The Misnomer of Appellate “Standing”

Courts sometimes suggest that would-be appellants must establish appellate standing by showing that the appealed decision injured the would-be appellant. When the appealing party cannot show this injury, these courts think that they have lost Article III jurisdiction.

But as a recent opinion from the D.C. Circuit’s Judge Pillard explained, that’s not quite right. Judge Pillard concurred in the D.C. Circuit’s refusal to reconsider the panel decision in Lewis v. Becerra. And Judge Pillard used that opinion to address the panel’s discussion of standing.

The panel had said that “any appellant must invoke and establish the jurisdiction of an appellate court at the outset of any appeal.” (I mentioned the panel’s decision in August’s roundup.) Judge Pillard understood the panel’s discussion to mean that appellants must (1) establish Article III standing when they first file in the district court and (2) satisfy the requirements of appellate jurisdiction.

But the panel’s discussion did not “mean that appellants must re-establish standing as of the time an appeal is commenced.” If the panel meant to say the latter, it would have “impose[d] a new requirement contrary to decades of established precedent.”

Judge Pillard is correct. As I said in a recent article—and as Ryan Scott has explained more fully—Article III does not require that litigants re-establish standing at every level of the federal courts. A party must establish Article III’s case-or-controversy requirements, including standing, to invoke the federal judicial power. That power is the power of the judicial branch, which Congress has separated into three levels of Article III courts. As a case moves between those levels, it remains in the judicial branch. So an appeal does not involve the beginning of a new case. It instead marks the movement of a single case from one part of the judicial branch to another.

Issues of appellate standing can arise when an appeal is a litigant’s first opportunity to show standing, such as review of an administrative decision or when a third party tries to appeal a decision that no party wants to challenge. But in your average appeal from a district court decision, in which standing was firmly established in the district court, discussions of appellate standing are unnecessary.

What if a would-be appellant is not aggrieved by the district court’s judgment? The question almost answers itself: a party who is not aggrieved cannot obtain any relief on appeal. But it does no good to speak of that in terms of “standing” (or other jurisdictional terms such as “mootness”). It’s enough for an appellate court to simply say that there is no reason to change the district court’s judgment and affirm. Injecting Article III jurisdiction into the matter only complicates things.

Lewis v. Becerra, 2025 WL 37164 (D.C. Cir. Jan. 7, 2025), available at the D.C. Circuit and Westlaw