Cite as 888 F.3d 418 (9th Cir. 2018)
tion,” and concludes that “Naruto’s Article III standing under Cetacean is not dependent on PETA’s sufficiency as a guardian or ‘next friend.’ ” Maj. Op. at 422, 423. I admit that the basis for the Majority’s conclusion is primarily grounded in its reading of Cetacean, in which a “self-appointed attorney” brought a suit on behalf of the world’s cetaceans. 386 F.3d at 1171–72. Cetacean concluded that animals may have an Article III injury—but, notably, did not examine whether next-friend standing was present. Given this analysis, the Majority concludes that, because the Cetacean panel allowed the case to go forward, it implicitly held that next-friend standing is nonjurisdictional. Maj. Op. at 423.
The Majority’s conclusion on the first point—animals can never have next-friend standing—is correct[1] and should end our inquiry. See infra. On the other hand, the second conclusion (that next-friend standing is nonjurisdictional) is not supportable. This conclusion is incorrect and the consequences associated with the Majority’s holding are avoidable, if we follow precedent.
III. The Majority’s conclusion that next-friend standing is nonjurisdictional is legally unsupportable.
- A. The Majority’s second conclusion violates Supreme Court and Ninth Circuit Precedent.
Both the United States Supreme Court and our Circuit have held next-friend standing is jurisdictional. In Whitmore, the petitioner brought suit on behalf of another death-row prisoner, Ronald Simmons. 495 U.S. at 152–54, 110 S.Ct. 1717. Whitmore asserted both third-party standing and next-friend standing to justify the suit. Id. at 153–54, 110 S.Ct. 1717. The Supreme Court held that Whitmore failed both standing tests and, ultimately held that “Jonas Whitmore lacks standing to proceed in this Court, and the writ of certiorari is dismissed for want of jurisdiction.” Id. at 166, 110 S.Ct. 1717 (emphasis added). The Supreme Court also clearly held that any purported next friend bears the burden “clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.” Id. at 164, 110 S.Ct. 1717 (emphasis added) (citing Smith ex rel. Mo. Pub. Def. Comm’n v. Armontrout, 812 F.2d 1050, 1053 (8th Cir. 1987); Groseclose ex rel. Harries v. Dutton, 594 F.Supp. 949, 952 (M.D. Tenn. 1984) ); see also Demosthenes v. Baal, 495 U.S. 731, 737, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990) (holding that “federal courts must make certain that an adequate basis exists for the exercise of federal power” and dismissing the suit for failure to demonstrate next-friend standing).
We have also held that next-friend standing is jurisdictional. In Coalition, a coalition of clergy, lawyers, and professors brought suit on behalf of the prisoners detained in Guantanamo, Cuba. 310 F.3d at 1156. The district court held that the Coalition did not have standing and, even if they did, no federal district court—including itself—could have jurisdiction over such a suit. Id. On appeal, we agreed that the Coalition could not establish next-friend standing. Id. However, we noted that “[t]he question before us is not the scope of the rights and privileges of the detainees themselves under either our Constitution or other international laws or agreements.” Id. at 1164. Rather, we “consider[ed] only the rights of the members of the Coalition to assert standing on behalf of the detainees and to seek habeas review of their detention.” Id. at 1165 (emphasis added). We then dismissed the suit and
- ↑ As such, I concur in the Majority’s opinion to that extent.
