Greenlining Institute v. FCC ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREENLINING INSTITUTE; et al., No. 17-73283
Petitioners, FCC No. 17-154
v.
MEMORANDUM*
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
______________________________
USTELECOM-THE BROADBAND
ASSOCIATION,
Intervenor.
On Petition for Review of an Order of the
Federal Communications Commission
Argued and Submitted August 27, 2019
Seattle, Washington
Before: McKEOWN and BYBEE, Circuit Judges, and GAITAN,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
The Greenlining Institute, Public Knowledge, The Utility Reform Network,
and the National Association of State Utility Consumer Advocates (collectively,
“Petitioners”) seek review of a November 2017 order and declaratory ruling issued
by the Federal Communications Commission. The parties are familiar with the
facts, so we do not repeat them here. We have jurisdiction under 47 U.S.C. § 402and 28 U.S.C. § 2342(1), and deny the petition because Petitioners lack standing.
At least one petitioner must have Article III standing for each of the
challenges raised on appeal. See Town of Chester v. Laroe Estates, Inc., 137 S. Ct.
1645, 1650–51 (2017). “The party invoking federal jurisdiction bears the burden
of establishing standing,” which “must be supported in the same way as any other
matter on which [that party] bears the burden of proof.” Nw. Envtl. Def. Ctr. v.
Bonneville Power Admin., 117 F.3d 1520, 1528 (9th Cir. 1997).
“[A]n 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.’” Am. Diabetes Ass'n v. U.S. Dep't of the
Army, 938 F.3d 1147, 1154 (9th Cir. 2019) (quoting Smith v. Pac. Props. & Dev.
Corp., 358 F.3d 1097, 1105 (9th Cir. 2004)). Petitioners offer no estimate of the
resources that will be diverted as a result of the order, let alone “uncontradicted
evidence” that the proposed actions “required, and will continue to require, a
diversion of resources, independent of expenses for this litigation, from their other
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initiatives.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 766 (9th Cir.
2018). Petitioners accordingly lack independent standing.
Petitioners have similarly failed to establish associational standing, which
requires that one of their “members would otherwise have standing to sue in their
own right, the interests at stake are germane to the organization's purpose, and
neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). Although Petitioners’ purpose is
germane to the interests at stake in this appeal, which does not require the
participation of individual members, no member has demonstrated that “he or she
‘is immediately in danger of sustaining some direct injury as the result of the
challenged official conduct and the injury or threat of injury is both real and
immediate, not conjectural or hypothetical.’” Scott v. Pasadena Unified Sch. Dist.,
306 F.3d 646, 656 (9th Cir. 2002) (quoting City of L.A. v. Lyons, 461 U.S. 95, 102
(1983)). The Supreme Court has “repeatedly reiterated that ‘threatened injury
must be certainly impending to constitute injury in fact,’ and that ‘[a]llegations of
possible future injury’ are not sufficient.” Clapper v. Amnesty Int'l USA, 568 U.S.
398, 409 (2013) (alteration in original) (citations omitted). Here, Petitioners
demonstrate no such certain, impending harm.
PETITION DENIED.
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