ProEnglish v. Bush , 70 F. App'x 84 ( 2003 )


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  •                          UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    PROENGLISH; CLIFFORD W. COLWELL,          
    JR., M.D.; JOSEPH F. DAUGHERTY,
    M.D.; DONALD KUNDEL, M.D.; K. C.
    MCALPIN,
    Plaintiffs-Appellants,
    and
    ANTHONY BULL, M.D.,
    Plaintiff,
           No. 02-2044
    v.
    GEORGE W. BUSH, President of the
    United States; JOHN D. ASHCROFT,
    Attorney General of the United
    States; TOMMY G. THOMPSON,
    Secretary, U.S. Department of
    Health and Human Services,
    Defendants-Appellees.
    
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    Leonie M. Brinkema, District Judge.
    (CA-02-356-A)
    Argued: April 2, 2003
    Decided: May 15, 2003
    Before WILKINS, Chief Judge, SHEDD, Circuit Judge,
    and Terry L. WOOTEN, United States District Judge for the
    District of South Carolina, sitting by designation.
    2                         PROENGLISH v. BUSH
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    ARGUED: Barnaby White Zall, WEINBERG & JACOBS, L.L.P.,
    Rockville, Maryland, for Appellants. Tovah Renee Calderon, Civil
    Rights Division, UNITED STATES DEPARTMENT OF JUSTICE,
    Washington, D.C., for Appellees. ON BRIEF: Ralph F. Boyd, Jr.,
    Assistant Attorney General, Mark L. Gross, Civil Rights Division,
    UNITED STATES DEPARTMENT OF JUSTICE, Washington,
    D.C., for Appellees.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Appellants filed this case challenging, on constitutional and statu-
    tory grounds, the legality of Executive Order No. 13,166 ("EO
    13,166") and policy guidance documents promulgated thereunder by
    the United States Department of Justice ("DOJ") and the United
    States Department of Health and Human Services ("HHS").1 The dis-
    trict court dismissed the case without prejudice based on its determi-
    nation that Appellants’ claims were not ripe for judicial review.
    Because we find that Appellants failed to allege a proper basis for the
    district court to exercise subject matter jurisdiction, we affirm.2
    1
    Appellees are the President of the United States, the Attorney General
    of the United States, and the Secretary of HHS. We will hereinafter refer
    to them collectively as "the government."
    2
    Although the district court dismissed the case without prejudice, we
    have appellate jurisdiction. See Domino Sugar Corp. v. Sugar Workers
    Local 392, 
    10 F.3d 1064
    , 1067 (4th Cir. 1993).
    PROENGLISH v. BUSH                          3
    I
    On August 11, 2000, President Clinton issued EO 13,166, which
    directs federal agencies to develop guidance that will help ensure that
    persons with limited English proficiency ("LEP") have meaningful
    access to federally funded services. See 
    65 Fed. Reg. 50,121
     (Aug.
    11, 2000). To assist agencies in developing LEP guidance, EO 13,166
    incorporates by reference the contemporaneously issued DOJ General
    Policy Guidance, see 
    65 Fed. Reg. 50,123
     (Aug. 16, 2000), and it
    instructs each federal agency to issue LEP guidance consistent with
    the DOJ General Policy Guidance.
    To fulfill its obligations as a grant agency subject to EO 13,166,
    DOJ issued its own agency-specific guidance to DOJ grant recipients
    on January 16, 2001. See 
    66 Fed. Reg. 3,834
     (Jan. 16, 2001). Follow-
    ing republication for public comment, DOJ issued its agency-specific
    guidance in final form on June 18, 2002. See 
    67 Fed. Reg. 41,455
    (June 18, 2002).
    Likewise, HHS published its LEP guidance document to recipients
    of HHS financial assistance on August 30, 2000, see 
    65 Fed. Reg. 52,762
     (Aug. 30, 2000), and republished it for public comment on
    February 1, 2002. See 
    67 Fed. Reg. 4,968
     (Feb. 1, 2002). Although
    HHS has not issued its guidance document in final form, the HHS
    guidance documents have been effective since August 30, 2000.
    The underlying basis for EO 13,166 is the prohibition of national
    origin discrimination set forth in Title VI of the Civil Rights Act of
    1964. See 42 U.S.C. § 2000d. According to the government, EO
    13,166 and the DOJ and HHS agency guidance documents "clarify
    the federal government’s longstanding view that, in certain circum-
    stances, regulations implementing Title VI require recipients of fed-
    eral financial assistance to provide language assistance to LEP
    persons in order to avoid potential discrimination on the basis of
    national origin." Brief of Appellees, at 7.
    Appellants Clifford Colwell, Jr., Joseph Daugherty, and Donald
    Kundel are physicians who receive federal financial assistance and
    are, therefore, subject to Title VI. Colwell and Daugherty claim that
    under EO 13,166 and the DOJ and HHS guidance policies, they
    4                         PROENGLISH v. BUSH
    would have to provide translators in any requested language, at their
    own cost. Kundel claims that the policies might be applied to his pro-
    fessional reports and, if so, it would be impossible for him to comply
    because of the costs. Each physician also claims that he would incur
    actual and potential liability for forced speech in languages other than
    English.
    Appellant ProEnglish is a non-profit advocacy organization that
    advocates state "official English" laws. ProEnglish claims that the
    policies would undermine or eliminate the English language goals and
    programs which it has conducted and will conduct in the future, and
    that they will make its activities much more difficult. McAlpin claims
    that the policies have harmed his efforts as Executive Director of
    ProEnglish by making it more difficult for him to accomplish his
    goals of protecting English as the common language of the United
    States and making English the official language of the federal govern-
    ment.
    Appellants filed this action seeking "declaratory and injunctive
    relief against Executive Branch policy changes, not authorized by
    Congress, which force medical service providers and others, without
    reimbursement, to speak in a particular manner not of their choosing,
    and which expose providers to liability under both federal law and
    malpractice claims." J.A. 7. Appellants characterized their claims as
    being threefold: (1) "that a person’s choice of language is not
    ‘national origin’ under Title VI;" (2) that the government has "no
    authority to so equate language and national origin;" and (3) that the
    government’s "attempts to impose such an equation by Executive
    Order and departmental ‘policy guidance’ violated constitutional and
    procedural protections." Id.3
    The government moved to dismiss, arguing that the district court
    lacked subject matter jurisdiction, venue was improper, and the com-
    plaint failed to state a claim for which relief can be granted. See Fed.
    R. Civ. P. 12(b)(1), 12(b)(3), and 12(b)(6). Concerning the issue of
    3
    Appellants actually asserted four causes of action: (1) violation of the
    First Amendment; (2) violation of the First, Ninth, and Tenth Amend-
    ments; (3) violation of the Administrative Procedures Act; and (4) viola-
    tion of several "Regulatory Fairness Laws" and the Fifth Amendment.
    PROENGLISH v. BUSH                          5
    jurisdiction, the government asserted that the claims were not ripe for
    review and that Appellants lacked standing to bring the claims.
    The district court heard oral arguments on the motion to dismiss.
    At the outset, the district court recognized that the motion involved
    several issues, but it directed the argument to the issue of ripeness.
    During the arguments, the district court noted that "the critical issue
    on the ripeness argument is whether or not there is actually in place
    a regulation that can be imminently imposed upon these plaintiffs, so
    that this is not an advisory type of opinion that I’m being asked to
    give but actually that there’s something imminent, some imminent
    injury or harm to these plaintiffs." J.A. 186. After hearing oral argu-
    ments, the district court ruled:
    The issues are extremely interesting, but I am still convinced
    that the plaintiffs are not able to surmount the fundamental
    issues [sic] that this case in my view is not yet ripe. There
    is no evidence either in the complaint as it’s pled or in what
    you’ve brought before me yet that any of the specific plain-
    tiffs in this lawsuit have actually been threatened with any
    kind of immediate action by HHS.
    Although the guidance — the August 16 document does say
    it’s effective, it also says it’s open for comment. It’s obvi-
    ously still in my view a document in flux, and what is being
    asked of the Court at this point is in my view an advisory
    opinion as to something that is not yet in effect affecting
    these plaintiffs directly.
    Id. at 191-92.
    The district court then found that neither EO 13,166 nor the DOJ
    policy documents were properly at issue in the case, and it directed
    the argument to the question of whether McAlpin had standing. After
    hearing the parties on the standing issue, the district court stated:
    As I said earlier, I’m going to dismiss this complaint with-
    out prejudice based on my conclusion that the issues are not
    yet ripe.
    6                         PROENGLISH v. BUSH
    The standing issue as to the director of ProEnglish is very
    — Mr. McAlpin’s position is very interesting. I think,
    though, that the government’s argument is better on this
    point that simply because a government policy or a govern-
    ment regulation makes one’s job more difficult is not in my
    view a sufficiently high problem to give one standing.
    There is not in my view a sufficient — even though you
    argue to the contrary . . . that there has been a labeling effect
    because of this regulation, I think it’s too tenuous. This is
    not the kind of government action that really is in my view
    chilling or affecting speech to the degree that you find in
    these other cases that you use.
    J.A. 197-98.
    II
    "Article III of the Constitution limits the jurisdiction of federal
    courts to cases or controversies. Doctrines like standing . . . and ripe-
    ness are simply subsets of Article III’s command that the courts
    resolve disputes, rather than emit random advice." Bryant v. Cheney,
    
    924 F.2d 525
    , 529 (4th Cir. 1991).
    Ripeness concerns the appropriate timing of judicial consideration
    of a claim. Virginia Soc’y for Human Life, Inc. v. Federal Election
    Comm’n, 
    263 F.3d 379
    , 389 (4th Cir. 2001). The doctrine’s basic
    rationale "is to prevent the courts, through avoidance of premature
    adjudication, from entangling themselves in abstract disagreements
    over administrative policies, and also to protect agencies from judicial
    interference until an administrative decision has been formalized and
    its effects felt in a concrete way by the challenging parties." Abbott
    Labs. v. Gardner, 
    387 U.S. 136
    , 148-49 (1967). In determining
    whether a claim is ripe, courts examine the fitness of the issue for
    judicial decision and the hardship to the parties of withholding court
    consideration. Ohio Forestry Ass’n v. Sierra Club, 
    523 U.S. 726
    , 733
    (1998). This inquiry requires courts to consider (1) whether delayed
    review would cause hardship to the party seeking review; (2) whether
    judicial intervention would inappropriately interfere with further
    PROENGLISH v. BUSH                              7
    administrative action; and (3) whether the courts would benefit from
    further factual development of the issues presented. 
    Id.
    Standing concerns "whether the plaintiff is the proper party to bring
    th[e] suit. . . ." Raines v. Byrd, 
    521 U.S. 811
    , 818 (1997). The "central
    purpose of the standing requirement [is] to ensure that the parties
    before the court have a concrete interest in the outcome of the pro-
    ceedings such that they can be expected to frame the issues properly."
    Harris v. Evans, 
    20 F.3d 1118
    , 1121 (11th Cir. 1994). In determining
    whether a party has standing to bring a claim, courts examine (1)
    whether that party has "suffered an injury in fact, i.e., ‘an invasion of
    a legally protected interest which is (a) concrete and particularized,
    and (b) actual or imminent, not conjectural or hypothetical,’" (2)
    whether the injury is "fairly traceable to the actions of the Defendants,
    rather than the result of actions by some independent third party not
    before the court," and (3) whether it is "likely, as opposed to merely
    speculative, that her injuries will be redressed by a favorable deci-
    sion." Dixon v. Edwards, 
    290 F.3d 699
    , 711 (4th Cir. 2002) (citations
    omitted).
    The burden of establishing ripeness and standing rests upon the
    party asserting the claim. Renne v. Geary, 
    501 U.S. 312
    , 316 (1991);
    Friends for Ferrell Parkway, LLC v. Stasko, 
    282 F.3d 315
    , 320 (4th
    Cir. 2002). We conduct a de novo review of the district court’s dis-
    missal for lack of subject matter jurisdiction. Allstate Ins. Co. v. West
    Va. State Bar, 
    233 F.3d 813
    , 816 (4th Cir. 2000).4
    4
    Appellants did not request that the district court go beyond the allega-
    tions of the complaint in considering the motion to dismiss, although
    they did refer generally to evidence that they contended supported their
    ripeness position, see J.A. 139 n.14 ("Plaintiffs have significant evidence
    that these policies are already being enforced"); J.A. 185 (referring to "a
    whole series of things that aren’t in evidence yet but would come in");
    and the district court likewise referred to matters beyond the complaint.
    See J.A. 191 ("There is no evidence either in the complaint as it’s pled
    or in what you’ve brought before me yet that any of the specific plaintiffs
    . . . have actually been threatened with any kind of immediate action by
    HHS"). Notwithstanding these comments, our review of the record in its
    entirety convinces us that the district court treated this motion as a
    12(b)(6)-type motion. See Adams v. Bain, 
    697 F.2d 1213
    , 1219 (4th Cir.
    1982).
    8                         PROENGLISH v. BUSH
    After reviewing the parties’ briefs and the applicable law, and hav-
    ing had the benefit of oral argument, we conclude that Appellants
    failed to meet their burden of establishing that the district court had
    subject matter jurisdiction over their claims. Accordingly, we affirm
    the district court’s order dismissing the case without prejudice for
    lack of subject matter jurisdiction.5
    AFFIRMED
    5
    Although we affirm the dismissal of this case, we do not hold that the
    HHS guidance policy is not "final" for purposes of a legal challenge
    under proper circumstances. Indeed, at oral argument, counsel for the
    government conceded the finality of the HHS guidance policy because
    it is currently being used.