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

PROENGLISH, et al.,

Plaintiffs, v.                   Civil Action No. 1:02-CV-356

PRESIDENT GEORGE W. BUSH, et al.,

Defendants.

DEFENDANTS' REBUTTAL TO
PLAINTIFFS' OPPOSITION TO THE MOTION TO DISMISS

Plaintiffs' Opposition to the Motion to Dismiss (&quot Plaintiffs' Opposition&quot or &quot Pls.' Opp.&quot) fails to refute any of the bases for dismissal Defendants raised in their Motion to Dismiss. Plaintiffs do not even address the Fifth and Ninth Amendment claims alleged in their complaint, and thus apparently have conceded that those claims lack merit. (1) Transworld Prod. Co. v. Canteen Corp., 908 F. Supp. 1, 5 (D.D.C. 1995) (granting motion to dismiss as to claims plaintiff did not address in its opposition to dismissal). Further, with regard to the claims Plaintiffs do address in their Opposition, their allegations of harm are simply too speculative to satisfy the Article III requirements of standing and ripeness, and they have articulated no credible legal theory to support their claims. (2) Accordingly, Plaintiffs' complaint must be dismissed for lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (3)

STANDARDS OF REVIEW

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), plaintiffs bear the burden of establishing jurisdiction and therefore must clearly and specifically allege facts sufficient to show Article III jurisdiction. See Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768-69 (4th Cir. 1991). Facts necessary to create jurisdiction, if not specifically included in the complaint, cannot be assumed. Id. &quot A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations . . . .&quot Whitmore v. Arkansas, 495 U.S. 149, 155-56 (1990).

In considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), &quot a court must construe the complaint in the light most favorable to the plaintiffs, read the complaint as a whole, and take the facts asserted therein as true.&quot In re MicroStrategy, Inc. Sec. Litig., 115 F. Supp. 2d 620, 627 (E.D. Va. 2000). However, the court need not accept as true &quot legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions, or arguments.&quot See E. Shore Markets, Inc. v. J.D. Assoc. Ltd., 213 F.3d 175, 180 (4th Cir. 2000).

ARGUMENT

I. None of Plaintiffs' Claims is Ripe for Review.

Plaintiffs challenge Executive Order 13,166, 65 Fed. Reg. 50,121 (Aug. 11, 2000), and certain agency guidance issued by the United States Department of Justice (&quot DOJ&quot) and the United States Department of Health and Human Services (&quot HHS&quot) regarding the provision of federally-assisted services to persons with limited English proficiency (&quot LEP&quot"). (4) For their claims to be ripe, they must be &quot fit[]&quot for review, and Plaintiffs must be threatened with real &quot hardship&quot if judicial review is withheld. Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998). To determine ripeness, courts should consider: (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.&quot Id. Consideration of these factors shows that Plaintiffs' claims in this case are not ripe.

A. Withholding Consideration of Plaintiffs' Claims Will Not Cause Plaintiffs Significant Hardship.           1. Plaintiffs Will Suffer No Hardship if the Court Does not Review Their Claims Because the Challenged Policies Do Not Establish Binding Legal Obligations.

Plaintiffs will not suffer significant hardship if this Court declines to hear their claims. The hardship requirement of the ripeness standard is not met where a plaintiff challenges agency action that does not &quot create adverse effects of a strictly legal kind.&quot Ohio Forestry Ass'n, 523 U.S. at 733 (a plaintiff cannot establish hardship on the basis of agency actions that &quot do not command anyone to do anything or to refrain from doing anything, . . . do not grant, withhold, or modify any formal legal license, power, or authority [and] create no legal rights or obligations&quot.). Such is the case here.

Executive Order 13,166 explicitly provides that it &quot is intended only to improve the internal management of the executive branch and does not create any right or benefit . . . enforceable at law or equity . . . .&quot 65 Fed. Reg. at 50,122. The DOJ and HHS guidances challenged in this case set forth non-binding factors relevant to compliance with long-standing federal regulations implementing Title VI, but create no absolute requirement that recipients of federal financial assistance apply these factors, nor impose any sanction on recipients who fail to do so. See, e.g., HHS Recipient Guidance, 67 Fed. Reg. at 4,971 (&quot There is no 'one size fits all' solution for Title VI compliance with respect to LEP persons.&quot ). The HHS Recipient Guidance provides that HHS recipients need not implement options suggested therein if there are other &quot equally effective alternatives for ensuring LEP persons have meaningful access to programs and services&quot or if &quot implementation would be [unduly] financially burdensome . . . .&quot Id. at 4,971-72. Nor do the challenged policies establish any binding, bright-line rule requiring DOJ and HHS recipients to employ an interpreter whenever they serve an LEP person, or translate every professional document into all languages spoken in their client communities. See id. at 4,973 (&quot It would be unduly burdensome to demand that recipient[s] . . . translate all written materials into dozens, if not more than 100, languages.&quot ); accord DOJ Recipient Guidance, 67 Fed. Reg. at 41,463. The challenged policies are merely guidance for recipients of federal financial assistance and are meant to assist recipients in meeting obligations contained within regulations to which they are bound by virtue of their receipt of federal financial assistance.

Thus, Plaintiffs' assertion that they are harmed by the &quot automatic operation&quot (Pls.' Opp. 13) of the challenged policies is clearly incorrect. Although phrased as a factual allegation, Plaintiffs' characterization of these policies as automatically binding is actually a legal conclusion, which this Court is not bound to accept as true in deciding whether dismissal is appropriate. See E. Shore Markets, Inc., 213 F.3d at 180 (The court need not accept as true &quot legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions, or arguments.&quot ). Rather, because these policies clearly do not impose any sanction or create a legal duty to take prescribed action, they are not legally binding.

2. Plaintiffs' Alleged Obligation to Expend Funds for Translation Services Does Not Satisfy the &quot Hardship&quot Requirement of the Ripeness Standard.

Specific analysis of each of Plaintiffs' alleged harms confirms that none of these harms constitutes &quot hardship&quot as the courts have defined that term. For example, the allegation that hardship flows from Plaintiffs' alleged &quot present and future expenditure of funds for translators and interpreters&quot does not satisfy the hardship requirement under the circumstances of this case. (5) (Pls.' Opp. 13.) However, as the Tenth Circuit held in CSG Exploration Co. v. FERC, 930 F.2d 1477, 1486 (10th Cir. 1991), the fact that an agency policy might economically disadvantage a plaintiff is not dispositive of ripeness. In that case, plaintiff gas companies challenged a FERC Order adopting new rules on gas pricing on the grounds that the threatened application of those rules made the plaintiffs less attractive business partners for other gas companies, and therefore disadvantaged the plaintiff companies economically. Id. at 1486. The court held that plaintiffs were not threatened with sufficient hardship to show that their claims were ripe because the agency had not attempted to apply the challenged rules to the plaintiff companies, and the plaintiffs were &quot not foreclosed from challenging these [rules] at a later time.&quot Id. at 1485.

Here, if Plaintiff physicians determine that the language assistance suggested in the HHS Recipient Guidance is unnecessary to their compliance with Title VI regulations and therefore choose not to follow it, or decide they can comply in other ways, they will not be required to pay for interpretative services unless HHS initiates an investigation or compliance review, finds that these Plaintiffs have violated the applicable regulations, conducts an administrative hearing, and issues a final decision of non-compliance or successfully sues Plaintiff physicians in federal court. Further, Title VI does not authorize federal agencies to demand repayment of past federal financial assistance received by a recipient during periods of non-compliance; thus, Plaintiff physicians will not be required to repay federal financial assistance received now if they are found to violate Title VI or its implementing regulations at some future date. As such, Plaintiffs' claim that they will suffer hardship by being forced to pay for interpretative services is not sufficiently concrete to establish that their claims are ripe at this time. For a challenge to agency action to be ripe, &quot it must involve an administrative decision that has been formalized and its effects felt in a concrete way by the challenging parties.&quot Arch Mineral Corp. v. Babbitt, 104 F.3d 660, 665 (4th Cir. 1997) (citations and internal quotation marks omitted). This requirement is not met here.

3. The Possibilities that Plaintiffs' Insurance Premiums Might Increase or That Plaintiffs Might Be Sued for Malpractice Do not Satisfy the &quot Hardship&quot Element of the Ripeness Standard.

Plaintiffs allege in their Opposition, but not in their complaint, that they face &quot present and potential increases in malpractice liability insurance premiums&quot as a result of the challenged policies. (Pls.' Opp. 13.) Plaintiffs also allege that these policies increase their risk of being sued for malpractice. (Pls.' Opp. 13, 14; Compl. カ 37.) Neither of these allegations satisfies the &quot hardship&quot requirement of the ripeness standard.

Despite the reference to &quot present . . . increases,&quot (Pls.' Opp. 13) a careful reading of the Opposition reveals that Plaintiff physicians do not allege that their malpractice insurance premiums actually increased after the HHS Recipient Guidance was issued, but only that they fear insurers &quot will likely note this new federal requirement and adjust both their expectations and rates.&quot (Id. at 18.) Speculation about the possibility that private insurers might raise Plaintiffs' insurance premiums at some unspecified future date does not give rise to a justiciable claim against Defendants now. There simply is no way to know whether this potential harm will ever come to pass. For the same reason, Plaintiffs' unsupported speculation that patients might sue them in the future does not make their claims ripe.

        4. Plaintiffs' Claim that their Rights to Free Speech will Be Lost or Diminished Does Not Satisfy the Hardship Requirement of Ripeness.

Under the circumstances, Plaintiffs' claims that their free speech rights are diminished by the Executive Order, the DOJ General Policy Guidance, and the DOJ and HHS Recipient Guidances also do not satisfy the hardship requirement. Plaintiffs assert three different First Amendment harms: the alleged harm to their advocacy for official English laws, alleged forced speech &quot in a manner in which they do not want to speak&quot (Compl. カ 44), and an alleged chilling effect on their freedom of speech. None of these is sufficient to establish that their First Amendment claims are ripe.

Plaintiffs' allegations -- that the challenged policies &quot would undermine or eliminate the English language goals and programs which ProEnglish has conducted in recent years &quot (Compl. カ 3) and &quot mak[e] it far more difficult . . . to accomplish . . . goals of protecting English as the common language of the United States and making English the official language of the U.S. government&quot (Id. カ 8) -- clearly do not satisfy the hardship requirement because nothing in the challenged policies even suggests a limitation on lobbying.(6)

Plaintiffs' claims that the challenged policies require forced speech (Compl. カ 44) and chill their freedom of speech (Id. カ 42) also do not satisfy the hardship requirements. Because none of the Plaintiffs alleges that HHS has ever initiated compliance proceedings against them regarding their provision of services to LEP persons, or that HHS has suggested that they currently violate any applicable Title VI regulations, the likelihood of hardship from any enforcement action is too speculative for their claims to be ripe at this stage. See Kemler v. Poston, 108 F. Supp. 2d 529, 540 (E.D. Va. 2000) (judges' challenge to chilling effect of ethics committee's advisory opinion was not ripe where enforcement had not been threatened). Further, in cases alleging a chilling effect on First Amendment rights, &quot [a]lthough the threat of criminal penalty militates in favor of a finding of hardship, . . . [a] threat of civil enforcement . . . generally does not call for judicial intervention.&quot Id. at 542 (citations omitted).

B. Judicial Intervention Would Interfere with Administrative Action, and Plaintiffs' Claims Would Be Best Considered in the Context of a More Concrete Factual Scenario.

The questions of whether judicial review of Plaintiffs' claims would benefit from further factual development, and whether judicial review at this stage would interfere with administrative action are relevant to the &quot fitness&quot requirement of the ripeness standard. See Reg'l Mgmt. Corp. v. Legal Servs. Corp., 186 F.3d 457, 465 (4th Cir. 1999) (fitness encompasses &quot agency's interest in crystallizing its policy before that policy is subject to review and . . . court's interest in avoiding unnecessary adjudication and in deciding issues in a concrete setting&quot ) (citation omitted). To determine ripeness, these two interests must be balanced against the alleged hardship to the plaintiff of withholding review. Id. Here, balancing these factors shows that Plaintiffs' claims are not ripe for review.

Plaintiffs' claims clearly would benefit from further factual development generated in an administrative context, if appropriate. For instance, Plaintiff Colwell alleges that he already &quot provide[s] translators, at [his] own cost, in some languages, but not in all languages as would be required by the governmental policies considered here.&quot (Compl. カ 5.) To adjudicate his claims, this Court would need to decide whether, after applying the four factors set forth in the challenged policies, HHS likely would determine that Dr. Colwell's failure to provide additional language assistance beyond that already offered at his clinic violates HHS' implementing regulations, denying meaningful access to LEP persons. This would require

taking into account all relevant circumstances, including the nature of [Dr. Colwell's] services, . . . the size [of his clinic], the number and size of the LEP language groups in its service area, the nature and length of [any] document [that might require translation], the objectives of [Dr. Colwell's services], the total resources available to [him], the frequency with which translated documents are needed, and the cost of translation.

HHS Recipient Guidance, 67 Fed. Reg. at 4,973.

The &quot incremental&quot nature of Title VI compliance reviews and complaint investigations further supports the conclusion that this case is not ripe. Kemler, 108 F. Supp. at 541. For instance, in Kemler, the Court held that a First Amendment challenge to an advisory ethics opinion cautioning judges to refrain from voting in primary elections was not ripe, in part because the investigation to determine whether a judge had committed an ethics violation was an incremental process in which the investigating body could suspend the inquiry or &quot engage in more informal discussions to resolve a complaint.&quot Id. at 541. In a similar manner, regulations implementing Title VI require DOJ and HHS to attempt to resolve matters through voluntary compliance efforts.

Because Plaintiffs will not suffer significant hardship from a delay of this action, the need for further factual development and the importance of permitting HHS the first opportunity to apply its policies clearly demonstrate that Plaintiffs' claims are not ripe. This Court need not address Plaintiffs' claims now in a factual vacuum, because Plaintiffs &quot will have ample opportunity later to bring [their] legal challenge at a time when harm is more imminent and more certain.&quot Ohio Forestry Ass'n, 523 U.S. at 734.

II. Plaintiffs Lack Standing to Assert Any of the Claims Alleged in the Complaint.

Plaintiffs also lack standing to challenge the policies at issue because none of the harms they allege is sufficiently concrete and immediate, or sufficiently traceable to the challenged policies, to give rise to a justiciable controversy. As discussed above, Plaintiffs assert that they are harmed because the challenged policies will require them to expend funds for translators and interpreters (Compl. カカ 4-6; Pls.' Opp. 17), will cause their malpractice insurance premiums to increase (Pls.' Opp. 17), will increase their litigation exposure (Compl. カカ 4-6, 37; Pls.' Opp. 17), and will diminish their free speech rights (Compl. カカ 3, 8, 39, 42-44).Plaintiffs also state for the first time in their Opposition that Plaintiff physicians are harmed by the &quot distress of a willing physician being unable to treat a needy patient solely because of Defendants' . . . policies.&quot (Pls.' Opp. 16.) Some of these claims (i.e., the potential increase in insurance premiums and Plaintiff physicians' subjective distress) are included only in Plaintiffs' Opposition, not in their complaint, and thus are not properly before this Court. Whitmore v. Arkansas, 495 U.S. at 155-56 (federal courts may not create jurisdiction by embellishing a plaintiff's complaint). Even if these purported harms had been properly alleged, however, none would suffice to establish standing.

First, the mere fact that the challenged DOJ and HHS Guidances clarify that Title VI regulations require that, under certain circumstances, recipients of federal financial assistance may need to expend funds to provide language assistance to LEP persons is not a sufficiently concrete harm to satisfy the standing requirements of Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992) (injury must be imminent; allegations of injury at some indefinite future time cannot establish standing). Where, as here, there is no current injury, and plaintiffs rely wholly on the threat of future injury, the fact that one can imagine circumstances in which they would be affected by the agency's action is insufficient for standing purposes. Northwest Airlines v. FAA, 795 F.2d 195, 201 (D.C. Cir. 1986). Thus, the possibility that Plaintiffs could be required to pay for the services of an interpreter does not constitute a present, imminent harm.

Second, Plaintiffs' claim of harm from a possible future increase in malpractice insurance premiums also does not present an imminent harm sufficient to satisfy the standing requirement. This allegation is contingent upon the independent actions of insurance companies, rather than upon any actions of Defendants. Accordingly, it fails to satisfy the traceability and redressibility requirements of the standing analysis. See Defenders of Wildlife, 504 U.S. at 560 (to be traceable to defendant, alleged injury may not result from independent action by a third party not before the court); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-43 (1976) (concluding that causality and redressibility elements of standing were lacking because the plaintiffs' injury resulted from the action of third parties); Friends of the Earth, Inc. v. Gaston Cooper Recycling Corp., 204 F.3d 149, 162 (4th Cir. 2000) (traceability element of standing ensures that the alleged injury was caused by the challenged conduct of the defendant, and not by the independent actions of third parties). Likewise, any increased exposure to litigation from providing language assistance to LEP patients depends on the wholly unsupported assumption that third parties will sue Plaintiff physicians in the future and, thus, also is too speculative to confer standing in this action.

Third, as discussed above, Plaintiffs' assertion that Defendants' policies somehow infringe on their First Amendment rights to advocate for the adoption of official English rules rests on contingencies that may never materialize. Even if the challenged policies were invalidated by this Court, this invalidation would not make it significantly more likely that the federal government would adopt English as its official language. Accordingly, the connection between the challenged policies and any reduction in the effectiveness of Plaintiffs' advocacy is too tenuous to be traceable to the challenged policies; nor would a favorable decision by this court redress such a harm. See Friends of Ferrell Parkway v. Stasko, 282 F.3d 315, 324-26 (4th Cir. 2002) (plaintiffs could not establish standing by characterizing wholly speculative injury as a diminished opportunity to lobby). Here, Plaintiffs' true complaint is not that they have been forced to cease their lobbying, but rather that the federal government has not been persuaded by these advocacy efforts. However, &quot [d]isagreement with political outcomes, even emphatic disagreement, does not by itself confer a federal cause of action.&quot Id. at 326.

Finally, Plaintiffs lack standing to allege that the challenged policies are unconstitutionally vague or overbroad or that these policies have a chilling effect on Plaintiffs' speech rights. Although the requirements of standing are somewhat relaxed in the context of First Amendment claims that government action has a chilling effect on free speech rights, standing requires &quot more than '[a]llegations of a subjective 'chill.' There must be a 'claim of specific present objective harm or a threat of specific future harm.'&quot Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975) (quoting Laird v. Tatum, 408 U.S. 1, 13-14 (1972)).

The prospect that HHS will initiate a compliance review or complaint investigation against any of the Plaintiff physicians, that it will determine, after applying the flexible standards set forth in the HHS Recipient Guidance, that these Plaintiffs are in violation of Title VI regulations, and that this determination then will be upheld in subsequent administrative and judicial review, is simply too remote and speculative to satisfy the requirement of immediate, palpable harm. The Supreme Court's decision in Meese v. Keene, 481 U.S. 465, 473 (1987), is illustrative. In Keene, the Court considered two claims of standing in a constitutional challenge to a statute that labels certain films &quot political propaganda&quot: (1) that this statute unconstitutionally chilled the plaintiff's First Amendment freedom to exhibit such films, and (2) that in exhibiting those films, he would suffer tangible harm to his reputation as a state senator. The Court held that, although the claim of reputational injury, which was supported by opinion polls showing that voters would view negatively a candidate who showed films branded as &quot public propaganda,&quot sufficed to establish standing, the claim of &quot subjective chill&quot did not. Id. (holding that &quot if Keene had merely alleged that the appellation [of &quot political propaganda&quot ] deterred him by exercising a chilling effect on his First Amendment rights, he would not have standing to seek its invalidation.&quot ).

The decision in Kemler also demonstrates that, under the circumstances pleaded in the complaint, Plaintiffs' claim of a subjective chilling effect does not satisfy the injury-in-fact requirement. 108 F. Supp. 2d at 539. In Kemler, substitute judges in Virginia sought to challenge an advisory opinion from the judicial ethics committee stating that, to avoid the appearance of impropriety, Virginia judges should not vote in primary elections. Id. at 533. The Court held that the judges lacked standing to challenge this advisory opinion, which they asserted chilled their First Amendment expressive conduct of voting, because &quot the prospect of actual enforcement of [the ethics opinion] is so attenuated by intervening contingencies that the injury-in-fact requirement necessary to support standing is not satisfied.&quot Id. at 539. The Kemler court reasoned that, although the interpretation adopted in the contested ethics opinion could be used in an enforcement action against the plaintiff judges, because the advisory opinion did not compel the plaintiffs &quot to do, or to refrain from doing, anything,&quot and enforcement was not imminent, plaintiffs lacked standing. Id. at 538. Likewise, despite Plaintiffs' contentions to the contrary, the challenged policies clearly contain no requirement enforceable under the policies that Plaintiffs take or refrain from taking particular action, nor is there any imminent threat that HHS will conduct a compliance review or complaint investigation of Plaintiff physicians pursuant to HHS' Title VI regulations.

Finally, even if it had been alleged in their complaint, Plaintiffs' alleged distress at their purported inability to treat LEP patients because they cannot afford to provide translation services (Pls.' Opp. 16) would not suffice to confer standing in this case. See Humane Soc'y of the United States v. Babbitt, 46 F.3d 93, 98 (D.C. Cir. 1995) (emotional distress caused by disagreement with agency decision is insufficient to establish injury-in-fact). As such, Plaintiffs lack standing. II. Plaintiffs Fail to State a Claim under the First Amendment.

Even if this Court were to conclude that Plaintiffs have standing to assert their First Amendment allegations, those allegations must be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief may be granted. Plaintiffs simply have not articulated any legal basis for their contention that the challenged policies affect their rights to free speech under the First Amendment. Plaintiffs seek to fit three claims within the ambit of First Amendment protection: (1) that Defendants' policies make Plaintiffs' advocacy efforts more difficult, (2) that these policies force them to speak in a manner not of their choosing, and (3) that the policies chill their speech by adopting overbroad and vague prohibitions. Plaintiffs' Opposition offers no coherent explanation of how the challenged policies could have these effects.

First, the policies Plaintiffs challenge contain no prohibition whatsoever on lobbying or other protected speech. Instead, they remind recipients of their existing duties under Title VI regulations and clarify that where a recipient's denial of free language assistance to LEP patients denies such patients meaningful access in a manner that disparately affects members of a particular national origin, the recipient may be in violation of Title VI regulations. As noted above, while Plaintiffs have a right to express their views, they do not have a First Amendment right to have the federal government adopt those views. Their allegation of a First Amendment violation based on the adoption of the challenged policies amounts to no more than a contention that Defendants violated their free speech by not agreeing with that speech. Plaintiffs do not have a right to demand that federal financial assistance be used to subsidize the dissemination of their views.

Second, nothing in these policies prevents Plaintiff physicians from speaking English to their patients, and indeed the policies reflect the assumption that recipients will speak English. See, e.g., HHS Recipient Guidance, 67 Fed. Reg. at 4,971. More specifically, as best as can be discerned from the complaint and Plaintiffs' Opposition, Plaintiff physicians believe they have a First Amendment right to speak English, which somehow will be abridged if an interpreter translates their English-language speech into a language that their LEP patients understand. Even assuming that speaking in one's chosen language is a First Amendment right, there is no support for Plaintiffs' apparent contention that this right is violated when a third party translates that speech into a foreign language. Plaintiffs have not cited a single case that has so held, and Defendants are aware of none. Thus, Defendants do not seek &quot a dismissal based on [the challenged policies'] content-neutrality&quot (Pls.' Opp. 29-30), but rather on the grounds that these policies do not infringe on speech at all.

Third, as explained at length in Defendants' Memorandum and herein with regard to Plaintiffs' claims under the Administrative Procedure Act (&quot APA&quot ), the challenged policies are interpretative policies that do not create binding norms. As such, they cannot reasonably be viewed as having a chilling effect on Plaintiffs' rights to free speech. Furthermore, where government action does not burden constitutionally protected conduct, the First Amendment doctrine of overbreadth does not apply. Boos v. Barry, 485 U.S. 312, 331-32 (1988).

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

Although Plaintiffs recognize that interpretative guidance is not subject to notice and comment under the APA, they fail to offer any substantive legal analysis to support their argument that the challenged policies fall outside this exception. (7) (Pls.' Opp. 26.) To the contrary, the DOJ and HHS Recipient Guidances clearly fit the definition of interpretative rules under Fourth Circuit precedent and, therefore, are not subject to the APA's notice and comment provisions.

As long as a rule does not establish binding norms and leaves the agencies free to exercise discretion, it constitutes a general statement of policy. Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1341 (4th Cir. 1995). The DOJ and HHS guidances explicitly do not create binding obligations: &quot [F]ailure to take all of the steps outlined [in the HHS Recipient Guidance] will not necessarily mean that a recipient . . . has failed to provide meaningful access to LEP clients.&quot HHS Recipient Guidance, 67 Fed. Reg. at 4,974. See also DOJ Recipient Guidance, 67 Fed. Reg. at 41,463&quot [F]ailure to provide written translations [as outlined in examples in the DOJ Recipient Guidance] does not mean there is noncompliance&quot with Title VI regulations). Furthermore, both the HHS and DOJ policies allow recipients discretion in developing specific criteria for implementation. See id. at 41,459&quot DOJ recipients should apply the following four factors to the various kinds of contacts that they have with the public to assess language needs and decide what reasonable steps they should take to ensure meaningful access for LEP persons&quot ); HHS Recipient Guidance, 67 Fed. Reg. at 4,971.

Nor do the challenged policies change the federal government's long-standing interpretation of regulations implementing Title VI or adopt a view that has been rejected by the courts, as Plaintiffs contend. (Pls.' Opp. 3, 7, 8.) Plaintiffs assert that the federal government adopted this interpretation for the first time when it issued the challenged policies. To the contrary, it is long-standing federal policy. This has been the federal government's position at least since the Supreme Court's decision in 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 for students of Chinese national origin to participate in public educational program).

Plaintiffs also state that Defendants are &quot enforcing their new policies,&quot and allege in their Opposition, but not in their complaint, that federal agencies are engaged in compliance reviews of unnamed recipients related to the provision of access to LEP persons. (Pls.' Opp. 12, 13 & n.14.). DOJ and HHS conducted such compliance reviews long before the challenged policies were adopted. HHS interpreted Title VI regulations as requiring HHS recipients, under certain circumstances, to provide written materials and post notices in languages other than English. See, e.g., Mendoza v. Lavine, 412 F. Supp. 1105 (S.D.N.Y. 1976). Moreover, since 1976, coordinating regulations issued by the Department of Justice have required some provision of written language assistance for LEP persons. Coordination of Enforcement of Non-Discrimination in Federally Assisted Programs, 28 C.F.R. ァ 42.405(d)(1) (1976) (describing circumstances in which recipients of federal financial assistance must provide written language assistance). Because these compliance reviews and investigations are based upon, and seek to enforce, Title VI and its implementing regulations, not the policies challenged here, any harm or risk of harm Plaintiffs allege from the threat of such investigations existed before the challenged policies were adopted and, therefore, could not have been caused by them.

For these reasons, Plaintiffs' assertion that the challenged HHS and DOJ guidance policies constitute substantive new rules is without merit, and these policies therefore are not subject to notice and comment under the APA. Likewise, as interpretative guidance, these policies also are not subject to the Regulatory Enforcement Act. 5 U.S.C. ァ 603(a) (2002) (Regulatory Enforcement Act does not apply to interpretative polices, except for those pertaining to federal internal revenue laws.).

V. Plaintiffs Fail to State a Claim Under the Tenth Amendment.

Plaintiffs also fail to state a claim under the Tenth Amendment. They contend that the challenged policies abrogate States' power to determine the language used in conducting State operations. (Pls.' Opp. 8-12.) Although none of the cases cited in Plaintiffs' Opposition held that the States have such a power, this Court need not decide that question to dismiss the complaint. Because Executive Order 13,166 applies to federal government agencies, not the States, it clearly does not abrogate State powers. Further, because the challenged DOJ and HHS guidance documents do not create binding obligations for the recipients of federal financial assistance, these policies also do not abrogate State rights. As explained above, it is the regulations implementing Title VI, not the challenged policies, that require recipients of Title VI funds to provide language assistance where the failure to do so would have the effect of disproportionately disadvantaging persons of a particular national origin.See 28 C.F.R. ァ 42.203(e) (2002); 45 C.F.R. ァ 80.3(b)(2) (2002).

CONCLUSION

For the reasons stated above and those included in Defendants' Memorandum, Defendants respectfully request that the Court dismiss the complaint in its entirety.

Respectfully submitted,

PAUL J. MCNULTY
United States Attorney
Eastern District of Virginia

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

    Attorneys for Defendants

    RALPH F. BOYD, JR.
    Assistant Attorney General
    U.S. Department of Justice
      R. ALEXANDER ACOSTA
      MARYBETH MARTIN
      CHARLOTTE BURROWS
      Member, N.Y. Bar (no number issued)
      U.S. Department of Justice
      950 Pennsylvania Avenue, N.W.
      601 D Street, N.W., Room 4613
      Washington, D.C. 20530
      (202) 514-3862

      Dated: June 20, 2002

      1. Although the words "Ninth Amendment" appear on page 25 of Plaintiffs' Opposition, Plaintiffs neither explain how that constitutional provision allegedly relates to their claims, nor cite any judicial decision applying that Amendment.

      2. Defendants respond herein to Plaintiffs' claims in the order they appear in Defendants' Motion to Dismiss, rather than in the order they are addressed in Plaintiffs' Opposition. In addition, although Defendants disagree with Plaintiffs' view that failure to provide linguistic assistance cannot have a disparate effect on persons of a particular national origin in a manner that violates federal regulations implementing Title VI (Pls.' Opp. 2-8) - e.g., Nondiscrimination in Federally Assisted Programs, 28 C.F.R. ァ 42.203(e) (2002) and 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. ァ 80.3(b)(2) (2002) - this Court need not reach that issue to dismiss Plaintiffs' claims. Defendants therefore do not address the merits of that argument here.

      3. Alternatively, because plaintiffs without standing cannot provide a basis for venue in the Eastern District of Virginia, this case must be dismissed under Federal Rule of Civil Procedure 12(b)(3).

      4. Although the complaint is not entirely clear on this point, Plaintiffs appear to challenge, in addition to Executive Order 13,166, the following DOJ guidance documents: 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) (&quot DOJ General Policy Guidance&quot ), and 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), republished for public comment in 67 Fed. Reg. 2,671 (Jan. 18, 2002), revised and republished for public comment in 67 Fed. Reg. 19,237

      (Apr. 18, 2002), revised and republished in 67 Fed. Reg. 41,455 (June 18, 2002) ("DOJ Recipient Guidance"). It also challenges the HHS guidance entitled 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) (&quot HHS Recipient Guidance&quot ). The current version of the DOJ Recipient Guidance, which supercedes all previous versions, was issued after Plaintiffs filed their complaint, and therefore was not attached to that pleading. Because amending the complaint to cite the current DOJ Recipient Guidance does not save Plaintiffs' complaint, Defendants refer to the current version herein. The documents cited above are referred to collectively herein as &quot the challenged policies.&quot

      5. In their Opposition, Plaintiffs do not argue that their claims satisfy the "&quot hardship&quot element of ripeness because they risk the loss of federal financial assistance. (Pls.' Opp. 13.) Indeed, they make the surprising assertion that &quot loss of federal funding might actually HELP the physician Plaintiffs.&quot (Pls.' Opp. 15) (emphasis in original). In any event, however, for the reasons set forth in Defendants' Memorandum, any potential loss of federal funds is far too speculative to establish hardship.

      6. The complaint pleads only that ProEnglish and K.C. McAlpin share these advocacy goals (Compl. カカ 3, 8, 37), and therefore fairly can be read to assert these hardships only with regard to ProEnglish and Mr. McAlpin, despite suggestions to the contrary in Plaintiffs' Opposition. Nonetheless, because the lack of ripeness would remain even if all Plaintiffs had alleged this hardship, the discussion above assumes that all Plaintiffs purport to suffer hardship due to the alleged effect on advocacy.

      7. In addition, Plaintiffs simply ignore Supreme Court precedent holding that actions of the President are not reviewable under the APA. See Dalton v. Specter, 511 U.S. 462, 469 (1994). Dalton clearly forecloses Plaintiffs' APA claim against the President based on the Executive Order.

      Updated August 6, 2015

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