Research Outline

Federal Courts' Responses to the Use of Private Attorney Generals in Legal Matters


To find cases where "private attorney generals" are enlisted in litigation by both corporations and non-corporate or individual actors to protect the public interest. To locate and analyze cases in the District Courts that hear actual cases and controversies. To provide specific data on appellate review and courts' reasoning on whether private attorney generals have a stake in a legal matter sufficient to give these private attorney generals standing in the legal matter.

Early Findings

Overview of Legal Standing

  • United States federal courts can only hear legal matters over which they have jurisdiction, both in geographical scope and in they type of legal case in front of it. For a legal matter to fall within the court's jurisdiction, the matter must be one that contains a case or controversy; the courts will not provide advisory opinions on hypothetical legal situations.
  • To have standing, a plaintiff must show that he or she suffered a concrete injury in fact--or faces an imminent injury--that can be shown to be a result of a defendant's or defendants' actions that the plaintiff challenges, and the plaintiff must show that the court has the power to redress the injury through a favorable ruling. If a plaintiff can show the suit meets these requirements, he or she has standing to pursue litigation.
  • Whether a party has legal standing to sue to protect the public is the issue that courts consider when confronted with attorneys who seek to enforce the law as private attorney generals. The question is whether a plaintiff has suffered a concrete injury sufficient to give them standing.

Background on Private Attorney Generals in American Jurisprudence

  • The term "private attorney general" first appeared in a legal opinion by Judge Jerome Frank in the Second Circuit in 1943. The first time a Supreme Court opinion used the term was in 1943 when Justice Frankfurter, in a dissent, used the term to caution against a system wherein a private legal actor without a personal injury can seek to represent the public interest.
  • Legal scholar William Rubenstein has noted that this phrase has been used in three different ways. First, to describe cases in which a private attorney general is a substitute for an attorney general of the government. Second, where a private attorney general serves as a supplement to the government's attorney general. Finally, in cases where a private attorney general simulates the role of the attorney general and "acts as the advocate for a group, but solely for a group of private persons."
For purposes of this strategy, the type of private attorney general actor to be considered is that of the substitute attorney general, or the "pure private attorney general," who is a private citizen filing suit to protect the public.

Sierra Club v. Morton (1972)

  • One of the most impactful cases on the use of private attorney generals that the Supreme Court has decided, and thus important precedent for all courts, is Sierra Club v. Morton.
  • In this case, the Sierra Club--a California nonprofit corporation--sought to prevent the development of a Walt Disney Enterprises ski resort in the Mineral King Valley of Sequoia National Forest, which was approved by the Forest Service of the Department of Agriculture in 1969. The plan included a new access road that would cross the land of the Department of Interior and Department of Agriculture.
  • The Sierra Club filed a lawsuit in the United States District Court for Northern California in 1969 arguing that the development of the ski resort went against federal laws and regulations about national parks. The plaintiff claimed that the Secretary of Agriculture's decisions "exceeded his authority" and he had acted "arbitrarily and capriciously" when he approved the plan. The Sierra Club further claimed that the Secretary of the Interior did not have authority to issue the permit for a transmission line. The Sierra Club asked the District Court to rule that federal officials could not provide permits for the development.
  • The Sierra Club sued as a membership corporation and its alleged injury was to its "aesthetic, conservational and recreational interests," and argued that judicial review was appropriate under the Administrative Procedures Act. Its standing, the Club alleged, was due to its "special interest" in national parks. Although the defendants challenged plaintiffs' standing, the District Court granted a preliminary injunction on the project due to "possible excess of statutory authority" that was "substantial and serious." Although it did not use the term, the District Court effectively approved of the Sierra Club as a substitute private attorney general.
  • On appeal, the Ninth Circuit reconsidered the issue of the Sierra Club's standing and specifically took up the concept of private attorney generals. The Ninth Circuit held that private attorney generals can only be used when there is a statute wherein Congress has given a non-official person the power to file suit to prevent official action that it is unauthorized to make. The Court ruled that the Sierra Club had no such statute to rely on.
  • Ultimately, the Supreme Court confirmed the Ninth Circuit's ruling holding, in part, that the Sierra Club could not rely on the private attorney general concept to obtain standing, which required Congress to confer authority on an actor to correctly seek judicial action. As for private attorney generals who seek to represent the public interest, they can do so only if they demonstrate, first, a personal injury to themselves. A private attorney general cannot act to demand that the law be followed if he or she lacks a "concrete stake" in the matter, as opposed to traditional attorney generals who can demand that the law be followed to protect public interest.

Summary of Early Findings Relevant to the Goals

Our early findings suggest that there are different definitions of "private attorney generals," and that courts respond differently to private attorney generals based on which type they are. When a private attorney general is a substitute for an official attorney general, as was the case in Sierra Club v. Morton, they lack standing if they have no personal injury. This case continues to be strong precedent for full substitute private attorney generals. However, preliminary research within Rubenstein's article and other legal scholarship indicates that there are important differences and nuances in judicial reasoning about other types of private attorney generals that will be key to providing full, robust analysis of the topic.