The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Law & Government

Plaintiffs Can't Challenge Supposed Disinformation by Government Agency, Unless It Affected Them Specially


From yesterday's opinion in Ohio Stands Up! v. U.S. Dep't of Health & Hum. Servs., decided today by the Sixth Circuit (Judge Alice Batchelder, joined by Judges Eric Clay and Joan Larsen):

Kristen Beckman and Douglas Frank … alleged that … defendants knowingly and intentionally published misleading and fraudulent data that overstated the number of nationwide COVID-19 cases and deaths, in violation of the Paperwork Reduction Act of 1995, 44 U.S.C. §§ 3501-3521, the Information Quality Act, 44 U.S.C. § 3516 (Policy and Procedural Guidelines), the Administrative Procedure Act, 5 U.S.C. §§ 500-706, and the "Implied Constitutional Duty of Honesty and Fair Dealing."

[To show standing to sue in federal court,] "… a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." "For an injury to be 'particularized,' it must affect the plaintiff in a personal and individual way." A plaintiff who is "seeking relief that no more directly and tangibly benefits him than it does the public at large … does not state an Article III case or controversy." "[A] grievance that amounts to nothing more than an abstract and generalized harm to a citizen's interest in the proper application of the law does not count as an 'injury in fact.' And it consequently does not show standing."

Here, Beckman and Frank start their claim with the accusation that the defendants knowingly published misleading and fraudulent data that overstated the number of COVID-19 cases and deaths. Beckman and Frank do not assert that the defendants published any data about either of them specifically or provided any data to them personally. Nor do they assert that they relied on the data to their personal detriment. In short, Beckman and Frank have not asserted that the defendants' conduct has affected them "more directly and tangibly … than it does the public at large." This "abstract and generalized harm" is not an "injury in fact" and does not establish standing.

To the extent that Beckman and Frank develop their claim to state direct injuries that are particular to them, and not merely to the public at large, they describe injuries committed by third parties who are not before the court. Frank posits that "a number of social media platforms and news outlets" relied on the defendants' data to label his contrary statistical analysis about COVID-19 as "illegitimate or false," which impaired his business and harmed his reputation.

Meanwhile, Beckman posits that the defendants' overstatement of COVID-19 cases and deaths caused the State of Ohio to impose emergency measures, including closures, mask mandates, and campaigns to encourage social distancing, quarantining, and vaccination. This, in turn, caused the organizers of her young son's hockey program to impose a mask requirement with no exceptions (not even for Beckman's valid medical and religious reasons), which prevented Beckman from attending and, accordingly, forced her to withdraw her son from hockey. Further, the operators or users of social media platforms censored Beckman, which caused her embarrassment and chilled her speech. And Beckman's employer required her to quarantine after she visited her family for Thanksgiving, even though she was not ill and had not been exposed to COVID-19, from which she claims "a burden on her Constitutional right to travel." Finally, Beckman's family expressed their "great fear" regarding COVID-19, which harmed her relationship with them.

When, as is alleged here, the "causal relation between [the claimed] injury and [the] challenged action depends upon the decision of an independent third party … , standing is not precluded, but it is ordinarily substantially more difficult to establish." Given its "reluctance to endorse standing theories that rest on speculation about the decisions of independent actors," the Court has limited the "fairly traceable" element in such cases to "the predictable effect of Government action on the decisions of third parties." …