Center for Law and Educ. v. Department of Educ.

• Decision Date: 21 January 2005
• Docket Number: No. 04-5150.,No. 02-5227.,02-5227.,04-5150.
• Citation: 396 F.3d 1152
• Parties: The CENTER FOR LAW AND EDUCATION, et al., Appellants v. DEPARTMENT OF EDUCATION, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1152

396 F.3d 1152

The CENTER FOR LAW AND EDUCATION, et al., Appellants v. DEPARTMENT OF EDUCATION, Appellee

No. 02-5227.

No. 04-5150.

United States Court of Appeals, District of Columbia Circuit.

Argued November 23, 2004.

Decided January 21, 2005.

Reissued February 16, 2005.

Appeals from the United States District Court for the District of Columbia (Nos. 02cv00443, 02cv02414).

Stephanie E. Sawyer argued the cause for appellants. With her on the briefs were David B. Bergman and Ida L. Bostian.

Catherine Y. Hancock, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Mark B. Stern, Attorney.

Before: EDWARDS, SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion concurring in the judgement in part filed by Circuit Judge EDWARDS.

SENTELLE, Circuit Judge.

Appellants appeal from judgments of the District Court dismissing their claims on the grounds that (1) plaintiffs lacked standing to challenge the membership of a rulemaking committee convened pursuant to the No Child Left Behind Act, and (2) the Act barred judicial review of the committee's membership. Appellants contend that they have standing to pursue their challenges, and that the Act does not bar judicial review of the Secretary of Education's choice of committee members. Because we agree with the District Court's holding that Appellants lack standing to pursue their claims, we affirm the judgments of the court. Moreover, because this Court concludes that it lacks Article III jurisdiction over this case, it does not consider the alternate issue of whether judicial review is barred by the Act.

I. Background

A. The No Child Left Behind Act

On January 8, 2002, the President signed into law the "No Child Left Behind Act" ("NCLBA" or "the Act"). Pub.L. No. 107-110, 115 Stat. 1425, codified at 20 U.S.C. § 6301 et seq. The Act requires each State to implement statewide accountability systems for all public schools and their students, to define education standards, and to establish a system of assessments for measuring whether students have met those standards. 20 U.S.C. § 6311. Under the Act, a school's continued failure to make adequate yearly progress toward meeting proficiency goals will give rise to assistance and intervention, with parents of students in failing schools allowed to transfer their children to better schools. Id. at § 6316(b).

The Act authorizes the Department of Education ("DOE") to adopt regulations for the oversight of States' design of standards and assessments. 20 U.S.C. § 6571. In order to "ensure that final regulations are issued by the Secretary not later than" January 8, 2003, id. at § 6571(b)(4)(A), Congress directed the Secretary to utilize a "negotiated rulemaking process." Id. at § 6571(b)(3)(A).

The framework for promulgating and adopting regulations under the Act is laid out with specificity. First, the Secretary of Education is to "obtain the advice and recommendations" of various interest groups. Id. at § 6571(b)(1). Second, the Secretary shall "establish a negotiated rulemaking process" for the purpose of drafting regulations, id. at § 6571(b)(3)(A), and select individuals to participate in such process "from among individuals or groups that provided advice and recommendations ... in such numbers as will provide an equitable balance between representatives of parents and students and representatives of educators and education officials...." Id. at § 6571(b)(3)(B). Finally, "[s]uch process" shall be conducted before January 8, 2003. Id. at § 6571(b)(4)(A). The Secretary provides draft regulations to committee members prior to their first meeting. Id. at § 6571(b)(3)(C). The process "shall not be subject to the Federal Advisory Committee Act, but shall otherwise follow the provisions of the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561 et seq.)." Id. at § 6571(b)(4).

This incorporation of the Negotiated Rulemaking Act ("NRA") implicates jurisdictional concerns, as the NRA bars judicial review of "[a]ny agency action relating to establishing, assisting, or terminating a negotiated rulemaking committee under this subchapter," unless such review is otherwise provided by statute. 5 U.S.C. § 570. Section 6571(b)(4) does not explicitly describe selection of committee members as being included in the "process" subject to the provisions of the NRA, but it does not explicitly exclude member selection from the "process" subject to the NRA.

B. Implementation of the Act's Framework; Contemporaneous Lawsuits

On January 18, 2002, DOE published a request for advice and recommendations in the Federal Register. 67 Fed.Reg. 2770. On February 12, 2002, DOE issued an invitation for the submission of possible participants in the negotiated rulemaking. See Email from Susan B. Neuman, Ed.D., Assistant Secretary of Elementary and Secondary Education (Feb. 12, 2002), reprinted in Joint Appendix at 380-81. While the notice did stress that "[t]he nominees should be practitioners ... [i.e.], they should be significantly involved with implementing and operating Title I programs," id., it also noted that the negotiated rulemaking was to include "representatives of Federal, State and local administrators; parents; teachers and paraprofessionals; members of local school boards; and other organizations...." Id.

The committee convened by the Secretary consisted of 24 members. According to the DOE, this body consisted of six representatives of "State Administrators and State Boards of Education," four representatives of "Local Administrators and Local School Boards," four representatives of "Principals and Teachers," seven representatives of "Students" (including one teacher, a few administrators, and a representative of a Diocese), one representative of "Business Interests," and two representatives of the DOE. 67 Fed.Reg. 9223, 9224 (Feb. 28, 2002), corrected at 67 Fed.Reg. 9935 (Mar. 5, 2002). The parties do not specify whether any of the non-"parent"/"teacher" representatives are, themselves, parents or teachers. Appellants dispute the nominal makeup of this body. They claim that "only one" member represented "the interests of all public school parents and students," because some representatives actually stood in for "multiple perspectives." Brief for Appellants at 11.

The February 28 notice gave individuals and groups who "felt that his or her interests [we]re not adequately represented by this ... group" the opportunity to petition at the March 11 meeting, in person, to be seated as a negotiator. 67 Fed.Reg. 9224. Plaintiff organization Designs For Change attempted to petition by phone to be seated (claiming that travel was economically infeasible). The DOE declined to hear the phoned-in petition. Decl. of Weckstein, Joint Appendix at 121. Appellants assert that Center for Law and Education also petitioned to be seated, Brief for Appellant at 13, although no such petition is apparent from the record. Likewise, it is not apparent that plaintiff Lindsey petitioned to be seated.

Appellants filed suit in District Court on March 8, 2002. They alleged that the committee did not achieve "an equitable balance between representatives of parents and students and representatives of educators and education officials," and sought a preliminary injunction. While the suit was pending, the committee convened, reviewed the Secretary's draft regulations, and reached consensus on every issue of academic standards and assessments before it. See 67 Fed.Reg. 30,452 (May 6, 2002). The Secretary received the committee's proposed rules, and published them for public notice and comment. Id. During the comment period, the DOE convened five regional meetings for further comment. Id.

In May 2002, the District Court held that it lacked jurisdiction over Appellants' challenge on two grounds. First, it held that the NRA § 570 judicial-review bar precluded judicial review of a challenge to the committee's composition prior to promulgation of final rules. Ctr. for Law and Educ. v. U.S. Dep't of Educ., 209 F.Supp.2d 102, 106-07 (D.D.C.2002). The court noted the plaintiffs' argument that § 570 only applies to the "process" of committee deliberation, as 20 U.S.C. § 6571 provides that committee members would "participate in such process...." 209 F.Supp.2d. at 107. But the court ultimately rejected this interpretation of "process" because of "the implications of plaintiffs' theory." Id. Specifically, such interpretation would require DOE to segregate the NCLBA into "process" and "non-process" provisions, and apply the NRA accordingly; the Court saw such segregation and selective application to be implausible. Id. at 107-08. Moreover, to allow for lawsuits over selection of committee members would make compliance with the NCLBA's strict time limits infeasible. Id. at 108.

Second, the court held that review was unavailable under the Administrative Procedure Act ("APA"), because selection of the committee was not "final agency action." Id. at 111. Appellants filed an appeal, which later was stayed at Appellants' request.

In July 2002, the DOE published its final rules on state standards and assessments. 67 Fed.Reg. 45,038 (July 5, 2002) (to be codified at 34 C.F.R. pt. 200). The final rules took effect on August 5, 2002. Id.

In December 2002, Appellants filed a new complaint. They did not challenge the substance of the rules on traditional APA grounds. See 5 U.S.C. § 706. Instead they again focused on the composition of the committee, calling for the rules to be set aside and a new committee formed. On March 26, 2004, the District Court dismissed the suit for lack of jurisdiction, holding that Appellants lacked standing. Ctr. for Law and Educ. v. U.S. Dep't of Educ., 315 F.Supp.2d 15 (D.D.C.2004). The court held that DFC and CLE ("the organizational plaintiffs") failed to demonstrate a...