Health Research Group v. Kennedy

82 F.R.D. 21, 9 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1979 U.S. Dist. LEXIS 13809
CourtDistrict Court, District of Columbia
DecidedMarch 13, 1979
DocketCiv. A. No. 77-0734
StatusPublished
Cited by27 cases

This text of 82 F.R.D. 21 (Health Research Group v. Kennedy) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Health Research Group v. Kennedy, 82 F.R.D. 21, 9 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1979 U.S. Dist. LEXIS 13809 (D.D.C. 1979).

Opinion

OPINION

SIRICA, District Judge.

Plaintiffs Health Research.Group (HRG) and Public Citizen originally brought this action in April 1977 seeking declaratory and injunctive relief against the Food and Drug Administration (FDA). Their basic claim was that certain aspects of the FDA’s system for .regulating .the over-the-counter (OTC) drug market — those which affirmatively sanction the marketing of Category III1 21 OTC drugs — are fundamentally inconsistent with the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301-381 (1976). The original named defendant was Dr. Donald Kennedy, the FDA Commissioner. In July 1977 the Proprietary Association, Inc., a trade association whose members include manufacturers of OTC drugs, was granted leave to intervene as a party defendant.

Plaintiffs soon moved for summary judgment and both defendants filed cross-motions seeking to uphold the affirmative' marketing provisions on the merits. The Proprietary Association also argued, in the alternative, that neither plaintiff had standing to bring the action.

[23]*23On December 1, 1978, the Court issued a memorandum indicating that neither the complaint, nor any supporting materials filed in the action, adequately established plaintiffs’ standing. Plaintiffs were given an opportunity to seek leave to amend the complaint and to file affidavits in support of their standing. See Warth v. Seldin, 422 U.S. 490, 501-02, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). See also note 11, infra. The Court’s December memorandum also raised certain questions regarding the ripeness of the controversy for judicial intervention.2

Plaintiffs responded to the Court’s memorandum by seeking leave to file an amended complaint. Their motion is designed to add three new, individual plaintiffs to the action. The organizational plaintiffs state that the addition of these individuals would make their own standing “immaterial.” Alternatively, plaintiffs maintain that they have standing in their own right, relying on several affidavits and documentary exhibits filed in response to the Court’s December memorandum.

Following the taking of depositions of the three proposed individual plaintiffs, defendant Proprietary Association responded by: (1) renewing its argument that the original plaintiffs have no standing; (2) challenging the motion for leave to amend on grounds of timeliness and prejudice and the lack of both standing and “interest” of the proposed plaintiffs; and (3) for the first time, arguing that none of the present or proposed plaintiffs has a claim which is ripe for review. The federal defendant’s counsel3 responded with a motion to dismiss the original complaint on the grounds of lack of ripeness, failure to exhaust administrative remedies, and lack of standing. Also filed was a cursory opposition, on grounds of lack of timeliness, to plaintiffs’ motion for leave to amend their complaint. The federal defendant addressed the question of standing only with regard to the original plaintiffs, noting that if plaintiffs’ motion for leave to amend is granted, it “plans to challenge the standing of the three additional plaintiffs by motion and a supplemental memorandum.” Federal Defendant’s Motion to Dismiss, at 16 n. 8 (filed Jan. 29, 1979).

The parties’ responses to the Court’s December memorandum have obviously complicated the preliminary issues before the Court. Fortunately, the question of the standing of the present, organizational plaintiffs — the issue which must be addressed at the threshold — has been fully briefed and the inadequacies in the record which previously troubled the Court have been remedied. It is to that issue that the Court first turns.

I.

An association’s standing to seek judicial relief may arise in one of two ways. First, “an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.” Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975).4 Second, whether or not an association suffers injury itself, it “may have standing solely as the representative of its mem[24]*24bers."5 Id. (emphasis added) (citing National Motor Freight Ass’n v. United States, 372 U.S. 246, 83 S.Ct. 688, 9 L.Ed.2d 709 (1963)).

In the case at bar, plaintiffs Public Citizen and Health Research Group allege no injury to any interest of their own. They seek instead to establish their standing solely in a representational capacity. See Complaint, para. 18. Plaintiffs do not, however, seek standing as the representatives of their members. Indeed, plaintiffs concede that they have no members, having been intentionally structured as non-membership organizations in order to promote “efficiency.” Supplemental Affidavit of Dr. Sidney M. Wolfe (filed Dec. 19, 1978) (hereinafter cited as “Wolfe Affidavit”). Rather, plaintiffs allege injury only to their “contributors” and “supporters.” Because plaintiffs do not claim injury to any interest of their own, the question arises whether they may have standing solely as the representatives of these contributors and supporters.6 This question requires the Court to review the origin and purposes of the representational standing doctrine summarized in Warth in light of the characteristics of the plaintiff organizations and their allegations of injury-

A.

Public Citizen, Inc., is a public interest organization organized as a District of Columbia non-profit corporation. Wolfe Affidavit, at 1. Founded in 1971 by Ralph Nader, it serves as an umbrella organization for the financing and operation of various consumer advocacy groups, including plaintiff HRG. Funding is obtained through individual contributions.7 The organization is run (“headed”) by a board of directors appointed by Mr. Nader, who “structured Public Citizen as a non-membership organization in order to promote efficiéncy and to minimize some of the expense and other burdens which have been experienced by membership organizations.” Id. at 2. Plaintiffs emphasize, however, that individual supporters and contributors “influence Public Citizen’s activities through their financial support and their letter writing.” Id. at 4.8

Public Citizen’s official position on particular issues is said to be “determined primarily by its employees.” Id. at 4. These positions are advocated in frequent appearances in administrative proceedings and litigation in the federal courts.

HRG, in turn, is one of several consumer advocacy groups funded and operated by Public Citizen. Its purpose is “consumer research and advocacy on health issues” and it “has done extensive work on many ‘Category IIP drugs.” Complaint, para. 3. Like Public Citizen, it has no members. Unlike its parent organization, however, HRG has no direct contributors, being funded primarily by Public Citizen.9

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Bluebook (online)
82 F.R.D. 21, 9 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1979 U.S. Dist. LEXIS 13809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/health-research-group-v-kennedy-dcd-1979.