NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREENLINING INSTITUTE; et al.,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA,
Respondents,

______________________________
USTELECOM

- THE BROADBAND ASSOCIATION,

Intervenor. No. 17

- 73283

FCC No. 17

- 154

MEMORANDUM *

On Petition for Review of an Order of the Federal Communications Commission
Argued and Submitted August 27, 2019 Seattle, Washington
Before: McKEOWN and BYBEE, Circuit Judges, and GAITAN, * * District Judge.

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

- 3.

** The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation. 

# FILED

JAN 23 2020

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

The Greenlining Institute, Public Knowledge, The Utility Reform Network
, and the National Association of State Utility Consumer Advocates (collectively,
“Petitioners”) seek review of a November 2017 order and declaratory ruling issued
by the Federal Communications Commission

. The parties are familiar with the

facts, so we do not repeat them here. We have jurisdiction under 47 U.S.C. § 402
and 28 U.S.C. § 2342(1)
, and deny the petition because Petitioners lack standing.

At least one petitioner must have Article III standing for each of the
challenges raised on appeal. See Town of Chester v. Laroe Estates, Inc. , 137 S. Ct.

1645, 1650

– 51 (2017). “ The party invoking federal jurisdiction bears the burden

of establishing standing ,” which “ must be supported in the same way as any other

matter on which [that party] bears the burden of proof. ” Nw. Envtl. Def. Ctr. v.

Bonneville Power Admin. , 117 F.3d 1520, 1528 (9th Cir. 1997).
“[A]n organization may establish ‘injury in fact if it can demonstrate: (1)

frustration of its organizational mission; and (2) diversion of its resources to
combat the particular conduct in question.’” Am. Diabetes Ass'n v. U.S. Dep't of the

Army , 938 F.3d 1147, 1154 (9th Cir. 2019) (quo ting Smith v. Pac. Props

. & Dev.

Corp ., 358 F.3d 1097, 1105 (9th Cir. 2004) ). Petitioners o ffer no estimate of the

resources that will be diverted as a result of the order, let alone “ uncontradicted

evidence ” that the proposed actions “ required, and will continue to require, a
diversion of resources, independent of expenses for this litigation, from their other3

initiatives

. ” E. Bay Sanctuary Covenant v. Trump , 932 F.3d 742, 766 (9th Cir.

2018)

. Petitioners accordingly lack independent standing.

Petitione rs have similarly failed to establish associational standing, which

requires that one of their “m embers would otherwise have standing to sue in their
own right, the interests at stake are germane to the organization's purpose, and

neither the claim asserte d nor the relief requested requires the participation of

individual members in the lawsuit .” Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc ., 528 U.S. 167, 181 (2000)

. Although Petitioners’ purpose is

germane to the interests at stake in this appeal , which does not require the

participation of individual members
, no member has demonstrated that “ he or she

‘ is immediately in danger of sustaining some direct injury as the result o f the

challenged official conduct and the injury or threat of injury is both real and

immediate, not conjectural or hypothetical. ’” Scott v. Pasadena Unified Sch. Dist
., 306 F.3d 646, 656 (9th Cir. 2002) (quoting City of L.A. v. Lyons , 461 U.S. 95, 102
(19 83) ). The Supreme Court has “ repeatedly reiterated that ‘ threatened injury

must be certainly impending to constitute injury in fact, ’ and that ‘ [a]llegations of

possible future injury ’ are not sufficient. ” Clapper v. Amnesty Int'l USA , 568 U.S.

398, 409 (2013) (alteration in original) (citations omitted). Here, Petitioners

demonstrate no such certain, impending harm.

PETITION DENIED.