On
Regarding the proof required to establish Article III standing on a motion for preliminary injunction, the Second Circuit considered whether the
After finding that the plaintiff association's refusal to name its injured members deprived it of associational standing, the Second Circuit dismissed Do No Harm's case without prejudice. By dismissing the action, rather than remanding it for further proceedings, the Second Circuit created a circuit split with the Sixth and
I. Factual and Procedural Background
In
In
II. Second Circuit's Decision
On appeal, the Second Circuit affirmed the district court's decision, holding that an organization must identify by name at least one injured member to establish Article III standing and satisfy its evidentiary burden for being granted a preliminary injunction.19 The Second Circuit further held that, where a plaintiff seeking a preliminary injunction adequately alleges standing under a motion to dismiss standard but fails to come forward with sufficient evidentiary proof to demonstrate standing under a summary judgment standard, courts should dismiss the action in its entirety, rather than allow the case to proceed in the ordinary course, for instance by allowing the plaintiff to collect evidence sufficient to establish standing under the lower standard required at the pleadings stage.20
Standing
n deciding whether Do No Harm had established standing at the preliminary injunction stage, the Second Circuit reasoned that "mere allegations as would be appropriate at the pleading stage" would not suffice, and that, instead, Do No Harm must provide evidence of "specific facts," as required to establish standing on a motion for summary judgment.21 To decide the issue, the Second Circuit invoked the
The Second Circuit held, consistent with an earlier decision by the First Circuit,29 that requiring organizations pleading associational standing to identify at least one injured member by name helps address "quintessential Article III standing concerns" by ensuring that the organization's members suffered an injury in fact that is concrete and particularized.30 In Do No Harm, the Court held that disclosure of a harmed member's real name would show that a member was "genuinely ready and able to apply" to the challenged program and demonstrate "the sincerity of the member's interest in applying" to the program.31 Further, an organization can sue on behalf of its members only when the members would otherwise have standing to sue in their own right, and while certain mechanisms allow parties to remain anonymous to the public, parties cannot remain anonymous to the court.32 It would be "incongruous, especially at the summary judgment stage," the court found, "to allow an association to rest its standing on anonymous member declarations when [the court] would not allow those members, as individual parties, to proceed anonymously to the court in their own right."33
Dismissal
Do No Harm also argued that, even if it did not present evidence sufficient to meet the standing threshold required for a preliminary injunction motion, it nonetheless established standing under the "less onerous standard" applicable at the pleading stage.34 According to Do No Harm, the district court thus erred by dismissing its claims, because Do No Harm sufficiently alleged that its members—even if anonymous—were "ready and able" to apply to an allegedly discriminatory program, as required to establish standing at the pleading stage.35
The Second Circuit disagreed and affirmed the district's court's dismissal order.36 The court noted that the "operative question" is "whether the plaintiff had standing under the standard applicable at that stage of the litigation."37 According to the Second Circuit, "the no-standing determination is just that — a determination that the plaintiff lacks standing."38 Contrary to Do No Harm's argument that dismissal would result in "fast-forward[ing] this case to another stage," the court concluded that Do No Harm's argument "would amount to reversing the case to a prior stage."39 In other words, "[w]ithout standing there is no jurisdiction. Without jurisdiction, [the court] cannot act."40
III. Conclusion
Do No Harm may assist defendants in impact litigation brought by organizations relying on anonymous individuals. In such cases in the Second Circuit, if the plaintiff organization seeks preliminary injunctive relief, the organization must identify at least one injured member by name to establish standing. Furthermore, if the organization fails to establish standing on its motion for a preliminary injunction, the action should be dismissed. This is timely, given recent, high-profile Supreme Court decisions concerning affirmative action, freedom of religion, freedom of speech, and reproductive rights, in which some plaintiffs may prefer to remain anonymous.41 The Second Circuit's approach – which requires cases to be dismissed for lack of standing – creates a split with the Sixth and
Footnotes
1. 96 F.4th 106 (2d Cir. 2024).
2. Id. at 109.
3. Id.
4.
5. Do No Harm, 96 F.4th at 114–15.
6. Id. at 108–09.
7. Id. at 122, 126 (Wesley, J., concurring).
8.
9. See id.
10. Do No Harm, 96 F.4th at 109 ("The Fellowship consists of five parts: a ten-week summer internship for rising college seniors; two years of full-time employment after graduation; a fully paid scholarship to a full-time, two-year MBA, MPH, or MS Statistics program; summer internships between the first and second years of the fellow's master's program; and, finally, a return to
11. Id. at 110.
12. Do No Harm v.
13. Do No Harm, 96 F.4th at 110.
14. Id. at 111.
15. Id.
16. Id.; see also Do No Harm, 646 F. Supp. 3d at 500, 518.
17. Do No Harm, 96 F.4th at 111–12; Do No Harm, 646 F. Supp. 3d at 505 (The district court also held that, "[e]ven if Plaintiff had identified Members A and B by name, the pleadings and evidence provided by Plaintiff do not establish that its members have suffered injury in fact, another requirement for Article III standing").
18. Do No Harm, 646 F. Supp. 3d at 517.
19. Do No Harm, 96 F.4th at 109, 113–14.
20. Id. at 109, 120–21.
21. See id. at 114–15 (quoting Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011)).
22. Summers, 555 U.S. at 498–99.
23.
24. Summers, 555 U.S. at 498.
25. Id.
26. FW/
27. FW/
28. Do No Harm, 96 F.4th at 116 (emphasis in original).
29. See Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016) (Souter, J.) ("[T]he Supreme Court has said that an affidavit provided by an association to establish standing is insufficient unless it names an injured individual" (citing Summers, 555 U.S. at 498)).
30. Do No Harm, 96 F.4th at 116..
31. Do No Harm, 96 F.4th at 116 (according to the Second Circuit, "to actually apply for the Fellowship, an applicant has to disclose their name, in addition to the other listed requirements," and 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").
32. Id. at 117.
33. Id.
34 Id. at 113.
35 Id. at 113, 119.
36 Id. at 121.
37 Id. at 120.
38 Id. at 120–21.
39 Id. at 121 (citing Summers, 555 U.S. at 498–99).
40 Id. at 120 (quoting Obama v. Klayman, 800 F.3d 559, 570 (
41 See, e.g., Students for
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