Saline Parents v. Merrick Garland

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2023 Decided December 15, 2023

No. 22-5258

SALINE PARENTS, AN UNINCORPORATED ASSOCIATION, ET AL.,

APPELLANTS

v.

MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-02775)

Robert J. Muise argued the cause for appellants. With him

on the briefs was David Yerushalmi.

Mark R. Freeman, Attorney, U.S. Department of Justice,

argued the cause for appellee. With him on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, and Mark B. Stern and John S. Koppel, Attorneys.

Before: RAO and PAN, Circuit Judges, and EDWARDS,

Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: 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.”) 2. 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.

Appellants in this case include an unincorporated

association (“Saline Parents”) and six individuals who reside

in Saline, Michigan and Loudoun County, Virginia. They filed

suit in the District Court against the Attorney General, claiming

that the foregoing actions by the Government are unlawful

because they are intended to silence Appellants and others who

oppose “progressive” curricula and policies in public schools.

Appellants say that they strongly and publicly voice opposition

to “the divisive, harmful, immoral, destructive, and racist

agenda of the ‘progressive’ Left.” First Amended Complaint

(“Compl.”) ¶ 106, Joint Appendix (“J.A.”) 28. And they

contend that, because their protest activities include only

constitutionally protected conduct and never threats of criminal

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violence, they have been impermissibly targeted by what they

term the “AG Policy.” Appellants allege the AG Policy directs

the Government “to use federal law enforcement resources to

silence parents and other private citizens” who object to the

“progressive” agenda. Id. ¶ 2, J.A. 6. Appellants seek a

declaration that the purported AG Policy is unlawful, along

with an injunction barring both the alleged policy and any

actions taken to enforce it.

The Government has acknowledged, both before the

District Court and this court, that the professed activities cited

by Appellants in their Complaint fall outside the scope of the

Memorandum and are fully protected by the Constitution. The

Government has also consistently maintained that Appellants

are not targets of any purported AG Policy.

The District Court dismissed the case for lack of standing,

holding that Appellants failed to demonstrate injury in fact

from the contested Government actions. See Saline Parents v.

Garland, 630 F. Supp. 3d 201, 205 (D.D.C. 2022). We agree

that Appellants lack standing to pursue this action. See Laird v.

Tatum, 408 U.S. 1, 11 (1972). In addition, we agree with the

Government that Appellants’ lawsuit is not ripe for

adjudication. See Trump v. New York, 141 S. Ct. 530, 536

(2020) (per curiam) (“At the end of the day, the standing and

ripeness inquiries both lead to the conclusion that judicial

resolution of this dispute is premature.”).

I. BACKGROUND

A. Factual Background

As noted above, on October 4, 2021, Attorney General

Garland sent a one-page Memorandum to various DOJ units,

noting “a disturbing spike in harassment, intimidation, and

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threats of violence against school administrators, board

members, teachers, and staff who . . . run[] our nation’s public

schools.” S.J.A. 2. The Memorandum acknowledged 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.” Id. The Memorandum stated that “[t]hreats against

public servants are . . . illegal,” and “[t]hose who dedicate their

time and energy” to running schools should “be able to do their

work without fear for their safety.” Id. The Memorandum

stated further that, “[i]n the coming days,” the DOJ would

“announce a series of measures designed to address the rise in

criminal conduct directed toward school personnel.” Id. And

the Memorandum instructed the FBI, working with each

United States Attorney, to “convene meetings” in order to

“facilitate the discussion of strategies for addressing threats,”

and to “open dedicated lines of communication for threat

reporting, assessment, and response.” Id.

The FBI Criminal Investigative Division and

Counterterrorism Division subsequently sent a joint internal

email to its agents stating that it had created what it called a

“threat tag” for internal tracking of “investigations and

assessments of threats” directed against school personnel.

S.J.A. 4. The FBI Email explained that the tag would “help

scope this threat” and “provide an opportunity for

comprehensive analysis of the threat picture for effective

engagement with law enforcement partners.” Id. Importantly,

neither the Memorandum nor the FBI Email announced any

new regulations or enforcement policies, or purported to issue

any directives outside of the DOJ. And neither the

Memorandum nor the FBI Email mentioned or even obliquely

alluded to Appellants in this case.

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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.

According to Appellants, their advocacy includes: making

their opposition known publicly at school board meetings, id.

¶ 12, J.A. 8; maintaining the website content of Saline Parents,

id. ¶ 14, J.A. 8; passionately addressing the school board, id. ¶

27, J.A. 10; seeking to recall school board members by

collecting signatures, writing letters, and attending press

conferences, id. ¶ 30, J.A. 11; writing a scathing editorial, id.;

clapping instead of using jazz hands, id. ¶ 32, J.A. 11; leading

meeting attendees in singing the National Anthem, id. ¶ 33,

J.A. 11; initiating a student walk out as well as a rally, id. ¶ 34,

J.A. 12; posting on social media, id. ¶ 35, J.A. 12; and

organizing a shoe drop protest, where hundreds of shoes were

left in front of school administrative offices to represent the

mass exodus of students from public schools, id. ¶ 36, J.A. 13.

Appellants assert that their conduct at school board meetings

did not include making threats of criminal violence. Id. ¶ 65,

J.A. 18. Appellants also declare that they intend only to engage

in constitutionally protected conduct. Id. ¶ 39, J.A. 13. The

Government agrees that the activities detailed by Appellants in

their Complaint are constitutionally protected.

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Appellants claim that, after their advocacy, the National

School Boards Association submitted a letter to President

Biden, alleging that public school educators increasingly faced

threats of violence and acts of intimidation. The letter stated

that “acts of malice, violence, and threats against public school

officials” were “a form of domestic terrorism.” See Saline

Parents, 630 F. Supp. 3d at 208. Appellants assert that this

letter was drafted in conjunction with the Biden administration

“to create the pretext for the AG Policy,” Compl. ¶¶ 75-77,

J.A. 21, and that the letter was the sole basis for the

Memorandum published on October 4, id. ¶ 76, J.A. 21.

Appellants allege nothing to suggest that they have ever

been hampered in their protest activities by any local or federal

law enforcement agencies or actions, prosecutions, civil suits,

or official notices of any sort. And they make no claims to

suggest that the DOJ generally or the FBI specifically have

done anything directed at them to foreclose their rights to

express their views.

B. Procedural History

On October 19, 2021, Appellants filed an action in the

District Court against Attorney General Garland in his official

capacity. As outlined above, the Complaint contends that the

Government adopted an unlawful policy – i.e., the so-called

“AG Policy” – to silence those who oppose the “progressive”

agenda being implemented in public schools. Id. ¶ 2, J.A. 6.

Appellants believe they are the “very targets” of this alleged

AG Policy. Id. ¶ 74, J.A. 20. The Complaint recounts that

school board members have complained about parents

“attacking the board” by calling into question the board’s

integrity and morals. Id. ¶ 89, J.A. 24. The Complaint also

references a photo of one marked Homeland Security vehicle

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outside a school board meeting held in Fairfax, Virginia, id. ¶

87, J.A. 23, although Appellants do not say they personally

were present at that meeting. Finally, the Complaint contends

that the Attorney General is personally and ideologically vested

in silencing opposition to critical race theory and other

“progressive” curricula and policies promoted by local school

boards, and that he is directing the power and resources of the

DOJ to do just that. Id. ¶ 101, J.A. 27.

The Complaint pleads causes of action based on the First

Amendment, equal protection under the Fifth Amendment,

protection of parental rights under the Fifth Amendment, and

the Religious Freedom Restoration Act. Id. ¶¶ 108-40, J.A. 28-

32. It seeks a declaration that the purported AG Policy is

unlawful, as well as an injunction barring the policy and any

federal actions taken pursuant to it. Id. ¶¶ 2-3, J.A. 6.

The District Court dismissed the case for lack of standing.

See Saline Parents, 630 F. Supp. 3d at 205. It held that

Appellants failed to allege facts sufficient to show cognizable

injuries from either a threat of enforcement or reputational

harm. Id. Finding an absence of jurisdiction for want of

standing, the District Court had no occasion to consider the

parties’ other arguments and granted the Government’s motion

to dismiss under Federal Rule of Civil Procedure 12(b)(1).

Appellants now appeal that dismissal.

II. ANALYSIS

A. Standard of Review

We review de novo a dismissal for lack of subject matter

jurisdiction. Fla. Health Scis. Ctr., Inc. v. Sec’y of Health &

Hum. Servs., 830 F.3d 515, 518 (D.C. Cir. 2016). On review of

a motion to dismiss, we must “accept the well-pleaded factual

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allegations as true and draw all reasonable inferences from

those allegations in [Appellants’] favor.” Arpaio v. Obama,

797 F.3d 11, 19 (D.C. Cir. 2015). However, “[t]hreadbare

recitals” and “mere conclusory statements” do not suffice.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We do not accept

inferences unsupported by the facts set out in the complaint.

Arpaio, 797 F.3d at 19 (citing Islamic Am. Relief Agency v.

Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)). Nor do we

assume the truth of legal conclusions. Id. (citing Iqbal, 556

U.S. at 678).

B. Standing

The “irreducible constitutional minimum of [Article III]

standing” consists of three elements. Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992). The plaintiff “must show (i) that he

suffered an injury in fact that is concrete, particularized, and

actual or imminent; (ii) that the injury was likely caused by the

defendant; and (iii) that the injury would likely be redressed by

judicial relief.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,

2203 (2021). As the party invoking the court’s subject matter

jurisdiction, the plaintiff bears the burden of establishing the

elements of standing. Id. at 2207. “Since [the standing

elements] are not mere pleading requirements but rather an

indispensable part of the plaintiff’s case, each element must be

supported in the same way as any other matter on which the

plaintiff bears the burden of proof, i.e., with the manner and

degree of evidence required at the successive stages of the

litigation.” Lujan, 504 U.S. at 561 (first emphasis added).

Failure to establish any one element requires dismissal of the

action. See, e.g., TransUnion, 141 S. Ct. at 2214 (dismissing

for lack of standing claims in which plaintiffs failed to show

injury in fact).

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“This case concerns the injury-in-fact requirement, which

helps to ensure that the plaintiff has a ‘personal stake in the

outcome of the controversy.’” Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158 (2014) (quoting Warth v. Seldin,

422 U.S. 490, 498 (1975)). Before this court, the Government

contends that Appellants lack standing to pursue this action

because they have failed to allege adequate facts to show any

injury from either the threat of enforcement or reputational

harm. The Government argues that:

Plaintiffs allege that their peaceful speech objecting to

school policies is chilled by a purported Department

of Justice policy that in some way targets them based

on their viewpoint. The alleged AG Policy does not

“arguably proscribe[]” plaintiffs’ conduct, Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 162 (2014)

(quotation marks omitted), because it is not

“regulatory, proscriptive, or compulsory in nature,”

Laird v. Tatum, 408 U.S. 1, 11 (1972). And even if it

were, the policy does not apply to plaintiffs’

constitutionally protected conduct. . . . For similar

reasons plaintiffs have not demonstrated standing to

pursue a claim of reputational injury.

Brief for Appellee 15-17.

As to Appellants’ alleged threat-of-enforcement injury, the

Government’s reliance on Laird v. Tatum, 408 U.S. 1 (1972),

is on the mark. In Laird, the Supreme Court made it clear that

a cognizable chilling injury cannot “arise merely from the

individual’s knowledge that a governmental agency was

engaged in certain [investigative and data-gathering] activities

or from the individual’s concomitant fear that, armed with the

fruits of those activities, the agency might in the future take

some . . . action detrimental to that individual.” Id. at 11.

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Rather, the Government’s exercise of power must be

“regulatory, proscriptive, or compulsory.” Id. Accordingly, the

Court in Laird declined to entertain a suit alleging that an Army

program to gather intelligence on peaceful, civilian political

activity chilled plaintiffs’ lawful exercise of their First

Amendment rights. Id. at 2-3. As in Laird, Appellants here

claim only that their lawful activities are being chilled by the

mere existence of governmental investigation, and at most

indicate a fear that the Government, armed with the fruits of

their data gathering, may take action against them in the future.

This is insufficient to show injury in support of standing.

The principal Supreme Court cases cited by Appellants to

counter Laird are inapposite, because the plaintiffs bringing

pre-enforcement challenges in those cases proffered factual

allegations that supported concrete threats of enforcement. See,

e.g., Susan B. Anthony List, 573 U.S. at 166 (finding a credible

threat of enforcement where petitioners “alleged an intent to

engage in the same speech that was the subject of a prior

enforcement proceeding”); MedImmune, Inc. v. Genentech,

Inc., 549 U.S. 118, 128-30, 137 (2007) (exercising jurisdiction

over a dispute regarding payment obligations, despite

challenger making required payments under protest, because

cessation of payment would expose challenger to liability);

Steffel v. Thompson, 415 U.S. 452, 459 (1974) (holding

petitioner’s alleged threats of prosecution not speculative,

because he had “been told by the police” that “he will likely be

prosecuted” if he continued handbilling); Dombrowski v.

Pfister, 380 U.S. 479, 487-88 (1965) (finding sufficient injury

from chilling effect where appellant and intervenors had

previously been arrested and charged with violations of the two

statutes being challenged).

Here, Appellants fail to demonstrate that the Government

has in any way threatened imminent, rather than hypothetical,

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enforcement action against them. See Lujan, 504 U.S. at 560.

Indeed, Appellants declare they are peaceful, law-abiding

citizens; nothing in the Memorandum suggests otherwise.

Appellants assert they engage only in constitutionally protected

speech; the Memorandum clearly states that the DOJ has no

issue with speech protected by the Constitution. The

Memorandum, which announces initial plans by the DOJ to

investigate and strategize internally, does not threaten

imminent legal action against anyone, and certainly not against

Appellants.

What is telling here is that Appellants’ allegations simply

do not plausibly support the belief that they are targets of the

DOJ. For example, they allege that school board members have

complained about parents “attacking the board,” but they do

not claim that the DOJ took or threatened to take legal action

against Appellants in response. Appellants also offer a photo of

a marked Homeland Security vehicle parked outside a school

board meeting, held in a city that is neither Saline nor in

Loudoun County. Appellants do not allege they attended this

meeting, nor that any enforcement proceeding was threatened

against those who did. Finally, Appellants assert that the

Attorney General is personally and ideologically vested in

broadly silencing all opposition to “progressive” curricula.

Appellants even go so far as to declare that the Attorney

General issued the Memorandum for personal gain, but they

offer nothing to support this accusation. In sum, Appellants

have not come close to demonstrating that the Government is

focused on them or their peaceful activities.

Appellants’ theory of reputational injury suffers similar

deficiencies. Appellants allege that the contested Government

actions have impugned their public reputations by designating

them as “criminal threats” and “domestic terrorists.” However,

even on a generous reading of the factual allegations in the

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Complaint, there is nothing to indicate that the DOJ has

designated Appellants as “criminal threats” or “domestic

terrorists,” as they claim. The contents of the Memorandum

and the FBI Email do not pertain to Appellants’ professed

activities. Appellants assert, and the Government does not

dispute, that all their alleged activities are constitutionally

protected. As such, Appellants fail to offer any specific action

that would deem them a “criminal threat.” And there is nothing

in the contested DOJ documents that even refer to a “domestic

terrorism” threat. Rather, this term comes from a letter sent to

the White House by a private organization, the National School

Boards Association. Appellants claim the letter was drafted in

collusion with the Biden administration, and that it served as

the sole basis for the Memorandum. Nothing supports these

conclusory statements of collusion. A letter from a private

entity unaffiliated with the Government, which contains the

only reference in the record to “domestic terrorism,” cannot

plausibly be attributed to the Attorney General. In fact, neither

the Memorandum nor the FBI Email even alludes to the letter.

Ultimately, Appellants have not offered anything to show that

the Government labeled them in any way, let alone impugned

their reputations. Any reputational injury Appellants believe

they have suffered is therefore insufficient to satisfy Article III.

See Arpaio, 797 F.3d at 19 (noting courts may not “accept

inferences that are unsupported by the facts set out in the

complaint” (quoting Islamic Am. Relief Agency, 477 F.3d at

732)).

In addition, the pre-enforcement claim in this case is not

ripe for adjudication. Indeed, the factors discussed above that

undermine Appellants’ claim to standing serve to confirm that

“this case is riddled with contingencies and speculation that

impede judicial review.” Trump, 141 S. Ct. at 535. “At the end

of the day, the standing and ripeness inquiries both lead to the

13

conclusion that judicial resolution of this dispute is premature.”

Id. at 536.

C. Ripeness

We have made clear that “[t]he ripeness doctrine, even in

its prudential aspect, is a threshold inquiry that does not involve

adjudication on the merits and which may be addressed prior

to consideration of other Article III justiciability doctrines.” In

re Aiken Cnty., 645 F.3d 428, 434 (D.C. Cir. 2011) (citing Toca

Producers v. FERC, 411 F.3d 262, 265 n.* (D.C. Cir. 2005)).

As the Supreme Court has explained:

Ripeness is a justiciability doctrine designed to

prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also

to protect the agencies from judicial interference until

an administrative decision has been formalized and its

effects felt in a concrete way by the challenging

parties. The ripeness doctrine is drawn both from

Article III limitations on judicial power and from

prudential reasons for refusing to exercise

jurisdiction, but, even in a case raising only prudential

concerns, the question of ripeness may be considered

on a court’s own motion.

Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-

08 (2003) (citations and quotations omitted).

A claim is premature and therefore unripe for judicial

review if it depends on “contingent future events that may not

occur as anticipated, or indeed may not occur at all.” Trump,

141 S. Ct. at 535 (quoting Texas v. United States, 523 U.S. 296,

300 (1998)). An unripe claim must be dismissed. Cause of

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Action Inst. v. Dep’t of Just., 999 F.3d 696, 704 (D.C. Cir.

2021). To determine whether a dispute is ripe for adjudication,

we evaluate “(1) the fitness of the issues for judicial decision

and (2) the hardship to the parties of withholding court

consideration.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808.

There can be little doubt here that the pre-enforcement

issues raised in this case are not fit for adjudication. As noted

above, Appellants’ Complaint is “riddled with contingencies

and speculation that impede judicial review.” Trump, 141

S. Ct. at 535. Neither the Memorandum nor the FBI Email

threatens imminent enforcement action generally, much less

against Appellants specifically. The contested DOJ documents

do not establish any regulatory actions or even purport to offer

viable policy statements. The Memorandum simply announces

the Attorney General’s concerns about “a disturbing spike in

harassment, intimidation, and threats of violence” against

school personnel. S.J.A. 2. It proposes nothing more than some

measures to “facilitate the discussion of strategies for

addressing threats,” and to “open dedicated lines of

communication for threat reporting, assessment, and

response.” Id. Likewise, the FBI Email creates a “threat tag”

only for the purpose of “scop[ing] this threat” and “provid[ing]

an opportunity for comprehensive analysis.” S.J.A. 4. Apart

from announcing plans to gather information for discussions,

the Government has not yet directed its agents to take any

concrete action. These initial plans to investigate a matter of

potential concern and to strategize internally are routine

functions of the Government.

Nevertheless, Appellants invite this court to give credence

to their surmise that the Government will not only decide to

take enforcement action at some point, but that it will take

action against Appellants in particular. We decline the

invitation because this would be anathema to the judicial

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function. A justiciable controversy may not ask a court to

“advis[e] what the law would be upon a hypothetical state of

facts,” but rather must “admit[] of specific relief through a

decree of a conclusive character.” Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 241 (1937). Absent a concrete factual

context, determination of the scope and constitutionality of a

purported government policy “in advance of its immediate

adverse effect . . . involves too remote and abstract an inquiry

for the proper exercise of the judicial function.” Int’l

Longshoremen’s & Warehousemen’s Union v. Boyd, 347 U.S.

222, 224 (1954). “[J]udicial appraisal [of the issue] is likely to

stand on a much surer footing in the context of a specific

application of [agency policy] than could be the case in the

framework of [a] generalized challenge.” Cause of Action, 999

F.3d at 705 (alterations in original) (quoting Am. Tort Reform

Ass’n v. OSHA, 738 F.3d 387, 396 (D.C. Cir. 2013)).

Clearly, in the present case, it is much “too speculative

whether the problem [Appellants] present[] will ever need

solving.” Texas v. United States, 523 U.S. at 302. Appellants

believe they are targets of the DOJ. But, as detailed above,

there is nothing in the contested Memorandum or in the FBI

Email to support this claim. Whether Appellants will ever

become the subjects of an FBI investigation or enforcement

proceeding remains to be seen. By their own account,

Appellants are not presently threatened with any enforcement

proceeding against them. Indeed, the Memorandum expressly

assures that the Constitution protects “spirited debate,” S.J.A.

2, and Appellants assert they only “intend to engage in

constitutionally protected conduct,” Compl. ¶ 39, J.A. 13,

never threats of criminal violence, id. ¶ 65, J.A. 18. The

Government agrees with Appellants that the activities alleged

in their Complaint comport with the exercise of constitutional

rights, and it confirms that those activities fall outside the scope

of the Memorandum. In short, Appellants’ Complaint contains

16

no factual allegations that could plausibly lead to the

conclusion that their advocacy fits within the ambit of the

“disturbing” conduct at issue in the Memorandum.

Finally, our disposition of this pre-enforcement challenge

will not subject Appellants to any legally cognizable

“hardship.” Nat’l Park Hosp. Ass’n, 538 U.S. at 808.

Appellants have not lost any First Amendment rights. The

Memorandum and the FBI Email impose no obligations outside

of the DOJ. Neither document proscribes any activity.

Appellant “is not required to engage in, or to refrain from, any

conduct” as a result of the challenged DOJ documents. Texas

v. United States, 523 U.S. at 301. Although Appellants

complain of a chilling effect on their speech, the Government

has not in any way restricted or regulated Appellants’ activities.

Therefore, Appellants have not suffered any “immediate and

significant” hardship sufficient to “outweigh institutional

interests in the deferral of review.” Action All. of Senior

Citizens v. Heckler, 789 F.2d 931, 940 (D.C. Cir. 1986).

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. “We do not

have sufficient confidence in our powers of imagination[.]”

Texas v. United States, 523 U.S. at 301. Given the uncertainty

with how events may play out, the matter raised by Appellants

17

is not currently fit for our review, and withholding

consideration will not impose hardship on Appellants.

III. CONCLUSION

For the reasons set forth above, we affirm the dismissal of

Appellants’ action for lack of Article III standing and want of

ripeness.

So ordered.