We recently reported that on July 18 the CFPB, upon remand from the Fifth Circuit, re-filed its notice of supplemental authority in support of its motion to dismiss or transfer the case, motion to dissolve the preliminary injunction, and brief in support of its motion. (The filings were previously stricken due to the district court’s lack of jurisdiction.). Soon thereafter, on the very same day, Judge Pittman issued an order in which, for the first time (after extensive briefing with respect to two earlier motions to transfer venue and a motion for a preliminary injunction), he wrote that he “is deeply concerned with the issue of associational standing” of the Fort Worth Chamber of Commerce to prosecute the remaining claims in the case.

Judge Pittman’s order states, in relevant part:

“Upon a review of the Notice [of Supplemental Authority] as well as a close reading of Justice Thomas’s concurrence in FCA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 397–405 (2024) (Thomas, J., concurring), the Court is deeply concerned with the issue of associational standing and how it can be used to challenge certain regulatory actions, as Plaintiffs seemingly do through their use of the Fort Worth Chamber of Commerce here. Indeed, the Fort Worth Chamber of Commerce is not only the only Party in this action actually located in the Fort Worth Division, but it only has one member affected by the CFPB’s proposed rule and that member seemingly joined the Fort Worth Chamber of Commerce to establish venue in this very busy division. Further, none of those perhaps most directly affected by proposed rule, the American consumer, are even parties to this lawsuit”

“Accordingly, the Court desires full briefing on the issue of associational standing and how it relates to the facts and arguments in this case. It is imperative that the Court consider standing before expending any additional resources evaluating the merits of Plaintiff’s requested relief. Afterall, Article III standing is a “bedrock constitutional requirement that [courts have] applied to all manner of important disputes.” United States v. Texas, 599 U.S. 670, 675 (2023). Thus, every court must ask its plaintiff: “What’s it to you?” A. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983). Therefore, Defendants are ORDERED to file such a formal motion addressing Plaintiffs’ standing on or before 5:00 p.m. on July 29, 2024. Any response is to be filed by Plaintiffs on or before 5:00 p.m. on August 12, 2024. Defendants’ reply is to be filed on or before 5:00 p.m. on August 19, 2024. Further, the Court determines that motion would benefit from a hearing and thus SETS a hearing for Tuesday August 27, 2024, at 2:30 p.m. in the 4th floor courtroom of the Eldon B. Mahon Courthouse in Fort Worth, Texas.”

Judge Pittman mentions that his concerns about associational standing were piqued by Justice Thomas” concurring opinion in the FDA case which was just cited by the CFPB to support its pending motion to dismiss or transfer venue under Section 1406 of the venue statute.

Let’s examine the FDA case. Food and Drug Administration v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), challenged the FDA’s approval of mifepristone, a drug frequently used in medical abortion procedures. The plaintiffs (consisting of several associations and individual doctors) led by the Alliance for Hippocratic Medicine (AHM), argued that the FDA did not properly approve the use of the drug mifepristone for pregnancy termination under Federal Food, Drug, and Cosmetic Act regulations and asked for an injunction to withdraw the drug’s approval, thus removing it from the market.

Justice Brett Kavanaugh wrote the opinion stating that while AHM may have moral and policy concerns about mifepristone, because its members did not prescribe mifepristone, they failed to demonstrate a legally cognizable injury to challenge its use. AHM’s claims that its members might treat patients who suffered complications from using mifepristone were also rejected, as Kavanaugh wrote “Federal law fully protects doctors against being required to provide abortions or other medical treatment against their consciences — and therefore breaks any chain of causation between FDA’s relaxed regulation of mifepristone and any asserted conscience injuries to the doctors.” He also stated that doctors “have never had standing to challenge FDA drug approvals simply on the theory that use of the drug by others may cause more visits to the doctor.”

Justice Thomas wrote a concurring opinion that agreed that the AHM did not have standing, but also challenged the concept of associational standing set forth in the Supreme Court’s 1977 decision in Hunt v. Washington State Apple Advertising Commission. Associational standing allows an association representing members with standing to bring the case to court. Justice Thomas stated that this concept may be unconstitutional and should be reviewed in a more appropriate case. He wrote, “If a single member of an association has suffered an injury, our doctrine permits that association to seek relief for its entire membership – even if the association has tens of millions of other, non-injured members.” Even Justice Thomas acknowledged that an association only needs one member with standing in order for the association itself to have standing. Thus, the CFPB’s complaint that only one member of the Fort Worth Chamber of Commerce has standing is irrelevant for purposes of determining whether the Fort Worth Chamber of Commerce has associational standing under Hunt.

It is worth noting that over its past two terms, the Supreme Court has reversed the Fifth Circuit on standing grounds and put an end to five high-profile cases involving abortion rights, online free speech, federal student loans, immigration and Native American child welfare.

It is bizarre that the CFPB and seemingly Judge Pittman are focusing on a concurring opinion by Justice Thomas in which no other Justices joined and even Justice Thomas acknowledged that the FDA case was not the right case for the Supreme Court to consider whether it should overrule the Hunt opinion and hold that associational standing violates Article III of the Constitution. Even if Justice Thomas is poised to overrule the Hunt opinion, that is a very weak basis for concluding that the Fort Worth Chamber of Commerce does not have associational standing to pursue this case. The Fort Worth Chamber of Commerce has one member (a large credit card issuer) that has been and will continue to be injured directly by the CFPB’s credit card late fee regulation. Unlike the plaintiffs in the FDA case, whose grounds for asserting standing were principally moral and policy concerns, a member of the Fort Worth Chamber of Commerce has been and will be directly injured by the CFPB’s credit card late fee rule.

While it certainly looks like Judge Pittman may be poised to dismiss or once again transfer the case to the District of Columbia District Court, he likely will not have the final say. Any adverse ruling by Judge Pittman will likely be reviewed by a three judge panel of the Fifth Circuit. We don’t think that the third time will be a charm for the CFPB.