                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 23 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

K. Y., through his guardians David and          No.    18-16350
Leilanie Yu,
                                                D.C. No. 3:18-cv-00940-MMC
                Plaintiff-Appellant,

 v.                                             MEMORANDUM*

RICK SCHMITT, in his official capacity as
Superintendent of the San Ramon Valley
Unified School District,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Northern District of California
                   Maxine M. Chesney, District Judge, Presiding

                            Submitted January 6, 2020**
                             San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and HILLMAN,***
District Judge.



      *
             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).
      ***
             The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
      K.Y. (“Plaintiff”) brought a lawsuit against San Ramon Valley Unified

School District superintendent Rick Schmitt, alleging that San Ramon Valley High

School’s rules governing campaigns for school elections infringed on his free

speech and due process rights in violation of federal and state law. Plaintiff sought

injunctive and declaratory relief. We hold that this case is moot1 and accordingly

dismiss it for lack of jurisdiction.2

      1. Plaintiff’s case is moot because “the issues presented are no longer live”

and there is thus no “‘case or controversy’ under Article III of the Constitution.”

See In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005) (explaining that “[t]he test for

mootness of an appeal is whether the appellate court can give the appellant any

effective relief in the event that it decides the matter on the merits in his favor”



      1
        We assume, without deciding, that K.Y. had standing to bring his suit. See
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180
(2000) (stating that courts “may assume without deciding that standing exists in
order to analyze mootness” (citing Arizonans for Official English v. Arizona, 520
U.S. 43, 66-67 (1997))).
      2
         A live claim for damages, including nominal damages, “will prevent
dismissal for mootness.” Jacobs v. Clark Cty. Sch. Dist., 526 F.3d 419, 425 (9th
Cir. 2008) (quoting Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th
Cir. 2002)). Although Plaintiff sought “[a]ll other relief to which Plaintiff may be
entitled,” Plaintiff’s briefing to this court does not mention any relief other than
injunctive and declaratory relief. And in any event, we have declined “at the
eleventh hour” to “transform [a] lawsuit from a request for prospective equitable
relief into a plea for money damages to remedy past wrongs” based on a general
prayer for “such additional or different relief as [the district court] deems just and
proper.” Bain v. Cal. Teachers Ass’n, 891 F.3d 1206, 1212 (9th Cir. 2018).

                                           2
(quoting Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986))). Plaintiff is

currently a senior at San Ramon Valley High School, and it appears that students

are ineligible to run in school elections their senior year, because elected

representatives serve in the subsequent school year, by which point current seniors

are expected to have graduated. It thus appears that Plaintiff cannot again run in an

election governed by the school’s allegedly unlawful rules. Because there is no

“live case or controversy” involving Plaintiff “justifying declaratory and injunctive

relief against [the] school’s . . . policy,” we lack jurisdiction “unless an exception

to mootness applies.” See Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092,

1098 (9th Cir. 2000); see also Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646,

656-57 (9th Cir. 2002) (holding that, where students challenged schools’

admissions policies but during the course of litigation became ineligible to apply to

those schools, the students’ claims were moot).

      Plaintiff argues that the “capable of repetition, yet evading review”

exception to mootness applies. But this exception typically requires that there be

“a reasonable expectation that the same complaining party [will] be subject to the

same action again.” Spencer v. Kemna, 523 U.S. 1, 17 (1998) (alteration in

original) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990)). There is

no indication that Plaintiff will again be subject to the allegedly unlawful rules,

either as a candidate or as a non-candidate campaigning for one or more of the


                                           3
students who is running in a school election. To the extent that Plaintiff argues

that he “could again be subject” before graduation to the general “speech code” of

San Ramon Valley High School, that is not the “same action” complained of in his

lawsuit, which challenged only the school election campaign rules and not the

school’s general rules regarding student speech. See Spencer, 523 U.S. at 17

(quoting Lewis, 494 U.S. at 481). And Plaintiff’s bare assertion that “[h]e could

again be subject to the High School’s speech code,” is insufficient to meet his

“burden of showing that there is a reasonable expectation that [he] will once again

be subjected to the challenged activity.” See Lee v. Schmidt-Wenzel, 766 F.2d

1387, 1390 (9th Cir. 1985).

      2. Plaintiff’s other arguments for why this case is not moot are unavailing.

Plaintiff argues that he suffered an injury because he “conducted two campaigns

under the auspices of the speech code, and was forced to self-censor during those

campaigns.” But because Plaintiff has sought only injunctive and declaratory

relief, and not retrospective relief, there is no “effective relief” that the federal

courts could provide Plaintiff for his alleged retrospective injury. See In re

Burrell, 415 F.3d at 998 (quoting Garcia, 805 F.2d at 1402). Plaintiff further

argues that this case presents a live controversy under the First Amendment

overbreadth doctrine. But Plaintiff’s argument fails under Cole, 228 F.3d 1092,

where we held that “a litigant cannot sustain an overbreadth . . . claim if he no


                                            4
longer has a personal interest in the outcome which itself satisfies the case or

controversy requirement.” See id. at 1098-99 (holding injunctive claims moot).

For the reasons stated above, Plaintiff lacks such a “personal interest.”3 See id. at

1099.4

      We dismiss K.Y.’s appeal as moot and remand to the district court with

instructions to vacate the judgment and dismiss the complaint. See Bd. of Trs. of

Glazing Health and Welfare Trust v. Chambers, 941 F.3d 1195, 1199 (9th Cir.

2019) (en banc).

      DISMISSED AND REMANDED WITH INSTRUCTIONS.




      3
         To the extent Plaintiff argues that this case is not moot because his younger
sister, who is currently a freshman at San Ramon Valley High School, might “seek
elected office,” that contention fails for the same reason. See Cole, 228 F.3d at
1099.
      4
          We grant Plaintiff’s motion to supplement the record.

                                          5
                                                                          FILED
                                                                           JAN 23 2020
K.Y. v. Schmitt, No. 18-16350
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
WALLACE, Circuit Judge, concurring in part and dissenting in part.

         This case comes before us from the district court’s dismissal of K.Y.’s First

Amended Complaint for lack of Article III standing. After the parties briefed the

issue of standing, we instructed them to file supplemental briefs on mootness. We

were concerned that the case was rendered moot with the passing of the last student

election for which K.Y. was eligible to be a candidate.

         My colleagues have since concluded that the case is moot, remanding to the

district court with an instruction to vacate its judgment. I write separately because,

in my view, Article III standing is a threshold question we ought to resolve before

we may turn to mootness. Applying the law of standing, I would affirm the district

court.

                                            I.

         I realize that it has been over four decades since I last taught a course on

federal jurisdiction. However, standing is one of the few constants in our system of

law, “an essential and unchanging part of the case-or-controversy requirement of

Article III.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008), quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

         Enshrined in the constitutional text as a clear limit of our judicial power,

standing has been “considered a threshold question” that we must resolve. Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 88 (1998). The Supreme Court has

instructed us not to entertain the merits of a case without first addressing our

jurisdiction. See id. at 100–01. We cannot assume hypothetical jurisdiction, only

then to “resolve contested questions of law.” Id. at 101. We have no power to do

so.

      The Supreme Court has since concluded that assuming the existence of Article

III standing is improper only if a court does so to reach the merits of a case. Although

the Supreme Court in Steel Co. had “reasoned that subject-matter jurisdiction

necessarily precedes a ruling on the merits,” the Supreme Court since said that “the

same principle [did] not dictate a sequencing of jurisdictional issues.” Ruhrgas AG

v. Marathon Oil Co., 526 U.S. 574, 584 (1999). Indeed, we may “resolve the

question whether there remains a live case or controversy . . . without first

determining whether [there is] standing to appeal because the former question, like

the latter, goes to [] Article III jurisdiction.” Arizonans for Official English v.

Arizona, 520 U.S. 43, 66–67 (1997). We have thus previously assumed a plaintiff’s

standing to resolve a case on mootness grounds. See Cook Inlet Treaty Tribes v.

Shalala, 166 F.3d 986, 989 (9th Cir. 1999), citing Arizonans for Official English,

520 U.S. at 66–67.

      I respectfully disagree with the view that a court may assume Article III

standing only to resolve a case on a different jurisdictional basis. See Burke v.

                                           2
Barnes, 479 U.S. 361, 366 (1987) (Stevens, J., dissenting) (observing that to address

mootness first, a court must first assume the existence of standing). When a plaintiff

arguably lacks standing to bring a case in federal court at all, a court should address

mootness only after assuring itself that there is Article III standing.

      Although standing and mootness both “require some sort of interest in the

case, and both go to whether there is a case or controversy under Article III,” the

“doctrines have important differences.” Jackson v. Cal. Dept. of Mental Health, 399

F.3d 1069, 1072–73 (9th Cir. 2005). Standing doctrine ensures that “the scarce

resources of the federal courts are devoted to those disputes in which the parties have

a concrete stake.” Id. at 1073, quoting Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 191 (2000). On the other hand, mootness issues

“arise later in the case, when the federal courts are already involved and resources

have already been devoted to the dispute.” Id., citing Friends of the Earth, Inc., 528

U.S. at 191. By reaching mootness when there was no standing at the outset of the

case, we needlessly confront a doctrine uniquely designed to govern cases that have

“been brought and litigated, often . . . for years.” Friends of the Earth, Inc., 528 U.S.

at 190.

      In addition, by skipping over the question of standing, we reach issues that

could have been avoided had we followed a more structured jurisdictional sequence.

Here, my colleagues addressed, and rejected, K.Y.’s argument that the case was not

                                           3
moot because it presented an issue that was capable of repetition, yet evading review.

However, exceptions to mootness, such as voluntary cessation and capable of

repetition, yet evading review do not apply in the standing context. See Friends of

the Earth, Inc., 528 U.S. at 191. When a defendant has “never inflicted an injury

sufficient to give [the plaintiff] standing to bring the issue,” the plaintiff’s “attempt

to make out a theory that the issue was ‘capable of repetition, yet evading review’ is

[] inapposite, as that familiar exception to mootness cannot confer standing on a

claim when injury in fact was missing at the outset.” WorldCom, Inc. v. F.C.C., 308

F.3d 1, 11 (D.C. Cir. 2002), citing Friends of the Earth, Inc., 528 U.S. at 191.

      The importance of adhering to a strict chronological sequence is not purely

academic. Were we to conclude that there was no Article III standing, as I believe

we should have, we would have affirmed the district court’s judgment. However,

because my colleagues have decided to resolve the case on mootness grounds, the

district court’s well-reasoned decision is now vacated.          See United States v.

Munsingwear, Inc., 340 U.S. 36, 40 (1950). As a former district court judge, I can

appreciate the strange result of being correct on the law used to resolve the case––

but being reversed.

      There is good reason not to vacate the district court’s judgment for standing.

Resolving questions of standing, especially difficult ones, serves an important

purpose. Indeed, we address Article III standing in part “to assure that concrete

                                           4
adverseness [] sharpens the presentation of issues upon which the court so largely

depends for illumination of difficult constitutional questions[.]” Baker v. Carr, 369

U.S. 186, 204 (1962). For example, in our principal case on Article III standing in

the First Amendment context, we concluded that although the plaintiff came “to the

very edge of showing injury in fact,” he had “not made it over the threshold.” Lopez

v. Candaele, 630 F.3d 775, 794 (9th Cir. 2010). We could have, but did not, address

the parties’ arguments on mootness based on the asserted change in the sexual

harassment policy which gave rise to the plaintiff’s complaint.

      Nor would judicial resources be wasted by resolving this appeal based on

standing principles. The district court here ruled on the discrete issue of standing.

The parties briefed the issue of standing. Therefore, especially on an appeal from

the district court’s dismissal for lack of standing, we should not assume that a

plaintiff had standing after concluding that he, in fact, did not. In such a case, there

is much to be lost, and little to be gained, by assuming the existence of standing.

      I therefore respectfully question the Supreme Court’s view that courts should

be afforded jurisdictional flexibility when it comes to standing. However, even

under the current caselaw, we are given a choice whether to address standing first.

Given the choice, I believe we should adopt the better practice of not assuming

standing exists to reach mootness.       Cf.    Common Cause of Pennsylvania v.

Pennsylvania, 558 F.3d 249, 255 n.2 (3d Cir. 2009) (“Because we decide this appeal

                                           5
on the basis of standing, we need not address whether Plaintiffs’ claims are moot”)

(citations omitted).

                                          II.

      Starting with the threshold question before us, I agree with the district court

that K.Y. lacked standing. In the First Amended Complaint, K.Y. alleged that he

intended to run for student body president. He alleged to have “a specific and

credible threat that” the School District would “enforce the campaign rules against

him if he uses language that is offensive to others in his future campaign for ASB

president.” K.Y. had a “concrete plan to engage in acts,” which he claimed would

have violated the campaign rules banning the use of inappropriate or offensive

language in campaign materials.

      In deciding whether a pre-enforcement plaintiff has standing to assert a First

Amendment violation, we consider three factors: (1) whether he has shown a

reasonable likelihood that the government will enforce the challenged law against

him; (2) whether he has established, with some degree of concrete detail, that he

intends to violate the challenged law; and (3) whether the challenged law is

applicable to the plaintiff, either by its terms or as interpreted by the government.

See Lopez, 630 F.3d at 786. All three factors weigh against standing here.

      First, K.Y. has not shown a reasonable likelihood that the School District

would have enforced the 2018 campaign rules against him. Without a specific threat

                                         6
of enforcement, K.Y.’s allegations are too attenuated to confer standing. Other than

K.Y.’s allegation of a subjective chill, the First Amended Complaint “is devoid of

any threat—generalized or specific—directed toward” K.Y. Thomas v. Anchorage

Equal Rights Comm’n, 220 F.3d 1134, 1140 (9th Cir. 2000) (en banc).

      K.Y. alleges that the School District’s enforcement of the campaign rules

against his older brother in the 2017 election established a credible threat that the

School District would enforce the 2018 campaign rules against him for his intended

speech. Although, “[a] history of past enforcement against parties similarly situated

to the plaintiff[] cuts in favor of a conclusion that a threat is specific and credible,”

Lopez, 630 F.3d at 786–87 (citation omitted), for a threat to be credible based on

allegations of past enforcement, a plaintiff must allege “[p]ast enforcement against

the same conduct.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164 (2014)

(emphasis added).

      Here, K.Y. alleges that as part of the 2017 campaign, his older brother was

disciplined by the School District for violating its campaign rules after distributing

a video of a James Bond parody that included two Americans of Afghan descent

posed as a radical group. K.Y. has not alleged any facts supporting an inference that

he intended to engage in similar speech. The first Lopez factor thus weighs against

standing.




                                           7
      Second, K.Y. fails to establish with concrete detail that he intended to violate

the challenged 2018 campaign rules. “Because the Constitution requires something

more than a hypothetical intent to violate the law, plaintiffs must articulate a concrete

plan to violate the law in question by giving details about their future speech such as

when, to whom, where, or under what circumstances.” Lopez, 630 F.3d at 787

(internal quotation marks, alteration, and citation omitted). The allegations “must

be specific enough so that a court need not ‘speculate as to the kinds of political

activity the [plaintiffs] desire to engage in or as to the contents of their proposed

public statements or the circumstances of their publication.” Id., quoting United

Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 90 (1947) (alteration in

original).

      Lopez controls this appeal.       There, the plaintiff desired to discuss “his

Christian views on politics, morality, social issues, religion, and the like,” and

wished to “share his beliefs about Christianity with others,” in the future, including

by “discussing his faith and how it applies to guide his views on political, social, and

cultural issues and events.” Id. at 790 (alterations in original and internal quotation

marks omitted). We held that the plaintiff lacked standing because he had alleged

“few details about his intended future speech.” Id.

      K.Y.’s allegations are similarly generic. K.Y. alleges that it is “premature” to

“predict exactly what [his] campaign will center on or what language or materials

                                           8
will be effective” in February 2019. He believes that “jarring images and/or

provocative language can be used very effectively to bring attention to his

candidacy” and therefore, he “intends to use them.” K.Y. also “believes that the

most effective campaign will address sensitive issues and therefore could be viewed

by some as inappropriate or offensive simply because they touch on sensitive but

important issues, such as race, immigration policy, or religion.” He desires to have

in his “arsenal” both “language and ideas” that he finds appropriate, but which

administrators and others may find inappropriate or offensive.

      K.Y.’s allegations regurgitate the full scope of the campaign rules barring

students from creating campaign signs and slogans that are “inappropriate,”

including material that is “racist, sexist, or otherwise offensive to others.” K.Y.’s

“general intention to violate” the School District’s campaign rules at some

“unknown date in the future does not rise to the level of an articulated, concrete

plan.” Thomas, 220 F.3d at 1139. The second Lopez factor therefore also weighs

against standing.

      Third, K.Y. fails to establish that the 2018 campaign rules would apply to his

intended speech in 2019. As the district court explained, the 2018 campaign rules

were “by their own terms only applicable to the election that was conducted in

February 2018.” That the 2018 campaign rules could have changed for the 2019

election undermines K.Y.’s contention that the campaign rules would regulate his

                                         9
intended speech in 2019. However, even if the 2018 campaign rules had governed

the 2019 student elections, K.Y. did not allege specific facts supporting the inference

that his intended speech was “clearly prohibited by” the campaign rules. Italian

Colors Rest. v. Becerra, 878 F.3d 1165, 1173 (9th Cir. 2018). The third Lopez factor

thus also weighs against Article III standing.

      Because all three Lopez factors weigh against standing, the district court

properly concluded that K.Y. lacked standing to challenge the campaign rules.

K.Y.’s general objection to the campaign rules barring “inappropriate” or

“offensive” speech is not a substitute for the rigid strictures of Article III for the

“inquiry into injury-in-fact does not turn on the strength of plaintiffs’ concerns about

a law, but rather on the credibility of the threat that the challenged law will be

enforced against them.” Lopez, 630 F.3d at 792, citing Babbitt v. United Farm

Workers Nat. Union, 442 U.S. 289, 298–99 (1979).

      I would affirm the district court’s dismissal for lack of standing.




                                          10
