American Sports Council v. United States Department of EducationAmerican Sports Council v. United States Department of Education
est and postjudgment interest in that the former is a part of the determination of the case on the ‘merits.’ “); Southern Industries of Clover, Ltd. v. Hardick, No. 92-5750, 1999 WL 76891, at *2 (S.D.N.Y. Feb. 8, 1999) (“As distinguished from postjudgment interest, prejudgment interest is normally considered to be an element of the judgment itself, viz., relief on the merits, and hence is governed by
Nigeria challenges Continental‘s request for postjudgment interest in only the most cursory fashion: it simply points out that the Court did not award such interest in the Judgment and contends, without explanation, that doing so would have contradicted the arbitration award and the U.K. judgment. See Opp. at 5. Because Continental was statutorily entitled to an award of postjudgment interest, and because making this determination now does not require the Court to revisit the merits of Continental‘s claim, the Court‘s failure to provide for such interest can be characterized as a “mistake arising from oversight or omission.”
The Court will not enter a corrected Judgment, however, until the matters discussed in the first two sections of this Opinion have been briefed by the parties and resolved by the Court.
III. CONCLUSION
For the foregoing reasons, Continental‘s motion will be granted in part and held in abeyance in part. An Order consistent with this Opinion shall issue this same day.
SO ORDERED.
Matthew J.B. Lawrence, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, District Judge.
Plaintiff American Sports Council has sued the Department of Education and the Secretary of Education (“defendants“) alleging that they violated the Administrative Procedure Act,
Defendants have moved to dismiss for lack of subject matter jurisdiction on the ground that plaintiff lacks standing to pursue its claims, or, in the alternative, for failure to state a claim. For the reasons
BACKGROUND
In 1972, Congress passed Title IX, which provides that, subject to certain limitations, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]”
Plaintiff American Sports Council is a “coalition of coaches, athletes, former-athletes, parents, and fans” organized as a nonprofit in the District of Columbia. (Compl. ¶ 4.) Plaintiff and its predecessor organization (College Sports Council) have advocated reform or repeal of defendants’ 1979, 1996, 2003, and 2005 guidance. (See Compl. ¶ 4; Defs.’ Mem. in Support of Mot. to Dismiss (“Defs.’ Mot.“), at 1-2.) Having failed in its prior efforts, plaintiff petitioned defendants on June 19, 2007, pursuant to the APA,
On July 21, 2011 plaintiff filed a complaint for declaratory and injunctive relief seeking (1) declarations that defendants’ petition denial violates the APA,
ANALYSIS
I. LEGAL STANDARD
Defendant‘s motion to dismiss for lack of Article III standing challenges fulfillment of an “essential and unchanging predicate to any exercise of our jurisdiction.” Nat‘l Ass‘n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C.Cir.2011) (internal citations and quotation marks omitted). “For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Muir v. Navy Federal Credit Union, 529 F.3d 1100, 1105 (D.C.Cir.2008) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)) (quoted in parenthetical). Plaintiff bears the burden of establishing proper standing “at the outset of a case.” Sierra Club v. EPA, 292 F.3d 895, 901 (D.C.Cir.2002).
In alleging facts sufficient to establish the “irreducible constitutional minimum” of Article III standing, plaintiff must demonstrate that it or those it represents suffered an injury-in-fact, the cause of which is fairly traceable to the defendants’ challenged conduct, and which a favorable judicial decision would likely redress. See Ctr. for Law and Educ. v. Dep‘t of Educ., 396 F.3d 1152, 1157 (D.C.Cir.2005) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). A “mixture of speculation and conclusory assertion does not satisfy the Supreme Court‘s requirement for ‘specific, concrete facts’ demonstrating injury, and ‘particularized allegations of fact.‘” Block v. Meese, 793 F.2d 1303, 1308 (D.C.Cir.1986) (quoting Warth, 422 U.S. at 508).
When causation and redressability “hinge on the independent choices of [a] regulated third party, ‘it becomes the burden of the plaintiff to adduce facts showing that these choices have been or will be made in such manner as to produce causation and permit redressability of injury.‘” Nat‘l Wrestling Coaches Ass‘n v. Dep‘t of Educ., 366 F.3d 930, 938 (D.C.Cir.2004) (“NWCA“) (quoting Lujan, 504 U.S. at 562). A plaintiff has not shown a redressable injury, and therefore lacks Article III standing, when “it is purely speculative that a requested change in government policy will alter the behavior of regulated third parties that are the direct cause of the plaintiff‘s injuries.” Id. at 938 (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976)). On the other hand, a plaintiff‘s injury is redressable when “the relief sought, assuming that the court chooses to grant it, will likely alleviate the particularized injury” alleged. Fla. Audubon Soc‘y v. Bentsen, 94 F.3d 658, 663-64 (D.C.Cir.1996) (citation omitted).
In an effort to defeat defendants’
II. STANDING BASED ON DENIAL OF PETITION FOR RULEMAKING
Under
The Circuit was presented with an argument similar to the one plaintiff makes here in Gettman. In that case, the DEA denied a petition by John Gettman and High Times Magazine to initiate rulemaking proceedings to reschedule marijuana under
The Circuit came to a similar conclusion in Fund Democracy, in which an advocacy organization attempted to intervene in the SEC exemption proceeding of a company, but the SEC declined to give the plaintiff a hearing and granted the exemption. Fund Democracy, 278 F.3d at 23-25. Plaintiff then brought suit and alleged that it had standing to sue as an “interested person” to whom Congress intended to grant a right to a hearing before the SEC. Id. at 27; see also
Furthermore, plaintiff‘s assertion that the APA authorizes judicial review here does not reinforce its claim to standing based solely on denial of its Petition. (See Compl. ¶ 18.) In Hydro, a developer of hydroelectric power projects petitioned FERC as an “interested part[y]” under the Federal Power Act,
Hydro reasoned that if denial of an agency petition were alone sufficient to confer standing on the petitioner, Congress could perform an end run around the Article III “cases” or “controversies” requirement by granting a right to petition agencies to tangential parties. See id. Thus, even assuming arguendo, as plaintiff alleges, that the APA “grants the right of judicial review to interested parties when an agency denies a petition to rescind a rule” (Compl. ¶ 18), Congress would have no power to grant petitioner this right when, as here, plaintiff has no underlying Article III interest in receiving the relief requested in its Petition.4 Regardless of whether Congress intended to grant plaintiff the right to judicial review under the APA, plaintiff cannot have standing to bring this suit solely on the basis of defendants’ denial of its Petition.
Plaintiff‘s attempts to distinguish Hydro and Fund Democracy are unavailing. Plaintiff attempts to limit both Hydro and Fund Democracy to a petitioner who was not a party, noting that the Hydro plaintiff “was not directly involved in the petitioned for matter” and that the Fund Democracy plaintiff “did not have a concrete interest in the exemption petition filed by the investment company with the SEC.” (See Pl.‘s Opp‘n at 6.) Yet Hydro clearly stated, without reference to plaintiff‘s interest vel non in the matter before FERC, that a
In the face of this well-established precedent, plaintiff relies on a case it previously litigated—College Sports Council v. Department of Education, 357 F.Supp.2d 311 (D.D.C.2005), rev‘d per curiam, 465 F.3d 20 (D.C.Cir.2006) (“CSC”)—which is factually similar to this one. The story of CSC dates back to NWCA v. U.S. Dept. of Educ., 263 F.Supp.2d 82 (D.D.C.2003), aff‘d, 366 F.3d 930 (D.C.Cir.2004). In NWCA, the Circuit affirmed the district court‘s dismissal for lack of standing of the plaintiff men‘s college wrestling advocates’ statutory and constitutional claims that the Department of Education and other defendants unlawfully applied the Three-Part Test to college athletic programs. NWCA, 366 F.3d at 949. The Circuit reasoned that while the plaintiffs alleged that the defendants’ application of the Three-Part Test to colleges led to elimination or reduction of men‘s wrestling teams, the injury “results from the independent decisions of federally funded educational institutions that choose to eliminate or reduce the size of men‘s wrestling teams in order to comply with Title IX.” Id. at 933. More relevant to plaintiff‘s argument here, Judge Emmet G. Sullivan of this Court in NWCA accepted a theory of automatic standing by finding that “improper denial of a petition brought under
A year later in CSC, plaintiffs sought review for claims substantially similar to those in NWCA. See 357 F.Supp.2d at 311; (see also Compl. ¶ 4.) Judge Sullivan dismissed several of these claims as res judicata, but this time he rejected the argument that the Department of Education‘s
CSC is not dispositive, for it did not hold, as plaintiff argues, that standing can be based solely upon defendants’ denial of its Petition. With regard to denial of the CSC plaintiff‘s petition for rulemaking, the Circuit only held that “[t]he judgment in [NWCA] is not res judicata as to this issue, and... the allegations of the complaint are sufficient to confer standing to bring this new claim.” CSC, 465 F.3d at 23. Although the Circuit provided no explanation for finding the CSC complaint sufficient to confer standing, there are obvious differences between that case and this one which undercut plaintiff‘s argument here, despite NWCA‘s prior holding that plaintiff lacked standing to challenge the Three-Part Test‘s application to college athletics.
The CSC complaint included (1) an affidavit and facts indicating a nexus between the Three-Part Test and school decisions to cut programs that affected CSC members, (2) a claim that the College Sports Council intended to pursue administrative complaints against schools if the relief requested were to be granted, and (3) allegations of unlawful interference by the government in interactions between members of the College Sports Council and individual schools. (See CSC, Am. Compl., No. 03-2588, at ¶¶ 18-32 (July 30, 2004)). As the College Sports Council itself argued before the Circuit (see Appellants’ Corrected Brief, No. 05-5133, at 14-29 (March 15, 2006)), all of these allegations in favor of a finding of standing could lead a court to conclude that the defects in standing outlined in NWCA were cured in the CSC complaint. In other words, the CSC complaint alleged facts showing some underlying cognizable injury, not foreclosed by res judicata and independent from the denial of plaintiff‘s petition for rulemaking, upon which the Circuit may have based standing. In this case, plaintiff limits its standing allegations to the conclusory statements that “the Council has standing for declaratory and injunctive relief to sue the Department over the denial of its Petition” and that the “APA grants the right of judicial review to interested parties when an agency denies a petition to rescind a rule.” (Compl. ¶¶ 4, 18.) The differences between the allegations in the CSC complaint and those in this case counsel against a conclusion that the Circuit‘s unexplained decision in CSC should be interpreted as an implicit reversal of Hydro, Fund Democracy, Gettman, and Shipbuilders.6
Moreover, the Circuit in CSC at no point endorsed the theory that denial of a rulemaking petition automatically confers standing;7 it only announced that “[R]efusals to institute rulemaking proceedings... are subject to a judicial check.” CSC, 465 F.3d at 23 (alterations in original) (quoting Nat‘l Customs Brokers & Forwarders Ass‘n of Amer., Inc. v. United States, 883 F.2d 93, 96 (D.C.Cir.1989) (“National Customs Brokers“)). National Customs Brokers only notes that refusals to initiate rulemaking are not presumptively unreviewable like nonenforcement decisions, but it does not stand for the proposition that denials of rulemaking petitions are sufficient to confer standing. Id. at 96 (“While Heckler v. Chaney, 470 U.S. 821 (1985), teaches that nonenforcement decisions are presumptively unreviewable, we recently clarified that refusals to institute rulemaking proceedings remain outside Chaney‘s core and are subject to a judicial check.“).
To interpret CSC‘s holding and its citation to National Customs Brokers to mean that plaintiff has standing based solely on defendants’ denial of its Petition would contravene Circuit precedent that requires plaintiff to demonstrate an underlying injury to satisfy the requirements of Article III. Consistent with that precedent, this Court finds that since petitioners cannot “demonstrate an injury in fact, both particularized and concrete, as required by the Constitution, they lack standing to appear before an Article III court.” Gettman, 290 F.3d at 434.
III. ASSOCIATIONAL STANDING
Alternatively, plaintiff claims standing to bring this suit as the representative of “coaches, athletes, former-athletes, parents, and fans” affected by the application of the Three-Part Test. (See Pl.‘s Opp‘n at 7-9.) The Supreme Court reaffirmed in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 342 (1977), that “an association may have standing solely as the representative of its members” where, inter alia, its members would have standing to sue in their own right. See also Fund Democracy, 278 F.3d at 25-26 (applying Hunt test); Am. Legal Found. v. FCC, 808 F.2d 84, 89 (D.C.Cir.1987) (same). In Hunt, the Supreme Court granted associa-tional
Plaintiff has not alleged facts sufficient to show that any one of the individuals or entities it claims to represent has standing to sue in its own right, defeating its claim to associational standing.8 The only potentially cognizable injuries to purported members that plaintiff alleges, albeit in a conclusory fashion, are that defendants’ “application of the three-part test to high school athletics will result in reductions in beneficial athletic opportunities for student-athletes, and fewer coaching opportunities” (Compl. ¶ 21) and that plaintiff‘s purported members “have been, are, and will be directly, adversely, and irreparably affected by the Department‘s illegal determination to apply the Three-Part Test to high school athletics.” (Compl. ¶ 30.)
The Circuit has already rejected arguments for associational standing in the Title IX context. See NWCA, 366 F.3d at 933-34. Difficulties with the lack of concreteness, particularity, and immediacy of the alleged injuries notwithstanding, causation and redressability here “hinge on the independent choices” of a third party to this suit, the federally-funded high schools that fall under defendants’ regulations. Id. at 938. “The Supreme Court has made it clear that ‘when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish.‘” Id. at 933 (quoting Lujan, 504 U.S. at 562).
Plaintiff does not claim to represent the direct object of defendants’ regulations. In light of the Circuit‘s decision in NWCA, plaintiff also fails to allege sufficient facts showing that defendants’ actions either caused injuries to those whom it does claim to represent, or that such injuries could be redressed by a favorable decision from this Court. Moreover, plaintiff‘s Petition calls for a repeal as applied to high schools of the 1979, 1996, 2003, and 2005 regulations, but neither Title IX itself nor the 1975 implementing regulations. (See Compl. Ex. 1 at 1). Thus, even if this Court were to grant the sought-after relief and order defendants to initiate rulemaking pursuant to plaintiff‘s Petition, third party high schools “would still have the discretion to eliminate [plaintiff‘s members‘] programs, as necessary, to comply with the gender equity mandate of Title IX.” See NWCA, 366 F.3d at 933. The standing claims of plaintiff‘s purported members, and thus plaintiff‘s associational standing claim, are defective for precisely the reasons set forth in NWCA. See id.
While plaintiff does assert that high school “administrators have expressed concerns over the ramification to student athletes of having to comply with the proportionality mandates of the Three-Part Test” (Compl. ¶ 23), those concerns do not change the fact that it is “purely speculative that a requested change in govern-ment
IV. ORGANIZATIONAL STANDING
Plaintiff‘s final theory of standing is that defendants’ actions caused injury to the organization itself, and that this injury is redressable by a favorable decision from this Court. (See Pl.‘s Opp‘n at 9-11.) While it is true under Havens Realty Corporation v. Coleman, 455 U.S. 363, 378-82 (1982), that an organization can have standing based upon cognizable injury to itself, that claim fails here for lack of causation and redressability.
“[W]e begin an inquiry into Havens standing by asking whether the defendant‘s allegedly unlawful activities injured the plaintiff‘s interest in promoting its mission.” Am. Soc. for Prevention of Cruelty to Animals v. Feld Entm‘t, Inc., 659 F.3d 13, 25 (D.C.Cir.2011) (citation omitted). Plaintiff alleges that defendants’ refusal to rescind the Three-Part Test as applied to high school athletics frustrates its organizational mission. (See Pl.‘s Opp‘n at 10-11.) Yet, regardless of whether defendants’ Petition denial conflicts with plaintiff‘s mission of “preserving and promoting opportunities for students to participate in organized athletics at the collegiate and high school levels” (Compl. ¶ 4), the “presence of a direct conflict between the defendant‘s conduct and the organization‘s mission is necessary—though not alone sufficient—to establish standing.” Nat‘l Treasury Emp. Union v. United States, 101 F.3d 1423, 1430 (D.C.Cir.1996). To claim organizational standing, plaintiff must allege that its “activities have been impeded[,]” not just that its “mission has been compromised.” See Abigail Alliance for Better Access v. Eschenbach, 469 F.3d 129, 133 (D.C.Cir.2006) (citation omitted). Thus, the allegation that defendants’ actions impede plaintiff‘s other activities by necessitating diversion of resources to combat the campaigns of “activist groups” to “apply the Three-Part Test to high school Athletics” becomes central to plaintiff‘s claim. (See Pl.‘s Opp‘n at 10-11.)
There can be no organizational standing where plaintiff cannot “show ‘actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.‘” Equal Rights Ctr. v. Post Properties, Inc., 633 F.3d 1136, 1138 (D.C.Cir.2011) (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.1990)). Here, plaintiff fails to allege that its diversion of resources was “fairly traceable” to defendants’ conduct, or that a favorable court decision would redress the organizational injuries suffered by that diversion. Plaintiff alleges, without any supporting facts, that defendants’ denial of its Petition directly caused unregulated third parties to file administrative complaints, over two years later, seeking application of the Three-Part Test to high school athletics. (See Pl.‘s Opp‘n at 10.) In this context, causation and redressability turn on the independent decisions of third party activist groups, meaning that plaintiff must allege additional facts linking defendants’ conduct to the third party activist groups’ decisions. As the Supreme Court stated in Lujan:
When... a plaintiff‘s asserted injury arises from the government‘s allegedly
unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction—and perhaps on the response of others as well. The existence of one or more of the essential elements of standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict, and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.
504 U.S. at 561-62 (internal citations and quotation marks omitted).
Based on plaintiff‘s pleadings, even if this Court were to grant the requested relief, the decision of third party activist groups to file Title IX administrative complaints against school districts would remain a matter within the discretion of those groups. Plaintiff‘s failure to allege any facts showing a link between the actions of the third party activist groups and defendants’ denial of its Petition negates a showing of any causation or redressability here.9 The claim that activist groups filed complaints “[p]ursuant to the Department‘s failure to clarify that the Three-Part Test does not apply to high school athletics” (Pl.‘s Opp‘n at 10) is no more than “mere ‘unadorned speculation’ as to the existence of a relationship between the challenged government action and the third-party conduct [and] ‘will not suffice to invoke the federal judicial power.‘” See NWCA, 366 F.3d at 938 (quoting Simon, 426 U.S. at 44). Without showing that its organizational injury is fairly traceable to defendants’ conduct or that such injury is redressable by a favorable decision, plaintiff cannot claim organizational standing.
CONCLUSION
Plaintiff does not have standing merely by virtue of the procedural injury suffered by defendants’ denial of its Petition. In addition, plaintiff‘s failure to allege sufficient facts to show defendants’ actions caused the relevant injuries suffered, or that a favorable court decision would redress these injuries, defeats its claims of associational and organizational standing. Therefore, this Court is without subject matter jurisdiction, and will grant defendants’ motion to dismiss. A separate Order accompanies this Memorandum Opinion.
ELLEN SEGAL HUVELLE
UNITED STATES DISTRICT JUDGE
Notes
Compliance [with Title IX] will be assessed in any one of the following ways: (1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or (3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.
44 Fed. Reg. 71418 (Dec. 11, 1979).