Equal Means Equal v. Ferriero ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1802
EQUAL MEANS EQUAL; THE YELLOW ROSES; KATHERINE WEITBRECHT,
Plaintiffs, Appellants,
v.
DAVID FERRIERO, in his official capacity as
Archivist of the United States,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise Jefferson Casper, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Barron, Circuit Judges.
Wendy J. Murphy and Alison Shea, with whom Women's and
Children's Advocacy Project was on brief, for appellants.
Arlaine Rockey on brief for Real Estate Advisors Group et
al., amici curiae.
Thomas Pulham, Attorney, Appellate Staff, Civil Division,
with whom Brian M. Boynton, Acting Assistant Attorney General,
Andrew E. Lelling, United States Attorney, and Michael S. Raab,
Attorney, Appellate Staff, Civil Division, were on brief, for
appellee.
Jennifer C. Braceras and Independent Women's Law Center on
brief for Independent Women's Law Center, amicus curiae.
June 29, 2021
BARRON, Circuit Judge. This appeal arises in connection
with a lawsuit that alleges that the Equal Rights Amendment is now
part of the United States Constitution.1 Because we conclude, as
the District Court did, that none of the plaintiffs has pleaded
sufficient facts to establish standing under Article III of the
United States Constitution to bring this suit in federal court, it
must be dismissed.2
I.
The plaintiffs include two organizations, Equal Means
Equal and The Yellow Roses, as well as an individual, Katherine
Weitbrecht ("Weitbrecht"). Equal Means Equal is a national
nonprofit organization that is dedicated to advocating for women's
equality and for the ratification of the Equal Rights Amendment
("ERA"). The Yellow Roses is a student organization based in
Massachusetts whose "sole mission is to advocate for and raise
1 The text of that provision reads:
Section 1. Equality of rights under the law
shall not be denied or abridged by the United
States or by any State on account of sex.
Sec. 2. The Congress shall have the power to
enforce, by appropriate legislation, the
provisions of this article.
Sec. 3. This amendment shall take effect two
years after the date of ratification.
H.R.J. Res. 208, 92d Cong., 86 Stat. 1523 (1972).
2 We acknowledge with appreciation the assistance of the
amici curiae in this case.
- 3 -
public awareness about [the] ratification of the ERA." Weitbrecht
is a female resident of Massachusetts.
The plaintiffs commenced this action on January 7, 2020,
when they filed a complaint that named as the defendant David S.
Ferriero, in his official capacity as Archivist of the United
States. They filed their amended complaint against the same
defendant on February 29, 2020.
The operative complaint alleges that the Archivist
violated 1 U.S.C. § 106b because he refused to publish the ERA and
to certify its adoption after Virginia ratified it on January 27,
2020. Section 106b provides that
[w]henever official notice is received at the
National Archives and Records Administration
that any amendment proposed to the
Constitution of the United States has been
adopted, according to the provisions of the
Constitution, the Archivist of the United
States shall forthwith cause the amendment to
be published, with his certificate, specifying
the States by which the same may have been
adopted, and that the same has become valid,
to all intents and purposes, as a part of the
Constitution of the United States.
Id.
The complaint alleges that the Archivist's refusal to
publish the ERA violated § 106b because Virginia on January 27,
2020, became, on the plaintiffs' count, the thirty-eighth state to
have ratified the ERA. It further alleges that, as a result, the
amendment has been ratified by "three-fourths of the several
- 4 -
states," as required by Article V of the United States
Constitution, and the ERA is now "the duly ratified 28th Amendment
to the U.S. Constitution."
In support of these contentions, the complaint alleges
that both the seven-year ratification deadline that Congress
sought to impose on the states when it first proposed the ERA in
1972, see H.R.J. Res. 208, 92d Cong., 86 Stat. 1523 (1972), and
Congress's subsequent extension of that deadline to 1982, see
H.R.J. Res. 638, 95th Cong., 92 Stat. 3799 (1978), violate
Article V and the Tenth Amendment to the United States Constitution
because those deadlines are not part of the text of the ERA itself
and therefore "impose[] unlawful constraints on the States to elect
a schedule of their choosing on which to consider and ratify . . .
a proposed constitutional amendment." Thus, according to the
complaint, the post-deadline ratifications of the ERA by Nevada in
2017, Illinois in 2018, and Virginia in 2020 brought the count of
ratifying states to thirty-eight. In so alleging, the complaint
asserts that the attempts by Nebraska, Idaho, Tennessee, Kentucky,
and South Dakota to rescind their pre-deadline ratifications of
the ERA are "null and void." The complaint further alleges that
the Archivist's task of publishing the ERA is "purely ministerial"
and that his refusal to perform that task has resulted in states'
failure to prepare for the time when the ERA will become
enforceable, which is two years after its ratification, by
- 5 -
"examin[ing] and repair[ing] laws, regulations, and policies, to
remove all sex discriminatory features."
The plaintiffs request, among other things, an order
declaring that the ERA is the Twenty-Eighth Amendment to the United
States Constitution and an order mandating that the Archivist
record the ratifications by all thirty-eight states, including
Virginia. The plaintiffs also seek an order enjoining the
Archivist from removing any previously recorded ratifications.
The Archivist moved to dismiss the plaintiffs' claims
for lack of subject matter jurisdiction, see Fed. R. Civ. P.
12(b)(1), and for failure to state a claim for which relief may be
granted, see Fed. R. Civ. P. 12(b)(6). The District Court granted
the Rule 12(b)(1) motion on the ground that the plaintiffs had
"not demonstrated standing in this suit" under Article III, and so
it did not reach the Archivist's arguments that, on the merits,
the complaint must be dismissed for failure to state a claim.
Equal Means Equal v. Ferriero, 478 F. Supp. 3d 105, 125 (D. Mass.
2020). The plaintiffs timely appealed.
II.
Article III limits the judicial power to actual cases
and controversies. See U.S. Const. art. III, § 2, cl. 1. An
actual case or controversy only exists if the plaintiff has
demonstrated "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens
- 6 -
the presentation of issues upon which the court so largely
depends." Baker v. Carr, 369 U.S. 186, 204 (1962).
"To satisfy the personal stake requirement, [the]
plaintiff must establish each part of a familiar triad: injury,
causation, and redressability." Katz v. Pershing, LLC, 672 F.3d
64, 71 (1st Cir. 2012) (citing Lujan v. Defs. of Wildlife, 504
U.S. 555, 560-61 (1992)). The injury element of constitutional
standing requires that the plaintiff show that the injury is
"'concrete and particularized' and 'actual or imminent.'" Susan
B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting
Lujan, 504 U.S. at 560). The causation and redressability elements
require that the plaintiff show that the injury is "fairly
traceable to the defendant's allegedly unlawful conduct and likely
to be redressed by the requested relief." California v. Texas,
___ S. Ct. ___, 2021 WL 2459255 at *4 (2021) [No. 19-840] (quoting
Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)). The
burden on the plaintiff at the pleading stage is plausibly to
allege that each of the requirements to establish standing has
been met. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016). Our review is de novo. See Me. People's All. & Nat. Res.
Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir.
2006).
The plaintiffs first contend that the District Court
erred in dismissing their suit on Article III grounds insofar as
- 7 -
the individual members of Equal Means Equal and The Yellow Roses
are "all female." They contend in that regard that such members
"have a protectable legal interest" in "the ERA's vitality" on
which the Archivist inflicted "catastrophic harm" by not
publishing the ERA, because the Archivist's failure to do so "has
made it more difficult for them to obtain the benefits of the ERA's
presumptive validity." They further allege that in consequence of
the Archivist's failure to publish the ERA, Massachusetts
continues not to protect women against "sex-based violence" under
its hate crime laws and that they are accordingly at risk of
violent attack from which they otherwise would be protected.
We may assume that the complaint may be read to assert
standing on this member-grounded basis, because we agree with the
District Court, see Equal Means Equal, 478 F. Supp. 3d at 115,
that, even on that reading, the complaint's allegations regarding
women's alleged risk of harm and the defendant's allegedly unlawful
conduct do not suffice to satisfy their pleading obligation at
this stage of the litigation with respect to standing. For, as
concrete as the harm from an assault surely is, the plaintiffs are
seeking relief from the conduct of a defendant who stands well
removed from the person who would directly inflict that harm. See
TransUnion LLC v. Ramirez, ___ S. Ct. ___, 2021 WL 2599472 at *12
(2021) [No. 20-297]; Clapper v. Amnesty Int'l USA, 568 U.S. 398,
414 n.5 (2013); see also Pub. Citizen, Inc. v. Nat'l Highway
- 8 -
Traffic Safety Admin., 489 F.3d 1279, 1291, 1296 (D.C. Cir. 2007)
(Kavanaugh, J.) (noting that plaintiffs "must demonstrate [either
a] 'substantial probability' that [the challenged] action caused
[them] harm" or both (1) that the challenged "action causes [them]
to face an increase in the risk of harm that is 'substantial,' and
[(2) that] the ultimate risk of harm also is 'substantial'" (first
quoting Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663, 666 (D.C.
Cir. 1996) (en banc); and then citing Mountain States Legal Found.
v. Glickman, 92 F.3d 1228, 1235 (D.C. Cir. 1996))).
Nor are we persuaded by the plaintiffs' contention that
the decisions by the Supreme Court of the United States in
Northeastern Florida Chapter of the Associated General Contractors
of America v. City of Jacksonville, 508 U.S. 656 (1993), and
Grutter v. Bollinger, 539 U.S. 306 (2003), or by our Court in
Carson ex rel. O.C. v. Makin, 979 F.3d 21 (1st Cir. 2020), show
otherwise. In the first two cases, the Supreme Court held,
respectively, that an organization whose members alleged that they
would seek city contracts had standing to challenge the city's
race-based criteria for awarding them, see Ne. Fla. Chapter, 508
U.S. at 666, and that a student who had applied for and been denied
admission to the University of Michigan Law School had standing to
challenge the school's admissions criteria, see Grutter, 539 U.S.
at 316-17. As for the case from our Circuit, we held that parents
who alleged that they would use state-authorized tuition
- 9 -
assistance to send their children to pervasively sectarian schools
had standing to challenge a state law barring them from using that
assistance to do so. See Carson, 979 F.3d at 32.
Equal Means Equal and The Yellow Roses do not purport to
premise their standing here on any benefit that has been denied to
them by the challenged actions of the defendant in the way in which
the plaintiffs in those three cases did. They instead premise
their standing on the risk of harm that they contend they face
because of the Archivist's failure to publish the ERA. Thus, those
precedents fail to support the conclusion that the plaintiffs
plausibly assert the requisites for standing.
The plaintiffs do also argue that at least Weitbrecht
has met her burden at this stage of the litigation to show that
she has standing under Article III. They point to the complaint's
allegation that Weitbrecht was the victim of a prior act of private
sex-based violence that was criminally prosecuted, but not as a
hate crime. And they point to statistics set forth in the
complaint that assert, among other things, that college women and
other women generally, though not Weitbrecht specifically, are at
an increased risk of suffering sex-based violence and other harms,
relative to other persons. But, neither these aspects of the
complaint nor any other purport to address how any causal link
between the risk of such harm that Weitbrecht in particular faces
and the Archivist's failure to publish the ERA differs from the
- 10 -
causal link between the risk of such harm that the organizations'
members generally face as women and that failure. The complaint
thus fails plausibly to allege standing as to Weitbrecht just as
it fails to do as to those members more generally.
From our conclusions thus far it follows that we must
also reject the contention that Equal Means Equal presses to us
that it has what is known as associational standing.3 After all,
to have standing on that basis, Equal Means Equal must show that
at least one of its members has standing in her own right. See
Council of Ins. Agents & Brokers v. Juarbe-Jiménez, 443 F.3d 103,
108 (1st Cir. 2006) (noting that an organization has associational
standing to sue on behalf of its members only if "its members
would . . . have standing to sue in their own right" (quoting
Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343
(1977))).
That brings us, then, to the contentions by Equal Means
Equal and The Yellow Roses that each has standing on its own as an
organization due to the injury that, the complaint alleges, each
has suffered in that capacity from the actions of the Archivist.
The organizations contend that this is so because, as the complaint
alleges, each "suffered frustration of mission and diversion of
resources to identify and counteract" the allegedly "unlawful
3 No argument has been made to us that The Yellow Roses, too,
has associational standing.
- 11 -
actions" by the Archivist. The organizations point in that regard
to the allegations in the complaint that they incurred expenses by
"filing this lawsuit" and also "by generating educational
materials" to "contact[] government officials" and "to educate and
inform [the organizations'] members, supporters and the general
public about why the ERA is duly ratified despite the Archivist's
actions to the contrary, and why government officials should be
taking steps to comply with the ERA."
But, an organization cannot establish standing if the
"only injury arises from the effect of [a challenged action] on
the organizations' lobbying activities, or when the service
impaired is pure issue-advocacy." People for the Ethical Treatment
of Animals v. U.S. Dep't of Agric., 797 F.3d 1087, 1093-94 (D.C.
Cir. 2015) (citations and internal quotation marks omitted).
"Otherwise, the implication would be that any individual or
organization wishing to be involved in a lawsuit could create a[n
organization] for the purpose of conferring standing, or could
adopt [a mission] so that the [organization] expressed an interest
in the subject matter of the case, and then spend its way into
having standing." Blunt v. Lower Merion Sch. Dist., 767 F.3d 247,
288 (3d Cir. 2014); see also Ctr. for L. & Educ. v. Dep't of Educ.,
396 F.3d 1152, 1162 n.4 (D.C. Cir. 2005) ("In Sierra Club [v.
Morton, 405 U.S. 727, 739 (1972)], the Supreme Court recognized
that to hold that a lobbyist/advocacy group had standing to
- 12 -
challenge government policy with no injury other than injury to
its advocacy would eviscerate standing doctrine's actual injury
requirement . . . .").
The organizations do contend that Havens Realty Corp. v.
Coleman, 455 U.S. 363, 379 (1982), supports their bid for
organizational standing, notwithstanding the caselaw just
described. But, the fair housing organization there provided
counseling and other referral services to those seeking affordable
housing, and it was found to have Article III standing in bringing
suit under § 804 of the Fair Housing Act, 42 U.S.C. § 3604, based
on its allegations that the defendants' conduct in violation of
that statute had "perceptibly impaired" the organization's ability
to provide those services, such that it "has had to devote
significant resources to identify and counteract" that conduct.
Havens, 455 U.S. at 379. Havens thus did not purport to find
standing based merely on the expenses that the plaintiff would
have had to incur to engage in additional issue advocacy in favor
of fair housing.
The plaintiff organizations here seek standing based
only on quite different allegations from those found to have
sufficed to support organizational standing in Havens. They
premise their standing on the allegation that the defendant's
unlawful conduct in not complying with 1 U.S.C. § 106b will lead
others to be less likely to treat as having legal effect a law
- 13 -
that would benefit all women and whose passage the plaintiff
organizations support, such that the organizations will have to
expend additional resources to ensure that the law will be treated
as having legal effect. Because Equal Means Equal and The Yellow
Roses do not address this difference between their case and Havens,
they fail to explain how Havens itself requires the conclusion
that their allegations regarding their mission and their
expenditures satisfy their burden as to organizational standing.
Equal Means Equal and The Yellow Roses do also rely on
various other cases that are not binding on this Circuit to support
their contention that they have plausibly alleged that they have
organizational standing. But, those cases either do not concern
organizational standing,4 or involve allegations by plaintiff
organizations that are much more like those in Havens than those
4See Virginia v. Ferriero, Civ. No. 20-242 (RC), 2021 WL
848706, at *5-8 (D.D.C. Mar. 5, 2021) (involving states, not
organizations, suing the Archivist for his failure to publish the
ERA and holding that the plaintiff states lacked standing to sue
because they failed to establish injury in fact, traceability, or
redressability); Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392,
1398-99 (9th Cir. 1995) (finding associational rather than
organizational standing); Sagebrush Rebellion, Inc. v. Watt, 713
F.2d 525, 527-29 (9th Cir. 1983) (finding that the organizations
had a right to intervene, not that they had standing); Wash. State
Bldg. & Constr. Trades Council, AFL-CIO v. Spellman, 684 F.2d 627,
629-32 (9th Cir. 1982) (not discussing standing); Northland Fam.
Plan. Clinic, Inc. v. Cox, 487 F.3d 323, 343-47 (6th Cir. 2007)
(not permitting an organization to intervene).
- 14 -
before us here.5 Nor do Equal Means Equal and The Yellow Roses
contend otherwise.
III.
The federal constitutional questions that the
plaintiffs' complaint raises concerning the legal status of the
ERA are significant. To be fit for adjudication in federal court,
however, they must be raised in a suit that satisfies the
5 See Nat'l Council of La Raza v. Cegavske, 800 F.3d 1032,
1040-41 (9th Cir. 2015) (finding that civil rights organizations
had standing to challenge specific violations of voter
registration requirements by state officials based on their
allegations that they had diverted resources to help particular
individuals affected by those violations); Fair Hous. of Marin v.
Combs, 285 F.3d 899, 903-05 (9th Cir. 2002) (finding that a fair
housing organization had standing to challenge a defendant
landlord's specific practices of discriminating on the basis of
race in steering prospective tenants, given the organization's
allegations that it had diverted resources to help particular
tenants affected by those practices); Smith v. Pac. Props. & Dev.
Corp., 358 F.3d 1097, 1105-06 (9th Cir. 2004) (finding similarly
with respect to allegations of disability-based discrimination);
Hooker v. Weathers, 990 F.2d 913, 915 (6th Cir. 1993) (finding
similarly with respect to allegations of age- and family-status-
based discrimination); African Cmtys. Together v. Trump, Civ. No.
19-10432-TSH, 2019 WL 5537231, at *3-4, *4 n.5 (D. Mass. Oct. 25,
2019) (finding that the organizational plaintiff had alleged an
injury in fact to challenge the President's decision to terminate
Deferred Enforced Departure for Liberians based on allegations
that the organization diverted resources to protect those
particular African immigrants facing imminent removal); Nat'l
Coal. Against Violent Athletes v. Dep't of Educ., No. 17-cv-12043-
PBS, Mem. & Order, ECF No. 112 at 7-11 (D. Mass. Dec. 3, 2020)
(holding that the organizational plaintiff had standing in part
because the organization had pointed to clients who were seeking
its legal help for cases before the U.S. Department of Education
and had alleged that the guidance documents it was challenging
would disfavor its clients in those cases, thus frustrating its
advocacy mission and diverting its resources).
- 15 -
requirements of Article III. Because we agree with the District
Court that the plaintiffs have not met their burden at the pleading
stage with respect to those federal constitutional requirements,
we affirm the order dismissing their suit for lack of standing.
- 16 -