Opinion
Case No. 04CV1748 BTM (RBB).
March 4, 2005
ORDER GRANTING DEFENDANTS' 12(B)(1) MOTION TO DISMISS AND DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AS MOOT
On August 30, 2004 Plaintiffs filed a Complaint seeking declaratory and injunctive relief as to a Department of Health and Human Services ("HHS") guidance document entitled "Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons" ("Guidance Document"). See 68 Fed. Reg. 47,311 (Aug. 8, 2003). On September 20, 2004 Plaintiffs filed a motion for preliminary injunction against the HHS Guidance Document. On November 1, 2004 Defendants filed a motion to dismiss Plaintiffs' Complaint pursuant to 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. On December 16, 2004 the Court heard oral argument on Plaintiffs' motion for preliminary injunction and Defendants' motion to dismiss the Complaint. This order will address both Plaintiffs' and Defendants' motions.
I. BACKGROUND
Title VI of the 1964 Civil Rights Act, section 601, prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving federal financial assistance. 42 U.S.C. § 2000d. Section 602 of Title VI authorizes and directs federal agencies that are empowered to extend federal financial assistance to issue appropriate implementing regulations. Id. § 2000d-1. Pursuant to § 602, HHS promulgated regulations that prohibit recipients of HHS federal financial assistance ("HHS Recipients") from "utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin." 45 C.F.R § 80.3(b)(2). See also id. § 80.3(a)-(b).
On August 11, 2000 President Clinton issued Executive Order 13,166 directing federal agencies to develop specific guidance to ensure that persons with limited English proficiency ("LEP") receive meaningful access to federally funded services. Exec. Order No. 13,166, 65 Fed. Reg. 50,121 (August 16, 2000). To assist federal agencies in developing LEP guidance for their respective recipients of federal financial assistance, the Executive Order expressly referenced and incorporated the contemporaneously published Department of Justice ("DOJ") general LEP guidance document. See id.; 65 Fed. Reg. 50,123 (August 16, 2000). President Bush has not rescinded the Executive Order.
The DOJ general guidance document "sets forth the compliance standards that recipients must follow to ensure that the programs and activities they normally provide in English are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation of title VI. . . ." Exec. Order No. 13,166, 65 Fed. Reg. 50,121, § 1. See also 65 Fed. Reg. 50,123.
Pursuant to the Executive Order, HHS issued its own LEP Guidance Document for HHS Recipients. The HHS Guidance Document was originally published on August 30, 2000, effective immediately, with a 60 day comment period to determine what modifications, if any, were needed. 65 Fed. Reg. 52,792 (August, 30, 2000). It was republished with an additional two month comment period on February 1, 2002, but remained effective since August 30, 2000. 67 Fed. Reg. 4,968 (Feb. 1, 2000). On August 8, 2004 HHS published the newest version of the Guidance Document, effective immediately, and with a five month comment period. 68 Fed. Reg. 47,311 (Aug. 8, 2003).
The HHS Guidance Document tracks the DOJ's general LEP guidance as directed by the President. Basically, the Guidance Document creates a four factor balancing test that HHS Recipients can use to determine the extent of their Title VI obligation, if any, to provide LEP patients with meaningful access to their federally funded programs and activities. 68 Fed. Reg. 47,311, 47313-14. Plaintiff's challenge HHS's latest version of the Guidance Document.
See Exec. Order No. 13,166, 65 Fed. Reg. 50,121, § 3;compare 68 Fed. Reg. 47,311 (HHS Guidance Document) with 65 Fed. Reg. 50,123 (DOJ general LEP guidance).
II. DISCUSSION
Plaintiffs seek a preliminary injunction against the HHS Guidance Document based on their claims that: (1) HHS's Guidance Document violates the Administrative Procedure Act because it was issued without the notice and comment procedures; (2) HHS exceeded it authority because the Guidance Document improperly equates language with national origin in terms of Title VI discrimination; and (3) the Guidance Document infringes Plaintiffs' First Amendment Rights. (See Pls.' Mot. for Prelim. Inj. at 1.) Defendants have filed a motion to dismiss Plaintiff's Complaint for lack of standing, ripeness and failure to state a claim.
For the reasons expressed below, the Court hereby GRANTS Defendants' motion to dismiss Plaintiffs' Complaint pursuant to FED. R. CIV. P. 12(b)(1) and DENIES Plaintiffs' motion for preliminary injunction as moot. A. STANDING
Article III of the United States Constitution requires that a party have standing to maintain an action in federal court.Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The doctrine of standing contains three elements: (1) plaintiff must have suffered an injury in fact; (2) the injury must be fairly traceable to the challenged action by the defendant; and (3) it must be likely that the injury will be redressed by a favorable court decision. Id. at 560-61 (citations omitted). The party invoking federal jurisdiction bears the burden of establishing these elements. Id. at 561 (citations omitted). "Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof. . . ." Lujan, 504 U.S. at 561. 1. INJURY IN FACT
See also id. ("At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'") (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)).
It is well settled that an injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical. . . ." Lujan, 504 U.S. at 560 (citations and internal quotation marks omitted). Parties seeking declaratory and injunctive relief cannot rely solely on claims of past injury; rather, they must show a likelihood of future injury.O'Shea v. Littleton, 414 U.S. 488, 495-496 (1974) ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects."). See also City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983).
Defendants contend that Plaintiffs have only alleged generalized grievances and have not demonstrated a concrete injury in fact or any likely future harm. The Court agrees.
a. PHYSICIAN PLAINTIFFS
The Physician Plaintiffs (Clifford Colwell, Jr, M.D., John Brofman, M.D., Paul Lehmuller, M.D., and Lynn DeMarco, M.D) maintain that the HHS Guidance Document is really a "language rule" requiring them to hire expensive, third party interpreters and that HHS will enforce this rule against them imminently. Along this line, Plaintiffs claim that the Guidance Document creates an undue economic burden, interferes with the doctor-patient relationship, hinders their professional reputations, and violates the First Amendment as a form of compelled speech. However, Plaintiffs have failed to specifically allege a concrete and particularized injury in fact that is actual or imminent. See Lujan, 504 U.S. at 560.
i. FAILURE TO PLEAD A TITLE VI OBLIGATION PURSUANT TO THE GUIDANCE DOCUMENT
As a threshold issue, the Physician Plaintiffs have not shown that the Guidance Document actually obligates any of them to provide interpretive services in the first place. The Guidance Document sets forth factors that HHS Recipients can use to determine whether or not they have a specific obligation to LEP persons under Title VI. 68 Fed. Reg. 47,311,47313 n. 2. Specifically, the Guidance Document creates a fact-dependant standard that balances the following four factors: (1) the number or proportion of LEP persons eligible to be served or likely to be encountered by the Recipient's program, activity, or service; (2) the frequency with which the LEP individuals come into contact with the Recipient's program, activity, or service; (3) the nature and importance of the Recipient's program, activity, or service; and (4) the resources available to the Recipient and costs. Id. at 47314.
See also 68 Fed. Reg. at 47314 ("As indicated above [by the four factor balancing test], the intent of this guidance is to suggest a balance that ensures meaningful access by LEP persons to critical services while not imposing undue burdens on small business, small local governments, or small nonprofits.").
HHS directs its Recipients to "apply the . . . four factors to the various kinds of contacts that they have with the public to assess language needs and decide what reasonable steps, if any, they should take to ensure meaningful access for LEP persons."Id. (emphasis added). Moreover, the Guidance Document makes clear that "[a]fter applying the above four-factor analysis, a recipient may conclude that different language assistance measures are sufficient . . . or, in fact, that, in certain circumstances, recipient-provided language services are not necessary." Id. (emphasis added). Thus, the Guidance Document does not impose an absolute, mandatory rule that HHS Recipients must provide interpretive services to any group of LEP persons. Rather, it serves as a starting point for HHS Recipients to determine their obligation, if any, to provide interpretive services for a predominate foreign language encountered in their programs.
See 68 Fed. Reg. at 47315 ("[T]here may be circumstances where the importance and nature of the activity and number or proportion and frequency of contact with LEP persons may be low and the costs and resources needed to provide language services may be high, in which case language services for the particular activity may not be necessary.").
Neither Plaintiffs nor HHS has applied the four factor test and concluded that the Physician Plaintiffs actually have a Title VI obligation to provide interpretive services in any language to any group of LEP patients. Thus, there is no present injury in fact nor a likely future harm that the Physician Plaintiffs will have to provide and pay for interpretive services for an unspecified group of LEP patients or risk imminent sanction.See Black Faculty Ass'n of Mesa College v. San Diego Community College Dist., 664 F.2d 1153, 1155 (9th Cir. 1981) ("To satisfy the `case or controversy' requirement of Article III plaintiffs must show that they have suffered some actual or threatened injury as a result of defendants' alleged illegal conduct.") (citations omitted). As such, the Physician Plaintiffs lack standing in this case. See Lyons, 461 U.S. at 102 ("Abstract injury is not enough. The plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct. . . .") (internal quotation marks omitted).
ii. FAILURE TO PLEAD A CONCRETE INJURY OR LIKELY FUTURE INJURY
Even assuming, arguendo, that the Guidance Document creates a specific obligation on the Physician Plaintiffs to provide interpretive services in a specified language, the Physician Plaintiffs nevertheless fail to allege that they have "personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).
The Physician Plaintiffs have not alleged that they have paid any additional money to hire or provide competent interpreters and translators to any LEP persons. Nor have Plaintiffs alleged a need to look outside their existing staff to provide interpretive services in any language. It may very well be that the Physician Plaintiffs have existing bilingual staff members that could provide competent interpretive services for the predominate LEP patient group. Obviously, this would alleviate the need to spend additional money on interpretive services for that language. Similarly, Plaintiffs fail to allege that they cannot simply refer the LEP person to another physician or a different office that already has interpretive services in place for the LEP person's language. Indeed, no Plaintiff specifically alleged that he actually incurred any increased costs trying to comply with the Guidance Document at all. See Whitmore v. Arkansas, 495 U.S. 149, 155-156 (1990) ("A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing."). This does not amount to a concrete injury in fact. See Black Faculty Ass'n, 664 F.2d at 1155 (the plaintiff must "show a direct, individualized injury") (citation omitted).
This scenario is expressly contemplated by the Guidance Document itself. See 68 Fed. Reg. at 47314 ("[T]he LEP individual may be referred to another office of the recipient — or to another recipient — for language assistance.").
Likewise, the Physician Plaintiffs have not pled a concrete or particularized harm to their professional reputations or doctor-patient relationships. Again, none of the Physician Plaintiffs have actually hired an interpreter pursuant to the Guidance Document or been forced to use an interpreter — to the alleged detriment of their reputations or patient relationships.See Warth v. Seldin, 422 U.S. 490, 501 (1975) (Article III requires that "the plaintiff . . . must allege a distinct and palpable injury to himself"). In any case, the Court is hard pressed to envision how using some form of interpretive services to effectively communicate with an LEP patient can actually harm the physician's reputation in a concrete way. See Whitmore, 495 U.S. at 155 (the injury in fact "must be concrete in both a qualitative and temporal sense").
Commonsense indicates that failing to provide any interpretive services to an LEP patient who cannot understand or speak English — and therefore cannot effectively communicate with an English speaking physician — does more harm to the doctor-patient relationship than merely providing a third-party interpreter. At oral argument, Plaintiffs argued that providing interpretive services under the Guidance Document is unnecessary and unduly burdensome because physicians can rely on body language or the LEP patient's English speaking family and friends to communicate. While body language may be enough, in rare circumstances, to effectively answer a physician's question, it will not enable the physician (or the LEP patient) to effectively communicate the question. Relying on friends and family for interpretation is also problematic. First, an LEP patient might not have any family or friends to begin with or that speak English well enough to act as an interpreter. Second, as the Guidance Document makes clear:
In some circumstances, [English speaking] family members (especially children) or friends may not be competent to provide quality and accurate interpretations. Issues of confidentiality, privacy, or conflict of interest may also arise. LEP individuals may feel uncomfortable revealing or describing sensitive, confidential, or potentially embarrassing medical, law enforcement (e.g., sexual or violent assaults), family, or financial information to a family member, friend, or member of the local community. In addition, such informal interpreters may have a personal connection to the LEP person or an undisclosed conflict of interest, such as the desire to protect themselves or another perpetrator in a domestic violence matter.
See also 68 Fed. Reg. at 47318 (listing examples where a HHS Recipient should provide an interpreter for the LEP individual notwithstanding the existence of competent family members).
The Physician Plaintiffs have also failed to plead a real and immediate injury to their First Amendment rights. The Guidance Document does not force the Physician Plaintiffs to speak in any particular manner or communicate any specific message. The Guidance Document simply announces that, in certain circumstances, HHS Recipient physicians must provide an appropriate means of interpreting their message, from the manner chosen by the physician (usually English), to one that can be understood by the LEP person. Thus, even if the Guidance Document effectively requires the Physician Plaintiffs to hire interpreters, the Physicians are nevertheless free to speak in any manner or language of their choosing and convey any message they desire. That is the very nature of using an interpreter. Here, the Physician Plaintiffs have not alleged that they have actually spoken in a manner or language not of their choosing, or that they have even provided an interpreter in the first place. Thus, they have failed to allege a concrete injury to their First Amendment rights. See Lyons, 461 U.S. at 101 ("Plaintiffs must demonstrate a `personal stake in the outcome' in order to `assure that concrete adverseness which sharpens the presentation of issues' necessary for the proper resolution of constitutional questions.") (quotingBaker v. Carr, 369 U.S. 186, 204 (1962)).
Lastly, the Physician Plaintiffs have not alleged that HHS has initiated any type of Title VI enforcement proceeding (utilizing the Guidance Document) against them, or that such a proceeding is imminent. See Citizens for Honesty and Integrity in Regional Planning v. County of San Diego, ___ F.3d ___, 2005 WL 433598, *1 (9th Cir. Feb 25, 2005) (finding no basis for federal jurisdiction, in part, where "there [was] no threat of prosecution, imminent or otherwise, or evidence that the County intend[ed] to employ the local definition against [the plaintiffs]"). Plaintiffs fail to allege that HHS has even started to evaluate whether or not the Physician Plaintiffs have a Title VI obligation to LEP persons under the Guidance Document's four factor test. Moreover, Plaintiffs have not and cannot allege any real threat of enforcement. See id. ("Mere possibility of future local regulatory action challenged as unconstitutional . . . is not sufficient for declaratory judgment jurisdiction."); O'Shea, 414 U.S. at 496 (finding no case or controversy where the "perceived threat" to the plaintiffs was not sufficiently real and immediate to show an existing controversy simply because they may violate lawful criminal statutes and be subject to action they complain of"). This is especially telling in that the newest version of the Guidance Document was issued well over a year ago and the previous versions have been in effect since August 2000. See 65 Fed. Reg. 52,792 (August, 30, 2000); 67 Fed. Reg. 4,968 (Feb. 1, 2000); 68 Fed. Reg. 47,311 (Aug. 8, 2003).
At best, the Physician Plaintiffs' allegations are generalized, conjectural and hypothetical. See Lyons, 461 U.S. at 101-02 ("[T]he injury or threat of injury must be both `real and immediate,' not `conjectural' or `hypothetical.'") (citations omitted). Accordingly, the Physician Plaintiffs have failed to allege a concrete injury in fact and thus lack standing to bring their claim for declaratory and injunctive relief. See Maryland Cas. Co. v. Pacific Coal Oil Co., 312 U.S. 270, 273 (1941) (the plaintiff must "show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment"). iii. PLAINTIFF PAUL LEHMULLER FAILS TO ALLEGE THAT HE ACTUALLY RECEIVES HHS FEDERAL FUNDING AND THEREFORE LACKS INDIVIDUAL STANDING
The HHS Guidance Document only applies to actual recipients of federal financial assistance from HHS. See 68 Fed. Reg. at 47313, § III (HHS Recipients include, for example, hospitals, universities, and "[p]hysicians and other providers who receive Federal financial assistance from HHS.") (emphasis added). Here, the Complaint merely states that Dr. Paul Lehmuller "has an active practice at Nassau University Medical Center, which receives federal financial assistance from HHS." (Complaint at ¶ 6.) Dr. Lehmuller does not allege that he actually receives any federal financial assistance from HHS. Nassau University Medical Center then is the HHS Recipient, not Dr. Lehmuller himself. Thus, Dr. Lehmuller lacks individual standing in this case. b. PLAINTIFFS PROENGLISH AND AAPS
Even if only one part or program of the Recipient receives HHS's federal assistance, the Guidance Document nevertheless applies to the Recipient's entire program. 68 Fed. Reg. at 47313. However, if HHS ultimately terminated a Recipient's federal funds "based on noncompliance with Title VI or its implementing regulations, only funds directed to the particular program or activity that is out of compliance could be terminated." Id. (citing 42 U.S.C. 2000d-1).
The Court notes that Nassau University Medical Center is not a plaintiff in this case. Furthermore, Plaintiffs do not purport to argue, nor does this court find, that Dr. Lehmuller has associational standing to bring any claims on behalf of the medical center in which he works.
Plaintiff ProEnglish is a national advocacy organization dedicated to the preservation and promotion of English as a common language in American political and governmental life. (Compl. at ¶ 9.) ProEnglish states that it has been an active advocate for federal, state and local English-only laws. (Id.) Plaintiff AAPS, founded in 1943, is a national nonprofit organization of medical doctors with over 5,000 members. (Compl. at ¶ 11.) APPS states that it is dedicated to preserving freedom in the practice of medicine and opposes government interference with the doctor-patient relationship. (Id.)
An association has standing to sue in its own right based on an injury to the organization itself. Black Faculty Ass'n, 664 F.2d at 1156. Additionally, an association can have representational standing to sue based on an injury in fact to its members, where the members would have standing to sue in their own right. Id. See also Sierra Club v. Morton, 405 U.S. 727, 739 (1972) ("It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review."). The possibility of such representational standing, however, does not eliminate or attenuate the constitutional requirement of a case or controversy. Sierra Club, 405 U.S. at 739.
ProEnglish claims representational standing because two of the Physician Plaintiffs, Dr. Clifford Colwell and Dr. Lynn DeMarco, are members of ProEnglish. AAPS claims representational standing because two of the Physician Plaintiffs, Dr. Clifford Colwell and Dr. Paul Lehmuller, are members of AAPS. However, as discussed above, Dr. Lehmuller has failed to allege that he is actually a HHS Recipient and therefore lacks individual standing. Even assuming that Dr. Lehmuller is a bona fide HHS Recipient, the Physician Plaintiffs as a whole have failed to allege a concrete injury in fact and thus lack standing in their own right. Accordingly, Plaintiffs ProEnglish and AAPS do not have representational standing to sue on behalf of any of the Physician Plaintiffs who are their respective members. See Black Faculty Ass'n, 664 F.2d at 1157 ("Because neither [of the members] suffered or were threatened by any injury which could have given them standing in their own right, [the organization] cannot have associational standing to sue on their behalf.").
See also Warth, 422 U.S. at 511 ("The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.") (citation omitted).
ProEnglish and AAPS also claim they have standing in their own right. The Court disagrees. Neither ProEnglish nor AAPS has sufficiently alleged a concrete injury in fact to their organization. Moreover, the record here does not indicate that either organization suffered or is threatened by any injury.See Black Faculty Ass'n, 664 F.2d at 115. The mere fact that the Guidance Document is not aligned with the organizations' advocacy and litigation goals does not constitute a concrete and particularized injury or create a Article III case or controversy here. Warth, 422 U.S. at 501 (requiring a "distinct and palpable injury"); O'Shea, 414 U.S. at 494 ("Abstract injury is not enough."); Baker, 369 U.S. at 204 (the plaintiff must demonstrate a "personal stake in the outcome of the controversy"). Thus, Plaintiffs ProEnglish and AAPS both lack standing to sue in their own right.
C.f. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) ("If, as broadly alleged, petitioners' steering practices have perceptibly impaired HOME's ability to provide counseling and referral services for low- and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact.") (emphasis added).
2. CAUSATION AND REDRESSABILITY
To assert Article III standing, a plaintiff must satisfy the "causation" and "redressability" prongs by showing that the injury is fairly traceable to the challenged action and is likely to be redressed by a favorable court decision. Whitmore, 495 U.S. at 155. The plaintiff must clearly and specifically set forth facts sufficient to satisfy these standing requirements.Id.
Plaintiffs fail at both prongs. The obligation on HHS Recipients to refrain from discriminating against LEP persons on the basis of national origin stems from Title VI and its implementing regulations. See 42 U.S.C. § 2000d; 45 C.F.R § 80.3. Indeed, the President's Executive Order makes clear that recipients of federal funds must "ensure that the programs and activities they normally provide in English are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation of title VI of the Civil Rights Act of 1964, as amended, and its implementing regulations." Exec. Order No. 13,166, 65 Fed. Reg. 50,121, § 1. Moreover, the Executive Order directs that "recipients must take reasonable steps to ensure meaningful access to their programs and activities by LEP persons." Id.
Plaintiffs do not challenge the Executive Order or Title VI and its implementing regulations. Plaintiffs instead attack the HHS Guidance Document, issued pursuant to the Executive Order's direction. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42 (1976) (Article III "requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court."). However, as discussed earlier, the Guidance Document does not create a mandatory rule or otherwise supplement the existing non-discriminatory obligation under Title VI and its implementing regulations. The Guidance Document simply provides the framework to determine "what reasonable steps, if any, [a HHS Recipient] should take to ensure meaningful access for LEP persons." 68 Fed. Reg. at 47314.
See 68 Fed. Reg. at 47313 ("The purpose of this policy guidance is to assist recipients in fulfilling their responsibilities to provide meaningful access to LEP persons under existing law. This policy guidance clarifies existing legal requirements for LEP persons by providing a description of the factors recipients should consider in fulfilling their responsibilities to LEP persons.") (emphasis added).
Thus, even assuming Plaintiffs have demonstrated a concrete injury, it is not fairly traceable to the HHS Guidance Document itself. See Lujan, 504 U.S. at 560 ("[T]here must be a causal connection between the injury and the conduct complained of. . . ."). Nor would the relief sought redress the alleged injury. See Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) ("It is a prerequisite of justiciability that judicial relief will prevent or redress the claimed injury, or that there is a significant likelihood of such redress."); Lujan, 504 U.S. at 561 ("[I]t must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'") (quoting Simon, 426 U.S. at 38). The prayed for injunction here would merely prevent HHS from relying on the Guidance Document to determine if HHS Recipients have an obligation under Title VI to LEP persons. The underlying Title VI nondiscriminatory obligation would remain intact and HHS would still be required to enforce it (and the corresponding regulations) against HHS Recipients with or without the aid of the Guidance Document's four factor balancing test. See 42 U.S.C. § 2000d, d-1; 45 C.F.R. § 80.3. Accordingly, Plaintiffs, as a whole, lack standing.
B. RIPENESS
"The basic purpose of the ripeness doctrine `is to prevent the courts . . . from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'" Association of American Medical Colleges v. United States, 217 F.3d 770, 779 (9th Cir. 2000) (quotingAbbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977)). "The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy `ripe' for judicial resolution." Abbott Labs, 387 U.S. at 148.
Insofar as Plaintiffs have failed to allege a concrete injury in fact, Plaintiffs' claims are similarly not ripe for judicial review at this juncture. See California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1093 (9th Cir. 2003) ("Whether we frame our jurisdictional inquiry as one of standing or of ripeness, the analysis is the same."); Thomas v. Anchorage Equal Rights Com'n, 220 F.3d 1134, 1138 (9th Cir. 2000) ("The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing's injury in fact prong."). Nevertheless, even when treating ripeness as a stand alone doctrine, the Court finds that Plaintiffs' claims are not fit for judicial review and there is no hardship to the parties by withholding immediate judicial consideration. See Abbott Labs, 387 U.S. at 149 (to determine ripeness, the court must evaluate the fitness of the issues for judicial decision and the hardship to the parties); American Medical Colleges, 217 F.3d at 780.
Plaintiffs contend that because they bring a facial challenge to the HHS Guidance Document as opposed to an as applied challenge, Abbott Labs only requires them to show a credible threat of enforcement in order to ripen their claims. In Abbott Labs, the Supreme Court held that a pre-enforcement challenge to drug labeling regulations was ripe for review. Abbott Labs, 387 U.S. 136, 152-56. However, Abbott Labs was "a case in which the impact of the regulations upon the petitioners [was] sufficiently direct and immediate . . . [because it had] a direct effect on the day-to-day business of all prescription drug companies" and the challenged regulations carried "serious criminal and civil penalties." Id. at 152-53 (internal quotation marks omitted).
That is simply not the case here. The Guidance Document does not create a direct and immediate impact or affect Plaintiffs' day-to-day business. Nor does the Guidance Document create any threat of enforcement against Plaintiffs. See Citizens for Honesty and Integrity, ___ F.3d ___, 2005 WL 433598 at *1 ("Mere possibility of future local regulatory action challenged as unconstitutional or in conflict with federal law is not sufficient for declaratory judgment jurisdiction."). Plaintiffs' claims are all based on the speculative presumption that, at some point in the future, HHS may determine that Plaintiffs have a Title VI obligation to provide linguistic assistance to LEP persons pursuant to the Guidance Document, investigate and conclude that Plaintiffs are not in compliance with that obligation, and then initiate enforcement proceedings against them. See Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) ("The core question [to determine ripeness] is whether the agency has completed its decision making process, and whether the result of that process is one that will directly affect the parties."). No Plaintiff has paid any additional money to hire or provide interpretive services for any LEP persons even though the newest version of the Guidance Document has been in effect for over a year. Indeed, Plaintiffs themselves have not even determined that, under the Guidance Document's four factor test, they actually have a Title VI obligation to provide such services. See Ukiah Valley Medical Ctr. v. Fed. Trade Comm'n, 911 F.2d 261, 264 (9th Cir. 1990) ("The general rule is that administrative orders are not final and reviewable `unless and until they impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process.'") (quoting Chicago Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)).
Municipality of Anchorage, 980 F.2d at 1325-1326 ("[U]nder the traditional hardship prong, it must be shown that withholding review of the issue would result in direct and immediate hardship and would entail more than possible financial loss.") (internal quotation marks omitted).
HHS, as well, has not yet determinated that Plaintiffs do in fact have a Title VI obligation to LEP persons to provide interpretive services under the Guidance Document framework.See Sierra Club v. Nuclear Regulatory Comm'n, 825 F.2d 1356, 1362 (9th Cir. 1987) ("We will not entertain a petition where pending administrative proceedings or further agency action might render the case moot and judicial review completely unnecessary.") (citation omitted). Even if HHS had, the Title VI regulations set forth specific protocol that HHS must follow in initiating enforcement proceedings against a HHS Recipient for noncompliance. See American Medical Colleges, 217 F.3d at 780 ("[E]ven final agency rules may not be fit for review unless the rule has been concretely applied to the plaintiff.") (citation omitted).
After an initial investigation, HHS must first try to secure compliance through voluntary and informal means. 45 C.F.R. § 80.8(a), (d). If that fails, HHS must hold a hearing, allow the Recipient legal counsel and an opportunity for administrative appeal. See 45 C.F.R. § 80.8(c), 80.9(c), 80.10. HHS must then file a written report with both the House and Senate, after which there is a 30-day review period before federal funding can be revoked. 45 C.F.R. § 80.8(c). Finally, all HHS Recipients are entitled to judicial review. 45 C.F.R. § 80.11. This established protocol further safeguards against any immediate impact on Plaintiffs' day to day business. See National Park Hospitality Ass'n v. Department of Interior, 538 U.S. 803, 810 (2003) ("conclud[ing that] the case was not ripe for judicial review because the impact of the regulation could not `be said to be felt immediately by those subject to it in conducting their day-to-day affairs'") (quoting Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158, 164 (1967)); Municipality of Anchorage v. United States, 980 F.2d 1320, 1326 (9th Cir. 1992) ("[P]laintiffs have failed to show that they will suffer any immediate, direct, or significant hardship . . . [where the policy] imposes no present, affirmative duties on plaintiffs, requires no immediate changes in plaintiffs' conduct, and does not impact, in any way, plaintiffs' day-to-day affairs.").
At oral argument, Defendants stated that HHS has never moved beyond the voluntary compliance stage with any HHS Recipient. Moreover, HHS has never actually prosecuted a HHS Recipient for non-compliance with their Title VI obligation made clear under the Guidance Document, let alone revoked a Recipient's federal funding. From any standpoint, even the threat of enforcement is far off and no hardship exists sufficient to compel immediate review. See Toilet Goods Ass'n, 387 U.S. at 164 (judicial review is "likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of the generalized challenge made here"); Municipality of Anchorage, 980 F.2d at 1325 ("While plaintiffs insist that withholding review of the MOA will impose serious hardships on them, we are unconvinced that it will inflict the kind of hardship that compels immediate review."). Thus, Plaintiffs claims are not ripe for review. III. CONCLUSION AND ORDER
C.f. Abbott Labs 387 U.S. at 152 (the challenged regulations put the plaintiffs to a real and immediate dilemma: "[e]ither they must comply with the every time requirement and incur the costs of changing over their promotional material and labeling or they must follow their present course and risk prosecution.") (internal quotation marks omitted).
See also Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 891 (1990) (agency action is not ordinarily considered ripe for review under the APA "until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him"); Municipality of Anchorage, 980 F.2d at 1326 ("Simply stated, plaintiffs have failed to demonstrate any hardship that outweighs our and the agencies' interest in delaying review.").
The Court hereby GRANTS Defendants' motion to dismiss Plaintiffs' Complaint pursuant to FED. R. CIV. P. 12(b)(1) for lack of standing and ripeness. Accordingly, Plaintiffs' motion for preliminary injunction is DENIED as moot. The Clerk shall enter judgment dismissing the Complaint without prejudice.
Because the Court dismisses Plaintiffs' Complaint for lack of jurisdiction, the Court need not reach whether Plaintiffs have failed to state a claim for violation of the First Amendment pursuant to FED. R. CIV. P. 12(b)(6).
IT IS SO ORDERED.