Interagency Litigation and Article III

Abstract

People generally have better things to do than sue themselves. The same is true for corporations, organizations, and — one would think — governments. In fact, however, litigation between federal agencies is surprisingly common, and often arises in interesting contexts where a lot is at stake. But as the D.C. Circuit put it: “[t]he justiciability of such interagency disputes...is a complex and sometimes controversial question that frequently must be addressed by the courts.”

Like all litigation, intragovernmental litigation must satisfy the traditional threshold standards of Article III, including standing and adverse parties. Yet the federal government is no ordinary party, and the application of these general principles to a sovereign is no easy matter. By looking at 200 years of cases, and keeping in mind the Supreme Court’s pronouncements in similar contexts, I propose that a judicially cognizable “case” may not be premised on dueling notions of the public good. Courts have generally been reluctant to hear disputes when both the plaintiff and defendant agency appear asserting the sovereign interests of the United States; such disputes are adverse in fiction but not in fact.