In the Court of Appeals, CJLF appeared as amicus pointing out these problems. The nonparty problem is the subject of Federal Rule of Civil Procedure 19. The plaintiffs largely ignored the brief, just dropping one footnote about the general rule of not considering issues raised only by amici. That rule has exceptions that the plaintiffs simply ignored. Some issues must be considered whether a party raises them or not. Subject matter jurisdiction is one, and Rule 19 is another.
Today the court issued the following order:
It is ORDERED, on the court's own motion, that the parties be prepared to address at oral argument on March 25, 2013, (1) the standing of the appellees to bring this case, with particular reference to the requirement of redressability; and the (2) Federal Rule of Civil Procedure 19 and remedial issues raised in the brief of the amicus curiae Criminal Justice Legal Foundation.A prior post with links to multiple earlier posts on this case is here. CJLF's summary of argument and a link to the full brief are in this post.