Sonya Renee v. Arne Duncan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SONYA RENEE; CANDICE JOHNSON, a 

minor, by Sonya Renee, her

guardian ad litem; MARIBEL

HEREDIA; JOSE ALDANA, a minor,

by Maribel Heredia, his guardian

ad litem; B. DOE, a minor, by N.

Doe, her guardian ad litem;

MARIEL RUBIO; DANIELLE RUBIO, a

minor, by Mariel Rubio, her

guardian ad litem; STEPHANIE

RUBIO, a minor, by Mariel Rubio,

her guardian ad litem; GUADALUPE

GONZALEZ; DAISY GONZALEZ, a

minor, by Guadalupe Gonzalez, No. 08-16661

her guardian ad litem; JAZMINE D.C. No.

JOHNSON, a minor, by Deanna

Bolden, her guardian ad litem;

 3:07-CV-04299-PJH

ORDER AND

ADRIANA RAMIREZ, a minor, by

OPINION

Arcelia Trinidad Ramirez, her

guardian ad litem; JANE DOE, a

minor, by John Doe, her guardian

ad litem; CALIFORNIANS FOR JUSTICE

EDUCATION FUND; CALIFORNIA

ASSOCIATION OF COMMUNITY

ORGANIZATIONS FOR REFORM NOW,

Plaintiffs-Appellants,

v.

ARNE DUNCAN, in his official

capacity; UNITED STATES

DEPARTMENT OF EDUCATION,

Defendants-Appellees.



5007

5008 RENEE v. DUNCAN

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted

June 23, 2011—Pasadena, California

Filed May 10, 2012

Before: Dorothy W. Nelson, William A. Fletcher and

Richard C. Tallman, Circuit Judges.

Opinion by Judge William A. Fletcher;

Partial Concurrence and Partial Dissent by Judge Tallman

RENEE v. DUNCAN 5011

COUNSEL

John T. Affeldt and Tara Kini, Public Advocates, Inc., San

Francisco, California, for the plaintiffs-appellants.

Alisa B. Klein, United States Department of Justice, Civil

Division, Washington, D.C., for the defendants-appellees.

Lisa A. Davis, Wilson Sonsini Goodrich & Rosati P.C., Palo

Alto, California, for The National Coalition of ESEA Title I

Parents, Inc., et al., as amicus curiae.

Donald B. Verilli, Jr., Jenner & Block LLP, Washington,

D.C., for Teach for America, et al., as amicus curiae.

ORDER

This court’s opinion filed September 27, 2010, and reported

at 623 F.3d 787, is supplemented with the attached.

5012 RENEE v. DUNCAN

The petition for rehearing, filed on October 12, 2010, is

GRANTED.

OPINION

W. FLETCHER, Circuit Judge:

Appellants Sonya Renee, et al., appeal the district court’s

order granting summary judgment in favor of Appellees U.S.

Department of Education and Arne Duncan, Secretary of Educa-

tion1 (collectively, “the Secretary”). Appellants challenge a

federal regulation permitting teachers who are participating in

alternative-route teacher training programs, but who have not

yet obtained full State certification, to be characterized as

“highly qualified teachers” under the No Child Left Behind

Act (“NCLB”). The district court granted summary judgment

to the Secretary.

This case has a complicated history. We initially vacated

the judgment of the district court for lack of Article III stand-

ing in a published opinion, with one panel member dissenting.

Renee v. Duncan, 573 F.3d 903 (9th Cir. 2009) (Renee I). We

subsequently granted a petition for panel rehearing and with-

drew our prior opinion. We reversed the district court on the

merits in a new published opinion, now with a different panel

member dissenting. Renee v. Duncan, 623 F.3d 787 (9th Cir.

2010) (Renee II). After issuance of our opinion in Renee II,

Congress changed the statutory provision upon which we had

based that opinion. The new statutory provision, Section 163

of the Continuing Appropriations and Surface Transportation

Extensions Act of 2011, became effective on December 22,

2010. Continuing Appropriations and Surface Transportation

Extensions Act, Pub. L. No. 111-322, § 1, 124 Stat. 3518,

1

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary

Arne Duncan is automatically substituted for former Secretary of Educa-

tion Margaret Spellings as Appellee in this case.

RENEE v. DUNCAN 5013

3521 (2010) (hereinafter “Section 163”). Section 163 expires

at the end of the 2012-2013 academic year. Absent further

congressional action, the statutory provision upon which we

based our opinion in Renee II will again be in effect.

We conclude several things in this opinion. First, we con-

clude, as we concluded in Renee II, that before the passage of

Section 163 the challenged regulation violated NCLB. Sec-

ond, we conclude that after the passage of Section 163 and so

long as it is in effect, the challenged regulation is consistent

with NCLB. Third, we conclude that despite the passage of

Section 163, this appeal is not moot. Fourth, we conclude that

before the passage of Section 163, NCLB required the reports

to Congress concerning “highly qualified teachers,” as that

term was then defined in the statute. However, Appellants are

not entitled to judicial enforcement of that reporting require-

ment. Finally, we conclude that Appellants are not entitled to

attorney’s fees based on their success in Renee II.

We therefore affirm the judgment of the district court.

I. Background

A. No Child Left Behind Act and the Challenged

Regulation

The No Child Left Behind Act was enacted in 2002. Its

overarching goal is “to ensure that all children have a fair,

equal, and significant opportunity to obtain a high-quality

education and reach, at a minimum, proficiency on challeng-

ing State academic achievement standards and state academic

assessments.” 20 U.S.C. § 6301. NCLB seeks to close the

“achievement gap between high- and low-performing chil-

dren, especially the achievement gaps between minority and

nonminority students, and between disadvantaged children

and their more advantaged peers.” Id. § 6301(3).

NCLB provides funds to states and schools under several

of its provisions, one of which is central to this appeal. Spe-

5014 RENEE v. DUNCAN

cifically, Title I funds are used to supplement the educational

needs of disadvantaged students. Id. §§ 6301 et seq. The Sec-

retary has the authority to withhold funds or to take other

enforcement action if a state fails to comply substantially with

NCLB’s requirements. Id. § 1234c (“Whenever the Secretary

has reason to believe that any recipient of funds under any

applicable program is failing to comply substantially with any

requirement of law applicable to such funds, the Secretary

may . . . withhold further payments under that program as

authorized by section 1234d of this title[.]”).

A premise of NCLB is that good teachers — defined by

Congress as “highly qualified” teachers — are crucial to edu-

cational success. NCLB requires that by the end of the 2005-

06 academic year only “highly qualified” teachers should

instruct core academic classes in school districts receiving

Title I funding (the “100% requirement”). Id. § 6319(a)(2).

“Core academic subjects” are “English, reading or language

arts, mathematics, science, foreign languages, civics and gov-

ernment, economics, arts, history, and geography.” Id.

§ 7801(11); 34 C.F.R. § 200.55(c).

NCLB requires that states and school districts develop and

submit plans to meet the mandates of the statute. 20 U.S.C.

§§ 6311(a)(1), 6311(b)(8)(C), 6319(a)(2) (state plans); id.

§§ 6312(b)(1)(N), 6312(c)(1)(I), 6319(a)(3) (district plans).

Each state is responsible for ensuring compliance by its local

school districts. Id. §§ 1232c, 7844(a). To receive funds under

Title I of the statute, NCLB requires states to identify steps

they will take to ensure that “poor and minority children are

not taught at higher rates than other children by inexperi-

enced, unqualified, or out-of-field teachers.” Id.

§ 6311(b)(8)(C).

NCLB also requires that states and school districts report

annually on their progress toward meeting the 100% require-

ment. Id. §§ 6311(h)(1)(C)(viii), 6311(h)(2), 6319(b)(1).

States must provide this information to the Secretary, id.

RENEE v. DUNCAN 5015

§§ 6311(h)(4)(G), 6319(b)(1)(B), who must report nationwide

statistics on “highly qualified teachers” to Congress, id.

§ 6311(h)(4)-(5). Schools receiving Title I funds must inform

a parent when his or her child is taught for four or more

weeks by a teacher who is not “highly qualified.” Id.

§ 6311(h)(6)(B)(ii).

If a “State educational agency” fails to submit to the Secre-

tary a “plan” satisfying the requirements of NCLB, id.

§ 6311(a)(1), the Secretary may withhold federal funds until

the state has done so. Id. § 6311(g)(2) (“If a state fails to meet

any of the requirements of this section, other than the require-

ments described in paragraph (1) [not at issue here], then the

Secretary may withhold funds for State administration under

this part until the Secretary determines that the State has ful-

filled those requirements.”); id. § 6311(b)(8)(C) (“Each State

plan shall describe . . . the specific steps the State educational

agency will take to ensure that both schoolwide programs and

targeted assistance schools provide instruction by highly qual-

ified instructional staff as required by sections 6314(b)(1)(C)

and 6315(c)(1)(E).”).

NCLB contains a lengthy definition of “highly qualified

teacher.” Of central concern in this litigation, before the pas-

sage of Section 163, “highly qualified” meant that:

the teacher has obtained full State certification as a

teacher (including certification obtained through

alternative routes to certification) or passed the State

teacher licensing examination, and holds a license to

teach in such State, except that when used with

respect to any teacher teaching in a public charter

school, the term means that the teacher meets the

requirements set forth in the State’s public charter

school law[.]

20 U.S.C. § 7801(23)(A)(i) (emphasis added).

5016 RENEE v. DUNCAN

On December 2, 2002, the Secretary promulgated regula-

tions providing a more detailed definition of the statutory

term “highly qualified teacher.” 34 C.F.R. § 200.56. Section

200.56 provides, in pertinent part:

[A] “highly qualified teacher” . . . meets the require-

ments in paragraph (a) [and other paragraphs not rel-

evant to this appeal].

(a) In general.

(1) Except as provided in paragraph

(a)(3) of this section [covering charter

schools], a [“highly qualified”] teacher

. . . must —

(i) Have obtained full State certifica-

tion as a teacher, which may include

certification obtained through alterna-

tive routes to certification; or

(ii)(A) Have passed the State teacher

licensing examination; and (B) Hold a

license to teach in the State.

(2) A teacher meets the requirement in

paragraph (a)(1) of this section if the

teacher —

(i) Has fulfilled the State’s certifica-

tion and licensure requirements appli-

cable to the years of experience the

teacher possesses; or

(ii) Is participating in an alternative

route to certification program under

which —

RENEE v. DUNCAN 5017

(A) The teacher —

(1) Receives high-quality profes-

sional development . . . ;

(2) Participates in a program of

intensive supervision . . . ;

(3) Assumes functions as a

teacher only for a specified

period of time not to exceed three

years; and

(4) Demonstrates satisfactory

progress toward full certification

as prescribed by the State[.]

Id. (emphasis added).

Neither NCLB nor the Secretary’s regulation defines “alter-

native routes to certification.” The traditional path to a teach-

ing credential generally involves obtaining a degree and

taking education courses. The term “alternative routes to cer-

tification” generally refers to non-traditional training pro-

grams that are typically designed for people who already hold

at least a bachelor’s degree in a field other than education.

These alternative programs are often designed to address

teacher shortages in specific subjects or geographic areas. See,

e.g., Cal. Educ. Code § 44382 (“Alternative certification pro-

grams shall address geographic and subject matter shortage

areas, and shall be targeted toward people with work experi-

ence and others who already have a bachelor’s degree in the

field in which they plan to teach.”).

Some aspects of the traditional route to teacher certification

— such as formal course work in education philosophy or

pedagogy — are typically shortened, or sometimes waived

altogether, in alternative-route programs. Several well-known

5018 RENEE v. DUNCAN

and successful alternative-route programs, such as Teach for

America and Troops to Teachers, provide some training to

participants before they begin teaching in the classroom.

Teach for America participants, for example, receive training

during the summer before they enter the classroom. Support

and training typically continue for the length of an alternative-

route program. After successful completion of an alternative-

route program, a teacher receives a credential similar or iden-

tical to a credential obtained after successful completion of a

traditional teacher-training program.

In December 2010, after the issuance of Renee II, our sec-

ond panel opinion in this case, Congress amended the Contin-

uing Appropriations Act by adding Section 163. Section 163

provides:

(a) A “highly qualified teacher” includes a teacher

who meets the requirements in 34 C.F.R.

200.56(a)(2)(ii) . . . .

(b) This provision is effective on the date of enact-

ment of this provision through the end of the 2012-

13 academic year.

§ 1, 124 Stat. at 3521. Section 163 thus expands the statutory

definition of “highly qualified teacher.” After the passage of

Section 163, and for so long as Section 163 remains in effect,

an alternative-route teacher who “demonstrates satisfactory

progress toward full certification” is a “highly qualified teach-

er” within the meaning of NCLB.

B. California Law

Neither NCLB nor the Secretary’s regulation defines the

term “full State certification” contained in NCLB. The parties

agree that NCLB gives the states considerable flexibility in

establishing credentialing systems under which a state teach-

ing permit or credential may constitute “full State certifica-

RENEE v. DUNCAN 5019

tion” within the meaning of NCLB. The focus of this

litigation is public school teachers in California. California

law uses the terms “waiver,” “permit,” and “credential” to

indicate various levels of teachers, and of certification, under

state law. California has several levels of waivers, permits,

and credentials, arranged in a rough hierarchy.

First, beginning at the bottom of the hierarchy, there are

waivers. Individuals can teach pursuant to a waiver of the

requirement for either a permit or credential. The Commission

on Teacher Credentialing has authority to grant waivers in

specified situations. Cal. Educ. Code § 44225(m).

Second, there are emergency permits, including an Emer-

gency 30-day Substitute Teaching Permit, Cal. Code Regs. tit.

5, § 80025, and an Emergency Career Substitute Teaching

Permit, id. § 80025.1. Emergency permits are valid for no

more than one year and are restricted to the district that

requested the issuance of the permit. Id. § 80023.1. Teachers

can renew emergency permits, but renewal ordinarily

requires, among other things, demonstrated progress toward a

non-emergency credential. Id. § 80026.6(a)(6).

Third, there are Short-Term Staff Permits and Provisional

Internship Permits. Unlike emergency permits, which largely

cover substitute teachers, these permits allow a teacher to

serve as a teacher of record in an assigned classroom. Id.

§§ 80021(e), 80021.1(e).

Fourth, there is an “intern credential.” This is the first certi-

fication in the hierarchy that California characterizes as a

“credential” rather than a “permit.” An intern credential

holder is participating in, but has not yet completed, an

alternative-route teacher training program. See Cal. Educ.

Code §§ 44830.3, 44259(b)(3)(C). Like Short-Term and Pro-

visional Internship permits, an intern credential allows the

holder to serve as a teacher of record. Id. §§ 44325(a), 44326,

44830.3(a). California requires internship programs to provide

5020 RENEE v. DUNCAN

“preservice training . . . tailored to the grade level or class to

be taught . . . .” Id. § 44830.3(b)(3).

Fifth, there is a “preliminary credential.” A preliminary cre-

dential may be obtained through either a traditional or an

alternative-route teacher training program. Id. § 44259(b)(3).

A preliminary credential is generally valid for five years. Id.

§ 44251(a)(2), (b)(2). The minimum requirements for a pre-

liminary credential include a bachelor’s degree, a passing

score on the state’s “basic skills examination,” satisfactory

completion of an accredited “program of professional prepa-

ration” (including traditional and alternative-route programs),

and a passing score on one or more subject matter examina-

tions or completion of an approved subject matter program.

Id. § 44259(b).

Finally, at the top of the hierarchy, there is a “clear creden-

tial.” See id. § 44259(c). To obtain a clear credential, an indi-

vidual must have held a preliminary credential, have

completed a “program of beginning teacher induction,” and

have gained experience in specified areas. Id. § 44259(c)(2),

(4). Clear credentials are generally valid for life. See id.

§ 44251(a)(3), (b)(3).

In 2004, after the promulgation of the federal regulation

challenged in this case, California promulgated regulations

that mimicked the federal regulation. The California regula-

tion applicable to middle and secondary schools provides that

a teacher “meets NCLB requirements” if the teacher “[i]s cur-

rently enrolled in an approved intern program for less than

three years or has a full credential.” Cal. Code Regs. tit. 5,

§ 6110(2) (emphasis added). The regulation applicable to ele-

mentary schools provides the same thing, but omits the word

“full” before “credential.” Id. § 6101(2) (“[i]s currently

enrolled in an approved intern program for less than three

years or has a credential”) (emphasis added). By their use of

the word “or,” these regulations indicate that an intern teacher

does not have a “(full) credential.” That is, the California reg-

RENEE v. DUNCAN 5021

ulations provide the qualification criterion in the alternative:

A teacher “meets NCLB requirements” if the teacher is “en-

rolled in an approved intern program” or if the teacher “has

a (full) credential.”

As described in greater detail above, the challenged federal

regulation provides that a teacher may be considered fully

certified, and thus “highly qualified,” within the meaning of

NCLB, if the teacher “[i]s participating in an alternative route

to certification program” and “[d]emonstrates satisfactory

progress toward full certification,” or if the teacher “[h]as ful-

filled the State’s certification and licensure requirements

applicable to the years of experience the teacher possesses.”

34 C.F.R. § 200.56(a)(2). The California regulations thus

mimic the federal regulation, providing that a teacher “meets

NCLB requirements” if that teacher is “currently enrolled in

an approved intern program for less than three years” or “has

a (full) credential.” Cal. Code Regs. tit. 5, §§ 6110(2),

6101(2).

Before the passage of Section 163, Appellants did not

object to characterizing an alternative-route teacher who had

already obtained “full State certification” as a “highly quali-

fied teacher.” See 20 U.S.C. § 7801(23)(A)(i) (“highly quali-

fied teacher” includes an alternative-route teacher who “has

obtained full State certification as a teacher”) (emphasis

added); 34 C.F.R. § 200.56(a)(1)(i) (“highly qualified teach-

ers” include alternative-route teachers who “have obtained

full State certification as a teacher”) (emphasis added). How-

ever, Appellants did object to characterizing as a “highly

qualified teacher” an alternative-route teacher who had not yet

obtained full state certification, but who merely

“[d]emonstrates satisfactory progress toward full certifica-

tion[.]” 34 C.F.R. § 200.56(a)(2)(ii)(A)(4) (emphasis added).

Before the passage of Section 163, Appellants contended that

such teachers were not “highly qualified” within the meaning

of § 7801(23). Appellants contended that the challenged fed-

eral regulation, upon which the 2004 California regulations

5022 RENEE v. DUNCAN

are based, allowed a disproportionate number of intern teach-

ers to teach in minority and low-income schools in California,

in violation of NCLB. Specifically, they contended that intern

teachers in California did not have “full State certification”

and were thus not “highly qualified teachers” within the

meaning of NCLB. They contended that if the

§ 200.56(a)(2)(ii) were declared invalid, California would not

be allowed to treat intern teachers as highly qualified teachers

for purposes of NCLB. Appellants contended that in that

event California would likely take steps to ensure that fewer

intern teachers, and more teachers with “preliminary” and

“clear” credentials, teach in minority and low-income public

schools in California.

C. Proceedings in the District Court

Appellants brought suit in federal district court, alleging

that § 200.56(a)(2)(ii) was invalid because it characterized an

alternative-route teacher who is still in the process of obtain-

ing “full State certification” as a “highly qualified teacher.”

Both parties moved for summary judgment on the merits. The

district court granted summary judgment to the Secretary,

upholding § 200.56(a)(2)(ii). Appellants timely appealed. We

have jurisdiction pursuant to 28 U.S.C. § 1291.

II. Standard of Review

We review de novo questions of justiciability under Article

III. Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003). We

also review de novo a district court’s grant of summary judg-

ment. Ctr. for Biological Diversity v. U.S. Fish & Wildlife

Serv., 450 F.3d 930, 941 n.17 (9th Cir. 2006). “Although we

give deference to an agency’s construction of a statutory pro-

vision it is charged with administering, we must reject those

constructions that are contrary to clear congressional intent or

that frustrate the policy Congress sought to implement.” Bio-

diversity Legal Found. v. Badgley, 309 F.3d 1166, 1175 (9th

Cir. 2002) (internal citation omitted).

RENEE v. DUNCAN 5023

III. Discussion

A. Before Passage of Section 163

In this section of the opinion, we discuss Appellant’s chal-

lenge to 34 C.F.R. § 200.56(a)(2)(ii) before the passage of

Section 163. Before its passage, we concluded that Appellants

had Article III standing and that § 200.56(a)(2)(ii) was incon-

sistent with the plain language of NCLB. In this section, we

recapitulate our discussion and holding in Renee II.

1. Order of Discussion

In a case where Article III justiciability is in question, we

normally begin our discussion with that question because

Article III justiciability is a prerequisite to reaching the merits

of the dispute. But we reverse the usual order of discussion

because we think our discussion of the merits will help the

reader understand our discussion of Article III standing.

2. The Merits

The challenged federal regulation seeks to interpret and to

implement NCLB. The regulation was adopted by the respon-

sible federal agency through notice and comment rulemaking.

We therefore applied the analytical framework outlined in

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). The first question is “whether Con-

gress has directly spoken to the precise question at issue. If

the intent of Congress is clear, that is the end of the matter;

for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id. at 842-843;

see also Pac. Nw. Generating Coop. v. Dep’t of Energy, 580

F.3d 792, 806 (9th Cir. 2009). If, however, we determine that

Congress has not clearly spoken on the precise question, the

second question is whether the agency’s interpretation “is

based on a permissible construction of the statute.” Chevron,

467 U.S. at 843. Because the intent of Congress, as expressed

5024 RENEE v. DUNCAN

in NCLB before the passage of Section 163, was clear, we did

not get beyond the first question.

[1] NCLB provides that an alternative-route teacher is

“highly qualified” once he or she has obtained “full State cer-

tification.” Before the passage of Section 163, the statutory

text provided, in pertinent part:

The term “highly qualified” —

(A) when used with respect to any public

elementary school or secondary school

teacher teaching in a State, means that —

(i) the teacher has obtained full State cer-

tification as a teacher (including certifi-

cation obtained through alternative routes

to certification)[.]

20 U.S.C. § 7801(23) (emphasis added). NCLB did not define

“full State certification,” but it made clear — whatever “full

State certification” meant — that such certification must have

been obtained before a teacher could be characterized as

“highly qualified.”

[2] The federal regulation, quoted at length above, begins

by essentially repeating the pre-Section 163 statutory lan-

guage. The regulation provides that a “highly qualified teach-

er” “must . . . have obtained full State certification as a

teacher, which may include certification obtained through

alternative routes to certification.” 34 C.F.R. § 200.56(a)(1)(i)

(emphasis added). It then goes on, however, to provide that an

alternative-route teacher is “highly qualified” even if he or

she has not obtained “full State certification.” It provides that

a teacher “meets the requirements in paragraph (a)(1)” (which

include the requirement that “full State certification” have

already been obtained), if that teacher “[i]s participating in an

alternative route to certification program” and

RENEE v. DUNCAN 5025

“[d]emonstrates satisfactory progress toward full certifica-

tion as prescribed by the State.” Id. § 200.56(a)(2)(ii) (empha-

sis added).

In his pre-Section 163 brief to us, the Secretary pointed out

that the meaning of “full State certification” in NCLB was

ambiguous because it depends to a substantial degree on state

law. We agreed that the meaning of “full State certification”

in NCLB is ambiguous because it substantially depends on

state law. But this ambiguity was irrelevant.

[3] Before the passage of Section 163, the “precise ques-

tion at issue,” Chevron, 467 U.S. at 842, was not the meaning

of “full State certification” as used in NCLB. Rather, the “pre-

cise question at issue” was the difference between the mean-

ing of “has obtained” full State certification in the statute, 20

U.S.C. § 7801(23), and the meaning of “demonstrates satis-

factory progress toward” full State certification in the regula-

tion, 34 C.F.R. § 200.56(a)(2)(ii). The difference between

having obtained something and merely making satisfactory

progress toward obtaining it is patent. The panel majority con-

cluded, before the passage of Section 163, that the Secretary’s

regulation impermissibly expanded the definition of “highly

qualified teacher” contained in 20 U.S.C. § 7801(23) by

including in that definition an alternative-route teacher who

merely “demonstrates satisfactory progress toward” the requi-

site “full State certification.” Renee II, 623 F.3d at 796.

[4] We therefore held, before the passage of Section 163,

that § 200.56(a)(2)(ii) was invalid because it was inconsistent

with the “unambiguously expressed intent of Congress.”

Chevron, 467 U.S. at 843. We emphasized that our holding

was based on the difference between the meaning of “has

obtained” in 20 U.S.C. § 7801(23) and the meaning of “dem-

onstrates satisfactory progress toward” in § 200.56(a)(2)(ii).

3. Article III Standing

The Secretary had not argued in the district court that

Appellants lacked standing under Article III. He made that

5026 RENEE v. DUNCAN

argument for the first time on appeal. Lack of Article III

standing is a non-waivable jurisdictional defect that may be

raised at any time, even on appeal after failing to raise it in

the district court. See Laub v. U.S. Dep’t of Interior, 342 F.3d

1080, 1085 (9th Cir. 2003). We concluded that Appellants had

Article III standing.

“[T]he irreducible constitutional minimum of [Article III]

standing contains three elements.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992); see also DBSI/TRI IV Ltd.

P’ship v. United States, 465 F.3d 1031, 1038 (9th Cir. 2006).

“First, the plaintiff must have suffered an ‘injury in fact’ ”

that is “concrete and particularized” and “actual or immi-

nent.” Lujan, 504 U.S. at 560. “Second, there must be a causal

connection between the injury and the conduct complained

of,” such that the injury is fairly traceable to the action chal-

lenged. Id. “Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.” Id. at 561 (internal quotations omitted). We consid-

ered these three requirements in turn.

a. Injury in Fact

Appellants are California public school students, their par-

ents, and two non-profit organizations, Californians for Jus-

tice (“CFJ”) and California Association of Community

Organizations for Reform Now (“California ACORN”). The

named students, along with student members of the two orga-

nizations, attend California public schools at which significant

numbers of intern credential holders serve as teachers. As a

result, these students are being taught by interns, have been

taught by interns, or are substantially likely to be taught by

interns.

Appellants presented evidence in the district court that a

disproportionate number of interns teach in California public

schools that serve minority and low-income students. For

example, forty-one percent of interns in California teach in

RENEE v. DUNCAN 5027

the twenty-five percent of schools with the highest concentra-

tions of minority students. In contrast, two percent of interns

in California teach in the ten percent of schools with the low-

est concentration of minority students. Interns are similarly

concentrated in schools serving low-income communities,

with sixty-two percent of interns teaching in the poorest half

of California’s schools. This disproportionate distribution of

interns, Appellants contended, results in a poorer quality edu-

cation than Appellants would otherwise have received.

We concluded that Appellants established injury in fact. In

adopting NCLB, Congress decided, before the passage of Sec-

tion 163, that teachers with “full State certification” were, in

the aggregate, better teachers than those without such certifi-

cation. We recognized that it is debatable whether Congress

was correct in deciding that teachers with “full State certifica-

tion” are better than teachers without such certification. This

is particularly debatable if intern teachers enrolled in pro-

grams such as Teach for America do not have “full State cer-

tification.” But that was not for us to decide. We were bound

to accept Congress’ pre-Section 163 determination that stu-

dents taught by a disproportionate number of teachers without

“full State certification” had been injured in fact.

b. Causation

We also concluded that there was a causal connection

between the promulgation of the federal regulation challenged

in this case and the later promulgation of the California regu-

lations. The parties do not dispute that the California regula-

tions were adopted as a result of the challenged federal

regulation. To the degree that the federal regulation, and the

mimicking California regulations, had the effect of permitting

California and its school districts to ignore the fact that a dis-

proportionate number of interns teach in schools in minority

and low-income areas, there was a causal connection between

the challenged regulation and the injury of which Appellants

complain.

5028 RENEE v. DUNCAN

c. Redressability

Finally, we concluded that Appellants’ injury was likely to

be redressed by invalidation of the federal regulation. “Plain-

tiffs need not demonstrate that there is a ‘guarantee’ that their

injuries will be redressed by a favorable decision.” Graham

v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th

Cir. 1998). The plaintiffs’ burden is “relatively modest.” Ben-

nett v. Spear, 520 U.S. 154, 171 (1997). Plaintiffs need only

show that there would be a “change in a legal status,” and that

a “practical consequence of that change would amount to a

significant increase in the likelihood that the plaintiff would

obtain relief that directly redresses the injury suffered.” Utah

v. Evans, 536 U.S. 452, 464 (2002). If an agency has misinter-

preted the law, there is Article III standing “even though the

agency . . . might later, in the exercise of its lawful discretion,

reach the same result for a different reason.” Fed. Election

Comm’n v. Akins, 524 U.S. 11, 25 (1998).

The challenged federal regulation permits a state to treat

intern teachers as “highly qualified” under NCLB even if

those teachers are not fully certified under state law but are

only “demonstrat[ing] satisfactory progress toward full certifi-

cation.” The 2004 California regulations, mimicking the fed-

eral regulation, provide that teachers with “full State

certification” under California law, as well as teachers who

are currently enrolled in an intern program, are “highly quali-

fied” within the meaning of NCLB. But the California regula-

tions do not change the definition of “full State certification”

under California law. Unless intern teachers have “full State

certification” under some California law other than these reg-

ulations, such teachers were not “highly qualified” for pur-

poses of NCLB, before the passage of Section 163, in the

absence of the challenged federal regulation. In other words,

California was out of compliance with NCLB if the federal

regulation was invalid. The “change in legal status” that

would result from the invalidation of the federal regulation

significantly increased the likelihood that California would

RENEE v. DUNCAN 5029

take steps to increase the number of teachers with “prelimi-

nary” and “clear” credentials in minority and low-income

schools in order to comply with NCLB.

The Secretary made two arguments against this conclusion.

First, he argued that intern teachers had “full State certifica-

tion” under California law. The Secretary made the somewhat

surprising argument that because California is not a party to

this suit we should not interpret California law ourselves, but

rather should defer to the Secretary’s interpretation. As the

Secretary surely knew, we routinely interpret California law

in cases in which California is not a party. And while we

defer to the Secretary’s interpretation of federal law under

Chevron, we owe no deference to his interpretation of state

law.

It was reasonably clear that intern teachers did not have

“full State certification” under California law. California’s

Education Code distinguishes between holders of intern cre-

dentials and holders of preliminary and clear credentials in

several ways. For example, § 44300(a)(1)(A) of the Education

Code, which governs the hiring of permit holders, requires

school districts to document recruitment efforts to hire “certif-

icated teachers, including teacher candidates pursuing full

certification through internship, district internship, or other

alternative routes.” (Emphasis added.) That is, while interns

are “certificated teachers,” they are merely “pursuing full cer-

tification.” Cal. Educ. Code § 44300(a)(1)(A); see also id.

§ 44225.7(a) (indicating that interns are not “fully prepared”

teachers); Bakersfield Elementary Teachers Ass’n v. Bakers-

field City Sch. Dist., 145 Cal. App. 4th 1260, 1277 (Cal. Ct.

App. 2006) (referring to credentials other than clear and pre-

liminary as less than “regular”).

The 2004 mimicking California regulations similarly distin-

guish between intern teachers and fully credentialed teachers.

Under the California regulation applicable to middle and sec-

ondary schools, a teacher is deemed to “meet the requirements

5030 RENEE v. DUNCAN

of NCLB” under two circumstances. One is that the teacher

be “currently enrolled in an approved intern program.” The

other is that the teacher have “a full credential.” Cal. Code

Regs. tit. 5, § 6110(2). Thus, as recently as 2004, California

confirmed that intern credential holders are not fully certified

under the current state credentialing system.

Second, the Secretary argued that if the federal regulation

is held invalid, California would almost certainly change its

credentialing laws to provide that the holder of an intern cre-

dential is fully certified under California law. We disagreed.

As just discussed, California’s Education Code indicates that

holders of “preliminary” and “clear” credentials have “full

certification” under state law, but that interns do not. After the

passage of NCLB, California made no attempt to change its

law to provide that teachers with intern credentials are fully

credentialed under California law. Both before and after the

promulgation of the challenged federal regulation, California

law characterized intern teachers as not having full creden-

tials. The Secretary pointed to no evidence indicating that, in

the event the federal regulation were held invalid, California

would change its credentialing law in a manner it had thus far

not seen fit to do. Nor, indeed, has the Secretary attempted to

argue that, in the wake of our opinion in Renee II, California

has changed its credentialing law.

Finally, our dissenting colleague made an argument not

made by the Secretary. He argued that even if the federal reg-

ulation were struck down, and even if intern teachers in Cali-

fornia were not “highly qualified” within the meaning of

NCLB, there is nothing in NCLB that empowers the Secretary

to withhold funds as a means of compelling a state to adopt

a specific system of teacher credentialing. In our view, that

was not the issue. The issue, rather, was whether the Secretary

has the authority to withhold funds when a State fails to take

steps to ensure that students in minority and low-income

schools are not taught disproportionately by teachers without

RENEE v. DUNCAN 5031

“full State certification” as the state defined “full certifica-

tion.”

It is undisputed that NCLB gives the State great flexibility

in deciding which teachers are fully certified under state law,

and that the Secretary cannot compel a State to adopt any spe-

cific credentialing system. That is, a state is free to define

“full certification” in almost any way it chooses. But having

defined full certification under state law, a state is required to

take steps to ensure that fully certified teachers are propor-

tionately represented in the teaching staffs of minority and

low-income schools. It is undisputed that the Secretary has

authority to withhold funds if a state does not take steps to

comply with NCLB. See 20 U.S.C. § 1234c (Secretary may

withhold funds if a recipient “is failing to comply substan-

tially with any requirement of law applicable to such funds”);

id. § 6311(b)(8)(C), (g)(2) (Secretary may withhold funds if

the State has not submitted a plan describing “specific steps

the State educational agency will take to ensure that both

schoolwide programs and targeted assistance schools provide

instruction by highly qualified instructional staff”).

The Secretary is not required to withhold funds if a state

fails to take steps to comply with NCLB. The statute provides

that he “may” do so rather than that he “must” do so. Id.

§§ 1234c, 6311(g)(2). But the possibility of the Secretary

withholding funds was an obvious incentive for a State to

comply with NCLB. Further, even if the Secretary did not

withhold funds, we were unwilling to assume that California

is a scofflaw state. That is, we were unwilling to assume that

California would refuse to take steps to come into compliance

with NCLB, as it existed prior to the passage of Section 163,

in the absence of such compulsion.

B. After Passage of Section 163

1. Effect of Section 163

[5] Section 163 has temporarily modified NCLB. It pro-

vides that the term “highly qualified teacher” in NCLB

5032 RENEE v. DUNCAN

includes a teacher who meets the requirements of 34 C.F.R.

§ 200.56(a)(2)(ii). Section 163 thus provides that an

alternative-route teacher who merely “demonstrates satisfac-

tory progress toward full certification” is “highly qualified”

within the meaning of NCLB. Under Section 163,

§ 200.56(a)(2)(ii) is consistent with NCLB and is therefore

valid. That is, so long as Section 163 remains in effect, it

overrules our decision in Renee II.

[6] However, by its own terms, Section 163 remains in

effect only through the end of the 2012-13 school year. If

Congress takes no further action, the pre-Section 163 version

of NCLB will again be the law. In that event,

§ 200.56(a)(2)(ii) will again be invalid because its definition

of “highly qualified teacher” will again be inconsistent with

the statutory definition.

2. Mootness

Neither side has contended that Congress’s enactment of

Section 163 has mooted the appeal. However, we have an

independent obligation to ensure that a case is not moot

within the meaning of Article III. See Cole v. Oroville Union

High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000). Article

III mandates that “there be a live case or controversy” when

a federal court decides a dispute. Burke v. Barnes, 479 U.S.

361, 363 (1987). A case can be moot when a challenged stat-

ute or regulation “is repealed, expires, or is amended to

remove the challenged language.” Log Cabin Republicans v.

United States, 658 F.3d 1162, 1166 (9th Cir. 2011) (per

curiam).

[7] We conclude that the passage of Section 163 does not

moot this appeal. Section 163 is, by its express terms, tempo-

rary. It took effect in December 2010, on the date of enact-

ment, and it will expire after the 2012-13 academic year.

Absent further congressional action, 34 C.F.R.

§ 200.56(a)(2)(ii) will again conflict with NCLB’s definition

RENEE v. DUNCAN 5033

of a “highly qualified teacher.” See Renee II, 623 F.3d at 796.

The Supreme Court has repeatedly held that a temporary halt

to unlawful action does not moot a claim for injunctive relief.

City of Los Angeles v. Lyons, 461 U.S. 95, 101 & n.4 (1983)

(“[T]he case is not moot, since the moratorium by its terms is

not permanent. Intervening events have not irrevocably eradi-

cated the effects of the alleged violation.” (citation and quota-

tions omitted)); Bullock v. Carter, 405 U.S. 134, 141 n.17

(1972) (holding that temporary repeal of challenged statute

does not moot case); see also Ballen v. City of Redmond, 466

F.3d 736, 741 (9th Cir. 2006) (same). Based on these hold-

ings, we conclude that the temporary characterization of alter-

native route teachers defined in § 200.56(a)(2)(ii) as “highly

qualified teachers” within the meaning of NCLB does not

moot the appeal.

3. Compliance with pre-Section 163 Reporting

Requirements

[8] NCLB requires the Secretary to file an annual report to

Congress in which the Secretary presents national and state-

level data on compliance with NCLB goals. See 20 U.S.C.

§ 6311(h)(5). In their complaint, Appellants ask that the Sec-

retary be enjoined to amend the reports previously submitted

to Congress, in which he characterized alternative route teach-

ers as “highly qualified.” Appellants ask that the Secretary be

enjoined from characterizing alternative route interns defined

by § 200.56(a)(2)(ii) as “highly qualified teachers” in his

2005-2006 report to Congress on that academic year. Appel-

lants also ask that the Secretary be enjoined to “notify” Con-

gress that his 2002-2003 report relied on the unlawful

definition of “highly qualified teachers” contained in

§ 200.56(a)(2)(ii).

[9] In Guerrero v. Clinton, 157 F.3d 1190 (9th Cir. 1998),

we held that a federal court could not redress an injury based

on an allegedly inadequate report that an agency is obligated

to file with Congress. Id. at 1194. At issue in Guerrero was

5034 RENEE v. DUNCAN

a requirement that the President “report annually” to Congress

on the impact of a compact with federal territories and the

State of Hawaii. Id. at 1191. We described the report as

“purely informational.” Id. at 1195. We concluded,

In sum, no legal consequences flow from [the] report

and it has no “determinative or coercive effect upon

the action of someone else” that in turn produced the

[plaintiffs’] injury . . . . By the same token, the report

is not agency action of the sort that is typically sub-

ject to judicial review. Because it triggers no legal

consequences and determines no rights or obliga-

tions, no check on the substance of the report is nec-

essary. Having requested the report, Congress, not

the judiciary, is in the best position to decide

whether it’s gotten what it wants.

Id. at 1195 (internal citations omitted) (quoting Bennet v.

Spear, 520 U.S. 154 (1997)).

[10] As in Guerrero, the reporting requirement of NCLB

that Appellants seek to enforce is “purely informational.” The

provision at issue, § 6311(h)(5), states, “The Secretary shall

transmit annually to [two Committees of Congress] a report

that provides national and State-level data on the information

collected under paragraph (4).” 20 U.S.C. § 6311(h)(5).

“Paragraph (4),” in turn, contains a requirement that the states

report on seven specific metrics of academic success annually

to the Secretary. 20 U.S.C. § 6311(h)(4). This reporting

requirement is of the same character as the requirement in

Guerrero. See 157 F.3d at 1191-92 n.4 (stating requirement

that “the President shall report to the Congress with respect to

the impact of” the compact on territorial governments and

Hawai’i). Nothing in NCLB provides that the Secretary’s

reports to Congress have any legal consequences. As in Guer-

rero, we hold that Appellants’ request for injunctive relief

with respect to these reports was properly denied (though on

a different basis) by the district court.

RENEE v. DUNCAN 5035

4. Attorney’s Fees

[11] Appellants seek attorney’s fees under the Equal

Access to Justice Act (EAJA). That statute provides: “[A]

court shall award to a prevailing party other than the United

States fees and other expenses . . . incurred by that party in

any civil action . . . brought by or against the United States

. . . unless the court finds that the position of the United States

was substantially justified.” 28 U.S.C. § 2412(d)(1)(A); see

also Pierce v. Underwood, 487 U.S. 552, 559-63 (1988).

[12] We have interpreted the term “substantial justifica-

tion” as “describ[ing] a position that has a reasonable basis

both in law and fact.” Timms v. United States, 742 F.2d 489,

492 (9th Cir. 1984). That the Secretary did not prevail on the

positions he has taken does not invoke a presumption that he

was not substantially justified. Id. Assuming without deciding

that Appellants qualify as a “prevailing party” under the

EAJA, we conclude that the Secretary’s position was substan-

tially justified.

[13] We have issued two previous opinions in this case. In

the first opinion, a split panel of this court agreed with the

Secretary’s position that Appellants lack standing. Renee I,

573 F.3d at 905. We reversed our position on the standing

issue, Renee II, 623 F.3d at 80, but one of us continued to

agree with the Secretary’s position on standing, id. (Tallman,

J., dissenting). On the merits, the district judge had agreed

with the Secretary’s position, holding that the challenged reg-

ulation was consistent with the definition of “highly qualified

teachers” contained in NCLB. Given the substantial disagree-

ment among federal judges on the Secretary’s contentions,

Appellants face the daunting task of arguing that the Secre-

tary’s position lacked a reasonable basis in law and fact.

[14] NCLB affords the Secretary substantial discretion in

determining certain matters of policy. The Secretary con-

tended throughout this litigation that the term “highly quali-

5036 RENEE v. DUNCAN

fied teacher” is sufficiently ambiguous so as to encompass

alternative route interns defined by § 200.56(a)(2)(ii). In so

doing, he advanced a “novel but credible extension or inter-

pretation of the law.” Timms, 742 F.2d at 492 (internal quota-

tion marks omitted). He pursued his position without the

guidance from any federal court on the meaning of the statu-

tory phrase “highly qualified teachers.” See Armster v. U.S.

Dist. Ct. for Cent. Dist. of Cal., 817 F.2d 480, 483-84 (9th

Cir. 1987) (considering litigating position as substantially jus-

tified “especially since there was no case law directly to the

contrary”). Given the Secretary’s task and the divergent views

of federal judges, it was reasonable for the Secretary to test

the validity of the regulation “in the absence of any precedent

on the question.” Foster v. Tourtelotte, 704 F.2d 1109, 1112

(9th Cir. 1983) (per curiam).

[15] We therefore deny Appellants’ motion for attorneys’

fees under the EAJA.

Conclusion

For the foregoing reasons, we reaffirm our decision in

Renee II that 34 C.F.R. § 200.56(a)(2)(ii) is inconsistent with

NCLB as it existed before the passage of Section 163. That

Section prospectively overruled Renee II. So long as Section

163 remains in effect § 200.56(a)(2)(ii) is valid. However, if

Congress does nothing, Section 163 will expire at the end of

the 2012-13 academic year. In that event, our opinion in

Renee II will again control.

AFFIRMED.

TALLMAN, Circuit Judge, dissenting in part and concurring

in part:

I concur in the judgment and parts III.B.1—2—that the

appeal is not moot—and III.B.4—that appellants are not enti-

RENEE v. DUNCAN 5037

tled to attorney’s fees. I continue to believe that the appellants

lack standing to bring this suit, Renee II, 623 F.3d at 800-807,

and would dismiss this appeal for the reasons I previously

explained.

I agree that if we were to reach the merits, the passage of

§ 163 did not make this appeal moot. However, the majority’s

detailed discussion of § 163 is extraneous dicta. Section 163

explicitly modifies NCLB to include the definition for “highly

qualified teacher” contained in 34 C.F.R. § 200.56(a)(2)(ii).

Because the regulation can no longer violate NCLB, it is

unnecessary for the majority to address in this opinion

whether—prior to the enactment of § 163—the challenged

regulation violated NCLB.

Any discussion about the pre-§ 163 regulation is largely

immaterial to the issue now before us because it depends upon

a prediction of what Congress may do in 2013. What Con-

gress has done is “prospectively overrule[ ] Renee II.” Op. at

5036. Under the law of the case doctrine it appears that should

Congress fail to act by 2013 the majority’s opinion in Renee

II would control. Given enactment of § 163, however, the dis-

cussion of whether the regulation violated NCLB pre-§ 163

becomes wholly irrelevant. I therefore do not join that part of

the majority’s opinion.