D. M., by and through his next friend C.M. v. Oregon School Activities Association, an Oregon Corporation, by

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
D. M., by and through his next friend C.M.,
Plaintiff-Appellant,
v.
OREGON SCHOOL ACTIVITIES
ASSOCIATION, an Oregon Corporation, by
and through the Board of Directors of
Oregon School Activities Association;
OREGON SCHOLASTIC ACTIVITIES
ASSOCIATION, an Oregon Corporation, by
and through the Board of Directors of
Oregon Scholastic Activities Association,
Defendants-Appellees.
No. 22-36029
D.C. No. 6:22-cv-01228-MC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted July 12, 2023**
Seattle, Washington
Before: GRABER, GOULD, and FRIEDLAND, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 22-36029
Plaintiff D.M. appeals the district court’s denial of his request for a
preliminary injunction to prohibit the Oregon School Activities Association
(OSAA) from applying its eight-consecutive-semester rule to bar him from playing
school sports in his last year of high school. Because D.M. has now graduated
from high school, his appeal is moot. We therefore dismiss.
D.M. concedes that “the controversy on appeal [is] dormant between the
parties as of” the date of his graduation from high school, but he argues that the
“capable of repetition, yet evading review” exception to mootness applies here.
The controversy, however, must be capable of repetition with respect to the
particular appellant in question for that exception to apply. See, e.g., DeFunis v.
Odegaard, 416 U.S. 312, 319 (1974) (per curiam) (holding that the plaintiff’s
challenge to a specific law school admission process was moot and not capable of
repetition because he was already enrolled for the final term of his final year of law
school and would never be subject to that admissions process again). Because the
controversy with respect to Appellant D.M.—whether OSAA violated the ADA by
applying its eight-consecutive-semester rule to bar D.M. from playing sports in his
final year of high school—cannot repeat now that D.M. is no longer a high school
student, the mootness exception cannot apply here.1 Cf. Where Do We Go
1 The fact that OSAA’s eight-consecutive-semester rule may also bar other
students from playing sports does not make a difference here because D.M. is

-- 2 of 3 --

3 22-36029
Berkeley v. Cal. Dep’t of Transp., 32 F.4th 852, 857–59 (9th Cir. 2022) (holding
that, although the preliminary injunction being appealed had been set to expire
before argument, the controversy was “capable of repetition” because the plaintiffs
had extended the injunction and could continue to do so and also because the harm
with respect to appellant Caltrans—its being enjoined from clearing the
encampments—was likely to repeat).
DISMISSED.
bringing a claim only on his own behalf, based on his own particular disability. In
DeFunis, the school’s allegedly unconstitutional admission process would have
affected future applicants. 416 U.S. at 319. But because DeFunis brought the
claim only on behalf of “himself alone, and not as the representative of any class,”
id. at 314, the claim was moot when DeFunis would no longer be subject to the
policy, id. at 319.

-- 3 of 3 --