The opinion of the court was delivered by: James Robertson United States District Judge
The plaintiffs here -- two landlord groups -- complain that the Department of Housing and Urban Development exceeded its statutory authority under Title VI of the Civil Rights Act by adopting a recent "policy guidance." That guidance "clarifies" a long-standing requirement that recipients of funding for Federal programs communicate with program beneficiaries in languages other than English if those beneficiaries have limited English proficiency (LEP). Plaintiffs assert that Title VI prohibits only discrimination on the basis of national origin, not on the basis of language, and that it does not support this kind of "disparate impact" provision. They also complain that the vagueness of the guidance makes compliance overly burdensome, rendering it substantively arbitrary and capricious in violation of the Administrative Procedure Act.
HUD's response is to deny the existence of a case or controversy. On its view, the case is not yet ripe because no enforcement proceedings have been undertaken, and plaintiffs lack standing to challenge a guidance document that only details an existing obligation -- neither creating rights or obligations for private parties nor binding the agency's enforcement authority. The agency has thus moved for judgment on the pleadings.
I conclude that, together, the doctrines of standing and ripeness do present an impassable barrier to plaintiffs' claims. The claim that the policy guidance is substantively arbitrary or capricious is unripe because its adjudication would require speculation on the nature of hypothetical enforcement proceedings. Plaintiffs' other two claims -- that the statute allows regulation of national origin discrimination, not language discrimination, and that the statute does not allow disparate impact regulations -- present purely legal issues under a settled agency policy, and so they are ripe, but plaintiffs lack standing to bring them. The injury of which they complain would not be redressed by the remedy they seek: the obligation of HUD's funding recipients to communicate with their tenants in languages other than English did not arise from the challenged policy guidance and so would survive its invalidation.
Ripeness is a justiciability doctrine designed both to prevent courts from short-circuiting policymaking activity that is not yet complete and to prevent premature adjudication of issues whose just resolution would benefit from further factual development. See, e.g., Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 732-733 (1998) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 148-149 (1967)). The Supreme Court has distilled the necessary inquiry into a three factor test: "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." Ohio Forestry, 523 U.S. at 733. Ultimately, the dispositive question is "whether the issues tendered are appropriate for judicial resolution," Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 156, 162 (1967), balancing the benefits of patience for the administrative process against the harms of withholding review.
Concerns about ripeness abate most quickly when the issues presented are "purely legal question[s]." See Toilet Goods, 367 U.S. at 163. An example would be a claim that "the regulation is totally beyond the agency's power under the statute," which is "the type of legal issue that courts have occasionally dealt with without requiring a specific attempt at enforcement." See id. (citing Columbia Broadcasting System v. United States, 316 U.S. 407 (1942); Pierce v. Society of Sisters, 268 U.S. 510 (1925)); see also Nat'l Mining Ass'n v. Fowler, 324 F.3d 752, 757 (D.C. Cir. 2003) (if a petition for review raises a purely legal question, "it is presumptively reviewable"). Such purely legal challenges will be deemed unfit for present judicial resolution only if there is a showing that "the agency or court will benefit from deferring review until the agency's policies have crystallized through the application of the policy to particular facts." Am. Petroleum Inst. v. EPA, 906 F.2d 729, 739 (D.C. Cir. 1990) (quoting Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985) (internal quotations omitted).
On these precedents, plaintiffs' two main complaints, regarding the distinction between national origin and language discrimination and the availability of a disparate impact theory under Title VI, are already ripe for review. The allegation is essentially that regulation of English-only communication as a form of national origin discrimination exceeds the statutory authority granted under Title VI, even as a form of disparate impact regulation, and this raises a purely legal question. It involves the application of no facts, and the agency's position on the issue is settled by long-standing regulation in addition to the current policy guidance. The agency's position on this matter is fully crystallized -- or, perhaps, set in concrete -- and neither accuracy in adjudication nor flexibility in policy-making will be affected by delaying the issue any longer.
Plaintiffs' complaint of substantive arbitrariness and capriciousness in violation of 5 U.S.C. § 706(2)(A) is different. The theory is that the guidance's requirement to communicate in languages other than English is overly burdensome, or vague, or both, and that it imposes prohibitive costs upon landlords. See Complaint  at ¶¶ 54-55. That argument runs smack into the ripeness doctrine. Perhaps anticipating the argument, HUD explained in the guidance that "the intent of this Guidance is to suggest a balance that ensures meaningful access by LEP persons . . . while not imposing undue burdens on small business." 72 Fed. Reg. 2740. HUD further explained that the guidance was "designed to be a flexible and fact-dependent standard," giving various factors that funding recipients should consider in assessing their own compliance. Id. (emphasis added). Application of the ripeness doctrine in this context gives the agency the opportunity to show that what it calls "flexibility" is not what the plaintiffs call "vagueness" by allowing the court to abstain from review until a crystallized factual record exists. For their part, the plaintiffs have made no showing that, in their real-world interactions with HUD, the guidance -- with its "vague" requirements -- is being dangled over their heads like the sword of Damocles. The benefits of abstention for the administrative and adjudicative processes thus far outweigh the harms to the plaintiff, and this cause of action will accordingly be dismissed as unripe.
Although the first two claims are ripe, these plaintiffs lack standing to pursue them because the relief they seek -- invalidation of HUD's policy guidance -- would not redress their claimed injury. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), rendered Article III standing into a three-part inquiry:
First, the plaintiff must have suffered an injury in fact - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."
Id. at 560-61 (internal quotations omitted). This inquiry is not satisfied where a plaintiff challenges an agency publication which is "neither a rule nor a precedent but is merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications." Utility Air Regulatory Group v. EPA, 320 F.3d 272, 278 (D.C. Cir. 2003) (quoting Pac. Gas & Elec. Co. v. Fed. Power Comm'n, 506 F.2d 33, 38 (D.C. Cir. 1974); see also Panhandle E. Pipeline Co. v. FERC, 198 F.3d 266, 269 (D.C. Cir. 1999). Plaintiffs' standing in this case thus turns upon the proper characterization of HUD's policy guidance and its relation to other regulations in causing the particular injury of which they complain.
Because the plaintiffs challenge the substance of the guidance, and not the procedures by which it was promulgated, it is not necessary to inquire broadly into whether HUD's guidance is a substantive regulation or an "interpretive rule." See 5 U.S.C. § 553(b). I am sensitive to the concerns that Judge Randolph enunciated in Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000) -- namely, that an agency might use "policy guidance" when actually regulating as a way of making law without public comment or as a means of evading judicial review. I also do not doubt that the intent of HUD's guidance was regulatory in the sense that it was meant to menace landlords into compliance by raising the specter of funding termination under certain circumstances. Yet where plaintiffs challenge a particular aspect of a guidance document as exceeding an agency's authority under its authorizing statute, the standing question is not only whether the guidance document was actually a substantive ...