United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 5, 2009 Decided July 24, 2009
No. 08-5366
YOUNG AMERICA’S FOUNDATION,
APPELLANT
v.
ROBERT M. GATES,
SECRETARY, U.S. DEPARTMENT OF DEFENSE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01351-JDB)
William Perry Pendley argued the cause for appellant.
With him on the briefs was Elizabeth Gallaway.
Henry C. Whitaker, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Gregory G. Katsas, Assistant Attorney General, Jeffrey
A. Taylor, U.S. Attorney, and Scott R. McIntosh, Attorney.
Before: GINSBURG, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
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Opinion for the Court filed by Circuit Judge GINSBURG.
Opinion concurring in the judgment filed by Senior
Circuit Judge RANDOLPH.
GINSBURG, Circuit Judge: The Young America’s
Foundation sued to compel the Secretary of Defense to
withhold funds from the University of California–Santa Cruz
because the University allegedly maintains a policy or
practice that denies military recruiters access to the campus
equal to the access available to other employers. The district
court dismissed the case for lack of jurisdiction, holding both
that YAF lacks standing and that the Secretary’s decision
whether to enforce the Solomon Amendment is committed to
his discretion by law and therefore not reviewable under the
Administrative Procedure Act, see 5 U.S.C. § 701(a)(2).
Because we agree YAF lacks standing, we affirm the order of
the district court on that ground alone.
I. Background
No federal funds subject to the so-called Solomon
Amendment may be provided to a college or university
if the Secretary of Defense determines that that
institution ... has a policy or practice ... that either
prohibits, or in effect prevents the Secretary of a
military department ... from gaining access to
campuses, or access to students ... for purposes of
military recruiting in a manner that is at least equal in
quality and scope to the access to campuses and to
students that is provided to any other employer.
10 U.S.C. § 983(b); see id. § 983(d) (monies to be withheld
include all “funds made available for” use by certain
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departments and agencies, not including funds for student
financial assistance).* YAF, which is “committed to ensuring
that young Americans understand and are inspired by ... the
importance of a strong national defense,” Amended Compl.
¶ 3, has among its members several students enrolled at
UCSC, id. ¶ 5. YAF alleges that on five occasions from 2005
to 2007 students and faculty protesters prevented or disrupted
military recruiting at UCSC. On two such occasions,
disruptive protests caused military recruiters to leave an on-
campus job fair. On another occasion, protesters blocked
students’ access to military recruiters at a job fair. As a
result, on all three occasions one or more student members of
YAF who wanted to meet with a military recruiter was unable
to do so. Finally, the threat of protests caused UCSC to
cancel one job fair and caused some military recruiters to
withdraw in advance from another.
YAF informed the Secretary of these incidents at UCSC
but the Secretary took no action pursuant to the Solomon
Amendment. YAF eventually filed this suit, seeking a writ of
mandamus and an injunction ordering the Secretary to
determine that UCSC is in violation of the Amendment and to
withhold covered federal funds.
The district court dismissed the case for lack of
jurisdiction, holding YAF lacked standing and the Secretary’s
decision regarding enforcement of the Solomon Amendment
*
As the Secretary’s delegate, the Principal Deputy Under Secretary
of Defense for Personnel and Readiness makes the final
determination that an institution is ineligible for federal funds. 32
C.F.R. § 216.5(a)(1)(ii). He disseminates that determination to the
head of any department or agency that administers funds subject to
the Solomon Amendment, id. § 216.5(a)(1)(iii), and enters the
institution into the Excluded Parties List System, which is available
to all Executive Branch agencies, id. § 216.5(a)(5) & n.1.
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was committed to his discretion by law and therefore not
subject to judicial review under the APA. 560 F. Supp. 2d 39,
47 (2008). YAF then appealed.
II. Analysis
We review de novo a dismissal for lack of standing,
Renal Physicians Ass’n v. U.S. Dep’t of Health & Human
Servs., 489 F.3d 1267, 1273 (D.C. Cir. 2007), on the
assumption the allegations of the complaint relevant to
standing are true, Metro. Wash. Airports Auth. v. Citizens for
Abatement of Aircraft Noise, Inc., 501 U.S. 252, 264 (1991).
A membership organization has standing to sue if, inter alia,
“at least one of its members would have standing to sue in his
own right.” Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir.
2002) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432
U.S. 333, 342-43 (1977)). Because, as we conclude below,
no member of YAF has standing to sue in his own right, YAF
lacks standing.
The “irreducible constitutional minimum of standing
contains three elements”: (1) injury in fact, (2) causation, and
(3) redressability. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). YAF asserts its members have been
injured because they have been deprived of the opportunity to
meet on the UCSC campus with military recruiters. The
district court assumed YAF had alleged a sufficient injury,
but held it had not alleged facts sufficient to show the injury
(1) was caused by the Secretary’s failure to list UCSC as not
in compliance with the Solomon Amendment and to withhold
funds accordingly and (2) would be redressed by an order
compelling him to do so. 560 F. Supp. 2d. at 50. We agree
that YAF has not alleged facts sufficient to show its injury
will be redressed by the relief it seeks.
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YAF’s burden was to allege facts showing it is “likely, as
opposed to merely speculative, that [its] injury will be
redressed by a favorable decision.” Defenders of Wildlife,
504 U.S. at 561 (internal quotation marks omitted). Where
the plaintiff’s injury “arises from the government’s allegedly
unlawful regulation (or lack of regulation) of someone else”
— here, the Secretary’s failure to regulate UCSC —
redressability turns ultimately upon “choices made by
independent actors not before the courts.” Id. at 562
(emphasis omitted); see Summers v. Earth Island Inst., 129
S.Ct. 1142, 1149 (2009) (when plaintiff challenges regulation
of (or failure to regulate) third party, standing “is ordinarily
substantially more difficult to establish”).
In arguing the court cannot redress YAF’s injury, the
Secretary focuses upon the protesters, contending they “are
most unlikely to abandon their efforts simply because UCSC
may lose federal funds.” Appellee Br. 17. YAF, in contrast,
argues the “relevant third party here is UCSC,” Appellant Br.
18, which it alleges “has given tacit approval” to the protests
by failing to prevent them, Amended Compl. ¶ 27.
Regardless upon which third party one puts the emphasis,
YAF’s task was to allege facts sufficient to show it is likely
the Secretary’s withholding or threatening to withhold federal
funds would enable YAF’s members to meet with military
recruiters at on-campus job fairs. See Renal Physicians
Ass’n, 489 F.3d at 1275 (at pleading stage plaintiff must
allege facts showing it is likely “the third party directly
injuring the plaintiff would cease doing so as a result of the
relief the plaintiff sought”). This it has not done.
As the Supreme Court has pointed out, the Solomon
Amendment leaves the University “a choice: Either allow
military recruiters the same access to students afforded any
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other recruiter or forgo certain federal funds.” Rumsfeld v.
Forum for Academic & Institutional Rights, Inc., 547 U.S. 47,
58 (2006). Based solely upon its allegation that UCSC
received $80 million in federal funds in 2005 and receives
“tens of millions” every year, Amended Compl. ¶ 9, YAF
argues it is not speculative what the University would choose
and “there is ‘little doubt’ that UCSC’s behavior would
change” if the Secretary invoked the Solomon Amendment
against it. Appellant Br. 18 (quoting Renal Physicians Ass’n,
489 F.3d at 1275). Merely showing UCSC's behavior would
change in some undefined way is not enough, however; YAF
must allege facts from which we can reasonably infer it is
likely that the loss or threatened loss of the money would
motivate the University to act to ensure YAF’s members
could meet with military recruiters at on-campus job fairs
unimpeded.
The Secretary does not claim the University might be
able to replace such substantial sums. Cf. St John’s United
Church of Christ v. FAA, 550 F.3d 1168, 1170 (D.C. Cir.
2008) (holding petitioners had not shown injury was
redressable because they failed to rebut city’s claim to have
alternative sources for $1.2 billion in federal funds for airport
expansion”). We assume, therefore, the University would do
what it could do to avoid losing the funds. That the
University has at all relevant times had a written policy of
providing equal access to military recruiters, see 560 F. Supp.
2d at 42, also suggests it is motivated to comply with the
Solomon Amendment.
Still, YAF has not alleged facts from which we can
reasonably infer UCSC could do more than it has done
already to ensure protesters do not impede YAF’s members
from “access[ing] military recruiters during job fairs on
campus,” Amended Compl. ¶ 30. As the Secretary points out,
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YAF’s own allegations indicate UCSC is responsive to
concerns regarding disruptive protests. YAF alleges “UCSC
canceled a job fair ... due to safety concerns associated with
UCSC protestors who planned to oppose the presence of
military recruiters.” Amended Compl. ¶ 24. Canceling a job
fair presumably equalized students’ access to military and
non-military recruiters at job fairs, at least for a time (though
it is not clear that made YAF’s members any better off).
YAF also put before the district court the statement of a
UCSC official that the University had followed the “standard
campus judicial process ... to investigate whether students
violated the campus code of conduct and to take appropriate
disciplinary action.” 560 F. Supp. 2d at 51. We agree with
the district court, therefore: In light of (1) YAF’s allegations
and its evidence that UCSC has already “taken measures to
ensure that the protests do not violate student or faculty codes
of conduct,” and (2) YAF’s failure to “suggest what more
could be done by UCSC,” id., it is speculative whether an
order compelling the Secretary to withhold funds from the
University would redress YAF’s injury.
III. Conclusion
In sum, YAF lacks standing because it has not alleged
facts sufficient to show a ruling in its favor will likely redress
the injury it claims. The order of the district court dismissing
this case for lack of subject matter jurisdiction is therefore
Affirmed.
RANDOLPH, Senior Circuit Judge, concurring in the
judgment: For the reasons stated by Judge Bates, I would
affirm solely on the ground that the Administrative Procedure
Act, 5 U.S.C. § 701(a)(2), precludes judicial review of the
Secretary’s decision whether to enforce the Solomon
Amendment. See Young America’s Found. v. Gates, 560 F.
Supp. 2d 39, 43-47 (D.D.C. 2008).