One of the lessons I learned when clerking on the U.S. Court of Appeals for the D.C. Circuit is that it is always important to consider Article III standing when suing the federal government, even if the government does not raise standing as a defense. I can still recall an oral argument at which one of the judges effectively told a litigant they could sit down if they could not explain the basis upon which they were invoking the jurisdiction of a federal court. This is particularly important in the D.C. Circuit given its rules.
Today, in Entergy Arkansas v. FERC, Judge Randolph provides a reminder of why it is always important to brief standing. His opinion begins:
In this consolidated case, a series of Entergy companies petition for review of three Federal Energy Regulatory Commission orders. FERC had rejected tariff changes proposed by Midcontinent Independent System Operator, reasoning that the new tariff would give Entergy too much market power. Entergy urges us to find that FERC's decisions were arbitrary and capricious.
We do not reach the merits of this dispute. Entergy lacks standing. The company's opening brief failed to discuss standing, thereby forfeiting any arguments in support of this jurisdictional prerequisite. Entergy's omission of standing also ran afoul of Circuit Rule 28(a)(7). Given both the forfeiture principles inherent in Rule 28(a)(7) and our court's past practice, dismissal is the appropriate consequence. Even if we were to consider the standing arguments Entergy now belatedly advances, the company has not demonstrated the necessary concrete, imminent, and redressable injury.
