American Diabetes Ass'n v. US Dept. of the Army ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN DIABETES ASSOCIATION, No. 18-15242
Plaintiff-Appellant,
D.C. No.
v. 5:16-cv-04051-
LHK
UNITED STATES DEPARTMENT OF THE
ARMY; RYAN D. MCCARTHY,
Secretary of the Army, in his official OPINION
capacity; UNITED STATES ARMY
FAMILY AND MORALE, WELFARE
AND RECREATION PROGRAMS;
UNITED STATES ARMY CHILD,
YOUTH AND SCHOOL SERVICES,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted August 5, 2019
San Francisco, California
Filed September 18, 2019
2 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY
Before: Eugene E. Siler, * Michael Daly Hawkins,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Hawkins
SUMMARY **
Mootness / Standing
The panel affirmed the district court’s Fed. R. Civ. P.
12(b)(1) dismissal of the American Diabetes Association’s
First Amended Complaint seeking injunctive and
declaratory relief under Section 504 of the Rehabilitation
Act concerning defendants’ provision of diabetes-related
care in the U.S. Army’s Child, Youth, and School Services’
(“CYSS”) programs.
The Association is a nationwide non-profit that has
assisted families that have assertedly experienced diabetes-
related discrimination in the CYSS programs. CYSS
operates programs that are sometimes the only childcare
options for families working and living on Army bases in
remote areas.
In July 2016, when the lawsuit began, the Army had in
place U.S. Army Regulation 608-10 and 2008 Family and
Morale, Welfare and Recreation Command Memorandum
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 3
(the “Old Policy”) which prohibited CYSS staff from
providing essential medical care for diabetic children. In
June 2017, defendants revoked the Old Policy and replaced
it with a “New Policy” that provides for possible diabetes-
related accommodations.
The panel held that the Association’s challenge to the
Old Policy, as well as the injuries incurred thereunder, were
moot where the Association sought only prospective relief.
Specifically, the panel held that defendants satisfied their
burden of clearly showing they cannot reasonably be
expected to reinstitute the Old Policy’s blanket prohibition
on care. The panel rejected the Association’s contention that
the voluntary cessation exception to mootness applied.
The panel held that the Association lacked standing to
challenge the New Policy. Specifically, first, the panel held
that the district court did not err by finding the Association
failed to establish organizational standing where the
Association did not show it diverted resources to combat the
New Policy, and thereby, did not establish ”injury in fact.”
Second, the panel held that the Association failed to establish
representational standing where none of its members had
standing to sue in their own right. The panel held that none
of the members had actual knowledge of the challenged
provisions at the time the operative complaint was filed, and
therefore, they would not have been deterred from enrolling
their otherwise eligible diabetic children as a result.
4 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY
COUNSEL
Stuart Seaborn (argued), Rebecca Williford, Jessica
Agatstein, and Freya Pitts, Disability Rights Advocates,
Berkeley, California, for Plaintiff-Appellant.
Edward Himmelfarb (argued) and Marleigh D. Dover,
Appellate Staff; Alex G. Tse, Acting United States Attorney;
Hashim M. Mooppan, Deputy Assistant Attorney General;
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellees.
Michael A. Greene, Richardson Wright LLP, Portland,
Oregon; Gregory G. Paul, Morgan & Paul PLLC, Pittsburgh,
Pennsylvania; John W. Griffin, Marek Griffin & Knaupp,
Victoria, Texas; for Amicus Curiae Pediatric Diabetes
Community.
Jocelyn Larkin, Lindsay Nako, and Daniel Nesbit, Impact
Fund, Berkeley, California, for Amici Curiae Impact Fund,
AARP, AARP Foundation, Animal Legal Defense Fund,
Bay Area Legal Aid, Civil Rights Education and
Enforcement Center, Law Foundation of Silicon Valley,
Legal Aid Association of California, Legal Aid at Work,
Legal Aid Foundation of Los Angeles, Legal Services for
Prisoners with Children, National Women’s Law Center,
Public Interest Law Project, Southern Poverty Law Center,
and Worksafe Inc.
Todd R. Geremia, Jones Day, New York, New York; Eli M.
Temkin, Jones Day, Minneapolis, Minnesota; for Amici
Curiae Disability Rights Organizations.
AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 5
OPINION
HAWKINS, Circuit Judge:
BACKGROUND
The American Diabetes Association (the “Association”)
is a nationwide nonprofit with a mission “to prevent and cure
diabetes and to improve the lives of those affected by
diabetes.” In furtherance of its mission, the Association,
inter alia, “conduct[s] advocacy for laws, regulations, and
policies that keep children with diabetes safe at school; . . .
[and] provid[es] legal information and assistance to
individuals and families experiencing diabetes-related
discrimination.” Over the past decade, the Association has
assisted families that have assertedly experienced diabetes-
related discrimination in the Army’s Child, Youth, and
School Services’ (“CYSS”) programs. CYSS operates
programs such as daycare, after-school care, and summer
camps for children and youth on military bases (among
others). These programs are sometimes the only childcare
options for families working and living on bases in remote
areas.
I. The Old Policy
In July 2016, when this lawsuit began, the Army had in
place United States Army Regulation 608-10 and a 2008
Family and Morale, Welfare and Recreation Command
Memorandum (collectively, “Old Policy”), which together
prohibited CYSS staff from providing essential medical care
for diabetic children. This version of Regulation 608-10
included a statement that:
[CYSS staff] will not perform functions that
require extensive medical knowledge (e.g.,
6 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY
determining the dosage or frequency of a
prescribed medication); are considered
medical intervention therapy (e.g., those not
typically taught to parents by physical,
occupational, speech therapists or special
educators as part of a home program); or if
improperly performed, have a high medical
risk (e.g., injection of insulin).
The 2008 memorandum stated that staff therefore were not
authorized to “[c]ount carbohydrates,” “[g]ive injections of
insulin to include manipulation of the insulin pump which is
an alternate method of delivering insulin,” or “[g]ive
injections of Glucagon, a rescue medication.” Although the
Army sometimes granted exceptions to the Old Policy, there
was no formal process for seeking or considering exceptions.
II. The New Policy
In June 2017, after plaintiffs filed their initial complaint,
defendants revoked the Old Policy and replaced it with three
documents: (1) a revised Regulation 608-10; (2) an Army
memorandum titled “Diabetes-Related Accommodations in
Child, Youth, and School Services Programs” (“Diabetes
Memorandum”); and (3) an Army memorandum titled
“Accommodation of Children and Youth with Diabetes in
Army Child, Youth, and School Services Programs”
(“Accommodation Memorandum”) (collectively, “New
Policy”). The amended Regulation 608-10 states that all
“requests for accommodation must be reviewed and assessed
individually” and that CYSS programs “must provide
special needs accommodations unless the requested
accommodation imposes an undue hardship on the Army,
fundamentally alters the [CYSS] program in which the
AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 7
accommodation is being made, or poses a direct threat to
staff or other participants in the program.”
The Diabetes Memorandum, inter alia, “rescind[s] in
[its] entirety” the 2008 memorandum, declares that staff may
provide accommodations such as counting carbohydrates
and administering glucagon, and provides that only the
Army’s Assistant Chief of Staff for Installation Management
(“ACSIM”) may deny an accommodation request.
The Accommodation Memorandum identifies counting
carbohydrates and administering insulin and rescue
medication as “[r]easonable accommodations” and sets forth
a multi-step process through which accommodation requests
will be considered. Thereunder, requests that do not
(1) require CYSS staff “to determine the correct insulin
dosage or to administer insulin,” or (2) meet a set of narrow
circumstances, such as imposing “an undue hardship” on the
Army, must be approved by the installation’s CYSS
Coordinator and implemented within ten weeks. However,
if the CYSS Coordinator’s recommendation is to deny the
request or the request requires CYSS staff “to determine the
correct insulin dosage or to administer insulin,” the matter
must be submitted to the Garrison Commander, who must
either approve the request or make a recommendation to the
ACSIM. Thus, it can take up to four months for insulin
accommodations to be fully approved and implemented.
III. Procedural Background
The Association filed its initial complaint in 2016,
seeking injunctive and declaratory relief for violations of
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
Specifically, the Association challenged defendants’
“blanket policy prohibiting the provision of critical diabetes-
related care.” On July 21, 2017, around six weeks after
8 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY
defendants instituted the New Policy, the Association filed
the operative amended complaint (“FAC”). Therein, the
Association, again seeking only prospective relief, alleges
the New Policy violates Section 504 of the Rehabilitation
Act by creating an impermissibly “burdensome
accommodation review process.”
Defendants moved to dismiss the FAC under Federal
Rule of Civil Procedure 12(b)(1), arguing the Association’s
claims against the Old Policy were moot and the Association
lacks standing to challenge the New Policy. The court
granted the motion and dismissed the FAC with leave to
amend. Thereafter, the Association filed notice of its intent
to stand on its pleading, and the court entered a final
Judgment of Dismissal. This timely appeal followed.
STANDARD OF REVIEW
We review de novo a dismissal for mootness and lack of
Article III standing. Bishop Paiute Tribe v. Inyo Cty.,
863 F.3d 1144, 1151 (9th Cir. 2017). Where, as here, a
defendant brings a factual jurisdictional attack under Rule
12(b)(1), the “court may review evidence beyond the
complaint without converting the motion to dismiss into a
motion for summary judgment.” Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “Once the
moving party has converted the motion to dismiss into a
factual motion by presenting affidavits or other evidence
properly brought before the court, the party opposing the
motion must furnish affidavits or other evidence necessary
to satisfy its burden of establishing subject matter
jurisdiction.” Id. (quoting Savage v. Glendale Union High
Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).
AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 9
DISCUSSION
The Association contends the district court erred by
concluding the injuries the Association suffered under the
Old Policy are moot and that the Association lacks standing
to challenge the New Policy. We address each argument in
turn.
I. Mootness
The Association contends its injuries under the Old
Policy are not moot because: (1) the New Policy continues
to violate the Rehabilitation Act; and (2) the voluntary
cessation doctrine applies.
a. Repeal and Replacement as Settling the
Controversy Regarding the Old Policy
“A case becomes moot . . . ‘when the issues presented
are no longer “live” or the parties lack a legally cognizable
interest in the outcome.’” Rosebrock v. Mathis, 745 F.3d
963, 971 (9th Cir. 2014) (quoting Already, LLC v. Nike, Inc.,
568 U.S. 85, 89 (2013)). Where the challenged conduct “has
been ‘sufficiently altered so as to present a substantially
different controversy . . . [,] there is ‘no basis for concluding
that the challenged conduct [is] being repeated.’” Chem.
Producers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 875
(9th Cir. 2006) (third alteration in original) (quoting Ne. Fla.
Chapter of Associated Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 662 n.3 (1993)). The
Association, citing Northeastern Florida, argues the New
Policy continues to discriminate against persons with
diabetes and thus does not moot the Association’s claims
under the Old Policy. There, however, the new city
ordinance continued the challenged practice “by another
10 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY
name” and thus “disadvantage[d] [the plaintiff] in the same
fundamental way.” 508 U.S. at 662.
Here, by contrast, the Association alleges the Old Policy
harmed it by placing a blanket prohibition on care, whereas
the New Policy allegedly harms the Association by
instituting a burdensome approval process. As it is
undisputed that the New Policy repealed the blanket
prohibition and specifically lists the subject
accommodations as reasonable, the policy “has been
‘sufficiently altered so as to present a substantially different
controversy.’” Helliker, 463 F.3d at 875 (quoting Ne. Fla.
Chapter of Associated Gen. Contractors of Am., 508 U.S.
at 662 n.3); see Outdoor Media Grp., Inc. v. City of
Beaumont, 506 F.3d 895, 901 (9th Cir. 2007) (holding
claims for injunctive and declaratory relief moot where “the
constitutional deficiencies . . . alleged in connection with the
original sign ordinance” had been cured).
b. Voluntary Cessation
The Association also argues the voluntary cessation
exception to mootness applies. Thereunder, “[t]he voluntary
cessation of challenged conduct does not ordinarily render a
case moot because a dismissal for mootness would permit a
resumption of the challenged conduct as soon as the case is
dismissed.” Rosebrock, 745 F.3d at 971 (quoting Knox v.
Serv. Employees Int’l Union, Local 1000, 567 U.S. 298, 306
(2012)). Thus, although courts “presume that a government
entity is acting in good faith when it changes its policy, . . .
when the Government asserts mootness based on such a
change it still must bear the heavy burden of showing that
the challenged conduct cannot reasonably be expected to
start up again.” Id. (citation omitted). It may do so by
persuading the court that “the change in its behavior is
‘entrenched’ or ‘permanent.’” Fikre v. FBI, 904 F.3d 1033,
AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 11
1037 (9th Cir. 2018) (quoting McCormack v. Herzog,
788 F.3d 1017, 1025 (9th Cir. 2015)). 1
The Association contends the district court erred by
finding the government automatically satisfied its burden by
amending Regulation 608-10. According to the Association,
the court should have applied the framework outlined in
Rosebrock, which expressly applies to policy changes “not
reflected in statutory changes or even in changes in
ordinances or regulations.” 745 F.3d at 963. This is so, the
Association argues, because, while the regulatory
amendment “deleted the prohibition on insulin
accommodations,” “all substantive provisions appear in
[the] policy memoranda that could be changed at any time.”
Even assuming Rosebrock’s “loose framework” of non-
exhaustive considerations is applicable here, defendants
have shown the conduct the Association challenged under
the Old Policy—the blanket refusal to provide diabetes-
related care—cannot reasonably be expected to recur.
First, “the policy change is evidenced by language that is
‘broad in scope and unequivocal in tone.’” Rosebrock,
745 F.3d at 972 (quoting White v. Lee, 227 F.3d 1214, 1243
(9th Cir. 2000)). The New Policy unequivocally renounces
the previously challenged prohibition on care and
Regulation 608-10 now provides that CYSS “must provide
special needs accommodations” unless a set of narrow
circumstances, such as “undue hardship,” are present.
1
Where, as here, the defendant has voluntarily ceased its challenged
conduct, the mootness inquiry bears “on the question whether a court
should exercise its power to enjoin the defendant from renewing the
practice, but that is a matter relating to the exercise rather than the
existence of judicial power.” City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283, 289 (1982).
12 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY
Further, the interpretive memoranda identify diabetic
accommodations as reasonable and announce a policy of
“promot[ing] the participation and inclusion of children and
youth with diabetes in [CYSS] programs and activities.”
Second, the New Policy “addresses all of the
objectionable measures that [the Government] officials took
against the plaintiffs” under the Old Policy. Id. (alteration
in original) (quoting White, 227 F.3d at 1243). Although the
Association contends the New Policy is infirm for other
reasons, the challenged prohibition on care has been
repealed.
Third, the Association concedes that this case “was the
catalyst for the [government’s] adoption of the new policy.”
Id. (quoting White, 227 F.3d at 1243). This weighs in favor
of a finding of mootness. Id.
Fourth, the New Policy has been in place for a relatively
long time—over two years. Cf. id. at 974 (finding this
consideration weighed in favor of a finding of mootness
where, at the time the court issued its opinion, the policy had
been in place for more than three years).
The fifth consideration, whether, since the New Policy’s
implementation, defendants “have not engaged in conduct
similar to that challenged by the plaintiff,” id. (quoting
White, 227 F.3d at 1243), also weighs in favor of a finding
of mootness. The Association relies on declarations from
parents who state that, about two months after the New
Policy was instituted, certain CYSS staff remained unaware
of the change. However, although the declarations evidence
some confusion in CYSS’s transition to the New Policy, they
show that, rather than continuing to enforce the Old Policy,
CYSS subjected new requests to the New Policy’s
procedures.
AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 13
Lastly, while a lack of “‘procedural safeguards’
insulating the new state of affairs from arbitrary reversal”
can counsel against mootness, Fikre, 904 F.3d at 1039, and
defendants have not offered evidence showing what
procedures insulate the New Policy, the policy change is
enshrined, at least in part, in a regulatory revision, and thus
stands in stark contrast to the policy changes this court has
found insufficient to render claims moot, cf. id. at 1039–40
(FBI’s decision to remove plaintiff from the no fly list was
“an individualized determination untethered to any
explanation or change in policy, much less an abiding
change in policy”); Bell v. City of Boise, 709 F.3d 890, 900–
01 (9th Cir. 2013) (where, inter alia, “the authority to
establish policy for the Boise Police Department is vested
entirely in the Chief of Police,” that official’s unilateral
“Special Order” did not moot case).
Under these circumstances, defendants have satisfied
their burden of clearly showing they cannot reasonably be
expected to reinstitute the Old Policy’s blanket ban. Thus,
as the Association seeks only prospective relief, its challenge
to that policy, as well as the injuries incurred thereunder, are
moot.
II. The Association’s Standing to Challenge the New
Policy
The Association contends that, even absent injuries
incurred under the Old Policy, it has standing to challenge
the New Policy on its own behalf and on behalf of its
members. Either basis would be sufficient to confer
standing, Am. Civil Liberties Union of Nevada v. Heller,
378 F.3d 979, 983 (9th Cir. 2004), and we address each in
turn.
14 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY
a. Organizational Standing
The Association contends it diverted resources to combat
the New Policy and thus has standing to sue on its own
behalf. This theory of standing has its roots in Havens Realty
Corp. v. Coleman, 455 U.S. 363 (1982). There, a fair
housing organization claimed the defendant’s discriminatory
housing practices “frustrated” the organization’s “ability to
provide counseling and referral services for low- and
moderate-income homeseekers,” and had forced the
organization “to devote significant resources to identify and
counteract the” alleged discriminatory practices. Id. at 379.
Thus, the organization established a “concrete and
demonstrable injury to [its] activities—with the consequent
drain on the organization’s resources—[that] constitute[d]
far more than simply a setback to the organization’s abstract
social interests.” Id.
Thus, under Havens Realty, an organization may
establish “injury in fact if it can demonstrate: (1) frustration
of its organizational mission; and (2) diversion of its
resources to combat the particular [conduct] in question.”
Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th
Cir. 2004). For example, in East Bay Sanctuary Covenant v.
Trump, 909 F.3d 1219 (9th Cir. 2018), as amended by 2018
WL 8807133 (9th Cir. December 7, 2018), the plaintiff
organizations created “education and outreach initiatives
regarding the [challenged] rule.” Id. at 1242. In National
Council of La Raza v. Cegavske, 800 F.3d 1032 (9th Cir.
2015), to counteract alleged voter registration violations,
civil rights groups “expend[ed] additional resources” that
“they would have spent on some other aspect of their
organizational purpose.” Id. at 1039. In these cases, the
plaintiffs were not “simply going about their ‘business as
usual,’” id. at 1040–41, but had altered their resource
AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 15
allocation to combat the challenged practices, see also Valle
del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013)
(finding organizational standing where the plaintiffs “had to
divert resources to educational programs to address its
members’ and volunteers’ concerns about the [challenged]
law’s effect”); Fair Hous. Council of San Fernando Valley
v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)
(finding organizational standing where the plaintiff, in
response to the defendant’s challenged practices, “started
new education and outreach campaigns targeted at
discriminatory roommate advertising”); Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach, 657
F.3d 936, 943–44 (9th Cir. 2011) (finding organizational
standing where resources directed toward “assisting day
laborers during their arrests and meeting with workers about
the status of the [challenged] ordinance would have
otherwise been expended toward [the advocacy group’s]
core organizing activities”); Smith, 358 F.3d at 1105 (finding
organizational standing where complaint was dismissed
without leave to amend and plaintiff alleged it “divert[ed] its
scarce resources from other efforts” so it could “monitor the
[subject] violations and educate the public regarding the
discrimination”); Fair Hous. of Marin v. Combs, 285 F.3d
899, 905 (9th Cir. 2002) (finding organizational standing
where plaintiff alleged it had expended thousands of dollars
to “redress[] the impact” of defendant’s discrimination and,
as a result, was unable “to undertake other efforts to end
unlawful housing practices”); El Rescate Legal Servs., Inc.
v. Exec. Office of Immigration Review, 959 F.2d 742, 748
(9th Cir. 1991) (finding organizational standing where
plaintiffs “expend[ed] resources in representing clients they
otherwise would spend in other ways”).
Here, the only resource the Association claims it diverted
as a result of the New Policy is the time one of its two staff
16 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY
attorneys took to handle a single intake call from an Army
parent. The staff attorney “explained the Army’s history of
policies and practices, the [New] Policy, the famil[y’s] rights
under federal law, and next steps in advocating for their
child.” According to the Association, that call prevented the
staff attorney from taking other calls concerning
discriminatory practices.
Such evidence shows that, unlike the plaintiffs in Havens
Realty and our cases applying it, the Association did not
divert any resources but was merely going about its business
as usual. Its staff attorneys dedicate a portion of their time
to taking calls, and one Army parent used that service. The
Association has not shown that, at the time the operative
complaint was filed and as a result of the New Policy, the
Association had altered or intended to alter its resource
allocation to allow its attorneys to take a higher volume of
calls or separately address the New Policy. See Scott v.
Pasadena Unified Sch. Dist., 306 F.3d 646, 655 (9th Cir.
2002) (holding that courts “must consider the facts as they
existed at the time that the complaint was filed”). Thus, the
court did not err by finding the Association failed to establish
organizational standing. 2
2
Because the Association has failed to show any diversion of
resources under Havens Realty, the Association’s reliance on United
States v. Students Challenging Regulatory Agency Procedures (SCRAP),
412 U.S. 669, 689 n.14 (1973), for the proposition that the staff
attorney’s inability to take other calls constitutes an “identifiable trifle”
sufficient to confer standing is misplaced. For the same reason, we need
not and do not reach the Association and amici’s contentions that the
court erred by (1) imposing a quantitative threshold on resource
diversion (i.e., requiring the Association show it redirected enough
resources to “perceptibly impair” its mission); and (2) holding that the
resources must be expended outside the organization’s usual scope of
work.
AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 17
b. Representational Standing
An organization has standing to sue on behalf of its
members where: “(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 purposes; and
(c) neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.” Ecological Rights Found. v. Pac. Lumber Co.,
230 F.3d 1141, 1147 (9th Cir. 2000) (quoting Hunt v. Wash.
State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).
Here, the interests the Association seeks to protect are
germane to its purpose and no claim asserted or relief
requested requires the participation of the Association’s
members. Thus, we must determine whether any of the
Association’s members have standing to sue in their own
right.
In that regard, the Association contends the New
Policy’s accommodation procedures have deterred two of its
members, Bendlin and Brantly, from enrolling their eligible
diabetic children in CYSS programs. 3 In support of its
position, the Association relies on our case law under the
Americans with Disabilities Act (“ADA”), wherein we have
found standing where plaintiffs have “actual knowledge” of
an access barrier and are deterred from accessing the
accommodation as a result. See Civil Rights Educ. & Enf’t
Ctr. v. Hosp. Props. Tr., 867 F.3d 1093, 1099 (9th Cir. 2017)
3
Defendants contend the Association was required to identify in its
complaint the members on which it relies and failed to do so. However,
the Association asserted representational standing in the FAC and
provided declarations from Bendlin and Brantly in response to
defendants’ Rule 12(b)(1) motion to dismiss. That is sufficient.
18 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY
(“It is the plaintiff’s ‘actual knowledge’ of a barrier, rather
than the source of that knowledge, that is determinative.”).
Defendants contend such ADA cases are inapplicable
because where, as here, a plaintiff seeks accommodation in
a government program (rather than a public accommodation)
the plaintiff must “provide the governmental entity an
opportunity to accommodate them through the entity’s
established procedures used to adjust the neutral policy in
question.” Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d
565, 578–79 (2d Cir. 2003); see also Oxford House-C v. City
of St. Louis, 77 F.3d 249, 253 (8th Cir. 1996) (holding the
plaintiff’s Fair Housing Act claim unripe where the plaintiff
refused to apply for a zoning variance). However, the
plaintiffs in those cases refused to seek variances from the
challenged practices through the defendant’s unchallenged
accommodation procedures. Tsombanidis, 352 F.3d at 579;
Oxford House-C, 77 F.3d at 253. Here, the Association
seeks to bring a facial challenge to the accommodation
procedures themselves. Thus, failure to first seek
accommodation thereunder does not render the
Association’s claims unripe.
Defendants do not argue that our cases analyzing
standing in the ADA context are otherwise inapplicable.
Indeed, “[t]here is no significant difference in analysis of the
rights and obligations created by the ADA and the
Rehabilitation Act,” Zukle v. Regents of Univ. of Cal.,
166 F.3d 1041, 1045 n.11 (9th Cir. 1999), and any difference
in the statutes’ application or standards for relief on the
merits is irrelevant to the question of what constitutes an
Article III injury, cf. Kirola v. City & Cty. of San Francisco,
860 F.3d 1164, 1174 n.3 (9th Cir. 2017) (holding that,
despite different applications of Title II (discrimination in
public services) and Title III (discrimination in public
AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 19
accommodations) of the ADA, “the answer to the
constitutional question of what amounts to injury under
Article III is the same”). Thus, if Bendlin or Brantly had
actual knowledge of the New Policy’s challenged provisions
at the time the operative complaint was filed and have been
deterred from enrolling their otherwise eligible diabetic
children as a result, they, and thus the Association, have
standing. See Scott, 306 F.3d at 655. 4
The operative complaint was filed on July 21, 2017. In
their declarations, executed August 17, 2017, and August 18,
2017, respectively, Bendlin and Brantly aver that they
“recently learned” the Army revised its policy and that the
Association provided them with a copy of the revised policy
on August 14. Both then state that, having “reviewed [the]
revised policy,” they take issue with its provisions. Even
when viewed in the light most favorable to the Association,
such statements are insufficient to show either Bendlin or
Brantly had actual knowledge of the challenged provisions
at the time the operative complaint was filed. See Leite v.
Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (“When the
defendant raises a factual attack [under Rule 12(b)(1)], the
plaintiff must support her jurisdictional allegations with
‘competent proof,’ under the same evidentiary standard that
governs in the summary judgment context.” (citation
4
To the extent the Association contends Brantly suffered an injury
separate and apart from being deterred because her child attended a
CYSS program from June 12 (the day the New Policy was adopted) to
June 30, 2017, and was not afforded insulin accommodations during that
period, the Association’s reliance thereon is unavailing. As “past wrongs
do not in themselves amount to [a] real and immediate threat of injury
necessary to make out a case or controversy” for prospective relief, City
of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983), Brantly’s standing
rests on whether she has been deterred.
20 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY
omitted)). Thus, the court did not err by finding the
Association failed to establish representational standing. 5
CONCLUSION
For the reasons set forth above, any challenge to the Old
Policy is moot, and the Association lacks standing to
challenge the New Policy.
AFFIRMED.
5
In the facts section of its brief, the Association mentions a third
member, Erwin, who avers: “I received a copy of CYSS’s revised policy
from the Association on August 14. I reviewed it, and I am still not sure
if it is worth the trouble in trying to get the accommodations again.”
Such statements are similarly insufficient to show the declarant had
actual knowledge of the challenged provisions on July 21, 2017.