No Saline Solution
The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal on standing grounds of claims brought by “concerned parents” upset by a policy statement of the Attorney General
Appellants are Saline Parents, an unincorporated association of parents and “concerned private citizens” in Saline, Michigan, along with six individual parents who reside in Saline, Michigan and Loudoun County, Virginia. Appellants describe themselves as “law-abiding citizens who want to speak in defense of their children and against the divisive, harmful, immoral, destructive, and racist agenda of the ‘progressive’ Left.” Compl. ¶ 106, J.A. 28. Appellants claim they are targeted by the DOJ because they strongly and publicly oppose these “progressive” policies adopted by school boards. They argue that as a direct result of the Government’s actions, their exercise of fundamental rights has been chilled and their reputations impugned. However, Appellants point to no concrete facts to support these claims.
Source of the distress
On October 4, 2021, the Attorney General of the United States, Merrick Garland, issued a one-page memorandum (“Memorandum”) to various units in the Department of Justice (“DOJ” or “Government”), expressing concern over a spike in reported incidents involving harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff. The Memorandum indicated that “[w]hile spirited debate about policy matters is protected under our Constitution, that protection does not extend to threats of violence or efforts to intimidate individuals based on their views.” Supplemental Joint Appendix (“S.J.A.”) The Memorandum instructed DOJ staff to investigate the problem and discuss strategies for addressing the issue. The Federal Bureau of Investigation (“FBI”) subsequently sent an email (“FBI Email”) advising its agents that it had created an internal mechanism to track investigations and threat assessments relating to the issues raised in the Memorandum.
No standing
At bottom, Appellants’ pre-enforcement claim rests on hypotheticals that are too remote, speculative, and abstract for judicial review. The Supreme Court has been clear, time and again, that a case is unripe for review when “[a]ny prediction how the [Government] might eventually implement . . . [a] policy is ‘no more than conjecture.’” Trump, 141 S. Ct. at 535 (quoting Los Angeles v. Lyons, 461 U.S. 95, 108 (1983)). For us to embrace Appellants’ argument that the Government will target peaceful protests of school policies, despite the Memorandum expressly promising otherwise, would require this court to depart from the land of record evidence and venture into the thickets of fanciful speculation.
The opinion of Senior Circuit Judge Edwards was joined by Circuit Judges Rao and Pan. (Mike Frisch)