Number range CHAPTER**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. )**

**)**

**UNITED STATES' MEMORANDUM IN REPLY TO PLAINTIFF'S OPPOSITION TO THE
UNITED STATES' MOTION TO DISMISS COMPLAINT FOR LACK OF SUBJECT MATTER
JURISDICTION AND MOTION TO STRIKE PORTIONS OF AFFIDAVIT OF SETH
HURWITZ**

[REPLY TO PLAINTIFF'S OPPOSITION TO THE UNITED STATES' MOTION TO
DISMISS]{.underline}

For the reasons discussed in the United States' Motion to Dismiss, this
action must be dismissed for lack of subject matter jurisdiction. The
allegations IMP makes in its Opposition do not alter the inescapable
legal conclusion that this action is based on no statutory ground that
confers a waiver of the United States' sovereign immunity and that the
action is not ripe for review.

First, the action is not based on any statute that waives federal
sovereign immunity. While IMP, in its Opposition, lists again the
statutes upon which it brings this action and cites, for the first time,
the Administrative Procedure Act, IMP makes no argument and provides no
case law to support that these statutes confer a waiver of sovereign
immunity in this action. The reasons that these statutes fail to confer
a waiver of sovereign immunity are explained in the United States'
Motion to Dismiss. The only possible basis for such a waiver is the
Administrative Procedure Act ("APA"), and IMP fails to refute or even
address any of the arguments or the case law discussed in the United
States' Memorandum demonstrating that the action challenged by IMP is
not a final action, and thus that the APA does not apply. The only
argument IMP presents is that the Department of Justice ("DOJ") action
it challenges is a final action because "determinate consequences to the
Plaintiff \[are\] reasonably foreseeable upon suit brought for its
failure to provide qualified signers upon demand." (Pl's Opp. at 7.)
However, even if it were foreseeable that the United States would sue
IMP (which it is not, as explained in the United States' Motion To
Dismiss at 11), the initiation of litigation itself does not create
determinate consequences sufficient to constitute a final agency action.
*See U.S. v. Cinemark U.S.A.,* 99 CV 0705 (N.D. Ohio Mar. 22, 2000),
slip op. at 6-8. A determinate consequence is something that fixes an
obligation or imposes liability. *Georator v. EEOC*, 592 F.2d 765, 768
(4^th^ Cir. 1979). IMP fails to address how the DOJ's settlement
agreement with Sledge, Inc. (hereinafter "Sledge") creates determinate
consequences for IMP. Without "final action," the APA provides no waiver
of sovereign immunity in this action.

IMP also apparently alleges that the APA applies to this action, in the
alternative, because the Americans with Disabilities Act ("ADA") makes
the action IMP challenges reviewable by statute. (See Pl's Opp. at 7
("Plaintiff contends that the ADA \... do \[sic\] constitute an action
made reviewable by statute."))[^1] IMP, however, again provides no
argument or case law in support of this statement. In fact, the ADA does
not make federal agency action reviewable. An action is made reviewable
by statute only

when the substantive statute specifically authorizes such review. *See
Lujan* *v. National Wildlife Federation*, 497 U.S. 871, 882 (1990)
("When, as here, review is sought not pursuant to specific authorization
in the substantive statute, but only under the general review provisions
of the APA, the 'agency action' in question must be "final agency
action.'") If the ADA did make agency action reviewable, the courts that
have evaluated whether they had subject matter jurisdiction under the
APA to hear actions involving interpretations of the ADA would not have
needed to analyze whether a final agency action existed (since the APA
would have applied if the action were made reviewable by the ADA).[^2]
Consequently, the APA does not apply and thus cannot confer a waiver of
sovereign immunity.

Second, this action simply is not ripe because there is no current case
or controversy. The complaint that led to the settlement agreement
between DOJ and Sledge is moot, and no complaint against IMP has even
been filed with DOJ. The requirement of ripeness "is designed 'to
prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial interference
until an administrative decision has been formalized and its effects
felt in a concrete way by the challenging parties.'" *New Jersey Hosp.
Assn. v. United States*, 23 F. Supp. 2d 497, 502 (D. N.J. 1998) (quoting
*Ohio Forestry Assn., Inc. v. Sierra Club*, 118 S. Ct. 1665, 1670-71
(1998)). Further, as the Supreme Court explained in *Ohio Forestry
Association*, when the party "will have a sufficient opportunity to
bring its challenge to the legality of a plan or regulation at some
future time, when harm is 'more imminent and more certain,' the matter
at issue is not ripe for adjudication by the courts." *New Jersey Hosp.
Assn.* 23 F. Supp. 2d at 502 (quoting *Ohio Forestry*, 118 S. Ct. at
1670-71). Consequently, in *New Jersey Hospital Association,* the court
found the plaintiff's complaint, alleging that DOJ was using threats of
suit under the False Claims Act in a coercive matter to resolve disputes
regarding overpayment of benefits to the plaintiff's member hospitals,
was not ripe because the Department of Justice had not decided whether
or not to file a False Claims Act suit against the member hospitals. 23
F. Supp. 2d at 503.

Likewise, the parameters of IMP's obligations to hearing impaired
patrons under the ADA is not a case or controversy ripe for this Court's
determination. There is no concrete factual dispute for the court to
consider, and any judicial review at this stage would involve only
abstract disagreements. The threat of enforcement that IMP alleges is at
most a contingency, which is insufficient to overcome the ripeness
hurdle. *Id.* at 504.

[MOTION TO STRIKE PORTIONS OF THE AFFIDAVIT OF SETH HURWITZ]{.underline}

The United States hereby moves this Honorable Court to strike from the
record any evidence of conduct or statements made by Department of
Justice attorneys during compromise negotiations between the United
States and Sledge contained in Seth Hurwitz's affidavit, Plaintiff's
Exhibit 1, Paragraphs 19 through 22, Paragraph 26, and Paragraph 28.
Federal Rule of Evidence 408 prohibits the admission of statements made
in settlement discussions that relate to the "liability for or
invalidity of the claim or its amount." Whether to permit the evidence
for another purpose is within the discretion of the trial court.
*Bituminous Const., Inc. v. Rucker Enterprises, Inc.*, 816 F.2d 965, 968
(4^th^ Cir. 1987). "To determine whether statements are covered by the
rule, the inquiry is whether the statements or conduct were intended to
be part of the negotiations for compromise." *Fiberglass Insulators,
Inc. v. Dupuy*, 856 F.2d 652, 654 (4^th^ Cir. 1988) (citations omitted).
Seth Hurwitz's affidavit meets this standard because it contains hearsay
descriptions of statements made by Department of Justice attorneys
during settlement negotiations with Sledge.

The Fourth Circuit has interpreted Rule 408 to require the exclusion of
evidence made by attorneys in the course of settling prior related
litigation. For instance, in *Fiberglass Insulators, Inc. v. Dupuy*, 856
F.2d at 654, the court excluded statements made during the course of
settlement negotiations of separate and prior claims between the
parties. The court reasoned that because the prior claims had to do with
the same transaction that was the subject of the case at hand, evidence
surrounding the settlement of those claims should be excluded under Rule
408, even if the claims were based upon different causes of action. The
court explained that "it is the general practice of the federal courts
to hold inadmissible \... the attempted use of a completed compromise of
a claim arising out of the same transaction between a third person and a
party to the suit being litigated." *Id.* (alterations in original)
(internal citations omitted); *see also United States v. Contra Costa
County Water Dist.*, 678 F.2d 90, 92 (9^th^ Cir. 1982) (settlement by
the plaintiff with another defendant of a closely related but separate
claim held inadmissible under Rule 408).

In the instant case, Plaintiff seeks to introduce evidence of comments
made by Department of Justice attorneys in the course of settling a
related complaint with Sledge. Since Plaintiff seeks a declaratory
judgment that the Settlement Agreement reached between the United States
and Sledge reflects incorrect interpretations of the ADA, the present
claim is clearly related to the subject matter of the settlement between
the United States and Sledge. As such, any alleged conduct or statements
by Department of Justice attorneys made during the course of settlement
negotiations with Sledge should be stricken from the record.

Further, the United States moves that this Honorable Court strike
Paragraphs 14 through 16 of Seth Hurwitz's affidavit because they
consist of the affiant's legal conclusions, contain hearsay, and/or
present opinions of the affiant not limited to opinions or inferences
which are rationally based on the perception of the witness, and are
therefore inadmissible under Federal Rules of Evidence 602, 801, and
701.

Dated: [    May 13    ]{.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
>
> 950 Pennsylvania Avenue, Northwest- NYA
>
> Washington, D.C. 20530
>
> 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

**[CERTIFICATE OF SERVICE]{.underline}**

I hereby certify that on May 13, 2002, I served a copy of the foregoing
MEMORANDUM IN REPLY TO PLAINTIFF'S OPPOSITION TO THE UNITED STATES'
MOTION TO DISMISS COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION AND
MOTION TO STRIKE AFFIDAVIT OF SETH HURWITZ upon Defendant's counsel in
IT'S MY PARTY, INC. V. UNITED STATES OF AMERICA, Civil Action No.
L-01-3270, by sending it via facsimile and first class mail, postage
pre-paid, to the following address:

> Michael R. Biel, Esquire
>
> O'Toole, Rothwell, Nassau & Steinbach
>
> 1700 K St., N.W.
>
> Suite 700
>
> Washington, D.C. 20006-3817
>
> Telephone: (202) 775-1550
>
> Facsimile: (202) 775-0008

Dated this 13th day of May, 2002

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

> **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]: This is the United States' best estimation of what IMP means by
    this statement.

[^2]: Courts that have undertaken this evaluation include *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; and *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).