Margaret Allan, Petitioner, v. The University of Washington, Respondent, 140 Wash. 2d 323

Madsen, J. Margaret Allan, Petitioner, petitioned in Thurston County Superior Court for a declaratory judgment to invalidate procedures adopted by the University of Washington (UW), Respondent, that amended the adjudication process for faculty disciplinary matters provided for in

Chapter 28 of the UW Faculty Code. Allan, the wife of a UW professor, argued that the procedures had been promulgated in violation of the Administrative Procedure Act (APA),

chapter 34.05 RCW The trial court agreed and granted

summary judgment to Allan. The UW appealed, arguing that Allan lacked standing to initiate her lawsuit. The Court of Appeals, Division Two, reversed. It found that Allan lacked standing and, accordingly, did not reach the APA question. Allan petitioned for our review. We granted review, and affirm the Court of Appeals. FACTS The relevant facts are uncontroverted in this case. Margaret Allan is the wife of UW Professor Graham Allan. Professor Allan was the subject of a 1989 sexual harassment claim brought by a UW student.

In response to that claim, the UW suspended and sought to terminate Professor Allan, but he appealed that action to a faculty committee which reinstated him following proceedings in which his wife was a participant, with separate counsel, under subpoena. The student subsequently sued the UW and that lawsuit was settled in 1991. Part of the settlement was an agreement that the UW would seek to have the Faculty Senate change the procedures governing faculty members’ appeals of discipline arising out of student complaints.

UW President William Gerberding subsequently proposed and strongly encouraged, in a 1992 letter to the chair of the Faculty Senate, changes to the “Faculty Code Adjudicative Procedures” that mirrored the settlement language. Clerk’s Papers (CP) at 145. Prior to the adoption of the changes, Allan, through counsel, advised the chair of the Faculty Senate that it was her belief that the UW must comply with the APA in adopting any proposed rule changes— including providing opportunity for public comment — or the changes would be invalid.

In response, the UW Division of the Attorney General’s Office conveyed to Allan’s attorney its opinion that “[t]he revision to the faculty adjudication procedures is not subject to the Administrative Procedures Act because, under RCW 34.05.010(15), rules of institutions of higher education involving employment relationships are not ‘rules’ within the meaning of the APA.” CP at 330. Changes to the adjudicative procedures in

Chapter 28 of the Faculty Code were enacted in 1994 by a faculty vote. Following that, Allan petitioned for declaratory relief in Thurston County Superior Court — requesting that the court declare the rules invalid and set them aside. The UW moved to dismiss for lack of standing, and the trial court denied this motion and a motion to reconsider. The parties then cross-moved for

summary judgment, with neither contending that any issues of material fact precluded the grant of their motions. The trial court issued an oral ruling and entered an order granting Allan’s motion in June 1996. The UW appealed, and the Court of Appeals, Division Two, reversed the trial court — finding that Allan lacked standing to challenge the revisions to the Faculty Code, and thus did not address the question of whether the process of promulgating those revisions was in compliance with the APA. See Allan v. University of Wash., 92 Wn. App. 31, 959 P.2d 1184 (1998).

Allan petitioned for our review, and review was granted. ANALYSIS The threshold question in this case is whether Margaret Allan has standing to challenge the 1994 revisions to the Faculty Code. The Court of Appeals analyzed Allan’s claim under the APA standing rule, RCW 34.05.530: A person has standing to obtain judicial review of agency action if that person is aggrieved or adversely affected by the agency action. A person is aggrieved or adversely affected within the meaning of this

section only when all three of the following conditions are present:

(1) The agency action has prejudiced or is likely to prejudice that person;

(2) That person’s asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged; and

(3) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the agency action. (Emphasis added.) Of this test, the Court of Appeals wrote that “[t]he first and third prongs are generally called ‘injury-in-fact’ requirements, while the second is called the ‘zone of interest’ prong.” Allan, 92 Wn. App. at 36 (citing St. Joseph Hosp. & Health Care Ctr. v. Department of Health, 125 Wn.2d 733, 739, 887 P.2d 891 (1995)). The court observed that our statutory test “is drawn from and explained by federal case law.” Allan, 92 Wn.

App. at 36 (citing RCW 34.05.001) (further citations omitted). Applying the test, the court found that “Mrs. Allan lacks standing under RCW 34.05.530 to seek judicial review of the University’s action because she is not a person ‘aggrieved or adversely affected’ by an agency action.” Allan, 92 Wn. App. at 36 (citing St. Joseph Hosp., 125 Wn.2d at 739). Allan argues that “[t]he APA’s standing provisions are generously applied.” Br. of Resp’t at 26 (citations omitted). To illustrate this argument she points to United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S. Ct. 2405, 37 L.

Ed. 2d 254 (1973) (SCRAP). There the Supreme Court was confronted with a question of standing under the federal APA, and pointed to a number of cases in which the Court had allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote ... a $5 fine and costs . . . and a $1.50 poll tax .... While these cases were not dealing specifically with . . . the APA, we see no reason to adopt a more restrictive

interpretation of “adversely affected” or “aggrieved.” As Professor Davis has put it: “The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.” Id. at 689 n.14 (emphasis added) (citations omitted) (quoting Kenneth Culp Davis, Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601, 613 (1968)).

However, the Court has subsequently left the viability of SCRAP’s commentary on standing doubtful by writing of it that its “expansive expression of what would suffice for . . . review under its particular facts has never since been emulated by this Court . . . .” Lujan v. National Wildlife Fed’n, 497 U.S. 871, 889, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Furthermore, National Wildlife Fed’n declared SCRAP irrelevant for purposes of a motion for

summary judgment because it involved a “motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim.” Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992), is heavily relied upon by the UW.

There, where United States environmental groups sought to challenge, under the Endangered Species Act, the impact of a regulation upon animal species in foreign countries, the Court acknowledged that “[o]f course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” Id. at 562-63 (emphasis added) (citing Sierra Club v. Morton, 405 U.S. 727, 734, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972)).

However, it held that the groups had to demonstrate “not only that listed species were in fact being threatened by funded activities abroad, but also that one or more . . . members would thereby be ‘directly’ affected apart from their ‘ “special interest” in th[e] subject.’ ” Defenders, 504 U.S. at 563 (alteration in original) (quoting Sierra Club, 405 U.S. at 735, 739). In other words, “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review he . . . among the injured.” Sierra Club, 405 U.S. at 734-35 (emphasis added).

In Defenders, the attempt to obtain standing was based upon affidavits from two environmental group members who had each once visited Africa and had never seen any endangered species there, but professed a desire to return at some indeterminate point in the future to try to observe endangered species. See Defenders, 504 U.S. at 563. Not surprisingly, the Court noted that “[standing. . .requires, at the

summary judgment stage, a factual showing of perceptible harm.” Defenders, 504 U.S. at 566. While Allan is correct in pointing out that Defenders had “an incredibly attenuated fact pattem[,]” Br. of Resp’t at 30 n.4, it is still applicable to her case. After all, under Defenders, Allan must demonstrate “a factual showing of perceptible harm.” Defenders, 504 U.S. at 566. The harm Allen notes here is that she “participated as a party in the very adjudication and litigation which resulted in these changes.” Br. of Resp’t at 29. This is true.

However, the agency’s past action is not the one causing the asserted prejudice. See RCW 34.05.530(1). Moreover, the APA test speaks to present harm or more likely future harm. See RCW 34.05.530(1). Thus it would be improper to consider the past harm that Allan alleges she suffered as a result of the faculty adjudicative process involving her husband, as a sole basis for standing to challenge changes to that process made afterward.

The Supreme Court has noted that “ £[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.’ ” Defenders, 504 U.S. at 564 (emphasis added) (quoting City of L.A. v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). The Court of Appeals is correct that Allan’s £‘hypothetical argument that she could [again] someday be a witness in an adjudicatory proceeding is speculative and insufficient to establish standing.” Allan, 92 Wn. App. at 38.

Allan is left with little more than an argument of “procedural injury.” Allan contends, however, that her position is supported by Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wn.2d 787, 920 P.2d 581

(1996) CTrades Council), a case that involved

interpretation of the very statute at issue here: RCW 34.05.530. There, in an opinion relying upon Defenders, we wrote that “[wjhere an agency refuses to provide a procedure required by statute or the Constitution, the United States Supreme Court ‘routinely grants standing to a party’ despite the fact that ‘any injury to substantive rights attributable to failure to provide a procedure is both indirect and speculative.’ ” Trades Council, 129 Wn.2d at 794 (quoting 3 Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 16.5, at 31 (3d ed. 1994)).

We also quoted from another treatise that noted that “ ‘[f]ailure to comply with procedural requirements of itself establishes sufficient injury to confer standing.’ ” Trades Council, 129 Wn.2d at 794 (quoting 13 Charles Alan Wright et al., Federal Practice and Procedure § 3531.4, at 433 (2d ed. 1984)).

As we quoted Defenders itself: “ ‘There is this much truth to the assertion that ‘procedural rights’ are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.’ ” Trades Council, 129 Wn.2d at 794-95 (emphasis added) (quoting Defenders, 504 U.S. at 572 n.7).

However, we noted that essential to the assertion of “such procedural rights” was a “concrete interest,” although the “fact that any economic injury . . . might not be immediate, or the fact that the decision of the agency would be no different under formal adjudicatory proceedings [,] is not dispositive of the standing question if Appellants have a concrete interest protectable by a requirement of formal adjudicatory proceedings.” Trades Council, 129 Wn.2d at 795 (emphasis added).

In Trades Council, labor organizations with trade apprenticeship programs existing at the time that a public agency approved the standards for, and registration of, a competing apprenticeship program, sought judicial review of the question of whether this approval required a formal adjudicatory hearing. We found that these organizations had standing based upon the likely diminishment of employment opportunities as a result of the agency’s decision for apprentices of “existing programs, including their own.” Trades Council, 129 Wn.2d at 796.

Thus, the “injury in fact” and “zone of interest” prongs of the APA standing test were satisfied. See RCW 34.05.530. In this case the Court of Appeals found that “Mrs. Allan’s claimed interest, at best, is derived from her professor husband and his salary. But Mrs. Allan fails to establish a concrete interest of her own that has been injured by the claimed procedural error.” Allan, 92 Wn. App. at 37. The UW concedes that Professor Allan would have standing as a contracting faculty member to challenge an improperly promulgated change to the Faculty Code.

Allan argues that she should have standing as a part of her husband’s marital community, asserting an interest in his income. For support she points to LaHue v. Keystone Inv. Co., 6 Wn. App. 765, 496 P.2d 343 (1972). In that case the widow of a stockholder was found to have standing to maintain a derivative stockholder’s suit on the basis of her “one-half community interest in stock held in her husband’s name prior to his death,” and it did not matter whether the stock was “formally set aside to her in the course of probate of her husband’s estate . . . .” LaHue, 6 Wn. App. at 776-77 (citations omitted).

LaHue indicates that not only did it not matter that the widow there was not a shareholder of record, but that her standing was not contingent upon the fact of her husband’s death — for she was “not merely a legatee, but an owner of that one-half interest.” LaHue, 6 Wn. App. at 777 (emphasis added). Thus it was her community property interest in the stock itself that gave her standing. However, LaHue is certainly distinguishable here. Professor Allan’s interest in the UW’s rule-making process is based upon his employment by.the UW not just the income it generates.

He has contractual interest in the rules that govern his working conditions. Allan does not share this individual interest. She has not shown a concrete interest of her own. “ £By the community property law of this state . . . the legislature did not create an entity or a juristic person separate and apart from the spouses composing the marital community.’ ” deElche v. Jacobsen, 95 Wn.2d 237, 243, 622 P.2d 835 (1980) (quoting Bortle v. Osborne, 155 Wash. 585, 589-90, 285 P. 425, 67 A.L.R. 1152 (1930)).

The UW employs Frofessor Allan, not his marital community, and his wife cannot demonstrate that her “asserted interests are among those that the agency was required to consider when it engaged in the agency action challenged . . . .” RCW 34.05.530(2) (emphasis added). Furthermore, “[a] person is aggrieved or adversely affected within the meaning of’ the APA standing test only when the zone of interest and injury-in-fact prongs are satisfied. RCW 34.05.530. Allan cannot satisfy the injury-in-fact prongs by showing that the UW’s action “has prejudiced or is likely to prejudice” her. RCW 34.05.530(1).

She cannot show a threat to the only interest that she identifies — her community property interest in Professor Allan’s income — that is “sufficiently real;” in other words, a threat that is “neither imaginary nor speculative.” Yesler Terrace Community Council v. Cisneros, 37 F.3d 442, 446 (9th Cir. 1994) (citing Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982)). She does not point to, for example, any pending disciplinary proceeding under the revised Faculty Code that involves Professor Allan.

In comparison to the likely economic impacts upon plaintiffs found in Trades Council, any threat posed to Allan by the alleged violation of the APA herd is quite remote. Absent a concrete interest, injury-in-fact standing under the APA is not conferred upon the spouse of an administrative agency’s employee merely on the basis of an asserted failure on the part of the agency to follow procedural requirements. In conclusion, we find that Allan has not met the statutory test for standing in an APA case.

In light of this disposition, we cannot reach the question of whether the changes to the Faculty Code were required to be adopted in compliance with the APA. We affirm the Court of Appeals. Guy, C.J., Johnson, Alexander, Talmadge, and Ireland, JJ., and Coleman and Shields, JJ. Pro Tem., concur. Some of the cases that Allan cites to demonstrate liberalization in standing requirements are inapposite here because they did not involve the question of standing under the APA. See City of Seattle v. State, 103 Wn.2d 663, 694 P.2d 641 (1985); Seattle School Dist. No. 1 v.

State, 90 Wn.2d 476, 585 P.2d 71 (1978); Blondheim v. State, 84 Wn.2d 874, 529 P.2d 1096 (1975); State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 329 P.2d 841 (1958). Reagles v. Simpson, 72 Wn.2d 577, 434 P.2d 559 (1967) obliquely, and Bolser v. Washington State Liquor Control Bd., 90 Wn.2d 223, 225-26, 580 P.2d 629 (1978), more directly, are cases addressing standing under an earlier version of the APA that predated the 1988 adoption of the more exacting three-prong statutory standing test.

Compare, e.g., RCW 34.05.530 (1) (“The agency action ... is likely to prejudice that person (emphasis added)) with Bolser, 90 Wn.2d at 226 (“[T]he regulation in question or its threatened application may interfere with or impair . . . the legal rights or privileges of the plaintiffs . . . .” (emphasis added)) (citing former RCW 34.04.070(1); Kenneth Culp Davis, Standing, 1976, 72 Nw. U. L. Rev. 69, 80 (1977)). They cannot control today’s

interpretation of RCW 34.05.530. Professor Allan’s income is community property, which “[e]ither spouse, acting alone, may manage and control. . . .” RCW 26.16.030.