In Do No Harm v. Pfizer, Inc., No. 23-15_(2d Cir. Mar. 6, 2024), a 2-1 panel of the Second Circuit holds that “an association must identify by name at least one injured member for purposes of establishing Article III standing under a summary judgment standard.”
“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 [its Breakthrough] Fellowship [Program] in violation of federal and state laws.” The Fellowship was an internship and scholarship program “designed “to increase minority representation at Pfizer” and “enhance [its] pipeline of diverse leaders.” Do No Harm alleged that the “Fellowship unlawfully ‘excludes white and Asian-American’ applicants,” in violation of 42 U.S.C. § 1981, Title VI of the Civil Rights Act, Section 1557 of the Affordable Care Act (the “ACA”), and the New York State and New York City Human Rights Laws.
The organizational plaintiff moved for a preliminary injunction against the Fellowship, but the district court held that “Do No Harm lacked Article III standing because, among other reasons, it failed to identify a single injured member by name.” While the plaintiff’s motion papers asserted that “Do No Harm has at least two members who are white and Asian American . . . ready and able to apply to the Pfizer Breakthrough Fellowship Program” and “at least one member who is a sophomore who will be ready and able to apply . . . next year,” plaintiff declined to identify those individuals.
The Second Circuit affirms the jurisdictional ruling. While the unanimous panel agreed there was no standing, though, the panelists divided over the rationale.
The panel majority holds that “a requirement that a plaintiff association seeking to establish standing on the basis of injuries to its members identify at least one injured member by name best aligns with Supreme Court precedent, including Summers [v. Earth Island Institute, 555 U.S. 488, 498–99 (2009)], is most consistent with the principles underlying organizational standing, and is bolstered by the conclusions of numerous other courts.”
“Summers, and the precedent upon which it relies, support the view that an association cannot just describe the characteristics of specific members with cognizable injuries; it must identify at least one by name . . . . [D]isclosure 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.”
“Plus, in order to actually apply for the Fellowship, an applicant has to disclose their name, in addition to the other listed requirements. It thus makes sense that a would-be applicant’s willingness to disclose their name―at least to the court―is an essential component of the ready-and-able showing.”
The panel majority observes in a footnote that the same naming requirement would extend to individual plaintiffs seeking to challenge the Fellowship: “[E]ven when [individual] parties proceed anonymously to the public or the opposing party, their names and other identifying information must still be disclosed to the court . . . . [W]hether viewed through the lens of constitutional injury (who is injured?) or redressability (whose name would be on a judgment favorable to the plaintiff?), the requirement of a named (to the court) plaintiff at the judgment stage is one of constitutional dimension.”
Judge Wesley, concurring in part and concurring in the judgment, supports a more limited rationale: that because the organizational plaintiff chose to escalate immediately from the pleading to the remedial phase (by filing a motion for preliminary injunction), it yoked itself to a heightened burden of proof. “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” and thus suffered no actual or imminent injuries.
But the concurring judge disagrees that the organizational members must personally be identified for Article III standing purposes. “What will be the upshot of this new rule? Adding a naming element to standing—to ensure that members are “sincere” in their claims of injury—will constrict access to the courts for organizations who seek redress of wrongs done to those members. Regardless of what organizations one joins or what causes one believes in, that is a troubling result.”
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