclaimed the broadest claims, and the PTO confirmed validity of the remaining claims.  Here, the key difference from the prior art was a negative limitation – that the system coupling is “without a differential gearing.”  Wanting to also cancel those claims, JTEKT appealed.  Although JTEKT and GKN are competitors, JTEKT has not yet developed a competing product — arguing (without real evidence) that the ‘440 patent was a roadblock to its development project.

On appeal, the Federal Circuit refused to consider the merits. Rather, the court found that the US Constitution prohibited the case — i.e., that JTEKT had no standing to appeal because the petitioner had not alleged any “actual injury.”

In my prior post on the case, I explained:

Standing is an oddball with IPRs.  Anyone can file an IPR request and the USPTO will consider that request.  The Patent Act directly states that a losing petitioner has a right to appeal if it loses the IPR. . . .  Still, the Supreme Court has repeatedly held that the Constitution requires an actual controversy between the parties — and that the Article III courts cannot offer advisory opinions. A particular element in question for appellate IPR standing is injury-in-fact —  “an injury that is both ‘concrete and particularized.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)(non-IPR case).

After being denied substantive hearing at the Federal Circuit, the patent challenger has now petitioned the Supreme Court on the standing issue — the following question:

Can the Federal Circuit refuse to hear an appeal by a petitioner from an adverse final decision in a Patent Office inter partes review on the basis of lack of a patent-inflicted injury-in-fact when Congress has

(i) statutorily created the right for parties dissatisfied with a final decision of the Patent Office to appeal to the Federal Circuit,

(ii) statutorily created the right to have the Director of the Patent Office cancel patent claims when the petitioner has met its burden to show unpatentability of those claims, and

(iii) statutorily created an estoppel prohibiting the petitioner from again challenging the patent claims?

The question here is substantially the same as the petition found in the pending case of RPX Corp. v. ChanBond LLC (17-1686) (awaiting input from the Solicitor General).  There is a good chance that briefing in JTEKT will be complete before the Solicitor submits the government brief in RPXJTEKT would be a good companion case to RPX because it presents the added element of competitor challenge.

PetitionJTEKT_Petition (Filed by Todd Baker and Lisa Mandrusiak at Oblon)

Standing on Appeal: Being a Competitor with ongoing Product Development Not Sufficient for IPR Appellate Standing

48 thoughts on “Standing to Appeal IPR Judgments: When does a Statute Create Injury-in-Fact?

  1. 8

    The Supreme Court should absolutely take this case and reverse. The statutory estoppel under the AIA should be more than sufficient to create Article III standing for an appeal by a losing IPR petitioner. The Supreme Court case law does not require that the “injury in fact” be severe or debilitating, and it can obviously be created by statute. For example, a person have Article III standing to appeal the denial of a Freedom of Information Act (FOIA) request, where there’s nothing personally at stake for the FOIA requester. It seems like an easy case that AIA statutory estoppel should create Article III standing to appeal.

    It should not matter whether the petitioner is competing or manufacturing a competing product, either. The statute on its face limits a substantive right it has to defend a patent assertion, FOREVER. Even if the petitioner is not currently making any competing product, it can always be sued as a customer, and the existence of the estoppel will cloud acquisitions or investments by other entities and, obviously, will chill the petitioner’s venture into the territory covered by the patent.

    And the timing aspect is particularly pernicious. If an IPR petitioner’s appeal gets bounced for lack of standing, they cannot come back in a year and renew their appeal because of change in circumstances. The IPR decision is final and not subject to further review.

    1. 8.1

      For all the case law discussion about “standing,” isn’t the only actual standing requirement the Constitutional requirement of “case or controversy”?

      1. 8.1.1

        The requirement of present case or controversy is indeed part of — but not all of — the requirements for judicial power to apply in our Sovereign’s system of limited government.

    2. 8.2

      From what I read, the standing requirement is still seen in the usual context of invalidity as a defense of infringement. In IPR, the petitioner could say that there is a controversy because the USPTO issued patent claims in violation of US 102, 103. And, as Jonathan said below, in cases where a statute provides standing, the courts do not apply the prudential analysis (which includes an injury of fact prong) to determine standing, but apply a zone of interest analysis (which does not seem to include an injury of fact prong).

      1. 8.2.1

        And, as Jonathan said below, in cases where a statute provides standing, the courts do not apply the prudential analysis

        But also what Jonathan stated as otherwise having Article III standing (as I note below at post 6.1.1.2.1)

        You have to keep track of which side of the “v” these mixed forum cases are talking about.

        1. 8.2.1.1

          Thanks Anon, I should have said “when the statute provides cause of action.” Also, I agree with you that the appellant should have standing, I just understand Lexmark to say that the analysis is different when a statute provides the cause of action. I am not entirely clear what that would mean when the appellant appeals from an IPR, but requiring the same kind of injury in fact as in an infringement action seems wrong.

          1. 8.2.1.1.1

            Let’s take a closer look at that “cause of action” and what the IPR section of the statute provides.

            The statute provides anybody the right to ask for a challenge to a granted property right ( be that property right a Public Franchise property right or a Private personal property right).

            The statute provides that the institution decision is discretionary (in the hands of the executive branch administrative agency).

            The statute provides (absent some larger context protections), that THAT discretionary institution decision is not appealable.

            After absorbing those points, we can appreciate the muckery of the AIA and it’s inherent infirmity with the attempt to bootstrap (and bypass) a foundational requirement for moving from one fora (with no standing requirement) into a second fora (with a standing requirement).

            It takes more than a passing line from Congress to properly pave that path.

            The AIA did NOT properly pave that path.

            1. 8.2.1.1.1.1

              Additionally, let’s look again at the subject of the underlying item: the granted patent.

              Does ANYBODY at all have proper Article III standing based solely on an existence (or a maintained existence) of a patent?

              Clearly, the answer to that is no (see Lujan).

              So what exactly is the “legal right” that is creating this supposed Article III standing? The right to ask for the executive agency to review the item? That right remains, and it is only a negative result of that asking (and THAT, only partially, given both the discretionary nature of the institution decision and the lack of right of appeal on that institution decision).

              This is simply attenuated too far.

              So — again — reflecting on the post at 6.1.1.2.1, augmenting what Jonathan provided, there is an “and” element of requiring a separate Article III standing basis that is (and must be) at play.

  2. 7

    So how does a competitor who is an IPR petitioner provide “real evidence” of personal injury sufficient to sustain an appeal to the Fed. Cir.? It is not relevant to any allowable issue in the IPR itself, so why would the PTAB allow such evidence to be introduced? It is unlikely that IPR petitioner experts who are filing declarations re 103 or background art would be able to additionally provide that different kind of information. Would the Fed. Cir. allow such factual evidence to somehow be added to the record for an appeal?

    1. 7.1

      Your point here Paul only highlights the built-in infirmity of the IPR structure, as written by Congress who knowingly set up a two-domain (non-Article III / Article III) challenge system.

      They purposefully opened up the front end in the administrative agency domain in which the Article III judicial branch requirements were expressly not necessary.

      This is precisely why the (pure) bootstrapping is so blatant.

      I cannot see how this is NOT an open and shut case of an improperly attempted legislative sleight of hand (even if — or maybe especially because — Malcolm feebly protests that description).

      1. 7.1.1

        How is this “two domain” system any different in that respect from the very many other federal administrative agency proceedings who’s decisions are appealable to an Article III federal court?

        1. 7.1.1.1

          One that immediately comes to mind is 35 USC 261.

          Do you have a particular example out of those “many” for comparison?

          1. 7.1.1.1.1

            35 USC 261? So you think no other federal agencies have administrative proceedings dealing with property rights, or not, that “have the attributes of personal property”? What about the ITC, ICC, FTC, FDA, FAA, FCC, Veterans Affairs, The Copyright office, etc., etc.

            1. 7.1.1.1.1.1

              Feel free to provide the comparison as I asked for…

              Does any from that list provide a two-zone process rife with standing infirmity?

        2. 7.1.1.2

          Paul, aside from the property aspect (which to me invokes protections against Takings and the heightened Article III standing requirements), can you provide any more detail from your list of administrative agencies that have seen legislated “mixes?”

          Quite likely, the devil will be in the details of any such arrangement, and you may (or may not) have a cogent point here.

          1. 7.1.1.2.1

            Paul provided that comparison, anon.

            Every one of the agencies he listed in his comment provides administrative (Article I) adjudication with right of judicial review before an Article III tribunal. Even you should know that, anon, at least with respect to the ITC.

            And I’d also add to Paul’s list the SEC, U.S. Tax Court, bankruptcy court, the INS (both immigration ALJs and the Board of Immigration Appeals), U.S. Merit Systems Protection Board, Social Security, etc., all of which provide administrative (Article I) adjudication with right of appeal to an Article III court.

            The suggestion that there is something unusual about mixed Article I administrative agency adjudication, with Article III judicial review, is simply ignorant.

            1. 7.1.1.2.1.1

              LR – I am looking for the details, as your post here (and above) are simply far too broadly worded and do NOT accord with actual law vis a vis Article III standing.

              As I noted already, your “version” eviscerates any actual Article III standing requirement. That’s just not how the legal system works.

              Perhaps you need to recognize that those other “mixes” are providing Article III review for the directly affected party of the non-Article III portion. This would be akin to a patent holder proceeding to an Article III appeal in a patent matter — NO ONE is arguing that particular set-up. It is an entirely different matter altogether to have a non-party to the issue skirt the Article III requirement by bootstrapping into a non-Article III forum.

              Maybe you want to grasp this before throwing about that “ignorant” label….

              1. 7.1.1.2.1.1.1

                As I noted already, your “version” eviscerates any actual Article III standing requirement.

                I think it’s safe to say that your argument here eviscerates the actual meaning of “eviscerate.”

    2. 7.2

      Yes, because it’s a subject matter jurisdictional question. An Article III appeals court can, in the limited case of subject matter jurisdiction, take in new evidence and arguments never considered by the lower tribunal. It’s established law, in fact, that any Article III court (even the Supreme Court) has an affirmative duty to accept evidence and arguments about subject matter jurisdiction at any time, whenever its jurisdiction is called into question. (For example, there are some notorious cases where district court jurisdiction was invoked based on “diversity of citizenship,” that went on for nearly a decade. On appeal, the appeals court raised the fact that the parties were from the same states. Result: Entire decade of litigation wiped out for lack of jurisdiction.)

      The procedure is not the problem — the problem is identifying what evidence should be sufficient for the IPR petitioner to prove it has standing to appeal an adverse PTAB decision.

      And one area that’s not been fully explored is the question of privity; the CAFC is too focused on whether the IPR petitioner itself is manufacturing a competing product. But under the privity provision of the AIA, the estoppel could apply anyone “in privity” with the IPR petitioner. So having an IPR petitioner subject to IPR estoppel under the AIA could chill joint ventures, collaborations, acquisitions, and investments from practicing companies who fear that they’ll be infected with the petitioner’s estoppel under the “privity” provision of the AIA. The CAFC seems to have totally ignored this issue.

      1. 7.2.1

        LR,

        I am “getting” your notion of privity as a concern, but have not seen how that concern manifests itself in this case.**

        Or are you wanting the court to decide a matter not before it (can you say “advisory opinion?”)

        ** the “getting” comes from tracking an ongoing scuffle between the CAFC and the PTAB vis a vis Real Party In Interest, and how certain entities have structured their business plan (hint: agency) so as to be the IPR challenger for its (paying) members.

      2. 7.2.2

        Re: “An Article III appeals court can, in the limited case of subject matter jurisdiction, take in new evidence and arguments never considered by the lower tribunal.”
        Thanks LR!
        [Wonder why there was not more of that in this case?]

  3. 6

    Dear All,

    Here is another beautiful example, why there is Art. III standing on appeal between competitors related to an adverse IPR adjudication.

    Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386 (1926) (6:3) (Sutherland, J. joined by Taft, C.J., and Holmes, Brandeis, Sanford, Stone, JJ.) (holding that a City’s zoning ordinance that “greatly . . . reduced the value of appellee’s lands and destroyed their marketability for industrial, commercial and residential uses” constituted a “present invasion of appellee’s property rights”) (Finding standing because plaintiff has suffered an injury-in-fact based on the decrease in the market value of Plaintiff’s property as a result of the City’s designation is a sufficiently concrete injury for Article III purposes.) (a 75% diminution in the market value of Ambler Realty’s 68 acres of vacant land).
    This Euclid test was affirmed in Nectow v. City of Cambridge, 277 U. S. 183 (1928); and again reaffirmed in Village of Belle Terre v. Boraas, 416 U. S. 1 (1974) (7:2) (Douglas, J.). Remember an adverse IPR adjudication results in an increased risk of causing injury outside the legal context comes, i.e., in the stock market. The market routinely discounts the present values of a firm’s securities based on the risks associated with that firm’s future performance. Conduct today that increases the risk for the firm tomorrow injures the firm by reducing the firm’s present value. Modern analogy to the Euclid test is Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995) (stating that injury occurs when a “discriminatory classification prevent[s] the plaintiff from competing on an equal footing” quoting Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 667 (1993). There is no question that the patent owner has standing to appeal an adverse IPR adjudication, if the parties are competitors and the patent-in-dispute changes for the patent owner the value/footing in the market place. The approach the CAFC has taken re standing on appeal is simply erroneous and is not supported in US Supreme Court case law.

    1. 6.1

      Market diminuation based on legal determinations would need to reflect what has happened with Alice/Mayo before I even start to consider your offered point here.

      I think that you have attempted to stretch the zoning case a little too far.

      1. 6.1.1

        (that’s not to say that the patent holder lacks Article III standing – I do not think that THAT has ever been questioned.

        The question revolves around the non-Article III standing ability of challengers to patent rights, and their pursuit of the duo-zone AIA process into the second zone of Article III.

        1. 6.1.1.1

          In Lexmark the Court recharacterized the zone of interest as a statutory interpretation inquiry; since the applicable statute uses the phrase “dissatisfied “ which is arguable broader than the traditional phrase “aggrieved” the Legislators implied a very broad and liberal grant of standing to appeal.

        2. 6.1.1.2

          In Lexmark, the Court took it upon itself to reshape the law of prudential standing. The case before the Court required application of the zone-of-interests standing limit—a limit sometimes described in terms of “statutory standing.” (so described just two years prior in See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012)). As litigated by the parties and decided by the lower courts, the case involved only the issue of whether a counter-claimant—Static Control—had statutory standing to assert a false advertising claim under the Lanham Act. The cert petition/question presented asked the Court to resolve a circuit split concerning “the appropriate analytic framework for determining a party’s [statutory] standing to maintain an action for false advertising under the Lanham Act.” Thus Lexmark presented only a narrow issue. The Lexmark Court, however, seized the opportunity to “clarify the nature of the question at issue” by broadly re-examining the law of standing. Specifically, the Lexmark Court, upsetting forty years of precedent, declared that the statutory standing doctrine did not involve a prudential limit on judicial action; rather, it involved an aspect of the merits of the plaintiff’s claim. According to the Lexmark Court, “whether a plaintiff comes within ‘the “zone of interests”’ is an issue that requires [a court] to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” The Lexmark Court, in answering that question, went on to hold that courts are to defer to the governing body that created the (Lanham Act) law at issue, which in Lexmark was Congress. As the Court put it, a court “cannot limit a cause of action that Congress has created merely because ‘prudence’ dictates” such outcome, “just as [it] cannot apply its independent policy judgment to recognize a cause of action that Congress has denied.” It is clear after Lexmark, courts interpret the zone of interests test as a statutory inquiry into whether the plaintiffs have a cause of action. What was truly new in Lexmark, the Lexmark Court’s relocation of zone-of-interest analysis from an aspect of standing to a question of the scope of the plaintiff’s underlying cause of action. Most significantly, the Lexmark Court confined the import of prior statements that the zone-of-interests test is “not especially demanding” to claims brought under the Administrative Procedure Act and emphasized that “the breadth of the zone of interests varies according to the provisions of law at issue.” Justice Scalia says in Lexmark: “the question this case presents is whether Static Control falls within the class of plaintiffs whom Congress has authorized to sue under § 1125(a). In other words, we ask whether Static Control has a cause of action under the statute. That question requires us to determine the meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply traditional principles of statutory interpretation. . . . Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied . . . it cannot limit a cause of action that Congress has created merely because ‘prudence’ dictates.”
          Despite re-framing the “zone of interest” test as a statutory question rather than one of “prudential standing,” the Lexmark Court applied the same “zone of interests” analysis that it had pursued in prior cases, asking whether Static Control fell “within the zone of interests protected by the law invoked.”; for the same approach as in Lexmark, see Bennett v. Spear, 520 U.S. 154, 163 (1997) (“The breadth of the zone of interests varies according to the [statutory] provisions of law at issue.”).
          After Lexmark, courts and the CAFC especially need only determine whether a particular statute authorizes a plaintiff’s cause of action. If it does, the Court held in Lexmark, the CAFC is not free to prevent a plaintiff from bringing an appeal or a claim out of prudential concerns. After Lexmark it is clear that the touchstone for a plaintiff’s standing on appeal is the text of the statute itself. If the statute creates a cause of action for a particular class of potential plaintiffs, and if a plaintiff satisfies Article III standing, then a court cannot decline to hear that plaintiff’s case on prudential grounds. The term in the statute “dissatisfied” clearly is broader than “aggrieved”; thus, the second part of the standing of appeal test from an administrative tribunal adjudication/IPR is not demanding at all.

          1. 6.1.1.2.1

            Thank your for the substantive answer – one snippet though bears a little more clarity (emphasis added):

            If the statute creates a cause of action for a particular class of potential plaintiffs, and if a plaintiff satisfies Article III standing, then a court…

            It’s that second portion (in bold) that is the crux of the matter here.

            1. 6.1.1.2.1.1

              In the context of Art. III the US Supreme Court case law related to competitor standing, held that the only injury in fact the competitor needs to establish is that the tribunal’s adjudication affects their own/personal competitor’s interest; nothing more; see i.e., National Credit Union v. First Nat’l Bank & Trust, 522 U.S. 479, 488 n.4 (1998) (stating it was “not disputed that respondents have suffered an injury-in-fact” when the agency action allowed a single competitor into its market). The specific harms flowing from additional competitors are presumed through the “application of basic economic logic.” Clinton v. City of New York, 524 U.S. 417, 433 (1998) (stating any petitioner who is likely to suffer economic injury as a result of government action satisfies the injury-in-fact requirement).

              1. 6.1.1.2.1.1.1

                That sounds like normal Article III standing (actual competitor) — again, the thrust here concerns patent challengers that otherwise LACK Article III standing.

                No one is concerned about challengers with Article III standing.

                (thanks again for the detailed posts!)

                1. patent challengers that otherwise LACK Article III standing.

                  If the government has illegally granted a patent to my competitor and that grant has put a cloud over my ability to develop my business, I’m injured.

                  Likewise if I ask the agency to fix their screw-up and they fail to do so based on poor reasoning.

                2. You are simply not correct in your provided “reasoning” Malcolm. This is obvious from your misstatements regarding standing vis a vis the Lujan case.

                  There is no simpler way to put it.

                3. You are also (still) not accounting for either the presence or degree afforded by 35 USC 282.

                  Naturally, the existence or import of pretty much any law that is pro-patent holder does not make onto your radar.

                  No wonder that you have such a case or cognitive dissonance when it comes to innovation.

  4. 5

    Perhaps a better question:

    When does a statute NOT create “injury in fact?”

    Here’s one example: knowingly setting up a two part system, with knowledge that the second part of the system has a different standing requirement (per Constitutional considerations), and then trying to bootstrap the known first part into that second part.

    How is this not clear?

  5. 4

    Although JTEKT and GKN are competitors, JTEKT has not yet developed a competing product — arguing (without real evidence) that the ‘440 patent was a roadblock to its development project.

    What is “real evidence” in this scenario? How about a plane ticket purchased to attend a meeting with an investor?

    1. 4.1

      No no; under the US Supreme Court case law related to competitor standing the only injury in fact the competitor needs to establish is that the tribunal’s adjudication affects the own/personal competitor’s interest; nothing more this what Data Processing held.

      1. 4.1.1

        under the US Supreme Court case law related to competitor standing the only injury in fact the competitor needs to establish is that the tribunal’s adjudication affects the own/personal competitor’s interest; nothing more this what Data Processing held.

        And that seems perfectly reasonable.

        What I was getting at is — setting aside this business with the tribunal’s adjudication — what sort of “real evidence” of what sort of “injury” is needed in the first instance to meet the”standing” requirements? It’s pretty minimal, as I recall.

        If I want to start, say, a social club “on the Internet” (an existing network for exchanging information), and there’s a junk patent that I definitely will be infringing, it seems to me I’m sufficiently “injured” by the government’s “neglect of administrative law” (the popular phrase these days).

        1. 4.1.1.1

          As I recall your recall, your understanding of Article III standing is below any “pretty minimal” standard.

          Add to that your number one meme flavor of Accuse Others, your attempt to “co-opt” the “neglect of administrative law” does NOT work. Your feelings and wants to block innovation of a certain kind is not related to the neglect issue.

          What is on display (yet again) is your cognitive dissonance and Ends no matter the Means in your “choosing” to not understand Article III standing and overhyping your wants in disregard of reality.

          1. 4.1.1.1.1

            As I recall, you are pretty much reliably wrong about everything, Billy.

            1. 4.1.1.1.1.1

              You recall incorrectly.

  6. 3

    The addition to the Question Presented of “(iii) statutorily created an estoppel prohibiting the petitioner from again challenging the patent claims” is interesting. Presumably they will argue that this permanently deprives them of a key right to defend themselves in any Article III court.
    As previously noted, this case has limited impact since there are relatively few such IPR decisions in which the petitioner was not even accused or threatened with infringement. Something like 80% of the time the petitioner or a customer has already been actually sued.

    1. 3.1

      Under the US Supreme Court principles established and related to competitor standing, no threatening or actual infringement needs to exist; the sole focus on standing to appeal is what is the effect of the prior administrative tribunal’s adjudication on the person seeking judicial review.

      1. 3.1.1

        Under the US Supreme Court principles established and related to competitor standing, no threatening or actual infringement needs to exist; the sole focus on standing to appeal is what is the effect of the prior administrative tribunal’s adjudication on the person seeking judicial review.

        And that makes perfect sense. Congress created a right and a procedure to challenge a patent that was improvidently granted, which Congress was Constitutionally entitled to do. Congress also created a right to appeal the outcome of that challenge if one of the parties believed that the outcome was unfair or incorrect. That incorrect outcome is the “injury in fact.” Whether the proper court to hear the case is the CAFC or a district court is another question but the CAFC seems like a reasonable choice for obvious reasons.

        1. 3.1.1.1

          Maybe you should try to understand the notion that Congress cannot manufacture Article III standing through pure legislative sleight of hand.

          They cannot create a dual-mode Article III/non-Article III mechanism and make the Article III standing requirement disappear based on the first mode in which non-Article III standing suffices.

          Doing so simply eviscerates any actual Article III standing from the Constitution.

          1. 3.1.1.1.1

            legislative sleight of hand.

            There’s no “sleight of hand” here. Congress can create the administrative agency. The agency can establish tribunals. People can appeal decisions of those tribunals.

            Doing so simply eviscerates any actual Article III standing from the Constitution.

            ROTFLMAO

            Try again, Billy.

            1. 3.1.1.1.1.1

              You have to try really hard to be that off, Malcolm.

  7. 2

    First, The petition for cert. will be (unfortunately) unsuccessful because the U.S. Supreme Court in Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970), specifically rejected the Tennessee Electric “legal interest” rule. Most arguments made in the cert petition are analog to the “legal interest” rule. Second, since we are dealing with a quasi-property instructive are two important cases: ASARCO Inc. v. Kadish, 490 U.S. 605, 619 (1989) (finding an Article III controversy where petitioner challenged “a final judgment altering tangible legal rights”); and Virginia v. Hicks, 539 U.S. 113, 121 (2003) (Scalia, J.) (the standing inquiry is directed at those who invoke the court’s jurisdiction) (party has experienced an alteration of “tangible legal rights . . . that is sufficiently ‘distinct and palpable’ to confer standing under Article III) (“The Commonwealth [of Virginia] has suffered, as a consequence of the Virginia Supreme Court’s “final judgment altering tangible legal rights,” id., at 619, an actual injury in fact—inability to prosecute Hicks for trespass—that is sufficiently “distinct and palpable” to confer standing under Article III, Warth v. Seldin, 422 U. S. 490, 501 (1975).”). Third and generally speaking, an appealing party has a constitutionally sufficient “stake” in seeking further review so long as it can demonstrate that it was injured by the decision below and that further review could redress that injury. Camreta, 131 S. Ct. at 2028-2029. Both the statutory aggrieved-party rule and the Article III “injury” requirement examine the same thing: how the lower court’s judgment/administrative tribunal’s adjudication affects the appealing party. Compare the two possible grounds for establishing standing on appeal, either Deposit Guaranty, 445 U.S. at 333 (statutory rule), with Camreta, 131 S. Ct. at the 2028-2029 (injury-in fact requirement). Very instructive on a very similar procedural posture are to cases on the injury in fact requirement on appeal. They are the two seminal cases: United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 US 669 (1973) (Stewart, J. for the majority) (5:2:1; Powell, J. not participating) and Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970) (7:2) (Douglas, J.) (Brennan and White, JJ. concurring in the result but dissenting in the treatment of the standing question); Barlow v. Collins, 397 U.S. 159 (1970) (Justices Brennan and White staunchly support the injury in fact test expressed in the Majority opinion written by Douglas, J.) (9:0). Data Processing is generally acknowledged as establishing modern standing doctrine, the Supreme Court recognized competitor standing on appeal. That Court had “no doubt” that the plaintiff suffered “injury in fact, economic or otherwise” on appeal because the alleged increased competition “might entail some future loss of profits.” Cert petition should have relied on both grounds.

  8. 1

    The late Ned Heller would definitely have something to say on this subject.

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