Ukrainian-American Bar Association, Inc. v. James A. Baker, Iii, Secretary of State

SENTELLE, Circuit Judge,

concurring in the judgment:

While I concur with my colleagues that the District Court erred in granting relief to appellants and that the judgment must be reversed, I cannot join their reasoning. I write separately, not to disagree with the majority’s discussion of the merits of appellant’s claim; but rather, because we should never have reached those merits at all. In my view, appellants lack standing to bring the instant action.

I. Analysis

The claim of the Ukrainian American Bar Association (“UABA”), although expressed in conceptually different terms, is not in any meaningful way distinguishable from the claim asserted in Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C.Cir.1987), *1383a case in which we found no standing. In that case, the Haitian Refugee Center (“HRC”) alleged a purpose “to promote the well-being of Haitian refugees through appropriate programs and activities, including legal representation of Haitian refugees, education regarding legal and civil rights, orientation, acculturation, and social and referral services.” Id. at 799 (emphasis supplied). The purpose of the HRC obviously parallels that of the UABA, which is to accomplish “the beneficial integration of individuals of Ukrainian descent into the American legal and political society,” Maj. op. at 1378 (quoting the District Court’s opinion) and specifically “to counsel [Ukrainian would-be defectors] regarding their Constitutional and statutory right to apply for political asylum.” Maj. op. at 1376 (quoting amended complaint). In that case, as in this, the associational plaintiff asserted that actions of the government— in that case an interdiction, in this the “immediate action” procedures — interfered with their organizational purposes by denying access to potential beneficiaries of the advice and counsel which the organization exists to provide. The majority points out that the HRC lacked standing “because the only concrete injury it alleged was a diminution of such [Haitian] refugees arriving at its doorstep_” Maj. op. at 1379. The majority agrees that the government’s “refusal to allow into the United States refugees who might eventually have found their way to HRC” did not “constitute[ ] a ‘legal prohibition on [the HRC’s] relationship with a third party.’ ” Maj. op. at 1379 (quoting Gracey, 809 F.2d at 801 (Bork, J.)).

These statements summarize much of my complaint with the majority’s standing analysis. Under the “entry doctrine” analysis, persons in the situation of Medvid have no more entered the United States than the Haitians in Gracey. As the Eleventh Circuit said in Jean v. Nelson, 727 F.2d 957, 969 (11th Cir.1984) (en banc), the Supreme Court has made it clear “ ‘that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States.’ ” (quoting Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct. 1072, 1075, 2 L.Ed.2d 1246 (1958)). Indeed, the Supreme Court “has long considered such temporary arrangements as not affecting an alien’s status; he is treated as if stopped at the border.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215, 73 S.Ct. 625, 630-31, 97 L.Ed. 956 (1953). Accord Ahrens v. Rojas, 292 F.2d 406, 410-11 (5th Cir.1961). See also Augustin v. Sava, 735 F.2d 32, 36 (2d Cir.1984) (“An unofficial entry is permitted which has no effect on the ‘unadmitted’ alien’s status, because it does not constitute a legal entry even though the alien is physically present in the United States.”); El Rescate Legal Services v. INS, 727 F.Supp. 557 (C.D.Cal.1989) (same); United States v. Anaya, 509 F.Supp. 289, 296 (S.D.Fla.1980), aff'd sub nom. United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir.1982) (“An alien does not enter the country simply ‘by crossing the national boundaries in transit or even by arrival at a port so long as they are detained there pending formal disposition of their requests for admission.’ ... To accomplish an ‘entry’ an alien must be present in the United States and free of official restraint.”) (citations omitted) (emphasis in original); Singh v. Nelson, 623 F.Supp. 545, 550 (S.D.N.Y.1985) (grant of parole “does not mean that an excludable alien who is paroled has technically entered the United States.”). The entry doctrine is of considerable antiquity, see, e.g., Kaplan v. Tod, 267 U.S. 228, 230-31, 45 S.Ct. 257, 257-58, 69 L.Ed. 585 (1925); United States v. Ju Toy, 198 U.S. 253, 263, 25 S.Ct. 644, 646-47, 49 L.Ed. 1040 (1905); Nishimura Ekiu v. United States, 142 U.S. 651, 661, 12 S.Ct. 336, 339, 35 L.Ed. 1146 (1892); Ng Lin Chong v. McGrath, 202 F.2d 316, 318 (D.C.Cir.1952); Kristensen v. McGrath, 179 F.2d 796, 802 (D.C.Cir.1949), and its extended tenure and continued vigor derive from the fact that, as the Supreme Court recently reaffirmed, “the power to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982).

*1384Thus, all that the government has done here is signal its “refusal to allow into the United States refugees who might have eventually found their way to [UABA] ..Maj. op. at 1379, a refusal that the majority concedes is not a prohibition on the association's relationship with a third party and is therefore insufficient to grant standing. The actions of the Executive here may indeed result in a reduction in the number of Ukrainian refugees entering the United States. As the majority notes, however, “there [is] simply no indication either that the reduction in the number of aliens entering the United States ‘would make an appreciable difference in [the UABA’s] ability to serve the [Ukrainian] refugee community,’ ... or that ‘absent the [immediate action] program, at least one [Ukrainian] refugee would agree to be counseled or represented by the [UABA] and at least one would consent to associate with the individual [UABA members].’ ” Maj. op. at 1379 (citation omitted). The UABA can hardly claim a concrete First Amendment injury from the fact that a person with whom they might wish to have contact is not in any legal sense even present in the United States, although he may eventually arrive at some point in the future.

In Gracey, the Court spoke with three voices, but all agreed or assumed that HRC had properly pleaded the “injury in fact” element necessary for Article III standing. Id. at 800 (opinion of Bork, J.); id. at 817-18 (Buckley, J., concurring) (expressing doubt, but “conceding injury”); id. at 822-23 (Edwards, J., concurring in part). Nonetheless, as the opinions of both Judges Bork and Buckley conclude, HRC lacked Article III standing by reason of its failure to meet the other two Article III requirements — causation and redressability. Though Judges Bork and Buckley differed in their analyses of HRC’s failure, both reached the same conclusion. The present allegations, whether subjected to Judge Bork’s or Judge Buckley’s analysis, no more demonstrate causation and re-dressability than did the allegations of HRC in Gracey.

A. The Bork Analysis

Judge Bork in his Gracey opinion first notes that “ ‘traceability’ and ‘redressability’ ... are closely related,” id. at 801, and that traceability “examines the causal connection between the assertedly unlawful conduct and the alleged injury, whereas [redressability] examines the causal connection between the alleged injury and the judicial relief requested.” Id. (quoting Allen v. Wright, 468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 3325 n. 19, 82 L.Ed.2d 556 (1984)).

Bork then conducts a review of such Supreme Court authorities as Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); and Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), inter alia, from which he concludes that “[standing doctrine, and in particular the causation aspect of that doctrine,” is to be informed by separation of powers concerns, and specifically is “designed to confine federal courts to their ‘properly limited’ function.” 809 F.2d at 805.1 As to the “traceability” component of the Article III standing inquiry required by Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982), Judge Bork argues that “ ‘causation’ in this context is something of a term of art, taking into account not merely an estimate of effects but also considerations related to the constitutional separation of powers as that concept defines the proper role of courts in the American governmental structure.” Gracey, 809 F.2d at 801 (footnote omitted). Supreme Court precedent indicates that a legal prohibition on a litigant’s association with a third party is sufficient *1385to grant the litigant standing independent of a prediction concerning the third party’s actions. See, e.g., Craig v. Boren, 429 U.S. 190, 194-95, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745-46, 35 L.Ed.2d 201 (1973). However,

[i]n the absence of a legal prohibition on his relationship with a third party, the litigant may establish article III causation only if the governmental action he complains of has purposefully interfered with that relationship. Without a purposeful interference ... the litigant would lack article III standing no matter how copious a factual showing of causation he might make.
No decision of the Supreme Court has been found that goes so far as to find article III causation for injury to a litigant’s relationship to a third party in the absence of a statute or executive action aimed at deterring the litigant from participating in the relationship.

Gracey, 809 F.2d at 801 (footnote omitted). Thus, because “the interdiction program [was] not aimed at preventing Haitian refugees from dealing with the HRC [,] [t]he prevention of that relationship is merely an unintended side effect of the program.” Id. Specifically, Bork relies on Warth and Wright for the proposition that “ ‘the standing inquiry must be answered by reference to the Art. Ill notion that federal courts may exercise power only “in the last resort, and as a necessity,” ... and only when adjudication is “consistent with a system of separated powersId. at 806 (quoting Wright, 468 U.S. at 752, 104 S.Ct. at 3325) (interior citations omitted).

When the allegedly denied association “depend[s] upon a prediction about the independent action of a third party not before the court,” id. at 806, the requisite last resort and necessity do not exist. In Gra-cey, Bork concludes that the injuries of the HRC and the capacity of judicial action to redress those injuries depended on such a prediction, that is “whether, absent the interdiction program, at least one Haitian refugee would agree to be counseled or represented by the HRC and at least one would consent to associate with the individual appellants.” Id. In the present ease, the only distinction is that the prediction concerns Ukrainians rather than Haitians, a matter of no legal significance.

Bork further concludes that when the program under attack “was not designed to interfere with HRC’s counseling of Haitian refugees,” and appellants “were only adventitiously affected by the challenged action ... a court could not recognize appellants’ standing ... ‘without running afoul of [the] structural principle [of separation of powers].’ ” Id. at 807 (quoting Allen v. Wright, 468 U.S. at 761, 104 S.Ct. at 3330) (footnote omitted). In our consideration of standing outside the associational context we have also found apposite the separation of powers root of the Article III standing doctrine. See, e.g., United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1381-82 (D.C.Cir.1984) (Scalia, J.) (denying standing to congressman who claimed diminution of his legislative powers because an executive order allegedly conferred authority upon intelligence agencies exceeding that authorized by Congress); see also Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L.Rev. 881 (1983).

Otherwise put:

Given the complexity and interdependence of our society and governmental policies, it will often be possible to allege with some plausibility that a change in a governmental policy is likely to cause other persons or institutions to modify their behavior in ways beneficial to the plaintiff. If such allegations were routinely accepted as sufficient to confer standing, courts would be thrust into a far larger role of judging governmental policies than is presently the case or seems desirable.

Northwest Airlines v. FAA, 795 F.2d 195, 204 n. 2 (D.C.Cir.1986). Thus, in a case of alleged interference with associational rights, absent “a purposeful interference, by statute or executive action,” the litigant has not met the causation standard “[i]n the absence of a legal prohibition on his relationship with a third party.” Gracey, *1386809 F.2d at 801. Contrary to the majority’s observation, I would not establish a rule that “an organizational plaintiff could establish its standing to challenge a Government action only by showing that the relief it seeks would further its organizational purpose,” nor would I require a “showing that, if it were permitted to speak, others would not only hear but listen to and heed its words.” Maj. op. at 1379. Rather, I would see the standing doctrine be given substance by requiring a purposeful and legal prohibition on a litigant’s association with a third party. By avoiding the possible dilution of the standing doctrine that this Court described in Northwest Airlines, we can simultaneously protect First Amendment freedoms while preserving the structure of separated powers, a fundamental guarantor of all the freedoms with which the citizens of this Republic are blessed.

In Gracey, the governmental action was directed toward protecting the borders against the entry of illegal aliens. In the present case, the governmental action is directed toward the expeditious determination of status in situations calling for “immediate action” with reference to would-be defectors. In neither case is there a purposeful interference with associational rights or a prohibition of protected conduct on the part of the plaintiff. I would therefore conclude, as Judge Bork did in Gra-cey, that the causation requirement for Article III standing has not been met.

B. The Buckley Analysis

In Gracey, Judge Buckley observes (as Judge Bork acknowledges) that the above rationale goes beyond explicit Supreme Court precedent, and he presents “an alternative analysis of the causation requirement ... more readily inferred from Supreme Court precedent.” 809 F.2d at 816 (Buckley, J., concurring); compare id. at 798 (Bork, J., concurring).

Judge Buckley first notes that it was by no means clear that “the Center’s allegations meet the threshold constitutional requirement of standing_” 809 F.2d at 818.2 Nonetheless, “[e]ven conceding injury,” id., Judge Buckley concludes that the Center failed the test of causation. In his view, the interdiction of ships on the high seas carrying Haitian potential illegal immigrants did not, under the allegations in the complaint, cause “a harm to the HRC’s ‘organizational purpose.’ ” Id. at 819. And the complaint contained “nothing to suggest that the HRC would be able to prove that any of the activities listed in its complaint ha[d] been appreciably affected by the program.” Id. As Judge Buckley puts it, “the requisite showing of cause and effect will not be satisfied by speculation as to the statistical probability that one or more of the Haitian refugees intercepted by the Coast Guard might otherwise have appeared at the Center’s door in Florida.” Id. at 818. What was required was “a demonstration that a putative diminution in the number of potential clients for the HRC’s services will impair its ability to provide them.” Id. at 818-19.

As Judge Buckley demonstrates in his separate opinion, this view is entirely consistent with the Supreme Court’s teachings. For example, Buckley points out that in Allen v. Wright, black plaintiffs had asserted that the grant of tax exempt status to racially-segregated private schools interfered with the desegregation of public schools, thus denying their children “the advantages of an integrated education.” 809 F.2d at 819. Though the Supreme Court held that injury to be judicially cognizable, the Court nonetheless concluded that the complaint failed the causation test, in the absence of an allegation that “there were enough racially discriminatory private schools receiving tax exemptions in respondents’ communities for withdrawal of those exemptions to make an appreciable difference in public school integration.” Wright, 468 U.S. at 758, 104 S.Ct. at 3328. Likewise, in Gracey, Judge Buckley concludes that “the HRC has failed to indicate how the interdiction program would make an appreciable difference in its ability to serve the Haitian refugee community.” 809 F.2d at 819. Similarly, in the present case, the *1387UABA has offered us no allegation of concrete interference with its organizational purpose. One Haitian, more or less, made no difference to the ability of the HRC to perform its organizational purpose, and one Ukrainian — Medvid or another — makes no difference in the ability of the UABA to perform its organizational purposes. Therefore, I would again conclude that appellants here lack Article III standing.3

II. Conclusion

I,therefore, join the majority’s conclusion that the decision of the District Court must be reversed, but I would do so on the basis that appellants lack standing to bring their complaint to court, rather than the conclusion that appellants have such standing but fail to assert a valid claim for relief.

. I have not attempted to fully replicate Judge Bork's discussion of the separation of powers content of the standing doctrine. For further elucidation the reader, of course, may consult the Gracey opinion.

. All references to the Gracey opinion in this section are to the separate opinion of Judge Buckley, unless otherwise indicated.

. I also question whether UABA has standing in the prudential sense even if Article III standing were present. The fact that UABA has a First Amendment protected interest in offering advice and counsel does not imply that the protection of that amendment extends to UABA’s asserted right to an audience to receive that counsel. Cf. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) (holding that the existence of a right does not imply the existence of a claim to governmental subsidization of that right). In determining whether a litigant has prudential standing, "we must look to their particular interests,” as alleged in the complaint, "not to the interests amounting to generalized grievances of all citizens.” National Federation of Federal Employees v. Cheney, 883 F.2d 1038, 1047 (D.C.Cir.1989). The asserted lack of access to a hypothetical detained asylee is no different for UABA than for would-be spiritual counselors, newspaper reporters, or persons who merely wished the cultural experience of communicating with individuals of foreign background and diverse experience. However, because in the present case the difference between the lack ■ of prudential standing and the failure to state a claim for relief found by the majority parallels the distinction between Tweedledee and Tweedledum, I will not engage in further discussion.