The U.S. Court of Appeals for the Second Circuit has unanimously dismissed a lawsuit by Do No Harm against Pfizer Corporation, alleging that Pfizer operates a discriminatory scholarship program. While all three judges on the panel agreed that the case should be dismissed for lack of standing, they disagreed on why. In particular, I disagree on whether an association seeking to establish Article III standing based on the alleged harm suffered by an individual member must identify that member by name when seeking a preliminary injunction.
Judge Robinson wrote the majority opinion Do no harm against Pfizer, and was joined by Judge Jacobs. His opinion begins:
Defendant-Appellant Pfizer Inc. (“Pfizer”) sponsors a groundbreaking scholarship program (the “Scholarship”) that seeks to “advance early-career students and colleagues of Black/African American, Latino, Hispanic and Native American”. J. App’x 45. Do No Harm, a national membership organization, has filed a lawsuit against Pfizer on behalf of its members, alleging that Pfizer unlawfully excludes white and Asian-American applicants from the Fellowship in violation of federal laws and state.
When Do No Harm filed for a preliminary injunction, the district court dismissed the lawsuit for lack of subject matter jurisdiction. Do no harm against Pfizer Inc., 646 F.Supp. 3d 490, 517–18 (SDNY 2022). Specifically, the district court concluded that Do No Harm was invalid under Article III because, among other reasons, it failed to identify an individual injured member by name. ID. at 504–05.
The critical issues in this appeal are (1) whether, for purposes of determining the validity of Article III under the summary judgment standard applicable to a motion for preliminary injunction, Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011), an association claiming injuries to individual members must name at least one injured member to succeed; and (2) if, if a plaintiff fails to demonstrate standing under Article III in the context of a motion for a preliminary injunction, the district court must dismiss his 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 has alleged sufficient facts to demonstrate standing under the least onerous standard applicable at the trial 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 an individual member harmed by Pfizer’s alleged discrimination, and that the district court correctly dismissed Do No Harm’s claims No Harm after coming to that conclusion.
According to Judge Robinson, the conclusion that an association must identify at least one aggrieved 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 vs. Earth Island Institute) rejecting the associative position on the basis of the statistical probability of damage.
From the opinion:
A naming requirement makes sense as an element of associative position. An association that presupposes its position on the harm caused to its members must demonstrate that such members have suffered harm that is factual and detailed and actual or imminent, and not conjectural or hypothetical. Lujan504 US out of 560. In this case, proof is needed that members are ready and able to apply to the contested program, but for its allegedly discriminatory criteria. Gratz, 539 US at 262. Although a name alone is not sufficient to confer standing, disclosure to the court of the true names of the aggrieved members is relevant to standing because it demonstrates that the identified members are truly ready and able to apply, and are not simply allowing the organization to bring a hypothetical legal challenge. A member’s name doesn’t just check a box; is a demonstration of the sincerity of the member’s interest in applying for a scholarship. These are the quintessential Article III concerns. . . .
Additionally, a naming requirement arises from the logic behind the associative position. We permit an association to sue on behalf of its members only when such individuals “would otherwise have the right to sue in their own right.” Hunting, 432 US of 343. Although procedures exist to allow parties to proceed anonymously before the public when certain conditions are met, . . . we do not allow parties to remain anonymous to the court. . . . Although case law requiring plaintiffs to identify themselves before the court is typically based 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 establish the own position on members’ anonymous statements when we would not allow such members, as individual parties, to proceed anonymously before the court in their own right.
Judge Wesley wrote separately, concurring in part and concurring in the judgment. Although he agrees that Do No Harm is not legitimized, he does not agree that the reason is the anonymity of the affected members of the association. His separate opinion of him begins:
The same day it filed this case, Do No Harm chose to seek an “extraordinary” remedy. Winter vs. Nat. Res. definitely Council, Inc., 555 US 7, 24 (2008). He asked the district court to freeze Pfizer’s Breakthrough Fellowship program – and reconfigure the Fellowship selection process – through a preliminary injunction. Do No Harm did so knowing that it faced the burden of proving its connection to the alleged harm, that it lacked developed factual documentation, and that its members who alleged harm were using pseudonyms. He also knew that none of his members had applied for the Fellowship.
I agree with the majority that Do No Harm is invalid under Article III. I fully support two important aspects of the majority’s standing framework: (1) once a preliminary injunction was filed, Do No Harm had to demonstrate standing under a summary judgment standard, see Cacchillo c. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011); and (2) when Do No Harm failed to meet its growing burden, the appropriate action was to dismiss the case.
But I disagree with the majority about why Do No Harm lacks credibility. In my opinion, Members A and B did not demonstrate imminent bias resulting from the Fellowship selection process. As our records require, neither member has provided sufficient evidence to demonstrate that they are “ready” to apply for the Fellowship. This is the fundamental way we analyze position; it is enough to close this case. The majority shares this analysis and instead argues that to check the permanent box, an organizational actor asserting harm suffered by some of its members must also provide the actual names of those members. We do not have the basis to impose this new constitutional rule.
I agree with the sentence that affirms the dismissal, but I cannot agree with it in full because the majority pronounces an unfounded “real name” test for associative legitimacy. This is an unfortunate ruling for organizations around the world.