NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 17 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PHYSICIANS FOR INTEGRITY IN No. 14-56907
MEDICAL RESEARCH, INC.,
D.C. No.
Plaintiff-Appellant, 2:14-cv-00755-JAK-FFM
v.
MEMORANDUM*
STEPHEN OSTROFF, Commissioner,
Food and Drug Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted October 4, 2016**
Pasadena, California
Before: D.W. NELSON and PAEZ, Circuit Judges, and BUCKLO,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Physicians for Integrity in Medical Research, Inc. (PIMR) filed this action
against the Food and Drug Administration (FDA) alleging that the FDA’s refusal
to revoke the approval given to the drug roflumilast was arbitrary and capricious
under 5 U.S.C. § 706(2)(A). The district court dismissed PIMR’s complaint for
lack of standing, and PIMR now appeals. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. Any alleged injury must have a “causal connection . . . [to] the conduct
complained of — the injury has to be fairly traceable to the challenged action of
the defendant, and not the result of the independent action of some third party not
before the court.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(internal quotation marks, alterations, and ellipses omitted).
Dr. Nilesh Desai, a member of PIMR who filed a declaration in this action,
is unable to demonstrate that any of his alleged injuries is “fairly traceable” to the
FDA. Because Dr. Desai does not have standing, PIMR also does not have
standing. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 181 ( 2000) (“An association has standing to bring suit on behalf of its
members when its members would otherwise have standing to sue in their own
right.”).
2
All of Dr. Desai’s claims rely on the independent decisions of actors
unrelated to the FDA. With respect to PIMR’s claims that Dr. Desai will lose
patients and suffer a loss of reputation, even assuming that Dr. Desai has suffered
injuries-in-fact, these injuries would arise from the independent decisions made by
his patients. Patients who choose to stop seeing Dr. Desai as a result of Dr. Desai’s
comments regarding roflumilast, or who end up finding him less reputable, are
making an independent choice unrelated to the FDA’s actions. See Clapper v.
Amnesty Int’l USA, 133 S. Ct. 1138, 1150 (2013) (declining to “endorse standing
theories that rest on speculation about the decisions of independent actors”).
PIMR’s allegation that Dr. Desai suffers injury because he will be
uncompensated for the time he spends explaining to patients his beliefs regarding
roflumilast fails for the same reason. Whether and how Dr. Desai is compensated
depends on insurance carriers’, HMOs’, Medicaid’s, and Medicare’s rules
regarding reimbursement, not on the FDA.
2. PIMR’s argument that it should be granted standing in this case in order to
allow patients to sue the FDA is not supported by caselaw. See id. at 1154 (“[T]he
assumption that if respondents have no standing to sue, no one would have
standing, is not a reason to find standing.”) (citation and internal quotation marks
omitted).
3
AFFIRMED.
4