and Submitted August 5, 2019 San Francisco, California
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
Seaborn (argued), Rebecca Williford, Jessica Agatstein, and
Freya Pitts, Disability Rights Advocates, Berkeley,
California, for Plaintiff-Appellant.
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
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
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.
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.
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'
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.
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.
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.
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.
HAWKINS, CIRCUIT JUDGE
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.
The Old Policy
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).
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 ...