The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
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.
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")*fn1 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.*fn2 The Department also issued policy clarifications to the Three-Part Test in 1996, 2003, 2005, and 2010. (Compl. ¶ 13.)
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."*fn3 (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.
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 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)).
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 ...