Cite as 888 F.3d 418 (9th Cir. 2018)
would be improper to expand this narrow exception to the actual injury requirement of Article III.
2. There is no textual support in either the habeas corpus statute or Rule 17 for animal next friends.
Neither of the two existing grounds for next-friend standing allow animal next-friend standing. First, a writ for habeas corpus “shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.” 28 U.S.C. § 2242 (emphasis added). Therefore, textually, only a natural person can have a petition filed on her behalf. Further, any argument that animals are akin to “artificial persons” such as corporations, which are allowed to sue, see e.g., Cetacean, 386 F.3d at 1176 (concluding that animals are no different from various “artificial persons” such as ships or corporations), makes no sense in the context of 28 U.S.C. § 2242. Corporations cannot be imprisoned and, thus, there is no grounds to conclude “person” in 28 U.S.C. § 2242 could include anything other than natural persons.
Second, the Federal Rules only authorize next friend suits on behalf of “a minor or an incompetent person.” Fed. R. Civ. P 17(c) (emphasis added). Per the text, this can only apply to human persons, not any “minor” or “incompetent” corporations or animals. Importantly, the historical background of Rule 17(c) limits the use of next friends to only human persons. Rule 17(c) incorporated Rule 70 of the Federal Equity Rules into the Federal Rules of Civil Procedure. Fed. R. Civ. P. 17(c), Note to Subdivision (c). Rule 70 specifically provided, “All infants and other persons so incapable may sue by their guardians, if any, or by their prochei ami [next friend].” Fed. Equity R. 70. Finally, the provisions for corporate capacity are articulated in Rule 17(b). Fed. R. Civ. P. 17(b). This separate enumeration of rules for non-human entities, Rule 17(b), is a clear textual indication that the use of the term “person” in Rule 17(c) does not include non-human entities, such as corporations or animals.
3. Allowing next-friend standing for animals would violate the public policy behind next-friend standing.
In addition to its historical limits, next-friend standing is narrowly tailored in light of the public policy concerns associated with expanding the doctrine. Next-friend standing “is by no means granted automatically to whomever seeks to pursue an action on behalf of another.” Whitmore, 495 U.S. at 163, 110 S.Ct. 1717. “Indeed, if there were no restriction on ‘next friend’ standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of ‘next friend.’ ” Id. at 164, 110 S.Ct. 1717. The specific requirements to become a next friend are intended to keep “intruders or uninvited meddlers, styling themselves next friends” out of the courts. Id. at 164, 110 S.Ct. 1717 (quoting Houston, 273 F. at 916). Moreover, as Chief Justice Rehnquist (writing as the sole justice for the Supreme Court on a stay of execution) similarly noted: “however worthy and high minded the motives of ‘next friends’ may be, they inevitably run the risk of making the actual defendant a pawn to be manipulated on a chessboard larger than his own case.” Lenhard v. Wolff, 443 U.S. 1306, 1312, 100 S.Ct. 3, 61 L.Ed.2d 885 (1979).
meet the Article III standing “case or controversy” requirement. Because it would lack the pre-constitutional historical use like habeas actions or actions on behalf of minors or incompetent persons, I have grave doubts this would succeed.
