                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 24 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


PHYSICIANS FOR INTEGRITY IN                      No. 12-56119
MEDICAL RESEARCH, INC.,
                                                 D.C. No. 2:11-cv-08334-GAF-
              Plaintiff - Appellant,             FMO

  v.
                                                 MEMORANDUM*
MARGARET HAMBURG, Commissioner
of Food and Drug Administration,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                      Argued and Submitted February 13, 2014
                               Pasadena, California

Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.

       The district court correctly dismissed Physicians for Integrity in Medical

Research, Inc.’s (“PIMR”) complaint with prejudice for lack of standing. For an

association like PIMR to have standing to sue on behalf of its members, the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                            Page 2 of 3
members must “otherwise have standing to sue in their own right.” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). Dr.

Steve Gupta, the only member of PIMR that the complaint alleges has standing,

would not have standing to bring this action in his own right.

      We assume for purposes of argument that Dr. Gupta’s alleged injuries are

sufficiently “concrete and particularized” and “actual or imminent,” as opposed to

“conjectural or hypothetical,” to support standing. NRDC v. EPA, 735 F.3d 873,

878 (9th Cir. 2013). Dr. Gupta’s first alleged injury, for uncompensated time spent

counseling patients about Alair, is not fairly traceable to the challenged FDA

action. Id. As Dr. Gupta acknowledges in his opening brief on appeal, whether he

is compensated for time spent counseling patients is a function of the

reimbursement schedule for office visits set by other components of the federal

government, not by the FDA.

      The second and third alleged injuries, for lost patients and loss of credibility,

will occur only if one of Dr. Gupta’s patients makes an independent choice—either

to find another physician or to view Dr. Gupta less favorably as a result of his

advice about Alair. Because Dr. Gupta’s theory of standing with respect to these

injuries “rest[s] on speculation about the decisions of independent actors,” the
                                                                        Page 3 of 3
injuries are not fairly traceable to the FDA. Clapper v. Amnesty Int’l USA, 133 S.

Ct. 1138, 1148–50 (2013).

      PIMR’s motion for supplemental briefing, filed on February 19, 2014, is

denied.

      AFFIRMED.
