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." …

Comments

[DaivdBehar]

This is another vile lawyer delusion. The lawyer is vile, the delusion is vile. The taxpayer has no standing.

Massive tax payments were made on the basis of the biggest fraud heist in history. Aside from the tax burden, the result inflation devalued the money assets of all Americans. Meanwhile, the tech billionaires scored $1.7 trillion from this biggest scam in history. This hoax resulted in a $4 trillion drop in world GDP. That killed more millions of people by starvation than any 20th Century tyrant. The lawyer profession just colluded, and did nothing to stop it.

[Nisiiko]

Lawyers were not bystanders, they were the architects.

[Kleppe]

It's fascinating to me, as a non-lawyer, that our legal profession has manifested a system in which the government lying and injuring everybody somehow requires the result that nobody has standing to sue.

[DaivdBehar]

This is a self dealt immunity, not authorized by the constitution. The Eleventh Amendment refers to jurisdictional standing. It does not immunize states from its own citizens. That comes from made up shit by lawyer scumbags on the scumbag Supreme Court.

The thing about immunity is that it fully justifies violence in formal logic. The latter is supreme even to the laws of physics, never mind the rent seeking, corrupt made up shit of the scumbag lawyer profession. Violence against immune parties should be fully immune. Formal logic says that, and is supreme.

Hey scumbags, do you believe legal liability was a great invention 8000 years ago? It permitted the replacement of endless cycles of violent revenge and of kidnappings to enforce a promise. That allowed civilization to start, compared to the prior existence of aggressive animals. In formal logic, from high school years, the contrapostive of a tue assertion is always true. All bats are mammals (If A then B, is true.). This animal is not a mammal, then it cannot be a bat (Not B then not A is true.) If liability is a replaceement for violence as a way to settle disputes then immunity justifies violence as a way to settle dispute (Not B then not A is true).

All of high school gets erased in law school indoctrination into sick fuck supernatural and delusional doctrines. The profession sucks because of its denial of empiricism and of logic. It stinks at every self stated goal of every law subject, no exception. It is good at only one thing. It collects $trillion in rent seeking and provides nothing of value in return. Only violence will make them give that rent up.

[tkamenick]

Yeah, that's the problem with the federal rejection of taxpayer standing. They are literally saying "everybody gets hurt, so nobody can sue"

[Krychek_2]

Conceptually, I agree with you that "everybody gets hurt so nobody can sue" is pretty lame. The practical problem with allowing taxpayer standing, however, is that any time the government did anything at all, whoever didn't like it would file a taxpayer suit. The courts would have time for nothing else, and the government would have no ability to get anything done because all it would be doing would be defending taxpayer suits. So I think the real rationale behind denying taxpayer standing is that it would be suicidal for the government to allow those suits.

[tkamenick]

That's the theory, yes, but considering the states that allow taxpayer standing (my home of Wisconsin among them) don't have anything like this crushing flood of taxpayer suits, it's not born out in practice.

Even if true, it's a bad argument. It would clog the courts only because the government is doing tons and tons of illegal things. It's like saying "man, crimes just take up so much court time, let's eliminate the criminal code".

[Rev. Arthur L. Kirkland]

The virus-flouting dumbasses who filed this action for a group of virus-flouting dumbasses are Thomas Renz and Robert Gargasz. An online request for donations indicated that more than 2,000 hours of legal work had been devoted to this cause.

Gargasz is a Republican who ran unsuccessfully for county prosecutor (presumably on the 'I may be a lawyer but I am nonetheless a belligerently ignorant culture war casualty just like you' ticket) a few years ago.

Mr. Gargasz is an Ohio Northern law graduate (think South Texas College of Law Houston, except located in Ohio) and the type of lawyer who advertises that his one-man firm offers services in 20 legal specialties. During his campaign, Gargasz reportedly admitted that he had stated that leftists, communists, and Marxists should be shot with machine guns and "stacked like cordwood."

That comment inclines me to conclude that Robert Gargasz is a huge fan of the Volokh Conspiracy and perhaps a regular commenter.

The Washington Post reports that Renz -- a graduate of Case Western Law (sorry to hear that, Prof. Adler) -- is no better: "Renz, 44, who passed the Ohio bar exam in November 2019 on his fifth attempt . . . "

Renz boasts of his appearances on Alex Jones' Infowars.

Another natural fan of the Volokh Conspiracy.

[DaivdBehar]

Hi, Rev. Not just a hypocrite, a supercilious hypocrite.

[DaivdBehar]

Rev. Stop your stupid woke lecturing until you act woke. You are annoying and you just stink. Resign, and interview your diverse replacement. Diversity is the strength of this country.

[Rev. Arthur L. Kirkland]

One might say Robert Gargasz of Lorain County is a Bob from Ohio.

(Here's another one you might have missed.)

[Kenneth Almquist]

This case suggests one reason why standing requirements are beneficial. The complaint is rambling, but the central claim is that there are three flaws in the way the CDC counts COVID-19 deaths:

1. If the death is determined to be caused by COVID-19, the death is classified as a COVID-19 death. (This is claimed to be misleading because it implies that if the person had not died of COVID-19, the person would not at some point die from some other cause.)
2. If the cause of death is uncertain, but the most likely cause is COVID-19, the death is classified as a COVID-19 death.
3. Cause of death information is taken from death certificates (meaning that fraudulent death certificates could throw off the count).

The complaint doesn't suggest any way for the CDC to fix the above three flaws, and the fact that #1 is claimed to be a flaw means that plaintiffs wouldn't accept any counting method whatsoever.

In other words, this case is basically frivolous, even if it doesn't meet the legal standard required to impose sanctions. Most people wouldn't file a case like this. But if pretty much anybody in the United States has standing to file a case like this, and one in a million Americans are crazy enough to actually file it, that means cases like this will be filed. So a really broad standing doctrine means more frivolous lawsuits against government agencies, with the costs of defending against these lawsuits borne by the taxpayer.

[John F. Carr]

If you could sue the government for lying, I would make a lawyer rich.

[StellaLink_the dog]

If you could sue Cucker Tarlson for lying, he'd find himself in the penury he so richly deserves.

[Toranth]

If Carlson could sue people for lying about him, he'd make up for it a thousand times over.

[StellaLink_the dog]

What's stopping Cucker from suing people for lying about him (assuming that lies have actually been told about him)? If someone has knowingly made false statements of fact about him, he should have a good case. Cucker's lies, though, are typically widely spewed. When he claims that people he doesn't like are "groomers" or that Democrats are executing a Great Replacement plan to import non-citizens/nationals in order to change the nature of the electorate, those lies are not actionable -- there is no party to sue him.

[Michael D]

Who has standing to accuse the government of being in violation of the law other than the government itself and someone directly harmed by the action?

Policing itself is not a hallmark of any government. Therefore, it falls on those harmed to act. But what happens when the harmed party fails to act, does the government escape repercussions for possibly violating the law?

[mse326]

I mean yes just like everybody else. I can steal a billion dollars from someone and if that person fails to act I escape repercussions.

There can and are good arguments that this generalized harm not amounting to injury in fact for standing is wrong. That even a generalized harm is a harm and therefore you are an aggrieved party. But the premise that for standing the plaintiff needs to be a harmed party is entirely sensible.

[Michael D]

I definitely see both sides of the argument and appreciate your response. Sometimes I see the courts using lack of standing as a way to avoid thorny issues.

It leaves me wondering if perhaps states and/or localities ought to be presumed to have standing. In that way, there is an entity which represents the people claiming a generalized harm.

Just a thought.

[DaivdBehar]

The three stooges who ruled get their paycheck from the government. Could you make a decision against your employer and continue on the job?

Judges should get half their pay from each side of a dispute.

[Michael Ejercito]

How was the Supreme Court justices able to keep their jobs when they ruled against DOMA?

Or the OSHA vaccination mandate?

[Randal]

It's pretty easy for a state to get a hearing. They enjoy original jurisdiction at the Supreme Court, which is the court that's most likely to sort of skip over questions of standing if it's a case they want to opine on.

I think the theory for why generalized harm isn't enough for standing is simply that courts aren't equipped to handle that sort of thing, and were never intended to. Questions of general welfare are essentially political.

[tkamenick]

The problem with the court's reasoning is that if the entity that puts out the false information doesn't act on it themselves, they can always escape liability because some other third party will be the one acting in harmful ways based on the false information.

That's like claiming nobody can ever be liable for defamation because, after all, it's the effect of the lie on OTHER people's opinion of you that is your actual injury. E.G. --> Bob falsely says Amy stole from her last job. Company C doesn't hire Amy because of what Bob said. Bob is not liable because the independent act of Company C is what harmed Amy.

[Michael Ejercito]

The lie was not about the plaintiffs personally though.

[ReaderY]

Yes, that’s the problem here. Nothing that the government said was about the plaintiffs. The plaintiffs merely disagreed with it. That’s what distinguishes this case from a libel case.

[Pointercolor]

It's fascinating to me, as a non-lawyer, that our legal profession has manifested a system in which the government lying and injuring everybody somehow requires the result that nobody has standing to sue.