Stand by Your Case? Without Standing, Supreme Court Precedent Means You’ll Have More Bad Times than Good

Sometimes it’s difficult to be a plaintiff, putting all your work into just one case. That’s especially true if recent Supreme Court rulings have rendered your matter a quixotic pursuit, doomed to fail for lack of direct causation.

That’s what happened last week in District Court in Maryland. Following the precedent on standing that the Supreme Court handed down in June in FDA v. Alliance for Hippocratic Medicine et al., a judge in Maryland dismissed another suit against FDA for lack of standing.

The plaintiffs in that case—Alliance of Nurses for Healthy Environments, et al v. FDA—were a group of environmentally conscious interest groups that brought suit against FDA to better regulate the use some antimicrobials in livestock and poultry. All the parties agreed that the rampant use of these drugs potentially creates long-term problems, such as the kind of bacterial resistance that potentially makes infections more difficult to treat.

Alliance for Nurses started as a Citizen’s Petition back in 2016, making its way to District Court when FDA took no action. In alleging that antibiotic use was a public health problem that FDA should regulate, the plaintiffs offered several testimonials from ostensibly affected people. They included a nurse that feared bringing resistant infections home to his family, a sportsman fearful to fish downstream from a farm where antibiotics are used, and families that altered their shopping habits to buy organic food that they thought was less likely to be affected by antibiotic use.

In dismissing the suit for lack of standing, the court in Maryland followed the precedent from Hippocratic Medicine. There, SCOTUS dismissed the high-profile lawsuit concerning the abortion drug Mifepristone. The unanimous Court held that the doctor-plaintiffs in Hippocratic Medicine had not suffered direct, causal injury. They were suing on behalf of doctors everywhere who might be affected by the legal use of mifepristone, but none of them alleged actual injury from the drug’s availability. Thus, ruled SCOTUS, they were “unregulated parties who seek to challenge FDA’s regulation of others,” in spite of their indirect link to the actual alleged controversy.

In Alliance for Nurses, the court similarly ruled that the plaintiffs were suing FDA to prevent a harm that had not yet occurred to them. The causation of injury was too speculative, too indirect to support an actual case or controversy under Article III of the U.S. Constitution. As outlined by the court, the chain of causation read like a prosaic Rube Goldberg machine:

The precise ultimate injuries the plaintiffs’ members identify vary. Some allege health injuries, like an increased likelihood of suffering an antibiotic-resistant infection. Others allege harm to recreational and aesthetic interests, like fishing less often to reduce exposure to bacteria-infested water. Still others allege economic injuries, like buying antibiotic-free meat to mitigate the risk of exposure to antibiotic-resistant bacteria or buying separate work clothes so that their care for infected patients does not jeopardize the health of their family members. But all of the injuries the plaintiffs’ members identify come at the end of a causal chain at least as lengthy and uncertain as the one the Alliance for Hippocratic Medicine Court found too speculative and attenuated to establish standing.

We’ve written previously about how decisions from the recent Supreme Court term are likely to weaken FDA’s ability to defend its interpretations of statutory meaning, and may trigger more litigation challenging agency decisions. But in the new world of post-Loper Bright litigation, perhaps the decision in Alliance of Nurses tells us that all is not lost for FDA. Plaintiffs still need to allege that FDA’s actions directly cause or likely will cause injury. Defending lawsuits, FDA may find that standing is something warm to come to when courtrooms seem increasingly cold and lonely.