United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 17, 1999 Decided January 11, 2000
No. 98-5463
American Immigration Lawyers Association, et al.,
Appellants
v.
Janet Reno, Attorney General
of the United States, et al.,
Appellees
Consolidated with
Nos. 98-5464 & 98-5466
Appeals from the United States District Court
for the District of Columbia
(97cv00597)
(97cv01229)
(97cv01237)
---------
J.J. Gass argued the cause for appellants. With him on the
briefs were Judy Rabinovitz, Roderic V.O. Boggs, Robert
Rubin, Robert E. Juceam, David I. Gelfand, and Karen T.
Grisez. Adelia S. Borrasca and Jerome G. Snider entered
appearances.
Nancy L. Perkins was on the brief for amicus curiae The
Lawyers Committee for Human Rights.
Michele E. Beasley was on the brief for amicus curiae
Women's Commission for Refugee Women and Children.
Linda S. Wendtland, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the briefs were
David W. Ogden, Acting Assistant Attorney General, Donald
E. Keener, David J. Kline, Ellen Sue Shapiro, and Teresa A.
Wallbaum, Attorneys.
Before: Ginsburg, Henderson, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: The Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.
L. No. 104-208, 110 Stat. 3009, established a system for
expediting the removal of aliens who arrive at the border but
are not eligible for admission. Congress permitted judicial
review of the new system, but set a deadline: all actions had
to be "filed no later than 60 days after the date the chal-
lenged section, regulation, directive, guidance, or procedure
... is first implemented."1 8 U.S.C. s 1252(e)(3)(A)-(B).
Ten organizations and twenty aliens, some added after the
deadline expired, brought constitutional, statutory, and inter-
national law challenges after the Attorney General issued
__________
1 8 U.S.C. s 1252 provides the exclusive jurisdictional basis for
challenging the removal procedures: "Except as provided in this
section and notwithstanding any other provision of law, no court
shall have jurisdiction to hear any cause or claim by or on behalf of
any alien arising from the decision or action by the Attorney
General to commence proceedings, adjudicate cases, or execute
removal orders against any alien under this Act." 8 U.S.C.
s 1252(g).
regulations under the new law. The district court disposed of
the cases mainly on jurisdictional grounds, although it did
reject the claims of two of the alien plaintiffs on the merits.
See American Immigration Lawyers Ass'n v. Reno, 18
F. Supp. 2d 38 (D.D.C. 1998). We hold that the organization-
al plaintiffs lacked standing to litigate the rights of aliens not
parties to the lawsuits and that the judgment of the district
court should be affirmed in all other respects.
I
A
Every person who arrives at a United States port of entry
undergoes primary inspection during which immigration offi-
cers review the individual's documents. In fiscal year 1996,
the Immigration and Naturalization Service conducted 475
million primary inspections. 62 Fed. Reg. 10,312, 10,318
(1997). Returning citizens produce their passports; aliens
must show a valid visa or other entry document. If the
immigration officer is unable to verify an alien's admissibility,
the alien is referred to secondary inspection for a more
thorough examination of eligibility to enter.
Before IIRIRA, if immigration officials could not verify an
alien's admissibility at secondary inspection, the alien was
entitled to defend his eligibility at an exclusion hearing before
an immigration judge. See 8 U.S.C. ss 1225(b), 1226(a)
(1994). The alien had the right to counsel at the hearing, id.
s 1362(a), could examine witnesses, id., and was provided
with a list of persons providing free representation, 8 C.F.R.
s 236.2(a) (1994). If the ruling were adverse, the alien could
appeal to the Board of Immigration Appeals and, ultimately,
federal court. See 8 U.S.C. ss 1105a(b), 1226(b) (1994).
IIRIRA reformed the secondary inspection process in or-
der to "expedite the removal from the United States of aliens
who indisputably have no authorization to be admitted...."
H.R. Conf. Rep. No. 104-828, at 209 (1996). To that end, the
statute provides that "if an immigration officer determines
that an alien ... is inadmissible" because the alien possesses
fraudulent documentation, see 8 U.S.C. s 1182(a)(6)(C), or has
no valid documentation, see id. s 1182(a)(7), "the officer shall
order the alien removed from the United States without
further hearing or review...." Id. s 1225(b)(1)(A)(i). An
alien removed for these reasons is barred from reentry for a
period of five years. Id. s 1182(a)(9)(A)(i).
The statute exempts from immediate removal aliens who
"indicate[ ] either an intention to apply for asylum ... or a
fear of persecution." Id. IIRIRA directs immigration offi-
cers to refer such aliens to an interview with an asylum
officer. See id. s 1225(b)(1)(A)(ii). If the asylum officer
"determines that an alien does not have a credible fear of
persecution, the officer shall order the alien removed from
the United States...." Id. s 1225(b)(1)(B)(iii)(I).2 Upon the
alien's request, an immigration judge will review the removal
decision. See id. s 1225(b)(1)(B)(iii)(III). The alien is given
an opportunity to be heard and questioned in an expedited
proceeding: "the review shall be concluded ... to the maxi-
mum extent practicable within 24 hours, but in no case later
than 7 days after the [asylum officer's] determination...."
Id. If the immigration judge overturns the asylum officer's
finding, the alien is given a hearing under 8 U.S.C. s 1229a.
If the immigration judge affirms the asylum officer's finding,
the alien is subject to summary removal.3
B
The Attorney General issued Interim Regulations, effective
April 1, 1997, setting forth procedures implementing the
summary removal system. See, e.g., 8 C.F.R. ss 208.30, 235.
This started the statutory time limit for judicial review run-
ning. Any action challenging the statute or the Interim
Regulations had to be filed no later than sixty days after
April 1. See 8 U.S.C. s 1252(e)(3)(B). Organizations who
represent and assist aliens seeking to enter the United States
filed two complaints challenging IIRIRA and the Interim
__________
2 If the asylum officer finds that there is a credible fear of
persecution, the alien is given a full hearing under 8 U.S.C. s 1229a.
3 At this juncture, habeas corpus review on a limited number of
issues is available. See id. s 1252(e)(2).
Regulations as they apply to asylum-seeking aliens.4 The
cases--American Immigration Lawyers Ass'n (AILA) and
Liberians United for Peace and Democracy (LUPD)--were
consolidated. A few of the same organizations joined with
the Dominican American National Foundation (Miami area)
and aliens to assert claims against the summary removal
system as it applied to non-asylum seekers. This third
case--Wood--focused on determinations, at the secondary
inspection stage, that aliens lacked proper documentation.
The AILA and LUPD complaints challenged the same stage
of summary removal, but also focused on the "fear of persecu-
tion" determination and the procedures available to asylum
seekers. In the Wood case, an amended complaint filed on
August 28 added individual plaintiffs who were removed after
the sixty-day deadline. The district court consolidated the
Wood and AILA/LUPD cases.
The complaints raised a host of contentions. Some plain-
tiffs claimed that IIRIRA violated the due process and equal
protection rights of aliens seeking to enter the United States,
that the Attorney General's regulations were not consistent
with IIRIRA, and that summary removal violated internation-
al treaties protecting children and refugees. Plaintiffs rested
their due process and statutory claims on the following allega-
tions: the summary removal procedures banned communica-
tion with family, friends, or attorneys; failed to notify aliens
of the reasons for removal and the procedures available for
challenging removal; failed to provide adequate language
interpretation; and limited review of removal decisions.
__________
4 The organizations, each of which is an appellant, are the Ameri-
can Immigration Lawyers Association, a 4500 member association
of immigration lawyers, and the following groups which assist either
particular nationalities of aliens or aliens arriving in a particular
area of the United States: Florida Immigration Advocacy Center;
Human Rights Project (Los Angeles area); Liberians United for
Peace and Democracy; National Coalition for Haitian Rights; New
York Immigration Coalition; Northern California Coalition for Im-
migration Rights; World Tamil Coordinating Committee; and
Washington Lawyers' Committee for Civil Rights and Urban Af-
fairs.
Plaintiffs also challenged the procedures as applied to specific
individual plaintiffs, claiming that immigration officials were
not following IIRIRA or the Interim Regulations. The only
claim asserted on behalf of the organizations in their own
right was that the First Amendment entitled their members
to have access to persons subject to summary removal proce-
dures.
The district court dismissed each of the complaints. With
respect to individuals who missed the statutory deadline, the
court dismissed for lack of jurisdiction, pursuant to Federal
Rule of Civil Procedure 12(b)(1). Two remaining individual
plaintiffs--Perlina Perez and Flor Aquino de Pacheco, both
non-asylum seekers--filed within the sixty-day window, but
the court dismissed their claims for failure to state a cause of
action, under Federal Rule of Civil Procedure 12(b)(6).5 See
18 F. Supp. 2d at 46-47, 52-60. The court found that the
Attorney General's regulations actually provided more proce-
dural safeguards than the statute required, id. at 52-57, that
the individuals did not have sufficient contacts with the
United States to invoke due process rights, id. at 58-60, and
that they failed to make the prima facie case of discrimina-
tion necessary for their equal protection challenge, id. at 60.6
With respect to the validity of the regulations "as applied" to
these plaintiffs, the court held that IIRIRA provided review
only for written procedures and thus there was no jurisdiction
to challenge the particular practices of immigration officials.7
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5 Plaintiffs did not challenge the constitutionality of the sixty-day
limit, 18 F. Supp. 2d at 47 n.8, perhaps in recognition of the
longstanding principle that determining the conditions governing
the admission of aliens is "so exclusively entrusted to the political
branches of government as to be largely immune from judicial
inquiry or interference." Bruno v. Albright, 1999 WL 1082957, at
*5 (D.C. Cir. Dec. 3, 1999) (quoting Harisiades v. Shaughnessy, 342
U.S. 580, 588-89 (1952)).
6 Perez and Aquino appeal only the dismissal of their statutory
claims. See Opening Brief of Plaintiffs-Appellants at 14.
7 The district court did not reach the international law claim
because it found that neither the "organizational [n]or individual
Id. at 57-58 (citing 8 U.S.C. s 1252(e)(3)(A)).
As to the organizational plaintiffs, the district court recog-
nized, and the government conceded, standing for their First
Amendment claim. See 18 F. Supp. 2d at 50. The court
rejected that claim on its merits. See id. at 60-62 (citing
Ukranian-American Bar Ass'n, v. Baker, 893 F.2d 1374 (D.C.
Cir. 1990)). With regard to the other claims, the court found
that the organizations alleged "speculative" injuries and did
"not meet the causation and redressability requirements" of
Article III standing. See 18 F. Supp. 2d at 49-50.
II
A
As the cases now stand, we have appeals by the individual
aliens who filed late and for that reason had their claims
dismissed, and by the two non-asylum seekers (Perez and
Aquino) who filed timely but lost for failure to state a cause of
action. We see no reason to disturb the district court's
analysis, and so we affirm the dismissal of these claims
substantially for the reasons stated in the court's thorough
opinion. See 18 F. Supp. 2d at 46-47, 52-60.
As to the organizational plaintiffs, they have not pressed
their First Amendment claim on appeal. This leaves only
their contentions that the new system violates, not their
rights or the rights of their members, but the constitutional
and statutory rights of unnamed aliens who were or might be
subject to the statute and regulations. In discussing why
they do not have prudential standing to litigate these claims,
we will not distinguish between the organizations and their
members. See Hunt v. Washington State Apple Adver.
Comm'n, 432 U.S. 333, 342-43 (1977). The district court
rightly observed that, with one exception, the organizations
and their members alleged identical injuries. The court
rejected as too speculative the one injury asserted for associa-
tional standing but not for organizational standing--the claim
that members of the associations might some day be subject
to summary removal. See 18 F. Supp. 2d at 51. We agree
__________
plaintiffs have standing to assert the International Law claim." 18
F. Supp. 2d at 52 n.14. The plaintiffs' brief does not discuss
standing under the treaties, so we do not consider this ruling.
with the court's conclusion and will say no more on that
subject.
B
Each of the organizational plaintiffs seeks to vindicate the
rights of unnamed third parties--namely, aliens who have
been or will be processed pursuant to the new law and
regulations.8 Yet one of the "judicially self-imposed limits on
the exercise of federal jurisdiction" is "the general prohibition
on a litigant's raising another person's legal rights." Allen v.
Wright, 468 U.S. 737, 751 (1984). The district court, though
holding that the individual plaintiffs could not assert the
rights of third parties, see 18 F. Supp. 2d at 47, did not
directly address third party standing with regard to the
organizational plaintiffs. Instead, the court discussed the
"zone of interests" test, an aspect of prudential standing
distinct from third party standing. See id. at 47-49. The
zone of interest test looks at the nature of the claims assert-
ed; third party standing focuses on who is asserting the claim
and why the holder of the asserted right is not before the
court. Compare Campbell v. Louisiana, 523 U.S. 392, 397-
400 (1998), with National Credit Union Admin. v. First Nat'l
Bank & Trust Co., 522 U.S. 479, 488-99 (1998). Satisfying
the "zone of interests" test is usually easy when the plaintiff
is able to establish third party standing: "if the litigant
asserts only the rights of third parties, then he may satisfy
the zone of interests requirement by reference to the third
parties' interest if the court determines both that the litigant
has third party standing and that the third parties' interests
fall within the relevant zone of interests." Haitian Refugee
Ctr. v. Gracey, 809 F.2d 794, 811-12 (D.C. Cir. 1987) (citing
FAIC Secs., Inc. v. United States, 768 F.2d 352, 358 (D.C. Cir.
1985)).
The government's brief contained nothing on third-party
standing. Government counsel said at oral argument that
__________
8 Because the district court dismissed for lack of standing, there
has been no ruling on the merits of the AILA/LUPD challenges to
the provisions of IIRIRA dealing with aliens seeking asylum. With
respect to Wood, there remains a due process challenge on behalf of
non-asylum seekers having allegedly sufficient contacts with the
United States (for example, returning legal permanent residents).
there was no intention to waive an objection on this ground.
Normally the proper method of preserving an argument on
appeal is to make it. But in this circuit we treat prudential
standing as akin to jurisdiction, an issue we may raise on our
own, in part because the doctrine serves the "institutional
obligations of the federal courts." Animal Legal Defense
Fund v. Espy, 23 F.3d 496, 499 (D.C. Cir. 1994); see also
Steffan v. Perry, 41 F.3d 677, 697 & n.20 (D.C. Cir. 1993) (en
banc); cf. United States v. Pryce, 938 F.2d 1343, 1351 (D.C.
Cir. 1991) (Randolph, J., concurring).
Since we will consider third party standing sua sponte, a
preliminary question needs to be addressed. "Congress may
grant an express right of action to persons who would other-
wise be barred by prudential standing rules." Warth v.
Seldin, 422 U.S. 490, 501 (1975); see also Havens Realty
Corp. v. Coleman, 455 U.S. 363, 372 (1982); Fair Employ-
ment Council of Greater Washington, Inc. v. BMC Mktg.
Corp., 28 F.3d 1268, 1278 (D.C. Cir. 1994). Has it done so
here? We think not. Nothing in IIRIRA supports the idea
that Congress intended to allow litigants to assert the rights
of others, and there are indications that Congress meant to
preclude such suits.
The statute permits judicial review of the "implementation"
of 8 U.S.C. s 1225(b), the provision spelling out the proce-
dures for inspecting applicants for admission to the United
States. 8 U.S.C. s 1252(e)(3)(A). The judicial review section
states that such lawsuits may be brought only in the United
States District Court for the District of Columbia; that the
lawsuits are limited to determining whether the statute or
regulations are constitutional, and whether the regulations or
other guidelines are consistent with the statute or other law;
and that the lawsuits must be brought within the sixty-day
period we have described earlier. 8 U.S.C. ss 1252(e)(3)(A)
& 1252(g). We cannot see anything in these provisions
allowing litigants--whether individuals or organizations--to
raise claims on behalf of those not party to the lawsuit.
The district court, in ruling that Congress had relaxed the
zone of interest test, stressed the sixty-day time limit on
judicial review: "such an action would probably not be
brought in time if Congress intended that only aliens subject
to summary removal orders be allowed to bring such an
action." 18 F. Supp. 2d at 49. This is a large stretch,
especially in light of the fact that some aliens did bring suit
within the period. A sixty-day limit is commonplace for
judicial review of agency action. The Hobbs Act, 28 U.S.C.
s 2344, is a well-known example. No one has ever thought
that this time limit, in itself, amounted to a legislative repudi-
ation of prudential standing. See, e.g., Reytblatt v. NRC, 105
F.3d 715, 720 (D.C. Cir. 1997); Water Transport Ass'n v. ICC,
819 F.2d 1189, 1193 & n.33 (D.C. Cir. 1987); National
Treasury Employees Union v. Merit Sys. Protection Bd., 743
F.2d 895, 910 (D.C. Cir. 1984); United States v. FMC, 655
F.2d 247, 251 (D.C. Cir. 1980). In each of the cases just cited
the sixty-day period for judicial review under the Hobbs Act
applied and yet we still required the petitioners to satisfy
prudential standing requirements.
We have also considered another argument, although it was
not mentioned in the district court's opinion. Washington,
D.C., one might suppose, is hardly a convenient forum for an
alien removed from, say, a port of entry in Hawaii or Califor-
nia or Florida. Yet--to continue the argument--Congress
restricted judicial review to actions brought in the federal
court in the District of Columbia, see 8 U.S.C. s 1252(e)(3)(A),
thereby signifying that organizations, rather than (or perhaps
in addition to) individual aliens, may bring suit. The argu-
ment is not very telling. For one thing, plaintiffs themselves
alleged that Washington is one of the "major locations for
summary removal cases." LUPD/AILA Amended Complaint
p 85. For another, aliens who have been summarily removed
might be from anywhere in the world, regardless of where
they attempt to enter the country. When they have been
returned to their native country, Washington, D.C. is not
necessarily less convenient than any other forum. And once
again, it has been common for Congress to designate the
District of Columbia as the exclusive venue for judicial review
of agency action. See, e.g., 12 U.S.C. s 2278a-3b (Farm
Credit System Assistance Board); 30 U.S.C. s 1276(a)(1)
(Surface Mining Act nationwide rules); 42 U.S.C. s 7607(b)(1)
(Clean Air Act regulations); 47 U.S.C. s 402(b) (FCC licens-
ing decisions). The purpose is obvious and has nothing to do
with prudential standing. By confining judicial review to one
venue, Congress avoids conflicting decisions about the validity
of particular regulations or statutes.
When we examine other subsections of 8 U.S.C. s 1252(e)
dealing with judicial review, we find signs that Congress
meant to allow actions only by aliens who have been subjected
to the summary procedures contained in s 1225(b) and its
implementing regulations. Section 1252(e)(1)(B) provides:
"Without regard to the nature of the action or claim and
without regard to the identity of the party or parties bringing
the action, no court may ... certify a class under Rule 23 of
the Federal Rules of Civil Procedure in any action for which
judicial review is authorized under a subsequent paragraph of
this section." Contrast this prohibition on class actions with
the allegations of the organizational plaintiffs. The LUPD/
AILA amended complaint (pp 96, 99, 103) raises claims on
behalf of all "bona fide refugees" and "all aliens who may be
eligible" for asylum interviews. The Wood amended com-
plaint (pp 1, 6, 79, 80, 85) raises claims on behalf of the alien
"clients" of the organizational plaintiffs and "those persons
similarly situated who have been and will be harmed by the
new expedited removal proceedings created by INA s 235
and governed by the Interim Rules and Defendants' other
implementing policies and procedures," a group that includes
"United States citizens, lawful permanent residents ('LPRs'),
and those other persons eligible for admission to the United
States, including non-immigrant visa holders with facially
valid visas, parolees, unaccompanied minors, refugees, asy-
lees, those persons for whom documents are not required for
admission, and those potentially eligible for admission
through waivers, adjustment of status or other benefits under
the INA."
Such unbounded allegations sweep in nearly all aliens
anywhere in the world who have tried or will try to enter the
United States. The situation of any particular alien is of no
moment, and imposes no confining influence on the scope of
the lawsuit. What portions of the statute and regulations will
be challenged, and on what grounds, are totally in the control
of the organizations and their lawyers. Should we suppose
that Congress, having barred class actions, intended to per-
mit actions on behalf of a still wider group of aliens, actions in
which no class representative appears as a party and the
plaintiffs are unconstrained by the requirements of Federal
Rule of Civil Procedure 23? From all we can gather, Con-
gress must have contemplated that lawsuits challenging its
enactment would be brought, if at all, by individual aliens
who--during the sixty-day period--were aggrieved by the
statute's implementation. We come to this conclusion not
only in light of the statute's ban on class actions, but also
because Congress restricted injunctive relief in the following
terms: "no court (other than the Supreme Court) shall have
jurisdiction or authority to enjoin or restrain the operation of
[the expedited secondary inspection provisions] other than
with respect to the application of such provisions to an
individual alien against whom the proceedings under such
chapter have been initiated." 8 U.S.C. s 1252(f)(1). The
jurisdictional provision provides still further proof: "Except
as provided in this section and notwithstanding any other
provision of law, no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders
against any alien under this Act." 8 U.S.C. s 1252(g). One
cannot come away from reading this section without having
the distinct impression that Congress meant to allow litiga-
tion challenging the new system by, and only by, aliens
against whom the new procedures had been applied.
What we have just written about congressional intent influ-
ences our analysis of the judicially-created third party stand-
ing doctrine as it applies to the cases before us. We will get
to this in a moment, but first we need to look at developments
in this circuit and in the Supreme Court. The place to begin
is Judge Bork's opinion in Haitian Refugee Center v. Gracey,
809 F.2d 794 (D.C. Cir. 1987), which describes a lawsuit quite
similar to the cases before us. There, organizations chal-
lenged a presidential proclamation ordering interdiction of
boats carrying undocumented aliens attempting to enter the
United States. The organizations complained that the inter-
diction program violated the rights of the aliens under the
Refugee Act of 1980, the due process clause of the Fifth
Amendment, and various treaties. See 809 F.2d at 797-98.
Because the litigants asserted the rights of third party aliens,
Judge Bork conducted a thorough examination of cases in
which the Supreme Court made exceptions to the traditional
prohibition against third party standing. See id. at 807-11.
The analysis led to the following conclusion: "If the govern-
ment has directly interfered with the litigant's ability to
engage in conduct together with the third party, for example,
by putting the litigant under a legal disability with criminal
penalties, and if a statute or the Constitution grants the third
party a right to engage in that conduct with the litigant, the
litigant has standing to challenge the government's interfer-
ence by invoking the third party's rights." Id. at 808. Most
of the cases allowing third party standing involved laws that
imposed legal sanctions on the litigant.9 Third party stand-
ing was allowed because "enforcement of the challenged
restriction against the litigant" resulted "in the violation of
the third parties' rights." Id. (quoting Warth, 422 U.S. at
510)). This circumstance eliminates one of the concerns
animating the third party prohibition: courts should not
decide disputes if third parties will be able to exercise their
rights regardless of the litigant's success. See Singleton v.
Wulff, 428 U.S. 106, 114 (1976) (citing Ashwander v. TVA, 297
__________
9 As examples, see Secretary of State of Maryland v. J.H. Mun-
son Co., 467 U.S. 947, 955-59 (1984), in which a fundraiser had
standing to raise the First Amendment rights of donors because the
statute penalized fundraisers for receiving commissions; Craig v.
Boren, 429 U.S. 190, 194-97 (1976), in which the Court recognized
standing for a beer vendor to assert the equal protection claims of
males who were not allowed to purchase beer until they turned 21,
although women could purchase beer upon turning 18; Doe v.
Bolton, 410 U.S. 179, 188-89 (1973), in which doctors were allowed
to assert the privacy interests of patients because the statute
imposed criminal penalties on doctors performing abortions; and
Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972), in which vendors
of contraceptives had standing to assert purchasers' privacy inter-
ests because the statute criminalized selling contraceptives.
U.S. 288, 345-48 (1936) (Brandeis, J., concurring)). The
direct impact of the law on the litigant also mitigates the
concern that third parties would be better proponents of their
own rights. See id. (citing Holden v. Hardy, 169 U.S. 366,
397 (1898)).
The Supreme Court has also recognized third party stand-
ing when a law, though not punishing the litigant, directly
interferes with a protected relationship between the litigant
and third party. Singleton v. Wulff, in which doctors chal-
lenged a law that prohibited Medicaid payments for abortions
that were not "medically indicated," is such a case. See 428
U.S. at 106. In a plurality opinion,10 Justice Blackmun found
that the law was "specifically intended to burden the third
party's relationship with their physicians." Haitian Refugee
Ctr., 809 F.2d at 810 (citing Singleton, 428 U.S. at 106).
Because the right being asserted--the third party patient's
Roe v. Wade right--was a right protecting the patient's
access to physicians, the Court recognized third party stand-
ing.
In contrast, the interdiction law at issue in Haitian Refugee
did not directly interfere with the relationship between Hai-
tians and the litigants who were trying to help them. See id.
Impeding contact between the two groups was only an indi-
rect effect of the interdiction program's aim of preventing the
entry of Haitians. See id. at 809-10. Yet "allowing standing
for unintended side effects of programs would involve the
court in the continual supervision of more governmental
activities than separation of powers concerns should permit."
Id. Moreover, the constitutional rights asserted--the Hai-
tians' due process rights--did not protect a relationship be-
tween the litigants and the aliens. See id. at 809. The same
is true in our case. The organizations faced no legal sanction
from the statute or the regulations. The claimed violation of
aliens' rights--impeded access to attorneys--is but a side
effect of the expedited removal system.
In addition to the factual congruity between Haitian Refu-
gee and this case, the rule of decision Judge Bork announced
__________
10 Justice Stevens, the fifth vote for standing, wrote separately on
the grounds that the doctors were asserting their own rights.
for the court11 would foreclose the organizational plaintiffs
from litigating the due process rights of unnamed aliens.
Haitian Refugee held: "A litigant therefore could never have
standing to challenge a statute solely on the ground that it
failed to provide due process to third parties not before the
court." Id.12
Nonetheless, plaintiffs argue that one of our recent deci-
sions is squarely at odds with the rule of Haitian Refugee
just quoted. They have a point. A few months ago, this
court--without mentioning Haitian Refugee--allowed a liti-
gant to assert the due process rights of third parties. See
Lepelletier v. FDIC, 164 F.3d 37 (D.C. Cir. 1999). The
plaintiff in Lepelletier was a "money finder," a person who
receives income by locating the owners of unclaimed deposits
at failed banks. Lepelletier filed suit against the FDIC, the
receiver of three failed banks, after the agency denied his
Freedom of Information Act requests for the names of the
owners of the unclaimed deposits. See id. at 40-41. The
complaint alleged that "under the due process clause of the
Fifth Amendment, the FDIC was required to publish the
names of all parties with unclaimed deposits before forfeiting
the funds...." Id. at 41. Because the unidentified deposi-
tors' property interest gave rise to the due process claim,
Lepelletier had to overcome third party standing doctrine.
See id. at 42.
The Lepelletier court invoked, without discussion, the
three-part test for third party standing the Supreme Court
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11 Judge Buckley joined this portion of Judge Bork's opinion, see
809 F.2d at 796 n.1, and it therefore represented the law of the
circuit.
12 At oral argument, plaintiffs cited National Cottonseed Products
Ass'n v. Brock, 825 F.2d 482 (D.C. Cir. 1987), the one opinion of this
circuit to question Haitian Refugee. But the doubt expressed there
has no bearing on this case. It dealt with the portion of Judge
Bork's Haitian Refugee opinion dealing with whether third party
standing automatically attached to a vendor-vendee relationship.
announced in Powers v. Ohio, 499 U.S. 400 (1991). See 164
F.3d at 43. Powers allowed a criminal defendant to assert a
claim of racial discrimination in jury selection because: 1) the
defendant suffered an injury in fact;13 2) he had a close
relationship to the excluded jurors; and 3) there was some
hindrance to the excluded jurors asserting their own rights.
499 U.S. at 411; see also Campbell v. Louisiana, 523 U.S. 392
(1998) (applying Powers in the grand jury context).
Did Powers supersede the Haitian Refugee rule? The
defendant in Powers certainly faced a legal penalty (imprison-
ment), but it is not clear that a juror's equal protection rights
"protect that party's relationship with the litigant." Haitian
Refugee, 809 F.2d at 809. The Powers Court referred to "the
relation between petitioner and excluded jurors," Powers, 499
U.S. at 413, but the jurors' equal protection rights were
treated principally as a protection of the integrity of the
judicial system, see id. at 412, 414. It could be that Haitian
Refugee and Powers now coexist and a party can establish
third party standing by meeting either standard. A post-
Powers decision of this court appears to take this approach.
Fair Employment Council continued to apply the Haitian
Refugee "relationship" standard, see Fair Employment Coun-
cil, 28 F.3d at 1280 (quoting Haitian Refugee, 809 F.2d at
809)), but applied that standard only after deciding that
plaintiffs could not meet the Powers "obstacle" test, see id.
The effect of subsequent case law on the Haitian Refugee
rule is not entirely clear. Nor is the general state of third
party standing law. See Miller v. Albright, 523 U.S. 420, 454
n.1 (1998) (Scalia, J., concurring) ("Our law on [third-party
standing] is in need of what may charitably be called clarifica-
tion.").14 Although we are unsure how to reconcile Haitian
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13 We cannot see what this factor adds. Prudential standing
aside, if the litigant has not suffered injury there is no constitutional
standing. See Valley Forge Christian College v. Americans United
For Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).
14 A third party standing decision of the Supreme Court after
Haitian Refugee allowed an attorney to assert the due process
Refugee with Powers and Lepelletier, we can decide this
appeal without making the attempt. Even under the Powers
formulation, the organizational plaintiffs cannot prevail. To
establish third party standing "there must exist some hin-
drance to the third party's ability to protect his or her own
interests."15 Powers, 499 U.S. at 411. Singleton v. Wulff,
428 U.S. at 116, sounded a similar note: "If there is some
genuine obstacle ... the third party's absence from court
loses its tendency to suggest that his right is not truly at
stake, or truly important to him, and the party who is in court
becomes by default the right's best available proponent." We
do not believe excluded aliens suffered from the type of
impediment, the "hindrance" or "obstacle," the Court had in
mind.
We accept plaintiffs' statement that "aliens removed direct-
ly from secondary inspection are detained and prohibited
from communicating with anyone throughout their stay in the
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claims of his client. See United States Dep't of Labor v. Triplett,
494 U.S. 715 (1990). The law being challenged regulated the fees
an attorney could receive in black lung disease cases. Triplett thus
is another example of the well-established exception that a litigant
can assert third party claims when the challenged law imposes a
penalty on the litigant.
Miller v. Albright, 523 U.S. 420 (1998), also involved a legal
disability imposed on the litigant. The plaintiff had been denied
citizenship on the basis of a proof-of-paternity requirement for
illegitimate, foreign-born offspring of American fathers. The Court
allowed the plaintiff to raise her father's equal protection claim (a
test was not required for the illegitimate, foreign-born offspring of
American mothers). See id. at 424-27.
15 This language demonstrates that when the "Powers test" is
applied, all three requirements must be met. See also Powers, 499
U.S. at 411 ("We have recognized the right of litigants to bring
actions on behalf of third parties, provided three important criteria
are satisfied...."). Caplin & Drysdale, Chartered v. United
States, 491 U.S. 617, 623 n.3 (1988), which upheld third party
standing even though the hindrance requirement "counsel[ed]
against review," appears inconsistent with the Court's current
approach.
country." Opening Brief for Plaintiffs-Appellants at 46. But
the period of detention typically was quite short; that is the
point of summary removal. When an alien returned to his
native country, nothing prevented him from bringing suit
here. To this the organizational plaintiffs reply that "under
the construction of the 60-day limit adopted by the district
court, for those aliens arriving after June 1, 1997, there is no
possibility of bringing a challenge at all." Id. at 47. True
enough. But this is precisely what Congress intended.
None of the Supreme Court's decisions invoking the Pow-
ers formulation even comes close to suggesting what plaintiffs
propose. In Powers itself, the third party juror "possess[ed]
little incentive" to bring suit because "of the small financial
stake involved and the economic burdens of litigation." 499
U.S. at 415. It also would have been difficult for the excluded
juror to recognize, and later prove, that his exclusion was the
result of systemic discrimination. See id. at 414-15; see also
Barrows v. Jackson, 346 U.S. 249, 254, 257 (1953) (allowing
third party standing to vindicate the rights of "unidentified"
victims of racially restrictive covenant). This latter consider-
ation--unawareness of the injury--is the type of obstacle
Lepelletier thought adequate to meet the Powers standard.
The third parties in Lepelletier were unidentified depositors
who did not know they were being deprived of property.
Excluded aliens faced no comparable impediment to suit.
They were quite aware of their summary removal. And they
had a strong incentive to challenge the exclusion procedures
in court.
Justice O'Connor, joined by Justice Kennedy, has said that
when a "hindrance signals that the rightholder did not simply
decline to bring the claim on his own behalf, but could not in
fact do so," third party standing may be permitted. Miller v.
Albright, 523 U.S. at 450 (O'Connor, J., concurring). Hodel v.
Irving, 481 U.S. 704, 711-12 (1987), involves the most obvious
application of this principle: the rightholders, the litigants'
parents, were deceased. Another case, Singleton, 428 U.S. at
117, held that the "imminent mootness" of any woman's
claimed right to an abortion posed an obstacle to her asser-
tion of the right. And the Court permitted third party
standing when assertion of the right would essentially defeat
it. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,
459 (1958) (recognizing that if the organization were required
to assert its own privacy interests, the privacy it sought to
protect would be undermined).
We do not believe aliens excluded in the Spring of 1997,
when the statute was first implemented, were in a position
comparable to the missing individuals in the cases we have
just summarized. Congress passed IIRIRA in September
1996. The organizations appearing before us, whose purpose
it is to assist aliens arriving on our shores, thus knew well
ahead of time what was coming. On March 27, 1997, five
days before the implementing regulations went into effect,
the American Immigration Lawyers Association and three
other organizations filed suit. They eventually added, within
60 days of April 1, the two excluded aliens whose claims the
district court adjudicated on the merits. The organizations
do not allege that, despite their best efforts, they were unable
to identify and provide legal assistance to any other potential
plaintiffs--that is, aliens facing removal during the relevant
time frame. How large was the pool? The government
informed us after argument that in the 60 days beginning
April 1, 1997, immigration officials processed approximately
10,200 expedited removal cases at the country's 25 largest
ports of entry--or 1200 per week.
To the extent there were obstacles or hindrances to any of
these individuals joining in the cases, they are either imposed
by Congress or result from the normal burdens of litigation.
Those who are not financially well off face obvious obstacles
when they seek to bring a lawsuit. Some excluded aliens, but
hardly all,16 doubtless fell into that category. Those who are
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16 For instance, the excluded aliens added in the amended Wood
complaint included two British citizens who supplied items to U.S.
Air Force squadrons in England; a citizen of the Peoples Republic
of China who is the president of a real estate development company;
a businesswoman from Canada; and another Canadian citizen who
uninformed about the workings of the courts, or of their legal
rights, or of the availability of counsel, also face obstacles.
Individuals who do not speak English or who reside far from
the courthouse are hindered when it comes to taking legal
action. Congress knew all this as well as we do, and as well
as the organizational plaintiffs do. Yet rather than alleviating
these burdens Congress placed strict limits on the time for
filing challenges to the summary removal system, and it
barred class actions. To allow third party standing in the
face of those provisions (which are not challenged) and the
jurisdictional provision mentioned earlier (p. 12, supra) would
be to contradict the principles on which the standing doctrine
rests--namely, "the proper--and properly limited--role of
the courts in a democratic society." Warth v. Seldin, 422
U.S. at 498; Allen v. Wright, 468 U.S. at 750-52. Congress
imposed the 60-day limit on actions in order to cabin judicial
review and to have the validity of the new law decided
promptly. It would be inconsistent with the "properly limited
role of the courts" for us to use this provision as the basis for
expanding jurisdiction through the back door of third party
standing. And in the face of a statute barring even class
actions that comply with the rules of procedure, it would be
inconsistent, indeed almost contradictory, if the device of
third party representation could be used to prosecute what
are essentially unbounded class lawsuits.
We mentioned earlier that Congress may relax the pruden-
tial standing rules the judiciary has created. See Warth v.
Seldin, 422 U.S. at 501; Havens Realty Corp. v. Coleman,
455 U.S. at 372; Fair Employment Council, 28 F.3d at 1278.
Congress may do so--and has sometimes done so--in the
exercise of its Article I power, so long as it keeps within the
limits of Article III of the Constitution. See Henry P.
Monaghan, Third Party Standing, 84 Colum. L. Rev. 277, 313
& n.195 (1984). If Congress can thus expand federal jurisdic-
tion, Congress also has the power to contract federal jurisdic-
tion. There is no reason why, for instance, a statute could
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held a degree in hotel/restaurant management from an American
university.
not expressly state that, without exception, each party to a
lawsuit must raise only their rights and not the rights of
others. That would constitute a legislative direction to the
courts that the third party standing doctrine, in its strictest
form, must be applied. Congress may not have gone so far in
IIRIRA. But our analysis of the statute, and particularly the
bar on class actions, strengthens the judicial presumption
against suits seeking relief for a large and diffuse group of
individuals, none of whom are parties to the lawsuit--suits,
that is, such as the ones before us. For all of these reasons,
we hold that the plaintiff organizations do not have standing
to raise claims, whether statutory or constitutional, on behalf
of aliens subjected to IIRIRA's expedited removal system.
Affirmed.