UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

PECOS DIVISION

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> )

DAYS INNS OF AMERICA, INC., and )

HFS INCORPORATED, )

)

Plaintiffs, )

)

v\. ) Civil Action No.: P 96 CA 05

) (Bunton)

JANET M. RENO, as the Attorney ) Oral Argument Requested General of the
United States )

)

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

UNITED STATES\' MOTION

TO DISMISS COMPLAINT FOR DECLARATORY JUDGMENT

[AND MEMORANDUM IN SUPPORT OF THE MOTION]{.underline}

Defendant Janet M. Reno, United States Attorney General, hereby moves to
dismiss this action pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure, or in the alternative, pursuant to the Court\'s \"very
broad discretion\" vested by the Declaratory Judgment Act, 28 U.S.C. §§
2201-2202. Points and authorities in support of the Attorney General\'s
Motion To Dismiss are provided below.

I. [INTRODUCTION]{.underline}

Inappropriately invoking the Declaratory Judgment Act, Days Inns of
America, Inc., and its parent company, HFS Incorporated, have filed this
action seeking a declaration that they have no liability for numerous
violations of title III of the Americans with Disabilities Act of 1990,
42 U.S.C. §§ 12181-12189. DIA and HFS further ask this Court to enjoin
the Attorney General from carrying out her statutorily prescribed duty
to enforce the ADA, and order her not to bring any actions, in any
court, against DIA or HFS for violations of the ADA at any newly
constructed Days Inn. This Court should exercise its broad discretion
pursuant the Declaratory Judgment Act to dismiss the action brought by
DIA and HFS. In addition, there is no justiciable controversy in this
district, and this Court should dismiss this action under 12(b)(1) for
lack of subject matter jurisdiction.

II\. [BACKGROUND]{.underline}

> A. [Factual Background]{.underline}

After receiving numerous complaints against Days Inn hotels, in the
summer of 1994 the Attorney General initiated investigations of 28 newly
constructed Days Inns in 17 states. Representatives of the Department of
Justice visited each site; those visits revealed that all 28 hotels
failed to comply with the ADA\'s Standards for Accessible Design in
numerous and significant respects. Accordingly, the Department wrote a
series of letters to DIA, HFS, and the owners, architects, contractors
of all 28 hotels (a total of more than 80 parties). The first letter,
sent in March 1995, informed each party that the Department had
identified numerous failures to comply with ADA Standards for which each
party was jointly and severally liable and included a list of the
elements at each hotel that failed to comply with Standards.
[See]{.underline} Exhibit A, Letter of March 17, 1995 to counsel for
DIA. In July 1995, the Department wrote to counsel for DIA and HFS, with
copies to every other party, inviting all of the legally responsible
parties to discuss settlement, and informing them that the Department
was prepared, if necessary, to file one or more actions to enforce the
ADA. [See]{.underline} Exhibit B, Letter of July 6, 1995 to counsel for
DIA.

In late December 1995, the Department wrote again to HFS, DIA, and the
other parties responsible for eleven hotels for which the Department had
not received settlement proposals. These letters said that if a
resolution of the architectural issues at the hotels in question were
not reached by January 31, 1996, the Department would file an
enforcement action in the appropriate federal district court.
[See]{.underline} Exhibit C, Letter of December 18, 1995 to counsel for
DIA. The Fort Stockton Days Inn was not included in the group of eleven
hotels that the Attorney General warned would be the subject of
enforcement actions. To the contrary, the owner and architect for that
hotel were among the first parties to provide the Department with a
settlement proposal (in response to its earlier letters), and have since
remedied many of failures of that hotel to comply with the ADA.

The Department began discussing resolution of this matter with DIA and
HFS in early 1995. Those discussions continued through the end of
January 1996 (until DIA and HFS filed this action), including numerous
telephone calls, meetings, and the exchange of draft settlement
proposals. On January 30th, counsel for DIA and HFS tendered their last,
best offer at a meeting with representatives of the Department in
Washington, D.C. When representatives of the Department telephoned
counsel for DIA and HFS on February 5th to reject that offer, counsel
for DIA and HFS informed the Department that DIA and HFS had, while the
Department was considering their last offer, filed this action.

On February 8, 1996, the Department of Justice filed actions against
DIA, HFS, and the owners, architects, and contractors for five Days Inn
hotels. [See]{.underline} Exhibits D-H. These actions are currently
pending in the United States District Courts for the Eastern District of
Kentucky, the Southern District of Indiana, the Central District of
Illinois, the District of South Dakota, and the Eastern District of
California. In each case, the Attorney General alleges that DIA and HFS
had a significant role in, and extensive control over, the design and
construction of hotels that do not comply with the ADA.[^1]

> B. [The Americans with Disabilities Act]{.underline}

The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 [et
seq.]{.underline}, is Congress\' most comprehensive civil rights
legislation since the Civil Rights Act of 1964. Its purpose is \"to
invoke the sweep of congressional authority . . . to address the major
areas of discrimination faced day-to-day by people with disabilities,\"
42 U.S.C. § 12101(b)(4), and to provide \"a clear and comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities.\" 42 U.S.C. § 12101(b)(1). The Attorney
General is directed to investigate violations of the Act, and to bring
civil actions where she believes a violation has been committed. 42
U.S.C. § 12188(b).

Title III of the ADA prohibits a variety of forms of discrimination
against individuals with disabilities by public accommodations and
commercial facilities. The basic non-discrimination provision is found
in section 302(a) of the Act, which prohibits discrimination on the
basis of disability in existing places of public accommodation. 42
U.S.C. § 12182(a). Section 303 of the Act extends the scope of
prohibited activity to include newly constructed places of public
accommodation, and newly constructed commercial facilities (facilities
which are not covered by section 302(a)). Section 303 provides that,

> as applied to public accommodations and commercial facilities,
> discrimination for the purposes of section 12182(a) of this title
> includes a failure to design and construct facilities for first
> occupancy \[after January 26, 1993\] that are readily accessible to
> and usable by individuals with disabilities . . . .

42 U.S.C. § 12183(a)(1). The scope of section 303\'s coverage has not
yet been addressed by any court, but the language clearly indicates that
parties who are involved in the design and construction of a new
facility \-- whether a public accommodation or a commercial facility \--
have an obligation under the ADA to insure that the facility is readily
accessible to and usable by individuals with disabilities.

III\. [ARGUMENT]{.underline}

A. THE COURT SHOULD EXERCISE BROAD DISCRETION GRANTED\
[BY THE DECLARATORY JUDGMENT ACT TO DISMISS THE COMPLAINT]{.underline}

It is well settled that under the Declaratory Judgment Act this Court
has \"unique and substantial\" discretion to decline to adjudicate any
complaint for declaratory relief, even if the case is otherwise
justiciable. 28 U.S.C. 2201-2201. [See, e.g.]{.underline}, [Wilton v.
Seven Falls Co.]{.underline}, \_\_\_ U.S. \_\_\_; 115 S.Ct. 2137, 2140
(1995); [Psarianos v. Standard Marine, Ltd, Inc.]{.underline}, 12 F.3d
461, 463 (5th Cir.), [cert. denied]{.underline}, \_\_\_ U.S. \_\_\_, 114
S.Ct. 2164 (1994). The Fifth Circuit has identified several factors
which justify declining to entertain an action for declaratory relief,
including (1) forum-shopping, [Rowan Companies, Inc. v.
Griffin]{.underline}, 876 F.2d 26, 28-29 (5th Cir. 1989); (2) because
declaratory judgment actions are not an appropriate vehicle for
resolving questions of the scope of a public law, especially on the
basis of a sparse or inadequate record, [Fair v. Dekle]{.underline}, 367
F.2d 377 (5th Cir. 1966), [cert. denied]{.underline}, 386 U.S. 996
(1967); and (3) because of another proceeding in which the matters in
controversy between the parties may be litigated, or because of
inconvenience to the parties and witnesses. [Rowan]{.underline}, 876
F.2d at 28-29.[^2] The first-filed suit does not control the Court\'s
exercise of discretion; the Supreme Court has declared that \"the
federal declaratory judgment action is not a prize to the winner of the
race to the court house.\" [Perez v. Ledesma]{.underline}, 401 U.S. 82,
119 (1972). [See also]{.underline} [Torch v. LeBlanc]{.underline}, 947
F.2d 193, 195-196 (5th Cir. 1991).

> 1\. DIA and HFS filed this action in anticipation of other [actions,
> and are forum
> shopping\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

Given that DIA and HFS well knew that the Department of Justice intended
to file one or more actions to enforce the ADA if these matters could
not be settled \-- actions which would name them as defendants \-- their
filing here can only be viewed as a rank attempt at forum shopping. As
Judge Politz wrote in the [Rowan]{.underline} case, a request for
declaratory relief may be dismissed \"because the declaratory complaint
was filed in anticipation of another suit and is being used for the
purpose of forum shopping.\" 876 F.2d at 29.

Indeed, the Fifth Circuit has repeatedly cautioned against allowing the
Declaratory Judgment Act to be as used an instrument of forum-shopping.
[See]{.underline}, [e.g.]{.underline}, [Pacific Employers Ins. Co. v.
M/V CAPT. W.D. CARGILL]{.underline}, 751 F.2d 801 (5th Cir. 1985),
[cert. denied]{.underline}, 474 U.S. 909 (1985) (\"proper factor to
consider in dismissing a declaratory judgment suit is whether the suit
was filed in anticipation of another \[suit\] and therefore was being
used for the purpose of forum-shopping\"). In [Mission Ins. Co. v.
Puritan Fashions Corp.]{.underline}, 706 F.2d 599 (5th Cir. 1983), the
Fifth Circuit held that the district court \"acted within its discretion
in considering the anticipatory nature of \[the declaratory judgment
action\].\" [Id]{.underline}. at 602. The Court noted that
\"\[a\]nticipatory suits are disfavored because they are an aspect of
forum shopping,\" adding that \"\[t\]he wholesome purposes of
declaratory acts would be aborted by its use as an instrument of
procedural fencing either to secure delay or to choose a forum.\"
[Id]{.underline}. at 602 n.3 (citation omitted). The Court found
\"indications that forum-shopping was an element in this case\" in the
fact that the law in the two courts differed, making one forum more
favorable to one party than the other. [Id]{.underline}.

There are strong indications that DIA and HFS brought this action in
anticipation of actions against them by the Attorney General, and that
they are forum shopping. First, through the series of letters and
settlement discussions detailed above, the Department made clear to DIA
and HFS that if these matters could not be settled, the Department was
prepared to file actions to enforce the law, and gave DIA and HFS more
than 30 days notice of the date on which the Department intended to
file. [See]{.underline} [Granite State]{.underline}, 986 F.2d at 96
(that adverse parties had \"engaged in lengthy negotiations\" over their
dispute prior to filing of a declaratory judgment action by one of them
was indication that declaratory judgment action was anticipatory in
nature, and could properly be dismissed).

Second, there are clear indications that DIA and HFS believe that the
law is more favorable to them in the Fifth Circuit, so that they have
come racing to a courthouse in Texas. Judging from various allegations
in their complaint, DIA and HFS may argue that an opinion by the Fifth
Circuit in a case arising under another provision of the ADA \-- dealing
with removal of architectural barriers in existing buildings (as opposed
to the accessible design and construction of new buildings) \-- will be
of use to them in their effort to insulate themselves from liability
based on their involvement in the design and construction of new hotels
which do not comply with the ADA.

That case is [Neff v. American Dairy Queen]{.underline}, 58 F.3d 1063
(5th Cir.), [cert. denied]{.underline}, \_\_\_\_ U.S. \_\_\_\_, 116
S.Ct. 704 (1995), in which Judge Emilio Garza held, on limited and
undisputed facts, that American Dairy Queen (\"ADQ\"), the franchisor of
the Dairy Queen chain of restaurants, was not required by section 302 of
the ADA to remove architectural barriers to access in restaurants built
before the ADA became law. Among other things, section 302 of the ADA
requires parties who own, operate, or lease pre-existing public
accommodations to remove architectural barriers to access at their
facilities. 42 U.S.C. § 12182(b)(2)(a)(iv). Judge Garza reasoned that
ADQ had insufficient control over the restaurant to be \"operating\" it
within the meaning section 302, and there was no suggestion that ADQ
owned or leased the restaurant. As a result, the Court held, ADQ did not
fall within the scope of section 302, and had no responsibility to
remove barriers to access. 58 F.3d at 1068-69.

[Neff]{.underline} is not controlling here because it addresses a
different provision of the ADA \-- the requirement in section 302 that
architectural barriers be removed in existing facilities. The
Department\'s cases against DIA and HFS do not concern pre-existing
buildings; rather, they concern new hotels built after the ADA became
law, and arise under section 303, which does not limit its coverage to
those who own, operate, or lease the facilities in question. Section 303
imposes liability on parties involved in the \"design and construction\"
of the facility in question. 42 U.S.C. § 12183(a)(1). [See]{.underline}
[infra]{.underline}, pp. 11-13.

Further influencing DIA\'s and HFS\'s choice of this forum is the fact
that while their role in the design and construction of the Days Inn in
Fort Stockton, Texas, was substantial, it was nonetheless somewhat less
extensive than it was at many other Days Inn hotels. DIA and HFS thus
seek declaratory relief as to all newly constructed Days Inn hotels
based solely on the facts relating to their role in the design and
construction at the single Days Inn hotel in Fort Stockton.[^3]
Moreover, they have come to one of the few districts in which the owners
and architect of the facility have remedied a substantial number of the
ADA violations at the Days Inn in question. There can be no explanation
other than forum-shopping to explain their filing here.

> 2\. The Court should not decide important questions of the scope of
> public law by declaratory judgment, especially [on a sparse and
> inadequate
> record.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

The Supreme Court and the Fifth Circuit have both held that declaratory
judgment actions are not an appropriate vehicle for resolving questions
of the scope of a public law, especially on the basis of a sparse or
inadequate record.[^4] DIA and HFS, however, ask this Court to do
precisely that \-- to decide, on the basis of little or no factual
inquiry \-- whether they fall within the scope of coverage of the ADA\'s
new construction provisions. The Americans with Disabilities Act is a
new public law, and the scope of coverage under the new construction
provision has not been reached in any court.

The issue raised by DIA and HFS concerns the correct interpretation of
the scope of coverage of section 303 of the Act. That section defines
illegal discrimination \"as applied to public accommodations and
commercial facilities\" to include a failure to design and construct new
facilities to be readily accessible to and usable by individuals with
disabilities. [See]{.underline} 42 U.S.C. § 12183(a)(1). Because section
303 covers commercial facilities[^5] as well as places of public
accommodation, it is the Department of Justice\'s view that section
303\'s coverage is not limited to (and cannot sensibly be limited to)
those entities that own, lease, or operate places of public
accommodation. DIA and HFS argue, however, that the scope of section 303
is limited to those parties who own, lease (or lease to), or operate
places of public accommodation. [See]{.underline} Complaint ¶ 20.
Plaintiffs\' argument would nullify the portion of the statute that
applies to new construction of commercial facilities. [See]{.underline}
[Moskal v. United States]{.underline}, 498 U.S. 103, 109-110 (1991)
(courts should interpret statutes in a manner that gives effect to every
clause and word of the statute).

The issue raised by DIA and HFS is precisely the type of issue of the
scope or reach of a public law that is not appropriate for decision in a
declaratory judgment action, in the absence of a concrete case and a
fully developed record.

Under either the Attorney General\'s or plaintiffs\' legal theory, the
inquiry into DIA\'s and HFS\'s liability remains thoroughly fact-bound.
Under the Attorney General\'s view, the question with respect to each
hotel is whether DIA and HFS had sufficient involvement in or control
over the design and construction of the hotel to render them liable for
ADA violations \-- a thoroughly factual question. Even plaintiffs\'
theory, which does violence to the statutory scheme and plain language
of section 303, requires the Court to decide two fact questions
fundamental to a determination of the liability of DIA and HFS: 1) do
DIA and HFS have sufficient control over the operations of hotel to be
\"operating\" the hotel within the meaning of section 302 of the ADA,
and 2) if so, did DIA and HFS have sufficient involvement in or control
over the design and construction of the hotel to be liable for ADA
violations? Under either approach, the cases make clear that DIA and HFS
can receive the declaratory relief they seek only upon the development
of a full factual record. There is simply no basis, in equity or common
sense, to choose the course suggested by DIA and HFS.

> 3\. The availability of alternate fora and the convenience of other
> parties and witnesses requires dismissal of [this
> action.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

The Fifth Circuit and the Supreme Court have held that the availability
of an alternate forum where the dispute between the parties may be fully
litigated counsels against declaratory relief. [Wilton]{.underline}, 115
S.Ct. at 2140; [Rowan]{.underline}, 876 F.2d at 29.[^6] Likewise, the
Court should consider whether it is convenient to bring parties and
witnesses to this action. Both of these factors counsel in favor of
dismissing this action; there are five other actions currently pending
where plaintiffs can bring their claims for declaratory relief, each of
which is far more convenient for the other parties to those actions, and
the witnesses that may be called.

The other pending actions will fully resolve all of the issues raised by
DIA and HFS, even if plaintiffs do not affirmatively seek declaratory
relief in those other actions. In each case the Department of Justice
has alleged that DIA and HFS have participated in the design and
construction of the hotels in question, and that they are liable for the
ADA violations at those hotels. There is simply no need to have a sixth
federal district court take up these issues. [See]{.underline} [Mission
Ins. Co.]{.underline}, 706 F.2d at 603 (Fifth Circuit affirms district
court\'s discretionary dismissal of a declaratory judgment action,
relying in part on the fact that another action in California would
settle the disputed issues).

The convenience of parties and witnesses also takes on particular
significance here. If this Court entertains this action, it must either
join as parties, or compel attendance as witness, several individuals
and entities \-- and perhaps dozens or hundreds \-- throughout the
United States. As discussed above, whatever view one takes of the
applicable law, the liability of DIA and HFS for ADA violations is
fact-bound in every case. To decide liability for a particular facility
will require at least the introduction of testimony from the owner and
architect of that facility, and may require joining the owner and others
as parties, so that complete relief can be afforded. Thus, if DIA and
HFS sought declaratory relief with respect only to the five actions
brought by the Department, it would be necessary to join, or bring in as
witnesses, at least fourteen other parties who reside in California,
South Dakota, North Dakota, Illinois, Indiana, Georgia, Kentucky, and
Ohio.

Plaintiffs, however, do not seek declaratory relief only as to the five
actions filed by the Department. They seek a declaration reaching at
least all twenty-eight new Days Inns that have been visited and
inspected by the Department, if not all new Days Inns in the United
States, expanding exponentially the number of parties or witnesses
necessary to resolution of their action. \"The convenience of parties
and witnesses has traditionally been considered in determining whether
to hear a declaratory judgment action\"; important considerations
include \"the cost of obtaining attendance of willing witnesses,\" the
\"possibility of view of premises, if view would be appropriate to the
action,\" and \"all other practical problems that make trial of a case
easy, expeditious and inexpensive.\" [Mission Ins. Co.]{.underline}, 706
F.2d at 602-03, quoting [Gulf Oil Corp. v. Gilbert]{.underline}, 330
U.S. 501, 508 (1947).

Each of these \"important considerations\" calls for dismissal of this
action. Even if the Court could exercise jurisdiction over all the
necessary witnesses, it will be inordinately difficult and expensive to
bring them to this Court from homes across the country. If viewing the
hotels in question would be appropriate for the trier of fact, that can
certainly be more easily accomplished in the districts where the hotels
are located. In sum, there can be little question that attempting to
hear in this Court the action brought by plaintiffs will not be in any
sense \"easy, expeditious, or inexpensive.\" Given the existence of
adequate alternative fora, there is no reason to make those parties come
here to duplicate litigation pending elsewhere.

B.  THIS ACTION MUST BE DISMISSED BECAUSE PLAINTIFFS\
    [LACK STANDING AND THEIR CLAIMS ARE NOT RIPE\_\_\_\_\_]{.underline}

Two distinct, though related, doctrines of constitutional law mandate
that this action be dismissed for lack of subject matter jurisdiction.
Insofar as plaintiffs seek a declaratory judgment based upon the claim
that the Attorney General has misinterpreted the ADA by holding
plaintiffs liable for ADA violations \"growing out of DIA\'s status as
the franchisor\...,\" (Complaint, ¶ 1), they have not alleged a
controversy over which the Court has subject matter jurisdiction.
Second, plaintiffs\' claims against the Attorney General are not ripe.
Accordingly, pursuant to Rule 12(b)(1), Fed. R. Civ. P., the Court lacks
subject matter jurisdiction, and this action should be dismissed.

1\. [Plaintiffs fail to present a justiciable controversy.]{.underline}

It is well-settled that the party seeking a declaratory judgment must
demonstrate that its cause of action falls within the contours of
Article III of the Constitution. [Cardinal Chemical Co. v. Morton,
Int\'l, Inc.]{.underline}, 508 U.S. 83; 113 S.Ct. 1967, 1974 (1993);
[Aetna Life Ins. Co. v. Haworth]{.underline}, 300 U.S. 227, 240-41
(1937); [State of Texas v. West Pub. Co.]{.underline}, 882 F.2d 171, 175
(5th Cir. 1989), [cert. denied]{.underline}, 493 U.S. 1058 (1990). \"The
question in each case is whether the facts alleged, under all the
circumstances, show that there is a substantial controversy, between the
parties having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.\"
[Rowan]{.underline}, 876 F.2d at 28. In other words, where a plaintiff
seeks \"forward-looking relief,\" the injury must be both
\"particularized\" and \"imminent.\" [Adarand Constructors, Inc. v.
Pena]{.underline}, \_\_\_U.S.\_\_\_, 115 S.Ct. 2097, 2104 (1995).

The Complaint alleges harms in the nature of \"protracted disputes\"
with the Department in pending litigation, \"potential exposure such
actions pose,\" and \"unnecessary expenditure of resources.\"
[See]{.underline} Complaint, ¶¶ 63, 64, 69, 76, 77, 80. Plaintiffs have
not suffered any cognizable injury. They only allege that potential
future \"losses [may]{.underline} be sustained\" if the five enforcement
actions go forward based upon the Attorney General\'s enforcement of the
ADA against them on the basis of their \"status\" as franchisors. Such
injuries do not satisfy fundamental standing requirements of a concrete
injury that is not speculative in nature. [Lujan v. Defenders of
Wildlife]{.underline}, 504 U.S. 555, 560 (1992).

Notwithstanding allegations in the Complaint that plaintiffs are being
subjected to ADA enforcement actions by virtue of their franchisor
status, the Attorney General is enforcing the statutory prohibition
against discrimination by those who \"design and construct\" new
buildings.[^7] DIA and HFS have themselves alleged facts that show that
they did participate in the \"design and construction\" of hotels that
the Department has since determined do not comply with the ADA.
Complaint, ¶¶ 30-49. Their status as franchisors did not make plaintiffs
liable for ADA violations and is not the basis for the Attorney
General\'s actions against them. [See]{.underline} Exhibits D-H,
Complaints.

> 2\. [Plaintiffs\' claims are not ripe.]{.underline}

The separate, though related, doctrine of ripeness shares a common
requirement with standing: a plaintiff must show that \"he has
[sustained or is immediately in danger of sustaining]{.underline} a
direct injury\' as a result of the allegedly unlawful conduct.\"
[Laird]{.underline} v. [Tatum]{.underline}, 408 U.S. 1, 13 (1972)
(emphasis added). \"Ripeness is a function of an issue\'s fitness for
judicial resolution as well as the hardship imposed on the parties by
delaying court consideration.\" [Jobs, Training & Services v. East Tex.
Council]{.underline}, 50 F.3d 1318, 1325 (5th Cir. 1995),
[citing]{.underline} [Merchants Fast Motor Lines, Inc. v.
I.C.C.]{.underline}, 5 F.3d 911, 919-20 (5th Cir. 1993). The mere fact
that a plaintiff seeks a declaratory judgment does not affect the
requirement that a \"ripe\" injury be alleged. A declaratory judgment is
procedural only; it provides merely a remedy, and such remedy may
operate only when there is a controversy that is ripe in the
constitutional sense. [Dixie Electric Cooperative]{.underline} v.
[Citizens of Alabama]{.underline}, 789 F.2d 852, 858 n.18 (11th Cir.
1986).

There is no such real or concrete dispute with respect to the Fort
Stockton Days Inn; there is no \"actual controversy\" in this district.
The Fort Stockton Days Inn is not within the group of eleven hotels over
which the Department threatened to sue if the matter was not resolved by
January 31, 1996. To the contrary, the owner and architect for that
hotel were among the first parties to provide the Department with a
settlement proposal, the Department has had extensive settlement
discussions with those parties, and the owner and architect of the Fort
Stockton facility have remedied many of the problems identified by the
Department\'s investigation. No enforcement action regarding the Fort
Stockton Days Inn is imminent, and it is premature for plaintiffs to
seek a declaration that they have no liability for the problems at that
hotel.

IV\. [CONCLUSION]{.underline}

This Court lacks jurisdiction over plaintiffs\' claims against the
Attorney General, and this action must be dismissed pursuant to Fed. R.
Civ. P. 12(b)(1). Alternatively, the Court should exercise its very
broad discretion to dismiss pursuant to the Declaratory Judgment Act, 28
U.S.C. §§ 2201-2202.

Dated: April 8, 1996 Respectfully submitted,

> DEVAL L. PATRICK
>
> Assistant Attorney General
>
> JAMES WILLIAM BLAGG
>
> United States Attorney
>
> RAYMOND A. NOWAK
>
> Texas State Bar No. 15121490
>
> Assistant United States Attorney
>
> JOHN L. WODATCH
>
> Chief, Disability Rights Section
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> RENEE M. WOHLENHAUS
>
> Special Litigation Counsel
>
> THOMAS M. CONTOIS
>
> ALYSE S. BASS
>
> Attorneys, Civil Rights Division
>
> U.S. Department of Justice
>
> Post Office Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 514-5527

[^1]: ^?^ The primary mechanism for DIA\'s and HFS\'s involvement in and
    control over the design and construction is the license agreement it
    has entered into with the owner of each hotel. The complaints filed
    by the Attorney General allege that among other things, DIA, HFS, or
    both of them, in many or all of the cases:

    > \-- developed a Planning and Design Standards Manual (\"PDSM\")
    > for new Days Inn hotels, which includes detailed sketches of
    > various elements of the hotel, and hundreds of design
    > specifications, all of which licensees are required to comply with
    > by the license agreements;
    >
    > \-- specified various aspects or features of the hotel, including
    > the number of guest rooms, the number of parking spaces, whether
    > facility would have a swimming pool, and so on;
    >
    > \-- reviewed and approved architectural plans for the hotels prior
    > to construction; and
    >
    > \-- inspected the hotel at or shortly after completion of
    > construction, and on numerous occasions since.

    [See]{.underline} Attachments D through H.

[^2]: ^?^It is not necessary that these particular factors be present;
    any of them, or other factors identified by the Fifth Circuit, may
    justify dismissal of a declaratory judgment action.
    [See]{.underline} [Granite State Ins. Co. v. Tandy]{.underline}, 986
    F.2d 94, 96 (5th Cir. 1992), [cert. dismissed]{.underline} 507 U.S.
    1026 (1993) (\"The [Rowan]{.underline} list \[of factors\] is
    neither exhaustive, nor is it exclusive or mandatory.\").

[^3]: ^?^To the extent that DIA and HFS now seek, or modify their claims
    to seek, a declaration only that they are not liable for ADA
    violations at the Fort Stockton Days Inn, such a claim is not
    justiciable. [See]{.underline} Part III.B., [infra]{.underline}, at
    pp. 16-20.

[^4]: ^?^In [Public Affairs Assoc., Inc. v. Rickover]{.underline}, 369
    U.S. 111 (1962), the Supreme Court \"cautioned against declaratory
    judgments on issues of public moment, even falling short of
    constitutionality, in speculative situations.\" [Id]{.underline}. at
    112. \"Adjudication of \[matters of serious public concern\],
    certainly by way of resort to a discretionary declaratory judgment,
    should rest on an adequate and full-bodied record.\"
    [Id]{.underline}. at 113. The Fifth Circuit echoed this caution in
    [Fair v. Dekle]{.underline}, noting that a district court \"should
    exercise sound discretion in entertaining declaratory judgment
    actions, by requiring a full-bodied record developed through
    adequate adversary proceedings, with all proper parties before the
    court.\" 367 F.2d at 378.

[^5]: ^?^Title III defines commercial facility to include
    non-residential facilities whose operations affect commerce. 42
    U.S.C. § 12181(2). This is a broad category of facilities, including
    many types of buildings not included within the definition of places
    of public accommodation, [see]{.underline} 42 U.S.C. § 12181(7). For
    instance, most office buildings, warehouses, and factories are
    commercial facilities, but are not places of public accommodation.

[^6]: ^?^Although [Rowan]{.underline} addressed itself explicitly to
    existence of an alternative forum in a state court, the same
    rationale applies to the situation in which the alternative fora are
    in other federal courts. While the pendency of actions raising the
    same issues in other federal courts does not raise the issues of
    federalism and abstention raised when those other actions are
    pending in state courts, it is still true that the same issues need
    not and should not occupy two courts.

[^7]: ^?^ An order preventing the Attorney General from suing DIA and
    HFS for the participation in the design and construction of new
    hotels may not provide plaintiffs the redress from \"protracted
    litigation,\" and other harms, that they seek. [Lujan]{.underline},
    504 U.S. at 560 (causation and redressability essential elements of
    standing.) Preventing the Attorney General from suing DIA and HFS
    based exclusively upon their status as franchisors may not estop the
    Attorney General from suing them for their actions in other
    districts, and it certainly does not estop the litigation over the
    design and construction of these hotels. Owners, architects, and
    contractors are also defendants, and those parties also have an
    interest sufficient to join DIA and HFS as parties despite an
    injunction against the Attorney General. [See]{.underline} Rule 19,
    Fed. R. Civ. P. Thus, the hypothetical injury of risk and cost of
    litigation is not remedied solely by enjoining the Attorney General
    because DIA and HFS may be forced to defend regardless of a judgment
    from this Court.