Complainants cannot challenge alleged misinformation by a government agency unless it affects them specifically

From the opinion of yesterday in Ohio rises! v. US Dept of Health & Hum. Serves.decided today by the Sixth Circuit (Judge Alice Batchelder, joined by Judges Eric Clay and Joan Larsen):

Kristen Beckman and Douglas Frank … alleged that … the defendants knowingly and intentionally published misleading and fraudulent data that exaggerated the number of COVID-19 cases and deaths nationwide, in violation of the paperwork reduction, 44 USC §§ 3501-3521, the Information Quality Act, 44 USC § 3516 (Policy and Procedural Guidelines), the Administrative Procedure Act, 5 USC §§ 500-706, and the Implied Constitutional Duty of Honesty and Fair Dealing”.

[To show standing to sue in federal court,] “…a plaintiff must demonstrate that he has suffered an injury to a legally protected interest that is concrete and specific and real or imminent, not conjectural or hypothetical.” “For an injury to be ‘particularized,’ it must affect the claimant in a personal and individual way.” A plaintiff who “seeks a remedy that does not benefit him or her more directly and materially than the general public…is not declaring an Article III case or controversy.” “[A] a grievance that amounts to no more than an abstract and generalized injury to a citizen’s interest in the proper application of the law does not count as “injury in fact”. And therefore it does not show standing.”

Here, Beckman and Frank begin their claim by accusing the defendants of knowingly publishing misleading and fraudulent data that exaggerated the number of COVID-19 cases and deaths. Beckman and Frank do do not claim that the defendants published data in regards to one of them specifically or provided data for them personally. Nor do they claim that they relied on the data to their personal detriment. In short, Beckman and Frank did not claim that the defendants’ conduct affected them “more directly and materially…than the general public”. This “abstract and generalized harm” is not “harm in fact” and does not establish standing.

To the extent that Beckman and Frank expand on their claim to articulate direct harms that are unique to them, not just the general public, they are describing harms committed by third parties that are not before the court. Frank posits that “a number of social media and media platforms” have relied on defendants’ data to label his contrary statistical analysis on COVID-19 as “illegitimate or false”, which has hurt his business and damaged its reputation.

Meanwhile, Beckman posits that defendants’ overstatement of COVID-19 cases and deaths prompted the state of Ohio to impose emergency measures, including shutdowns, mask mandates and campaigns. to encourage social distancing, quarantine and vaccination. This, in turn, caused the organizers of his young son’s hockey program to impose a mask requirement without exception (not even for Beckman’s valid medical and religious reasons), which prevented Beckman from attending and , therefore, forced her to withdraw her son from hockey. Additionally, operators or users of social media platforms censored Beckman, which embarrassed her and chilled her speech. And Beckman’s employer forced her to self-quarantine after visiting family for Thanksgiving, even though she wasn’t sick and hadn’t been exposed to COVID-19, which she claims “a burden on his constitutional right to travel”. Finally, Beckman’s family expressed their “great fear” over COVID-19, which has hurt their relationship with them.

When, as here alleged, the “causal relationship between [the claimed] injury and [the] the contested action depends on the decision of an independent third party…, standing to act is not excluded, but it is generally much more difficult to establish. The Court limited the “fairly traceable” element in such cases to “the foreseeable effect of government action on the decisions of third parties”. …