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: January 10, 2025)
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.) sua sponte dismissing the case without prejudice on the ground that Do No Harm lacked Article III standing. We previously affirmed the district court’s decision in a published opinion. On petition for rehearing, we withdraw that opinion and issue this decision in its place. 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 to secure a preliminary injunction because it failed to identify a single injured member by name, and the unidentified members it claimed were injured had failed to demonstrate that they were ready and able to apply for the fellowship but for the alleged discriminatory eligibility requirements. Concluding that its determination that Do No Harm lacked standing to secure a preliminary injunction required dismissal of Do No Harm’s claims, the district court dismissed the case on its own initiative. On appeal, Do No Harm challenges only the dismissal. We conclude that the district court applied the wrong standard in assessing Do No Harm’s standing for purposes of dismissal. For purposes of establishing Article III standing to secure a preliminary injunction, the evidentiary burden is at least as onerous as the burden for establishing standing to secure a summary judgment. Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011). By contrast, at the dismissal stage a plaintiff can establish standing on the basis of allegations. As a consequence, the district court’s determination that Do No Harm failed to establish standing to secure a preliminary injunction was not conclusive of Do No Harm’s standing to pursue a claim at the dismissal stage. Because intervening questions of mootness have arisen, we remand for the district court to assess Do No Harm’s Article III standing applying the standard applicable at the pleading stage, leaving to the district court’s discretion which jurisdictional question to address first. We accordingly VACATE and REMAND. Judge Wesley dissents 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,
2 Wharton & Garrison LLP, Washington, DC, on the brief), for Defendant-Appellee.
PER CURIAM: *
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
concluded that Do No Harm lacked standing to secure a preliminary injunction,
and on its own initiative 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
*Judges Jacobs and Robinson join in the per curiam opinion. Judge Wesley dissents in a separate opinion.
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.”
3 particular, the district court concluded that Do No Harm lacked Article III
standing because, 1) it failed to identify a single injured member by name, id. at
504–05, and 2) it failed to adequately show that at least one identifiable member is
“able and ready” to apply, id. at 506. Concluding that its ruling regarding Do No
Harm’s standing to seek a preliminary injunction was conclusive of Do No Harm’s
Article III standing to pursue its claims at all, the district court dismissed Do No
Harm’s claims. Id. at 517–18.
We previously affirmed the district court’s decision in a published opinion.
Do No Harm v. Pfizer, Inc., 96 F.4th 106 (2d Cir. 2024). On petition for rehearing,
we vacate that opinion and issue this decision in its place.
On appeal, Do No Harm does not challenge the district court’s denial of its
motion for preliminary injunction. It challenges only the court’s dismissal of its
claims on standing grounds.
We conclude that the district court applied the wrong standard in
dismissing Do No Harm’s claims upon denying its motion for preliminary
injunction. The evidentiary burden for establishing Article III standing for the
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.
4 purposes of a motion for a preliminary injunction is at least as onerous as the
burden for establishing standing to secure a summary judgment. Cacchillo v.
Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011). The burden for establishing standing
at the dismissal stage is lower. Lujan v. National Wildlife Federation, 504 U.S. 555,
561 (1992) (to establish standing at the pleading stage, “general factual allegations
of injury resulting from the defendant’s conduct may suffice”).
Because the district court’s conclusion that Do No Harm lacked standing
turned on the quality and quantity of its evidence to support standing rather than
a legal deficiency in Do No Harm’s theory of standing, the district court erred in
concluding that its determination that Do No Harm had failed to establish
standing to secure a preliminary injunction required that Do No Harm’s claims be
dismissed. The district court’s alternative ruling dismissing individual claims on
the merits was premature. We accordingly VACATE and REMAND for further
proceedings consistent with this opinion.
5 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 eligible to apply for the Fellowship only 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).
6 • 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 2023 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 Pfizer.com/Careers page to receive email or text notifications when positions are opened. 7 Id. at 51. The webpage further stated that “[a]pplications for the 2023
Breakthrough Fellowship Program will open shortly end 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
“meet the program’s goals of increasing the pipeline for Black/African American,
8 Latino/Hispanic and Native Americans.” J. App’x 8, 11–14 (cleaned up) 3. 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.” 4 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,
3The parenthetical “cleaned up” signifies that internal quotation marks, brackets, footnotes, and citations from the original source have been omitted, and alterations accepted.
4In 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. App’x 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.
9 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
10 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 518.
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 (cleaned
up). Consistent with its statement that if a plaintiff fails to establish standing to
11 secure a preliminary injunction the court should dismiss the case on standing
grounds, id. at 500, the court dismissed Do No Harm’s claims.
In an alternative analysis, the court considered Do No Harm’s “claim-
specific” standing to pursue its federal claims.5 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, in the alternative, 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.
5 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).
12 When it filed its brief and joint appendix, Do No Harm moved to
supplement the record on appeal with another declaration of Do No Harm
Executive Director 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.
In the meantime, Pfizer has represented that by the time it opened the
application process for the 2023 cycle of the Fellowship, it had changed its selection
criteria. App. Ct. Dkt. Nos. 114, 118. In particular, Pfizer edited its FAQs section
to state, in pertinent part:
You are eligible to apply for the Breakthrough Fellowship Program regardless of whether you are of Black/African American, Latino/Hispanic, or Native American descent. All applicants are asked to demonstrate their significant commitment and ability to further the Breakthrough Fellowship Program’s goals by submitting a brief written statement.
13 Pfizer, Breakthrough Fellowship Program FAQs,
https://cdn.pfizer.com/pfizercom/Program_FAQs_08302023.pdf
[https://perma.cc/673S-GA3W] (last visited Jan. 9, 2025).
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).
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
14 speculative, that the injury will be redressed by a favorable decision.” Lujan, 504
U.S. at 560–61 (cleaned up).
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).
On appeal, Do No Harm does not directly challenge the district court’s
denial of its motion for preliminary injunction. Instead, it 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
15 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.
Because Do No Harm does not challenge the district court’s conclusion that
it failed to establish its standing to secure a preliminary injunction, we need not
address the merits of the court’s analysis on that point. We focus, then, on the
district court’s order dismissing Do No Harm’s 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
16 F.3d 217, 222 (2d Cir. 2008). Applying that standard, we conclude that the district
court erred in concluding that Do No Harm’s failure to establish standing to secure
a preliminary injunction required all out dismissal of Do No Harm’s claims. The
evidentiary burden to establish standing to seek a preliminary injunction is more
onerous than the burden at the pleading stage. Accordingly, when a plaintiff fails
to establish standing to secure a preliminary injunction, the plaintiff may maintain
the action if the allegations in the complaint are sufficient to support standing
under the standard applicable at the pleadings stage. We remand for the district
court to conduct that assessment in the first instance.
I. The District Court’s Dismissal
In evaluating the district court’s dismissal of Do No Harm’s claims on the
basis of standing, we consider the varying evidentiary burdens for establishing
standing at different stages of litigation, the implications of a failure to establish
standing to secure a preliminary injunction for a plaintiff’s standing to otherwise
pursue the claims, and the district court’s analysis here.
A. Preliminary Injunctions, Dismissals, and Standing
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
17 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.
To establish standing at the pleading stage, “general factual allegations of
injury resulting from the defendant’s conduct may suffice,” because at the
pleading stage we “presume that general allegations embrace those specific facts
that are necessary to support the claim.” Id. (cleaned up). “In response to a
summary judgment motion, however, the plaintiff can no longer rest on such mere
allegations, 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).
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 (cleaned up).
Consequently, 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).
Thus, in assessing Do No Harm’s standing to seek a preliminary injunction,
the district court properly held Do No Harm to an evidentiary burden for
18 establishing standing at least as rigorous as the standard that applies at the
summary judgment stage. Do No Harm, 646 F.Supp.3d at 499–500. The merits of
the district court’s application of this burden to Do No Harm’s request for a
preliminary injunction are not before us. We assume without deciding that Do No
Harm failed to establish standing on the preliminary injunction motion.
B. Impact of a Lack of Standing for Preliminary Injunction
The critical question here is whether Do No Harm’s failure to establish
standing to secure a preliminary injunction doomed its claims altogether. That is,
if a plaintiff seeks a preliminary injunction but fails to establish standing, is a court
obligated to dismiss the case altogether? On this point, the district court said yes.
Id. at 500 (“If a plaintiff fails to establish standing, the court need not address the
factors to be considered in deciding whether to award a preliminary injunction
and should instead deny the motion and dismiss the case for lack of subject matter
jurisdiction.” (cleaned up)).
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.
19 A splintered D.C. Circuit decision from 2015, Obama v. Klayman, 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.). In 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 court, and I would 20 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).
Although the D.C. Circuit applies a different standard from this Circuit in
assessing standing at the preliminary injunction stage—it evaluates whether the
plaintiff has shown a “substantial likelihood” of establishing standing, id.—the
divergent approaches modeled in Klayman are instructive and highlight that the
answer to our central question is nuanced.
In some cases, a plaintiff’s failure to establish standing to secure a
preliminary injunction has nothing to do with the measure of evidence the plaintiff
has produced. The plaintiff’s legal theory itself, rather than the insufficiency of
the plaintiff’s evidence, may doom the plaintiff’s standing. If that becomes
apparent to the district court upon review of the plaintiff’s motion for preliminary
injunction, the court cannot consider the merits of the preliminary injunction 21 motion and should dismiss the claim altogether. See Munaf v. Geren, 553 U.S. 674,
691 (2008) (“Review of a preliminary injunction is not confined to the act of
granting the injunction, but extends as well to determining whether there is any
insuperable objection, in point of jurisdiction or merits, to the maintenance of the
bill, and if so, to directing a final decree dismissing it.” (cleaned up)); Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 101 (1998) (holding that Article III
standing is “always an antecedent question,” such that a court cannot “resolve
contested questions of law when its jurisdiction is in doubt”); Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006) (Once a federal court determines it lacks subject
matter jurisdiction, “the court must dismiss the complaint in its entirety.”).
Thus, in cases in which a plaintiff cannot establish standing no matter how
much evidence the plaintiff musters, Judge Sentelle’s approach makes sense. See,
e.g., Cave v. East Meadow Union Free School Dist., 514 F.3d 240, 251 (2d Cir. 2008)
(where district court lacked subject matter jurisdiction due to plaintiffs’ failure to
exhaust administrative remedies, motion for preliminary injunction should “have
been dismissed for lack of jurisdiction, rather than on the ground that appellants
are unlikely to succeed on the merits of their action”); cf. Rojas v. Cigna Health and
Life Ins. Co., 793 F.3d 253, 259 (2d Cir. 2015) (affirming dismissal of doctor’s ERISA
claim in context of his request for a preliminary injunction where provider was not
22 a “beneficiary” of the ERISA plan and thus lacked “statutory standing” to bring
an ERISA retaliation claim).
On the other hand, if the failure to establish standing arises from the
insufficiency of the plaintiff’s evidence of standing, and that insufficiency may be
remediable, dismissal of a plaintiff’s claims because the plaintiff has failed to
muster sufficient evidence to establish standing for a preliminary injunction
would be premature. A determination that the plaintiff hasn’t presented enough
evidence to establish standing in the preliminary injunction context doesn’t mean
the plaintiff won’t be able to do so at a later stage in the proceeding.
The most obvious circumstance in which this may arise is when the plaintiff
may require jurisdictional discovery to get the evidence needed to support the
plaintiff’s standing. See, e.g., 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 568 (opinion of Williams, J.) (same).
“[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.” Katz v. Donna Karan Company, L.L.C., 872 F.3d 114,
121 (2d Cir. 2017) (quoting Amidax Trading Group v. S.W.I.F.T. SCRL, 671 F.3d 140,
23 149 (2d Cir. 2011)). Dismissing claims before a plaintiff has had a chance to
conduct necessary discovery would violate this admonition.
But even in cases where the plaintiff’s failure to muster sufficient evidence
to establish standing to secure a preliminary injunction arises from the plaintiff’s
failure to proffer sufficient evidence to establish standing, the consequence of that
failure is that the plaintiff isn’t entitled to a preliminary injunction. We see nothing in
the law or rules of procedure that requires plaintiffs who opt to seek a preliminary
injunction on incomplete evidence to risk outright dismissal, even if their
allegations are otherwise sufficient to establish standing at the pleading stage. 6
C. District Court’s Analysis
As noted above, in assessing Do No Harm’s standing to seek a preliminary
injunction, the district court properly held Do No Harm to an evidentiary burden
for establishing standing at least as rigorous as the standard that applies at the
6 We note that our conclusion on this point does not rest on the United States Supreme Court’s recent decision in Murthy v. Missouri, 603 U.S. 43 (2024), a ruling Do No Harm views as determinative. In Murthy, the Supreme Court considered whether the individual and state plaintiffs had Article III standing to secure a preliminary injunction enjoining federal government officials from urging social media platforms to remove or suppress content. In framing its analysis, the Court stated, “At the preliminary injunction stage . . . the plaintiff must make a ‘clear showing’ that she is ‘likely’ to establish each element of standing. Where, as here, the parties have taken discovery, the plaintiff cannot rest on ‘mere allegations,’ but must instead point to factual evidence.” Id. at 58 (cleaned up). Nothing in the Murthy Court’s discussion addresses the critical issue in this case: if the plaintiff fails to present sufficient evidence to satisfy the standard, should the court dismiss the case or simply allow it to go forward? For that reason, Murthy is not determinative of the issue before us.
24 summary judgment stage. Do No Harm, 646 F.Supp.3d at 499–500. The court’s
underlying analysis focused on the quantity and quality of Do No Harm’s
evidence, rather than a fundamental flaw in Do No Harm’s claim to standing. See,
e.g., id. at 504 (“Because Plaintiff does not identify by name any member with
standing or advance a theory that all of its members have standing, Plaintiff lacks
Article III standing.”); id. at 505–06 (“Even 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 . . . Plaintiff has not adequately shown
that at least one identifiable member is ‘able and ready’ to apply.”).
Even if these evidentiary shortcomings would impair Do No Harm’s ability
to secure a favorable judgment on the merits—a question we need not decide
here—they do not present an insurmountable obstacle to Do No Harm’s standing.
Do No Harm could identify its allegedly injured member or members by name,
and those members could provide more detailed information to establish in a more
particularized way that they are ready and able to apply for and accept the
Fellowship if offered.
Accordingly, the district court erred to the extent it concluded that its
resolution of the standing question with respect to the preliminary injunction
25 motion was, in this case, conclusive as to Do No Harm’s Article III standing to
maintain this action. 7
II. Remand
That leaves the question whether Do No Harm has sufficiently pled standing
to survive a motion to dismiss. Although the district court did not decide this
issue, it is within our discretion to consider it. See, e.g., Liberty Mutual Insurance
Company v. Hurlbut, 585 F.3d 639, 648 (2d Cir. 2009) (exercising “our discretion to
affirm the district court’s judgment on any ground appearing in the record, even
if the ground is different from the one relied on by the district court.” (cleaned
up)). But we also “have discretion to choose not to do so based on prudential
factors and concerns.” Saeli v. Chautauqua County, NY, 36 F.4th 445, 461 (2d Cir.
2022) (cleaned up).
7 The district court did suggest that, with respect to the “naming names” issue, it would have concluded that Do No Harm lacked standing even under the standards applicable at the pleadings stage. Do No Harm v. Pfizer Inc., 646 F.Supp.3d 490, 504 (S.D.N.Y. 2022). We do not treat this passing statement as an alternate holding. The district court’s analysis was otherwise anchored in the Cacchillo standard applicable to a request for preliminary injunction. Id. at 499– 500. The primary Supreme Court decision the district court relied on in its analysis arose in the context of review of a final adjudication on the merits. See Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009). And the district court did not address this Court’s decision in Building and Construction Trades Council of Buffalo, New York and Vicinity v. Downtown Development, Inc., 448 F.3d 138 (2d Cir. 2006), in which we concluded that an organizational plaintiff need not identify specific injured members by name at the pleading stage, while recognizing that a naming requirement “might have some validity . . . at the summary judgment stage.” Id. at 144–45.
26 We choose to remand. If on remand Pfizer moves to dismiss Do No Harm’s
claims on the ground of standing, we leave it to the district court to address in the
first instance the question whether Do No Harm’s pleadings are adequate. We
further deny as moot Do No Harm’s request to supplement the record. The district
court can address such a motion in the first instance, and may address any other
jurisdictional issues that arise. See Sinochem International Co. Ltd., v. Malaysia
International Shipping Corp., 549 U.S. 422, 431 (2013) (“[A] federal court has leeway
to choose among threshold grounds for denying audience to a case on the merits.”)
(citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999) and Steel Co. v.
Citizens for Better Environment, 523 U.S. 83, 100–01, n.3 (1998)). 8
CONCLUSION
For the above reasons, we GRANT Do No Harm’s Petition for Rehearing,
VACATE our prior judgment in this appeal, VACATE the district court’s
dismissal of Do No Harm’s claims, DENY Do No Harm’s motion to supplement
8 We note that the district court’s consideration, on its own initiative, of alternative grounds for dismissal were premature. At least with respect to the Title VI and ACA claims, the district court’s analysis turned on the merits, rather than Article III standing. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101–02 (1998) (explaining that a court has no authority to pronounce upon the meaning or constitutionality of a state or federal law when it has no jurisdiction).
27 the record on appeal as moot, and REMAND to the district court for further
28 23-15 Do No Harm v. Pfizer Inc.
WESLEY, Circuit Judge, dissenting:
In our prior opinions in this case, my colleagues and I reached different
conclusions as to why Do No Harm lacked standing on its motion for a
preliminary injunction. Compare Do No Harm v. Pfizer Inc., 96 F.4th 106, 115–19 (2d
Cir. 2024) (no standing because Members A and B were not identified by name),
with id. at 126–29 (Wesley, J., concurring) (no standing because Members A and B
did not show they were “ready” to apply to the Breakthrough Fellowship).
However, we did agree on two points: first, that Do No Harm had to prove
standing on that motion under the evidentiary burden applicable at summary
judgment, see Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011); and second,
that the district court properly dismissed the case after concluding that Do No
Harm did not meet that burden.
Although we still agree on the first point, the majority today reverses course
on the second. The majority revisits Obama v. Klayman, 800 F.3d 559 (D.C. Cir.
2015), and now reasons that dismissing a case for lack of standing “would be
premature” if a plaintiff has not “muster[ed] sufficient evidence to establish
standing for a preliminary injunction” but has adequately alleged standing in its
complaint. Maj. Op. at 23–24. And because it reads the district court’s decision to
dismiss the case as turning on “the quantity and quality” of the evidence marshaled in support of Do No Harm’s preliminary injunction motion, the
majority concludes that the district court erred by dismissing the case without
considering whether Do No Harm’s complaint was sufficient under the pleading
standard. Id. at 25–26.
I see no need to debate the majority’s new jurisdictional course for, as I
suggested before, Do No Harm failed to meet the pleading standard too. Do No
Harm lacked standing under the standard applicable for a preliminary injunction
because the declarations submitted by Members A and B did not establish that
either was ready to apply to the Fellowship. Those declarations were equally
inadequate under the pleading standard: Members A and B offered only sparse,
conclusory assertions that they were ready to apply to a program that would shape
at least the next five years of their lives, and perhaps the better part of their early
careers. 1 See Do No Harm, 96 F.4th at 128–29 (Wesley, J., concurring). Without
alleging some further indicia of action that could demonstrate their concrete plans
to apply to the Fellowship, Do No Harm failed to establish actual or imminent
injuries to Members A and B. See FASORP v. New York Univ., 11 F.4th 68, 76–77
1Do No Harm’s complaint and Member A’s and Member B’s declarations contain similar allegations and statements about the members’ readiness to apply to the Fellowship. Accordingly, it makes no difference whether Do No Harm’s complaint, its members’ declarations, or both are assessed under the pleading standard.
2 (2d Cir. 2021) (no standing at the pleading stage for association challenging
university’s allegedly discriminatory programs, where association’s members
provided no “description of concrete plans to apply for employment, submit an
article, or of having submitted an article, that will or has been accepted for
publication” (internal quotation marks and citation omitted)); MGM Resorts Int’l
Glob. Gaming Dev., LLC v. Malloy, 861 F.3d 40, 47 (2d Cir. 2017) (same, for casino
developer that claimed to be “interested” in developing a casino and had “made
initial studies of the viability of a casino” but had “not alleged any concrete plans
to enter into a development agreement with a Connecticut municipality, or
demonstrated any serious attempts at negotiation”). 2
I therefore remain of the view that the district court properly dismissed this
case for lack of subject matter jurisdiction. The majority resists this conclusion—
indeed, resists applying its new framework for analyzing standing altogether—
and instead remands so that the district court can assess Do No Harm’s complaint
2The majority suggests that dismissing a case for lack of standing at the pleading stage is permissible when a plaintiff’s “theory of standing” is “legal[ly] deficien[t].” Maj. Op. at 5. That makes sense to me. But even a plaintiff with a legally viable “theory of standing” must “clearly allege facts demonstrating each element” of standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (alterations, internal quotation marks, and citation omitted). Do No Harm did not do so here.
3 under the pleading standard. Given my view that Do No Harm failed to
adequately allege standing, I would not ask any more of the district court here.