David Radich v. Robert A. Guerrero

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 9, 2018
• Docket: 16-16065
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 09 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID J. RADICH; LI-RONG RADICH, No. 16-16065

Plaintiffs-Appellees, DC No. CV 14-20 RVM

v. MEMORANDUM* ROBERT A. GUERRERO, in his official capacity as Commissioner of the Department of Public Safety of the CNMI; LARRISA LARSON,

Defendants-Appellees,

v.

TANAPAG MIDDLE SCHOOL PARENT TEACHER STUDENT ASSOCIATION, Proposed Intervenor,

Movant-Appellant.

Appeal from the District of the Northern Mariana Islands Ramona V. Manglona, Chief District Judge, Presiding

Argued and Submitted June 15, 2018 Honolulu, Hawaii

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.

Tanapag Middle School Parent Teacher Association (“PTSA”) appeals from

the district court’s denial of its motion to intervene for purposes of appeal after the

court granted summary judgment for Li-Rong and David Radich in their action

against the Commonwealth of the Northern Mariana Islands (“CNMI”). The

district court agreed with the Radiches that certain provisions of the CNMI’s

Weapons Control Act violated the Second and Fourteenth Amendments. The

CNMI did not appeal, but the PTSA moved to intervene to appeal and to contend

on appeal that the Act was valid. The district court denied the motion. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

“Post-judgment intervention for purposes of appeal may be appropriate if

the intervenors act promptly after judgment and meet traditional standing criteria.”

Legal Aid Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319, 1328 (9th Cir. 1979)

(internal citations omitted); see also United Airlines, Inc. v. McDonald, 432 U.S.

385, 395 (1977). Traditional standing criteria require that PTSA has “(1) suffered

an injury in fact, (2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). On appeal, a plaintiff has

standing if its “interests have been adversely affected by the [district court]

2 judgment” and this court’s reversal would redress that injury. Organized Vill. of

Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 963–64 (9th Cir. 2015) (en banc)

(citation and quotation marks omitted). A plaintiff “cannot manufacture standing

merely by inflicting harm on [itself] based on [its] fears of hypothetical future

harm that is not certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S.

398, 416 (2013).

The PTSA claims that the district court’s order striking down the Act will

require the PTSA to install metal detectors in schools or hire security guards to

protect against an increased danger of gun violence. Yet the PTSA, a voluntary

association, has not shown that it has a legal duty to take such protective measures

or that the district court’s order requires the PTSA “to do or refrain from doing

anything.” Hollingsworth v. Perry, 570 U.S. 693, 705 (2013); see also Valle del

Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (“An organization has

direct standing to sue [when] it show[s] a drain on its resources from both a

diversion of its resources and frustration of its mission.”) (internal quotation marks

and citations omitted) (alterations in original). Rather, the PTSA’s claimed injury

is no different than the generalized injury that may be suffered by other CNMI

residents as a result of the district court’s order. See Lujan v. Defs. of Wildlife, 504

3 U.S. 555, 560 n.1 (1992) (explaining that an injury must be “particularized,” such

that plaintiff was affected “in a personal and individual way”).

The PTSA also claims that because teachers have a duty to protect students

and some PTSA members are teachers, the PTSA has organizational standing.

Even if the district court’s order affects any duty to protect students that the

teachers owe in their capacity as teachers, such a duty would not be a basis for

PTSA organizational standing. See Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (noting that to provide associational

standing, affected interests of members must be “germane to the organization’s

purpose”). Ultimately, “Article III requires more than a desire to vindicate value

interests.” Diamond v. Charles, 476 U.S. 54, 66 (1986). Because the PTSA has

not made such a showing, it lacks standing. Therefore, the district court did not err

in denying the PTSA’s motion to intervene.1

• ! •

The judgment of the district court is AFFIRMED.

1 Because we conclude that the PTSA lacks standing, we decline to address the Radiches’ argument that the appeal is moot, as well as the PTSA’s challenges on the merits to the district court’s summary judgment order. 4