The question presented is whether plaintiff Disability Advocates, Inc. (“DAI”) — a private nonprofit organization contracted to provide services to New York State’s protection and advocacy (“P & A”) system under the Protection and Advocacy for Individuals with Mental Illness Act (“PAI-MI”), 42 U.S.C. § 10801 et seq. — has standing to sue various state agencies and officials on behalf of certain individuals with mental illness residing in New York City for an alleged violation of the “integration mandate” of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
We conclude that because DAI does not have the “indicia of membership” required of nonmembership organizations for “associational standing,”
see Hunt v. Wash. State Apple Adver. Comm’n,
Because DAI lacks standing, we must also decide whether the intervention of the United States — which occurred after the determination of liability by the United States District Court for the Eastern District of New York (Nicholas G. Garaufís, Judge) but before the imposition of a remedy — was sufficient to cure the jurisdictional defect that would have barred the District Court from hearing the suit as originally brought. We hold that in the circumstances presented here it was not sufficient. We therefore vacate the March 1, 2010 judgment and remedial order of the District Court and dismiss the action for want of jurisdiction.
Background
A. The PAIMI
In 1986, Congress enacted PAIMI 1 in order to “ensure that the rights of individuals with mental illness are protected” and to “assist States to establish and operate a protection and advocacy system for individuals with mental illness which will ... protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes.” 42 U.S.C. *153 § 10801(b)(1), (b)(2)(A). 2 In line with these objectives, PAIMI conditions certain federal funding for states on the establishment of protection and advocacy (“P & A”) systems. 42 U.S.C. § 10803(2)(A). .The designated P & A system may be either an independent state agency or a private entity. 42 U.S.C. § 15044(a), incorporated by reference in 42 U.S.C. § 10802(2). In turn, P & A systems are authorized to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.” 42 U.S.C. § 10805(a)(1)(B).
New York has designated the Commission on Quality of Care and Advocacy for Persons with Disabilities (“CQCAPD”) as the State’s P & A system for persons with mental illness pursuant to PAIMI, 42 U.S.C. § 10821. 3 See N.Y. Mental Hyg. Law § 45.07(p) 4 ; 42 U.S.C. § 10821. In 1989, CQCAPD entered into a contract with DAI as permitted by 42 U.S.C. § 10804 5 and New York Mental Hygiene Law § 45.07(i). 6 See Disability Advocates, Inc. v. Pataki, No. 03-cv-3209 (NGG), Zucker Aff. ¶ 6, Docket No. 205 (E.D.N.Y. Dec. 3, 2007) (“Zucker Aff.”). 7 That contract “designates DAI as an authorized PAIMI agency and ... authorizes DAI to provide protection and advocacy services to individuals with mental illness throughout the state.” Id.
*154 B. Procedural History
On July 1, 2003, DAI initiated this action by filing suit against the Governor of the State of New York, the New York State Department of Health, the New York State Department of Mental Health, and the commissioners of those two agencies (collectively, the “State” or “defendants”)
8
on behalf of its “constituents”: individuals with mental illness as defined under 42 U.S.C. § 10802(4), who reside, or might one day reside, in specified “adult homes” in New York City.
9
Compl. ¶ 9. DAI alleged that the mental health system run by the State violated the “integration mandate” of Title II of the ADA, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, which requires the provision of mental health services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 CFR § 35.130(d);
see Olmstead v. L.C. ex rel. Zimring,
After discovery, the State brought a motion for summary judgment challenging, among other things, DATs standing to sue on behalf of its constituents under PAIMI and Article III of the United States Constitution. The District Court denied the motion for summary judgment and rejected the standing argument, concluding that DAI hаd statutory standing pursuant to § 10805(a)(1)(B)
10
and satisfied the minimum requirements of constitutional standing under Article III.
Disability Advocates, Inc. v. Paterson,
Following a five-week bench trial, the District Court concluded that “[i]n carrying out their administration of New York’s mental health service system, [defendants have denied thousands of individuals with mental illness in New York City the opportunity to receive services in the most integrated setting appropriate to their needs.” Disability Advocates, Inc. v. Paterson, 653 *155 F.Supp.2d 184, 314 (E.D.N.Y.2009) (“DAI II ”). Accordingly, in a September 8, 2009 memorandum setting forth findings of fact and conclusions of law, the District Court determined that DAI had adequately “proven that [defendants discriminated against DAI’s constituents in violation of the integration mandate of the Americans with Disabilities Act and the Rehabilitation Act.” Id. The Court announced its intention to enter “the appropriate injunctive remedy” following further briefing. Id.
On October 23, 2009, more than six years after the complaint was filed, the United States moved to intervene at the remedial stage of the litigation pursuant to Rule 24 of the Federal Rules of Civil Procedure.
11
United States Motion to Intervene, Docket No. 358 (E.D.N.Y. Oct. 23, 2009). Noting that “the United States’ [mjotion comes very late in the litigation process,” the District Court nevertheless determined that intervention would not “prejudice the original parties or unduly delay the proceedings concerning the appropriate injunctive remedy to be imposed.”
Disability Advocates, Inc. v. Paterson,
No. 03-cv-3209,
On March 1, 2010, the District Court rejected the State’s proposed remedial plan as “unreasonable and inadequate,”
Disability Advocates, Inc. v. Paterson,
No. 03-cv-3209,
(a) all Current Adult Home Residents who desire placement in supported housing have been afforded such placement if qualified, (b) all Future Adult Home Residents who desire placement in supported housing are promptly afforded such placement if qualified, and (c) no individual with mental illness who is qualified fоr supported housing is offered placement in an Adult Home unless, after being fully informed, he or she declines the opportunity to receive services in supported housing.
Id. at 3 (emphasis supplied). 13 Over the objection of defendants, the District Court ordered that a court-appointed monitor oversee the State’s compliance with the *156 injunctive relief imposed by the District Court. Id. at 8-9. By Order dated February 23, 2011, this Court granted a stay of the remedial order pending the outcome of this appeal.
C. This Appeal
Defendants appeal from the March 1, 2010 judgment and remedial order of the District Court. On appeal, they argue, among other things, that the District Court erred in concluding that DAI had constitutional standing to pursue this litigation. State’s Br. 74-79. Because standing is “the threshold question in every federal case” and raises an issue with respect to the Court’s subject-matter jurisdiction, we turn first to that claim.
Denney v. Deutsche Bank AG,
Discussion
A. Standard of Review
Whether a plaintiff has standing to sue is a question of law, which we review
de novo. See, e.g., Carver v. City of New York,
B. Associational Standing
What constitutes the “irreducible constitutional minimum of standing” is firmly established.
Lujan v. Defenders of Wildlife,
When an association asserts standing solely as the representative of its members, it “must allege that its members, or any one of them, are suffering immediate or threatened injury as a result
*157
of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.”
Warth,
an association has standing to bring suit on behalf of its members when: (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 purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
The
Hunt
Court concluded that the Washington State Apple Advertising Commission — a state agency charged by statute with the promotion and protection of the State’s aрple industry on behalf of apple growers and dealers — was not a membership organization, but it nevertheless satisfied the first prong of the associational standing test because “in a very real sense ... the Commission represented] the State’s growers and dealers and provide[d] the means by which they expressed] their collective views and protected] their collective interests.”
Id.
at 344-45,
In sum, the Supreme Court reasoned that, although the Commission did not have “members” in the “traditional” sense, its “constituency” possessed “all the indicia of membership.”
Id.
We have therefore recognized that — assuming the other criteria for associational standing are met— non-membership organizations may sue in a representative capacity when they “function[ ] effectively as a membership organization.”
In re Holocaust Victim Assets Litig.,
On the threshold jurisdictional question of standing, the only dispute is whether DAI — which is not a membership organization — satisfies the first prong of the test for associational standing under Hunt. Defendants argue that DAI cannot meet this requirement (ie. that its members would otherwise have standing to sue in their own right) because DATs constituents lack two key indicia of membershiр: representation and control. In turn, DAI and the United States contend that Hunt does not render representation and control the only indicia of membership sufficient to create “members” out of “constituents” for purposes of associational standing.
Pursuant to PAIMI, P & A systems must ensure that they are responsive to the needs of the community they were created to represent. Accordingly, the governing board of all P & A systems must be “composed of ... members ... who broadly represent or are knowledgeable about the needs of the clients served by the system”; such members are defined to include “individuals who have received or are receiving mental health services and family members of such individuals.” 42 *158 U.S.C. § 10805(c)(1)(B). In addition, a P & A system must:
establish an advisory council ... which shall include ... individuals who have received or are receiving mental health services, and family members of such individuals, and at least 60 percent the membership of which shall be comprised of individuals who have received or are receiving mental health services or who are family members of such individuals; and ... which shall be chaired by an individual who has received or who is receiving mental health services or is a family member of such an individual.
Id. § 10805(a)(6)(B-C). Finally, PAIMI also requires that P & A systems establish a grievance procedure for clients or prospective clients to “assure that individuals with mental illness have full access to the services of the system.” Id. § 10805(a)(9).
Whether these protections are sufficient to connote the “indicia of membership” required for associational standing under
Hunt
has not heretofore been addressed in this Circuit. Some, but not all, courts of appeals to address the question have concluded that they are sufficient.
See Or. Advocacy Ctr. v. Mink,
We need not — and do not — decide which of our sister circuits has the better of this argument, because DAI is not a P & A system but a contractor to the system, see notes 5-6, ante, designated to provide protection and advocacy services under PAIMI. Zucker Aff. ¶ 6. This distinction is critical tо the question of whether DAI has associational standing because the sole basis cited in both Stincer (Eleventh Circuit) and Mink (Ninth Circuit) for finding that P & A systems have associational standing to sue on behalf of individuals with mental illness is that § 10805 affords individuals with mental illness (and their families and representatives) the requisite “indicia of membership” in the administration of the system.
The Distinct Court did not consider whether DAI is subject to any of the statutory requirements under § 10805 such that it might satisfy the constitutional requirements for standing under
Hunt.
More importantly, however, DAI does not claim that its constituents have a sufficiently active affiliation with the organization.
Cf. Hunt,
To the extent DAI relies on District Court cases in this Circuit for the proposition that contractors have associational standing to sue on behalf of individuals with mental illness, those cases are inapposite in one of two ways. First, cases that have recognized the associational standing of non-membership organizations have almost exclusively concerned P & A
systems
rather than P & A
contractors
such as DAI.
See, e.g., State of Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Connecticut,
Hunt
held that the Constitution requires that the constituents of a non-membership organization manifest the “indicia of membership” for that organization to have associational standing to sue on their behalf. On the record before us, DAI has established that CQCAPD, New York’s P & A system, is bound by the statutory requirements of § 10805, but we can find no support for the proposition that DAI itself is subject to those requirements or has adopted the same statutory protections. Without those protections, there is no evidence that the individuals with mental illness on behalf of whom DAI brought this case have anything approaching the indicia of membership that is required under
Hunt,
much less that DAI “functions] effectively as a membership organization.”
See In re Holocaust Litig.,
*160 C. Intervention
The United States argues that even if DAI lacks standing to pursue this claim, the intervention of the United States after the completion of the liability phase of the case is sufficient to permit the case to move forward. We disagree.
We have long recognized that ‘“if jurisdiction is lacking at the commencement of [a] suit, it cannot be aided by the intervention of a [plaintiff] with a sufficient claim.’ ”
Pressroom Unions-Printers League Income Sec. Fund v. Cont’l Assurance Co.,
The logic that underlies this rule is clear enough. Intervention is a procedural means for entering an existing federal action.
See Canatella v. California,
In
Hackner v. Guar. Trust Co.,
Unlike in Hackner, however, the United States intervened in this case after the trial had concluded. Permitting this case to continue would allow the Hackner exception (that curative interventions be construed as separate actions when they are effected at the beginning of the proceedings) to swallow the clearly-established constitutional rule that intervention cannot cure any jurisdictional defect that would have barred the federal court from hearing the original action.
The fact that the United States adopted in its complaint the findings of fact and conclusions of law of thе District Court does not justify the conclusion that we should exercise our discretion to permit this case to proceed. The relevant question under
Hackner
is not whether the curative intervenor is prepared to take the case “as he finds it” for the sake of judicial economy, but rather, whether he entered sufficiently early in the litigation to ensure that parties “invoking] the court’s jurisdiction have ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions.’ ”
Duke Power Co. v. Carolina Envtl. Study Grp.,
In sum, we conclude that because “[t]he right to intervene presupposes an action duly brought,”
Pianta,
If a plaintiff lacks standing, the federal “courts have no business deciding [the case], or expounding the law in the course of doing so.”
DaimlerChrysler Corp. v. Cuno,
In reaching this conclusion, we are mindful of the possibility that this litigation will continue, inasmuch as the United States — whose standing is not disputed— has represented that, in the event of a dismissal on the basis of standing, it would re-file the action and submit the same evidence at a subsequent trial. Individual plaintiffs with standing could, of course, pursue further litigation as well, either in conjunction DAI or on their own. We are not unsympathetic to the concern that our disposition will delay the resolution of this controversy and impose substantial burdens and transaction costs on the parties, their counsel, and the courts. Should that situation arise, we are confident that the experienced and able district judge, as a consequence of his familiarity with prior proceedings, can devise ways to lessen those burdens and facilitate an appropriate, efficient resolution.
Although we are not presently required to consider the issue of remedy, we do have concerns about the scope of the proposed remedy. If this controversy continuеs, and if the renewed litigation reaches the remedial phase, the parties and the District Court will have another opportunity to consider an appropriate remedy.
Conclusion
To summarize, we conclude that:
(1) DAI lacks standing under Article III of the United States Constitution to bring this suit because it failed to demonstrate that that its constituents possess the “indicia of *163 membership” necessary for a non-membership organization to exercise associational standing. Hunt v. Wash. State Apple Adver. Comm’n,432 U.S. 333 , 343 [97 S.Ct. 2434 ,53 L.Ed.2d 383 ] (1977).
(2) The intervention of the United States after the complaint, discovery, disposition of motions for summary judgment, trial and the entry of the District Court’s findings of facts and conclusions of law with respect to plaintiffs claims on the merits was insufficient to cure the jurisdiсtional defect in the case as brought.
The District Court’s March 1, 2010 judgment and remedial order is therefore VACATED and the action is DISMISSED for lack of jurisdiction.
Each party shall bear its own costs.
Notes
. As we have previously explained, PAIMI was originally enacted
as the "Protection and Advocacy for Mentally Ill Individuals Act of 1986,” Pub.L. No. 99-319, 100 Stat. 478 (May 23, 1986), and was commonly referred to by the acronym "PAMII.” See, e.g., Ctr. for Legal Advocacy v. Hammons,323 F.3d 1262 , 1263 (10th Cir.2003). In 1991, amendments to the Act substituted "individuals with mental illness” for "mentally ill individuals” wherever it appeared in the Act. See Pub.L. No. 102-173, § 10(2), 105 Stat. 1217, 1219 (Nov. 27, 1991). The short title, however, remained unchanged until 2000, when Congress amended the short title so that the Act would be known by its current name, the "Protection and Advocacy for Individuals with Mental Illness Act,” or "PAIMI.” See Pub.L. No. 106-310, 114 Stat. 1101, 1193-94 (Oct. 17, 2000).
Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Hartford Bd. of Educ.,
. The term "individual with mental illness” is defined under PAIMI to mean any person
(A) who has a significant mental illness or emotional impairment, as determined by a mental health professional qualified under the laws and regulations of the State; and
(B) (i)(I) who is an inpatient or resident in a facility rendering care or treatment, even if the whereabouts of such inpatient or resident are unknown;
(II) who is in the process of being admitted to a facility rendering care or treatment, including persons being transported to such a facility; or
(III) who is involuntarily confined in a municipal detention facility for reasons other than serving a sentence resulting from conviction for a criminal offense; or
(ii) who satisfies the requirements of sub-paragraph (A) and lives in a community setting, including their own home.
42 U.S.C. § 10802(4). 42 U.S.C. § 10804(d) modifies the definition under certain circumstances for individuals with mental illness as defined under § 10802(4)(B)(i)(III). 42
U.S.C. 10804(d) (“The definition of 'individual with a mental illness’ contained in section 10802(4)(B)(iii) of this title shall apply ... only if the total allotment under this title for any fiscal year is $30,000,000 or more.”). None of the parties contend that § 10804(d) is applicable here.
. 42 U.S.C. § 10821(a) provides, in relevant part, that "[n]o allotment may be made under [PAIMI] to an eligible [P & A] system unless an application therefor is submitted to the Secretary [of Health and Human Services].”
. N.Y. Mental Hyg. Law § 45.07(p) grants CQCAPD the authority to "[a]dminister such protection and advocacy and client assistance programs as may be established by federal law, pursuant to such authorization or designation as may be required.”
. 42 U.S.C. § 10804 provides, in relevant part, that "an eligible system may use its allotment under [PAIMI] to enter into contracts with State agencies and nonprofit organizations which operate throughout the State” provided that "(A) such an agency shall be independent of any agency which provides treatment or services (other than advocacy services) to individuals with mental illness; and (B) such an agency or organization shall have the capacity to protect and advoсate the rights of individuals with mental illness.” 42 U.S.C. § 10804(a)(1).
. N.Y. Mental Hyg. Law § 45.07(f) grants CQCAPD the authority to "[e]nter into contracts with any person, firm, corporation, municipality or governmental agency for the performance of functions authorized by law.”
. Further citations to the District Court record are reflected as follows: [Name of Document], Docket No. — (E.D.N.Y.[date]). The District Court docket sheet conforms to the original caption of the case.
. All individual defendants were sued in their official capacities.
. Adult homes are a type of privately owned, for-profit adult care facility licensed by the State of New York and authorized to provide long-term residential care, rоom, board, housekeeping, personal care, and supervision to five or more adults unrelated to the operator. Joint Stipulations of Fact ¶¶ 2, 17, Docket No. 260 (E.D.N.Y. April 29, 2009). Pursuant to state law, adult homes are intended to provide care for individuals who do not need the level of care provided by a hospital or nursing home but who are nonetheless "unable or substantially unable to live independently” due to disability. N.Y. Soc. Servs. Law § 2(21). It is undisputed that all of the adult homes in New York State are populated entirely by people with disabilities and/or mental illness.
Disability Advocates, Inc. v. Paterson,
. In relevant part, § 10805(a)(1)(B) provides: "A system established in a State under section 103 to protect and advocate the rights of individuals with mental illness shall pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State[.]” 42 U.S.C. § 10805(a)(1)(B).
. Rule 24 provides, in relevant part, that intervention is mandatory for any party that "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a). In addition, Rule 24(b) provides for permissive intervention for "a federal or state governmental officer or agency ... if a party’s claim or dеfense is based on ... a statute or executive order administered by the officer or agency; or ... any regulation, order, requirement, or agreement issued or made under the statute or executive order.” Fed.R.Civ.P. 24(b)(2).
. On December 23, 2009, the District Court denied motions to intervene by two parties asserting the interests of adult homes.
See Disability Advocates, Inc. v. Paterson,
No. 03-cv-3209,
. The District Court’s judgment and remedial order went on to define Currеnt Adult *156 Home Residents as "DAI’s Constituents who are residents of an Adult Home" as of the entry of the order and Future Adult Home Residents as "DAI’s Constituents who are admitted to the Adult Homes during the four-year transition period and DAI’s Constituents who are admitted to the Adult Homes after the four-year transition period who desire placement in supported housing.” Judgment and Remedial Order at 4.
"Supported Housing” refers to scattered-site residential settings “in which individuals live in their own apartment and receive services to support their success as tenants and their integration into the community.”
Id.
The District Court's findings that (1) "virtually all of [DATs] constituents are qualified to receive services in ‘supported housing’ (2) supported housing is "a far more integrated setting” than adult homes; and (3) that DATs constituents are not opposed to receiving services in more integrated settings, served as the basis for the Court’s conclusion that "DAI ha[d] established a violation of the integration mandate of the ADA and the Rehabilitation Act.”
DAI II,
. Because defendants fail to raise their objection to DAI’s standing under PAIMI, see State’s Br. 74-81, that argument is deemed abandoned.
See, e.g., Major League Baseball Props. Inc. v. Salvino, Inc.,
. Our holding does not stand for the proposition that all organizations contracted to provide protection and advocacy within a P & A system necessarily lack standing. We do not reach the question of whether some such contractors can fulfill the statutory requirements under § 10805 and meet the constitutional threshold established under Hunt. We hold simply that, in the circumstances presented here, DAI has not met its burden to establish constitutional standing. We reject the argument that merely because DAI lacks standing to assert this claim on its own, it cannot fulfill its legislative responsibility to "pursue ... legal ... remedies to ensure the protection of individuals with mental illness.” 42 U.S.C. § 10805(a)(1)(B). In circumstances where P & A contractors cannot bring suits “in their own right” because of constitutional standing requirements, they may provide representation to individuals *160 with mental illness and litigate those cases in the names of those individuals. That contractors such as DAI must satisfy the minimum requirements of constitutional standing does not foreclose access to the federal courts for those organizations or the individuals whose interests they are intended to serve.
Indeed, as the District Court observed, citing one of plaintiff's own experts, "some of the current and former Adult Home residents who testified in this case engage in advocacy on behalf of Adult Home residents — they lobby State government, participate in rallies, and attend meetings of advocacy organizations for individuals with mental illness.”
DAI II,
. The United States also suggests that
Mullaney v. Anderson,
. Because we conclude that the intervention of the United States does not permit the case to proceed in the absence of proper jurisdiction at the commencement of the suit, we need not consider defendants' arguments on the merits.