NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

D. M., by and through his next friend C.M.,

Plaintiff

- Appellant,

v.

OREGON SCHOOL ACTIVITIES ASSOCIATION, an Oregon Corporation, by and through the Board of Directors of Oregon School Activities Association; OREGON SCHOLASTIC ACTIVITIES ASSOCIATION, an Oregon Corporation, by and through the Board of Directors of Oregon Sch olastic Activities Association,

Defendants

- Appellees. No. 22

- 36029

D.C. No. 6:22

- cv

- 01228

- MC

MEMORANDUM *

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted July 12, 2023 * * Seattle, Washington
Before: GRABER, GOULD, and FRIEDLAND, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

JUL 17 2023

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 22

- 36029

Plaintiff D.M. appeals the district court’s denial of his request for a
preliminary injunction to prohibit the Oregon School Activities Association
(O SAA) from applying its eight

- consecutive

- semester rule to bar him from playing

school sports in his last year of high school. Because D.M. has now graduated
from high school, his appeal is moot. We therefore dismiss.

D.M. concedes that “the controvers y on appeal [is] dormant between the
parties as of” the date of his graduation from high school
, but he argues that the
“capable of repetition, yet evading review” exception to mootness applies here

.
Th e controversy, however, must be capable of repetition with respect to the
particular appellant in question for that exception to apply

. See, e.g.
, DeFunis v.
Odegaard , 416 U.S. 312, 31 9 (1974) (per curiam) ( holding that the plaintiff’s
challenge to a specific law school admission process was moot and not capable of
repetition because he was already enrolled for the final term of his final year of law

school and would never be subject to that admissions process again ). Because the

contr oversy with respect to Appellant D.M.

— whether OSAA violate d the ADA by
applying its eight

- consecutive

- semester rule to bar D.M. from playing sports in his
final year of high school

— cannot repeat now that D.M. is no longer a high school

student , th e mootnes s exception cannot apply here

. 1 C f. Where Do We Go

1 The fact that OSAA’s eight

- consecutive

- semester rule may also bar other students from playing sports does not make a difference here because D.M. is3 22

- 36029

Berkeley v. Cal. Dep’t of Transp. , 32 F.4th 852 , 85 7

– 59 (9th Cir. 2022) (holding

that , although the preliminary injunction being appealed had been set to expire
before argument, the controversy was “capable of repetition” because the plaintiffs
had extended the injunction and could continue to do so and also because the harm
with respect to appellant Caltrans

— its being enjoined from clearing the

encampments

—

was likely to repeat ).

DISMISSED.

bringing a claim only on his own behalf , based on his own particular disability

. In DeFunis , the school ’s allegedly unconstitutional admission process would have affect ed future applicants

. 416 U.S. at 31 9 . B ut because DeFunis brought th e claim only on behalf of “himself alone, and not as the representative of any class ,” i d. at 314, the claim was moot when DeFunis w ould no longer be subject to the policy
, id. at 319

.