Petition for Writ of Certiorari — Disability Rights New York, Petitioner v. New York State Department of Health, et al.

No. 25In the

Supreme Court of the United States

DISABILITY RIGHTS NEW YORK,

Petitioner,

v.

NEW YORK STATE DEPARTMENT OF HEALTH,

JAMES V. MCDONALD, IN HIS OFFICIAL CAPACITY

AS COMMISSIONER OF THE NEW YORK STATE

DEPARTMENT OF HEALTH, NEW YORK STATE

OFFICE FOR PEOPLE WITH DEVELOPMENTAL

DISABILITIES, AND WILLOW BAER, IN HER

OFFICIAL CAPACITY AS COMMISSIONER OF THE

NEW YORK STATE OFFICE FOR PEOPLE WITH

DEVELOPMENTAL DISABILITIES,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Jennifer J. Monthie

Counsel of Record

Timothy A. Clune

Julie Michaels Keegan

Benjamin Taylor

Jessica Scholes

Disability Rights New York

279 Troy Road, Suite 9

PMB 236

Rensselaer, NY 12144

(518) 432-7861

jennifer.monthie@drny.org

Counsel for Petitioner

388527

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Whether DRNY, as a Protection & Advocacy System

authorized by Congress to bring lawsuits in its own

name on behalf of individuals with disabilities pursuant

to the Developmental Disabilities Assistance and Bill of

Rights Act, 42 U.S.C. § 15041 et seq., the Protection and

Advocacy for Individuals with Mental Illness Act of 1986,

42 U.S.C. § 10801 et seq., and the Protection and Advocacy

of Individual Rights Act, 29 U.S.C. § 794e, has Article

III standing to bring a case or controversy on behalf of

injured individual(s) with disabilities?

ii

PARTIES TO THE PROCEEDING

Petitioner is Disability Rights New York. It was

Plaintiff/Appellant below.

Respondents are New York State Department of

Health, James V. McDonald, in his official capacity

as Commissioner of the New York State Department

of Health, New York State Office for People with

Developmental Disabilities, and Willow Baer, in her official

capacity as Commissioner of the New York State Office

for People with Developmental Disabilities. They were

Defendant-Appellees below.

Plaintiff-Appellants in the judgment appealed from

are Respondents A.H., by her next friend E.H, R.D., by

her next friend M.D., J.D., by his next friend D.D., H.L.,

on behalf of themselves and all others similarly situated,

A.B., on behalf of themselves and all others similarly

situated, J.S., on behalf of themselves and all others

similarly situated, J.C.M., on behalf of themselves and all

others similarly situated, and L.P., by her next friend C.P.

Intervenor-Plaintiffs-Appellants in the judgment

appealed from are Respondents E.B., M.W., by his next

friend T.D., J.D.C., J.P.S., by his next friend S.S., M.F.,

O.A., M.Y., by his next friend B.L., and C.H.

iii

RULE 29.6 STATEMENT

Disability Advocates, Inc. d/b/a/ Disability Rights

New York has no parent company or publicly held company

with a 10% or greater ownership interest in it.

iv

RELATED PROCEEDINGS

This case arises from the following proceedings:

United States District Court (S.D.N.Y.):

T.C., et. al, v. New York State Department of

Health, et. al., No. 22-cv-5045 (Feb. 20, 2024)

(opinion and order granting motion to dismiss)

United States Court of Appeals (2d Cir.):

A.H., by her next friend E.H., et. al. v. New

York State Department of Health, et. al., No.

24-725-cv(L), 24-728-cv(CON) (Aug. 13, 2025)

(opinion)

A.H., by her next friend E.H., et. al. v. New

York State Department of Health, et. al., No.

24-725-cv(L), 24-728-cv(CON) (Oct. 14, 2025)

(order denying rehearing en banc)

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . . . . . . . . iii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 5

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 5

B. History of the P&A System . . . . . . . . . . . . . . . . . 6

C. Lower Court’s Rulings . . . . . . . . . . . . . . . . . . . . 13

vi

Table of Contents

Page

REASONS FOR GRANTING THE PETITION . . . . 14

I.

This Court should grant certiorari to

p r ov ide do c t r i n a l c l a r i f ic at ion on

Congressionally authorized representational

standing requirements . . . . . . . . . . . . . . . . . . . . 15

II. This Court should grant certiorari to

remedy the Second Circuit’s violation of

the Constitutional Separation of Powers

reserved to Congress . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

vii

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

AUGUST 13, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DI S T R IC T OF N E W YOR K , F I L ED

FEBRUARY 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . . 60a

A P P E N DI X C — O R D E R D E N Y I N G

R EH E A RI NG EN BA NC OF T H E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

OCTOBER 14, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . 88a

viii

TABLE OF CITED AUTHORITIES

Page

CASES:

Brnovich v. DNC,

594 U.S. 647 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Director, Office of Workers’ Compensation

Programs v. Newport News Shipbuilding

& Dry Dock Co,

514 U.S. 122 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Food & Drug Admin. v. All for Hippocratic Med.,

602 U.S. 367 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Gen. Tel. Co. of the Nw., Inc. v. EEOC,

446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Gladstone Realtors v. Vill. of Bellwood,

441 U.S. 91 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Goldstein v. Coughlin,

83 F.R.D. 613 (W.D.N.Y. 1979) . . . . . . . . . . . . . . . . . . 20

INS v. Chadha,

462 U. S. 919 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Nat’l Motor Freight Traffic Ass’n v.

United States,

372 U.S. 246 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Powers v. Ohio,

499 U.S. 400 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ix

Cited Authorities

Page

Raines v. Byrd,

521 U. S. 811 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Rubenstein v. Benedictine Hosp.,

790 F. Supp. 396 (N.D.N.Y. 1992) . . . . . . . . . . . . . . . 20

Sprint Communications Co. v.

APCC Services, Inc.,

554 U.S. 269 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Thole v. U.S. Bank N.A.,

590 U.S. 538 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United Food and Commercial Workers Union

Local 751 v. Brown Group, Inc.,

517 U.S. 544 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Valley Forge Christian Coll. v. Americans United

for Separation of Church & State, Inc.,

454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens,

529 U.S. 765 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Whitmore v. Arkansas,

495 U.S. 149 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

x

Cited Authorities

Page

STATUTES AND OTHER AUTHORITIES:

U.S. Const., art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 U.S.C. § 794e . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 12

29 U.S.C. § 794e(f)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

29 U.S.C. § 3004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. § 300-d-53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. § 6000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19

42 U.S.C. § 10801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 5

42 U.S.C. § 10801(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

42 U.S.C. § 10801(b)(2)(a) . . . . . . . . . . . . . . . . . . . . . . 12, 19

42 U.S.C. § 10805(a)(1)(B) . . . . . . . . . . . . . . . . 4, 12, 19, 21

42 U.S.C. § 10805(a)(5)-(8) . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. § 15001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. § 15001(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 15041 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 5

42 U.S.C. § 15043(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 19

xi

Cited Authorities

Page

42 U.S.C. § 15043(a)(2)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. § 15043(a)(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. § 15043(a)(2)(D) . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. § 15044(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

42 U.S.C. § 15044(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8

42 C.F.R. § 51.6(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

45 C.F.R. § 1326.21(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

45 C.F.R. § 1326.24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

132 Cong. Rec. H2642-02 (daily ed. May 13, 1986)

(statement of Rep. Waxman) . . . . . . . . . . . . . . . . . . . 21

145 Cong. Rec. S14313-04 . . . . . . . . . . . . . . . . . . . . . . . . 21

146 Cong. Rec. H9787-02 . . . . . . . . . . . . . . . . . . . . . . . . . 20

Care of Institutionalized Mentally Disabled

Persons: Joint Hearings on S. 99-50 Before

the Subcomm. on the Handicapped of the

Comm. on Lab. and Hum. Res. and the

Subcomm. on Lab. Health, and Hum. Servs.,

Educ. and Related Agencies of the Comm.

on Appropriations, 99 th Congress 2 (1985)

(Statement of Senator Lowell P. Weicker) . . . . . . . . . 9

xii

Cited Authorities

Page

Care of Institutionalized Mentally Disabled

Persons: Joint Hearings on S. 99-50 Before the

Subcomm. on the Handicapped of the Comm. on

Lab. and Hum. Res. and the Subcomm. on Lab.

Health, and Hum. Servs., Educ. and Related

Agencies of the Comm. on Appropriations,

99th Congress Appendix (1985) (Staff Report

on the Institutionalized Mentally Disabled

Requested by Senator Lowell P. Weicker, Jr.) . . 10, 11

Fed. R. Civ. P. 17(a)(1)(G) . . . . . . . . . . . . . . . . . . . . . . . . . 16

H.R. Rep. No. 98-759 (1984) . . . . . . . . . . . . . . . . . . . . . . 10

N.Y. Exe. Law § 558(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Oversight of Devel op m ental Di sabilities

Assistance and Bill of Rights Act: Hearing

S. 98-796 Before the Subcomm . on the

Handicapped of the Comm. on Lab. and Hum.

Res, 98th Congress 171 (1984) (Report of

Mary P. Smith, Analyst in Social Legislation,

Education and Public Welfare Division on

The Developmental Disabilities Programs:

Statutory Authority and Budget Information) . . . . . 8

Public Law 106-170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Public Law 107-252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Public Law 115-165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

xiii

Cited Authorities

Page

REP. No. 94-160, 94th Cong., 1st Sess. 3-4 . . . . . . . . . . . 7

S. REP. 103 -120 (1993), reprinted in 1994

U.S.C.C.A.N. 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Second Circuit is reported at 147

F.4th 270 (2d Cir. 2025) and is reproduced in the Appendix

at Pet. App. 1a-59a. The Second Circuit’s order denying

rehearing en banc is reproduced in the Appendix at

Pet. App. 88a-89a. The Southern District of New York’s

opinion, reproduced in the Appendix at Pet. App. 60a-87a,

is not published in the Federal Supplement but is available

at 2024 WL 689503.

JURISDICTION

The Second Circuit’s judgment was entered on August

13, 2025. The Second Circuit issued an order denying

rehearing en banc on October 14, 2025. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The pertinent statutes are in the Developmental

Disabilities Assistance and Bill of Rights Act, 42 U.S.C.

§ 15041 et seq., the Protection and Advocacy for Individuals

with Mental Illness Act of 1986, 42 U.S.C. § 10801 et seq.

and the Protection and Advocacy of Individuals Rights

Act, 29 U.S.C. § 794e.

42 U.S.C. § 15001(b)(2) states:

The purpose of this subchapter is to assure

that individuals with developmental disabilities

and their families participate in the design of

and have access to needed community services,

2

individualized supports, and other forms of

assistance that promote self-determination,

independence, productivity, and integration and

inclusion in all facets of community life, through

culturally competent programs authorized

under this subchapter, including specifically

. . . protection and advocacy systems in each

State to protect the legal and human rights of

individuals with developmental disabilities;

42 U.S.C. § 15041 states:

The purpose of this part is to provide for

allotments to support a protection and advocacy

system (referred to in this part as a “system”)

in each State to protect the legal and human

rights of individuals w ith developmental

disabilities in accordance with this part.

42 U.S.C. § 15043(a)(2)(A)(i) states:

System required . . . such system shall . . .

have the authority to . . . (i) pursue legal,

administrative, and other appropriate remedies

or approaches to ensure the protection of, and

advocacy for, the rights of such individuals

within the State who are or who may be eligible

for treatment, services, or habilitation, or who

are being considered for a change in living

arrangements . . .

42 U.S.C. § 15044(b)(1) states:

Nothing in this subchapter shall preclude

a system from bringing a suit on behalf of

3

individuals with developmental disabilities

against a State, or an agency or instrumentality

of a State.

42 U.S.C. § 10801 states:

The Congress finds that . . . (1) individuals

with mental illness are vulnerable to abuse

and serious injury; (2) family members of

individuals with mental illness play a crucial role

in being advocates for the rights of individuals

with mental illness where the individuals are

minors, the individuals are legally competent

and choose to involve the family members, and

the individuals are legally incompetent and the

legal guardians, conservators, or other legal

representatives are members of the family; (3)

individuals with mental illness are subject to

neglect, including lack of treatment, adequate

nutrition, clothing, health care, and adequate

discharge planning; and (4) State systems for

monitoring compliance with respect to the

rights of individuals with mental illness vary

widely and are frequently inadequate. . . . The

purposes of this chapter are-- (1) to ensure that

the rights of individuals with mental illness are

protected; and (2) to assist States to establish

and operate a protection and advocacy system

for individuals with mental illness which will-(A) protect and advocate the rights of such

individuals through activities to ensure the

enforcement of the Constitution and Federal

and State statutes; and (B) investigate incidents

of abuse and neglect of individuals with mental

illness if the incidents are reported to the

4

system or if there is probable cause to believe

that the incidents occurred.

42 U.S.C. § 10805(a)(1)(B) states:

A system established in a State under section

10803 of this title to protect and advocate the

rights of individuals with mental illness shall . . .

have the authority to . . . pursue administrative,

legal, and other appropriate remedies to ensure

the protection of individuals with mental illness

who are receiving care or treatment in the

State; . . .

29 U.S.C. § 794e(f)(3) states:

In order to receive assistance under this

section, an eligible system shall submit an

application to the Commissioner, at such time,

in such form and manner, and containing

such information and assurances as the

Commissioner determines necessary to meet

the requirements of this section, including

assurances that the eligible system will . . . have

the authority to pursue legal, administrative,

and other appropriate remedies or approaches

to ensure the protection of, and advocacy for,

the rights of such individuals within the State

or the American Indian consortium who are

individuals described in subsection (a)(1) . . .

5

STATEMENT OF THE CASE

A. Factual Background

Disability Rights New York (DRNY) is the notfor-profit corporation designated as New York State’s

Protection and Advocacy System. N.Y. Exe. Law § 558(b)

(Mckinney). As the Protection and Advocacy System

(P&A), DRNY is the recipient of eight federal grants

that require DRNY to protect and advance the rights of

individuals with disabilities. Pursuant to this mandate,

DRNY investigates allegations of abuse and neglect and

engages in direct and systemic legal advocacy. DRNY is

specifically authorized by Congress to bring lawsuits in

its own name on behalf of people with disabilities.

This case was filed as a putative class action on

June 16, 2022, by eight individual plaintiffs and DRNY

seeking injunctive and declaratory relief. Pet. App. 4a

-5a. Plaintiffs alleged the failure to provide communitybased residences and services resulted in their indefinite

institutionalization, in violation of the Medicaid Act, the

Rehabilitation Act, and the Americans with Disabilities

Act. Pet. App. 5a. As it pertains to this appeal, in the

amended complaint DRNY alleged:

DRNY is a Protection and Advocacy system, as

that term is defined under the Developmental

Disabilities Assistance and Bill of Rights Act,

42 U.S.C. § 15041 et seq., the Protection and

Advocacy for Individuals with Mental Illness

Act of 1986, 42 U.S.C. § 10801 et seq. and

the Protection and Advocacy of Individuals

6

Rights Act, 29 U.S.C. § 794e et seq. As New

York State’s Protection & Advocacy system,

DRNY is specifically authorized to pursue legal,

administrative, and other appropriate remedies

or approaches to ensure the protection of, and

advocacy for, the rights of individuals with

disabilities.

Pet. App. 6a.

B. History of the P&A System

In 1972, Geraldo Rivera exposed the horrific conditions

of abuse and neglect at the Willowbrook State School in

Staten Island, New York. Willowbrook was a massive

state institution that housed thousands of children and

adults with intellectual and developmental disabilities.

The reporting exposed unconscionable treatment

of Willowbrook residents in the form of beatings,

inappropriate use of restraints, untreated wounds,

and involuntary medical experimentation. Despite the

profound and shocking injuries suffered by Willowbrook

residents, prior to the exposé, none of them filed lawsuits

seeking relief.

A national outcry over Willowbrook and other similar

institutions prompted Congress to hold hearings focused

on institutional abuse. Congress found that despite

decades of federal funding, conditions in institutions

remained unchanged:

The last four years have seen a dramatic

increase in public awareness of the needs

of institutionalized mentally retarded or

developmentally disabled persons. This has

7

been highlighted by scandals in a number of

institutions, by court cases, and by some excellent

work done in the mass media. Testimony before

this committee persuasively demonstrates that

implementation and enforcement of minimum

standards of care in institutions for the

developmentally disabled are urgently needed

and that the Federal government can and

should play a significant role in upgrading the

care and services provided to developmentally

disabled persons in public and other facilities

which operate with Federal funds.

REP. No. 94-160, 94th Cong., 1st Sess. 3-4.

The Committee further found that the:

inherent conflict in the role a State must play in

delivering services and administering programs

for persons with developmental disabilities and

in protecting the human and legal rights of

such persons. The Committee also believes

that it is most important to distinguish between

these two roles in light of the nature and the

problems confronting such persons who are not

able to adequately protect their own rights. It

is for this reason that the Committee requires

the establishment of a protective and personal

advocacy function by the State. The protective

and personal advocacy agency or agencies

required by this provision shall be independent

of any State agency administering or delivering

services to developmentally disabled persons.

REP. No. 94-160, 94th Cong., 1st Sess. 3-4.

8

In response to its findings of abuse and neglect and

in recognition that the individuals in institutions had no

practical means of seeking redress, Congress enacted the

Developmental Disabilities Assistance and Bill of Rights

Act of 1975 (DD Act), 42 U.S.C. § 6000 et seq. (repealed

and replaced by 42 U.S.C. § 15001 et seq.). The DD Act

established a nationwide system to protect the rights

and promote the inclusion of people with developmental

disabilities into all aspects of everyday life.

Congress required that states must have a P&A

system if they accept federal financial assistance to provide

services to individuals with developmental disabilities.

Congress provided the P&A with representational

standing “authority to pursue legal and administrative

remedies to assure protection of rights. Remedies

include negotiations w ith agencies administering

services programs as well as litigation.” Oversight of

Developmental Disabilities Assistance and Bill of Rights

Act: Hearing S. 98-796 Before the Subcomm. on the

Handicapped of the Comm. on Lab. and Hum. Res, 98th

Congress 171 (1984) (Report of Mary P. Smith, Analyst in

Social Legislation, Education and Public Welfare Division

on The Developmental Disabilities Programs: Statutory

Authority and Budget Information; see also 42 U.S.C.

§ 15043(a)(1). Congress directed that the P&A system

could not be precluded from bringing a suit on behalf

of individuals with developmental disabilities against a

State, or an agency or instrumentality of a State. 42 U.S.C

§ 15044(b)(1).

Eight years after the DD Act was enacted, Senator

Lowell Weicker, chairman of two subcommittees on

disability, led an investigation of state psychiatric

9

hospitals and other institutions across the country. Senate

investigators, who visited 31 institutions in 12 states and

conducted over 600 interviews, reported that residents

were often subject to abuse and serious physical injury,

sexual advances and rape, and verbal threats of injury

and other forms of intimidation well out of the public eye.

On too many wards of state facilities for the

mentally disabled, residents and staff exist in

a climate of fear and intimidation. And despite

the regular outside scrutiny of, at best, only a

handful of state-paid monitors –whose internal

reporting, however aggressive, is largely denied

public airing – these residents and employees

live and work in virtual secrecy.

Care of Institutionalized Mentally Disabled Persons:

Joint Hearings on S. 99-50 Before the Subcomm. on the

Handicapped of the Comm. on Lab. and Hum. Res. and

the Subcomm. on Lab. Health, and Hum. Servs., Educ.

and Related Agencies of the Comm. on Appropriations,

99th Congress Appendix p. 2 (1985) (Staff Report on the

Institutionalized Mentally Disabled Requested by Senator

Lowell P. Weicker, Jr.).

The investigation was prompted in part by testimony

that William Bradford Reynolds, Assistant Attorney

General in charge of the Civil Rights Division of the

Justice Department gave at a Senate Hearing. Senator

Weicker recalled the exchange:

If one of these [institutionalized] person’s life

could be snuffed out in the next hour and you

know about it, do you have the power to go in

10

there and make sure that life will not be snuffed

out? Do you have the authority right now to

save that life? Mr. Reynolds gave the following

answer, ‘I think that if you know in advance

that someone is going to -your situation is if you

know in advance somebody is going to snuff out

a life in the next hour I would’ -and then there

was a 30 second pause – ‘I am not sure what,

I would have to look into that and whether the

Federal Government is in a position to go in in

advance on that.

Care of Institutionalized Mentally Disabled Persons:

Joint Hearings on S. 99-50 Before the Subcomm. on the

Handicapped of the Comm. on Lab. and Hum. Res. and

the Subcomm. on Lab. Health, and Hum. Servs., Educ.

and Related Agencies of the Comm. on Appropriations,

99th Congress 2 (1985) (Statement of Senator Lowell P.

Weicker).

The Senate investigation raised “serious questions

about the extent to which the Attorney General is

frustrating congressional intent in enforcing the federal

civil rights laws.” H.R. Rep. No. 98-759, at 3 (1984). The

Attorney General was notified that “continued disregard

for its statutory mandate will most surely result in

legislative action in the upcoming year.” Id. The bases for

the Committee’s conclusions and its resolve to legislate

in the future were based on the failure of the Attorney

General to investigate and take legal action against

state and local governments for systemic violations

of the constitutional or federal rights of individuals in

public institutions as directed by the Civil Rights of

Institutionalized Persons Act. Id. at 3-5.

11

Senator Weicker in a joint hearing before the

Subcommittee on the Handicapped of the Committee on

Labor and Human Resources and Subcommittee on Labor,

Health and Human Services, Education and Related

Agencies of the Committee on Appropriations stated:

Let us also be clear on the Federal Government’s

responsibilities to the institutionalized. When

we passed the Civil Rights of Institutionalized

Persons Act in 1980 we expected that these

persons would, at least, live and be helped in

conditions that meet tests of constitutional

certainty and human decency. W hen we

provided for Federal audits of institutional care

as part of Medicaid funding, we expected that

Federal tax money would be linked directly

to quality care. However, neither the U.S.

Justice Department, nor the Department of

Health and Human Services has lived up to

these expectations…Instead of tough Federal

action to correct serious and potentially

deadly institutional conditions, we are left with

isolated media reports and limited State and

congressional research, including this report

by my staff.

Care of Institutionalized Mentally Disabled Persons:

Joint Hearings on S. 99-50 Before the Subcomm. on the

Handicapped of the Comm. on Lab. and Hum. Res. and

the Subcomm. on Lab. Health, and Hum. Servs., Educ.

and Related Agencies of the Comm. on Appropriations,

99th Congress 2 (1985) (Statement of Senator Lowell P.

Weicker).

12

After these hearings, in 1985 Congress enacted the

Protection and Advocacy System for Individuals with

Mental Illness (“PAIMI”) Act to protect and enforce

the rights of individuals with mental illness. Like the

DD Act, the PAIMI Act empowers P&A systems with

representational standing to “pursue administrative, legal

and other appropriate remedies to ensure the protection

of individuals with mental illness” and “the enforcement

of the Constitution and Federal and State statutes.”

42 U.S.C. § 10805(a)(1)(B), 10801(b)(2)(A). The federal

regulations implementing PAIMI provide that a P&A

system may “bring lawsuits in its own right to redress

incidents of abuse or neglect, discrimination, and other

rights violations.” 42 C.F.R. § 51.6(f).

There are 57 P&A Systems today, one in every state

and territory. There can be no doubt that Congress

bestowed P&A systems w ith broad author ity to

investigate, advocate, and with representational standing

to enforce the rights of people with disabilities. Each of

the 57 P&A systems are federally regulated, monitored,

and audited. 42 U.S.C. § 15043(a)(2)(C) and (D); 42 U.S.C.

§ 10805(a)(5)-(8). For the last 50 years, Congress has

consistently funded and expanded the reach of the P&A

system.1

1. Since the enactment of the DD Act in 1975 and the PAIMI

Act in 1986, Congress has continued to expand the national P&A

system. In 1993 the P&A for Individual Rights, 29 U.S.C § 794e; in

1994 the P&A for Assistive Technology, 29 U.S.C. § 3004; in 1999

the P&A for Beneficiaries of Social Security, Public Law 106-170;

in 2002 the P&A for Individuals with Traumatic Brain Injury, 42

U.S.C. § 300-d-53; in 2003 the P&A for Voter Access, Public Law

107-252; and in 2018 the P&A for individuals with Representative

Payees, Public Law 115-165.

13

C. Lower Court’s Rulings

On December 1, 2022, Defendants filed a partial motion

to dismiss, arguing in part, that DRNY lacked standing.

Pet. App. 62a. On January 24, 2024, while the motion

was still pending, Defendants sought permission to file a

new motion arguing that all named Plaintiffs were moot.

On February 20, 2024, the District Court, without any

hearing or full briefing on the issues, dismissed the case

in its entirety. The District Court granted Defendants’

motion with respect to DRNY’s standing because “in this

Circuit, there is a bar on . . . third-party standing.” Pet.

App. 77a. DRNY and other Plaintiffs sought review in

separately briefed appeals to the Second Circuit.

A divided Second Circuit panel affirmed the District

Court’s decision on DRNY’s standing, albeit on entirely

different grounds. While the District Court’s decision

rested on a bar to third party standing, the majority

acknowledged the “right of litigants to bring actions on

behalf of third parties” at least in “limited circumstances.”

Pet. App. 13a-14a. However, the majority opinion limits

this to where the litigant has itself suffered an injuryin-fact, or is an association consisting of members who

have suffered the injury-in-fact, complained of. Like the

District Court opinion, the majority opinion does not

analyze the text of Article III, or account for the long

history of courts permitting litigants to assert the injury

of another where there is a representational relationship

prescribed by Congress.

The Second Circuit’s dissenting opinion finds that

the majority opinion “rests on a surface-level reading of

precedent and fails to grapple with the complex interplay

14

between the legislative and judicial powers throughout

the Supreme Court’s standing cases.” Pet. App. 23a.

While the dissenting opinion explicitly acknowledges that

“the irreducible minima of standing” are “injury-in-fact,

causation, and redressability” it also correctly recognizes

that “representation standing, by definition, comes into

play only where those requirements are satisfied, but by a

third party’s injury.” Pet. App. 39a. “[N]either [this Court]

nor the Supreme Court have exhaustively enumerated the

relationships that can support representational standing.”

Pet. App. 29a. The dissenting opinion makes a critical

point which underscores the importance of granting

Certiorari. While it is a legitimate function of federal

courts to ensure that the other branches of government

do not overstep their authority, it is no less important for

courts to ensure they themselves do not “overreach . . .

to cut away at democratically enacted legislation.” Pet.

App. 22a. Therefore, courts are “ill-suited to second-guess

Congress’s conclusion that DRNY’s constituents have been

denied autonomy in the past, and that their autonomy is

better served though representation by an organization

purpose-built to advance their interests faithfully and

protect their rights vigorously, including in federal court.”

Pet. App. 58a – 59a.

After the Second Circuit issued its decision, DRNY

filed a Petition for en banc review on September 11, 2025.

That petition was denied on October 14, 2025.

REASONS FOR GRANTING THE PETITION

Congress specifically authorized P&A systems,

like DRNY, to bring claims in their own name on

behalf of individuals with disabilities who are abused,

neglected or face rights violations. The divided decision

15

below ignored this Congressional action as well as this

Court’s longstanding precedent on statutory authorized

representation. In doing so, the Second Circuit eliminated

a critical function of the P&A system - an act of judicial

overreach that cannot stand.

I.

This Court should grant certiorari to provide

doctrinal clarification on Cong ressionally

authorized representational standing requirements

This Court upholds Article III standing of litigants

authorized by a statute who have not directly suffered an

injury. Why? The answer is simple. Because Congress has

the Constitutional authority to say so.

Congress may, by legislation, expand standing to the

full extent permitted by Article III, to those asserting

the legal interests of third parties rather than their own.

Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 100

(1979). To be sure see, Nat’l Motor Freight Traffic Ass’n

v. United States, 372 U.S. 246 (1963) (statute authorized

representation of members who were aggrieved by the

contested order); Gen. Tel. Co. of the Nw., Inc. v. EEOC,

446 U.S. 318, 324–26 (1980) (EEOC is authorized by

statute to sue in its own name to seek relief, such as hiring

or reinstatement, constructive seniority, or damages for

backpay or benefits denied, on behalf of discrimination

victims); Whitmore v. Arkansas, 495 U.S. 149, 164–65

(1990) (next friend authorized by statute to seek habeas

relief); United Food and Commercial Workers Union

Local 751 v Brown Group, Inc., 517 US 544, 557 (1996)

(union is authorized by statute to sue on behalf of members,

and reaffirming that the EEOC is statutorily authorized

to enforce Title VII of the Civil Rights Act of 1964, and

16

the Secretary of Labor is authorized to enforce the Fair

Labor Standards Act of 1938); Vt. Agency of Nat. Res. v.

U.S. ex rel. Stevens, 529 U.S. 765, 773–74 (2000) (relator

is authorized by statute to seek relief under False Claims

Act); Sprint Communications Co. v. APCC Services, Inc.,

554 U.S. 269, 287–88, 290 (2008) (assignees had standing

based on injuries originally suffered by third parties, and

listing trustees, guardians ad litem, receivers, assignees

in bankruptcy, and executors as having representational

standing); Thole v. U.S. Bank N.A., 590 U.S. 538, 543–44

(2020) (guardians, receivers, and executors have standing

because they were “legally or contractually appointed to

represent” injured parties); Brnovich v. DNC, 594 U.S.

647, 665 (2021) (attorney general had standing because he

was authorized by statute to represent the State in any

action in federal court).

The Federal Rules of Civil Procedure provide

additional support. The Fed. R. Civ. P. go through a

rigorous process before they are ultimately approved

by this Court and then transmitted to Congress. By

approving Rule 17(a)(1)(G), this Court confirmed that

when a party is authorized by statute to sue in their own

name, they can do so without joining the injured person for

whose benefit the action is brought and without asserting

their own injury.

DRNY’s P&A standing is not “a special license to

roam the country in search of governmental wrongdoing.”

Valley Forge Christian Coll. v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 487

(1982). Rather, Congress assigned standing to the P&A

system by creating a sufficient “personal stake” to

facilitate the government’s interest in preventing the

17

abuse, neglect, and rights violations of individuals with

disabilities. Food & Drug Admin. v. All for Hippocratic

Med. 602 U.S. 367, 379 (2024). P&A representational

standing is only available to the P&A and is inherently

limited to situations where it is necessary to prevent such

abuse, neglect, and rights violations.

Despite all of this, the Second Circuit’s majority

opinion inexplicitly held that “Congress cannot legislate

away Article III’s injury-in-fact requirement by conferring

statutory representative status on a private party.” Pet.

App. 14a. However, injury in fact has always existed in

this case. DRNY merely exercised its statutory authority,

as prescribed by Congress, to bring this action on behalf

of the injured person. The Second Circuit ignored this

Court’s longstanding precedent related to statutorily

authorized representational standing, preventing

DRNY as a purpose-built organization from fulfilling

its statutory mandate to protect and advocate for people

with disabilities.

As shown above, this Court has held that an uninjured

third party can have representational standing pursuant

to a Congressionally authorized statute. See pp. 15-16,

supra. However, the Second Circuit majority opinion

relied upon a different ruling of this Court requiring the

named plaintiff to have suffered an injury in fact. Powers

v. Ohio, 499 U.S. 400, 410-11(1990). Importantly, the

plaintiff in Powers did not have or claim to have standing

pursuant to any specifically authorized statute.

DRNY has never claimed that the standing provisions

of the P&A statutes create an injury in fact or provide

for a cause of action. Instead, DRNY has standing to

18

litigate a case or controversy on behalf of an individual

with a disability who has suffered an injury in fact for

the violation of a law other than the P&A statutes. This

satisfies the requirements of Article III.

There is great confusion in the lower courts regarding

this Court’s jurisprudence of congressionally authorized

representational standing. Indeed, the Second Circuit’s

opinions provide a Master Class curriculum. Here, the

lower courts blurred the distinction between a litigant

like DRNY who has been statutorily authorized to bring

claims on behalf of another, with a litigant without any

such statutory authority. This incongruity needs to be

remedied and this case provides the perfect vehicle for

its consideration.

II. This Court should grant certiorari to remedy the

Second Circuit’s violation of the Constitutional

Separation of Powers reserved to Congress

The divided decision of the Second Circuit got an

exceptionally important issue exceptionally wrong. The

Second Circuit infringed upon the Constitutional powers

of the Legislative branch – an infringement that is a

matter of national importance requiring this Court’s

review and resolution.

“Article III standing is built on a single basic idea

- the idea of separation of powers.” TransUnion LLC

v. Ramirez, 594 U.S. 413, 422 (2021) citing Raines

v. Byrd, 521 U. S. 811, 820 (1997) (internal quotation

marks omitted). Separation of powers is not an “abstract

generalization in the minds of the Framers: it was woven

into the document that they drafted in Philadelphia in the

19

summer of 1787.” Id at 422-423 citing INS v. Chadha, 462

U. S. 919, 946 (1983) (internal quotation marks omitted).

The Second Circuit’s decision eviscerates this founding

principle by rejecting Congress’s separate authority to

authorize and identify representational parties.

Congress has the Constitutional authority to grant

representational standing by simply saying so. Director,

Office of Workers’ Compensation Programs v. Newport

News Shipbuilding & Dry Dock Co, 514 U.S. 122, 129-30

(1995) (finding that Congress can grant standing and

without clear statutory authority to do so, government

agencies do not have standing to act on behalf of injured

individuals).

Congress, as a co-equal branch of the federal

government created the P&A system to “fit comfortably

within Congress’s limited, but nonetheless meaningful,

power to shape the standing inquiry within the boundaries

set by Article III.” Pet. App. 23a. Congress bestowed

representational standing upon the P&A System under

the plain language of the governing statutes and

regulations. The DD and PAIMI Acts authorize the

P&A system to pursue legal, administrative, and other

appropriate remedies to ensure the protection of people

with disabilities. 42 U.S.C. § 15043(a)(1), (a)(2)(A)(i); 42

U.S.C. § 10805(a)(1)(B), 10801(b)(2)(A).

The DD Act provides that, “[n]othing in this

subchapter shall preclude a system from bringing a suit

on behalf of individuals with developmental disabilities

against a State, or an agency or instrumentality of a

State.” 42 U.S.C. § 15044(b). The legislative history of

the DD Act, 42 U.S.C. 6000 et seq, likewise settles any

question of Congressional intent.

20

The Committee heard testimony about the

waste of scarce resources that are expended

on litigating the issue of whether P&A systems

have standing to bring suit. The Committee

wishes to make it clear that we have reviewed

this issue and have decided that no statutory

fix is necessary because the current statute is

clear that P&A systems have standing to pursue

legal remedies to ensure the protection of and

advocacy for the rights of individuals with

developmental disabilities within the State.

The Committee has reviewed and concurs

with the holdings and rationale in Goldstein v.

Coughlin, 83 F.R.D. 613 (W.D.N.Y. 1979) and

Rubenstein v. Benedictine Hosp., 790 F. Supp.

396 (N.D.N.Y. 1992).

S. REP. 103-120, 39 (1993), reprinted in 1994 U.S.C.C.A.N.

164, 202-03.

This commentary must also be read in conjunction

with the legislative purpose. Congress enacted the P&A

statutes, finding that “individuals with [disabilities] are

vulnerable to abuse and serious injury” as well as neglect,

and that “[s]tate systems for monitoring compliance with

respect to the rights of individuals with [disabilities] ... are

frequently inadequate.” 42 U.S.C. § 10801(a)(4). Congress

created the P&A System to remedy this problem, giving

a voice to people with disabilities as they navigate stateoperated systems and discriminatory policies. 146 Cong.

Rec. H9787-02.

The “P&A shall not implement a policy or practice

restricting the remedies that may be sought on behalf

21

of individuals w ith developmental disabilities or

compromising the authority of the P&A to pursue

such remedies through litigation, legal action or other

forms of advocacy.” 45 C.F.R. § 1326.21(c). The P&A can

recover costs when “bringing lawsuits in its own right

to redress incidents of abuse or neglect, discrimination

and other rights violations” on behalf of individuals with

developmental disabilities. 45 C.F.R. § 1326.24.

The PAIMI Act provides that the P&A shall have

the authority to “pursue administrative, legal, and other

remedies to ensure the protection of individuals with

mental illness.” 42 U.S.C. § 10805(a)(1)(B); See also 132

Cong. Rec. H2642-02 (daily ed. May 13, 1986) (statement

of Rep. Waxman) (discussing the language of what is now

42 U.S.C. § 10805(a)(1)(B) and stating that “[i]t is also clear

that the conferees do not intend for questions of standing

or jurisdiction to limit the effectiveness, range, or forums

in which P&A agencies can work”).

Congress created the P&A system as an independent,

state-level, administrative agency with the duty of

enforcing the legal rights of persons with disabilities.

Congressional appropriations for the P&A system

are designed to provide P&A agencies with adequate

resources for legal advocacy. See 145 Cong. Rec. S1431304. As such, any interpretation of the P&A statute against

its authority to bring suit in its own right on behalf of

people with disabilities would render the powers Congress

vested to it meaningless.

The Second Circuit’s divided decision violates Article

III of the Constitution, imposes impermissible limits on

Congressional authority, and nullifies critical portions

22

of the P&A statutes enacted by democratically elected

legislators. The P&A statutes cannot be reconciled with

the majority opinion that strips a P&A from pursuing legal

action in its name on behalf of people Congress directed

it to protect. This Court should be “hesitant to take this

shield against judicial overreach and use it as a sword to

cut away at democratically enacted legislation.” Pet. App.

21a-22a. Such constraint on Congress’s authority is not

permitted and warrants this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Jennifer J. Monthie

Counsel of Record

Timothy A. Clune

Julie Michaels Keegan

Benjamin Taylor

Jessica Scholes

Disability Rights New York

279 Troy Road, Suite 9

PMB 236

Rensselaer, NY 12144

(518) 432-7861

jennifer.monthie@drny.org

Counsel for Petitioner

January 12, 2026

APPENDIX

i

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

AUGUST 13, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DI S T R IC T OF N E W YOR K , F I L ED

FEBRUARY 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . . 60a

A P P E N DI X C — O R D E R D E N Y I N G

R EH E A RI NG EN BA NC OF T H E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, FILED

OCTOBER 14, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . 88a

1a

Appendix

A UNITED STATES

APPENDIX A — OPINION

OF THE

COURT OF APPEALS FOR THE SECOND CIRCUIT,

FILED AUGUST 13, 2025

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 24-725-cv(L), 24-728-cv(CON)

A.H., BY HER NEXT FRIEND E.H., R.D., BY

HER NEXT FRIEND M.D., J.D., BY HIS

NEXT FRIEND D.D., H.L., ON BEHALF OF

THEMSELVES AND ALL OTHERS SIMILARLY

SITUATED, A.B., ON BEHALF OF THEMSELVES

AND ALL OTHERS SIMILARLY SITUATED,

J.S., ON BEHALF OF THEMSELVES AND ALL

OTHERS SIMILARLY SITUATED, J.C.M., ON

BEHALF OF THEMSELVES AND ALL OTHERS

SIMILARLY SITUATED, L.P., BY HER NEXT

FRIEND C.P., DISABILITY RIGHTS NEW YORK,

Plaintiffs-Appellants,

E.B., M.W., BY HIS NEXT FRIEND T.D., J.D.C.,

J.P.S., BY HIS NEXT FRIEND S.S., M.F., O.A., M.Y.,

BY HIS NEXT FRIEND B.L., C.H.,

Intervenor-Plaintiffs-Appellants,

v.

NEW YORK STATE DEPARTMENT OF HEALTH,

JAMES V. MCDONALD, IN HIS OFFICIAL CAPACITY

AS COMMISSIONER OF THE NEW YORK STATE

DEPARTMENT OF HEALTH, NEW YORK STATE

2a

Appendix A

OFFICE FOR PEOPLE WITH DEVELOPMENTAL

DISABILITIES, WILLOW BAER, IN HER

OFFICIAL CAPACITY AS COMMISSIONER OF

THE NEW YORK STATE OFFICE FOR PEOPLE

WITH DEVELOPMENTAL DISABILITIES,

Defendants-Appellees.*

August Term 2024

Argued: October 18, 2024

Decided: August 13, 2025

Appeal from the United States District Court

for the Southern District of New York

No. 22-cv-5045

Mary Kay Vyskocil, Judge.

Before: Park, Lee, and Pérez, Circuit Judges.

Judge Pérez dissents from Section II.A in a separate

opinion and otherwise concurs in the judgment of the

Court.

Park, Circuit Judge:

Plaintiffs in this case are an organization called

Disability Rights New York (“DRN Y”) and eight

individuals with developmental disabilities (“Individual

Plaintiffs”) who allege long delays in moving from

restrictive institutional facilities to community-based

* The Clerk of Court is respectfully directed to amend the

caption accordingly.

3a

Appendix A

residential settings. Plaintiffs sued various New York

State defendants under the Medicaid Act, the Americans

with Disabilities Act, the Rehabilitation Act, and the

Fourteenth Amendment. Defendants moved to dismiss

DRNY’s claims for lack of standing. They also argued

later in a pre-motion letter that the Individual Plaintiffs’

claims were moot because they had since been moved

out of institutional facilities. The district court dismissed

both DRNY’s and the Individual Plaintiffs’ claims and

also denied a motion to intervene by additional proposed

plaintiffs. Plaintiffs challenge all three rulings on appeal.

We conclude that the district court correctly dismissed

DRNY’s claims for lack of standing because DRNY

suffered no injury in fact, and we reject its theory of

“congressionally authorized representational standing.”

But the district court erred in dismissing the Individual

Plaintiffs’ claims as moot based solely on pre-motion

letters. Finally, the district court did not abuse its

discretion by denying the motion to intervene. We thus

affirm in part, vacate in part, and remand.

I.

BACKGROUND

A.

Factual Background

T he New York St at e O f f ice for People w it h

Developmental Disabilities (“OPWDD”) coordinates

s e r v ic e s for Ne w Yorke r s w it h de ve lop ment a l

disabilities, including cerebral palsy, Down syndrome,

autism spectrum disorders, and other neurological

impairments. Part of OPWDD’s work is to administer

Medicaid’s Home and Community Based Ser vices

(“HCBS”) Waiver Program, which provides services

4a

Appendix A

for disabled people in residential facilities. OPWDD

licenses or operates over 34,000 certified community

residence beds in New York.

OPWDD determines whether an individual is eligible

for the HCBS Waiver Program. To qualify, the individual

must (1) be diagnosed with a developmental disability;

(2) be eligible for placement in an Intermediate Care

Facility (“ICF”); (3) be enrolled or eligible for enrollment

in Medicaid; (4) exercise freedom of choice between receipt

of waiver services or placement in an ICF; (5) reside in an

appropriate living arrangement at the time of enrollment

(e.g., in a relative’s home and not an ICF); and (6) have

demonstrated a need for waiver services. 14 N.Y. Comp.

Codes R. & Regs. § 635-10.3(b). OPWDD then considers

an individual’s particular needs and the availability of

suitable residential opportunities.

The eight Individual Plaintiffs here have developmental

disabilities and were deemed eligible by OPWDD for

placement in community-based settings. They allege,

however, that they remained institutionalized. As of

October 2022, the Individual Plaintiffs claim to have

waited from nine months to six years for placement

in community-based residences. They allege that this

prolonged institutionalization caused them to suffer

physical and psychological regression.

Plaintiff DRNY is an organization that advocates for

the rights of New Yorkers with developmental disabilities.

It is a Protection and Advocacy System authorized

under federal law to “pursue legal, administrative, and

other appropriate remedies or approaches to ensure the

5a

Appendix A

protection of, and advocacy for, the rights” of individuals

with developmental disabilities. 42 U.S.C. § 15043(a)(2)

(A)(i).

Defendants are OPWDD, the New York State

Department of Health (“DOH”), and their respective

commissioners, Willow Baer and James V. McDonald.

B. Procedural History

On June 16, 2022, Plaintiffs filed suit, bringing claims

under the Medicaid Act, the Americans with Disabilities

Act (“ADA”), and the Rehabilitation Act. They sought

injunctive and declaratory relief on behalf of themselves

and a purported class of similarly situated “[i]ndividuals

who have been, or will be, determined by OPWDD to be

eligible for HCBS Waiver services and certified residential

opportunities, but remain institutionalized due to

Defendants’ failure to deliver these services.” Joint App’x

at 62. Several months later, Plaintiffs filed an amended

complaint removing two plaintiffs, adding two new ones,

and adding a due process claim under 42 U.S.C. § 1983.

On December 1, 2022, Defendants filed a partial

motion to dismiss DRNY’s claims for lack of standing. On

July 5, 2023, eight additional institutionalized individuals

moved to intervene as named plaintiffs.

While both the motion to dismiss and the motion to

intervene were pending, Defendants submitted a letter

to the district court requesting a pre-motion conference

in anticipation of filing another partial motion to dismiss

6a

Appendix A

the Amended Complaint under Rule 12(b)(1). Defendants

argued that the court lacked subject-matter jurisdiction

because the claims of all eight Individual Plaintiffs were

moot. Plaintiffs filed a letter responding that DRNY and

the Individual Plaintiffs had standing and the case was

not moot.

On February 20, 2024, without further briefing or

a hearing, the district court issued a written opinion

dismissing the action and denying the motion to intervene.

II. DISCUSSION

Plaintiffs argue that the district court (1) erred in

dismissing DRNY’s claims for lack of standing; (2) erred

in dismissing the Individual Plaintiffs’ claims as moot

based on pre-motion letters; and (3) abused its discretion

in denying the motion of additional proposed plaintiffs to

intervene.

A.

Standing

DRNY claims to have “congressionally authorized

representational standing.” DRNY Br. at 16. It argues

that Congress “unequivocally bestowed representational

standing” on DRNY to sue in its own name on behalf of

individuals with disabilities under the Developmental

Disabilities Assistance and Bill of Rights Act of 1975 and

the Protection and Advocacy System for Individuals with

Mental Illness Act. Id. at 2, 10. Supreme Court precedent

forecloses this argument.

7a

Appendix A

1.

Legal Standards

“On appeal from a district court’s dismissal for lack of

subject-matter jurisdiction, we review factual findings for

clear error and legal conclusions de novo.” Avon Nursing

& Rehab. v. Becerra, 995 F.3d 305, 310-11 (2d Cir. 2021)

(quotation marks omitted). That includes “questions of

standing.” Conn. Citizens Def. League, Inc. v. Lamont, 6

F.4th 439, 444 (2d Cir. 2021).

The federal judicial power extends only to the

resolution of “Cases” and “Controversies.” U.S. Const.

art. III, § 2. “For there to be a case or controversy under

Article III, the plaintiff must have a personal stake in

the case—in other words, standing.” TransUnion LLC

v. Ramirez, 594 U.S. 413, 423, 141 S. Ct. 2190, 210 L. Ed.

2d 568 (2021) (quotation marks omitted).

To establish standing, a plaintiff must show “(i) that

she has suffered or likely will suffer an injury in fact,

(ii) that the injury likely was caused or will be caused

by the defendant, and (iii) that the injury likely would be

redressed by the requested judicial relief.” FDA v. All.

for Hippocratic Med., 602 U.S. 367, 380, 144 S. Ct. 1540,

219 L. Ed. 2d 121 (2024).

An organization “may have standing in one of

two ways: by establishing so-called ‘associational’

or ‘representational’ standing to sue on behalf of its

members, or by establishing that it was directly injured as

8a

Appendix A

an organization.” Conn. Parents Union v. Russell-Tucker,

8 F.4th 167, 172 (2d Cir. 2021).1

2.

Application

a.

DRNY’s Theory of Standing

DRNY argues that it has standing because Congress

granted it the authority to “stand in the shoes” of

individuals with disabilities. DRNY Br. at 7. Under the

Developmental Disabilities Assistance and Bill of Rights

Act (“DD Act”), states accepting federal funds to provide

services for individuals with developmental disabilities

are required to have “a system to protect and advocate

the rights of individuals with developmental disabilities.”

1. In Hunt v. Washington State Apple Adver tising

Commission, the Supreme Court articulated a three-part test

for associational standing. 432 U.S. 333, 343, 97 S. Ct. 2434, 53

L. Ed. 2d 383 (1977). “[A]n association has standing to bring suit

on behalf of its members when: (a) its members would otherwise

have standing to sue in their own right; (b) the interests it seeks

to protect are germane to the organization’s purpose; and (c)

neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.” Id. The Court

also stated that an organization need not have “members” in the

“traditional . . . sense”; it is sufficient to have a “constituency”

with “the indicia of membership in an organization.” Id. at 344.

We have thus “recognized that—assuming the other criteria for

associational standing are met—non-membership organizations

may sue in a representative capacity when they function effectively

as a membership organization.” Disability Advocs., Inc. v. N.Y.

Coal. for Quality Assisted Living, Inc., 675 F.3d 149, 157 (2d Cir.

2012) (cleaned up).

9a

Appendix A

42 U.S.C. § 15043(a)(1). Those Protection and Advocacy

(“P&A”) Systems are vested with the “authority” to

“pursue legal, administrative, and other appropriate

remedies or approaches to ensure the protection of, and

advocacy for, the rights of such individuals.” Id. § 15043(a)

(2)(A)-(A)(i). That includes “bringing a suit on behalf

of individuals with developmental disabilities against a

State, or an agency or instrumentality of a State.” Id.

§ 15044(b)(1).

Like the DD Act, the Protection and Advocacy for

Individuals with Mental Illness Act (“PAIMI Act”)

empowers P&A Systems to “pursue administrative, legal,

and other appropriate remedies to ensure the protection

of individuals with mental illness” and “the enforcement

of the Constitution and Federal and State statutes.”

42 U.S.C. §§ 10805(a)(1)(B), 10801(b)(2)(A). The PAIMI

Act also gives P&A Systems the authority to “pursue

administrative, legal, and other remedies on behalf of an

individual.” Id. § 10805(a)(1)(C).

The federal regulations implementing the PAIMI

Act permit allotments to “be used to pay the otherwise

allowable costs incurred by a P&A system in bringing

lawsuits in its own right to redress incidents of abuse

or neglect, discrimination, and other rights violations

impacting on individuals with mental illness.” 42 C.F.R.

§ 51.6(f).

DRNY, a not-for-profit corporation, was “designated

as New York State’s P&A System and Client Assistance

Program on June 1, 2013.” DRNY Br. at 2 (citing N.Y.

10a

Appendix A

Exec. Law § 558(b)). As the P&A System for New York,

DRNY receives “eight federal grants that require [it]

to protect and advance the rights of individuals with

disabilities.” Id.

DRNY thus argues that Congress has bestowed

“representational standing” on it as a P&A System

under the plain language of the governing statutes

and regulations. In other words, because Congress has

specifically authorized DRNY to bring suit in its own name

on behalf of people with disabilities, it maintains that it

has satisfied the constitutional requirements for standing.

b.

Discussion

DRNY does not claim to have direct standing and it

expressly disclaims reliance on associational standing. 2

It also does not argue that it is the “next friend” of

the Individual Plaintiffs. 3 And its novel theory of

2. DRNY does not argue that it has associational standing,

so we do not reach that issue here. But to the extent that DRNY

brings claims under 42 U.S.C. § 1983, “[i]t is the law of this Circuit

that an organization does not have standing to assert the rights

of its members in a case brought under 42 U.S.C. § 1983.” Nnebe

v. Daus, 644 F.3d 147, 156 (2d Cir. 2011); see also Conn. Citizens

Def. League, 6 F.4th at 447 (holding that an organization lacked

standing to pursue a preliminary injunction because it “brought

this case under 42 U.S.C. § 1983”); Aguayo v. Richardson, 473

F.2d 1090, 1099 (2d Cir. 1973).

3. Such an argument is thus forfeited. In any event, the

Individual Plaintiffs do not assert that they are unable to “appear

on [their] own behalf to prosecute the action.” Whitmore v.

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Appendix A

“congressionally authorized representational standing”

is squarely foreclosed by Supreme Court precedent.

“Congress cannot erase A rticle III’s standing

requirements by statutorily granting the right to sue to a

plaintiff who would not otherwise have standing.” Spokeo,

Inc. v. Robins, 578 U.S. 330, 339, 136 S. Ct. 1540, 194 L.

Ed. 2d 635 (2016) (cleaned up). Congressional authorization

by statute “does not relieve courts of their responsibility

to independently decide whether a plaintiff has suffered a

concrete harm under Article III.” TransUnion, 594 U.S.

at 426. There is an “important difference” between “a

plaintiff’s statutory cause of action to sue a defendant over

the defendant’s violation of federal law” and “a plaintiff’s

suffering concrete harm because of the defendant’s

violation of federal law.” Id. at 426-27. Concluding that

“Congress could freely authorize unharmed plaintiffs

to sue defendants who violate federal law” would “flout

constitutional text, history, and precedent,” “violate

Article III,” and “infringe on the Executive Branch’s

Article II authority.” Id. at 428-29.4

Arkansas, 495 U.S. 149, 164, 110 S. Ct. 1717, 109 L. Ed. 2d 135

(1990). To the contrary, several of them assert claims on behalf

of themselves and all others similarly situated. Moreover, those

who do not assert their own claims already appear through a

next friend. The concurrence’s suggestion that Congress could

bestow next-friend status on DRNY is thus not only incorrect,

but irrelevant. See post at 25-26.

4. The concurrence asserts that the “text, context, and

history of DRNY’s authorizing statutes make plain that Congress

intended to authorize DRNY to assert representational standing.”

Post at 33. But that is beside the point because Congress cannot

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Appendix A

DRN Y a rg ues t hat t he Supreme Cou r t ha s

“unequivocally held that representational standing can

exist based on particular relationships authorized by

Congress.” DRNY Br. at 8 (citing United Food & Com.

Workers Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544,

557, 116 S. Ct. 1529, 134 L. Ed. 2d 758 (1996)). But United

Food did not create a new species of standing; it addressed

a question of associational standing—i.e., “whether

Congress has the constitutional authority to alter the third

prong of the associational standing enquiry” under Hunt

v. Washington State Apple Advertising Commission. See

United Food, 517 U.S. at 548. The Court held that while

the first two prongs of the Hunt test are “constitutional

and absolute” in nature, the third—whether the asserted

claim or requested relief requires individual member

participation—is “prudential and malleable by Congress.”

Id. at 551. So a union had associational standing to sue on

behalf of its members under the Worker Adjustment and

Retraining Notification Act when the union had already

established that its “members would have had standing to

sue on their own (the first prong)” and “that the interests

the union sought to protect were germane to its purpose

(the second prong).” Id. at 553.

grant Article III standing. In any case, it is not clear that Congress

intended for a P&A System to sue in a representative capacity. The

DD Act states only that a P&A System can bring “suit on behalf of

individuals with developmental disabilities.” 42 U.S.C. § 15044(b)

(1). That is consistent with a P&A System’s ability to bring claims

as a legal advocate for its constituents, and it does not necessarily

authorize the System to act as a representational plaintiff.

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Appendix A

DR N Y a l s o c o n t e n d s t h a t C o n g r e s s m a y

constitutionally delegate authority to a private entity, as

it does to governmental agencies. This too is misguided.

As an example, DRNY points to the fact that the

General Counsel of the Equal Employment Opportunity

Commission (“EEOC”) is authorized to conduct litigation

on behalf of the EEOC. And the concurrence similarly

suggests that DRNY has “statutory representational

standing” analogous to the EEOC’s litigation authority

when it “seek[s] back pay on behalf of victims.” Post at

28. But the General Counsel of the EEOC is an Officer

of the United States, who is appointed by the President

and confirmed by the Senate. See 42 U.S.C. § 2000e-4(b)

(1). DRNY, by contrast, is a private organization whose

employees are not democratically accountable public

officials. 5 DRNY’s reliance on federal agency analogs is

misplaced.

In limited circumstances, the Supreme Court has

acknowledged the “right of litigants to bring actions on

behalf of third parties.” Powers v. Ohio, 499 U.S. 400,

410-11, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). But

5. And unlike the Federal Trade Commission, Congress did

not authorize DRNY to “commence, defend, or intervene in, and

supervise . . . litigation . . . in its own name by any of its attorneys.”

15 U.S.C. § 56(a)(1)(B). Congress’s grant of authority to P&A

Systems to “pursue legal, administrative, and other appropriate

remedies or approaches to ensure the protection of, and advocacy

for, the rights of” individuals with disabilities does not convey the

same standing as federal agencies that can assert the sovereign’s

injuries and rights. 42 U.S.C. § 15043(a)(2)(A)(i).

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Appendix A

even in such instances, the litigant “must have suffered

an injury in fact, thus giving him or her a sufficiently

concrete interest in the outcome.” Id. at 411 (quotation

marks omitted). DRNY alleges no such injury. Moreover,

the Supreme Court has cautioned that a nominal agency

relationship between a principal and purported agent

is insufficient to satisfy Article III, because “[a]gency

requires more than mere authorization to assert a

particular interest.” Hollingsworth v. Perry, 570 U.S.

693, 713, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (2013). Here,

concluding that DRNY has standing based on its theory

of “congressionally authorized representational standing”

would issue a “private part[y] who otherwise lack[s]

standing a ticket to the federal courthouse.” Id. at 715.

Congress cannot legislate away Article III’s injury-infact requirement by conferring statutory representative

status on a private party.6

6. The concurrence explains that “standing doctrine is not a

box-checking exercise,” post at 1, but then goes too far in suggesting

that we must embrace “congressionally authorized representational

standing” because it might have some connection to “principles

we can derive from the history and tradition of representational

standing,” id. at 40. Although history and tradition can be useful for

identifying harms that may qualify as concrete injuries, the inquiry

is “not an open-ended invitation for federal courts to loosen Article

III based on contemporary, evolving beliefs about what kinds of suits

should be heard in federal courts.” TransUnion, 594 U.S. at 424-25.

We also note that while several Justices have acknowledged

the “need for greater doctrinal coherence” in third-party standing

doctrine, they have advised that “federal courts should take care to

apply [the doctrine’s] limitations conscientiously” in the meantime.

Trump v. CASA, Inc., 145 S. Ct. 2540, 2565-66, 222 L. Ed. 2d 930

(2025) (Alito, J., concurring) (quotation marks omitted).

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Appendix A

B. Mootness

The Individual Plaintiffs argue that the district court

erred in dismissing their claims on mootness grounds

based on pre-motion letters. We agree. District courts

generally should not dismiss a case without providing the

opportunity to be heard unless a jurisdictional defect is

obvious. Here, the Individual Plaintiffs’ claims do not on

their face appear obviously moot.

1.

Legal Standards

As noted above, “[o]n appeal from a district court’s

dismissal for lack of subject-matter jurisdiction, we review

factual findings for clear error and legal conclusions

de novo,” Avon Nursing & Rehab., 995 F.3d at 310-11

(quotation marks omitted), including “questions of . . .

mootness,” Conn. Citizens Def. League, 6 F.4th at 444.

In International Code Council, Inc. v. UpCodes Inc.,

we held that a “district court erred by sua sponte and

without notice construing the parties’ pre-motion letters

as briefing on a motion to dismiss and granting that

motion.” 43 F.4th 46, 53 (2d Cir. 2022). We have repeatedly

instructed district courts not to “dismiss an action pending

before it without first providing the adversely affected

party with notice and an opportunity to be heard.” Id.

(quoting McGinty v. New York, 251 F.3d 84, 90 (2d Cir.

2001)). We have also warned that doing so can be grounds

for vacatur. See id.

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Appendix A

Proper notice “gives the adversely affected party

a chance to develop the record to show why dismissal

is improper; it facilitates de novo review of legal

conclusions by ensuring the presence of a fully-developed

record before an appellate court; and, it helps the trial

court avoid the risk that it may have overlooked valid

answers to what it perceives as defects in plaintiff’s

case.” McGinty, 251 F.3d at 90 (citations omitted); see

also Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999)

(explaining that failure to give proper notice “may tend

to produce the very effect the court seeks to avoid—a

waste of judicial resources—by leading to appeals and

remands” (cleaned up)).

To be sure, we have “occasionally affirmed the

granting of dispositive motions without full briefing.”

Kowalchuck v. Metro. Transp. Auth., 94 F.4th 210,

217 (2d Cir. 2024). But “we have done so only when the

issues were predominantly legal and the complaint had

substantial deficiencies, while emphasizing our concerns

with such an approach.” Id. (quotation marks omitted).

Of course, it is also “well established that courts are

obligated” to consider deficiencies in subject-matter

jurisdiction sua sponte. Int’l Code Council, 43 F.4th at

54 n.1 (citing Gonzalez v. Thaler, 565 U.S. 134, 141, 132 S.

Ct. 641, 181 L. Ed. 2d 619 (2012)). Nonetheless, it is “bad

practice” to dismiss a case without providing a plaintiff

the opportunity to be heard “[u]nless it is unmistakably

clear that the court lacks jurisdiction.” Snider, 199 F.3d

at 113.

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Appendix A

2.

Application

The district court erred in dismissing this action based

on three-page pre-motion letters without full briefing or

a hearing. It is not obvious that the Individual Plaintiffs’

claims are moot. On appeal, the Individual Plaintiffs argue

that their claims are not moot for three reasons: (1) the

“inherently transitory” exception to mootness applies,

(2) their claims are “capable of repetition, yet evading

review,” and (3) Defendants voluntarily ceased their

unlawful actions. See Salazar v. King, 822 F.3d 61, 73 (2d

Cir. 2016); Murphy v. Hunt, 455 U.S. 478, 482, 102 S. Ct.

1181, 71 L. Ed. 2d 353 (1982); United States v. W. T. Grant

Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953).

It is not “unmistakably clear” that these arguments

are meritless, so the district court should consider them in

the first instance after giving the parties the opportunity

to brief a motion to dismiss.

C.

Intervention

Finally, the Individual Plaintiffs argue that the

district court erred in denying a motion to intervene filed

by Plaintiffs’ counsel. We disagree and conclude that the

district court did not abuse its discretion in denying the

motion.

1.

Legal Standards

We review a district court’s denial of a motion to

intervene for abuse of discretion. MasterCard Int’l Inc. v.

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Appendix A

Visa Int’l Serv. Ass’n, 471 F.3d 377, 389 (2d Cir. 2006). “A

district court abuses or exceeds the discretion accorded

to it when (1) its decision rests on an error of law (such

as application of the wrong legal principle) or a clearly

erroneous factual finding, or (2) its decision—though

not necessarily the product of a legal error or clearly

erroneous factual finding—cannot be located within the

range of permissible decisions.” Id. at 385 (quotation

marks omitted).

Under Rule 24(a) of the Federal Rules of Civil

Procedure, “[t]o prevail on a motion for intervention as of

right, a movant must (1) timely file an application, (2) show

an interest in the action, (3) demonstrate that the interest

may be impaired by the disposition of the action, and (4)

show that the interest is not protected adequately by the

parties to the action.” Payne v. City of N.Y. (In re N.Y. City

Policing During Summer 2020 Demonstrations), 27 F.4th

792, 799 (2d Cir. 2022) (quotation marks omitted). “[A]

failure to satisfy any one of these four requirements is a

sufficient ground to deny the application.” Floyd v. City of

New York, 770 F.3d 1051, 1057 (2d Cir. 2014) (cleaned up).

Under Rule 24(b), a court may permit anyone to

intervene who on a timely motion “has a claim or defense

that shares with the main action a common question of law

or fact.” Fed. R. Civ. P. 24(b)(1)(B). A district court has

broad discretion in denying permissive intervention, and

“a denial of permissive intervention has virtually never

been reversed.” AT&T Corp. v. Sprint Corp., 407 F.3d 560,

561 (2d Cir. 2005) (cleaned up).

19a

Appendix A

2.

Application

The district court did not abuse its discretion in

denying the motion to intervene as of right and by

permission because the motion was untimely. “The

timeliness requirement is flexible and the decision is one

entrusted to the district judge’s sound discretion.” United

States v. Yonkers Bd. of Educ., 801 F.2d 593, 594-95 (2d

Cir. 1986). Factors that the district court may consider

include: “(a) the length of time the applicant knew or should

have known of its interest before making the motion; (b)

prejudice to existing parties resulting from the applicant’s

delay; (c) prejudice to the applicant if the motion is denied;

and (d) the presence of unusual circumstances militating

for or against a finding of timeliness.” MasterCard Int’l,

471 F.3d at 390 (cleaned up).

Here, the district court considered the circumstances

of the case and found that the motion to intervene was

untimely. The motion was filed over a year after the lawsuit

began. Moreover, “Plaintiffs’ counsel waited long after it

was apparent that Defendants would continue their efforts

to place [the Individual Plaintiffs], and, as such, plaintiffs

would receive the very relief they sought, and their claims

would become moot.” T.C. v. N.Y. State Dep’t of Health,

No. 22-cv-5045, 2024 U.S. Dist. LEXIS 28684, 2024 WL

689503, at *9 (S.D.N.Y. Feb. 20, 2024). The district court

reasoned:

More than a year ago, Plaintiffs filed the

Amended Complaint and removed two of the

original plaintiffs because they had been

20a

Appendix A

placed in community residences, even before

Plaintiffs filed their motion for a preliminary

injunction requesting prompt placement for

each individual plaintiff. Shortly after the Court

denied the motion for a preliminary injunction,

Defendants reported finding placements for

several more plaintiffs. Yet Plaintiffs’ counsel

waited five months after that status report to

seek intervention. The motion is not timely.

Id. (citations omitted). In short, the proposed intervenors

were on notice of their interest in the case long before

moving to intervene. That untimeliness is sufficient to

deny the motion to intervene. See Floyd, 770 F.3d at 1057.7

III. CONCLUSION

For the foregoing reasons, we affirm the judgment

of the district court dismissing the claims of DRNY for

lack of standing and denying the motion to intervene.

We vacate the judgment of the district court dismissing

the Individual Plaintiffs’ claims as moot and remand for

further proceedings.

7. Although we discern no abuse of discretion in the district

court’s denial of the motion to intervene, we note that the same

analysis may not apply to a renewed motion to intervene in light

of our decision to remand on the issue of mootness.

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Appendix A

Myrna P érez , Circuit Judge, concurring in part and

dissenting in part:

Congress authorized DRNY to bring lawsuits on

behalf of its constituents, New Yorkers with developmental

disabilities and mental illnesses, to protect their rights.

The Court today holds that authorization unconstitutional

by inventing a new limit on Article III standing not

explained by the Constitution’s limitation of federal

jurisdiction to “Cases” and “Controversies.” The majority

opinion downplays this extraordinary arrogation of

Congress’s power to the courts by focusing on whether

DRNY’s theory of standing fits into one of a few discrete

doctrinal categories that DRNY never argued apply to

this case, knocking down a strawman of the Court’s own

creation. I respectfully dissent from Section II.A of the

majority opinion affirming the dismissal of DRNY’s claims

for lack of standing.

Article III standing doctrine is not a box-checking

exercise but a set of principles that “implements ‘the

Framers’ concept of the proper—and properly limited—

role of the courts in a democratic society.’” Diamond

Alternative Energy, LLC v. EPA, 145 S. Ct. 2121, 2133, 222

L. Ed. 2d 370 (2025) (quoting FDA v. All. for Hippocratic

Med., 602 U.S. 367, 380, 144 S. Ct. 1540, 219 L. Ed. 2d

121 (2024); in turn quoting John G. Roberts, Article III

Limits on Statutory Standing, 42 Duke L. J. 1219, 1220

(1993)). Those principles indirectly constrain Congress

in extreme cases, such as where Congress has enacted

a statute that calls upon courts to exceed the judicial

power vested therein by the Constitution. But we should

22a

Appendix A

be hesitant to take this shield against judicial overreach

and use it as a sword to cut away at democratically enacted

legislation. The majority opinion’s misreading of Supreme

Court precedent, rote application of standing doctrine as

a checklist, and failure to take seriously the separationof-powers principles underlying standing doctrine, have

led it down the wrong path.

I.

In this case, DRN Y asserts representational

standing—that is, standing to seek redress for harms

suffered by its constituents, even though DRNY does

not claim that it directly suffered harm. DRNY does not

assert associational standing, a theory of representational

standing commonly invoked by similar organizations, but

instead bases its theory of standing in the powers granted

to and duties imposed on it by statute, as a Protection

and Advocacy (“P&A”) system for New Yorkers with

developmental disabilities and mental illnesses.

To determine whether DRNY can assert standing

as authorized by Congress consistent with Article

III, the majority opinion ought to have answered

three broad questions. First, in what circumstances is

representational standing consistent with Article III,

and is it limited to a few discrete doctrinal categories

like associational and “next friend” standing? Second,

what power does Congress have, if any, to create and

recognize relationships that give rise to representational

standing, and what are the constitutional limits on that

power? Third, has Congress exercised that power here,

consistent with the Constitution?

23a

Appendix A

Instead, the majority opinion assumes, without

analysis, that Congress has no role to play in articulating

the relationships that can support representational

standing, that the courts alone are the supreme federal

lawmakers in this area, and that a few discrete doctrinal

categories exclusively occupy the field. This view rests on

a surface-level reading of precedent and fails to grapple

with the complex interplay between the legislative and

judicial powers throughout the Supreme Court’s standing

cases. In fact, as explained below, the statutes at issue here

fit comfortably within Congress’s limited, but nonetheless

meaningful, power to shape the standing inquiry within

the boundaries set by Article III.

II.

A ny del i ne at ion of t he scop e a nd l i m it s of

representational standing must begin by situating it

within the broader doctrine of Article III standing. The

standing requirement arises from Article III of the

Constitution, which “confines the jurisdiction of federal

courts to ‘Cases’ and ‘Controversies.’” Diamond, 145 S. Ct.

at 2133 (quoting U.S. Const., art. III, § 2, cl. 1). Standing

is a doctrine of judicial restraint, which “operates ‘to

ensure that federal courts do not exceed their authority as

it has been traditionally understood.’” Faculty, Alumni,

& Students Opposed to Racial Preferences v. N.Y. Univ.

(“FASORP”), 11 F.4th 68, 74-75 (2d Cir. 2021) (quoting SM

Kids, LLC v. Google LLC, 963 F.3d 206, 211 (2d Cir. 2020);

in turn quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338,

136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016)). The Supreme

Court’s standing cases “establish[] that the irreducible

24a

Appendix A

constitutional minimum of standing contains three

elements: injury in fact, causation, and redressability.”

Diamond, 145 S. Ct. at 2133 (quotation marks omitted)

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112

S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). If those elements

are satisfied, the dispute meets the standing requirements

of a justiciable “Case” or “Controversy.”

The Supreme Court has also recognized that before

any given plaintiff may ask a federal court to decide that

dispute, the Constitution requires that she answer another

“basic question—What’s it to you?” Id. (quotation marks

omitted) (quoting All. for Hippocratic Med., 602 U.S.

at 379; in turn quoting Antonin Scalia, The Doctrine of

Standing as an Essential Element of the Separation of

Powers, 17 Suffolk U. L. Rev. 881, 882 (1983)). “In other

words, plaintiffs must show that they possess ‘a “personal

stake” in the dispute’ and are not mere bystanders.” Id.

(quoting All. for Hippocratic Med., 602 U.S. at 379); see

Scalia, supra, at 882 (“The Supreme Court has described

standing as ‘a sufficient stake in an otherwise justiciable

controversy . . . .’” (quoting Sierra Club v. Morton, 405

U.S. 727, 731, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972))).

T he Supreme Cou r t has ex pla ined that this

requirement—that the plaintiff before the court have

a personal stake in a dispute that satisfies the three

prerequisites of standing—serves at least three purposes

in restraining the federal courts. First, it “helps ensure

that courts decide litigants’ legal rights in specific cases

. . . [and] do not opine on legal issues in response to citizens

who might ‘roam the country in search of governmental

25a

Appendix A

wrongdoing.’” All. for Hippocratic Med., 602 U.S. at 379

(quoting Valley Forge Christian Coll. v. Americans United

for Separation of Church & State, Inc., 454 U.S. 464, 487,

102 S. Ct. 752, 70 L. Ed. 2d 700 (1982)). As Alliance for

Hippocratic Medicine illustrates, federal courts are

skeptical of theories that would grant litigants a broad

license to manufacture controversies and challenge vast

swaths of government policies. See id. at 391-92 (rejecting

theory that would “allow doctors to sue in federal court to

challenge almost any policy affecting public health”); id. at

394-95 (rejecting theory that would allow organizations to

“manufacture [their] own standing” to “challenge almost

every federal policy that they dislike”).

Second, these requirements “tend[] to assure that the

legal questions presented to the court will be resolved,

not in the rarified atmosphere of a debating society,

but in a concrete factual context conducive to a realistic

appreciation of the consequences of judicial action.” Id.

(quotation marks omitted) (quoting Valley Forge, 454

U.S. at 472); accord Diamond, 145 S. Ct. at 2133. Put

differently, to decide whether a plaintiff has standing,

“we ask whether it has alleged a personal stake in the

outcome of the controversy, so as to ensure that the dispute

sought to be adjudicated will be presented in an adversary

context and in a form historically viewed as capable of

judicial resolution.” FASORP, 11 F.4th at 74 (quotation

marks omitted and alterations adopted) (quoting Sierra

Club, 405 U.S. at 732).

Third, standing doctrine “protect[s] the ‘autonomy’

of those who are most directly affected so that they can

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decide whether and how to challenge the defendant’s

action.” All. for Hippocratic Med., 602 U.S. at 379-80

(quoting Valley Forge, 454 U.S. at 473).

These limits constrain federal courts in all cases, but

their role in any given case varies based on the character

of the injuries suffered by the plaintiffs before the court

and the parties on whose behalf plaintiffs seek redress.

To fully articulate the limits that these principles impose

on standing, including representational standing, and why

DRNY’s theory fits within those limits, it is helpful to

discuss three categories of cases involving different kinds

of injuries, which I refer to as first-party, representational,

and third-party standing cases.

A.

“First-party” standing—what the majority opinion

calls “direct” standing—is the default in most cases. In

first-party standing cases, the plaintiffs demonstrate that

they possess the requisite “personal stake” by showing

that they personally suffered concrete and particularized

injuries traceable to the defendants and redressable by

the courts. Such standing is often based on harm to one’s

person, property, or economic interests, but “various

intangible harms” have been recognized as sufficient.

TransUnion LLC v. Ramirez, 594 U.S. 413, 417, 141 S. Ct.

2190, 210 L. Ed. 2d 568 (2021) (citing Spokeo, 578 U.S. at

340-41). An organization can assert first-party standing

based on, for example, frustration of its mission (though

DRNY has not done so here). See, e.g., All. for Hippocratic

Med., 602 U.S. at 394-95; Moya v. U.S. Dep’t of Homeland

27a

Appendix A

Sec., 975 F.3d 120, 129-30 (2d Cir. 2020); Centro de la

Comunidad Hispana de Locust Valley v. Town of Oyster

Bay, 868 F.3d 104, 110-11 (2d Cir. 2017).

A plaintiff who has personally experienced the kind

of injury that Article III requires will generally possess a

sufficiently “personal stake” in redressing that injury. The

Supreme Court has even said that, “the general ‘personal

stake’ requirement and the more specific standing

requirements (injury in fact, redressability, and causation)

are flip sides of the same coin” and “simply different

descriptions of the same judicial effort to ensure, in every

case or controversy, ‘that concrete adverseness which

sharpens the presentation of issues upon which the court

so largely depends for illumination.’” Sprint Comm’cns

Co. v. APCC Servs., Inc., 554 U.S. 269, 288, 128 S. Ct.

2531, 171 L. Ed. 2d 424 (2008) (quoting Baker v. Carr,

369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)).

First-party standing is so common that courts sometimes

use shorthand suggesting that first-party standing is the

only kind. See, e.g., All. for Hippocratic Med., 602 U.S.

at 380 (“[A] plaintiff must demonstrate . . . that she has

suffered or likely will suffer an injury in fact . . . .”); Spokeo,

578 U.S. at 339 (“[A] plaintiff must show that he or she

suffered ‘an invasion of a legally protected interest’ . . . .”

(quoting Lujan, 504 U.S. at 560)). But as discussed below,

first-party standing is not the whole story.

B.

“Representational” (or “representative”) standing is a

category distinct from first-party standing. Some courts

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Appendix A

use the term “representational standing” as a synonym for

associational standing, but that is just one of many forms.

See Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 45

L. Ed. 2d 343 (1975); Conn. Parents Union v. RussellTucker, 8 F.4th 167, 172 (2d Cir. 2021). I use the term

“representational standing” in the same sense in which

the Supreme Court used it in United Food & Commer.

Workers Union Local 751 v. Brown Grp. (“UFCW.S. 544,

116 S. Ct. 1529, 134 L. Ed. 2d 758, as a catch-all term

for the many theories under which federal cases may be

brought by plaintiffs who have not personally suffered any

injury, but who sue in a representative capacity to seek

redress for injuries suffered by others. 517 U.S. 544, 557,

116 S. Ct. 1529, 134 L. Ed. 2d 758 (1996); see also Sprint,

554 U.S. at 287 (“[F]ederal courts routinely entertain

suits which will result in relief for parties that are not

themselves directly bringing suit.”).

I n UFC W, t he S up r e me C ou r t r e c og n i z e d

“representational standing” as a subset of standing

doctrine that “rests on the premise that in certain

circumstances, particular relationships (recognized either

by common-law tradition or by statute) are sufficient

to rebut the background presumption (in the statutory

context, about Congress’s intent) that litigants may not

assert the rights of absent third parties.” 517 U.S. at

557 (footnotes omitted). “[R]epresentational standing,

however, does not eliminate or attenuate the constitutional

requirement of a case or controversy.” Warth, 422 U.S.

at 511. In every such case, the plaintiff must allege that

it represents the interests of a party or parties who “are

suffering immediate or threatened injury as a result of

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Appendix A

the challenged action of the sort that would make out a

justiciable case had the [represented parties] themselves

brought suit.” Id.

The Court in UFCW also recognized that “associational

standing,” by which an organization can seek redress for

harm to its members if it satisfies certain requirements,

“is only one strand” of representational standing (again,

one on which DRNY expressly does not rely). 517 U.S.

at 557. To date, neither we nor the Supreme Court have

exhaustively enumerated the relationships that can

support representational standing. See Doe v. Hochul,

139 F.4th 165, 177, 180 (2d Cir. 2025) (noting “we have

long acknowledged several narrow exceptions” to the

first-party standing default, “under which a plaintiff may

invoke the injuries of a third party to establish standing,”

including, but not necessarily limited to, associational and

“next friend” standing). Yes, dicta in some cases implies

that organizations can have standing in only “two ways”—

associational or first-party “organizational” standing. Cf.

N.Y.C.L. Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294

(2d Cir. 2012). But the Supreme Court’s representational

standing cases, discussed below, make clear that phrasing

is hasty shorthand rather than an accurate portrayal of

the doctrine. In fact, associational standing is just one of

several potential answers to the question, “When does an

organization . . . have a personal stake in the outcome of

a litigation such that it is entitled to sue?” FASORP, 11

F.4th at 75.1

1. As the majority opinion notes at 12-13, UFCW itself

addressed the requirements of associational standing, in the

context of claims brought by a labor union, a paradigmatic

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Appendix A

Representational-standing relationships arise from

various sources, as UFCW recognized. Associational

standing, for example, has been elaborated by the courts,

with the canonical test having been articulated in Warth,

422 U.S. at 511, and Hunt v. Washington State Apple

Advertising Commission, 432 U.S. 333, 342-44, 97 S.

Ct. 2434, 53 L. Ed. 2d 383 (1977). Other relationships

are enshrined in federal and state statutes, in more or

less “ancient” traditions of common law and equity, or in

some combination thereof. See, e.g., Brnovich v. DNC, 594

U.S. 647, 665, 141 S. Ct. 2321, 210 L. Ed. 2d 753 (2021)

(holding attorney general had standing to appeal as a

party over objection of other state actors because he was

“authorized to represent the State in any action in federal

court”); Thole v. U.S. Bank N.A., 590 U.S. 538, 543-44,

140 S. Ct. 1615, 207 L. Ed. 2d 85 (2020) (recognizing

“guardians, receivers, and executors” who were “legally

or contractually appointed to represent” injured parties

as exceptions to the usual rule that a plaintiff only has “a

sufficiently concrete interest in the outcome of the issue in

dispute” if they “themselves . . . have suffered an injury in

fact” (quotation marks omitted) (quoting Hollingsworth v.

Perry, 570 U.S. 693, 708, 133 S. Ct. 2652, 186 L. Ed. 2d 768

membership organization. But the Court did not hold that

associational standing is the only theory of representational

standing that may be asserted by any organizational plaintiff; it

acknowledged associational standing as “only one strand” of the

doctrine. Id. at 557. The Court held that the union had standing

“[b]ecause Congress authorized the union to sue for its members’

damages, and because the only impediment to that suit is a general

limitation, judicially fashioned and prudentially imposed.” Id. at

558. As explained below, the same is true in this case.

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Appendix A

(2013))); Sprint, 554 U.S. at 287-88, 290 (holding assignees

had standing even though they were “suing based on

injuries originally suffered by third parties,” and listing

“[t]rustees,” “guardians ad litem,” “receivers,” “assignees

in bankruptcy,” and “executors” among representationalstanding relationships); Vt. Agency of Nat. Res. v. U.S. ex

rel. Stevens, 529 U.S. 765, 773-74, 120 S. Ct. 1858, 146 L.

Ed. 2d 836 (2000) (concluding “the United States’ injury

in fact suffices to confer standing on” a relator, because

False Claims Act effected “partial assignment,” and while

the Court had not “expressly recognized ‘representational

standing’ on the part of assignees,” it had “routinely

entertained their suits . . . and also suits by subrogees, who

have been described as ‘equitable assignees’”); Whitmore

v. Arkansas, 495 U.S. 149, 164-65, 110 S. Ct. 1717, 109 L.

Ed. 2d 135 (1990) (recognizing “next friend” standing in

accordance with “the ancient tradition of the doctrine,” but

suggesting it also rests on “congressional authorization”);

Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 32426, 100 S. Ct. 1698, 64 L. Ed. 2d 319 (1980) (holding EEOC

is authorized to “sue in its own name” to seek “relief,

such as hiring or reinstatement, constructive seniority,

or damages for backpay or benefits denied, on behalf of

discrimination victims”); see also UFCW, 517 U.S. at 557

n.8 (listing EEOC’s standing to enforce Title VII and

Secretary of Labor’s standing to enforce the Fair Labor

Standards Act as examples of representational standing).

These cases show that in a variety of circumstances,

not limited to associational and “next friend” standing,

Article III permits an uninjured plaintiff to invoke

federal jurisdiction to seek redress for harm suffered by

another, as long as they have a relationship of sufficient

constitutional pedigree.

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Appendix A

C.

“Third-party standing,” on the other hand, refers to

a doctrine that has long been invoked in a subset of firstparty standing cases, though its status as part of Article

III standing doctrine is now in doubt. In third-party

standing cases, “the litigants themselves still must have

suffered an injury in fact.” All. for Hippocratic Med., 602

U.S. at 393 n.5 (quoting Hollingsworth, 570 U.S. at 708).

But historically, where a plaintiff’s first-party injury was

caused by an action that somehow more directly injured a

third party, the “so-called third-party standing bar” has

sometimes blocked the suit, even though the plaintiff’s

injury otherwise met Article III requirements. See N.Y.

State Citizens’ Coal. for Child. v. Poole, 922 F.3d 69, 7475 (2d Cir. 2019). The third-party standing bar could be

overcome where the plaintiff and third party had a close

relationship and there existed some barrier to the third

party asserting their own rights. Id. at 75. But thirdparty standing, and its “relationship-plus-obstacle” test, 2

2. Curtis Bradley & Ernest Young, Unpacking Third-Party

Standing, 131 Yale L. J. 1, 3 (2021). Some commentators have used

the phrase “third-party standing” as an umbrella term for various

situations in which the plaintiffs before the court are not the only

ones who were harmed by the defendants’ challenged actions,

including where the plaintiffs (1) were not harmed at all but sue as

representatives, (2) were personally harmed by an action that also

infringes upon rights held by third parties, and (3) were personally

harmed in effectively the same way as third parties. See id. at 6. I

use “representational standing” to refer to the first category, and

when I use the term “third-party standing,” I generally refer to

the second category, where the existence of an injured third party

sometimes bars assertions of first-party standing.

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Appendix A

have been understood as part of “a ‘prudential’ branch

of standing, a doctrine not derived from Article III,”

which is on uncertain footing since the Supreme Court’s

decision in Lexmark International, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 126, 134 S. Ct. 1377, 188

L. Ed. 2d 392 (2014).

As those same commentators have noted, the third category

above is traditionally the realm of aggregate litigation tools like

multi-district litigation (“MDL”) and class action practice. In my

view, while those mechanisms may raise interesting due process

questions, “third-party standing” is generally a non-issue. MDLs

are generally made up of many suits brought by plaintiffs who

each have standing. And in a class action, “[s]tanding is satisfied so

long as at least one named plaintiff can demonstrate the requisite

injury.” Hyland v. Navient Corp., 48 F.4th 110, 117-18 & n.1 (2d

Cir. 2022). The standing of absent class members, even in the most

muscular conception of standing’s role in class actions, comes

into play only in the predominance inquiry required to certify a

damages class, if ever. See Lab’y Corp. of America Holdings v.

Davis, 145 S. Ct. 1608, 1611, 221 L. Ed. 2d 948 (2025) (Kavanaugh,

J., dissenting) (“Rule 23 authorizes damages class certification

only when common questions of law and fact predominate. A

damages class consisting of both injured and uninjured members

does not meet that requirement.”); see also Denney v. Deutsche

Bank AG, 443 F.3d 253, 264 (2d Cir. 2006) (stating, in a putative

Rule 23(b)(3) class action, that “no class may be certified that

contains members lacking Article III standing”); Hyland, 48 F.4th

at 118 n.1 (clarifying that that “single sentence in Denney” does

not heighten the requirements of Article III standing for class

actions). However, even if one believes a third-party standing

bar continues to apply, and one reconceptualizes class actions

as raising a potential third-party standing issue, the problem is

already taken care of by existing Rule 23 requirements, which

“tend to be considerably more rigorous than their family relations

in the traditional law of third-party standing.” Bradley & Young,

supra, at 71-72.

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Appendix A

In Lexmark the Supreme Court addressed “three

broad principles” that made up traditional “prudential

standing” doctrine and recognized that at least two

of those principles were misnamed as such. Id. at 126

(quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S.

1, 12, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004)). First was

“the rule barring adjudication of generalized grievances,”

which is no longer considered prudential but now is part of

the constitutional case-or-controversy requirement. Id. at

126, 127 n.3 (quotation marks omitted). Second was “the

requirement that a plaintiff’s complaint fall within the

zone of interests protected by the law invoked,” which is

now not about “standing” at all, but is simply a principle

of interpretation used to discern on whom a given law

bestows a cause of action (or a defense). Id. at 126-27 &

n.3. And third was “the general prohibition on a litigant’s

raising another person’s legal rights,” which had been

applied to limit third-party standing. Id. at 126, 127 n.3

(quotation marks omitted). While the Court reserved

the question of third-party standing’s “proper place in

the standing firmament,” id., it “cast doubt on the entire

doctrine of prudential standing,” leaving “considerable

uncertainty as to whether the third-party standing rule

continues to apply.” Poole, 922 F.3d at 75.

To the extent there is a need for “greater doctrinal

coherence,” it may be found by conceptualizing any thirdparty standing “bar” as resting on the same principles

as representational standing, derived from Article III’s

“personal stake” requirement. See Trump v. CASA, Inc.,

145 S. Ct. 2540, 2565, 222 L. Ed. 2d 930 (2025) (Alito, J.,

concurring) (quoting Curtis Bradley & Ernest Young,

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Appendix A

Unpacking Third-Party Standing, 131 Yale L. J. 1, 7

(2021)). As the Supreme Court said in UFCW, almost

two decades before Lexmark, “the general prohibition

on a litigant’s raising another person’s legal rights” is

best understood not as a prudential bar to claims by

plaintiffs with first-party standing, but as a “background

presumption” against representational standing, which

can be rebutted by “particular relationships (recognized

either by common-law tradition or by statute).” UFCW, 517

U.S. at 557. Under this conception of standing, where an

uninjured plaintiff seeks redress for an Article III injury

suffered by a third party, the representative plaintiff

presumptively lacks the required personal stake and bears

the burden to establish a relationship that allows him to

assert the absent party’s rights. But where a plaintiff is

personally injured in a manner that meets the minimum

requirements of Article III (and has a cause of action),

that plaintiff asserts his own right to seek redress and

enjoys a strong presumption that his injury gives him “a

sufficiently concrete interest in the outcome of the issue in

dispute.” All. for Hippocratic Med., 602 U.S. at 393 n.5. In

such a case, a federal court “cannot apply its independent

policy judgment” to “limit [that] cause of action . . . merely

because ‘prudence’ dictates.” Lexmark, 572 U.S. at 128.

That is not to say the concept of third-party standing

has no place in standing doctrine after Lexmark.

Extreme assertions of first-party standing by plaintiffs

with too tenuous a “personal stake” could undermine the

separation of powers and distort the judicial role just as

excessive indulgence of representational standing could.

Thus, a court might still deny standing to first-party

36a

Appendix A

plaintiffs who assert the power to “roam the country in

search of governmental wrongdoing,” whose lawsuits

threaten “the ‘autonomy’ of those who are most directly

affected,” and who leave the courts without “a realistic

appreciation of the consequences of judicial action.” All.

for Hippocratic Med., 602 U.S. at 379. For example, in the

2020 abortion-rights case June Medical Services L.L.C. v.

Russo, when four Justices of the Supreme Court said they

would apply the third-party standing bar to the provider

plaintiffs, they rooted their arguments in concerns about

the autonomy of those who might seek abortions, and

whether the providers would present issues in a way that

would adequately represent the third-parties’ interests.

591 U.S. 299, 401-03, 140 S. Ct. 2103, 207 L. Ed. 2d 566

(2020) (Alito, J., dissenting) (arguing that a “potential

conflict of interest between the plaintiff and the third

party” precluded “third-party standing,” though such

arguments are foreclosed by precedent in that context

even under a more restrictive view of the third-party

standing bar), overruled in part by, Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 142 S. Ct. 2228, 213

L. Ed. 2d 545 (2022). And in Alliance for Hippocratic

Medicine, the recent challenge to federal approval of the

medication mifepristone, the Supreme Court only briefly

mentioned the third-party standing bar explicitly, but

the Court identified similar concerns in rejecting the

plaintiffs’ claims to first-party standing. The plaintiffs

there asserted just the sort of standing theories that, if

they were accepted, would undermine the judicial role by

allowing doctors and organizations to roam the country,

ginning up standing to challenge any government policy

they disliked. See All. for Hippocratic Med., 602 U.S. at

391, 395.

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Appendix A

Outside of those edge cases, however, the Supreme

Court has seemingly abandoned any general rule against

injured parties seeking redress for their injuries by

invoking the rights of others, if one ever really existed.

This term, in Diamond, the Court held that fuel producers

had standing to challenge regulations of automakers

without analyzing whether they had any relationship or

whether the automakers could sue in their own right. 145

S. Ct. at 2134-38. That case echoed one from a hundred

years earlier, where the Court allowed a private school

to challenge a law that regulated parents, again without

discussing whether the parents should assert their own

rights. See Pierce v. Soc’y of Sisters, 268 U.S. 510, 45

S. Ct. 571, 69 L. Ed. 1070 (1925). In the meantime, the

Court has allowed all manner of private challenges to

purported structural constitutional violations. Before

Lexmark, even when such structural challenges were

asserted defensively, the Court felt compelled to explain

how individuals asserting rights rooted in federalism

were actually asserting their own first-party rights,

not generally dispersed third-party rights. See Bond v.

United States, 564 U.S. 211, 220-24, 131 S. Ct. 2355, 180

L. Ed. 2d 269 (2011). But more recently, the Court did not

pause to consider who—other than the President—has an

individual right to demand greater Presidential control

over executive branch officials. See, e.g., Seila Law LLC

v. CFPB, 591 U.S. 197, 210-11, 140 S. Ct. 2183, 207 L. Ed.

2d 494 (2020).

In sum, I have no dispute with those who claim the

prudential form of third-party standing doctrine has long

been applied inconsistently. See, e.g., Bradley & Young,

38a

Appendix A

supra, at 3. To the extent some third-party standing cases

can be reframed in terms of constitutional principles, I

agree they are the same principles of judicial restraint

that counsel against representational standing in some—

but not all—cases. Representational standing is an

appropriate exception to the default of first-party standing

that brings more disputes within the scope of Article III,

though it is reserved for certain relationships “recognized

either by common-law tradition or by statute.” UFCW,

517 U.S. at 557. Third-party standing, on the other hand,

just describes a common variant of first-party standing

that courts usually permit and only selectively police and

which, properly understood, is rarely if ever relevant to

jurisdiction to redress first-party injuries. Turning more

attention to Article III’s “personal stake” requirement,

as the principle that constrains both representational

standing and “third-party” standing, may focus courts on

reining in extreme assertions of standing that threaten

to distort the judicial role.

III.

The body of standing precedent discussed above,

while still just a sliver of the full picture, offers a

wider aperture than the majority opinion does through

which to appreciate the limited but important role of

representational standing in defining the judicial power,

including Congress’s role in shaping it at the margins.

The Supreme Court’s standing cases make plain that

representational standing is permitted in a range of cases

outside of associational and “next-friend” standing, and

it is distinct from the “third-party” standing doctrine

39a

Appendix A

that once “barred” certain first-party plaintiffs’ causes of

action if they could not meet a “relationship-plus-obstacle”

test. Bradley & Young, supra, at 3. With those issues out

of the way, it is clear that Congress has a role to play

in creating and recognizing relationships that support

representational standing. Relators, next friends, and

federal executive branch agencies, among others, rely

on federal statutes to one degree or another for their

capacity to invoke federal jurisdiction. Many others rely

on state legislative enactments that, one would think, do

not confer higher status under Article III than federal

law. The question, however, is what limits the Constitution

places on Congress’s power to recognize representationalstanding relationships.

This power, like all of Congress’s powers, is limited,

since it “is settled that Congress cannot erase Article III’s

standing requirements by statutorily granting the right to

sue to a plaintiff who would not otherwise have standing.”

Spokeo, 578 U.S. at 339 (quoting Raines v. Byrd, 521 U.S.

811, 820 n.3, 117 S. Ct. 2312, 138 L. Ed. 2d 849 (1997)).

And those limits must arise from a source other than the

three irreducible minima of standing—injury in fact,

causation, and redressability—because representational

standing, by definition, comes into play only where those

requirements are satisfied, but by a third party’s injury.

The natural source of limits on this power is thus Article

III’s “personal stake” requirement. The Supreme Court

has not squarely addressed the precise limits imposed

by the “personal stake” requirement outside of the three

black-letter elements of standing above, but the Court has

elaborated on its content in recent cases like Diamond

40a

Appendix A

and Alliance for Hippocratic Medicine. Further, the

Court has begun to articulate the limits of Congressional

power over standing in cases like Spokeo and TransUnion.

The principles articulated in those cases should guide

any evaluation of claims to representational standing, as

explained below.

A.

The Supreme Court’s recent decisions on Congress’s

role with respect to the injury-in-fact requirement offer

a useful frame for considering Congress’s role in shaping

representational standing. In Spokeo, the Supreme

Court held that “Congress’ role in identifying and

elevating intangible harms does not mean that a plaintiff

automatically satisfies the injury-in-fact requirement

whenever a statute grants a person a statutory right and

purports to authorize that person to sue to vindicate that

right.” 578 U.S. at 341. But while the majority opinion

reads Spokeo to say that Congress therefore has no

role whatsoever to play in informing courts’ Article III

standing inquiry, that is simply not what the Supreme

Court said. True, Congress cannot authorize private

plaintiffs to invoke federal jurisdiction to redress injuries

that are not “concrete” or that represent “generalized

grievances.” Id. at 341 (concreteness); TransUnion, 594

U.S. at 417 (same); cf. Hollingsworth, 570 U.S. at 715

(holding state legislature cannot authorize a private

party to redress a “generalized grievance”). Any injury

complained of in federal court “must be ‘de facto’; that

is, it must actually exist.” Spokeo, 578 U.S. at 340. But if

that threshold is met, Congress has power to “elevate to

41a

Appendix A

the status of legally cognizable injuries concrete, de facto

injuries that were previously inadequate in law,” and “to

define injuries and articulate chains of causation that

will give rise to a case or controversy where none existed

before.” Id. at 341 (alteration adopted and emphasis added)

(quoting Lujan, 504 U.S. at 578; then quoting id. at 580

(Kennedy, J., concurring)).

The same basic framework can be applied to

representational standing, where Congress confronts

the “personal stake” requirement generally, rather than

“injury in fact.” Congress cannot authorize just anyone

to assert the rights of anyone else in federal court.

Hollingsworth, 570 U.S. at 710 (rejecting proposition

that “mere authorization to represent a third party’s

interests is sufficient to confer Article III standing on

private parties with no injury of their own”). As the Spokeo

Court might have put it, their relationship “must actually

exist,” which here means the plaintiff must actually have

a “personal stake” in the dispute and “cannot be a mere

bystander.” All. for Hippocratic Med., 602 U.S. at 379

(quoting TransUnion, 594 U.S. at 423). Such a relationship

ensures that the representational plaintiff is not simply

“roam[ing] the country in search of governmental

wrongdoing,” will faithfully represent the injured party’s

rights and give the courts “a realistic appreciation of the

consequences of judicial action,” and will not infringe on

“the ‘autonomy’ of those who are most directly affected.”

Id. (quoting Valley Forge, 454 U.S. at 472, 473, 487). But

where such a relationship exists—including where it has

been created by Congress and endowed with features

that traditionally support representational standing—the

logic of Spokeo tells us that Congress can recognize that

relationship as a basis for representational standing.

42a

Appendix A

B.

The next question a court must answer, in applying

the Spokeo framework to representational standing claims

rooted in statute, is when a relationship is sufficiently real

and meaningful to merit recognition. This inquiry may be

guided to some extent by the long “history and tradition”

in which Congressionally authorized representational

standing follows. Supreme Court precedent on the injuryin-fact requirement again teaches that, at a minimum,

Congress has power to recognize Article III standing

in situations that have “a close historical or common-law

analogue.” TransUnion, 594 U.S. at 424 (“[H]istory and

tradition offer a meaningful guide to the types of cases

that Article III empowers federal courts to consider.”

(quotation marks omitted) (quoting Sprint, 554 U.S. at

274)).

Importantly, when courts apply this “history and

tradition” approach across a range of constitutional

adjudications, they seek a “historical analogue, not a

historical twin,” N.Y. State Rifle & Pistol Ass’n, Inc. v.

Bruen, 597 U.S. 1, 30, 142 S. Ct. 2111, 213 L. Ed. 2d 387

(2022). “[T]he appropriate analysis involves considering

whether the challenged regulation is consistent with the

principles that underpin our regulatory tradition, United

States v. Rahimi, 602 U.S. 680, 692, 144 S. Ct. 1889, 219

L. Ed. 2d 351 (2024) (emphasis added). Careful review

of the relevant tradition here reveals that the Supreme

Court’s representational standing doctrine follows the

principles of the “personal stake” requirement laid out

in the Court’s recent cases: ensuring courts only address

43a

Appendix A

specific cases with real stakes, which promise vigorous

adversary presentation of important issues, and protect

the autonomy of those most affected.

Next-friend standing, for example, follows in an

“ancient tradition,” but the Supreme Court has expressed

doubt about “whether a ‘next friend’ may ever invoke

the jurisdiction of a federal court absent congressional

authorization.” Whitmore, 495 U.S. at 164-65. Whether

the “next friend” relationship owes its status under Article

III to recognition by the common law or by Congress,

one of its fundamental requirements is that “the ‘next

friend’ must be truly dedicated to the best interests of

the person on whose behalf he seeks to litigate.” Id. at

163. This requirement, along with the requirement that

the injured party be unable to appear himself, ensures

that next-friend standing cannot “be availed of, as matter

of course, by intruders or uninvited meddlers, styling

themselves next friends.” Id. at 164 (quoting U.S. ex rel.

Bryant v. Houston, 273 F. 915, 916 (2d Cir. 1921)). But

next-friend standing does not require a pre-existing

“significant relationship” between the plaintiff and the

injured party. See id. at 163-64 (leaving this question

open); Doe, 139 F.4th at 174 (holding that this is not a

requirement). In other words, it requires only that the

court satisfy itself that the plaintiff has a personal stake

in the outcome of the lawsuit sufficient to safeguard the

interests discussed above.

The various categories of representational-standing

relationships that are recognized primarily by state

law, some of which are also recognized by Congress,

44a

Appendix A

function similarly. These relationships, many of which

are helpfully cataloged in Federal Rule of Civil Procedure

17, are generally characterized either by duties to the

represented parties (such as care and loyalty)—in the

cases of trustees, executors, administrators, conservators,

committees, guardians, and other fiduciaries—or by

consensual exchange in which the injured party can

bargain for the duties he wants owed to him—in the

case of assignees, bailees, and others. See Fed. R. Civ.

P. 17(a)(1)(A)-(F), (c)(1); see also Fed. R. Civ. P. 17(a)(1)

(G) (authorizing “a party authorized by statute” to sue in

their own name for the benefit of another).

While many of the foregoing relationships are primarily

creatures of state law, analogous relationships have also

been created from whole cloth by Congress and recognized

as conferring representational standing. See Vt. Agency,

529 U.S. at 765-66 (construing the relationship between

the government and a False Claims Act relator, created

by Congress, as conferring representational standing

because the Act effected a “partial assignment”). The

Supreme Court has recognized that these relationships,

in which a representative plaintiff is appointed either by

the injured party or by operation of law, substitute for the

“concrete interest in the outcome of the issue in dispute”

that usually comes from personally suffering injury.

Thole, 590 U.S. at 543 (quoting Hollingsworth, 570 U.S.

at 708); Sprint, 554 U.S. at 288-89 (discussing common

law recognition that assignees have a sufficient “personal

stake” to give rise to “concrete adverseness”). 3

3. It is no answer to say that such parties do not assert

representational standing because they are not really parties at

all but simply litigate on behalf of the “real party in interest.”

45a

Appendix A

The major category of representational standing

created by the courts follows a similar pattern. At the

outset of the Hunt test for associational standing, the

organization must demonstrate either that it has actual

members, or that its constituency bears sufficient “indicia

of membership,” such as voting rights and/or the power

of the purse. 432 U.S. at 344-45. But even where that

requirement is met, indicating that the organization will

likely faithfully represent its members as a general matter,

the court must assure itself that other requirements are

met in the specific case. The suit must be “germane”

to the organization’s purpose and its members must be

injured in a way that would otherwise confer standing,

id. at 343, which assures that cases arise in “concrete

factual context[s] conductive to a realistic appreciation of

the consequences of judicial action,” and the organization

is not merely “roam[ing] the country in search of

governmental wrongdoing.” All. for Hippocratic Med.,

602 U.S. at 379 (quoting Valley Forge, 454 U.S. at 487).

And the suit must be able to proceed without requiring

the participation of the injured members, Hunt, 432 U.S.

at 343, which protects those members’ “autonomy.” All.

for Hippocratic Med., 602 U.S. at 379 (quotation marks

omitted).4

See Fed. R. Civ. P. 17; Sprint, 554 U.S. at 304 n.2 (Roberts, C.J.,

dissenting). “[T]his is just a legal fiction,” and “[i]n practice” the

representative party “initiates the suit, asserts the [represented

party’s] rights, and controls the litigation,” and may even take

actions “against the [represented party’s] own expressed wishes.”

Bradley & Young, supra, at 63-64 (discussing specific context of

next friends litigating on behalf of incarcerated people).

4. The Supreme Court has said that this third requirement

of Hunt is “prudential,” rather than constitutional, UFCW, 517

46a

Appendix A

Lastly, a common and vitally important form of

Congressionally recognized representational standing

arises when Congress authorizes federal agencies to

seek redress on behalf of specific individuals. Examples

include the authorities of the EEOC to seek back pay on

behalf of discrimination victims, and of the Secretary of

Labor to seek unpaid wages. See Gen. Tel. Co., 446 U.S.

at 324; 29 U.S.C. § 216(c). See generally UFCW, 517 U.S.

at 557 n.8 (listing these examples of representationalstanding relationships recognized “by statute”). These

authorities are distinct in important ways from, for

example, other agencies’ authorities to assert the purely

sovereign interest of the United States in the enforcement

of the laws. The distinctions between these authorities

illuminate fundamental principles of, and limits on,

statutory representational standing.

The requirements for governmental standing as a

subset of representational standing depend on the nature

of the injury being asserted. On the one hand, executive

agencies plainly may have standing to enforce federal law,

though they still require Congressional authorization to

assert such representational standing on behalf of the

U.S. at 555. But after Lexmark cast doubt on the entire concept of

prudential standing, the Supreme Court has suggested this third

prong may be constitutional in nature after all. See Students for

Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,

600 U.S. 181, 199, 201, 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023)

(noting “SFFA satisfies the three-part test for organizational

standing” from Hunt, and “[b]ecause SFFA complies with the

standing requirements demanded of organizational plaintiffs in

Hunt, its obligations under Article III are satisfied”).

47a

Appendix A

United States. See Dir., Off. of Workers’ Comp. Programs

v. Newport News Shipbuilding & Dry Dock Co., 514 U.S.

122, 129, 115 S. Ct. 1278, 131 L. Ed. 2d 160 (1995) (“[W]hen

an agency in its governmental capacity is meant to have

standing, Congress says so.” (emphasis in original)).

However, because an injury to that purely sovereign

interest would be a mere “generalized grievance” in the

hands of a private party, the Supreme Court has suggested

that a plaintiff must be a true “agent[] of the people” in

order to assert it. Hollingsworth, 570 U.S. at 706, 712.

Otherwise, the plaintiff will “have no ‘personal stake’ in

defending its enforcement that is distinguishable from

the general interest of every citizen.” Id. at 707; see also,

e.g., Myriam E. Gilles, Representational Standing: U.S.

ex rel. Stevens and the Future of Public Law Litigation,

89 Calif. L. Rev. 315, 353-54 (2001) (noting that “[t]he

agency concept alone is suited to the pursuit of sovereign

interests” which “are analogous to private law claims that

are ‘personal’ and non-assignable”).

The presumption recognized in Hollingsworth—that

the government has standing and private parties do

not, when purely sovereign interests are at stake—is

flipped where the government seeks to redress concrete,

particularized harms to private persons. In such cases, the

government cannot rely solely on its sovereign standing to

prevent and punish violations of its laws, since “standing is

not dispensed in gross; rather, plaintiffs must demonstrate

standing for each claim that they press and for each form

of relief that they seek.” TransUnion, 594 U.S. at 431.

And “ordinarily the United States cannot sue simply to

advance the private interests of some third party.” Wright

48a

Appendix A

& Miller, Fed. Prac. & Proc. Juris. § 3531.11 (3d ed., May

2025 update); see United States v. San Jacinto Tin Co., 125

U.S. 273, 286, 8 S. Ct. 850, 31 L. Ed. 747 (1888) (holding

that a suit by the government “must fail” if it “has actually

been brought for the benefit of some third person, and . . .

no obligation to the general public exists which requires

the United States to bring it”).

This background presumption against government

standing, however, may be overcome where the statute

is structured to give the agency a sufficient stake in the

litigation—that is, where Congress creates a relationship

by statute that it can then recognize as a basis for

representational standing. For example, Title VII makes

the EEOC responsive to the interests of the injured

parties in a way that addresses many values protected

by the “personal stake” requirement, including autonomy

and concrete adverseness. See Gen. Tel. Co., 446 U.S. at

326 (noting that when the EEOC acts “at the behest of

and for the benefit of specific individuals, it acts also to

vindicate the public interest,” and that “the aggrieved

person may bring his own action” if the EEOC does

not act quickly and “may also intervene in the EEOC’s

enforcement action”); All. for Hippocratic Med., 602 U.S.

at 379. And the Fair Labor Standards Act, among other

things, can be understood to effect a partial assignment

of a private claim to the Secretary—the mirror image

of the assignment effected by the False Claims Act—by

providing that residual recoveries not paid out, “shall be

covered into the Treasury of the United States.” 29 U.S.C.

§ 216(c); see Vt. Agency, 529 U.S. at 773. Those grants

of authority within the Executive branch resemble the

49a

Appendix A

conditions under which Congress assigns representational

standing to private parties, as next friends, assignees,

and otherwise.

The lesson of all this is, again, that representational

standing has been recognized in a great variety of factual

and legal settings. Some such relationships are created and

recognized by statute, including by state legislatures and

Congress. There is no reason to believe representational

standing functions as a multiple-choice menu from which

a prospective plaintiff must choose, rather than a set of

principles rooted in Article III that guide courts even

when they are asked to apply the doctrine to what appears

to be a new fact pattern. And at a minimum, where

Congress creates a relationship that gives a representative

party a sufficient “personal stake” in litigation on behalf

of another and gives that representative standing to sue,

it follows in a long “history and tradition” full of close

analogues that put its legislation on firm constitutional

footing. TransUnion, 594 U.S. at 424. 5

5. None of this is to say that courts, particularly inferior

federal courts, should be free to recognize new forms of

representational standing based on free-floating application of

Article III’s “personal stake” requirement, in situations where

Congress has not authorized it. Contra Maj. Op. at 15 n.6. As the

Supreme Court observed in UFCW, representational-standing

relationships may be “recognized either by common-law tradition

or by statute,” which places Congress and the courts in distinct

roles. 417 U.S. at 557 (footnotes omitted). Congress is free to

deviate from common-law defaults by statute, within the limits

set by Article III, and therefore can create new representational

standing schemes from whole cloth, like the one DRNY invokes.

See, e.g., Jesinoski v. Countrywide Home Loans, Inc., 574 U.S. 259,

50a

Appendix A

IV.

Applying the foregoing principles to the facts before

us, I see no basis in the relevant statutes or in the

Constitution to deny DRNY standing, and the majority

opinion certainly has not supplied one. Congress created

a detailed framework to govern P&A systems like DRNY

and, having endowed those entities with the prerequisites

of representational standing, recognized that Article III

allows them to bring suit in federal court on behalf of their

constituents. That authorization deserves the same strong

“presumption of constitutionality” that almost all federal

statutes enjoy, and because it does not clearly conflict with

Article III, it should have been upheld. United States v.

Carolene Prods. Co., 304 U.S. 144, 148, 58 S. Ct. 778, 82

L. Ed. 1234 (1938).

A.

The text, context, and history of DRNY’s authorizing

statutes make plain that Congress intended to authorize

264, 135 S. Ct. 790, 190 L. Ed. 2d 650 (2015) (“[T]his is simply a case

in which statutory law modifies common-law practice.”). Federal

courts, on the other hand, must at least act more incrementally in

elaborating the common law, and generally we are constrained to

apply the law as established by Congress and the states. See, e.g.,

Smith v. United States, 30 U.S. 292, 300, 8 L. Ed. 130 (1831) (“The

legislature may establish new rules of evidence, in derogation of

the common law, but the judicial power is limited to the rule laid

down.”). This is all the more reason why the majority opinion’s

fabrication of a new judge-made limit on Article III standing in

this case is an act of judicial overreach, not judicial restraint.

51a

Appendix A

DRNY to assert representational standing. As the majority

opinion notes, there are two related statutory schemes at

issue here: the Developmental Disability Assistance and

Bill of Rights Act of 1975 (“DD Act”), and the Protection

and Advocacy of Individuals with Mental Illness Act

of 1985 (“PAIMI Act”). In both, Congress enacted

detailed factual findings concerning the vulnerability of

individuals with developmental disabilities and mental

illnesses, and the inadequacy of then-existing systems

to protect their rights. See 42 U.S.C. § 15001(a) (finding

that “(4) individuals with developmental disabilities

often encounter discrimination in the provision of

critical services” and “(5) individuals with developmental

disabilities are at greater risk than the general population

of abuse, neglect, financial and sexual exploitation, and

the violation of their legal and human rights”); id. at

§ 10801(a) (finding that “(1) individuals with mental illness

are vulnerable to abuse and serious injury” and “(4) State

systems for monitoring compliance with respect to the

rights of individuals with mental illness vary widely and

are frequently inadequate”). Each statute had as one of

its major goals the creation of P&A systems to “protect

and advocate the rights of such individuals through

activities to ensure the enforcement of the Constitution

and Federal and State statutes.” Id. § 10801(b)(2)(A); see

id. § 15001(b) (“The purpose of this subchapter is to assure

that individuals with developmental disabilities and their

families participate in the design of and have access to

. . . (2) protection and advocacy systems in each State to

protect the legal and human rights of individuals with

developmental disabilities”).

52a

Appendix A

Both statutes pursued this goal in similar ways.

The DD Act granted P&A systems authority to access

facilities and records, investigate abuse and neglect, and

“pursue legal, administrative, and other appropriate

remedies . . . to ensure the protection of, and advocacy for,

the rights of” people with developmental disabilities. 42

U.S.C. § 15043(a)(2)(A)(i), (B), (H), (I), (J). This includes

authority to “bring[] a suit on behalf of individuals with

developmental disabilities against a State, or an agency or

instrumentality of a State.” Id. § 15044(b)(1). The PAIMI

Act similarly authorizes P&A systems to enforce federal

and state law on behalf of their constituents by granting

access to facility and constituent records, authority to

investigate abuse and neglect, and authority to “pursue

administrative, legal, and other appropriate remedies to

ensure the protection of individuals with mental illness.”

Id. § 10805(a)(1), (3), (4). Again, this includes the authority,

in certain cases, to “institut[e] . . . legal action in a Federal

or State Court on behalf of a[n] individual with mental

illness.” Id. § 10807(a); see also id. § 10805(a)(1)(C).

While these statutes are unambiguous, the legislative

history confirms that Congress intended to confer standing

on P&A systems. When Congress amended and re-enacted

the DD Act in 1993, it considered whether to amend the

statute to more clearly grant P&A systems standing to

sue, and it decided “no statutory fix is necessary.” S. Rep.

103-120, at 39 (1993), as reprinted in 1994 U.S.C.C.A.N.

164, 202. The committee expressly agreed with two district

courts that had already found, in effect, that P&A systems

had representational standing and determined that “the

current statute is clear that P&A systems have standing

53a

Appendix A

to pursue legal remedies to ensure the protection of and

advocacy for the rights of individuals with developmental

disabilities.” Id.; see ACLU v. Clapper, 785 F.3d 787, 819

(2d Cir. 2015) (noting that, even where Congress does not

expressly say so, “Congress is presumed to be aware of

an administrative or judicial interpretation of a statute

and to adopt that interpretation when it reenacts a statute

without change” (quotation marks omitted)). Taken

together, these provisions make clear that Congress

intended to authorize P&A systems, including DRNY, to

bring suit on behalf of their constituents and seek redress

for violations of their rights.

The majority opinion is wrong to suggest that the

statutory language “is consistent with a P&A System’s

ability to bring claims as a legal advocate for its

constituents,” but “not necessarily . . . as a representational

plaintiff.” Maj. Op. at 12 n.4. That reading is unreasonable

because, unlike an agency that owes its entire existence

and all its powers to Congress, like the Federal Trade

Commission, cf. Maj. Op. at 14 n.5, an organization like

DRNY does not need Congress’s permission to provide

legal services to the people on whose behalf it advocates.

If all these provisions meant was that DRNY could act

like a non-profit law firm, then significant pieces of the

statutes would be surplusage. See Fischer v. United

States, 603 U.S. 480, 486, 144 S. Ct. 2176, 219 L. Ed. 2d

911 (2024) (“[W]e must give effect, if possible, to every

clause and word of the statute.” (alteration adopted and

quotation marks omitted)). Where Congress confers quasipublic responsibilities on an entity outside of the federal

government, there is no basis for a magic-words test

54a

Appendix A

requiring Congress to specify that it may sue “in its own

name.” Maj. Op. at 14 n.5. An unambiguous authorization

to sue in federal court on behalf of one’s constituents is

enough.6

To the extent any doubt lingers, other textual features

of these statutes confirm that they authorize DRNY to act

as a representational plaintiff, not merely to offer legal aid.

For example, § 15044(b) provides that when a P&A system

brings “a suit on behalf of individuals with developmental

disabilities against a State” and wins a monetary award,

the P&A system may not use the money it won to pay

“legal contractors or to award personal bonuses.” That

provision would be superfluous if P&A systems were

authorized only to help their constituents bring their own

lawsuits. Similarly, § 10807(a) provides that, while P&A

systems generally must exhaust administrative remedies,

in cases of delay, P&A systems may bypass administrative

6. In contrast, when the Supreme Court rejected an assertion

of statutory representational standing in Thole, the relevant

provisions of ERISA only granted defined-benefit plan participants

“a general cause of action to sue for restoration of plan losses and

other equitable relief,” and did not specifically grant them power to

sue on behalf of others. 590 U.S. at 544 (citing 29 U.S.C. § 1132(a)

(2), (3)); see id. at 564-66 (Sotomayor, J., dissenting) (arguing

that was an appropriate case for representational standing). In

other words, unlike DRNY’s authorizing statutes, ERISA could

reasonably be read as authorizing participants to seek certain

remedies only as necessary to redress harm they suffered

personally. Or at least, the ERISA provisions were not clear

enough to rebut the “background presumption (in the statutory

context, about Congress’s intent)” that disfavors representational

standing in most (but not all) cases. UFCW, 517 U.S. at 557.

55a

Appendix A

procedures and “initat[e] . . . a legal action.” That provision

also makes sense only if P&A systems can sue in their

own right. If P&A systems could act only as non-profit law

firms for their constituents, it would be bizarre to create

different administrative exhaustion rules for similarly

situated individuals based only on which lawyer they

happen to hire.

B.

Finally, given that Congress unambiguously authorized

representational standing, the last question is whether

Congress exceeded its power in doing so. In my view,

three aspects of DRNY’s authorizing statutes ensure that

DRNY has a “personal stake” in litigating these claims

on behalf of its constituents, and bring its assertion of

standing comfortably within the long and varied traditions

of other forms of representational standing. Accordingly,

I would conclude that DRNY’s assertion of standing here

is consistent with Article III.

First, the statutes contain numerous features that

ensure DRNY represents its constituents’ interests

zealously and faithfully. Not only is that DRNY’s entire

reason for existing and for being granted P&A status

under the statute, but the statutes also contain built-in

accountability mechanisms. Similar to many government

officers, DRNY can be removed from its position by

democratically accountable officials for certain types of

“good cause.” 42 U.S.C. § 15043(a)(4)(A). DRNY must

56a

Appendix A

report regularly to the federal government and the

public on its priorities, activities, accomplishments, and

expenditures. Id. § 15043(a)(2)(C)-(D); id. § 10805(a)

(7)-(8). DRNY must establish grievance procedures for

constituents. Id. § 15043(a)(2)(E); id. § 10805(a)(9). And

DRNY must establish governing bodies made up of

members “who broadly represent or are knowledgeable

about the needs of” its constituents. Id. § 15044(a)(1); id.

§ 10805(c)(1)(B). Through these and other provisions,

“P&As are statutorily constructed to be responsive to the

population[s] that they are charged with serving.” Kelsey

McCowan Heilman, Comment, The Rights of Others:

Protection and Advocacy Organizations’ Associational

Standing to Sue, 157 U. Pa. L. Rev. 237, 264 (2008).

Second, DRNY is also given a financial stake in its

litigation “on behalf of individuals with developmental

disabilities,” because while it may not use the monetary

awards it wins for certain proscribed purposes, it is not

prohibited from retaining those funds for other purposes.

42 U.S.C. § 15044(b)(1)-(2). This feature grants DRNY

something like “a partial assignment” of its constituents’

claims, Vt. Agency, 529 U.S. at 773, similar to the stake

the government has when it sues for unpaid wages and can,

in certain cases, retain some proceeds, 29 U.S.C. § 216(c).

Third, as discussed above, the statutes contain

extensive findings, made and enacted into law by

Congress, about why representational litigation by P&A

systems would better protect constituents’ autonomy than

57a

Appendix A

available alternatives, including first-party litigation.

Congress found, even though constituents of P&A systems

and their families could in theory hire their own lawyers

to vindicate their rights, that those mechanisms had

historically been inadequate to the task.

True, DRNY’s relationship to its constituents does

not take exactly the same shape as that of a fiduciary, a

“next friend,” a traditional membership association, an

assignee, or a government agency. And it may be that

some of its constituents have more access to the courts

than individuals traditionally represented by next friends

and other representatives like guardians. But DRNY’s

theory of standing shares important attributes with each

of those traditions, and standing doctrine does not require

an exact match to one of a pre-set list of options.

When applying the “history and tradition” approach,

which has been imported into standing doctrine by

TransUnion, 594 U.S. at 424, we look for a “historical

analogue,” not a “historical twin,” and we ask whether the

modern regulation is consistent with the “principles that

underpin our regulatory tradition.” Rahimi, 602 U.S. at

692, 701. As discussed above, the principles we can derive

from the history and tradition of representational standing

are essentially those set out in the Supreme Court’s recent

cases elaborating the “personal stake” requirement.

Functionally, these statutes make DRNY loyal and

accountable to its constituents and narrowly focused on

serving those constituents. Those features ensure that

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Appendix A

DRNY is not simply “roam[ing] the country in search of

governmental wrongdoing,” All. for Hippocratic Med.,

602 U.S. at 379 (quoting Valley Forge, 454 U.S. at 487),

and will present disputes “with the concrete adverseness

which sharpens the presentation of issues upon which the

court so largely depends for illumination.” Sprint, 554

U.S. at 288. And, in light of Congress’s extensive findings

to the contrary, we have no basis to find that recognizing

DRNY’s standing will disserve “the ‘autonomy’ of those

who are most directly affected.” All. for Hippocratic Med.,

602 U.S. at 379 (quoting Valley Forge, 454 U.S. at 473).7

In sum, while we have an independent duty to ensure

we have jurisdiction, we are ill-suited to second-guess

Congress’s conclusion that DRNY’s constituents have been

denied autonomy in the past, and that their autonomy is

better served though representation by an organization

purpose-built to advance their interests faithfully and

protect their rights vigorously, including in federal court.

7. In my view, as discussed in this section, DRNY derives

its authorization to sue on behalf of its constituents, and its

representational standing to do so, from Congress by statute.

However, to the extent standing doctrine may also serve separationof-powers values in part by protecting the prerogatives of the

executive branch, it is worth noting (as the majority opinion does

at 10) that the relevant regulations reinforce DRNY’s authorization

to “bring[] lawsuits in its own right to redress” injuries suffered

by its constituents. 42 C.F.R. § 51.6(f); cf. TransUnion, 594 U.S. at

429 (“A regime where Congress could freely authorize unharmed

plaintiffs to sue . . . also would infringe on the Executive Branch’s

Article II authority.” (emphasis omitted)).

59a

Appendix A

Nothing in Article III prohibits Congress from making

that judgment, and the majority is wrong to substitute

its views for those of the people’s elected representatives.

*  *  *

For the foregoing reasons, while I join most of the

majority opinion, I respectfully dissent from its decision

that DRNY lacks Article III standing.

60a

Appendix B

APPENDIX B — MEMORANDUM

OPINION AND

ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF

NEW YORK, FILED FEBRUARY 20, 2024

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

No. 22-cv-5045 (MKV)

T.C. et al.,

Plaintiffs,

-vNEW YORK STATE DEPARTMENT

OF HEALTH et al.,

Defendants.

Filed February 20, 2024

MEMORANDUM OPINION & ORDER

GRANTING MOTION TO DISMISS AND

DENYING MOTION TO INTERVENE

MARY KAY VYSKOCIL, District Judge:

T h is ca se is about i nd iv idua ls w it h va r ious

developmental and intellectual disabilities who face long

delays in moving from restrictive institutional facilities to

community-based residential settings. Plaintiffs’ counsel

61a

Appendix B

originally filed this case on behalf of eight individuals,

an organization named Disability Rights New York

(“DRNY”), and a purported class of individuals alleged

to be similarly situated to the eight original individual

plaintiffs [ECF No. 1]. Within a few months of the filing

of the original complaint, two of the individual plaintiffs

were placed in community residences, and Plaintiffs

filed their operative pleading, the Amended Complaint,

which removed the plaintiffs who had been placed,

added two new individual plaintiffs, and added claims of

constitutional violations [ECF No. 35 (“AC”)].

Plaintiffs then moved for a preliminary injunction

requiring Defendants—the New York State Department

of Health, Mary Bassett in her official capacity as

Commissioner of DOH, the New York State Office for

People with Developmental Disabilities (“OPWDD”), and

Kerri Neifeld in her official capacity as Commissioner of

OPWDD—“promptly” to place the individual plaintiffs

in community residences [ECF Nos. 37, 38, 39, 40].

Defendants responded that they were working diligently

to secure appropriate placements (and had found a

placement for one of the plaintiffs since the filing of the

Amended Complaint), but each individual presented a

unique and complex set of behavioral challenges, clinical

needs, and geographical preferences, and, in many

instances, community residences had concluded they could

not safely serve these individuals alongside their other

residents [ECF No. 46, 47, 48, 49, 50, 51, 52, 53, 54].

The Court denied Plaintiffs’ motion for a preliminary

injunction [ECF No. 71 (“Op.”)]. The Court concluded that

62a

Appendix B

Plaintiffs had failed to show a likelihood of success on the

merits of any of their claims. Moreover, Plaintiffs had

failed to identify specific relief that would remedy their

alleged injuries. Nevertheless, the Court set a relatively

short deadline for Defendants to file an affidavit detailing

what further steps they had taken to place the remaining

individual plaintiffs, and Defendants reported significant

progress [ECF No. 72-1].

In the interim, Defendants filed a motion to dismiss

most, but not all, of Plaintiffs’ claims [ECF Nos. 67, 68,

70]. As relevant here, Defendants argued that DRNY

lacks standing. Plaintiffs opposed that motion [ECF No.

69 (“Pl. Opp.”)].

Thereafter, approximately thirteen months after

they initiated this case, Plaintiffs’ counsel filed a motion

to intervene, arguing that “the addition of the Proposed

Plaintiffs is needed to protect the interests of all class

members” [ECF No. 77, 78 (“Pl. Mot.”) at 2, 79, 80]. By

that time, Defendants had secured community-based

placements for nine of the ten individual plaintiffs who

had appeared in this action since its inception. See Pl. Mot.

at 1. Plaintiffs’ counsel proposed to allow intervention as

plaintiffs by eight new individuals, with diverse diagnoses,

requirements, and preferences, who were awaiting

placements in community residences at the time Plaintiffs’

counsel filed the motion.

Now, as Plainti ffs concede, Defendants have

“successfully placed” all of the individual plaintiffs and

many of the proposed intervenors [ECF No. 97 (“Pl.

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January 2024 Letter”)]. Defendants now seek dismissal

of this entire action for lack of subject matter jurisdiction

[ECF Nos. 96, 98]. Plaintiffs’ counsel argue that the Court

should respond to the mootness of the individual plaintiffs’

claims by granting intervention. For the reasons set

forth below, this case is DISMISSED, and the motion to

intervene is DENIED.

I.

BACKGROUND

A.

Plaintiffs Initiate this Action with Eight

Individual Plaintiffs and DRNY

Plaintiffs initiated this action by filing the original

complaint [ECF No. 1 (“OC”)]. The original complaint

named as plaintiffs eight individuals who have various

developmental and intellectual disabilities, among other

issues, and who, when the original complaint was filed,

were living in institutions. OC ¶¶ 2, 11–18. Several of

these plaintiffs appeared through a next friend.1 The

other individual plaintiffs asserted their claims on behalf

of themselves and a purported class of similarly situated

individuals. An organization called Disability Rights New

York (“DRNY”), “a Protection and Advocacy system,” was

also named as a plaintiff. OC ¶ 20.

Plaintiffs alleged that Defendants had determined

each individual plaintiff was entitled to move from the

1. The Court granted Plaintiffs’ unopposed motion for the

individuals with disabilities and their next friends to proceed

anonymously [ECF Nos. 30, 42].

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institution where he or she was living to a less restrictive,

community-based Certified Residential Opportunity

(“CRO”) and to receive support services funded by the

Medicaid Home and Community Based Services Waiver

(“HCBS Waiver”). OC ¶¶ 1–4, 91; see also AC ¶¶ 1–4.

Plaintiffs further alleged that they had remained in

institutions long after they were deemed entitled to move

to community residences. See OC ¶¶ 6, 88–89, 128–129,

132, 159, 163, 185–189, 218, 243, 260, 279. According to

Plaintiffs, there were plenty of vacancies in community

residences, but Defendants had failed to furnish the

services to which the individual plaintiffs were entitled

because, Plaintiffs alleged, Defendants had failed to

develop an adequate system for placing these individuals.

See OC ¶¶ 6, 319. Notably, after treating physicians

recommend an individual for a CRO, individuals at

OPWDD attempt to identify an appropriate placement

and make referrals, and then a provider of residential

services, whether private or state operated, must agree

to accept the individual. See OC ¶¶ 6, 319.

Defendants filed a pre-motion letter seeking leave to

file a motion to partially dismiss the original complaint,

pursuant to Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6), on the grounds that DRNY lacks standing

and various claims were facially deficient [ECF No. 31].

Plaintiffs first filed a letter responding to arguments in

Defendants’ pre-motion letter [ECF No. 32]. Plaintiffs

then filed another letter informing the Court of their

intention to file an amended complaint as of right [ECF

No. 34].

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Appendix B

B. The Amended Complaint

Plaintiffs filed the Amended Complaint [ECF No.

35 (“AC”)]. The Amended Complaint removed two of

the individual plaintiffs named in the original complaint

because they had been placed in appropriate CROs. It

added two new individual plaintiffs and constitutional

claims. The Amended Complaint asserts nine causes of

action.

First, Plaintiffs alleged that Defendants’ failures

to provide the plaintiffs with Certified Residential

Opportunities and HSBC Waiver services (which cannot

be provided to individuals in institutions) violate the

“reasonable promptness” provision of the Medicaid Act, 42

U.S.C. § 1396a(a)(8), and 42 U.S.C. § 1983. AC ¶¶ 384–389.

Second, Plaintiffs alleged that Defendants’ failures to

make community residences and HSBC Waiver services

available as an alternative to continued institutionalization

violates the “freedom of choice” provision of the Medicaid

Act, 42 U.S.C. § 1396n(c)(2)(C), and Section 1983. AC

¶¶ 390–393. Third, Plaintiffs alleged that they were

being denied the right to an administrative hearing under

the Medicaid Act, 42 U.S.C. § 1396a(a)(3). AC ¶¶ 394–

398. Fourth, Plaintiffs alleged that they were being

discriminated against and unnecessarily segregated in

violation of Title II of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12132, and its “integration mandate,”

28 C.F.R. § 35.130(d). AC ¶¶ 399–408. Fifth, Plaintiffs

alleged that Defendants’ methods of administering the

HSBC Waiver program are discriminatory, in violation

of the ADA, 42 U.S.C. § 12132. AC ¶¶ 409–415. Sixth,

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Appendix B

Plaintiffs alleged violation of the inclusion mandate of the

Rehabilitation Act, 29 U.S.C. § 794, and its implementing

regulations. AC ¶¶ 415–424. Seventh, Plaintiffs alleged

discriminatory methods of administration in violation of

the Rehabilitation Act, 29 U.S.C. § 794. AC ¶¶ 425–431.

Eighth, Plaintiffs alleged that they have a constitutionally

protected interest in Medicaid-funded community

residences and HSBC Waiver services and that Defendants

were denying Plaintiffs a hearing on the denial of those

benefits in violation of the Due Process Clause of the

Fourteenth Amendment. AC ¶¶ 432–438. Ninth, Plaintiffs

alleged that, because they lived in institutions while they

awaited placements in community residences, Defendants

were violating Plaintiffs’ constitutional rights to be free

from bodily restraint. AC ¶¶ 439–445.

C.

Plaintiff’s Motion for Emergency Relief

Four months after they initiated this action,

Plaintiffs filed a motion for a preliminary injunction

[ECF Nos. 37, 38, 39, 40]. Plaintiffs requested “an order

requiring Defendants promptly to secure placement in

a community-based certified residential opportunity for

Plaintiffs” [ECF No. 37]. In opposing Plaintiffs’ motion

for a preliminary injunction, Defendants explained that

they were working diligently to place each individual

plaintiff in an appropriate community-based residence.

They explained, however, that each individual plaintiff

presented a unique and complex set of behavioral

challenges, clinical needs, and geographical preferences.

Defendants explained that, in many instances, residential

providers had concluded that they could not safely serve

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Appendix B

the individual plaintiffs alongside their other residents.

Defendants included detailed affidavits setting forth their

efforts to place each of the individual plaintiffs named in

the Amended Complaint [ECF No. 46, 47, 48, 49, 50, 51,

52, 53, 54].

The Court held a hearing on Plaintiffs’ motion for

a preliminary injunction [ECF No. 97-1 (“Tr.”)]. On the

record at the hearing, Plaintiffs acknowledged that two

of the plaintiffs named in the original complaint were

removed from the lawsuit because “they were placed in

suitable community-based residences.” Tr. at 11:7–18.

Plaintiffs also acknowledged that, as of the date of the

hearing, one of the plaintiffs named in the Amended

Complaint had been accepted for placement in a CRO.

Tr. at 11:24–12:2. Furthermore, Plaintiffs acknowledged

that “the defendants [were] endeavoring to meet their

obligations” to place each individual plaintiff in a CRO but

stated that Plaintiffs’ “position [was] that the law requires

outcomes and not merely efforts.” Tr. at 12:18–22.

At the hearing, the Court repeatedly pressed Plaintiffs

on what relief they sought. Plaintiffs ultimately requested

an order directing Defendants to place each individual

plaintiff in a CRO within 14 days, or, if Defendants were

unable to do so, to “come back to this Court to detail their

efforts to try to obtain such a placement for them and to

detail why” each plaintiff was “not appropriate for any

of the” residential providers operated directly by the

State. Tr. at 17:9–19; see Tr. at 10:7–17; 15:13–25; 17:6–8).

Plaintiffs argued that “OPWDD has to be the provider

of last resort.” Tr. at 22:8–9. In other words, Plaintiffs

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Appendix B

contended that if no voluntary provider of residential

services would agree to accept a particular individual,

one of the State-operated residential providers should

be compelled to accept the individual, even if that facility

represented that it could not safely serve the individual

together with its other residents. Tr. at 22:8–9.

The Court denied Plaintiffs’ motion for a preliminary

injunction [ECF No. 71 (“Op.”)]. The Court concluded

that Plaintiffs had failed to show a likelihood of success

on the merits of any of their claims. See Op. at 12.

Nevertheless, the Court set a deadline for Defendants

to file a status report further detailing their efforts to

place the remaining individual plaintiffs in community

residences. See Op. at 1, 21. In response to the Court’s

Order, Defendants reported that: two more plaintiffs

had accepted placements; one plaintiff had declined a

placement he was offered but was pursuing another

potential placement; two plaintiffs were in the process of

being screened for potentially appropriate placements;

Defendants’ ongoing efforts to find a potential placement

for one plaintiff had been unsuccessful; and one plaintiff

had been deemed too unstable for discharge from a

hospital environment [ECF No. 72-1].

D.

Defendants’ Motion To Dismiss

Defendants filed a motion partially to dismiss the

Amended Complaint [ECF Nos. 67, 68 (“Def. MTD”), 70].

Specifically, the motion seeks dismissal of DRNY for lack

of standing. The motion also seeks dismissal of most of

the claims in the Amended Complaint for various reasons.

Plaintiffs opposed the motion to dismiss [ECF No. 69].

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Appendix B

E. The Motion of Plaintiffs’ Counsel To Add

Intervenors

Thereafter, approximately thirteen months after they

initiated this case, Plaintiffs’ counsel filed the pending

motion to intervene [ECF No. 77, 78 (“Pl. Mot.”), 79, 80].

When Plaintiffs’ counsel filed the motion to intervene,

Defendants had secured community-based placements

for nine of the ten individual plaintiffs who have appeared

in this action since it began (all but one of the individual

plaintiffs named in the Amended Complaint). See Pl. Mot.

at 1; Def. Opp. at 2. Plaintiffs’ counsel proposed to allow

intervention as plaintiffs by eight new individuals who

were, at the time Plaintiffs’ counsel filed the motion to

intervene, living in institutions and awaiting placements

in community residences.

Plaintiffs’ counsel seeks intervention as of right and, in

the alternative, by permission. Plaintiffs’ counsel argues

that “[i]ntervention is necessary to protect the interests of

the Proposed Plaintiffs and the class because Defendants

are systematically seeking to moot the claims of the

original named plaintiffs.” Pl. Mot. at 2. Although the

premise of the motion to intervene is that this matter will

proceed as a class action, Plaintiffs have not filed a motion

for class certification. Like the individual plaintiffs named

in the original complaint and the Amended Complaint,

the proposed intervenors have different and complex

diagnoses, clinical needs, behavioral challenges, staffing

requirements, and placement preferences. Defendants

ask the Court to deny intervention as of right and by

permission [ECF No. 84 (“Def. Opp.”)].

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Appendix B

F.

The Placement of All Individual Plaintiffs and

Many Proposed Intervenors

After the motion to intervene was fully submitted,

Defendants placed in a community residence the last

individual plaintiff named in the Amended Complaint.

Defendants therefore filed a letter requesting dismissal

of this entire action for lack of subject matter jurisdiction

[ECF No. 96 (“Def. January 2024 Letter”)]. They argue

that DRNY has lacked standing from the outset and, now,

the claims of all of the individual plaintiffs are moot.

Plaintiffs filed a letter in opposition to Defendants’

request [ECF No. 97 (“Pl. January 2024 Letter”)].

Plaintiffs’ counsel acknowledged that Defendants have

“successfully placed” in an appropriate community

residence every individual plaintiff who has appeared in

this action. Pl. January 2024 Letter at 2. Indeed, Plaintiffs’

counsel acknowledged that “many of the proposed

intervenor Plaintiffs also have been placed or have been

offered placement in the community.” Id. According to

Plaintiffs’ counsel, however, these placements reflect

Defendants’ efforts to moot Plaintiffs’ claims. Id. Plaintiffs’

counsel seeks to proceed with the lawsuit via the claims

of the remaining, unplaced proposed intervenors. Id. at 3.

Defendants filed a letter in response to Plaintiffs’

opposition [ECF No. 98 (“Def. February 2024 Letter”)].

Defendants object to Plaintiffs’ characterization of their

motives for placing the individual plaintiffs and proposed

intervenors in community residences. See Def. February

2024 Letter at 1 n.1. Defendants maintain that they have

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Appendix B

followed their normal processes, continuing efforts to

find appropriate placements that were ongoing before

Plaintiffs brought this suit. See Def. Opp. at 2 (“Named

Plaintiffs have received exactly the relief they requested

through the normal OPWDD placement process”); Def.

February 2024 Letter at 1 n.1.

G. The Discovery Process

The Court specifically directed the parties to proceed

expeditiously with the discovery in this case. See Tr.

at 43:13–18. In one instance, approximately six months

ago, the parties raised a dispute about the scope of the

discovery [ECF No. 74]. The Court ruled: “since Plaintiffs

assert putative class claims, Plaintiffs are entitled to nonburdensome discovery on Defendants’ general practices

relating to individuals in institutional settings who have

been deemed eligible for placements in residential settings

insofar as that information will illuminate whether

Plaintiffs can satisfy the prerequisites of Rule 23 of

the Federal Rules of Civil Procedure” [ECF No. 83]. In

other words, the Court long ago instructed Defendants

to produce the discovery necessary for Plaintiffs to file a

motion for class certification.

Plaintiffs never thereafter suggested that Defendants

were not complying with the Court’s Order or raised

another discovery dispute with the Court. Then, only

after Defendants informed the Court that they had placed

all of the remaining individual plaintiffs and many of the

proposed intervenors, Plaintiffs asserted that Defendants

have failed to produce adequate policy-related discovery.

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Appendix B

Pl. January 2024 Letter at 2. Defendants maintain that

they have complied with the Court’s Order and produced

all required discovery. Def. February 2024 Letter at 3–4.

II. LEGAL STANDARDS

A.

Subject Matter Jurisdiction

Subject matter jurisdiction is a threshold question,

rooted in the case or controversy requirement of Article

III. See All. For Env’t Renewal, Inc. v. Pyramid

Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006). Indeed,

“federal courts have an independent obligation to ensure

that th

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