United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 11, 2020                   Decided May 29, 2020

                        No. 19-7072

               ALTAGRACIA SANCHEZ, ET AL.,
                      APPELLANTS

                             v.

OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION, AND
                DISTRICT OF COLUMBIA,
                      APPELLEES


                 Consolidated with 19-7085


        Appeals from the United States District Court
                for the District of Columbia
                    (No. 1:18-cv-00975)


    Renee D. Flaherty argued the cause for appellants/cross-
appellees. With her on the briefs was Robert J. McNamara.

    Graham E. Phillips, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees/cross-appellants. With him on the briefs
were Karl A. Racine, Attorney General, Loren L. Alikhan,
Solicitor General, and Caroline S. Van Zile, Principal Deputy
Solicitor General.
                               2

    Before: HENDERSON, GARLAND, and PILLARD, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge GARLAND.

     GARLAND, Circuit Judge: The three plaintiffs in this case
challenge the validity of District of Columbia regulations that
impose minimum education requirements for certain childcare
providers. The district court did not reach the merits of the
plaintiffs’ complaint, holding instead that the case was non-
justiciable on grounds of standing, ripeness, and mootness.
Concluding that the case is justiciable, we remand it to the
district court for consideration of the merits of the plaintiffs’
allegations.

                                I

      In 2016, the District of Columbia Office of the State
Superintendent of Education (OSSE) issued regulations that
establish minimum education requirements for childcare staff at
child development facilities. 63 D.C. Reg. 14,640 (Dec. 2,
2016). Under the 2016 regulations, plaintiff Dale Sorcher,
whom the regulations refer to as a “teacher in a child
development center” and who already has advanced degrees in
other fields, was required to earn twenty-four credit hours in an
early childhood field by December 2020. See D.C. Mun. Regs.
tit. 5-A1, § 165.1(b) (2016). Plaintiff Altagracia Sanchez, whom
the regulations deem an “expanded home caregiver,” was
required to obtain an associate’s degree with a major in an early
childhood field by December 2019. Id. § 170.2(a)(1).
Obtaining such a degree requires roughly sixty credit hours of
coursework. Am. Compl. ¶ 174.

     Under the regulations, OSSE may grant “hardship waivers”
of the education requirements to facilities facing “sufficiently
                               3

great” economic hardship. D.C. Mun. Regs. tit. 5A-1, § 106.1.
It may also grant “experience waivers” to individuals who had
“continuously served” in certain childcare positions for ten or
more years as of 2016. See, e.g., id. § 165.4. Under the original
regulations, experience waivers were not available to expanded
home caregivers like Sanchez. Although they were available to
teachers in a child development center, Sorcher had not worked
continuously for ten years as of 2016 and thus was ineligible.
See Am. Compl. ¶ 226.

     Along with plaintiff Jill Homan, a mother with two children
in daycare, Sorcher and Sanchez brought a facial challenge to
OSSE’s regulations. The regulations, the plaintiffs alleged,
violate the nondelegation doctrine, substantive due process, and
equal protection.

     After the plaintiffs filed suit in 2018, OSSE amended its
regulations to extend the compliance deadlines to December
2023. 65 D.C. Reg. 7,032 (June 29, 2018). The amended
regulations also make expanded home caregivers like Sanchez
eligible for experience waivers. See D.C. Mun. Regs. tit. 5-A1,
§ 170.2(c) (2018). Thereafter Sanchez, who had the requisite
years of experience prior to 2016, was granted an experience
waiver.

     Following these developments, the district court dismissed
the plaintiffs’ complaint for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1). Sanchez v.
Office of the State Superintendent of Educ. (Sanchez I), 2019
WL 935330, at *9 (D.D.C. Feb. 26, 2019). Subsequently, the
court denied the plaintiffs’ motion to amend their complaint or
to alter the court’s judgment, on the ground that any amendment
would be futile. Sanchez v. Office of the State Superintendent of
Educ. (Sanchez II), 2019 WL 2931285, at *6 & n.1 (D.D.C. July
                                  4

8, 2019).1

     The district court first held that Homan, who is not subject
to the regulations, failed to show the “injury in fact” required for
standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). Sorcher and Sanchez, however, are subject to the
regulations and both explained that, at the time they filed suit,
they would need to take immediate steps to comply. On that
basis, the district court held that Sorcher and Sanchez made the
requisite showing of injury. Sanchez I, 2019 WL 935330, at *4-
5. We agree that Sorcher and Sanchez have standing, and OSSE
does not dispute the point.

    But the court also held that Sorcher’s claims are not ripe,
and that Sanchez’s claims are either moot or also unripe. Id. at
*6-9; Sanchez II, 2019 WL 2931285, at *4-6. Those
determinations are the subject of this opinion.

                                  II

     1. We begin with the contention that Sorcher’s claims are
not ripe. OSSE relies on caselaw holding that the ripeness
inquiry “requires us to evaluate (1) the fitness of the issues for
judicial decision and (2) the hardship to the parties of
withholding court consideration.” Nat’l Ass’n of Home Builders
v. U.S. Army Corps of Eng’rs, 440 F.3d 459, 464 (D.C. Cir.
2006) (quoting Nat’l Park Hospitality Ass’n v. Dep’t of Interior,


     1
      All citations in this opinion are to the proposed amended
complaint. We conclude that both the original and amended
complaints are sufficient to survive a Rule 12(b)(1) motion, and hence
that the amendment was not futile. We therefore reverse the district
court’s rulings regarding the motion to amend the complaint or alter
the judgment. See He Depu v. Yahoo! Inc., 950 F.3d 897, 900 n.1
(D.C. Cir. 2020).
                                  5

538 U.S. 803, 808 (2003)); see Stolt-Nielsen S.A. v.
AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010). But cf.
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014)
(raising questions regarding “the continuing vitality of the
prudential ripeness doctrine”). OSSE argues both that Sorcher’s
claims are not “fit” for review and that delay would impose little
“hardship” on the plaintiffs. Those arguments are unconvincing.

      OSSE maintains that Sorcher’s due process and equal
protection claims are not yet fit for review because their merits
may depend on how generous OSSE is in granting hardship
waivers. But see Int’l Refugee Assistance Project v. Trump, 883
F.3d 233, 262-63 (4th Cir.) (en banc) (holding that a facial
challenge to the constitutionality of an executive order was ripe,
regardless of the availability of discretionary, case-by-case
waivers), vacated on other grounds, 138 S. Ct. 2710 (2018)
(mem.). OSSE does not dispute that Sorcher’s nondelegation
doctrine challenge is currently ripe, but argues that it should not
be heard until the other two challenges ripen. In our view, those
challenges are currently ripe as well.

     “A purely legal claim in the context of a facial challenge . . .
is presumptively reviewable,” Nat’l Ass’n of Home Builders,
440 F.3d at 464 (internal quotation marks omitted), and
Sorcher’s claims are purely legal. Her challenge is not to
disparities in how hardship waivers are administered, but to the
rationality of the education requirements -- both in-and-of
themselves and as imposed upon different categories of
caregivers. The hardship waiver provision is unrelated to those
challenges. The waiver is granted only to childcare facilities,
not to individual caregivers like Sorcher. See 62 D.C. Reg.
14,640, 14,648 (Dec. 2, 2016) (providing that “any waiver
[under section 106] is . . . to the sole benefit of a facility”); D.C.
Mun. Regs. tit. 5-A1, § 106.2 (providing that a “Child
Development Facility . . . may apply for a waiver”). And it may
                                    6

be granted only upon “clear and convincing evidence” that a
facility meets hardship criteria unrelated to Sorcher’s
constitutional challenges. D.C. Mun. Regs. tit. 5-A1, § 106.1;
see id. (providing that “OSSE may waive compliance . . . if
OSSE determines . . . [that] [t]he demonstrated . . . economic
impact or hardship on the Facility or staff member is sufficiently
great to make immediate compliance impractical despite diligent
efforts”).

     OSSE also maintains that Sorcher will suffer only minor
hardship from the court withholding consideration because the
extended compliance deadline gives her time to apply for and
obtain a hardship waiver.2 But as we have just set out, the
regulations authorize hardship waivers only for facilities, not for
individuals, and a grant depends on facts that may or may not
exist at a particular time. The waiver must be renewed every
three years, and so the hardship criteria must be satisfied not
only at the time of the original grant, but also at the time of each
renewal. D.C. Mun. Regs. tit. 5-A1, § 102.7. Moreover,
Sorcher wants “the freedom to work anywhere in the child-care
field for anyone,” Am. Compl. ¶ 218, and thus any future
employer would also have to obtain a waiver that would cover
her. Finally, the grant of a waiver is both discretionary and
revocable at any time. D.C. Mun. Regs. tit. 5-A1, § 106.5
(providing that “[a]ny waiver is issued at the discretion of OSSE
and may be revoked by OSSE at any time . . . upon the
determination of OSSE that continuance of the waiver is no


     2
      But see Teva Pharm. USA, Inc. v. Sebelius, 595 F.3d 1303, 1310
(D.C. Cir. 2010) (noting that “[t]his court has frequently suggested
that hardship is not a sine qua non of ripeness” and collecting cases);
Nat’l Ass’n of Home Builders, 440 F.3d at 465 (noting that, where
“there are no significant agency or judicial interests militating in favor
of delay, lack of hardship cannot tip the balance against judicial
review” (internal quotation marks and alterations omitted)).
                                 7

longer in the best interest of children it its care”).

     In short, OSSE expects Sorcher to rest comfortably on the
availability of a discretionary, time-limited and revocable
waiver, based on criteria that her employing facility may or may
not meet at any given time, and which in any event depends on
the willingness of a facility to repeatedly reapply. That is cold
comfort indeed. We therefore find quite plausible Sorcher’s
contention that, in the absence of a decision in her favor, she
will have to begin expending time and money now in order to
obtain the credentials the regulations prescribe.            Am.
Compl. ¶ 219. She cannot simply count on the continuing
availability of a waiver to continue in her career. Indeed,
Sorcher’s complaint alleges that she is already spending hours
identifying college programs that meet her scheduling needs and
financial resources. Id. ¶ 220. Much as OSSE may attempt to
downplay its impact, that is a cognizable hardship for ripeness
purposes.

     2. We next address the district court’s holding that, because
Sanchez has obtained an experience waiver, her claims are now
moot. “[A] case ‘becomes moot only when it is impossible for
a court to grant any effectual relief whatever to the prevailing
party. As long as the parties have a concrete interest, however
small, in the outcome of the litigation, the case is not moot.’”
Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Knox v.
Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307-08
(2012)) (citations omitted). There is no dispute that the
regulations’ education requirements continue to apply to
Sanchez. See Sanchez I, 2019 WL 935330, at *7. Although she
has obtained an experience waiver, OSSE acknowledges that the
waiver is not permanent. Recording of Oral Arg. at 16:03. She
must reapply for it every three years, D.C. Mun. Regs. tit. 5-A1,
§ 102.7, and OSSE may revoke it at any time, id. § 106.5.
Sanchez therefore retains a “concrete interest . . . in the outcome
                                8

of the litigation,” and holding the regulations invalid would
provide her the relief she seeks. Chafin, 568 U.S. at 172
(quoting Knox, 567 U.S. at 307-08).

    The district court also suggested that, even if Sanchez’s
claims are not moot, they are unripe. Again, we disagree.

     As was true of Sorcher’s claims, Sanchez’s claims are
purely legal and hence presumptively reviewable. See Nat’l
Ass’n of Home Builders, 440 F.3d at 464. Sanchez alleges that
the regulations’ education requirements are irrational. The fact
that OSSE may -- in its discretion -- waive those requirements
from time to time (either for experience or for hardship) will not
affect resolution of those allegations.

     And because Sanchez’s waiver may be revoked or its
renewal declined, she -- like Sorcher -- must take steps to obtain
the required credentials now or risk the loss of her career.
Indeed, Sanchez faces an even greater quandary than Sorcher,
because the associate’s degree she needs requires sixty credit-
hours of coursework, which she estimates would take her five
years to complete. Am. Compl. ¶ 174. And, again like Sorcher,
Sanchez alleges that she has already spent and continues to
spend hours searching for college programs that meet her
scheduling needs and financial resources -- not to mention the
hours she spent applying for her current experience waiver. Id.
¶¶ 256, 258. In any event, because Sanchez’s claims are largely
indistinguishable from Sorcher’s, and because the latter are ripe,
it better serves “judicial economy” to consider both plaintiffs’
claims together. Am. Petrol. Inst. v. EPA, 683 F.3d 382, 387
(D.C. Cir. 2012) (internal quotation marks omitted).

     3. Finally, we need not and do not reach the question of
Homan’s standing because her claims are the same as those of
the other two plaintiffs, and there is no dispute that Sanchez and
                                9

Sorcher have standing. See Ams. for Safe Access v. Drug Enf’t
Admin., 706 F.3d 438, 443 (D.C. Cir. 2013). We also decline
the parties’ invitation to adjudicate the merits of the plaintiffs’
claims, which the district court did not address. Instead, we
remand the case to permit the district court to address those
claims in the first instance.

                                III

     For the foregoing reasons, the judgment of the district court
is reversed, and the case is remanded for further proceedings.

                                                      So ordered.
