Case Information
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS __________________________________________
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EQUAL MEANS EQUAL, )
THE YELLOW ROSES and )
KATHERINE WEITBRECHT, )
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Plaintiff, )
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v. )
) Case No. 20-cv-10015-DJC )
DAVID S. FERRIERO, in his Official )
Capacity as Archivist of the United States, )
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Defendant. )
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__________________________________________)
MEMORANDUM AND ORDER
CASPER, J. August 6, 2020 I. Introduction
Plaintiffs Equal Means Equal, The Yellow Roses (together, the “Organizational Plaintiffs”) and Katherine Weitbrecht (“Weitbrecht” or “Individual Plaintiff”) have filed this lawsuit against David S. Ferriero in his official capacity as Archivist of the United States ( “Defendant” or the “Archivist”) alleging constitutional violations and seeking, among other things, an order compelling the Archivist to record all states’ ratification of the Equal Rights Amendment (the “ERA”) and otherwise prohibiting removal of previously recorded ratifications and an order declaring the Equal Rights Amendment ratified. D. 5 at 3, 25. The Archivist has moved to dismiss for lack of jurisdiction and failure to state a claim under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6). D. 11. For the reasons stated below, namely that Plaintiffs lack standing, the Court ALLOWS the motion to dismiss, D. 11.
II. Standard of Review
Pursuant to Fed. R. Civ. P. 12(b)(1), a defendant may move to dismiss an action for lack
of subject matter jurisdiction. “[T]he party invoking the jurisdiction of a federal court carries the
burden of proving its existence.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir.
1995) (quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)). To
determine if the burden has been met, the Court “take[s] as true all well-pleaded facts in the
plaintiffs’ complaints, scrutinize[s] them in the light most hospitable to the plaintiffs’ theory of
liability, and draw[s] all reasonable inferences therefrom in the plaintiffs’ favor.” Fothergill v.
United States,
A defendant may also move to dismiss for a plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). Although detailed factual allegations are not necessary to survive a motion to dismiss, the standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. “The relevant inquiry focuses on the
reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.” Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011).
III. Background [1]
Unless otherwise noted, the following factual summary is taken from the allegations in the
operative complaint and the Court assumes them to be true for the purposes of resolving the
motion. McCloskey v. Mueller,
A. The Parties
David S. Ferriero is the Archivist of the United States and as such is responsible for the National Archives and Records Administration including the recording of states’ ratification of constitutional amendments and the amendments themselves. D. 5 ¶ 9; 1. U.S.C. §106b. Equal Means Equal is a national 501(c)(4) organization whose sole purpose is to advocate for women’s equality, ratification of the ERA and equal rights for women and girls. D. 5 ¶ 10. Specifically, its goal “is to eradicate sex/gender inequality and advocate for sex/gender equality and fully equal rights for women and men.” D. 5 ¶ 59. In 2016, Equal Means Equal produced a documentary film titled “Equal Means Equal” which examined the status of American women who experienced discrimination and considered whether the ERA would mitigate this pattern of discrimination. D. 5 ¶ 60. Equal Means Equal’s executive director, Kamala Lopez (“Lopez”), testified in front of the Illinois legislature in support of the ERA. D. 5 ¶ 61. Equal Means Equal has been advocating for state and federal officials to begin the process of examining their laws and regulations, and to take steps “to repair all sex discriminatory provisions,” but officials have declined, citing the Archivist’s refusal to recognize the ERA as ratified. D. 5 ¶ 62. Equal Means Equal further alleges that because the Archivist has refused to recognize the ERA as ratified, women attorneys and other advocates have been reluctant to demand repair work and Equal Means Equal has had to expend significant resources educating its members and members of the general public about why the ERA is duly ratified despite the Archivist’s opinion to the contrary. D. 5 ¶ 63. The diversion of these resources, Equal Means Equal asserts, has reduced the amount of resources available to Equal Means Equal that would otherwise be used to assist in the repair work of sex discrimination provisions in anticipation of the ERA taking effect. D. 5 ¶ 63.
The Yellow Roses is an organization of Massachusetts high school students, founded in 2016, for the sole purpose of advocating for ratification of the ERA. D. 5 ¶ 11. The Yellow Roses’ mission is to advocate for and raise public awareness about the ratification of the ERA. D. 5 ¶ 66. The Yellow Roses engages in numerous activities including circulating a petition for the ratification of the ERA, interviewing and being interviewed by the media, meeting with state and federal officials to advocate for the equal treatment of women and ratification of the ERA, collaborating with activists and making public appearances to advocate for and teach young people to be activists in their communities. D. 5 ¶ 67. The Yellow Roses asserts that its mission is impaired by the refusal of government officials to begin the process of examining and repairing sex discriminatory laws, regulations and policies and because they cannot effectively advocate on behalf of the ERA so long as the ERA is perceived by government officials as not valid. D. 5 ¶ 69.
Individual Plaintiff Katherine Weitbrecht is a female resident of Norfolk County, Massachusetts. D. 5 ¶ 12. Weitbrecht personally suffered a violent act because she is female when she was strangled in Massachusetts for wearing a rape whistle. D. 5 ¶ 71. Weitbrecht reported the perpetrator to law enforcement and he was charged with a single count of assault and battery, but Plaintiffs allege that he could not be charged under the Massachusetts hate crime statute, Mass. Gen. L. c. 265 § 39, because sex is not a protected class under that statute. D. 5 ¶¶ 72-73 (citing Mass. Gen. L. c. 265 § 39). Weitbrecht is now reluctant to report any sex-based criminal activity because of that experience. D. 5 ¶ 74. She fears that reporting crimes committed against her because she is female will lead to inadequate charges and unjust treatment by law enforcement and the legal system. D. 5 ¶ 74. Weitbrecht alleges that her rights and well-being are threatened and violated by her lack of full constitutional equality and, as a result, she has been subjected to needless increased risk of violence because of her sex. D. 5 ¶¶ 75, 77.
B. The ERA
In March 1972, Congress approved a resolution proposing an Amendment to the Constitution, the Equal Rights Amendment, by a supermajority of each house and submitted it for ratification to the state legislatures. H.J. Res. 208, 86 Stat. 1523 (1972). The resolution includes the text of the proposed amendment and set a seven-year deadline from the date of submission for ratification. The resolution states:
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States relative to equal rights for men and women.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress: “ARTICLE-
“SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
“SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
“SEC. 3. This amendment shall take effect two years after the date of ratification.
H.J. Res. 208, 86 Stat. 1523 (1972). States considered the ERA and thirty-five states ratified it, including Massachusetts, before the seven-year deadline passed. D. 5 ¶ 18. Five states also passed resolutions seeking to rescind their prior ratification, see Ratification of the Equal Rights Amendment, U.S. Dep’t of Justice, Office of Legal Counsel, 44 Op. O.L.C. at *18–21 (Jan. 6, 2020).
In 1978, as the seven-year deadline approached, Congress passed a joint resolution by the
majority of both houses extending the ERA’s deadline to June 30, 1982. H.R.J. Res. 638, 95th
Cong., 2d Sess., 92. Stat. 3799 (1978). No new states ratified the ERA between 1979 and 1982.
D. 5 ¶ 18. One of these five states attempting to rescind the ERA was Idaho, whose rescission,
along with Congress’s 1978 extension, became the subject of a lawsuit, Idaho v. Freeman, 529 F.
Supp. 1107, 1146-50 (D. Idaho 1981). The district court in Freeman held that Congress’s 1978
extension was unsuccessful and states may rescind their ratification. Id. at 1146-54. The Supreme
Court stayed the district court’s judgment and granted certiorari before the Ninth Circuit ruled on
the appeal, Nat’l Org. for Women, Inc. v. Idaho,
C. Recent Developments with the ERA
In 2012, Defendant issued an opinion letter stating that he would record States’ ERA ratification votes if they occurred after expiration of the challenged deadline and publish the ERA if three-fourths of the States voted to ratify it. See Letter from David S. Ferriero, Archivist of the
United States, to Hon. Carolyn Maloney (October 25, 2012), https://www.congress. gov/116/meeting/house/109330/documents/HHRG-116-JU10-20190430-SD007.pdf. In 2017, the ERA regained national attention when Nevada passed a resolution intent on ratifying the ERA. S.J. Res. 2, 79th Leg. (Nev. 2017). Illinois followed suit the following year. S.J. Res. Const. Amend. 0004, 100th Gen. Assemb. (Ill. 2018). The Archivist recorded both Nevada and Illinois’s ratifications. D. 5 ¶ 28. Because following Illinois’s efforts, thirty-seven states in total had passed resolutions seeking to ratify the ERA, certain members of Congress wrote to the Archivist requesting information as to what actions he would take in the event that a 38th state, the last necessary vote for ratification, attempted to the ratify the ERA. See Letter from Gary M. Stern, General Counsel, Nat’l Archives and Records Admin., to Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, U.S. Dep’t of Justice (Dec. 12, 2018), https://www.archives.gov/files/press/press-releases/2020/olc-letter-re-era-ratification-12-12- 2018.pdf. Following the inquiry from Congress, on December 12, 2018, the general counsel to the National Archives wrote the Department of Justice, Office of Legal Counsel (“OLC”) requesting guidance on the Archivist’s responsibilities to record state’s efforts to ratify the ERA after the congressional deadlines. Id. On January 6, 2020, the OLC issued a memorandum opinion (the “OLC ERA Opinion”) that the “deadline in the proposing clause of the ERA Resolution was a valid and binding exercise of Congress’ authority to set a deadline on ratification” and regardless of whether the 1979 Congressional Extension was valid, the ERA deadline has come and gone and, therefore, advised the Archivist not to certify the ERA as ratified if any state subsequently attempted to ratify the ERA. See Ratification of the ERA, 44 Op. O.L.C. at *12, *24. On January 8, 2020, the Archivist issued a statement that he “defers to DOJ on this issue and will abide by the [OLC ERA Opinion] unless otherwise directed by a final court order.” NARA Press Statement on the Equal Rights Amendment (Jan. 8, 2020), https://www.archives.gov/press/press-releases-4.
A week later, the Virginia General Assembly passed a joint resolution intending to ratify the ERA. H.R.J. 1, 2020 Sess. (Va. 2020). As of the date of the filing of the amended complaint in this action, the Archivist had not recorded Virginia as having ratified the ERA, D. 5 ¶ 41, but the Archivist subsequently recorded Virginia’s ratification. D. 12 at 30; see Nat’l Archives and Records Admin., Equal Rights Amendment: List of State Ratification Actions (Mar. 24, 2020),
https://www.archives.gov/files/foia/pdf/era-list-of-state-ratification-actions-03-24-2020.pdf.
IV. Procedural History
Plaintiffs instituted this action on January 1, 2020, D. 1, and amended the complaint on February 29, 2020, D. 5. Defendants has now moved to dismiss. D. 11. The Court heard the parties on the pending motion and took the matter under advisement. D. 17.
V. Discussion
A. Standing
Article III of the Constitution limits federal courts to deciding cases or controversies. See
U.S. Const. art. III § 2; Merrimon v. Unum Life Ins. Co. of Am.,
The constitutional requirement of standing necessitates that a plaintiff show “a concrete
and particularized injury in fact, a causal connection that permits tracing the claimed injury to the
defendant’s actions, and a likelihood that prevailing in the action will afford some redress for the
injury.” City of Bangor v. Citizens Commc’ns Co., 532 F.3d 70, 92 (1st Cir. 2008) (internal
quotation marks omitted) (quoting Me. People’s All. & Nat. Res. Def. Council v. Mallinckrodt,
Inc.,
1. Standing to All Persons Protected by the ERA
Most broadly, Plaintiffs assert that all persons protected under the ERA have standing to
bring suit. D. 13 at 41-47. Specifically, Plaintiffs argue that all persons that would be protected
under the ERA are injured by the Archivist’s actions because they have a legal interest in the
“continued vitality of the ERA.” D. 13 at 41. Plaintiffs also argue that the Archivist’s failure to
publish the ERA perpetuates the status of women as unequal resulting in disproportionately higher
rates of harm because of that inequality. D. 13 at 43. But cognizable injuries must be both concrete
and particularized. Spokeo, Inc. v. Robins, ___U.S. ___,
a) Injury to All Persons Protected by the ERA is Not Particularized
As an initial matter, Plaintiffs appear to suggest that since the members of the
Organizational Plaintiffs and the Individual Plaintiff are female, they have standing to bring this
complaint. D. 13 at 41-42. Such a nation-wide standing principal has been squarely rejected. See
Allen v. Wright,
Plaintiffs argue that this case is distinguishable because unlike in Allen, the Plaintiffs here
are not merely concerned bystanders. D. 13 at 42. Rather, according to Plaintiffs, “in this
unprecedented case where our nation’s foundational governing document has been changed, there
can be no bystanders” and because women and others protected by the ERA should be guaranteed
a “place in the Constitution as fully equal persons, [and] Defendant’s actions have denied them
that status,” they have suffered injury.
[2]
D. 13 at 42. This argument asserts that because the
Plaintiffs’ challenge is rooted in the constitution, it is distinguishable from the tax related challenge
in Allen. First, the Supreme Court’s jurisprudence regarding the requirement that standing be
individualized is not limited to its holding in Allen. See Lujan v. Defs. of Wildlife,
Baker v. Carr,
b) Nor Have Plaintiffs Identified a Concrete Injury Suffered by All Those Protected by the ERA Although the fact that an injury is widely shared does not defeat a plaintiff’s claim to injury, it must nonetheless be sufficiently concrete and individualized. Plaintiffs may plausibly allege standing regardless of “how many persons have been injured by the challenged action” if they plausibly allege that their individual rights have been or will be infringed in some “concrete and personal way.” Massachusetts v. E.P.A., 549 U.S. at 517 (quoting Lujan, 504 U.S. at 581
(Kennedy, J., concurring)). In Fed. Election Com’n v. Akins, 524 U.S. 11, 20-25 (1998), the
Supreme Court held that voters had standing to challenge the Federal Election Commission’s refusal to compel the American Israel Public Affairs Committee to register as a “political committee.” Id. The Court identified the injury as a failure to obtain relevant information that was mandated by statute and explained that “the informational injury at issue here, directly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts.” Id. at 24-25.
This is not the case, as was in Akins, where parties have identified a concrete injury—such
as a lack of information that is related to their right to vote. Here, the Plaintiffs have not identified
a particular injury suffered by all people protected by the ERA generally that concretely or tangibly
harms them. Instead, Plaintiffs assert that all individuals that would be protected under the ERA
are denied that status of equal person. This theory suffers from two flaws. First, it is not the case
that because the constitution does not affirmatively protect rights, it impinges on them. Indeed,
some state constitutions protect rights beyond the floor the federal constitution sets, yet courts do
not understand federal constitutional omissions in regard to what states protect to impede or burden
those rights. See Am. Legion v. Am. Humanist Ass’n, __U. S__,
Plaintiffs attempt to ground their injury arguments in the concrete harm they allege women
face as a result of the ERA not being recognized. D. 13 at 43-44. In doing so, Plaintiffs point to
several harms women face from society at large. For example, Plaintiffs explain that women face
increased and disproportional levels of violence, are subject to bias in education and “offenders of
violence against women are less likely to be held responsible compared to offenders of other types
of violence.” D. 5 ¶¶ 51-58. But these generalized injuries are not cognizable injuries to the class
of persons protected by the ERA as a whole. Simon,
Moreover, even assuming these injuries conferred standing upon all women, but see Equal
Means Equal et al. v. Dep’t of Educ. et al., No. 17-cv-12043-PBS,
2. Individual Plaintiff Defendant also challenges the standing of the Individual Plaintiff, Weitbrecht, to bring suit in this instance. D. 12 at 27-29. Plaintiffs assert that Weitbrecht has standing in this action because she “has personally suffered violence and unequal protection and enforcement of the laws based on sex.” D. 13 at 54. Weitbrecht experiences heightened vigilance and concern about being less safe because she is female and further alleges a reluctance to seek redress for sex-based harm due to fear that this will lead to inadequate charges and unjust treatment by law enforcement. D. 13 at 54.
Although Weitbrecht has alleged such harm, that harm does not confer standing in this suit.
The injury must be tied to the relief requested to confer standing. Conservation Law Found. of
New England, Inc.,
Weitbrecht’s other alleged injuries also do not confer standing in this instance. Weitbrecht
also asserts that her “rights and well-being are threatened and violated by her lack of full
Constitutional equality because she is not equally protected by the United States Constitution, or
Massachusetts law.” D. 5 ¶ 75. But as explained above, this type of generalized injury cannot be
the basis for a plaintiff’s standing because it is neither particularized nor concrete. Indeed, another
session of this Court has rejected the assertion that persons denied generalized equal treatment by
anticipated discriminatory conduct, alleges injury in fact. Equal Means Equal et al., 2020 WL
1284149, at *7 (holding that such injuries were “merely speculative”). Next, Weitbrecht claims a
chilling effect on her speech namely that she is reluctant to seek redress for any sex-based harm
she may endure due to fear that the charges or crimes will be inadequate and she will receive unjust
treatment by law enforcement and the legal system. D. 13 at 54-55. To the extent this injury is
premised on a First Amendment chill injury, such an injury is “peculiar to the First Amendment
context,” N.H. Right to Life Political Action Comm. v. Gardner,
3. Organizational and Associational Standing
Organizational plaintiffs may demonstrate standing by: (1) showing associational
standing, i.e., that the member of the organization would have standing to sue as an individual and
the interests the organization seeks to protect are germane to its purposes; or (2) by showing that
the organizational plaintiffs have standing to sue on their own. See Equal Means Equal et al., 2020
WL 1284149, at *3. In either instance, the organization must demonstrate more than a “mere
interest in a problem.” Sierra Club,
a) Associational Standing
“[A]n association may have standing solely as the representative of its members even in
the absence of injury to itself, in certain circumstances.” Camel Hair & Cashmere Inst. Of Am.,
Inc. v. Associated Dry Goods Corp.,
Plaintiffs assert that Equal Means Equal,
[6]
has associational standing in this instance
because two of its members, Lopez and Weitbrecht, had a cognizable interest in the validity of the
ERA. D. 13 at 52-53. The Archivist asserts that it is not apparent from the amended complaint
that Equal Means Equal has members at all, much less that Lopez and Weitbrecht were members.
Indeed, it does not appear from the amended complaint that Equal Means Equal alleges that it has
members that have standing to sue in their own right (although it asserts in its opposition that
Lopez and Weitbrecht are members), as the operative pleading does not individually identify any
of Equal Means Equal’s members. See generally, D. 5. Equal Means Equal alleges that it has
“over twenty-thousand active supporters including members of the entertainment and media
community,” D. 5 ¶ 65, and otherwise alleges that it “engages with its members/supporters who
donate funds and volunteer,” D. 5 ¶ 61, and that its involvement in this litigation is intended to
represent its own interests and the interests of its members/supporters and women at large, D. 5 ¶
64. Associational standing, however, requires that the organization “at the very least, ‘identify [a]
member[ ] who ha[s] suffered the requisite harm.’” Draper v. Healey,
Even considering the additional facts alleged in its opposition, Equal Means Equal has not established standing. Equal Means Equal asserts in its briefing that Weitbrecht and Lopez are both members and both have standing in their own right. D. 13 at 53. As this Court discussed above, Weitbrecht has not alleged a cognizable injury attributable to the Archivist’s action and, therefore, does not have standing in this instance. Nor does Lopez’s alleged injury—that she has devoted personal resources and funds to conduct training sessions, produce educational material and communicate with government officials around the country, urging them to disregard Defendant’s actions—amount to a concrete injury. D. 13 at 53. As an interest in a problem is insufficient to confer standing, Sierra Club, 405 U.S. at 739 (quotations omitted), Equal Means Equal’s associational standing argument fairs no better with respect to Lopez.
b) Organizational Standing
“It is well-accepted in the standing context that organizations may have interests of their
own, separate and apart from the interests of their members.” Mass. Delivery Ass’n v. Coakley,
The Supreme Court in Sierra Club addressed the standing of the Sierra Club, a membership corporation group with a special interest in conservation, to bring suit enjoining federal officials from approving an extensive skiing development in the Mineral King Valley. Id. at 729-30. Recognizing that “[t]he Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation’s natural heritage from man’s depredations,” the Supreme Court held that this “special interest” in the problem did not satisfy Article III’s standing requirements. Id. at 739. This is because if “‘special interest’ in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide ‘special interest’ organization however small or short-lived. And if any group with a bona fide ‘special interest’ could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.” Id. at 739-40. Accordingly, Sierra Club is understood as rejecting
the idea that lobbyist or advocacy groups had standing when they assert no injury other than an
injury to its advocacy. Ctr. for Law & Educ. v. Dep’t of Educ.,
Organizational injury, however, may also be established when the organization suffers an
injury to its organizational activities. For example, in Havens Realty Corp.,
The Supreme Court differentiated the injury suffered—having to devote significant
resources to combat discrimination and thereby impeding its ability to provide counseling
services—from the abstract social interest in combatting racial discrimination that the Supreme
Court previously found insufficient to state standing in Sierra Club. Id. (citing Sierra Club, 405
U.S. at 739). In Havens, it was not enough that the plaintiff organization was generally interested
in combating racial discrimination, rather it was that its activities of providing housing counseling
and referral services had been impeded that gave rise to its standing. Id. Havens and Sierra Club
together require organizations to have an injury distinct from an interest in the problem. Courts,
therefore, do not find standing when the organizational goal is one in the same with the injury
because those organizations have only a “mere interest” in a problem. See Lane v. Holder, 703
F.3d 668, 674-75 (4th Cir. 2012) (ruling that a second amendment group whose goal was to
promote the exercise of the right to keep and bear arms, educate and research, publishing and legal
action focusing on the Constitutional right to privately own and possess firearms did not have
standing to challenge firearm law based on its diversion of resources to educate and litigate based
on the law); Pa. Prison Soc.,
Yellow Roses and Equal Means Equal are both advocacy organizations. Equal Means
Equal’s “sole purpose is to advocate for sex equality and ratification of the ERA.” D. 13 at 50; D.
5 ¶¶ 10, 59. Yellow Rose’s mission is to advocate for and raise public awareness about sex equality
and the ERA. D. 13 at 53; D. 5 ¶¶ 11, 66. Both organizations allege that their missions have been
frustrated because they assert that the Archivist’s refusal to publish the ERA and dissemination of
misinformation about its validity has obstructed the organizations’ ability to advocate for sex
equality under the ERA. D. 13 at 50, 54. Because the Archivist has not declared the ERA valid,
they cannot effectively advocate for equality under it. D. 13 at 49-51, 53-54. The organizations
argue that they have had to divert funds away from their advocacy efforts and instead have had to
dedicate funds to educating the public about the Archivist’s actions. D. 13 at 49-51, 53-54. If
these allegations were sufficient to claim standing, an organizational plaintiff would have standing
anytime a defendant’s action interfered with their organizational goal of advocacy. This is
precisely the principal the Supreme Court rejected in Sierra Club when it held that the Sierra Club’s
special interest in the “[n]ational natural heritage from man’s depredations” were not enough to
entitle Sierra Club to commence [that] litigation. Sierra Club,
Nor are the organizations’ efforts to educate members of the public/supporters sufficient
to sustain standing. The Organizational Plaintiffs argue that they have devoted resources “to
educate and inform members and the general public about why the ERA is duly ratified” despite
the Archivist’s actions. D. 5 ¶ 63. Essentially, these resources have been devoted to educate the
public about the legal status of the ERA, but an organization may not establish “Article III standing
merely by virtue of its efforts and expense to advise others how to comport with the law, or by
virtue of its efforts and expense to change the law.” Fair Elections Ohio v. Husted,
To hold otherwise and decide that the Organizational Plaintiffs here, whose purpose is to
advocate for the ERA, have standing to assert the constitutional validity of the ERA would be in
tension with this Court’s obligation to decide only actual cases and controversies. “At bottom the
Article III standing limitation prevents a plaintiff from bringing a federal suit to resolve an issue
of public policy if success does not give the plaintiff (or one of an associational plaintiff’s
members) some relief other than the satisfaction of making the government comply with the law.”
Fair Elections Ohio,
4. Procedural Injury
Plaintiffs also assert a procedural injury in their opposition. D. 13 at 40. “The person who
has been accorded a procedural right to protect his concrete interests can assert that right without
meeting all of the normal standards for redressability and immediacy.” Lujan,
Even assuming there was some procedural violation here, Plaintiffs “cannot satisfy the
demands of Article III by alleging a bare procedural violation.” Spokeo, Inc.,
5. The Claims Here Further Illustrate That Plaintiffs Do Not have Standing
Plaintiffs ask, among other things, that this Court declare certain states’ purported
rescissions invalid and declare the ERA ratified despite the fact that several states have passed
intended rescissions of these ratifications. D. 5 at 25. In short, the Plaintiffs ask this Court to
adjudicate the efficacy of states ratification, which Freeman observed is “the mechanism whereby
the will of the people is expressed.” Freeman,
For all of the aforementioned reasons stated, Plaintiffs have not demonstrated standing in
this suit. Accordingly, the Court lacks jurisdiction to decide the underlying merits and, therefore,
does not address the Defendant’s remaining arguments for dismissal. See United States v. AVX
Corp.,
VI. Conclusion
For the foregoing reasons, the Court ALLOWS Defendants’ motion to dismiss. D. 11. So Ordered.
/s/ Denise J. Casper United States District Judge
Notes
[1] The Court ALLOWS nunc pro tunc the Plaintiffs’ motion to take judicial notice of the States’ Amicus Brief filed in Virginia v. Ferriero, 1:20-cv-00242 (D.D.C.), D. 27, and the Court further ALLOWS amici curiae motions, D. 24; D. 28, to file briefs in support of Plaintiffs. The Court has considered the briefs, D. 25, as amended by D. 30; D. 27-1, D. 29, herein but notes that none of them concern the legal issue of standing.
[2] Plaintiffs cite the Ninth Circuit’s ruling on intervenor’s rights in Freeman holding that the interest in the vitality of the ERA was sufficient to allow a women’s group to intervene to support their proposition that such a generalized interest is sufficient to confer standing. Idaho v. Freeman, 625 F.2d 886, 887 (9th Cir. 1980). Although the circuits are split on this issue, Mangual v. Rotger-
[3] Nor can this relief remedy any alleged unequal treatment Weibrecht faced by virtue of the
allegation that she is not a member of a protected class under Massachusetts hate crime statute,
Mass. Gen. L. c. 265 § 39. D. 5 ¶¶ 72-73. This harm stems from the independent act of a third
party—the Massachusetts legislature, and, therefore, is not fairly attributable to the Archivist. See
Katz,
[4] To the extent this chill injury asserts that Weitbrecht has been denied access to the courts, D. 13
at 55, this injury cannot be said to be attributable to the Archivist as it involves the independent
acts of third parties. Katz,
[5] Weitbrecht’s chill arguments suffer from an additional deficiency—they are not fairly
attributable to the Archivist. The fact that Weitbrecht fears that she will receive unjust treatment
by law enforcement or the legal system if she reports a crime is not fairly attributable to the
Archivist’s failure to certify the ERA because it relies on independent acts of third parties. See
Katz,
[6] Other than a single line in their surreply brief, D. 22 at 12 n.9, Plaintiffs have not endeavored to argue that the Yellow Roses have associational standing. See D. 13 at 53-54; D. 20 at 6 n.2; D. 22 at 11-12. To the extent that they do make this contention, the Court concludes that they have not made sufficient showing of same.
[7] Plaintiffs argue that Boston’s Children First is inapplicable because they argue that the plaintiffs there alleged no diversion of resources or frustrated its mission. D. 13 at 51. As a preliminary matter, it appears that the plaintiffs in Boston Children First did allege a diversion of resources as its argument was based on the “sunk costs” injury the organization sustained as a result of the
[8] Plaintiffs also assert a procedural right because “thirty-eight states voted to ratify the ERA, thus satisfying Article V” and, therefore, Plaintiffs also have a cognizable legal interest in ensuring compliance with the states’ judgment that the ERA is now law. D. 22 at 10-11 n. 7. In support, Plaintiffs cite Salazar v. Buono, 555 U.S. 700, 712 (2010) for the proposition that party who obtains a judgment in his favor “acquires a ‘judicially cognizable’ interest in ensuring compliance with hat judgment.” Here, Plaintiffs have not obtained a judgment in their favor that the ERA is ratified and cannot use their arguments that it is ratified to assert standing to obtain that very judgment.