The U.S. Court of Appeals for the Second Circuit unanimously dismissed a lawsuit by the organization Do No Harm against the Pfizer Corporation, alleging the latter operates a discriminatory fellowship program. While all three judges on the panel agreed the suit should be dismissed for a lack of standing, they disagreed about why. In particular, they disagreed about whether an association that seeks to establish Article III standing based upon the alleged injury to an individual member must identify that member by name when seeking a preliminary injunction.
Judge Robinson wrote the majority opinion in Do No Harm v. Pfizer, and was joined by Judge Jacobs. Her opinion begins:
Defendant-Appellee Pfizer Inc. ("Pfizer") sponsors a Breakthrough Fellowship Program (the "Fellowship") that seeks "to advance students and early career colleagues of Black/African American, Latino/Hispanic, and Native American descent." J. App'x 45. Do No Harm, a nationwide membership organization, filed suit against Pfizer on behalf of its members, alleging that Pfizer unlawfully excludes white and Asian-American applicants from the Fellowship in violation of federal and state laws.
When Do No Harm moved for a preliminary injunction, the district court dismissed the suit for lack of subject matter jurisdiction. Do No Harm v. Pfizer Inc., 646 F. Supp. 3d 490, 517–18 (S.D.N.Y. 2022). In particular, the district court concluded that Do No Harm lacked Article III standing because, among other reasons, it failed to identify a single injured member by name. Id. at 504–05.
The decisive issues in this appeal are (1) whether, for purposes of establishing Article III standing under the summary judgment standard applicable to a motion for a preliminary injunction, Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011), an association that relies on injuries to individual members to establish its standing must name at least one injured member; and (2) whether, if a plaintiff fails to establish Article III standing in the context of a motion for a preliminary injunction, the district court must dismiss their claims without prejudice for lack of standing, or whether the court should simply deny the preliminary injunction and allow the case to proceed in the ordinary course if the plaintiff alleged sufficient facts to establish standing under the less onerous standard applicable at the pleading stage.
We conclude that the district court did not err in determining that Do No Harm lacked Article III standing because it did not identify by name a single member injured by Pfizer's alleged discrimination, and that the district court properly dismissed Do No Harm's claims after reaching that conclusion.
According to Judge Robinson, the conclusion that an association must identify at least one injured member by name (at least at the summary judgment stage or when seeking a preliminary injunction) follows from the logic of Supreme Court precedents (such as Summers v. Earth Island Institute) rejecting associational standing based upon the statistical probability of harm.
From the opinion:
A naming requirement makes sense as an element of associational standing. An association that premises its standing on harm to its members must demonstrate that those members suffered an injury in fact that is concrete and particularized and actual or imminent, as opposed to conjectural or hypothetical. Lujan, 504 U.S. at 560. In this case, it requires proof that members are ready and able to apply to the challenged program but for its allegedly discriminatory criteria. Gratz, 539 U.S. at 262. Although a name on its own is insufficient to confer standing, disclosure to the court of harmed members' real names is relevant to standing because it shows that identified members are genuinely ready and able to apply, and are not merely enabling the organization to lodge a hypothetical legal challenge. A member's name does not merely check a box; it is a demonstration of the sincerity of the member's interest in applying for a fellowship. These are quintessential Article III standing concerns. . . .
Moreover, a naming requirement flows from the rationale underlying associational standing. We allow an association to sue on behalf of its members only when those individuals "would otherwise have standing to sue in their own right." Hunt, 432 U.S. at 343. While procedures exist to allow parties to proceed anonymously to the public when certain conditions are met, . . . we do not allow parties to remain anonymous to the court. . . . Although the caselaw requiring plaintiffs to identify themselves to the court typically turns on an analysis of federal procedural rules rather than Article III, it would nevertheless be incongruous, especially at the summary judgment stage, to allow an association to rest its standing on anonymous member declarations when we would not allow those members, as individual parties, to proceed anonymously to the court in their own right.
Judge Wesley wrote separately, concurring in part and concurring in the judgment. While he agreed that Do No Harm lacks standing, he did not agree that the anonymity of affected members of the association is the reason why. His separate opinion begins:
The same day it filed this case, Do No Harm chose to seek an "extraordinary" remedy. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). It asked the district court to freeze Pfizer's Breakthrough Fellowship program— and reconfigure the Fellowship's selection process—through a preliminary injunction. Do No Harm did so knowing that it faced a demanding burden to prove its connection to the harm alleged, that it lacked a developed factual record, and that its members who claimed injury used pseudonyms. It also knew that none of its members had applied for the Fellowship in the first place.
I agree with the majority that Do No Harm lacks Article III standing. I fully endorse two important aspects of the majority's standing framework: (1) once it moved for a preliminary injunction, Do No Harm had to prove standing under a summary judgment standard, see Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011); and (2) when Do No Harm failed to meet its heightened standing burden, the proper action was to dismiss the case.
But I part ways with the majority as to why Do No Harm lacks standing. In my view, Members A and B did not show an imminent injury from the Fellowship's selection process. As our precedents require, neither member provided sufficient evidence to show they were "ready" to apply to the Fellowship. That is the fundamental way that we analyze standing; it suffices to end this case. The majority passes on that analysis, and instead holds that to check the standing box, an organizational plaintiff relying on injury to some of its members must also provide those members' actual names. We have no basis to impose this new constitutional rule.
I concur in the judgment affirming dismissal, but I cannot concur in full because the majority pronounces an unfounded "real name" test for associational standing. That is an unfortunate ruling for organizations everywhere.
UPDATE: It is worth noting that the majority distinguishes Speech First v. Shrum (which Eugene blogged about here), on the grounds that Speech First concerned what was necessary for standing at the pleading stage.
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