Equal Means Equal v. Ferriero, 20-1802

• Decision Date: 29 June 2021
• Docket Number: No. 20-1802,20-1802
• Citation: 3 F.4th 24
• Parties: EQUAL MEANS EQUAL ; The Yellow Roses ; Katherine Weitbrecht, Plaintiffs, Appellants, v. David FERRIERO, in his official capacity as Archivist of the United States, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

3 F.4th 24

EQUAL MEANS EQUAL ; The Yellow Roses ; Katherine Weitbrecht, Plaintiffs, Appellants,

v.David FERRIERO, in his official capacity as Archivist of the United States, Defendant, Appellee.

No. 20-1802

United States Court of Appeals, First Circuit.

June 29, 2021

Wendy J. Murphy and Alison Shea, with whom Women's and Children's Advocacy Project was on brief, for appellants.

Arlaine Rockey on brief for Real Estate Advisors Group et al., amici curiae.

Thomas Pulham, Attorney, Appellate Staff, Civil Division, with whom Brian M. Boynton, Acting Assistant Attorney General, Andrew E. Lelling, United States Attorney, and Michael S. Raab, Attorney, Appellate Staff, Civil Division, were on brief, for appellee.

Jennifer C. Braceras and Independent Women's Law Center on brief for Independent Women's Law Center, amicus curiae.

Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.

BARRON, Circuit Judge.

This appeal arises in connection with a lawsuit that alleges that the Equal Rights Amendment is now part of the United States Constitution.¹ Because we conclude, as the District Court did, that none of the plaintiffs has pleaded sufficient facts to establish standing under Article III of the United States Constitution to bring this suit in federal court, it must be dismissed.²

I.

The plaintiffs include two organizations, Equal Means Equal and The Yellow Roses, as well as an individual, Katherine Weitbrecht ("Weitbrecht"). Equal Means Equal is a national nonprofit organization that is dedicated to advocating for women's equality and for the ratification of the Equal Rights Amendment ("ERA"). The Yellow Roses is a student organization based in Massachusetts whose "sole mission is to advocate for and raise public awareness about [the] ratification of the ERA." Weitbrecht is a female resident of Massachusetts.

The plaintiffs commenced this action on January 7, 2020, when they filed a complaint that named as the defendant David S. Ferriero, in his official capacity as Archivist of the United States. They filed their amended complaint against the same defendant on February 29, 2020.

The operative complaint alleges that the Archivist violated 1 U.S.C. § 106b because he refused to publish the ERA and to certify its adoption after Virginia ratified it on January 27, 2020. Section 106b provides that

[w]henever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.

Id.

The complaint alleges that the Archivist's refusal to publish the ERA violated § 106b because Virginia on January 27, 2020, became, on the plaintiffs' count, the thirty-eighth state to have ratified the ERA. It further alleges that, as a result, the amendment has been ratified by "three-fourths of the several states," as required by Article V of the United States Constitution, and the ERA is now "the duly ratified 28th Amendment to the U.S. Constitution."

In support of these contentions, the complaint alleges that both the seven-year ratification deadline that Congress sought to impose on the states when it first proposed the ERA in 1972, see H.R.J. Res. 208, 92d Cong., 86 Stat. 1523 (1972), and Congress's subsequent extension of that deadline to 1982, see H.R.J. Res. 638, 95th Cong., 92 Stat. 3799 (1978), violate Article V and the Tenth Amendment to the United States Constitution because those deadlines are not part of the text of the ERA itself and therefore "impose[ ] unlawful constraints on the States to elect a schedule of their choosing on which to consider and ratify ... a proposed constitutional amendment." Thus, according to the complaint, the post-deadline ratifications of the ERA by Nevada in 2017, Illinois in 2018, and Virginia in 2020 brought the count of ratifying states to thirty-eight. In so alleging, the complaint asserts that the attempts by Nebraska, Idaho, Tennessee, Kentucky, and South Dakota to rescind their pre-deadline ratifications of the ERA are "null and void." The complaint further alleges that the Archivist's task of publishing the ERA is "purely ministerial" and that his refusal to perform that task has resulted in states' failure to prepare for the time when the ERA will become enforceable, which is two years after its ratification, by "examin[ing] and repair[ing] laws, regulations, and policies, to remove all sex discriminatory features."

The plaintiffs request, among other things, an order declaring that the ERA is the Twenty-Eighth Amendment to the United States Constitution and an order mandating that the Archivist record the ratifications by all thirty-eight states, including Virginia. The plaintiffs also seek an order enjoining the Archivist from removing any previously recorded ratifications.

The Archivist moved to dismiss the plaintiffs' claims for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and for failure to state a claim for which relief may be granted, see Fed. R. Civ. P. 12(b)(6). The District Court granted the Rule 12(b)(1) motion on the ground that the plaintiffs had "not demonstrated standing in this suit" under Article III, and so it did not reach the Archivist's arguments that, on the merits, the complaint must be dismissed for failure to state a claim. Equal Means Equal v. Ferriero, 478 F. Supp. 3d 105, 125 (D. Mass. 2020). The plaintiffs timely appealed.

II.

Article III limits the judicial power to actual cases and controversies. See U.S. Const. art. III, § 2, cl. 1. An actual case or controversy only exists if the plaintiff has demonstrated "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

"To satisfy the personal stake requirement, [the] plaintiff must establish each part of a familiar triad: injury, causation, and redressability." Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). The injury element of constitutional standing requires that the plaintiff show that the injury is " ‘concrete and particularized’ and ‘actual or imminent.’ " Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ). The causation and redressability elements require that the plaintiff show that the injury is "fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." California v. Texas, ––– U.S. ––––, 141 S. Ct. 2104, 2113–14, ––– L.Ed.2d –––– (2021) [No. 19-840] (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ). The burden on the plaintiff at the pleading stage is plausibly to allege that each of the requirements to establish standing has been met. See Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). Our review is de novo. See Me. People's All. & Nat. Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283 (1st Cir. 2006).

The plaintiffs first contend that the District Court erred in dismissing their suit on Article III grounds insofar as the individual members of Equal Means Equal and The Yellow Roses are "all female." They contend in that regard that such members "have a protectable legal interest" in "the ERA's vitality" on which the Archivist inflicted "catastrophic harm" by not publishing the ERA, because the Archivist's failure to do so "has made it more difficult for them to obtain the benefits of the ERA's presumptive validity." They further allege that in consequence of the Archivist's failure to publish the ERA, Massachusetts continues not to protect women against "sex-based violence" under its hate crime laws and that they are accordingly at risk of violent attack from which they otherwise would be protected.

We may assume that the complaint may be read to assert standing on this member-grounded basis, because we agree with the District Court, see Equal Means Equal, 478 F. Supp. 3d at 115, that, even on that reading, the complaint's allegations regarding women's alleged risk of harm and the defendant's allegedly unlawful conduct do not suffice to satisfy their pleading obligation at this stage of the litigation with respect to standing. For, as concrete as the harm from an assault surely is, the plaintiffs are seeking relief from the conduct of a defendant who stands well removed from the person who would directly inflict that harm. See TransUnion LLC v. Ramirez, ––– U.S. ––––, 141 S. Ct. 2190, 2210, ––– L.Ed.2d –––– (2021) [No. 20-297] ; Clapper v. Amnesty Int'l USA, 568 U.S. 398, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ; see also Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1291, 1296 (D.C. Cir. 2007) (Kavanaugh, J.) (noting that plaintiffs "must demonstrate [either a] ‘substantial probability’ that [the challenged] action caused [them] harm" or both (1) that the challenged "action causes [them] to face an increase in the risk of harm that is ‘substantial,’ and [(2) that] the ultimate risk of harm also is ‘substantial’ " (first quoting Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663, 666 (D.C. Cir. 1996) (en banc); and then citing Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1235 (D.C. Cir. 1996) )).

Nor are we persuaded by the plaintiffs' contention that the decisions by the Supreme Court of the United States in Northeastern Florida Chapter of the Associated General Contractors of...