Pharmaceutical Research v. Stuart Williams

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-1731
___________________________
Pharmaceutical Research and Manufacturers of America
lllllllllllllllllllllPlaintiff - Appellant
v.
Stuart T. Williams; Stacey Jassey; Mary Phipps; Andrew Behm; James Bialke;
Amy Paradis; Rabih Nahas; Samantha Schirmer; Kendra Metz, all in their official
capacities as members of the Minnesota Board of Pharmacy
lllllllllllllllllllllDefendants - Appellees
------------------------------
National Association of Manufacturers; Chamber of Commerce of the United
States of America; Pacific Legal Foundation; Goldwater Institute
lllllllllllllllllllllAmici on Behalf of Appellant(s)
T1International; Minnesota #insulin4all; Nicole Smith-Holt; Nathan Loewy;
Cindy Boyd; Abigail Hansmeyer; Mid-Minnesota Legal Aid; National Health Law
Program
lllllllllllllllllllllAmici on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: December 15, 2021
Filed: April 3, 2023
____________
Before SMITH, Chief Judge, GRUENDER and KOBES, Circuit Judges.
____________
SMITH, Chief Judge.
Pharmaceutical Research and Manufacturers of America (PhRMA) appeals the
District of Minnesota’s dismissal order entered in favor of the members of the
Minnesota Board of Pharmacy (Board)1 based on a lack of standing. PhRMA’s
lawsuit alleged a Fifth Amendment Takings Clause claim challenging the Alec Smith
Insulin Affordability Act (Act). The Act, enforced by the Board members, requires,
among other things, that pharmaceutical companies provide certain prescription
medications to qualifying applicants at no cost.
On June 30, 2020, PhRMA filed this suit on behalf of itself and three of its
members—Eli Lilly and Company, Novo Nordisk Inc., and Sanofi—that manufacture
most of the insulin sold in the United States and are subject to the Act. PhRMA
alleged that the Act’s provisions violate the Takings Clause of the Fifth Amendment.2
PhRMA sued the Board members, in their official capacities, under 42 U.S.C. § 1983and Ex Parte Young, 209 U.S. 123 (1908), seeking (1) a declaration that the Act is
unconstitutional, and (2) an injunction barring its enforcement.
1
The Board members are Stuart Williams, Stacey Jassey, Mary Phipps, Andrew
Behm, James Bialke, Amy Paradis, Rabih Nahas, Samantha Schirmer, and Kendra
Metz.
2
PhRMA also argued that at least one of the Act’s exemptions violates the
Commerce Clause. We need not address this claim, as PhRMA concedes the claim
is moot.
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The Board members moved to dismiss for lack of subject matter jurisdiction
and for failure to state a claim upon which relief can be granted. PhRMA moved for
summary judgment and conditional leave to file a supplemental complaint. The
district court granted the Board members’ motion to dismiss for lack of standing,
denied PhRMA’s motion for leave to file a supplemental complaint, denied PhRMA’s
motion for summary judgment as moot, and dismissed the case without prejudice.
This appeal ensued.
I. Background
A. Factual Background
Under the Act, manufacturers must provide insulin for free to Minnesota
residents who meet certain criteria. See Minn. Stat. § 151.74, subdiv. 1(a). This
“[i]nsulin safety net program” consists of two parts: the “Continuing [S]afety [N]et
[P]rogram, id. § 151.74, subdiv. 4, and the “[U]rgent-[N]eed [S]afety [N]et
[P]rogram,” id. § 151.74, subdiv. 2.
Under the Continuing Safety Net Program, manufacturers are mandated to
provide any eligible individual with free insulin products. Manufacturers are tasked
with reviewing applications to determine whether applicants meet the eligibility
criteria. Id. § 151.74, subdiv. 5(a) (“Upon receipt of an application for the
manufacturer's patient assistance program, the manufacturer shall process the
application and determine eligibility.”). The manufacturer must then notify the
applicant within ten business days of its decision. Id. If a manufacturer denies the
products, applicants may appeal to a review panel created by the State’s Board of
Pharmacy. Id. The review panel is empowered to overrule manufacturers with binding
decisions. Id. § 151.74, subdiv. 8.
If a manufacturer determines that an applicant is eligible, it must “provide the
individual with an eligibility statement or other indication that the individual has been
determined eligible for the manufacturer’s patient assistance program.” Id. § 151.74,
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subdiv. 5(b). An individual with an eligibility statement may present it to a pharmacy
to obtain free insulin for up to one year. Id.
A manufacturer must provide an eligible applicant who does not have private
insurance with an eligibility statement. Id. But
[i]f the eligible individual has prescription drug coverage through an
individual or group health plan, the manufacturer may determine that the
individual’s insulin needs are better addressed through the use of the
manufacturer’s co-payment assistance program, in which case, the
manufacturer shall inform the individual and provide the individual with
the necessary coupons to submit to a pharmacy. In no instance shall an
eligible individual be required to pay more than the co-payment amount
specified under subdivision 6, paragraph (e).
Id. § 151.74, subdiv. 5(c).
Once an individual receives a statement of eligibility from the manufacturer,
the individual must submit that statement to the pharmacy. Id. § 151.74, subdiv. 6(a).
“Upon receipt of an individual’s eligibility status, the pharmacy shall submit an order
containing the name of the insulin product and the daily dosage amount as contained
in a valid prescription to the product’s manufacturer.” Id. In turn, the manufacturer
must “send to the pharmacy a 90-day supply of insulin . . . at no charge to the
individual or pharmacy.” Id. § 151.74, subdiv. 6(c). Likewise, “the pharmacy shall
provide the insulin to the individual at no charge to the individual” and “shall not
seek reimbursement for the insulin received from the manufacturer or from any third-
party payer.” Id. § 151.74, subdiv. 6(d). But “[t]he pharmacy may collect a
co-payment from the individual to cover the pharmacy’s costs for processing and
dispensing in an amount not to exceed $50 for each 90-day supply if the insulin is
sent to the pharmacy.” Id. § 151.74, subdiv. 6(e). No portion of the co-payment goes
to the manufacturer. See id. This process may be repeated throughout a full year of
eligibility; “[u]pon receipt of a reorder from a pharmacy, the manufacturer must send
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to the pharmacy an additional 90-day supply of the product . . . at no charge to the
individual or pharmacy.” Id. § 151.74, subdiv. 6(f).
Under the Urgent-Need Safety Net Program, manufacturers must provide a 30-
day supply of free insulin to individuals who meet eligibility criteria. Id. § 151.74,
subdiv. 2(a)–(b). “Upon receipt of a completed and signed application, the pharmacist
shall dispense the prescribed insulin in an amount that will provide the individual
with a 30-day supply.” Id. § 151.74, subdiv. 3(c). After dispensing the insulin, “[t]he
pharmacy may submit to the manufacturer of the dispensed insulin product or to the
manufacturer’s vendor a claim for payment.” Id. § 151.74, subdiv. 3(d). The
manufacturer then has the options of either “reimburs[ing] the pharmacy in an amount
that covers the pharmacy’s acquisition cost” or “send[ing] to the pharmacy a
replacement supply of the same insulin as dispensed in the amount dispensed.” Id.
Although not required, a pharmacy may collect an insulin co-payment form from the
individual not exceeding $35.00 for the 30-day supply. Id. § 151.74, subdiv. 3(e).
“But as with the Continuing Safety Net Program, none of that co-payment goes to the
manufacturer that is required to provide the free insulin (or its monetary equivalent)
to the pharmacy.” R. Doc. 1, at ¶ 74.
The Board of MNSure3 may assess penalties if manufacturers fail to comply
with the programs and other statutory requirements. Minn. Stat. § 151.74, subdiv.
10(a)–(b). All insulin manufacturers are subject to the Act’s requirements unless one
3
MNSure is “a Minnesota-made health insurance marketplace.” MNSure,
https://www.mnsure.org/about-us/index.jsp (last visited Jan. 20, 2023). Members of
the MNSure board of directors were originally defendants in this case but “[t]he
parties stipulated to the dismissal of [the] defendants.” R. Doc. 81, at 2 n.1.
-5-
of two exceptions applies.4 Neither of the two limited exemptions applies to
PhRMA’s members selling insulin in Minnesota. R. Doc. 1, at ¶ 78.
B. Procedural Background
PhRMA, a nonprofit corporation representing pharmaceutical companies, filed
suit on behalf of itself and its members against the members of the Board who enforce
the Act. According to PhRMA, the suit’s purpose was “to protect interests that are
germane to PhRMA’s purpose because the Act directly affects PhRMA’s core goals
of advocating for public policies that encourage investment in pharmaceutical
innovation and addressing distortions in the market for medicines.” Id. at ¶ 13.
PhRMA alleged that “[t]hree of [its] members—Eli Lilly and Company (‘Lilly’),
Novo Nordisk Inc., and Sanofi—manufacture most of the insulin sold in the United
States, including in Minnesota, and are subject to the Act.” Id. It further alleged that
none of the claims asserted or relief requested “require[d] the participation of any
individual member of PhRMA.” Id. at ¶ 14.
PhRMA asserted that the Act goes beyond improving availability and
affordability of insulin and effectively confiscates its property for government use.
Specifically, PhRMA alleged that the Act transgresses the Takings Clause by
compelling its members to supply insulin to its program without compensation, that
“[t]he Act’s unconstitutional taking of insulin manufacturers’ products is of vital
concern to PhRMA and its members, and [that] several of PhRMA’s members are
subject to and directly harmed by the Act.” Id. at ¶ 13. PhRMA sought declaratory
and injunctive relief. See id. at ¶ 9 (“Because the Act effects a repeated and
continuous series of unconstitutional per se takings, includes no mechanism to
4
“[M]anufacturer[s] with an annual gross revenue of $2,000,000 or less from
insulin sales in Minnesota” are exempt under the Act. Id. § 151.74, subdiv. 1(c).
Insulin products are exempt if the wholesale acquisition cost is $8 or less per
milliliter or applicable National Council for Prescription Drug Plan billing unit, for
the entire assessment time period, adjusted. Id. § 151.74, subdiv. 1(d).
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compensate manufacturers for those takings, and, by its very design and purpose,
forecloses any compensation, its enforcement should be enjoined.”); id. at ¶ 85 (“[A]
continuous series of state court actions seeking to compel an inverse condemnation
proceeding for each of the thousands of units of insulin that PhRMA’s members must
provide under the Act is not an appropriate or available remedy. Instead, the proper
redress is an injunction against enforcement of the Act, which would also afford
Minnesota the opportunity to repeal its law and reverse the unconstitutional taking.”);
id. at 28 (requesting “[a] declaration that Subdivisions 3(d) and 6(f) of Minn. Stat. [§]
151.74 violate the Takings Clause of the Fifth Amendment (applicable to the states
under the Fourteenth Amendment)”).
In response, the Board members moved to dismiss for lack of subject matter
jurisdiction and for failure to state a claim upon which relief can be granted. Further,
the Board members maintained that the Supreme Court foreclosed prospective
injunctive and declaratory relief for takings claims in Knick v. Township of Scott, 139
S. Ct. 2162, 2179 (2019). PhRMA then moved for summary judgment and conditional
leave to file a supplemental complaint.
The district court dismissed the action after concluding that it lacked subject
matter jurisdiction because PhRMA failed to establish standing. Specifically, the
court determined that PhRMA could not meet the redressability element of a standing
analysis. The court deemed it unlikely that PhRMA could show it could have its
injury redressed by a favorable decision. The district court noted that just
compensation is legally available in Minnesota for the taking alleged by PhRMA
through inverse condemnation actions in state court.5
5
According to the district court order, an inverse condemnation action may be
brought through a mandamus action when the government takes property without
formally invoking its eminent domain powers. Pharm. Rsch. & Mfrs. of Am. v.
Williams, 525 F. Supp. 3d 946, 951 (D. Minn. 2021) (citing Am. Family Ins. v. City
of Minneapolis, 836 F.3d 918, 923 (8th Cir. 2016)).
-7-
The district court rejected PhRMA’s argument “that equitable relief is not
foreclosed because Minnesota inverse condemnation suits are inadequate for
providing just compensation.” Williams, 525 F. Supp. 3d at 952. “First,” the court
explained, “a ‘future taking’—or a taking that has not happened yet—does not give
rise to a claim under the Takings Clause.” Id. (quoting Knick, 139 S. Ct. at 2171).
Thus, “[t]he government does not need to compensate for property it has not yet
taken.” Id. “Second, the court [was] not convinced that bringing multiple actions
impairs the ability of Minnesota’s inverse condemnation procedures to adequately
compensate insulin manufacturers.” Id. As a result, the court found “Minnesota’s just
compensation provisions to be adequate.” Id.The district court also rejected PhRMA’s alternative argument “that only
injunctive relief is foreclosed, leaving declaratory relief as an available remedy under
the Takings Clause.” Id. According to the court, “A declaration that the Act is an
unconstitutional taking would be the functional equivalent of an injunction barring
enforcement.” Id. (citing Baptiste v. Kennedy, 490 F. Supp. 3d 353, 391 (D. Mass.
2020) (holding that declaratory relief for a takings claim, without seeking just
compensation, is the “functional equivalent of an unwarranted injunction” and is
foreclosed under Knick)).
The district court also denied PhRMA’s motion for leave to file a supplemental
complaint, finding that supplementing the pleadings would be futile as PhRMA’s
proposed amendments would not overcome the complaint’s deficiencies. Lastly, the
district court found PhRMA’s motion for summary judgment moot in light of the
court’s grant of the Board members’ motion to dismiss.
II. Discussion
PhRMA asks this court to reverse the dismissal of this case for lack of
standing.
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A. Standing—Redressability
We review the issue of standing de novo. Heglund v. Aitkin Cnty., 871 F.3d
572, 577 (8th Cir. 2017). “[T]he ‘irreducible constitutional minimum’ of standing
consists of three elements.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
[T]o satisfy Article III’s standing requirements, a plaintiff must show (1)
it has suffered an “injury in fact” that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical; (2) the injury
is fairly traceable to the challenged action of the defendant; and 3) it is
likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Env’t. Servs. (TOC), Inc., 528 U.S. 167, 180–81
(2000) (quoting Lujan, 504 U.S. at 560–561).
Neither the district court nor the parties take issue with the first two standing
requirements; instead, the disputed issue is redressability.“Redressability requires us
to examine the ‘causal connection between the alleged injury and the judicial relief
requested.’” Sch. of the Ozarks, Inc. v. Biden, 41 F.4th 992, 1001 (8th Cir. 2022)
(quoting Allen v. Wright, 468 U.S. 737, 753 n.19 (1984)). The “redressability
inquiry. . . . focuses . . . on whether the injury that a plaintiff alleges is likely to be
redressed through the litigation.” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc.,
554 U.S. 269, 287 (2008). In other words, the plaintiff must show that “it is likely and
not merely speculative that the plaintiff’s injury will be remedied by the relief
plaintiff seeks in bringing suit.” Id. at 273–74 (internal quotation marks omitted).
“[A] plaintiff satisfies the redressability requirement when he shows that a favorable
decision will relieve a discrete injury to himself. He need not show that a favorable
decision will relieve his every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15
(1982).
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Here, the Board members assert that Knick forecloses prospective injunctive
and declaratory relief for a takings claim; therefore, PhRMA’s takings claim is not
redressable. PhRMA counters that Knick does not foreclose such relief in this case
because the state law remedies are inadequate.
“The Takings Clause of the Fifth Amendment states that ‘private property
[shall not] be taken for public use, without just compensation.’” Knick, 139 S. Ct. at
2167 (alteration in original) (quoting U.S. Const. amend. V). “Typically, a lawsuit
alleging that a plaintiff ‘suffered a violation of his Fifth Amendment rights’ is
redressable through compensation.” Pavlock v. Holcomb, 35 F.4th 581, 589 (7th Cir.
2022) (quoting Knick, 139 S. Ct. at 2168).
In Knick, the Supreme Court overruled its prior holding “that a property owner
whose property has been taken by a local government has not suffered a violation of
his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal
court—until a state court has denied his claim for just compensation under state law.”
139 S. Ct. at 2167 (citing Williamson Cnty. Reg’l Planning Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172 (1985)). In overruling the state-litigation
requirement, the Court recognized that “[a] property owner has an actionable Fifth
Amendment takings claim when the government takes his property without paying
for it” but noted that its statement did “not mean that the government must provide
compensation in advance of a taking or risk having its action invalidated: So long as
the property owner has some way to obtain compensation after the fact, governments
need not fear that courts will enjoin their activities.” Id. at 2167–68 (emphasis added).
In addressing the availability of equitable relief to prevent a taking from
occurring, the Court acknowledged that
[t]oday, because the federal and nearly all state governments provide
just compensation remedies to property owners who have suffered a
taking, equitable relief is generally unavailable. As long as an adequate
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provision for obtaining just compensation exists, there is no basis to
enjoin the government’s action effecting a taking. But that is because
. . . such a procedure is a remedy for a taking that violated the
Constitution, not because the availability of the procedure somehow
prevented the violation from occurring in the first place.
Id. at 2176–77 (emphases added).
In summary, the Court “conclude[d] that a government violates the Takings
Clause when it takes property without compensation, and . . . a property owner may
bring a Fifth Amendment claim under § 1983 at that time.” Id. at 2177. But, the Court
cautioned, “[t]hat does not as a practical matter mean that government action or
regulation may not proceed in the absence of contemporaneous compensation. Given
the availability of post-taking compensation, barring the government from acting will
ordinarily not be appropriate.” Id. (emphasis added). The Court explained that its
“holding that uncompensated takings violate the Fifth Amendment will not expose
governments to new liability; it will simply allow into federal court takings claims
that otherwise would have been brought as inverse condemnation suits in state court.”
Id. at 2179. It urged governments not to “fear that [its] holding will lead federal
courts to invalidate their regulations as unconstitutional. As long as just compensation
remedies are available—as they have been for nearly 150 years—injunctive relief will
be foreclosed.” Id.
The Board members contend that Knick “repeatedly assured governments that
the federal courts would not invalidate the governments’ regulations as
unconstitutional under the Takings Clause.” Appellees’ Br. at 15. But Knick does not
hold that every state’s compensation remedy is adequate in a particular situation;
implicit in Knick is the requirement that just compensation must be available to
petitioners seeking a remedy. See id. at 2176. Knick states that “equitable relief is
generally unavailable” “to property owners who have suffered a taking” “[a]s long as
an adequate provision for obtaining just compensation exists.” Id. (emphasis added).
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Determining the adequacy of a state remedy is crucial to the redressability component
of the standing analysis. Thus, to determine whether equitable relief is available to
a property owner asserting a takings claim, a court must “identify[] any alternative
cause of action” and “examin[e] the adequacy thereof.” Va. Hosp. & Healthcare
Ass’n v. Kimsey, No. 20-2176, 2022 WL 604049, at *5 (4th Cir. Mar. 1, 2022)
(unpublished).
Here, the district court concluded that “just compensation remedies are
available in Minnesota through inverse condemnation actions in state court,”
Williams, 525 F. Supp. 3d at 951, and that “Minnesota’s just compensation provisions
[are] adequate,” id. at 952, thereby defeating the redressability prong of standing. See
also Am. Family Ins., 836 F.3d at 923 (“In Minnesota, a property owner has a cause
of action for inverse condemnation when the government has taken property without
formally invoking its eminent-domain powers.”). PhRMA recognizes that “[i]n most
cases, a state-law inverse condemnation action satisfies [Knick’s] requirement” that
a “plain, adequate, and complete remedy at law” exist to render “injunctive relief
. . . unavailable.” Appellant’s Br. at 25 (quoting Knick, 139 S. Ct. at 2175). But it
argues that an inverse condemnation is not an adequate remedy here because that
remedy “can provide just compensation only for takings that have already occurred,”
while “the Act authorizes a repetitive (and essentially endless) series of new, per se
takings” that require “manufacturers [to] repeatedly bring new suits to obtain just
compensation for all the insulin taken by the Act.” Id.The Supreme Court has long held “[t]hat a suit in equity does not lie where
there is a plain adequate and complete remedy at law . . . . But the legal remedy must
be as complete, practical and efficient as that which equity could afford.” Terrace v.
Thompson, 263 U.S. 197, 214 (1923); see also United States v. Union Pac. Ry. Co.,
160 U.S. 1, 51 (1895) (“In Boyce v. Grundy, 3 Pet. 210, 215, this court said: ‘It is not
enough that there is a remedy at law. It must be paid and adequate, or, in other words,
as practical and efficient to the ends of justice and its prompt administration as the
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remedy in equity.’”). “The circumstances of each case must determine the application
of the rule.” Union Pac. Ry. Co., 160 U.S. at 51. “[S]omething more than a theoretical
inadequacy of legal remedy must exist in order to justify the issuance of [equitable
relief] . . . .” Equitable Life Assur. Soc. of U.S. v. Wert, 102 F.2d 10, 15 (8th Cir.
1939).
Equity courts are not forbidden from exercising jurisdiction, but the record
must show “a practical inadequacy of remedy sufficient to justify a court of equity in
exercising its jurisdiction in favor of a plaintiff whose rights will be substantially and
adversely affected if such [equitable relief] is not granted.” Id. “To oust jurisdiction
in equity the remedy at law must be so complete that it attains the full end and justice
of the case, reaching the whole mischief and securing the whole right of the party in
a perfect manner at the present time and in the future.” Wash. Univ. v. Baumann, 108
S.W.2d 403, 412 (Mo. 1937) (en banc) (quoting Pocoke v. Peterson, 165 S.W. 1017,
1022 (Mo. 1914)); see also 1 Story’s Equity (14th ed.) § 33, p. 31; 1 Pomeroy’s Eq.
Juris. (4th ed.) § 176, p. 225, § 180, p. 238.
Forcing a party to engage in repetitive lawsuits indefinitely seems to be
precisely the sort of legal inadequacy that would make equitable relief an available
and preferred method of redress. “An inadequacy of legal remedy exists where one
is bound to litigate a multiplicity of suits having a community of facts and issues.”
Wert, 102 F.2d at 14 (citing Hale v. Allison, 188 U.S. 56, 71 (1903); Di Giovanni v.
Camden Fire Ins. Ass’n, 296 U.S. 64, 70 (1935)); see also 11A Charles Alan Wright
et al., Federal Practice and Procedure § 2944 (3d ed. 2013) (stating that “[t]he legal
remedy may be deemed inadequate . . . . if plaintiff demonstrates that effective legal
relief can be secured only by a multiplicity of actions, as, for example, when the
injury is of a continuing nature, so that plaintiff would be required to pursue damages
each time plaintiff was injured, equitable relief will be deemed appropriate”
(footnotes omitted)). “[Professor John Norton] Pomeroy, in his work on Equity
Jurisprudence, in vol. 1, §§ 243–275, discusses at length the reasons upon which rests
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the doctrine that jurisdiction exists in equity courts to prevent a multiplicity of suits.”
Ill. Cent. R. Co. v. Baker, 159 S.W. 1169, 1171 (Ky. 1913). He identified “four
classes of cases in which, in his opinion, it ought to be exercised.” Id. One of those
classes of cases is
[w]here from the nature of the wrong, and from the settled rules of the
legal procedure, the same injured party, in order to obtain all the relief
to which he is justly entitled, is obliged to bring a number of actions
against the same wrongdoer, all growing out of the one wrongful act and
involving similar questions of fact and of law.
Id. (internal quotation marks omitted). In such cases, “[a] court of equity interferes
because the plaintiff would be obliged to bring a succession, perhaps an indefinite
number, of actions at law in order to obtain relief appearing even to be sufficient.”
Hower v. Garrett, 18 Pa. D. 847, 848–49 (Pa. Com. Pl. 1908) (quoting 1 John Norton
Pomeroy, Pomeroy’s Equity Jurisprudence and Equitable Remedies: A Treatise on
Equity Jurisprudence § 252, 382 (3d ed. 1905)). This is because “the. . . wrong
complained of . . . [is] in its very nature continuous.” Id. at 849 (quoting Pomeroy,
supra, at § 252, 382).
Consistent with Professor Pomeroy’s view, the Supreme Court has recognized
that “[a]voidance of the burden of numerous suits at law between the same or
different parties, where the issues are substantially the same, is a recognized ground
for equitable relief in the federal courts.” Wert, 102 F.2d at 14 (quoting Di Giovanni,
296 U.S. at 70); see also Ogden City v. Armstrong, 168 U.S. 224, 237–38 (1897)
(“Not only, however, was there a want of an adequate remedy in proceeding by a writ
of certiorari, but we think equitable jurisdiction was properly invoked to prevent a
multiplicity of suits, and also to relieve the plaintiffs from a cloud upon their title.”);
Union Pac. Ry. Co., 160 U.S. at 51 (recognizing that a “remedy at law was not as
effectual as in equity” where “a ‘direct proceeding in equity w[ould] save time,
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expense, and a multiplicity of suits, and settle finally the rights of all concerned in one
litigation’” (emphasis added) (quoting Oelrichs v. Spain, 82 U.S. 211, 228 (1872))).6
The Court’s decision in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)
(plurality opinion), gives guidance as to when equitable relief is available for a
takings claim. The case involved “a [former coal operator’s] challenge under the Due
Process and Takings Clauses of the Constitution to the . . . Coal Act . . ., which
establishe[d] a mechanism for funding health care benefits for retirees from the coal
industry and their dependents.” Id. at 503–04. Under the Coal Act, former employers
had to pay annual assessments to fund the health care benefits for the retired
mineworkers. Id. at 514–15. A “threshold jurisdictional question” in the case was
“[w]hether [the coal operator’s] takings claim was properly filed in Federal District
Court rather than the United States Court of Federal Claims.” Id. at 519.
A plurality of the Court recognized that “a claim for just compensation under
the Takings Clause must be brought to the Court of Federal Claims in the first
instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the
relevant statute.” Id. at 520. But, the plurality noted, the coal operator did “not seek
compensation from the Government. Instead, [it] request[ed] a declaratory judgment
that the Coal Act violates the Constitution and a corresponding injunction against the
Commissioner’s enforcement of the Act as to [the coal operator].” Id. (emphasis
6
The Board members rely in part on Hurley v. Kincaid, 285 U.S. 95 (1932), in
arguing that “[t]akings are unique because any illegality under the Fifth Amendment
is confined to the failure to compensate for a taking; meaning that equitable relief is
foreclosed if compensation is available.” Appellees’ Br. at 26 (citing Hurley, 285 U.S.
at 104). Hurley did not involve a multiplicity of suits; instead, it involved a single
taking. See Hurley, 285 U.S. at 104 (“For even if the defendants are acting illegally,
under the act, in threatening to proceed without first acquiring flowage rights over the
complainant’s lands, the illegality, on complainant’s own contention, is confined to
the failure to compensate him for the taking, and affords no basis for an injunction if
such compensation may be procured in an action at law.”).
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added). According to the plurality, this type of relief was “arguably not within the
jurisdiction of the Court of Federal Claims under the Tucker Act.” Id. Some circuit
courts had “concluded that a claim for equitable relief under the Takings Clause is
hypothetical, and therefore not within the district courts’ jurisdiction, until
compensation has been sought and refused in the Court of Federal Claims.” Id. The
plurality acknowledged that the “Court’s precedent c[ould] be read to support the
. . . conclusion that regardless of the nature of relief sought, the availability of a
Tucker Act remedy renders premature any takings claim in federal district court.” Id.
at 521.
Ultimately, however, the plurality concluded that “in a case such as this one,
it cannot be said that monetary relief against the Government is an available remedy.”
Id. The plurality offered two reasons for its conclusion. First, the Coal Act mandated
that the former employers make the payments “to the privately operated Combined
Fund,” not to the government. Id. The plurality reasoned that Congress “could not
have contemplated that the Treasury would compensate coal operators for their
liability under the Act, for every dollar paid pursuant to a statute would be presumed
to generate a dollar of Tucker Act compensation.” Id. (cleaned up). Because the Coal
Act, “rather than burdening real or physical property, require[d] a direct transfer of
funds mandated by the Government,” the plurality determined that “the presumption
of Tucker Act availability” was inapplicable. Id. (internal quotation marks omitted).
“In that situation, a claim for compensation would entail an utterly pointless set of
activities.” Id. (emphasis added) (internal quotation marks omitted). Instead, the
plurality explained, “the Declaratory Judgment Act ‘allows individuals threatened
with a taking to seek a declaration of the constitutionality of the disputed
governmental action before potentially uncompensable damages are sustained.’” Id.
(quoting Duke Power Co. v. Carolina Env’t Study Grp., Inc., 438 U.S. 59, 71 n.15
(1978)).
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Second, the plurality noted that “in situations analogous to this case, [the
Court] ha[s] assumed the lack of a compensatory remedy and ha[s] granted equitable
relief for Takings Clause violations without discussing the applicability of the Tucker
Act.” Id. (citing cases). And the plurality further pointed to the Court’s upholding of
“similar statutory schemes against Takings Clause challenges” without any discussion
of “the basis of th[e] Court’s jurisdiction.” Id. at 522 (citing cases). “Based on the
nature of the taking alleged in this case, [the plurality] conclude[d] that the
declaratory judgment and injunction sought by [the coal operator] constitute[d] an
appropriate remedy under the circumstances, and that it [was] within the district
courts’ power to award such equitable relief.” Id.Having considered the relevant case law, we hold that in the specific context
of this case, Minnesota’s inverse condemnation procedure does not afford insulin
manufacturers an adequate remedy for the repetitive series of alleged7 takings under
the Act.8 Such an action is an inadequate legal remedy because PhRMA’s members
would be “bound to litigate a multiplicity of suits” to be compensated. Wert, 102 F.2d
7In its complaint, “PhRMA allege[d] that the Act compels its members to give
away insulin without compensation in violation of the Takings Clause.” Williams,
525 F. Supp. 3d at 951. Like the district court we “accept[] the factual allegations in
the pleadings as true and view[] the facts in the light most favorable to the nonmoving
party” on a motion to dismiss for lack of subject matter jurisdiction. Id. at 950 (citing
Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008); Osborn v. United States,
918 F.2d 724, 729 n.6 (8th Cir. 1990) (“[T]he non-moving party receives the same
protections [for facial attacks under Rule 12(b)(1)] as it would defending against a
motion brought under Rule 12(b)(6).”)).
8
As PhRMA points out, our prior cases do not hold “that Minnesota’s inverse
condemnation procedure is an adequate remedy for all conceivable takings.”
Appellant’s Reply Br. at 5 & n.2 (citing Foster v. Minnesota, 888 F.3d 356 (8th Cir.
2018); Am. Family Ins., 836 F.3d at 923; Cormack v. Settle-Beshears, 474 F.3d 528,
531 (8th Cir. 2007); Koscielski v. City of Minneapolis, 435 F.3d 898, 903–04 (8th Cir.
2006); Kottschade v. City of Rochester, 319 F.3d 1038 (8th Cir. 2003)).
-17-
at 14. Contrary to the Board members’ argument, the imminence of multiple suits is
not hypothetical or speculative. The Act itself provides that, under the Continuing
Safety Net Program, “[e]ach manufacturer shall make a patient assistance program
available” to provide insulin products to any Minnesota resident who meets the
eligibility requirements. Minn. Stat. § 151.74, subd. 4. Under the Act’s Urgent-Need
Safety Net Program, manufacturers must provide a 30-day supply of free insulin to
Minnesota residents who meet the eligibility requirements. Id., subd. 2. A
manufacturer who fails to comply with the Act’s requirements is subject to a penalty
of $200,000 per month. Id., subd. 10(a)–(b). The penalty increases to $600,000 per
month if the manufacturer is noncompliant after one year. Id., subd. 10(a). The Act’s
Urgent-Need Safety Net Program has no expiration date, and the Continuing Safety
Net Program will remain in effect through at least 2024. See id., subd.16(b)
(“Subdivisions 4 to 6, 8, and 9 expire December 31, 2024, unless the legislature
affirmatively determines the need for the continuation of the long-term safety net
program described in subdivisions 4 to 6.”).
In these circumstances, the legal remedy of damages is not “complete, practical
and efficient,” Terrace, 263 U.S. at 214, because it requires a repetitive succession
of inverse condemnation suits. An inverse condemnation action to reimburse a
manufacturer for each discrete alleged taking is incapable of compensating the
manufacturers for the repetitive, future takings that will occur under the Act’s
requirements. By contrast, equitable relief would protect manufacturers from those
future harms.
The plurality opinion in Apfel buttresses our conclusion that Minnesota’s
inverse condemnation procedure does not afford insulin manufacturers an adequate
remedy for the repetitive series of alleged takings under the Act. True, Apfel involved
the transfers of funds—not property such as insulin—from the coal operator to
privately operated fund. See Apfel, 524 U.S. at 521 (“[T]he presumption of Tucker
Act availability must be reversed where the challenged statute, rather than burdening
-18-
real or physical property, requires a direct transfer of funds mandated by the
Government.” (internal quotation marks omitted)). “But,” as PhRMA points out,
“when a manufacturer (1) reimburses a pharmacy the cost of insulin, then (2) sues to
recover that money as just compensation, it is seeking the same ‘dollar-for-dollar’
compensation deemed pointless in Apfel.” Appellant’s Reply Br. at 15–16; cf. Apfel,
524 U.S. at 521 (“Congress could not have contemplated that the Treasury would
compensate coal operators for their liability under the Act, for every dollar paid
pursuant to a statute would be presumed to generate a dollar of Tucker Act
compensation.” (cleaned up)). In both Apfel and the present case, requiring an entity
to submit repetitive takings claims “would entail an utterly pointless set of activities,”
as every dollar paid would then entitle that entity to seek compensation for the same
amount. Apfel, 524 U.S. at 521 (internal quotation marks omitted).9
9
Nonetheless, the Board members insist that the Supreme Court and other
courts have “rejected equitable relief when continuous takings were alleged.”
Appellees’ Br. at 19 (citing cases). These cases are distinguishable, however, because
in each case a single action could compensate for the alleged taking. See Reg’l Rail
Reorganization Act Cases, 419 U.S. 102, 136 (1974) (holding that remedies under the
Tucker Act were available to provide just compensation for any “erosion taking”
under the Rail Act to cover any shortfall between the consideration that the railroads
receive for rail properties finally conveyed under the Rail Act and the constitutional
minimum); Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1266 (Fed. Cir.
2009) (holding that egg producer who brought suit claiming the United States
Department of Agriculture regulations that restricted egg sales from its farms and
caused the loss of egg-laying chickens that tested positive for the presence of
salmonella bacteria did not suffer a compensable regulatory taking and reversing
district court’s “rul[ing] that the severity of the economic impact favored [the egg
producer] because it suffered a diminution in profit of 219%” and holding that the
egg producer “suffered a taking” and was entitled to “just compensation” for the
alleged taking in the single action); Nat’l Fuel Gas Distrib. Corp. v. N.Y. State
Energy Rsch. & Dev. Auth., 265 F. Supp. 3d 286, 293 (W.D.N.Y. 2017) (“Plaintiff
asserts that NYSERDA, DOE, and Perry have effectuated a taking by refusing
Plaintiff access to the pipeline, thereby destroying Plaintiff’s right to possess, use and
dispose of the pipeline.” (emphases added) (cleaned up)).
-19-
Accordingly, we hold that the district court erred in concluding that PhRMA
lacks standing to seek injunctive relief and declaratory relief to redress violations of
the Takings Clause. Minnesota’s inverse condemnation procedure does not afford the
insulin manufacturers an adequate remedy.
B. Associational Standing
As an alternative ground for affirmance, the Board members argue that PhRMA
lacks associational standing.10
[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.”
Kuehl v. Sellner, 887 F.3d 845, 851 (8th Cir. 2018) (quoting Hunt v. Wash. State
Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).
The Board members argue that “PhRMA . . . fails the third prong of this test,
because its claim stems from the manufacturers’ property interests, and their
participation is required to provide the factual context needed to resolve that claim.”
Appellees’ Br. at 37. According to the Board members, “[a] takings claim is generally
a ‘poor candidate’ for associational standing” for two main reasons. Id. (quoting Rent
Stabilization Ass’n of N.Y.C., Inc. v. Dinkins, 805 F. Supp. 159, 164 (S.D.N.Y.
1992)). “First,” they argue, “the remedy for a taking is providing the owner with just
10
The district court declined to address this argument based on its conclusion
that “injunctive and equitable relief are unavailable for PhRMA’s takings claim.”
Williams, 525 F. Supp. 3d at 951 n.4.
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compensation, which ‘necessarily requires the participation of the individual
members’ to determine the amount of compensation due.” Id. at 37–38 (quoting
Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 850 (9th Cir. 2001)).
“Second,” they maintain, “resolving a takings claim is a ‘difficult, fact specific
inquiry.’” Id. at 38 (quoting Dinkins, 805 F. Supp. at 164). The Board members
further assert that “[n]umerous courts have held that associations lack standing to
bring as-applied takings claims, even when seeking only declaratory or injunctive
relief.” Id. at 39 (citing Rent Stabilization Ass’n of N.Y.C. v. Dinkins, 5 F.3d 591,
596–97 (2d Cir. 1993); Wash. Legal Found., 271 F.3d at 849–50; Ga. Cemetery
Ass’n, Inc. v. Cox, 353 F.3d 1319, 1322 (11th Cir. 2003) (per curiam); Comm. for
Reasonable Regul. of Lake Tahoe v. Tahoe Reg’l Plan. Agency, 365 F. Supp. 2d 1146,
1163–64 (D. Nev. 2005); Pharm. Care Mgmt. Ass’n v. Gerhart, No. 4:14-cv-000345,
2015 WL 6164444, at *7–8 (S.D. Iowa Feb. 18, 2015), rev’d on other grounds, 852
F.3d 722 (8th Cir. 2017)).
The Takings Clause “provide[s] protection . . . against a direct appropriation
of property—personal or real,” as well as against “a ‘regulatory taking’—a restriction
on the use of property that [goes] ‘too far.’” Horne v. Dep’t of Agric., 576 U.S. 350,
360 (2015) (quoting Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1992)). “[A]
physical appropriation of property [gives] rise to a per se taking, without regard to
other factors.” Id. By contrast, the test for determining whether a regulatory taking
occurs “require[s] an ‘ad hoc’ factual inquiry. That inquiry require[s] considering
factors such as the economic impact of the regulation, its interference with reasonable
investment-backed expectations, and the character of the government action.” Id.Supreme Court precedent “ha[s] stressed the ‘longstanding distinction’ between
government acquisitions of property and regulations.” Id. at 361 (quoting
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 323
(2002)). “The essential question” in determining whether a taking is a regulatory
taking or a physical taking “is whether the government has physically taken property
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for itself or someone else—by whatever means—or has instead restricted a property
owner’s ability to use his own property.” Cedar Point Nursery v. Hassid, 141 S. Ct.
2063, 2072 (2021). “Whenever a regulation results in a physical appropriation of
property, a per se taking has occurred . . . .” Id.The present case involves an allegation of a physical taking of insulin, not a
regulatory taking. Under Horne, this type of taking is “a per se taking” that does not
require a court to analyze other factors. 576 U.S. at 360. By contrast, the cases that
the Board members rely on in arguing that PhRMA lacks associational standing
involve regulatory takings, which require individualized inquiries necessitating the
participation of the individual members.11
11
See Cox, 353 F.3d at 1322 (holding association of private, for-profit cemetery
owners lacked standing to challenge the constitutionality of a state statute exempting
church, fraternal, and community cemeteries from rules and regulations imposed upon
other cemeteries absent a showing that all of its members were currently charging in
excess of the statutory limits); Wash. Legal Found., 271 F.3d at 849–50 (holding that
a public-interest law and policy center lacked representational standing to challenge
the use of some members funds to support an IOLTA program as a taking without just
compensation under the Fifth Amendment after concluding that determining just
compensation would necessarily require the participation of the individual members);
Comm. For Reasonable Regul. of Lake Tahoe, 365 F. Supp. 2d at 1163 (holding
homeowners’ group lacked associational standing to challenge adoption by city
planning agency of scenic review ordinance regulating appearance of residential
housing on littoral and shoreland properties because application of the ordinance
would have presented fact-specific situations to each homeowner, and investment-
backed expectations and economic impact would have differed among homeowners);
Gerhart, 2015 WL 6164444, at *7 (“Therefore, even if the Court can determine that
Plaintiff has alleged facts sufficient to establish that Plaintiff's members MAC
methodology could constitute a trade secret, determination of whether compelled
revelation of the methodology constitutes a taking would require a more intensive
factual inquiry.”); Dinkins, 805 F. Supp. at 164 (holding association of owners of
rent-stabilized property lacked standing to challenge control law as applied to its
individual members because the economic impact of the law and its interference with
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Furthermore, PhRMA’s request for equitable relief does not defeat
associational standing. An “organization lacks standing to assert claims of injunctive
relief on behalf of its members where ‘the fact and extent’ of the injury that gives rise
to the claims for injunctive relief ‘would require individualized proof,’ or where ‘the
relief requested [would] require[] the participation of individual members in the
lawsuit.’” Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004)
(alterations in original) (first quoting Warth v. Sedin, 422 U.S. 490, 515–16 (1975),
then quoting Hunt v. Wash. State Apple Adv. Comm’n, 432 U.S. 333, 343 (1977)).
Again, individualized proof is not needed to show that the Act requires the taking of
the insulin.
In summary, this case involves an allegation of a physical, per se taking with
a request for equitable relief, neither of which “require[] the participation of
individual members in the lawsuit.” Kuehl, 887 F.3d at 851 (quoting Hunt, 432 U.S.
at 343).
C. Sovereign Immunity
Finally, as another alternative ground for affirmance, the Board members
contend that its members are immune from suit under the Eleventh Amendment.12
“Generally, States are immune from suit under the terms of the Eleventh
Amendment and the doctrine of sovereign immunity.” Whole Woman’s Health v.
reasonable investment-backed expectations varied from owner to owner and the
source of the claim was primarily in application of rent stablization process to some,
but less than all, of the association’s members).
12
As with associational standing, the district court declined to address this
argument based on its conclusion that “injunctive and equitable relief are unavailable
for PhRMA’s takings claim.” Williams, 525 F. Supp. 3d at 951 n.4.
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Jackson, 142 S. Ct. 522, 532 (2021).13 But “a narrow exception . . . allows certain
private parties to seek judicial orders in federal court preventing state executive
officials from enforcing state laws that are contrary to federal law.” Whole Woman’s
Health, 142 S. Ct. at 532 (citing Ex Parte Young, 209 U.S. 123, 159–60 (1908)).
“Under the exception established in Ex Parte Young, . . . a private party may sue state
officials in their official capacities for prospective injunctive relief.” McDaniel v.
Precythe, 897 F.3d 946, 951–52 (8th Cir. 2018). “In determining whether the doctrine
of Ex Parte Young avoids an Eleventh Amendment bar to suit, a court need only
conduct a straightforward inquiry into whether the complaint alleges an ongoing
violation of federal law and seeks relief property characterized as prospective.”
Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002)
(cleaned up).
The Board members argue that “Ex Parte Young’s narrow immunity exception
is inapplicable to PhRMA’s claim because takings claims necessarily involve the state
as the real, substantial party in interest, and because such an order would interfere
with the state’s special sovereignty interest to take private property for a public
13
“Knick did not address sovereign immunity, as it involved a suit against a
town.” Zito v. N.C. Coastal Resources Comm’n, 8 F.4th 281, 286 (4th Cir. 2021)
(citing Jinks v. Richland Cnty., 538 U.S. 456, 466 (2003) (“[M]unicipalities, unlike
States, do not enjoy a constitutionally protected immunity from suit.”)). To date,
“every circuit to address Knick’s effect on sovereign immunity has concluded that
Knick did not abrogate State sovereign immunity in federal court.” Id. at 287 (citing
Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th Cir. 2019) (“But Knick
did not involve Eleventh Amendment immunity, which is the basis of our holding in
this case.”); Bay Point Props., Inc. v. Miss. Transp. Comm’n, 937 F.3d 454, 456–57
(5th Cir. 2019) (“Nor does anything in Knick even suggest, let alone require,
reconsideration of longstanding sovereign immunity principles protecting states from
suit in federal court.”); Ladd v. Marchbanks, 971 F.3d 574, 579 (6th Cir. 2020)
(“[T]he Court’s opinion in Knick says nothing about sovereign immunity.”)).
-24-
purpose.” Appellees’ Br. at 41. It concludes that “public officials are immune from
suits in federal court seeking just compensation or inverse condemnation, despite the
Ex Parte Young exception.” Id. at 42.
The Board members primarily rely upon Ladd. In that case, property owners
brought suit against Ohio and the director of its department of transportation in his
official capacity, asserting a takings claim and seeking a declaratory judgment that
flooding caused by the department’s construction project changed topography and
constituted a taking of private property without just compensation. 971 F.3d at 576.
The Sixth Circuit affirmed the district court’s dismissal of the complaint. The court
determined that the property owners were actually seeking “an injunction requiring
the payment of funds from the State’s treasury,” which is prohibited under Ex Parte
Young. Id. at 581 (quoting Va. Office for Prot. & Advoc. v. Stewart, 563 U.S. 247,
256–57 (2011)). Specifically, the property owners in Ladd had requested that the
court direct the state official “to initiate eminent domain proceedings in state court.”
Id. at 581 (internal quotation marks omitted). A favorable outcome of such a
proceeding would result in “a compensation award that Ohio’s treasury must pay” if
the property owners prevailed. Id. “So,” the court explained, “[the property owners]
seek an order they can use to require Ohio to pay them for its alleged taking of their
property—the exact type of claim Stewart tells us isn’t a proper workaround to the
States’ sovereign immunity.” Id. (citing Stewart, 563 U.S. at 256–57). Furthermore,
the property owners’ complaint failed to “allege[] an ongoing violation of federal law
and seek[] relief properly characterized as prospective.” Id. (quoting Verizon, 535
U.S. at 645). Instead of “seek[ing] an injunction barring [the state official] from any
further construction that would damage their property,” the property owners sought
“compensation for the damage they allege[d] the Ohio Department of Transportation
already caused.” Id. As a result, the court concluded that sovereign immunity barred
the property owners’ claim for declaratory judgment. Id.-25-
Here, by contrast, “[t]he [Board’s] status as an arm of the State would not
prevent us from enjoining the [Board members] from future violations of the Takings
Clause.” Laborers’ Int’l Union of N. Am., Loc. 860 v. Neff, 29 F.4th 325, 334 (6th Cir.
2022) (citing Ex Parte Young, 209 U.S. at 159–60). As previously discussed, PhRMA
has already “establish[ed] . . . that it . . . has no ‘adequate remedy at law’” for the
alleged taking. See id. (quoting Knick, 139 S. Ct. at 2176). Unlike in Ladd, PhRMA
has specifically requested declaratory and injunctive relief. And while the property
owners in Ladd sought “compensation for the damage . . . already caused,” 971 F.3d
at 581, PhRMA alleged that the takings are ongoing, see R. Doc. 1, at 5 (“Because the
Act effects a repeated and continuous series of unconstitutional per se takings,
includes no mechanism to compensate manufacturers for those takings, and, by its
very design and purpose, forecloses any compensation, its enforcement should be
enjoined.” (emphasis added)); id. at 26 (“[A] continuous series of state court actions
seeking to compel an inverse condemnation proceeding for each of the thousands of
units of insulin that PhRMA’s members must provide under the Act is not an
appropriate or available remedy. Instead, the proper redress is an injunction against
enforcement of the Act, which would also afford Minnesota the opportunity to repeal
its law and reverse the unconstitutional taking.” (emphasis added)).
Accordingly, the Ex Parte Young exception is applicable, and sovereign
immunity does not bar PhRMA’s suit.
III. Conclusion
We hold that the district court erred in dismissing PhRMA’s suit for lack of
standing. We likewise reject the Board members’ alternative grounds for affirmance
on the basis of lack of associational standing and the sovereign-immunity bar. We
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reverse the judgment of the district court and remand for further proceedings
consistent with this opinion.14
GRUENDER, Circuit Judge, concurring.
I agree that the plaintiffs have standing to sue but doubt that the question of the
availability of equitable relief implicates standing. Our opinion assumes that it does
because the district court and the parties analyzed the availability of equitable relief
in terms of standing. But our sister circuit recently noted that it might not. Va. Hosp.
& Healthcare Ass’n v. Kimsey, No. 20-2176, 2022 WL 604049, at *4 & n.3 (4th Cir.
March 1, 2022) (unpublished) (“Whether the district court’s grounds for dismissing
the Takings and Preemption Claims were, as the court thought, Rule 12(b)(1) issues
of Article III standing—or were instead Rule 12(b)(6) issues of the viability of those
Claims—is a question that we acknowledge but need not resolve today.”). And the
case law suggests the same.
“Redressability does not require that the plaintiff actually be entitled to the
relief sought; it is enough that the requested relief, if granted, would redress the
plaintiff’s injury.” Cranpark, Inc. v. Rogers Grp., Inc., 821 F.3d 723, 731 (6th Cir.
2016); see also Lac Du Flambeau Band of Lake Superior Chippewa Indians v.
Norton, 422 F.3d 490, 502 (7th Cir. 2005) (“Redressability . . . depends upon the
relief requested, not the relief [the party] could prove it was entitled to on the
merits.”). We have previously suggested that the issue of whether a party has an
adequate remedy at law “is not one of jurisdiction but is one of the need and propriety
of equitable relief.” Terry v. New York Life Ins., 104 F.2d 498, 500 (8th Cir. 1939).
And we have generally addressed the availability of equitable relief as an issue
related to the sufficiency of a claim rather than standing. See, e.g., Bonner v. Circuit
Court of City of St. Louis, 526 F.2d 1331, 1335-36 (8th Cir. 1975) (en banc)
14
We decline PhRMA’s invitation to decide the merits of their claim.
-27-
(affirming the district court’s dismissal of the plaintiffs’ complaint, without
mentioning standing, because they failed to allege a lack of an adequate remedy at
law); Birch v. Mazander, 678 F.2d 754, 756 (8th Cir. 1982) (affirming the district
court’s grant of summary judgment because the plaintiff failed to establish that he
was entitled to seek equitable relief).
Further, in Cedar Point Nursery v. Hassid, a case in which the plaintiffs sought
equitable relief for an alleged Takings Clause violation, the Supreme Court did not
discuss whether equitable relief was in fact available, which might suggest that the
issue does not implicate standing. 594 U.S. ---, 141 S. Ct. 2063 (2021); see also id.
at 2089 (Breyer, J., dissenting) (explaining, in a discussion of remedies, that on
remand California could foreclose injunctive relief by providing damages). Thus, I
concur in the opinion with the understanding that it does not decide the question of
whether the availability of equitable relief implicates standing.
______________________________
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