Colwell v. Department of Health and Human Services

• Citation: 558 F.3d 1112
• Decision Date: 18 March 2009
• Docket Number: No. 05-55450.,05-55450.
• Parties: Clifford W. COLWELL, Jr.; John Brofman; Lynn I. Demarco; Proenglish, a nonprofit organization; The Association of American Physicians & Surgeons, a nonprofit organization, Plaintiffs-Appellants, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES; Michael O. Leavitt Secretary of Dept. of Health and Human Services, in his official capacity, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

558 F.3d 1112

Clifford W. COLWELL, Jr.; John Brofman; Lynn I. Demarco; Proenglish, a nonprofit organization; The Association of American Physicians & Surgeons, a nonprofit organization, Plaintiffs-Appellants, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES; Michael O. Leavitt Secretary of Dept. of Health and Human Services, in his official capacity, Defendants-Appellees.

No. 05-55450.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2007.

Filed March 18, 2009.

Sharon Louise Browne, Pacific Legal Foundation, Arthur B. Mark, III, Trainor Fairbrook, Sacramento, CA, for the appellants.

Tovah Calderon, Linda F. Thome, Asheesh Agarwal, U.S. Department of Justice, Civil Rights Division, Washington, DC, Dennis John Dimsey, U.S. Department of Justice, Civil Rights Division, Washington, DC, Thomas C. Stahl, Office of the U.S.

Attorney, San Diego, CA, for the appellees.

Before: HARRY PREGERSON, W. FLETCHER and MARSHA S. BERZON, Circuit Judges.

OPINION

WILLIAM A. FLETCHER, Circuit Judge:

Plaintiffs-Appellants bring a pre-enforcement challenge to Policy Guidance issued by the Department of Health and Human Services ("HHS") in August 2003 ("2003 Policy Guidance" or "Policy Guidance"). The stated purpose of the Policy Guidance is to clarify the legal obligation of recipients of federal funds to provide meaningful access for individuals with limited English proficiency ("LEP") to programs supported by those funds. The district court dismissed Plaintiffs' suit under Federal Rule of Civil Procedure 12(b)(1), holding under Article III that Plaintiffs lacked standing and that their suit was unripe. We hold that Plaintiffs have standing and that their suit is ripe under Article III, but that their suit should be dismissed as unripe under the prudential criteria articulated in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). We therefore affirm the district court's dismissal.

I. Statutory and Regulatory Background

Section 601 of Title VI of the Civil Rights Act of 1964 mandates, "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Section 602 requires that a federal agency providing financial assistance to a federal program implement the statutory mandate "by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of general objectives of the statute authorizing the financial assistance in connection with which the action is taken." Id. § 2000d-1.

There is an almost forty-year regulatory history leading up to the 2003 Policy Guidance challenged in this case. The Department of Health, Education, and Welfare ("HEW")—the predecessor to HHS and the Department of Education—promulgated general implementing regulations almost immediately after the passage of Title VI. A 1964 regulation prohibits recipients of federal financial assistance 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, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin." 45 C.F.R. § 80.3(b)(2); see Final Rule, 29 Fed.Reg. 16,298 (Dec. 4, 1964).

Beginning in the late 1960s, HEW interpreted the prohibition against discrimination based on national origin as including discrimination against LEP individuals. In 1968, HEW issued a guidance document providing that "(s)chool systems are responsible for assuring that students of a particular race, color, or national origin are not denied the opportunity to obtain the education generally obtained by other students in the system." Notice, 33 Fed.Reg. 4955 (Mar. 23, 1968). In 1970, HEW made the guidance more specific, providing that federally funded school districts were required "to rectify the language deficiency in order to open the instruction to students who had `linguistic deficiencies.'" Notice, 35 Fed.Reg. 11,595 (July 18, 1970). Four years later, the Supreme Court in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), agreed with HEW that discrimination against LEP individuals was discrimination based on national origin in violation of Title VI, holding that the denial to LEP students of Chinese ancestry of a "meaningful opportunity to participate in the educational program" of the San Francisco public schools violated § 601. Id. at 567-68, 94 S.Ct. 786.

In 1976, after following the formal notice-and-comment procedures of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, the Department of Justice ("DOJ") promulgated regulations governing "the respective obligations of federal agencies [including HHS] regarding enforcement of Title VI." 28 C.F.R. § 42.401. The DOJ regulations require that

[w]here a significant number or proportion of the population eligible to be served or likely to be directly affected by a federally assisted program (e.g., affected by relocation) needs service or information in a language other than English in order effectively to be informed of or to participate in the program, the recipient shall take reasonable steps, considering the scope of the program and the size and concentration of such population, to provide information in appropriate languages to such persons. This requirement applies with regard to written material of the type which is ordinarily distributed to the public.

Id. § 42.405(d)(1). The DOJ regulations do not mention oral translation.

In 1980, HHS issued a Notice of Decision to Develop Regulations ("NDDR") that stated that HHS was "considering requiring certain classes of recipients to conduct self-evaluations of the extent to which their beneficiary population is of limited English proficiency and the extent to which the services provided are accessible to such persons," as well as "steps that recipients should be required to take to comply with Title VI in this area," including "the use of interpreters and bilingual employees and the translation of forms and informational materials." Proposed Rules, 45 Fed.Reg. 82,972, 82,972-73 (Dec. 17, 1980). The purpose of the NDDR was to solicit public comments before the issuance of a Notice of Proposed Rulemaking ("NPRM"). Id. An NPRM, however, was never issued, and the proposed regulations were never promulgated.

In 1998, the Office for Civil Rights ("OCR") of HHS issued an internal guidance memorandum "intended to insure consistent application of Title VI standards in assessing the compliance of HHS recipients with respect to the provision of health and social services to LEP persons." OCR LEP Guidance Memorandum (Jan. 29, 1998), http://www.hhs.gov/ocr/lepfinal. htm. The guidance memorandum sets out multiple "factors for OCR staff to consider in determining whether federally-assigned providers of medical care or social services are taking steps to overcome language barriers to health care and social services encountered by LEP persons." Id. The factors to be considered included "[the provider's] size, the size of the LEP population it serves, the setting in which interpreter services are needed, the availability of staff members and/or volunteers to provide interpreter services during the hours of operation, and the proficiency of available staff members or volunteers available to provide the needed services." Id. at 8.7

In 2000, President Clinton issued an Executive Order "to improve access to federally conducted and federally assisted programs and activities for persons who, as a result of national origin, are limited in their English proficiency (`LEP')." Exec. Order No. 13,166, 65 Fed.Reg. 50,121 (Aug. 11, 2000). The Order provided:

[E]ach Federal agency shall examine the services it provides and develop and implement a system by which LEP persons can meaningfully access those services consistent with, and without unduly burdening, the fundamental mission of the agency. Each Federal agency shall also work to ensure that recipients of Federal financial assistance ... provide meaningful access to their LEP applicants and beneficiaries.

Id. The Order incorporated by reference a contemporaneously issued DOJ Policy Guidance addressed to "Executive Agency Civil Rights Officers." See Enforcement of Title VI of the Civil Rights Act of 1964—National Origin Discrimination Against Persons With Limited English Proficiency; Policy Guidance, 65 Fed.Reg. 50,123 (Aug. 16, 2000).

The DOJ Policy Guidance begins, "This policy guidance does not create new obligations but, rather, clarifies existing Title VI responsibilities." Id. at 50,123. It then provides that

[r]ecipients who fail to provide services to LEP applicants and beneficiaries in their federally assisted programs and activities may be discriminating on the basis of national origin in violation of Title VI and its implementing regulations. Title VI and its regulations require recipients to take reasonable steps to ensure "meaningful" access to the information and services they provide. What constitutes reasonable steps to ensure meaningful access will be contingent on a number of factors. Among the factors to be considered are the number or proportion of LEP persons in the eligible service population, the frequency with which LEP individuals come in contact with the program, the importance of the service provided by the program, and the resources available to the recipient.

Id. at 50,124.

In compliance with the Executive Order, HHS issued its own Policy Guidance in 2000. See Policy Guidance on the Prohibition Against National Origin Discrimination As It Affects Persons With Limited English Proficiency, 65 Fed.Reg. 52,762 (Aug. 30, 2000). The 2000 Policy Guidance was...