Standing

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7^th Circuit Court of Appeals

Case Name: The Cornucopia Institute, et al. v. United States Department of Agriculture, et al.

Case No.: 17-2422

Officials: EASTERBROOK and SYKES, Circuit Judges, and BUCKLO, District Judge

Focus: Standing

The National Organic Standards Board, an advisory committee, has 15 members, all appointed by the Secretary of Agriculture. 7 U.S.C. §6518(b), (c). The Board’s principal task is advising the Secretary what belongs on the “National List of approved and prohibited substances that shall be included in the standards for organic production and handling” (7 U.S.C. §6517(a)). See 7 U.S.C. §6518(k)(2).

On appeal plaintiffs have abandoned this line of argument. Instead Marchese and Goodman contend that they suffered the personal loss of being denied a fair opportunity to compete for positions on the Board. Loss of a chance to obtain some benefit can indeed be an injury sufficient to provide standing. Northeastern Florida Chapter of the Associated General Contractors of America v. Jacksonville, 508 U.S. 656, 664–66 (1993). It is therefore possible in principle for someone passed over for appointment to a position to complain that the decision maker used forbidden criteria. See Colorado Environmental Coalition v. Wenker, 353 F.3d 1221 (10th Cir. 2004). But the other elements of standing—causation and redressability—still must be satisfied. See, e.g., Bensman v. United States Forest Service, 408 F.3d 945 (7th Cir. 2005), which holds that ability to show a procedural irregularity (which we assume Marchese and Goodman have done) does not establish standing unless a concrete loss has been caused by that irregularity and could be rectified by a judicial decision.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.