Do No Harm v. Pfizer

96 F.4th 106

• Court: Court of Appeals for the Second Circuit
• Decided: March 6, 2024
• Docket: 23-15
• Status: Published

Opinion

23-15-cv Do No Harm v. Pfizer

In the United States Court of Appeals For the Second Circuit ______________

August Term, 2023

(Argued: October 3, 2023 Decided: March 6, 2024)

Docket No. 23-15 ______________

DO NO HARM,

Plaintiff-Appellant,

–v.–

PFIZER INC.,

Defendant-Appellee.

______________

Before: JACOBS, WESLEY, and ROBINSON, Circuit Judges. ______________

Plaintiff-Appellant Do No Harm challenges a December 16, 2022 order of the United States District Court for the Southern District of New York (Rochon, J.) denying its request for a preliminary injunction and dismissing the case without prejudice because Do No Harm lacked Article III standing. Do No Harm alleges that a Pfizer fellowship program unlawfully excludes white and Asian-American applicants on the basis of race in violation of federal and state laws. As a membership organization, it bases its standing on injuries to two pseudonymous white or Asian-American members who indicated they would apply for the fellowship if they were not excluded from eligibility. The district court concluded that Do No Harm lacked standing because, among other reasons, it failed to identify a single injured member by name. Two conclusions drive our decision to affirm: First, 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. This does not prevent the association from seeking to protect the identities of its named members from public disclosure using existing legal frameworks. Second, 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, rather than 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. Because Do No Harm moved for a preliminary injunction and failed to name at least one injured member, we AFFIRM. Judge Wesley concurs in part, and in the judgment, in a separate opinion.

CAMERON T. NORRIS (Thomas R. McCarthy, Frank H. Chang, C’Zar Bernstein, on the brief), Consovoy McCarthy PLLC, Arlington, VA, for Plaintiff- Appellant.

SAMANTHA LEE CHAIFETZ, DLA Piper LLC, Washington, DC (Loretta E. Lynch, Liza M. Velazquez, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; Jeannie S. Rhee, Martha L. Goodman, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC, on the brief), for Defendant-Appellee. ______________

2 ROBINSON, Circuit Judge:

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). 1 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.

1The district court did not enter judgment on a separate document as required by Federal Rule of Civil Procedure 58(a). Nevertheless, pursuant to Rule 58(c)(2)(B), the judgment became final 150 days after the order was entered on the docket, and we deem Do No Harm’s notice of appeal to have been timely filed as of that date. See Fed. R. App. P. 4(a)(2). Moreover, we note that “failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order.” Fed. R. App. P. 4(a)(7)(B). We also note that “[w]here an order appealed from clearly represents a final decision and the appellees do not object to the taking of an appeal, the separate document rule is deemed to have been waived and the assumption of appellate jurisdiction is proper.” Selletti v. Carey, 173 F.3d 104, 109–10 (2d Cir. 1999). Pfizer has not objected to the taking of this appeal; it has waived the separate document requirement. We therefore exercise jurisdiction pursuant to 28 U.S.C. § 1291.

3 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. We

therefore AFFIRM.

4 BACKGROUND

I. Facts 2

Pfizer is a corporation headquartered in New York City that researches,

manufactures, and sells biopharmaceutical products. In 2021, Pfizer launched the

Breakthrough Fellowship Program: a nine-year, “first-of-its-kind” opportunity

designed “to increase minority representation at Pfizer” and “enhance [its]

pipeline of diverse leaders.” J. App’x 45.

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 Pfizer for postgraduate employment.

Individuals are only eligible to apply for the Fellowship during their junior

year of college. At the time this suit was filed in September 2022, the Fellowship

webpage listed the following “Requirements” for potential applicants:

• Be a U.S. citizen or a U.S. Permanent Resident

2 Our account of the facts is drawn from Do No Harm’s Complaint and accompanying attachments. For the purpose of reviewing the district court’s order dismissing Do No Harm’s claims, we credit Do No Harm’s allegations. Novak v. Kasaks, 216 F.3d 300, 305 (2d Cir. 2000).

5 • Be an undergraduate student enrolled in a full-time university program (an accredited college / university degree program at the time of award) and graduate December ‘23 or Spring 2024 • Committed interest & intent to pursue an MBA, MPH or MS Statistics program • Apply to a Breakthrough Fellowship Intern opportunity via Pfizer.com/Careers search ‘Breakthrough’ [hyperlink omitted] • Have a 3.0 GPA or above • Meet the program’s goals of increasing the pipeline for Black/African American, Latino/Hispanic and Native Americans. • Demonstrate exceptional leadership potential • Willingness to work in NYC or other Pfizer location as indicated by the job posting

Id. at 48–49.

The webpage also contained an “FAQs” section that directed potential

applicants to a separate PDF document. One frequently asked question read: “I’m

not from a minority group identified for the Breakthrough Fellowship Program;

what opportunities are available to me?” Id. at 51. Pfizer answered:

Pfizer is an equal opportunity employer. We have multiple programs and opportunities throughout the year for undergraduate and graduate students and for Pfizer colleagues generally. For example, any colleague can pursue an MBA or MPH through Pfizer Benefits’ Education Assistance Program. We also host MBA students each summer, more information on this program can be found here [hyperlink omitted]. Undergraduates and graduate students who are not eligible or interested in the Breakthrough Fellows Program but would like to pursue a career at Pfizer can apply to the Summer Growth Experience Program and/or create a job alert on our

6 Pfizer.com/Careers page to receive email or text notifications when positions are opened.

Id. at 51. The webpage further stated that “[a]pplications for the 2023

Breakthrough Fellowship Program will open shortly end [sic] of Summer

2022/beginning Fall 2022.” Id. at 48.

Do No Harm is a Virginia-based, nationwide membership organization

whose stated mission is “to protect healthcare from radical, divisive, and

discriminatory ideologies, including the recent rise in explicit racial discrimination

in graduate and postgraduate medical programs.” Id. at 9. Its members include

“physicians, healthcare professionals, medical students, patients, and

policymakers.” Id. Do No Harm pursues its mission through education and

advocacy, including litigation.

II. District Court Proceedings

On September 15, 2022, Do No Harm filed suit against Pfizer, alleging

violations 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. Do No Harm asserts that Pfizer’s Fellowship unlawfully

“excludes white and Asian-American” applicants, as evidenced by the

Fellowship’s FAQs page, advertising materials, and requirement that applicants

7 “[m]eet the program’s goals of increasing the pipeline for Black/African American,

Latino/Hispanic and Native Americans.” J. App’x 8, 11–14 (alteration in original).

Do No Harm alleged it had “at least two members” who were “ready and able to

apply for the 2023 class” if Pfizer eliminated its allegedly discriminatory criteria.

Id. at 9.

Concurrent with its complaint, Do No Harm filed a motion for a temporary

restraining order and preliminary injunction barring Pfizer from selecting the 2023

Fellowship class until further order of the district court. In support of its motion,

Do No Harm submitted anonymous declarations from two of its members

identified by the pseudonyms “Member A” and “Member B.” 3 In their respective

declarations, Members A and B affirmed that they “[met] all the eligibility

requirements set by Pfizer,” including that they were undergraduate juniors,

3In the context of cases in which parties who are identified by name to the court seek to keep their names confidential from the public or other parties, this Court routinely uses the terms “anonymous” and “pseudonymous” interchangeably. See, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (“[W]hen determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.”); United States v. Pilcher, 950 F.3d 39, 41–42 (2d Cir. 2020) (referring to defendant’s motion as both a “motion to proceed anonymously” and a “motion to file a habeas petition under a pseudonym”); Doe v. Delta Airlines Inc., 672 Fed. Appx. 48, 52 (2d Cir. 2016) (referring to plaintiff’s motion as both “an application to litigate under a pseudonym” and an “application to proceed to trial anonymously”). We use the two terms interchangeably here and emphasize that in contrast to the above cases, the names of the anonymous members have not been disclosed to the court, even in camera.

8 maintained GPAs of 3.0 or higher, and were “involved in campus life and [held]

leadership positions” in various campus activities. Id. at 36–41. Members A and

B, who self-identified as white and Asian-American, respectively, averred that

Pfizer “categorically exclud[ed]” white and Asian-Americans like them from the

Fellowship. Id. at 37, 40. Both Members swore they were “able and ready to apply

to the 2023 class of the Fellowship” if Pfizer eliminated its allegedly discriminatory

criteria. Id.

Do No Harm also submitted a declaration from Kristina Rasmussen, Do No

Harm’s Executive Director. Rasmussen asserted that “Do No Harm has at least

two members who are white and Asian American and in their junior year of

college who are ready and able to apply to the Pfizer Breakthrough Fellowship

Program if Pfizer stops discriminating against white and Asian-American

applicants.” Id. at 34. She further declared that “Do No Harm also has at least one

member who is a sophomore who will be ready and able to apply to the Pfizer

Breakthrough Fellowship next year if Pfizer stops discriminating against white

and Asian-American applicants.” Id. at 34–35.

During a conference held on September 21, 2022, Do No Harm withdrew its

request for a temporary restraining order based on Pfizer’s representation that the

application window for the 2023 class would not open before January 2023. At the

9 same conference, the district court observed that Do No Harm had not identified

Members A or B by name, and asked that it address this issue in its further

submissions. Briefing on the preliminary injunction motion was completed in

November 2022. Both parties addressed the naming issue in their filings.

On December 16, 2022, the district court issued an opinion and order

denying Do No Harm’s motion for a preliminary injunction and dismissing the

case without prejudice for lack of subject matter jurisdiction. Do No Harm, 646 F.

Supp. 3d at 517–18.

As a preliminary matter, the court noted that a plaintiff’s burden to show

Article III standing on a motion for a preliminary injunction “will normally be no

less than that required on a motion for summary judgment.” Id. at 500 (quoting

Cacchillo, 638 F.3d at 404). Applying that standard, the court held that Do No Harm

lacked standing because it failed to identify any of its injured members by name.

Id. at 504–05 (citing Summers v. Earth Island Institute, 555 U.S. 488, 498–99 (2009)).

Even if it had identified its members by name, the court concluded that Do No

Harm failed to establish that any of its members suffered a cognizable injury

because they did not “provide any information, facts or prior experience that show

a committed interest and intent to pursue [the opportunity].” Id. at 507 (internal

quotation marks omitted).

10 In an alternative analysis, the court considered Do No Harm’s “claim-

specific” standing to pursue its federal claims. 4 Id. at 508. The court concluded

that Do No Harm could not pursue its § 1981 claim for the additional reason that

associations such as Do No Harm lack standing to assert claims on behalf of their

members under § 1981. Id. at 508–09. The court further concluded that Pfizer is

not subject to the prohibitions of Title VI or Section 1557 of the ACA. Id. at 509–

17. Having rejected Do No Harm’s federal claims for claim-specific reasons, the

court declined to exercise supplemental jurisdiction over the remaining state law

claims and dismissed the case without prejudice. Id. at 518.

III. Motion to Supplement the Record on Appeal

Do No Harm filed a timely notice of appeal on January 3, 2023. Pfizer

represents that it opened its application window for the 2023 Fellowship class on

February 15, 2023, and closed it on March 1, 2023.

4 The district court’s discussion of “claim-specific” standing appears to focus on Article III standing with respect to the § 1981 claim, and “statutory standing” with respect to the Title VI and ACA claims. “Statutory standing,” as distinct from Article III standing, relates to the merits, that is whether a particular plaintiff “has a cause of action under the statute.” American Psychiatric Association v. Anthem Health, 821 F.3d 352, 359 (2d Cir. 2016) (quoting Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014)). Because so-called statutory standing does not implicate “the court’s statutory or constitutional power to adjudicate the case,” this term is “misleading.” Id. (quoting Lexmark, 573 U.S. at 128 n.4).

11 When it filed its brief and joint appendix, Do No Harm moved to

supplement the record on appeal with another declaration of Kristina Rasmussen

and a declaration of a third anonymous member identified by the pseudonym

“Member C.” Member C, then a college sophomore, states, “I meet all the

eligibility requirements [for the Fellowship] set by Pfizer, except I am Asian,” and

declares, “I am able and ready to apply for the 2024 class of the Fellowship if

Pfizer” eliminates its allegedly discriminatory criteria. App. Ct. Dkt. 38 at 11.

Rasmussen swears, among other things, that Member C is a member of Do No

Harm. Id. at 13. Pfizer opposes the motion. App. Ct. Dkt. 50. The motion was

referred to this panel for consideration alongside the merits.

DISCUSSION

An association may have standing to sue as the representative of its

members, “[e]ven in the absence of injury to itself.” Warth v. Seldin, 422 U.S. 490,

511 (1975). To establish associational standing, an association must show: (1) “its

members would otherwise have standing to sue in their own right”; (2) “the

interests it seeks to protect are germane to the organization’s purpose”; and

(3) “neither the claim asserted nor the relief requested requires the participation of

individual members in the lawsuit.” Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333, 343 (1977).

12 At issue here is the first of these requirements―that at least one association

member must have standing to sue in their own right. To establish individual

standing, a plaintiff must show: (1) they suffered an injury in fact that is

(a) concrete and particularized and (b) actual or imminent, as opposed to

conjectural or hypothetical; (2) there is a “causal connection between the injury

and the conduct complained of”; and (3) it is “likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation marks omitted).

Ordinarily, to establish standing to challenge an allegedly discriminatory

program, a plaintiff must apply to that program. Jackson-Bey v. Hanslmaier, 115

F.3d 1091, 1096 (2d Cir. 1997). But a plaintiff need not go through the motions of

formally applying when that would be a “futile gesture.” International Brotherhood

of Teamsters v. United States, 431 U.S. 324, 365–66 (1977) (“If an employer should

announce [its] policy of discrimination by a sign reading ‘Whites Only’ on the

hiring-office door, [its] victims would not be limited to the few who ignored the

sign and subjected themselves to personal rebuffs.”). In such circumstances, a

plaintiff need only demonstrate that they are able and ready to apply, but a

discriminatory policy prevents them from doing so on equal footing. Gratz v.

Bollinger, 539 U.S. 244, 262 (2003).

13 On appeal, Do No Harm argues that, after the district court concluded that

Do No Harm lacked standing for purposes of its preliminary injunction motion,

the district court should not have dismissed the claims altogether unless Do No

Harm failed to establish standing under the less onerous standard applicable at

the pleading stage. Applying that standard, Do No Harm contends that it

sufficiently alleged facts to establish its standing. In particular, it argues that, at

the pleading stage, it is not required to name its members to establish Article III

standing, and it sufficiently alleged that its pseudonymous members were ready

and able to apply to the Fellowship. Even applying the more rigorous standard

applicable at the preliminary injunction stage, Do No Harm argues it presented

sufficient evidence to establish its members’ standing.

Finally, Do No Harm asserts the district court erred by dismissing its federal

claims pursuant to its “claim-specific” analyses without first giving Do No Harm

notice or an opportunity to be heard. It disputes the district court’s conclusion

that associations like Do No Harm lack standing to sue on behalf of their members

under § 1981, and it challenges the court’s assessment of the merits of its Title VI

and ACA claims.

“We review the dismissal of claims for lack of standing de novo,” meaning

without deference to the district court. Ross v. Bank of America, N.A. (USA), 524

14 F.3d 217, 222 (2d Cir. 2008). Applying that standard, we conclude that (1) the

district court did not err in concluding that Do No Harm lacked Article III standing

to seek a preliminary injunction because it did not identify by name a single

member injured by Pfizer’s alleged discrimination, and (2) the district court

properly dismissed Do No Harm’s claims after reaching that conclusion. We

I. Identifying Do No Harm Members

We require plaintiffs claiming associational standing “to identify members

who have suffered the requisite harm.” Summers, 555 U.S. at 499. The Supreme

Court explored what it means to “identify” members in Summers. There,

environmental organizations challenged US Forest Service regulations exempting

certain timber sales from notice and comment procedures. Id. at 490–92. The

parties settled their claim insofar as it related to a specific identified project in

which the Forest Service applied those regulations, leaving the organizational

plaintiffs with no specific actual or threatened application of the regulations that

would impact the recreational or aesthetic interests of at least one identified

member. Id. at 491–92. The Court accordingly concluded that the plaintiff

organizations lacked Article III standing. Id. at 495–96.

15 In announcing its holding, the Court rejected the suggestion that an

organization may premise its standing on the “statistical probability” that some of

its members are threatened with concrete injury. Id. at 497–98. Such an approach

would, in the majority’s view, “make a mockery of our prior cases, which have

required plaintiff-organizations to make specific allegations establishing that at

least one identified member had suffered or would suffer harm.” Id. at 498 (emphasis

added). This aspect of the Court’s opinion was central to the district court’s

conclusion that Do No Harm failed to adequately identify a harmed member

because it didn’t name names. See Do No Harm, 646 F. Supp. 3d at 501–02.

Do No Harm argues that Summers is irrelevant to this case. It contends that

the standard set in Summers is inapplicable at the pleading stage, and that Summers

does not, in any event, require associations to identify specific injured members by

name.

We disagree on both points. Whether Summers requires naming names at

the pleading stage is irrelevant; the district court made its standing determination

here in the context of a motion for a preliminary injunction, not at the pleading stage.

And 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, is most consistent with

16 the principles underlying organizational standing, and is bolstered by the

conclusions of numerous other courts.

A. Standing and Preliminary Injunctions

It is well settled that “[a] plaintiff’s burden to demonstrate standing

increases over the course of litigation.” Cacchillo, 638 F.3d at 404. As with any

other matter on which the plaintiff bears the burden of proof, each element of

standing must be supported “with the manner and degree of evidence required at

the successive stages of the litigation.” Lujan, 504 U.S. at 561.

In Cacchillo, we held that “[w]hen a preliminary injunction is sought, a

plaintiff’s burden to demonstrate standing will normally be no less than that

required on a motion for summary judgment.” 638 F.3d at 404 (internal quotation

marks omitted). Consequently, to establish standing on a motion for a preliminary

injunction, “a plaintiff cannot rest on such mere allegations as would be

appropriate at the pleading stage but must set forth by affidavit or other evidence

specific facts, which for purposes of the summary judgment motion will be taken

to be true.” Id. (cleaned up).

The district court made its standing determination in the context of

addressing Do No Harm’s preliminary injunction motion. Do No Harm bore the

17 burden of demonstrating standing subject to at least a summary judgment

standard. That’s the frame in which we review the district court’s standing

determination. To determine whether Do No Harm met its burden, we need not

and do not decide whether, at the pleading stage, Do No Harm was required to

name names. Cf. Building & Construction Trades Council of Buffalo, New York &

Vicinity v. Downtown Development, Inc., 448 F.3d 138, 145 (2d Cir. 2006) (concluding

that an organizational plaintiff need not identify specific injured members by

name at the pleading stage, but recognizing that a naming requirement “might

have some validity . . . at the summary judgment stage”). 5

B. Naming Names

Summers, and the precedent upon which it relies, support the view that an

association cannot just describe the characteristics of specific members with

5 The concurrence suggests there is tension between requiring names at summary judgment and leaving open the possibility that names may not be required at the pleading stage. Concurrence at 9. As mentioned above, “[a] plaintiff’s burden to demonstrate standing increases over the course of litigation,” such that each element of standing “must be supported . . . with the manner and degree of evidence required at the successive stages of the litigation.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011). In other words, what is enough to establish standing at the pleading stage will not necessarily be enough to establish standing at summary judgment. See I.A., above. For that reason, there is nothing incongruous about suggesting that allegations that may be sufficient to survive a motion to dismiss are not enough to defeat a motion for summary judgment. See, e.g., Ball v Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 199 (2d Cir. 1990) (in personal jurisdiction context, “bare legal allegations may be sufficient to withstand a 12(b)(6) motion, but, without factual support, fail to make a prima facie showing at the summary judgment stage, once discovery has occurred”).

18 cognizable injuries; it must identify at least one by name. That makes sense where

an association’s standing rests on alleged injuries to its members, and is consistent

with persuasive decisions from a number of courts.

In rejecting the suggestion that a plaintiff organization could rely on a

statistical likelihood that its members are injured by the challenged regulation, the

Summers Court noted that “this requirement of naming the affected members has

never been dispensed with in light of statistical probabilities, but only where all

the members of the organization are affected by the challenged activity.” Summers,

555 U.S. at 498–99. Thus, plaintiffs claiming associational standing must “identify

members who have suffered the requisite harm.” Id. at 499.

Do No Harm is right that Summers does not squarely address the specific

issue here. The core holding of Summers is that an association relying on injuries

to its members to establish its standing must identify specific members injured by

the challenged conduct. Id. at 498–99. It does not directly address whether those

members must be identified by name.

Nevertheless, a rule requiring an associational plaintiff to name at least one

injured member, at least at the summary judgment stage, best aligns with the

Court’s guidance in Summers and the caselaw on which Summers

relies―specifically, FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990). 19 In FW/PBS―a case arising in a summary judgment posture―groups of

individuals and businesses challenged the constitutionality of a city ordinance. Id.

at 221. Plaintiffs premised their standing on, among other things, the affidavit of

a named police officer who claimed that “two licenses” were revoked because of

the challenged ordinance. Id. at 235. Although the Court would not rely on the

affidavit because it was introduced for the first time on appeal, it said:

Even if we could take into account the facts as alleged in the city’s affidavit, it fails to identify the individuals whose licenses were revoked and, therefore, falls short of establishing that any petitioner before this Court has had a license revoked under the [challenged ordinance].

Id. We do not read the Court’s statement as suggesting that the affidavit was

insufficient because it failed to describe the circumstances of the harmed

individuals in sufficient detail. Rather, we read it as stating that the affidavit was

insufficient because it did not include the individuals’ names.

The Court’s subsequent treatment of FW/PBS in Summers confirms our view.

The Summers Court explained that the affidavit in FW/PBS was insufficient

“because it did not name individuals who were harmed” by the challenged

program. 555 U.S. at 498 (emphasis added). It stated: “This requirement of naming

the affected members has never been dispensed with in light of statistical

20 probabilities.” Id. at 498–99 (emphasis added). Although Summers focused on the

necessity of identifying members with greater specificity than mere statistical

probabilities, it also recognized the necessity of naming members actually harmed

by a challenged program. A contrary interpretation would ignore the decision’s

clear language and undermine the Supreme Court precedent upon which it relied.

We are not, as the concurrence implies, merely “pluck[ing]” the word “name”

from Summers to craft a naming requirement. Concurrence at 6. Rather, we

assume the Supreme Court said what it meant and meant what it said.

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

21 demonstration of the sincerity of the member’s interest in applying for a

fellowship. These are quintessential Article III standing concerns. See Carney v.

Adams, 592 U.S. 53, 64 (2020) (noting “longstanding legal doctrine preventing this

Court from providing advisory opinions at the request of one who, without other

concrete injury, believes that the government is not following the law”).

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.

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, see, e.g., United States

v. Pilcher, 950 F.3d 39, 42 (2d Cir. 2020), we do not allow parties to remain

anonymous to the court, Publicola v. Lomenzo, 54 F.4th 108, 111–12 (2d Cir. 2022)

(citing Fed. R. App. P. 32(d), Fed. R. Civ. P. 10(a), and Fed. R. Civ. P. 11(a)). See

also Doe v. Federal Republic of Germany, 2023 WL 6785813, at *11 (S.D.N.Y. Oct. 13,

2023) (collecting cases) (“In this District . . . parties proceeding anonymously must

22 reveal their names (and other identifying information) under seal 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. 6

6 The concurrence suggests that, had Members A and B filed suit themselves and refused to provide their real names to the court, their complaint would be dismissed “on pleading grounds, not jurisdictional ones.” Concurrence at 10. We agree with the concurrence that the unidentified members’ complaint would face immediate dismissal pursuant to Fed. R. Civ. P. 10(a), but do not adopt the concurrence’s position that those unnamed would-be plaintiffs would have Article III standing to get past summary judgment but for the Federal Rules of Civil Procedure. That a court may dismiss a party’s complaint on procedural grounds if they refuse to provide their name to the court at the pleading stage does not mean the unnamed party would otherwise have Article III standing to secure a judgment. Cf. Fund Liquidation Holdings LLC v. Bank of America Corporation, 991 F.3d 370, 383 n.7 (2d Cir. 2021) (even though Federal Rules of Civil Procedure do not require the legal existence of a corporate entity to be pleaded affirmatively in every case, “the non- existence of the supposed claimant is a problem of constitutional magnitude”). We can’t test the concurrence’s hypothesis that unnamed plaintiffs who are precluded by the Federal Rules of Civil Procedure from proceeding with their claims would have constitutional standing at the judgment stage because as far as we can tell, cases in which a party has been allowed to proceed to judgment without disclosing their identity to the court don’t exist.

In suggesting otherwise, the concurrence relies on cases in which individuals are allowed to proceed pseudonymously to the public or other parties. Those cases are entirely beside the point. Concurrence at 10–11. As noted above, even when parties proceed anonymously to the public or the opposing party, their names and other identifying information must still be disclosed to the

23 Finally, the only sister circuit to squarely address the question agrees that

an association must name its injured members to establish Article III standing. 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)). 7 District courts in this Circuit have held similarly. See, e.g., Pen American

court. See, e.g., Doe v. Federal Republic of Germany, 2023 WL 6785813, at *11 (S.D.N.Y. Oct. 13, 2023) (“In this District, too, parties proceeding anonymously must reveal their names (and other identifying information) under seal to the court.”) (collecting cases); One Standard of Justice, Inc. v. City of Bristol, 2022 WL 17688053, at *7 (D. Conn. Dec. 9, 2022) (granting plaintiff’s motion to proceed under a pseudonym but still requiring all documents containing plaintiff’s name to be filed under seal with the court); Publicola v. Lomenzo, 54 F.4th 108, 112 (2d Cir. 2022) (dismissing appeal where anonymous plaintiff refused to refile his briefs under his real name or to seek permission from the Court to file copies of his briefs under seal in order to preserve his anonymity). This requirement serves logistical purposes, such as allowing the court to check for conflicts of interest, but, whether 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.

7The Ninth Circuit has held that an association lacked standing where it failed to “identify any affected members by name [or submit] declarations by any of its members attesting to harm they have suffered or will suffer.” Associated General Contractors of America, San Diego Chapter, Inc. v. California Department of Transportation, 713 F.3d 1187, 1194 (9th Cir. 2013). The concurrence relies on discussion from a later Ninth Circuit case that was decided at the pleading stage, and in which the organization’s primary basis for standing rested on its own diversion-of-resources injury, rather than injury to its members, to support the contention that the Ninth Circuit would not require Do No Harm to name names. Concurrence at 6–7 (citing National Council of La Raza v. Cegavske, 800 F.3d 1032, 1038 (9th Cir. 2015)). Given the different postures of the Associated General Contractors and National Council of La Raza cases, we cannot ascribe to the Ninth Circuit a clear position as to

24 Center, Inc. v. Trump, 448 F. Supp. 3d 309, 320–321 (S.D.N.Y. 2020) (“Plaintiff is

required to identify at least one affected member by name.”); Equal Vote American

Corp. v. Congress, 397 F. Supp. 3d 503, 509 (S.D.N.Y. 2019) (“[I]n order to bring

claims on behalf of its members under the ‘associational standing’ doctrine, an

organizational plaintiff . . . must identify, by name, at least one member with

standing.”).

The cases cited by Do No Harm do not convince us otherwise. In Forum for

Academic and Institutional Rights, Inc. v. Rumsfeld, a district court permitted an

association to keep its membership list secret from the public after it submitted the

list for in camera review. 291 F. Supp. 2d 269, 286 n.6 (D.N.J. 2003). While the

district court in NAACP v. Trump allowed the NAACP’s members to proceed

anonymously, it ultimately declined to decide the naming issue because the

government failed to renew the argument in its reply to the NAACP’s motion for

whether an organization relying on injuries to its members to support its standing must “name names” at the summary judgment stage to establish a cognizable injury. See also California Restaurant Association v. City of Berkeley, 89 F.4th 1094, 1116 n.5 (9th Cir. 2024) (Baker, J., concurring) (recognizing circuit split as to whether plaintiff associations must “name names” at pleading stage, but asserting that “under Lujan, Summers, and [Associated General Contractors], at summary judgment or trial an organizational plaintiff is undoubtedly obligated to identify one or more of its injured members––among other ‘specific facts’ detailing the nature of their asserted injury.”). The concurrence also relies on a Tenth Circuit case to support its position that Summers did not create a naming requirement. Concurrence at 6 (citing Speech First, Inc. v. Shrum, 92 F.4th 947, 948–52 (10th Cir. 2024)). But that case, like National Council of La Raza, was decided at the pleading stage. Shrum, 92 F.4th at 947.

25 summary judgment. 298 F. Supp. 3d 209, 225 n.10 (D.D.C. 2018). And neither

Speech First v. Sands nor SFFA v. Harvard contain any reasoning as to whether an

association must name its members in order to establish standing. See Speech First,

Inc. v. Sands, 69 F.4th 184, 188 (4th Cir. 2023); Students for Fair Admissions, Inc. v.

Harvard, 600 U.S. 181, 198–201 (2023).

For the above reasons, we hold that an association must identify by name at

least one injured member for purposes of establishing Article III standing under a

summary judgment standard. Our holding in no way precludes an organization

from seeking to protect its members’ identities―either from the public or the

opposing party―pursuant to existing legal procedures and standards. See Sealed

Plaintiff v. Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008); Pilcher, 950 F.3d at 42.

An organization’s ability to shield from disclosure the identities of members upon

whom it relies to establish its standing is a separate matter. At issue here is

whether an organization can proceed without even disclosing to the court the

names of the members whose Article III injuries support the organization’s

standing. We hold that, because Do No Harm did not disclose the names of

26 Members A or B to the district court, it failed to demonstrate that it has at least one

member with Article III standing. 8

II. The Dismissal Order

Do No Harm argues that even if it failed to establish standing in connection

with its motion for a preliminary injunction, the district court should have simply

denied the preliminary injunction motion rather than dismiss its claims altogether.

It argues that it successfully alleged standing under a motion-to-dismiss standard,

and that’s the standard that applies to the question of dismissal.

8 The concurrence would sidestep the naming issue by ruling instead that Do No Harm produced insufficient evidence to support readiness and ability to apply for the Fellowship. But apart from their failure to disclose their names, the showing made by Members A and B is at least arguably sufficient. See Carney v. Adams, 592 U.S. 53, 64 (2020) (limiting holding to the particular record, and stating, “[w]e do not decide whether a statement of intent alone under other circumstances could be enough to show standing”). The record contains sworn affidavits that Do No Harm’s members satisfy each of Pfizer’s stated application requirements―that is, they are enrolled as juniors in college, maintain above a 3.0 GPA, hold leadership positions, etc. The concurrence would require more information about how the members have prepared themselves to apply for the Fellowship, but it is unclear what concrete preparatory steps would be required to amplify on very broad application requirements that require no particular academic background or work experience. And because the record reflects that at the time Do No Harm filed this suit Pfizer had not yet described or provided any application materials, it is unclear what materials Members A and B might be expected to have prepared.

We don’t purport to decide these questions here. Because we agree with the district court that Do No Harm lacks standing because it did not identify any injured member by name, we need not review the court’s alternate holding that the affidavits of Member A and Member B were insufficiently detailed to show that either member was ready and able to apply to the Fellowship for purposes of establishing Do No Harm’s standing. Do No Harm v. Pfizer Inc., 646 F. Supp. 3d 490, 505–07 (S.D.N.Y. 2022).

27 A splintered D.C. Circuit decision from 2015, Obama v. Klayman, effectively

illustrates the divergent approaches to this question. 800 F.3d 559 (D.C. Cir. 2015).

All three panelists in Klayman agreed that the district court erred in granting

plaintiffs a preliminary injunction because they concluded the plaintiffs lacked

standing; but they disagreed as to whether the case should be dismissed. Judge

Williams reasoned that a party seeking a preliminary injunction must show “a

likelihood of success on the merits,” which includes a likelihood of success in

establishing jurisdiction. Id. at 565 (opinion of Williams, J.). On his view, a

determination that the plaintiff cannot show a likelihood of establishing standing

defeats its request for a preliminary injunction, but does not require dismissal of

the case. Id. at 568. Rather, on remand, the plaintiff might be able to collect

sufficient evidence to establish standing. Id. Judge Brown likewise would have

remanded for the possibility of “limited discovery to explore jurisdictional facts.”

Id. at 564 (opinion of Brown, J.).

The third panelist, Judge Sentelle, took a different view. He explained:

I agree with the conclusion of my colleagues that plaintiffs have not shown themselves entitled to the preliminary injunction granted by the district court. However, we should not make that our judicial pronouncement, since we do not have jurisdiction to make any determination in the cause. I therefore would vacate the preliminary injunction as having been granted without jurisdiction by the district

28 court, and I would remand the case, not for further proceedings, but for dismissal.

Id. at 570 (opinion of Sentelle, J.) (emphasis added). Judge Sentelle emphasized:

“Without standing there is no jurisdiction. Without jurisdiction, we cannot act.”

Id.

The D.C. Circuit subsequently endorsed the majority view from Klayman,

holding that “an inability to establish a substantial likelihood of standing requires

denial of the motion for preliminary injunction, not dismissal of the case.” Food &

Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015).

In our view, Judge Sentelle captured the correct order of operations for a

case like ours: as a general matter, when a court determines it lacks subject matter

jurisdiction, it cannot consider the merits of the preliminary injunction motion and

should dismiss the action in its entirety.

Our conclusion relies heavily on our description in Cacchillo about the

nature of the standing determination in the context of a preliminary injunction

motion: it is a determination of whether the plaintiff has standing, not whether the

plaintiff has demonstrated a “substantial likelihood” of showing standing. 638

F.3d at 404. Given that understanding, it follows that, upon determining in the

29 context of a preliminary injunction motion that a plaintiff lacks standing, a court

should generally dismiss the plaintiff’s claims.

In Cacchillo, this Court considered a plaintiff’s appeal from the district

court’s denial of her motion for a preliminary injunction for lack of standing. Id.

at 403. In assessing the standing question, we recited the established rules that

“[a] plaintiff’s burden to demonstrate standing increases over the course of

litigation,” and that each element of standing “must be supported . . . with the

manner and degree of evidence required at the successive stages of the litigation.”

Id. at 404. We held that a plaintiff’s burden when seeking a preliminary injunction

is normally “no less than that required on a motion for summary judgment.” Id.

Thus, we held that “to establish standing for a preliminary injunction, a plaintiff

cannot rest on such mere allegations as would be appropriate at the pleading stage

but must set forth by affidavit or other evidence specific facts, which for purposes

of the summary judgment motion will be taken to be true.” Id. (cleaned up).

We repeat the Cacchillo analysis to emphasize what it did not say. We did

not suggest that the operative question is whether the plaintiff mustered sufficient

evidence to show a substantial likelihood of establishing standing; we framed the

question in Cacchillo as whether the plaintiff had standing under the standard

applicable at that stage of the litigation. That’s a different approach from the D.C.

30 Circuit’s, and it may explain in part our divergent conclusions. Cf. Klayman, 800

F.3d at 565 (opinion of Williams, J.) (explaining that a plaintiff seeking a

preliminary injunction must show a substantial likelihood of success in

establishing standing); Food & Water Watch, 808 F.3d at 913 (same).

Once we understand that the no-standing determination is just that―a

determination that the plaintiff lacks standing―the rest isn’t complicated.

Article III standing is “always an antecedent question,” such that a court cannot

“resolve contested questions of law when its jurisdiction is in doubt.” Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83, 101 (1998). Once a federal court

determines it lacks subject matter jurisdiction, “the court must dismiss the

complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); see also

U.S. Const. art. III, § 2 (limiting jurisdiction of Article III courts to “Cases” or

“Controversies”). 9

We note one additional factor that simplifies our analysis: this is not a case

in which a plaintiff seeks or needs limited discovery on jurisdictional facts in order

9To the extent the district court issued alternative rulings rejecting Do No Harm’s federal claims on the merits, that was error. Although we affirm the district court’s dismissal of Do No Harm’s claims because the organization lacks standing, the district court’s alternate bases for dismissing Do No Harm’s Title VI and ACA claims are void for lack of jurisdiction. To the extent the district court offered an alternative basis for concluding that Do No Harm lacks Article III standing to pursue its § 1981 claim, we do not reach that alternate holding because we affirm based on Do No Harm’s general lack of Article III standing to pursue any of its claims.

31 to establish standing. We need not and do not decide whether dismissal would be

proper in such a posture. Cf. Klayman, 800 F.3d at 564 (opinion of Brown, J.) (noting

that, on remand, the district court could determine whether to allow limited

discovery to explore jurisdictional facts); id. at 569 (opinion of Williams, J.) (same).

That would present a different set of issues. See Katz v. Donna Karan Company Co.,

872 F.3d 114, 121 (2d Cir. 2017) (“[P]recisely because the plaintiff bears the burden

of alleging facts demonstrating standing, we have encouraged district courts to

‘give the plaintiff ample opportunity to secure and present evidence relevant to

the existence of jurisdiction’ where necessary.” (quoting Amidax Trading Group v.

S.W.I.F.T. SCRL, 671 F.3d 140, 149 (2d Cir. 2011))).

The impediment to Do No Harm’s standing is not a lack of information

relating to jurisdictional facts in Pfizer’s exclusive possession. To the contrary, Do

No Harm knows the identities of Members A and B―it doesn’t need discovery to

figure that out. The impediment to Do No Harm’s standing is its own choice to

withhold that information.

When Do No Harm moved for a preliminary injunction, it subjected itself to

the heightened burden of demonstrating standing under a summary judgment

standard. Cacchillo, 638 F.3d at 404. Do No Harm argues that dismissing its claims

upon a determination in that context that it lacks standing amounts to “fast-

32 forward[ing] this case to another stage.” Appellant’s Reply Br. at 9. To the

contrary, Do No Harm’s approach would amount to reversing the case to a prior

stage. Once the court concluded that Do No Harm lacked standing, dismissal, not

further proceedings, was the logical next step here. See Fed. R. Civ. P. 12(h)(3).

CONCLUSION

For the above reasons, we DENY Do No Harm’s motion to supplement the

record on appeal as moot, 10 and AFFIRM the district court’s dismissal of Do No

Harm’s claims without prejudice.

10Even if we allowed Do No Harm to generate standing, and thus subject matter jurisdiction, by accepting new declarations into the record on appeal, granting Do No Harm’s motion to supplement the record with Member C’s declaration would not change our conclusion as to Article III standing because Member C is also unnamed.

33 23-15 Do No Harm v. Pfizer

WESLEY, Circuit Judge, concurring in part and concurring in the judgment:

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.

I

When it comes to Article III cases and controversies, a person’s name does

not describe whether they have been injured. Do No Harm’s lawsuit contends that

Pfizer’s Fellowship discriminates on the basis of race, not on the basis of names.

We know that Member A is white, and Member B is Asian-American. Both claim

they will be injured by the Fellowship because of their race. Their names bear not

on standing.

The general rules for standing are well-established. As an organization

which seeks “associational” standing, Do No Harm must show that “its members

would otherwise have standing to sue in their own right.” Students for Fair

Admissions, Inc. v. Pres. and Fellows of Harvard Coll., 600 U.S. 181, 199 (2023) (quoting

2 Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977)).

“[S]tanding requires an injury in fact that must be concrete and particularized, as

well as actual or imminent. It cannot be conjectural or hypothetical.” Carney v.

Adams, 592 U.S. 53, 60 (2020) (citation and quotation marks omitted). That injury

must also be “fairly traceable to the challenged conduct of the defendant” and

“likely to be redressed by a favorable judicial decision.” Students for Fair

Admissions, 600 U.S. at 199 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)).

In the oft-repeated three-part test for standing—injury, traceability, and

redressability—the Supreme Court has not included an additional requirement that

plaintiffs must provide their names.

Indeed, at the pleading stage, our Court lets organizations establish

standing without providing the name of an injured member. See Building &

Construction Trades Council of Buffalo v. Downtown Dev., Inc., 448 F.3d 138, 144–45

(2d Cir. 2006) (rejecting the notion that an organization must “name names” in its

complaint to obtain standing). We did suggest, however, that there might be

“some validity” to a naming requirement “at the summary judgment stage.” Id.

Now, at the preliminary injunction stage (which incorporates the summary

judgment burden), the majority takes that dictum and imposes a bright-line rule:

A plaintiff organization must provide the real name of at least one injured member

3 or the case will be dismissed for lack of jurisdiction. In my view, neither Supreme

Court precedent invoked by the majority supports this result.

In Summers v. Earth Island Institute, 555 U.S. 488 (2009), an organizational

plaintiff sought to challenge regulations concerning Sequoia National Forest. The

issue was whether a single member of the organization would visit that national

forest and thus incur injury from the regulations. No member had come forward;

the organization instead maintained that it was statistically likely that some of its

700,000 members would be injured. See id. at 497. In rejecting that argument, the

Supreme Court used the words “name” and “identify” interchangeably—to

observe that the case didn’t involve any individual members of the organization.

Id. at 498–99. Summers wasn’t concerned with the members’ names because those

names wouldn’t indicate whether the members would visit Sequoia National

Forest and incur an injury. A person’s name says nothing about their interests,

their habits, or their conduct from which a court could conclude the individual

will incur an injury from the defendant’s act. Instead, by suggesting that the

organization “name” its members, the Summers Court wanted to confirm that

individual injured members existed in the first place.

Unlike in Summers, Do No Harm does not rely on statistical probabilities

about its membership. It has identified individual members—Members A and B—

4 who claim they are able and ready to apply to Pfizer’s Fellowship. The real first

and last names of those members have no connection to whether they could apply

to the Fellowship and incur an injury.

The same injury principle from Summers animated its predecessor, FW/PBS,

Inc. v. City of Dallas, 493 U.S. 215 (1990). Once again, FW/PBS didn’t involve

pseudonymous members of organizations. In fact, it didn’t use the word “name”

at all. Instead, the Supreme Court rejected an affidavit which failed to “identify”

which individuals in the city had their business licenses revoked—i.e., whether any

of the individuals in the case had suffered an injury. Id. at 235.

In sum, these cases didn’t require organizations to “name names” to

establish their members’ injuries. They simply echoed longstanding Article III

concerns about identifying a particular person to ensure that at least one member

of the plaintiff organization had an injury. Even the majority admits that these

cases do “not directly address” whether names are necessary. Maj. Op. at 20.

Despite one or two passing uses of the verb “name,” the opinion in Summers

cannot “be parsed as though we were dealing with the language of a statute,” and

we should expect a far clearer statement from the Supreme Court before imposing

a naming rule ourselves. Brown v. Davenport, 596 U.S. 118, 120 (2022) (citation and

brackets omitted). After all, the Supreme Court itself regularly allows

5 organizations to sue on behalf of unnamed members. See, e.g., Students for Fair

Admissions, 600 U.S. at 200–01 (organization had standing “when it filed suit”

where it “identified” individual harmed members but did not provide their real

names). The Supreme Court’s own practice speaks volumes: It has not read

Summers to create a naming requirement; neither should we.

To be sure, at least one circuit seems to have plucked the word “name” from

Summers to craft a naming requirement for injured members of organizations. See

Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016) (Souter, J.). But others have remained

focused on identifying a member’s injury (as Summers and FW/PBS did), not a

member’s name. See Speech First, Inc. v. Shrum, 92 F.4th 947, 948–52 (10th Cir. 2024)

(concluding that organization had standing despite relying on injuries to

“Student A, Student B, and Student C,” and explaining why Summers did not

require those students to provide their real names); Advocates for Highway & Auto

Safety v. FMCSA, 41 F.4th 586, 594 & n.2 (D.C. Cir. 2022) (unnamed members

submitted survey statements which supported their injuries, yet their lack of

names was “no barrier to [organizational] standing on this record”). The Ninth

Circuit, notwithstanding the majority’s contention, has maintained similarly. See

Associated Gen. Contractors of Am., San Diego Chapter, Inc., v. California Dep’t of

Transp., 713 F.3d 1187, 1194–95 (9th Cir. 2013) (“Caltrans”). Just like in Summers,

6 Caltrans didn’t hold that members needed to provide their real names—because

no member had come forward. The organization had failed to identify “any

specific members . . . who would be harmed by Caltrans’ program.” Id. at 1195.

Even if there were any lingering doubt about the meaning of Caltrans, the Ninth

Circuit subsequently explained why names don’t bear on standing:

Where it is relatively clear, rather than merely speculative, that one or more members have been or will be adversely affected by a defendant’s action, and where the defendant need not know the identity of a particular member to understand and respond to an organization’s claim of injury, we see no purpose to be served by requiring an organization to identify by name the member or members injured.

Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1038 (9th Cir. 2015). We should

reaffirm the same.

With precedent absent, the majority is left to say that a constitutional

naming requirement “makes sense.” Maj. Op. at 21–22. The majority assures us

that names show that members “are not merely enabling the organization to lodge

a hypothetical legal challenge.” Id. No doubt, we need “a real controversy with

real impact on real persons.” TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021)

(citation omitted). Yet this rationale for names—to ensure that Members A and B

are real individuals and not fictitious enablers of the organization—is belied by

the record. Both members declared that they are real students and real members

7 of Do No Harm. The organization’s Executive Director confirmed the same in her

own declaration. As the majority observes, for standing purposes, we must take

these statements as true. See Cacchillo, 638 F.3d at 404. In other words, we have

already accepted that Members A and B are real people. 1

Along the same vein, the majority claims that real names are “relevant” to

standing because they show a real controversy. Apparently, they show “members

are genuinely ready and able to apply” to the Fellowship and incur an injury. Maj.

Op. at 22. This ready-and-able showing, as discussed below, is indeed the proper

inquiry for standing. But the majority doesn’t hold that members’ names are

merely “relevant” to this inquiry. Instead, in the very next paragraph, it says

names are henceforth “an essential component” of a member’s standing. Id.

Notice the unexplained leap—from names being “relevant,” to names being

“essential.” It is unclear why someone must always give their name to a court to

show they are genuine about applying to a program. What’s more, according to

the majority, names are essential not only in cases where members haven’t yet

applied to a program (the supposed justification for the rule), but also in the

garden-variety of associational standing cases where members have already been

1 In any event, we already have procedural rules to address these concerns. An organization can face serious consequences, for example, if it goes to court with fake injuries to fake members. See Fed. R. Civ. P. 11.

8 injured. Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (NAACP

members were threatened with violence after opening an Alabama office to

support desegregation; the First Amendment protected those members’ right to

associate without disclosing their names to authorities). That rule will sweep

broadly.

And the justification is particularly awkward here, because the majority

says it won’t decide whether Members A and B are genuine about applying to this

Fellowship. The majority suggests that if it did, it would hold that the members

are ready and able to apply. See Maj. Op. at 27 n.8. Ironically, that holding would

demonstrate why “naming names” is an empty gesture. By implying that Do No

Harm would have standing if its members had just told us their real names, the

majority reveals that we didn’t need those names for standing after all.

In fact, if members’ real names implicated Article III jurisdiction, then it

would “make sense” to require those names at the pleading stage, too. But the

majority doesn’t purport to question our holding from Building & Construction that

members can plead an injury without their real names. One is left wondering why

these concerns suddenly become important enough to justify the opposite rule at

summary judgment. Aside from a general observation that the burden of proof

has increased, the majority never says.

9 The majority finally declares that a naming requirement will avoid

“incongru[ity]” between plaintiff individuals and plaintiff organizations. Maj. Op.

at 23. I agree with my colleagues that when an organization presses claims on

behalf of its members, “at least one association member must have standing to sue

in their own right.” Id. at 13. Thus, an organization’s claim to standing is the same

as that of its members—as if those members were themselves party to the

litigation. But when (and only when) the organization is the party, the majority

sees fit to add a naming requirement to standing, as a “demonstration of the

sincerity of the member’s interest” in the litigation. Id. at 22.

Yet in the interest of avoiding incongruities, the majority creates one.

Consider the following: Members A and B sue Pfizer individually—not as

members of Do No Harm—and refuse to give their real names to the court. So

long as they showed an injury, a court would dismiss the complaint on pleading

grounds, not jurisdictional ones. See Fed. R. Civ. P. 10(a) (requiring the complaint

to “name all the parties”); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 188–89

10 (2d Cir. 2008) (setting forth a multi‐factor test for an individual plaintiff to proceed

under a pseudonym despite Rule 10). 2

By failing to give their names, the members would have run afoul of Rule 10,

not Article III. Why, then, does Do No Harm instead run afoul of Article III, not

Rule 10? Do No Harm’s standing is dependent upon, and congruent with, that of

its members. One would think the standing requirements we impose upon each

should be the same. Instead, our Circuit has transformed a procedural rule into a

bedrock constitutional obstacle.

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

2 We impose Rule 10 (and related rules of procedure) for a myriad of practical reasons, not to determine whether someone has an Article III injury. We have explained that Rule 10 “facilitates public scrutiny of judicial proceedings and the public’s right to know who is using their courts. It also serves to ensure that a readily identifiable attorney or party takes responsibility for every paper, thus enabling the Court to exercise its authority to sanction attorneys and parties who file papers that contain misleading or frivolous assertions. Moreover, the Court cannot fulfill its statutory obligations to check for conflicts of interest or to give preclusive effect to state-court judgments in suits between the same parties without knowing the true identity of the parties at the outset of a case.” Publicola v. Lomenzo, 54 F.4th 108, 112 (2d Cir. 2022) (cleaned up).

None of this speaks to whether someone has incurred an injury to invoke our jurisdiction. Our naming rules focus on “matters of administrative convenience and efficiency, not on elements of a case or controversy within the meaning of the Constitution.” United Food & Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 556–57 (1996).

11 to those members. Regardless of what organizations one joins or what causes one

believes in, that is a troubling result.

II

That result becomes doubly troubling because it is doubly unnecessary. We

don’t need to write a naming rule into the Constitution; in fact, we don’t need a

naming rule to resolve this case at all. We could have determined standing the

way we always have: By analyzing the members’ injuries themselves.

Members A and B did not prove they suffered actual or imminent injuries.

Pseudonyms aside, the members offered precious little information about their

lives and their future plans. The only standing evidence they submitted were

virtually identical declarations about their intentions to apply for Pfizer’s

Fellowship—a program to which they would dedicate at least five years of their

lives. Those declarations are not insufficient because they don’t bear the members’

real names. They are insufficient because they are vague and conclusory.

When it comes to applying to discriminatory programs, the law allows a

plaintiff to assert harm without formally applying. The harm “is the denial of

equal treatment resulting from the imposition of the barrier, not the ultimate

inability to obtain the benefit.” Ne. Fla. Chapter of Associated Gen. Contractors of Am.

v. City of Jacksonville, 508 U.S. 656, 666 (1993).

12 Pre-application standing, however, does not offer a blank check for anyone

to challenge a discriminatory program they think violates the law. The plaintiff

(or, in the organizational context, the plaintiff’s members) must show they are

“able and ready” to apply to the program. Carney, 592 U.S. at 60. That burden

helps distinguish the plaintiff’s grievance as something “more than an abstract and

generalized harm to a citizen’s interest in the proper application of the law.” Id.

at 59 (citation omitted).

In my view, Do No Harm has not met that burden. Most of the declarations’

contents address the “ability” prong: The qualifications of Members A and B

which make them eligible for the Fellowship. Those qualifications are pitched at

a high level of generality. Both are Ivy League students (schools unknown), hold

leadership positions (specifics unknown), and hold GPAs above 3.0 (majors,

classes, extracurriculars, work history, etc., all unknown). But there will be many

white and Asian-American juniors in the Ivy League—by my guess, thousands—

who meet these same qualifications for the Fellowship. Once we set qualifications

aside, the declarations have very little to offer on the “readiness” prong: The

evidence that would truly distinguish Members A and B from the generalized Ivy

League student population.

13 It is at this “readiness” prong that the declarations fall short. In total, I count

five statements about readiness:

• “I would like to apply to the Pfizer Breakthrough Fellowship Program.”

• “I am interested in applying to the Fellowship because it is a prestigious program. And it seems like a great professional development opportunity. I would benefit greatly from working in Pfizer’s New York City office next summer and making professional connections and finding mentors through this Fellowship.”

• “I am also drawn by the fact that Pfizer will pay a full scholarship for an MBA program. A fully funded MBA program would be a wonderful way to enrich my professional experience.”

• “I am able and ready to apply to the 2023 class of the Fellowship if Pfizer stops categorically excluding white [or Asian-American] applicants like me from the Fellowship.”

• “If I get accepted and join the Fellowship, I am prepared to meet the program’s requirements and expectations.”

Joint App’x at 36–41 (emphases added).

Even read liberally, these are a “few words of general intent” which do not

suffice to prove readiness. Carney, 592 U.S. at 64. Our essential guidance

regarding such statements comes from Carney, a case, like this one, involving a

summary judgment burden to prove standing. There, a lawyer sought to

challenge the constitutionality of judicial positions to which he had not applied.

He nevertheless argued that he was ready to apply because he swore that he

14 “would apply for any judicial position that [he] thought [he] was qualified for,”

and “would seriously consider and apply for any judicial position for which he

feels qualified.” Id. at 61. The Supreme Court concluded that these statements

were too generalized to prove standing—they had not “differentiated” the lawyer

“from a general population of individuals affected in the abstract” by the

constitutional provision. Id. at 64.

Those statements in Carney (that the lawyer “would apply” and “would

seriously consider and apply”) are effectively indistinguishable from the

statements here (that Members A and B “would like to apply” and are “interested

in applying”). And when the members say they are “able and ready to apply,”

they simply “parrot” the legal standard. Calcano v. Swarovski N. Am. Ltd., 36 F.4th

68, 76 (2d Cir. 2022) (dismissing for lack of standing based on conclusory

statements of intent). If those conclusory statements of intent alone were enough

to show standing, then thousands of students could claim injury in this case—just

so long as they sign a short declaration saying they are interested in Pfizer’s

Fellowship.

True, Carney did not decide for all time “whether [] statement[s] of intent

alone . . . could” ever “be enough to show standing.” 592 U.S. at 64. But it put a

thumb on the scale against them. It required some additional evidence to support

15 the plaintiff’s intent beyond his own statements—and identified several examples.

For one, he had never applied to a similar position before. Id. at 61. Nor had he

identified “an anticipated timeframe” for applying, any “prior relevant

conversations,” any “efforts to determine likely openings,” any “other

preparations or investigations,” or plainly, “any other supporting evidence.” Id.

at 63.

What bolstering evidence have Members A and B put forth that would be

similar to Carney’s examples? They have referenced an anticipated timeframe in

that they had to apply during the Fellowship’s 2023 cycle. But that’s it. There is

no “other supporting evidence” accompanying their words of general intent.

Carney therefore cuts decisively against Do No Harm. The Supreme Court’s

other “ready and able” cases are of no help either. They relied upon each plaintiff’s

history of previous applications to recurring programs to bolster standing. See

Gratz v. Bollinger, 539 U.S. 244, 261–62 (2003); Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 211–12 (1995); Ne. Fla. Chapter of Associated Gen. Contractors, 508 U.S. at

668–69. Members A and B, of course, cannot rely on these cases or similar

historical evidence—they can only apply to Pfizer’s Fellowship once, during their

junior year. Yet just because these cases are distinguishable does not mean we

16 should invert their holdings to excuse plaintiffs from providing some evidence

besides historical applications when their own programs do not recur.

In Carney’s mold, our own precedents have required not just a stated intent

to apply to a program, but some indicia of action—and crucially, have done so

under a lesser burden at the pleading stage. For instance, we have held that

members of an organization who alleged that they “intend[ed]” to apply for jobs

at a university or “intend[ed]” to submit law review articles for publication failed

to establish standing to challenge several of the university’s allegedly

discriminatory programs. FASORP v. New York Univ., 11 F.4th 68, 76–77 (2d Cir.

2021). Those members described no “concrete plans” to actually apply; they just

expressed “some day intentions” to apply. Id. at 77 (quoting Summers, 555 U.S. at

496). They had not identified anything they had done to apply for employment or

submit an article (for example, by drafting an article for submission). Id. at 76. We

have also held that a casino developer did not plead standing where it claimed to

be “interested” in developing a casino and had even “made initial studies of the

viability” of doing so, but had “not alleged any concrete plans to enter into a

development agreement . . . or demonstrated any serious attempts at negotiation.”

MGM Resorts Int’l Glob. Gaming Dev., LLC v. Malloy, 861 F.3d 40, 47 (2d Cir. 2017).

17 This case is missing those same indicia of action. Members A and B

described no concrete plans for applying to the Fellowship if it stopped

discriminating against them tomorrow. Did they prepare any materials to submit

to the Fellowship? Did they ask Pfizer for more specifics about the program, or

talk to any Pfizer employees? Did they adjust their studies to strengthen their

candidacies—perhaps by taking courses in biotechnology or business

administration? Neither of them identified these or any other preparatory steps,

big or small, to signal a concrete readiness to apply to the Fellowship—a life-

changing program in which they would dedicate their careers to Pfizer for the next

five years or more. 3

Perspective is important here: On day one of this case, the plaintiff asked

the district court to immediately alter a program, based solely on several members’

claims that they “would like” to apply or were “interested” in applying to that

program at some time in the future. In this context, to establish a case or

controversy, these aspirational statements come up short.

3Like in Carney, these examples are not intended to be exhaustive. This is a “highly fact- specific” inquiry, and the record is not developed enough to determine every possible step that Members A and B could have taken to show they were ready to apply. Carney, 592 U.S. at 63. But we need not speculate about every piece of “supporting evidence” that the members could have provided. Id. The burden to do so was on Do No Harm.