Much as sister courts and the Second Circuit have found in other lawsuits brought by Plaintiffs, the Court here finds that Plaintiffs have failed to establish that they have suffered a concrete, particularized injury. See Liu v. Ryan, 724 F. App'x 92, 93 (2d Cir. 2018) (summary order); Equal Vote Am. Corp. v. Cong., 397 F. Supp. 3d 503, 508-09 (S.D.N.Y. 2019). As previously mentioned, Plaintiff Liu claims that he has standing here due to the various concerns he has for his safety — all of which stem from funding shortfalls to various federal agencies — as well as a supposed "double-charge" he has incurred as a result of Governor Cuomo's commitment to pay for the continuing operation of the Statue of Liberty and Ellis Island.

District courts in this Circuit have held similarly. See, e.g., Pen American Center, Inc. v. Trump, 448 F. Supp. 3d 309, 320-321 (S.D.N.Y. 2020) ("Plaintiff is required to identify at least one affected member by name."); Equal Vote America Corp. v. Congress, 397 F. Supp. 3d 503, 509 (S.D.N.Y. 2019) ("[I]n order to bring claims on behalf of its members under the 'associational standing' doctrine, an organizational plaintiff . . . must identify, by name, at least one member with standing.").

(“Further amendment would thus be futile, as no amendment to the pleadings could change the state of the law then in existence.”); see also Equal Vote Am. Corp. v. Cong., 397 F.Supp.3d 503, 512 (S.D.N.Y. 2019), aff'd in part, remanded in part sub nom. Liu v. United States Cong., 834 Fed.Appx. 600 (2d Cir. 2020) (denying leave to amend as futile because the plaintiffs lacked standing to sue). Furthermore, courts routinely deny leave to amend when a plaintiff has already filed an amended complaint.

“Article III of the Constitution limits federal courts' jurisdiction to certain ‘Cases' and ‘Controversies,'” an element of which “is that plaintiffs ‘must establish that they have standing to sue.'” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013) (citation omitted); see also Equal Vote Am. Corp. v. Congress, 397 F.Supp.3d 503, 507 (S.D.N.Y. 2019) (“‘The irreducible constitutional minimum' necessary to establish subject matter jurisdiction is standing.” (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992))), aff'd in part, remanded in part sub nom. Liu v. U.S. Cong., 834 Fed.Appx. 600 (2d Cir. 2020). “To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,' (2) a sufficient ‘causal connection between the injury and the conduct complained of,' and (3) a ‘likel[ihood]' that the injury ‘will be redressed by a favorable decision

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a complaint must be dismissed for lack of subject matter jurisdiction when “the court ‘lacks the statutory or constitutional power to adjudicate it.'” Cortlandt St. Recovery Corp. v. Hellas Telecomms., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). A complaint “must be dismissed for lack of subject matter jurisdiction” where defendants are “entitled to immunity” in “their legislative roles.” Equal Vote Am. Corp. v. Cong., 397 F.Supp.3d 503, 512 (S.D.N.Y. 2019), affd in part, remanded in part sub nom. Liu v. U.S. Cong., 834 Fed.Appx. 600 (2d Cir. 2020).

Nor does LBA allege that its members have a "legally protected" right (deriving, e.g., from a statute, regulation, or contract) to occupy the role of Incident Commander and with "complete" rather than shared control over operations. See, e.g., Equal Vote America Corp. v. Congress, 397 F. Supp. 3d 503, 508 (S.D.N.Y. 2019) (no standing where there was no plausible allegation of a legally protected interest in equally-sized congressional districts across states); Diamond v. Charles, 476 U.S. 54, 75, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (a legally protected interest is one "accorded some degree of legal protection"); cf. Strubel, 842 F.3d at 188 (legally protected interest where created by statute); N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 295 (2d Cir. 2012) (attorney-organization had cognizable interest in attending hearings as a matter of professional responsibility to clients). LBA in fact affirmatively disclaims that it is suing for breach of contract.

Here, because Plaintiffs lack standing, and their claims are otherwise moot, their Amended Complaint should be dismissed without leave to amend, since doing so would be futile. Kimmel v. N.Y. State Assembly, No. 20-CV-1074 (KAM) (ARL), 2020 WL 6273975, at *3 (E.D.N.Y. Oct. 26, 2020) (denying leave to amend where “[a] pleading amendment would not cure plaintiff's standing deficiency”); Equal Vote Am. Corp. v. Congress, 397 F.Supp.3d 503, 512 (S.D.N.Y. 2019) (finding that “[b]ecause Plaintiffs lack standing to sue, amendment would be futile,” and denying leave to amend). In reaching this conclusion, the Court has considered the possibility that Plaintiffs theoretically could amend to (1) challenge the Order instead of EEO 317; (2) seek damages for injuries that they allegedly suffered as a result of ConEd's compliance with the Order; and (3) allege that they sought, but were denied, exceptions or accommodations with respect to the Order's requirements.

See, e.g., Pen Am. Ctr., Inc., 448 F. Supp. 3d at 320-21 (rejecting the "argu[ment] that Plaintiff need not name an injured member at the pleading stage for associational standing" and holding that "Plaintiff is required to identify at least one affected member by name" (internal quotations and citations omitted)); Equal Vote Am. Corp. v. Pelosi, 397 F. Supp. 3d 503, 509 (S.D.N.Y. 2019) ("And in order to bring claims on behalf of its members under the 'associational standing' doctrine, an organizational plaintiff such as EVA must identify, by name, at least one member with standing."); Residents & Fams. United to Save Our Adult Homes v. Zucker, No. 16-cv-1683 (NGG) (RER), 2018 WL 1175152, *6 (E.D.N.Y. Mar. 5, 2018) (finding an association lacked standing because it did not specifically identify and name members who were injured). Plaintiff cites one case from this District that reached a contrary result.

See Conn. Parents Union v. Russell-Tucker, 2021 WL 3519947, at *4 (2d Cir. Aug. 11, 2021) (“An organization can satisfy the injury prong if it shows that the challenged action did not merely harm its “abstract social interests” but “perceptibly impaired” its activities.” (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982))); Equal Vote Am. Corp. v. Cong., 397 F.Supp.3d 503, 508-09 (S.D.N.Y. 2019) (holding that Equal Vote America did not have organizational standing because the organization itself was not injured, even though the challenged activity affected all its members). Plaintiff has not alleged any facts supporting an inference that the Union itself suffered an injury.

"The shield of sovereign immunity protects not only the United States but also its agencies and officers when the latter act in their official capacities." Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir. 2005); accord Equal Vote Am. Corp. v. Congress, 397 F. Supp. 3d 503 (S.D.N.Y. 2019), aff'd sub nom. Liu v. U.S. Congress, 834 F. App'x 600 (2d Cir. 2020) (summary order). Furthermore, "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."