                           NOT FOR PUBLICATION                           FILED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

GREENLINING INSTITUTE; et al.,                  No.    17-73283

                Petitioners,                    FCC No. 17-154

 v.
                                                MEMORANDUM*
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,

             Respondents,
______________________________

USTELECOM-THE BROADBAND
ASSOCIATION,

                Intervenor.

                     On Petition for Review of an Order of the
                      Federal Communications Commission

                      Argued and Submitted August 27, 2019
                               Seattle, Washington

Before: McKEOWN and BYBEE, Circuit Judges, and GAITAN,** District Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
      The Greenlining Institute, Public Knowledge, The Utility Reform Network,

and the National Association of State Utility Consumer Advocates (collectively,

“Petitioners”) seek review of a November 2017 order and declaratory ruling issued

by the Federal Communications Commission. The parties are familiar with the

facts, so we do not repeat them here. We have jurisdiction under 47 U.S.C. § 402

and 28 U.S.C. § 2342(1), and deny the petition because Petitioners lack standing.

      At least one petitioner must have Article III standing for each of the

challenges raised on appeal. See Town of Chester v. Laroe Estates, Inc., 137 S. Ct.

1645, 1650–51 (2017). “The party invoking federal jurisdiction bears the burden

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

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

Bonneville Power Admin., 117 F.3d 1520, 1528 (9th Cir. 1997).

      “[A]n organization may establish ‘injury in fact if it can demonstrate: (1)

frustration of its organizational mission; and (2) diversion of its resources to

combat the particular conduct in question.’” Am. Diabetes Ass'n v. U.S. Dep't of the

Army, 938 F.3d 1147, 1154 (9th Cir. 2019) (quoting Smith v. Pac. Props. & Dev.

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

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

evidence” that the proposed actions “required, and will continue to require, a

diversion of resources, independent of expenses for this litigation, from their other


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

2018). Petitioners accordingly lack independent standing.

      Petitioners have similarly failed to establish associational standing, which

requires that one of their “members would otherwise have standing to sue in their

own right, the interests at stake are germane to the organization's purpose, and

neither the claim asserted nor the relief requested requires the participation of

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

Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). Although Petitioners’ purpose is

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

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

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

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

immediate, not conjectural or hypothetical.’” Scott v. Pasadena Unified Sch. Dist.,

306 F.3d 646, 656 (9th Cir. 2002) (quoting City of L.A. v. Lyons, 461 U.S. 95, 102

(1983)). The Supreme Court has “repeatedly reiterated that ‘threatened injury

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

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

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

demonstrate no such certain, impending harm.

PETITION DENIED.


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