The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's motion to dismiss. Plaintiffs filed their complaint on June 26, 2000 to challenge a rule issued by the Secretary of Labor on June 13, 2000. The rule, entitled Birth and Adoption Unemployment Compensation, is the Secretary's interpretation of the federal unemployment compensation statutes which are administered at the state level. Under this rule, states administering federal unemployment compensation programs may enact legislation to provide employees with partial wage replacement when they take approved leave following the birth or adoption of a child. Defendant argues that because no state has yet enacted legislation pursuant to this rule, plaintiffs lack standing to challenge the rule issued by the Secretary, and the controversy is not ripe for adjudication. Upon consideration of the defendant's motion, plaintiffs' opposition, defendant's reply, and the arguments presented at the motions hearing, the Court concludes that plaintiffs lack standing to challenge the rule and it therefore grants defendant's motion. *fn2
On June 13, 2000, the Secretary of Labor issued a final rule interpreting current federal unemployment compensation ("UC") statutes. See Birth and Adoption Unemployment Compensation ("BAA-UC"), 65 Fed. Reg. 37,210-01 (June 13, 2000). According to the rule, states may enact legislation using UC funds "to provide partial wage replacement, on a voluntary, experimental basis, to parents who take approved leave or who otherwise leave employment following the birth or placement for adoption of a child." Id. at 37,210.
The UC system operates through cooperation between the federal and state governments to provide employees with UC benefits. See BAA-UC, 65 Fed. Reg. at 37,210. States collect UC taxes from employers to make UC payments to employees, and the federal government collects a payroll tax that can be used as tax credits for employers in states with federally certified programs. See id.; see also Memorandum of Points and Authority in Support of Defendant's Motion to Dismiss ("Motion to Dismiss") at 6. State programs are certified pursuant to the Department of Labor's oversight over the federal-state UC programs. See BAA-UC, 65 Fed. Reg. at 37,210. If a state programs meets certain federally mandated criteria, the Secretary of Labor can certify the program and employers may then receive tax credits against the federal unemployment tax they must pay. See id.
Under the authority to interpret federal UC statutes, the Department of Labor has required that employees receiving UC benefits be "able and available for work," although this is not formally required by federal law. See BAA-UC, 65 Fed. Reg. at 37,210-11. The "able and available for work" requirement has been interpreted flexibly to extend UC benefits to areas such as employee training, illness, jury duty and temporary layoffs. See id. Within the framework of the federal UC statutes, the Secretary of Labor interpreted federal UC laws to allow states to use UC funds to provide parents on birth or adoption leave with partial wage replacement.
BAA-UC is voluntary and requires that states must enact implementing legislation before these funds may be used to provide benefits to parents. See BAA-UC, 65 Fed. Reg. at 37,210. Although the Department of Labor has provided model legislation, a state legislature has the discretion to decide on whether and how such a program should be administered in its state. See id. at 37,210, 37,225-28. States may consider a number of criteria when implementing BAA-UC programs, including employee eligibility for benefits under the program, applicable waiting periods, the duration parents may receive benefits, and earning requirements. See id. at 37,225-28. Significantly, states may fund the program in a variety of ways, ranging from increasing employer contribution rates to developing funding entirely outside the UC program. See id. at 37,215-17.
Plaintiffs filed their complaint on June 26, 2000, seeking both a declaration that the BAA-UC is invalid and a permanent injunction directing the Department of Labor to withdraw the regulation and final rule. See Complaint at 19-25. Should any state enact a law under the BAA-UC, plaintiffs request a preliminary injunction to prevent the legislation from taking effect. See id. at 24-25. The complaint alleges that the BAA-UC violates substantive UC requirements and the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and that it arbitrarily departs from long-standing agency policy. See id. at 19-21. Plaintiffs further allege defendant's noncomplaince with numerous procedural requirements that should have been followed when developing the BAA-UC. See id. at 21-24.
To meet the Article III requirements of standing, a plaintiff must show: (1) that it has suffered an injury in fact, the invasion of a legally protected interest; (2) that the injury is fairly traceable to the defendant's conduct (a causal connection); and (3) that a favorable decision on the merits likely will redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002). The alleged injury in fact must be concrete and particularized and actual or imminent, not conjectural, hypothetical or speculative. See Lujan v. Defenders of Wildlife, 504 U.S. at 560-61; Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002); American Petroleum Institute v. EPA, 216 F.3d 50, 63 (D.C. Cir. 2000). If plaintiff cannot meet all three prongs of this test, then the Court must dismiss the suit for lack of standing.
Defendant argues that plaintiffs lack standing because no state has passed or is about to pass BAA-UC legislation and that plaintiffs therefore are unable to demonstrate that any actual or imminent injury has or will result from the Secretary's interpretation. Defendant maintains that plaintiffs' prediction that at least one state will enact a law under the BAA-UC sometime within the next year is too speculative to satisfy the injury in fact requirement. *fn3 Defendant also contends that the injury requirement cannot be met by plaintiffs' claim of increased lobbying expenses incurred to prevent passage of BAA-UC statutes by state legislatures. Finally, defendant argues that plaintiffs do not have standing based on the procedural violations allegedly committed by the Secretary of Labor in announcing the BAA-UC.
Plaintiffs first respond that the defendant too strictly construes the imminence requirement under the injury in fact prong. They also assert that they have shown through an expert's analysis that BAA-UC legislation will be enacted in at least one state within the year and that the threatened injury therefore is imminent. But see supra n.3. Second, plaintiffs contend that increased lobbying expense are injuries that are sufficient to confer Article III standing because these expenses have not been voluntarily incurred and would not have been required but for the Secretary's action. Finally, they maintain that they have standing based on the Secretary's alleged procedural violations. The Court rejects plaintiffs' arguments and concludes that the requirements for Article III standing have not been met in this case because for each of plaintiffs' three theories, they have failed to demonstrate that they have suffered or imminently will suffer any injury in fact. *fn4
A. Injury in Fact: Adverse Consequences of BAA-UC Legislation
Plaintiffs lack standing to sue because they have failed to show that any injury resulting from BAA-UC legislation either has occurred or is imminent. For a plaintiff to have standing, the injury alleged must be actual or imminent, not conjectural or speculative; such injury must, at the very least, be "certainly impending." Lujan v. Defenders of Wildlife, 504 U.S. at 565 n.2. When a plaintiff seeks to avoid injuries that are merely speculative or to require a court to infer what events might transpire to cause plaintiff harm in the future, the injury in fact requirement is not met. See Alamo v. Clay, 137 F.3d 1366, 1370 (D.C. Cir. 1998) (injury in the form of stigma resulting from the denial of parole was at best a speculative injury); J. Roderick MacArthur Foundation v. FBI, 102 F.3d 600, 606 (D.C. Cir. 1997) (harm must be "certainly impending"; alleging that plaintiff might suffer an injury at some unknown time is too speculative to warrant standing); Florida Audubon Society v. Bentsen, 94 F.3d 658, 667-68 (D.C. Cir. 1996) (potential harm to environment caused by tax increase to stimulate corn production too speculative to confer standing). Plaintiffs' contention that ...