*1 stаnding that is not self-evident—does position, Core respect show how its with service, specific
some improved would be
by grant petition of its for forbearance (cid:127) § regulation
from 254(g). under
* * * petition
Core’s for review is
Dismissed.
545 F.3d
EMERGENCY COALITION TO DE-
FEND EDUCATIONAL TRAV- al.,
EL, Appellants et
UNITED STATES DEPARTMENT TREASURY,
OF al., THE et
Appellees.
No. 07-5317.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 2008.
Decided Nov. *2 argued L. Muse the cause and
Robert appellants. filed the briefs Letter, Counsel, Douglas Litigation N. Justice, Department argued cause With him on the brief appellees. Katsas, Gregory Acting was G. Assistant Lawrence, Attorney Craig R. General. Attorney, ap- Assistant U.S. entered pearance. foreign shifting response BROWN, waned Judge,
Before: Circuit adminis- succeeding presidential SILBERMAN, policies Senior EDWARDS of the em- objective trations. The essential Judges. Circuit the same: however, remained bargo, filed Senior Opinion for de- government by *3 to isolate Cuban Judge SILBERMAN. Circuit economy of the benefit island’s priving the dollars. by Senior Concurring opinions filed the Of- regulations, present the Under and Judges EDWARDS Circuit to via the issu- authorizes travel Cuba fice SILBERMAN. li- specific or a general ance of either SILBERMAN, Judge: Senior Circuit A license is made available general cense. of aca- include an association Appellants to official for travel related Defend Emergency to demics-the Coalition and, in defined circum- certain business “Coalition”) (the Educational Travel —two re- stances, professional or journalistic undergradu- and three college professors, licenses are dis- Specific activities. search Secretary They sued the ate students. “case-by-case basis” for all on a pensed Treasury Foreign and the Office of Assets alia, including, inter travel purposes, other “Office”) (the Treasury as- Control within obligations, reli- with familial connected to the that the 2004 amendments serting activities, projects, and gious humanitarian the regulations governing Office’s Cuba or exhibitions. Un- performances cultural embargo, tightened restric- trade under- accredited U.S. regulations, der study programs, vio- tions on Cuba-based aca- degree-granting graduate graduate or lated the First and Fifth Amendments eligible to obtain a institutions are demic Constitution, APA. The as the well qualified license so as to allow specific court, thoughtful opinion, in a district list engage to an enumerated individuals motions to dis- granted Government’s activities, including “participation miss. We affirm. program in educational Cuba.” structured for selected edu- exemption
This limited I in effect since cational has been activities Kennedy exercised In President in this suit are cer- At immediate issue authority Trading under the with
his broad 5(b) (the travel Act, § tain 2004 amendments Cuba Enemy U.S.CApp. in a diminution of that resulted “Act”), comprehensive trade restrictions impose These amendments were pres- exemption. to a embargo against Cuba. Pursuant Act, the recommendations inspired by Trea- designation under idential for Assistance interagency Commission agency responsible for adminis- sury is Cuba, by in 2003 Presi- a Free established regime, Treasury and tering embargo Secretary of State George dent W. Bush. delegated promulgation turn Commission, chaired the regulations Colin Powell implementation of the high-level repre- composed of Assets which was to the Office. Cuban thereunder variety of executive from a Part 515. sentatives Regulations, 31 C.F.R. Control including the Secretaries initially agencies, issued While Develop- Treasury, Housing and Urban to combat subversive activities in order ment, Commerce, Security, Homeland through- regime the Castro undertaken National Securi- as the President’s America, years, their as well Latin over out Bush directed ty Advisor. President waxed and scope stringency report him whereby any Commission on how the strictions program such might U.S. Government best induce the must last for at least one full academic peaceful fall of the dictatorship. Castro term of no fewer than ten weeks. Among objectives the stated of the Com- Second, require strengthen mission towas enforcement of traveling student to Cuba under travel restriсtions in response percep- to a the specific license of an academic in- tion that travel licenses had been abused stitution must be enrolled in either an as a illegal covert means to undertake undergraduate graduate or degree pro- business or tourist travel. ie., gram at such cross-reg- institution — istration in a course offered another May 2004, the Commission submitted no longer permit- Report.1 its The Commission noted that *4 Finally, ted. the amended regime aggressively pro- Castro plainly moted integral part any faculty tourism as an state that teaching its strategy retaining for under grip power. auspices its on of an academic in- The Commission that observed while some stitution’s license must be “full-time participants had used specific licenses permanent employees” “regularly em- in accordance with their intended academic ployed in a teaching capacity at li- objective, scrupulous less travelers and censed institution.” The Coalition universities had embargo circumvented the claims that requirement final is by using the licenses for improper tourist amendments; new as of the 2004 purposes. Report And the particular- was disputes Government this and asserts ly study-abroad dubious certain pro- that the amendments merely clai’ified grams of short duration that for allowed requirements contained in the existing minimal cross-cultural interaction with Cu- regulations. provided ban citizens and for excessive The organization Coalition is an of over unstructured time during partici- four hundred academic professionals em- pants might pursue purely tourist activi- ployed by accredited colleges and uni- ties. expressed Concern was that such versities, both private. state and The programs often cynically manipulated group response was formed in to the 2004 by regime the Cuban repres- to coat the amendments, and purpose its sole is to patina sivе Communist state awith of rea- seek amendments, or, rescission of the sonability, openness, legitimacy. The the Coalition’s more colorful language, “to Report concluded that requirement that defend the professors freedom of U.S. specific licenses for educational activities teach, to design, students and attend granted (ie., solely to semester-length courses Cuba free of U.S. Government more) ten weeks or programs would retain diktat.”
the benefits of promoting study and of diffusing Cuba American values Smith, Ph.D., Appellant Wayne Dr. S. throughout the island nation while curtail- the Chairman of the Coalition and an Ad- ing abuses. junct Professor of Latin American Studies The 2004 Hopkins University. amendments to the Johns He regula- also First, tions resulted. a durational re- serves as Director of Hopkins’ Johns Cuba quirement programs Exchange Program, educational and between 1997 and conducted in Cuba U.S. academic taught Smith annual inter-session institutions was added to the travel re- courses to American students enrolled in Cuba, (2004). Report Commission for Assistance to a Free to the President program. Cuba, graduation He asserts that the 2004 since the standard only resulted the can- schedule cannot accommodate a ten-week program cellation of the exchange but also solely pursuit semester devoted bar him personally teaching from in Cuba one course. adjunct due to his status professor. as an mix brought Coalition of constitu-
Appellant Cotman, Ph.D., Dr. John Walton statutory tional and in the claims district is an Associate Professor Political Sci- They court. claimed amend- University ence at Howard and specializes ments’ “savage” restrictions U.S. aca- study in the of international relations and programs unconstitutionally demic in Cuba comparative politics in the Caribbean re- their rights violate to academic gion. freedom Cotman claims that the 2004 amend- prohibit ments him under the from First Amendment and thе Fifth courses offered in Cuba other universities. Ap- process Amendment’s due “substantive pellant Abby was a Hop- Wakefield Johns rights clause” [sic] them travel kins sophomore this suit when was filed. internationally pur- First by Smith, She has been informed speaking poses under Ap- the Fifth Amendment. in his capacity as head Cuban Ex- claimed, moreover, pellants change Program, university’s in- *5 amendments violate the Act and the APA. ter-session courses resume will immediate- The Government that each responded ly should challenged the rulemaking be appellants the standing bring lacks to the rescinded and accepted that she will be arguing asserted challenges, appel- that into the first such program. lants had not an injury-in-fact sustained Appellants argue that the 2004 amend- sufficient or concreteness imminence and ments caused the cancellation of virtually appellants to had failed demonstrate .that all of the by courses offered Cuba a that favorablе decision would redress the They universities. that claim the ban on alleged injury, any such because relief de- prior the practice aggregating students pends independent on the action of non- variety from a of universities into one party merits, universities. On the by single course offered the a institution has (i) made it economically infeasible Government that argued for most the 2004 universities to continue to offer courses in interpreta- amendments are a reasonable Cuba, given the limited resources available tion of the Act and moreover fall squarely and the relatively small number of stu- the within Executive Branch’s inherent dents interested in study at Cuba one (ii) foreign policy powers and that the university. It is also asserted that the deprive appellants amendments did not requirement that teachers of Cuba courses any constitutional right. permanent employees” “full-time “regu- The district rejected court the Govern- larly employed in a сapacity at ment’s standing challenge as to Smith and the licensed institution” has drastically re- individuals, as Wakefield as well to the duced pool the of professors eligible to as an Emergency Coalition association. teach such example, courses. For this re- to Coalition Educational Travel v. striction, appellants argue, has precluded Defend Dep’t Treasury, F.Supp.2d (qua adjunct Smith professor) Cotman (D.D.C.2007), but the described issue as (qua guest professor) from teaching in “close.” Id. at Finally, appellants argue Cuba. 158. Cotman was held to the minimum requirement prevents standing duration lack grounds the he had most interested from studying sufficiently students in failed to demonstrate concrete issue. The full-time trav- three amendments at for educational
plans opportunities or Id,.2 requirement directly most affects faculty toel Cuba. Smith, posi- he holds a full-time neither assuming, held The court also that even so Hopkins at nor intends to do tion Johns arguendо, appellants possess The non-aggregation in the future. freedom, of any no to academic violation allegedly requirements minimum duration the right occurred as result of such drying up Smith the funds neces- injure ques- amendments, the regulations since at sary support program to Cuba supported by tion are content-neutral and Hopkins away the driving Johns important governmental and substantial clientele, respectively, program’s student at Fifth Appellants’ interest. Id. 161. denying opportunity thus Smith arguments rejected as Despite teach Cuba. success Finally, Id. at “simply wrong.” courses to date Cuba of appellants’ court held that both statuto- study offerings, abroad known its ry arguments-that the 2004 restrictions have alleged 2004 amendments are rationally purposes are related to inter- Hopkins forced cancel the Johns con- of the Act and that Smith that he programs. session states Congress-lacked travene the will of merit. had al- and Professor Eduardo González Id. at 164. ready plans January made concrete This followed. appeal upon 2005 course and were intent continu- future. ing program into indefinite II profes- He further indicates that the two “accompanied its conten- Government reiterates sors “doubtless” would appellants group tion that none of the has stand- Havana and shared in teach- *6 ing jurisdiction ing and that we therefore lack the The district court course.” course, any one thought appellants the case. Of if of that had “the better over standing, jurisdic- that their concrete and defi- appellants argument has we have [in] that plans tion. The Government claims Dr. nite statements of future elevate linchpin appellants’ claims beyond hypothet- Smith is the of their realm of standing of both suffice standing support case: ical intentions and dependent finding on of injury-in-fact.” F.Supp.2d Coalition and Wakefield is 498 him. claim We therefore address Smith’s at 158.
first. agree. Although We “ year day1 that ‘some intentions- Smith asserts that each said any description plans, from the 2004 of concrete 1997 until were without specification when promulgated, he had fifteen to twen or indeed of taken even January be-do ty study day support students for three-week the some will of programs frequently finding injury He took the ‘actual or imminent’ Cuba. also Lujan our groups eight require,” of six to students for simi cases v. Defend- 555, 564, 112 Wildlife, lar course in June. Smith ers three-week (1992) 119 injured by (emphasis claims to been each L.Ed.2d 351 however, length, given The to address issue at district court further observed appellants standing claims Jessica Kamen and Ad- two its conclusion that the lacked if, anticipated, nan Ahmad would moot as they the basis that lacked concrete travel graduated these in fact from two students plans. F.Supp.2d 498 at 158 n. 3. Hopkins Johns in 2007. The court declined v. nom. District Columbia repetition grounds annual sub original), the consistent — Heller, U.S. —, January program years several over сon- culminating plans (2008); in concrete for the City Waukesha L.Ed.2d (D.C.Cir.2003); are program EPA, tent and focus of the 2005 320 F.3d than plainly specific far more concrete and Employees, AFL-CIO Am. Fed’n Gov’t day” mere “some intentions. (D.C.Cir.1982). Pierce, F.2d Therefore, must assume that the we in- Notwithstanding, Government significance legal have the injury-in-fact sists Smith cannot establish Moreover, as the Coali appellants assert. pre-amendment regu- because it reads the observes, if the tion even Government barring part-time faculty from lations correct, satisfy Smith would still were Thus, according Cuba. injury-in-fact element because he would Government, the 2004 amend- even were regu asserting pre-2004 then be that the rescinded, ineligi- ments to be he would be in newly applied-had caused his lations-as prior regulations to teach in The ble Cuba. jury. were, however, ambiguous: organization preparation of and Alternatively, the Government
transactions and activities described in
challenges
redressability,
arguing that
(a)(2)(i)
(a)(2)(vi)
paragraphs
through
voided,
if the 2004 amendments
even
were
by
of a
employee
this section
a full-time
unlikely
Hopkins
it
that Johns
would
academic institution. An individual
It is
that the
program.
resume the
clear
engaging in such transactions must car-
because of the
program was discontinued
ry a written letter from the individual’s
Indeed,
2004 amendments.
Govern
institution, citing
U.S. academic
Yet the
ment has conceded causation.4
li-
specific
number of that
institution’s
provid
insists that Smith has
Government
stating
cense
the individual is
program
indication that the
employed there.3
ed insufficient
regularly
Hopkins
be revived
Johns
provision
It
is not clear whether this
sure,
relief. To be
Johns
grant
we to
“organize
pre
that those
meant
who
Hopkins
party
point empha
is not a
—a
faculty
pare” teaching activities include
unequiv
no
sized
the Government—and
teaching.
do the
It is evident that the
who
*7
university
ocal
from the
statement
regula
thought
prior
Office must have
the
indicating an intent to re
produced
been
clearly
tions did not
reach someone like
prevail.
if
program
appellants
sume the
Smith, for otherwise the relevant amend
do, however,
a letter from the
We
been
In
ment would not have
introduced.
for Aca
Provost and Senior Vice President
event,
mixing
the
is
Government
requesting
Hopkins
demic Affairs at Johns
question
standing analysis,
into the
merits
that
reconsideration of the
so
In
stand
improper.
considering
which is
university may
offering”
“continue
the
the
in
ing, we must assume the merits
favor of
evidently contin
program. And Smith has
party invoking
jurisdiction.
the
our
See
program
the
dur
ued as Director of
Cuba
Seldin,
490, 500,
v.
Warth
that
it has remained
ing
years
the four
(1975);
231
III
speech.
Pennsylvania
See Univ.
v.
EEOC,
182, 197,
577,
110 S.Ct.
Appellants
assert
(1990).
tions, Policy, deny currency govern- Foreign to to the No. 67 is Smith, ed., long 87-103; Wayne has S. The Rits- ment of Cuba. Our to the ulti- policy deemed this instrumental Policy Coming: sians Aren’t New Soviet of toward goal nudging (1992). mate Cuba a America in Latin oppressive transition from the peaceful contend that we are bound Appellants regime of the to a free and policies Castro to exact- by precedent apply particularly a The 2004 amend- society. democratic strict to the 2004 ing scrutiny form of to specifically designed ments curtail They require specif- a amendments. tourism, much-exploited critical a rev- are ic demonstration that the amendments for government. enue source the Cuban security concerns. justified national amendments, of purpose The the 2004 agree with court that strict We district thus, Capital See Cit- is content-neutral. scrutiny inappropriate. supra, As noted ies/ABC, Brady, F.Supp. Inc. v. 740 scrutiny ap- test the O’Brien intermediate (S.D.N.Y.1990). 1013-14 None of this is and so plies regulations, to content-neutral remotely related of suppression to the free long government’s as the federal interest nor is expression, any restriction whatso- in at promulgating regulations issue— placed on the matter or subject ever edito- here, denial of currency Castro professor may rial slant choose incor- or regime “important” deemed “sub- into his porate teaching on Cuba. —is stantial,” upheld. must be Appellants attempt to show that academic con- 2004 eliminate that has stated in exclusively tent that is available situ in currency the denial of hard to Cuba is Cuba, example, trips field cultural “justified by foreign weighty concerns excursions. We think this notion of “con- policy.” Regan, beyond all recog- tent” stretches the term Walsh, involving a case First nition. Professors and students law challenge application Amendment may academically arguably benefit from the Cuba travel restrictions to the news- visiting maximum-security penitentiary gathering importer polit activities of an witnessing execution; regula- or ical posters, we held that denial hard prison may tions and restrict codes free currency to Cuba the intermediate meets not, penal to our does access institutions scrutiny standard. F.2d at 1235. Our 927 view, regu- our render content-based them uniformly sister circuits have reached simi Contrary appellants’ implica- lations. currency lar hard conclusions. Denial of tion, slightest showing there is Cuba, regimes, including to hostile has suppress sought the Government “vital,” as v. Re Teague been described study.” message “warrant[s] Cuba Customs, gional F.2d Comm’r 404 Indeed, regulations, even under the new (2d Cir.1968), “compelling,” and as remain professors free to teach Cuba so Veterans & Peace in Reservists Viet employ- long they their institutional Customs, Regional nam v. Comm’r programs in accordance ers establish with (3d Cir.1972). Further, F.2d on least regulations. Nothing noth- —at occasions, numerous content-neutral re ing prevents under American or ever law— strictions travel to and other hos from Cuba prevented Professor Smith lec- See, face upheld tile nations have been turing topics. e.g., on his favored See, Smith, challenges. First Wayne Angola,” “A For- similar Trap S. 1986), 61-74; Rusk, 1, 16-17, eign Policy, (Spring, e.g., No. Zemel v. (1965) Smith, Wayne Nicaragua,” (passport S. About “Lies L.Ed.2d 179 *10 validation); sure, noted, security. to Travel To be as we Campaign Freedom tional Newcomb, (9th 1431, 82 F.3d govern- Cir. Regan Court did describe 1996) (educational travel); Clancy v. “weighty,” ment’s considerations as but OFAC, 05-C-580, No. 2007 U.S. Dist. slightest suggestion not the in the there is 29232, 1051767, LEXIS 2007 WL *16 opinion arrogating that the was to Court (E.D.Wis. 2007) (travel 31, Iraq March to authority to make judiciary the federal shield”). as “human importance determinations as to the Indeed, competing foreign policy options. claim appellants’
Even weaker
judi-
made clear that the federal
Court
right
that their
to
Fifth
travel under the
political
ciary
obliged
was
to defer
infringed
Amendment has been
reg
242,
questions.
branches on such
Id. at
Dulles,
Although
ulations.
Kent v.
116,
plaintiffs unlike in were not tightening restrictions on educational passports denied to travel to Cuba on the Cuba, travel are content neutral and (Kent personal basis of characteristics. was supported by an important governmental Party.) a member of the Communist In Therefore, agree interest. I reg- that the stead, applied equally to all infringe ulations do not appellants’ First citizens and rooted in foreign policy were Amendment rights. Appellants have not concerns. Id. at Ap S.Ct. 3026. any right invoked to “academic freedom” pellants Regan insist that gov limited the trumps the government’s right ability ernment’s to enact travel rеstric promulgate regulations. tions to those We there- situations which it can (that is, that, point “weighty’ appellants’ case, fore assume in this the First view, “compelling”) considerations of rights implicated by appel- na- Amendment Appellants bevy statutory also assert a Congress. “defiance” of the will of The short claims, although impre- their briefs are rather argument appellants’ answer to is that a sense (addressed by cise. Those issues the district Congress resolution is not law. court) longer appear target no to be the Appellants argue also that the amendments appellants' argument. They concede that the promulgated support without factual precatory language of the Free Trade in Infor- and therefore violate the APA. We take it that upon they rely mation Act was “of they challenging supposed are factual non-binding,” argue ... course but that the premises Report, of the Commission but these languagе They urge remains relevant. us to Congress” policy factual issues are intertwined language hold that the "sense of with rulemaking judgments question. shows that the was undertaken in that we have no basis to
234
any ap- University Michigan Ewing,
474
claims are coterminous with
lants’
of
507,
214,
11,
plicable
to academic
225 n.
106 S.Ct.
88 L.Ed.2d
rights
freedom.
“University
(1985) noting
523
facul
—
the
disposition
of
First Amendment
range
ties must
of
have the widest
discre
grounds
case on
other than
issue
tion in
as to the
making judgments
aca
is relatively straightfor-
academic freedom
and
performance
demic
of students
their
Therefore, it is
uncomplicated.
and
ward
graduation”—
or
promotion
entitlement to
unnecessary
parse
many
for us to
diffi-
gives
idea.
In upholding
some life to this
relating
concept
and
cult issues
faculty’s
to dismiss a
decision
student
freedom,”
scope
including,
of “academic
reexamination,
permitting
without
alia:
academic freedom is a
inter
whether
Ewing Court said:
all;
at
right
constitutional
the breadth of
Added to our concern for lack of stan
freedom; whether academic free-
academic
dards
to trench on
is a reluctance
additional
in-
implicates
dom
constitutional
prerogatives
and local
of state
edu
fully
not
terests that are
accounted for
responsibili
cational
our
institutions and
customary employee-
Court’s
ty
freedom,
to safeguard them academic
speech jurisprudence;
professor
whether a
special
“a
concern of the First Amend
an individual
may assert
constitutional
ment.” Keyishian
Regents,
v. Board
of
freedom
uni-
against
academic
of
589, 603,
675,
385 U.S.
87 S.Ct.
17
versity employer; how
freedom
academic
(1967).12 If a
L.Ed.2d 629
“federal court'
public
private
should be enforced
versus
is not
forum in
appropriate
which to
universities;
and
distin-
whether
how we
personnel
review the multitude of
deci
guish
university-as-a-speaker
between
daily by
sions
public
that are made
university-as-an-employer
and
as-
Wood,
341,
agencies,” Bishop v.
426 U.S.
freedom;
sessing the contours of academic
96
48 L.Ed.2d
S.Ct.
684
professors
and the extent to which
(1976),
far less is it suited
evaluate
rights
of academic freedom in
the substance of the multitude of aca
For an
governance.
excellent discussion
demic
daily by
decisions that are made
complex
issues surrounding aca-
faculty
public
members of
educational
freedom,
Areen,
see Judith
demic
Govern-
require
institutions —decisions
“an
A New Understanding
ment as Educator:
expert evaluation of cumulative informa
First Amendment Protection
Aca-
of
readily adapted
tion not
[are]
Governance,
Freedom and
demic
97 Geo.
procedural
or
judicial
tools of
adminis
2009).
L.J.-(forthcoming
Apr.
trative decisionmaking.”
Cura
Board of
easy
freedom is not
Academic
con-
tors,
Horowitz,
Univ. Mo. v.
435 U.S.
cept
grasp,
and its breadth
far from
[78, 89-90,
55
124
S.Ct.
L.Ed.2d
generally
clear. It has
been understood to
(1978)].
protect and foster the
independent
exchange of
among
uninhibited
ideas
only
Academic freedom thrives
on
independent
exchange
and uninhibited
and students and
pur-
teachers
the serious
students,
among
ideas
Keyis-
teachers and
see
scholarship among
suit of
members of the
U.S.,
Regents,
hian v.
Board
603 [87
However,
academy.
Areen
Professor
629]; Sweezy
S.Ct.
17 L.Ed.2d
v. New
article,
notes in her
academic
as a
freedom
234, 250,
Hampshire,
354 U.S.
(1957)
Warren,
(opinion
L.Ed.2d 1311
concept may
First Amendment
extend be-
C.J.),
also,
inconsistently,
but
and somewhat
yond writing
con-
and include
decisionmaking by
autonomous
acade-
cepts
governance.”
of “shared
The Su-
itself,
my
University
Regents
see
of California
preme
in Regents
Court’s decision
Bakke,
265, 312,
(1978)
Powell, J.);
(opinion
L.Ed.2d
governance
number of
matters
academic
*12
U.S.,
Sweezy
Hampshire,
v. New
354
at 263
(Bakke
including
policy
admissions
and
1203,
(Frankfurter,
S.Ct.
ing that there is argument” “some to sup
port it.
Id. at
University Pennsylvania, the Court
treated that concept ground as a for defer
ence akin to Chevron rather than as a notes evolution of the ease ad- law in appear academic freedom Garcetti v. dressing governance: shared Ceballos, (2006). case, deputy The Court in L.Ed.2d 689 In that its later decisions [has] § posi- attorney embraced Frankfurter’s district [Justice] filed U.S.C. complaint his in a Sweezy against tion concurrence and ex- officials district at- protection torney’s office, tended alleging subject constitutional to a he was (2003) (“We long 156 L.Ed.2d employment 304] actions retalia- adverse that, recognized given important protected speech, tion engaging is, purpose education the ex public a memorandum in he writing pansive speech thought freedoms of dismissal of a case on the recommended governmental miscon- associated with environ purported basis of ment, special public occupy niche duct. The held when universities tradition”); Keyis our employees pursuant make statements constitutional duties, Regents