NOT FOR PUBLICATION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 APPEALS
2 

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) (quoting Smith v. Pac. Props. & Dev. 

Corp., 358 F.3d 1097, 1105 (9th Cir. 2004)). Petitioners offer 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 other 
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initiatives.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 766 (9th Cir. 

2018). Petitioners accordingly lack independent standing.

Petitioners have similarly failed to establish associational standing, which 

requires that one of their “members 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 asserted 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 of 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

(1983)). 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.