ProEnglish v. Bush

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.