**UNITED STATES DISTRICT COURT**

**DISTRICT OF MARYLAND**

**IT'S MY PARTY, INC., )**

**)**

**Plaintiff, )**

**)**

**) Civil Action No. L-01-3270**

**)**

**THE UNITED STATES OF AMERICA, )**

**)**

**Defendant. )**

**[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline})**

**UNITED STATES' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS COMPLAINT
FOR LACK OF SUBJECT MATTER JURISDICTION**

**I. INTRODUCTION**

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).

**ARGUMENT**

**III. THIS COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE**

> **THERE IS NO APPLICABLE WAIVER OF THE UNITED STATES' SOVEREIGN
> IMMUNITY**

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 States*, 95 F.3d
339, 345 (4^th^ Cir. 1996) (the United States' consent to be sued is a
prerequisite for jurisdiction); *Florida Auto Auction of Orlando, Inc.
v. United States*, 74 F.3d 498, 501 (4^th^ 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 the Federal Government's sovereign immunity.
As a result, IMP's reliance upon 28 U.S.C. § 1331[^1] and 42 U.S.C.
12188(a)[^2] 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 491,
503 (E.D. Va. 1999) (same)*, aff'd* 232 F.3d 887 (4^th^ 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
discriminated against in violation of title III of the ADA, nowhere in
the ADA did Congress unequivocally express its intent to waive the
Federal Government's sovereign immunity.[^3] 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 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. United States*, 279 F. 3d 1214, 1225 (10^th^ 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 (4^th^ 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 Agency Action.]{.underline}

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 action made
reviewable by statute is subject to judicial review.[^4] 5 USC § 704;
*Randall v. United States*, 95 F.3d 339 (4^th^ Cir. 1996); *Circuit City
Stores, Inc. v. EEOC*, 75 F. Supp. 2d 491, 505 (E.D. Va. 1999), *aff'd*
232 F.3d 887 (4^th^ 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,
246-247 (1980); *Georator Corporation v. EEOC*, 592 F.2d 765, 769 (4^th^
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 "determinate consequences for the party to the proceeding."
*Georator v. EEOC*, 592 F.2d 765, 768 (4^th^ Cir. 1979) (citing *ITT v.
Electrical Workers*, 419 U.S. 428 (1975)). No finality exists with
respect to a 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.

Any liability for IMP arising from a DOJ investigation could only be
imposed after multiple steps, including the following: a disabled
individual is denied an auxiliary aid by IMP and files a complaint with
DOJ or DOJ initiates a compliance review; DOJ investigates the complaint
or IMP's services and determines that IMP is not in compliance with the
ADA; DOJ and IMP do not reach a settlement; DOJ authorizes filing a
lawsuit against IMP; and a federal court determines that IMP has
violated the ADA. All of these steps build upon one another, and to our
knowledge, no complaint against IMP has been filed with DOJ, and DOJ has
not begun a compliance review of IMP's services for individuals with
hearing impairments. Most importantly, none of these steps has any
relation to the settlement agreement with Sledge.

Under Fourth Circuit and other case law, the settlement in this
agreement cannot be final agency action because it carries no
determinate consequences for IMP. In *Georator v. EEOC*, the Fourth
Circuit addressed a somewhat similar agency action -- an EEOC reasonable
cause determination. The court held that the EEOC's determination of
reasonable cause on a charge of discrimination filed against Georator by
a complainant was not a final agency action because it imposed no
obligations or liability on Georator. Only if and when the EEOC or the
complainant filed suit in district court, then Georator would have the
opportunity to challenge the determination, and liability would be
determined. 592 F.2d at 768. *See also Circuit City Stores, Inc. v.
EEOC*, 75 F.Supp.2d 491 (E.D. Va. 1999), *aff'd* 232 F.3d 887 (4^th^
Cir. 2000) (holding that the EEOC's issuance of a reasonable cause
finding (a Commissioner's Charge), its threat to institute enforcement
proceedings, and steps taken in preparation of litigation were not final
agency actions). Consequently, the court dismissed the complaint for
lack of subject matter jurisdiction.

Like an EEOC reasonable cause finding, a DOJ settlement agreement
imposes no liability or obligations, other than the contractual
obligations to which the parties to the settlement agree. In fact, IMP
is much further removed from liability than was Georator. Georator was
challenging a reasonable cause determination as to its own conduct. IMP
is, in effect, challenging the position DOJ took in the settlement
agreement as to Sledge's conduct. Thus, under *Georator*, this action
must be dismissed because the challenged agency action has no legal
effect on IMP.

Other courts have heard declaratory judgment actions against DOJ
involving similar scenarios to the instant action, and have held that
the challenged agency actions were not final because they did not impose
liability. Three district courts held that a DOJ amicus brief filed in a
fourth lawsuit, which involved the same issue -- the ADA requirements
for stadium-style seating -- was not a final agency action because it
imposed no legal obligations. *U.S. v. AMC Entertainment, Inc.*, CV
99-1034 (C.D. Cal. Sept. 8, 1999), slip op. at 10-11; *U.S. v. Cinemark
U.S.A., Inc.*, 99 CV 0705 (N.D. Ohio Mar. 22, 2000), slip op. at 6;
*Cinemark U.S.A., Inc. v. U.S Department of Justice*, No. 3:99CV 0183,
2000 WL 915091, \*6-7 (N.D. Tex. July 6, 2000). In *AMC Entertainment*,
the court reasoned that "Advocacy in the context of a judicial
proceeding does not constitute final agency action \... because an
agency's statement of position in litigation with a private party
imposes no legal obligations, denies no existing rights and fixes no
legal relationships." *U.S. v. AMC Entertainment*, slip op. at 10-11
(citing *Mount Adams Veneer Co. v. United States*, 896 F.2d 339, 343
(9^th^ Cir. 1990); *National Labor Relations Board v. Sears, Roebuck &
Co.*, 421 U.S. 132, 160 (1975); *Board of Trade of the City of Chicago
v. SEC*, 883 F.2d 525, 529-30 (7^th^ Cir. 1989); *Ukiah Valley Medical
Center v. FTC*, 911 F.2d 261, 264 (9^th^ Cir. 1990)).

These courts further held that settlement negotiations between DOJ and
the respondents were not final agency actions because they imposed no
legal rights or obligations. *U.S. v. AMC Entertainment*, slip op. at
12-14; *U.S. v. Cinemark U.S.A.*, slip op. at 6. Other courts also have
held that settlement negotiations are not final agency actions. *See
Assn. of Public Agency Customers v. Bonneville Power Admin.*, 126 F.3d
1158, 1184 (9^th^ Cir. 1997) ("Negotiations, which are not final
actions, therefore are not reviewable, and we decline to consider
them"); *New Jersey Hosp. Assn. v. United States*, 23 F. Supp. 2d 497,
500 (D. N.J. 1998) (holding that DOJ's settlement letters do not
constitute final agency action).

In addition, DOJ's initiation of litigation is not a final agency
action. *U.S. v. Cinemark U.S.A.*, slip op. at 6-8. As the court noted
in *U.S. v. Cinemark U.S.A.*, "If the Court were to adopt Defendant's
position, the United States and the Attorney General would be subject to
suit any time the Attorney General initiated an investigation or filed a
complaint based on the belief that some party was unlawfully
discriminating against persons with disabilities. This is an untenable
position which this Court declines to adopt." *U.S. v. Cinemark U.S.A.*,
slip op. at 8. *See also FTC v. Standard Oil Co. of California*, 449
U.S. 232, 241, 242 (1980) (holding that the FTC's issuance of a
complaint asserting that the defendant was violating the Federal Trade
Commission Act was not a final agency action because it was not a
definitive statement of position and had no legal force comparable to
that of the regulation at issue in *Abbott Laboratories*). Judicial
review "should not be a means of turning prosecutor into defendant" and
thus review of the position an agency takes in its complaint is not
permitted. *Standard Oil Co. of California* at 243.

As the court explained in *U.S. v. Cinemark U.S.A.*, since DOJ has no
inherent power under the ADA to adjudicate, issue fines, or order a
violator to take some action, unlike other agencies, none of the
challenged agency actions could create liability, a necessary criteria
of a final agency action. Rather, a legal obligation could only be
ordered by a District Court. Slip op. at 8. Similarly, the settlement
agreement between DOJ and Sledge creates no liability for IMP and cannot
be a final agency action.

In addition to establishing no liability, the settlement agreement
between DOJ and Sledge does not set forth a policy that represents a
consummation of DOJ's decision-making process, and does so to an even
lesser degree than would an amicus brief, which at least reflects the
position of the agency alone, rather than possibly a compromise position
agreed on to reach a settlement. Likewise, as compared to a decision to
file litigation, a settlement agreement equally falls short as a
consummation of DOJ's decision-making process. A decision to file
litigation may be seen as a commitment of resources and to a legal
position that would more likely reflect a consummation of the agency's
decision-making process than would reaching a settlement with a private
party to resolve a complaint.

Under Supreme Court law, Fourth Circuit law, and the well-thought out
reasoning of other district courts who have considered similar issues,
as discussed above, the action challenged in the instant case is not a
final agency action. Because the agency action IMP challenges is not a
final agency action, no judicial review is permitted. Therefore, this
action must be dismissed for lack of subject matter jurisdiction.

B.  [The Claim Is Not Ripe for Judicial Resolution under the Declaratory
    Judgment Act.]{.underline}

In addition to lacking subject matter jurisdiction under the APA, this
action also lacks ripeness under the Declaratory Judgment Act and thus
should be dismissed. A declaratory action is only ripe for judicial
resolution, when the "facts alleged, under all the circumstances, show
that there is a substantial controversy between parties having adverse
legal interests of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment." *Maryland Casualty Co. v. Pacific
Coal & Oil Co.*, 312 U.S. 270, 273 (1941); *Helco Products Company v.
McNutt*, 137 F.2d 681, 682 (D.C. Cir. 1943). While the Declaratory
Judgment Act authorizes federal courts to review claims for declaratory
relief, the court's determination to hear a declaratory judgment action
is discretionary. *Abbott Laboratories*, 387 U.S. at 148; *Wilton v.
Seven Falls Company*, 515 U.S. 277, 286-88 (1995). "Courts traditionally
have been reluctant to apply \[injunctive and declaratory judgment
remedies\] to administrative determinations unless these arise in the
context of a controversy "ripe" for judicial resolution." *Abbott
Laboratories*, 387 U.S. at 148. *Abbott Laboratories* set out the two
factors to consider to determine whether an administrative determination
is ripe for review: (1) the fitness of the issues for judicial decision,
and (2) the hardship to the parties of withholding the court's
consideration. 387 U.S. at 149.

[1. Fitness of the Issues for Judicial Decision]{.underline}

The "fitness for judicial decision" factor analyzes whether the issue
tendered is purely a legal one for which no further factual development
is necessary. *Abbott Laboratories,* 387 U.S. at 149. In *Abbott
Laboratories*, the Supreme Court decided that a challenge to a
regulation was purely legal and thus fit for judicial decision. In
*Toilet Goods Assn. v. Gardner*, however, the Supreme Court concluded
that the action was not ripe for judicial review because the
circumstances under which the challenged regulation would be enforced
were not clear.

Whether the regulation is justified\... will depend not merely on an
inquiry into statutory purpose, but concurrently on an understanding of
what types of enforcement problems are encountered by the FDA, the need
for various sorts of supervision in order to effectuate the goals of the
Act, and the safeguards devised to protect legitimate trade secrets. We
believe that judicial appraisal of these factors is likely to stand on a
much surer footing in the context of a specific application of this
regulation than could be the case in the framework of the generalized
challenge made here.

387 U.S. at 163-164.

Similarly, the declaratory relief that IMP seeks -- a determination as
to what kind of auxiliary aid the ADA requires for hearing impaired
patrons at concerts promoted by IMP -- cannot be resolved in the
framework of the generalized challenge made here. Because the ADA
requires an individualized, case-by-case analysis to decide what is
appropriate or necessary in a given set of circumstances, a judicial
determination as to the appropriate auxiliary aid to achieve effective
communication for a hearing impaired individual at a concert would stand
on a much surer footing in the context of a specific application of the
ADA and its regulations. *See also Pacific Gas & Electric Co. v. State
Energy Resources Conservation & Dev. Comm'n*, 461 U.S. 190, 203 (1983)
(holding that a challenge to the constitutionality of a California
statute was not ripe for review because the statute requires
case-by-case determinations and thus a judicial decision could be
premature). Consequently, this court should decline to exercise
jurisdiction over this declaratory action.

The need for sufficiently concrete facts is a principal also articulated
in *Helco Products v. McNutt*, 137 F.2d 681 (D.C. Cir. 1943) (cited in
*Abbott Laboratories*, 387 U.S. at 151). In *Helco Products*, the
plaintiff wrote to the Food and Drug Administration seeking a response
as to whether the plaintiff's proposed shipment of dyed poppyseed would
violate the Federal Food, Drug, and Cosmetic Act. Two officials of the
Food and Drug Administration responded that such action would be a
violation of law. The plaintiff sued for a declaration that its proposed
action did not violate the statute. The court decided that the suit was
not ripe for judicial review because the FDA officials were only
responding to a hypothetical question, and therefore their opinion was
only advisory and could change upon an actual state of facts. Further,
the officials who responded did not have authority to initiate
prosecution, and the Attorney General, who did, was not under a
mandatory duty to prosecute. 137 F.2d at 683.

The instant action can be analyzed through the framework of *Helco
Products*. IMP is treating DOJ's response to the complaint brought
against Sledge as a response to a hypothetical question from IMP, asking
if it would be a violation of law if IMP did not provide sign language
interpreters to hearing impaired patrons. Such a question to DOJ,
however, would only be hypothetical, since it would not be based on an
actual factual scenario. Therefore, a response from DOJ to this
hypothetical question would not constitute an agency action ripe for
judicial review, according to *Helco Products*. This rationale
reinforces the importance of the ripeness doctrine -- that a court
should not review an advisory opinion based on hypothetical facts when a
judicial determination of the issue requires a solid factual grounding.
Because the ADA and the issue challenged here require fact based,
individualized determinations, the declaratory relief sought in the
instant case is not ripe for review.

[2. Hardship to the Parties]{.underline}

The second factor outlined in *Abbott Laboratories* to determine
ripeness is the hardship to the parties of withholding judicial review.
In *Abbott Laboratories*, the challenged regulation required all drug
companies to change the labels on every drug product they produced and
all advertisements and promotional materials. Failure to comply with
this regulation could result in serious criminal and civil penalties.
387 U.S. at 152-153. Because the regulation required an immediate and
significant change in the plaintiffs' conduct of their affairs with
serious penalties attached to noncompliance, the court decided that the
action was appropriate for judicial review. 387 U.S. at 153.

In contrast, in *Toilet Goods*, the Supreme Court decided that the
hardship to the plaintiff would not be felt immediately in its
day-to-day affairs and was not sufficiently severe to justify judicial
review. The regulation authorized the Commissioner to inspect
manufacturers' factories, and allowed for penalties if the manufacturer
refused to allow inspection, but required no advance action by the
manufacturers. The consequence of noncompliance with the regulation
could lead to a suspension of certification services, which could be
challenged through an administrative procedure. The court determined
that such review would provide an adequate forum for testing the
regulation in a concrete situation. 387 U.S. at 165.

Similarly, the DOJ "policy" that IMP challenges causes no immediate
consequence for IMP in its day-to-day affairs and no severe penalties.
At worst, IMP's refusal to provide a sufficient auxiliary aid to a
hearing impaired patron could result in a complaint filed with DOJ,
which could result in DOJ opening an investigation, and ultimately could
result in DOJ filing a lawsuit in federal court, in which forum IMP
could assert its challenge to any position DOJ asserts during
litigation. Such consequences would not constitute "irremediable adverse
consequences,"*Toilet Goods*, 387 U.S. at 164, nor rise to the level of
hardship as presented in *Abbott Laboratories*.

**V. CONCLUSION**

For the reasons discussed above, this action must be dismissed for lack
of subject matter jurisdiction.

Dated: [April 5]{.underline} , 2002

> Respectfully Submitted,
>
> Ralph F. Boyd, Jr.
>
> Assistant Attorney General
>
> Civil Rights Division
>
> John L. Wodatch, Chief
>
> Allison J. Nichol, Deputy Chief
>
> Philip L. Breen, Special Legal Counsel
>
> Disability Rights Section
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> **AMANDA MAISELS**
>
> District of Columbia Bar No. 71325
>
> **M. LUCIA BLACKSHER**
>
> Louisiana Bar No. 26605
>
> Disability Rights Section
>
> U.S. Department of Justice
>
> 1425 New York Avenue NW, Room 4025B
>
> Washington, D.C. 20005-2108
>
> Telephone: (202) 514-1947
>
> Facsimile: (202) 307-1197
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> **THOMAS M. DIBIAGIO,** U.S. Attorney
>
> **ALLEN F. LOUKS,** Acting Civil Chief
>
> **LARRY ADAMS,** Assistant U.S. Attorney
>
> Office of the U.S. Attorney
>
> District of Maryland
>
> 6625 U.S. Courthouse
>
> 101 W. Lombard Street
>
> Baltimore, MD 21201
>
> Telephone: (410) 209-4800
>
> Facsimile: (410) 962-2310

[^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 this subchapter.

[^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).

[^4]: IMP does not challenge any action made reviewable by statute, and
    makes no argument to this effect.