Last week, the Fifth Circuit issued an unpublished order in Alliance for Hippocratic Medicine v. Food and Drug Administration, partially staying the district court’s earlier order overturning the FDA’s approval of mifepristone. 

Standing, as we all know, requires that the plaintiffs suffered an injury in fact that is “actual or imminent.” Standing rules can be unpredictable, but when determining whether a threatened injury is sufficient, like in this case, the standing caselaw is particularly pliable. The Supreme Court has used two rules to assess threatened future injuries—“certainly impending” and “substantial risk”—and it is difficult to know which one applies and if they are substantively distinct. 

The plaintiffs in this case are individual doctors and associations of doctors suing on behalf of their members. Both the Fifth Circuit and the district court found standing. The Fifth Circuit’s logic is that medical complications associated with mifepristone are “certainly impending” and statistically, some percentage of the plaintiff doctors will have to provide emergency care to women who use the drug. Judge Kacsmaryk on the district court reasoned that the “certainly impending” rule is “not as demanding as it sounds.” Rather, a “substantial risk” of harm will suffice. The reasoning of the Fifth Circuit and the district court raises the following question: Should one or both rules be used, and should the choice have a bearing on the outcome?

Jonathan Adler and Adam Unikowsky wrote a series of blog posts that question whether the plaintiffs’ threatened injuries comport with the standing rules, and Erin Hawley of ADF wrote a response. I won’t repeat their arguments. I chime in to write that the debate highlights the current inconsistent application of the standing rules for threatened injuries.

The confusion comes from the Supreme Court’s holdings in Clapper v. Amnesty Int’l USA and Susan B. Anthony List v. Driehaus. In Clapper, the Court used the “certainly impending” standard to assess the threat of future surveillance. But in an important footnote, Justice Alito wrote that in some instances, the Court has found standing based on a “substantial risk” that harm will occur. In Driehaus, Justice Thomas wrote that an “allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” In response, some circuits have held that if a plaintiff can cross either threshold, that is good enough.

While the terms of the Court’s formulations suggest that they may relate to different considerations (such as the temporal nature of the threatened injury and the magnitude of the harm), the caselaw doesn’t bear out this distinction. Rather, some courts, like the district court in Alliance for Hippocratic Medicine, just view the “substantial risk” rule as a less demanding standard. But this interpretation makes Driehaus perplexing. If crossing either threshold is good enough, and “substantial risk” is just a lower threshold than “certainly impending,” why even keep “certainly impending” around? And how is the interpretation reconcilable with Clapper?

There are a couple of plausible approaches that could make sense of the Supreme Court’s existing precedent. One is that the two rules are actually the same. Justice Alito’s footnote in Clapper seems to question if the two rules are different. In effect, it seems like the Court mostly considers the probability of injury regardless of the rule, and it’s not clear that the choice of rule has been outcome determinative in Supreme Court cases. For example, it is reasonable to think that the plaintiffs in Driehaus could have met the “certainly impending” requirement.

In some circuit cases, the choice of rule is not outcome determinative. For example, consider the cases addressing whether a plaintiff whose personal information was compromised in a data breach has suffered an injury sufficient to establish standing. In 2014, there was an OPM data breach, and the hackers may have stolen millions of government employees’ financial information. The D.C. Circuit held that there was standing because the plaintiffs have a “substantial risk” of future identify theft. The Eleventh Circuit evaluated a similar threat of harm. In Tsao v. Captica MVP Restaurant Partners, LLC, a restaurant experienced a data breach, and a patron plaintiff’s personal financial information may have been released. The Eleventh Circuit held that the risk of identity theft following a breach was not a “substantial risk” and was not “certainly impending.” It doesn’t seem like choosing one rule over another would have changed either circuit’s opinion.

Although assuming the rules are identical could reconcile the existing precedent, this approach has not been widely adopted by the circuits. Here are a few circuit court cases where I think the rule choice may have mattered for the outcome:

• Saginaw County, Michigan v. STAT Emergency Medical Services, 946 F.3d 951 (6th Cir. 2020). Saginaw County ordinance permitted only one ambulance to operate in the county, but STAT decided to provide services anyway. Rather than enforce their ordinance, the county filed a declaratory judgment action in federal court to seek a ruling that the ordinance complies with federal law. The Sixth Circuit held that there was no “certainly impending” risk that STAT would file a lawsuit against the county. 
• Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855 (6th Cir. 2020). The plaintiff received two letters from a law firm informing him that the firm was acting as a debt collector. The plaintiff claimed that the law firm violated the Fair Debt Collection Practices Act by giving the impression an attorney had reviewed his case and determined that he owed debts. He claimed he was anxious and felt fear he would get sued if he did not promptly pay. The Sixth Circuit held that harm was not “certainly impending” because the letters did not threaten litigation.
• Knick v. Township of Scott, 862 F.3d 310 (3d Cir. 2017), rev’d on other grounds, 139 S. Ct. 2162 (2019). The town passed an ordinance authorizing officials to enter any property to determine the existence of cemeteries. A property owner who had already been subject to a constitutional open-field search of her home filed suit alleging that the ordinance violated her Fourth Amendment rights. The Third Circuit held that owning a property that could be subject to a search was too speculative and not “certainly impending.”

If the choice of rule does determine the outcome, this is problematic. Assessing threatened injuries that are not certain to occur will always be a gnarly task. Courts (and plaintiffs) often lack critical information and cannot pinpoint the probability of harm with any certainty. But pliable rules make it difficult for plaintiffs to predict when they can challenge a government policy and allow judges to decide jurisdictional issues based on outcomes.

Here is another plausible interpretation that could reconcile the existing precedent: The “substantial risk” rule does allow for a lower estimated probability of harm, but it only applies when plaintiffs reasonably incur costs to avoid or mitigate a threatened injury. Otherwise, the “certainly impending” rule applies. This is how Jonathan Adler interprets Justice Alito’s footnote in Clapper. But this interpretation could be difficult to square with Driehaus where it is not apparent that the plaintiffs incurred costs to avoid the harm associated with a threatened enforcement action (they did incur previous costs in an enforcement adjudication that had been dropped).

The standing rules for threatened injuries are unpredictable. The Court could clearly endorse one of the approaches in this post (or any other approach that reconciles the precedent on these two rules). For example, the Court could make it clear that to use the “substantial risk” rule, a plaintiff has to have taken costly steps to mitigate or avoid that injury. Such costs could be regarded as a proxy for a concrete and particularized injury that has not yet taken place. But two caveats come to mind. First, a rule would need to only consider anticipatory costs that a reasonable person would undertake. Second, the cost of litigation cannot be counted, in case the argument for standing becomes circular.

Some have called for rebuilding standing law from the ground up. But for threatened future injuries, a small step of providing some clarification could go a long way.

Laura Stanley is a law clerk to Judge Stephen S. Schwartz of the U.S. Court of Federal Claims. This essay represents the views of the author alone.