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American Diabetes Association v. United States Department of Army

United States Court of Appeals, Ninth Circuit

September 18, 2019

American Diabetes Association, Plaintiff-Appellant,
v.
United States Department of the Army; Ryan D. McCarthy, Secretary of the Army, in his official capacity; United States Army Family and Morale, Welfare and Recreation Programs; United States Army Child, Youth and School Services, Defendants-Appellees.

          Argued and Submitted August 5, 2019 San Francisco, California

          Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding D.C. No. 5:16-cv-04051-LHK

          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.

          Before: Eugene E. Siler, [*] Michael Daly Hawkins, and Jacqueline H. Nguyen, Circuit Judges.

         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 "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.

          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., 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 ...


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