Roe #2 et al. v. Ogden et al

• Decision Date: 19 June 2001
• Docket Number: No. 00-1302,00-1302
• Citation: 253 F.3d 1225
• Parties: Page 1225 253 F.3d 1225 (10th Cir. 2001) JOHN ROE #2; THE RALPH TIMOTHY POTTER CHAPTER OF THE AMERICAN CIVIL LIBERTIES UNION AT THE UNIVERSITY OF DENVER COLLEGE OF LAW, Plaintiffs - Appellants, v. ALAN OGDEN, in his official capacity as the Executive Director of the Colorado State Board of Law Examiners; and MELANIE BACKES, DEBORAH BIANCO, SHERRY A. CALOIA, DAVID DIFFEE, JAY E. FERNANDEZ, SHARI FRAUSTO, SUSAN M. HARGLEROAD, STEVEN J. HENSEN, GARY JACKSON, DORIS G. KAPLAN, and HELEN STONE, in their official capacities as members of the Bar Committee of the Colorado State Board of Law Examiners, Defendants - Appellees. UNITED STATES COURT OF APPEALS TENTH CIRCUIT
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1225

253 F.3d 1225 (10th Cir. 2001)

JOHN ROE #2; THE RALPH TIMOTHY POTTER CHAPTER OF THE AMERICAN CIVIL LIBERTIES UNION AT THE UNIVERSITY OF DENVER COLLEGE OF LAW, Plaintiffs - Appellants v ALAN OGDEN, in his official capacity as the Executive Director of the Colorado State Board of Law Examiners; and MELANIE BACKES, DEBORAH BIANCO, SHERRY A. CALOIA, DAVID DIFFEE, JAY E. FERNANDEZ, SHARI FRAUSTO, SUSAN M. HARGLEROAD, STEVEN J. HENSEN, GARY JACKSON, DORIS G. KAPLAN, and HELEN STONE, in their official capacities as members of the Bar Committee of the Colorado State Board of Law Examiners, Defendants - Appellees.

No. 00-1302

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

JUNE 19, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 99-M-967)

[Copyrighted Material Omitted] Stephen G. Masciocchi (David D. Powell, Jr. and Susannah Pollvogt, Holland & Hart, L.L.P. and Mark Silverstein, American Civil Liberties Union Foundation of Colorado, with him on the briefs), Denver, Colorado, for Appellants.

Dianne E. Eret, Assistant Attorney General(and Ken Salazar, Attorney General, with her on the brief), Denver, Colorado, for Defendants - Appellees.

Before KELLY, MCWILLIAMS, and REAVLEY^*, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

John Roe #2 and the Ralph Timothy Potter Chapter of the American Civil Liberties Union at the University of Denver College of Law (collectively, the "Students") appeal from the district court's dismissal of their complaint. The district court concluded that the Students lacked standing, that their claims were not ripe, and that abstention was appropriate. We have jurisdiction under 28 U.S.C. 1291 and reverse. The Students' action should proceed to the merits, on which we express no opinion.

I. Background

The Students, including John Roe #2, are members of the Potter Chapter of the ACLU and students or recent graduates of the University of Denver College of Law. Aplt. App. at 211, 1 (Second Amended Complaint); Aplt. Notice of Factual Developments Pending Appeal at 2, 3; University of Denver College of Law Web Page, May 2001 Graduate List, at http://www.law.du.edu/registrar/graduation/Spring_2001_Graduation/Grad_List/ (last visited June 1, 2001).² The bar application asks over forty questions. Aplt. App. at 216, 16. Three questions pertain to the applicant's past treatment for mental and emotional health disorders, treatment for drug, narcotic, or alcohol abuse, and addictions to drugs, narcotics, or alcohol. Id. at 217-18, 19. If an applicant answers "yes" to any of the three questions, the applicant is required to provide documentation and further explain the condition for which the applicant was treated. Id. at 57 (application instructions). A letter will be sent to persons identified by the applicant as having information regarding the applicant's treatment. Id. at 218, 21 (Second Amended Complaint). The applicant is also required to sign an "Authorization and Release" form. Id. at 20. The form authorizes the Board to inspect and copy information related to the applicant's treatment. Id. The Board may also "hold a hearing and require the applicant to attend and respond to further questions about his or her history of drug and alcohol dependency, history of treatment for drug or alcohol problems, or hospitalization for a mental health issue." Id. 23; see also Colo. R. Governing Admission to the Bar 201.9-10. John Roe #2 graduated in May, University of Denver College of Law Web Page, May 2001 Graduate List, at http://www.law.du.edu/registrar/graduation/Spring_2001_Graduation/Grad_List/ (last visited June 1, 2001), and will take the bar examination in July. Aplt. Notice of Factual Developments Pending Appeal at 2, 3. In his bar application, John Roe #2 indicated that he had received treatment for alcohol, drug or narcotic use within the past 10 years. Id. Other Students have applied or will apply for the bar. Aplt. App. at 214, 10a (Second Amended Complaint). They, too, have histories of treatment for a mental or emotional health disorder or alcohol or drug use. Id.

The Students alleged that "these inquiries and investigations violate the ADA's prohibition of discrimination against individuals who are disabled, have a history of disability, or are perceived to be disabled." Id. at 212, 3; see also id. at 221-22, 35-36, They also asserted under 42 U.S.C. 1983 that the "inquiries and investigations violate their constitutional right to privacy." Id. at 212, 3, 224, 43-44. The Students sought a declaratory judgment and a preliminary and permanent injunction against Alan Ogden, Executive Director of the Colorado State Board of Law Examiners (the "Board") and members of the Bar Committee of the Board in their official capacities. Id. at 215, 12-13, 225, 48.

The district court dismissed the action without prejudice on three grounds: standing, ripeness, and abstention. Aplt. App. at 247. On appeal, the Students argue that the dismissal was in error. We address each of the bases upon which the district court dismissed the Students' action in turn. We also address the Board's argument that the Students' action is barred by the Eleventh Amendment.

II. Discussion

A. Standing

The district court concluded that John Roe #2 lacked standing because, having not yet graduated from law school or passed the bar exam, he did not face imminent injury. Id. at 253. For this same reason, the district court concluded that the Potter Chapter lacked associational standing. Id. at 254. According to the district court, the Students' injuries were not redressible: "If this court were to enjoin the defendants from continuing to ask the three challenged questions, the Bar Committee may and presumably would find other means to make the inquiries necessary to determine the fitness of applicants." Id. at 251. The district court erred in holding that the Students lacked standing.

1. John Roe #2's Standing

We review the question of standing de novo. Sac & Fox Nation of Mo. v. Pierce, 213 F.3d 566, 571 (10th Cir. 2000), cert denied, 121 S. Ct. 1078 (2001). The constitutional requirements for standing are (1) an injury in fact, (2) a causal connection between the injury and the challenged act and (3) a likelihood that the injury will be redressed by a favorable decision. Vermont Agency of Natural Res. v. United States ex. rel. Stevens, 529 U.S. 765, 771 (2000). The alleged injury must be concrete and particularized and imminent or actual, as opposed to conjectural or hypothetical. 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." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citations and internal quotations omitted) (alteration in original).

i. Injury-in-fact

John Roe #2 faces imminent injury.³ He has graduated and will sit for the bar exam in July. Since he has disclosed his past treatment for alcohol, drug, or narcotic use in his application, John Roe #2 will be subject to Board investigation, which he believes violates the ADA and Constitution. The fact that John Roe #2 could fail the bar exam does not defeat standing because John Roe #2 has alleged more than "some day intentions." Id. at 564 (internal quotations). A plaintiff is required only to allege concrete plans; id., he is not required to successfully execute those plans. See Buchwald v. Univ. of New Mexico Sch. of Med., 159 F.3d 487, 493 (10th Cir. 1998) (plaintiff required to make "an adequate showing that she will re-apply to [medical school]" to have standing (citation and internal quotations omitted)).

Bryant v. Yellen, 447 U.S. 352, 366-68 (1980), cited with approval by Clinton v. City of New York, 524 U.S. 417, 432 (1998), supports this conclusion. In Bryant, the district court held that privately owned farmland in Imperial Valley in California was not subject to a provision in the Boulder Canyon Project Act, 43 U.S.C. 617, which "limited water deliveries from reclamation projects to 160 acres under single ownership." Id. at 355. Certain Imperial Valley residents sought to intervene and appeal the decision. Id. at 366. They asserted standing on the basis that they desired to purchase farmland in Imperial Valley that might become available if the acre limitation was held to be applicable. Id. However, the residents "could not with certainty establish that they would be able to purchase excess lands if [the provision] were held applicable." Id. at 367. It was uncertain whether owners of excess land would sell, whether the residents had sufficient financial resources to purchase the land, and whether the residents would be outbid by other potential purchasers. Id. at 367 & n.17. These uncertainties notwithstanding, the residents had standing because it was likely that the residents would purchase the excess lands if the acre limitation was applicable. Id. at 368. The facts in this case are far more compelling. Having invested three years of time and resources to complete law school, John Roe #2 will sit for the bar exam. Furthermore, it is likely that John Roe #2 will pass the bar exam. Over 80% of University of Denver College of Law students who have taken the Colorado bar exam for the first time in recent years have passed. Colorado Supreme Court Board of Law Examiners' Web Page, Pass/Fail Rates by Law School: February 2001 Bar Examination, at http://www.courts.state.co.us/ble/results/LawSchoolStats0102.htm (last visited June 1, 2001); Colorado Supreme Court Board of Law Examiners' Web Page, Pass/Fail Rates by Law School: July 2000 Bar Examination, at http://www.courts.state.co.us/ble/results/LawSchoolStats0007.htm (last visited June 1, 2001).

ii. Redressibility

John Roe #2's injury is redressible. An injury is redressible if "the prospect of obtaining relief from the injury as a...