3.2 Ripeness | Federal Practice Manual for Legal Aid Attorneys

Updated 2012 by Jeffrey S. Gutman

The doctrine of standing determines who may properly sue in federal court while the doctrines of ripeness and mootness deal with when such a suit is appropriate. Ripeness doctrine intersects with several related doctrines. In cases involving a challenge to government action, ripeness is closely related to exhaustion of administrative remedies and the Administrative Procedure Act requirement of a final agency action. In these and other contexts, aspects of the "injury in fact" prong of standing analysis overlap with the ripeness inquiry. Both essentially turn on whether the plaintiff’s injury, which is threatened but has not yet occurred, is sufficiently likely, concrete, and imminent to be regarded as a “case or controversy.1 As a result, such cases may be decided either on standing or ripeness grounds.2 The underlying concern is whether the potential injury is too speculative, thereby offering the court an inadequate factual record for review and raising the possibility that the court would, in essence, be doing nothing more than issuing an advisory opinion.3 So understood, it is easy to explain why many ripeness cases deal with pre-enforcement review of civil or criminal statutes or regulations.4

Ripeness doctrine involves both constitutional and prudential limitations.5 The Second Circuit explained the distinction as follows:

Constitutional ripeness is a doctrine that, like standing, is a limitation on the power of the judiciary. It prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it. But when a court declares that a case is not prudentially ripe, it means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay. It does not mean that the case is not a real or concrete dispute affecting cognizable current concerns of the parties within the meaning of Article III. . . . But that, and its degree, is just one - albeit important - factor the court must consider. Prudential ripeness is, then, a tool that courts may use to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may require premature examination of, especially, constitutional issues that time may make easier or less controversial.6

In general, the Supreme Court has held that ripeness requires a two-part inquiry. First, in cases involving pre-enforcement review of agency regulations, the Court initially employed a presumption in favor of review which would be overcome by clear and convincing legislative intent to preclude it.7 Second, in the absence of such preclusion and in cases that do not involve challenges to government action, ripeness turns on two considerations: the fitness of the issues for determination and the hardship to the parties if the court withholds review.8 The Second Circuit has held that each consideration is relevant to both the constitutional and prudential aspects of ripeness.9 In contrast, the First Circuit has held that the first consideration is grounded in constitutional and prudential limitations, while the second is solely prudential in nature.10 There is support for the notion that the factors should be considered on a sliding scale, a strong showing with respect to one can compensate for a weak showing on the other.11

The Supreme Court’s most recent case on ripeness, National Park Hospitality Association v. Department of the Interior, illustrates an application of both inquiries.12 In that case, a trade association representing concessioners in national parks challenged a federal regulation announcing the Department’s view that national park concession contracts were not subject to the Contract Disputes Act. The Court found the claim unripe. First, it held that the Department’s legal position on the applicability of the Contract Disputes Act did not impose any duties or obligations on the concessioners, cause any change in their behavior or even prohibit them from resorting to the Contract Disputes Act.13 The uncertainty over the applicability of the Contract Disputes Act, which affected the concessioners' willingness to bid on contracts, was not sufficient hardship.14 Second, the Court held that, although the issue was purely a legal one, the applicability of the Contract Disputes Act may depend on the type of contract at issue, suggesting that review should wait until there was a concrete dispute over a specific contract.15

3.2.A. Fitness of Record for Review

If the issue presented involves purely a question of law or a concrete factual context that would not be enhanced by further factual development, there is a greater chance of finding the claim to be ripe.16 In contrast, ripeness is less likely when the factual record does not permit necessary interest balancing or a necessary assessment of the effect of the challenged law on the plaintiff’s conduct. For example, in Socialist Labor Party v. Gilligan, the Court found unripe a challenge to a law alleged to have made it more difficult to place the name of a candidate on the ballot for election.17 The Court noted that the record was “extraordinarily skimpy” and offered insufficient evidence of the effect of the law on plaintiff’s efforts.18 In these cases, it is wise to develop in advance of filing as detailed a factual record as possible so that declarations can be offered in response to a motion to dismiss on ripeness grounds.

3.2.B. Hardship from Denying Review

In general, the greater the potential hardship from denying review, the greater the chance the case is ripe. Significant hardship is often found in cases in which the plaintiff faces a decision whether to comply with a statute or regulation at significant financial cost or not to comply and face potential criminal or civil penalties.19 In such cases, the plaintiff need not wait until a prosecution for challenging the law as a defense. The Court has found there to be hardship warranting review where a plaintiff is faced with foregoing arguably constitutional conduct or facing prosecution.20 The question in these pre-enforcement review cases generally turns on the degree of certainty that the affected party intends to act imminently to violate a challenged law and the certainty of prosecution if it does.21 The certainty of enforcement is informed by whether prosecuting authorities have warned of enforcement, disclaimed enforcement or have a history of enforcement. Consequently, in cases raising potential ripeness issues, an advocate is advised to detail the potential costs of compliance and non-compliance and the historical record of enforcement.

3.2.C. Final Considerations

Two more recent developments in the law of ripeness may be of particular interest to legal services attorneys. First, the Court made it somewhat more difficult to challenge government benefit rules prior to application for those benefits. In Reno v. Catholic Social Services, the Court distinguished between rules that regulate behavior and rules that govern the potential receipt of benefits, holding that challenges to benefit rules are generally not ripe until the agency receives and denies the application, even though those rules may have deterred applications.22 Second, in Thunder Basin Coal Company v. Reich, the Court held that Congress impliedly precludes pre-enforcement review of rules when it provides for some other means of review in the relevant statute.23

Updated 2012 by Jeffrey S. Gutman

1. Bova v. City of Medford, 564 F.3d 1093, 1095 (9th Cir. 2009); Airline Professionals Association of the Brotherhood of Teamsters v. Airborne, 332 F.3d 983, 987 (6th Cir. 2003). The Court has held that "[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agricultural Products Company, 473 U.S. 568, 580-81 (1985) (internal quotation marks omitted)).
2. See, e.g., MedImmune, Incorporated v. Genentech, Incorporated, 549 U.S. 118, 127 n. 8 (2007); O’Shea v. Littleton, 414 U.S. 488 (1974) (decided on standing grounds).
3. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967) (ripeness doctrine is intended to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.”).
4. The Declaratory Judgment Act, 28 U.S.C. § 2201, was intended as a vehicle to allow plaintiffs to determine whether an intended course of conduct was legally permissible without either violating the law and potentially suffering the consequences or forgoing the conduct that was in fact permissible. Nonetheless, the Act does not alter the constitutionally required ripeness doctrine. See Calderon v. Ashmus, 523 U.S. 740 (1998); Aetna Life Insurance Company v. Haworth, 300 U.S. 227 (1937). At the same time, some pre-enforcement review cases are analyzed in terms of standing, rather than ripeness. See, e.g., Ord v. District of Columbia, 587 F.3d 1136 (D.C. 2009).
5. Reno v. Catholic Social Services, Incorporated, 509 U.S. 45, 58 n.18 (1993).
6. Simmonds v. Immigration and Naturalization Service, 326 F.3d 351, 357 (2d Cir. 2003).
7. Abbott Laboratories, 387 U.S. at 142. That approach was modified in Thunder Basin Coal Company v. Reich, 510 U.S. 200 (1994) in which the Court found implied intent to preclude pre-enforcement review in a statute's provision for administrative review of adverse agency action.
8. Abbott Laboratories, 387 U.S. at 149; Devia v. Nuclear Regulatory Commission, 492 F.3d 421, 423-25 (D.C. Cir. 2007). For a case in which the Court applied these considerations and found various challenges to a state statute dealing with agricultural workers to be either ripe or unripe, see Babbitt v. United Farm Workers National Union, 442 U.S. 289 (1979).
9. Simmonds, 326 F.3d at 359. See also New York Civil Liberties Union v. Grandeau, 528 F.3d 122 (2d Cir. 2008) (Sotomayor, J.) (finding constitutionally ripe claim prudentially unripe for review).
10. McInnis-Misenor v. Maine Medical Center, 319 F.3d 63, 70 (1st Cir. 2003) (both prongs must be satisfied). The D.C. Circuit takes a slightly different approach. If there are no institutional interests favoring postponement of review, the party seeking immediate review need not show hardship. AT&T. v. Federal Communication Commission, 349 F.3d 692, 299 (D.C. Cir. 2003).
11. McInnis-Misenor, 319 F.3d at 70.
12. National Park Hospitality Association. v. Department of the Interior, 538 U.S. 803 (2003).
13. Id. at 809-10.
14. Id. at 811.
15. Id. at 812.
16. Compare Ruckleshaus v. Monsanto, 467 U.S. 986 (1984) (takings claim not ripe because of insufficient factual development) with Thomas v. Union Carbide Agricultural Products Company, 473 U.S. 568 (1985) (claim that Article III prohibited Congress from selecting binding arbitration as a means for resolving disputes in the Federal Insecticide, Fungicide, and Rodenticide Act's registration scheme was ripe because it was purely legal). See also National Association of Home Builders v. U.S. Army Corps of Engineers, 417 F.3d 1272, 1281-82 (D.C. Cir. 2005) (claim that agency action was arbitrary and capricious presented issues of law that were presumptively reviewable); Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431 (9th Cir. 1996) (challenge to Cuban travel ban was ripe even though plaintiffs had not applied for available exemptions because it could firmly be predicted that such applications would be denied).
17. Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972).
18. Id. at 587-88.
19. Compare Abbott Laboratories, 387 U.S. at 152-53 with Toilet Goods Association v. Gardner, 387 U.S. 158, 165 (1967). See also Center. for Biological Diversity v. Kempthorne, 588 F.3d 701, 709 (9th Cir. 2009) (environmental threat is hardship to environmental organization); Kreschollek v. Southern Stevedoring Company, 78 F.3d 868 (3rd Cir. 1996) (challenge to constitutionality of workers’ compensation termination procedures is ripe prior to termination, the hardship being potentially years of lost income); Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995) (challenge by 58-year-old to state statute reducing benefits of some municipal employees when they turn 65 is ripe, the hardship being uncertainty in making future financial plans).
20. See Steffel v. Thompson, 415 U.S. 452 (1974) (pre-enforcement challenge to shopping center’s refusal to permit handbilling is ripe); U.S. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973) (challenge to Hatch Act); see also (challenge to state statute criminalizing use of certain public records was ripe when association abandoned a specific plan to use them).
21. Compare Regional Rail Reorganization Cases, 419 U.S. 102 (1974) (challenged reconveyances of rail property was not imminent, but was inevitable) with Reno v. Catholic Social Services, Incorporated, 509 U.S. 43 (1993) (speculative that a member of the plaintiff class who had not yet applied for legal immigration status would be injured by Immigration and Naturalization Service rules); Poe v. Ullman, 367 U.S. 497 (1961) (challenge to law preventing use of contraceptives was not ripe when there was only one prosecution in eighty years). See also Stormans, Incorporated v. Selecky, 586 F.3d 1109, 1122-25 (9th Cir. 2009); Rhode Island Association of Realtors, Incorporated v. Whitehouse, 199 F.3d 26 (1st Cir. 1999).
22. Reno v. Catholic Social Services, Incorporated, 509 U.S. 43 (1993).
23. Thunder Basin Coal Company. v. Reich, 510 U.S. 200 (1994); National Taxpayers Union v. Social Security Administration, 376 F.3d 239 (4th Cir. 2004); see also Shalala v. Illinois Council on Long Term Care, 529 U.S. 1 (2000).