Court says conservative group may proceed with lawsuit challenging Pfizer's student fellowship program

The Court of Appeals has withdrawn a prior ruling involving a conservative group's challenge to a corporate fellowship intended to increase minority representation at Pfizer, the pharmaceutical company. In the first ruling, the Second Circuit held that the group, Do No Harm, could not sue because it lacked standing to seek a preliminary injunction in failing to identify any of the students who wanted to benefit from the fellowship. This time around, on a motion for reconsideration, the Court of Appeals says Do No Harm can bring the suit after all.

The case is Do No Harm v. Pfizer, issued on January 10. The original ruling issued in March 2024. Discussion on the original ruling is at this link.  The plaintiff organization claims the Pfizer program benefits Black, Latino, and Native American students at the expense of whites and Asian-Americans in violation of the civil rights laws. In support of its case, the plaintiff group filed anonymous declarations from two of its members who sought the fellowship. They claimed they met all the eligibility requirements for the fellowship, i.e., they were college students with good grades and took part in campus life. 

While Do No Harm did not have standing to seek a preliminary injunction against the program (on the basis that it did not identify the aggrieved students), that does not mean the case had to be dismissed at the district court level. That's the holding of the Court of Appeals (Jacobs, Robinson and Wesley in dissent), which reinstates the lawsuit. In seeking a preliminary injunction, the plaintiff's burden to establish standing is higher than their burden to prove standing at the outset of the lawsuit, when the plaintiffs are not seeking injunctive relief and are willing to litigate their claims the old-fashioned way, through depositions and other discovery. 

The D.C. Circuit Court of Appeals has already held that an inability to establish standing in seeking a preliminary injunction does not mean the plaintiff lacks standing to pursue the case. But if the lack of standing in seeking an injunction demonstrates that the plaintiff cannot prove standing going forward on the case, then the case may be dismissed. This is highly nuanced, as you can see. Here is the basis for the distinction:

if the failure to establish standing arises from the insufficiency of the plaintiff’s evidence of standing, and that insufficiency may be remediable, dismissal of a plaintiff’s claims because the plaintiff has failed to muster sufficient evidence to  establish standing for a preliminary injunction would be premature. A determination that the plaintiff hasn’t presented enough evidence to establish standing in the preliminary injunction context doesn’t mean the plaintiff won’t be able to do so at a later stage in the proceeding. The most obvious circumstance in which this may arise is when the plaintiff may require jurisdictional discovery to get the evidence needed to support the plaintiff’s standing.

However, the Court of Appeals states:

But even in cases where the plaintiff’s failure to muster sufficient evidence to establish standing to secure a preliminary injunction arises from the plaintiff’s failure to proffer sufficient evidence to establish standing, the consequence of that failure is that the plaintiff isn’t entitled to a preliminary injunction. We see nothing in the law or rules of procedure that requires plaintiffs who opt to seek a preliminary injunction on incomplete evidence to risk outright dismissal, even if their allegations are otherwise sufficient to establish standing at the pleading stage.

The district court adopted the wrong rule in dismissing the case outright. The case returns to the district court to determine if the plaintiff has sufficiently pled standing to bring this lawsuit.