FILED
NOT FOR PUBLICATION FEB 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHYSICIANS FOR INTEGRITY IN No. 12-56119
MEDICAL RESEARCH, INC.,
D.C. No. 2:11-cv-08334-GAF-
Plaintiff - Appellant, FMO
v.
MEMORANDUM*
MARGARET HAMBURG, Commissioner
of Food and Drug Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted February 13, 2014
Pasadena, California
Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.
The district court correctly dismissed Physicians for Integrity in Medical
Research, Inc.’s (“PIMR”) complaint with prejudice for lack of standing. For an
association like PIMR to have standing to sue on behalf of its members, the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 3
members must “otherwise have standing to sue in their own right.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). Dr.
Steve Gupta, the only member of PIMR that the complaint alleges has standing,
would not have standing to bring this action in his own right.
We assume for purposes of argument that Dr. Gupta’s alleged injuries are
sufficiently “concrete and particularized” and “actual or imminent,” as opposed to
“conjectural or hypothetical,” to support standing. NRDC v. EPA, 735 F.3d 873,
878 (9th Cir. 2013). Dr. Gupta’s first alleged injury, for uncompensated time spent
counseling patients about Alair, is not fairly traceable to the challenged FDA
action. Id. As Dr. Gupta acknowledges in his opening brief on appeal, whether he
is compensated for time spent counseling patients is a function of the
reimbursement schedule for office visits set by other components of the federal
government, not by the FDA.
The second and third alleged injuries, for lost patients and loss of credibility,
will occur only if one of Dr. Gupta’s patients makes an independent choice—either
to find another physician or to view Dr. Gupta less favorably as a result of his
advice about Alair. Because Dr. Gupta’s theory of standing with respect to these
injuries “rest[s] on speculation about the decisions of independent actors,” the
Page 3 of 3
injuries are not fairly traceable to the FDA. Clapper v. Amnesty Int’l USA, 133 S.
Ct. 1138, 1148–50 (2013).
PIMR’s motion for supplemental briefing, filed on February 19, 2014, is
denied.
AFFIRMED.