John W. Madsen v. Boise State University , 976 F.2d 1219 ( 1992 )

PER CURIAM.

John Madsen sues Boise State University under 42 U.S.C. § 1983, claiming handicap discrimination based on the fact that the University did not offer free handicap parking permits on campus. Madsen claims this is discrimination because all handicap parking spots on campus require a permit (and therefore a fee), whereas there is some non-handicap parking available that students may use free of charge.

Madsen made several calls to the Parking Services Office, Student Special Services, and the Vice President’s Office to inquire about the availability of free handicap permits and was told none were available. He did not actually apply for a permit; he did not seek a waiver of the $15 permit fee; he did not pay the $15 and seek a refund. OCR Letter at 3, Finding of Fact 12 (July 2, 1990).¹ Instead, he filed a complaint with the U.S. Department of Education, Office of Civil Rights, alleging that the University had discriminated against him on the basis of handicap by charging $15 for a handicap parking permit. OCR investigated the complaint, and found that the University parking policies did not comply with section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The University voluntarily took remedial measures. OCR Letter at 4. Because Madsen himself had never actually applied for a free permit, however, “OCR [was] unable to conclude that the University discriminated against [Madsen], based on handicap, with respect to the handicap parking fee.” Id.

Madsen then brought this suit seeking damages based on the fact that he had been denied a free handicap parking permit. The district court dismissed the action for failure to state a claim.

Like the OCR before us, we are confronted with the fact that Madsen never actually applied for a handicap parking permit. His lawsuit is based on the University’s policy in the abstract. There is a long line of cases, however, that hold that a plaintiff lacks standing to challenge a rule or policy to which he has not submitted himself by actually applying for the desired benefit. See, e.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-71, 92 S.Ct. 1965, 1968-70, 32 L.Ed.2d 627 (1972) (plaintiff who had never applied for membership lacked standing to challenge fraternal organization’s discriminatory membership policies); Lehon v. City of Atlanta, 242 U.S. 53, 56, 37 S.Ct. 70, 72, 61 L.Ed. 145 (1916) (non-resident who never applied for permit lacked standing to challenge licensing ordinance on ground that city officials discriminate in favor of residents in awarding licenses); Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 56 (D.C.Cir.1991) (plaintiffs lacked standing to challenge failure to extend Indian hiring preferences into job categories for which they never formally applied); Oil, Chemical & Atomic Workers Int’l Union v. Gillette Co., 905 F.2d 1176, 1177 (8th Cir.1990) (employee who has not filed benefits claim lacks standing to challenge employer’s retirement policy); Doe v. Blum, 729 F.2d 186, 189-90 (2d Cir.1984) (plaintiffs who never requested family planning services may not challenge Medicaid distribution procedures); Brown v. Sibley, 650 F.2d 760, 770-71 (5th Cir. Unit A Sept.1981) (plaintiffs who had never participated in or been excluded from program receiving federal funding lacked standing to challenge its compliance with Rehabilitation Act); Jackson v. Dukakis, 526 F.2d 64, 65-66 (1st Cir.1975) (plaintiff who did not apply for employment with state agencies lacks standing to allege discriminatory hiring practices); Interstate Commerce Comm’n v. Appleyard, 513 F.2d 575, 577 (4th Cir.) (trucker who has never applied for ICC transportation permit has “suffered no legally cognizable injury” from policy), cert. denied, 423 U.S. 840, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975).

Requiring a party to have actually confronted the policy he now challenges in court has several prudential and practical advantages. To begin with, it establishes the existence of a well-defined controversy between the parties. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) (agency action unfit for “judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties”) (emphasis added). This case illustrates how the failure to make a concrete request can leave the dispute between the parties too nebulous for judicial resolution, because the precise nature of Madsen’s asserted injury — and the appropriate relief — are unclear to us.

Madsen comes before us arguing that he suffered discrimination on the basis of handicap because he was denied a no-fee handicap parking permit. However, he does not allege that anyone else was given a no-fee parking permit. Therefore the University's failure to issue Madsen a free handicap permit cannot, by itself, be discriminatory. Madsen’s real contention is that there are some parking spaces not covered by permits where non-handicapped individuals can park for free, while there are no such handicap parking spaces on campus. See OCR Letter at 2, Finding of Fact 3. Madsen’s discrimination claim, then, is based not on the University’s failure to give him a free permit, but on its failure to release some (although not necessarily all) handicap parking spaces from the requirement of a paid handicap permit. Indeed, in response to Madsen’s OCR complaint, the University installed nine additional handicap spaces, three of which were “designated as available free of charge to handicapped persons ... who do not wish to pay the fee for a general handicap parking permit.” OCR Letter, Memorandum of Agreement, at 1. Because Madsen never made a formal request for relief from the University, we are left somewhat at sea about whether the real dispute now before us concerns a claim that he was entitled to a free permit to park in any handicap space on campus or that there should have been some handicap spaces accessible with a special, no-fee permit. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962) (one objective of standing is to “sharpen[ ] the presentation of issues upon which the court so largely depends for illumination of difficult ... questions”).

Requiring a formal application as a condition for bringing a lawsuit also serves the salutary objective of ensuring that only those individuals who cannot resolve their disputes without judicial intervention wind up in court. When, as here, the defendant is an institution, a formal application, complaint or petition for relief assures that those in charge are aware of the problem and have a fair opportunity to resolve it. See 13A Wright, Miller & Cooper, Federal Practice and Procedure § 3532.1, at 114 (1984) (“refusal to decide may itself be a healthy spur to inventive private or public planning that alters the course of possible conduct so as to achieve the desired ends in less troubling or more desirable fashion”). The OCR found that the University had in place formal channels for handling complaints regarding parking. See OCR Let-, ter at 3, Finding of Fact 16. An application for a parking permit, unaccompanied by the normal application fee, but containing a request for a waiver and an explanation for the basis therefor, would have required the University authorities to take formal action — to grant or deny the free permit — or to take some other remediar steps. The University was willing enough to adjust its policies once the OCR determined that those policies were in conflict with the Rehabilitation Act. We cannot presume that they would have been unwilling to waive or change existing policies if faced with a concrete request backed by a sound argument.

Finally, requiring a formal application as the normal prerequisite for bringing a case to court limits those who can claim injury from a policy that may not have harmed them at all, or that they may not have even known about. An application creates a record that the individual in question was, indeed, affected by the challenged policy. Admittedly, this is not a particularly strong consideration in this case, because Madsen does appear to have expressed a genuine interest in the policy in question, and apparently was responsible for the University’s decision altering it. But the facts are seldom as clear and undisputed as these. The formal application requirement — as our caselaw establishes — presents a bright line separating those who have suffered from the challenged policy and those who have not.

The only remaining question is whether Madsen’s case falls within that small class of cases where a formal application is unnecessary on the ground of futility. To begin with, it is unclear whether futility can, by itself, establish standing where it does not otherwise exist. It may well be that futility excuses some aspects of proving injury-in-fact while standing, a constitutional requirement, may not be so easily finessed. Cf. Lujan v. Defenders of Wildlife, — U.S. -, —-—, 112 S.Ct. 2130, 2144-45, 119 L.Ed.2d 351 (1992) (Article III “case and controversy” requirement limits the types of “injuries” Congress may create by statute). We need not resolve this issue because Madsen fails to allege sufficient facts supporting his futility claim. OCR’s finding — incorporated by Madsen into his complaint — is that “[t]he position of University officials knowledgeable about campus parking is that parking permit fees may not be waived based solely on an individual’s inability to afford the fee.” OCR Letter at 2, Finding of Fact 8 (emphasis added). But Madsen’s claim is not that he was entitled to free parking because he was poor, but because he was handicapped. OCR’s findings — and Mad-sen’s allegations — say nothing about the futility of applying for a waiver of the fee based on his handicap. Nor are there findings or allegations that the University had an impenetrable policy — akin to a “Whites Only” sign — which would have rendered it impervious to any efforts to educate it as to defects in its policies. Madsen does not allege similar, futile efforts by others to seek free handicap parking, or anything else that suggests the University administration would have rebuffed his argument out of hand.

It is significant, moreover, that Madsen could have applied. for a free permit or other relief and have obtained free parking while he was awaiting a ruling on his request. As the OCR noted, “[a] 30-day temporary handicap parking permit [was] available [to Madsen] at no cost.” OCR Letter at 2, Finding of Fact 7. Madsen thus cannot argue that he was harmed by the long delay inherent in seeking a waiver. Had he followed the procedure outlined by the OCR, he could have applied for a waiver and yet been entitled to park for free while waiting for the University to act on his request.

Because we conclude that Madsen lacks standing to maintain this suit we do not express any opinion on the alternate grounds for dismissal offered by the district court.

AFFIRMED.

1 . Before suing the University, Madsen filed a complaint with the Department of Education, Office for Civil Rights. The OCR issued Madsen a letter of findings and conclusions. Madsen incorporated this letter into his complaint, and we treat it as part of the record.