Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity , 878 F.3d 371 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2017 Decided December 26, 2017
No. 17–5171
ELECTRONIC PRIVACY INFORMATION CENTER,
APPELLANT
v.
PRESIDENTIAL ADVISORY COMMISSION ON
ELECTION INTEGRITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01320)
Marc Rotenberg argued the cause for the appellant. Alan
Butler was with him on brief.
Daniel Tenny, Attorney, United States Department of
Justice, argued the cause for the appellees. Mark B. Stern,
Attorney, was with him on brief. Elizabeth J. Shapiro,
Attorney, entered an appearance.
Lawrence J. Joseph was on brief for the amicus curiae
Eagle Forum Education & Legal Defense Fund in support of
the appellees.
2
Before: HENDERSON, Circuit Judge, and WILLIAMS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Opinion concurring in part and concurring in the judgment
filed by Senior Circuit Judge WILLIAMS.
KAREN LECRAFT HENDERSON, Circuit Judge: By
executive order issued in May 2017, the President established
the Presidential Advisory Commission on Election Integrity
(Commission). Exec. Order No. 13799, 82 Fed. Reg. 22389
(May 11, 2017). The Commission is a temporary and “solely
advisory” body charged with studying the integrity of federal
elections. Id. § 3. In keeping with that objective but lacking
any authority to demand information, the Commission
“requested” that each state and the District of Columbia
provide the Commission with certain “publicly-available voter
roll data.” Joint Appendix (JA) 51.
The Electronic Privacy Information Center (EPIC)—a
nonprofit organization whose stated mission is “to focus public
attention on emerging privacy and civil liberties issues”—sued
the Commission and other entities and officials, claiming
violations of the Administrative Procedure Act (APA), 5
U.S.C. § 706. Pl.’s Second Am. Compl. (Compl.), Dkt. No.
33 at 2, 12-13. 1 EPIC sought a preliminary injunction to
1
EPIC’s complaint also alleged violations of the Federal
Advisory Committee Act, 5 U.S.C. app. 2, and the Fifth
Amendment’s Due Process Clause. Those claims are not before us
because EPIC presents no argument about them. See N.Y. Rehab.
Care Mgmt., LLC v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007)
(party forfeits argument by failing to brief it or by mentioning it only
“in the most skeletal way” (internal quotation omitted)).
3
prohibit the defendants from collecting voter data unless and
until they complete a privacy impact assessment as allegedly
required by the E-Government Act of 2002, Pub. L. No.
107-347, § 208(b), 116 Stat. 2899, 2921-22 (Dec. 17, 2002).
The district court denied preliminary injunctive relief. EPIC
v. Presidential Advisory Comm’n on Election Integrity, 2017
WL 3141907 (D.D.C. July 24, 2017). The court concluded
(inter alia) that EPIC has standing, id. at *6-*10, but is
unlikely to succeed on the merits because under the APA
neither the Commission nor any other defendant constitutes an
“agency” that the court can enjoin to produce an assessment,
id. at *11-*13.
On an interlocutory basis, EPIC appeals the denial of a
preliminary injunction. See 28 U.S.C. § 1292(a)(1). We
agree with the district court that EPIC is unlikely to succeed on
its APA claims. But we reach that conclusion for a different
reason from the one the district court identified. See Parsi v.
Daioleslam, 778 F.3d 116, 126 (D.C. Cir. 2015) (“Ordinarily, a
court of appeals can affirm a district court judgment on any
basis supported by the record, even if different from the
grounds the district court cited.”). Specifically, we uphold the
denial of a preliminary injunction because EPIC has not shown
a substantial likelihood of standing. See Food & Water
Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (“A
party who fails to show a ‘substantial likelihood’ of standing is
not entitled to a preliminary injunction.” (quoting Obama v.
Klayman, 800 F.3d 559, 568 (D.C. Cir. 2015) (opinion of
Williams, J.))). 2
2
Because EPIC has not met its burden with respect to
standing, we do not consider whether any of the defendants
constitutes an agency under the E-Government Act or the APA.
Nor do we consider the preliminary injunction factors other than
EPIC’s likelihood of success. A plaintiff unlikely to have standing
4
I. BACKGROUND
In 2002, the Congress passed the E-Government Act to
streamline government use of information technology “in a
manner consistent with laws regarding protection of personal
privacy, national security, records retention, access for persons
with disabilities, and other relevant laws.” E-Government Act
§ 2(b)(11). Section 208 of the Act, entitled “Privacy
Provisions,” states that “[t]he purpose of this section is to
ensure sufficient protections for the privacy of personal
information as agencies implement citizen-centered electronic
Government.” Id. § 208(a). To promote that purpose,
section 208 requires an “agency” to conduct, review and, “if
practicable,” publish a privacy impact assessment before it
collects “information in an identifiable form permitting the
physical or online contacting of a specific individual, if
identical questions have been posed to, or identical reporting
requirements imposed on, 10 or more persons.” Id.
§ 208(b)(1). A party with standing can make a claim under
that provision for relief under the APA’s direction to courts to
“compel agency action unlawfully withheld,” 5 U.S.C.
§ 706(1), and to “set aside agency action . . . not in accordance
with law,” id. § 706(2)(A).
In May 2017, the President established the Commission as
a “solely advisory” body. Exec. Order No. 13799, § 3. He
charged it with studying and submitting a report about the
“integrity of” and “vulnerabilities in” the voting systems and
procedures used in federal elections. Id. Thirty days after
is ipso facto unlikely to succeed, Food & Water Watch, 808 F.3d at
913; Klayman, 800 F.3d at 565, 568 (opinion of Williams, J.); and
when the plaintiff is unlikely to succeed, “there is no need to
consider the remaining factors,” Greater New Orleans Fair Hous.
Action Ctr. v. HUD, 639 F.3d 1078, 1088 (D.C. Cir. 2011).
5
the Commission submits its report, it will cease to exist. Id.
§ 6.
In June 2017, Kris Kobach—Secretary of State of Kansas
and Vice Chair of the Commission—wrote a letter to the chief
election officer of each state and the District of Columbia.
Each letter “request[ed]” that the addressee
provide to the Commission the
publicly-available voter roll data for [your
state], including, if publicly available under the
laws of your state, the full first and last names
of all registrants, middle names or initials if
available, addresses, dates of birth, political
party (if recorded in your state), last four digits
of social security number if available, voter
history (elections voted in) from 2006 onward,
active/inactive status, cancelled status,
information regarding any felony convictions,
information regarding voter registration in
another state, information regarding military
status, and overseas citizen information.
JA 61-62. Each letter stated that “any documents” a state
submits to the Commission “will also be made available to the
public,” JA 62, but Kobach clarified in district court that “the
Commission intends to de-identify” any voter data it receives
so that “the voter rolls themselves will not be released to the
public,” JA 52. As far as the record shows, only Arkansas has
submitted any data and it “has been deleted without ever
having been accessed by the Commission.” JA 235.
EPIC filed its complaint in July 2017, naming as
defendants the Commission, Kobach and other entities and
6
officials. 3 As relevant here, the complaint raised two related
claims. Count One alleged “unlawful agency action,” i.e.,
that the defendants “initiate[d] collection of voter data”
without first “creating, reviewing, and publishing a privacy
impact assessment” under the E-Government Act. Compl. 12
(capitalization altered). Count Two alleged “agency action
unlawfully withheld,” i.e., that the defendants “have failed to
create, review, and/or publish a privacy impact assessment for
[their] collection of voter data, as required by” the
E-Government Act. Id. at 12-13 (capitalization altered).
EPIC asked the district court to remedy the alleged violations
by (inter alia) “halt[ing] collection of personal voter data” and
ordering the defendants “to promptly conduct a privacy impact
assessment prior to the collection of personal voter data.” Id.
at 15.
EPIC later moved for a preliminary injunction. It asked
the district court to prohibit the defendants “from collecting
state voter data prior to the completion of a privacy impact
assessment.” Mem. in Support, Dkt. No. 35-1 at 41. The
court denied the motion. EPIC, 2017 WL 3141907, at *14.
Based on the available evidence, the court held (inter alia) that
EPIC has standing, id. at *6-*10, but that the Commission
lacks “‘substantial independent authority’” and so is not “an
‘agency’ for purposes of the APA,” id. at *11 (quoting Citizens
for Responsibility & Ethics in Washington v. Office of Admin.,
566 F.3d 219, 222 (D.C. Cir. 2009)). The court was also
unpersuaded that any other defendant likely to be involved in
3
The complaint also named Vice President Michael Pence;
Charles Herndon, Director of White House Information Technology;
the Executive Office of the President; the Office of the Vice
President; the Department of Defense; the General Services
Administration; the Executive Committee for Presidential
Information Technology; and the United States Digital Service.
7
collecting voter data is an agency under the APA. Id. at
*12-*13. Accordingly, the court concluded, EPIC “has not
demonstrated a likelihood of success on the merits.” Id. at
*13.
II. ANALYSIS
“The judicial Power” of the federal courts extends only to
“Cases” and “Controversies,” U.S. CONST. art. III, § 2, cl. 1,
“and there is no justiciable case or controversy unless the
plaintiff has standing,” West v. Lynch, 845 F.3d 1228, 1230
(D.C. Cir. 2017) (citing Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 102 (1998)). To establish standing, the plaintiff
must show (1) it has suffered a “concrete and particularized”
injury (2) that is “fairly traceable to the challenged action of the
defendant” and (3) that is “likely” to be “redressed by a
favorable decision,” i.e., a decision granting the plaintiff the
relief it seeks. Id. (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)).
The plaintiff bears the burden of establishing all three
elements of standing. Lujan, 504 U.S. at 561. The “manner
and degree of evidence required” depends on the “stage[] of the
litigation.” Id. In the context of a preliminary injunction
motion, we require the plaintiff to “show a ‘substantial
likelihood’ of standing” “under the heightened standard for
evaluating a motion for summary judgment.” Food & Water
Watch, 808 F.3d at 912-13 (quoting Klayman, 800 F.3d at 568
(opinion of Williams, J.)); see Nat’l Wildlife Fed’n v. Burford,
835 F.2d 305, 328 (D.C. Cir. 1987) (Williams, J., concurring
and dissenting). Thus, the plaintiff cannot “rest on . . . mere
allegations, but must set forth by affidavit or other evidence
specific facts” that, if “taken to be true,” demonstrate a
substantial likelihood of standing. Lujan, 504 U.S. at 561
(internal quotation omitted).
8
“Because ‘standing is not dispensed in gross’ but instead
may differ claim by claim,” “we address seriatim” EPIC’s
likelihood of standing on each of its two APA claims. West,
845 F.3d at 1235 (quoting Davis v. FEC, 554 U.S. 724, 734
(2008)). We conclude that EPIC has not made the requisite
showing on either claim. 4 To simplify the analysis, we start
with Count Two.
A. FAILURE TO PRODUCE PRIVACY IMPACT ASSESSMENT
Count Two alleges “agency action unlawfully withheld,”
namely, the defendants’ failure to produce a privacy impact
assessment under the E-Government Act. Compl. 12-13
(capitalization altered). EPIC asserts that this inaction causes
it two types of injury: (1) “informational injury” through the
lack of an assessment to which the law allegedly entitles it,
Appellant’s Reply Br. 4; and (2) “[o]rganizational . . . injury”
in that the inaction conflicts with EPIC’s mission “to focus
public attention on emerging privacy and civil liberties issues,”
id. at 5 (internal quotation omitted). 5 As relief for the
4
We owe no deference to the district court’s contrary
conclusion. O’Hara v. Dist. No. 1-PCD, 56 F.3d 1514, 1522 (D.C.
Cir. 1995) (to extent preliminary injunction decision “hinges on
questions of law,” we review it de novo (internal quotation
omitted)); see Teton Historic Aviation Found. v. Dep’t of Def., 785
F.3d 719, 724 (D.C. Cir. 2015) (per curiam) (standing is question of
law to be assessed de novo).
5
In district court, EPIC also advanced a theory of
“associational standing.” Reply in Support, Dkt. No. 39 at 19-23.
The court rejected it, EPIC, 2017 WL 3141907, at *4-*6, and EPIC
does not renew it here, Appellant’s Reply Br. 2 n.2 (“associational
standing” is “not related to any issue on appeal”). We therefore do
not consider it. See Scenic Am., Inc. v. Dep’t of Transp., 836 F.3d
42, 53 n.4 (D.C. Cir. 2016) (party forfeits theory of standing if it fails
to advance any argument about it).
9
inaction, EPIC asks that the defendants be ordered “to
promptly conduct a privacy impact assessment prior to the
collection of personal voter data.” Compl. 15. We conclude
that EPIC lacks standing to obtain such relief because it has
suffered no cognizable informational or organizational injury.
We analyze and reject those two asserted types of injury in turn
without necessarily agreeing that they are in fact analytically
separate here. Indeed, as will be seen, EPIC identifies no
organizational harm unrelated to its alleged informational
injury. See infra p. 11.
1. Informational injury
Following FEC v. Akins, 524 U.S. 11 (1998), “we have
recognized that a denial of access to information can,” in
certain circumstances, “work an ‘injury in fact’ for standing
purposes,” Am. Soc’y for Prevention of Cruelty to Animals v.
Feld Entm’t, Inc., 659 F.3d 13, 22 (D.C. Cir. 2011) (Feld)
(internal quotation omitted). To carry its burden of
demonstrating a “sufficiently concrete and particularized
informational injury,” the plaintiff must show that “(1) it has
been deprived of information that, on its interpretation, a
statute requires the government or a third party to disclose to it,
and (2) it suffers, by being denied access to that information,
the type of harm Congress sought to prevent by requiring
disclosure.” Friends of Animals v. Jewell, 828 F.3d 989, 992
(D.C. Cir. 2016); see Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1549 (2016) (“judgment of Congress” is “important” to
“whether an intangible harm,” including informational harm,
“constitutes injury in fact”).
We need not consider the first component of the
requirement for informational injury because EPIC does not
satisfy the second: it has not suffered the type of harm that
section 208 of the E-Government Act seeks to prevent.
10
Indeed, EPIC is not even the type of plaintiff that can suffer
such harm. See Friends of Animals, 828 F.3d at 992 (whether
“plaintiff suffers the type of harm Congress sought to remedy”
sometimes depends on whether “Congress, in mandating
disclosure, sought to protect individuals or organizations like”
plaintiff).
Section 208, a “Privacy Provision[]” by its very name,
declares an express “purpose” of “ensur[ing] sufficient
protections for the privacy of personal information as agencies
implement citizen-centered electronic Government.”
E-Government Act § 208(a). As we read it, the provision is
intended to protect individuals—in the present context,
voters—by requiring an agency to fully consider their privacy
before collecting their personal information. EPIC is not a
voter and is therefore not the type of plaintiff the Congress had
in mind. Nor is EPIC’s asserted harm—an inability to “ensure
public oversight of record systems,” Appellant’s Reply Br.
9—the kind the Congress had in mind. Instead, section 208 is
directed at individual privacy, which is not at stake for EPIC.
2. Organizational injury
For similar reasons, EPIC has suffered no organizational
injury. Under Havens Realty Corp. v. Coleman, 455 U.S. 363
(1982), “an organization may establish Article III standing if it
can show that the defendant’s actions cause a ‘concrete and
demonstrable injury to the organization’s activities’ that is
‘more than simply a setback to the organization’s abstract
social interests.’” Feld, 659 F.3d at 25 (quoting Havens, 455
U.S. at 379). “Our case law, however, establishes two
important limitations on the scope of standing under Havens.”
Id. First, the plaintiff must show that the defendant’s “action
or omission to act injured the organization’s interest.” People
for the Ethical Treatment of Animals v. USDA, 797 F.3d 1087,
11
1094 (D.C. Cir. 2015) (PETA) (internal quotation and brackets
omitted). Second, the plaintiff must show that it “used its
resources to counteract that harm.” Id. (internal quotation
omitted). EPIC’s assertion of organizational standing fails
twice over.
EPIC’s sole theory of organizational injury is that the
defendants’ failure to produce a privacy impact assessment
injures its interest in using the information contained in the
assessment “to focus public attention on emerging privacy and
civil liberties issues.” Appellant’s Reply Br. 5 (internal
quotation omitted). As we have discussed, however, section
208 of the E-Government Act does not confer any such
informational interest on EPIC. EPIC cannot ground
organizational injury on a non-existent interest. See Feld, 659
F.3d at 24-25 (abstract social interest does not give rise to
organizational injury).
It follows that any resources EPIC used to counteract the
lack of a privacy impact assessment—an assessment in which
it has no cognizable interest—were “a self-inflicted budgetary
choice that cannot qualify as an injury in fact.” Feld, 659 F.3d
at 25 (internal quotation omitted). EPIC’s evidence of
expenditures only reinforces the point. It relies exclusively on
the declaration of an EPIC “Law Fellow” who before and
during this lawsuit submitted Freedom of Information Act
(FOIA) requests to (inter alia) the Commission and the
Department of Justice (DOJ). 6 JA 236-37. EPIC offers no
6
In its rebuttal oral argument, EPIC contended that it has
organizational standing not only because of the FOIA requests but
because it “contacted the state secretaries to warn them that [an
assessment] had not been completed” and because it “launched an
internet-based campaign to alert voters that their information was not
being protected.” Oral Arg. Recording 30:28-30:59. EPIC did not
advance that contention in its briefs or even during the opening
12
“specific facts” demonstrating that the lack of an assessment
caused it to submit the requests, Lujan, 504 U.S. at 561
(internal quotation omitted); see Appellant’s Reply Br. 5-6, 10,
so we can only speculate. Speculation is ordinarily fatal to
standing, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344
(2006) (it cannot establish injury); West, 845 F.3d at 1237-38
(it cannot establish causation or redressability), and that is the
case here. EPIC’s wide-ranging FOIA requests sought
information about (inter alia) DOJ’s data-collection efforts
under the National Voter Registration Act; DOJ’s legal views
about the Commission’s authority; and various potentially
privileged government communications. An assessment
would not likely disclose such information. See
E-Government Act § 208(b)(1)(C), (b)(2)(B). Presumably,
then, EPIC would have made similar FOIA requests even if the
defendants had produced an assessment. 7
portion of its oral argument. It thereby forfeited the contention, the
merits of which we decline to consider. See Coal. of Battery
Recyclers Ass’n v. EPA, 604 F.3d 613, 623 (D.C. Cir. 2010)
(argument raised “for the first time during rebuttal oral argument” is
“forfeited”).
7
This fact readily distinguishes PETA, 797 F.3d 1087, on
which EPIC relies. There, at the dismissal stage, PETA sufficiently
alleged that the USDA’s failure to apply Animal Welfare Act
regulations to birds caused PETA “to undertake . . . extensive
efforts”—and to spend more than $10,000—investigating cruelty to
birds and submitting animal-protection complaints under alternative
local, state and federal laws. Id. at 1096; see id. at 1093-97. Here,
“under the heightened standard for evaluating a motion for summary
judgment,” Food & Water Watch, 808 F.3d at 912, EPIC has not
established any equivalently direct causal link between the
defendants’ inaction and EPIC’s own expenditures.
13
In short, not only does EPIC have no cognizable interest in
a privacy impact assessment but the resources it spent were not
even demonstrably attributable to the lack of an assessment.
It has suffered no organizational injury, much less an injury
caused by the defendants.
B. ATTEMPTING TO COLLECT VOTER DATA
WITHOUT FIRST PRODUCING
PRIVACY IMPACT ASSESSMENT
Count One alleges “unlawful agency action,” namely, the
defendants’ attempted collection of voter data without first
producing a privacy impact assessment under the
E-Government Act. Compl. 12 (capitalization altered). As
relief for this asserted violation, EPIC asks that the defendants
be ordered “to halt collection of personal voter data.” Id. at
15. We again conclude that it lacks standing to obtain such
relief.
To repeat, EPIC is not a voter. And as far as the record
shows, it has no traditional membership, let alone members
who are voters. Unsurprisingly, then, it does not claim
standing on behalf of any voter whose data is likely to be
collected. See supra note 5. Instead, in seeking to halt
collection of voter data, it advances the same theories of
informational and organizational standing that it asserts in
seeking to compel a privacy impact assessment. We see no
reason to “accept[] a repackaged version” of those “failed
theor[ies].” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416
(2013). As explained above, EPIC has suffered no
informational or organizational injury from the defendants’
failure to produce an assessment. A fortiori, it has suffered no
informational or organizational injury from the defendants’
attempt to collect voter data without first producing an
assessment.
14
Moreover, halting collection of voter data would not
“likely” redress any informational or organizational injury,
even had EPIC suffered one. Lujan, 504 U.S. at 561 (“[I]t
must be likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.” (internal quotation
omitted)); West, 845 F.3d at 1235 (“The key word is ‘likely.’”).
Assuming arguendo that the Commission or another defendant
is an agency subject to the E-Government Act, it need not
prepare a privacy impact assessment unless it plans to collect
information. E-Government Act § 208(b)(1)(A).
Accordingly, ordering the defendants not to collect voter data
only negates the need (if any) to prepare an assessment,
making it less likely that EPIC will obtain the information it
says is essential to its mission of “focus[ing] public attention
on emerging privacy and civil liberties issues.” Appellant’s
Reply Br. 5 (internal quotation omitted).
*****
The doctrines of informational and organizational
standing do not derogate from the elemental requirement that
an alleged injury be “concrete and particularized.” Lujan, 504
U.S. at 560; see Akins, 524 U.S. at 24-25 (informational);
Havens, 455 U.S. at 379 (organizational). On this record,
EPIC’s asserted injuries do not meet that requirement.
Because EPIC does not show a substantial likelihood of
standing to press its claims that the defendants have violated
the E-Government Act, we affirm the district court’s denial of
a preliminary injunction.
So ordered.
WILLIAMS, Senior Circuit Judge, concurring in part and
concurring in the judgment: Because it “has not suffered the
type of harm that § 208 of the E-Government Act seeks to
prevent,” Maj. Op. at 9, EPIC has failed to allege a legally
cognizable injury-in-fact. So I agree that EPIC lacks standing.
But given that EPIC claims only organizational standing and
“identifies no organizational harm unrelated to its alleged
informational injury,” id., I see no need for any separate
discussion of “organizational injury.” Id. at 10-13. Nor,
indeed, do I see any need for a separate discussion of EPIC’s
alternative reformulation of its merits claim as an objection to
defendants’ effort to collect data without previously filing a
Privacy Impact Statement (“PIA”). Id. at 13-14.
* * *
As an organization, EPIC has in principle two potential
paths to establish standing: “associational,” on behalf of its
members, and “organizational,” on behalf of itself. Before us,
it doesn’t renew the associational standing claim made in
district court. That leaves only organizational standing. For
those purposes, of course, it must establish an injury that
qualifies under Article III, along with the requisite causation
and redressability. See, e.g., PETA v. U.S. Department of
Agriculture, 797 F.3d 1087, 1106 (D.C. Cir. 2015) (Millett, J.,
dubitante).
To establish organizational standing, EPIC asserts only a
single injury: that the defendants’ omissions have caused it to
go without information—the contents of a PIA—that it could
use to educate the public.
Where an organization’s only asserted injury is an
informational one, we have not engaged in a separate analysis
of informational and organizational injury. See, e.g., Friends
of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016)
2
(addressing organization’s claim of informational injury as
such). If an organization’s only claimed injury is
informational, additional discussion of the same facts under the
“organizational” rubric will not clarify the court’s reasoning.
In cases where the plaintiff claims organizational injuries
of various types (including informational ones), we have
analyzed the informational injury as such and the other alleged
injuries as organizational. See, e.g., Am. Soc. for Prevention of
Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 22 (D.C.
Cir. 2011) (rejecting organization’s claim of informational
standing, id. at 22-24, and its claims that Feld’s use of chains
and bullhooks afforded organizational standing by fostering,
plaintiffs argued, “a public impression that these practices are
harmless,” id. at 24-28). My guess—only a guess—is that the
practice arose because organizations found informational
injury a comparatively easy way to show standing.
But organizational standing is merely the label assigned to
the capacity in which the organization contends it has been
harmed; it is not a separate type of injury. In its capacity as an
organization, EPIC has alleged one harm, packaged as two
theories (perhaps in the hope that such packaging will increase
the odds of success). There is no need for us to accept that
packaging; doing so is a step away from, not towards, legal
clarity.