Ctr Law Educ v. EDUC ( 2005 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 23, 2004 Decided January 21, 2005
Reissued February 16, 2005
No. 02-5227
THE CENTER FOR LAW AND EDUCATION, ET AL.,
APPELLANTS
v.
DEPARTMENT OF EDUCATION,
APPELLEE
Consolidated with
04-5150
Appeals from the United States District Court
for the District of Columbia
(No. 02cv00443)
(No. 02cv02414)
Stephanie E. Sawyer argued the cause for appellants. With
her on the briefs were David B. Bergman and Ida L. Bostian.
Catherine Y. Hancock, Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the brief
were Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, and Mark B. Stern, Attorney.
2
Before: EDWARD S, SENTELLE and RANDOLPH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Opinion concurring in the judgment in part filed by Circuit
Judge EDWARDS.
SENTELLE, Circuit Judge: Appellants appeal from
judgments of the District Court dismissing their claims on the
grounds that (1) plaintiffs lacked standing to challenge the
membership of a rulemaking committee convened pursuant to
the No Child Left Behind Act, and (2) the Act barred judicial
review of the committee’s membership. Appellants contend that
they have standing to pursue their challenges, and that the Act
does not bar judicial review of the Secretary of Education’s
choice of committee members. Because we agree with the
District Court’s holding that Appellants lack standing to pursue
their claims, we affirm the judgments of the court. Moreover,
because this Court concludes that it lacks Article III jurisdiction
over this case, it does not consider the alternate issue of whether
judicial review is barred by the Act.
I. Background
A. The No Child Left Behind Act
On January 8, 2002, the President signed into law the “No
Child Left Behind Act” (“NCLBA” or “the Act”). Pub. L. No.
107-110, 115 Stat. 1425, codified at 20 U.S.C. § 6301 et seq.
The Act requires each State to implement statewide
accountability systems for all public schools and their students,
to define education standards, and to establish a system of
assessments for measuring whether students have met those
standards. 20 U.S.C. § 6311. Under the Act, a school’s
3
continued failure to make adequate yearly progress toward
meeting proficiency goals will give rise to assistance and
intervention, with parents of students in failing schools allowed
to transfer their children to better schools. Id. at § 6316(b).
The Act authorizes the Department of Education (“DOE”)
to adopt regulations for the oversight of States’ design of
standards and assessments. 20 U.S.C. § 6571. In order to
“ensure that final regulations are issued by the Secretary not
later than” January 8, 2003, id. at § 6571(b)(4)(A), Congress
directed the Secretary to utilize a “negotiated rulemaking
process.” Id. at § 6571(b)(3)(A).
The framework for promulgating and adopting regulations
under the Act is laid out with specificity. First, the Secretary of
Education is to “obtain the advice and recommendations” of
various interest groups. Id. at § 6571(b)(1). Second, the
Secretary shall “establish a negotiated rulemaking process” for
the purpose of drafting regulations, id. at § 6571(b)(3)(A), and
select individuals to participate in such process “from among
individuals or groups that provided advice and recommendations
. . . in such numbers as will provide an equitable balance
between representatives of parents and students and
representatives of educators and education officials . . . .” Id. at
§ 6571(b)(3)(B). Finally, “[s]uch process” shall be conducted
before January 8, 2003. Id. at § 6571(b)(4)(A). The Secretary
provides draft regulations to committee members prior to their
first meeting. Id. at § 6571(b)(3)(C). The process “shall not be
subject to the Federal Advisory Committee Act, but shall
otherwise follow the provisions of the Negotiated Rulemaking
Act of 1990 (5 U.S.C. 561 et seq.).” Id. at § 6571(b)(4).
This incorporation of the Negotiated Rulemaking Act
(“NRA”) implicates jurisdictional concerns, as the NRA bars
judicial review of “[a]ny agency action relating to establishing,
4
assisting, or terminating a negotiated rulemaking committee
under this subchapter,” unless such review is otherwise provided
by statute. 5 U.S.C. § 570. Section 6571(b)(4) does not
explicitly describe selection of committee members as being
included in the “process” subject to the provisions of the NRA,
but it does not explicitly exclude member selection from the
“process” subject to the NRA.
B. Implementation of the Act’s Framework;
Contemporaneous Lawsuits
On January 18, 2002, DOE published a request for advice
and recommendations in the Federal Register. 67 Fed. Reg.
2770. On February 12, 2002, DOE issued an invitation for the
submission of possible participants in the negotiated rulemaking.
See Email from Susan B. Neuman, Ed.D., Assistant Secretary of
Elementary and Secondary Education (Feb. 12, 2002), reprinted
in Joint Appendix at 380-81. While the notice did stress that
“[t]he nominees should be practitioners . . . [i.e.], they should be
significantly involved with implementing and operating Title I
programs,” id., it also noted that the negotiated rulemaking was
to include “representatives of Federal, State and local
administrators; parents; teachers and paraprofessionals;
members of local school boards; and other organizations . . . .”
Id.The committee convened by the Secretary consisted of 24
members. According to the DOE, this body consisted of six
representatives of “State Administrators and State Boards of
Education,” four representatives of “Local Administrators and
Local School Boards,” four representatives of “Principals and
Teachers,” seven representatives of “Students” (including one
teacher, a few administrators, and a representative of a Diocese),
one representative of “Business Interests,” and two
representatives of the DOE. 67 Fed. Reg. 9223, 9224 (Feb. 28,
5
2002), corrected at 67 Fed. Reg. 9935 (Mar. 5, 2002). The
parties do not specify whether any of the non-“parent”/
“teacher” representatives are, themselves, parents or teachers.
Appellants dispute the nominal makeup of this body. They
claim that “only one” member represented “the interests of all
public school parents and students,” because some
representatives actually stood in for “multiple perspectives.”
Brief for Appellants at 11.
The February 28 notice gave individuals and groups who
“felt that his or her interests [we]re not adequately represented
by this . . . group” the opportunity to petition at the March 11
meeting, in person, to be seated as a negotiator. 67 Fed. Reg.
9224. Plaintiff organization Designs For Change attempted to
petition by phone to be seated (claiming that travel was
economically infeasible). The DOE declined to hear the
phoned-in petition. Decl. of Weckstein, Joint Appendix at 121.
Appellants assert that Center for Law and Education also
petitioned to be seated, Brief for Appellant at 13, although no
such petition is apparent from the record. Likewise, it is not
apparent that plaintiff Lindsey petitioned to be seated.
Appellants filed suit in District Court on March 8, 2002.
They alleged that the committee did not achieve “an equitable
balance between representatives of parents and students and
representatives of educators and education officials,” and sought
a preliminary injunction. While the suit was pending, the
committee convened, reviewed the Secretary’s draft regulations,
and reached consensus on every issue of academic standards and
assessments before it. See 67 Fed. Reg. 30,452 (May 6, 2002).
The Secretary received the committee’s proposed rules, and
published them for public notice and comment. Id. During the
comment period, the DOE convened five regional meetings for
further comment. Id.6
In May 2002, the District Court held that it lacked
jurisdiction over Appellants’ challenge on two grounds. First,
it held that the NRA § 570 judicial-review bar precluded judicial
review of a challenge to the committee’s composition prior to
promulgation of final rules. Ctr. for Law and Educ. v. U.S.
Dep’t of Educ., 209 F. Supp. 2d 102, 106-07 (D.D.C. 2002).
The court noted the plaintiffs’ argument that § 570 only applies
to the “process” of committee deliberation, as 20 U.S.C. § 6571provides that committee members would “participate in such
process . . . .” 209 F. Supp. 2d. at 107. But the court ultimately
rejected this interpretation of “process” because of “the
implications of plaintiffs’ theory.” Id. Specifically, such
interpretation would require DOE to segregate the NCLBA into
“process” and “non-process” provisions, and apply the NRA
accordingly; the Court saw such segregation and selective
application to be implausible. Id. at 107-08. Moreover, to allow
for lawsuits over selection of committee members would make
compliance with the NCLBA’s strict time limits infeasible.
Id. at 108.
Second, the court held that review was unavailable under
the Administrative Procedure Act (“APA”), because selection of
the committee was not “final agency action.” Id. at 111.
Appellants filed an appeal, which later was stayed at Appellants’
request.
In July 2002, the DOE published its final rules on state
standards and assessments. 67 Fed. Reg. 45,038 (July 5, 2002)
(to be codified at 34 C.F.R. pt. 200). The final rules took effect
on August 5, 2002. Id.In December 2002, Appellants filed a new complaint. They
did not challenge the substance of the rules on traditional APA
grounds. See 5 U.S.C. § 706. Instead, they again focused on the
composition of the committee, calling for the rules to be set
7
aside and a new committee formed. On March 26, 2004, the
District Court dismissed the suit for lack of jurisdiction, holding
that Appellants lacked standing. Ctr. for Law and Educ. v. U.S.
Dep’t of Educ., 315 F. Supp. 2d 15 (D.D.C. 2004). The court
held that DFC and CLE (“the organizational plaintiffs”) failed
to demonstrate a procedural injury because the Act “contains no
requirement that advocacy groups be represented on the
negotiated rulemaking committee.” Id. at 23. The court also
rejected the organizations’ standing on other grounds regarding
lack of actual injury (i.e., the rules “do[] no more than arguably
offend their policy goals,” id. at 24) and lack of causation (i.e.,
the alleged injury was not caused by the formation of the
committee, but rather, by subsequent choices made by State
agencies. Id. at 25). As to the individual plaintiff, Rachelle
Lindsey, the court held that because the Act created no
enforceable right to have an equitably balanced committee,
Lindsey suffered no actual injury. The “risk” that her children
would not receive a high-quality education was too
“hypothetical” and was dependant on the actions of the States,
not the DOE. Id. at 26-29. Finally, the court also held that
incorporation of the NRA included incorporation of its bar on
judicial review of the establishment of the negotiated
rulemaking committee. Id. at 29-33.
II. Analysis
This Court reviews de novo a dismissal for lack of standing.
Nat’l Wrestling Coaches Ass’n v. U.S. Dep’t of Educ., 366 F.3d
930, 937 (D.C. Cir. 2004). A dismissal for lack of subject
matter jurisdiction is also reviewed de novo. Flynt v. Rumsfeld,
355 F.3d 697, 701 (D.C. Cir. 2004). In reviewing a ruling on a
motion to dismiss, the court must accept as true all facts alleged
by the nonmoving party and must draw all inferences in favor of
the nonmoving party.
8
A. The Judicial Review Bar
As noted above, DOE raises two jurisdictional arguments:
first, that Appellants lack Article III standing; and second, that
Congress deprived this Court of jurisdiction to review the
composition of the committee. Supra pages 3-4, 5-6. Because,
as we discuss below, we hold that Appellants lack Article III
standing, we do not consider the question, never before raised in
this Court, of whether judicial review is barred in this matter.
We “need not identify every ground for holding that a claim is
not justiciable.” Fourth Branch Assocs. (Mechanicville) v.
FERC, 253 F.3d 741, 745 (D.C. Cir. 2001) (quoting Indep.
Petroleum Ass’n of America v. Babbitt, 235 F.3d 588, 594 (D.C.
Cir. 2001)). “[W]e have no trouble dismissing a claim ‘based on
one jurisdictional bar rather than another.’” Id. (quoting
Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379,
1384 (D.C. Cir. 1996)). See also New Jersey Television Corp.
v. FCC, No. 03-1444, slip op. at 3 (D.C. Cir. Dec. 28, 2004).
Any statements by this Court on the question of the judicial
review bar would be “unnecessary dicta,” which “precedent and
prudence counsel us to avoid . . . .” Louisiana Envtl. Action
Network, 87 F.3d at 1385.
B. Standing
This Court, like all Article III courts, is one of limited
jurisdiction; we cannot decide cases that we lack constitutional
authority to decide. Wyoming Outdoor Council v. U.S. Forest
Service, 165 F.3d 43, 47 (D.C. Cir. 1999). We are empowered
to hear only “cases or controversies.” U.S. CONST . art. III, § 2.
We ascertain whether or not the matter before us is a “case” or
“controversy” by looking to whether, inter alia, the litigants
have “standing.” Wyoming Outdoor Council, 165 F.3d at 48.
The “irreducible constitutional minimum of standing contains
three elements”: (1) the plaintiff must have suffered injury in
9
fact, an actual or imminent invasion of a legally protected,
concrete and particularized interest; (2) there must be a causal
connection between the alleged injury and the defendant’s
conduct at issue; and (3) it must be “likely,” not “speculative,”
that the court can redress the injury. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). Where plaintiffs allege
injury resulting from violation of a procedural right afforded to
them by statute and designed to protect their threatened concrete
interest, the courts relax–while not wholly eliminating–the
issues of imminence and redressability, but not the issues of
injury in fact or causation. See Fla. Audubon Soc’y v. Bentsen,
94 F.3d 658, 664-65 (D.C. Cir. 1996) (en banc) (citing Lujan,
504 U.S. at 572-73 & nn. 8-9). Taken together, the plaintiffs
have standing only if, inter alia, (1) the government violated
their procedural rights designed to protect their threatened
concrete interest, and (2) the violation resulted in injury to their
concrete, particularized interest. Plaintiffs fail to satisfy either
of the requirements at issue.
1. Violation of a procedural right designed to protect
plaintiffs’ interests
Appellants fail to show that a procedural right sufficient for
standing has been violated. Not all procedural-rights violations
are sufficient for standing; a plaintiff must show that “the
procedures in question are designed to protect some threatened
concrete interest of his that is the ultimate basis of his standing.”
Lujan, 504 U.S. at 573 n.8 (emphases added).
With respect to the organizational plaintiffs, the procedural
rights at issue are clearly insufficient for standing, as the
procedures at issue were not designed to protect “some
threatened concrete interest of” the organizations. The No Child
Left Behind Act required the Secretary to “select individuals to
participate in such process from among individuals or groups
10
that provided advice and recommendations, including
representation from all geographic regions of the United States,
in such numbers as will provide an equitable balance between
representatives of parents and students and representatives of
educators and educational officials.” 20 U.S.C. § 6571(b)(3)(B).
Nowhere does the Act make mention of advocacy organizations’
interests. The only interests arguably enjoying implicit
protection here are those of parents, students, educators and
education officials; although the advocacy groups may be
“representatives” of parents and students, the interests to be
protected are those of the parents and students, not of the
organizations.
Even in the case of the individual plaintiff, Lindsey, it is not
at all clear that the Act’s procedures regarding the negotiated
rulemaking process were “designed to protect” the interests of
parents and students. The structure of § 6571 as a whole shows
that Congress manifestly did not endorse “protective” litigation
regarding the formation of the committee amidst the time-
limited rulemaking process. The Act specifically mandated that
“[s]uch [rulemaking] process shall be conducted in a timely
manner to ensure that final regulations are issued by the
Secretary not later than 1 year after January 8, 2002[.]” 20
U.S.C. § 6571(b)(4)(A). And, as noted above, the Act created
a complex process for crafting federal and state regulations that
would affect parents’ and students’ interests, including the Act’s
provision for the selection of an “equitable balance” of
committee members. These provisions do not offer any promise
of purposeful protection of the concrete interests of students and
parents. Appellants cite the Conference Report for evidence that
“Congress sought to ‘ensu[re] that the views of both program
beneficiaries and program providers are fairly heard and
considered.’” Brief for Appellants at 9 (quoting H.R. CONF. REP .
107-334, at 809, reprinted in 2001 U.S.C.C.A.N. 1230, 1352).
This is not persuasive evidence of protective design. To the
11
extent that the legislative history is relevant to the question
before us, we note that the language of the report does not
support Appellants’ position; if anything, it weighs against it:
“The Conferees do not intend this language to require strict
numerical equality or comparability among these
representatives. Rather, the Conferees intend the Secretary to
have flexibility in selecting the [committee members.]” H.R.
CONF. REP . 107-334 at 809.
With respect to the organizational plaintiffs, the NCLBA
clearly did not create procedural rights designed to protect their
concrete interests. With respect to Lindsey, the NCLBA did not
clearly create such a right; but as the next section of this
standing analysis makes clear, even if NCLBA did create such
a right, she has not suffered injury sufficient to establish
standing.
2. Injury to a concrete, particularized interest
Appellants present a variety of alleged “injuries” as a result
of the Secretary’s selection of committee members. Appellants
argue that the individual plaintiff, parent Rachelle Lindsey, has
suffered three injuries as a result of the Secretary’s selection of
committee members: First, she was deprived of her procedural
right to help shape the final rules. Brief for Appellants at 16.
Second, the final rules increased the “risk” that her children will
be denied the benefit of the best-possible education and those
rules were caused by the committee selection. Id. at 17. Third,
the final rules fail to require States to provide for public
participation in the creation of standards and measures under the
Act, and those final rules were caused by the committee
selection. Id.
Appellants also argue that the organizational plaintiffs have
suffered four injuries as a result of the Secretary’s selection of
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committee members: First, the Secretary’s apportionment of
committee seats among representatives of various interests
reduced their chances of serving on the committee. Id. at 16.
Second, the selection excluded parent and student advocacy
organizations from consideration. Id. Third, the final rules
forced them to address advocacy issues on an expensive State-
by-State basis. Id. at 17. Fourth, the final rules failed to require
States to provide for public participation. Id.
Taken together, Appellants allege four basic categories of
injuries:
(1) Injuries to Plaintiff Lindsey caused by the
final rules, following selection of the
committee members;
(2) Injuries to Plaintiff Lindsey caused by the
Secretary’s abridgment of her procedural
rights in the selection of committee members;
(3) Injuries to Plaintiff Organizations caused by
the final rules, following selection of the
committee members; and
(4) Injuries to Plaintiff Organizations caused by
the Secretary’s abridgment of their procedural
rights in the selection of committee members.
To organize Appellants’ alleged injuries in this fashion reveals
what Appellants’ muddled brief obfuscates: Appellants allege
two classes of injury under a Procedural Rights theory of
standing. Appellants allege injuries to Appellants’ procedural
rights per se, and they allege injuries to their particularized
interests caused by the final rules. We consider these classes of
13
injuries in turn.1
a. Injury to their procedural interests
Appellants first allege that they suffered injury, as a result
of the Secretary’s failure to abide by the procedures prescribed
by the Act, to their interest in the government’s protection of
their procedural rights.
As this Court sitting en banc described at length in Florida
Audubon Society, a procedural-rights plaintiff must demonstrate
standing by “show[ing] not only that the defendant’s acts
omitted some procedural requirement, but also that it is
substantially probable that the procedural breach will cause the
essential injury to the plaintiff’s own interest.” 94 F.3d at 664-
65. In other words, while we relax the imminence and
redressability requirements, the procedural-rights plaintiff must
still satisfy the general requirements of the constitutional
standards of particularized injury and causation. See id. at 664.
Although Appellants rely heavily on footnote 7 of Lujan in
arguing procedural standing in this case, even in that case the
Court required a showing that “concrete interests” had been
invaded. 504 U.S. at 572 n.7.
1
Appellants do not argue that the organizational plaintiffs retain
“representational standing” to press claims on behalf of individual
members of the organization. Nonetheless, this Court notes in its own
jurisdictional inquiry that these organizational plaintiffs would not
satisfy the test for representational standing, because such plaintiffs
would need to show actual or imminent injury to their members
caused by the challenged action. Warth v. Seldin, 422 U.S. 490, 511
(1975). As we discuss below, Appellants fail to show any such
causation here.
14
Assuming arguendo that a procedural right designed to
protect a concrete interest of the Appellants has been violated
here, Appellants fail to demonstrate how they suffer actual
injury to a concrete, particularized interest, caused by the
challenged conduct. The chain of causation between the alleged
procedural violation and the concrete interest is speculative at
best. See infra pages 16-17. “Unadorned speculation will not
suffice to invoke the judicial power.” Physicians Ed. Network
v. Dep’t of H.E.W., 653 F.2d 621, 627 (D.C. Cir. 1981) (district
court’s opinion expressly adopted en toto by Court) (quoting
Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26,
44 (1976)).
But even more importantly, Appellants appear to
misunderstand the difference between the “procedural right” and
the “concrete interest” in a procedural-rights case. See, e.g.,
Brief of Appellants at 23 (“The Department’s denial of this right
constitutes sufficient injury to support standing.”). The two
things are not one and the same. Appellants must show both (1)
that their procedural right has been violated, and (2) that the
violation of that right has resulted in an invasion of their
concrete and particularized interest. “[A] prospective plaintiff
must demonstrate that the defendant caused the particularized
injury, and not just the alleged procedural violation.” Fla.
Audubon Soc’y, 94 F.3d at 664 (emphasis added). In Lujan the
Supreme Court disclaimed Appellants’ conflation of concrete
interest and procedural right in unambiguous language:
If we understand this [argument] correctly, it means that the
Government’s violation of a certain . . . class of procedural
duty satisfies the concrete-injury requirement by itself,
without any showing that the procedural violation
endangers a concrete interest of the plaintiff (apart from his
interest in having the procedure observed). We cannot
agree.
15
504 U.S. at 573 n.8. Appellants must allege injury beyond mere
procedural misstep per se to satisfy standing in a procedural-
rights case, and they fail to do so here.
In sum, we hold that Appellants have failed to show that the
alleged procedural violation caused actual injury to Appellants’
concrete interests such that they satisfy Article III’s requirement
of standing. Fla. Audubon Soc’y, 94 F.3d at 664.
b. Injuries to other interests, caused by the final
rules
Appellants allege injury not only to their procedural
interest, but also to their interests in education, lobbying, and
other interests apart from procedural rights per se. Even
assuming arguendo that their purported interests do constitute
particularized, concrete interests sufficient to satisfy Lujan, see
504 U.S. at 560, Appellants fail to demonstrate the necessary
causal connection between the challenged agency action–here,
the promulgation of final rules–and the alleged injury.
To demonstrate standing, Appellants must show “a causal
connection between the injury and the conduct complained
of–the injury has to be ‘fairly . . . trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court.’”
Lujan, 504 U.S. at 560-61 (quoting Simon, 426 U.S. at 41-42).
To show causation and redressability in their procedural-
rights case, Appellants need not demonstrate that, but for the
procedural defect, the final outcome of the rulemaking process
would have been different, and that this Court’s ordering the
action to remedy the procedural defect will alter the final effect
on Appellants’ interests. See Lujan, 504 U.S. at 572 n.7. In
short, this Court assumes the causal relationship between the
16
procedural defect and the final agency action. Nonetheless,
Appellants must still demonstrate a causal relationship between
the final agency action and the alleged injuries.2
In the case of Lindsey, the agency action and the alleged
injury stand at opposite ends of a long chain: (1) DOE
promulgated final rules giving discretion to the States to
implement their own rules for the education of children in the
State; (2) the State of Illinois, in its discretion, implemented
rules that were permitted but not required by DOE; (3) those
rules increased the risk of improper evaluation of students and
schools; (4) Lindsey’s daughter’s school might be improperly
classified as a result (though it presently receives federal
funding under the NCLBA); (5) Lindsey’s daughter might
thereby be harmed by improper classification.
Having outlined the alleged causal chain, we conclude that
the connection between the beginning and end of the purported
chain remains so attenuated that we cannot hold the alleged
2
We note that where, as here, the purported cause of injury (i.e.,
promulgation of final rules) and the injury itself is separated by
intervening actors and events, the causation and redressability
inquiries may appear to merge.
In such cases, both prongs of standing analysis can be said to
focus on principles of causation: fair traceability turns on the
causal nexus between the agency action and the asserted
injury, while redressability centers on the causal connection
between the asserted injury and judicial relief. Despite these
similarities, however, each inquiry has its own emphasis.
Causation remains inherently historical; redressability
quintessentially predictive.
Freedom Republicans v. FEC, 13 F.3d 412, 418 (D.C. Cir. 1994)
(citations omitted) (emphasis added).
17
injury to be “fairly traceable to” the final agency rules “and not
the result of the independent action” of the State of Illinois.
Lujan, 504 U.S. at 560. Where “the necessary elements of
causation and redressability . . . hinge on the independent
choices of the regulated third party,” i.e. the States, “it becomes
the burden of the plaintiff to adduce facts showing that those
choices have been or will be made in such manner as to produce
causation and permit redressability of injury.” Nat’l Wrestling
Coaches Ass’n, 366 F.3d at 938 (quoting Lujan, 504 U.S. at 562)
(internal quotation marks omitted). Appellants fall far short of
carrying their burden.
Moreover, the Court is not convinced that the alleged injury
to Lindsey is “concrete and particularized.” Lujan, 504 U.S. at
560. Appellants allege direct injury styled as “increased risk,”
in the form of giving the States the opportunity to injure
Appellants’ interests. This so-called “injury” is insufficient for
standing.
Outside of increased exposure to environmental harms,
hypothesized “increased risk” has never been deemed sufficient
“injury.”3 And even if “risk” were sufficient injury for standing
in the non-environmental context, Lindsey would have to show
3
We do not read Electric Power Supply Ass’n v. FERC, No. 03-
1182, 2004 WL 2828047 (D.C. Cir. Dec. 10, 2004), to extend the
“enhanced risk” analysis. That case dealt with standing to challenge
a federal agency’s arguably ultra vires publications of regulations
purporting to authorize ex parte communications in violation of the
Sunshine Act, Pub. L. No. 94-409, 90 Stat. 1241 (1976). While in a
sense a violation of rights protected by that statute could be called
procedural, in the final analysis, the violation supporting standing goes
to substantive rights created under the Act. Electric Power Supply
Association’s analysis of standing to assert those rights is not authority
for the general proposition of applicability of “enhanced risk” analysis
to procedural violations in the determination of standing.
18
that the challenged conduct has created a “demonstrably
increased risk” that “actually threatens the plaintiff’s particular
interests.” Fla. Audubon Soc’y, 94 F.3d at 667 (emphasis
added). Here, Lindsey has hypothesized that the final agency
rules have increased the risk to her interests, but she has offered
this Court no actual demonstration of increased risk.
Indeed, were all purely speculative “increased risks”
deemed injurious, the entire requirement of “actual or imminent
injury” would be rendered moot, because all hypothesized, non-
imminent “injuries” could be dressed up as “increased risk of
future injury.”
With respect to the organizational plaintiffs, the causal
chain between the challenged rules and the alleged injury is not
so attenuated: The organizations allege that the Federal rules
force them to change their lobbying strategies, a more costly
form of lobbying. But while their causal chain may be more
traceable than Lindsey’s, it fails to bind the challenged conduct
to actual injury. This Court has not found standing when the
only “injury” arises from the effect of the regulations on the
organizations’ lobbying activities (as opposed to the effect on
non-lobbying activities): “[C]onflict between a defendant’s
conduct and an organization’s mission is alone insufficient to
establish Article III standing. Frustration of an organization’s
objectives is the type of abstract concern that does not impart
standing.” Nat’l Treas. Employees Union v. United States, 101
F.3d 1423, 1429 (D.C. Cir. 1996) (citation and internal quotation
marks omitted).
The case before us is easily distinguished from Havens
Realty Corp. v. Coleman, 455 U.S. 363 (1982). There, the Court
held that an organization dedicated to promoting equal-access to
housing had standing to challenge defendants’ practice of
steering prospective tenants away, because defendants’ practice
19
“perceptibly impaired HOME’s ability to provide counseling
and referral services for low- and moderate-income
home-seekers . . . .” Id. at 379. Here, the only “service”
impaired is pure issue-advocacy–the very type of activity
distinguished by Havens. See id. at 379 (distinguishing Sierra
Club v. Morton, 405 U.S. 727, 739 (1972)).4
In sum, Appellants fail to demonstrate standing arising from
the effect of the final rules, with respect to either the individual
4
In Sierra Club, the Supreme Court recognized that to hold that
a lobbyist/advocacy group had standing to challenge government
policy with no injury other than injury to its advocacy would
eviscerate standing doctrine’s actual injury requirement:
It is clear that an organization whose members are injured
may represent those members in a proceeding for judicial
review. See, e.g., NAACP v. Button, 371 U.S. 415, 428
[1963]. But a mere “interest in a problem,” no matter how
longstanding the interest and no matter how qualified the
organization is in evaluating the problem, is not sufficient by
itself to render the organization “adversely affected” or
“aggrieved” within the meaning of the APA. The Sierra Club
is a large and long-established organization, with a historic
commitment to the cause of protecting our Nation’s natural
heritage from man’s depredations. But if a “special interest”
in this subject were enough to entitle the Sierra Club to
commence this litigation, there would appear to be no
objective basis upon which to disallow a suit by any other
bona fide “special interest” organization, however small or
short-lived. And if any group with a bona fide “special
interest” could initiate such litigation, it is difficult to perceive
why any individual citizen with the same bona fide special
interest would not also be entitled to do so.
405 U.S. at 739-40.
20
or organizational plaintiffs.
III. Conclusion
Because we hold that Appellants lack standing to challenge
the Secretary’s selection of committee members, this Court and
the District Court lack jurisdiction to hear Appellants’ claims.
And because we have already recognized our lack of
jurisdiction, we will not consider whether the No Child Left
Behind Act incorporates the Negotiated Rulemaking Act’s § 570
bar on judicial review of committee formation. “Without
jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases to
exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.” Ex parte
McCardle, 74 (7 Wall.) 506, 514 (1868), quoted in Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 94 (1998).
We affirm the District Court’s judgments of dismissal.
EDWARDS, Circuit Judge, concurring in the judgment in
part: The No Child Left Behind Act (“NCLBA” or “Act”), Pub.
L. No. 107-110, 115 Stat. 1425 (2001) (relevant sections
codified at 20 U.S.C. §§ 6301-6578 (Supp. I 2001)), was enacted
to enhance the educational opportunities of all children and
ensure their ability to meet challenging academic standards. The
Act permits schools to exercise “greater decisionmaking
authority . . . in exchange for greater responsibility for student
performance,” 20 U.S.C. § 6301(7), as monitored through state
testing and accountability systems that comply with specific
standards set out in 20 U.S.C. § 6311. Students in schools that
consistently fail to meet target performance levels are entitled to
supplemental educational services and the option to transfer to
other public schools. Id. § 6316.
The Act envisions parents as an integral part of achieving
high-quality results and provides for parental participation from
the inception of the implementing regulations through the
development of state plans regarding assessments and
accountability systems. See id. §§ 6571, 6311. To implement
the NCLBA, the Secretary of Education (“Secretary”) is
required to “establish a negotiated rulemaking process on, at a
minimum, standards and assessments,” id. § 6571(b)(3)(A), and
“select individuals to participate in such process . . . in such
numbers as will provide an equitable balance between
representatives of parents and students and representatives of
educators and education officials,” id. § 6571(b)(3)(B).
Rachelle Lindsey is a parent of two children who attend a
school that has been identified as a “school in need of
improvement” under the NCLBA. She alleges that the
Department of Education (“Department”) failed to observe the
“equitable balance” requirement of § 1901 of the NCLBA, 20
U.S.C. § 6571, in selecting the members to participate in the
negotiated rulemaking process. In particular, she contends that
this Committee did not include an adequate number of
representatives of parents and students. She also contends that
2
the implementing regulations, which originated with the
Committee, have placed at risk her children’s capacity to obtain
the full benefits of the Act.
Two questions are presented on this appeal. The first
question is whether any challenge to the composition of the
Committee is subject to judicial review. The second question is
whether any of the appellants in this case have standing to
pursue such a challenge. I believe that the District Court erred
in holding that judicial review of the Committee’s composition
is barred; however, on the record at hand, I find that appellants
lack standing to bring this case.
I. THE SECRETARY’S SELECTION OF PARTICIPANTS FOR THE
NEGOTIATED RULEMAKING PROCESS PRESCRIBED BY THE
NCLBA IS CLEARLY SUBJECT TO JUDICIAL REVIEW
The Department asserts that this court lacks jurisdiction
over appellants’ claims, because judicial review is barred. In
advancing this contention, the Department argues that the
NCLBA incorporates § 570 of the Negotiated Rulemaking Act,
which provides in part:
Any agency action relating to establishing, assisting, or
terminating a negotiated rulemaking committee under this
subchapter shall not be subject to judicial review. Nothing
in this section shall bar judicial review of a rule if such
judicial review is otherwise provided by law.
5 U.S.C. § 570 (2000). The Department’s argument is entirely
without merit. The NCLBA does not incorporate § 570 of the
Negotiated Rulemaking Act. And, even if it did, § 570 does not
bar review of the present suit.
3
The NCLBA plainly does not incorporate the Negotiated
Rulemaking Act in its totality. Indeed, the NCLBA mandates a
negotiated rulemaking process, see 20 U.S.C. § 6571(b)(3),
while the Negotiated Rulemaking Act leaves the decision
whether to engage in such process to the discretion of the
agency, see 5 U.S.C. §§ 563, 565 (2000). The NCLBA also
prescribes particular steps for selecting participants in the
negotiated rulemaking process, see 20 U.S.C. § 6571(b)(3),
whereas the Negotiated Rulemaking Act has no such
prescriptions. The NCLBA only looks to the Negotiated
Rulemaking Act to guide the “process” of negotiated
rulemaking. This is apparent from the language and structure of
the relevant provisions of the two acts.
The NCLBA directs the Secretary to establish a negotiated
rulemaking process, 20 U.S.C. § 6571(b)(3)(A), and to “select
individuals to participate in such process . . . in such numbers
as will provide an equitable balance between representatives of
parents and students and representatives of educators and
education officials,” 20 U.S.C. § 6571(b)(3)(B) (emphasis
added). The next paragraph of § 6571, titled “Process,” explains
that “[s]uch process – . . . shall not be subject to the Federal
Advisory Committee Act, but shall otherwise follow the
provisions of the Negotiated Rulemaking Act of 1990.” 20
U.S.C. § 6571(b)(4)(B). Thus, § 6571 first prescribes that the
Secretary establish a negotiated rulemaking process and
provides instructions for the selection of persons to participate
in that process. It then directs that the process of negotiated
rulemaking shall follow the prescriptions of the Negotiated
Rulemaking Act, such as the consensus requirement contained
in 5 U.S.C. § 566 (2000). It is therefore clear that, under the
NCLBA, questions concerning the selection of the Committee
are completely distinct from how the Committee members
participate in the negotiated rulemaking process. Judicial
4
review is foreclosed only with respect to the process of
negotiated rulemaking.
Furthermore, nothing in the language, structure, or
legislative history of the Negotiated Rulemaking Act purports to
bar judicial review of procedural requirements imposed by other
statutes. In fact, it expressly states the opposite. First, § 570 of
the Negotiated Rulemaking Act is explicit that “[a]ny agency
action relating to establishing . . . a negotiated rulemaking
committee under this subchapter shall not be subject to judicial
review.” 5 U.S.C. § 570 (emphasis added). The NCLBA
Committee is not established “under [the] subchapter” in which
the Negotiated Rulemaking Act is located. Indeed, establishing
a negotiated rulemaking committee “under [that] subchapter” is
a discretionary act, 5 U.S.C. § 565, which follows consideration
of multiple factors enumerated at 5 U.S.C. § 563(a). In contrast,
establishing the Committee under the NCLBA is mandatory, and
must follow specific steps contained in 20 U.S.C. § 6571(b)(3).
Clearly, then, the Committee established under 20 U.S.C. §
6571(b)(3) is not a committee established under the Negotiated
Rulemaking Act.
Second, where, as here, review of an alleged procedural
violation in the context of final rule review is permitted by the
Administrative Procedure Act (“APA”), the savings clause of §
570 explicitly permits such review: “Nothing in this section
shall bar judicial review of a rule if such judicial review is
otherwise provided by law.” 5 U.S.C. § 570. The legislative
history of the Negotiated Rulemaking Act is explicit that the
savings clause of § 570 was intended to preserve rights available
under the APA. The Senate Report states:
Persons wishing to challenge a rule derived from the work
of a negotiated rulemaking committee would retain all
5
rights they presently possess under the APA to obtain
judicial review of that rule.
[The bill] recognizes and maintains the long tradition
in federal administrative law which authorizes judicial
review of agency rules at the time those rules are
promulgated. The bill merely precludes judicial
intervention in the earlier stages of the regulatory process,
when a negotiated rulemaking is underway.
S. REP . NO. 101-97, at 28 (1989). Contrary to the District
Court’s analysis, the House Report is also consistent with this
interpretation. It explains that “[a]gency decisions to establish
a negotiated rulemaking committee or regarding the makeup of
this [sic] membership are not subject to judicial review.” H.R.
REP . NO. 101-461, at 15 (1990), reprinted in 1990 U.S.C.C.A.N.
6697, 6706. It makes perfect sense that discretionary decisions
whether to establish a negotiated rulemaking committee under
the Negotiated Rulemaking Act are nonreviewable. This says
nothing about the reviewability of binding directives to establish
such committees under other statutes.
The District Court’s misunderstanding of the relationship
between the NCLBA and the Negotiated Rulemaking Act stems
in part from its peculiar phrasing of the question presented. The
court considered whether § 570’s bar on judicial review lapses
when final rules are promulgated, and identified tension between
the plain language of § 570 and a temporal limitation on the
prohibition of judicial review; it also expressed concern that
reading the prohibition contained in the first sentence of § 570
as lapsing when final rules are promulgated renders § 570
superfluous because the APA already bars review prior to final
agency action. See Ctr. for Law & Educ. v. United States Dep’t
of Educ., 315 F. Supp. 2d 15, 32-33 (D.D.C. 2004). The
properly framed question, however, is whether the savings
6
clause of § 570 permits review under the APA, which grants
jurisdiction to review a final agency action, and allows for
review of procedural violations at that time. See 5 U.S.C. §§
704, 706(2)(D).
Approaching the issue in this way alleviates the District
Court’s concerns. First, the plain language of the savings clause
is consistent with permitting review under the APA. Second,
triggering the savings clause does not render the first part of §
570 superfluous. Indeed, intermediate agency action pursuant
to the Negotiated Rulemaking Act remains unreviewable under
the APA because of the first part of § 570, which provides a
clear statement barring judicial review of alleged violations of
the Negotiated Rulemaking Act, thereby overcoming the APA’s
presumption of reviewability. There also is no basis for
attacking regulations produced under the Negotiated
Rulemaking Act unless another statute expressly creates such a
basis.
In sum, nothing in § 570 of the Negotiated Rulemaking Act
proscribes review of procedures mandated by the NCLBA for
establishing the Committee. Even if § 570 were improbably
construed to have such meaning, it is evident from the language
and structure of § 1901 of the NCLBA that the Act incorporates
provisions of the Negotiated Rulemaking Act only to the extent
that those provisions determine the process of an already
established Committee. Such a construction clearly prevents §
570 from determining reviewability in this case.
II. APPELLANTS HAVE NO STANDING
Although there is no statutory bar to judicial review of this
case, we nonetheless lack jurisdiction over this matter because
appellants have no standing.
7
In order to establish Article III standing, a plaintiff must
demonstrate that (1) she has suffered an injury-in-fact, (2) which
is fairly traceable to the defendant’s purported unlawful conduct,
and is not the result of an independent action of a third party not
before the court, and (3) is likely to be redressed by a favorable
decision of the court. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). In Defenders of Wildlife, the Supreme
Court fortified standing doctrine. It provided for precise notions
of injury-in-fact grounded in concrete and imminent harm and
of redressability rooted in an uninterrupted causal chain. See id.
at 562-71. It is especially significant, therefore, that Defenders
of Wildlife simultaneously embraced an expansive view of
standing in the context of procedural rights: “[S]o long as the
procedures in question are designed to protect some threatened
concrete interest of [the plaintiff’s],” id. at 573 n.8, “[t]he person
who has been accorded a procedural right to protect his concrete
interests can assert that right without meeting all the normal
standards for redressability and immediacy,” id. at 572 n.7. In
other words, “‘procedural rights’ are special.” Id. This is
because they are prophylactic in nature. Such requirements
reflect Congress’s reasonable judgment that a government
decision will better protect particular interests with the specified
procedures in place.
Consistent with the unique role of procedural rights in
contemporary statutory schemes, a procedural rights plaintiff
must establish that (1) the procedural requirement was designed
to guard her concrete interests; and (2) the government conduct,
performed in the absence of that procedure, will cause a distinct
risk to her particularized interests.
In applying these principles to the instant case, I concur in
the judgment that the organizational plaintiffs lack standing to
pursue their claims. The majority opinion needs no
amplification on this point.
8
The question whether Lindsey has standing to seek judicial
enforcement of her alleged procedural right to a properly
constituted Committee raises a much harder issue. There is not
the slightest doubt in the record that this procedural requirement
was intended to protect parents’ voices on the Committee; and
Lindsey contends that the disputed regulations, which allegedly
originated in the absence of adequate parental representation,
have placed at risk her interest in ensuring that her children are
properly assessed so as to receive the full benefits of the
NCLBA.
The District Court concluded that Lindsey failed to
establish an injury-in-fact because the language of § 1901 does
not “expressly bestow upon any person an individual right to
enforce his or her construction of an ‘equitably balanced’
negotiated rulemaking committee.” Ctr. for Law & Educ., 315
F. Supp. 2d at 27. This holding is clearly wrong. Because
Lindsey brings this suit under the APA, not the NCLBA, the
standing inquiry does not turn on rights enforceable
independently from the APA, but rather on an independent
source of procedural protection – here, § 1901 of the NCLBA –
and a risk to concrete interests protected by the procedural
requirement.
I also disagree with the statement in the majority opinion
suggesting that, in procedural rights cases, “[o]utside of
increased exposure to environmental harms, hypothesized
‘increased risk’ has never been deemed sufficient ‘injury’” to
satisfy standing requirements. In my view, this statement is not
consistent with the applicable case law. Most recently, in
Electric Power Supply Ass’n v. FERC, No. 03-1182, 2004 WL
2828047 (D.C. Cir. Dec. 10, 2004), we held that the Electric
Power Supply Association (“EPSA”) had standing “to enforce
procedural requirements designed to protect [its] concrete
interest in the outcome of hearings to which [it was] a party.”
9
Id. at *5. Specifically, EPSA had standing to challenge FERC’s
new exemptions regarding ex parte communications even
though there was no guarantee that impermissible ex parte
contacts would in fact materialize:
In complaining that the market monitor exemption violates
the Sunshine Act, EPSA is seeking to enforce procedural
requirements designed to protect EPSA’s concrete interest
in the outcome of hearings to which EPSA is a party. That
being the case, EPSA’s standing is not defeated by the fact
that it cannot show, with any certainty, that its or its
members’ financial interests will be damaged by the
operation of the [rule limiting the proscription against ex
parte communications in agency hearings].
Id. The holding of Electric Power follows the well-established
law of this circuit. See id. at *6.
As noted above, there is no doubt that a “person who has
been accorded a procedural right to protect his concrete interests
can assert that right without meeting all the normal standards for
redressability and immediacy.” Defenders of Wildlife, 504 U.S.
at 572 n.7. However, “in cases involving alleged procedural
errors, the plaintiff must show that the government act
performed without the procedure in question will cause a
distinct risk to a particularized interest of the plaintiff.” Wyo.
Outdoor Council v. United States Forest Serv., 165 F.3d 43, 51
(D.C. Cir. 1999) (internal quotation marks and citation omitted).
Lindsey has failed to do this. The injury that she alleges is so
attenuated that she fails to demonstrate that “the procedural
violation endangers a concrete interest . . . (apart from [her]
interest in having the procedure observed).” Defenders of
Wildlife, 504 U.S. at 573 n.8.
10
This court looks to a two-part nexus to establish the
requisite relationship between the alleged procedural
irregularity, the substantive government decision, and the
concrete interests of the procedural rights plaintiff. Consistent
with the prophylactic nature of procedural rights, a litigant
seeking to enforce such rights must, first, show that the omitted
procedure is linked to a substantive government decision or act,
see City of Waukesha v. EPA, 320 F.3d 228, 234 (D.C. Cir.
2003) (per curiam), and, second, “that the government act
performed without the procedure in question will cause a
distinct risk to [her] paricularized interest,” Wyo. Outdoor
Council, 165 F.3d at 51 (internal quotation marks and citation
omitted). Procedural requirements serve their prophylactic
function irrespective of whether the ultimate Government
decision is consistent with views that emerge through the
requisite process. Thus, under the first part of the causal nexus
requirement, “[a] plaintiff who alleges a deprivation of a
procedural protection to which he is entitled never has to prove
that if he had received the procedure the substantive result
would have been altered. All that is necessary is to show that
the procedural step was connected to the substantive result.”
Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89, 94-95
(D.C. Cir. 2002). Lindsey’s problem lies not with this first
prong, but the second. She has failed to establish any causal
relationship between the substantive Government decision that
she desires and a concrete, personal interest.
Lindsey is a parent of two children who attend John Foster
Dulles Elementary School, a public school in Chicago that has
been identified as a “school in need of improvement” under the
NCLBA. She contends that the Department violated her
procedural right to equitable representation on the Committee,
and that the Department’s implementing regulations, which
originated in the allegedly improperly constituted Committee,
increase the risk that her children will be incorrectly assessed
11
and therefore denied the full benefits of the NCLBA. See Ctr.
for Law & Educ., 315 F. Supp. 2d at 26, 29 (citing Pls.’ Opp’n).
Lindsey, however, does not contend that the disputed regulations
violate the NCLBA. Indeed, at oral argument, Lindsey’s
counsel conceded that the regulations do not violate the statute.
See Recording of Oral Argument at 7:30-:40. Lindsey’s claim,
then, is that the regulations might have been qualitatively better
if the Committee had been properly constituted and this might
have resulted in the state adopting qualitatively better
educational assessment programs which, in turn, might have
benefitted her children.
Lindsey’s argument cannot succeed. First, it is far from
clear that she has demonstrated a cognizable concrete interest
sufficient to satisfy Article III standing. Second, even assuming
that her interest in her children’s education has some content
that makes it sufficiently concrete to be cognizable, she has
failed to demonstrate that there is any causal relationship
between the disputed regulations and her asserted interest. In
short, Lindsey has failed to show that the alleged procedural
violation endangers a concrete interest apart from her interest in
having the procedure observed. I therefore agree with the
majority that she lacks standing.