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`No. 19-2005
`______________________________________________________________
`UNITED STATES COURT OF APPEALS
`FOR THE FIRST CIRCUIT
`
`STUDENTS FOR FAIR ADMISSIONS, INC.,
`Plaintiff-Appellant,
`
`v.
`PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
`Defendant-Appellee.
`
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS IN CASE NO. 1:14-CV-14176-ADB,
`JUDGE ALLISON D. BURROUGHS
`
`BRIEF OF AMICUS CURIAE WALTER DELLINGER
`IN SUPPORT OF DEFENDANT-APPELLEE ON THE ISSUE OF
`STANDING
`
`
`
`APALLA U. CHOPRA
`O’MELVENY & MYERS LLP
`400 SOUTH HOPE STREET
`LOS ANGELES, CALIFORNIA 90071
`(213) 430-6000
`
`
`
`ANTON METLITSKY
`PATRICK D. MCKEGNEY
`O’MELVENY & MYERS LLP
`TIMES SQUARE TOWER
`7 TIMES SQUARE
`NEW YORK, NEW YORK 10036
`(212) 326-2000
`
`BRADLEY N. GARCIA
`ANNA O. MOHAN*
`O’MELVENY & MYERS LLP
`1625 EYE STREET, N.W.
`WASHINGTON, D.C. 20006
`(202) 383-5300
`
`*Admitted only in Virginia; supervised by
`principals of the firm
`Attorneys for Amicus Curiae
`
`
`
`
`
`

`

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`STATEMENT REGARDING LEAVE TO FILE, AUTHORSHIP, AND
`MONETARY CONTRIBUTIONS
`Both parties to the appeal have expressly consented to the filing of this brief
`
`by amicus curiae pursuant to Fed. R. App. P. 29(a)(2). See Fed. R. App. P. 29(a)(2).
`
`Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), amicus curiae
`
`states that no counsel for any of the parties authored this brief in whole or in part;
`
`neither the parties nor their counsel contributed money that was intended to fund the
`
`preparation or submission of this brief; and no person, other than the amicus curiae,
`
`or his counsel, contributed money that was intended to fund this brief’s preparation
`
`or submission. See Fed. R. App. P. 29(a)(4)(E).
`
`
`
`i
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`

`

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`TABLE OF CONTENTS
`
`
`Page
`
`STATEMENT REGARDING LEAVE TO FILE, AUTHORSHIP, AND
`MONETARY CONTRIBUTIONS ............................................................................ i
`INTEREST OF AMICUS CURIAE ..........................................................................vi
`INTRODUCTION .................................................................................................... 1
`ARGUMENT ............................................................................................................ 2
`I.
`Article III’s Standing Requirement Limits Federal Courts To
`Adjudicating Concrete Disputes And Precludes Them From Resolving
`Individuals’ Generalized, Ideological Grievances. ........................................ 2
`These Important Limits On Federal Court Jurisdiction Cannot Be
`Avoided Through Artificial Means. ............................................................... 8
`III. The District Court Erred In Treating SFFA As A Genuine
`Membership Organization Instead Of Probing The Nature Of SFFA’s
`Relationship With Its Purported Members. .................................................. 10
`CONCLUSION ....................................................................................................... 17
`
`
`II.
`
`
`
`ii
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`

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`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`Cases
`Allen v. Wright,
`468 U.S. 737 (1984) .................................................................................... 3, 9, 10
`Ariz. Christian Sch. Tuition Org. v. Winn,
`563 U.S. 125 (2011) ............................................................................................... 3
`Arizonans for Official English v. Arizona,
`520 U.S. 43 (1997) ................................................................................................. 4
`Camel Hair & Cashmere Inst. of Am., Inc. v. Associated Dry Goods Corp.,
`799 F.2d 6 (1st Cir. 1986) ............................................................................. 12, 14
`Clapper v. Amnesty Int’l USA,
`568 U.S. 398 (2013) ............................................................................................... 3
`DaimlerChrysler Corp. v. Cuno,
`547 U.S. 332 (2006) ............................................................................................... 4
`Diamond v. Charles,
`476 U.S. 54 (1986) .................................................................................. 1, 5, 6, 16
`Duke Power Co. v. Carolina Envtl. Study Grp., Inc.,
`438 U.S. 59 (1978) ................................................................................................. 6
`Fisher v. Univ. of Texas at Austin,
`570 U.S. 297 (2013) .............................................................................................10
`Heap v. Carter,
`112 F. Supp. 3d 402 (E.D. Va. 2015) ..................................................................14
`Hollingsworth v. Perry,
`570 U.S. 693 (2013) ..................................................................................... passim
`Hunt v. Wash. State Apple Advert. Comm’n,
`432 U.S. 333 (1977) ................................................................................ 11, 12, 13
`Ill. Dep’t of Transp. v. Hinson,
`122 F.3d 370 (7th Cir. 1997).................................................................................. 5
`
`iii
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`

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`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Kowalski v. Tesmer,
`543 U.S. 125 (2004) ...........................................................................................6, 7
`Lujan v. Defs. of Wildlife,
`504 U.S. 555 (1992) .................................................................................. 4, 5, 6, 9
`Massachusetts v. Mellon,
`262 U.S. 447 (1923) ............................................................................................... 6
`NAACP v. Alabama ex rel. Patterson,
`357 U.S. 449 (1958) .............................................................................................12
`Powers v. Ohio,
`499 U.S. 400 (1991) ............................................................................................... 7
`Schlesinger v. Reservists Comm. to Stop the War,
`418 U.S. 208 (1974) ...................................................................................... 3, 4, 6
`Simon v. E. Ky. Welfare Rights Org.,
`426 U.S. 26 (1976) ................................................................................................. 3
`Singleton v. Wulff,
`428 U.S. 106 (1976) ............................................................................................... 7
`Sorenson Communications, LLC v. Federal Communications Commission,
`897 F.3d 214 (D.C. Cir. 2018) .............................................................................13
`Steel Co. v. Citizens for a Better Env’t,
`523 U.S. 83 (1998) ................................................................................................. 5
`Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,
`261 F. Supp. 3d 99 (D. Mass. 2017) ....................................................................11
`United States v. SCRAP,
`412 U.S. 669 (1973) ............................................................................................... 6
`
`Valley Forge Christian Coll. v. Americans United for Separation of Church and
`State, Inc.,
`454 U.S. 464 (1982) .................................................................................... 4, 6, 15
`
`iv
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`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Warth v. Seldin,
`422 U.S. 490 (1975) .................................................................................... 6, 7, 11
`Whitmore v. Arkansas,
`495 U.S. 149 (1990) ............................................................................................... 7
`Other Authorities
`13A Wright & Miller, Federal Practice and Procedure § 3531.9.5 (3d ed. 2012) ..12
`4 Papers of John Marshall 95 (C. Cullen ed., 1984) .................................................. 3
`About, Students for Fair Admissions, https://studentsforfairadmissions.org/about/
`(last visited May 20, 2020) ..................................................................................15
`Anemona Hartocollis, He Took On The Voting Rights Act and Won. Now He’s
`Taking On Harvard, N.Y. Times, Nov. 19, 2017,
`https://www.nytimes.com/2017/11/19/us/affirmative-action-lawsuits.html .......10
`Legal Issues, Students for Fair Admissions,
`https://studentsforfairadmissions.org/legal-issues/ (last visited May 20, 2020)..15
`Constitutional Provisions
`U.S. Const. art. III, § 2 ............................................................................................... 3
`
`
`
`v
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`

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`
`
`INTEREST OF AMICUS CURIAE
`
`Walter Dellinger is the Douglas B. Maggs Professor Emeritus of Law at Duke
`
`University and a partner at O’Melveny & Myers LLP.1 Professor Dellinger has
`
`throughout his career studied the scope of the Article III jurisdiction of federal
`
`courts, including issues relating to Article III standing, and filed a brief of amicus
`
`curiae related to standing in Hollingsworth v. Perry, 570 U.S. 693 (2013). He is
`
`committed to the public interest and to the enforcement of proper limits on the scope
`
`of judicial power. Based on his study of the applicable precedent and principles, he
`
`believes that Students for Fair Admissions has no standing to bring this suit in federal
`
`court.
`
`
`
`
`1 Institutional affiliations are listed for identification purposes only.
`
`vi
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`
`
`INTRODUCTION
`
`Article III’s standing requirement serves to ensure that the remedial power of
`
`federal courts is “placed in the hands of those who have a direct stake in the
`
`outcome,” rather than “in the hands of concerned bystanders, who will use it simply
`
`as a vehicle for the vindication of value interests.” Diamond v. Charles, 476 U.S.
`
`54, 62 (1986) (quotations and citations omitted); see Hollingsworth v. Perry, 570
`
`U.S. 693, 707 (2013).
`
`Edward Blum is an admitted ideological opponent of race-conscious
`
`university admissions policies. But because he is not a college student or applicant,
`
`he indisputably has no standing to challenge such policies in court. Mr. Blum instead
`
`formed Students for Fair Admissions (“SFFA”) with the avowed, exclusive purpose
`
`of pursuing his own ideological interests through litigation, in defiance of Article
`
`III’s limits on his own ability to bring such lawsuits. In particular, he identified
`
`Asian-American Harvard applicants, made them SFFA “members,” and brought this
`
`lawsuit purportedly on their behalf. In practice, however, SFFA provides its
`
`“members” no remotely meaningful role in the governance of the organization and,
`
`in turn, no remotely meaningful role in the litigation supposedly being conducted on
`
`their behalf.
`
`Amicus is aware of no similar organization created for the exclusive purpose
`
`of litigation, which provides no other benefits or services to its “members” but that
`
`1
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`
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`has nevertheless been granted the ability to sue in its own name. These unique
`
`circumstances call for heightened skepticism and scrutiny of the nature of the
`
`relationship between SFFA and its “members” to protect the core Article III interest
`
`in ensuring that federal lawsuits are litigated by those with an actual, concrete stake
`
`in the outcome. Allowing such transparent efforts to side-step Article III
`
`requirements to pass without scrutiny would drain of all practical meaning the
`
`Article III principle that federal courts cannot serve as a forum for the airing of
`
`generalized grievances.
`
`That rule is one of substance, not simply of semantics: It ensures that federal
`
`courts stay within their constitutionally prescribed role. Mr. Blum’s transparent
`
`attempt to draw federal courts into resolving one of the most divisive questions of
`
`recent years is as troubling as it is novel. The maneuver should not be permitted,
`
`and Article III’s prohibition on the litigation of generalized grievances—as Mr.
`
`Blum is attempting to do here—should be enforced.
`
`ARGUMENT
`
`I.
`
`ARTICLE III’S STANDING REQUIREMENT LIMITS FEDERAL
`COURTS TO ADJUDICATING CONCRETE DISPUTES AND
`PRECLUDES THEM FROM RESOLVING
`INDIVIDUALS’
`GENERALIZED, IDEOLOGICAL GRIEVANCES.
`The Constitution does not give federal courts an unrestrained power to decide
`
`every constitutional question that a party wishes to have them resolve. Rather,
`
`Article III limits the federal judicial power to deciding “Cases” and “Controversies.”
`
`2
`
`

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`U.S. Const. art. III, § 2. This limitation “defines with respect to the Judicial Branch
`
`the idea of separation of powers on which the Federal Government is founded.”
`
`Allen v. Wright, 468 U.S. 737, 750 (1984). “No principle is more fundamental to
`
`the judiciary’s proper role in our system of government . . . .” Simon v. E. Ky.
`
`Welfare Rights Org., 426 U.S. 26, 37 (1976). Permitting federal courts to decide
`
`legal questions outside the context of cases or controversies “would be inimical to
`
`the Constitution’s democratic character,” Ariz. Christian Sch. Tuition Org. v. Winn,
`
`563 U.S. 125, 133 (2011), because the “federal courts might take possession of
`
`‘almost every subject proper for legislative discussion and decision,’” id. (quoting 4
`
`Papers of John Marshall 95 (C. Cullen ed., 1984)). Thus, “[c]ontinued adherence to
`
`the case-or-controversy [limitation] of Article III maintains the public’s confidence
`
`in an unelected but restrained Federal Judiciary.” Id.
`
`An “essential aspect” of the case-or-controversy limitation is that “any person
`
`invoking the power of a federal court must demonstrate standing to do so.”
`
`Hollingsworth, 570 U.S. at 704. The standing requirement “serves to prevent the
`
`judicial process from being used to usurp the powers of the political branches.”
`
`Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). In cases implicating
`
`constitutional adjudication,
`
`the standing requirement
`
`takes on heightened
`
`significance, helping to ensure that such “important and delicate” questions are not
`
`decided unnecessarily. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S.
`
`3
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`

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`208, 221-22 (1974). To allow a litigant without standing to “require a court to rule
`
`on important constitutional issues in the abstract would create the potential for abuse
`
`of the judicial process.” Id. at 222.2 Where standing is lacking, in short, the “dispute
`
`is not a proper case or controversy, [and] the courts have no business deciding it, or
`
`expounding the law in the course of doing so.” DaimlerChrysler Corp. v. Cuno, 547
`
`U.S. 332, 341 (2006).
`
`As relevant here, to establish standing, a party must show the invasion of a
`
`legally cognizable interest that is “concrete and particularized,” Arizonans for
`
`Official English v. Arizona, 520 U.S. 43, 64 (1997), meaning that the injury must
`
`affect the plaintiff “in a personal and individual way,” Lujan v. Defs. of Wildlife, 504
`
`U.S. 555, 560 n.1 (1992). In expounding upon that injury requirement, the Supreme
`
`Court has recognized two limits on the class of individuals who can invoke the
`
`decisional and remedial powers of federal courts that are especially pertinent here.
`
`First, the Supreme Court has made clear that courts must “refrain[] from
`
`adjudicating abstract questions of wide public significance which amount to
`
`generalized grievances, pervasively shared and most appropriately addressed in the
`
`representative branches.” Valley Forge Christian Coll. v. Americans United for
`
`
`2 Although SFFA bases its challenge on Title VI, SFFA has argued that the statutory
`standard is equivalent to the constitutional standard under the Equal Protection
`Clause. See Appellant’s Opening Br. at 25.
`
`4
`
`

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`
`
`Separation of Church & State, Inc., 454 U.S. 464, 475 (1982) (quotations omitted).
`
`As explained in Lujan, “a plaintiff raising only a generally available grievance . . .
`
`claiming only harm to his and every citizen’s interest in proper application of the
`
`Constitution and laws, and seeking relief that no more directly and tangibly benefits
`
`him than it does the public at large . . . does not state an Article III case or
`
`controversy.” 504 U.S. at 573-74. “Refusing to entertain generalized grievances
`
`ensures that . . . courts exercise power that is judicial in nature and ensures that the
`
`Federal Judiciary respects the proper—and properly limited—role of the courts in a
`
`democratic society.” Hollingsworth, 570 U.S. at 715 (quotations and citations
`
`omitted). This prohibition “prevent[s] kibitzers, bureaucrats, publicity seekers, and
`
`‘cause’ mongers from wresting control of litigation from the people directly affected
`
`. . . .” Ill. Dep’t of Transp. v. Hinson, 122 F.3d 370, 373 (7th Cir. 1997). It embodies
`
`the notion that “the decision to seek review must be placed in the hands of those who
`
`have a direct stake in the outcome,” rather than with “concerned bystanders, who
`
`will use it simply as a vehicle for the vindication of value interests.” Diamond, 476
`
`U.S. at 62 (quotations and citations omitted).
`
`The rule applies regardless of the level of ideological commitment individuals
`
`have to the law whose enforcement they seek, and no matter how “zealous their
`
`advocacy.” Hollingsworth, 570 U.S. at 707 (alteration and quotation omitted); see
`
`Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998). As the Court has
`
`5
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`

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`explained, the role of federal courts is not to referee debates between ideological
`
`opponents or to serve as a neutral forum “for the vindication of . . . value interests.”
`
`United States v. SCRAP, 412 U.S. 669, 687 (1973). Instead, a federal court’s sole
`
`constitutional role is to resolve real disputes between parties who have a personal
`
`stake in the outcome. See Valley Forge, 454 U.S. at 472. The Court has applied the
`
`rule that a generalized grievance does not establish Article III standing across the
`
`ideological spectrum, denying standing to taxpayers opposed to federal laws for the
`
`protection of mothers and infants, Massachusetts v. Mellon, 262 U.S. 447, 488-89
`
`(1923); environmentalists committed to enforcement of laws protecting endangered
`
`species, Lujan, 504 U.S. at 573-76; antiwar activists opposed to members of
`
`Congress serving as reservists, Schlesinger, 418 U.S. at 217, 220; doctors ethically
`
`opposed to abortion, Diamond, 476 U.S. at 63-68; and proponents of a California
`
`ballot initiative precluding same-sex marriage, Hollingsworth, 570 U.S. at 706.
`
`Second, and closely related, is the rule disfavoring third-party standing. See
`
`Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) (“[W]e have not looked favorably
`
`upon third-party standing.”). The Supreme Court has explained that a “plaintiff
`
`generally must assert his own legal rights and interests, and cannot rest his claim to
`
`relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490,
`
`499 (1975). The rule provides “the assurance that the most effective advocate of the
`
`rights at issue is present to champion them.” Duke Power Co. v. Carolina Envtl.
`
`6
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`

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`
`
`Study Grp., Inc., 438 U.S. 59, 80 (1978). In most cases, that advocate is the third
`
`party itself. Singleton v. Wulff, 428 U.S. 106, 114 (1976) (Blackmun, J.) (plurality
`
`opinion). Like the generalized grievances prohibition, third-party standing
`
`restrictions help ensure that federal courts avoid deciding “abstract questions of wide
`
`public significance even though other governmental institutions may be more
`
`competent to address the questions . . . .” Warth, 422 U.S. at 500; see also Whitmore
`
`v. Arkansas, 495 U.S. 149, 164 (1990) (announcing limits to “next friend” standing
`
`in habeas context because otherwise, “the litigant asserting only a generalized
`
`interest in constitutional governance could circumvent the jurisdictional limits of
`
`Art. III.”).3
`
`
`3 Third-party standing is appropriate in very different situations, such as where
`“enforcement of the challenged restriction against the litigant would result indirectly
`in the violation of third parties’ rights,” Kowalski, 543 U.S. at 130 (quoting Warth,
`422 U.S. at 510), or where “the party asserting the right has a ‘close’ relationship
`with the person who possesses the right” and “there is a ‘hindrance’ to the
`possessor’s ability to protect his own interests,” id. (quoting Powers v. Ohio, 499
`U.S. 400, 411 (1991)). Mr. Blum is not impacted in any tangible way by Harvard’s
`admissions policies, and his relationship with SFFA’s so-called “members” is
`anything but close.
`
`7
`
`

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`
`
`FEDERAL COURT
`IMPORTANT LIMITS ON
`II. THESE
`JURISDICTION CANNOT BE AVOIDED THROUGH ARTIFICIAL
`MEANS.
`Because Article III itself prohibits litigants from asserting generalized
`
`grievances or third-party claims, the Supreme Court has properly rejected
`
`transparent attempts to circumvent those rules, like Mr. Blum’s effort here.
`
`In Hollingsworth, the Court confronted a rule of California law conferring on
`
`an initiative’s proponents the authority to represent the state’s own interest in the
`
`enforcement of an initiative when state officials decline to defend it. 570 U.S. at
`
`703. The proponents of Proposition 8, which amended the California Constitution
`
`to ban recognition of same-sex marriages, relied on that conferral of authority to
`
`appeal to the Ninth Circuit and eventually the Supreme Court. But the Supreme
`
`Court held that the proponents did not have Article III standing. California’s
`
`decision to transfer its valid interest in enforcing its laws to the proponents could not
`
`transform the proponents’ generalized grievance into a concrete and particularized
`
`one. Id. at 714-15. As the majority opinion succinctly noted, “States cannot alter
`
`[the limited role of courts] simply by issuing to private parties who otherwise lack
`
`standing a ticket to the federal courthouse.” Id. at 715; see also id. at 713 (citing
`
`Brief for Walter Dellinger as Amicus Curiae).
`
`Similarly, in Lujan, the Court held that Congress could not, by enacting a
`
`“citizen suit” provision to make citizens private attorneys general, give every citizen
`
`8
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`
`
`a right to seek enforcement of the Endangered Species Act. The Court rejected the
`
`view that “the public interest in proper administration of the laws . . . can be
`
`converted into an individual right by a statute that denominates it as such.” 504 U.S.
`
`at 576-77.
`
`Although those cases involve congressional or state attempts to circumvent
`
`Article III requirements, Mr. Blum’s private attempts at circumvention should be
`
`treated with at least the same skepticism. In Hollingsworth and Lujan, a
`
`governmental entity sought to confer authority to bring suit in federal court on behalf
`
`of concerned bystanders who would otherwise lack it. Here, a concerned bystander
`
`took steps to confer standing on himself. Treating the latter situation differently
`
`drains the prohibition against generalized grievances of its practical significance:
`
`Any individual would be able to transform a generalized, non-personal grievance
`
`into a cognizable injury simply by recruiting “members” to an organization that then
`
`performs no function outside of litigation and gives those “members” no meaningful
`
`role in the litigation process.
`
`Take, for instance, Allen v. Wright, where the Court held that stigmatic injury
`
`from racial discrimination could not form the basis for standing without further
`
`showing that the plaintiffs themselves were “personally . . . denied equal treatment.”
`
`468 U.S. at 755. If abstract stigmatic injury were cognizable, the Court reasoned,
`
`“[a] black person in Hawaii could challenge the grant of a tax exemption to a racially
`
`9
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`discriminatory school in Maine,” id. at 756—exactly the kind of generalized
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`grievance that standing doctrine was designed to avoid. It would defy common
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`sense, then, to permit that same Hawaiian to air his grievance merely because he
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`succeeds in creating an organization of affected “members” from Maine that has no
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`purpose other than to further his own litigation agenda. In that scenario, the harm
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`done to standing principles is at least the same as if one had allowed the claim based
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`on abstract stigmatic harm to proceed in the first place. No plausible conception of
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`Article III would allow its strictures to be so easily undermined.
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`III. THE DISTRICT COURT ERRED IN TREATING SFFA AS A
`GENUINE MEMBERSHIP ORGANIZATION
`INSTEAD OF
`PROBING THE NATURE OF SFFA’S RELATIONSHIP WITH ITS
`PURPORTED MEMBERS.
`The district court erred by taking at face value Mr. Blum’s transparent attempt
`
`to manufacture standing in this case. Mr. Blum would plainly be prohibited from
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`bringing his own suit challenging race-conscious admissions. In the past, Mr. Blum
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`has identified individuals who would sue in their own name to challenge such
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`policies. See, e.g., Fisher v. Univ. of Texas at Austin, 570 U.S. 297 (2013); Anemona
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`Hartocollis, He Took On The Voting Rights Act and Won. Now He’s Taking On
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`Harvard, N.Y. Times, Nov. 19, 2017, https://www.nytimes.com/2017/11/19/us
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`/affirmative-action-lawsuits.html (noting that Mr. Blum financed Fisher). This time,
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`however, Mr. Blum created SFFA as a workaround. As explained in more detail
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`below, see infra at 14-16, Mr. Blum recruited potential plaintiffs to become
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`10
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`“members” of SFFA so that he could effectively adopt their claims as his own while
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`simultaneously precluding them from any meaningful control over the litigation.
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`JA240 (“I needed plaintiffs; I needed Asian plaintiffs . . . so I started . . .
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`HarvardNotFair.org.”).
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`The district court here granted Mr. Blum and SFFA standing by woodenly
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`applying the general test for “associational standing,” reasoning that because
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`SFFA’s individual “members” had standing, SFFA could assert claims on behalf of
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`those members. See Students for Fair Admissions, Inc. v. President & Fellows of
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`Harvard Coll., 261 F. Supp. 3d 99, 109–11 (D. Mass. 2017). That rationale was
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`wrong.
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`It is true enough that in some circumstances, “an association may have
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`standing . . . as the representative of its members.” Warth, 422 U.S. at 511.
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`Ordinarily, as the district court recognized, a genuine membership association
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`seeking to sue on behalf of its members must always satisfy three prerequisites: “(a)
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`its members [must] otherwise have standing to sue in their own right; (b) the interests
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`it seeks to protect [must be] germane to the organization’s purpose; and (c) neither
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`the claim asserted nor the relief requested [can] require[] the participation of
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`individual members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n,
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`432 U.S. 333, 343 (1977). And SFFA does satisfy those criteria here.
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`11
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`But what the district court overlooked is that those three prerequisites presume
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`that the plaintiff organization is, in fact, a genuine membership organization; one
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`organically formed by “pool[ing] [its members’] interests, activities and capital
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`under a name and a form that will identify collective interests.” Camel Hair &
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`Cashmere Inst. of Am., Inc. v. Associated Dry Goods Corp., 799 F.2d 6, 11 (1st Cir.
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`1986). In some cases, however, even if the prerequisites are satisfied, it is necessary
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`to probe deeper into the nature of the association to ensure that “it and its members
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`are in every practical sense identical,” NAACP v. Alabama ex rel. Patterson, 357
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`U.S. 449, 459 (1958), and that it is not merely an artifice to evade Article III
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`limitations, see Hunt, 432 U.S. at 344-45; cf. 13A Wright & Miller, Federal Practice
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`and Procedure § 3531.9.5 (3d ed. 2012) (“Inquiry into the purpose of the
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`organization also suggests that some inquiry be made into the nature of the
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`organization.”).
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`Hunt itself exemplifies that threshold analysis: In Hunt, the Court looked
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`beyond the three prerequisites because the association at issue was a state agency—
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`not a voluntary membership association—and so it was unclear whether it served the
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`interests of the apple growers and dealers on whose behalf it sought to sue. See
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`Hunt, 432 U.S. at 344-45. Further analysis is necessary, in other words, when there
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`is some reason to doubt that the association in fact represents the interests of its
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`12
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`purported members—i.e., that it “provides the means by which [its members]
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`express their collective views and protect their collective interest.” Id. at 345.
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`In Hunt, the Court ultimately concluded that the state agency had associational
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`standing because its members “possess all of the indicia of membership in an
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`organization. They alone elect the members of the Comm