Standing in the Shadow Docket
Today the Supreme Court issued another order on the emergency docket. In Office of Personnel Management v. American Federation of Government Employees, a federal district court ordered the reinstatement of 16,000 probationary employees. The district court found that the unions and other organizations had standing based on a “diversion of resources” theory of standing under Havens Realty. This theory, which survived Acheson, has been under seige for some time, and should be extirpated soon enough. The Solicitor General’s application explains why that argument does not work:
In granting the preliminary injunction, the district court relied exclusively on the standing of organizational respondents whose members are end-users of government services. See App., infra, 39a, 47a. Significantly, in entering relief against two of the enjoined agencies, the court appeared to rely solely on the theory that the organizations themselves suffered an injury by having to “divert” organizational resources to “counteract[]” the effects of the agencies’ actions. See App., infra, 20a (citation omitted); see id. at 20a-21a; see also D. Ct. Doc. 18-7, ¶ 11; D. Ct. Doc. 18-3, ¶ 6. That standing theory is squarely foreclosed by this Court’s decision in Alliance for Hippocratic Medicine, which held that “divert[ing] [organizational] resources in response to a defendant’s actions” is not a
Article from Reason.com
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