NOT FOR PUBLICATION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 Scholastic 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 APPEALS
2 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 

(OSAA) 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 controversy 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. 

The 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, 319 (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 

controversy with respect to Appellant D.M.—whether OSAA violated 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, the mootness exception cannot apply here.

1

 Cf. 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. is 
3 22-36029 

Berkeley v. Cal. Dep’t of Transp., 32 F.4th 852, 857–59 (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

affected future applicants. 416 U.S. at 319. But because DeFunis brought the 

claim only on behalf of “himself alone, and not as the representative of any class,” 

id. at 314, the claim was moot when DeFunis would no longer be subject to the 

policy, id. at 319.