Ripeness Doctrine: Overview

Article III, Section 2, Clause 1:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Like the other justiciability doctrines,1 the ripeness doctrine defines the limits of a federal court's jurisdiction to adjudicate certain disputes.2 Ripeness concerns “the timing of judicial intervention,” and prevents federal courts “from entangling themselves in abstract disagreements” by adjudicating disputes too early.3 ( “[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” ) (quoting McKart v. United States, 395 U.S. 185, 193 (1969)); Dalton v. Specter, 511 U.S. 462, 469 (1994) (holding that, as a general matter, only “final agency action[s]” are subject to judicial review under the Administrative Procedure Act) (quoting 5 U.S.C. § 704). Any party to the litigation—as well as the judge—may challenge a case as unripe at any stage in the litigation, including for the first time on appeal.4 ( “[R]ipeness [is a] jurisdictional issue[] that may be raised at any time, even for the first time on appeal.” ); Utah v. U.S. Dep't of Interior, 210 F.3d 1193, 1196 n.1 (10th Cir. 2000) (similar). See also Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) ( “[T]he question of ripeness may be considered on a court’s own motion.” ). To determine whether a particular dispute is ripe for judicial resolution, courts employ the Abbott Laboratories test, named after the Supreme Court's decision in Abbott Laboratories v. Gardner.5 . The Abbott Laboratories standard requires courts to evaluate two factors to determine whether a dispute is ripe: “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration” until a later time.6 A claim may be unripe if it is based upon future events that may not occur as predicted or at all.7 If waiting to decide a case would put the court in a better position to resolve the dispute, such as when further factual development would help the court adjudicate the case, the case may be unripe and therefore nonjusticiable.8 As discussed below, ripeness issues arise in a wide variety of contexts, including challenges to administrative agencies' actions or policies and pre-enforcement challenges to criminal statutes.9

The ripeness doctrine stems partly from Article III's constitutional command that the federal courts only hear “Cases” and “Controversies.” 10 To the extent that ripeness derives from Article III of the Constitution, it overlaps with other justiciability doctrines that are also derived from the “Case” or “Controversy” requirement, especially the standing doctrine.11 ( “The doctrines of mootness, ripeness, and political question all originate in Article III's 'case' or 'controversy' language, no less than standing does.” ). See generally ArtIII.S2.C1.2.5.1 Standing Requirement: Overview through ArtIII.S2.C1.2.5.3.4 Standing Requirement: Prudential Standing (analyzing the various justiciability doctrines). Thus, in recent years, the Supreme Court has increasingly recognized that because standing and ripeness are based on the same constitutional limitations on the federal courts' jurisdiction, they frequently “boil down to the same question.” 12 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014) (similar); Trump, No. 20-366, slip op. at 7 (dismissing case on both standing and ripeness grounds). In particular, the Supreme Court has observed that the standing doctrine's temporal inquiry into whether the plaintiff has suffered an imminent injury overlaps substantially with the ripeness doctrine's inquiry into whether withholding judicial consideration of a dispute would cause “the parties a sufficient 'hardship.'” 13

In addition to its constitutional dimension, the ripeness doctrine is also partly based on prudential considerations that do not directly derive from the Constitution.14 The Supreme Court has recognized that, even when Article III of the U.S. Constitution does not forbid a court from deciding an issue, it may nonetheless be appropriate for courts to postpone adjudicating that issue because subsequent events may make it easier or unnecessary to resolve that dispute.15 Thus, to determine whether a case is ripe for adjudication, the court must assess not only whether the case is presently justiciable within the meaning of Article III's case or controversy requirement, but also whether it would be prudent to decide the case at the present time.16 The Supreme Court, however, has not squarely articulated which aspects of the ripeness doctrine are mandated by the Constitution and which are instead based solely on prudential concerns.17 (observing that “[t]he Supreme Court itself has not been consistent” with respect to the constitutional and prudential aspects of ripeness). Moreover, as explained in greater detail below, the Supreme Court has recently questioned the continuing vitality of the ripeness doctrine's prudential dimension.18 As a result, presently it is unclear whether—and, if so, when—federal courts should dismiss a case as prudentially unripe.

Footnotes

1

See generally ArtIII.S1.1.1.1 Judicial Vesting Clause: Doctrine and Practice through ArtIII.S1.1.1.2.4.2 Retroactivity of Supreme Court Decisions.

2

See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 670 n.2 (2010) ( “Ripeness reflects constitutional considerations that implicate 'Article III limitations on judicial power,' as well as 'prudential reasons for refusing to exercise jurisdiction.'” ) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)).

3

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). See also Renne v. Geary, 501 U.S. 312, 320 (1991) ( “Justiciability concerns not only the standing of litigants to assert particular claims, but also the appropriate timing of judicial intervention.” ); Anderson v. Green, 513 U.S. 557, 559 (1995) (per curiam) ( “[R]ipeness is peculiarly a question of timing.” ) (quoting Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974)); Buckley v. Valeo, 424 U.S. 1, 114 (1976) (per curiam) (same). Statutory and other non-constitutional restrictions may limit the appropriate timing of judicial intervention as well. See, e.g., Woodford v. Ngo, 548 U.S. 81, 88–89 (2006) ( “[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” ) (quoting McKart v. United States, 395 U.S. 185, 193 (1969)); Dalton v. Specter, 511 U.S. 462, 469 (1994) (holding that, as a general matter, only “final agency action[s]” are subject to judicial review under the Administrative Procedure Act) (quoting 5 U.S.C. § 704).

4

E.g., DBSI/TRI IV Ltd. P'ship v. United States, 465 F.3d 1031, 1038 (9th Cir. 2006) ( “[R]ipeness [is a] jurisdictional issue[] that may be raised at any time, even for the first time on appeal.” ); Utah v. U.S. Dep't of Interior, 210 F.3d 1193, 1196 n.1 (10th Cir. 2000) (similar). See also Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) ( “[T]he question of ripeness may be considered on a court’s own motion.” ).

5

387 U.S. 136.

6

Nat'l Park Hosp. Ass'n, 538 U.S. at 808. See also, e.g., Stolt-Nielsen S.A., 559 U.S. at 670 n.2 (same); Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998) (same); Texas v. United States, 523 U.S. 296, 300–01 (1998); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 201 (1983) (same).

7

See Texas, 523 U.S. at 300 ( “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.’” ) (quoting Thomas, 473 U.S. at 580–81). See also Trump v. New York, No. 20-366, slip op. at 4 (U.S. Dec. 18, 2020) (applying this rule).

8

See, e.g., Nat'l Park Hosp. Ass'n, 538 U.S. at 812 ( “[F]urther factual development would ‘significantly advance our ability to deal with the legal issues presented.’” ) (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 82 (1978)); Ohio Forestry Ass’n, 523 U.S. at 737 (same); Webster v. Reprod. Health Servs., 492 U.S. 490, 506 (1989) ( “It will be time enough for federal courts to address the meaning of the preamble [to the challenged statute] should it be applied to restrict the activities of appellees in some concrete way.” ).

9

See ArtIII.S2.C1.2.6.3.4.1 Contexts in Which the Supreme Court Has Frequently Encountered Ripeness Issues: Overview through ArtIII.S2.C1.2.6.3.4.4 Contexts in Which the Supreme Court Has Frequently Encountered Ripeness Issues: Takings Cases.

10

See U.S. Const. art. III, § 2, cl. 1. See also, e.g., Trump, No. 20-366, slip op. at 3-4 (explaining that the ripeness doctrine “originat[es] in the case-or-controversy requirement of Article III” ); Stolt-Nielsen S.A., 559 U.S. at 670 n.2 ( “Ripeness reflects constitutional considerations that implicate 'Article III limitations on judicial power.'” ) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993)); Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 138 (1974) ( “Issues of ripeness involve, at least in part, the existence of a live 'Case or Controversy.'” ).

11

See Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975) ( “The standing question thus bears close affinity to questions of ripeness—whether the harm asserted has matured sufficiently to warrant judicial intervention.” ); Trump, No. 20-366, slip op. at 3-4 (describing standing and ripeness as “related doctrines” ); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) ( “The doctrines of mootness, ripeness, and political question all originate in Article III's 'case' or 'controversy' language, no less than standing does.” ). See generally ArtIII.S2.C1.2.5.1 Standing Requirement: Overview through ArtIII.S2.C1.2.5.3.4 Standing Requirement: Prudential Standing (analyzing the various justiciability doctrines).

12

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014) (similar); Trump, No. 20-366, slip op. at 7 (dismissing case on both standing and ripeness grounds).

13

MedImmune, 549 U.S. at 128 n.8 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).See ArtIII.S2.C1.2.5.1 Standing Requirement: Overview (discussing the standing doctrine’s imminent injury requirement); Lujan, 504 U.S. at 560 (applying that requirement).

14

Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 82 (1978). See also, e.g., Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 808 (2003) ( “The ripeness doctrine is 'drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.'” ) (quoting Reno, 509 U.S. at 57 n.18).

15

See, e.g., Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733 n.7 (1997) ( “The agency does not question that Suitum properly presents a genuine ‘case or controversy’ sufficient to satisfy Article III, but maintains only that Suitum’s action fails to satisfy our prudential ripeness requirements.” ); Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 735 (1998) ( “The ripeness doctrine reflects a judgment that the disadvantages of premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of . . . postimplementation litigation.” ).

16

See, e.g., Duke Power, 438 U.S. at 81 (concluding that the case presented a ripe “Case or Controversy” as a constitutional matter, and that “[t]he prudential considerations embodied in the ripeness doctrine also argue[d] strongly for a prompt resolution of the claims presented” ).

17

See, e.g., Armstrong World Indus., Inc. ex rel. Wolfson v. Adams, 961 F.2d 405, 411 n.12 (3d Cir. 1992) (observing that “[t]he Supreme Court itself has not been consistent” with respect to the constitutional and prudential aspects of ripeness).

18

ArtIII.S2.C1.2.5.1 Standing Requirement: Overview through ArtIII.S2.C1.2.5.3.4 Standing Requirement: Prudential Standing.