UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
IT’S MY PARTY, INC., )
) Civil Action No. L-01-3270
THE UNITED STATES OF AMERICA, )
UNITED STATES’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS COMPLAINT
FOR LACK OF SUBJECT MATTER JURISDICTION
The plaintiff, It‟s My Party, Inc. (“IMP”), has filed this action seeking a declaratory judgment
that the Department of Justice‟s “policy” regarding the Americans with Disabilities Act (“ADA”) and the regulations promulgated pursuant to it regarding effective communication for deaf and hard of hearing individuals, is incorrect. IMP bases its challenge on a settlement agreement signed by the Disability Rights Section of the Department of Justice with Sledge, Inc., a sister company to IMP. IMP claims that the Department of Justice “declared” its “policy” through its response to a complaint from a hearing-impaired individual, which led to the settlement agreement with Sledge, Inc.
This action must be dismissed for lack of subject matter jurisdiction. First, IMP alleges no statutory basis which confers a waiver of the United States‟ sovereign immunity. Second, the action
IMP challenges is not a final agency action under the Administrative Procedure Act, as required to
permit judicial review. Third, this action is not ripe for review under the principles of the Declaratory Judgment Act.
II. FACTUAL AND STATUTORY BACKGROUND
IMP is a Maryland corporation that, upon information and belief, promotes and produces concerts throughout the Metropolitan Washington D.C. area. (Compl. at ? 1). It is a sister company to Sledge, Inc., a District of Columbia Corporation, which owns the 9:30 Club, a concert venue in Washington D.C. (Compl. at ? 11). The Disability Rights Section of the Department of Justice (“DOJ”) was authorized by Congress to enforce the ADA, and to promulgate regulations implementing Title II (applying to programs of state and local governments) and Title III (applying to private entities that provide public accommodations) of the ADA. 42 USC ??12134, 12186.
In November 1999, the Disability Rights Section of the Department of Justice reached a settlement agreement with Sledge, Inc. regarding the provision of sign language interpreters to hearing impaired individuals who attend their concerts and request an interpreter. Generally, the settlement agreement provided that Sledge, Inc. would provide a sign language interpreter for an individual who had purchased a ticket to one of its concerts and requested an interpreter at least ten days before the concert. The settlement agreement also required Sledge, Inc. to provide monthly reports for one year to the Disability Rights Section. Over a 13 month period following the signing of the settlement agreement, Sledge reported that it received and filled three requests for interpreters.
IMP alleges, without any specific details, that it has received requests from patrons for qualified sign language interpreters for events being promoted by IMP. (Compl. at ? 5.) IMP alleges that it has
responded to these requests by providing or offering to provide written materials, such as a set list of the songs to be performed and the printed lyrics of the songs, and to place these patrons where sight lines to the stage were most direct. (Id.) IMP alleges that “on some of these occasions,” the patrons considered these “auxiliary aids and services” not sufficient or reasonable under the ADA, and threatened to
complain to the Department of Justice. (Compl. at ? 6-7.)
Title III of the ADA applies to private entities that are public accommodations, such as a concert hall or place of entertainment. 42 USC ? 12181(7). The ADA, among other things, requires public accommodations:
to take such steps as may be necessary to ensure that no individual with a disability is excluded,
denied services, segregated or otherwise treated differently than other individuals because of the
absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps
would fundamentally alter the nature of the good, service, facility, privilege, advantage, or
accommodation being offered or would result in an undue burden.
42 USC ? 12182(b)(2)(A)(iii).
The regulations clarify that “A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 CFR ? 36.303(c). The regulations explain further that the term “auxiliary aids and services” includes:
Qualified interpreters, notetakers, computer-aided transcription services, written materials,
telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones
compatible with hearing aids, closed caption decoders, open and closed captioning,
telecommunications devices for deaf persons (TDD‟s), videotext displays, or other effective
methods of making aurally delivered materials available to individuals with hearing impairments.
28 CFR ? 36.303(b).
III. THIS COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE
THERE IS NO APPLICABLE WAIVER OF THE UNITED STATES’ SOVEREIGN
A court lacks jurisdiction over claims against the United States absent an express waiver of sovereign immunity. United States v. Mitchell, 463 U.S. 206, 212 (1983); see also Randall v. United
thStates, 95 F.3d 339, 345 (4 Cir. 1996) (the United States‟ consent to be sued is a prerequisite for
thjurisdiction); Florida Auto Auction of Orlando, Inc. v. United States, 74 F.3d 498, 501 (4 Cir. 1996)
(same). Further, a statute must unequivocally express a waiver of sovereign immunity; the waiver cannot be implied. Randall, 95 F.3d at 345.
IMP‟s Complaint alleges that this Court has jurisdiction over its cause of action pursuant to “28 U.S.C., Sections 1331 and 1346(a)(2), and 42 U.S.C. 12188(a)(1) and (a)(2)” because the “cause of action raises a federal question arising under the Constitution and laws of the United States, with the United States as Defendant.” (Compl. at ? 3.) In addition, IMP alleges that this Court has concurrent jurisdiction over its claim pursuant to 28 U.S.C. ? 2201 because “Plaintiff seeks ... a declaration of its rights and legal obligations under” title III of the ADA, 28 U.S.C. ? 12101 et seq. (Id.) Nowhere in its
Complaint does IMP allege any statutory provision constituting a waiver of the Federal Government‟s sovereign immunity that is applicable to its claim. Therefore, this action should be dismissed because of lack of subject matter jurisdiction as a result of the Federal Government‟s sovereign immunity.
A statute‟s grant of subject matter jurisdiction to a federal court does not constitute a waiver of
1the Federal Government‟s sovereign immunity. As a result, IMP‟s reliance upon 28 U.S.C. ? 1331 and
242 U.S.C. 12188(a) fails to establish this Court‟s subject matter jurisdiction. It is well settled that 28 U.S.C. ? 1331 “is not a general waiver of sovereign immunity. It merely establishes a subject matter
that is within the competence of federal courts to entertain.” Randall, 95 F.3d at 345; see also
Carrington Gardens Assocs. v. United States, 258 B.R. 622, 628 (E.D. Va. 2001), citing Randall, 95
F.3d at 345 (“Congress does not waive sovereign immunity by establishing a subject matter that is within the competence of federal courts to entertain”); Circuit City Stores, Inc. v. EEOC, 75 F. Supp. 2d
th491, 503 (E.D. Va. 1999) (same), aff’d 232 F.3d 887 (4 Cir. 2000). In addition, although 42 U.S.C. ?
12188(a) provides that federal courts have subject matter jurisdiction to grant injunctive relief to persons
1 28 U.S.C. ? 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
2 42 U.S.C. ? 12188 (a) provides in pertinent part:
(1) The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and
procedures this subchapter provides to any person who is being subjected to discrimination on
the basis of disability in violation of this subchapter or who has reasonable grounds for believing
that such person is about to be subjected to discrimination in violation of section 12183 of this
title. Nothing in this section shall require a person with a disability to engage in a futile gesture if
such person has actual notice that a person or organization covered by this subchapter does not
intend to comply with its provisions.
(2) In the case of violations of sections 12182(b)(2)(A)(iv) and section 12183(a) of this title,
injunctive relief shall include an order to alter facilities to make such facilities readily accessible
to and usable by individuals with disabilities to the extent required by this subchapter. Where
appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or
service, modification of a policy, or provision of alternative methods, to the extent required by
discriminated against in violation of title III of the ADA, nowhere in the ADA did Congress
3unequivocally express its intent to waive the Federal Government‟s sovereign immunity. Therefore,
neither 28 U.S.C. ? 1331 nor the ADA provides a waiver of the United States‟ sovereign immunity.
As an additional basis for subject matter jurisdiction, IMP relies upon the Little Tucker Act, 28 U.S.C. ? 1346(a)(2). The Tucker Act is not a proper jurisdictional basis for this action, however, because, with limited exceptions, equitable relief is not available under the Tucker Act. Only if injunctive relief is necessary to provide an entire remedy and when it is “an incident of and collateral to”
an award of monetary relief may a court award such equitable relief under the Tucker Act. 28 U.S.C. ? 1491(a)(2); see also Randall, 95 F. 3d at 347 (“The injunctive relief requested by plaintiff would not be
available under the Tucker Act because it would not be incident of, or collateral to, a monetary award.”); Roetenberg v. Secretary of the Air Force, 73 F. Supp. 2d 631, 636 (E.D. Va. 1999) (Plaintiff seeking to
be released from an obligation to pay money to the United States did not raise a claim under the Tucker Act).
In light of the fact that the only type of relief requested by IMP is injunctive relief, the Little Tucker Act is not a valid basis for this court‟s jurisdiction. Specifically, IMP‟s prayer for relief demands a declaratory judgment that title III of the ADA and its implementing regulations do not require IMP to provide sign language interpreters for hearing impaired patrons at musical and public performances it promotes. (Compl. at ? 2.) In addition, IMP demands that this Court permanently enjoin the United
3 Furthermore, the ADA is not a proper jurisdictional basis for this action since IMP is not a “person who is being subjected to discrimination on the basis of disability.” 42 USC ? 12188(a).
States from requiring that IMP provide sign language interpreters for musical performances it promotes when other auxiliary aids are made available. (Compl. at ? 3.) Even if IMP were to seek monetary damages because of an alleged financial hardship suffered as a result of providing sign language interpreters to its patrons in the past, obtaining monetary damages would not be the primary purpose of the lawsuit and, thus, would not sufficiently state a cause of action under the Tucker Act.
IMP also alleges that this Court has jurisdiction over its claim under the Declaratory Judgment Act, 28 U.S.C. ? 2201. The Declaratory Judgment Act does not itself confer jurisdiction on a federal court where none otherwise exists. Schilling v. Rodgers, 80 S. Ct. 1288, 1296 (1960); Wyoming v.
thUnited States, 279 F. 3d 1214, 1225 (10 Cir. 2002). That statute was adopted by Congress as a
procedural mechanism enlarging the range of remedies available in federal court, but did not extend the federal courts‟ jurisdiction. Skelly Oil Co. v. Phillips Co., 339 U.S. 667, 671-72, 70 S. Ct. 876, 878-79
(1950). Thus, the Declaratory Judgment Act is not a waiver of the Federal Government‟s sovereign
immunity. Robishaw Engineering, Inc. v. United States, 891 F. Supp. 1134, 1142 (E.D. Va. 1995);
Ocean Breeze Festival Park, Inc. v. Reich, 853 F. Supp. 906, 917 (E.D. Va. 1994), aff’d 96 F.3d 1440
th(4 Cir. 1996).
IMP did not allege the Administrative Procedure Act (“APA”), 5 U.S.C. ?? 701-706, as a
jurisdictional basis. Even if it had, however, IMP‟s action would still require dismissal. The APA provides that a person who claims to have suffered a legal wrong because of agency action may file a complaint in federal court so as to obtain judicial review of the challenged agency action. Randall, 95
F.3d at 346. The APA provides a limited waiver of the Federal Government‟s sovereign immunity for
suits seeking relief “other than money damages.” 5 U.S.C. ? 702. See also Bowen v. Massachusetts,
487 U.S. 879, 891-92, 108 S. Ct. 2722, 2730-31 (1988) (“[I]t is undisputed that the 1976 amendment to
[5 U.S.C.] ? 702 was intended to broaden the avenues for judicial review of agency action by eliminating the defense of sovereign immunity in cases covered by the amendment....”). However, the waiver of sovereign immunity afforded by the APA exists “only if the APA is implicated in the first instance: that is, only if there has been an agency action which is subject to review.” Circuit City Stores,
Inc., 75 F. Supp. 2d at 505; see also Randall, 95 F.3d at 346 (waiver of sovereign immunity in the APA
exists only to the extent that review under the APA is available, which requires final agency action). For the reasons set forth in Part IV.A. infra, the agency action IMP challenges is not subject to review
because it is not a final action, and therefore, even if IMP had alleged the APA, it would not confer a waiver of sovereign immunity.
IV. THIS ACTION LACKS SUBJECT MATTER JURISDICTION BECAUSE THERE IS NO
JUSTICIABLE CASE OR CONTROVERSY
The United States Constitution permits the federal courts to hear only those actions that are actual “cases” or “controversies.” U.S. Constitution, Article III, Section 2. Both the Declaratory
Judgment Act, cited by the plaintiff as a jurisdictional basis for this action, and the Administrative Procedure Act (“APA”) incorporate this requirement. In an action like the instant one, where a plaintiff sues for declaratory judgment on the basis of agency action, the doctrines of ripeness under the Declaratory Judgment Act and “final agency action” under the Administrative Procedure Act must be applied to determine whether this court may exercise jurisdiction over the subject matter of this action. While the plaintiff did not cite the APA as a jurisdictional ground, the requirements under the APA may
nonetheless be considered to determine the existence of this court‟s subject matter jurisdiction.
A. No Subject Matter Jurisdiction Exists Because The “Action” Challenged by IMP Is Not a Final
The Administrative Procedure Act (“APA”) permits judicial review of agency action. 5 USC ? 702. However, only a “final agency action for which there is no other adequate remedy in a court” or an
4action made reviewable by statute is subject to judicial review. 5 USC ? 704; Randall v. United States,
th95 F.3d 339 (4 Cir. 1996); Circuit City Stores, Inc. v. EEOC, 75 F. Supp. 2d 491, 505 (E.D. Va. 1999),
thaff’d 232 F.3d 887 (4 Cir. 2000). A complaint challenging an action that is not a “final agency action” is not judicially reviewable and must be dismissed. FTC v. Standard Oil Co. of California, 449 U.S. 232,
th246-247 (1980); Georator Corporation v. EEOC, 592 F.2d 765, 769 (4 Cir. 1979).
An “„agency action‟ includes the whole or part of an agency rule, order, license, section, relief, or the equivalent or denial thereof, or failure to act.” 5 USC ? 551(13). For an agency action to be final, it must be “definitive,” rather than “informal, or only the ruling of a subordinate official, or tentative.” Abbott Laboratories v. Gardner, 387 U.S. 136, 151 (1967) (internal citations omitted). It must “mark the „consummation‟ of the agency‟s decision-making process.” Bennett v. Spear, 520 U.S. 154, 178
(1997). A final agency action is a “considered and formalized determination,” such as a regulation. Toilet Goods Assn. v. Gardner, 387 U.S. 158, 162 (1967). A final agency action must also have
th“determinate consequences for the party to the proceeding.” Georator v. EEOC, 592 F.2d 765, 768 (4
Cir. 1979) (citing ITT v. Electrical Workers, 419 U.S. 428 (1975)). No finality exists with respect to a
4 IMP does not challenge any action made reviewable by statute, and makes no argument to this effect.
determination that “can fix no obligation or impose any liability on the plaintiff.” Georator, 592 F.2d at
768; see also Bennett, 520 U.S. at 178 (final action must be one that determines obligations and “from which legal consequences will flow”).
The agency action complained of by IMP in this case does not meet the definition of a final agency action, as set out by the APA and interpreted by case law. IMP asserts that DOJ‟s response to a complaint filed by a deaf individual against Sledge, Inc. (“Sledge”), which culminated in a settlement agreement between DOJ and Sledge, constitutes the “policy” of the Department of Justice. (Compl. at
?? 10-11.) The policy declared in this settlement agreement, IMP asserts, requires IMP to provide sign language interpreters to hearing-impaired patrons who request them. IMP requests this Court to regard DOJ‟s position as set out in the settlement agreement with Sledge as an agency policy and to review this policy as an agency action. This “policy,” however, is neither a policy nor a final agency action.
The settlement agreement between DOJ and Sledge is not the consummation of the agency‟s
decision-making process setting forth a policy, like a regulation. Rather, it is a negotiated agreement reached by two parties to resolve a particular complaint. Further, a settlement agreement has no “determinate consequences,” nor fixes any obligations or imposes any liability, as would an administrative adjudication or a court order. A settlement agreement is a voluntary contract that does not, by itself, impose liability. Moreover, since the settlement agreement was between DOJ and Sledge, it certainly has no determinate consequences for IMP, which is a distinct corporate entity from Sledge with separate business operations. Therefore, the settlement cannot be a final agency action.