Am. Diabetes Ass'n v. U.S. Dep't of the Army

• Decision Date: 18 September 2019
• Docket Number: No. 18-15242,18-15242
• Citation: 938 F.3d 1147
• Parties: AMERICAN DIABETES ASSOCIATION, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE ARMY; Ryan D. McCarthy, Secretary of the Army, in his official capacity; United States Army Family and Morale, Welfare and Recreation Programs; United States Army Child, Youth and School Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

938 F.3d 1147

AMERICAN DIABETES ASSOCIATION, Plaintiff-Appellant,

v.UNITED STATES DEPARTMENT OF THE ARMY; Ryan D. McCarthy, Secretary of the Army, in his official capacity; United States Army Family and Morale, Welfare and Recreation Programs; United States Army Child, Youth and School Services, Defendants-Appellees.

No. 18-15242

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 5, 2019 San Francisco, California

Filed September 18, 2019

Stuart Seaborn (argued), Rebecca Williford, Jessica Agatstein, and Freya Pitts, Disability Rights Advocates, Berkeley, California, for Plaintiff-Appellant.

Edward Himmelfarb (argued) and Marleigh D. Dover, Appellate Staff; Alex G. Tse, Acting United States Attorney; Hashim M. Mooppan, Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Michael A. Greene, Richardson Wright LLP, Portland, Oregon; Gregory G. Paul, Morgan & Paul PLLC, Pittsburgh, Pennsylvania; John W. Griffin, Marek Griffin & Knaupp, Victoria, Texas; for Amicus Curiae Pediatric Diabetes Community.

Jocelyn Larkin, Lindsay Nako, and Daniel Nesbit, Impact Fund, Berkeley, California, for Amici Curiae Impact Fund, AARP, AARP Foundation, Animal Legal Defense Fund, Bay Area Legal Aid, Civil Rights Education and Enforcement Center, Law Foundation of Silicon Valley, Legal Aid Association of California, Legal Aid at Work, Legal Aid Foundation of Los Angeles, Legal Services for Prisoners with Children, National Women's Law Center, Public Interest Law Project, Southern Poverty Law Center, and Worksafe Inc.

Todd R. Geremia, Jones Day, New York, New York; Eli M. Temkin, Jones Day, Minneapolis, Minnesota; for Amici Curiae Disability Rights Organizations.

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

HAWKINS, Circuit Judge:

BACKGROUND

The American Diabetes Association (the "Association") is a nationwide nonprofit with a mission "to prevent and cure diabetes and to improve the lives of those affected by diabetes." In furtherance of its mission, the Association, inter alia , "conduct[s] advocacy for laws, regulations, and policies that keep children with diabetes safe at school; ... [and] provid[es] legal information and assistance to individuals and families experiencing diabetes-related discrimination." Over the past decade, the Association has assisted families that have assertedly experienced diabetes-related discrimination in the Army's Child, Youth, and School Services' ("CYSS") programs. CYSS operates programs such as daycare, after-school care, and summer camps for children and youth on military bases (among others). These programs are sometimes the only childcare options for families working and living on bases in remote areas.

I. The Old Policy

In July 2016, when this lawsuit began, the Army had in place United States Army Regulation 608-10 and a 2008 Family and Morale, Welfare and Recreation Command Memorandum (collectively, "Old Policy"), which together prohibited CYSS staff from providing essential medical care for diabetic children. This version of Regulation 608-10 included a statement that:

[CYSS staff] will not perform functions that require extensive medical knowledge (e.g., determining the dosage or frequency of a prescribed medication); are considered medical intervention therapy (e.g., those not typically taught to parents by physical, occupational, speech therapists or special educators as part of a home program); or if improperly performed, have a high medical risk (e.g., injection of insulin ).

The 2008 memorandum stated that staff therefore were not authorized to "[c]ount carbohydrates," "[g]ive injections of insulin to include manipulation of the insulin pump which is an alternate method of delivering insulin," or "[g]ive injections of Glucagon, a rescue medication." Although the Army sometimes granted exceptions to the Old Policy, there was no formal process for seeking or considering exceptions.

II. The New Policy

In June 2017, after plaintiffs filed their initial complaint, defendants revoked the Old Policy and replaced it with three documents: (1) a revised Regulation 608-10; (2) an Army memorandum titled "Diabetes-Related Accommodations in Child, Youth, and School Services Programs" ("Diabetes Memorandum"); and (3) an Army memorandum titled "Accommodation of Children and Youth with Diabetes in Army Child, Youth, and School Services Programs" ("Accommodation Memorandum") (collectively, "New Policy"). The amended Regulation 608-10 states that all "requests for accommodation must be reviewed and assessed individually" and that CYSS programs "must provide special needs accommodations unless the requested accommodation imposes an undue hardship on the Army, fundamentally alters the [CYSS] program in which the accommodation is being made, or poses a direct threat to staff or other participants in the program."

The Diabetes Memorandum, inter alia , "rescind[s] in [its] entirety" the 2008 memorandum, declares that staff may provide accommodations such as counting carbohydrates and administering glucagon, and provides that only the Army's Assistant Chief of Staff for Installation Management ("ACSIM") may deny an accommodation request.

The Accommodation Memorandum identifies counting carbohydrates and administering insulin and rescue medication as "[r]easonable accommodations" and sets forth a multi-step process through which accommodation requests will be considered. Thereunder, requests that do not (1) require CYSS staff "to determine the correct insulin dosage or to administer insulin," or (2) meet a set of narrow circumstances, such as imposing "an undue hardship" on the Army, must be approved by the installation's CYSS Coordinator and implemented within ten weeks. However, if the CYSS Coordinator's recommendation is to deny the request or the request requires CYSS staff "to determine the correct insulin dosage or to administer insulin," the matter must be submitted to the Garrison Commander, who must either approve the request or make a recommendation to the ACSIM. Thus, it can take up to four months for insulin accommodations to be fully approved and implemented.

III. Procedural Background

The Association filed its initial complaint in 2016, seeking injunctive and declaratory relief for violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Specifically, the Association challenged defendants' "blanket policy prohibiting the provision of critical diabetes-related care." On July 21, 2017, around six weeks after defendants instituted the New Policy, the Association filed the operative amended complaint ("FAC"). Therein, the Association, again seeking only prospective relief, alleges the New Policy violates Section 504 of the Rehabilitation Act by creating an impermissibly "burdensome accommodation review process."

Defendants moved to dismiss the FAC under Federal Rule of Civil Procedure 12(b)(1), arguing the Association's claims against the Old Policy were moot and the Association lacks standing to challenge the New Policy. The court granted the motion and dismissed the FAC with leave to amend. Thereafter, the Association filed notice of its intent to stand on its pleading, and the court entered a final Judgment of Dismissal. This timely appeal followed.

STANDARD OF REVIEW

We review de novo a dismissal for mootness and lack of Article III standing. Bishop Paiute Tribe v. Inyo Cty. , 863 F.3d 1144, 1151 (9th Cir. 2017). Where, as here, a defendant brings a factual jurisdictional attack under Rule 12(b)(1), the "court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id. (quoting Savage v. Glendale Union High Sch. , 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) ).

DISCUSSION

The Association contends the district court erred by concluding the injuries the Association suffered under the Old Policy are moot and that the Association lacks standing to challenge the New Policy. We address each argument in turn.

I. Mootness

The Association contends its injuries under the Old Policy are not moot because:

(1) the New Policy continues to violate the Rehabilitation Act; and (2) the voluntary cessation doctrine applies.

a. Repeal and Replacement as Settling the Controversy Regarding the Old Policy

"A case becomes moot ... ‘when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.’ " Rosebrock v. Mathis , 745 F.3d 963, 971 (9th Cir. 2014) (quoting Already, LLC v. Nike, Inc. , 568 U.S. 85, 89, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) ). Where the challenged conduct "has been ‘sufficiently altered so as to present a substantially different controversy ...[,]’ there is ‘no basis for concluding that the challenged conduct [is] being repeated.’ " Chem. Producers & Distribs. Ass'n v. Helliker , 463 F.3d 871, 875 (9th Cir. 2006) (third alteration in original) (quoting Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville , 508 U.S. 656, 662 n.3, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) ). The Association, citing Northeastern Florida , argues the New Policy continues to discriminate against persons with diabetes and thus does not moot the Association's claims under the Old Policy. There, however, the new city ordinance continued the challenged practice "by another name" and thus "disadvantage[d] [the plaintiff] in the same fundamental way." 508 U.S. at 662, 113 S.Ct. 2297.

Here, by contrast, the Association alleges the Old Policy harmed it by placing a blanket prohibition on care,...