Case: 23-10362 Document: 543-1 Page: 13 Date Filed: 08/16/2023
jury be “literally certain.” Id. at 414 n.5; see Lujan, 504 U.S. at 564 n.2 (acknowledging that imminence “is concededly a somewhat elastic concept”); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (requiring that the plaintiff “demonstrate a realistic danger of sustaining a direct injury”); Kolender v. Lawson, 461 U.S. 352, 355 n.3 (1983) (“a credible threat”); Frame v. City of Arlington, 657 F.3d 215, 235 (5th Cir. 2011) (“a sufficiently high degree of likelihood”). Instead, a plaintiff seeking prospective relief need only show that future injury is “fairly likely.” Crawford v. Hinds Cnty. Bd. of Supervisors, 1 F.4th 371, 376 (5th Cir. 2021); accord Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1341 (11th Cir. 2014) (“a realistic probability”).
In assessing whether the threatened injury is fairly likely to occur, evidence of prior injury is especially probative. See Crawford, 1 F.4th at 376 (citing Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Said another way, it “is not unduly conjectural” to use the “predictable effect” of the defendant’s prior actions as a method to predict what will happen in the future. Apple Inc. v. Vidal, 63 F.4th 1, 17 (Fed. Cir. 2023) (quoting Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019)). Injuries that are “one-off” instances or “episodic” in nature do not move the needle much. Crawford, 1 F.4th at 376. But where the causes that produced the first injury remain in place, past-injury evidence bears strongly “on whether there is a real and immediate threat of repeated injury.” O’Shea v. Littleton, 414 U.S. 488, 496 (1974); see Crawford, 1 F.4th at 376; accord In re Navy Chaplaincy, 697 F.3d 1171, 1176–77 (D.C. Cir. 2012) (“The prospect of future injury becomes significantly less speculative where, as here, plaintiffs have identified concrete and consistently-implemented policies claimed to produce such injury.”).
Finally, a group of plaintiffs need not show that more than one of them is likely to be injured. “If at least one plaintiff has standing, the suit may proceed.” Biden v. Nebraska, 143 S. Ct. 2355, 2365 (2023) (citing Rumsfeld v. F. for Acad. and Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006)).
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