IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

PROENGLISH, et al.,

Plaintiffs,

v.                            Civil Action No. 02-CV-356-A

PRESIDENT GEORGE W. BUSH, et al.,

Defendants.

MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS

Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6), President George W. Bush, Attorney General John D. Ashcroft, and Secretary of Health and Human Services Tommy G. Thompson ("Defendants"), respectfully move to dismiss the complaint in this case for lack of subject matter jurisdiction, improper venue, and failure to state a claim for which relief may be granted. As explained below, Plaintiffs' claims in this case are not ripe, and Plaintiffs lack standing to assert them. Thus, the complaint must be dismissed because considering these claims would require the Court to issue an advisory opinion on complex constitutional issues in a factual vacuum. Furthermore, Plaintiffs' novel legal theories fail to state a claim for which relief may be granted, and venue is improper in the Eastern District of Virginia.

STATEMENT OF THE ISSUES

  1. Whether Plaintiffs' claims must be dismissed because Plaintiffs have suffered no injury in fact and therefore lack standing to maintain this suit.
  2. Whether Plaintiffs' claims must be dismissed because they are not ripe for review.
  3. Whether venue is improper in the Eastern District of Virginia.
  4. Whether Plaintiffs fail to state a claim under the First, Fifth, Ninth, and Tenth Amendments to the United States Constitution, U.S. Const. amend. I, V, IX, X.
  5. Whether Plaintiffs fail to state a claim under the Administrative Procedure Act, 5 U.S.C. § 551, et seq., because the policies they challenge are exempt from the Act's provisions.
  6. Whether Plaintiffs fail to state a claim under the Regulatory Flexibility Act, 5 U.S.C. § 601, et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. § 801, et seq., because the policies challenged in this case are not subject to the requirements imposed by these laws.
  7. Whether Plaintiffs fail to state a claim under the Paperwork Reduction Act, 44 U.S.C. § 3501, et seq., because that Act does not create a private right of action, and the challenged policies are exempt from its provisions.

BACKGROUND

I. Overview of Plaintiffs' Allegations.

Plaintiff ProEnglish is a national advocacy organization that supports the adoption of English as the official language of the States and the federal government. (Compl. ¶¶ 3, 37.) ProEnglish and its executive director, Plaintiff K.C. McAlpin, seek to further these broad policy goals through litigation and advocacy in favor of the adoption of English only laws. (Id.) The remaining Plaintiffs, Drs. Anthony Bull, Clifford Colwell, Joseph Daugherty, and Donald Kundel, are physicians from outside the State of Virginia who purport to serve clients with limited English proficiency ("LEP"). (Id. ¶¶ 3-7.) None of these physicians alleges membership in ProEnglish.

Plaintiffs filed this lawsuit on March 12, 2002, challenging recent Presidential action and resulting agency guidance designed to ensure that LEP persons receive fair and meaningful access to federally funded services, programs and activities. See, e.g., Exec. Order No. 13,166, 65 Fed. Reg. 50,121 (Aug. 16, 2000) ("the Executive Order" Enforcement of Title VI of the Civil Rights Act of 1964 - National Origin Discrimination Against Persons with Limited English Proficiency, 65 Fed. Reg. 50,123 (Aug. 16, 2000) (" DOJ General Policy Guidance"); Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 66 Fed. Reg. 3,834 (Jan. 16, 2001), revisions proposed for further comment in 67 Fed. Reg. 19,237 (Apr. 18, 2002) ("DOJ Recipient Guidance"); Policy Guidance on the Prohibition Against National Origin Discrimination as It Affects Persons with Limited English Proficiency, 65 Fed. Reg. 52,762 (Aug. 30, 2000), republished for public comment in 67 Fed. Reg. 4,968 (Feb. 1, 2002) ("HHS Recipient Guidance"). These policies clarify the federal government's long-standing view that, in certain circumstances, regulations implementing Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., require recipients of federal financial assistance to provide language assistance to LEP persons. The challenged policies also reflect the unfortunate reality that, absent specific efforts to eliminate linguistic barriers, LEP persons frequently are denied meaningful access to federally funded programs and services. See, e.g., 67 Fed. Reg. at 4,969 (noting that LEP persons seeking medical services are "all too often . . either turned away, forced to wait for substantial periods of time, forced to find [their] own interpreters [or] forced to make repeated visits to the provider's office until an interpreter is available"). ProEnglish alleges that Defendants' policies designed to provide LEP persons meaningful access to federally assisted services "make it more difficult . . . to accomplish [the] goals of protecting English as the common language of the United States and making English the official language of the [United States] government." (Compl. ¶ 8.)

Plaintiffs challenge these policies under the United States Constitution and federal statutes. Specifically, in Count One of the complaint, Plaintiffs allege that Defendants' policies violate the First Amendment because they are vague and overbroad and because they infringe upon Plaintiffs' right to freedom of speech. (Compl. ¶¶ 38-44.) In Count Two, Plaintiffs allege that the challenged policies violate the First, Ninth, and Tenth Amendments of the United States Constitution because Defendants lack authority to adopt them. (Id. ¶ 45.) Additionally, Plaintiffs claim that Defendants' adoption of these polices was procedurally defective, alleging in Count Three a violation of the Administrative Procedure Act ("APA"), while Count Four pleads claims under the Paperwork Reduction Act, the Small Business Regulatory Enforcement Fairness Act of 1996, and the Regulatory Flexibility Act, and the Fifth Amendment's Due Process Clause. (Id. ¶¶50, 52.) Each of these claims is without merit.

II. Overview of the Relevant Federal Enforcement Mechanism and the Federal Policies under Review

Title VI of the Civil Rights Act of 1964 states that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Title VI further requires each federal grant agency to implement this principle of non-discrimination "by issuing rules, regulations or orders of general applicability." 42 U.S.C. § 2000d-1.

Since their promulgation soon after the enactment of Title VI, regulations implementing that statute uniformly have prohibited recipients of federal financial assistance from employing "methods of administration which have the effect of subjecting individuals to discrimination" or "defeating or substantially impairing accomplishment of the objectives of the [federally assisted] program."Nondiscrimination in Federally Assisted Programs, 28 C.F.R. § 42.203(e) (2002); see also Nondiscrimination under Programs Receiving Federal Assistance Through the Department of Health & Human Services Effectuation of Title VI of the Civil Rights Act of 1964, 45 C.F.R. § 80.3(b)(2) (2002). For over 25 years, federal grant agencies have interpreted this regulatory language as requiring, with respect to written material made available to the public, the provision of language assistance to LEP individuals under certain circumstances. See, e.g.,28 C.F.R.

§ 42.405(d)(1) (1976) (describing circumstances in which recipients of federal financial assistance must provide written language assistance to LEP persons); see also Lau v. Nichols, 414 U.S. 563 (1974) (holding that school system's failure to provide English language instruction violated Title VI by denying meaningful opportunity to participate in public educational program), overruled in part on other grounds, Alexander v. Sandoval, 532 U.S. 275, 284 (2001).

A. The Distinct Roles of the Department of Justice and the Department of Health and Human Services in the Enforcement of Title VI.

The Department of Justice ("DOJ") has three distinct roles with respect to Title VI. The President has delegated to DOJ the responsibility of coordinating the federal implementation and enforcement of Title VI. See Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980), reprinted in 42 U.S.C.A. § 2000d-1; see also 28 C.F.R. § 42.412. Accordingly, DOJ issues guidance to the federal grant agencies on regulatory and policy matters to harmonize federal enforcement efforts. In addition, DOJ is a grant agency that extends federal financial assistance subject to the conditions of Title VI. In this capacity, DOJ monitors its own recipients' compliance with Title VI and may bring enforcement actions against DOJ recipients that violate the statute or regulations implementing Title VI. Finally, upon referral from another federal agency, DOJ may file suit in federal court to enforce Title VI against one of the referring agency's recipients. However, DOJ may not initiate an enforcement action against a recipient until after the relevant federal agency has sought and failed to achieve voluntary compliance. Guidelines for the Enforcement of Title VI, Civil Rights Act of 1964, 28 C.F.R. § 50.3 (2002).

The Department of Health and Human Services ("HHS"), through its Office for Civil Rights ("OCR"), is responsible for the administrative enforcement of Title VI with regard to recipients of HHS federal financial assistance. Under existing HHS regulations, OCR must seek to achieve Title VI compliance through voluntary or informal means, 45 C.F.R. §§ 80.8(a), (d), and may not initiate enforcement proceedings against a recipient unless attempts at voluntary compliance fail. Id. § 80.8(d). In addition, HHS must satisfy several procedural requirements before terminating federal funding, including, inter alia, providing an administrative hearing, receiving approval from the Secretary of HHS to terminate funding, and filing a report with the House and Senate legislative committees having jurisdiction over the programs involved. Id.

§ 80.8(c). A recipient may seek judicial review of a final decision by HHS to terminate federal aid. 42 U.S.C. § 2000d-2; 45 C.F.R. § 80.11. DOJ would represent HHS in any such action.

B. Executive Order 13,166 Directs Federal Agencies to Issue Clarifying Guidance to Recipients of Federal Financial Assistance.

On August 11, 2000, President William J. Clinton issued Executive Order 13,166 directing federal agencies to develop, after consultation with appropriate program and activity stakeholders, guidance ensuring that persons with limited English proficiency receive meaningful access to federally funded services. See Exec. Order No. 13,166, 65 Fed. Reg. at 50,121. To assist the other federal agencies in developing LEP guidance for their respective fund recipients, the Executive Order incorporated by reference the contemporaneously-issued DOJ General Policy Guidance and instructed each grant agency to issue LEP guidance consistent with that guidance. Id. The DOJ General Policy Guidance explains that several factors inform the obligations under Title VI to assist LEP persons, including: (1) "the number or proportion of LEP persons in the eligible service population," (2) "the frequency with which LEP individuals come in contact with the program," (3) "the importance of the service provided by the program," and (4) "the resources available to the recipient." DOJ General Policy Guidance, 65 Fed. Reg. at 50,123. The DOJ General Policy Guidance clarifies pre-existing Title VI responsibilities and did not create any new obligations beyond those established by the statute and agencies' respective Title VI regulations. Id. at 50,123.

To fulfill its obligations as a grant agency subject to Executive Order 13,166, DOJ issued its own agency-specific guidance to DOJ recipients. See 66 Fed. Reg. 3,834. Unlike the DOJ General Policy Guidance, the DOJ Recipient Guidance is not addressed to federal agencies, but only to DOJ recipients. (1)Compare DOJ General Policy Guidance, 65 Fed. Reg. at 50,123 with DOJ Recipient Guidance, 67 Fed. Reg. at 19,237, 19,238.DOJ recently revised and republished the DOJ Recipient Guidance for additional notice and comment until May 20, 2002. 67 Fed. Reg. 19,237 (Apr. 18, 2002). After the period of public comment ends, DOJ will consider any comments it receives and will publish the guidance in final form.

Following publication of the Executive Order, HHS issued its HHS Recipient Guidance on August 30, 2000. See 65 Fed. Reg. 52,762. This policy guidance, which was republished on February 1, 2002 for the purpose of obtaining public comment, relates to the programs and activities of HHS recipients. (2) 67 Fed. Reg. at 4,969. The HHS Recipient Guidance clarifies that HHS' Title VI regulations, codified at 45 C.F.R. Part 80, require that recipients provide appropriate language assistance to LEP persons, "[w]here the failure to accommodate language differences discriminates on the basis of national origin." Id. at 4,970. This approach is consistent with HHS' long-standing interpretation of HHS regulations interpreting Title VI. See, e.g., Guidelines for Eliminating Discrimination & Denial of Services on the Basis of Race, Color, National Origin, Sex, & Handicap, 44 Fed. Reg. 17,162, 17,163 (Mar. 21, 1979) (clarifying that LEP status of national origin minorities may not be used as a basis for denying admission to vocational education programs). Further, like the DOJ Recipient Guidance, the HHS Recipient Guidance provides flexible criteria for evaluating whether an HHS recipient complies with Title VI and applicable regulations. See 67 Fed. Reg. at 4,971-81.

ARGUMENT
    I. Plaintiffs' Claims Should be Dismissed under Fed. R. Civ. P. 12(b)(1) for Lack of Subject Matter Jurisdiction.

This Court lacks subject matter jurisdiction to entertain Plaintiffs' claims because: (1) Plaintiffs lack standing and (2) their claims are not ripe for review. The complaint in this action therefore must be dismissed under Federal Rule of Civil Procedure 12(b)(1).

A. Plaintiffs Lack Standing.

Article III of the Constitution grants the federal courts jurisdiction to decide only actual cases and controversies, and the judiciary therefore has no power to issue advisory opinions. Clinton v. City of New York, 524 U.S. 417, 429 (1998); Comite de Apoyo a los Trabajadores Agricolas v. Dep't of Labor, 995 F.2d 510, 511 (4th Cir. 1993). The standing inquiry involves "both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498 (1975). To establish constitutional standing, a plaintiff must show: (1) it suffered an "injury in fact," (2) the injury is fairly traceable to the defendant's challenged actions, and (3) it is likely, rather than merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 167 (1997) (citation omitted). Even where Article III standing exists, prudential standing prevents a court from considering cases in which plaintiffs allege only generalized grievances shared by a large class of persons or seek to assert the legal rights of third parties. Warth, 422 U.S. at 499-500 (citations omitted). "The prudential principle barring adjudication of 'generalized grievances' is closely related to the constitutional requirement of personal 'injury in fact,' and the policies underlying both are similar," reflecting judicial recognition that "political branches of government are generally better suited to resolving disputes involving matters of broad public significance." Apache Bend Apartments v. United States, 987 F.2d 1174, 1176 (5th Cir. 1993) (citing Warth, 422 U.S. at 498, 499-500). Prudential standing further requires that, in cases where a plaintiff is not itself the subject of agency action, the plaintiff may challenge that action only to vindicate claims that fall within "the zone of interests" protected by the statute under which the agency action was taken. Nat'l Credit Union Admin. v. First Nat'l Bank, 522 U.S. 479, 488 (1998); Tap Pharm. v. Dep't of Health & Human Services, 163 F.3d 199, 202 (4th Cir. 1998). Because Plaintiffs do not meet these standing requirements, this Court lacks subject matter jurisdiction over their claims.

    1. Plaintiffs ProEnglish and K.C. McAlpin Lack Standing to Assert Any of the Claims Contained in the Complaint.

As an association, ProEnglish may establish standing by showing either an injury sustained by the organization itself or an injury to its members. Maryland Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1250 (4th Cir. 1991) (citation omitted). ProEnglish can make neither showing.

First, ProEnglish lacks standing to sue in its own right. ProEnglish alleges that it has been an "active advocate[] for [S]tate 'official English' laws and policies," that it has opposed the legal principles underlying Defendants' actions "for many years," and that the challenged policies somehow will make its advocacy activities "much more difficult." (Compl. ¶nbsp;3.) This is insufficient to establish Article III standing, where ProEnglish does not allege that it has been forced to divert resources from other activities or otherwise has suffered any specific harm because of Defendants' actions. An organization does not have Article III standing merely because its "broad purposes have been violated" by government action, or because it disagrees with government policy. Maryland Highways Contractors Ass'n, 922 F.2d at 1251. Plaintiffs not affected by the underlying agency action (here, the adoption of the LEP guidances), lack standing to seek redress for an agency's failure to follow procedural requirements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572, 573 & nn.7,8 (1992); City of Orville v. FEC, 147 F.3d 979, 986 (D.C. Cir. 1998); Capital Legal Found. v. Commodity Credit Corp., 711 F.2d 253, 259-60 (D.C. Cir. 1983). Thus, ProEnglish lacks standing to sue on its own behalf because it is not affected by Defendants' actions.

ProEnglish also lacks representative standing because there is no indication that any of its members could bring this suit in his or her own right. See Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167, 181 (2000). The only ProEnglish members mentioned in the complaint are its Chairman, Robert Park, who is not a Plaintiff in this case, and its Director, Plaintiff K.C. McAlpin. ProEnglish does not allege that Messrs. Park and McAlpin receive federal financial assistance, and the complaint does not suggest that any other ProEnglish member receives such assistance. The only harm Plaintiff McAlpin alleges as a result of Defendants' actions is that the challenged Executive Order and guidance documents have "ma[de] it far more difficult for him to accomplish his goals of protecting English as the common language of the United States and making English the official language of the U.S. government." (Compl.¶ 8.) Similarly, ProEnglish asserts only that the challenged policies have made Mr. Park's advocacy efforts "more difficult." (Id. ¶ 3.) These concerns and vague assertions of harm are no more than a general, ideological disagreement with federal policy, and, thus, are too abstract to satisfy the requirement of injury in fact. See Friends of the Earth, 528 U.S. at 180 (To establish standing, injury in fact must be "actual or imminent, not conjectural or hypothetical."); see also Defenders of Wildlife, 504 U.S. at 573-75 (1992) (adjudication of generalized grievances is inconsistent with Article III standing requirements). As a result, Plaintiffs ProEnglish and K.C. McAlpin lack standing to maintain this suit.

Even if ProEnglish could show that it meets the requirements of Article III standing, prudential standing requirements nonetheless would preclude consideration of its claims. The harms ProEnglish asserts are generalized grievances. Moreover, its claims are more appropriately raised by parties who, unlike ProEnglish, receive HHS or DOJ federal financial assistance. See Childress v. City of Richmond, 134 F.3d 1205, 1208-09 (4th Cir. 1998) (concurring opinion) (prudential standing requirements generally prohibit third-party standing). Finally, with respect to its claims under the APA, ProEnglish likewise fails to meet prudential standing requirements for APA challenges because the language interests it seeks to vindicate through this suit fall outside the "zone of interests" protected by Title VI. The purpose of Title VI is to ensure that federal monies not be spent to support discrimination on the basis of race, color, and national origin. ProEnglish asserts no claims arguably related to the purposes of this statute and, thus, fails to satisfy the relevant prudential standing requirements, see Tap Pharm., 163 F.3d at 204-05 (to fall within the zone of interests, plaintiff must be more than an incidental beneficiary of the statute under which contested agency action was taken). As such, prudential standing considerations likewise require dismissal of ProEnglish's claims.

2. Plaintiffs Anthony Bull, Clifford Colwell, Donald Kundel, and Joseph Daugherty Lack Standing.

Like ProEnglish and its Director, Plaintiffs Anthony Bull, Clifford Colwell, Donald Kundel, and Joseph Daugherty cannot show that they have suffered, or are imminently threatened with, an injury in fact "fairly traceable" to the policies they challenge. Although Drs. Bull, Colwell, Kundel, and Daugherty appear to contend that they receive federal financial assistance from HHS in connection with their professional practices (Compl. ¶¶4-7), none points to any actual threat that they will lose federal aid because of the challenged policies. (3) As noted above, issuance of the challenged policies did not change the fact that termination of HHS funds under Title VI can occur only after completion of several steps, including: (1) an individualized assessment of compliance with Title VI and the Title VI regulations, (2) notification to the recipient of non-compliance, (3) negotiations regarding voluntary compliance, and

(4) administrative enforcement proceedings. Plaintiffs do not assert that any of these steps has occurred here, or even has been threatened. Expectations that a party may, some day, be threatened with injury "without . . . any specification of when the some day will be - do not support a finding of the 'actual or imminent' injury required to establish standing." Friends for Ferrell Parkway v. Stasko, 282 F.3d 315, 322 (4th Cir. 2002) (quoting Defenders of Wildlife, 504 U.S. at 564) (emphasis in original). Moreover, any obligations these Plaintiffs may have to provide language assistance to LEP persons flow not from the challenged policies, but from Title VI and its implementing regulations.

B. Plaintiffs' Claims are Not Ripe for Review.

In keeping with the requirement that federal courts decide only live controversies, the courts grant the discretionary remedies of injunctive and declaratory relief from administrative determinations only where those determinations "arise in the context of a controversy ripe for judicial resolution." Reno v. Catholic Social Serv., Inc., 509 U.S. 43, 57 (1993) (citation and internal quotation marks omitted). The ripeness doctrine "prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies." Virginia Soc'y for Human Life, Inc. v. FEC, 263 F.3d 379, 389 (4th Cir. 2001) (citation and internal quotation marks omitted). Dismissal for lack of ripeness is appropriate where "nothing in the record shows that [Plaintiffs] have suffered any injury thus far, and the [policies'] future effect [on Plaintiffs] remains wholly speculative." Socialist Labor Party v. Gilligan, 406 U.S. 583, 589 (1972).

The ripeness analysis proceeds in two steps; this Court must determine both (1) whether the issue is "fit" for review, and (2) whether actual "hardship" would result from postponing a judicial decision. Satellite Broad. & Communications Ass'n v. FCC, 275 F.3d 337, 369 (4th Cir. 2001). Here, Plaintiffs' claims fail to satisfy either factor.

Plaintiffs' claims do not satisfy the "fitness" requirement of the ripeness analysis because they depend on future contingencies that might never occur. Plaintiffs' claims rest upon a wholly unsupported assumption that the challenged policies some day may have a direct adverse effect on them if the federal government determines that their future acts or omissions deny meaningful access to federally assisted programs, services, or benefits on the basis of national origin. The challenged policies clarify the federal government's interpretation of DOJ and HHS regulations implementing Title VI, and, in the case of the DOJ Recipient Guidance and the HHS Recipient Guidance, also remind recipients of DOJ and HHS financial assistance of their existing obligations under these agencies' respective Title VI regulations. These interpretative policies impose no new legal obligations upon Plaintiffs, and thus do not adversely affect them.

Indeed, the Executive Order itself explicitly applies only to the executive branch agencies and "does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its officers or employees, or any person." Exec. Order 13,166, 65 Fed. Reg. at 50,122. As the challenged agency policies make clear, it is Title VI and its implementing regulations, not the Executive Order or the DOJ and HHS guidances, that would provide the basis for any hypothetical future enforcement proceeding against Plaintiffs for non-compliance with Title VI obligations. See, e.g., 67 Fed. Reg. at 4,981, 19,245. In short, Plaintiffs are no worse off after the publication of the challenged policies than they were before. See Truckers United for Safety v. FHWA, 139 F.3d 936, 937-83 (D.C. Cir. 1998) (holding that challenge to interpretative guidance was unripe for review until applied in a concrete factual situation). Claims must be dismissed where, as here, they "rest[] upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300 (1998) (citation and internal quotation marks omitted); see also Gasner v. Bd. of Supervisors, 103 F.3d 351, 360-61 (4th Cir. 1996) (dismissing as unripe claim dependent on hypothetical circumstances). Further, even if the HHS and DOJ Recipient Guidances were independently enforceable and Plaintiffs could challenge them (which Defendants deny), Plaintiffs' claims would not be ripe because the guidances are currently under review and any enforcement action would be based on the final versions of these policies, which have not yet been issued.

Plaintiffs similarly fail to satisfy the hardship prong of the ripeness inquiry. In evaluating hardship, the key question is whether the petitioner will face an adverse effect that is "immediate, direct, and significant." West Virginia Highlands Conservancy, Inc. v. Babbitt, 161 F.3d 797, 801 (4th Cir. 1998) (citation and internal quotation marks omitted). Here, Plaintiffs face no such threat. The Executive Order does not and could not affect Plaintiffs because it applies solely to the federal government. Further, the agency guidances challenged in this case provide clarification regarding long-standing legal obligations, but do not impose on Plaintiffs any absolute requirement to do or to refrain from any particular conduct. As a result, Plaintiffs will not suffer any direct or immediate harm if the Court declines to address their claims.

Moreover, Congress has provided a comprehensive scheme for resolving disputes about the proper interpretation of Title VI, which protects recipients from the hardship of losing federal financial assistance until a judicial determination has been made. If a federal agency believes that a recipient has violated Title VI or regulations implementing the statute, it must first seek compliance "by voluntary means." 42 U.S.C. § 2000d-1. If those efforts fail and the agency wishes to terminate federal financial assistance, the recipient first is entitled to a hearing in which it can argue that its conduct does not violate the statute or regulations. Id. Most agencies, including HHS, provide for an administrative appeal of that decision. See 45 C.F.R. § 80.10. Even if the agency finally determines that the recipient has violated Title VI or regulations implementing that statute, the agency may not terminate funding until it has notified Congress and waited 30 days. 42 U.S.C. § 2000d-1. Alternatively, HHS may refer the matter to DOJ to seek injunctive relief requiring compliance with Title VI. 45 C.F.R. § 80.8(a)(1). During the 30-day Congressional notice period, a recipient may seek judicial review. 42 U.S.C. § 2000d-2. In those rare cases in which the agency has determined that fund termination was appropriate, the courts generally have stayed fund termination orders pending the outcome of the judicial proceedings. See, e.g., United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1050 (5th Cir. 1984); Gardner v. Alabama, 385 F.2d 804, 817 (5th Cir. 1967); Bob Jones Univ. v. Johnson, 396 F. Supp. 597, 599 (D.S.C. 1974), aff'd, 529 F.2d 514 (4th Cir. 1975). Furthermore, even when the courts have sustained the government's position, they appropriately have provided the recipient additional time to comply with the court's order before authorizing the termination of funds. See Baylor, 736 F.2d at 1050; Gardner, 385 F.2d at 817.

Thus, it is clear that Plaintiffs would suffer no actual hardship from postponing consideration of their claims until Plaintiffs' failure to comply with their Title VI obligations is challenged, if ever, by DOJ or HHS. See Truckers United for Safety, 139 F.3d at 938 (hardship prong of ripeness standard was not met where plaintiffs would have opportunity to address any future harm in administrative proceedings). Accordingly, Plaintiffs cannot satisfy the "hardship" criterion of the ripeness inquiry. Having failed to satisfy either criterion of the ripeness analysis, Plaintiffs' claims must be dismissed.

II. Venue is Improper in the Eastern District of Virginia.

In civil suits against federal officials, venue is governed by 28 U.S. C. § 1391(e), which states that venue is proper "in any judicial district in which: (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action." As Plaintiffs appear to concede (Compl. ¶ 2), neither subsection (1) or (2) creates venue in this District because all the named Defendants, sued in their official capacities, reside in the District of Columbia, see Stroud v. Benson, 254 F.2d 448, 451 (4th Cir. 1958) (District of Columbia is the official residence of DOJ officials for venue purposes); see also Schwarz v. I.R.S., 998 F. Supp. 201, 203 (N.D.N.Y. 1998) (noting that "[v]enue is not proper merely because a federal agency maintains a regional office in a district"), and the relevant agency action (i.e., adoption of the challenged federal policies) also occurred in the District of Columbia. Subsection 1391(e)(3) also does not create venue in this District, because, as previously discussed, Plaintiffs, including the only Plaintiffs who reside in the Eastern District of Virginia, ProEnglish and K.C. McAlpin, lack standing. Plaintiffs without Article III standing cannot create venue where it otherwise would not exist. See, e.g., Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1200 (8th Cir. 1990); Inst. of Certified Practitioners, Inc. v. Bentsen, 874 F. Supp. 1370, 1372 (N.D. Ga. 1994); Nat'l Distillers & Chem. Corp. v. Dep't of Energy, 487 F. Supp. 34, 36-37 (D. Del. 1980). Accordingly, this action should be dismissed for lack of venue under Federal Rule of Civil Procedure 12(b)(3). (4)

III. Plaintiffs' Claims Should be Dismissed for Failure to State a Claim for Which Relief May be Granted.

In addition to the complaint's failure to present a justiciable case or controversy and the lack of venue in this judicial district, the complaint in this case fails to present any claim on which relief may be granted. As a result, Federal Rule of Civil Procedure 12(b)(6) provides a basis for dismissal in addition to Rules 12(b)(1) and 12(b)(3).

        A. Plaintiffs Fail to State a Claim under the APA.

Plaintiffs fail to state a claim under the APA. Because the "actions of the President . . . are not reviewable under the APA," Plaintiffs' APA claims against President Bush based on the Executive Order must be dismissed. Dalton v. Spector, 511 U.S. 462, 469 (1994). Furthermore, Plaintiffs' APA challenges to the DOJ and HHS guidances must fail because those documents are merely interpretative rules and therefore not subject to the notice and comment requirements of the APA. See 5 U.S.C. § 553(b)(3)(A) (1996) (exempting "interpretative rules, general statements of policy, or rules of agency organization, procedure [and] practice" from APA notice and comment requirements); Chen Zou Chai v. Carroll, 48 F.3d 1331, 1340-41 (4th Cir. 1995) (same).

An interpretative rule explains what the agency believes a statute means, clarifies ambiguous terms, or reminds affected parties of existing duties. Pelissero v. Thompson, 170 F.3d 442, 446 (4th Cir. 1999). The Fourth Circuit has recognized two principal characteristics distinguishing policy statements and interpretative rules from substantive regulations subject to notice and comment procedures: (1) a statement of policy or interpretative rule cannot have present effects on the rights and obligations of third parties, and (2) an interpretative rule or policy statement must leave the agency and its policy makers free to exercise discretion. See Chen Zou Chai, 48 F.3d at 1340-41; Assoc. Dry Goods Corp. v. EEOC, 720 F.2d 804, 811 (4th Cir. 1983).

The HHS and DOJ Recipient Guidances squarely fit the definition of an interpretative rule or policy statement. Neither the HHS Recipient Guidance, the DOJ General Policy Guidance or the DOJ Recipient Guidance has any present effect on third parties' rights or obligations because they merely set forth these agencies' respective interpretations of DOJ and HHS regulations implementing Title VI. In addition, by establishing flexible standards and emphasizing the importance of case-specific circumstances, the DOJ and HHS Recipient Guidances leave to these federal agencies the discretion to consider individual circumstances when assessing compliance with Title VI regulations. See 67 Fed. Reg. at 19,240 (adopting a "flexible and fact-dependent standard" with an "individualized assessment" when evaluating DOJ recipient compliance with Title VI); id. at 4,971 ("OCR will make its assessment of the language assistance needed to ensure meaningful access on a case by case basis."). Plaintiffs have not alleged that DOJ or HHS has attempted to enforce the challenged agency guidances against them or to make Plaintiffs comply with any specific measure suggested in these policies. For all of these reasons, DOJ and HHS did not need to follow the APA's requirements for providing notice and an opportunity to comment before promulgating the agency guidances challenged in this case.

      B. Plaintiffs Fail to State a Claim under the First Amendment.

Plaintiffs allege two wholly novel claims under the First Amendment: (1) that the requirement to provide language assistance for LEP persons violates the protection against forced speech, and (2) that the challenged policies are unconstitutionally vague and overbroad. (Compl. ¶¶39, 42, 43.)Neither of these contentions states a claim under the First Amendment.

                   1. Defendants' Policies Do not Infringe upon the Right of Plaintiffs Anthony Bull, Clifford Colwell, Donald Kundel, and Joseph Daugherty to Free Speech.

Plaintiffs' First Amendment claims must fail because the policies they challenge have no effect on constitutionally protected speech. Plaintiffs are correct that the First Amendment protects persons from being compelled to engage in prescribed speech, just as it guarantees the right to speak freely. See, e.g., Hurley v. Irish-Amer. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 573 (1995). Yet Defendants' adoption of the challenged policies in no way forces Plaintiffs to endorse a particular message or to change in any manner the content of their discussions with patients.

Moreover, even regulations that interfere with some semblance of speech satisfy constitutional requirements when imposed solely as a condition on the receipt of federal funds. "The condition that federal funds will be used only to further the purposes of a grant does not violate [First Amendment] rights." Rust v. Sullivan, 500 U.S. 173, 198 (1991). Thus, the Supreme Court in Rust held that a statutory requirement conditioning receipt of federal family planning funds on recipients' agreement not to refer patients for abortion services did not force recipients to give up abortion-related speech. Id. Because individuals working for recipients remained free to engage in abortion-related speech in their private lives, the restrictions on the use of federal financial assistance did not infringe upon their constitutional rights. Id. at 197. "[T]he government is entitled to control . . . speech [where] it has, in a meaningful sense, 'purchased' the speech at issue through a grant of funding." Urofsky v. Gilmore, 216 F.3d 401, 407 n.6 (4th Cir. 2000) (finding that university professors had no First Amendment right to access sexually explicit materials on campus computers).

Here, any requirement that Plaintiffs provide language assistance is directly related to their receipt of federal financial assistance. In purchasing and subsidizing medical services, the United States is entitled to condition its receipt of funds on the recipient's agreement to communicate with the patient in a language he or she can understand. Indeed, the threat of First Amendment violation was even greater in Rust and Urofsky than here because both those cases involved content-specific restrictions on speech. In this case, even assuming that the required use of interpreters might constitute forced speech, that requirement is unquestionably content-neutral. Nothing in the complaint, or the challenged policies, suggests that Defendants have limited Plaintiffs' control over the content of their communications with patients.

In Grove City Coll. v. Bell, 465 U.S. 555 (1984), superceded by statute on other grounds, Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988), the Supreme Court rejected a First Amendment claim very similar to that raised here. In that case, Grove City College argued that a statute conditioning the receipt of federal financial assistance on its agreement not to discriminate on the basis of sex violated its First Amendment rights. The Court held otherwise, explaining that

Grove City may terminate its participation in the [federal] program and thus avoid the requirements of [the anti-discrimination statute]. Students affected by the Department's action [cutting off funds] may either take their [federal funds] elsewhere or attend Grove City College without federal financial assistance. Requiring Grove City to comply with [the statute's] prohibition of discrimination as a condition for its continued eligibility to participate in the [federal funding] program infringes no First Amendment rights of the College or its students.

Id. at 575-76. Similarly, nothing in the First Amendment permits Plaintiffs Anthony Bull, Clifford Colwell, Donald Kundel, and Joseph Daugherty to accept HHS funds and then refuse to comply with the conditions of Title VI on the grounds that they are being forced to speak.

2. Defendants' Policies Do Not Infringe upon the Right of Plaintiffs ProEnglish and K.C. McAlpin to Free Speech.

Plaintiffs ProEnglish and K.C. McAlpin do not allege a violation of their First Amendment rights in connection with the receipt of federal funds, but rather contend that Defendants' policies abridge their right to free speech because those challenged policies make it more difficult to accomplish the goals of their advocacy. (See Compl. ¶ 8.) They also do not allege that they have been forced to abandon such advocacy, and indeed it appears that they have no intention of doing so. The challenged policies do not violate these Plaintiffs' First Amendment rights merely because they adopt a position that Plaintiffs have publicly opposed.

          3. Defendants' Policies Are Not Unconstitutionally Vague or Overbroad.

Plaintiffs' First Amendment claims that Defendants' policies are vague and overbroad also fail. Because the policies Plaintiffs challenge do not infringe on protected speech, by definition they cannot be overbroad. Boos v. Barry, 485 U.S. 312, 331-32 (1988) (regulation that does not reach a substantial amount of constitutionally protected speech cannot be overbroad); Urofsky, 216 F.3d at 416 n.18 (same). Plaintiffs' vagueness claims are also without merit. Because the First Amendment vagueness doctrine protects against government action that threatens to chill speech because the challenged action has the force and effect of law, see Reno v. ACLU, 521 U.S. 844, 871 (1997), the doctrine does not apply in the context of interpretative guidance policies that do not create binding norms, such as the agency guidances challenged here. (5)

Further, the challenged policies are sufficiently clear to pass constitutional muster. The Executive Order plainly instructs federal agencies to adopt an LEP guidance that is consistent with the DOJ General Policy Guidance, which in turn describes specific factors relevant to agencies' Title VI obligations. See 65 Fed. Reg. at 50,123. The DOJ Recipient Guidance and the HHS Recipient Guidance provide detailed criteria for assessing compliance with agency regulations implementing Title VI, and clarify that Title VI and its implementing regulations ultimately define recipients' legal obligations. See 67 Fed. Reg. at 4,971-81; 67 Fed. Reg. at 19,239-44, 19,245. In addition, the DOJ and HHS Recipient Guidances are not unconstitutionally vague merely because they incorporate a flexible standard and allow some discretion to those who apply them. See Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989) (upholding sound ordinance that was "flexible" and required those enforcing it to exercise "considerable discretion"); Boos, 485 U.S. at 332 (ordinance regulating picketing near foreign embassies was valid despite the fact that its application varied depending on specific context of picketing activities). In addition, the First Amendment protection against vague government pronouncements is less likely to be implicated in the context of requirements attached to federal subsidies than where the government enacts direct prohibitions. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998) ("[W]hen the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.").

C. Plaintiffs Fail to State a Claim under the Ninth Amendment.

The policies Plaintiffs challenge could not infringe on any right guaranteed by the Ninth Amendment, because they are merely interpretative policies and create no new obligations. Even if this were not so, Plaintiffs' claims under the Ninth Amendment would fail. The Ninth Amendment of the Constitution provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."U.S. Const. amend. IX. Plaintiffs essentially allege that they have a Ninth Amendment right not to provide language assistance to LEP patients when providing health care services to these patients. No court has ever recognized such a right under the Ninth Amendment.

Even assuming that the Ninth Amendment grants such a right, it may be limited in the context of a federally funded program in ways necessary to achieve the program's legitimate goals. See Rust, 500 U.S. at 196-97. Title VI, which was enacted pursuant to a valid exercise of congressional spending power, see Guardians Ass'n v. City of New York, 463 U.S. 582, 599 (1983) (opinion of White, J.), has the wholly legitimate goal of ensuring that discrimination does not limit access to public funds on the grounds of national origin. Because Plaintiffs are free to reject federal funding and the Title VI obligations that accompany it, the challenged policies would not affect Plaintiffs' Ninth Amendment rights, even if such rights were implicated here. Accordingly, Plaintiffs fail to state a claim under the Ninth Amendment.

D. Plaintiffs Fail to State a Claim under the Tenth Amendment.

Similarly, Plaintiffs fail to state a claim under the Tenth Amendment, which forbids the federal government from taking action outside specific federal powers. See U.S. Const. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."). The Supreme Court has interpreted the Tenth Amendment to mean that the federal government may not compel the States to implement federal regulatory programs through legislation or executive action. Printz v. United States, 521 U.S. 898, 925 (1997) (holding that federal government could not require local law enforcement official to enforce background check provisions of the Brady Act). However, the Tenth Amendment does not prevent the United States from encouraging certain conduct by placing conditions on the receipt of federal funds. See South Dakota v. Dole, 483 U.S. 203, 210 (1987) (upholding federal statute conditioning receipt of federal highway funds on recipient States' adoption of minimum drinking age). There can be no question that Title VI is a valid exercise of congressional authority under the Spending Clause, and that DOJ and HHS may enact regulations and issue guidance to enforce it. Guardians Ass'n, 463 U.S. at 599 (opinion of White, J.); see also Litman v. George Mason Univ., 186 F.3d 544, 553-54 (4th Cir. 1999) (same for Title IX of the Education Amendments, which was modeled on Title VI), cert. denied, 528 U.S. 1181 (2000); 42 U.S.C. § 2000d-1 (authorizing federal agencies to enact regulations implementing Title VI); Exec. Order No. 12,250, 45 Fed. Reg. at 72, 996 (authorizing federal agencies to issue guidance regarding Title VI). Thus, Plaintiffs' Tenth Amendment challenge must fail.

E. Plaintiffs Fail to State a Claim under the Regulatory Flexibility Act or the Small Business Regulatory Enforcement Fairness Act.

Plaintiffs' allegations also do not state any claim under the Regulatory Flexibility Act or the Small Business Regulatory Enforcement Fairness Act of 1996. The Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act, places certain requirements on agencies when promulgating rules that are subject to notice and comment procedures. See generally 5 U.S.C. §§ 603-05. "Failure to comply with the [Regulatory Flexibility Act] may be, but does not have to be, grounds for overturning a rule." Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 868 (D.D.C. 2001) (citation and internal quotation marks omitted).

The Regulatory Flexibility Act does not apply to interpretative rules for which public notice and comment is not required, with the narrow exception of interpretative rules of the Internal Revenue Service. See 5 U.S.C. § 603(a) (regulatory flexibility analysis applies "[w]henever an agency is required by . . . law to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States"). Because, as previously explained, the DOJ and HHS Recipient Guidances are not subject to notice and comment requirements, they are exempt from the Regulatory Flexibility Act. Furthermore, as a presidential directive, the Executive Order is not subject to the Regulatory Flexibility Act or the Small Business Regulatory Enforcement Fairness Act because these provisions have adopted the APA's definition of agency, which does not include the President of the United States. See 5 U.S.C. § 601(1) (adopting definition of agency set forth in the APA, 5 U.S.C. § 551(1)); Dalton, 511 U.S. at 470 (noting that the President is not within definition of agency under 5 U.S.C. § 551). As a result, Plaintiffs' claims under the Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act must be dismissed.

F. Plaintiffs Fail to State a Claim under the Paperwork Reduction Act.

Plaintiffs' claims under the Paperwork Reduction Act must fail because: (1) that Act does not create a private right of action, and (2) the challenged policies do not impose a reporting requirement on Plaintiffs. "[T]he question whether a statute creates a private right of action is ultimately one of congressional intent," and in determining intent the courts "turn first to the language of the Act itself." Universities Research Ass'n, Inc. v. Coutu, 450 U.S. 754, 771 (1981) (internal quotation omitted). The Paperwork Reduction Action provides that "no person shall be subject to any penalty for failing to comply with a collection of information" if the information collection form does not display a valid control number from the Office of Management and Budget ("OMB"). 44 U.S.C. § 3512(a). Furthermore, "[t]he protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto." 44 U.S.C. § 3512(b) (emphasis added). "As is apparent from subsection (b), the Act authorizes its protections to be used as a defense. The Act does not authorize a private right of action." Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 844 (9th Cir. 1999); see also Council on Regulatory & Info. Mgmt., Inc. v. Dep't of Labor, No. Civ. A. 93-2362 (LFO), 1993 WL 544303, at *2 (D.D.C. Dec. 21, 1993) (no private right of action under Paperwork Reduction Act because Congress did not provide explicitly for such a right). Because there is no private right of action under the Paperwork Reduction Act, Plaintiffs' claims thereunder must fail.

Furthermore, even if the Paperwork Reduction Act provided a private right of action, Plaintiffs would still fail to state a claim under the Act. The Paperwork Reduction Act applies only when the federal government requires a "collection of information," i.e., when the federal government mandates "obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency." 44 U.S.C. §§ 3502(3)(A), 3507(a). To fall within this definition, the challenged policies somehow must impose a "reporting requirement" on recipients. See Benkelman Tel. Co. v. FCC, 220 F.3d 601, 607 (D.C. Cir. 2000); Saco River Cellular, Inc. v. FCC, 133 F.3d 25, 33 (D.C. Cir. 1998). The challenged policies include no such requirement. They merely clarify that, under certain circumstances, agency regulations implementing Title VI may require recipients to provide language assistance to LEP patients. Although during the course of an investigation or compliance review HHS or DOJ might ask a recipient to document its efforts to accommodate LEP persons, such administrative investigations are exempt from the Act's requirements. See Controlling Paperwork Burdens on the Public, 5 C.F.R. § 1320.4(a)(2) (2002). Thus, Plaintiffs' reliance on the Paperwork Reduction Act is misplaced.

CONCLUSION

For these and any other reasons the Court deems appropriate, Defendants respectfully request that the Court dismiss the complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3) and 12(b)(6). In the alternative, Defendants respectfully ask that this Court transfer this case to the United States District Court for the District of Columbia.

Respectfully submitted,

PAUL J. MCNAULTY
United States Attorney
Eastern District of Virginia

RALPH F. BOYD, JR.
Assistant Attorney General
U.S. Department of Justice

STEVEN E. GORDON
Assistant United States Attorney
2100 Jamieson Avenue
Alexandria, Virginia 22314
(703) 299-3817

R. ALEXANDER ACOSTA
MARYBETH MARTIN
CHARLOTTE BURROWS
Member, N.Y. Bar (no number issued)
U.S. Department of Justice, Civil Rights Division
950 Pennsylvania Avenue, N.W.
Employment Litigation Section
Patrick Henry Building, Room 4613
Washington, D.C. 20530
(202) 514-3862
(202) 514-1105 (telefacsimile)

Attorneys for Defendants

Dated: May 20, 2002

1. It is not clear from the complaint whether Plaintiffs challenge the DOJ General Policy Guidance, the DOJ Recipient Guidance, or both. Defendants assume for purposes of this motion that Plaintiffs intend to challenge both policies.

2. HHS currently is reviewing public comments regarding the HHS Recipient Guidance, which it received during the February-April 2002 comment period, and will consider these comments to determine whether revisions are necessary before issuing the guidance in draft and/or final form.

3. Although the complaint suggests that Drs. Bull, Colwell, Kundel, and Daugherty might receive federal financial assistance through HHS (Compl. ¶¶ 4-7), these Plaintiffs clearly are not DOJ recipients. See 67 Fed. Reg. at 4,971 (HHS recipients include, inter alia, hospitals, physicians and other health care providers); see also id. at 19,239 & n.2 (listing examples of DOJ recipients including police and sheriff's departments, departments of correction, jails, and detention facilities); 28 C.F.R. § 42.101-112 (same). Because the Executive Order, the DOJ General Policy Guidance, and the DOJ Recipient Guidance are addressed only to federal agencies or DOJ recipients, these particular policies clearly do not apply to any of the Plaintiffs.

4. In the alternative, if this Court determines that the interests of justice favor transfer of this action (as opposed to dismissal of the action for lack of venue), Defendants ask this Court to transfer the case to the District of Columbia. The traditional transfer analysis supports transfer to the District of Columbia because venue is proper in that district, the District of Columbia is not significantly less convenient to the parties than the Eastern District of Virginia given the close proximity of the two districts, and Plaintiffs are unlikely to suffer significant prejudice if the case is transferred at this early stage of the proceedings. See Affinity Memory & Micro, Inc. v. K & Q Enterprises, 20 F. Supp. 2d 948, 954 (E.D. Va. 1998) (transfer analysis includes plaintiff's choice of venue, witness convenience and access, party convenience, and the interests of justice).

5. Because the policies challenged in this case do not impose any binding requirements on Plaintiffs, logic dictates that they cannot infringe upon any rights guaranteed by the Fifth Amendment's Due Process Clause. Plaintiffs' allegations under the Due Process Clause (See ¶¶ 52, 53) therefore also fail to state a claim for which relief may be granted.

Updated August 6, 2015

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