American Sports Council v. United States Department of Education

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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