This is the third in a series of posts on the pending Fifth Circuit case about a magistrate judge’s power to deny statutory applications to collect records under the Stored Communications Act in light of fears that (depending on how one interprets the Fourth Amendment) the execution of the order might violate the target’s Fourth Amendment rights. In this post I wanted to flag another reason the case is non-justiciable beyond the reasons I explained in my amicus brief: A refusal to review the case now would not cause a hardship to the party seeking to invoke the court’s jurisdiction. I regret that I didn’t spot this issue in my amicus. But I’ve done some more research on it recently, and I thought I would add it into the mix.
Here’s the context. If a legal dispute is not ripe, then a court lacks the subject matter jurisdiction to decide it. See Lopez v. City of Houston, 617 F.3d 336, 341 (5th Cir. 2010) (“Ripeness is a component of subject matter jurisdiction, because a court has no power to decide disputes that are not yet justiciable.”); Bigelow v. Michigan Dept. of Natural Resources, 970 F.2d 154, 157 (6th Cir.1992) (“Ripeness is more than a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed.”) But ripeness also has a prudential component that goes to the hardship to the parties of delaying a ruling on the merits. The party seeking to invoke jurisdiction must show a hardship that will be suffered the court does not accept jurisdiction, even if the legal issues presented by the case are purely legal. See Cent. & S.W. Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir.2000) (“This Court has held . . that even where an issue presents purely legal questions, the plaintiff must show some hardship in order to establish ripeness.”) (citing cases). The party seeking to invoke jurisdiction has the burden of proof of establishing it will suffer hardship, and if it cannot establish it the case must be dismissed. See Choice Inc. of Texas v. Greenstein,__ F.3d __, 2012 WL 3550502 (5th Cir. 2012).
The Fifth Circuit dispute is ex parte — that is, from only one side. As an ex parte proceeding, the only party represented in the litigation is the United States. Various amici are involved, to be sure. But the only party is the government. I think it’s pretty clear that the United States does not face a hardship if courts decline to rule on prospective Fourth Amendment questions when the United States applies for SCA court orders. DOJ may want a ruling in this particular case, especially from the Fifth Circuit, which is the most friendly of the circuits to law enforcement interests. But I don’t think anyone can argue that DOJ will suffer a hardship if the court declines to rule on the issue. DOJ didn’t ask for this ruling in the first place, and without it DOJ will get the order it seeks and proceed in the pending investigation. DOJ can then continue litigating the issue in the other circuits where the same question is pending. Because DOJ cannot establish a hardship, the dispute is non-justiciable under the Fifth Circuit precedents that require a showing of hardship by the party seeking to invoke the Court’s jurisdiction under the prudential prong of ripeness doctrine. See, e.g., Choice Inc. of Texas v. Greenstein, __ F.3d ___, 2012 WL 3550502 (5th Cir. 2012) (dismissing challenge by abortion clinics seeking a declaratory judgment that new state law regulating abortion licensing was unconstitutional on ground that the clinics had not satisfied burden of establishing hardship and therefore had not presented a ripe dispute).
Is there any way around this? The only way I can think of is to create a new legal standard for establishing the hardship in an ex parte case. Under existing law, the requirement is that the party seeking to invoke jurisdiction must establish hardship to it. If you need to say that this dispute is ripe, though, you need to say that the hardship inquiry is not just focused on the party seeking to invoke jurisdiction but rather applies to anyone whose interests may be at issue. In an ex parte proceeding, the thinking would go, whoever would be the other side if it were not an ex parte proceeding gets to be treated as a “party” for purposes of the hardship inquiry. Thus a non-party to the litigation becomes a party to the litigation for purposes of the test, and its hardship can count. But then how does this non-party establish the buden of proof of showing hardship? That’s tricky, because the non-party has no idea that the litigation is even occurring. So I would think you would need to reverse the burden of proof and say that hardship is presumed, as otherwise the non-party who isn’t involved isn’t in a position to establish anything.
But creating this new legal standard strikes me as an uphill battle in light of existing law. If you accept existing Fifth Circuit precedent as fixed, my sense is that DOJ’s inability to establish hardship alone establishes that this case is not ripe. And that is true independently of the other arguments I have made in my amicus concerning the inability to adjudicate the case because no facts exist.