                                                                    F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                     PUBLISH
                                                                    JUN 19 2001
                   UNITED STATES COURT OF APPEALS
                                                                  PATRICK FISHER
                                                                         Clerk
                                  TENTH CIRCUIT



 JOHN ROE #2; THE RALPH
 TIMOTHY POTTER CHAPTER OF
 THE AMERICAN CIVIL LIBERTIES
 UNION AT THE UNIVERSITY OF                         No. 00-1302
 DENVER COLLEGE OF LAW,

       Plaintiffs - Appellants,

 vs.

 ALAN OGDEN, in his official
 capacity as the Executive Director of
 the Colorado State Board of Law
 Examiners; and MELANIE BACKES,
 DEBORAH BIANCO, SHERRY A.
 CALOIA, DAVID DIFFEE, JAY E.
 FERNANDEZ, SHARI FRAUSTO,
 SUSAN M. HARGLEROAD,
 STEVEN J. HENSEN, GARY
 JACKSON, DORIS G. KAPLAN, and
 HELEN STONE, in their official
 capacities as members of the Bar
 Committee of the Colorado State
 Board of Law Examiners,

       Defendants - Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLORADO
                        (D.C. No. 99-M-967)


Stephen G. Masciocchi (David D. Powell, Jr. and Susannah Pollvogt, Holland &
Hart, L.L.P. and Mark Silverstein, American Civil Liberties Union Foundation of
Colorado, with him on the briefs), Denver, Colorado, for Appellants.

Dianne E. Eret, Assistant Attorney General (and Ken Salazar, Attorney General,
with her on the brief), Denver, Colorado, for Defendants - Appellees.


Before KELLY, MCWILLIAMS, and REAVLEY *, Circuit Judges.


KELLY, Circuit Judge.



      John Roe #2 and the Ralph Timothy Potter Chapter of the American Civil

Liberties Union at the University of Denver College of Law (collectively, the

“Students”) appeal from the district court’s dismissal of their complaint. The

district court concluded that the Students lacked standing, that their claims were

not ripe, and that abstention was appropriate. We have jurisdiction under 28

U.S.C. § 1291 and reverse. The Students’ action should proceed to the merits, on

which we express no opinion.



                                  I. Background

      The Students, including John Roe #2, are members of the Potter Chapter of

the ACLU and students or recent graduates of the University of Denver College of



      *
       Honorable Thomas M. Reavley, Sr., Senior Circuit Judge, United States
Court of Appeals Fifth Circuit, sitting by designation.

                                        -2-
Law. Aplt. App. at 211, ¶ 1 (Second Amended Complaint); Aplt. Notice of

Factual Developments Pending Appeal at 2, ¶ 3; University of Denver College of

Law Web Page, May 2001 Graduate List, at

http://www.law.du.edu/registrar/graduation/Spring_2001_Graduation/Grad_List/

(last visited June 1, 2001). 2 The bar application asks over forty questions. Aplt.

App. at 216, ¶ 16. Three questions pertain to the applicant’s past treatment for

mental and emotional health disorders, treatment for drug, narcotic, or alcohol

abuse, and addictions to drugs, narcotics, or alcohol. Id. at 217-18, ¶ 19. If an

applicant answers “yes” to any of the three questions, the applicant is required to

provide documentation and further explain the condition for which the applicant

was treated. Id. at 57 (application instructions). A letter will be sent to persons

identified by the applicant as having information regarding the applicant’s

treatment. Id. at 218, ¶ 21 (Second Amended Complaint). The applicant is also

required to sign an “Authorization and Release” form. Id. at ¶ 20. The form

authorizes the Board to inspect and copy information related to the applicant’s

treatment. Id. The Board may also “hold a hearing and require the applicant to

attend and respond to further questions about his or her history of drug and



      2
        We take all factual allegations in the Students’ complaint as true and
construe them in the light most favorable to the Students. Citizens for
Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d 1174,
1189 (10th Cir. 2000); Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

                                        -3-
alcohol dependency, history of treatment for drug or alcohol problems, or

hospitalization for a mental health issue.” Id. ¶ 23; see also Colo. R. Governing

Admission to the Bar 201.9-10. John Roe #2 graduated in May, University of

Denver College of Law Web Page, May 2001 Graduate List, at

http://www.law.du.edu/registrar/graduation/Spring_2001_Graduation/Grad_List/

(last visited June 1, 2001), and will take the bar examination in July. Aplt. Notice

of Factual Developments Pending Appeal at 2, ¶ 3. In his bar application, John

Roe #2 indicated that he had received treatment for alcohol, drug or narcotic use

within the past 10 years. Id. Other Students have applied or will apply for the

bar. Aplt. App. at 214, ¶ 10a (Second Amended Complaint). They, too, have

histories of treatment for a mental or emotional health disorder or alcohol or drug

use. Id.

      The Students alleged that “these inquiries and investigations violate the

ADA’s prohibition of discrimination against individuals who are disabled, have a

history of disability, or are perceived to be disabled.” Id. at 212, ¶ 3; see also id.

at 221-22, ¶ 35-36, They also asserted under 42 U.S.C. § 1983 that the “inquiries

and investigations violate their constitutional right to privacy.” Id. at 212, ¶ 3,

224, ¶ 43-44. The Students sought a declaratory judgment and a preliminary and

permanent injunction against Alan Ogden, Executive Director of the Colorado

State Board of Law Examiners (the “Board”) and members of the Bar Committee


                                          -4-
of the Board in their official capacities. Id. at 215, ¶¶ 12-13, 225, ¶ 48.

      The district court dismissed the action without prejudice on three grounds:

standing, ripeness, and abstention. Aplt. App. at 247. On appeal, the Students

argue that the dismissal was in error. We address each of the bases upon which

the district court dismissed the Students’ action in turn. We also address the

Board’s argument that the Students’ action is barred by the Eleventh Amendment.



                                    II. Discussion

A.    Standing

      The district court concluded that John Roe #2 lacked standing because,

having not yet graduated from law school or passed the bar exam, he did not face

imminent injury. Id. at 253. For this same reason, the district court concluded

that the Potter Chapter lacked associational standing. Id. at 254. According to

the district court, the Students’ injuries were not redressible: “If this court were to

enjoin the defendants from continuing to ask the three challenged questions, the

Bar Committee may and presumably would find other means to make the inquiries

necessary to determine the fitness of applicants.” Id. at 251. The district court

erred in holding that the Students lacked standing.

      1.     John Roe #2’s Standing

      We review the question of standing de novo. Sac & Fox Nation of Mo. v.


                                          -5-
Pierce, 213 F.3d 566, 571 (10th Cir. 2000), cert denied, 121 S. Ct. 1078 (2001).

The constitutional requirements for standing are (1) an injury in fact, (2) a causal

connection between the injury and the challenged act, and (3) a likelihood that the

injury will be redressed by a favorable decision. Vermont Agency of Natural Res.

v. United States ex. rel. Stevens, 529 U.S. 765, 771 (2000). The alleged injury

must be concrete and particularized and imminent or actual, as opposed to

conjectural or hypothetical. Id. “At the pleading stage, general factual

allegations of injury resulting from the defendant’s conduct may suffice, for on a

motion to dismiss we presum[e] that general allegations embrace those specific

facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992) (citations and internal quotations omitted) (alteration in

original).

             i.    Injury-in-fact

      John Roe #2 faces imminent injury. 3 He has graduated and will sit for the

bar exam in July. Since he has disclosed his past treatment for alcohol, drug, or

narcotic use in his application, John Roe #2 will be subject to Board

investigation, which he believes violates the ADA and Constitution. The fact that

John Roe #2 could fail the bar exam does not defeat standing because John Roe



      3
        In light of this conclusion, we do not reach the Students’ contention that
they have also suffered actual injury.

                                         -6-
#2 has alleged more than “some day intentions.” Id. at 564 (internal quotations).

A plaintiff is required only to allege concrete plans; id., he is not required to

successfully execute those plans. See Buchwald v. Univ. of New Mexico Sch. of

Med., 159 F.3d 487, 493 (10th Cir. 1998) (plaintiff required to make “an adequate

showing that she will re-apply to [medical school]” to have standing (citation and

internal quotations omitted)).

      Bryant v. Yellen, 447 U.S. 352, 366-68 (1980), cited with approval by

Clinton v. City of New York, 524 U.S. 417, 432 (1998), supports this conclusion.

In Bryant, the district court held that privately owned farmland in Imperial Valley

in California was not subject to a provision in the Boulder Canyon Project Act, 43

U.S.C. § 617, which “limited water deliveries from reclamation projects to 160

acres under single ownership.” Id. at 355. Certain Imperial Valley residents

sought to intervene and appeal the decision. Id. at 366. They asserted standing

on the basis that they desired to purchase farmland in Imperial Valley that might

become available if the acre limitation was held to be applicable. Id. However,

the residents “could not with certainty establish that they would be able to

purchase excess lands if [the provision] were held applicable.” Id. at 367. It was

uncertain whether owners of excess land would sell, whether the residents had

sufficient financial resources to purchase the land, and whether the residents

would be outbid by other potential purchasers. Id. at 367 & n.17. These


                                         -7-
uncertainties notwithstanding, the residents had standing because it was likely

that the residents would purchase the excess lands if the acre limitation was

applicable. Id. at 368. The facts in this case are far more compelling. Having

invested three years of time and resources to complete law school, John Roe #2

will sit for the bar exam. Furthermore, it is likely that John Roe #2 will pass the

bar exam. Over 80% of University of Denver College of Law students who have

taken the Colorado bar exam for the first time in recent years have passed.

Colorado Supreme Court Board of Law Examiners’ Web Page, Pass/Fail Rates by

Law School: February 2001 Bar Examination, at

http://www.courts.state.co.us/ble/results/LawSchoolStats0102.htm (last visited

June 1, 2001); Colorado Supreme Court Board of Law Examiners’ Web Page,

Pass/Fail Rates by Law School: July 2000 Bar Examination, at

http://www.courts.state.co.us/ble/results/LawSchoolStats0007.htm (last visited

June 1, 2001).

             ii.    Redressibility

      John Roe #2’s injury is redressible. An injury is redressible if “the

prospect of obtaining relief from the injury as a result of a favorable ruling is not

too speculative.” Northeastern Florida Chapter of the Associated Gen.

Contractors of America v. City of Jacksonville, 508 U.S. 656, 663-64 (1993)

(citation and internal quotations omitted). Litigation has proven to be an


                                         -8-
effective vehicle to abolish or circumscribe questions like those in dispute here.

See, e.g. Clark v. Virginia Bd. of Bar Exam’rs, 880 F. Supp. 430, 440 (E.D. Va.

1995) (“At least eight states . . . have recently altered their mental health

questions in light of potential or actual litigation under the ADA.”). The district

court’s conclusion that the Board could obtain the same instruction by “other

means,” Aplt. App. at 251, does not persuade us otherwise. The district court

failed to identify “other means” by which the Board could obtain similar

information, and we presume that the Board would obey a lawful order should

relief be granted. We therefore hold that John Roe #2’s injury is redressible.

      This case is distinguishable from our decision in Wilson v. Glenwood

Intermountain Properties, Inc., 98 F.3d 590 (10th Cir. 1996). In Wilson, the

plaintiffs lacked standing to challenge the operation of gender-segregated and

single-gender apartments reserved solely for Brigham Young University students

because “[a]s non-students, . . . they would not have qualified to rent the student

apartments.” Id. at 594. By way of contrast, John Roe #2 is eligible to apply for

admission to the bar. If he obtains a favorable judgment and passes the bar exam,

his application will be considered without the accompanying investigation into his

past history of alcohol dependency. Accordingly, unlike the plaintiffs’ injury in

Wilson, John Roe #2’s injury is redressible.




                                          -9-
      2.     Potter Chapter’s Standing

      The Potter Chapter must satisfy three requirements to have associational

standing:

      (a) [I]ts members [must] otherwise have standing to sue in their own
      right; (b) the interests it seeks to protect [must be] germane to the
      organization’s purpose; and (c) neither the claim asserted nor the
      relief requested [must] require[] the participation of individual
      members in the lawsuit.

United Food and Commercial Workers Union Local 751 v. Brown Group, Inc.,

517 U.S. 544, 553 (1996) (quoting Hunt v. Washington State Apple Adver.

Comm’n, 432 U.S. 333, 343 (1977)). As explained, John Roe #2 has standing.

Because John Roe #2 is a member of the Potter Chapter, the fact that he has

standing is sufficient to satisfy the first requirement. Warth v. Seldin, 422 U.S.

490, 511 (1975) (“The association must allege that its members, or any one of

them are suffering immediate or threatened injury . . . .” (emphasis added)). It is

not disputed that the Potter Chapter satisfies the remaining two requirements.

Accordingly, the Potter Chapter has associational standing.

A.    Ripeness

      The district court concluded that the Students’ action was not ripe because

it involved uncertain or contingent future events. Aplt. App. at 254-55 (Second

Amended Complaint). The district court erred in so concluding.

      We review the issue of ripeness de novo. Keyes v. Sch. Dist. No. 1,


                                         - 10 -
Denver, Colo., 119 F.3d 1437, 1444 (10th Cir. 1997). Because the Students’ face

imminent injury, they also satisfy the constitutional requirements of ripeness.

Am. Civil Liberties Union v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999);

accord Nat’l Treasury Employees Union v. United States, 101 F.3d 1423, 1427

(D.C. Cir. 1996). Therefore, the Students’ action is ripe unless the prudential

aspects of ripeness counsel against consideration. Nat’l Treasury Employees

Union, 101 F.3d at 1427-28.

      The ripeness doctrine cautions a court against premature adjudication of

disputes involving administrative policies or decisions not yet formalized and felt

in a concrete way by the challenging parties. Qwest Communications Int’l, Inc. v.

F.C.C., 240 F.3d 886, 893 (10th Cir. 2001); see also Abbott Laboratories v.

Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds, Califano v

Sanders, 430 U.S. 99 (1977). The ripeness inquiry is threefold: “(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.” Qwest, 240 F.3d at 893-94 (quoting Ohio Forestry Ass’n v.

Sierra Club, 523 U.S. 726, 732-33 (1998)). In the context of the facts of this

case, none of these considerations counsel against consideration of the Students’

action.


                                        - 11 -
      Delayed review will cause the Students hardship. The questions on the bar

application and related investigations will have a “direct and immediate impact”

upon the Students. Id. at 894 (quoting Abbott Laboratories, 387 U.S. at 152).

John Roe #2 and other Students who may have answered the disputed questions in

their bar applications will soon be subject to an investigation they believe will

violate their rights under the ADA and Constitution. Those Students who have

elected or will elect not to answer the questions risk denial of admission to the

bar after expending considerable time and expense. This risk is more than

hypothetical. The ACLU has already asked the Board to remove the disputed

questions. See Aplt. App. at 228-32 (correspondence between ACLU and Board).

The Board modified two of the questions, id. at 234-35, but declined to further

alter the questions to the ACLU’s liking. Id. at 244. Therefore, were we to delay

review until the Students pass the bar exam and challenge the questions before the

Board and Colorado Supreme Court, we would in effect require the Students “to

jump through a series of hoops, the last of which [they are] certain to find

obstructed by a brick wall.” Triple G Landfills, Inc. v. Bd. of Comm’rs of

Fountain County, Indiana, 977 F.2d 287, 291 (7th Cir. 1992). All the while, the

Students’ legal careers will be placed on hold.

      The Board asserts that it will not review the Students’ answers to the

disputed questions and commence related investigations until the Students


                                        - 12 -
graduate and pass the bar exam. See Aplt. App. 87C-D, ¶10 (affidavit of Mr.

Ogden). Accordingly, the Board argues that the Students’ action is not yet ripe

since none of the Students have graduated or passed the bar exam. The Board

relies primarily upon the Supreme Court’s decision in Reno v. Catholic Soc.

Services, Inc., 509 U.S. 43 (1993). Reno, however, is factually distinguishable

from this case.

      In Reno, the Supreme Court held that a challenge to INS temporary resident

status regulations by aliens who had not been “front-desked” 4 was not yet ripe.

Id. at 59-65. The court reached this conclusion because it was unclear whether

any of the aliens were willing to apply for temporary resident status and whether

the aliens would satisfy other conditions necessary to obtain such status. Id. at 59

n.20. The aliens’ “claim[s] would ripen only once [they] took the affirmative

steps that [they] could take before the INS blocked [their] path by applying the

regulation to [them].” Id. at 59. We are not faced with such uncertainties in this

case. The Students are on a collision course with the disputed questions and a

Board investigation. They have or will have invested three years of their life and

untold resources into their legal education. John Roe #2 graduated in May, and

he and other Students have applied for admission to the bar and will take the


      4
         The term refers to those aliens whose applications were rejected by
Legalization Assistants because the applicant was deemed to be statutorily
ineligible. Id. at 61-62.

                                       - 13 -
exam in July. As with standing, the fact that the Students have not yet passed the

bar exam does not defeat ripeness. While “[t]here is always the chance” that the

Students will not graduate or fail the exam, “that contingency, in and of itself, is

not sufficient to defeat ripeness.” Triple G Landfills, 977 F.2d at 291. This is

particularly true “in light of the substantial practical effect” the questions and

investigation have on the Students’ long-term plans. Id. at 291.

      The final two factors warrant only brief discussion. There are no pending

Board administrative actions concerning the legality of the questions and related

Board investigation. Furthermore, we will not benefit from further factual

development because the Students’ action is a facial challenge. A “determination

of the merits turns upon strictly legal issues” and does not “require[] facts that

may not yet be sufficiently developed.” New Mexicans for Bill Richardson v.

Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995).

C.    Abstention

      Although no state action was pending, the district court concluded that it

should abstain from adjudicating the Students’ action because state action was

imminent and the Colorado Supreme Court should have the opportunity to address

the Students’ challenge to the disputed questions: “[T]he Colorado Supreme

Court must grant or deny each application for Bar admission and there is no

impediment to an applicant’s urging that court to grant admission despite a failure


                                         - 14 -
to answer the contested questions or to supply the information sought to be

protected.” Aplt. App. at 255. This decision to abstain, under Younger v. Harris,

401 U.S. 37 (1971), and its progeny, was in error.

      We review the district court’s decision to abstain de novo. Taylor v.

Jaquez, 126 F.3d 1294, 1296 (10th Cir. 1997). Abstention “is the exception, not

the rule.” Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (citation and

internal quotations omitted). It should be “rarely . . . invoked, because the federal

courts have a virtually unflagging obligation . . . to exercise the jurisdiction given

them.” Id. (citation and internal quotations omitted). Younger abstention is

appropriate only if (1) a party asserts federal claims that have been or could be

presented in ongoing state proceedings, (2) the state proceedings implicate

important state interests, and (3) the state proceedings afford an adequate

opportunity to raise federal claims. J.B. ex. rel. Hart v. Valdez, 186 F.3d 1280,

1291 (10th Cir. 1999). In all other cases, Younger abstention is not appropriate.

Ankenbrandt, 504 U.S. at 705; see also J.B. ex. rel. Hart, 186 F.3d at 1291 (“A

case warrants Younger abstention only if each of these three criteria are

satisfied.”). In fact, in 1992, the Supreme Court noted that it had “never applied

the notions of comity so critical to Younger’s “Our Federalism” when no state

proceeding was pending . . . .” Ankenbrandt, 504 U.S. at 705. This remains true

today. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12 n.9 (1987), upon which the


                                         - 15 -
Board heavily relies, is not to the contrary. Any suggestion in Pennzoil that a

pending state proceeding was not a prerequisite to Younger abstention was put to

rest in Ankenbrandt, 504 U.S. at 705.

D.      Sovereign Immunity

        The district court construed the Students’ action as brought “against the

Colorado Supreme Court.” Aplt. App. at 247. The court explained: “Th[e] tactic

[of dismissing the Colorado Supreme Court and Colorado State Board of Law

examiners] does not change the nature of this case. Claims made against persons

in their official capacities are claims against the entities authorizing their

actions.” Id. Nevertheless, the district court passed on the question of whether

the Eleventh Amendment barred the Students’ action. The Board asserts on

appeal that the Eleventh Amendment does in fact bar this action. We address the

issue of sovereign immunity, as we may affirm the district court for any reason

that is adequately supported by the record, Weitzel v. Div. of Occupational and

Prof’l Licensing of Dep’t of Commerce of Utah, 240 F.3d 871, 876 (10th Cir.

2001), and the issue concerns our jurisdiction. J.B. ex. rel. Hart, 186 F.3d at

1285.

        An individual may bring an ADA or § 1983 action against a state official in




                                         - 16 -
federal court for injunctive relief under Ex parte Young, 209 U.S. 123 (1908). 5

J.B. ex. rel. Hart, 186 F.3d at 1287; Edelman v. Jordan, 415 U.S. 651, 677 (1974)

(§ 1983); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989)

(“Of course a state official in his or her official capacity, when sued for

injunctive relief, would be a person under § 1983 because ‘official-capacity

actions for prospective relief are not treated as actions against the State.’”

(quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)). “Under the Ex

parte Young doctrine, the Eleventh Amendment generally does not bar a suit

against a state official in federal court which seeks only prospective equitable

relief for violations of federal law, even if the state is immune.” J.B. ex. rel.

Hart, 186 F.3d at 1286 (citation and internal quotations omitted). The Students’

action therefore falls squarely within the Ex parte Young exception to Colorado’s

Eleventh Amendment immunity.

      The Board raises two arguments against application of Ex parte Young,

neither of which is availing. First, the Board argues that the Ex parte Young

exception is unavailable in this case because the Students seek an injunction

against the Colorado Supreme Court. Ex parte Young prohibits a federal court

only from enjoining “a court from acting in any case brought before it . . . .” 209


      5
        Because the Supreme Court has issued its decision in Board of Trustees
of the University of Alabama v. Garrett,121 S.Ct. 955, 968 n.9 (2001), the
Board’s request that this case be held in abeyance pending Garrett is moot.

                                         - 17 -
U.S. at 163. The Students do not seek to enjoin the Colorado Supreme Court

from acting in a pending case. Moreover, the Students may bring a general

challenge to bar admission rules promulgated by the Colorado Supreme Court.

See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-83

(1983); Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1108 (10th Cir. 2000).

Second, the Board argues that the Students’ action is barred under the narrow

exception to Ex parte Young set forth in Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261 (1997). This exception is inapplicable here because the Students

seek only injunctive relief. J.B. ex. rel. Hart, 186 F.3d at 1286 (holding that

Coeur d’Alene exception to Ex parte Young applies only if the plaintiffs’ action

“implicates special sovereignty interests” and the relief sought “is the functional

equivalent to a form of legal relief against the state that would otherwise be

barred by the Eleventh Amendment” (citation and internal quotations omitted)).



                                   III. Conclusion

      For the foregoing reasons, the district court’s order is reversed. The

Students’ action should proceed to the merits.




                                        - 18 -
