Corrected Reprint 10/31/2008

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID SERENA; MANUEL 

ESCAMILLA; CARMEN ALVAREZ;

ALEJANDRA HERNANDEZ,

Plaintiffs-Appellants,

v.

STEPHEN L. MOCK, Presiding No. 07-15218

Judge, Superior Court of Yolo

D.C. No. County, individually and in his  CV-06-01262-FCD official capacity; ROBIN WEAVER,

Yolo County Jury Commissioner, ORDER

individually and in her official

capacity; THOMAS WARRINER,

Judge, Superior Court of Yolo

County, individually and in his

official capacity,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, Jr., District Judge, Presiding

Argued and Submitted

August 11, 2008—San Francisco, California

Filed October 27, 2008

Before: David R. Thompson and Kim McLane Wardlaw,

Circuit Judges, and Barry Ted Moskowitz,* District Judge.

*The Honorable Barry Ted Moskowitz, United States District Judge for

the Southern District of California, sitting by designation. 

14977
Order by Judge Wardlaw

COUNSEL

G. Whitney Leigh, Brian Brazier, Gonzalez & Leigh, LLP,

San Francisco, California, for plaintiffs-appellants David

Serena, Manuel Escamilla, Carmen Alvarez, and Alejandra

Hernandez. 

Paul W. Cane, Jr., Sean D. Unger, Heather N. Mitchell, Paul,

Hastings, Janofsky & Walker LLP, San Francisco, California,

for defendants-appellees Stephen L. Mock, Thomas Warriner,

and Robin Weaver.

ORDER

WARDLAW, Circuit Judge: 

David Serena, Manuel Escamilla, Carmen Alvarez, and

Alejandra Hernandez (collectively, “Appellants”) appeal from

the district court’s grant of summary judgment in favor of

Serena Mock, Thomas Warriner, and Robin Weaver (collectively, “Appellees”) on their equal protection claim. We have

jurisdiction under 28 U.S.C. § 1291, and we review de novo

the district court’s decision to grant summary judgment.

Council of Ins. Agents & Brokers v. Molasky-Arman, 522

F.3d 925, 930 (9th Cir. 2008). Because Appellants’ equal protection claim is not justiciable, see Jacobs v. Clark County

Sch. Dist., 526 F.3d 419, 425 (9th Cir. 2008) (“For a plaintiff’s claim to be justiciable, he or she must have standing to

bring the claim, and the claim must not be moot.”), we vacate

the grant of summary judgment and remand with instructions

to dismiss, see In re Di Giorgio, 134 F.3d 971, 975 (9th Cir.

1998). 

14978 SERENA v. MOCK
Appellants allege two forms of injury that raise distinct justiciability concerns. Appellants first claim that they themselves were deprived of the opportunity to apply for and serve

on the Yolo County Grand Jury (“Grand Jury”). At issue is

whether Appellants lack standing to assert this claim as they

have never actually applied to serve on the Grand Jury.

Appellants contend that their failure to apply does not defeat

standing because they did not receive equal notice of the

opportunity to apply for Grand Jury service in the first place.

This argument has some merit, insofar as a systematic exclusion of the Hispanic population from the first stage of the

Grand Jury selection process—recruitment—would lead

directly to exclusion in the three remaining stages of the process. 

Yet this claim is ultimately moot. See Feldman v. Bomar,

518 F.3d 637, 642 (9th Cir. 2008) (“The basic question in

determining mootness is whether there is a present controversy as to which effective relief can be granted.” (internal

quotation marks omitted)). It is evident from the complaint

that Appellants were aware of the Grand Jury application process well over two years ago, and the current litigation demonstrates that Appellants are fully aware of how to apply for

the Grand Jury. However, they did not apply to be considered

in the pool for selection for the Grand Jury at any time. Simply put, there is no indication that Appellants have ever demonstrated any interest in actually becoming Grand Jury

members. Appellants’ knowledge of the application procedures renders their challenge to the recruitment procedures

moot,1 since there is no effective relief that can be granted on

1Appellants argue that even if this injury were considered moot, the

mootness exception for cases “capable of repetition, yet evading review”

would apply. We disagree. Given that Appellants now have notice of the

application procedure, there is no reasonable expectation that they would

be subjected to the same action again. See Murphy v. Hunt, 455 U.S. 478,

482 (1982) (stating that this exception only applies where “(1) the challenged action was in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there was a reasonable expectation that the

same complaining party would be subjected to the same action again”

(internal quotation marks omitted)). 

SERENA v. MOCK 14979
this claim. See Feldman, 518 F.3d at 642-44. Their subsequent failure to apply for Grand Jury service deprives them of

standing to challenge the remaining selection procedures. See

Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171 (1972);

Madsen v. Boise State Univ., 976 F.2d 1219, 1222 (9th Cir.

1992). 

Appellants also allege that they have third-party standing to

bring a claim on behalf of other Hispanics who were denied

the opportunity to apply for and serve on the Grand Jury. The

Supreme Court has recognized third-party standing in cases

involving jury composition. See, e.g., Campbell v. Louisiana,

523 U.S. 392, 397-400 (1998) (allowing a litigant to raise a

claim on behalf of third parties where (1) the litigant has suffered an “injury in fact”; (2) he has a “close relationship” to

the third parties; and (3) there is some hindrance to the third

parties asserting their own rights); Powers v. Ohio, 499 U.S.

400, 410-15 (1991) (same). Serena is the only litigant who

even arguably meets the three requirements for third-party

standing, since he has a basis for alleging an injury in fact

(unlike Escamilla, Alvarez, and Hernandez). Serena’s claim

ultimately fails as well, however, because he cannot meet the

constitutional requirements for Article III standing. See Fleck

and Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1103-04

(9th Cir. 2006). Serena was never indicted, and the criminal

charges brought against him following the Grand Jury investigation have been dropped. Moreover, Serena is no longer the

head of the Yolo County Housing Authority. Serena therefore

cannot show that there is a substantial likelihood that the

requested relief will redress or prevent the alleged injury. See

Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70-71

(1983). 

We agree with the district court that Appellants’ “statistical

evidence that Hispanics have been underrepresented by an

absolute disparity of 13.5% over the past three years is troubling,”2

 and that “[u]naddressed or ignored, this continuing

2The district court faithfully followed binding Ninth Circuit precedent

in determining what constitutes “substantial underrepresentation” of Hispanics in the jury pool. See United States v. Rodriguez-Lara, 421 F.3d

14980 SERENA v. MOCK
disparity is likely to provide future evidence of systematic

underrepresentation of a constitutional dimension.” Because

Appellants have not presented any justiciable claims, however, we lack jurisdiction to address the merits of their claim.

VACATED and REMANDED with instructions to DISMISS. Each party shall bear its own costs.

932, 943 (9th Cir. 2005) (“Our case law has settled on ‘absolute disparity’

—the difference between the percentage of the distinctive group in the

community and the percentage of that group in the jury pool—as the

appropriate measure of the representativeness of the jury pool.”). Under

the “absolute disparity” approach, we consistently “have declined to find

underrepresentation of a distinctive group where the absolute disparity

was 7.7% or lower.” Id. at 943-44 (citing United States v. Suttiswad, 696

F.2d 645, 649 (9th Cir. 1982)). We question, however, whether the

approach compelled by our case law is mathematically sound. See

Rodriguez-Lara, 421 F.3d at 943 n.10 (“While Ninth Circuit precedent

requires us to evaluate representativeness using absolute disparity statistics

alone, that approach is not without short-comings.”); see also Hirst v.

Gertzen, 676 F.2d 1252, 1258 n.14 (9th Cir. 1982) (suggesting that the

“absolute disparity” test may be less accurate than other statistical measures when the cognizable group involved in the jury challenge represents

a small percentage of the population). We also question whether our jurisprudence has drifted away from the Supreme Court’s original analysis in

Castaneda v. Partida, 430 U.S. 482 (1977). There the Court determined

the degree of underrepresentation using standard deviations of the sample

populations. Id. at 496 n.17 (explaining how to calculate standard deviations from binomial distributions). Because we lack jurisdiction, however,

we leave these concerns for a future panel to address. 

SERENA v. MOCK 14981


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