Recently, I wrote about Oxfam America’s new lawsuit against the Securities and Exchange Commission for failing to adopt a final rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  I heard from one reader who pointed out that Oxfam America must establish standing.  This is a point that I mentioned when Oxfam America filed its first suit against the SEC:

In general, constitutional standing requires that a plaintiff show injury, causation and redressability.  With respect to prudential standing, the APA requires that the plaintiff be within the “zone of interests” of the statute claimed to have been violated (i.e., Section 1504 of the Dodd-Frank Act).  5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review thereof.”)

Constitutional standing is required because the U.S. Constitution’s limits the jurisdiction of the federal courts to cases and controversies.  (Art. III, § 2).  See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).  When establishing constitutional standing, Oxfam America must either establish injury to itself as an organization or “representational” or “associational” standing.  An association only has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests it seeks to protect are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.  Fund Democracy, LLC v. SEC, 278 F. 3d 21, 25 (D.C. Cir. 2002).

The “zone of interests” test for prudential standing requires an analysis of whom and what interests Congress intended to protect when it enacted Section 1504.

Some readers might note that Section 702 of the Administrative Procedure Act (quoted above) refers only to “agency action”.  Oxfam America is challenging the SEC’s failure to act.  Is this a problem?  Perhaps not, Section 551(13) of the APA (5 U.S.C. § 551(13)) defines “agency action” to include “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”  However, the meaning of “failure to act” in the statute has engendered its own precedent.  Norton v. So. Utah Wilderness Alliance, 542 U.S. 55 (2004).