(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Alison Frankel

March 7 (Reuters) - An appellate decision on Wednesday

that rejected a conservative group's challenge to a Pfizer ( PFE )

diversity fellowship raised a tough question: When an

organization brings a lawsuit claiming harm to its members, must

those members be identified by name?

That question divided the 2nd U.S. Circuit Court of Appeals

panel that heard the Pfizer ( PFE ) case.

Judges Beth Robinson and Dennis Jacobs ruled that under the

2nd Circuit's heightened requirements for constitutional

standing at the summary judgment stage of litigation,

organizations must supply the court with the name of at least

one allegedly injured member.

Judge Richard Wesley agreed that the nonprofit in the Pfizer ( PFE )

case, a group called Do No Harm, did not have standing to enjoin

Pfizer's ( PFE ) program - but strongly disagreed with the majority's

holding that organizations must identify an injured member by

name to meet standing requirements.

Wesley said in a concurring opinion that this "new

constitutional rule" is both unnecessary and ungrounded in

precedent. (As I'll explain, the majority disputed that

assertion.) Wesley also said the new rule could have "troubling"

implications for groups seeking to vindicate the civil rights of

their members.

Do No Harm, which says its mission is "to protect healthcare

from radical, divisive and discriminatory ideologies," sought on

behalf of a white member and an Asian member to enjoin a Pfizer ( PFE )

fellowship for Black, Latino and Native American applicants. But

the 2nd Circuit's new "naming names" rule, Wesley predicted,

will "constrict access to the courts" for all kinds of groups,

regardless of their ideology.

"That is an unfortunate ruling for organizations

everywhere," the judge said in his concurrence.

Diversity proponents were quick to seize on the 2nd

Circuit's new holding. The 11th Circuit heard oral arguments in

January in an anti-affirmative action group's bid to enjoin a

venture capital fund's grant program for businesses run by Black

women. On Wednesday, lawyers for the venture capital firm, the

Fearless Fund, notified the 11th Circuit of the 2nd Circuit

ruling in the Pfizer ( PFE ) case.

The letter noted that the group that sued the Fearless Fund,

the American Alliance for Equal Rights, similarly failed to

identify allegedly injured members by name. The American

Alliance for Equal Rights retorted in its own letter to the 11th

Circuit that the 2nd Circuit's Pfizer ( PFE ) decision is an "outlier"

that is at odds with rulings from several other federal

circuits.

Among the contrary decisions, the American Alliance said, is

a Feb. 9 opinion from the 10th Circuit in a case brought by

Speech First, a group dedicated to the free speech rights of

conservative college students. The 10th Circuit ruled that

Speech First had constitutional standing to challenge policies

at the University of Oklahoma even though its allegedly injured

members used pseudonyms instead of their real names.

As it happens, the conservative groups in the Pfizer ( PFE ),

Fearless Fund and Oklahoma cases were all represented by the

same law firm, Consovoy McCarthy. Consovoy partner Cameron

Norris, who argued for the groups at the 2nd and 10th Circuits,

did not respond to my query on the implications of the 2nd

Circuit's "naming names" requirement.

But Do No Harm said in an email statement that it intends to

seek additional review of the 2nd Circuit ruling, which,

according to the group, "departs from established precedent and

makes it unduly hard for organizations to vindicate civil

rights."

That is not the view of the 2nd Circuit majority, which

concluded that the naming requirement is not only justified by

U.S. Supreme Court precedent in 2009's Summers v. Earth Island

Institute -- which rejected an environmental group's attempt to

establish standing by claiming a statistical likelihood that one

of its members was harmed by the federal government's approval

of a timber sale on federal land -- but also necessary to assure

that organizations are asserting claims on behalf of members who

are genuinely harmed by alleged discrimination.

A name, according to the 2nd Circuit majority, "does not

merely check a box; it is a demonstration of the sincerity of

the member's interest." (The majority said the name need not be

public but must be disclosed to the court.)

Robinson and Jacobs acknowledged 2nd Circuit case law

holding that organizations can establish standing in the

preliminary stages of litigation without revealing the names of

specific injured members. But because Do No Harm sought a

preliminary injunction, the 2nd Circuit said, it was held to a

higher standard.

The 2nd Circuit majority also conceded that the Supreme

Court's decision in the Summers case does not explicitly require

organizations to identify members by name to establish standing.

The court held only that Earth Island could not meet standing

requirements by asserting that one of its members was likely

harmed but was required to allege injury to a specific person.

The ruling also contained a sentence whose meaning has now

become a matter of hot dispute. In a reference to a 1990 case in

which the court rejected constitutional standing arguments based

on an affidavit asserting harm to unnamed people, the Supreme

Court said in Summers that "this requirement of naming the

affected members has never been dispensed with."

The 2nd Circuit majority, like the 1st Circuit in a 2016

ruling in Draper v. Healey, interpreted that sentence from the

Summers decision to "recognize the necessity of naming members

actually harmed by a challenged program."

"We assume the Supreme Court said what it meant and meant

what it said," Robinson wrote for the majority.

As I mentioned, other appellate courts have read the Supreme

Court's ruling in Summers differently. The 10th Circuit, in that

Feb. 9 ruling in the Speech First case, for instance, refused to

draw inferences from the Supreme Court's use of the word

"naming," holding that it was "clearly not the intent of the

court" to impose a new requirement for standing in an opinion

that "provided no hint, much less an emphatic statement, that it

was abrogating decades of precedent."

Given Do No Harm's pledge to seek review of the 2nd Circuit

holding - and the percolation of the naming issue in other

appellate courts - it's a good bet that you haven't heard the

last of this.

Read more:

Group suing over Pfizer ( PFE ) diversity fellowship program loses

US appeal

Venture capital fund defends grants for Black women in US

appeals court