Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 85-5156

• Decision Date: 02 May 1986
• Docket Number: No. 85-5156,85-5156
• Citation: 252 U.S.App.D.C. 249,789 F.2d 931
• Parties: ACTION ALLIANCE OF SENIOR CITIZENS OF GREATER PHILADELPHIA, et al., Appellants v. Margaret HECKLER, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 931

789 F.2d 931

252 U.S.App.D.C. 249

ACTION ALLIANCE OF SENIOR CITIZENS OF GREATER PHILADELPHIA,

et al., Appellants

v.

Margaret HECKLER, et al.

No. 85-5156.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 23, 1986.

Decided May 2, 1986.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-00285).

Burton D. Fretz, with whom Bruce M. Fried, was on brief, for appellants.

Robert Wolff, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Atty. Gen., Joseph E. diGenova, U.S. Atty., and John F. Cordes, Jr., Atty., Dept. of Justice, were on brief, for appellees.

Before EDWARDS and GINSBURG, Circuit Judges, and FAIRCHILD, ^* Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This case presents a challenge to the Secretary of Health and Human Services' implementation of the Age Discrimination Act, 42 U.S.C. Sec. 6101 et seq. (1982) (ADA or Act). The district court dismissed the action on the grounds that the plaintiffs lacked standing to pursue some of their claims and that the remainder of the case had become moot. We affirm in part, reverse in part, and remand.

I.

The Age Discrimination Act was passed in 1975. See Age Discrimination Act of 1975, Pub. L. No. 94-135, 89 Stat. 728 (codified as amended at 42 U.S.C. Sec. 6101 et seq. (1982)). The Act's purpose is "to prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance." 42 U.S.C. Sec. 6101 (1982). ¹ The ADA is implemented by the Secretary of Health and Human Services (HHS), ² whose initial responsibility is to issue a set of government-wide regulations; these general regulations, upon publication, serve as a model for the drafting of agency-specific regulations by each federal agency that administers any program of financial assistance. See id. at Sec. 6103(a). Because it is one such agency, HHS must also issue its own specific regulations. To promote consistent implementation of the Act, all agency-specific regulations, once formulated, are submitted to the Secretary of HHS for approval. See id. at Sec. 6103(a)(4).

The Secretary published the final, government-wide ADA regulations in June 1979 and the final, HHS-specific regulations in December 1982. See 44 Fed.Reg. 33776 (1979) (to be codified at 45 C.F.R. Sec. 90) (government-wide regulations); 47 Fed.Reg. 57858 (1982) (to be codified at 45 C.F.R. Sec. 91) (HHS-specific regulations). At the time appellants commenced this action, in February 1983, the Secretary had not yet acted on proposed regulations that nineteen other agencies had submitted for approval. See Action Alliance of Senior Citizens v. Heckler, No. 83-0285, slip op. at 3, 6 (D.D.C. Dec. 28, 1984), reprinted in Joint Appendix (J.A.) at 388-91.

The complainants--plaintiffs in the district court, appellants here--are four organizations that endeavor, through informational, counseling, referral, and other services, to improve the lives of elderly citizens (collectively, AASC). AASC comprises both local and national groups with a combined membership of over one hundred thousand people. See Complaint at paras. 3-6, reprinted in J.A. at 6-7. The complaint AASC filed in the district court challenged both the content of the HHS-specific regulations and the Secretary's failure to act on regulations proposed by other agencies.

AASC claimed that the HHS-specific regulations were substantively inconsistent with the ADA and with the government-wide regulations. The complaint featured three differences between the government-wide regulations and the HHS regulations. First, the HHS regulations omit the requirement--included in the general regulations--that recipient programs provide HHS with a self-evaluation listing all the age distinctions they utilize and the justification for each (the self-evaluation provision). Second, the HHS regulations require recipients to provide compliance information only if HHS asks for it; these agency-specific regulations are silent on when, if ever, HHS should request such information. By contrast, the government-wide regulations directed the agency to require the provision of compliance information by recipients (the compliance information provision). And third, the HHS regulations include a provision, absent from the general regulations, immunizing from attack under the ADA the age distinctions currently contained in HHS rules (the shield clause). ³ In addition to these substantive objections, AASC alleged that the HHS regulations were procedurally deficient under the Administrative Procedure Act, 5 U.S.C. Sec. 706 (1982) (APA), and that the Secretary's failure to act on the regulations submitted by other agencies violated the ADA and constituted action unreasonably delayed or withheld within the meaning of the APA, 5 U.S.C. Sec. 706(1). See Complaint at paras. 17-20, 23-32, reprinted in J.A. at 10-15.

The defendants in the district court--the Secretary of HHS and the Director of the Office of Management and Budget ⁴--moved to dismiss on the ground that the plaintiffs lacked standing to maintain the action. The district judge assigned the case to a magistrate. The magistrate concluded that the plaintiffs lacked standing to challenge the HHS regulations because their complaint did not allege sufficient "injury in fact" stemming from those regulations. The magistrate further found, however, that the requisite "injury in fact" had been alleged with respect to the Secretary's failure to act on other agencies' regulations; he therefore recommended retaining that part of the case and dismissing the claims concerning the HHS regulations. See Magistrate's Report and Recommendations, No. 83-0285, slip op. at 23-24 (D.D.C. Mar. 2, 1984) [hereinafter cited as Magistrate's Report], reprinted in J.A. at 207-08. The district court adopted the magistrate's recommendations without opinion. See Action Alliance of Senior Citizens v. Heckler, No. 83-0285 (D.D.C. Mar. 21, 1984) (order on defendants' motion to dismiss). ⁵

HHS, some four months later, again moved to dismiss the case, this time on the ground that the remaining issues had become moot. HHS offered letters demonstrating that during the pendency of the suit, the Secretary had approved--either finally or conditionally--all the regulations submitted to HHS and had requested submissions from agencies that had not yet issued proposed regulations. See Defendant's Motion to Dismiss, Exhibits 1 and 2 (D.D.C. July 18, 1984), reprinted in J.A. at 270-328. Based upon these representations, the district court dismissed the case as moot. See Action Alliance, slip op. at 9, reprinted in J.A. at 394.

II.

We address first the district court's dismissal of the claims concerning the HHS-specific regulations. The magistrate concluded that AASC lacked standing to press these claims because the organizations had not alleged sufficiently concrete "injury in fact" arising from the particular HHS actions they challenged. See Magistrate's Report at 16-19, reprinted in J.A. at 201-03. The Secretary argues, in addition, that AASC's challenges to HHS's own regulations are premature--not yet ripe for review. See Brief for Appellees at 31-37. We hold that appellants do have standing and that their claim concerning one facet of the HHS-specific regulation is fully ripe for review.

Summarizing Article III and prudential limitations, this court has stated: "[T]o establish standing to challenge an agency's handling of its affairs a plaintiff must plausibly (1) allege injury in fact derived from the agency's action or inaction [and remediable by the court's order], and (2) assert that the injury is arguably within the zone of interests protected or regulated by the law on which the complaint is founded." Capital Legal Foundation v. Commodity Credit Corp., 711 F.2d 253, 259 (D.C.Cir.1983); see also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The first specification encompasses three constitutional components--injury in fact, causation, and redressability the second is a prudential limitation. See Von Aulock v. Smith, 720 F.2d 176, 180-81 (D.C.Cir.1983).

In this case, HHS focuses its standing objection on the first of the three constitutional components--injury in fact. Case law instructs that the alleged "injury in fact" will not suffice if it is too speculative, see O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), but it need not be large or intense; an "identifiable trifle," the Supreme Court has said, is sufficient to meet the constitutional minimum. See United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973).

The appellants before us devote themselves to the service of senior citizens and rest their claims on programmatic concerns, not on wholly speculative or purely ideological interests in the agency's action. See Sierra Club v. Morton, 405 U.S. 727, 739-40, 92 S.Ct. 1361, 1368-69, 31 L.Ed.2d 636 (1972); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 39-40, 96 S.Ct. 1917, 1924-25, 48 L.Ed.2d 450 (1976). Their complaint identifies concrete organizational interests detrimentally affected by the particular HHS regulatory dispositions they challenge.

The government-wide regulations HHS published afford interested individuals and organizations a generous flow of information regarding services available to the elderly. AASC asserts that two of the challenged dispositions in the HHS-specific regulations--the elimination of the self-evaluation requirement and the reduction of compliance reports--significantly restrict that flow. The information secured by the general regulations, but cut short by the HHS-specific...