American Sports Council v. United States Department of Education ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
AMERICAN SPORTS COUNCIL )
)
Plaintiff, )
)
v. )
) Civil Action No. 11-1347 (ESH)
UNITED STATES DEPARTMENT OF )
EDUCATION, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
Plaintiff American Sports Council has sued the Department of Education and the
Secretary of Education (“defendants”) alleging that they violated the Administrative Procedure
Act, 5 U.S.C. § 706 et seq. (“APA”), when they denied plaintiff’s Petition to Repeal, Amend,
and Clarify Rules Applying Title IX to High School Athletics (“Petition”). Plaintiff seeks
declaratory and injunctive relief to prevent defendants from applying their rules implementing
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (“Title IX”), to high
schools.
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 that follow, the Court concludes that plaintiff lacks standing and therefore, it will
grant defendants’ motion.
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[.]” 20 U.S.C. § 1681(a). Congress amended Title IX in
1974 with language requiring the Department of Health, Education, and Welfare (“HEW”)1 to
promulgate implementing regulations. Education Amendments of 1974, Pub. L. No. 93-380, §
844, 88 Stat. 484, 612 (1974). HEW issued these regulations, 40 Fed. Reg. 24128 et seq. (June
4, 1975), and subsequently issued a 1979 Policy Interpretation, 44 Fed. Reg. 71413 et seq. (Dec.
11, 1979) (“Three-Part Test”), to guide institutions on how to comply with Title IX.2 The
Department also issued policy clarifications to the Three-Part Test in 1996, 2003, 2005, and
2010. (Compl. ¶ 13.)
1
Congress established the Department of Education as a successor to HEW in The Department
of Education Organization Act, Pub. L. No. 96-88, § 201, 93 Stat. 668, 674 (1979).
2
The Three-Part Test provides:
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).
2
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, 5 U.S.C. § 553(e), to initiate rulemaking that
would “rescind existing application of the Three-Part Test to high school athletics.”3 (Pl.’s
Opp’n at 12; see also Compl. Ex. 1, at 3, 13-15.) In a four-page letter dated March 27, 2008,
former Secretary of Education Margaret Spellings declined plaintiff’s Petition. (Compl. Ex. 2.)
On July 21, 2011 plaintiff filed a complaint for declaratory and injunctive relief seeking
(1) declarations that defendants’ petition denial violates the APA, 5 U.S.C. § 706(2)(A), (2)(B);
(2) an injunction preventing defendants from using the Three-Part Test with respect to high
schools; and (3) an injunction requiring the Department to initiate rulemaking in accordance with
plaintiff’s Petition. (Prayer for Relief ¶¶ 1-5). Before the Court is defendants’ motion to dismiss
the complaint. Under Rules 12(b)(1) and 12(b)(6), given the Court’s holding that plaintiff lacks
standing, it need not address defendants’ alternative motion to dismiss for failure to state a claim.
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
3
Plaintiff asserts that a petition to rescind existing application of a rule is distinct from a petition
that seeks to initiate rulemaking proceedings. (See Pl.’s Opp’n at 12.) This distinction is
semantic, as the APA defines a petition for rulemaking as a “petition for the issuance,
amendment, or repeal of a rule” (emphasis added). 5 U.S.C. § 553(e)
3
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)).
4
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’ Rule 12(b)(1) motion, plaintiff claims it has standing to
bring this suit as: (1) an agency petitioner independently injured by defendants’ refusal to grant
plaintiff’s requested rulemaking (see Pl.’s Opp’n at 1-2); (2) a representative of members who
have purportedly suffered cognizable injury as a result of defendants’ refusal to grant plaintiff’s
requested rulemaking (see Pl.’s Opp’n at 7-9); and (3) an organization that has itself suffered a
cognizable injury as a result of defendants’ refusal. (See Pl.’s Opp’n at 9-11.)
II. STANDING BASED ON DENIAL OF PETITION FOR RULEMAKING
Under APA § 553(e), “[e]ach agency shall give an interested person the right to petition
for the issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). Plaintiff alleges that
defendants’ denial of its § 553(e) Petition violated the APA, and was thus itself a cognizable
injury conferring constitutional standing. (See Compl. ¶¶ 4, 18, 29; Pl.’s Opp’n at 1-2.) This
theory cannot survive in light of extensive Circuit precedent holding that “the grant of a
procedural right alone cannot serve as the basis for Article III standing unless the procedures in
question are designed to protect some threatened concrete interest of [petitioner’s] that is the
ultimate basis of his standing.” Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002) (alteration
in original) (citing Fund Democracy, LLC v. SEC, 278 F.3d 21, 27 (D.C. Cir. 2002) (“Fund
Democracy”)); see also Hydro Investors, Inc. v. FERC, 351 F.3d 1192, 1197 (D.C. Cir. 2003)
(“Hydro”); Shipbuilders Council of Amer. v. United States, 868 F.2d 452, 456 n.3 (D.C. Cir.
1989). Because plaintiff has not satisfied this test, its claim to standing based on denial of its
Petition must fail.
5
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 21 U.S.C. § 811(a). 290 F.3d at
432. The plaintiffs contended that because 21 U.S.C. § 811(a)(2) permitted “any interested
party” to file a petition to initiate rulemaking, they had “automatic standing” to appeal the DEA’s
denial of their petition in federal court. Id. at 433. The Circuit separated its standing inquiry
from the DEA’s petition denial, holding that even given the DEA’s petition denial, “unless
petitioners can demonstrate an injury in fact . . . they lack standing to appear before an Article III
court.” Id. at 434. Plaintiff distinguishes Gettman by pointing to the Circuit’s decision to uphold
dismissal of the plaintiff magazine’s claim on the grounds that the magazine lacked associational
standing (see Pl.’s Opp’n at 9), but this distinction is inapposite because the Circuit separately
rejected an argument that the DEA’s refusal to initiate rulemaking alone conferred Article III
standing on the plaintiffs. Id. at 433.
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. 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 17 C.F.R.
270.0-5. Consistent with Gettman, the Circuit held that even assuming Congress had intended to
grant to plaintiff the statutory right to intervene in an SEC exemption proceeding, “the
deprivation of that right does not alone confer Article III standing.” Fund Democracy, 278 F.3d
at 28 (“Fund Democracy has no standing” to bring suit for review of SEC order when only
grounds for standing is adverse order itself).
6
Section 553(e) of the APA permits plaintiff to petition defendants for rulemaking just as a
federal statute, 21 U.S.C. § 811(a), permitted Gettman to petition the DEA for rulemaking and
federal regulations, 17 C.F.R. 270.0-5, permitted Fund Democracy to petition for a hearing in
SEC exemption proceedings; but as Gettman and Fund Democracy recognized, the right to
petition agencies is not alone sufficient to confer standing for purposes of review in federal court.
See Gettman, 290 F.3d at 434; Fund Democracy, 278 F.3d at 28. The Circuit precedent is
clear—plaintiff must demonstrate an underlying cognizable injury, aside from the petition denial
itself, to seek review of that denial in federal court.
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, 16 U.S.C. § 825e, alleging that a licensing arrangement between
two other corporations violated distinct provisions of the Federal Power Act. 351 F.3d at 1194.
FERC rejected all of the developer’s claims and the developer subsequently brought suit alleging
that FERC “has failed to regulate [the relevant] projects in accordance with the Federal Power
Act.” Id. The Circuit held that although the Federal Power Act grants the right to petition FERC
to any person complaining of a violation of the Act, FERC’s denial of such a petition was not
alone sufficient grounds to demonstrate Article III standing—even if the denial created a
statutory right to judicial review under the Federal Power Act. Id. at 1197. In so ruling, the
Circuit noted that “[i]f the petitioner has no Article III concrete interest in receiving the relief
requested before the agency, this Court has held, Congress has no power to grant a petitioner a
right to seek judicial review of an agency's decision to deny him relief.” Id. (citing Gettman, 290
F.3d at 433; Fund Democracy, 278 F.3d at 27-28).
7
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 petitioner “has not been
independently wronged simply because the agency denied his advisory request.” 351 F.3d at
1197. Fund Democracy similarly found that “[p]articipation in agency proceedings is alone
insufficient to satisfy judicial standing requirements.” 278 F.3d at 27. Furthermore, even
granting that plaintiff has a relatively heightened interest in its Petition as compared to the
plaintiffs in Hydro and Fund Democracy, the proper question for this Court is whether plaintiff
4
It is far from clear that Congress intended to grant the right to judicial review to disappointed
agency petitioners who have not independently met the prerequisites for Article III standing. In
fact, the language of the APA provision granting the statutory right to judicial review
demonstrates just the opposite, since Congress recognized cognizable injury to be a necessary
prerequisite to such review. See 5 U.S.C. § 702 (“A person suffering legal wrong because of an
agency action . . . is entitled to judicial review thereof.”) (emphasis added).
8
has suffered an injury cognizable under Article III, and not whether plaintiff has a direct and
concrete interest in filing an agency rulemaking petition. See Gettman, 290 F.3d at 433 (“The
sufficiency of the sort of ‘interest’ allowing an interested party to petition an agency at the will
of Congress and the justicially protectable ‘interest’ required for an inquiry to afford standing in
the courts is fundamentally the difference between the political branches on the one hand and the
Article III courts on the other.”). Plaintiff’s status as the sole interested petitioner in this case
does not alter its obligation to show an underlying cognizable injury aside from the petition
denial.
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. 2007) (“CSC”)—which is factually similar to
this one. The story of CSC dates back to NWCA, 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. 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 5 U.S.C. § 553(e) constitutes a concrete and
particularized injury, directly caused by the agency to which the petition was addressed, and
9
redressable by this Court through remand to the agency for proper consideration of the petition.”
263 F. Supp. 2d at 126. 5 As to this holding by Judge Sullivan, the Circuit found that the
plaintiffs had not properly petitioned the defendant for repeal or amendment of the Three-Part
test, and that a new petition pending before the defendants was not ripe for review. NWCA, 366
F.3d at 949. Thus, the Circuit did not reach the automatic standing argument which the district
court had endorsed.
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 denial of a new petition to repeal the Three-Part Test as applied to college athletics
alone conferred standing on plaintiffs. CSC, 357 F. Supp. 2d at 313. Addressing plaintiffs’
claim of automatic standing in light of the Circuit’s Gettman and Shipbuilders rulings, Judge
Sullivan departed from NWCA to hold that “[a]lthough APA § 553(e) requires agencies to
receive and consider rulemaking petitions from interested persons, the provision does not
independently create jurisdiction to challenge denials of such petitions.” Id. On appeal, the
Circuit upheld partial dismissal on res judicata grounds, but found that the “District Court
erroneously concluded that appellant College Sports Council lacked standing to seek judicial
review of the Department’s denial of the petition to initiate rulemaking” and remanded with
instructions to review the merits of the plaintiff’s petition denial claim under an “‘extremely
limited’ and ‘highly deferential’” standard of review. CSC, 465 F.3d at 23 (citing WWHT, Inc. v.
5
While this holding supports plaintiff’s theory of automatic standing, as explained herein, this
Court does not find it persuasive. It conflicts with the Circuit’s guidance in Gettman, Fund
Democracy, Hydro, and Shipbuilders, it was never explicitly affirmed by the Circuit, and
ultimately Judge Sullivan reversed himself in his subsequent decision in CSC. See 357 F. Supp.
2d at 313.
10
FCC, 656 F.2d 807, 818 (D.C. Cir. 1981)). Plaintiff voluntarily dismissed the suit before
proceedings on remand, and now, over three years later, plaintiff brings this suit, again attacking
the Three-Part Test claiming standing based on the denial of a petition. (See CSC, Notice of
Voluntary Dismissal, No. 03-2588 [Dkt. 37].)
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
11
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.3d 93, 96 (D.C. Cir. 1989) (“National Customs Brokers”)). National Customs Brokers
6
Because the Circuit in CSC neither sat en banc nor asserted that the full Circuit had been
consulted on the issue, an implicit reversal of this sort would be anathema. See United States v.
Caldwell, 543 F.2d 1333, 1370 n. 19 (D.C. Cir. 1974) (citations omitted) (The Circuit “has long
adhered to the rule that a recent decision of one panel may not be overruled by another panel, but
only by the court en banc.”); Irons v. Diamond, 670 F.2d 265, 268 n. 11 (D.C. Cir. 1981) (One
panel may reverse another on a discrete point of law provided that the reversal “resolves an
apparent conflict between two prior decisions” and “has been separately considered and
approved by the full Court.”)
7
This argument was briefed before the Circuit in CSC because the Department of Education
contended that the district court correctly held that a petition denial was alone insufficient to
confer standing. (See Brief for Appellees, No. 05-5133, at 16-17 (Feb. 27, 2006)). College
Sports Council rebutted this assertion only by contending that the district court made
“inconsistent decisions” when it credited plaintiffs-appellants’ automatic standing argument in
NWCA, 263 F. Supp. 2d at 126, but not in CSC, 357 F. Supp.2d at 313. (See Appellants’
Corrected Reply Brief, No. 05-5133, at 10 (March 15, 2006)). College Sports Council argued
that a ruling by the Circuit that petition denial did not automatically confer standing “would
suggest that the NWCA petition-denial holding exceeded the Court’s jurisdiction, perhaps freeing
the district court to consider the NWCA plaintiffs’ Rule 60(b) motion.” (Id. at 10-11.)
12
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. 883 F.3d 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 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 associational standing to a statutorily-created commission that lacked formal members
because the commission effectively represented Washington state apple growers who themselves
had standing to sue. 432 U.S. at 342.
13
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
8
Defendants assert that plaintiff is a “member” association, while plaintiff portrays itself as a
“non-member” association. (See Defs.’ Rep. at 8-9; Pl.’s Opp’n at 11.) Whether plaintiff
actually has members is irrelevant to disposition of the associational standing claim, since the
Circuit has construed Hunt to require all organizations claiming such standing to demonstrate
that at least one purported member has standing to sue in its own right. See American Library
Ass’n v. FCC, 406 F.3d 689, 696 (D.C. Cir. 2005); Fund Democracy, 278 F.3d at 25-26; Am.
Legal Found., 808 F.2d at 89. Plaintiff has not fulfilled this requirement.
14
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 government policy will alter the behavior of regulated
third parties that are the direct cause of plaintiff’s injuries.” See NWCA, 366 F.3d at 938. The
identity of the regulated third parties—in NWCA, postsecondary institutions, and in this case,
high schools—does not alter the speculative nature of causation and redressability here.
Therefore, without demonstrating that at least one of its purported members has suffered an
injury directly caused by defendants and redressable by the relief requested, plaintiff cannot
claim associational standing.
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
15
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
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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-
9
While the third parties allegedly causing plaintiff’s organizational injuries are unregulated,
plaintiff still bears the heightened burden of alleging facts to show that the choices of these third
parties are caused by defendants and would be redressable by a favorable decision from this
Court. See Lujan, 504 U.S. at 561-62 (heightened burden when injury caused by decisions of
regulated third parties or “the response of others”).
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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.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: March 27, 2012
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