Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 12 of 67 PageID 4434
2018) (changing one’s “plans or strategies in response to an allegedly injurious law can itself be a sufficient injury to confer standing”). “Such concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes far more than simply a setback to the organization’s abstract social interests.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (internal marks omitted).
One way an organization can establish standing is by “identifying specific projects that [it] had to put on hold or otherwise curtail in order to respond to the [challenged action].” Tex. State LULAC v. Elfant, 52 F.4th 248, 253 (5th Cir. 2022) (internal marks omitted). This is “not a heightening of the Lujan standard,[1] but an example of how to satisfy it by pointing to a non-litigation-related expense.” OCA, 867 F.3d at 612. Plaintiffs “need not identify specific projects that they have placed on hold or otherwise curtailed.”[2] La Unión del Pueblo Entero v. Abbott, No. 5:21-CV-0844-XR, 2022 WL 3052489, at *31 (W.D. Tex. Aug. 2, 2022). Rather, this is simply the “most secure foundation” to establish organizational standing. 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3531.9.5 (3d ed. 2022). Furthermore, “‘[a]t the pleading stage,’ we ‘liberally’ construe allegations of injury.” Bezet v. United States, 714 Fed. Appx. 336, 339 (5th Cir. 2017) (quoting Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009)).
Here, Plaintiff medical associations have standing via diversionary injury. Because of FDA’s failure to require reporting of all adverse events, Plaintiffs allege FDA’s actions have frustrated their ability to educate and inform their member physicians, their patients, and the public on the dangers of chemical abortion drugs. ECF No. 7 at 12. As a result, Plaintiffs attest they have
- ↑ See Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).
- ↑ At the hearing, Danco argued Elfant held there was no standing where organizations failed to identify specific projects put on hold. ECF No. 136 at 125. This is incorrect. The Fifth Circuit in Elfant assumed without deciding the plaintiffs pled an injury-in-fact but held they did not have standing because the causation and redressability elements were not met. See 52 F.4th at 255.
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