NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JANE SULLIVAN; P. POES, 1-75; No. 23-35313 Individually and on behalf of others similarly situated, D.C. No. 2:22-cv-00204-RAJ

Plaintiffs-Appellees, MEMORANDUM* v.

UNIVERSITY OF WASHINGTON, a Washington public corporation; ELIZA SAUNDERS, Director of Public Records and Open Public Meetings, University of Washington,

Defendants-Appellees,

v.

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.,

Intervenor-Defendant- Appellant.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted November 13, 2023 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: McKEOWN and GOULD, Circuit Judges, and BAKER,** International Trade Judge. Partial Concurrence and Partial Dissent by Judge BAKER.

People for the Ethical Treatment of Animals, Inc. (PETA) appeals the grant

of a second preliminary injunction1 enjoining the University of Washington (UW)

et al. from disclosing the personal identifying information of plaintiffs and putative

class members who are current, former, or alternate members of UW’s Institutional

Animal Care and Use Committee (IACUC). We conclude that named plaintiffs Jane

Sullivan and P. Poe 1 lack Article III standing. We vacate the injunction and remand

to the district court with instructions to dismiss.

Article III standing requires: (1) an injury-in-fact; (2) that is “fairly traceable

to the challenged action of the defendant”; and (3) it must be “likely” that the injury

is redressable by a favorable decision. Fellowship of Christian Athletes v. San Jose

Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 680 (9th Cir. 2023) (quoting Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). In evaluating standing, we may

“review evidence beyond the complaint” where the defendant makes a “factual

attack” on jurisdiction by disputing the “truth of the allegations.” Am. Diabetes

** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. 1 This Court reversed and remanded the district court’s first grant of a preliminary injunction. Sullivan v. Univ. of Wash., 60 F.4th 574 (9th Cir. 2023).

2 Ass’n v. U.S. Dep’t of the Army, 938 F.3d 1147, 1151 (9th Cir. 2019); Safe Air for

Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). For their claims to be

justiciable, either Sullivan or P. Poe 1 must demonstrate Article III standing because

they are the only named plaintiffs. Horne v. Flores, 557 U.S. 433, 445 (2009)

(holding that only one party needs standing for a case to be justiciable); Martinez v.

Newsom, 46 F.4th 965, 970 (9th Cir. 2022) (plaintiffs generally cannot base standing

on injuries suffered by proposed class members). We conclude that Sullivan and P.

Poe 1 lack standing because neither can demonstrate redressability.

1. P. Poe 1 cannot demonstrate redressability because their information has

been disclosed. P. Poe 1’s declaration, dated February 22, 2022, states, “I have been

a member of the IACUC at UW for several years. I also have served in the past on

other IACUC committees.” But according to another declaration, UW, on March 4,

2021, “provided the names of almost all current members of the [IACUC] to PETA

in response to PETA’s public records request.” “[T]his production also included the

email addresses of almost all current members of the UW IACUC.” At oral

argument, counsel for plaintiffs could not cite any part of the record to support a

finding that P. Poe 1’s information has not been disclosed, underscoring the fact that

P. Poe 1 did not, in response to PETA’s factual attack on jurisdiction, “furnish

affidavits or other evidence necessary to satisfy [their] burden of establishing subject

matter jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039.

3 2. Sullivan cannot demonstrate redressability because she cannot represent the

IACUC’s institutional interests in her role as the chair of the IACUC. Because her

identity is publicly known, Sullivan can only demonstrate redressability if the injury-

in-fact is framed as a negative effect on the IACUC’s functioning.2 But under

Washington state law, only the Attorney General can sue on behalf of the IACUC,

which is part of UW. RCW 28B.10.510, 28B.20.130(1). Although the IACUC was

created as a requirement of a federal statute, its members are appointed by UW’s

chief executive officer. 7 U.S.C. § 2143(b)(1). Moreover, it is significant that

Sullivan and UW are adverse parties (despite being aligned as appellees for purposes

of this appeal) because allowing Sullivan to represent UW’s institutional interests

against PETA would place UW on both sides of the litigation. This situation would

not be a proper circumstance for the litigation to proceed and resolve whether UW

must disclose plaintiffs’ personal information under the Washington State Public

Records Act.

2 Sullivan cannot derive a personal injury from an institutional injury to the IACUC because, as we have previously held, the IACUC members’ work is “not intended to enhance effective advocacy of [the IACUC members’] views or to pursue their lawful private interests,” but is part of UW’s “public function.” Sullivan, 60 F.4th at 580–81 (internal quotation marks omitted).

4 Because both Sullivan and P. Poe 1 lacked standing “from the outset” of the

litigation,3 the class action must be dismissed without allowing for the substitution

of another class representative. Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1023 & n.6 (9th Cir. 2003). We do not remand with instructions for the district

court to consider whether to dismiss Sullivan’s remaining claim under RCW

42.56.540 because, as the partial concurrence acknowledges, “no live federal claims

remain in the case.”

VACATED and REMANDED.

3 Plaintiffs’ initial complaint was filed on February 22, 2022, which is after UW’s prior disclosures of P. Poe 1’s personal information on March 4, 2021.

5 Sullivan v. Univ. of Wash., No. 23-35313 FILED DEC 13 2023 BAKER, Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I join the disposition’s discussion of P. Poe 1’s lack of standing to bring fed-

eral informational-privacy 1 and Washington state constitutional claims, which were

the basis for the district court’s preliminary injunction. As to Sullivan’s standing for

these claims, the disposition holds—and I agree—that her alleged injury of infor-

mation disclosure is not redressable because that disclosure has already occurred.

The majority also implies, however, that Sullivan’s alleged injury to her abil-

ity to perform her function as committee chair (the basis for her state law claim under

RCW 42.56.540) might—if state law were no impediment—also confer standing for

purposes of her federal informational-privacy and Washington constitutional claims.

Even if mixing and matching an alleged injury with different legal theories satisfies

constitutional standing on these facts,2 it creates a prudential standing problem.

1 This circuit has acknowledged a substantive due process right to informational pri- vacy. See In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999) (explaining that the Supreme Court’s precedents recognize an “individual interest in avoiding disclosure of personal matters”) (quoting Doe v. Att’y Gen., 941 F.2d 780, 795 (9th Cir. 1991) (itself quoting Whalen v. Roe, 429 U.S. 589, 599–600 (1977))). 2 Because both of Sullivan’s alleged injuries—disclosure of her personal information and impairment of her ability to perform her duties as committee chair—are tracea- ble to the same challenged conduct (the threatened disclosure of committee member personal information), either injury appears to satisfy the causation element of the Supreme Court’s tripartite standing test (injury-in fact, causation, and redressabil- ity). Cf. Johnson v. U.S. Off. of Pers. Mgmt., 783 F.3d 655, 661 (7th Cir. 2015) (“The fact that a plaintiff has suffered an injury that is traceable to one kind of conduct does not grant that plaintiff standing to challenge other, even related, conduct; Under circuit precedent, prudential standing “denies a right of review if the

plaintiff’s interests are marginally related to or inconsistent with the purposes im-

plicit in the relevant constitutional provision.” City of Los Angeles v. County of Kern,

581 F.3d 841, 847 (9th Cir. 2009) (cleaned up). In my view, Sullivan’s interest in

performing her duties as committee chair is not even marginally related to the sub-

stantive due process right of informational privacy recognized in Crawford and sim-

ilar informational-privacy rights that she asserts under the Washington constitution.

Sullivan therefore lacks prudential standing to prosecute her federal informational-

privacy and state constitutional claims insofar as her alleged injury is impairment of

her committee chair role.3 Given that she lacks prudential standing, I would avoid

deciding the difficult question whether that injury confers constitutional standing for

‘standing is not dispensed in gross.’ ”) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)). 3 I acknowledge that prudential standing is not jurisdictional, and we have the dis- cretion to find that Intervenor-Defendant-Appellant PETA waived that defense by not raising it. See Kern, 581 F.3d at 845–46. Nevertheless, in Kern we raised pru- dential standing sua sponte because doing so “could obviate the need to rule on the merits” of a constitutional question. Id. at 846. We were “guided by the traditional principle that a federal court should not decide federal constitutional questions where a dispositive nonconstitutional ground is available. This rule against unnecessary constitutional adjudication applies even when neither the trial court nor the parties have considered the nonconstitutional basis for decision.” Id. (quoting Correa v. Clayton, 563 F.2d 396, 400 (9th Cir. 1977)). Similarly here, resolving the question of Sullivan’s standing on prudential grounds would allow us to avoid the issue of her constitutional standing based on the alleged injury to her ability to perform as committee chair.

2 those claims.

As both P. Poe 1 and Sullivan lack standing to prosecute their federal infor-

mational-privacy claims and Washington constitutional claims, and as we have al-

ready rejected their First Amendment claim on the merits, see Sullivan v. Univ. of

Wash., 60 F.4th 574 (9th Cir. 2023), no live federal claims remain in the case. I

would therefore vacate the injunction and remand with instructions for the district

court to consider whether to dismiss Sullivan’s remaining claim under RCW

42.56.540. See 28 U.S.C. § 1367(c)(1), (3) (authorizing a district court to decline to

exercise supplemental jurisdiction over a state law claim if “the claim raises a novel

or complex issue of State law” or if the court “has dismissed all claims over which

it has original jurisdiction,” respectively). 4

4 I understand the majority’s dismissal of Sullivan’s RCW 42.56.540 claim is based on my colleagues’ determination that the alleged injury to her committee chair func- tion does not confer constitutional standing for that claim or her federal informa- tional-privacy and state constitutional claims. Insofar as the majority instead relies on 28 U.S.C. § 1367(c)(3) to dismiss her RCW 42.56.540 claim, such reliance would be misplaced because the district court had original jurisdiction over Plaintiffs’ First Amendment claim that the prior panel rejected on the merits. See Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001) (“This require- ment that the supplemental state-law claims be dismissed where the district court had no underlying original jurisdiction must be distinguished from the district court's discretionary authority to retain jurisdiction over state-law claims where it has dis- missed on the merits federal claims over which it did have original jurisdiction.”). Because the district court had original jurisdiction over a federal claim that is no longer live, it’s the district court’s discretion—not ours—to determine whether Sul- livan’s RCW 42.56.540 claim should be heard.

3