938 F.3d 1147
9th Cir.2019Background
- The American Diabetes Association (Association) sued the U.S. Army challenging a 2016 Army policy (Old Policy) that broadly prohibited CYSS staff from providing essential diabetes care (e.g., counting carbs, manipulating insulin pumps, administering glucagon/insulin).
- In June 2017 the Army replaced the Old Policy with a New Policy: revised Regulation 608-10 and two memoranda that rescinded the blanket ban, identified certain diabetes care as "reasonable accommodations," and established a multi-step review process (installation coordinator → Garrison Commander → ACSIM for some insulin requests), potentially taking up to four months for insulin approvals.
- The Association filed suit in 2016 seeking only prospective (injunctive/declaratory) relief under Section 504 of the Rehabilitation Act; after the New Policy was issued the Association amended the complaint in July 2017 to challenge the New Policy’s review process as burdensome.
- The district court dismissed the amended complaint for mootness of the Old Policy claims and for lack of Article III standing to challenge the New Policy; the Association appealed.
- On review the Ninth Circuit held the repeal/replacement of the Old Policy rendered the Old Policy claims moot and concluded the Association lacked both organizational standing (insufficient resource diversion) and representational standing (member declarations post-dated the complaint).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of challenge to Old Policy | New Policy perpetuates discrimination; Old Policy harms not cured | Repeal/replacement created a substantially different controversy | Moot — New Policy sufficiently altered the challenged conduct |
| Voluntary cessation / permanence of change | Memoranda implementing New Policy could be reversed; change not entrenched | Regulatory revision, broad unequivocal language, time elapsed, and being catalyzed by litigation show permanence | Govt met heavy burden; voluntary cessation exception not triggered |
| Organizational standing (Havens diversion) | Association diverted resources to combat New Policy (staff attorney handled an Army parent intake) | Single intake call is routine work, no cognizable diversion or mission frustration | No organizational standing — diversion was de minimis / business as usual |
| Representational standing (members deterred) | Two members deterred from enrolling children because of burdensome procedures | Members lacked "actual knowledge" of challenged provisions at time complaint was filed | No representational standing — declarations post-dated filing and insufficient to show Article III injury |
Key Cases Cited
- Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (case-or-controversy/mootness requires a live dispute)
- Northeast Florida Chapter of Associated General Contractors v. City of Jacksonville, 508 U.S. 656 (1993) (repeal/replacement analysis where new law continues the same fundamental harm)
- Rosebrock v. Mathis, 745 F.3d 963 (9th Cir. 2014) (voluntary cessation framework and non-exhaustive considerations for permanence)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) (organizational standing via diversion of resources and mission frustration)
- Fikre v. FBI, 904 F.3d 1033 (9th Cir. 2018) (demand that government show policy change is "entrenched" to defeat voluntary cessation)
- Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) (application of Havens to show diversion and standing)