Three weeks ago, thousands of listeners tuned in eagerly to hear oral argument before a Ninth Circuit panel in State of Washington v. Trump, surely hoping to hear heated exchanges about immigration policy and presidential authority. Many were likely disappointed. Rather than focusing on the merits of an executive order that has garnered strong opinions on all sides of the political spectrum, the lawyers and the court spent much of their time discussing standing, a topic that excites only the most devoted civil-procedure enthusiasts.
But in this era, where controversial new policies are announced in the nation’s capital seemingly daily, standing questions have taken center stage. While the Ninth Circuit wrestled with the standing of states in State of Washington, standing is also a particularly important issue for organizations and advocacy groups that are clamoring to challenge the new president’s agenda. Organizational standing is even an issue on the Supreme Court’s docket this term. In Bank of America Corp. v. City of Miami, Docket No. 15-1111 (argued November 8, 2016), one of the questions presented is whether Miami has standing to challenge allegedly discriminatory mortgage lending practices under the Fair Housing Act. The Supreme Court’s ruling could alter the current state of the law on direct organizational standing.
For lawyers who frequently represent or work with organizations, it is worth reviewing the two principal routes by which organizations can get through the courthouse door: direct organizational standing and representative standing.
Direct Organizational Standing
Organizations have standing to challenge actions that cause them direct injury. As the Supreme Court recognized in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), direct organizational injury is typically cognizable in two ways: (A) a diversion of organizational resources to identify or counteract the allegedly unlawful action, or (B) frustration of the organization’s mission. While most jurisdictions require organizations to show only one of these forms of injury to establish standing, some jurisdictions, notably the Ninth Circuit, require organizations to show both. Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002).
Diversion of resources. An organization may be able to establish standing by showing that it diverted its resources to identify or counteract a defendant’s allegedly unlawful actions. To satisfy the standing requirement, organizations should be prepared to show that resources that could have otherwise been spent on fulfilling the organization’s goals were diverted to address the challenged policy or practice. Fair housing organizations, for example, have frequently been held to have standing based on their use of testers to identify allegedly discriminatory housing practices. A circuit split exists, however, concerning whether diverting resources to support litigation alone suffices to confer standing—in the D.C., Third, and Fifth Circuits, litigation expenses alone do not establish standing, while in the Second, Sixth, Seventh, Eighth, and Eleventh Circuits they can.
Frustration of mission. An organization can also establish standing by showing a direct injury from conduct or policies that frustrate its mission. For example, in NYCLU v. N.Y.C. Transit Authority, 684 F.3d 286 (2d Cir. 2011), the Second Circuit held that the NYCLU had standing to challenge the New York City Transit Authority Board’s refusal to allow access to its hearings. The denial of access, the court held, impeded the NYCLU’s ability to observe board hearings and thereby prepare to represent its clients before the board.
Representational Standing
Even in the absence of direct organizational standing, an organization may be able to establish representational standing based on injuries to its members. Having a membership is, of course, essential to establishing representational standing, and it is therefore particularly useful for organizations such as unions, which frequently have an interest in seeking redress on behalf of their members. An organization can establish representative standing by showing that at least one of its members has standing, that the interests at stake are germane to the organization’s purpose, and that neither the claim nor the relief requires participation of the organization’s individual members. Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).
Thinking creatively about bringing cases on behalf of organizations expands the universe of potential plaintiffs. Lawyers who work with organizations should familiarize themselves with these standing doctrines—as well as any landscape shift that occurs when the Supreme Court decides City of Miami later this spring—and use them to bring cases on behalf of organizations that are impacted by unlawful conduct.
Sam Shapiro is an associate at Emery Celli Brinckerhoff & Abady LLP in New York, New York.