United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2021 Decided January 25, 2022

No. 21-5080

ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS, INC.

AND KATARINA VERRELLI, INDIVIDUALLY AND ON BEHALF OF 

ALL OTHERS SIMILARLY SITUATED,

APPELLANTS

v.

ADAM SCHIFF, IN HIS INDIVIDUAL CAPACITY AND HIS OFFICIAL 

CAPACITY AS A MEMBER OF CONGRESS FOR THE 28TH 

CONGRESSIONAL DISTRICT OF CALIFORNIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cv-00106)

Lawrence J. Joseph argued the cause and filed the briefs 

for appellant.

Todd B. Tatelman, Principal Deputy General Counsel, 

U.S. House of Representatives, argued the cause for appellee. 

With him on the brief were Douglas N. Letter, General 

Counsel, Sarah Clouse, Associate General Counsel, and 

Brooks M. Hanner, Associate General Counsel.
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Before: ROGERS and RAO, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The Association of American 

Physicians and Surgeons appeals the dismissal of its complaint 

for lack of Article III standing. The Association, joined by an 

individual, sued a Member of Congress who wrote to several 

technology and social media companies before and during the 

COVID-19 pandemic expressing concern about vaccinerelated misinformation on their platforms and inquiring about 

the companies’ policies for handling such misinformation. The 

Association, which purveys vaccine-related information 

online, alleged that the inquiries prompted the technology 

companies to disfavor and deprioritize its vaccine content,

thereby reducing traffic to its web page and making the 

information more difficult to access. Because appellants have 

not established that they have standing, the court affirms the 

dismissal of the complaint.

I.

The Association of American Physicians and Surgeons 

maintains a website and publishes the Journal of American 

Physicians and Surgeons, both of which host information 

concerning “important medical, economic, and legal issues 

about vaccines,” Am. Compl. ¶ 10. According to the 

Association, its perspective on these issues should not be 

considered “anti-vaccine,” but rather in favor of “informed 

consent based on disclosure of all relevant legal, medical, and 

economic information.” Id. ¶ 3. Representative Adam B. 

Schiff is a Member of the House of Representatives from 
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California’s 28th Congressional District and Chairman of the 

House Intelligence Committee.

Joined by an individual, Katarina Verrelli, who has sought 

vaccine-related information online, the Association sued 

Representative Schiff, individually and as a Member of 

Congress, seeking damages as well as injunctive and 

declaratory relief. The Association and Verrelli alleged that 

Representative Schiff wrote letters on February 14, 2019, to 

Google and Facebook “encourag[ing] them to use their 

platforms to prevent what [Representative] Schiff asserted to 

be inaccurate information on vaccines.” Id. ¶ 68. Shortly after, 

Representative Schiff wrote essentially the same letter to 

Amazon, and thereafter posted the letters on the House.gov 

website in a press release as well as on the social media website 

Twitter. In the letters, as reproduced in the press release, 

Representative Schiff expressed concern about the danger of 

vaccine hesitancy and the prevalence of vaccine-related 

misinformation on internet platforms like YouTube, Facebook, 

and Google’s search engine.1 He stated: “As a Member of 

Congress who is deeply concerned about declining vaccination 

rates around the nation, I am requesting additional information 

on the steps that you currently take to provide medically 

accurate information on vaccinations to your users, and to 

encourage you to consider additional steps you can take to 

address this growing problem.” Id. He requested that the 

companies respond to a list of questions regarding the 

1 Press Release, Schiff Sends Letter to Google, Facebook Regarding 

Anti-Vaccine Misinformation (Feb. 14, 2019), available at 

https://schiff.house.gov/news/press-releases/schiff-sends-letter-togoogle-facebook-regarding-anti-vaccine-misinformation; Press 

Release, Schiff Sends Letter to Amazon CEO Regarding AntiVaccine Misinformation (Mar. 1, 2019), available at 

https://schiff.house.gov/news/press-releases/schiff-sends-letter-toamazon-ceo-regarding-anti-vaccine-misinformation.
4

companies’ policies about and approaches to vaccine-related 

misinformation. Id. Although the letters are not included in 

the Joint Appendix, the court may look to their full text that is 

incorporated and linked in the amended complaint. See Hurd 

v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017).

When the House Intelligence Committee later held a 

hearing on “the national and election security risks of 

technology that allows the creation of ‘fake’ videos,” Chairman 

Schiff “challenged the immunity that [the technology

companies] have under Section 230 of the [Communications 

Decency Act]” and inquired whether Congress should make 

changes to that immunity. Am. Compl. ¶ 65. His comments

put the technology companies “on notice that they would need 

to comply with [Representative] Schiff’s position or risk his 

undertaking legislative action against . . . § 230.” Id. ¶ 66.

Representative Schiff also allegedly “negotiated the drafting 

and timing of his public correspondence with” the recipients of 

the letters “prior to finalizing and publicizing the 

correspondence,” id. ¶ 12, and his “outreach” to the technology

companies was a “substantial factor motivating” the following 

actions the companies subsequently took, id. The following 

year, on April 30, 2020, Representative Schiff posted on 

Twitter about another three similar letters he had sent to 

YouTube, Twitter, and Google’s parent company, Alphabet. 

Id. ¶ 77.

According to the Association, the technology companies 

have taken a number of steps to disfavor and deprioritize its 

vaccine-related information on their platforms. For example, 

Google’s initial response to Representative Schiff’s letter 

indicated that the company had “put a lot of effort into curbing 

misinformation in our products.” Id. ¶ 71. Google explained: 

“[W]e are and have been demonetizing anti-vaccination 

content under our longstanding harmful or dangerous 
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advertising policy.” Id. Facebook’s response likewise 

explained that its “approach . . . is to reduce the spread of 

inaccurate information about vaccines” and detailed some of 

its strategies. Id. In March 2019, Facebook announced a new 

policy of promoting links to government-sponsored 

information about vaccine safety in search results for vaccinerelated information. That policy was implemented in 

September of 2019. And in May 2019, Twitter announced a 

new policy of placing a “pro-government” disclaimer on 

vaccine-related information, including search results for the 

Association’s articles, which appellants allege carried the 

damaging implication that its perspective is “less credible.” Id.

¶¶ 74–75. In August 2019, Amazon “suddenly announced [the 

Association’s] termination from the Amazon Associates 

Program,” which allows participants to earn commissions 

when web users purchase products on Amazon via a link on the 

participant’s website. Id. ¶ 73. According to the Association, 

the circumstances of the termination “suggest[ed] either 

selective enforcement or an ulterior motive.” Id. These actions 

by the technology companies have “significantly depressed the 

internet traffic to the [Association’s] website.” Id. ¶ 78. The 

Association further alleges that “[a]s a result of 

[Representative] Schiff’s actions and those taken in response 

to Schiff’s actions by interactive computer services such as 

Google, Facebook, and Amazon . . . , the visits to the 

[Association’s] website declined significantly,” all while 

traffic to the Association’s non-vaccine-related content “held 

steady” and while visits from search engines that did not 

“disfavor” the Association’s vaccine-related content increased. 

Id. ¶ 11.

The district court granted Representative Schiff’s motion 

to dismiss the amended complaint pursuant to Federal Rule of 

Civil Procedure 12(b)(1) because appellants lacked Article III 

standing and because Representative Schiff was immune from 
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suit for the challenged actions under the Speech or Debate 

Clause, see Ass’n of Am. Physicians & Surgeons v. Schiff 

(“AAPS”), 518 F. Supp. 3d 505, 512 (D.D.C. 2021). The 

Association and Verrelli appeal. This court’s review is de 

novo, Rangel v. Boehner, 785 F.3d 19, 22 (D.C. Cir. 2015), and 

the court may “take up jurisdictional issues in any order,” and 

need not reach other grounds where one is dispositive, 

McCarthy v. Pelosi, 5 F.4th 34, 38 (D.C. Cir. 2021).

II.

The doctrine of standing “is an essential and unchanging 

part of the case-or-controversy requirement of Article III.” 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To 

establish standing, a party must have “(1) suffered an injury in 

fact, (2) that is fairly traceable to the challenged conduct of the 

defendant, and (3) that is likely to be redressed by a favorable 

judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338

(2016). For injury-in-fact, “a plaintiff must show that he or she 

suffered ‘an invasion of a legally protected interest’ that is 

‘concrete and particularized’ and ‘actual or imminent, not 

conjectural or hypothetical.’” Id. at 339 (quoting Lujan, 504 

U.S. at 560). For traceability, “there must be a causal 

connection between the injury and the conduct complained of,” 

Lujan, 504 U.S. at 560, and the injury must not be “th[e] result 

[of] the independent action of some third party not before the 

court,” id. (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 

26, 41–42 (1976)). “[W]hen the plaintiff is not . . . the object 

of the government action or inaction [being] challenge[d], 

standing is not precluded, but it is ordinarily ‘substantially 

more difficult’ to establish.” Id. at 562 (quoting Allen v. 

Wright, 468 U.S. 737, 758 (1984), abrogated on other grounds 

by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 

U.S. 118 (2014)).
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A.

Preliminarily, appellants suggest that they need not satisfy 

the usual standing requirements because they assert a First 

Amendment injury for which standing requirements are 

relaxed. They cite Broadrick v. Oklahoma, 413 U.S. 601 

(1973), as establishing that standing to bring First Amendment 

claims is subject to a “more deferential standard.” Appellants’ 

Br. 21. But in Broadrick, the Supreme Court held only that the 

“traditional rules of standing” operate differently when a 

plaintiff brings a facial overbreadth challenge to a statute.

Broadrick, 413 U.S. at 611–12. Because the “very existence” 

of an overbroad statute may chill protected speech, the Court

concluded that the need to ensure the litigants have a strong 

personal stake in the outcome is diminished in such a case. Id.

Appellants do not explain why that rationale is applicable 

here. They have alleged not a general chilling effect but rather 

an intentional effort by a government official to limit their 

speech in particular. Am. Compl. ¶¶ 92–94.

B.

The Association contends that it suffers three concrete 

injuries that suffice to establish standing: an impairment of its 

ability “to negotiate and to contract with interactive computer 

services,” Am. Compl. ¶ 18; a monetary injury from reduced 

web traffic that may affect its stream of donations; and a First 

Amendment injury based on the alleged “de-platform[ing]” of 

its content that harms its speech and associational interests, id.

¶ 11.

As for the claim that Representative Schiff interfered with 

the Association’s ability to contract with the technology 
8

companies, the Association has not plausibly alleged injury-infact. The Association maintains that Representative Schiff’s 

actions interfered with its “free negotiations” with the 

technology companies. Appellants’ Br. 19. But the 

Association never alleged that it has made any attempts at such 

negotiations, nor that it has concrete plans to do so in the future. 

“Such ‘some day’ intentions — without any description of 

concrete plans, or indeed even any specification of when the 

some day will be — do not support a finding of the ‘actual or 

imminent’ injury” that the Supreme Court has required. Lujan, 

504 U.S. at 564. Any harm to the Association’s interest in 

negotiating and contracting with the technology companies is 

therefore too speculative to support standing.

The Association appears to suggest that its preexisting 

contractual relationship with Amazon suffices to show its 

concrete plans to negotiate. Reply Br. 9. The Association was 

previously enrolled in the Amazon Associates Program, an 

“affiliate network[]” that allows “website owners to earn 

commissions based on their traffic.” Am. Compl. ¶ 73. 

According to the Association, Amazon terminated its 

enrollment in the program in August 2019 for reasons that 

appeared to the Association to be pretextual. But the 

Association has not alleged that it took any steps to rejoin the 

program, nor even that it would do so if given the opportunity. 

The Association’s previous relationship with Amazon 

therefore does not show the kind of specific intention to 

negotiate and contract with the technology companies that 

could establish actual, as opposed to speculative, injury-in-fact.

The Association’s other claimed injuries — to its financial 

prospects and to its speech and associational interests — are

not adequately supported by allegations that any injury is 

“fairly traceable” to Representative Schiff’s actions, Spokeo, 

578 U.S. at 338, even assuming the Association has plausibly 
9

alleged actual, concrete injury-in-fact. The Association 

complains of being “de-platform[ed]” and “disfavor[ed]” by 

the social media sites and search engines through which it 

promotes its vaccine-related information. Am. Compl. ¶ 11. 

But any actions limiting the accessibility of the Association’s 

web content were not taken by Representative Schiff; instead, 

as the amended complaint acknowledges, they were taken by 

independent third parties Facebook, Google, Amazon, Twitter, 

and YouTube. Id. ¶¶ 68–78.

Nonetheless, appellants maintain that the companies’ 

adverse action against the Association’s content is ultimately 

attributable to Representative Schiff’s statements, which they 

view to have implicitly threatened and coerced the technology 

companies. The amended complaint appears to allege a 

primary theory of causation based on two sets of statements by 

Representative Schiff. First, Representative Schiff sent the 

information-gathering letters to several major technology 

companies, including Google, Facebook, and Amazon, and 

shared copies of those letters as well as the responses in press 

releases posted on the House.gov website and in social media 

posts. Second, several months later, Representative Schiff 

made remarks at a hearing of the House Intelligence 

Committee, of which he is the chair, “challeng[ing] the 

immunity” that certain technology companies enjoy under the 

Communications Decency Act, 47 U.S.C. § 230. Am. Compl.

¶ 65. According to appellants, the companies understood that 

Representative Schiff was threatening to support changes to 

Section 230 if the companies declined to comply with his 

“wishes on other fronts,” including his concerns about 

“disfavored material on vaccinations on their platforms,” and 

his statements intimidated and “coerce[d]” the companies “to

censor content that he opposes.” Id. ¶ 67.
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Yet appellants’ allegations have not presented a plausible 

account of causation. Even assuming the Association’s content 

was indeed demoted in search results and on social media 

platforms, the technology companies may have taken those 

actions for any number of reasons unrelated to Representative 

Schiff. Appellants offer no causal link that suggests it was an 

isolated inquiry by a single Member of Congress that prompted 

policy changes across multiple unrelated social media 

platforms. The timeline of events in the amended complaint 

also undermines any possibility that the companies acted at 

Representative Schiff’s behest in particular. For example, the 

amended complaint quotes Google’s response to 

Representative Schiff’s letter, which explained: “[W]e are and 

have been demonetizing anti-vaccination content under our 

longstanding harmful or dangerous advertising policy.” Id.

¶ 71 (emphasis added). Likewise, the amended complaint itself 

acknowledges that several of the other adverse actions by the 

technology companies occurred before the June 2019 

Intelligence Committee hearing. For example, Facebook 

announced its new policy of prioritizing governmentsponsored vaccine information in search results in March 2019, 

id. ¶ 76, and Twitter introduced its search-results disclaimer 

directing users to government-sponsored vaccine information 

in May 2019, id. ¶ 74. Even assuming some of the policy 

changes to which appellants object were anticipatory in nature, 

the decisions by the companies seem to have occurred before 

Representative Schiff even sent the letters, and many took 

place before the hearing that purportedly coerced the 

companies to adopt Representative Schiff’s preferences.

Generously construing the allegations of the amended 

complaint, the Association also appears to suggest that 

causation is satisfied because Representative Schiff 

coordinated the “drafting and timing” of the letters with the 

tech companies before releasing them, and that the letters were 
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“a substantial factor motivating” the companies’ “actions to 

suppress vaccine-related information.” Id. ¶ 12. But this is 

exactly the kind of allegation the Supreme Court rejected in 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). After all, 

“a conclusory allegation of agreement at some unidentified 

point does not supply facts adequate to show illegality.” Id. at 

557. As in Twombly, these allegations are “merely consistent 

with,” but do not “plausibly suggest[],” the kind of coordinated 

action that would supply a causal link between Representative

Schiff’s statements and the technology companies’ actions. Id. 

Indeed, it is far less plausible that the companies’ actions were 

a response to one legislator’s inquiry than that they were a 

response to widespread societal concerns about online 

misinformation.2

C.

Appellant Verrelli, for her part, contends she suffers a kind 

of First Amendment injury as well because she now finds it 

more difficult to access the vaccine-related content she would 

like to view online. Verrelli, however, is not mentioned in the 

argument portion of appellants’ opening brief, so any 

contention that the district court erred in ruling that she lacks 

standing is forfeited. Al-Tamimi v. Adelson, 916 F.3d 1, 6 

(D.C. Cir. 2019). In any event, her claims suffer from the same 

causation deficiency as those of the Association. Even 

assuming the kind of vaccine-related information she would 

like to access is more difficult to locate on her preferred web 

sources, she has not plausibly alleged that this is attributable to 

Representative Schiff’s actions rather than an independent 

2 See Press Release, Schiff Sends Letter to Google, Facebook 

Regarding Anti-Vaccine Misinformation (Feb. 14, 2019), available 

at https://schiff.house.gov/news/press-releases/schiff-sends-letterto-google-facebook-regarding-anti-vaccine-misinformation; H.R. 

Res. 179, 116th Cong. (2019).
12

decision of the technology companies. As a result, she lacks 

standing to sue Representative Schiff.

III.

The district court also ruled that, apart from appellants’ 

failure to demonstrate Article III standing, it lacked subject 

matter jurisdiction because Representative Schiff’s challenged 

actions were “legislative acts” that were protected by the 

Speech or Debate Clause of the Constitution, U.S. CONST. art. 

I, § 6, cl. 1. AAPS, 518 F. Supp. 3d at 518–19. Because 

appellants have not established that they have Article III 

standing, the court need not reach the separate jurisdictional 

issue of Representative Schiff’s immunity under the Speech or 

Debate Clause. See Rangel, 785 F.3d at 22. Counsel for 

appellants suggested at oral argument, however, that the court 

should address the Speech or Debate Clause issue because it is 

implicated in appellants’ request for leave to amend the 

complaint for a second time. That is, if the court concludes 

they lack standing because any injury they suffer is attributable 

to “third part[ies] not before the court,” Lujan, 504 U.S. at 560

(quoting Simon, 426 U.S. at 42), namely, the technology 

companies, then the court should permit them to amend the 

complaint to join the technology companies as defendants. But 

appellants acknowledge that they did not seek leave to amend 

in the district court. They also acknowledge that the court 

generally does not grant leave to amend a complaint when it 

was not sought in the district court. Appellants’ Br. 54–55 

(citing Gov’t of Guam v. Am. President Lines, 28 F.3d 142, 

150–51 (D.C. Cir. 1994)). Further, their appellate briefs offer 

no reason why the court should deviate from its general 

practice here. To the extent counsel for appellants first argued

during oral argument that seeking leave to amend to cure the 

amended complaint’s standing deficiencies in the district court 

would have been futile given that court’s determination that 
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Representative Schiff was immune from suit under the Speech 

or Debate Clause, Oral Arg. Audio 42:12–43:59 (Dec. 10, 

2021), appellants did not alert Representative Schiff to this new 

argument, so it is forfeited. Al-Tamimi, 916 F.3d at 6.

Accordingly, because appellants offer no plausible basis to 

conclude that Representative Schiff’s inquiries caused the 

technology companies to implement the policy changes to 

which appellants object, they have not established standing, 

and we affirm the district court’s dismissal of their amended 

complaint.