                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SONYA RENEE; CANDICE JOHNSON, a         
minor, by Sonya Renee, her
guardian ad litem; MARIBEL
HEREDIA; JOSE ALDANA, a minor,
by Maribel Heredia, his guardian
ad litem; B. DOE, a minor, by N.
Doe, her guardian ad litem;
MARIEL RUBIO; DANIELLE RUBIO, a
minor, by Mariel Rubio, her
guardian ad litem; STEPHANIE
RUBIO, a minor, by Mariel Rubio,
her guardian ad litem; GUADALUPE
GONZALEZ; DAISY GONZALEZ, a
minor, by Guadalupe Gonzalez,                  No. 08-16661
her guardian ad litem; JAZMINE                   D.C. No.
JOHNSON, a minor, by Deanna
Bolden, her guardian ad litem;
                                           3:07-CV-04299-PJH
                                               ORDER AND
ADRIANA RAMIREZ, a minor, by
                                                 OPINION
Arcelia Trinidad Ramirez, her
guardian ad litem; JANE DOE, a
minor, by John Doe, her guardian
ad litem; CALIFORNIANS FOR JUSTICE
EDUCATION FUND; CALIFORNIA
ASSOCIATION OF COMMUNITY
ORGANIZATIONS FOR REFORM NOW,
               Plaintiffs-Appellants,
                 v.
ARNE DUNCAN, in his official
capacity; UNITED STATES
DEPARTMENT OF EDUCATION,
             Defendants-Appellees.
                                        

                             5007
5008                 RENEE v. DUNCAN
       Appeal from the United States District Court
          for the Northern District of California
       Phyllis J. Hamilton, District Judge, Presiding

                  Argued and Submitted
           June 23, 2011—Pasadena, California

                   Filed May 10, 2012

   Before: Dorothy W. Nelson, William A. Fletcher and
           Richard C. Tallman, Circuit Judges.

          Opinion by Judge William A. Fletcher;
 Partial Concurrence and Partial Dissent by Judge Tallman
                      RENEE v. DUNCAN                    5011




                         COUNSEL

John T. Affeldt and Tara Kini, Public Advocates, Inc., San
Francisco, California, for the plaintiffs-appellants.

Alisa B. Klein, United States Department of Justice, Civil
Division, Washington, D.C., for the defendants-appellees.

Lisa A. Davis, Wilson Sonsini Goodrich & Rosati P.C., Palo
Alto, California, for The National Coalition of ESEA Title I
Parents, Inc., et al., as amicus curiae.

Donald B. Verilli, Jr., Jenner & Block LLP, Washington,
D.C., for Teach for America, et al., as amicus curiae.


                          ORDER

   This court’s opinion filed September 27, 2010, and reported
at 623 F.3d 787, is supplemented with the attached.
5012                      RENEE v. DUNCAN
 The petition for rehearing, filed on October 12, 2010, is
GRANTED.


                             OPINION

W. FLETCHER, Circuit Judge:

   Appellants Sonya Renee, et al., appeal the district court’s
order granting summary judgment in favor of Appellees U.S.
Department of Education and Arne Duncan, Secretary of Educa-
tion1 (collectively, “the Secretary”). Appellants challenge a
federal regulation permitting teachers who are participating in
alternative-route teacher training programs, but who have not
yet obtained full State certification, to be characterized as
“highly qualified teachers” under the No Child Left Behind
Act (“NCLB”). The district court granted summary judgment
to the Secretary.

   This case has a complicated history. We initially vacated
the judgment of the district court for lack of Article III stand-
ing in a published opinion, with one panel member dissenting.
Renee v. Duncan, 573 F.3d 903 (9th Cir. 2009) (Renee I). We
subsequently granted a petition for panel rehearing and with-
drew our prior opinion. We reversed the district court on the
merits in a new published opinion, now with a different panel
member dissenting. Renee v. Duncan, 623 F.3d 787 (9th Cir.
2010) (Renee II). After issuance of our opinion in Renee II,
Congress changed the statutory provision upon which we had
based that opinion. The new statutory provision, Section 163
of the Continuing Appropriations and Surface Transportation
Extensions Act of 2011, became effective on December 22,
2010. Continuing Appropriations and Surface Transportation
Extensions Act, Pub. L. No. 111-322, § 1, 124 Stat. 3518,
  1
    Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary
Arne Duncan is automatically substituted for former Secretary of Educa-
tion Margaret Spellings as Appellee in this case.
                       RENEE v. DUNCAN                     5013
3521 (2010) (hereinafter “Section 163”). Section 163 expires
at the end of the 2012-2013 academic year. Absent further
congressional action, the statutory provision upon which we
based our opinion in Renee II will again be in effect.

   We conclude several things in this opinion. First, we con-
clude, as we concluded in Renee II, that before the passage of
Section 163 the challenged regulation violated NCLB. Sec-
ond, we conclude that after the passage of Section 163 and so
long as it is in effect, the challenged regulation is consistent
with NCLB. Third, we conclude that despite the passage of
Section 163, this appeal is not moot. Fourth, we conclude that
before the passage of Section 163, NCLB required the reports
to Congress concerning “highly qualified teachers,” as that
term was then defined in the statute. However, Appellants are
not entitled to judicial enforcement of that reporting require-
ment. Finally, we conclude that Appellants are not entitled to
attorney’s fees based on their success in Renee II.

  We therefore affirm the judgment of the district court.

                       I.   Background

     A.   No Child Left Behind Act and the Challenged
                          Regulation

  The No Child Left Behind Act was enacted in 2002. Its
overarching goal is “to ensure that all children have a fair,
equal, and significant opportunity to obtain a high-quality
education and reach, at a minimum, proficiency on challeng-
ing State academic achievement standards and state academic
assessments.” 20 U.S.C. § 6301. NCLB seeks to close the
“achievement gap between high- and low-performing chil-
dren, especially the achievement gaps between minority and
nonminority students, and between disadvantaged children
and their more advantaged peers.” Id. § 6301(3).

  NCLB provides funds to states and schools under several
of its provisions, one of which is central to this appeal. Spe-
5014                   RENEE v. DUNCAN
cifically, Title I funds are used to supplement the educational
needs of disadvantaged students. Id. §§ 6301 et seq. The Sec-
retary has the authority to withhold funds or to take other
enforcement action if a state fails to comply substantially with
NCLB’s requirements. Id. § 1234c (“Whenever the Secretary
has reason to believe that any recipient of funds under any
applicable program is failing to comply substantially with any
requirement of law applicable to such funds, the Secretary
may . . . withhold further payments under that program as
authorized by section 1234d of this title[.]”).

   A premise of NCLB is that good teachers — defined by
Congress as “highly qualified” teachers — are crucial to edu-
cational success. NCLB requires that by the end of the 2005-
06 academic year only “highly qualified” teachers should
instruct core academic classes in school districts receiving
Title I funding (the “100% requirement”). Id. § 6319(a)(2).
“Core academic subjects” are “English, reading or language
arts, mathematics, science, foreign languages, civics and gov-
ernment, economics, arts, history, and geography.” Id.
§ 7801(11); 34 C.F.R. § 200.55(c).

   NCLB requires that states and school districts develop and
submit plans to meet the mandates of the statute. 20 U.S.C.
§§ 6311(a)(1), 6311(b)(8)(C), 6319(a)(2) (state plans); id.
§§ 6312(b)(1)(N), 6312(c)(1)(I), 6319(a)(3) (district plans).
Each state is responsible for ensuring compliance by its local
school districts. Id. §§ 1232c, 7844(a). To receive funds under
Title I of the statute, NCLB requires states to identify steps
they will take to ensure that “poor and minority children are
not taught at higher rates than other children by inexperi-
enced, unqualified, or out-of-field teachers.” Id.
§ 6311(b)(8)(C).

  NCLB also requires that states and school districts report
annually on their progress toward meeting the 100% require-
ment. Id. §§ 6311(h)(1)(C)(viii), 6311(h)(2), 6319(b)(1).
States must provide this information to the Secretary, id.
                        RENEE v. DUNCAN                        5015
§§ 6311(h)(4)(G), 6319(b)(1)(B), who must report nationwide
statistics on “highly qualified teachers” to Congress, id.
§ 6311(h)(4)-(5). Schools receiving Title I funds must inform
a parent when his or her child is taught for four or more
weeks by a teacher who is not “highly qualified.” Id.
§ 6311(h)(6)(B)(ii).

   If a “State educational agency” fails to submit to the Secre-
tary a “plan” satisfying the requirements of NCLB, id.
§ 6311(a)(1), the Secretary may withhold federal funds until
the state has done so. Id. § 6311(g)(2) (“If a state fails to meet
any of the requirements of this section, other than the require-
ments described in paragraph (1) [not at issue here], then the
Secretary may withhold funds for State administration under
this part until the Secretary determines that the State has ful-
filled those requirements.”); id. § 6311(b)(8)(C) (“Each State
plan shall describe . . . the specific steps the State educational
agency will take to ensure that both schoolwide programs and
targeted assistance schools provide instruction by highly qual-
ified instructional staff as required by sections 6314(b)(1)(C)
and 6315(c)(1)(E).”).

   NCLB contains a lengthy definition of “highly qualified
teacher.” Of central concern in this litigation, before the pas-
sage of Section 163, “highly qualified” meant that:

    the teacher has obtained full State certification as a
    teacher (including certification obtained through
    alternative routes to certification) or passed the State
    teacher licensing examination, and holds a license to
    teach in such State, except that when used with
    respect to any teacher teaching in a public charter
    school, the term means that the teacher meets the
    requirements set forth in the State’s public charter
    school law[.]

20 U.S.C. § 7801(23)(A)(i) (emphasis added).
5016                   RENEE v. DUNCAN
   On December 2, 2002, the Secretary promulgated regula-
tions providing a more detailed definition of the statutory
term “highly qualified teacher.” 34 C.F.R. § 200.56. Section
200.56 provides, in pertinent part:

    [A] “highly qualified teacher” . . . meets the require-
    ments in paragraph (a) [and other paragraphs not rel-
    evant to this appeal].

        (a) In general.

           (1) Except as provided in paragraph
           (a)(3) of this section [covering charter
           schools], a [“highly qualified”] teacher
           . . . must —

             (i) Have obtained full State certifica-
             tion as a teacher, which may include
             certification obtained through alterna-
             tive routes to certification; or

             (ii)(A) Have passed the State teacher
             licensing examination; and (B) Hold a
             license to teach in the State.

           (2) A teacher meets the requirement in
           paragraph (a)(1) of this section if the
           teacher —

             (i) Has fulfilled the State’s certifica-
             tion and licensure requirements appli-
             cable to the years of experience the
             teacher possesses; or

             (ii) Is participating in an alternative
             route to certification program under
             which —
                        RENEE v. DUNCAN                     5017
                 (A) The teacher —

                   (1) Receives high-quality profes-
                   sional development . . . ;

                   (2) Participates in a program of
                   intensive supervision . . . ;

                   (3) Assumes functions as a
                   teacher only for a specified
                   period of time not to exceed three
                   years; and

                   (4) Demonstrates satisfactory
                   progress toward full certification
                   as prescribed by the State[.]

Id. (emphasis added).

   Neither NCLB nor the Secretary’s regulation defines “alter-
native routes to certification.” The traditional path to a teach-
ing credential generally involves obtaining a degree and
taking education courses. The term “alternative routes to cer-
tification” generally refers to non-traditional training pro-
grams that are typically designed for people who already hold
at least a bachelor’s degree in a field other than education.
These alternative programs are often designed to address
teacher shortages in specific subjects or geographic areas. See,
e.g., Cal. Educ. Code § 44382 (“Alternative certification pro-
grams shall address geographic and subject matter shortage
areas, and shall be targeted toward people with work experi-
ence and others who already have a bachelor’s degree in the
field in which they plan to teach.”).

   Some aspects of the traditional route to teacher certification
— such as formal course work in education philosophy or
pedagogy — are typically shortened, or sometimes waived
altogether, in alternative-route programs. Several well-known
5018                   RENEE v. DUNCAN
and successful alternative-route programs, such as Teach for
America and Troops to Teachers, provide some training to
participants before they begin teaching in the classroom.
Teach for America participants, for example, receive training
during the summer before they enter the classroom. Support
and training typically continue for the length of an alternative-
route program. After successful completion of an alternative-
route program, a teacher receives a credential similar or iden-
tical to a credential obtained after successful completion of a
traditional teacher-training program.

  In December 2010, after the issuance of Renee II, our sec-
ond panel opinion in this case, Congress amended the Contin-
uing Appropriations Act by adding Section 163. Section 163
provides:

    (a) A “highly qualified teacher” includes a teacher
    who meets the requirements in 34 C.F.R.
    200.56(a)(2)(ii) . . . .

    (b) This provision is effective on the date of enact-
    ment of this provision through the end of the 2012-
    13 academic year.

§ 1, 124 Stat. at 3521. Section 163 thus expands the statutory
definition of “highly qualified teacher.” After the passage of
Section 163, and for so long as Section 163 remains in effect,
an alternative-route teacher who “demonstrates satisfactory
progress toward full certification” is a “highly qualified teach-
er” within the meaning of NCLB.

                     B.   California Law

   Neither NCLB nor the Secretary’s regulation defines the
term “full State certification” contained in NCLB. The parties
agree that NCLB gives the states considerable flexibility in
establishing credentialing systems under which a state teach-
ing permit or credential may constitute “full State certifica-
                         RENEE v. DUNCAN                       5019
tion” within the meaning of NCLB. The focus of this
litigation is public school teachers in California. California
law uses the terms “waiver,” “permit,” and “credential” to
indicate various levels of teachers, and of certification, under
state law. California has several levels of waivers, permits,
and credentials, arranged in a rough hierarchy.

  First, beginning at the bottom of the hierarchy, there are
waivers. Individuals can teach pursuant to a waiver of the
requirement for either a permit or credential. The Commission
on Teacher Credentialing has authority to grant waivers in
specified situations. Cal. Educ. Code § 44225(m).

   Second, there are emergency permits, including an Emer-
gency 30-day Substitute Teaching Permit, Cal. Code Regs. tit.
5, § 80025, and an Emergency Career Substitute Teaching
Permit, id. § 80025.1. Emergency permits are valid for no
more than one year and are restricted to the district that
requested the issuance of the permit. Id. § 80023.1. Teachers
can renew emergency permits, but renewal ordinarily
requires, among other things, demonstrated progress toward a
non-emergency credential. Id. § 80026.6(a)(6).

   Third, there are Short-Term Staff Permits and Provisional
Internship Permits. Unlike emergency permits, which largely
cover substitute teachers, these permits allow a teacher to
serve as a teacher of record in an assigned classroom. Id.
§§ 80021(e), 80021.1(e).

   Fourth, there is an “intern credential.” This is the first certi-
fication in the hierarchy that California characterizes as a
“credential” rather than a “permit.” An intern credential
holder is participating in, but has not yet completed, an
alternative-route teacher training program. See Cal. Educ.
Code §§ 44830.3, 44259(b)(3)(C). Like Short-Term and Pro-
visional Internship permits, an intern credential allows the
holder to serve as a teacher of record. Id. §§ 44325(a), 44326,
44830.3(a). California requires internship programs to provide
5020                    RENEE v. DUNCAN
“preservice training . . . tailored to the grade level or class to
be taught . . . .” Id. § 44830.3(b)(3).

   Fifth, there is a “preliminary credential.” A preliminary cre-
dential may be obtained through either a traditional or an
alternative-route teacher training program. Id. § 44259(b)(3).
A preliminary credential is generally valid for five years. Id.
§ 44251(a)(2), (b)(2). The minimum requirements for a pre-
liminary credential include a bachelor’s degree, a passing
score on the state’s “basic skills examination,” satisfactory
completion of an accredited “program of professional prepa-
ration” (including traditional and alternative-route programs),
and a passing score on one or more subject matter examina-
tions or completion of an approved subject matter program.
Id. § 44259(b).

   Finally, at the top of the hierarchy, there is a “clear creden-
tial.” See id. § 44259(c). To obtain a clear credential, an indi-
vidual must have held a preliminary credential, have
completed a “program of beginning teacher induction,” and
have gained experience in specified areas. Id. § 44259(c)(2),
(4). Clear credentials are generally valid for life. See id.
§ 44251(a)(3), (b)(3).

   In 2004, after the promulgation of the federal regulation
challenged in this case, California promulgated regulations
that mimicked the federal regulation. The California regula-
tion applicable to middle and secondary schools provides that
a teacher “meets NCLB requirements” if the teacher “[i]s cur-
rently enrolled in an approved intern program for less than
three years or has a full credential.” Cal. Code Regs. tit. 5,
§ 6110(2) (emphasis added). The regulation applicable to ele-
mentary schools provides the same thing, but omits the word
“full” before “credential.” Id. § 6101(2) (“[i]s currently
enrolled in an approved intern program for less than three
years or has a credential”) (emphasis added). By their use of
the word “or,” these regulations indicate that an intern teacher
does not have a “(full) credential.” That is, the California reg-
                        RENEE v. DUNCAN                      5021
ulations provide the qualification criterion in the alternative:
A teacher “meets NCLB requirements” if the teacher is “en-
rolled in an approved intern program” or if the teacher “has
a (full) credential.”

   As described in greater detail above, the challenged federal
regulation provides that a teacher may be considered fully
certified, and thus “highly qualified,” within the meaning of
NCLB, if the teacher “[i]s participating in an alternative route
to certification program” and “[d]emonstrates satisfactory
progress toward full certification,” or if the teacher “[h]as ful-
filled the State’s certification and licensure requirements
applicable to the years of experience the teacher possesses.”
34 C.F.R. § 200.56(a)(2). The California regulations thus
mimic the federal regulation, providing that a teacher “meets
NCLB requirements” if that teacher is “currently enrolled in
an approved intern program for less than three years” or “has
a (full) credential.” Cal. Code Regs. tit. 5, §§ 6110(2),
6101(2).

   Before the passage of Section 163, Appellants did not
object to characterizing an alternative-route teacher who had
already obtained “full State certification” as a “highly quali-
fied teacher.” See 20 U.S.C. § 7801(23)(A)(i) (“highly quali-
fied teacher” includes an alternative-route teacher who “has
obtained full State certification as a teacher”) (emphasis
added); 34 C.F.R. § 200.56(a)(1)(i) (“highly qualified teach-
ers” include alternative-route teachers who “have obtained
full State certification as a teacher”) (emphasis added). How-
ever, Appellants did object to characterizing as a “highly
qualified teacher” an alternative-route teacher who had not yet
obtained full state certification, but who merely
“[d]emonstrates satisfactory progress toward full certifica-
tion[.]” 34 C.F.R. § 200.56(a)(2)(ii)(A)(4) (emphasis added).
Before the passage of Section 163, Appellants contended that
such teachers were not “highly qualified” within the meaning
of § 7801(23). Appellants contended that the challenged fed-
eral regulation, upon which the 2004 California regulations
5022                     RENEE v. DUNCAN
are based, allowed a disproportionate number of intern teach-
ers to teach in minority and low-income schools in California,
in violation of NCLB. Specifically, they contended that intern
teachers in California did not have “full State certification”
and were thus not “highly qualified teachers” within the
meaning of NCLB. They contended that if the
§ 200.56(a)(2)(ii) were declared invalid, California would not
be allowed to treat intern teachers as highly qualified teachers
for purposes of NCLB. Appellants contended that in that
event California would likely take steps to ensure that fewer
intern teachers, and more teachers with “preliminary” and
“clear” credentials, teach in minority and low-income public
schools in California.

            C.   Proceedings in the District Court

   Appellants brought suit in federal district court, alleging
that § 200.56(a)(2)(ii) was invalid because it characterized an
alternative-route teacher who is still in the process of obtain-
ing “full State certification” as a “highly qualified teacher.”
Both parties moved for summary judgment on the merits. The
district court granted summary judgment to the Secretary,
upholding § 200.56(a)(2)(ii). Appellants timely appealed. We
have jurisdiction pursuant to 28 U.S.C. § 1291.

                   II.   Standard of Review

   We review de novo questions of justiciability under Article
III. Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003). We
also review de novo a district court’s grant of summary judg-
ment. Ctr. for Biological Diversity v. U.S. Fish & Wildlife
Serv., 450 F.3d 930, 941 n.17 (9th Cir. 2006). “Although we
give deference to an agency’s construction of a statutory pro-
vision it is charged with administering, we must reject those
constructions that are contrary to clear congressional intent or
that frustrate the policy Congress sought to implement.” Bio-
diversity Legal Found. v. Badgley, 309 F.3d 1166, 1175 (9th
Cir. 2002) (internal citation omitted).
                        RENEE v. DUNCAN                       5023
                        III.   Discussion

             A.    Before Passage of Section 163

   In this section of the opinion, we discuss Appellant’s chal-
lenge to 34 C.F.R. § 200.56(a)(2)(ii) before the passage of
Section 163. Before its passage, we concluded that Appellants
had Article III standing and that § 200.56(a)(2)(ii) was incon-
sistent with the plain language of NCLB. In this section, we
recapitulate our discussion and holding in Renee II.

                   1.    Order of Discussion

   In a case where Article III justiciability is in question, we
normally begin our discussion with that question because
Article III justiciability is a prerequisite to reaching the merits
of the dispute. But we reverse the usual order of discussion
because we think our discussion of the merits will help the
reader understand our discussion of Article III standing.

                        2.     The Merits

   The challenged federal regulation seeks to interpret and to
implement NCLB. The regulation was adopted by the respon-
sible federal agency through notice and comment rulemaking.
We therefore applied the analytical framework outlined in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). The first question is “whether Con-
gress has directly spoken to the precise question at issue. If
the intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842-843;
see also Pac. Nw. Generating Coop. v. Dep’t of Energy, 580
F.3d 792, 806 (9th Cir. 2009). If, however, we determine that
Congress has not clearly spoken on the precise question, the
second question is whether the agency’s interpretation “is
based on a permissible construction of the statute.” Chevron,
467 U.S. at 843. Because the intent of Congress, as expressed
5024                    RENEE v. DUNCAN
in NCLB before the passage of Section 163, was clear, we did
not get beyond the first question.

   [1] NCLB provides that an alternative-route teacher is
“highly qualified” once he or she has obtained “full State cer-
tification.” Before the passage of Section 163, the statutory
text provided, in pertinent part:

    The term “highly qualified” —

         (A) when used with respect to any public
         elementary school or secondary school
         teacher teaching in a State, means that —

            (i) the teacher has obtained full State cer-
            tification as a teacher (including certifi-
            cation obtained through alternative routes
            to certification)[.]

20 U.S.C. § 7801(23) (emphasis added). NCLB did not define
“full State certification,” but it made clear — whatever “full
State certification” meant — that such certification must have
been obtained before a teacher could be characterized as
“highly qualified.”

   [2] The federal regulation, quoted at length above, begins
by essentially repeating the pre-Section 163 statutory lan-
guage. The regulation provides that a “highly qualified teach-
er” “must . . . have obtained full State certification as a
teacher, which may include certification obtained through
alternative routes to certification.” 34 C.F.R. § 200.56(a)(1)(i)
(emphasis added). It then goes on, however, to provide that an
alternative-route teacher is “highly qualified” even if he or
she has not obtained “full State certification.” It provides that
a teacher “meets the requirements in paragraph (a)(1)” (which
include the requirement that “full State certification” have
already been obtained), if that teacher “[i]s participating in an
alternative    route     to     certification   program”      and
                        RENEE v. DUNCAN                     5025
“[d]emonstrates satisfactory progress toward full certifica-
tion as prescribed by the State.” Id. § 200.56(a)(2)(ii) (empha-
sis added).

   In his pre-Section 163 brief to us, the Secretary pointed out
that the meaning of “full State certification” in NCLB was
ambiguous because it depends to a substantial degree on state
law. We agreed that the meaning of “full State certification”
in NCLB is ambiguous because it substantially depends on
state law. But this ambiguity was irrelevant.

   [3] Before the passage of Section 163, the “precise ques-
tion at issue,” Chevron, 467 U.S. at 842, was not the meaning
of “full State certification” as used in NCLB. Rather, the “pre-
cise question at issue” was the difference between the mean-
ing of “has obtained” full State certification in the statute, 20
U.S.C. § 7801(23), and the meaning of “demonstrates satis-
factory progress toward” full State certification in the regula-
tion, 34 C.F.R. § 200.56(a)(2)(ii). The difference between
having obtained something and merely making satisfactory
progress toward obtaining it is patent. The panel majority con-
cluded, before the passage of Section 163, that the Secretary’s
regulation impermissibly expanded the definition of “highly
qualified teacher” contained in 20 U.S.C. § 7801(23) by
including in that definition an alternative-route teacher who
merely “demonstrates satisfactory progress toward” the requi-
site “full State certification.” Renee II, 623 F.3d at 796.

   [4] We therefore held, before the passage of Section 163,
that § 200.56(a)(2)(ii) was invalid because it was inconsistent
with the “unambiguously expressed intent of Congress.”
Chevron, 467 U.S. at 843. We emphasized that our holding
was based on the difference between the meaning of “has
obtained” in 20 U.S.C. § 7801(23) and the meaning of “dem-
onstrates satisfactory progress toward” in § 200.56(a)(2)(ii).

                   3.   Article III Standing

  The Secretary had not argued in the district court that
Appellants lacked standing under Article III. He made that
5026                   RENEE v. DUNCAN
argument for the first time on appeal. Lack of Article III
standing is a non-waivable jurisdictional defect that may be
raised at any time, even on appeal after failing to raise it in
the district court. See Laub v. U.S. Dep’t of Interior, 342 F.3d
1080, 1085 (9th Cir. 2003). We concluded that Appellants had
Article III standing.

   “[T]he irreducible constitutional minimum of [Article III]
standing contains three elements.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992); see also DBSI/TRI IV Ltd.
P’ship v. United States, 465 F.3d 1031, 1038 (9th Cir. 2006).
“First, the plaintiff must have suffered an ‘injury in fact’ ”
that is “concrete and particularized” and “actual or immi-
nent.” Lujan, 504 U.S. at 560. “Second, there must be a causal
connection between the injury and the conduct complained
of,” such that the injury is fairly traceable to the action chal-
lenged. Id. “Third, it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Id. at 561 (internal quotations omitted). We consid-
ered these three requirements in turn.

                      a.   Injury in Fact

   Appellants are California public school students, their par-
ents, and two non-profit organizations, Californians for Jus-
tice (“CFJ”) and California Association of Community
Organizations for Reform Now (“California ACORN”). The
named students, along with student members of the two orga-
nizations, attend California public schools at which significant
numbers of intern credential holders serve as teachers. As a
result, these students are being taught by interns, have been
taught by interns, or are substantially likely to be taught by
interns.

   Appellants presented evidence in the district court that a
disproportionate number of interns teach in California public
schools that serve minority and low-income students. For
example, forty-one percent of interns in California teach in
                        RENEE v. DUNCAN                      5027
the twenty-five percent of schools with the highest concentra-
tions of minority students. In contrast, two percent of interns
in California teach in the ten percent of schools with the low-
est concentration of minority students. Interns are similarly
concentrated in schools serving low-income communities,
with sixty-two percent of interns teaching in the poorest half
of California’s schools. This disproportionate distribution of
interns, Appellants contended, results in a poorer quality edu-
cation than Appellants would otherwise have received.

   We concluded that Appellants established injury in fact. In
adopting NCLB, Congress decided, before the passage of Sec-
tion 163, that teachers with “full State certification” were, in
the aggregate, better teachers than those without such certifi-
cation. We recognized that it is debatable whether Congress
was correct in deciding that teachers with “full State certifica-
tion” are better than teachers without such certification. This
is particularly debatable if intern teachers enrolled in pro-
grams such as Teach for America do not have “full State cer-
tification.” But that was not for us to decide. We were bound
to accept Congress’ pre-Section 163 determination that stu-
dents taught by a disproportionate number of teachers without
“full State certification” had been injured in fact.

                        b.    Causation

   We also concluded that there was a causal connection
between the promulgation of the federal regulation challenged
in this case and the later promulgation of the California regu-
lations. The parties do not dispute that the California regula-
tions were adopted as a result of the challenged federal
regulation. To the degree that the federal regulation, and the
mimicking California regulations, had the effect of permitting
California and its school districts to ignore the fact that a dis-
proportionate number of interns teach in schools in minority
and low-income areas, there was a causal connection between
the challenged regulation and the injury of which Appellants
complain.
5028                    RENEE v. DUNCAN
                       c.   Redressability

   Finally, we concluded that Appellants’ injury was likely to
be redressed by invalidation of the federal regulation. “Plain-
tiffs need not demonstrate that there is a ‘guarantee’ that their
injuries will be redressed by a favorable decision.” Graham
v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th
Cir. 1998). The plaintiffs’ burden is “relatively modest.” Ben-
nett v. Spear, 520 U.S. 154, 171 (1997). Plaintiffs need only
show that there would be a “change in a legal status,” and that
a “practical consequence of that change would amount to a
significant increase in the likelihood that the plaintiff would
obtain relief that directly redresses the injury suffered.” Utah
v. Evans, 536 U.S. 452, 464 (2002). If an agency has misinter-
preted the law, there is Article III standing “even though the
agency . . . might later, in the exercise of its lawful discretion,
reach the same result for a different reason.” Fed. Election
Comm’n v. Akins, 524 U.S. 11, 25 (1998).

   The challenged federal regulation permits a state to treat
intern teachers as “highly qualified” under NCLB even if
those teachers are not fully certified under state law but are
only “demonstrat[ing] satisfactory progress toward full certifi-
cation.” The 2004 California regulations, mimicking the fed-
eral regulation, provide that teachers with “full State
certification” under California law, as well as teachers who
are currently enrolled in an intern program, are “highly quali-
fied” within the meaning of NCLB. But the California regula-
tions do not change the definition of “full State certification”
under California law. Unless intern teachers have “full State
certification” under some California law other than these reg-
ulations, such teachers were not “highly qualified” for pur-
poses of NCLB, before the passage of Section 163, in the
absence of the challenged federal regulation. In other words,
California was out of compliance with NCLB if the federal
regulation was invalid. The “change in legal status” that
would result from the invalidation of the federal regulation
significantly increased the likelihood that California would
                       RENEE v. DUNCAN                      5029
take steps to increase the number of teachers with “prelimi-
nary” and “clear” credentials in minority and low-income
schools in order to comply with NCLB.

   The Secretary made two arguments against this conclusion.
First, he argued that intern teachers had “full State certifica-
tion” under California law. The Secretary made the somewhat
surprising argument that because California is not a party to
this suit we should not interpret California law ourselves, but
rather should defer to the Secretary’s interpretation. As the
Secretary surely knew, we routinely interpret California law
in cases in which California is not a party. And while we
defer to the Secretary’s interpretation of federal law under
Chevron, we owe no deference to his interpretation of state
law.

   It was reasonably clear that intern teachers did not have
“full State certification” under California law. California’s
Education Code distinguishes between holders of intern cre-
dentials and holders of preliminary and clear credentials in
several ways. For example, § 44300(a)(1)(A) of the Education
Code, which governs the hiring of permit holders, requires
school districts to document recruitment efforts to hire “certif-
icated teachers, including teacher candidates pursuing full
certification through internship, district internship, or other
alternative routes.” (Emphasis added.) That is, while interns
are “certificated teachers,” they are merely “pursuing full cer-
tification.” Cal. Educ. Code § 44300(a)(1)(A); see also id.
§ 44225.7(a) (indicating that interns are not “fully prepared”
teachers); Bakersfield Elementary Teachers Ass’n v. Bakers-
field City Sch. Dist., 145 Cal. App. 4th 1260, 1277 (Cal. Ct.
App. 2006) (referring to credentials other than clear and pre-
liminary as less than “regular”).

  The 2004 mimicking California regulations similarly distin-
guish between intern teachers and fully credentialed teachers.
Under the California regulation applicable to middle and sec-
ondary schools, a teacher is deemed to “meet the requirements
5030                    RENEE v. DUNCAN
of NCLB” under two circumstances. One is that the teacher
be “currently enrolled in an approved intern program.” The
other is that the teacher have “a full credential.” Cal. Code
Regs. tit. 5, § 6110(2). Thus, as recently as 2004, California
confirmed that intern credential holders are not fully certified
under the current state credentialing system.

   Second, the Secretary argued that if the federal regulation
is held invalid, California would almost certainly change its
credentialing laws to provide that the holder of an intern cre-
dential is fully certified under California law. We disagreed.
As just discussed, California’s Education Code indicates that
holders of “preliminary” and “clear” credentials have “full
certification” under state law, but that interns do not. After the
passage of NCLB, California made no attempt to change its
law to provide that teachers with intern credentials are fully
credentialed under California law. Both before and after the
promulgation of the challenged federal regulation, California
law characterized intern teachers as not having full creden-
tials. The Secretary pointed to no evidence indicating that, in
the event the federal regulation were held invalid, California
would change its credentialing law in a manner it had thus far
not seen fit to do. Nor, indeed, has the Secretary attempted to
argue that, in the wake of our opinion in Renee II, California
has changed its credentialing law.

   Finally, our dissenting colleague made an argument not
made by the Secretary. He argued that even if the federal reg-
ulation were struck down, and even if intern teachers in Cali-
fornia were not “highly qualified” within the meaning of
NCLB, there is nothing in NCLB that empowers the Secretary
to withhold funds as a means of compelling a state to adopt
a specific system of teacher credentialing. In our view, that
was not the issue. The issue, rather, was whether the Secretary
has the authority to withhold funds when a State fails to take
steps to ensure that students in minority and low-income
schools are not taught disproportionately by teachers without
                        RENEE v. DUNCAN                      5031
“full State certification” as the state defined “full certifica-
tion.”

   It is undisputed that NCLB gives the State great flexibility
in deciding which teachers are fully certified under state law,
and that the Secretary cannot compel a State to adopt any spe-
cific credentialing system. That is, a state is free to define
“full certification” in almost any way it chooses. But having
defined full certification under state law, a state is required to
take steps to ensure that fully certified teachers are propor-
tionately represented in the teaching staffs of minority and
low-income schools. It is undisputed that the Secretary has
authority to withhold funds if a state does not take steps to
comply with NCLB. See 20 U.S.C. § 1234c (Secretary may
withhold funds if a recipient “is failing to comply substan-
tially with any requirement of law applicable to such funds”);
id. § 6311(b)(8)(C), (g)(2) (Secretary may withhold funds if
the State has not submitted a plan describing “specific steps
the State educational agency will take to ensure that both
schoolwide programs and targeted assistance schools provide
instruction by highly qualified instructional staff”).

   The Secretary is not required to withhold funds if a state
fails to take steps to comply with NCLB. The statute provides
that he “may” do so rather than that he “must” do so. Id.
§§ 1234c, 6311(g)(2). But the possibility of the Secretary
withholding funds was an obvious incentive for a State to
comply with NCLB. Further, even if the Secretary did not
withhold funds, we were unwilling to assume that California
is a scofflaw state. That is, we were unwilling to assume that
California would refuse to take steps to come into compliance
with NCLB, as it existed prior to the passage of Section 163,
in the absence of such compulsion.

              B.    After Passage of Section 163

                   1.   Effect of Section 163

  [5] Section 163 has temporarily modified NCLB. It pro-
vides that the term “highly qualified teacher” in NCLB
5032                   RENEE v. DUNCAN
includes a teacher who meets the requirements of 34 C.F.R.
§ 200.56(a)(2)(ii). Section 163 thus provides that an
alternative-route teacher who merely “demonstrates satisfac-
tory progress toward full certification” is “highly qualified”
within the meaning of NCLB. Under Section 163,
§ 200.56(a)(2)(ii) is consistent with NCLB and is therefore
valid. That is, so long as Section 163 remains in effect, it
overrules our decision in Renee II.

   [6] However, by its own terms, Section 163 remains in
effect only through the end of the 2012-13 school year. If
Congress takes no further action, the pre-Section 163 version
of NCLB will again be the law. In that event,
§ 200.56(a)(2)(ii) will again be invalid because its definition
of “highly qualified teacher” will again be inconsistent with
the statutory definition.

                       2.    Mootness

   Neither side has contended that Congress’s enactment of
Section 163 has mooted the appeal. However, we have an
independent obligation to ensure that a case is not moot
within the meaning of Article III. See Cole v. Oroville Union
High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000). Article
III mandates that “there be a live case or controversy” when
a federal court decides a dispute. Burke v. Barnes, 479 U.S.
361, 363 (1987). A case can be moot when a challenged stat-
ute or regulation “is repealed, expires, or is amended to
remove the challenged language.” Log Cabin Republicans v.
United States, 658 F.3d 1162, 1166 (9th Cir. 2011) (per
curiam).

   [7] We conclude that the passage of Section 163 does not
moot this appeal. Section 163 is, by its express terms, tempo-
rary. It took effect in December 2010, on the date of enact-
ment, and it will expire after the 2012-13 academic year.
Absent      further    congressional    action,   34     C.F.R.
§ 200.56(a)(2)(ii) will again conflict with NCLB’s definition
                       RENEE v. DUNCAN                      5033
of a “highly qualified teacher.” See Renee II, 623 F.3d at 796.
The Supreme Court has repeatedly held that a temporary halt
to unlawful action does not moot a claim for injunctive relief.
City of Los Angeles v. Lyons, 461 U.S. 95, 101 & n.4 (1983)
(“[T]he case is not moot, since the moratorium by its terms is
not permanent. Intervening events have not irrevocably eradi-
cated the effects of the alleged violation.” (citation and quota-
tions omitted)); Bullock v. Carter, 405 U.S. 134, 141 n.17
(1972) (holding that temporary repeal of challenged statute
does not moot case); see also Ballen v. City of Redmond, 466
F.3d 736, 741 (9th Cir. 2006) (same). Based on these hold-
ings, we conclude that the temporary characterization of alter-
native route teachers defined in § 200.56(a)(2)(ii) as “highly
qualified teachers” within the meaning of NCLB does not
moot the appeal.

      3.   Compliance with pre-Section 163 Reporting
                      Requirements

   [8] NCLB requires the Secretary to file an annual report to
Congress in which the Secretary presents national and state-
level data on compliance with NCLB goals. See 20 U.S.C.
§ 6311(h)(5). In their complaint, Appellants ask that the Sec-
retary be enjoined to amend the reports previously submitted
to Congress, in which he characterized alternative route teach-
ers as “highly qualified.” Appellants ask that the Secretary be
enjoined from characterizing alternative route interns defined
by § 200.56(a)(2)(ii) as “highly qualified teachers” in his
2005-2006 report to Congress on that academic year. Appel-
lants also ask that the Secretary be enjoined to “notify” Con-
gress that his 2002-2003 report relied on the unlawful
definition of “highly qualified teachers” contained in
§ 200.56(a)(2)(ii).

   [9] In Guerrero v. Clinton, 157 F.3d 1190 (9th Cir. 1998),
we held that a federal court could not redress an injury based
on an allegedly inadequate report that an agency is obligated
to file with Congress. Id. at 1194. At issue in Guerrero was
5034                    RENEE v. DUNCAN
a requirement that the President “report annually” to Congress
on the impact of a compact with federal territories and the
State of Hawaii. Id. at 1191. We described the report as
“purely informational.” Id. at 1195. We concluded,

    In sum, no legal consequences flow from [the] report
    and it has no “determinative or coercive effect upon
    the action of someone else” that in turn produced the
    [plaintiffs’] injury . . . . By the same token, the report
    is not agency action of the sort that is typically sub-
    ject to judicial review. Because it triggers no legal
    consequences and determines no rights or obliga-
    tions, no check on the substance of the report is nec-
    essary. Having requested the report, Congress, not
    the judiciary, is in the best position to decide
    whether it’s gotten what it wants.

Id. at 1195 (internal citations omitted) (quoting Bennet v.
Spear, 520 U.S. 154 (1997)).

   [10] As in Guerrero, the reporting requirement of NCLB
that Appellants seek to enforce is “purely informational.” The
provision at issue, § 6311(h)(5), states, “The Secretary shall
transmit annually to [two Committees of Congress] a report
that provides national and State-level data on the information
collected under paragraph (4).” 20 U.S.C. § 6311(h)(5).
“Paragraph (4),” in turn, contains a requirement that the states
report on seven specific metrics of academic success annually
to the Secretary. 20 U.S.C. § 6311(h)(4). This reporting
requirement is of the same character as the requirement in
Guerrero. See 157 F.3d at 1191-92 n.4 (stating requirement
that “the President shall report to the Congress with respect to
the impact of” the compact on territorial governments and
Hawai’i). Nothing in NCLB provides that the Secretary’s
reports to Congress have any legal consequences. As in Guer-
rero, we hold that Appellants’ request for injunctive relief
with respect to these reports was properly denied (though on
a different basis) by the district court.
                           RENEE v. DUNCAN                    5035
                      4.     Attorney’s Fees

    [11] Appellants seek attorney’s fees under the Equal
Access to Justice Act (EAJA). That statute provides: “[A]
court shall award to a prevailing party other than the United
States fees and other expenses . . . incurred by that party in
any civil action . . . brought by or against the United States
. . . unless the court finds that the position of the United States
was substantially justified.” 28 U.S.C. § 2412(d)(1)(A); see
also Pierce v. Underwood, 487 U.S. 552, 559-63 (1988).

   [12] We have interpreted the term “substantial justifica-
tion” as “describ[ing] a position that has a reasonable basis
both in law and fact.” Timms v. United States, 742 F.2d 489,
492 (9th Cir. 1984). That the Secretary did not prevail on the
positions he has taken does not invoke a presumption that he
was not substantially justified. Id. Assuming without deciding
that Appellants qualify as a “prevailing party” under the
EAJA, we conclude that the Secretary’s position was substan-
tially justified.

   [13] We have issued two previous opinions in this case. In
the first opinion, a split panel of this court agreed with the
Secretary’s position that Appellants lack standing. Renee I,
573 F.3d at 905. We reversed our position on the standing
issue, Renee II, 623 F.3d at 80, but one of us continued to
agree with the Secretary’s position on standing, id. (Tallman,
J., dissenting). On the merits, the district judge had agreed
with the Secretary’s position, holding that the challenged reg-
ulation was consistent with the definition of “highly qualified
teachers” contained in NCLB. Given the substantial disagree-
ment among federal judges on the Secretary’s contentions,
Appellants face the daunting task of arguing that the Secre-
tary’s position lacked a reasonable basis in law and fact.

   [14] NCLB affords the Secretary substantial discretion in
determining certain matters of policy. The Secretary con-
tended throughout this litigation that the term “highly quali-
5036                   RENEE v. DUNCAN
fied teacher” is sufficiently ambiguous so as to encompass
alternative route interns defined by § 200.56(a)(2)(ii). In so
doing, he advanced a “novel but credible extension or inter-
pretation of the law.” Timms, 742 F.2d at 492 (internal quota-
tion marks omitted). He pursued his position without the
guidance from any federal court on the meaning of the statu-
tory phrase “highly qualified teachers.” See Armster v. U.S.
Dist. Ct. for Cent. Dist. of Cal., 817 F.2d 480, 483-84 (9th
Cir. 1987) (considering litigating position as substantially jus-
tified “especially since there was no case law directly to the
contrary”). Given the Secretary’s task and the divergent views
of federal judges, it was reasonable for the Secretary to test
the validity of the regulation “in the absence of any precedent
on the question.” Foster v. Tourtelotte, 704 F.2d 1109, 1112
(9th Cir. 1983) (per curiam).

   [15] We therefore deny Appellants’ motion for attorneys’
fees under the EAJA.

                          Conclusion

   For the foregoing reasons, we reaffirm our decision in
Renee II that 34 C.F.R. § 200.56(a)(2)(ii) is inconsistent with
NCLB as it existed before the passage of Section 163. That
Section prospectively overruled Renee II. So long as Section
163 remains in effect § 200.56(a)(2)(ii) is valid. However, if
Congress does nothing, Section 163 will expire at the end of
the 2012-13 academic year. In that event, our opinion in
Renee II will again control.

  AFFIRMED.



TALLMAN, Circuit Judge, dissenting in part and concurring
in part:

  I concur in the judgment and parts III.B.1—2—that the
appeal is not moot—and III.B.4—that appellants are not enti-
                        RENEE v. DUNCAN                      5037
tled to attorney’s fees. I continue to believe that the appellants
lack standing to bring this suit, Renee II, 623 F.3d at 800-807,
and would dismiss this appeal for the reasons I previously
explained.

   I agree that if we were to reach the merits, the passage of
§ 163 did not make this appeal moot. However, the majority’s
detailed discussion of § 163 is extraneous dicta. Section 163
explicitly modifies NCLB to include the definition for “highly
qualified teacher” contained in 34 C.F.R. § 200.56(a)(2)(ii).
Because the regulation can no longer violate NCLB, it is
unnecessary for the majority to address in this opinion
whether—prior to the enactment of § 163—the challenged
regulation violated NCLB.

   Any discussion about the pre-§ 163 regulation is largely
immaterial to the issue now before us because it depends upon
a prediction of what Congress may do in 2013. What Con-
gress has done is “prospectively overrule[ ] Renee II.” Op. at
5036. Under the law of the case doctrine it appears that should
Congress fail to act by 2013 the majority’s opinion in Renee
II would control. Given enactment of § 163, however, the dis-
cussion of whether the regulation violated NCLB pre-§ 163
becomes wholly irrelevant. I therefore do not join that part of
the majority’s opinion.
