Case 1:20-cv-02107-JEB Document 1 Filed 08/03/20 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION OF THE DEAF 8630 Fenton Street, Suite 820 Silver Spring, MD 20910,
CARLTON STRAIL c/o National Association of the Deaf 8630 Fenton Street, Suite 820 Silver Spring, MD 20910
GRAHAM FORSEY c/o National Association of the Deaf 8630 Fenton Street, Suite 820 Silver Spring, MD 20910
DEBRA FLEETWOOD c/o National Association of the Deaf 8630 Fenton Street, Suite 820 Silver Spring, MD 20910,
JOHN RIVERA, JR. c/o National Association of the Deaf 8630 Fenton Street, Suite 820 Silver Spring, MD 20910,
COREY AXELROD c/o National Association of the Deaf 8630 Fenton Street, Suite 820 Silver Spring, MD 20910,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, 1600 Pennsylvania Avenue NW Washington, DC 20500,
EXECUTIVE OFFICE OF THE PRESIDENT 1600 Pennsylvania Avenue NW Washington, DC 20500,

Civil Action No. 20-cv-2107

Case 1:20-cv-02107-JEB Document 1 Filed 08/03/20 Page 2 of 21
THE WHITE HOUSE OFFICE 1600 Pennsylvania Avenue NW Washington, DC 20500, OFFICE OF THE VICE PRESIDENT 1600 Pennsylvania Avenue NW Washington, DC 20500, KAYLEIGH MCENANY, in her official capacity as Press Secretary to the President of the United States, 1600 Pennsylvania Avenue NW Washington, D.C. 20500;
Defendants.
COMPLAINT 1. This is an action to ensure that hundreds of thousands of deaf and hard of hearing (“DHH”) Americans have access to critical, potentially life-saving information conveyed by our nation’s political and public health leaders during the COVID-19 pandemic. 2. All 50 states’ governors have provided in-frame American Sign Language (“ASL”) interpretation during public briefings regarding the pandemic, and all but a small handful continue to do so consistently. So have many mayors of America’s largest cities. Leaders from around the world have also provided sign language interpretation for public briefings during the pandemic. This is done in recognition of the importance of meaningful access to up-to-date information regarding the crisis for DHH people. 3. President Trump, however, does not. He now stands alone in holding televised briefings regarding the COVID-19 pandemic without ever having provided any ASL interpretation. This means that not only are DHH Americans being denied the opportunity to understand any communication from the President of the United States during this critical time,
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they are also being denied the opportunity to access information, analysis, and updates from Dr. Anthony Fauci and Dr. Deborah Birx—two renowned public health experts.
4. With COVID-19 cases spiking in many states across the country, it is more important than ever that all Americans have access to up to date, public health information in the coming months.
5. Various organizations and entities, including the National Association for the Deaf (“NAD”), have requested that the White House provide ASL interpretation during its public COVID-19 related briefings. See Ex. C. Additionally, 34 United States Senators have requested the same. See Ex. A, Letter to Vice President Mike Pence, the White House (Mar. 12, 2020). The White House has ignored these requests and continues to conduct briefings without any ASL interpretation.
6. The White House’s failure to provide ASL interpreters during COVID-19 related briefings, including press briefings, is against the law. Federal law unequivocally prohibits discrimination against individuals with disabilities, which includes failing to provide meaningful access to public benefits, programs, or services. As the U.S. District Court for the Southern District of New York recently held, government officials are required to provide in-frame ASL interpreters during public briefings regarding the COVID-19 pandemic. See Martinez v. Cuomo, No. 20-CV-3338 (VEC), 2020 WL 2393285, at *5–7 (S.D.N.Y. May 12, 2020). As the court explained, “[w]ithout immediate implementation of an in-frame ASL interpreter, Plaintiffs and other similarly situated deaf New Yorkers will continue to be denied timely access to critical information, leaving them less able to comply with current orders and advice, less able to prepare for the future, and more anxious about current conditions and the future.” Id. at *6.
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7. Plaintiffs therefore bring this action to vindicate their right to meaningful access to the information conveyed at public White House briefings regarding the COVID-19 pandemic.
JURISDICTION AND VENUE 8. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because this action arises under federal law. 9. Declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201, 2202. 10. Venue is proper in this district under 28 U.S.C. §§ 1391(b)(2) and (e). Defendants reside in the District of Columbia. Further, a substantial part of Defendants’ unlawful acts giving rise to their claims occurred in this district.
PARTIES 11. Plaintiff the National Association of the Deaf (NAD) is the nation’s premier civil rights organization of, by, and for deaf and hard of hearing individuals in the United States. Established in 1880 by deaf and hard of hearing leaders, the NAD is dedicated to its mission of preserving, protecting, and promoting the civil, human, and linguistic rights for 48 million deaf and hard of hearing people in this country. The NAD has associational standing to sue on behalf of its deaf and hard of hearing members because (i) the NAD’s members have standing to sue in their own right, (ii) advocating on behalf of its members on this issue is germane to the NAD’s mission of advocating for its members’ civil, human, and linguistic rights, and (iii) none of the NAD’s members is required to participate in this action because the NAD is seeking declaratory and injunctive relief and not an individualized remedy for its members. 12. Plaintiff Carlton Strail is a 92-year-old deaf resident of Syracuse, New York. Mr. Strail is fluent in ASL, and it is his preferred and primary language. Mr. Strail never attended
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college and has difficulty understanding rapid and unreliable live captioning on television, especially when the content is complex such as when there is information about a health pandemic. Mr. Strail, who is retired, does not own a computer and receives news from television. Mr. Strail watched a number of the White House briefings during March and April of 2020, and saw the briefings against in July of 2020, but he cannot understand them because there is no ASL interpreter during the briefings. Mr. Strail wants to understand the White House briefings because he wants information on how to stay safe during the coronavirus pandemic, as well as how to take care of family, friends, and loved ones. He also wants information about other pandemic-related issues, such as the progress in developing a potential vaccine and the impact of the pandemic on the economy and country as a whole.
13. Plaintiff Graham Forsey is a 27-year-old deaf resident of Washington, D.C. He is a graduate of the Ernest C. Drury School for the Deaf in Milton, Canada. ASL is Mr. Forsey’s preferred and primary language. Mr. Forsey watched a number of the White House briefings during March and April of 2020, and saw the briefings again in July of 2020, but he cannot understand them because there is no ASL interpreter during the briefings. Mr. Forsey has attempted to understand the White House briefings on television, on the internet, and on social media, but is often unable to do so because there is no ASL interpreter and the captioning is often inaccurate on television or not available on the internet or social media. Mr. Forsey wants to understand the White House briefings because he wants information on how to stay safe during the coronavirus pandemic, as well as how to take care of family, friends, and loved ones. He also wants information about other pandemic-related issues, such as the progress in developing a potential vaccine and the impact of the pandemic on the economy and country as a whole. In addition, Mr. Forsey is President of the District of Columbia Association of the Deaf,
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but is unable to answer questions from members of the association about the White House briefings because he does not have access to the information himself.
14. Plaintiff Debra Fleetwood is a 68-year-old deaf resident of Plainfield, New Jersey. Growing up, Ms. Fleetwood attended the New Jersey School for the Deaf. Ms. Fleetwood is fluent in ASL, and it is her preferred and primary language. Ms. Fleetwood never attended college and is not able to understand captioning on television when the content is complex such as when there is information about a health pandemic. Ms. Fleetwood, who is retired, gets most of her news information from television. Ms. Fleetwood watched a number of the White House briefings during March and April of 2020, and saw the briefings again in July of 2020, but she cannot understand them because there is no ASL interpreter during any of those briefings. Ms. Fleetwood wants to understand the White House briefings because she wants information on how to stay safe during the coronavirus pandemic, as well as how to take care of family, friends, and loved ones. She also wants information about other pandemic-related issues, such as the progress in developing a potential vaccine and the impact of the pandemic on the economy and country as a whole.
15. Plaintiff John Rivera, Jr. is a 66-year-old deaf resident of Old Bridge, New Jersey. Growing up, Mr. Rivera attended Public School 47, a deaf school in New York City. Mr. Rivera is fluent in ASL, and it is his preferred and primary language. Mr. Rivera has an Associate of Applied Science (A.A.S.) degree from the National Technical Institute of the Deaf (NTID) in Data Processing and has been employed in data processing since 1982. Mr. Rivera, who gets most of his news information from television, is not able to understand captioning on television when the content is complex such as when there is information about a health pandemic. Mr. Rivera watched a number of the White House’s briefings during March and April of 2020, and
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saw the briefings again in July of 2020, but he cannot understand them because there is no ASL interpreter during any of those briefings. Mr. Rivera wants to understand the White House briefings because he wants information on how to stay safe during the coronavirus pandemic, as well as how to take care of family, friends, and loved ones. He also wants information about other pandemic-related issues, such as the progress in developing a potential vaccine and the impact of the pandemic on the economy and country as a whole.
16. Plaintiff Corey Axelrod is a 34-year-old deaf resident of Arlington Heights, Illinois. A fourth-generation deaf person, Mr. Axelrod’s first language is ASL, and it is his preferred and primary language. Mr. Axelrod watched a number of the White House briefings during March and April of 2020, and saw the briefings again in July of 2020, but he cannot understand them because there is no ASL interpreter during any of those briefings. Mr. Axelrod has attempted to understand the White House briefings on television, on the Internet, and on social media, but is often unable to do so because there is no ASL interpreter and the captioning is often delayed and inaccurate on television or not available on the Internet or social media. Mr. Axelrod wants to understand the White House briefings because he wants information on how to stay safe during the coronavirus pandemic, as well as how to take care of family, friends, and loved ones. He also wants information about other pandemic-related issues, such as the progress in developing a potential vaccine and the impact of the pandemic on the economy and country as a whole. In addition, Mr. Axelrod is President of the Illinois Association of the Deaf, but is unable to answer questions from members of the association about the White House briefings because he does not have access to the information himself.
17. Defendant Donald J. Trump is the President of the United States. He is sued in his official capacity.
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18. Defendant the Executive Office of the President (EOP) “provide[s] the President with the support needed to govern effectively” and has responsibility for, among other things, “communicating the President’s message to the American people.” The Administration, https://www.whitehouse.gov/the-trump-administration.
19. Defendant the White House Office is an agency within the EOP and has responsibility for, among other things, the White House’s press briefings.
20. Defendant Office of the Vice President is an agency within the EOP that supports Vice President Mike Pence in his executive and legislative duties. Vice President Pence is the Chair of the White House Coronavirus Task Force and has held public briefings concerning the COVID-19 pandemic.
21. Defendant Kayleigh McEnany is Press Secretary to the President of the United States. She is sued in her official capacity. As Press Secretary, Ms. McEnany holds regular press briefings, including briefings concerning the COVID-19 pandemic.
FACTUAL ALLEGATIONS Deafness and American Sign Language
22. There are at least 48 million DHH persons in the United States. 1 For many of these DHH individuals, ASL is their primary language, and for many such persons, English is, at best, a second language. Indeed, many DHH persons know virtually no English.
23. Most DHH Americans who use ASL require qualified ASL interpreters to communicate with hearing persons who can only communicate in a spoken language such as English.

1

Here, Plaintiffs use the term DHH to refer to individuals with hearing levels or hearing

loss that qualify as disabilities under the Rehabilitation Act. Plaintiffs use the term “Deaf” to

refer to individuals who self-identify as culturally deaf.

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24. ASL is a complete and complex language distinct from English, with its own vocabulary and rules for grammar and syntax—it is not simply English in hand signals. ASL has no written component. For several reasons, including early language deprivation, many deaf people have a very limited ability to read and write in English.
25. Written English is not an effective means of communication for the many deaf individuals who have limited English capabilities, particularly for complex and important topics such as COVID-19 and related issues of public health. The White House’s Failure to Provide ASL Interpreters For COVID-19 Briefings
26. Beginning in March 2020, the White House began holding regular, televised briefings regarding the COVID-19 outbreak. To date, the White House has conducted more than 50 televised COVID-19 briefings. The White House Office, and in particular the Press Secretary, is responsible for the public communications of the White House, including the White House’s COVID-19 related public briefings. See John P. Burke, Administration of the White House, Miller Ctr. of Pub. Affairs, Univ. of Va., https://tinyurl.com/ydy5cq52 (Nov. 27, 2010).
27. Defendants’ COVID-19 briefings have at times involved only President Trump, President Trump along with members of the White House Coronavirus Task Force, and Vice President Pence without President Trump. Further, such COVID-19 briefings have sometimes been held at venues other than the White House itself, including at the U.S. Department of Health and Human Services, but they have always been organized and conducted by Defendants.
28. All of the major news networks have broadcasted the White House briefings to a live national audience.
29. The briefings have addressed critical issues regarding the health crisis, including the number of confirmed COVID-19 cases, the availability of testing, information about social
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distancing and other personal safety measures, the coordination of local, state, and federal emergency response systems, and other information about how Americans can stay safe and help limit the spread of the virus.
30. The briefings have also at times featured government officials from the White House Coronavirus Task Force, including public health experts Dr. Anthony Fauci, the director of the National Institute of Allergy and Disease, and Dr. Deborah Birx, the coordinator of the United States Government Activities to Combat HIV/AIDS. For example, on June 26, 2020, the White House Coronavirus Task Force held a televised briefing in response to the recent increase in coronavirus cases across the United States. During the briefing, the Task Force members delivered important information to the American public. After Dr. Birx “unpack[ed] the specific outbreaks in Texas, Florida, Arizona, and California,” Vice President Pence spoke, “about what every American can do to play their part in reducing the spread and the impacts of the coronavirus pandemic.” In addition, Dr. Fauci implored young Americans to recognize that they are “part of a process” and have a “societal responsibility” to comply with social distancing requirements, in light of the alarming number of growing cases. But hundreds of thousands of DHH Americans were unable to receive this important information due to the lack of ASL interpreters.
31. On July 20, 2020, President Trump announced plans to revive his administration’s COVID-19 briefings. Since then, the President has given regular briefings at the White House, providing updates on COVID-19 economic relief packages, vaccine development, and outbreaks across the country. On several occasions he has asked Americans to wear masks and socially distance. Although health experts are not present at the briefings, President Trump has stated that he is relaying information from both Dr. Birx and Dr. Fauci to the public.
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32. All 50 states’ Governors have provided televised COVID-19 briefings with inframe ASL interpretation, and all but a small handful continue to do so consistently.
33. Mayors from some of America’s largest cities have also provided televised COVID-19 briefings, and have likewise provided in-frame ASL interpretation for those briefings.
34. Many of these leaders have provided in-frame ASL interpretation during these briefings by using teams of hearing interpreters and Certified Deaf Interpreters (“CDIs”) who are themselves deaf or hard of hearing and have specialized training and skill in communicating complex concepts to other DHH persons.
35. Many other countries, including Argentina, Australia, Austria, Belgium, Bulgaria, Canada, China, Columbia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Fiji, Finland, France, Germany, Greece, Grenada, Hungary, Iceland, Ireland, Italy, Jamaica, Latvia, Lithuania, Luxembourg, Madagascar, Malta, Mongolia, Mozambique, Netherlands, New Zealand, Norway, Papua New Guinea, Paraguay, Poland, Portugal, Romania, Samoa, Saudi Arabia, Slovakia, Slovenia, Solomon Islands, South Korea, Spain, Sweden, Switzerland, Taiwan, Thailand, Trinidad and Tobago, and Uruguay also have used on-screen native sign language interpreters during televised COVID-19 news conferences with top public officials.
36. In the past, U.S. federal agencies, including the Federal Emergency Management Agency (FEMA) before and in the aftermath of Hurricanes Irma and Harvey, have used onscreen ASL interpreters during televised briefings.
37. Providing ASL interpretation for public briefings is not unduly expensive or burdensome.
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38. On March 12, 2020, 34 United States Senators wrote to Vice President Mike Pence, copying Dr. Birx, urging the Administration to ensure that all Americans, including those with disabilities have meaningful access to information about COVID-19. See Ex. A. In that letter, the Senators stated that “the President and his Cabinet officials can be models of accessibility by having American Sign Language (ASL) interpreters at every news conference about COVID-19,” noting that it “guarantees that members of the deaf and hard of hearing community are able to receive information in real time.” Id. On information and belief, the White House did not respond to this letter.
39. On March 18, 2020, the National Council on Disability, a federal agency, requested that President Trump and the White House provide in-frame ASL interpretation of all his COVID-19 briefings. See Ex. B. The White House did not respond to this letter.
40. That same day, the NAD also wrote to Stephanie Grisham, the White House Director of Communications, requesting that President Trump and the White House provide inframe ASL interpretation of all his COVID-19 briefings. See Ex. C, Letter from Howard Rosenblum, Chief Executive Officer, NAD, to Stephanie Grisham, Director of Communications, The White House (Mar. 18, 2020). The White House did not respond to this letter.
41. On March 27, 2020, the Linguistic Society of America (LSA)—an organization founded in 1924 to advance the scientific study of language—sent a letter to the White House Press Staff, requesting that all White House press briefings addressing COVID-19 include an ASL interpreter who is visible to any viewer. See LINGUISTIC SOCIETY OF AMERICA, https://www.linguisticsociety.org/about (last visited Aug. 2, 2020). The LSA explained that “solely relying on closed-captioning is not an option for all ASL users, and that a certified sign language interpreter (who must remain visible during the entirety of each briefing) is
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necessary. . . . This is not only the right thing to do but is also required by federal law, pursuant to the Americans with Disabilities Act and the Rehabilitation Act of 1973.” Ex. D.
42. On April 21, 2020, Senators Sherrod Brown and Robert P. Casey, Jr., as well as Congresswoman Donna Shalala, wrote to Vice President Pence, copying Dr. Birx, “to request that the White House Coronavirus Task Force use qualified, fully-visible American Sign Language (ASL) interpreters during public briefings on the coronavirus.” See Ex. E. On information and belief, the White House did not respond to this letter.
43. While the TV network broadcasters, pursuant to FCC mandate, provide closed captioning for their televised broadcasts of White House briefings, closed captioning is done in written English, which is inaccessible to deaf individuals who are fluent only in ASL.
44. Tone is also often lost in written captions. By contrast, an interpreter is able to convey tone and context of a message through facial expressions, sign choice, and demeanor.
45. Further, the provision of live closed captioning frequently contains errors and omissions that make it difficult or impossible for DHH individuals to understand the information being provided in the briefings, particularly if they are not fluent in English.
46. The NAD has received numerous complaints from DHH citizens who are unable to understand President Trumps’ briefings due to the lack of in-frame televised ASL interpretation.2

2

“In frame” ASL interpretation refers to simultaneous sign language interpreting where

the sign language interpreter is visible on screen beside the speaker. This may be accomplished

by placing the interpreter physically near the speaker, or by superimposing a live video feed of

the interpreter into a frame that appears alongside the speaker, with the frame sized appropriately

to allow DHH viewers to see and understand the interpretation. Under either approach, the in

frame, on screen interpreter would be visible on televised broadcast and on streamed mobile

devices.

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47. While the number of COVID-19 cases are currently declining in some of the early hardest hit states such as New York and New Jersey, 32 states reported record increases in COVID-19 cases in July. By late July, the number of COVID-19 cases nationwide surged past four and a half million.
48. All estimates show that the virus will continue to affect the country throughout the remainder of 2020, and possibly beyond. Thus, it remains as important as ever that all Americans have access to timely information from the White House.
COUNT ONE Violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Declaratory and Injunctive Relief against Defendants EOP, the White House Office, and
the Office of the Vice President) 49. Plaintiffs incorporate by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein. 50. Section 504 of the Rehabilitation Act provides in pertinent part that “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any . . . program or activity conducted by any Executive agency . . . .” 29 U.S.C. § 794(a). 51. Defendants EOP, The White House Office, and Office of the Vice President are “Executive agencies” within the meaning of 29 U.S.C. § 794(a). See 29 U.S.C. § 794(a) (directing heads of agencies to promulgate regulations necessary to carry out the Rehabilitation Act); Enforcement of Nondiscrimination on the Basis of Handicap in Federally Conducted Programs, 53 Fed. Reg. 25,872, 25,872 (July 8, 1988) (final rule requiring Federal Executive Agencies, including the Executive Office of the President, to operate all programs and services to
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ensure nondiscrimination against qualified individuals with disabilities); 3 C.F.R. Part 102 (codifying regulations); 7 Op. O.L.C. 110, 110, 114 (1983) (“The term ‘Executive agency’ as used in [§] 504 must be construed broadly to include all government entities which are not within either the legislative or judicial branches.”); see also 29 U.S.C. § 794(a); 3 C.F.R. § 102.103 (defining White House Office and Office of the Vice President as “agenc[ies]” for purposes of EOP regulations implementing Rehabilitation Act).
52. Public briefings conducted by the Executive Office of the President, the White House Office, and the Office of the Vice President are all federally conducted programs or activities subject to Section 504 of the Rehabilitation Act.
53. A disability is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 29 U.S.C. § 705(9)(B) (citing 42 U.S.C. § 12102(1)(A)).
54. Deafness is a disability pursuant to 29 U.S.C. § 705(21)(A)(iii), and is a physical impairment that substantially limits the major life activities of hearing.
55. Plaintiffs, who are deaf, are qualified individuals with a disability within the meaning of Section 504.
56. Defendants’ practice of denying access to ASL interpretation violates Section 504 by authorizing, or failing to forbid, actions that:
a. Exclude from participation in, deny the benefits of, or otherwise subject individuals to discrimination under a program or activity conducted by an Executive Agency on the basis of disability (or “handicap”). 29 U.S.C. § 794(a); 3 C.F.R. § 102.130(a); § 103.149.
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b. Deny qualified individuals with disabilities (or “handicaps”) the opportunity to participate in or benefit from the aid, benefit, or service. 3 C.F.R. § 103.130(b)(1)(i); § 103.149.
c. Afford qualified individuals with disabilities (or “handicaps”) an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded to others. Id. § 103.130(b)(1)(ii).
d. Provide a qualified individual with disabilities (or “handicaps”) with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level achievement as that provided to others. Id. § 103.130(b)(1)(iii).
e. Provide different or separate aid, benefits, or services to individuals with handicaps or to any class of individuals with disabilities (or “handicaps”) than is provided to others, where such action is not necessary to provide qualified individuals with disabilities (or “handicaps”) with aid, benefits, or services that are as effective as those provide to others. Id. § 103.130(b)(1)(iv).
f. Otherwise limit a qualified individual with disabilities (or “handicaps”) in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service. Id. § 103.130(b)(1)(vi); § 103.149.
57. Defendants’ practice of denying ASL interpretation further violates Section 504 by failing to comport with its own Communications requirements pursuant to 3 CFR § 102.160 to:
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a. take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public. 3 CFR § 102.160(a).
b. furnish appropriate auxiliary aids where necessary to afford an individual with disabilities (or “handicaps”) an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency. 3 CFR § 102.160(a)(1).
c. in determining what type of auxiliary aid is necessary, give primary consideration to the requests of the individual with disabilities (or “handicaps”). 3 CFR § 102.160(a)(1)(i).
58. As a result of Defendants’ acts and omissions, NAD’s members and the Individual Plaintiffs are excluded from participation in, denied the opportunity to participate in or benefit from, and denied the full benefits of the White House’s briefings.
COUNT TWO Mandamus Relief (Declaratory and Injunctive Relief against all Defendants) 59. Plaintiffs incorporate by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein. 60. The Rehabilitation Act provides Plaintiffs with a clear right to relief—namely, to not be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity conducted by any Executive agency solely by reason of disability. 61. Defendants have a clear duty to act—namely, to provide Plaintiffs with meaningful access to the public benefits, programs, and services that they administer. As it
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relates to White House’s COVID-19 briefings, this duty entails an obligation to provide live televised in-frame ASL interpretation. This duty is ministerial in nature.
62. By failing to provide in-frame ASL interpretation, Defendants have violated their duties to Plaintiffs under the Rehabilitation Act.
63. Thus, if the Court concludes that the Rehabilitation Act and First Amendment do not provide an adequate remedy to Plaintiffs, then there would be no other adequate remedy available to Plaintiffs, and Plaintiffs would be entitled to relief in the form of a writ of mandamus ordering Defendants to comply with the statutory duties imposed by the Rehabilitation Act.
COUNT THREE Violation of the First Amendment of the U.S. Constitution (Declaratory and Injunctive Relief against all Defendants) 64. Plaintiffs incorporate by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein. 65. The First Amendment to the U.S. Constitution guarantees, among other things, “the freedom of speech.” 66. The Supreme Court has held that the protection afforded by the First Amendment “is to the communication, to its source and to its recipients both.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976). Thus, where one enjoys a right to speak, others hold a “reciprocal right to receive” that speech, which “may be asserted” in court. Id. at 757. 67. Defendants’ refusal to provide in-frame ASL interpretation prevents Plaintiffs from accessing the communications provided by their elected representatives. 68. Denying this access serves no legitimate or compelling need and is not rationally related or narrowly tailored to serve any government interest.
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69. Providing such access would not impose an undue financial or administrative burden on Defendants.
70. Accordingly, Defendants’ refusal to provide in-frame ASL interpretation violates the First Amendment.
COUNT FOUR Nonstatutory Review (Declaratory and Injunctive Relief against All Defendants) 71. Plaintiffs incorporate by reference each and every allegation contained in the foregoing paragraphs as if specifically alleged herein. 72. By failing to provide in-frame ASL interpretation, Defendants have violated their duties to Plaintiffs under the Rehabilitation Act and acted ultra vires. 73. Thus, if the Court concludes that the Rehabilitation Act and First Amendment does not provide an adequate remedy to Plaintiffs, the Court should award relief under the doctrine of nonstatutory review. REQUEST FOR RELIEF WHEREFORE, Plaintiffs requests that judgment be entered against Defendants and that the Court grant the following: a. Preliminary and thereafter permanent injunctive relief requiring Defendants to immediately begin providing live televised in-frame ASL interpretation at all public briefings conducted by any Defendant that address issues concerning COVID-19, including all such briefings involving President Trump, Vice President Pence, Press Secretary McEnany, or any members of the White House Coronavirus Task Force; b. Declaratory relief that Defendants have violated the Rehabilitation Act by failing to provide live televised in-frame ASL interpretation at all public briefings conducted by
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Defendants that have addressed issues concerning COVID-19, including all such briefings involving President Trump, Vice President Pence, Press Secretary McEnany, or any members of the White House Coronavirus Task Force;; c. Declaratory relief that Defendants have violated the First Amendment by failing to provide live televised in-frame ASL interpretation at all public briefings conducted by Defendants that have addressed issues concerning COVID-19, including all such briefings involving President Trump, Vice President Pence, Press Secretary McEnany, or any members of the White House Coronavirus Task Force; d. Order all Defendants, in the form of mandamus relief and/or under the doctrine of nonstatutory review, to provide live televised in-frame ASL interpretation at all public briefings conducted by Defendants that address issues concerning COVID-19, including all such briefings involving President Trump, Vice President Pence, Press Secretary McEnany, or any members of the White House Coronavirus Task Force; e. Retain jurisdiction over this action to ensure Defendants’ compliance with the mandates of Section 504 of the Rehabilitation Act and the First Amendment; f. Award Plaintiffs reasonable attorneys’ fees and costs; and g. Award such other relief as this Court deems just.
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Dated: August 3, 2020

/s/ Ian S. Hoffman Ian S. Hoffman (D.C. Bar No. 983419) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Avenue NW Washington, DC 20001-3743 Telephone: (202) 942-5000 Fax: (202) 942-5999 ian.hoffman@arnoldporter.com
/s/ Marc Charmatz Marc Charmatz** NAD Law and Advocacy Center 86 30 Fenton Street, Suite 820 Silver Spring, MD 20910 Telephone: (301) 587-1788 Fax: (301) 587-1791 marc.charmatz@nad.org
**pro hac vice motion pending
Counsel for Plaintiffs

21

Case 1:20-cv-02107-JEB Document 1-1 Filed 08/03/20 Page 1 of 6
Exhibit A

Case 1:20-cv-02107-JEB Document 1-1 Filed 08/03/20 Page 2 of 6

Case 1:20-cv-02107-JEB Document 1-1 Filed 08/03/20 Page 3 of 6

Case 1:20-cv-02107-JEB Document 1-1 Filed 08/03/20 Page 4 of 6

Case 1:20-cv-02107-JEB Document 1-1 Filed 08/03/20 Page 5 of 6

Case 1:20-cv-02107-JEB Document 1-1 Filed 08/03/20 Page 6 of 6

Case 1:20-cv-02107-JEB Document 1-2 Filed 08/03/20 Page 1 of 4
Exhibit B

Case 1:20-cv-02107-JEB Document 1-2 Filed 08/03/20 Page 2 of 4

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NCD letter to White House regarding Taskforce interpreters

March 18, 2020
Stephanie Grisham
Director of Communications The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500
Dear Ms. Grisham,
I write to you today on behalf of the National Council on Disability (NCD), an independent federal agency charged with providing advice and recommendations regarding disability policy to the President, Congress, and other federal agencies, to request that the White House Coronavirus Taskforce use sign language interpreters during its public briefings. Millions of people in the US who are Deaf or hard of hearing use American Sign Language to obtain the vital information the Taskforce provides.[1]
These are no doubt challenging times and while some considerations might be easily overlooked, rest assured that the National Council on Disability is ready and willing to fulfill its duty to the President and Congress by highlighting the needs and concerns of the disability community as our government responds to the public health crisis at hand. There is no doubt that the Coronavirus brings with it significant added concerns for people with disabilities.
Please feel free to contact me should you have any questions or concerns regarding this, or any other matter related to disability policy and law. If a member of your team would like to discuss this with a member of my team please have them contact Lisa Grubb, Executive Director and CEO at lgrubb@ncd.gov.
Sincerely,
Neil Romano Chairman

Case 1:20-cv-02107-JEB Document 1-2 Filed 08/03/20 Page 3 of 4 CC: Alex Azar, Secretary of Health and Human Services, and Chairman of the President's Task Force on the Novel Coronavirus
[1] The Americans with Disabilities Act, 42 U.S.C. § 12101 (1990); The Rehabilitation Act, 29 U.S.C. § 701 (1973).
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If you have a question or comment, please let us know. 202-272-2004 (voice) 202-272-2022 (Fax) Email NCD Language Access Needs?
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Case 1:20-cv-02107-JEB Document 1-2 Filed 08/03/20 Page 4 of 4 Subscribe to NCD Updates Newsroom Join us on Facebook Follow us on Twitter Follow us on Instagram Meetings and Events Link to Us NCD Council & Staff
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Case 1:20-cv-02107-JEB Document 1-3 Filed 08/03/20 Page 1 of 2
Exhibit C

Case 1:20-cv-02107-JEB Document 1-3 Filed 08/03/20 Page 2 of 2
March 18, 2020
Stephanie Grisham Director of Communications The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500
Dear Ms. Grisham:
With thanks to the National Council on Disability for their letter today on this issue, the National Association of the Deaf (NAD) also asks that the White House implement immediate action to ensure that all public briefings regarding the coronavirus pandemic by President Donald Trump or the White House Coronavirus Taskforce is fully accessible to all deaf and hard of hearing people in the United States. For this to happen, every such public briefing must have a qualified American Sign Language (ASL) interpreter present and visible on the screen of the broadcast.
From the first White House press conference on this coronavirus, the NAD has received daily complaints from deaf and hard of hearing citizens across the country asking why their President is not ensuring they are getting the same access to emergency information as everyone else. We have been directing their complaints to your office, and join in their concern for the lack of information for our community. Nearly all 50 states’ Governors have had qualified ASL interpreters next to them at their coronavirus public briefings, and we ask the same for the White House.
Further, we ask that you direct the Department of Health and Human Services, as well as their Centers for Disease Control to immediately make all information relating to coronavirus on their websites available in ASL. We have been asking them to create such videos with ASL content for at least two weeks and have yet to see any such videos. Your assistance in this matter is appreciated.
Should you require assistance in securing appropriately qualified ASL interpreters for the White House public briefings, please do not hesitate to contact us at nad.info@nad.org
Sincerely,
Howard A. Rosenblum NAD Chief Executive Officer
CC: Alex Azar – Secretary, Health and Human Services; Chairman, the President's Task Force on the Novel Coronavirus Neil Romano – Chairman, National Council on Disability

Case 1:20-cv-02107-JEB Document 1-4 Filed 08/03/20 Page 1 of 2
Exhibit D

Case 1:20-cv-02107-JEB Document 1-4 Filed 08/03/20 Page 2 of 2
March 27, 2020
The White House 1600 Pennsylvania Avenue NW Washington, DC 20500 Dear White House Press Staff: It has come to the attention of the Linguistic Society of America (LSA), that the requirements of equal language accessibility for all deaf and hard of hearing viewers, during crucial COVID-19 press briefings, are failing to be met. There is a large population of Americans that rely on American Sign Language (ASL) as their primary mode of communication. Please note that solely relying on closed-captioning is not an option for all ASL users, and that a certified sign language interpreter (who must remain visible during the entirety of each briefing) is necessary. Failing to provide this method of communication leaves many deaf and hard of hearing Americans vulnerable due to the inevitability of a communication breakdown. Please review best practices for effective communication at emergency press briefings. Information shared about this serious disease outbreak must be made accessible at the time of the release, not afterwards. Failing to make this information available in ASL means that deaf people are not getting the same important information about health and safety. We are requesting that The White House staff provide a certified and qualified sign language interpreter for ALL news and announcements involving COVID-19 messaging. This is not only the right thing to do but is also required by federal law, pursuant to the Americans with Disabilities Act and the Rehabilitation Act of 1973. Like everyone else, the deaf community is concerned about this outbreak but is often the last to know about vital updates, due to lack of equal and rightful communication access. Sincerely,
Alyson Reed Executive Director CC: SUBMIT@NAD.ORG
Archibald A. Hill Suite, 522 21st St. NW #120, Washington, DC 20006-5012 Tel: 202 835-1714; Fax: 202 835-1717; www.linguisticsociety.org; e-mail: lsa@lsadc.org

Case 1:20-cv-02107-JEB Document 1-5 Filed 08/03/20 Page 1 of 3
Exhibit E

Case 1:20-cv-02107-JEB Document 1-5 Filed 08/03/20 Page 2 of 3
April 21, 2020
The Honorable Mike Pence Vice President of the United States White House Coronavirus Task Force The White House 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500
Dear Vice President Pence: We write to request that the White House Coronavirus Task Force use qualified, fully-visible American Sign Language (ASL) interpreters during public briefings on the coronavirus. Deaf and hard of hearing Americans across the country have expressed their frustration about inaccessible information due to the lack of interpreters on screen. They are not receiving access to public health information from Task Force briefings as they broadcast live. Closed captioning is accessible to many deaf and hard of hearing people, but many other deaf or hard of hearing people use ASL as their primary language and it is a language of its own distinct from English. Many of them are not able to understand anything released by the White House. During this public health crisis, if any group is at risk, we are all at risk. The National Council on Disability, the independent federal agency tasked with making recommendations on federal disability policy, and many organizations and advocacy groups, including the National Association of the Deaf, have also called upon the White House to include ASL interpreters at daily briefings. While all 50 Governors across the country include ASL interpreters during their coronavirus briefings, the White House has yet to incorporate this important accessibility in their coronavirus updates during this public health crisis. Over a month ago, on March 12, 34 Senators sent you a letter (attached) and asked you and the Task Force to ensure that American Sign Language interpreters are available during all public briefings and communications. The Senators have not received a response from you or the Task Force, and ASL interpreters have not been present at the briefings. The coronavirus poses increased threats and barriers to individuals with disabilities – receiving vital public health information from the federal government should not be one of them. We must
1

Case 1:20-cv-02107-JEB Document 1-5 Filed 08/03/20 Page 3 of 3

ensure that every group has equal access to public health information to help our communities across the country prevent any further spread of this virus.
We look forward to your response.
Sincerely,

/s/Sherrod Brown _________________________ Sherrod Brown United States Senator

/s/Bob Casey _________________________ Robert P. Casey Jr. United States Senator

/s/Donna Shalala _________________________ Donna Shalala United States Representative
cc: Dr. Deborah L. Birx Coronavirus Response Coordinator White House Coronavirus Task Force

2

Case 1:20-cv-02107-JEB Document 1-6 Filed 08/03/20 Page 1 of 2

JS-44 (Rev. 6/17 DC)

CIVIL COVER SHEET

I. (a) PLAINTIFFS National Association of the Deaf; Graham Forsey; Carlton Strail; Debra Fleetwood; John Rivera, Jr.; Corey Axelrod

DEFENDANTS Donald J. Trump, in his official capacity as President of the United States; Executive Office of the President; The White House Office; Office of the Vice President; Kayleigh McEnany, in her official capacity as Press Secretary to the President of the United States.

(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF _____________________ (EXCEPT IN U.S. PLAINTIFF CASES)

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT _1_1__0__0_1______________
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED

(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)
Ian S. Hoffman, Nora Ellingsen, ARNOLD & PORTER KAYE SCHOLER LLP, 601 Massachusetts Avenue NW, Washington, DC, 20001

ATTORNEYS (IF KNOWN)

Marc Charmatz, NAD LAW AND ADVOCACY CENTER, 8630 Fenton Street, Suite 820, Silver Spring, MD, 20910

II. BASIS OF JURISDICTION
(PLACE AN x IN ONE BOX ONLY)

o 1 U.S. Government Plaintiff

o 3 Federal Question (U.S. Government Not a Party)

o 2 U.S. Government Defendant

o 4 Diversity (Indicate Citizenship of Parties in item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX FOR

PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY!

PTF

DFT

PTF

Citizen of this State

o o o 1

1 Incorporated or Principal Place

4

of Business in This State

o o o Citizen of Another State

2

2 Incorporated and Principal Place

5

Citizen or Subject of a Foreign Country

o 3

of Business in Another State
o 3 Foreign Nation

o 6

DFT
o 4
o 5
o 6

IV. CASE ASSIGNMENT AND NATURE OF SUIT
(Place an X in one category, A-N, that best represents your Cause of Action and one in a corresponding Nature of Suit)

o A. Antitrust
410 Antitrust

o B. Personal Injury/
Malpractice

o C. Administrative Agency
Review

310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Medical Malpractice 365 Product Liability 367 Health Care/Pharmaceutical
Personal Injury Product Liability 368 Asbestos Product Liability

151 Medicare Act
Social Security 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
Other Statutes 891 Agricultural Acts 893 Environmental Matters 890 Other Statutory Actions (If Administrative Agency is Involved)

o D. Temporary Restraining
Order/Preliminary Injunction
Any nature of suit from any category may be selected for this category of case assignment.
*(If Antitrust, then A governs)*

o E. General Civil (Other)
Real Property 210 Land Condemnation 220 Foreclosure 230 Rent, Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property
Personal Property 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability

OR

o F. Pro Se General Civil

Bankruptcy 422 Appeal 27 USC 158 423 Withdrawal 28 USC 157
Prisoner Petitions 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Conditions 560 Civil Detainee – Conditions of Confinement
Property Rights 820 Copyrights 830 Patent 835 Patent – Abbreviated New Drug Application 840 Trademark

Federal Tax Suits 870 Taxes (US plaintiff or defendant) 871 IRS-Third Party 26 USC 7609
Forfeiture/Penalty 625 Drug Related Seizure of Property 21 USC 881 690 Other
Other Statutes 375 False Claims Act 376 Qui Tam (31 USC 3729(a)) 400 State Reapportionment 430 Banks & Banking 450 Commerce/ICC Rates/etc. 460 Deportation

462 Naturalization Application
465 Other Immigration Actions
470 Racketeer Influenced & Corrupt Organization
480 Consumer Credit 490 Cable/Satellite TV 850 Securities/Commodities/
Exchange 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes 890 Other Statutory Actions (if not administrative agency review or Privacy Act)

Case 1:20-cv-02107-JEB Document 1-6 Filed 08/03/20 Page 2 of 2

o G. Habeas Corpus/
2255
530 Habeas Corpus – General 510 Motion/Vacate Sentence 463 Habeas Corpus – Alien
Detainee

o H. Employment
Discrimination
442 Civil Rights – Employment (criteria: race, gender/sex, national origin, discrimination, disability, age, religion, retaliation)

o I. FOIA/Privacy Act

o J. Student Loan

895 Freedom of Information Act 890 Other Statutory Actions
(if Privacy Act)

152 Recovery of Defaulted Student Loan (excluding veterans)

o K. Labor/ERISA
(non-employment)
710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 740 Labor Railway Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

*(If pro se, select this deck)*
o L. Other Civil Rights
(non-employment)
441 Voting (if not Voting Rights Act)
443 Housing/Accommodations 440 Other Civil Rights 445 Americans w/Disabilities –
Employment 446 Americans w/Disabilities –
Other 448 Education

*(If pro se, select this deck)*
o M. Contract
110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholder’s Suits 190 Other Contracts 195 Contract Product Liability 196 Franchise

o N. Three-Judge
Court
441 Civil Rights – Voting (if Voting Rights Act)

V. ORIGIN
o 1 Original Proceeding

o 2 Removed from State Court

o 3 Remanded from Appellate Court

o 4 Reinstated or Reopened

o 5 Transferred from another district (specify)

o 6 Multi-district Litigation

o 7 Appeal to District Judge from Mag. Judge

o 8 Multi-district Litigation – Direct File

VI. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE.) 29 U.S.C. §794 (and others) based on failure to provide ASL interpretation for deaf viewers of televised COVID-19 briefings.

VII. REQUESTED IN COMPLAINT

CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DEMAND $ JURY DEMAND:

Check YES only if demanded in complaint
YES  NO

VIII. RELATED CASE(S) IF ANY
DATE: ________8__/3__/_2_0_2__0________

(See instruction)

YES

NO 

If yes, please complete related case form

SIGNATURE OF ATTORNEY OF RECORD ___________________/_s_/_I_a_n__S__.__H_o__ff_m__a__n___________________

INSTRUCTIONS FOR COMPLETING CIVIL COVER SHEET JS-44 Authority for Civil Cover Sheet

The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and services of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the cover sheet.

I.

COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence: Use 11001 to indicate plaintiff if resident

of Washington, DC, 88888 if plaintiff is resident of United States but not Washington, DC, and 99999 if plaintiff is outside the United States.

III.

CITIZENSHIP OF PRINCIPAL PARTIES: This section is completed only if diversity of citizenship was selected as the Basis of Jurisdiction

under Section II.

IV.

CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case will depend on the category you select that best

represents the primary cause of action found in your complaint. You may select only one category. You must also select one corresponding

nature of suit found under the category of the case.

VI.

CAUSE OF ACTION: Cite the U.S. Civil Statute under which you are filing and write a brief statement of the primary cause.

VIII.

RELATED CASE(S), IF ANY: If you indicated that there is a related case, you must complete a related case form, which may be obtained from the Clerk’s Office.

Because of the need for accurate and complete information, you should ensure the accuracy of the information provided prior to signing the form.

Case 1:20-cv-02107-JEB Document 1-7 Filed 08/03/20 Page 1 of 2

AO 440 (Rev. 06/12; DC 3/15) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D_i_s_triDctisotfriCctooluf m__b_ia_______

NATIONAL ASSOCIATION OF THE DEAF, et al.,
Plaintiff(s)
v. DONALD J. TRUMP, in his official capacity as
President of the United States, et al.,
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 20-cv-2107

)

)

)

)

)

SUMMONS IN A CIVIL ACTION Donald J. Trump, in his official capacity as President of the United States, To: (Defendant’s name and address) 1600 Pennsylvania Avenue NW, Washington, DC 20500

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

Ian S. Hoffman Arnold & Porter Kaye Scholer LLP 601 Massachusetts Avenue NW Washington, DC 20001

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

ANGELA D. CAESAR, CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:20-cv-02107-JEB Document 1-7 Filed 08/03/20 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 20-cv-2107
PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:20-cv-02107-JEB Document 1-8 Filed 08/03/20 Page 1 of 2

AO 440 (Rev. 06/12; DC 3/15) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D_i_s_triDctisotfriCctooluf m__b_ia_______

NATIONAL ASSOCIATION OF THE DEAF, et al.,
Plaintiff(s)
v. DONALD J. TRUMP, in his official capacity as
President of the United States, et al.,
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 20-cv-2107

)

)

)

)

)

SUMMONS IN A CIVIL ACTION Executive Office of the President, To: (Defendant’s name and address) 1600 Pennsylvania Avenue NW, Washington, DC 20500

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

Ian S. Hoffman Arnold & Porter Kaye Scholer LLP 601 Massachusetts Avenue NW Washington, DC 20001

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

ANGELA D. CAESAR, CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:20-cv-02107-JEB Document 1-8 Filed 08/03/20 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 20-cv-2107
PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:20-cv-02107-JEB Document 1-9 Filed 08/03/20 Page 1 of 2

AO 440 (Rev. 06/12; DC 3/15) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the _______D_i_s_triDctisotfriCctooluf m__b_ia_______

NATIONAL ASSOCIATION OF THE DEAF, BERTHA LEWIS, CARLTON STRAIL, DEBRA FLEETWOOD,
JOHN RIVERA, JR., and COREY AXELROD

) )

)

)

Plaintiff(s)
v. DONALD J. TRUMP, in his official capacity as
President of the United States, et al.,

)

) )

Civil Action No. 20-cv-2107

)

)

)

)

Defendant(s)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

The White House Office, 1600 Pennsylvania Avenue NW,

Washington, DC 20500

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

Ian S. Hoffman Arnold & Porter Kaye Scholer LLP 601 Massachusetts Avenue NW Washington, DC 20001

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

ANGELA D. CAESAR, CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:20-cv-02107-JEB Document 1-9 Filed 08/03/20 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 20-cv-2107

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:20-cv-02107-JEB Document 1-10 Filed 08/03/20 Page 1 of 2

AO 440 (Rev. 06/12; DC 3/15) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D_i_s_triDctisotfriCctooluf m__b_ia_______

NATIONAL ASSOCIATION OF THE DEAF, et al.,
Plaintiff(s)
v. DONALD J. TRUMP, in his official capacity as
President of the United States, et al.,
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 20-cv-2107

)

)

)

)

)

SUMMONS IN A CIVIL ACTION Office of the Vice President, To: (Defendant’s name and address) 1600 Pennsylvania Avenue NW, Washington, DC 20500

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

Ian S. Hoffman Arnold & Porter Kaye Scholer LLP 601 Massachusetts Avenue NW Washington, DC 20001

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

ANGELA D. CAESAR, CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:20-cv-02107-JEB Document 1-10 Filed 08/03/20 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 20-cv-2107
PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

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Case 1:20-cv-02107-JEB Document 1-11 Filed 08/03/20 Page 1 of 2

AO 440 (Rev. 06/12; DC 3/15) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D_i_s_triDctisotfriCctooluf m__b_ia_______

NATIONAL ASSOCIATION OF THE DEAF, et al.,
Plaintiff(s)
v. DONALD J. TRUMP, in his official capacity as
President of the United States, et al.,
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 20-cv-2107

)

)

)

)

)

SUMMONS IN A CIVIL ACTION Kayleigh McEnany, in her official capacity as Press Secretary to the President of the To: (Defendant’s name and address) United States 1600 Pennsylvania Avenue NW, Washington, DC 20500

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

Ian S. Hoffman Arnold & Porter Kaye Scholer LLP 601 Massachusetts Avenue NW Washington, DC 20001

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

ANGELA D. CAESAR, CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 1:20-cv-02107-JEB Document 1-11 Filed 08/03/20 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 20-cv-2107
PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

 
 APPEAL,JURY,STAYED,TYPE-D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-02107-JEB

NATIONAL ASSOCIATION OF THE DEAF et al v. TRUMP et al Assigned to: Judge James E. Boasberg Case in other court: USCA, 20-05349 Cause: 29:0794 Job Discrimination (Handicap)

Date Filed: 08/03/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
NATIONAL ASSOCIATION OF THE DEAF

represented by Ian S. Hoffman ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave, NW Washington, DC 20001 202-942-6406 Fax: 202-942-5999 Email: ian.hoffman@arnoldporter.com ATTORNEY TO BE NOTICED

Plaintiff GRAHAM FORSEY

represented by Ian S. Hoffman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff CARLTON STRAIL

represented by Ian S. Hoffman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff DEBRA FLEETWOOD

represented by Ian S. Hoffman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

JOHN RIVERA, JR.
Plaintiff COREY AXELROD

represented by Ian S. Hoffman (See above for address) ATTORNEY TO BE NOTICED
represented by Ian S. Hoffman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant DONALD J. TRUMP in his official capacity as President of the United States
Defendant

represented by Amber Richer U.S. DEPARTMENT OF JUSTICE 1100 L St NW Washington, DC 20005 202-514-3489 Email: amber.richer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlotta Porter Wells U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Suite 11102 Washington, DC 20530 (202) 514-4522 Fax: (202) 616-8470 Email: carlotta.wells@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Michael Morrell U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave. NW Suite 3131 Washington, DC 20530 202-514-2331 Email: david.m.morrell@usdoj.gov TERMINATED: 09/11/2020

EXECUTIVE OFFICE OF THE PRESIDENT
Defendant WHITE HOUSE OFFICE
Defendant OFFICE OF THE VICE PRESIDENT
Defendant

represented by Amber Richer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlotta Porter Wells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Michael Morrell (See above for address) TERMINATED: 09/11/2020
represented by Amber Richer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlotta Porter Wells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Michael Morrell (See above for address) TERMINATED: 09/11/2020
represented by Amber Richer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlotta Porter Wells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Michael Morrell (See above for address) TERMINATED: 09/11/2020

KAYLEIGH MCENANY in her official capacity as Press Secretary to the President of the United States

represented by Amber Richer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carlotta Porter Wells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Michael Morrell (See above for address) TERMINATED: 09/11/2020

Date Filed

#

08/03/2020 1

08/03/2020 2

Docket Text
COMPLAINT against All Defendants with Jury Demand ( Filing fee $ 400 receipt number ADCDC-7416200) filed by COREY AXELROD, CARLTON STRAIL, GRAHAM FORSEY, DEBRA FLEETWOOD, NATIONAL ASSOCIATION OF THE DEAF, JOHN RIVERA, JR.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Civil Cover Sheet, # 7 Summons Donald J. Trump, in his official capacity as President of the United States, # 8 Summons Executive Office of the President, # 9 Summons The White House Office, # 10 Summons Office of the Vice President, # 11 Summons Kayleigh McEnany, in her official capacity as Press Secretary to the President of the United States)(Hoffman, Ian) (Entered: 08/03/2020)
MOTION for Preliminary Injunction by COREY AXELROD, DEBRA FLEETWOOD, GRAHAM FORSEY, NATIONAL ASSOCIATION OF THE DEAF, JOHN RIVERA, JR., CARLTON
STRAIL (Attachments: # 1 Memorandum in Support, # 2
Text of Proposed Order, # 3 Declaration of John Rivera,
Jr., # 4 Declaration of Debra Fleetwood, # 5 Declaration
of Corey Axelrod, # 6 Declaration of Carlton Strail, # 7
Declaration of Graham Forsey, # 8 Declaration of
Howard A. Rosenblum, # 9 Exhibit A, # 10 Exhibit B,

08/03/2020 08/03/2020 08/03/2020
08/03/2020 08/03/2020 08/04/2020
08/04/2020 08/05/2020

# 11 Exhibit C, # 12 Exhibit D, # 13 E)(Hoffman, Ian) (Entered: 08/03/2020)

Exhibit

3 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by NATIONAL ASSOCIATION OF THE DEAF (Hoffman, Ian) (Entered: 08/03/2020)

Case Assigned to Judge James E. Boasberg. (adh, ) (Entered: 08/03/2020)

4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Marc P. Charmatz, Filing fee $ 100, receipt number ADCDC-7416902. Fee Status: Fee Paid. by COREY AXELROD, DEBRA FLEETWOOD, GRAHAM FORSEY, NATIONAL ASSOCIATION OF THE DEAF, JOHN RIVERA, JR., CARLTON STRAIL (Attachments: # 1 Declaration of Marc P. Charmatz in Support of Motion for Admission Pro Hac Vice, # 2 Text of Proposed Order)(Hoffman, Ian) (Entered: 08/03/2020)

5 SUMMONS (5) Issued Electronically as to EXECUTIVE OFFICE OF THE PRESIDENT, KAYLEIGH MCENANY, OFFICE OF THE VICE PRESIDENT, THE WHITE HOUSE OFFICE, DONALD J. TRUMP. (Attachment: # 1 Notice and Consent) (ztth) (Entered: 08/03/2020)

MINUTE ORDER GRANTING 4 Motion for Admission Pro Hac Vice of MARC P. CHARMATZ. So ORDERED by Judge James E. Boasberg on 08/03/2020. (lcjeb2) (Entered: 08/03/2020)

MINUTE ORDER: The Court ORDERS that a conference call is hereby set for Wednesday, August 5, at 2:00 p.m. to discuss a

briefing schedule regarding Plaintiffs' 2 Motion for Preliminary Injunction. The Court ORDERS that the parties shall dial into Chambers' toll-free conference-call number, (877) 4029753, at this time. Chambers will contact the parties via email with the dial-in code. So ORDERED by Judge James E. Boasberg on 08/04/2020. (lcjeb2) (Entered: 08/04/2020)

Set/Reset Hearings: Status Conference set for 8/5/2020 at 02:00 PM in Telephonic/VTC before Judge James E. Boasberg. (znbn) (Entered: 08/05/2020)

6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon

08/05/2020 08/05/2020
08/05/2020 08/13/2020
08/13/2020 08/13/2020 08/14/2020

United States Attorney on 8/4/2020. Answer due for ALL FEDERAL DEFENDANTS by 10/3/2020. (Hoffman, Ian) (Entered: 08/05/2020)
7 NOTICE of Appearance by Amber Richer on behalf of All Defendants (Richer, Amber) (Entered: 08/05/2020)
MINUTE ORDER: As discussed in today's scheduling hearing, the Court ORDERS that: 1) Defendants' PI Opposition shall be due by August 13, 2020; 2) Plaintiffs' Reply shall be due by August 19, 2020; and 3) The parties shall appear for video hearing on August 26, 2020, at 11:00 a.m. So ORDERED by Judge James E. Boasberg on 08/05/2020. (lcjeb2) (Entered: 08/05/2020)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 8/5/2020. Opposition due by 8/13/2020. Reply due by 8/19/2020. Motion Hearing set for 8/26/2020 at 11:00 AM in Telephonic/VTC before Judge James E. Boasberg. (Court Reporter Lisa Griffith) (znbn) (Entered: 08/05/2020)
8 Unopposed MOTION for Extension of Time to File
Response/Reply as to 2 MOTION for Preliminary Injunction by EXECUTIVE OFFICE OF THE PRESIDENT, KAYLEIGH MCENANY, OFFICE OF THE VICE PRESIDENT, DONALD J. TRUMP, WHITE HOUSE OFFICE (Richer, Amber) (Entered: 08/13/2020)
MINUTE ORDER GRANTING Defendants' 8 Motion for Extension of Time. The Court ORDERS that 1) Defendants shall file their opposition by August 14, 2020; and 2) Plaintiffs shall file their reply by August 20, 2020. So ORDERED by Judge James E. Boasberg on 08/13/2020. (lcjeb2) (Entered: 08/13/2020)
Set/Reset Deadlines: Responses due by 8/14/2020. Replies due by 8/20/2020. (znbn) (Entered: 08/14/2020)

9

Memorandum in opposition to re 2 MOTION for Preliminary

Injunction filed by EXECUTIVE OFFICE OF THE PRESIDENT,

KAYLEIGH MCENANY, OFFICE OF THE VICE PRESIDENT,

DONALD J. TRUMP, WHITE HOUSE OFFICE. (Attachments:

# 1 Declaration, # 2 Text of Proposed Order)(Richer, Amber) (Entered: 08/14/2020)

08/19/2020

10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. WHITE HOUSE OFFICE served on 8/12/2020 (Hoffman, Ian) (Entered: 08/19/2020)

08/20/2020 11

REPLY to opposition to motion re 2 MOTION for Preliminary Injunction filed by COREY AXELROD, DEBRA FLEETWOOD, GRAHAM FORSEY, NATIONAL ASSOCIATION OF THE DEAF, JOHN RIVERA, JR., CARLTON STRAIL. (Hoffman, Ian) (Entered: 08/20/2020)

08/24/2020

12 NOTICE of Appearance by David Michael Morrell on behalf of All Defendants (Morrell, David) (Entered: 08/24/2020)

08/26/2020

Minute Entry for proceedings held before Judge James E. Boasberg:

Motion Hearing held on 8/26/2020 re 2 MOTION for Preliminary Injunction filed by CARLTON STRAIL, JOHN RIVERA, JR., DEBRA FLEETWOOD, NATIONAL ASSOCIATION OF THE DEAF, COREY AXELROD, GRAHAM FORSEY. Oral arguments heard and motion taken under advisement. (Court Reporter Lisa Griffith) (znbn) (Entered: 08/26/2020)

08/28/2020

13 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 8-26-2020; Page Numbers: 1-55. Date of Issuance:8-28-2020. Court Reporter/Transcriber Lisa W Griffith, Telephone number 202-354-3247, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced abo ve. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 9/18/2020. Redacted Transcript Deadline set for 9/28/2020. Release of Transcript Restriction set for 11/26/2020.(Griffith, Lisa) (Entered: 08/28/2020)

08/28/2020

14 Unopposed MOTION for Extension of Time to File Supplemental Declaration by EXECUTIVE OFFICE OF THE PRESIDENT, KAYLEIGH MCENANY, OFFICE OF THE VICE PRESIDENT, DONALD J. TRUMP, WHITE HOUSE OFFICE (Attachments: # 1 Text of Proposed Order)(Wells, Carlotta) (Entered: 08/28/2020)

08/31/2020

MINUTE ORDER GRANTING 14 Motion for Extension of Time. The Court ORDERS that Defendants shall file their supplemental declaration by August 31, 2020. So ORDERED Judge James E. Boasberg on 08/31/2020. (lcjeb3) (Entered: 08/31/2020)

08/31/2020

15 NOTICE of Filing of Supplemental Declaration by EXECUTIVE OFFICE OF THE PRESIDENT, KAYLEIGH MCENANY, OFFICE OF THE VICE PRESIDENT, DONALD J. TRUMP, WHITE HOUSE OFFICE (Attachments: # 1 Exhibit)(Wells, Carlotta) (Entered: 08/31/2020)

08/31/2020

Set/Reset Deadlines: Supplemental Declaration due by 8/31/2020. (znbn) (Entered: 08/31/2020)

08/31/2020

16 RESPONSE re 15 Notice (Other) of Filing of Supplemental Declaration filed by COREY AXELROD, DEBRA FLEETWOOD, GRAHAM FORSEY, NATIONAL ASSOCIATION OF THE DEAF, JOHN RIVERA, JR., CARLTON STRAIL. (Hoffman, Ian) (Entered: 08/31/2020)

09/09/2020

17 ORDER: The Court ORDERS that: 1) Plaintiffs' 2 Motion for a Preliminary Injunction is GRANTED IN PART and DENIED IN PART; 2) This Order is STAYED until the Court determines the precise remedy; and 3) The Parties shall appear for a hearing on September 17, 2020, at 12:00 PM, to discuss the remedy. Signed by Judge James E. Boasberg on 09/09/2020. (lcjeb3) Modified on 9/9/2020 (znbn). (Entered: 09/09/2020)

09/09/2020 18

MEMORANDUM OPINION re 17 Order on Motion for a Preliminary Injunction. Signed by Judge James E. Boasberg on 09/09/2020. (lcjeb3) (Entered: 09/09/2020)

09/11/2020

Set/Reset Hearings: Hearing set for 9/17/2020 at 12:00 PM in Telephonic/VTC before Judge James E. Boasberg. (znbn) (Entered: 09/11/2020)

09/11/2020

19 NOTICE OF WITHDRAWAL OF APPEARANCE as to EXECUTIVE OFFICE OF THE PRESIDENT, KAYLEIGH MCENANY, OFFICE OF THE VICE PRESIDENT, DONALD J. TRUMP, WHITE HOUSE OFFICE. Attorney David Michael Morrell terminated. (Morrell, David) (Entered: 09/11/2020)

09/16/2020

20 NOTICE of Appearance by Amber Richer on behalf of All Defendants (Richer, Amber) (Entered: 09/16/2020)

09/17/2020

Minute Entry for proceedings held before Judge James E. Boasberg:

Motion Hearing held on 9/17/2020 re 2 MOTION for Preliminary Injunction filed by CARLTON STRAIL, JOHN RIVERA, JR., DEBRA FLEETWOOD, NATIONAL ASSOCIATION OF THE DEAF, COREY AXELROD, GRAHAM FORSEY. (Court Reporter Lisa Griffith) (znbn) (Entered: 09/17/2020)

09/17/2020

MINUTE ORDER: As discussed in today's telephonic hearing, the Court ORDERS that: 1) By September 22, 2020, the parties shall submit a joint proposed injunction Order; and 2) All other deadlines in the case are STAYED until further Order of the Court. So ORDERED by Judge James E. Boasberg on 09/17/2020. (lcjeb3) (Entered: 09/17/2020)

09/17/2020

Set/Reset Deadlines: Parties shall submit a joint proposed injunction by 9/22/2020. (znbn) (Entered: 09/18/2020)

09/22/2020

21 NOTICE of Proposed Order Joint Notice of Filing Joint Proposed Injunction Order by COREY AXELROD, DEBRA FLEETWOOD, GRAHAM FORSEY, NATIONAL ASSOCIATION OF THE DEAF, JOHN RIVERA, JR., CARLTON STRAIL (Hoffman, Ian) (Entered: 09/22/2020)

09/23/2020 22

ORDER: The Court ORDERS that Plaintiffs' 2 Motion for a Preliminary Injunction is GRANTED IN PART and DENIED IN PART. Signed by Judge James E. Boasberg on 09/23/2020. (lcjeb3) (Entered: 09/23/2020)

10/06/2020

23 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 9-17-2020; Page Numbers: 1-31. Date of Issuance:10-6-2020. Court Reporter/Transcriber Lisa Griffith, Telephone number (202)354-3247, Transcripts may be ordered by submitting the Transcript Order Form. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced

10/08/2020 10/08/2020 10/15/2020
10/16/2020 10/16/2020 11/20/2020
11/20/2020

above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 10/27/2020. Redacted Transcript Deadline set for 11/6/2020. Release of Transcript Restriction set for 1/4/2021.(Griffith, Lisa) (Entered: 10/06/2020)
MINUTE ORDER: The Court ORDERS that the parties shall file a Joint Status Report by October 15, 2020, regarding proposed next steps in the litigation. So ORDERED by Judge James E. Boasberg on 10/08/2020. (lcjeb2) (Entered: 10/08/2020)
Set/Reset Deadlines: Joint Status Report due by 10/15/2020. (nbn) (Entered: 10/09/2020)
24 Joint STATUS REPORT by COREY AXELROD, DEBRA FLEETWOOD, GRAHAM FORSEY, NATIONAL ASSOCIATION OF THE DEAF, JOHN RIVERA, JR., CARLTON STRAIL. (Attachments: # 1 Text of Proposed Order)(Hoffman, Ian) (Entered: 10/15/2020)
MINUTE ORDER: Per the parties' 24 Joint Status Report, the Court ORDERS that Defendants shall respond to the Complaint by November 23, 2020. So ORDERED by Judge James E. Boasberg on 10/16/2020. (lcjeb3) (Entered: 10/16/2020)
Set/Reset Deadlines: Responses due by 11/23/2020. (znbn) (Entered: 10/16/2020)
25 Consent MOTION for Extension of Time to Respond to Complaint by EXECUTIVE OFFICE OF THE PRESIDENT, KAYLEIGH MCENANY, OFFICE OF THE VICE PRESIDENT, DONALD J. TRUMP, WHITE HOUSE OFFICE (Richer, Amber) (Entered: 11/20/2020)
MINUTE ORDER GRANTING Consent 25 Motion for Extension of Time. The Court ORDERS that Defendants shall file their Answer or otherwise respond to Plaintiffs' Complaint by January 22, 2021. So ORDERED by Judge James E. Boasberg on 11/20/2020. (lcjeb2) (Entered: 11/20/2020)

11/20/2020

Set/Reset Deadlines: Answer or otherwise respond by 1/22/2021. (znbn) (Entered: 11/23/2020)

11/23/2020

26 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 22

Order, 18 Memorandum & Opinion by KAYLEIGH MCENANY, DONALD J. TRUMP, WHITE HOUSE OFFICE, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT. Fee Status: No Fee Paid. Parties have been notified. (Richer, Amber) (Entered: 11/23/2020)

11/24/2020

27 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 26 Notice of Appeal to DC Circuit Court. (zrdj) (Entered: 11/24/2020)

11/25/2020

USCA Case Number 20-5349 for 26 Notice of Appeal to DC Circuit Court, filed by OFFICE OF THE VICE PRESIDENT, DONALD J. TRUMP, KAYLEIGH MCENANY, WHITE HOUSE OFFICE, EXECUTIVE OFFICE OF THE PRESIDENT. (zrdj) (Entered: 11/25/2020)

01/22/2021 28

Consent MOTION to Stay Proceedings Pending Appeal by EXECUTIVE OFFICE OF THE PRESIDENT, KAYLEIGH MCENANY, OFFICE OF THE VICE PRESIDENT, DONALD J. TRUMP, WHITE HOUSE OFFICE. (Richer, Amber) (Entered: 01/22/2021)

01/22/2021

MINUTE ORDER GRANTING Consent 28 Motion to Stay. The Court ORDERS that: (1) Further proceedings in this case shall be STAYED pending resolution of Defendants' appeal from this Court's Order granting Plaintiffs' motion for preliminary injunction; and (2) The parties shall file a joint status report within 7 days of the resolution of the appeal. So ORDERED by Judge James E. Boasberg on 1/22/2021. (lcjeb2) (Entered: 01/22/2021)

01/22/2021

Case Stayed. (znbn) (Entered: 01/22/2021)

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 Case 1:20-cv-02107-JEB Document 2 Filed 08/03/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION OF THE DEAF, et al.,
Plaintiffs,

v.

Civil Action No. 20-cv-2107

DONALD J. TRUMP, et al.,

Defendants.

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION AND REQUEST FOR HEARING
Pursuant to Rule 65 of the Federal Rules of Civil Procedure and Local Rule 65.1, Plaintiffs National Association of the Deaf, Carlton Strail, Graham Forsey, Debra Fleetwood, John Rivera, Jr., and Corey Axelrod, by and through their attorneys, respectfully move for a preliminary injunction requiring Defendants Donald J. Trump, in his official capacity as President of the United States, Executive Office of the President, White House Office, Office of the Vice President, and Kayleigh McEnany, in her official capacity as Press Secretary, to immediately begin providing live televised in-frame ASL interpretations for all public briefings conducted by any Defendant that address issues concerning the COVID-19 pandemic, including all such briefings involving President Trump, Vice President Pence, Press Secretary McEnany, and/or any members of the White House Coronavirus Task Force.
Pursuant to Local Rule 65.1, Plaintiffs respectfully request that the Court set a briefing schedule as follows: Defendants’ response to Plaintiff’s Motion for Preliminary Injunction shall be due on August 10, 2020, and Plaintiffs’ Reply shall be due on August 14, 2020. Plaintiffs further request that the Court set a hearing on this motion at the Court’s earliest convenience

Case 1:20-cv-02107-JEB Document 2 Filed 08/03/20 Page 2 of 3
after Plaintiffs submit their reply, but in any event no later than August 24, 2020. See Local Rule 65.1(c).
As explained in the accompanying Memorandum of Law in Support of Plaintiffs’ Motion for a Preliminary Injunction, expedited treatment is appropriate to ensure that Plaintiffs have access to critical, potentially life-saving information conveyed by our nation’s political and public health leaders during the COVID-19 pandemic. Absent a preliminary injunction requiring live televised in-frame ASL interpretations for all public briefings concerning the COVID-19 pandemic, Plaintiffs will be “denied timely access to this critical information, leaving them less able to comply with current orders and advice, less able to prepare for the future, and more anxious about current conditions and the future.” Martinez v. Cuomo, No. 20-CV-3338 (VEC), 2020 WL 2393285, at *6 (S.D.N.Y. May 12, 2020) (granting motion or preliminary injunction and ordering Governor Cuomo to immediately implement in-frame ASL interpretation during his daily briefings). Accordingly, Plaintiffs respectfully request expedited treatment of this Motion.
2

Case 1:20-cv-02107-JEB Document 2 Filed 08/03/20 Page 3 of 3

Dated: August 3, 2020

/s/ Ian S. Hoffman Ian S. Hoffman (D.C. Bar No. 983419) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Avenue NW Washington, DC 20001-3743 Telephone: (202) 942-5000 Fax: (202) 942-5999
/s/ Marc Charmatz Marc Charmatz** NAD Law and Advocacy Center 86 30 Fenton Street, Suite 820 Silver Spring, MD 20910 Telephone: (301) 587-1788 Fax: (301) 587-1791
**pro hac vice motion pending
Counsel for Plaintiffs

3

Case 1:20-cv-02107-JEB Document 2-1 Filed 08/03/20 Page 1 of 26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION OF THE DEAF, et al., Plaintiffs,

v. DONALD J. TRUMP, et al.,

Civil Action No. 20-cv-2107

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:20-cv-02107-JEB Document 2-1 Filed 08/03/20 Page 2 of 26
TABLE OF CONTENTS Page
INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3
A. The White House’s COVID-19 Briefings................................................................3 B. Deaf Americans’ Inability to Access the White House’s COVID-19
Briefings ...................................................................................................................5 C. Plaintiffs’ Inability to Access the White House’s COVID-19 Briefings .................8 ARGUMENT ................................................................................................................................ 10 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ................................... 11 A. Plaintiffs Are Likely to Succeed on Their Rehabilitation Act Claim ....................11 B. Alternatively, Plaintiffs Are Likely to Succeed on Their Claim for
Mandamus ..............................................................................................................15 II. PLAINTIFFS ARE LIKELY TO SUFFFER IRREPARABLE HARM IF A
PRELIMINARY INJUNCTION IS NOT GRANTED..................................................... 17 III. THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST WEIGH HEAVILY IN
FAVOR OF PLAINTIFFS................................................................................................ 19 CONCLUSION............................................................................................................................. 20 REQUEST FOR EXPEDITED TREATMENT............................................................................ 20
ii

Case 1:20-cv-02107-JEB Document 2-1 Filed 08/03/20 Page 3 of 26
TABLE OF AUTHORITIES
Page(s)
Cases
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) ...............................................................................................10
Alexander v. Choate, 469 U.S. 287 (1985).................................................................................................................11
Am. Council of Blind v. Paulson, 463 F. Supp. 2d 51 (D.D.C. 2006) ...........................................................................................11
Am. Council of Blind v. Paulson, 525 F.3d 1256 (D.C. Cir. 2008) ...............................................................................................12
Brooklyn Center for Independence of the Disabled v. Bloomberg, 980 F. Supp. 2d 588 (S.D.N.Y. 2013)......................................................................................14
Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419, Bhd. of Painters & Allied Trades, AFL-CIO v. Brown, 656 F.2d 564 (10th Cir. 1981) .................................................................................................16
Davis v. Billington, 76 F. Supp. 3d 59 (D.D.C. 2014) .......................................................................................10, 11
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) ...............................................................................................10
Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 266 F. Supp. 3d 297 (D.D.C. 2017) .........................................................................................18
Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005) ...................................................................................................15
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)...................................................................................................................9
Greater L.A. Council on Deafness, Inc. v. Baldrige, 827 F.2d 1353 (9th Cir. 1987) .................................................................................................16
Henrietta D. Bloomberg, 331 F.3d 261 (2d Cir. 2003).....................................................................................................14
In re Aiken Cty., 725 F.3d 255 (D.C. Cir. 2013) .................................................................................................16 iii

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Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 736 F. Supp. 2d 24 (D.D.C. 2010) ...........................................................................................16
Kirwa v. U.S. Dep’t of Def., 285 F. Supp. 3d 21 (D.D.C. 2017) ...........................................................................................17
*Martinez v. Cuomo, No. 20-CV-3338, 2020 WL 2393285 (S.D.N.Y. May 12, 2020) .................................... passim
Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) .................................................................................................19
Pierce v. District of Columbia, 128 F. Supp. 3d 250 (D.D.C. 2015) .........................................................................................12
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) .................................................................................................10
Traynor v. Turnage, 485 U.S. 535 (1988).................................................................................................................11
United Gov’t Sec. Officers of Am., Local 52 v. Chertoff, 587 F. Supp. 2d 209 (D.D.C. 2008) .........................................................................................16
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).....................................................................................................................10
Young v. D.C. Hous. Auth., 31 F. Supp. 3d 90 (D.D.C. 2014) .............................................................................................12
Statutes & Regulations 3 C.F.R. § 102.103 ...................................................................................................................12, 14 3 C.F.R. § 102.160(a)............................................................................................................. passim 53 Fed. Reg. 25872 (July 8, 1988).................................................................................................14 28 U.S.C. § 1361............................................................................................................................15 29 U.S.C. § 701..............................................................................................................................11 29 U.S.C. § 705..............................................................................................................................12 29 U.S.C. § 794..............................................................................................................................14 29 U.S.C. § 794..........................................................................................................................2, 11
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Other Authorities 7 Op. O.L.C. 110 (1983) ................................................................................................................15 Jeremy W. Peters, Elaina Plott & Maggie Haberman, 260,000 Words, Full of Self-
Praise From Trump on the Virus, N.Y. TIMES (Apr. 27, 2020) ................................................3 John P. Burke, Administration of the White House, Miller Ctr. of Pub. Affairs,
Univ. of Va., https://tinyurl.com/ydy5cq52 ...............................................................................4 Julie Bosman & Mitch Smith, Coronavirus Cases Spike Across Sun Belt as
Economy Lurches into Motion, N.Y. TIMES (June 14, 2020) ....................................................8 Lisa Shumaker, U.S. Records 2,600 New Coronavirus Cases Every Hour as Total
Surpasses 4 Million, N.Y. TIMES (July 23, 2020)......................................................................8 Morgan Gstalter, DeSantis Sued for Not Having ASL Interpreter at Coronavirus
Briefings, THE HILL (July 14, 2020) ..........................................................................................8 Remarks by President Trump in Press Briefing, July 21, 2020,
https://www.whitehouse.gov/briefings-statements/remarks-president-trumppress-briefing-072120 ................................................................................................................5 Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, Apr. 16, 2020, https://www.whitehouse.gov/briefings-statements/remarks-president-trumpvice-president-pence-members-coronavirus-task-force-press-briefing-27/ ...............................4 Remarks, THE WHITE HOUSE, https://www.whitehouse.gov/remarks/ ............................................4 U.S. Dep’t of Health and Human Services, White House Coronavirus Task Force Press Briefing: June 26, 2020, YOUTUBE (June 26, 2020), https://www.youtube.com/watch?v=FxEOxuZYwc0 ................................................................5 US Coronavirus Cases, Hospitalizations Rise, Crisis May Worsen, AL JAZEERA (July 22, 2020), https://www.aljazeera.com/news/2020/07/200722170516674.html ..........................................8
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INTRODUCTION This is an action to ensure that hundreds of thousands of deaf and hard of hearing (“DHH”) Americans have access to critical, potentially life-saving information conveyed by our nation’s political and public health leaders during the COVID-19 pandemic. All 50 states’ governors have provided in-frame American Sign Language (“ASL”) interpretation during public briefings regarding the pandemic, and all but a small handful continue to do so consistently. So have many mayors of America’s largest cities. Leaders from around the world have also provided sign language interpretation for public briefings during the pandemic. This is done in recognition of the importance of meaningful access to up-to-date information regarding the crisis for DHH people. President Trump, however, does not. He now stands alone in holding televised briefings regarding the COVID-19 pandemic without ever having provided any ASL interpretation. This means that not only are DHH Americans being denied the opportunity to understand any communication from the President of the United States during this critical time, they are also being denied the opportunity to access information, analysis, and updates from Dr. Anthony Fauci and Dr. Deborah Birx—two renowned public health experts. Various organizations and entities, including the National Association for the Deaf (“NAD”), have requested that the White House provide ASL interpretation during its COVID-19 related briefings. Additionally, 34 United States Senators have requested the same. The White House has ignored these requests and continues to conduct public briefings without any ASL interpretation. The White House’s failure to provide ASL interpreters during COVID-19 related briefings, including press briefings, is against the law. Federal law unequivocally prohibits

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discrimination against individuals with disabilities, which includes failing to provide meaningful access to public benefits, programs, or services. As the U.S. District Court for the Southern District of New York recently held, the Rehabilitation Act unequivocally requires government officials to provide in-frame ASL interpreters during public briefings regarding the COVID-19 pandemic. See Martinez v. Cuomo, No. 20-CV-3338, 2020 WL 2393285, at *5–7 (S.D.N.Y. May 12, 2020) (granting preliminary injunction on behalf of individual deaf New Yorkers and ordering Gov. Cuomo to “immediately implement in-frame ASL interpretation during his daily press briefings”).
Plaintiffs’ motion for a preliminary injunction is narrow and precise. Plaintiffs seek preliminary relief on only two counts—violation of the Rehabilitation Act and mandamus relief—with the second being in alternative to the first. The Court should grant the motion for preliminary injunction for three reasons:
First, Plaintiffs are likely to succeed on the merits of their claims. As the Martinez court held, the Rehabilitation Act requires in-frame ASL interpreters to ensure meaningful access to the information conveyed in public briefings regarding the COVID-19 pandemic. Id. at *5-6. The Rehabilitation Act applies to the EOP , White House Office, and Office of the Vice President. See 29 U.S.C. § 794(a); 3 C.F.R. Part 102. Thus, Plaintiffs are likely to succeed on their claim that these agencies have violated the Rehabilitation Act or, in the alternative, that they are entitled to relief through a writ of mandamus.
Second, Plaintiffs are likely to suffer irreparable harm absent a preliminary injunction. Plaintiffs seek vital and continually changing information regarding their health and safety, as well as the federal government’s response to the pandemic. As the Martinez court recently held, without an ASL interpreter in public briefings, deaf citizens would be “denied timely access to
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this critical information, leaving them less able to comply with current orders and advice, less able to prepare for the future, and more anxious about current conditions and the future.” Martinez, 2020 WL 2393285, at *6.
Third, the balance of hardships and public interest decisively favor a preliminary injunction. There would be no hardship on Defendants to provide ASL interpretation during White House briefings, just as all 50 states’ governors have provided ASL interpretation for at least certain of their briefings, and just as other federal agencies (like FEMA) have provided for public health briefings in the past. “By contrast, Plaintiffs . . . . experience hardship on a daily basis as a result of their inability to access [White House] briefings.” Id. Finally, it is manifestly in the public’s interest that all members of the American public—including the deaf community—have access to up-to-date information from the White House.
BACKGROUND For the past five months, the COVID-19 pandemic has devastated the United States. By late July, more than four and a half million cases had been reported nationwide. More than 150,000 Americans have died from COVID-19, the highest death toll of any nation. Businesses have closed, schools have closed, and social distancing requirements have been instituted. In the face of such an unprecedented crisis, Americans have looked to the White House for leadership and guidance. A. THE WHITE HOUSE’S COVID-19 BRIEFINGS Beginning in March 2020, the White House began holding regular, televised briefings regarding the COVID-19 outbreak.1 To date, the White House has conducted more than 50
1 See Jeremy W. Peters, Elaina Plott & Maggie Haberman, 260,000 Words, Full of Self-Praise From Trump on the Virus, N.Y. TIMES (Apr. 27, 2020),
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televised COVID-19 briefings. The White House Office, and in particular the Press Secretary, is responsible for the public communications of the White House, including the White House’s COVID-19 related public briefings. See John P. Burke, Administration of the White House, Miller Ctr. of Pub. Affairs, Univ. of Va., (Nov. 27, 2010), https://tinyurl.com/ydy5cq52. These briefings have addressed critical issues regarding the health crisis, including information regarding the number of confirmed COVID-19 cases, the availability of testing, information about social distancing and other personal safety measures, the coordination of local, state, and federal emergency response systems, and other information about how Americans can stay safe and help limit the spread of the virus.2 The briefings have also at times featured government officials from the White House Coronavirus Task Force, including public health experts Dr. Anthony Fauci, the director of the National Institute of Allergy and Disease, and Dr. Deborah Birx, the coordinator of the United States Government Activities to Combat HIV/AIDS.3
For example, on June 26, 2020, the White House Coronavirus Task Force held a televised briefing in response to the recent increase in coronavirus cases across the United States. During the briefing, the Task Force members delivered important information to the American public. After Dr. Birx “unpack[ed] the specific outbreaks in Texas, Florida, Arizona, and California,” Vice President Pence spoke, “about what every American can do to play their part in reducing
https://www.nytimes.com/interactive/2020/04/26/us/politics/trump-coronavirus-briefingsanalyzed.html; Remarks, THE WHITE HOUSE, https://www.whitehouse.gov/remarks/. 2 See, e.g., Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, Apr. 16, 2020, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-presidentpence-members-coronavirus-task-force-press-briefing-27/. 3 Id.
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the spread and the impacts of the coronavirus pandemic.”4 In addition, Dr. Fauci implored young Americans to recognize that they are “part of a process” and have a “societal responsibility” to comply with social distancing requirements, in light of the alarming number of growing cases.5 But hundreds of thousands of DHH Americans were unable to receive this important information due to the lack of ASL interpreters.
On July 20, 2020, President Trump announced plans to revive his administration’s COVID-19 briefings. Since then, the President has given regular briefings at the White House, providing updates on COVID-19 economic relief packages, vaccine development, and outbreaks across the country.6 On several occasions he has asked Americans to wear masks and socially distance.7 Although health experts have not been present at these latest briefings, President Trump has stated that he is relaying information from both Dr. Birx and Dr. Fauci to the public.8 B. Deaf Americans’ Inability to Access the White House’s COVID-19 Briefings
Unfortunately, the White House’s COVID-19 briefings are not accessible to hundreds of thousands of DHH Americans. The NAD has received numerous complaints from DHH citizens who are unable to understand President Trumps’ televised briefings due to the lack of in frame
4 U.S. Dep’t of Health and Human Services, White House Coronavirus Task Force Press Briefing: June 26, 2020, YOUTUBE (June 26, 2020), https://www.youtube.com/watch?v=FxEOxuZYwc0. 5 Id. 6 See, e.g., Remarks by President Trump in Press Briefing, July 21, 2020, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-press-briefing072120. 7 Id. 8 Id.
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televised American Sign Language (ASL) interpretation.9 See Rosenblum Decl. ¶ 2. For many such persons, English is, at best, a second language. Id. ¶ 3. Indeed, many DHH persons know virtually no English. Id..
Most DHH Americans who use ASL require qualified ASL interpreters to communicate with hearing persons who can only communicate in a spoken language such as English. Id. ¶ 5. ASL is a complete and complex language distinct from English, with its own vocabulary and rules for grammar and syntax—it is not simply English in hand signals. Id.. ASL has no written component. Id.. For several reasons, including early language deprivation, many deaf people have a very limited ability to read and write in English. Id..
Written English is not an effective means of communication for the many deaf individuals who have limited English capabilities, particularly for complex and important topics such as COVID-19 and related issues of public health. Id. ¶ 6. Therefore, even when closedcaptioning is provided, those DHH individuals cannot effectively receive the communications being given at White House briefings. Id. Furthermore, the closed captioning for live television broadcasts frequently contains errors and omissions that make it difficult or impossible for DHH individuals to understand the information being provided in the briefings, particularly if they are not fluent in English. Id. ¶ 7. Tone is also often lost in written captions. Id. By contrast, an interpreter is able to convey tone and context of a message through facial expressions, sign choice, and demeanor. Id..
9 Our request for “in frame” ASL means simultaneous sign language interpreting where the sign language interpreter is visible on the screen beside the President, Vice President, or other speaker. This may be accomplished by placing the interpreter physically near the speaker, or by superimposing a live video feed of the interpreter into a frame that appears alongside the speaker, with the frame sized appropriately to allow DHH viewers to see and understand the interpretation. Under either approach, the in frame, on screen interpreter would be visible on televised broadcast and on streamed mobile devices.
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In response to the White House’s failures, elected officials, advocacy groups, and even
other federal agencies have implored the White House to provide ASL interpretation for all
COVID-19 related briefings. For example:
 On March 12, 2020, 34 U.S. Senators wrote to Vice President Mike Pence, copying Dr. Birx, urging “the President and his Cabinet officials [to] be models of accessibility by having American Sign Language (ASL) interpreters at every news conference about COVID-19,” and noting that it “guarantees that members of the deaf and hard of hearing community are able to receive information in real time.” See Ex. A (emphasis added). On information and belief, the White House did not respond to this letter.
 On March 18, 2020, the National Council on Disability—an “independent federal agency charged with providing advice and recommendations regarding disability policy to the President, Congress, and other federal agencies” (Ex. B (emphasis added))—wrote to the White House, requesting that it provide in frame ASL interpretation for all COVID-19 briefings and citing the ADA and RA, id.; Rosenblum Decl.. ¶ 9. That same day, the NAD sent a similar request to President Trump and the White House. Rosenblum Decl. ¶ 10 & Ex. C. The White House did not respond to either of these letters. Rosenblum Decl. ¶¶ 9-10.
 On March 27, 2020, the Linguistic Society of America (LSA)—an organization founded in 1924 to advance the scientific study of language10—sent a letter to the White House Press Staff, requesting that all White House briefings addressing COVID-19 include an ASL interpreter who is visible to any viewer. See Ex. D. The LSA explained that “solely relying on closed-captioning is not an option for all ASL users, and that a certified sign language interpreter (who must remain visible during the entirety of each briefing) is necessary. . . . This is not only the right thing to do but is also required by federal law, pursuant to the Americans with Disabilities Act and the Rehabilitation Act of 1973.” Id.
 On April 21, 2020, Senators Sherrod Brown and Robert P. Casey, Jr., as well as Congresswoman Donna Shalala, wrote to Vice President Pence, copying Dr. Birx, as a follow up to the Senators’ March 12 letter. See Ex. E. These elected officials again “request[ed] that the White House Coronavirus Task Force use qualified, fully-visible American Sign Language (ASL) interpreters during public briefings on the coronavirus.” Id. On information and belief, the White House did not respond to this letter either.
These are not extraordinary requests. Governors of all 50 states—along with mayors of
America’s largest cities and leaders from around the world—have provided sign language
10 See LINGUISTIC SOCIETY OF AMERICA, https://www.linguisticsociety.org/about. 7

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interpretation of their COVID-19 briefings, and all but a small handful continue to do so
consistently. See Rosenblum Decl. ¶ 13; Martinez, 2020 WL 2393285, at *6 (S.D.N.Y. May 12, 2020).11 In the past, U.S. federal agencies, including the Federal Emergency Management
Against (FEMA) before and in the aftermath of Hurricanes Irma and Harvey, have also used onscreen ASL interpreters during public briefings.12 As a result, deaf Americans who rely on
ASL remain unable to access the White House’s briefings. Rosenblum Decl. ¶ 14.
While the number of COVID-19 cases are currently declining in some of the early
hardest hit states such as New York and New Jersey, 32 states reported record increases in COVID-19 cases in July.13 On July 23, 2020, the number of COVID-19 cases nationwide surged past four million.14 All estimates show that the virus will continue to affect the country
throughout the remainder of 2020, and possibly beyond. Thus, it remains as important as ever
that all Americans have access to timely information from the White House. C. Plaintiffs’ Inability to Access the White House’s COVID-19 Briefings
Plaintiffs in this action consist of the National Association of the Deaf and several
individual deaf persons.
11 To be sure, a few state’s governors have been inconsistent in their provision of ASL interpretation during COVID-19 briefings, which has become the subject of further litigation. See Morgan Gstalter, DeSantis Sued for Not Having ASL Interpreter at Coronavirus Briefings, THE HILL (July 14, 2020), https://thehill.com/homenews/state-watch/507252-desantis-sued-fornot-having-asl-interpreter-at-coronavirus-briefings. 12 See Julie Bosman & Mitch Smith, Coronavirus Cases Spike Across Sun Belt as Economy Lurches into Motion, N.Y. TIMES (June 14, 2020), https://www.nytimes.com/2020/06/14/us/coronavirus-united-states.html. 13 See US Coronavirus Cases, Hospitalizations Rise, Crisis May Worsen, AL JAZEERA (July 22, 2020), https://www.aljazeera.com/news/2020/07/200722170516674.html. 14 See Lisa Shumaker, U.S. Records 2,600 New Coronavirus Cases Every Hour as Total Surpasses 4 Million, N.Y. TIMES (July 23, 2020), https://www.nytimes.com/reuters/2020/07/23/us/23reuters-health-coronavirus-usa-cases.html.
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The NAD is the nation’s premier civil rights organization of, by, and for deaf and hard of hearing individuals in the United States. Established in 1880 by deaf and hard of hearing leaders, the NAD is dedicated to its mission of preserving, protecting, and promoting the civil, human, and linguistic rights for 48 million deaf and hard of hearing people in this country. The NAD has associational standing to bring this suit on behalf of its DHH members because (i) the NAD’s members have standing to sue in their own right, (ii) advocating on behalf of its members on this issue is germane to the NAD’s mission of advocating for its members’ civil, human, and linguistic right, and (iii) none of the NAD’s members is required to participate in this action because the NAD is seeking declaratory and injunctive relief and not an individualized remedy for its members. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
Individual plaintiffs Carlton Strail, Graham Forsey, Debra Fleetwood, John Rivera, Jr., and Corey Axelrod are deaf individuals who are fluent in ASL, which is their primary and preferred language. See Strail Decl. ¶ 2; Forsey Decl. ¶ 2; Fleetwood Decl. ¶ 2; Rivera Decl. ¶ 2, Axelrod Decl. ¶ 2. Several of these individual plaintiffs have difficulty understanding rapid and unreliable live captioning on television, especially when the content is complex, such as when there is information about a health pandemic. See Strail Decl. ¶ 3; Fleetwood Decl. ¶ 3; Rivera Decl. ¶ 3. All of the individuals watched the White House Coronavirus briefings during March and April 2020, and saw the briefings again in July 2020, but could not understand the briefings because there was no ASL interpreter. See Strail Decl. ¶ 4; Forsey Decl. ¶ 3; Fleetwood Decl. ¶ 4; Rivera Decl. ¶ 4, Axelrod Decl. ¶ 3. These plaintiffs want to understand the White House briefings because they want information on how to stay safe during the coronavirus pandemic, as well as how to take care of family, friends, and loved ones. See Strail Decl. ¶ 5; Forsey Decl. ¶
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5; Fleetwood Decl. ¶ 5; Rivera Decl. ¶ 5, Axelrod Decl. ¶ 5. They also want information about other pandemic-related issues, such as the progress in developing a potential vaccine and the impact of the pandemic on the economy and country as a whole. Id. Additionally, Plaintiffs Graham Forsey and Corey Axelrod are Presidents of the District of Columbia Association of the Deaf and the Illinois Association of the Deaf, respectively, but are unable to answer questions from members of these associations about the White House briefings because they do not have access to the information themselves. See Forsey Decl. ¶¶ 1, 5; Axelrod Decl. ¶¶ 1, 5.
ARGUMENT To obtain a preliminary injunction, Plaintiffs must show (1) a substantial likelihood of success on the merits; (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted; (3) that the threatened irreparable injury outweighs the threatened harm that the injunction would cause Defendants and third parties; and (4) that granting the preliminary injunction would be in the public interest. See Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). “The District of Columbia Circuit has applied a ‘sliding-scale approach’ in evaluating the preliminary injunction factors.”15 Davis v. Billington, 76 F. Supp. 3d 59, 63 (D.D.C. 2014) (quoting Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011)). Under this analysis, “if the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Id. (alterations omitted) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009)). “For example, if the movant makes a very strong showing of irreparable harm and there is no
15 Following the Supreme Court’s decision in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), some members of the D.C. Circuit have questioned the continued viability of the sliding-scale approach. See Davis, 76 F. Supp. 3d at 63 n.5. But because the Circuit “has had no occasion to decide this question,” the sliding-scale approach “remains the law of this Circuit.” Id. (concluding that the court “must employ the sliding-scale analysis”).
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substantial harm to the non-movant, then a correspondingly lower standard can be applied for likelihood of success.” Id. at 63–64 (quoting Davis, 571 F.3d at 1291–92). Here, all four factors decisively favor a preliminary injunction. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
A. Plaintiffs Are Likely to Succeed on Their Rehabilitation Act Claim Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), makes it unlawful for federal agencies, including the EOP, White House Office, and Office of the Vice President, to discriminate on the basis of disability in their programs or activities. Section 504 states that: No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any . . . program or activity conducted by any Executive agency . . . . 29 U.S.C. § 794(a). The purpose of Section 504 “is to assure that handicapped individuals receive ‘evenhanded treatment’ in relation to nonhandicapped individuals.” Traynor v. Turnage, 485 U.S. 535, 548 (1988); see also Am. Council of Blind v. Paulson, 463 F. Supp. 2d 51, 59 (D.D.C. 2006) (stated purpose of the Rehabilitation Act is “to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society, through . . . the guarantee of equal opportunity.”) (quoting 29 U.S.C. § 701(b)(1)). Section 504 thus requires that persons be “provided with meaningful access” to the benefit at issue through reasonable accommodation. Alexander v. Choate, 469 U.S. 287, 301 (1985). The EOP’s regulations implementing the Rehabilitation Act provide that agencies within the EOP—including the White House Office and Office of the Vice President—“shall take appropriate steps to ensure effective communication with . . . members of the public.” 3 C.F.R. § 102.160(a). The agencies “shall furnish appropriate auxiliary aids where necessary to afford a
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[handicapped person] an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency [i.e., the White House Office].” 3 C.F.R. § 102.160(a)(1); see also Young v. D.C. Hous. Auth., 31 F. Supp. 3d 90, 100 (D.D.C. 2014) (plaintiff stated a claim under Rehabilitation Act for failing to provide ASL interpreters or other essential auxiliary aids required for effective communication). These regulations additionally mandate that “[i]n determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the [handicapped person].” 3 C.F.R. § 102.160(a)(1)(i). Auxiliary aids include, but are not limited to, qualified interpreters for deaf persons. 3 C.F.R. § 102.103.
To prove a violation of section 504, plaintiffs must show that “[1] they are disabled within the meaning of the Rehabilitation Act [and] are otherwise qualified, [2] they were excluded from, denied the benefit of, or subject to discrimination under a program or activity, and [3] the program or activity is carried out by a federal executive agency or with federal funds.” Am. Council of Blind v. Paulson, 525 F.3d 1256, 1266 (D.C. Cir. 2008). Here, Plaintiffs have demonstrated each of these elements.
First, because Plaintiffs are deaf, they are individuals with disabilities. See 29 U.S.C. § 705(9). Plaintiffs are also qualified individuals with disabilities under EOP regulations, which define the term qualified individual with a disability as an individual with a disability who “meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.” 3 C.F.R. § 102.103. NAD’s members and the Individual Plaintiffs are individuals with disabilities who, with the reasonable accommodation of an interpreter, would be able to equally participate in and benefit from White House public briefings. See Martinez, 2020 WL 2393285, at *3 (noting that there was “no dispute” that deaf plaintiffs were “qualified individuals with a disability”); Pierce v. District of Columbia, 128 F. Supp. 3d 250, 257 n.4, 267
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(D.D.C. 2015) (no dispute that deaf inmate requesting ASL interpreter was qualified individual with a disability under Rehabilitation Act).
Second, Defendants’ failure to provide live ASL interpreters during COVID-19 briefings has excluded Plaintiffs from, denied Plaintiffs the benefit of, and subjected Plaintiffs to discrimination under a program or activity conducted by the EOP and agencies within the EOP. Plaintiffs require an ASL interpreter in order to effectively understand and participate in public White House briefings because they are deaf. Without this reasonable accommodation, Plaintiffs are not receiving effective communication, and therefore cannot access the briefings because they cannot understand the critical information covered. As noted, ASL is the primary language of many of the NAD’s members and the Individual Plaintiffs. Rosenblum Decl. ¶ 4. The Individual Plaintiffs rely on ASL as their primary language to understand fast-paced information that is complex and critical for staying safe and healthy, as opposed to error-prone captioning in English. Id.. Plaintiffs cannot effectively use alternative means of receiving information such as closed captioning.
Based on these same facts, the Martinez court concluded that plaintiffs had established that they “cannot access Governor Cuomo’s briefings without an in-frame ASL interpreter and have therefore demonstrated a likelihood of success on the merits.” 2020 WL 2393285, at *6. Although Governor Cuomo argued that existing accommodations, such as closed captioning, ensured meaningful access, the court “disagree[d],” noting that such accommodations, “while perhaps accommodating deaf New Yorkers who are fully literate in English, do not accommodate Plaintiffs and other similar deaf New Yorker who cannot read English.” Id. at *5. “Without in-frame ASL interpretation, Plaintiffs are, ‘as a practical matter, unable to access
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benefits to which they are legally entitled.’” Id. (alterations omitted) (quoting Henrietta D. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003)). The same analysis applies here.
Third, the White House COVID-19 public briefings are programs or activities conducted by the EOP, White House Office, and Office of the Vice President, which are “Executive agencies” under the Rehabilitation Act. While the Act does not define “Executive agencies,” and it appears no Court has addressed this precise issue, there is ample authority demonstrating that these Defendants are “Executive agencies”—including the EOP’s own regulations.
The EOP considers itself, as well as the White House Office and Office of the Vice President, to be Executive agencies. The Rehabilitation Act provides that the “head of each such [Executive] agency shall promulgate such regulations as may be necessary to carry out” the statute. 29 U.S.C. § 794. And the EOP has issued such regulations and has defined “agency” therein as “the following entities in the Executive Office of the President: the White House Office, the Office of the Vice President . . . and any committee, board, commission, or similar group established in the Executive Office of the President.” 3 C.F.R. § 102.103. Further, the EOP’s regulations state that “a federally conducted program or activity is, in simple terms, anything a Federal agency does.” 53 Fed. Reg. 25872, 25873 (July 8, 1988). Accordingly, the White House’s COVID-19 briefings are “programs or activities” under the Rehabilitation Act. See also Martinez, 2020 WL 2393285, at *5–6 (applying Rehabilitation Act’s prohibition on discrimination in programs and activities to Gov. Cuomo’s briefings); Brooklyn Center for Independence of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 640 (S.D.N.Y. 2013) (noting that there was “no dispute” that New York City’s emergency preparedness program, which included city press conferences, was a “program” or “activity” within the meaning of the Rehabilitation Act).
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That the EOP, White House Office, and Office of the Vice President are “Executive agencies” under the Rehabilitation Act is also confirmed by a memorandum of the Office of Legal Counsel authored by Ted Olson shortly after the 1978 amendments to the Rehabilitation Act. That memorandum concludes: “It is clear from the legislative history of the 1978 Amendments [to the Rehabilitation Act] that Congress intended the amended § 504 to have the broadest possible coverage within the Executive Branch.” See 7 Op. O.L.C. 110, 110, 114 (1983) (emphasis added). Thus, “the legislative history . . . makes clear that Congress intended § 504 to apply . . . to all ‘agencies and instrumentalities’ in ‘the Executive Branch’ of government.” Id. at 114. “Those ‘agencies and instrumentalities’ were understood by Congress to include independent regulatory agencies performing functions constitutionally committed to the Executive Branch, as well as entities more closely subject to the President’s day-to-day supervisory authority.” Id.
B. Alternatively, Plaintiffs Are Likely to Succeed on Their Claim for Mandamus
In addition to their claim under the Rehabilitation Act, Plaintiffs also seek relief in the form of a writ of mandamus. Even if the Rehabilitation Act could not provide Plaintiffs with adequate remedies—it does—Plaintiffs are likely to succeed on their claim for mandamus relief.
District courts “have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or an agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. A plaintiff establishes mandamus relief where “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff.” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005).
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Courts have held that mandamus relief is particularly appropriate where a government agency or official has violated a clear statutory command or the agency’s own regulations. See, e.g., In re Aiken Cty., 725 F.3d 255, 259 (D.C. Cir. 2013) (granting mandamus relief where agency was “defying a law enacted by Congress . . . without any legal basis”); Greater L.A. Council on Deafness, Inc. v. Baldrige, 827 F.2d 1353, 1362 (9th Cir. 1987) (holding that mandamus was available to compel Department of Commerce to act based on clear Department regulations implementing Section 504 of the Rehabilitation Act); Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419, Bhd. of Painters & Allied Trades, AFL-CIO v. Brown, 656 F.2d 564, 568 (10th Cir. 1981) (holding that mandamus relief was appropriate where plaintiffs demonstrated a “complete failure of federal officials to comply with mandatory statutory and regulatory directives”); Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 736 F. Supp. 2d 24, 31 (D.D.C. 2010) (holding that plaintiffs could bring claim for alleged violations of clear mandatory duties under the Federal Advisory Committee Act); United Gov’t Sec. Officers of Am., Local 52 v. Chertoff, 587 F. Supp. 2d 209, 217, 221 (D.D.C. 2008) (holding mandamus relief appropriate where plaintiff relied on “regulations that clearly dictate the actions that must be taken”).
Here, for the reasons explained above, Plaintiffs have a “clear right to relief”: the Rehabilitation Act and EOP’s own implementing regulations provide Plaintiffs with a clear right not to be discriminated against under any program or activity conducted by any executive agency, which entails a right to meaningful access to information conveyed at the White House’s public briefings related to COVID-19. See Martinez, 2020 WL 2393285, at *5-6. Defendants’ “duty to act” is equally clear—the Rehabilitation Act and the EOP’s own regulations require that the Defendant agencies “take appropriate steps to ensure effective communication with . . . members of the public,” and “furnish appropriate auxiliary aids”—including ASL interpreters—
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“where necessary to afford an individual with [disabilities] an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.” 3 C.F.R. § 102.160(a), (a)(1). To the extent the Court concludes that the Rehabilitation Act does not provide adequate remedies to Plaintiffs, relief would be available under the doctrine of mandamus. Thus, Plaintiffs are likely to succeed on at least one of their claims seeking an order compelling Defendants to provide ASL interpretation at all briefings related to the COVID-19 pandemic.16 II. PLAINTIFFS ARE LIKELY TO SUFFFER IRREPARABLE HARM IF A
PRELIMINARY INJUNCTION IS NOT GRANTED Absent a preliminary injunction requiring ASL interpretation, Plaintiffs are likely to suffer imminent and irreparable harm. The White House’s decision to hold regular emergency public briefings reflects the reality that information regarding the COVID-19 pandemic is constantly evolving, and the President’s assessment is that it is important for the public to have ready access to the latest information. In his briefings, President Trump not only updates the public about the toll COVID-19 has taken and is taking on the nation, but he also shares information regarding plans relative to reopening businesses and returning to school, as well as information about face coverings, social distancing restrictions, and development of vaccines and therapeutics. The White House’s briefings have also, at times, included important information from public health experts such as Dr. Fauci and Dr. Birx. Given the nature of the pandemic and
16 Plaintiffs are also likely to succeed on their additional claims—namely, the claim that Defendants’ failure to provide ASL interpreters violates the First Amendment, and the claim for nonstatutory review. See Compl. ¶¶ 59-73. The Court need not reach those issues, however, because at the preliminary injunction stage, Plaintiffs need only show a likelihood of success on the merits of on one of their claims. Kirwa v. U.S. Dep’t of Def., 285 F. Supp. 3d 21, 35 (D.D.C. 2017) (“Where multiple causes of action are alleged, plaintiff need only show likelihood of success on one claim to justify injunctive relief.”).
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its lingering effects, it appears likely the White House will continue to give public briefings at least throughout the remainder of 2020.
Plaintiffs need access to this vital and continually changing information, which could have a direct impact on their health and safety. Plaintiffs not only need information on how to stay safe and keep their family, friends, and loved ones safe during this pandemic, they also need information on related issues, such as the progress in developing a potential vaccine and the impact of the pandemic on the economy and country as a whole. See Strail Decl. ¶ 5; Forsey Decl. ¶ 5; Fleetwood Decl. ¶ 5; Rivera Decl. ¶ 5, Axelrod Decl. ¶ 5. For Plaintiff Strail, who does not own a computer and gets his news exclusive from television, the need is especially acute. See Strail Decl. ¶ 3. Finally, Plaintiffs Forsey and Axelrod are Presidents of the District of Columbia Association of the Deaf and the Illinois Association of the Deaf, respectively, but are unable to answer questions from members of these associations about the White House briefings because they do not have access to the information themselves. See Forsey Decl. ¶¶ 1, 5; Axelrod Decl. ¶¶ 1, 5..
Thus, Plaintiffs have demonstrated a time sensitive need for this information and a substantial risk of irreparable harm if they are unable to access it immediately. As the court recognized in Martinez, without an in-frame ASL interpreter in COVID-19 briefings, DHH persons are “denied timely access to this critical information, leaving them less able to comply with current orders and advice, less able to prepare for the future, and more anxious about current conditions and the future.” 2020 WL 2393285, at *6.
In addition to those concerns, courts in this circuit have repeatedly held that “the nondisclosure of information to which a plaintiff is entitled, under certain circumstances itself constitutes an irreparable harm; specifically, where the information is highly relevant to an
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ongoing and highly public matter.” Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity, 266 F. Supp. 3d 297, 319 (D.D.C.), aff’d on other grounds, 878 F.3d 371 (D.C. Cir. 2017). The federal government’s response to COVID-19 is also a daily topic of vigorous national debate. And, as the D.C. Circuit has recognized, “stale information is of little value.” Payne Enters., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988). III. THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST WEIGH HEAVILY
IN FAVOR OF PLAINTIFFS The balance of hardships also decisively favors a preliminary injunction. See Martinez, 2020 WL 2393285, at *6 (“[T]he Court finds that the balance of hardships tips decidedly in favor of the Plaintiffs.”). Retaining qualified and effective sign language interpreters is relatively inexpensive and administratively feasible. Rosenblum Decl. ¶ 13; see also Martinez, 2020 WL 2393285, at *6 (“Nor is there any evidence that this proposed accommodation would ‘fundamentally alter the nature’ of Governor Cuomo’s press briefings or ‘impose an undue financial or administrative burden.’”). There would thus be no hardship on Defendants to provide ASL interpretation during White House public briefings, just as every other governor and many other mayors have done during their briefings. “By contrast, Plaintiffs have demonstrated that they experience hardship on a daily basis as a result of their inability to access [White House] briefings.” Id. As explained above, Plaintiffs face serious and irreparable harm as the lack of access to critical information during the current public health crisis could be lifethreatening. Finally, the public interest strongly favors a preliminary injunction. It is in the public’s interest that all members of the public have access to up-to-date information from government officials during a public health crisis. Without access to information through an ASL interpreter, an entire segment of the population will be without the necessary knowledge to act in a way that
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furthers the public interest. See Martinez, 2020 WL 2393285, at *6 (“Plaintiffs and members of the deaf community who are similarly situated to Plaintiffs cannot ensure that they act in the public’s interest [without being aware of government orders or recommendations] and may unknowingly endanger themselves or others.”). Nor would there be any “disservice to the public by providing Plaintiffs’ proposed accommodation.” Id. To the contrary, it is manifestly in the public interest to ensure that all Americans, including DHH Americans, have timely and meaningful access to the White House’s communications regarding the ongoing COVID-19 pandemic.
CONCLUSION For the foregoing reasons, the Court should grant Plaintiffs’ motion and issue a preliminary injunction requiring Defendants to immediately begin providing live televised inframe ASL interpretations at all public briefings conducted by any Defendant that address issues concerning COVID-19, including all such briefings involving President Trump, Vice President Pence, Press Secretary McEnany, or any members of the White House Coronavirus Task Force.
REQUEST FOR EXPEDITED TREATMENT Plaintiffs respectfully request expedited treatment of this motion. As explained above, absent a preliminary injunction, Plaintiffs will suffer irreparable harm by being denied timely access to critical, potentially life-saving information conveyed by political and public health leaders during the COVID-19 pandemic. Pursuant to Local Rule 65.1, Plaintiffs request that the Court set a briefing schedule as follows: Defendants’ response to Plaintiff’s Motion for Preliminary Injunction shall be due on August 10, 2020, and Plaintiffs’ Reply shall be due on August 14, 2020. Plaintiffs further request that the Court set a hearing on this motion at the Court’s earliest convenience after Plaintiffs submit their reply, but in any event no later than August 24, 2020. See Local Rule 65.1(c).
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Dated: August 3, 2020

/s/ Ian S. Hoffman Ian S. Hoffman (D.C. Bar No. 983419) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Avenue NW Washington, DC 20001-3743 Telephone: (202) 942-5000 Fax: (202) 942-5999 ian.hoffman@arnoldporter.com
/s/ Marc P. Charmatz Marc P. Charmatz** NAD Law and Advocacy Center 86 30 Fenton Street, Suite 820 Silver Spring, MD 20910 Telephone: (301) 587-1788 Fax: (301) 587-1791 marc.charmatz@nad.org
**pro hac vice motion pending
Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION OF THE DEAF, et al., Plaintiffs,

v. DONALD J. TRUMP, et al.,

Civil Action No. 20-cv-2107

Defendants.

[PROPOSED] ORDER UPON CONSIDERATION of Plaintiffs’ Motion for a Preliminary Injunction and the parties’ briefing submitted in connection with that motion, it is hereby ORDERED that the motion is GRANTED. Defendants are ordered to immediately begin providing live televised inframe ASL interpretations at all public briefings conducted by any Defendant that address issues concerning COVID-19, including all such briefings involving President Trump, Vice President Pence, Press Secretary McEnany, or any members of the White House Coronavirus Task Force.

Dated: _____________

United States District Judge

DocuSign Envelope ID: 67DFCDa2Ds5e-D1A0:27-040-2c4v-8-10A231-80A973-3J0EDBB3E3DC ocument 2-3 Filed 08/03/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NATIONAL ASSOCIATION OF THE DEAF, et al.,

Plaintiffs,

v.

DONALD J. TRUMP, et al., Defendants.

Civil Action No.

DECLARATION OF JOHN RIVERA, JR. IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I, John Rivera, Jr., hereby state under penalty of perjury that the following statements are true and accurate to the best of my knowledge, information, and belief:
1. I am a 66-year-old deaf resident of Old Bridge, New Jersey. Growing up, I attended Public School 47, a deaf school in New York City. I have an Associate of Applied Science degree from the National Technical Institute of the Deaf in Data Processing. I have been employed in data processing since 1982.
2. I am fluent in American Sign Language (“ASL”), which is my preferred and primary language.
3. I receive most of my news from television. However, I am not able to understand captioning on television when the content is complex, such as when there is information about a health pandemic.
4. I watched a number of the White House’s Coronavirus press briefings during March and April 2020 and saw the briefings again in July of 2020, but I cannot understand the briefings because there is no ASL interpreter during the briefings.

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5. I want to understand the White House briefings because I want information on how to stay safe during the Coronavirus pandemic, as well as how to take care of family, friends, and loved ones. I also want information about other pandemic-related issues, such as the progress in developing a potential vaccine and the impact of the pandemic on the economy and country as a whole.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Date: July 31, 2020

____________________ John Rivera, Jr.

2

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NATIONAL ASSOCIATION OF THE DEAF, et al.,

Plaintiffs,

v.

DONALD J. TRUMP, et al., Defendants.

Civil Action No.

DECLARATION OF DEBRA FLEETWOOD IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I, Debra Fleetwood, hereby state under penalty of perjury that the following statements are true and accurate to the best of my knowledge, information, and belief:
1. I am a 68-year-old deaf resident of Plainfield, New Jersey. Growing up, I attended the New Jersey School for the Deaf. I did not attend college. I am currently retired.
2. I am fluent in American Sign Language (“ASL”), which is my preferred and primary language.
3. I receive most of my news from television. However, I am not able to understand captioning on television when the content is complex, such as when there is information about a health pandemic.
4. I watched a number of the White House’s Coronavirus press briefings during March and April 2020 and saw the briefings again in July of 2020, but I cannot understand the briefings because there is no ASL interpreter during the briefings.
5. I want to understand the White House briefings because I want information on how to stay safe during the Coronavirus pandemic, as well as how to take care of family, friends,

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and loved ones. I also want information about other pandemic-related issues, such as the progress in developing a potential vaccine and the impact of the pandemic on the economy and country as a whole.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Date: July 31, 2020

____________________ Debra Fleetwood

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION OF THE DEAF, et al.,

Plaintiffs,

v.

DONALD J. TRUMP, et al., Defendants.

Civil Action No. 20-cv-2107

DECLARATION OF HOWARD A. ROSENBLUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I, Howard A. Rosenblum, hereby state under penalty of perjury that the following statements are true and accurate to the best of my knowledge, information, and belief:
1. I am an attorney and the Chief Executive Officer of the National Association of the Deaf (“NAD”). I also serve as an ex officio member of the NAD Board of Directors. I have practiced law for twenty-eight years, focusing my practice on disability rights and special education law. I hold a Bachelor of Science degree in computer engineering from the University of Arizona and a Juris Doctor degree from the Illinois Institute of Technology Chicago-Kent College of Law.
2. Since the White House began holding televised briefings regarding the COVID19 outbreak, NAD has received hundreds of complaints from deaf and hard of hearing (“DHH”) Americans who are unable to understand the briefings due to the lack of in-frame televised American Sign Language (“ASL”) interpretation.

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3. For many DHH individuals, English is, at best, a second language. Indeed, many DHH persons know virtually no English.
4. ASL is the primary language of many of the NAD’s members and the Individual Plaintiffs. The Individual Plaintiffs rely on ASL as their primary language to understand fastpaced information that is complex and critical for staying safe and healthy, as opposed to errorprone captioning in English.
5. ASL is a complete and complex language distinct from English, with its own vocabulary and rules for grammar and syntax. It is not simply English in hand signals. ASL has no written component. For several reasons, including early language deprivation, many deaf people have a very limited ability to read and write in English. Most DHH Americans who use ASL require qualified interpreters to communicate with hearing persons who can only communicate in a spoken language such as English.
6. Written English is not an effective means of communication for many deaf individuals who have limited English capabilities, particularly for complex and important topics such as COVID-19 and related issue of public health. Therefore, even when closed-captioning is provided, those DHH individuals cannot effectively receive the messages conveyed at the White House press briefings.
7. Furthermore, closed captioning for live television broadcasts frequently contains errors and omissions that make it difficult or impossible for DHH individuals to understand the information being provided in the briefings, particularly if they are not fluent in English. Tone is also frequently lost in written captions. By contrast, an interpreter is able to convey tone and context of a message through facial expressions, sign choice, and demeanor.
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8. On March 12, 2020, 34 U.S. Senators wrote to Vice President Mike Pence, copying Dr. Deborah Birx, urging “the President and his Cabinet officials [to] be models of accessibility by having American Sign Language (ASL) interpreters at every news conference about COVID-19,” and noting that it “guarantees that members of the deaf and hard of hearing community are able to receive information in real time.” A true and correct copy of the letter is attached hereto as Exhibit A.
9. On March 18, 2020, the National Council on Disability (“NCD”), a federal agency, requested that President Trump and the White House provide in-frame ASL interpretation of all the COVID-19 briefings. A true and correct copy of NCD’s letter is attached hereto as Exhibit B. To the best of my knowledge, the White House did not respond to this letter.
10. That same day, on behalf of the NAD, in my capacity as CEO, I wrote to Stephanie Grisham, White House Director of Communications, requesting that President Trump and the White House provide in-frame ASL interpretation on television broadcasts of all his COVID-19 briefings. A true and correct copy of NAD’s letter is attached hereto as Exhibit C. The White House did not respond to this letter.
11. On March 27, 2020, the Linguistic Society of America (LSA)—an organization founded in 1924 to advance the scientific study of language—sent a letter to the White House Press Staff, requesting that all White House press briefings addressing COVID-19 include an ASL interpreter who is visible to any viewer. The LSA explained that “solely relying on closedcaptioning is not an option for all ASL users, and that a certified sign language interpreter (who must remain visible during the entirety of each briefing) is necessary . . . . This is not only the right thing to do but is also required by federal law, pursuant to the Americans with Disabilities
3

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Act and the Rehabilitation Act of 1973. A true and correct copy of NAD’s letter is attached hereto as Exhibit D.
12. On April 1, 2020, Senators Sherrod Brown and Robert P. Casey, Jr., as well as Congresswoman Donna Shalala, wrote to Vice President Pence, copying Dr. Birx, as a follow up to the Senators’ March 12 letter. These elected officials again “request[ed] that the White House Coronavirus Task Force use qualified, fully-visible American Sign Language (ASL) interpreters during public briefings on the coronavirus.” A true and correct copy of the letter is attached hereto as Exhibit E.
13. Based on research done by NAD, I understand that Governors of all 50 states have at times provided in-frame ASL interpretation of their COVID-19 briefings. In the past, U.S. federal agencies, including the Federal Emergency Management Agency (FEMA) before and in the aftermath of Hurricanes Irma and Harvey, have also used onscreen ASL interpreters during televised briefings. Retaining qualified sign language interpreters for such briefings is relatively inexpensive.
14. As a result of the White House’s refusal to provide in frame televised ASL interpretation, deaf people who rely on ASL and live in the U.S. remain unable to access the White House’s briefings.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Date: August 3, 2020

_____________________________ Howard A. Rosenblum

4

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Exhibit A

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Exhibit B

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NCD letter to White House regarding Taskforce interpreters

March 18, 2020
Stephanie Grisham
Director of Communications The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500
Dear Ms. Grisham,
I write to you today on behalf of the National Council on Disability (NCD), an independent federal agency charged with providing advice and recommendations regarding disability policy to the President, Congress, and other federal agencies, to request that the White House Coronavirus Taskforce use sign language interpreters during its public briefings. Millions of people in the US who are Deaf or hard of hearing use American Sign Language to obtain the vital information the Taskforce provides.[1]
These are no doubt challenging times and while some considerations might be easily overlooked, rest assured that the National Council on Disability is ready and willing to fulfill its duty to the President and Congress by highlighting the needs and concerns of the disability community as our government responds to the public health crisis at hand. There is no doubt that the Coronavirus brings with it significant added concerns for people with disabilities.
Please feel free to contact me should you have any questions or concerns regarding this, or any other matter related to disability policy and law. If a member of your team would like to discuss this with a member of my team please have them contact Lisa Grubb, Executive Director and CEO at lgrubb@ncd.gov.
Sincerely,
Neil Romano Chairman

Case 1:20-cv-02107-JEB Document 2-10 Filed 08/03/20 Page 3 of 4 CC: Alex Azar, Secretary of Health and Human Services, and Chairman of the President's Task Force on the Novel Coronavirus
[1] The Americans with Disabilities Act, 42 U.S.C. § 12101 (1990); The Rehabilitation Act, 29 U.S.C. § 701 (1973).
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Exhibit C

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March 18, 2020
Stephanie Grisham Director of Communications The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500
Dear Ms. Grisham:
With thanks to the National Council on Disability for their letter today on this issue, the National Association of the Deaf (NAD) also asks that the White House implement immediate action to ensure that all public briefings regarding the coronavirus pandemic by President Donald Trump or the White House Coronavirus Taskforce is fully accessible to all deaf and hard of hearing people in the United States. For this to happen, every such public briefing must have a qualified American Sign Language (ASL) interpreter present and visible on the screen of the broadcast.
From the first White House press conference on this coronavirus, the NAD has received daily complaints from deaf and hard of hearing citizens across the country asking why their President is not ensuring they are getting the same access to emergency information as everyone else. We have been directing their complaints to your office, and join in their concern for the lack of information for our community. Nearly all 50 states’ Governors have had qualified ASL interpreters next to them at their coronavirus public briefings, and we ask the same for the White House.
Further, we ask that you direct the Department of Health and Human Services, as well as their Centers for Disease Control to immediately make all information relating to coronavirus on their websites available in ASL. We have been asking them to create such videos with ASL content for at least two weeks and have yet to see any such videos. Your assistance in this matter is appreciated.
Should you require assistance in securing appropriately qualified ASL interpreters for the White House public briefings, please do not hesitate to contact us at nad.info@nad.org
Sincerely,
Howard A. Rosenblum NAD Chief Executive Officer
CC: Alex Azar – Secretary, Health and Human Services; Chairman, the President's Task Force on the Novel Coronavirus Neil Romano – Chairman, National Council on Disability

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Exhibit D

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March 27, 2020
The White House 1600 Pennsylvania Avenue NW Washington, DC 20500 Dear White House Press Staff: It has come to the attention of the Linguistic Society of America (LSA), that the requirements of equal language accessibility for all deaf and hard of hearing viewers, during crucial COVID-19 press briefings, are failing to be met. There is a large population of Americans that rely on American Sign Language (ASL) as their primary mode of communication. Please note that solely relying on closed-captioning is not an option for all ASL users, and that a certified sign language interpreter (who must remain visible during the entirety of each briefing) is necessary. Failing to provide this method of communication leaves many deaf and hard of hearing Americans vulnerable due to the inevitability of a communication breakdown. Please review best practices for effective communication at emergency press briefings. Information shared about this serious disease outbreak must be made accessible at the time of the release, not afterwards. Failing to make this information available in ASL means that deaf people are not getting the same important information about health and safety. We are requesting that The White House staff provide a certified and qualified sign language interpreter for ALL news and announcements involving COVID-19 messaging. This is not only the right thing to do but is also required by federal law, pursuant to the Americans with Disabilities Act and the Rehabilitation Act of 1973. Like everyone else, the deaf community is concerned about this outbreak but is often the last to know about vital updates, due to lack of equal and rightful communication access. Sincerely,
Alyson Reed Executive Director CC: SUBMIT@NAD.ORG
Archibald A. Hill Suite, 522 21st St. NW #120, Washington, DC 20006-5012 Tel: 202 835-1714; Fax: 202 835-1717; www.linguisticsociety.org; e-mail: lsa@lsadc.org

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Exhibit E

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April 21, 2020
The Honorable Mike Pence Vice President of the United States White House Coronavirus Task Force The White House 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500
Dear Vice President Pence: We write to request that the White House Coronavirus Task Force use qualified, fully-visible American Sign Language (ASL) interpreters during public briefings on the coronavirus. Deaf and hard of hearing Americans across the country have expressed their frustration about inaccessible information due to the lack of interpreters on screen. They are not receiving access to public health information from Task Force briefings as they broadcast live. Closed captioning is accessible to many deaf and hard of hearing people, but many other deaf or hard of hearing people use ASL as their primary language and it is a language of its own distinct from English. Many of them are not able to understand anything released by the White House. During this public health crisis, if any group is at risk, we are all at risk. The National Council on Disability, the independent federal agency tasked with making recommendations on federal disability policy, and many organizations and advocacy groups, including the National Association of the Deaf, have also called upon the White House to include ASL interpreters at daily briefings. While all 50 Governors across the country include ASL interpreters during their coronavirus briefings, the White House has yet to incorporate this important accessibility in their coronavirus updates during this public health crisis. Over a month ago, on March 12, 34 Senators sent you a letter (attached) and asked you and the Task Force to ensure that American Sign Language interpreters are available during all public briefings and communications. The Senators have not received a response from you or the Task Force, and ASL interpreters have not been present at the briefings. The coronavirus poses increased threats and barriers to individuals with disabilities – receiving vital public health information from the federal government should not be one of them. We must
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ensure that every group has equal access to public health information to help our communities across the country prevent any further spread of this virus.
We look forward to your response.
Sincerely,

/s/Sherrod Brown _________________________ Sherrod Brown United States Senator

/s/Bob Casey _________________________ Robert P. Casey Jr. United States Senator

/s/Donna Shalala _________________________ Donna Shalala United States Representative
cc: Dr. Deborah L. Birx Coronavirus Response Coordinator White House Coronavirus Task Force

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 Case 1:20-cv-02107-JEB Document 9 Filed 08/14/20 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

)

NATIONAL ASSOCIATION OF THE DEAF, )

)

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD J. TRUMP, et al.,

)

)

Defendants.

)

)

)

)

Civil Action No. 1:20-cv-02107 (JEB)

DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2
I. Factual Background ............................................................................................................ 2 II. Legal Background ............................................................................................................... 6
A. Section 504 of the Rehabilitation Act and Implementing Regulations ........................ 6 B. The Administrative Procedure Act ............................................................................... 8 LEGAL STANDARDS .................................................................................................................. 9 ARGUMENT ................................................................................................................................ 10 I. Plaintiffs Are Not Likely To Succeed on the Merits of Their Claims .............................. 10 A. Plaintiffs Lack a Cause of Action Under Section 504................................................ 11 B. Defendants Are Not Agencies Within the Scope of the APA .................................... 14 C. Plaintiffs Are Not Likely to Succeed on Their Claim for Mandamus........................ 19 II. The Remaining Factors Do Not Favor Issuance of a Preliminary Injunction................... 22 CONCLUSION............................................................................................................................. 24
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TABLE OF AUTHORITIES
CASES Abdullah v. Obama,
753 F.3d 193 (D.C. Cir. 2014) .................................................................................................... 9 * Alexander v. Sandoval,
532 U.S. 275 (2001)...................................................................................................... 11, 12, 14 Am. Council of the Blind v. Paulson,
525 F.3d 1256 (D.C. Cir. 2008) ................................................................................................ 13 Armstrong v. Exec. Off. of the President,
90 F.3d 553 (D.C. Cir. 1996) .................................................................................................... 18 Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton,
997 F.2d 898 (D.C. Cir. 1993) .................................................................................................. 16 Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367 (2004).................................................................................................................. 19 Citizens for Resp. & Ethics in Wash. v. Off. of Admin.,
566 F.3d 219 (D.C. Cir. 2009) ............................................................................................ 17, 18 Clark v. Skinner,
937 F.2d 123 (4th Cir. 1991) .................................................................................................... 11 Consol. Edison Co. of N.Y., Inc. v. Ashcroft,
286 F.3d 600 (D.C. Cir. 2002) .................................................................................................. 20 Cousins v. Sec’y of the U.S. Dep’t of Transp.,
880 F.2d 603 (1st Cir. 1989) ..................................................................................................... 11 Dalton v. Specter,
511 U.S. 462 (1994)............................................................................................................ 16, 18 Davis v. Pension Benefit Guar. Corp.,
571 F.3d 1288 (D.C. Cir. 2009) ...................................................................................... 9, 10, 22 Democracy Forward Found. v. White House Off. of Am. Innovation,
356 F. Supp. 3d 61 (D.D.C. 2019) ............................................................................................ 19 Dep’t of the Army v. Blue Fox, Inc.,
525 U.S. 255 (1999).................................................................................................................. 14
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Detroit Int’l Bridge Co. v. Gov’t of Can., 883 F. 3d 895 (D.C. Cir. 2018) ................................................................................................. 16
Doe v. Att’y Gen., 941 F.2d 780 (9th Cir. 1991) .................................................................................................... 11
Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007) .................................................................................................. 19
Dorfmann v. Boozer, 414 F.2d 1168 (D.C. Cir. 1969) ................................................................................................ 10
Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 266 F. Supp. 3d 297 (D.D.C. 2017) ............................................................................................ 9
* Franklin v. Massachusetts, 505 U.S. 788 (1992).................................................................................................. 9, 15, 16, 18
Gill v. Whitford, 138 S. Ct. 1916 (2018) .............................................................................................................. 23
Guedes v. ATF, 920 F.3d 1 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 789 (2020) .............................................. 9
Heckler v. Chaney, 470 U.S. 821 (1985).................................................................................................................... 8
In re Cheney, 406 F.3d 723 (D.C. Cir. 2005) ...................................................................................... 19, 20, 22
In re Medicare Reimbursement Litig., 414 F.3d 7 (D.C. Cir. 2005) ...................................................................................................... 20
In re Navy Chaplaincy, 738 F.3d 425 (D.C. Cir. 2013) .................................................................................................. 10
J.L. v. Soc. Sec. Admin., 971 F.2d 260 (9th Cir. 1992) .................................................................................................... 11
Kinneary v. City of N.Y., 358 F. Supp. 2d 356 (S.D.N.Y. 2005)....................................................................................... 11
Kissinger v. Reps. Comm. for Freedom of the Press, 445 U.S. 136 (1980)...................................................................................................... 15, 16, 19
Lane v. Pena, 518 U.S. 187 (1996)............................................................................................................ 11, 12
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Mazurek v. Armstrong, 520 U.S. 968 (1997).................................................................................................................... 9
Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993) ................................................................................ 9, 16, 17, 18
Nat’l Sec. Archive v. Archivist of the U.S., 909 F.2d 541 (D.C. Cir. 1990) ............................................................................................ 18, 19
Nken v. Holder, 556 U.S. 418 (2009).................................................................................................................. 22
Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004).................................................................................................................... 19
Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259 (D.C. Cir. 1980) ................................................................................................ 17
Pittston Coal Grp. v. Sebben, 488 U.S. 105 (1988).................................................................................................................. 20
Rushforth v. Council of Econ. Advisers, 762 F.2d 1038 (D.C. Cir. 1985) .......................................................................................... 16, 18
Sai v. Dep’t of Homeland Sec., 149 F. Supp. 3d 99 (D.D.C. 2015) .......................................................................... 11, 12, 14, 21
Sculimbrene v. Reno, 158 F. Supp. 2d 26 (D.D.C. 2001) ...................................................................................... 18, 19
Se. Cmty. Coll. v. Davis, 442 U.S. 397 (1979).................................................................................................................. 13
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) ........................................................................................ 9, 10, 22
Shoshone Bannock Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995) .................................................................................................. 20
Sierra Club v. Andrus, 581 F.2d 895 (D.C. Cir. 1978), rev’d on other grounds, 442 U.S. 347 (1979) ........................ 17
Singh v. Carter, 185 F. Supp. 3d 11 (D.D.C. 2016) ............................................................................................ 10
Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) .................................................................................... 15, 16, 17
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Sweetland v. Walters, 60 F.3d 852 (D.C. Cir. 1995) .............................................................................................. 17, 18
Wilbur v. United States, 281 U.S. 206 (1929).................................................................................................................. 20
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)........................................................................................................................ 9
Wisc. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) .................................................................................................. 22
STATUTES 5 U.S.C. § 551........................................................................................................................... 8, 15 5 U.S.C. § 552............................................................................................................................... 15 5 U.S.C. §§ 701-706 ....................................................................................................................... 8 5 U.S.C. § 701................................................................................................................................. 8 5 U.S.C. § 702........................................................................................................................... 9, 14 5 U.S.C. § 706................................................................................................................................. 8 10 U.S.C. § 111............................................................................................................................... 4 29 U.S.C. § 705............................................................................................................................. 23 29 U.S.C. § 794............................................................................................................... 1, 6, 12, 23 29 U.S.C. § 794a ....................................................................................................................... 6, 12 47 U.S.C. § 255................................................................................................................. 10, 21, 23 Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978,
Pub. L. No. 95-602, 92 Stat. 2955 ........................................................................................ 6, 13 National Defense Authorization Act for Fiscal Year 1997,
Pub. L. No. 104-201, 110 Stat. 9623 .......................................................................................... 4 Rehabilitation Act Amendments of 1998,
Pub. L. No. 105-220, 112 Stat. 936 .......................................................................................... 13
v

Case 1:20-cv-02107-JEB Document 9 Filed 08/14/20 Page 7 of 32 REGULATIONS 3 C.F.R. part 102....................................................................................................................... 7, 13 3 C.F.R. § 102.103 ................................................................................................................ 7, 8, 14 3 C.F.R. § 102.149 .......................................................................................................................... 7 3 C.F.R. § 102.150 .......................................................................................................................... 7 3 C.F.R. § 102.160 ................................................................................................................ 7, 8, 21 3 C.F.R. § 102.170 .................................................................................................................... 8, 14 OTHER AUTHORITIES H.R. Rep. No. 93-1380 (1974)……………………………………………..……………………..16
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INTRODUCTION With the nation facing a worldwide pandemic, the White House has worked diligently to ensure the public has timely access to important public health information. Holding press briefings – by the President, the Vice President, the Coronavirus Task Force, or the Press Secretary – is one of multiple ways the White House provides such access. Briefings broadcasted on network and cable television include closed captioning, as required by federal law. In addition, the White House provides closed captioning to include with broadcasts on online platforms. Further, within hours of the briefings, the White House posts a complete transcript on its official website and provides the same to the press. Notwithstanding these avenues and non-auditory means of disseminating the content of the briefings, Plaintiffs, five individuals who are deaf or hard of hearing and an association that advocates on behalf of individuals with similar disabilities, claim they are being denied access to information because the White House does not also include live American Sign Language (“ASL”) interpretation at each briefing. This, they claim, constitutes disability-based discrimination in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiffs also ask this Court to preliminarily enjoin the White House to require the President and his staff immediately to begin providing live, televised ASL interpretations at these press briefings. Plaintiffs’ motion for preliminary injunction should be denied. Although Plaintiffs allege that issues with real-time closed captioning or follow-on transcripts make live ASL interpretation preferable for them, the White House has provided and continues to provide accessibility to all coronavirus press briefings through alternative, non-auditory means. The White House has
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consistently engaged in significant efforts to provide broad accessibility to public health information delivered in coronavirus press briefings to all members of the public.
Further, Plaintiffs have not demonstrated a likelihood of success on the merits of their claims, part of the burden they must sustain when seeking the extraordinary relief of a preliminary injunction. Most importantly, as a threshold matter, Plaintiffs cannot identify a federal cause of action that permits their lawsuit. Section 504 does not create a private right of action for individuals such as Plaintiffs to challenge agency determinations relating to the conduct of their programs and activities. Nor does the Administrative Procedure Act (“APA”), the only other possible avenue for maintaining this suit, because that statute does not apply to the President or the remaining Defendants, whose primary function is to assist and advise the President. Even if the APA applied, Plaintiffs have not demonstrated entitlement to the specific mandatory injunction sought here. Finally, Plaintiffs’ claim for mandamus is also unlikely to succeed because they fail to set forth, in clear and indisputable terms, that defendants have a nondiscretionary legal duty to supply live, in-frame ASL interpretation of all public briefings related to the coronavirus pandemic. Finally, although Plaintiffs’ failure to show likelihood of success on the merits makes it unnecessary to address Plaintiffs’ claim of irreparable harm or to weigh the balance of hardships and public interest, these remaining factors do not favor issuance of a preliminary injunction in this case.
Thus, Plaintiffs’ request for a mandatory preliminary injunction to require live, in-frame ASL interpretation at all public briefings related to the coronavirus should be denied.
BACKGROUND I. Factual Background
The Executive Office of the President (“EOP”) includes the immediate staff to the President and the Vice President. Declaration of Judson Deere (“Deere Declaration”), ¶ 2. As
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relevant here, EOP includes the White House Office, which, in turn, includes the White House Press Office (“Press Office”) and the Press Secretary. Deere Declaration, ¶ 2.
The coronavirus press briefings provide an opportunity for the President, the Vice President, Press Secretary, or other officials to respond to questions from multiple news outlets. Deere Declaration, ¶ 4. The Press Office typically convenes these briefings by notifying the reporters and networks covering the White House. Deere Declaration, ¶ 4.
In consultation with other senior White House advisors, the Press Office determines when briefings in the James S. Brady Press Briefing Room (“Press Briefing Room”) or other designated spaces will occur. Deere Declaration, ¶ 3. The Press Briefing Room is a small space; at full capacity, it offers seating for only approximately 49 reporters (and a small contingent of camera engineers, audio technicians, still photographers, and producers). Deere Declaration, ¶ 9. During recent months, seating has been further limited to facilitate social distancing as recommended by the Centers for Disease Control and Prevention. Deere Declaration, ¶ 9. The speaker’s podium is not easily moved due to electrical wiring that runs through it. Deere Declaration, ¶ 9.
The Press Office works with members of the media and media outlets from around the world, largely through the White House Correspondents Association (“WHCA”). Deere Declaration, ¶ 5. WHCA comprises hundreds of television, print, and radio media organizations, and serves to organize and provide news coverage of the President and the presidency. Deere Declaration, ¶ 5. Due to space constraints, only a limited number of networks’ cameras are stationed at the back of the Press Briefing Room. Deere Declaration, ¶ 5. These networks, in turn, share their footage of press briefings held in the Press Briefing Room with other networks. Deere Declaration, ¶ 5.
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Neither the White House nor the Press Office controls which networks will decide to broadcast the briefings, either live or recorded. Deere Declaration, ¶ 6. Nor does the White House or the Press Office control the video decisions made by the networks operating the press cameras – for example, the subject(s) of the camera’s focus; whether a tight shot or wide shot is used, and therefore, how much of the subject or their surrounding environment is captured; and whether and when to pan away from the subject(s). Deere Declaration, ¶ 6. Even if an interpreter were present, the decision whether the video broadcast by a particular network would include the interpreter in-frame would be made by the network, not by the White House or the Press Office. Deere Declaration, ¶ 6. Because the networks operating the press cameras determine when to flip between shots of the individual at the podium and any reporter in the audience, the determination to capture a reporter’s question through an in-frame interpreter also would be made and controlled by the networks, not the White House or the Press Office. Deere Declaration, ¶ 6.
The Department of Defense, through the White House Communications Agency, provides telecommunications support to the President, including by capturing video of the President’s press briefings. Deere Declaration, ¶ 8; see National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, Div. A, Title IX, Subtitle A, § 912, 110 Stat. 9623 (10 U.S.C. § 111 note). Sometimes, the video captured by the White House Communications Agency is used to provide a real-time stream on the White House website, as well as other online platforms such as YouTube and Facebook. Deere Declaration, ¶ 8. In other instances, the realtime stream on the White House website, and consequently on other online platforms, comes from the White House correspondents’ pooled feed. Deere Declaration, ¶ 8. Although the White House does not host video following the conclusion of the real-time stream, the White House page on YouTube and Facebook hosts the recordings after the live event concludes. Deere
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Declaration, ¶ 8. Any member of the public can view a press briefing, either live or recorded, on YouTube with captioning provided by the White House through a contractor. Deere Declaration, ¶ 8. The White House also provides captioning through a contractor to be included with recordings of press briefings available on Facebook. Deere Declaration, ¶ 8.
Consistent with the standard historical practice at the White House during at least the last three Presidential Administrations, ASL interpretation has not been provided at public briefings. Deere Declaration, ¶ 11. This has been true for press briefings on matters related to significant national emergencies and events that, in some cases, endure for several years (e.g. military operations in Iraq). Deere Declaration, ¶ 12. Nevertheless, in addition to any closed captioning provided by the networks in accordance with their legal obligations, Deere Declaration ¶ 13, the White House provides the information from the press briefings through alternative means. Deere Declaration, ¶ 14. For instance, in addition to the captioned video uploads already described, for all White House Coronavirus Task Force briefings, the White House posts on the official White House website, generally within a few hours, a transcript of the full press briefing. Deere Declaration, ¶ 14. The White House Press Office also distributes each full transcript to reporters and media organizations. Deere Declaration, ¶ 14.
Plaintiffs are the National Association of the Deaf (“NAD”) and five individuals who, themselves, are deaf, Complaint (“Compl.”), ECF No. 1, ¶¶ 11-16. Plaintiffs request live ASL interpretation during public briefings concerning the coronavirus. Compl. ¶ 1. Plaintiffs allege they have attempted to watch the coronavirus briefings but are unable to understand them without an ASL interpreter. Compl. ¶¶ 12-16.
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II. Legal Background A. Section 504 of the Rehabilitation Act and Implementing Regulations
Section 504 of the Rehabilitation Act of 1973 (“the Rehabilitation Act”), 29 U.S.C. § 794, prohibits federal agencies and recipients of federal financial assistance from conducting programs or activities that discriminate on the basis of disability. Although section 504 originally applied only to recipients of federal funds, Congress amended the statute in 1978 to apply its provisions to federal agencies’ programs or activities. See Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, Pub. L. No. 95-602, 92 Stat. 2955 (Nov. 6, 1978). As amended, Section 504 provides that:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity . . . conducted by any Executive agency . . . . 29 U.S.C. § 794(a). Section 504 further provides that “[t]he head of each [Executive] agency shall promulgate such regulations as may be necessary to carry out” the 1978 Amendments to the Act, which extended its protections to “program[s] or activit[ies]” conducted by federal agencies. Id. Neither section 504 nor any other section of the Rehabilitation Act defines the statutory term “Executive agency.” Section 505(a)(2), 29 U.S.C. § 794a(a)(2), sets forth the remedies for alleged violations of section 504. Specifically, section 505(a)(2) provides: The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 . . . shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section [504] of [the Rehabilitation Act]. Id. Notably, while this provision authorizes specific remedies for any section 504 violation committed by a nonfederal recipient of federal funds or by a federal agency that provides such
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funds, it does not create remedies for alleged disability discrimination under any programs or activities conducted by a federal agency.
Following the 1978 amendments, the Office of Administration (“OA”) within the EOP promulgated a regulation in 1988 that implements section 504 for the EOP components identified. See 3 C.F.R. part 102. The regulation defines “agency” to mean:
for purposes of this regulation only, the following entities in the Executive Office of the President: the White House Office, the Office of the Vice President, the Office of Management and Budget, the Office of Policy Development, the National Security Council, the Office of Science and Technology Policy, the Office of the United States Trade Representative, the Council on Environmental Quality, the Council of Economic Advisers, the Office of Administration, the Office of Federal Procurement Policy, and any committee, board, commission, or similar group established in the Executive Office of the President. 3 C.F.R. § 102.103. The regulation provides generally that “no qualified individual with handicaps shall, because the agency’s facilities are inaccessible to or unusable by individuals with handicaps, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.” Id. at § 102.149. With some exceptions, EOP “shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with handicaps.” Id. at § 102.150(a). Thus, for example, each agency within EOP “shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.” Id. at § 102.160(a). The agency is required to “furnish auxiliary aids where necessary to afford an individual with . . . equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.” Id. at § 102.160(a)(1). However, the regulation leaves to the agency the discretion to determine “what type of auxiliary aid is necessary,” giving “primary consideration to the requests of the individual.” Id. at §
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102.160(a)(1)(i). In determining what aid is necessary, an agency within EOP is not required “to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens.” Id. at § 102.160(d). Instead, “the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that . . . individuals with handicaps receive the benefits and services of the program or activity.” Id.
Finally, the regulations set forth a process for resolving any disputes through the filing and consideration of administrative complaints. 3 C.F.R. § 120.170. As relevant here, administrative complaints may be sent to the Director of Facilities Management, Office of Administration, at an address provided. Id. at § 120.170(c). Among other requirements, a “complete complaint” must include “a written statement that contains the complainant’s name and address and describes the agency’s alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of section 504.” Id. at § 102.103. All “complete complaints” are to be investigated and decided in writing within a set time period. Id. at § 120.170(d). Decisions with which a complainant is dissatisfied may be administratively appealed. Id.
B. The Administrative Procedure Act The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, establishes a waiver of sovereign immunity and a cause of action for injunctive relief for parties adversely affected either by agency action or by an agency’s failure to act. See 5 U.S.C. §§ 702, 706(1)-(2); see also Heckler v. Chaney, 470 U.S. 821, 828 (1985). These provisions apply only to “agency” action. 5 U.S.C. § 551. The APA defines an “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency,” with certain exceptions. 5 U.S.C. §§ 551(1), 701(b)(1). As discussed in greater detail below, this definition
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has been held to exclude from its scope the President of the United States, Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992), the Vice President, Meyer v. Bush, 981 F.2d 1288, 1295 (D.C. Cir. 1993), or components of EOP that are comprised of close advisors to the President, see, e.g., Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 266 F. Supp. 3d 297, 315 (D.D.C. 2017).
LEGAL STANDARDS “A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” (citation omitted)). To meet this burden, a plaintiff must demonstrate that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. “‘When seeking a preliminary injunction, the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.’” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). Although the last two factors tend to merge when the government is the opposing party, Guedes v. ATF, 920 F.3d 1, 10 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 789 (2020), a plaintiff cannot prevail without some showing on each of the four factors. See Winter, 555 U.S. at 23-24, 31-32 (holding that “proper consideration of” balance of equities and public interest “alone requires denial of the requested
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injunctive relief” and thus finding no need to address likelihood of success).1 Finally, where, as here, the preliminary injunction sought would be a mandatory one, meaning that its terms would alter rather than preserve the status quo, the Court’s power to issue a preliminary injunction “should be sparingly exercised.” Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) (citation omitted).
ARGUMENT I. Plaintiffs Are Not Likely to Succeed on the Merits of Their Claims
Plaintiffs’ request for a preliminary injunction to require the inclusion of live ASL interpreters at all public briefings that “address issues concerning COVID-19,” Pls.’ Proposed Order, ECF No. 2-2 (“Proposed Order”), should be rejected. The information conveyed during the White House coronavirus briefings is available through multiple methods, including closed captioning during live broadcasts, as required by the Telecommunications Act of 1996, 47 U.S.C. § 255, and through full transcripts generally available within hours after the briefings’ conclusions. Defendants thus provide access to pandemic-related information through alternative, non-auditory means.
Nor can Plaintiffs satisfy the stringent requirements necessary to support the imposition of a mandatory preliminary injunction. See Sherley, 644 F.3d at 393. Plaintiffs are unlikely to succeed on the merits of their claims because they lack a cause of action under section 504 to challenge the conduct of federal programs or activities. Nor could the APA supply a cause of action because Defendants are not agencies within the meaning of the APA. Finally, Plaintiffs’
1 The D.C. Circuit “has, in the past, followed the ‘sliding scale’ approach to evaluating preliminary injunctions . . . . The continued viability of the sliding scale approach is highly questionable, however, in light of the Supreme Court’s holding in Winter . . .” Singh v. Carter, 185 F. Supp. 3d 11, 16 (D.D.C. 2016) (citing In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013)); see also Davis, 571 F.3d at 1295-96 (Kavanaugh, J., concurring).
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mandamus claim must be rejected because Defendants have not failed to perform a ministerial duty. Thus, Plaintiffs are not entitled to a preliminary injunction.
A. Plaintiffs Lack a Cause of Action Under Section 504 Plaintiffs are unlikely to succeed on the merits of their claims because section 504 does not supply a private cause of action to enforce the nondiscrimination requirements at issue against an Executive agency with respect to the operation of its programs or activities. Sai v. Dep’t of Homeland Sec., 149 F. Supp. 3d 99, 112 (D.D.C. 2015) (“Plaintiff does not have a cause of action under the Rehabilitation Act to remedy” the agency’s alleged noncompliance with its regulations for processing administrative complaints.). “[P]rivate rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Determining whether Congress has created a private right of action requires the Court “to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Id. Although the Rehabilitation Act creates a private right of action against non-federal entities receiving federal financial assistance, the statute does not create a private right of action against federal agencies in their operation of federally-run programs or activities.2 Sai, 149 F. Supp. 3d at 112. The “remedies” provision for section 504 – section 505(a)(2) – does not supply a private right of action to enforce its provisions in this context. Lane v. Pena, 518 U.S. 187, 197 (1996). The remedies provision grants remedies for disability discrimination “to any person aggrieved by
2 See, e.g., Cousins v. Sec’y of the U.S. Dep’t of Transp., 880 F.2d 603, 605-06 (1st Cir. 1989) (en banc) (Breyer, J.); Clark v. Skinner, 937 F.2d 123, 125-26 (4th Cir. 1991); Kinneary v. City of N.Y., 358 F. Supp. 2d 356, 359-60 (S.D.N.Y. 2005); but see, e.g., J.L. v. Soc. Sec. Admin., 971 F.2d 260, 264 (9th Cir. 1992) (private right of action against federal agencies operating federal programs is available under section 504); Doe v. Att’y Gen., 941 F.2d 780, 794-95 (9th Cir. 1991)(same).
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any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section [504] of this title.” 29 U.S.C. § 794a(a)(2). But it authorizes remedies only against federal agencies providing federal assistance. Thus, section 505(a)(2) creates a private right of action against federal agencies only when they provide funds to non-federal entities and not when they conduct their own programs and activities. Lane, 518 U.S. at 193.
Indeed, the Rehabilitation Act “says nothing about the remedies available to a person aggrieved by discrimination in a ‘program or activity conducted by an[] Executive agency,’ [29 U.S.C.] § 794(a)[.]” Sai, 149 F. Supp. 3d. at 113 (citing Lane, 518 U.S. at 192). Section 504, itself, cannot support an express right of action against federal agencies concerning the conduct of federal programs or activities. It directs federal agencies only to establish administrative processes to remedy violations in federal programs. 29 U.S.C. § 794. Under the plain language of the statute, therefore, an individual asserting disability discrimination in the operation of a federal program or activity must raise that claim with the agency through the agency’s administrative complaint procedures under its applicable regulations.
The statute likewise does not imply a cause of action against federal agencies conducting programs under section 504. Sai, 149 F. Supp. 3d at 112. As in Sandoval, the statutory requirement to adopt implementing regulations lacks the necessary “rights-creating language.” Sandoval, 532 U.S. at 288-89; Sai, 149 F. Supp. 3d at 112. Congress’s decision to use the administrative complaint process rather than federal courts to resolve section 504 claims against federal agencies mandates the conclusion that section 504 does not confer an implied private right of action.
The statutory history of section 504 reinforces this conclusion. By adding to section 504 a prohibition against discrimination in “any program or activity conducted by any Executive
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agency” without amending the remedies language in section 505, the 1978 Amendments underscore that Congress did not intend to create a private right of action against Executive agencies for allegations of discrimination in their programs or activities. See 92 Stat. at 2982. Instead, Congress established a comprehensive administrative scheme, id. at 2982–83, and it required federal agencies to promulgate regulations “to carry out” the changes to section 504, id. at 2982; see Se. Cmty. Coll. v. Davis, 442 U.S. 397, 411 n.11 (1979). But the only change made by the Amendments (other than the insertion of the requirement to promulgate regulations) was the extension of section 504 to programs and activities conducted by Executive agencies. In response to the Amendments, many federal agencies adopted regulations allowing persons who allege section 504 violations in federal programs or activities to pursue the resolution of those disputes by filing administrative complaints. The EOP adopted such regulations. See 3 C.F.R. part 102.
In 1998, Congress reiterated that the remedy for section 504 violations in federal programs is administrative. In the course of amending section 508 of the Rehabilitation Act, Congress specified that section 504 violations in federal programs are to be “resolv[ed]” with administrative, rather than judicial, complaints. Rehabilitation Act Amendments of 1998, Pub. L. No. 105-220, 112 Stat. 936, 1092-1242.3
3 The D.C. Circuit has not squarely addressed the issue of whether section 504 waives sovereign immunity for suits against Executive agencies. At most, the court of appeals in dicta has observed that the government’s determination on appeal not “to challenge the applicability of section 504 is understandable given the expansive meaning of the words ‘program or activity.’” Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1266 n.13 (D.C. Cir. 2008) (citations omitted). Such a passing remark is not binding precedent and, thus, has no effect on the government’s position here that section 504 does not allow a private cause of action against the Defendants.
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Nor does EOP’s regulation supply a private right of action. Regulatory language alone cannot supply a private right of action not found in the statute. Sandoval, 532 U.S. at 291 (“[l]anguage in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”); Sai, 149 F. Supp. 3d at 112. Moreover, the regulation at issue here does not purport to create a right of action but simply affords plaintiffs the opportunity to submit an administrative complaint of disability discrimination, which the agency will investigate and resolve.4 See, e.g., 3 C.F.R. § 102.170.
For all these reasons, just as the statute does not create an express cause of action for Plaintiffs, “the Rehabilitation Act does not provide an implied cause of action for discrimination in federal programs and activities (or for failure to comply with administrative procedures).” Sai, 149 F. Supp. 3d at 115.
B. Defendants Are Not Agencies Within the Scope of the APA Plaintiffs also are not able to pursue their claims under the APA. For those who have filed an administrative complaint under section 504 against a federal agency and are unsatisfied with the agency’s response, filing suit under the APA is generally the avenue for judicial review. The APA generally waives sovereign immunity for “[a]n action in a court of the United States seeking relief other than money damages.” 5 U.S.C. § 702; see, e.g., Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-63 (1999). But the APA permits a plaintiff to seek relief only
4 The Plaintiffs attached to the Complaint letters addressed to the White House requesting ASL interpretation at public briefings concerning the coronavirus. Compl. Exhs. A-E. However, the only Plaintiff in this case to have submitted correspondence to the White House requesting ASL interpretation at public coronavirus briefings was the National Association of the Deaf (“NAD”). Compl. Exh. C. NAD’s letter does not appear to satisfy the requirements for a “complete complaint” under EOP’s regulation governing administrative complaints, as it fails to include any mention of the Rehabilitation Act, let alone sufficient details to enable the recipient to fully comprehend either the nature of the alleged discriminatory action or the basis for the requested remedy. 3 C.F.R. § 102.103.
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against “agencies,” 5 U.S.C. § 551(1), and Defendants are not “agencies” subject to judicial review under the APA. See Franklin, 505 U.S. at 800-01 (the President is not subject to the APA).
The Supreme Court and the D.C. Circuit have consistently recognized that while the statutory definition of “agency” may be broad, it does not encompass entities within the Executive Office of the President that do not exercise substantial independent authority. In Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), the Court of Appeals concluded that the APA “apparently confers agency status on any administrative unit with substantial independent authority in the exercise of specific functions.” Id. Following this reasoning, the court held that the Freedom of Information Act (“FOIA”), which at the time incorporated the APA’s definition of “agency,” applied to the Office of Science and Technology Policy (“OSTP”), an entity within the Executive Office of the President, because OSTP did not merely “advise and assist the President” but also had an “independent function of evaluating federal programs.” Soucie, 448 F.2d at 1073-75.
The Supreme Court confirmed that entities that merely “advise and assist the President” are not “agencies” in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980). There, the Court considered the scope of FOIA, whose definition of “agency” had been amended in 1974 to its current version, which defines agency to “include[] any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f)(1) (emphasis added). The Court reasoned that “[t]he legislative history is unambiguous . . . in explaining that the ‘Executive Office’ does not include the Office of the President” and that Congress did not intend
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“agency” to encompass “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” Kissinger, 445 U.S. at 156 (quoting H.R. Rep. No. 93-1380, at 15 (1974) (Conf. Rep.)). Indeed, the Conference Report specified that “with respect to the meaning of the term ‘Executive Office of the President’ the conferees intend[ed] the result reached in Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971).” H.R. Rep. No. 93-1380, at 14-15; see Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1040 (D.C. Cir. 1985); see also Meyer, 981 F.2d at 1291 n.1 (explaining Congress had codified the D.C. Circuit’s analysis of EOP entities in Soucie in the 1974 FOIA Amendments).
This approach is rooted in separation of powers concerns. The Supreme Court has recognized that APA review of the President’s actions would infringe upon a coordinate branch. See Franklin, 505 U.S. at 800-01; see also Dalton v. Specter, 511 U.S. 462, 470 (1994); Detroit Int’l Bridge Co. v. Gov’t of Can., 883 F. 3d 895, 903-904 (D.C. Cir. 2018) (recognizing separation of powers concerns at issue in seeking judicial review of the President’s actions). Such concerns are equally present for entities within the Executive Office of the President that have the sole function of advising and assisting the President, and an exemption from APA review “may be constitutionally required to protect the President’s executive powers.” See Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 909-10 (D.C. Cir. 1993).
Several cases illustrate the application of the test for whether EOP entities “wield[] substantial authority independently of the President.”5 Citizens for Resp. & Ethics in Wash.
5 The D.C. Circuit has used various tests to formulate its inquiry: “These tests have asked, variously, ‘whether the entit[ies] exercise[] substantial independent authority,’ ‘whether . . . the entit[ies’] sole function is to advise and assist the President,’ and in an effort to harmonize these tests, ‘how close operationally the group is to the President,’ ‘whether it has a self-contained structure,’ and ‘the nature of its delegate[d] authority.’ However the test has been stated, common to every case in which we have held that an EOP unit is [an agency] . . . has been a
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(“CREW”) v. Off. of Admin., 566 F.3d 219, 222 (D.C. Cir. 2009) (quoting Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995)). Specifically, courts have looked to whether EOP entities have independent regulatory or funding powers or are otherwise imbued with significant statutory responsibilities. Thus, the D.C. Circuit held OSTP to be an agency because it had independent authority to initiate, fund, and review research programs and scholarships. Soucie, 448 F.2d at 1073-75. Other courts have found the Council for Environmental Quality (“CEQ”) to be an agency because it has the power to issue guidelines and regulations to other federal agencies, Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1262 (D.C. Cir. 1980), and the Office of Management and Budget (“OMB”) to be an agency because it has a statutory duty to prepare the annual federal budget, as well as a Senate-confirmed Director and Deputy Director. Sierra Club v. Andrus, 581 F.2d 895, 902 (D.C. Cir. 1978) (“Congress signified the importance of OMB’s power and function, over and above its role as presidential advisor, when it provided[] . . . for Senate confirmation of the Director and Deputy Director of OMB.”), rev’d on other grounds, 442 U.S. 347 (1979).
On the other hand, courts have held that many other EOP entities – including those sued here – lack such indicia of independent authority. For example, President Reagan’s Task Force on Regulatory Relief, which comprised senior White House staffers and cabinet officials who headed agencies, was not itself an agency because, while it reviewed proposed rules and regulations, it could not itself direct others to take action. Meyer, 981 F.2d at 1294 (“[W]e see no indication that the Task Force, qua Task Force, directed anyone . . . to do anything.”). The Council of Economic Advisors (“CEA”) similarly lacks regulatory or funding power, and
finding that the entity in question ‘wielded substantial authority independently of the President.’” CREW, 566 F.3d at 222-23 (internal citations omitted).
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therefore is not an agency. Rushforth, 762 F.2d at 1042. Nor is the National Security Council (“NSC”) an agency, because it only advises and assists the President in coordinating and implementing national security policy. Armstrong v. Exec. Off. of the President, 90 F.3d 553, 560-61 (D.C. Cir. 1996). The Office of Administration, which provides “operational and administrative support of the work of the President and his EOP staff,” including IT support, is not an agency, CREW, 566 F.3d at 224-25, nor is the Executive Residence Staff, which supports the President’s ceremonial duties, see Sweetland, 60 F.3d at 854. The White House Office is similarly not an agency, see Sculimbrene v. Reno, 158 F. Supp. 2d 26, 35-36 (D.D.C. 2001), and neither is the White House Counsel’s Office, Nat’l Sec. Archive v. Archivist of the U.S., 909 F.2d 541, 545 (D.C. Cir. 1990), which is within the White House Office. In short, under this Circuit’s authority, EOP entities that implement binding regulations (CEQ), grant funding (OSTP), or have important statutorily defined functions (OMB) constitute agencies; those that advise the President (CEA, Task Force), coordinate policy among different entities (NSC), provide administrative support for the President’s activities (OA, Executive Residence), or constitute his closest advisors (White House Office) do not.
Accordingly, none of the Defendants is an “agency” for purposes of the APA. First, it is well-established that “[t]he actions of the President . . . are not reviewable under the APA because . . . the President is not an ‘agency.’” Dalton, 511 U.S. at 470; Franklin, 505 U.S. at 800-01. Second, the D.C. Circuit has recognized that the Office of the Vice President is not an agency. Meyer, 981 F.2d at 1295. As the D.C. Circuit reasoned in Meyer, Presidents generally are “reluctant to delegate real supervisory authority over the executive branch to the Vice President.” Id. The Vice President may be the Chair of the Coronavirus Task Force, but his involvement does not confer “agency” status for purposes of the APA. Id. at 1295-96. The
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remaining Defendants are all close advisors to the President who are not agencies within the meaning of the APA. And although the Plaintiffs have named EOP, generally, as a Defendant in this case, their claims in fact challenge actions solely within the functions of the White House Office. As noted above, the Press Secretary is part of the White House Office, Deere Declaration ¶¶ 1-2, and the White House Office has been held not to be an agency within the scope of the APA. Sculimbrene v. Reno, 158 F. Supp. 2d at 36 (“The term ‘agency’ . . . has been interpreted clearly to exclude the White House Office.” (citing Kissinger, 445 U.S. at 156; Nat’l Sec. Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C. Cir. 1990)); Democracy Forward Found. v. White House Office of Am. Innovation, 356 F. Supp. 3d 61, 65 (D.D.C. 2019) (“[B]ecause the Office of the President, also known as the White House Office, has the sole function of advising and assisting the President, the White House Office is not included within FOIA’s scope.”). Accordingly, Plaintiffs would be unlikely to succeed because they do not have a cause of action against the Defendants under the APA. And even under the APA, the Plaintiffs would not be entitled to the specific mandatory injunctive relief they seek here. See, e.g., Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (the APA “empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act,’ or ‘to take action upon a matter, without directing how it shall act.’” (quoting Attorney General’s Manual on the Administrative Procedure Act 108 (1947))).
C. Plaintiffs Are Not Likely to Succeed on Their Claim for Mandamus Plaintiffs are also unlikely to succeed on their claim for mandamus. The writ of mandamus is “a drastic and extraordinary remedy reserved for really extraordinary causes.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (citation omitted); see also Doe v. Exxon Mobil Corp., 473 F.3d 345, 353 (D.C. Cir. 2007). Mandamus “is hardly ever granted.” In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005). It is available only if “(1) the plaintiff has a clear
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right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.” In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (citations omitted). “[T]hose invoking the court’s mandamus jurisdiction must have a ‘clear and indisputable’ right to relief; and even if the plaintiff overcomes all these hurdles, whether mandamus relief should issue is discretionary.” In re Cheney, 406 F.3d at 729.
Mandamus is not available except to compel a nondiscretionary duty. Pittston Coal Grp. v. Sebben, 488 U.S. 105, 121 (1988). “[T]he word ‘duty’ in § 1361 must be narrowly defined, and . . . a plaintiff’s legal grounds supporting the government’s duty to him must ‘be clear and compelling.’” In re Cheney, 406 F.3d at 729 (citation omitted). Indeed, a writ of mandamus may issue only where “the duty to be performed is ministerial and the obligation to act peremptory and clearly defined. The law must not only authorize the demanded action, but require it; the duty must be clear and undisputable.” Shoshone Bannock Tribes v. Reno, 56 F.3d 1476, 1480 (D.C. Cir. 1995) (citation omitted). A duty is not “ministerial” unless it is “so plainly prescribed as to be free from doubt and equivalent to a positive command. . . . Where the duty is not thus plainly prescribed, but depends on a statute or statutes the construction or application of which is not free from doubt, it is regarded as involving the character of judgment or discretion which cannot be controlled by mandamus.” Consol. Edison Co. of N.Y., Inc. v. Ashcroft, 286 F.3d 600, 605 (D.C. Cir. 2002) (quoting Wilbur v. United States, 281 U.S. 206, 218-19 (1929)). “[I]f there is no clear and compelling duty under the statute as interpreted, the district court must dismiss the action.” In re Cheney, 406 F.3d at 729.
Plaintiffs argue that they have a clear right to “an order compelling Defendants to provide ASL interpretation at all briefings related to the COVID-19 pandemic[,]” Pl.’s Mot. for a Prelim. Inj. & Request for Hearing, at 17, ECF No. 2 (“Pl. Mot.”), but that is incorrect. Far from creating
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a “clear and indisputable” right to a “plainly prescribed” duty, the Rehabilitation Act’s general prohibition of discrimination preserves to federal agencies the discretion to make fact-specific, case-by-case assessments of the reasonableness of the changes requested by disabled individuals. Although “[s]ection 504 unambiguously imposes a duty on federal agencies not to discriminate on the basis of disability in ‘any program or activity’ they conduct,” Sai, 149 F. Supp. 3d at 111, the statute neither defines the term agency nor specifically prescribes the manner in which covered agencies fulfill this obligation. Id. Thus, EOP’s implementing regulation concerning communications, for example, describes its discretion to determine appropriate auxiliary aids to provide effective communication to persons with disabilities without incurring undue burden or fundamentally altering the program or activity. 3 C.F.R. § 102.160. It exercises its own judgment to assess particular requests and balance relevant considerations to make fact-specific determinations about reasonable accommodations on a case-by-case basis.
As has been the case historically for White House press briefings, Deere Declaration ¶¶ 11-12, ASL interpretation has not been provided at briefings. Nevertheless, access to information from the White House coronavirus briefings is available through alternative, non-auditory means. Networks providing live television broadcasts generally are responsible for including closed captioning. Deere Declaration ¶ 13; see 47 U.S.C. § 255. In addition, the White House provides through a contractor closed-captioned videos of briefings on the White House pages on YouTube and Facebook. Deere Declaration ¶ 8. Finally, the White House has posted online and distributed to reporters transcripts of all White House Coronavirus Task Force briefings. Id. ¶ 14. Given the numerous non-auditory means of access to information from White House coronavirus briefings, Plaintiffs cannot show that the statute clearly and indisputably requires the specific action of providing live, in-frame ASL interpretation for coronavirus briefings. To the contrary,
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Plaintiffs’ claim for mandamus should be dismissed because Plaintiffs cannot show that they have a clear and indisputable right to an order requiring live, in-frame ASL interpretation at all White House briefings related to the coronavirus pandemic. In re Cheney, 406 F.3d at 729.6
II. The Remaining Factors Do Not Favor Issuance of a Preliminary Injunction Because Plaintiffs have not sustained their burden to show likelihood of success on the
merits, their motion for a preliminary injunction fails. See, e.g., Sherley, 644 F.3d at 393 (“[W]e read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, freestanding requirement for a preliminary injunction.’” (quoting Davis, 571 F.3d at 1296 (concurring opinion))). No further inquiry is required.
Even if Plaintiffs could show likelihood of success on the merits, the remaining factors – irreparable harm, the balance of the equities, and the public interest – do not favor a preliminary injunction that would immediately require live, televised in-frame ASL interpretation at all briefings that concern coronavirus. See e.g., Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (The touchstone of irreparable harm is whether “adequate compensatory or other corrective relief will be available at a later date.”) (per curiam) (internal quotations omitted); Nken v. Holder, 556 U.S. 418, 435 (2009) (Where the government is a party, the final two elements of the preliminary injunction standard tend to merge.). Plaintiffs request broad relief that would immediately require “live televised in-frame ASL interpretations at all public briefings conducted by any Defendant that address issues concerning COVID-19, including all such briefings involving President Trump, Vice President Pence, Press Secretary McEnany, or
6 Because plaintiffs rely exclusively on Section 504 and mandamus to support their preliminary injunction bid, there is no need to address the other two claims in the complaint, for violation of the First Amendment and for nonstatutory review. Pl. Mot. at 17 & n.16. In any event, plaintiffs have not sustained their burden to show likelihood of success on the merits with respect to either of these claims.
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any members of the White House Coronavirus Task Force.” Pls.’ Proposed Order, ECF No. 2-2. As written, this relief is exceedingly broad. As an example, “address[ing] issues concerning COVID-19” would implicate instances where press briefings are announced and intended to focus on subjects other than coronavirus, but where a reporter asks a question either directly about or concerning coronavirus. Such a situation would clearly be outside of Defendants’ control yet covered by Plaintiffs’ proposed order.
Even putting aside the broad scope of Plaintiffs’ requested relief, to Defendants’ knowledge, such a requirement would be new at the White House, where live ASL interpretation has not been provided during public briefings in any recent Administration, even during prior times of national emergency or significant events that, in some cases, endure for several years (e.g., military operations in Iraq). Deere Declaration ¶¶ 11-12. As noted, the information presented during press briefings is presented in alternative, non-auditory formats, including live, closed-captioning, see 47 U.S.C. § 255; Deere Declaration ¶ 13; captioned video uploads to YouTube and Facebook, Deere Declaration ¶ 8; and online posting of transcripts and distribution of transcripts to reporters, Deere Declaration ¶ 14. And to the extent Plaintiffs allege that they lack access to the Internet or face other similar barriers but acknowledge that the White House has provided non-auditory means for accessing the content of the press briefings, cf. Strail Declaration ¶ 3, those particular barriers alleged by Plaintiffs are not disabilities within the terms of the relief authorized by the Rehabilitation Act, which addresses certain physical and mental impairments, see 29 U.S.C. §§ 794(a), 705(20). Therefore, those obstacles do not provide support for the broad, mandatory injunctive relief that Plaintiffs seek here.
The broad relief that Plaintiffs seek does not satisfy the requirement that a preliminary injunction be “tailored to redress the plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct.
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1916, 1934 (2018). In light of the historical practice across multiple Administrations regarding

White House press briefings in general, see Deere Declaration ¶¶ 11-12, Plaintiffs have not

shown the basis for an injunction that would require live, in-frame ASL interpreter services for

all White House press briefings.

CONCLUSION

For the foregoing reasons, Defendants’ respectfully request that the Court deny the

Plaintiffs’ Motion for Preliminary Injunction.

Dated: August 14, 2020

Respectfully submitted,

ETHAN P. DAVIS Acting Assistant Attorney General
DAVID M. MORRELL Deputy Assistant Attorney General
JENNIFER D. RICKETTS Branch Director Federal Programs Branch
CARLOTTA P. WELLS Assistant Branch Director Federal Programs Branch
/s/ Amber Richer__________________ AMBER RICHER (CA Bar No. 253918) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 514-3489 Email: amber.richer@usdoj.gov
Attorneys for Defendants
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CERTIFICATE OF SERVICE
I hereby certify that on August 14, 2020, I electronically transmitted the foregoing to the
parties and the clerk of court for the United States District Court for the District of Columbia
using the CM/ECF filing system.
/s/ Amber Richer__________________ AMBER RICHER (CA Bar No. 253918) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 514-3489 Email: amber.richer@usdoj.gov

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 Case 1:20-cv-02107-JEB Document 11 Filed 08/20/20 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION OF THE DEAF, et al.,

Plaintiffs,

v.

Civil Action No. 20-cv-2107

DONALD J. TRUMP, et al.,

Defendants.

REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS Page
INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 2 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR REHABILITATION
ACT CLAIM....................................................................................................................... 2 A. The Rehabilitation Act Provides a Private Right of Action for Declaratory
and Injunctive Relief Against Executive Agencies .................................................2 1. Section 504’s Text, Structure, and History Support a Private Right
of Action ......................................................................................................3 2. Courts Have Repeatedly Held That the Rehabilitation Act Provides
a Private Right of Action .............................................................................7 3. Defendants’ Arguments Are Unavailing ...................................................10
a. Defendants’ Cases Are Distinguishable ............................................ 10 b. Defendants’ Textual Arguments Fail ................................................ 13 B. Plaintiffs May Also Pursue Their Rehabilitation Act Claim in Equity .................17 C. Defendants Have Violated the Rehabilitation Act.................................................18 II. ALTERNATIVELY, PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR CLAIM FOR MANDAMUS ............................................................................................ 22 III. PLAINTIFFS ARE LIKELY TO SUFFER IRREPARABLE HARM IF A PRELIMINARY INJUNCTION IS NOT GRANTED..................................................... 23 IV. THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST WEIGH HEAVILY IN FAVOR OF PLAINTIFFS........................................................................ 24 CONCLUSION............................................................................................................................. 25
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TABLE OF AUTHORITIES
Page
Cases
13th Reg’l Corp. v. U.S. Dep’t of Interior, 654 F.2d 758 (D.C. Cir. 1980) ...........................................................................................22, 23
Alexander v. Sandoval, 532 U.S. 275 (2001)......................................................................................................... passim
Am. Council of Blind v. Astrue, No. C 05-04696 WHA, 2008 WL 1858928 (N.D. Cal. Apr. 23, 2008).....................................9
Am. Council of the Blind v. Paulson, 525 F.3d 1256 (D.C. Cir. 2008) .................................................................................................8
*American Council of Blind v. Paulson, 463 F. Supp. 2d 51 (D.D.C. 2006) ...........................................................................8, 12, 14, 16
Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015).................................................................................................................17
*Cannon v. Univ. of Chicago, 441 U.S. 677 (1979)......................................................................................................... passim
Clark v. Skinner, 937 F.2d 123 (4th Cir. 1991) .......................................................................................10, 11, 12
Cort v. Ash, 422 U.S. 66 (1975).............................................................................................................3, 6, 7
Cousins v. Secretary of the U.S. Dep’t of Transp., 880 F.2d 603 (1st Cir. 1989) ........................................................................................10, 11, 12
Davis v. Astrue, Nos. C-06-6108, C-09-0988, 2011 WL 3651064 (N.D. Cal. Aug. 18, 2011) ...........................9
Disabled in Action v. Pierce, 606 F. Supp. 310 (E.D. Pa. 1985) ..............................................................................................9
Doe v. Attorney General, 941 F.2d 780 (9th Cir. 1991) ........................................................................................... passim
Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C. 1992) ................................................................................................7
El Paso Nat. Gas Co. v. United States, 750 F.3d 863 (D.C. Cir. 2014) ...................................................................................................3
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Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005) ...................................................................................................22
Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d 28 (D.D.C. 2011) ...........................................................................................22
Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988)...................................................................................................................6
Howard v. Bureau of Prisons, No 3:05-CV-1372, 2008 WL 318387 (M.D. Pa. Feb. 4, 2008) .................................................9
In re Cheney, 406 F.3d 723 (D.C. Cir. 2005) .................................................................................................23
J.L. v. Soc. Sec. Admin., 971 F.2d 260 (9th Cir. 1992) .................................................................................................8, 9
Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Grp., 219 F. Supp. 2d 20 (D.D.C. 2002) ...........................................................................................22
Kinneary v. City of N.Y., 358 F. Supp. 2d 356 (S.D.N.Y. 2005)................................................................................10, 11
Kling v. Los Angeles Cty., 633 F.2d 876 (9th Cir. 1980) .....................................................................................................3
Lane v. Pena, 518 U.S. 187 (1996)......................................................................................................... passim
Lane v. Pena, 867 F. Supp. 1050 (D.D.C. 1994) ..............................................................................................7
Lee v. U.S. Agency for Int’l Dev., 859 F.3d 74 (D.C. Cir. 2017) .....................................................................................................3
Majocha v. Turner, 166 F. Supp. 2d 316 (W.D. Pa. 2001)......................................................................................21
*Martinez v. Cuomo, No. 20-CV-3338 (VEC), 2020 WL 2393285 (S.D.N.Y. May 12, 2020).............................2, 21
McBride v. Mich. Dep’t of Corr., 294 F. Supp. 3d 695 (E.D. Mich. 2018)...................................................................................21
McRaniels v. U.S. Dep’t of Veterans Affairs, 15-cv-802, 2017 WL 2259622 (W.D. Wis. May 19, 2017).................................................9, 11
Mendez v. Gearan, 947 F. Supp. 1364 (N.D. Cal. 1996) ..........................................................................................9 iii

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Muhammad v. United States, 300 F. Supp. 3d 257 (D.D.C. 2018) .........................................................................................15
Nat’l Parks Conservation Ass’n v. Semonite, 282 F. Supp. 3d 284 (D.D.C. 2017) .........................................................................................24
Pierce v. District of Columbia, 128 F. Supp. 3d 250 (D.D.C. 2015) ...........................................................................................7
Sai v. Dep’t of Homeland Sec., 149 F. Supp. 3d 99 (D.D.C. 2015) ................................................................................... passim
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) .................................................................................................23
United States v. Wilson, 290 F.3d 347 (D.C. Cir. 2002) ...................................................................................................6
Washington v. Fed. Bureau of Prisons, No. 5:16-cv-03913, 2019 WL 2125246 (D.S.C. Jan. 3, 2019) ..................................................9
Yeh v. U.S. Bureau of Prisons, No. 3:18-CV-943, 2019 WL 3713874 (M.D. Pa. May 15, 2019)..............................................9
Yeh v. U.S. Bureau of Prisons, No. 3:18-CV-943, 2020 WL 1505661 (M.D. Pa. Mar. 30, 2020) ...........................................14
Statutes 20 U.S.C. § 1681..............................................................................................................................4 29 U.S.C. § 794...................................................................................................................... passim 29 U.S.C. § 794a .................................................................................................................... passim 29 U.S.C. § 794d............................................................................................................................16 42 U.S.C. § 2000d............................................................................................................................4 42 U.S.C. § 2000d–1......................................................................................................................14 Other Authorities 3 C.F.R. § 102.160 .............................................................................................................18, 22, 23 3 C.F.R. § 102.170 .........................................................................................................................15 S. Rep. No. 93-1297, 1974 U.S.C.C.A.N. 6373 ..............................................................................4
iv

Case 1:20-cv-02107-JEB Document 11 Filed 08/20/20 Page 6 of 32 Jo Anne Simon, The Use of Interpreters for the Deaf and the Legal Community’s
Obligation to Comply With the A.D.A., 8 J.L. & Health 155 (1994) .......................................20 Lauren Oberhein, Selective Hearing: Communication Barriers in the Court
System for Deaf and Hard-of-Hearing Victims of Rape or Sexual Assault, 25 Wm. & Mary J. Race, Gender & Soc. Just. 163 (2018)...........................................................20 Michele LaVigne & McCay Vernon, An Interpreter Isn’t Enough: Deafness, Language, and Due Process, 844 Wis. L. Rev 843 (2003) .....................................................20
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INTRODUCTION Defendants assert that the White House has “worked diligently” to provide the general public with “access to important public health information” during this worldwide pandemic. See Defendants’ Opposition to Motion for Preliminary Injunction (Dkt. No. 9) (“Opp.”) 1 (emphasis added). In reality, however, Defendants are refusing to provide such access to Plaintiffs and the hundreds of thousands of other deaf persons who rely on ASL to communicate. According to Defendants, closed-captioning and written transcripts are enough. That is wrong. Defendants assume—with no factual support whatsoever—that all deaf persons can read and understand written English versions of White House coronavirus briefings. But Plaintiffs’ unrebutted evidence demonstrates that English and ASL are different languages and thus, for many deaf persons, English is a foreign language, especially for complex topics like the coronavirus. Closed captions and after-the-fact transcripts written in a foreign language do not provide such persons with meaningful access to the briefings. ASL interpretation is required. Defendants dedicate most of their brief to arguing that the Rehabilitation Act does not provide Plaintiffs with a private right of action. That too is wrong, and is contrary to the plain language of the statute and multiple decisions of this Court and other courts across the country. Defendants also argue they are immune from suit under the Administrative Procedure Act, even though Plaintiffs have not even asserted such a claim here. According to Defendants, then, even if the White House intentionally discriminates against people with disabilities, the victims would have no judicial recourse whatsoever—they could not pursue claims under the Rehabilitation Act or the APA. That position is extreme and unwarranted, and far beyond what Congress intended when it amended the Rehabilitation Act for the specific purpose of prohibiting discrimination by Executive agencies. The White House is not above the law.

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Defendants’ brief is also remarkable for what it does not address. Defendants do not dispute—and thus concede—that Plaintiffs are likely to suffer irreparable harm in the absence of an injunction. This alone must tilt the scale strongly in favor of granting an injunction. Additionally, Defendants do not dispute—and thus concede—that providing ASL interpreters during press briefings is administratively feasible and relatively inexpensive, which is confirmed by the fact that all 50 states’ governors have done it.
Finally, Defendants ignore the directly on-point decision of Martinez v. Cuomo, in which the court ordered New York’s Governor Cuomo to provide in-frame ASL interpreters at each of his coronavirus briefings. The court’s words ring equally true as applied to President Trump:
The [President] has not explained why he resisted Plaintiffs’ [and others’] pre-litigation pleas for him to implement in-frame ASL interpretation. His position in this litigation comes down to his view that the law does not require it; he has done other things to accommodate the deaf, and therefore, he will not provide in-frame ASL interpretation. That dismissive attitude towards this segment of his constituency—beyond being unkind—runs counter to the law of the land as articulated in the ADA and RA [Rehabilitation Act].
No. 20-CV-3338 (VEC), 2020 WL 2393285, at *6 n.7 (S.D.N.Y. May 12, 2020). This Court should follow the well-reasoned decision in Martinez and likewise order
Defendants to provide in-frame ASL interpreters at all White House coronavirus briefings. ARGUMENT
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR REHABILITATION ACT CLAIM A. The Rehabilitation Act Provides a Private Right of Action for Declaratory and Injunctive Relief Against Executive Agencies Defendants argue that Plaintiffs lack a private right of action under the Rehabilitation Act
to seek declaratory and injunctive relief against Executive agencies. Opp. 11-14. Defendants are wrong.
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To determine whether a statute provides a private right of action, the Court “interpret[s] the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). “Statutory intent . . . is determinative.” Id. The Court’s inquiry “begins with the text and structure of the statute.” Lee v. U.S. Agency for Int’l Dev., 859 F.3d 74, 77 (D.C. Cir. 2017). The Court also considers the four factors enumerated in Cort v. Ash, 422 U.S. 66 (1975): whether (1) the plaintiff is one of the class for whose benefit the statute was enacted; (2) some indication exists of legislative intent, explicit or implicit, either to create or to deny a private remedy; (3) implying a private right of action is consistent with the underlying purposes of the legislative scheme; and (4) the cause of action is one traditionally relegated to state law, such that it would be inappropriate for the court to infer a cause of action based solely on federal law. El Paso Nat. Gas Co. v. United States, 750 F.3d 863, 889 (D.C. Cir. 2014).
1. Section 504’s Text, Structure, and History Support a Private Right of Action
Congress enacted section 504 as part of the Rehabilitation Act of 1973. As originally enacted, section 504 provided:
No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 394 (1973) (current version at 29 U.S.C. § 794(a)). Congress modeled the text of section 504 on the language of section 601 of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or
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national origin.1 Kling v. Los Angeles Cty., 633 F.2d 876, 878 (9th Cir. 1980); S. Rep. No. 931297 (1974), as reprinted in 1974 U.S.C.C.A.N. 6373, 6390 (“Section 504 was patterned after, and is almost identical to, the anti-discrimination language of section 601 . . . .”). The text of section 504 also mirrors the language of section 901 of Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex and was also modeled on section 601.2
The Supreme Court has held that these nearly identical provisions of Title VI and Title IX create private rights of action. Sandoval, 532 U.S. at 279 (“[P]rivate individuals may sue to enforce § 601 of Title VI and obtain both injunctive relief and damages.”); Cannon v. Univ. of Chicago, 441 U.S. 677, 681–709 (1979) (holding that private right of action exists to enforce Title IX). In so doing, the Court emphasized that the rights-creating language of the statute— “No person . . . shall . . . be subjected to discrimination . . . .”—was “the most accurate indicator of the propriety of implication of a cause of action.” Cannon, 441 U.S. at 689–90 & n.13. The Court also found it significant that Congress had modeled section 901 after section 601 of Title VI, and, at the time section 901 was enacted in 1972, “at least a dozen” courts had uniformly interpreted section 601 as providing for a private right of action. Id. at 694–703. Congress, the Court held, was presumed to have known about these judicial decisions when it enacted section 901 in 1972. Id. at 696–97. The “persistence—before 1972 and since, among judges . . . and even implicit in decisions of th[e] Court—of the assumption that both Title VI and Title IX
1 Section 601 provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. 2 Section 901 provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
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created a private right of action” left “no doubt” in the Court’s mind that Congress intended to create a private right of action in section 901. Id. at 702–03.
Section 504 of the Rehabilitation Act has always contained the exact same “rightscreating language” that the Supreme Court held was “critical” to implying private rights of action in sections 601 and 901. Sandoval, 532 U.S. at 288. “Except for the substitution of the word [‘disability’] in [section 504] to replace the words ‘race, color, or national origin’ in Title VI, the two statutes use identical language to describe the benefited class.” Cannon, 441 U.S. at 694–95. It would be completely anomalous to conclude that Congress, through its use of the same language in each of these statutes, intended to create a private right of action in section 601 (in 1964) and section 901 (in 1972) but not in section 504 (in 1973). As such, by 1978, several courts had already held that section 504 provided for a private right of action. See Doe v. Attorney General, 941 F.2d 780, 786 (9th Cir. 1991) (collecting cases).
In 1978, Congress expanded the Rehabilitation Act. As originally drafted, section 504 prohibited disability discrimination only by recipients of federal funds, not by federal government agencies themselves. In 1978, Congress added the following language to the statute to make it apply directly to federal agencies—“. . . or under any program or activity conducted by any Executive agency or by the United States Postal Service.” Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. No. 95-602, 92 Stat. 2955 (1978). The purpose of this amendment was to “extend and strengthen” the 1973 provision, “close th[is] loophole,” and “subject[] federal agencies to section 504’s nondiscrimination requirement.” Doe, 941 F.2d at 785–86 (collecting legislative history). Importantly, “[t]he congressional debate on the amendment[] demonstrate[d] that Congress knew that the courts had interpreted section 504 to provide [a] means of enforcement” through a
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private right of action. Id. at 786 (collecting legislative history). Congress also encouraged private enforcement by adding an attorneys’ fees provision in section 505(b). See 29 U.S.C. § 794a(b).
Accordingly, section 504’s text, structure, and history demonstrate that Congress intended section 504, just like the sections of Title VI and IX on which it was based, to provide a private right of action to enforce its terms through declaratory and injunctive relief.
In addition, all four Cort factors support the conclusion that Congress intended to create a private right of action under section 504.
First, there can be no dispute that Plaintiffs are part of “the class for whose [special] benefit the statute was enacted.” Cort, 422 U.S. at 78. Just as section 901 “explicitly confers a benefit on persons discriminated against on the basis of sex,” Cannon, 441 U.S. at 694, section 504 confers a benefit on persons discriminated against by reason of disability. “Unquestionably, therefore, the first of the four factors . . . favors the implication of a private cause of action.” Id. at 693–94.
Second, as explained above, there is clear indication in the text and history of section 504 “of legislative intent . . . to create . . . a remedy.” Cort, 422 U.S. at 78. Just like section 901 of Title IX, section 504 was patterned after section 601 of Title VI, which courts had uniformly interpreted to provide for a private right of action before passage of the Rehabilitation Act of 1973. See Cannon, 441 U.S. at 694–703. Congress is presumed to have been knowledgeable about this existing law when it enacted the Rehabilitation Act. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185 (1988); United States v. Wilson, 290 F.3d 347, 357 (D.C. Cir. 2002). Thus, just as in Cannon, there is evidence of legislative intent to create a private right of action.
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Third, implying a private right of action is “consistent with the underlying purposes of the legislative scheme.” Cort, 422 U.S. at 78. As in Cannon, implying a private right of action is consistent with the underlying purpose of the legislative scheme to “provide individual citizens effective protection against [discriminatory] practices.” Cannon, 441 U.S. at 704. The award of individual relief to a private litigant is “fully consistent with—and in some cases even necessary to—the orderly enforcement of the statute.” Id. at 705–06.
Fourth, implying a federal remedy would not be inappropriate because the subject matter does not involve “an area basically the concern of the States.” Cort, 422 U.S. at 78. “Since the Civil War,” it has been “the Federal Government and the federal courts” who have been the “primary and powerful reliances in protecting citizens against such discrimination.” Cannon, 441 U.S. at 708 (internal quotation marks omitted). And while the Americans with Disabilities Act prohibits discrimination by the states, it is the Rehabilitation Act that applies to the executive branch. Pierce v. District of Columbia, 128 F. Supp. 3d 250, 266 n.10 (D.D.C. 2015).
2. Courts Have Repeatedly Held That the Rehabilitation Act Provides a Private Right of Action
Against this backdrop, numerous courts—including this one—have held that section 504 provides plaintiffs with a private right of action under section 504 to pursue injunctive and declaratory relief against Executive agencies.
In Lane v. Pena, 867 F. Supp. 1050 (D.D.C. 1994), a student in the U.S. Merchant Marine Academy sued the Department of Transportation (“DOT”) for violating the Rehabilitation Act after he was separated from the Academy on the ground that his diabetes was a “disqualifying condition.” Id. at 1054–55. The plaintiff sought an injunction reinstating him to the Academy as well as compensatory damages. Id. at 1052. As to plaintiff’s claim for injunctive relief against the DOT, a federal agency, this Court recognized that it was “well-
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established that injunctive and declaratory relief are available under the Rehabilitation Act.” Id. at 1073 (quoting Doe v. District of Columbia, 796 F. Supp. 559, 573 (D.D.C. 1992)). This Court also initially awarded compensatory damages, but later vacated that portion of its order. See Lane v. Pena, 518 U.S. 187, 190 (1996). After further appeals, the Supreme Court held that the Rehabilitation Act did not waive the federal government’s sovereign immunity for money damages claims against federal agencies for violations of section 504. Id. at 192. Thus, under Lane, Rehabilitation Act claims seeking monetary relief against Executive agencies are unavailable. However, the injunctive relief that was awarded by this Court was not challenged by the government on appeal and was not disturbed by the Supreme Court. Id. at 190.
Following Lane, this Court again recognized a private right of action to pursue declaratory and injunctive relief against Executive agencies in American Council of the Blind v. Paulson, 463 F. Supp. 2d 51 (D.D.C. 2006). In Paulson, a national advocacy group for the blind brought suit under section 504 to compel the Department of Treasury to issue paper currency that was distinguishable by blind and visually impaired people. Id. at 52. The government moved to dismiss, arguing that, under Lane, the United States enjoyed sovereign immunity against claims brought under section 504. Id. at 57. But the Court disagreed, noting that “[i]njunctive relief was awarded by the district court in Lane, was not challenged by the government, and was not disturbed by the Supreme Court.” Id. at 58. On the merits, the Court found in favor of Plaintiffs, declaring that Treasury had violated section 504, and ordering further proceedings to address an appropriate injunction. Id. at 62–63. The government appealed the Court’s declaratory judgment but—again—did not challenge plaintiff’s right to bring a claim for declaratory and injunctive relief under section 504. Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1259 (D.C. Cir. 2008). The D.C. Circuit affirmed. Id. at 1274.
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Courts across the country likewise have held that section 504 provides a private right of action to seek declaratory and injunctive relief against Executive agencies. See, e.g., J.L. v. Soc. Sec. Admin., 971 F.2d 260, 264 (9th Cir. 1992); Doe, 941 F.2d at 785–953; Yeh v. U.S. Bureau of Prisons, No. 3:18-CV-943, 2019 WL 3713874, at *5 (M.D. Pa. May 15, 2019) (“[T]he Court of Appeals and courts in this district have held that a plaintiff may bring a claim for injunctive relief under section 504(a) of the [Rehabilitation Act] against agencies and individuals acting in their official capacities.”); Washington v. Fed. Bureau of Prisons, No. 5:16-cv-03913, 2019 WL 2125246, at *8 (D.S.C. Jan. 3, 2019) (“Numerous courts have considered . . . claims [under section 504] without reference to any jurisdictional problems.”); McRaniels v. U.S. Dep’t of Veterans Affairs, 15-cv-802, 2017 WL 2259622, at *4 (W.D. Wis. May 19, 2017) (“[R]eading sections 504 and 505 [of the Rehabilitation Act] together compels a finding of an implied private right of action.”); Davis, 2011 WL 3651064, at *5 (“there is a private right of action under § 504” for declaratory and injunctive relief against Executive agencies); Am. Council of the Blind v. Astrue, No. C 05-04696 WHA, 2008 WL 1858928, at *7 (N.D. Cal. Apr. 23, 2008) (holding that section 504 provided private right of action for declaratory and injunctive relief against Executive agencies); Howard v. Bureau of Prisons, No 3:05-CV-1372, 2008 WL 318387, at *9 (M.D. Pa. Feb. 4, 2008) (“With regard to the Rehabilitation Act . . . , injunctive relief is available even though damages are not.”); Mendez v. Gearan, 947 F. Supp. 1364, 1366 (N.D. Cal. 1996) (recognizing “private right of action established under § 504(a)” for equitable remedies);
3 J.L. and Doe were overruled in part by Lane’s holding that the Rehabilitation Act does not waive sovereign immunity for damages claims against Executive agencies. But Lane did not address whether the Act allows plaintiffs to pursue claims for injunctive or declaratory relief, and J.L. and Doe remain good law on that issue. See Davis v. Astrue, Nos. C-06-6108, C-09-0988, 2011 WL 3651064, at *3 (N.D. Cal. Aug. 18, 2011).
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Disabled in Action v. Pierce, 606 F. Supp. 310, 314 (E.D. Pa. 1985) (“[Section] 504 was intended by Congress to be an independent weapon in its barrier-free arsenal”).
3. Defendants’ Arguments Are Unavailing a. Defendants’ Cases Are Distinguishable
Defendants cite a handful of cases for the proposition that the Rehabilitation Act does not provide a private right of action against Executive agencies, even for declaratory and injunctive relief. See Opp. 11 & n.2 (citing Cousins v. Sec’y of the U.S. Dep’t of Transp., 880 F.2d 603 (1st Cir. 1989); Clark v. Skinner, 937 F.2d 123 (4th Cir. 1991); Sai v. Dep’t of Homeland Sec., 149 F. Supp. 3d 99 (D.D.C. 2015); Kinneary v. City of N.Y., 358 F. Supp. 2d 356 (S.D.N.Y. 2005)). But those decisions are distinguishable on several grounds and do not foreclose finding a private right of action here.
Each of the cases cited involved actions challenging the government in its capacity as a regulator. The cases held that plaintiffs’ regulatory challenges should have been brought under the Administrative Procedure Act (“APA”) rather than the Rehabilitation Act. None of these cases hold that where, as here, plaintiffs are challenging a government agency “as proprietary discriminator” in the way it conducts programs or activities, plaintiffs lack a cause of action under the Rehabilitation Act. See Doe, 941 F.2d at 793–94 (distinguishing Cousins on this basis); Washington, 2019 WL 2125246, at *8 (same).
In Cousins, a deaf truck driver challenged a DOT regulation requiring a minimum level of hearing for truck drivers on the ground that the regulation violated the Rehabilitation Act. 880 F.2d at 604. In holding that plaintiff should have brought his claim under the APA, the court noted that the Rehabilitation Act was “silent about whether and how a person injured by the government as regulator is to enforce the Act against the government.” Id. at 605 (emphasis in original). Importantly, the court’s reasoning turned on the fact that the APA provided a remedy
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for plaintiff’s claims. Id. at 606. (“[I]n light of the existence of the APA, it rarely makes sense to find that a substantive statute creates an ‘implied private right of action’ against the federal government for relief from unlawful regulatory action.”).
Similarly, in Clark, the plaintiff, a truck driver whose left arm was amputated, challenged a Federal Highway Administration regulation prohibiting amputees from driving commercial vehicles without a waiver. 937 F.2d at 124. The court, following Cousins, held that plaintiff must pursue his challenge to the regulation under the APA because he was pursuing a claim “against the United States government in its capacity as a regulator.” Id. at 125 (emphasis added). Again, the court was not addressing a substantive claim of discrimination against an executive agency. Id.; see also Kinneary, 358 F. Supp. 2d at 360 (holding “there is no implied private right of action in the Rehabilitation Act against the United States when acting as a regulator” (emphasis added)).
In Sai, the plaintiff, proceeding pro se, had filed an administrative complaint with the Department of Homeland Security (“DHS”) alleging that he was harassed and mistreated on the basis of his disability during two incidents at airport security checkpoints. 149 F. Supp. 3d at 104. After DHS failed to respond to plaintiff’s administrative complaint within the time period prescribed by governing regulations, plaintiff brought suit against DHS and others, asserting claims under the Rehabilitation Act and APA for failure to respond to his complaint. Id. In assessing plaintiff’s Rehabilitation Act claim, the Court held that plaintiff did not have a cause of action “to remedy DHS’s failure to respond to the . . . complaint in a timely manner” because “[t]he Rehabilitation Act says nothing about the processing or consideration of administrative complaints.” Id. at 112. The Court’s holding in Sai did not address whether plaintiff could state a claim against DHS as proprietary discriminator, because plaintiff had not even brought such a claim. Id. at 104; McRaniels, 2017 WL 2259622, at *4 (distinguishing Sai on this basis).
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Significantly, the government argued in Sai that the Rehabilitation Act would provide the plaintiff an adequate remedy if he had pursued a substantive discrimination claim because, in the government’s view, “Section 504 implies a private right of action to sue for injunctive relief in federal court for violations of that section.” Gov’t Reply at 6, No. 14-1876 (D.D.C. Aug. 27, 2015), Dkt. No. 77 (emphasis added) (citing Paulson, 463 F. Supp. 2d at 58).4 Here, the government take the opposite view, arguing section 504 implies no right of action. They were right the first time.
Finally, even if the Court were to conclude that Cousins, Clark, and Sai addressed substantive claims for discrimination of the kind Plaintiffs are pursuing here—they did not—those cases would still be distinguishable on an even more fundamental basis: in each decision, the plaintiff had another path to pursue judicial relief in the APA. See Cousins, 880 F.2d at 605; Clark, 937 F.2d at 125–26; Sai, 149 F. Supp. 3d at 115. Accordingly, holding that the Rehabilitation Act did not provide a provide right of action did not close the courthouse doors to the plaintiffs; it merely pointed to the APA as a more appropriate avenue for seeking relief. Here, by contrast, Defendants are asserting that neither the Rehabilitation Act nor the APA provide a remedy, and thus Plaintiffs have no legal recourse whatsoever for any disability discrimination perpetrated by Defendants. Opp. 14–19. Not only is this position inconsistent with the government’s position taken in Sai, it is untenable. Indeed, if the Court were to accept it, the Executive Office of the President and all of its subsidiary agencies could theoretically engage in
4 The Court also dismissed plaintiff’s APA claim insofar as it purported to assert a substantive claim of discrimination, as plaintiff’s complaint “merely challenge[d] the failure of Defendants to respond to his administrative complaint in a timely manner.” 149 F. Supp. 3d at 115. In dictum, the Court also stated—contrary to the government’s argument and without the benefit of adversarial briefing from counsel for the plaintiff (who was proceeding pro se)—that such a claim “arises under the APA,” citing Cousins and Clark. As explained, however, those decisions involved regulatory challenges to agency action not substantive claims of discrimination.
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all manner of unlawful discrimination in violation of the Rehabilitation Act with the victims having no ability to sue to enjoin such misconduct. This is not the law and not what Congress had in mind when it expanded the Rehabilitation Act in 1978 to apply to Executive agencies.
b. Defendants’ Textual Arguments Fail Defendants also make several strained textual arguments in an attempt to avoid the plain language and structure of the Rehabilitation Act. None are correct. First, Defendants argue that the Rehabilitation Act does not provide a private right of action against Executive agencies for declaratory or injunctive relief because the “remedies” provision of section 505(a)(2) “authorizes remedies only against federal agencies providing federal assistance,” and not against federal agencies “conduct[ing] their own programs or activities.” Opp. 11-13 (citing Lane v. Pena, 518 U.S. 187 (1996)). Not so. As explained above, the right of action arises under the plain text of section 504—“No otherwise qualified individual with a disability . . . shall . . . be subjected to discrimination”—not section 505. Just because Congress allowed for additional remedies to be asserted against recipients and providers of federal funds does not mean that—by negative inference—Congress intended to bar all claims against Executive agencies that discriminate in their own right. While the Court in Lane considered the remedies provision of section 505(a)(2), it did so for a very different purpose—namely, to determine whether that provision abrogated the government’s sovereign immunity against claims for monetary damages. The standard for that determination is whether Congress “clearly,” “unambiguously,” and “expressly” waived the government’s immunity for such claims. 518 U.S. at 192–93; id. at 192 (“A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, and will not be implied.” (emphasis added) (citations omitted)). Here, by contrast, the issue is whether Congress created an implied private right of action against Executive agencies for
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claims seeking only declaratory and injunctive relief. That issue was not addressed in Lane. See Paulson, 463 F. Supp. 2d at 58 (“Injunctive relief was awarded by the district court in Lane, was not challenged by the government, and was not disturbed by the Supreme Court.”). An implied private right of action, by definition, will never be express. See Cannon, 441 U.S. at 694–96. Rather, the Court’s inquiry turns on other indicia of statutory intent to determine whether Congress intended to create a private remedy, notwithstanding the lack of an express remedy in the statute. Sandoval, 532 U.S. at 286.
As explained above, section 504’s text, structure, and history all point to an intent to create a private remedy in this context. The fact that Congress extended Title VI remedies to victims of discrimination by recipients and providers of federal funds in section 505(a)(2) does not suggest otherwise. Indeed, it would not have made sense for Congress to extend all Title VI remedies to section 504 claims against Executive agencies, as at least one of those remedies—the withdrawal of funding for continuing violations, see 42 U.S.C. § 2000d–1—could not apply to an Executive agency. Moreover, at the same time that Congress added section 505(a)(2) in 1978, Congress added an attorneys’ fees provision in section 505(b) that allows prevailing plaintiffs to recover fees in “any action or proceeding” to enforce section 504, including those pursued directly against Executive agencies. 29 U.S.C. § 794a(b) (emphasis added); see, e.g., Yeh v. U.S. Bureau of Prisons, No. 3:18-CV-943, 2020 WL 1505661, at *10 (M.D. Pa. Mar. 30, 2020) (ordering Executive agency to pay attorneys’ fees under § 794a(b) in suit for injunctive relief).
Second, Defendants argue that section 504 cannot itself support a private right of action because “[a]s in Sandoval,” section 504 “lacks the necessary ‘rights-creating language’” to imply a private right of action. Opp. 12 (quoting Sandoval, 532 U.S. at 288–89). To the contrary, section 504 contains exactly the same rights-creating language—“[n]o person . . . shall . . . be
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subjected to discrimination”—that the Court in Sandoval held was “so critical to the Court’s analysis” in concluding that section 601 of Title VI and section 901 of Title IX provided for a private right of action. 532 U.S. at 288–89. Additionally, the issue in Sandoval was whether Congress created a private right of action to enforce a statute authorizing federal agencies to promulgate regulations—not a statute like section 504, which itself prohibits discrimination using the same language of sections 601 and 901.
Third, Defendants suggest that, because Congress directed Executive agencies to promulgate regulations to “carry out” the substantive provisions of section 504, this somehow demonstrates that Congress did not intend to imply a private right of action to enforce section 504. Opp. 13. This is wrong. When Congress expanded section 504 in 1978 to make it applicable to Executive agencies, it also added this sentence: “The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the [the 1978 Act].” 29 U.S.C. § 794(a). Nothing in the statutory text or legislative history suggests a congressional intent to deny plaintiffs a private right of action or restrict plaintiffs solely to an “administrative” remedy. Opp. 13. Indeed, “[c]ourts have uniformly held that non-federal employees . . . need not exhaust administrative remedies before bringing a private action under Section 504 of the Rehabilitation Act.” Muhammad v. United States, 300 F. Supp. 3d 257, 263 (D.D.C. 2018). Rather, the administrative complaint procedure that EOP established after 1978 is an optional, nonjudicial process that individuals may or may not elect to pursue. See 3 C.F.R. § 102.170. Moreover, that process involves review and decision by the agencies themselves, who could be the alleged discriminators in such claims. 3 C.F.R. § 102.170(g), (j). The regulations do not provide for any review by a court of the agency’s decision and, according to Defendants, even APA review of the agency’s decision would be unavailable. Opp. 14–19.
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Without an opportunity to seek any review before a neutral adjudicator—a court—such a process cannot adequately ensure compliance with section 504.
Fourth and finally, Defendants argue that Congress “reiterated” that the remedy for section 504 violations is administrative in the course of amending a separate provision of the Rehabilitation Act (section 508) that addresses making electronic and information technology available to individuals with disabilities. Opp. 13; see 29 U.S.C. § 794d. The language to which Defendants refer provides simply that if an individual with a disability chooses to file a complaint against a federal agency for failing to make technology accessible, the agency will apply its administrative procedures to resolve the administrative complaint. 29 U.S.C. § 794d(f)(2). Nothing in this provision “reiterate[s]” that administrative complaints are the exclusive remedy for violations of section 504. To the contrary, section 508(g) makes clear that section 508 “shall not be construed to limit any right, remedy, or procedure otherwise available under any provision of Federal law (including sections 501 through 505) that provides greater or equal protection for the rights of individuals and disabilities than this section.” (emphasis added).
In sum, Defendants argue that at the same time Congress expanded and strengthened section 504 to prohibit Executive agencies from discriminating against individuals with disabilities, it intended to deny plaintiffs any ability to obtain review of their claims in court and instead provide only an “administrative” remedy. Opp. 13. The government declined to advance this absolutist argument in Lane and Paulson, and in fact argued the opposite in Sai. The Court should reject Defendants’ argument here, which ignores the “rights-creating language” of section 504, Supreme Court precedent holding that identical provisions in Title VI and Tile IX create private rights of action, and the numerous cases holding that section 504 creates a private right of action for declaratory and injunctive relief against Executive agencies.
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B. Plaintiffs May Also Pursue Their Rehabilitation Act Claim in Equity Even if the Rehabilitation Act does not provide a private right of action to pursue declaratory and injunctive relief against Executive agencies, Plaintiffs may still pursue their claim “in equity.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015). In Armstrong, the Court acknowledged that “equitable relief . . . is traditionally available to enforce federal law.” Id. at 329. The ability to sue to enjoin unlawful actions by federal officers “is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracking back to England.” Id. at 327. A plaintiff may proceed in equity for violations of a federal statute even if the statute at issue does not contain a private right of action. See id. To be sure, “[t]he power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations.” Id. Thus, if a federal statute displays an “intent to foreclose” equitable relief, then plaintiffs cannot “by invoking [the Court’s] equitable powers, circumvent Congress’s exclusion of private enforcement.” Id. at 328 (emphasis added). Here, nothing in the Rehabilitation Act displays an intent to foreclose equitable relief. To the contrary, for the reasons explained above, all evidence suggests that Congress intended to encourage private enforcement of the statute. But even if the Court were to conclude that section 504 is insufficiently clear so as to provide for a private right of action, certainly nothing in section 504 forecloses Plaintiffs from pursuing equitable relief against Executive agencies to ensure that they do not engage in unlawful discrimination. And, unlike the Medicaid statute at issue in Armstrong, the text of section 504 is not “judicially unadministrable.” See id. Courts regularly administer suits alleging discrimination under the analogous provisions of the Americans with Disabilities Act, as well as Title VI (race discrimination) and Title IX (sex discrimination). Accordingly, even if Plaintiffs lacked a private right of action, they could still pursue their claim against Defendants in equity.
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C. Defendants Have Violated the Rehabilitation Act Defendants do not dispute—and thus concede—that Plaintiffs satisfy two out of the three elements of their Rehabilitation Act claim. Plaintiffs are individuals with disabilities because they are deaf (see Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction (Dkt. No. 2-1) (“Mot.”) 12–13), and White House coronavirus briefings are programs or activities conducted by the agency Defendants (see id. at 14–15). Defendants also do not dispute that the agency Defendants are “Executive agencies” for purposes of the Rehabilitation Act (29 U.S.C. § 794(a)). See Mot. 14–15. Nor do Defendants argue that providing in-frame ASL interpreters would result in a “fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens.” 3 C.F.R. § 102.160. Defendants do appear to dispute—albeit in cursory fashion—that Defendants’ failure to provide in-frame ASL interpreters has excluded Plaintiffs from, denied Plaintiffs the benefit of, and subjected Plaintiffs to discrimination in connection with the White House’s coronavirus briefings. See Mot. 13–14. In particular, Defendants assert that Plaintiffs have access to these briefings through closed-captioning and after-the-fact written transcripts. Opp. 10. According to Defendants, that is enough to provide Plaintiffs “access to pandemic-related information through alternative, non-auditory means.” Id. Defendants are wrong. Defendants’ argument is based on the incorrect assumption that all DHH persons can read and comprehend written English versions of the White House coronavirus briefings. Defendants cite no factual or legal basis to support this assumption because there is none. The record in this case is replete with evidence that Plaintiffs and many other DHH persons cannot read and understand written English text on complicated topics such as the coronavirus and the federal government’s response to it. Accordingly, they cannot understand closed-captioning or after-the-fact written transcripts of the White House coronavirus briefings.
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As explained by Mr. Howard Rosenblum, CEO of the NAD, for many DHH individuals, “English is, at best, a second language.” Rosenblum Decl. ¶ 3. Indeed, “many DHH persons know virtually no English.” Id. (emphasis added). Written English is “not an effective means of communication for many deaf individuals who have limited English capabilities, particularly for complex and important topics such as COVID-19 and related issue of public health.” Id. ¶ 6. “Therefore, even when closed-captioning is provided, those DHH individuals cannot effectively receive the messages conveyed at the White House press briefings.” Id.
Additionally, each Plaintiff’s declaration explains their own personal inability to understand White House coronavirus briefings without ASL interpretation, despite the presence of closed-captioning. For example, Mr. Rivera and Ms. Fleetwood explained that they are “not able to understand captioning on television when the content is complex, such as when there is information about a health pandemic.” Rivera Decl. ¶ 3; Fleetwood Decl. ¶ 3. They “watched a number of the White House’s Coronavirus press briefings . . . [but] cannot understand the briefings because there is no ASL interpreter during the briefings.” Id. ¶ 4. Mr. Strail has “difficulty understanding rapid and unreliable live captioning on television, especially when the content is complex such as when there is information about a health pandemic.” Strail Decl. ¶ 3. Mr. Axelrod and Mr. Forsey have “attempted to understand the White House’s briefings on television, on the internet, and on social media, but . . . [are] often unable to do so because there is no ASL interpreter.” Axelrod Decl. ¶ 4; Forsey Decl. ¶ 4. Defendants ignore this evidence.5
5 Plaintiffs’ individual experiences are consistent with the scientific and academic consensus that many DHH persons have extremely limited proficiency in English. See, e.g., Lauren Oberheim, Selective Hearing: Communication Barriers in the Court System for Deaf and Hardof-Hearing Victims of Rape or Sexual Assault, 25 Wm. & Mary J. Race, Gender & Soc. Just. 163, 170 (2018) (“Only ten percent of deaf eighteen-year-olds achieve a tenth-grade reading level. Thirty percent of deaf students exit the school system ‘functionally illiterate.’”) (citations
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Defendants also ignore evidence that the NAD and others informed the White House, before Plaintiffs filed suit, that closed captions were not enough to ensure meaningful access to the coronavirus briefings. See Compl. Exs. A–E. For example, on March 27, 2020, the Linguistic Society of America wrote to the White House: “Please note that solely relying on closed-captioning is not an option for all ASL users, and that a certified sign language interpreter (who must remain visible during the entirety of each briefing) is necessary. . . . Failing to make this information available in ASL means that deaf people are not getting the same important information about health and safety.” Compl. Ex. D (Dkt. No. 1-4). Likewise, the National Council on Disability, another federal agency, wrote to the White House: “Millions of people in the US who are Deaf or hard of hearing use American Sign Language to obtain the vital information the Taskforce provides.” Compl. Ex. B (Dkt. No. 1-2). None of these letters would have been necessary if closed captioning and written transcripts were sufficient to ensure DHH persons meaningful access to the White House coronavirus briefings.6
In their opposition, Defendants fundamentally mischaracterize Plaintiffs’ position as having “issues” with closed-captioning and written transcripts that “make live ASL interpretation preferable for them.” Opp. 1 (emphasis added). As demonstrated above, Plaintiffs require ASL interpretation in order to have meaningful access to White House coronavirus briefings; it is not
omitted); Michele LaVigne & McCay Vernon, An Interpreter Isn’t Enough: Deafness, Language, and Due Process, 844 Wis. L. Rev. 843, 857 (2003) (“Among the prelingually deaf and severely hard-of-hearing, the median reading level for seventeen- and eighteen-year-olds is grade four. . . . [M]any deaf people do not understand the words we are using, even if the words are put into a visible form by writing or finger-spelling.”); Jo Anne Simon, The Use of Interpreters for the Deaf and the Legal Community’s Obligation to Comply With the A.D.A., 8 J.L. & Health 155, 160 (1994) (average prelingually deaf adult reads at a fourth grade level). 6 To be sure, many DHH persons—including English speakers who have lost their hearing later in life and are not fluent in ASL—do, in fact, rely upon closed captions. But many other DHH persons, including those who have been deaf since birth and for whom written English is not accessible, require ASL interpretation. See Rosenblum Decl. ¶¶ 3–6; Compl. ¶¶ 24–25.
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a matter of preference. Courts consistently reject such attempts to paint DHH persons’ requests for essential accommodations as expressions of mere preference. See, e.g., McBride v. Mich. Dep’t of Corr., 294 F. Supp. 3d 695, 710 (E.D. Mich. 2018) (rejecting argument that deaf plaintiff was seeking a “better” accommodation and finding the requested accommodation “necessary” to enable effective communication); Majocha v. Turner, 166 F. Supp. 2d 316, 323 (W.D. Pa. 2001) (“There is much more on the record than simply, as defendants characterize the matter, plaintiffs expressing their preference for a qualified ASL interpreter.”).7
For example, in Martinez, Governor Cuomo argued that deaf New Yorkers could access his coronavirus briefings through closed captioning and other means, but the court disagreed: “The live broadcasts with closed captioning, while perhaps accommodating deaf New Yorkers who are fully literate in English, do not accommodate Plaintiffs and other similar deaf New Yorkers who cannot read English.” 2020 WL 2393285, at *5. Thus, “without in-frame ASL interpretation, Plaintiffs are, as a practical matter, [un]able to access benefits to which they are legally entitled.” Id. The court also chided the governor for suggesting that deaf New Yorkers were “merely choos[ing] not to take advantage of the various means by which the Governor communicates critical information during his press briefings.” Id. The court called this suggestion “unfounded, conclusory, and cavalier. . . . The current accommodations—however well-intentioned—simply do not provide meaningful access in the circumstances [presented] here.” Id. Defendants ignore Martinez in its opposition, despite its clear application here.
Moreover, Defendants acknowledge that their own regulations under the Rehabilitation Act direct Defendants to give “primary consideration to the requests of the individual” with
7 Defendants also ignore the fact that closed-captioning frequently contains errors, omissions, and delays. See Rosenblum Decl. ¶ 7; see also Compl. ¶ 45.
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disabilities in determining “what type of auxiliary aid is necessary” to provide meaningful
access. 3 C.F.R. § 102.160(a)(1)(i). Here, Defendants continue to violate their own regulation by ignoring Plaintiffs’ repeated requests for in-frame ASL interpreters.8 II. ALTERNATIVELY, PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR
CLAIM FOR MANDAMUS In the alternative, if the Court were to conclude that the Rehabilitation Act does not
provide a private right of action or a remedy, Plaintiffs would be likely to succeed on their claim
for mandamus relief, which is available when “there is no other adequate remedy available to plaintiff.” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005).9
Defendants contend that Plaintiffs are not likely to succeed on their mandamus claim
because Plaintiffs do not have a “clear right” to relief. Opp. 20. To determine whether a “clear
right” to relief exists, the Court must first interpret the statute and applicable regulations and then
determine whether they “create[] a peremptory obligation for the officer to act.” 13th Reg’l
Corp. v. U.S. Dep’t of Interior, 654 F.2d 758, 760 (D.C. Cir. 1980). If they do, then “a
mandamus action will lie.” Id. Thus, “[t]he requirement that a duty be ‘clearly defined’ to
warrant issuance of a writ does not rule out mandamus actions in situations where the
interpretation of the controlling statute is in doubt.” Id.; see also In re Cheney, 406 F.3d 723,
8 To the extent the Court has any questions about the inability of many DHH persons to read and understand written English, particularly about complex topics, Plaintiffs intend to have an expert witness—Dr. Judy Shepard-Kegl, a linguist—attend the August 26 hearing. Mr. Howard A. Rosenblum, CEO of NAD and a declarant in this case (Dkt. No. 2-8) will also attend the hearing. Plaintiffs do not plan on offering testimony from either witness at this time, but both will be available at the hearing to answer any questions that the Court may have. 9 Plaintiffs are likely to succeed on their mandamus claim regardless of whether the Rehabilitation Act provides a private right of action. “The mandamus statute may provide an avenue to remedy violation of statutory duties even when the statute that creates the duty does not contain a private cause of action.” Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d 28, 33– 34 (D.D.C. 2011); see also Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 41–42 (D.D.C. 2002).
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729 (D.C. Cir. 2005). Even if the statute and regulations are “ambiguous,” Cheney, 406 F.3d at 729, Plaintiffs may still be entitled to mandamus if the statute “once interpreted” establishes a clear right to relief, 13th Reg’l Corp., 654 F.2d at 760 (emphasis added).
As discussed above, the Rehabilitation Act and EOP regulations, once interpreted, establish a clear right to relief. See supra Section I.C. Contrary to Defendants’ argument, Defendants do not have “discretion” to deny a feasible and effective accommodation (ASL interpreters) and instead insist upon an accommodation that is not effective for so many (closed captioning and transcripts). Opp. 21. The EOP regulations require that Defendants “shall furnish appropriate auxiliary aids” to afford DHH individuals “an equal opportunity to participate in, and enjoy the benefits of” programs or activities conducted by Defendants. 3 C.F.R. § 102.160(a)(1) (emphasis added). In determining what type of accommodation is necessary, Defendants “shall give primary consideration to the requests of the individuals with handicaps.” Id. § 102.160(a)(1)(i) (emphasis added). Nor would complying with the Rehabilitation Act and EOP regulations affect any discretionary White House policies and indeed would not change the content of the press briefings in any manner. The act of arranging for an ASL interpreter to be present at White House briefings is administrative and precisely the kind of “ministerial” duty that an official “has no authority to determine whether to perform.” Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996). Mandamus relief is available and warranted here. III. PLAINTIFFS ARE LIKELY TO SUFFER IRREPARABLE HARM IF A
PRELIMINARY INJUNCTION IS NOT GRANTED Defendants do not dispute—and thus concede—that Plaintiffs are likely to suffer irreparable harm in the absence of injunctive relief. This is significant, as irreparable harm is “perhaps the single most important prerequisite for the issuance of a preliminary injunction.”
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Nat’l Parks Conservation Ass’n v. Semonite, 282 F. Supp. 3d 284, 289 (D.D.C. 2017). Here, where the health and safety of all DHH persons in America is at stake (see Mot. 17–19), this factor decisively favors granting a preliminary injunction. IV. THE BALANCE OF HARDSHIPS AND PUBLIC INTEREST WEIGH HEAVILY
IN FAVOR OF PLAINTIFFS Defendants also do not dispute—and thus concede—that “[r]etaining qualified and effective sign language interpreters is relatively inexpensive and administratively feasible.” Mot. 19. Indeed, Defendants do not argue that providing interpreters would impose any undue burden on the White House at all. Nor could it, as all 50 states’ governors have provided ASL interpreters at coronavirus briefings—a fact which Defendants ignore. Defendants state that the Press Briefing Room “is a small space.” Opp. 3–4. But Defendants never assert that this would create any actual hardship or prevent Defendants from providing Plaintiffs with the relief that they seek. Moreover, even if it did present a logistical challenge, it would only affect Defendants’ ability to place an interpreter physically near the speaker. As Plaintiffs have explained, however, in-frame ASL interpretation could also be accommodated by using a picture-in-picture (“PIP”) interpreter, which superimposes a live video feed of the interpreter into a frame that appears alongside the speaker. See Mot. 6 n.9. With PIP, the interpreter would not need to be physically next to the speaker in the Press Briefing Room— or even in the same room—but could be located somewhere else, watching a live feed of the speaker and interpreting in front of a camera providing the PIP video feed. Several governors, including Governor Cuomo, have used PIP interpreters for their coronavirus briefings. Significantly, Defendants do not dispute that the Press Office has the ability to “arrange for an
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interpreter at a different location” than the briefing room “to conduct a simultaneous direct-tocamera interpretation.” Deere Decl. ¶ 7.10
Defendants also assert that the relief Plaintiffs request is “broad” and “new.” Opp. 22– 23. Neither contention has merit. As to breadth, Plaintiffs are requesting the same relief that all 50 governors have provided: an ASL interpreter at public briefings addressing the pandemic. Plaintiffs are not requesting that Defendants provide interpreters in situations that are “outside of Defendants’ control.” Opp. 23. To the extent Defendants have genuine objections to the scope of the requested relief, Plaintiffs would be willing to meet and confer to attempt to address any such concerns. But Defendants’ position appears to be that they will not provide any ASL interpreters at any White House briefings—wherever they are located, however far in advance they are planned, and regardless of whether the briefing is narrowly tailored to the pandemic.
As to Defendants’ argument that an ASL interpreter “would be new at the White House” (Opp. 23), that is not a “hardship.” Nor is it a reason why a preliminary injunction would not be in the public interest. A global pandemic that has killed (to date) over 170,000 Americans is itself a “new” development—at least in the era of televised press briefings—that justifies a “new” approach by the White House to ensuring that all deaf persons have meaningful access to the same public health information the White House is providing to everyone else.
CONCLUSION The Court should grant Plaintiffs’ motion for a preliminary injunction.
10 The government states that Defendants do not control “whether a tight shot or wide shot is used,” and thus cannot control whether a particular network would actually film the ASL interpreter. Opp. 4. This hypothetical and highly speculative scenario about potential third-party conduct cannot justify the government’s own refusal to provide interpreters. Moreover, that ASL interpreters have appeared in frame with so many governors is sufficient to reject this suggestion.
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Dated: August 20, 2020

/s/ Ian S. Hoffman Ian S. Hoffman (D.C. Bar No. 983419) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Avenue NW Washington, DC 20001-3743 Telephone: (202) 942-5000 Fax: (202) 942-5999
Counsel for Plaintiffs
/s/ Marc Charmatz Marc Charmatz** NAD Law and Advocacy Center 86 30 Fenton Street, Suite 820 Silver Spring, MD 20910 Telephone: (301) 587-1788 Fax: (301) 587-1791
**admitted pro hac vice
Counsel for Plaintiffs

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 Case 1:20-cv-02107-JEB Document 18 Filed 09/09/20 Page 1 of 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION OF THE DEAF, et al.,
Plaintiffs, v.
DONALD J. TRUMP, et al., Defendants.

Civil Action No. 20-2107 (JEB)

MEMORANDUM OPINION Over the past six months, the coronavirus pandemic has changed the rhythms of our daily lives: businesses have closed, homes have become schoolhouses, and loved ones have fallen ill. Through this uncertain period, people have understandably sought up-to-date information about the course of the virus and how best to stay safe. Plaintiffs here are the National Association of the Deaf and five deaf individuals whose primary and preferred language is American Sign Language. For updates about the pandemic, these people have tried to tune into briefings by President Donald Trump and members of the White House Coronavirus Task Force. But their ability to understand the information presented has often been stymied by the briefings’ lack of an ASL interpreter. They thus brought this action against the President, Vice President Mike Pence, the Executive Office of the President, the White House Office, the Office of the Vice President, and Press Secretary Kayleigh McEnany, alleging that Defendants’ failure to provide ASL interpreters during these briefings violates the Rehabilitation Act of 1973 and the First Amendment. Plaintiffs now ask this Court to grant a preliminary injunction requiring Defendants to provide

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in-frame ASL interpretation throughout all live, televised public briefings conducted by any Defendant or member of the White House Coronavirus Task Force that address issues concerning COVID-19.
While the Court agrees that Plaintiffs have met their burden to obtain some form of injunctive relief, the contours of an appropriate remedy need some fleshing out, given the lack of clarity regarding the precise logistics involved in making ASL interpretation available via various platforms. The Court, accordingly, will conduct a further hearing to plumb in greater depth the practicalities of implementing its Order. I. Background
President Trump began holding regular televised briefings about the COVID-19 outbreak in March of 2020. See ECF No. 1 (Compl.), ¶ 26. Although generating controversy at times, the briefings have addressed critical issues ranging from information on social distancing and mask wearing, to updates on economic-relief packages and vaccine development. Id., ¶¶ 29, 31. Members of the White House Coronavirus Task Force, including Dr. Anthony Fauci and Dr. Deborah Birx, have also appeared to provide analysis and updates on relevant public-health information. Id., ¶¶ 20, 30. So, too, have Press Secretary McEnany and Vice President Pence, who heads the Task Force and has spoken to “what every American can do to play their part in reducing the spread and the impacts of the coronavirus pandemic.” Id.; see also ECF No. 9-1 (Declaration of Judson P. Deere), ¶ 4. The White House initially held daily briefings, but their frequency decreased by late spring before again being held more regularly starting in late July. See Compl., ¶ 31.
Members of the public have a few options for how to watch the briefings. People can watch: (1) live and delayed coverage on network and cable television channels, when and if the
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media chooses to air the proceedings; (2) live footage that the White House shares on its website and YouTube channel; or (3) recordings that the White House posts after the live event ends on its social-media platforms, such as YouTube and Facebook. See Deere Decl., ¶¶ 5–6, 8; see also ECF No. 15-1 (Second Declaration of Judson P. Deere), ¶¶ 6–7. Private media outlets and the White House Communications Agency, which provides telecommunications and other related support services to the President and Vice President, record the briefings. See Second Deere Decl., ¶¶ 3–5, 9. While private media outlets air the footage that they capture on network and cable television, WHCA airs its recordings on the platforms that the White House controls. See Deere Decl., ¶¶ 5–6, 8. On occasion, such as when a coronavirus briefing is not held in the Press Briefing Room, WHCA does not record the event and instead streams a video feed that a private media outlet records and shares. Id., ¶ 8; Second Deere Decl., ¶ 9.
The White House also contracts with a third party to provide closed captioning for the livestream and post-briefing recordings that it posts on its YouTube channel and Facebook page. See Deere Decl., ¶ 8; Second Deere Decl., ¶ 8. Networks and cable television stations similarly provide closed captioning when they air the briefings. Id., ¶ 13; see also ECF No. 9 (Def. Opp.) at 1, 21. Additionally, and generally within hours of the briefings, the White House posts a complete transcript in English on its official website and provides the same to reporters and media organizations. See Def. Opp. at 1, 5; Deere Decl., ¶ 14.
Unlike the governors of all fifty states, the mayors of cities large and small, and leaders from around the globe, however, the White House does not provide in-frame ASL interpretation during its video broadcasts. See Compl., ¶ 2. Plaintiffs assert that, as a result, they cannot access the “critical, potentially life-saving information” that the nation’s leaders and public-health officials share during the briefings without ASL interpretation. See id., ¶ 1; ECF No. 2-5
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(Declaration of Corey Axelrod), ¶ 3; ECF No. 2-4 (Declaration of Debra Fleetwood), ¶ 4; ECF No. 2-7 (Declaration of Graham Forsey), ¶ 3; ECF No. 2-3 (Declaration of John Rivera, Jr.), ¶ 4; ECF No. 2-6 (Declaration of Carlton Strail), ¶ 4; ECF No. 2-8 (Declaration of Howard A. Rosenblum), ¶¶ 2, 4. Nor, Plaintiffs explain, can they access the updates on the impact of the pandemic on the economy and on vaccine development. See Compl., ¶ 1; see also Axelrod Decl., ¶ 5; Fleetwood Decl., ¶ 5; Forsey Decl., ¶ 5; Rivera Decl., ¶ 5; Strail Decl., ¶ 5. Because of these barriers, Plaintiffs assert that they are unable to obtain from the briefings information on how to protect themselves and their families. See Fleetwood Decl., ¶¶ 1, 3; Rivera Decl., ¶¶ 1, 3; Strail Decl., ¶ 5. Additionally, Plaintiffs Axelrod and Forsey, who lead the Illinois Association of the Deaf and the District of Columbia Association of the Deaf, respectively, declare that this means that they are less able to answer questions about the briefings and pandemic from their groups’ members. See Axelrod Decl., ¶¶ 1, 5; Forsey Decl., ¶¶ 1, 5.
Plaintiffs contend, moreover, that the closed captioning that Defendants and the networks provide is an insufficient remedial measure for a variety of reasons. As Howard A. Rosenblum, the CEO of NAD, explains in his declaration, “[M]any [deaf and hard-of-hearing] persons know virtually no English.” Rosenblum Decl., ¶ 3. For many others, “English is, at best, a second language.” Id. The primary language of many of NAD’s members is ASL, which is “a complete and complex language distinct from English, with its own vocabulary and rules for grammar and syntax.” Id., ¶¶ 4–5. Because of the differences between English and ASL, “[w]ritten English is not an effective means of communication for many deaf individuals who have limited English capabilities, particularly for complex and important topics such as COVID-19 and related issue[s] of public health.” Id., ¶ 6. NAD asserts that it has received hundreds of complaints from deaf and hard-of-hearing people who say that they are unable to access the information that the
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White House provides during the COVID-19 briefings because of the lack of an in-frame ASL interpreter. Id., ¶ 2.
Individual Plaintiffs aver the same. For Fleetwood, Rivera, and Strail, who range in age from sixty-six to ninety-two and receive most or all of their news from television, closed captioning is insufficient because they have difficulty “understand[ing] captioning on television when the content is complex, such as when there is information about a health pandemic.” Fleetwood Decl., ¶¶ 1, 3; see also Rivera Decl., ¶¶ 1, 3; Strail Decl., ¶¶ 1, 3. For Axelrod and Forsey, who are in their twenties and thirties, closed captioning is insufficient because it is often delayed and inaccurate, and not available on the Internet or social media. See Axelrod Decl., ¶¶ 1, 4; Forsey Decl., ¶¶ 1, 4.
Seeking to gain access to the information shared in the White House’s COVID-19 briefings, Plaintiffs filed this suit. In their Complaint, they allege that Defendants’ failure to provide an ASL interpreter during the briefings violates both section 504 of the Rehabilitation Act and the First Amendment, and thus warrants declaratory and injunctive relief. See Compl., ¶¶ 49–73. Simultaneous with the filing of their Complaint, Plaintiffs moved for a preliminary injunction based only on their Rehabilitation Act claim and request for mandamus relief. See ECF No. 2 (Pl. Mot.) at 1; see also ECF No. 2-1 (Pl. Mot. Memo) at 2, 17 n.6. To arrest these purported transgressions, Plaintiffs ask this Court to order Defendants to immediately begin providing live, in-frame ASL interpretation in all public briefings that address COVID-19 and are conducted by any Defendant or member of the White House Coronavirus Task Force. See Pl. Mot. Memo at 20.
The Court heard argument on Plaintiffs’ Motion on August 26 and received a supplemental declaration from Defendants and response from Plaintiffs on August 31 concerning
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some of the logistics of the video process. See ECF Nos. 15 (Def. Supp.) & 16 (Pl. Supp.). In their supplemental filing, Plaintiffs narrowed and clarified the scope of their remedy request and now ask this Court to order Defendants to provide the following during all White House briefings about the coronavirus that are conducted by Defendants, are announced in advance, and have a purpose of discussing issues related to the pandemic: 1) in-frame ASL interpretation, either by including in the video frame the ASL speaker or by including a picture-in-picture (PIP) interpreter in the footage, on all WHCA video feeds of the briefings; and 2) either placement of an ASL interpreter physically near the speaker during briefings so that media outlets can capture footage of the ASL interpreter, or the creation of a live feed of an ASL interpreter that is available for broadcast outlets to include in PIP footage. See Pl. Supp. at 3. II. Legal Standard
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. NRDC, 555 U.S. 7, 24 (2008). A party seeking preliminary relief must “make a clear showing that four factors, taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the equities in its favor, and accord with the public interest.’” League of Women Voters v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (quoting Pursuing America's Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)). “The moving party bears the burden of persuasion and must demonstrate, ‘by a clear showing,’ that the requested relief is warranted.” Hospitality Staffing Solutions, LLC v. Reyes, 736 F. Supp. 2d 192, 197 (D.D.C. 2010) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).
Historically, this Circuit has evaluated the preliminary-injunction factors on a “sliding scale,” under which if the “movant makes an unusually strong showing on one of the factors,
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then it does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009). This Circuit has hinted, though not held, that Winter — which overturned the Ninth Circuit's “possibility of irreparable harm” standard — should be read to abandon the sliding-scale approach in favor of requiring that “likelihood of irreparable harm” and “likelihood of success” are “‘independent, free-standing requirement[s].’” Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011) (quoting Davis, 571 F.3d at 1296) (Kavanaugh, J., concurring); see Singh v. Carter, 185 F. Supp. 3d 11, 16–17 (D.C. Cir. 2016) (calling the “sliding scale approach” “highly questionable” after Winter and requiring the plaintiff to “bear[] the burden of persuasion on all four preliminary injunction factors”); League of Women Voters, 838 F.3d at 7 (declining to address whether “sliding scale” approach is valid after Winter). Unresolved, too, is the related question of “whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a serious legal question on the merits.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (internal quotation and citation omitted).
Regardless of the extent to which showings of irreparable harm and success on the merits can be diminished, some fundamentals of the four-factor test bear reiterating. Because “the basis of injunctive relief . . . has always been irreparable harm,” Chaplaincy of Full Gospel, 454 F.3d at 297 (citation omitted), a plaintiff must, at minimum, “demonstrate that irreparable injury is likely in the absence of an injunction,” not just that injury is a “possibility.” Winter, 555 U.S. at 21–22; see Davis, 571 F.3d at 1292. Before and after Winter, similarly, this Circuit has maintained its standard that a plaintiff may obtain relief after demonstrating a “substantial likelihood” of success. See Pursuing America’s Greatness, 831 F.3d at 505. Where the plaintiff can show neither harm nor success, no relief is warranted. Standing Rock Sioux Tribe v. U.S.
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Army Corps of Eng’rs, 205 F. Supp. 3d 4, 26 (D.D.C. 2016); see also Ark. Dairy Co-op Ass’n, Inc. v. USDA, 573 F.3d 815, 832 (D.C. Cir. 2009) (denying injunction when plaintiff shows “no likelihood of success”). III. Analysis
Plaintiffs contend that Defendants have violated and will continue to violate the Rehabilitation Act by failing to provide an ASL interpreter during the White House’s briefings on the coronavirus. See Pl. Mot. Memo at 1–2, 18; ECF No. 11 (Pl. Reply) at 18. They argue that, without a preliminary injunction, they will continue to suffer irreparable harm because they will not have access to the information that the White House shares during those briefings about personal safety, public health, and the economy. See Pl. Mot. Memo at 17–19; Reply at 23. Defendants respond that Plaintiffs cannot succeed here both because they lack a cause of action and because they have access to the briefings via other, non-auditory means. See Def. Opp. at 10–14.
The Court kicks off with Plaintiffs’ likelihood of success before addressing the remaining preliminary-injunction factors and then the nuanced question of remedy. Because it finds that Plaintiffs have carried their burden under the Rehabilitation Act, it does not reach the parties’ arguments on Plaintiffs’ mandamus claim.
A. Likelihood of Success As Defendants’ central position here is that the Rehabilitation Act provides no express or implied cause of action, a sensible starting point is the statute itself.
1. Statutory Framework Congress enacted the Rehabilitation Act in 1973 “to ensure that members of the disabled community could live independently and fully participate in society.” American Council of the
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Blind v. Paulson, 525 F.3d 1256, 1259 (D.C. Cir. 2008). It was the “first major federal statute designed to protect the rights of and provide assistance to” individuals with disabilities. Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990). As originally enacted, section 504 of the Act prohibited recipients of federal financial assistance from conducting programs or activities that discriminate on the basis of disability. See Rehabilitation Act of 1973, Pub. L. No. 93–112, § 504, 87 Stat. 394 (Sept. 26, 1973).
In 1978, Congress undertook to “extend and strengthen” the Rehabilitation Act and enacted numerous amendments. Doe v. Att’y Gen. of U.S., 941 F.2d 780, 785 (9th Cir. 1991) (collecting legislative history), disapproved of on other grounds by Lane v. Pena, 518 U.S. 187 (1996). As relevant to this case, it amended section 504 to prohibit discrimination by “any Executive agency.” See Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. No. 95–602, § 504, 92 Stat. 2955 (Nov. 6, 1978). As amended, section 504 provides:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . . 29 U.S.C. § 794(a) (emphasis added). With the same amendment, Congress also instructed the heads of Executive agencies to promulgate regulations to “carry out” the 1978 addition of “Executive agency” to section 504. Id. Congress did not define “Executive agency,” but, pursuant to section 504’s command to “carry out” the amendments, the Executive Office of the President promulgated regulations in 1988 to prohibit discrimination based on disability. See Def. Opp. at 7; 3 C.F.R. § 102.101 (explaining purpose of regulation is to effectuate 1978 Rehabilitation Act amendments, including
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section 504 amendments); 3 C.F.R § 102.102 (noting that regulations apply to “all programs or activities conducted” by Executive Office of President). The regulations apply to the White House Office and Office of the Vice President, among others. See 3 C.F.R. § 102.103 (defining “Agency” as “entities in the Executive Office of the President,” including “the White House Office” and “Office of the Vice President”).
In addition to expanding the prohibition on discrimination to the programs and activities of Executive agencies in 1978, Congress added section 505, entitled “Remedies and attorneys’ fees,” to the Act. See Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. No. 95–602, § 505, 92 Stat. 2955 (Nov. 6, 1978). Pursuant to this section, plaintiffs can seek remedies for violations of section 501 of the Act — which addresses discrimination by the federal government when it acts as an employer, see 29 U.S.C. § 791 — via the procedures set forth in Title VII’s comprehensive scheme. See 29 U.S.C. § 794a(a)(1). Additionally, section 505 enables plaintiffs who bring claims against recipients of federal financial assistance to obtain relief for violations of section 504 of the Act through Title VI’s remedial scheme. Id. § 794a(a)(2).
In enacting section 505, however, Congress did not say what remedies are available to persons aggrieved by Executive agencies’ violations of the Act and did not point to the comprehensive scheme of another statute. In Lane, the Supreme Court considered a suit brought by a private plaintiff against an Executive agency under section 504 and held that, in amending the statute in 1978, Congress did not waive sovereign immunity for plaintiffs to obtain monetary damages. See 518 U.S. at 189, 197. In considering section 504, however, the Supreme Court did not address the source of the plaintiff’s cause of action, nor the propriety of a district court’s awarding declaratory or injunctive relief against an Executive agency. Id. at 190, 196 (noting
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that government did not appeal district court’s award of injunctive relief). That void, in the statute and caselaw, is central to the parties’ dispute here.
2. Application The statutory backdrop thus provided, the Court must now address two fundamental questions: whether section 504 offers Plaintiffs any cause of action here, and, if so, whether they have sufficiently articulated one. Defendants spend most of their opposition arguing the first issue, which the Court agrees is the more complex one. It, too, will linger here before turning to the merits of Plaintiffs’ particular claim.
a. Implied Cause of Action “[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979). Rather, “[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). In determining whether a statute implies a private right of action, “[t]he guiding principle . . . is legislative intent,” El Paso Nat. Gas Co. v. United States, 750 F.3d 863, 889 (D.C. Cir. 2014), and courts must “determine whether [the statute] displays an intent to create not just a private right but also a private remedy.” Sandoval, 532 U.S. at 286. This analysis “begins with the text and structure of the statute,” and courts can look to legislative history for support. Lee v. U.S. Agency for Int’l Dev., 859 F.3d 74, 77–78 (D.C. Cir. 2017) (considering relevant legislative history). Although numerous other courts across the country and in our district have considered the section 504 question, there is no binding Circuit authority. See J.L. v. Soc. Sec. Admin., 971 F.2d 260, 264 (9th Cir. 1992) (finding that plaintiffs can be entitled to equitable relief to remedy Executive agency’s section 504 violations), disapproved of
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on other grounds by Lane, 518 U.S. at 191, 200; McRaniels v. U.S. Dep’t of Veterans Affairs, No. 15-802, 2017 WL 2259622, at *4 (W.D. Wis. May 19, 2017) (finding private right of action); but see Sai v. Dep’t of Homeland Sec., 149 F. Supp. 3d 99, 113 (D.D.C. 2015) (concluding that “the cause of action for a substantive claim of disability discrimination in a federal program or activity . . . arises under the APA,” not the Rehabilitation Act). This Court must therefore conduct its own examination.
It begins with the language in section 504, which guarantees that “[n]o otherwise qualified individual with a disability in the United States . . . shall . . . be subjected to discrimination . . . under any program or activity conducted by any Executive agency . . . .” 29 U.S.C. § 794(a). The Supreme Court has consistently found the phrasing “[n]o [person] . . . shall . . . be subjected to discrimination” to be “‘rights-creating’ language.” Sandoval, 532 U.S. at 278–79 (recognizing existence of private cause of action under section 601 of Title VI, which provides that “[n]o person . . . shall, on the ground of race, color, or national origin, . . . be subjected to discrimination under any program or activity receiving Federal financial assistance,” 42 U.S.C. § 2000d); Cannon, 441 U.S. at 709 (same for section 901 of Title IX, which provides that “[n]o person . . . shall, on the basis of sex, . . . be subjected to discrimination under any education program or activity receiving Federal financial assistance,” 20 U.S.C. § 1681(a)); see also Pl. Reply at 4–5. In considering the parallel phrasing of Title IX, moreover, the Supreme Court has found the language to be “the most accurate indicator of the propriety of implication of a cause of action.” Cannon, 441 U.S. at 690 n.13; see also Pl. Reply at 4. The Court, consequently, agrees with Plaintiffs that the language of section 504 indicates that Congress intended to create a private cause of action. See Pl. Mot. Memo at 4–6.
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The history of the statute provides support for this conclusion, as the parallel language among the Rehabilitation Act, Title VI, and Title IX was not a curious coincidence. Rather, the text of section 504 was modeled on the language of section 601 of Title VI, which Congress knew had been interpreted to provide private rights of action. See Doe, 941 F.2d at 786–87. This Court, as a result, may properly conclude that Congress created a private right of action in the Rehabilitation Act because section 504 includes “the verbatim statutory text that courts had previously interpreted to create a private right of action,” Sandoval, 532 U.S. at 288, and because “[t]he drafters . . . explicitly assumed it would be interpreted and applied as Title VI had been.” Cannon, 441 U.S. at 694–95; Sandoval, 532 U.S. at 279–80 (applying Cannon’s logic); cf. 124 Cong. Rec. 30,349 (1978) (colloquy between Sen. Cranston, a co-sponsor of the Senate 1978 Rehabilitation Act bill, and Sen. Bayh on “the continuing intention of Congress that private actions be allowed under titles VI and VII of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972 and title V of the Rehabilitation Act of 1973”); Doe, 941 F.2d at 786 (collecting cases, decided between 1973 and 1978, in which courts determined Congress created private right of action in section 504).
The structure of the Rehabilitation Act further indicates that Congress intended to create a private remedy for equitable relief, rather than — as Defendants argue — requiring plaintiffs to rely on the Administrative Procedure Act’s remedial scheme for rights enforcement. See Def. Opp. at 8, 14. Simultaneous with its amending section 504 to add “Executive agenc[ies]” as actors prohibited from discriminating based on disability, Congress also enacted section 505, entitled “Remedies and attorneys’ fees.” 29 U.S.C. § 794a; see also Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. No. 95– 602, § 504. In this subsection, the legislature clarified that two subsets of plaintiffs should look
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to the remedial schemes of other statutes to redress their harms. First, employees who bring suit against the federal government for violations of section 501 are subject to the requirements of and have access to Title VII’s remedial scheme. See 29 U.S.C. § 794a(a)(1). Second, private parties who bring suits against recipients of federal funds for violations of section 504 can invoke Title VI’s remedial scheme. See id. § 794a(a)(2).
While Congress undertook in section 505 to enact new provisions to clarify which plaintiffs should look to the remedial schemes of other statutes, it never directed those plaintiffs who seek relief from Executive agencies’ violations of section 504 to rely on the Administrative Procedure Act. Nor would it make sense to assume — particularly when the text of section 504 indicates otherwise — that Congress intended to direct such plaintiffs to the APA’s remedial scheme when section 504’s reference to “any Executive agency” is meant to be more inclusive of entities than is the APA’s definition of an agency. See 7 Op. O.L.C. 110, 111–15 & n.13 (1983) (explaining after extensive examination of legislative history that Congress intended “Executive agency” to be “construed broadly to include all governmental entities which are not within either the Legislative or Judicial Branches,” and did not intend “an entity’s status under the APA . . . to determine its coverage by [section] 504”); compare 3 C.F.R. § 102.103 (defining “Agency” to include various “entities in the Executive Office of the President,” including “the White House Office” and “Office of the Vice President”), with Def. Opp. at 8–9 (explaining that President, Vice President, and components of Executive Office of President that are close advisors to President are immune from suit under APA).
This understanding of section 504 — namely, that private parties can rely on it in bringing suits against Executive agencies for injunctive and declaratory relief — is shared by many courts across the country. See Pl. Mot. Memo at 7–10; see also, e.g., Doe, 941 F.2d at
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789; J.L., 971 F.2d at 264; Yeh v. U.S. Bureau of Prisons, No. 18-943, 2019 WL 3713874, at *5 (M.D. Pa. May 15, 2019) (“[A] plaintiff may bring a claim for injunctive relief under section 504(a) of the [Rehabilitation Act] against [Executive] agencies and individuals acting in their official capacities”); Davis v. Astrue, No. 06-6108, 2011 WL 3651064, at *5 (N.D. Cal. Aug. 18, 2011) (considering history of Rehabilitation Act amendments and concluding that Congress created private right of action under section 504 for declaratory and injunctive relief against Executive agencies); Washington v. Fed. Bureau of Prisons, No. 16-3913, 2019 WL 2125246, at *8 (D.S.C. Jan. 3, 2019) (collecting cases and concluding same), report and recommendation adopted, No. 16-3913, 2019 WL 1349516 (D.S.C. Mar. 26, 2019); McRaniels, 2017 WL 2259622, at *4 (concluding, in suit against Executive agency, that “reading sections 504 and 505 [of the Rehabilitation Act] together compels a finding of an implied private right of action.”); Howard v. Bureau of Prisons, No 05-1372, 2008 WL 318387, at *9 (M.D. Pa. Feb. 4, 2008) (“With regard to the Rehabilitation Act . . . , injunctive relief is available even though damages are not” in suits against Executive agencies).
Courts in this district have generally shared that approach. See American Council of the Blind v. Paulson, 463 F. Supp. 2d 51, 57–58 (D.D.C. 2006), aff’d, 525 F.3d 1256 (D.C. Cir. 2008) (recognizing private right of action against government in holding that sovereign immunity does not bar private-plaintiff claims under section 504 against Executive agency for injunctive relief); Lane v. Pena, 867 F. Supp. 1050, 1053 (D.D.C. 1994) (granting injunction against Executive agency for violation of section 504 and noting that “[i]t is well-established that injunctive and declaratory relief are available under the Rehabilitation Act”) (quoting Doe v. District of Columbia, 796 F. Supp. 559, 573 (D.D.C. 1992)), vacated in part on other grounds by Lane, 518 U.S. at 190–91; but see Sai,149 F. Supp. 3d at 113 (finding that cause of action arises
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under APA). Given this general consensus, as well the decisions in Paulson and Lane in this district, it is unsurprising that in 2015, Defendants themselves argued to a court here that “Section 504 implies a private right of action to sue for injunctive relief in federal court for violations of that section that is not dependent on administrative exhaustion.” Defendants’ Reply in Support of Motion to Dismiss at 12, Sai (No. 14–1876) (citing Paulson). As the court explained in Sai, Defendants advocated that “the Rehabilitation Act ‘implies a private right of action to sue for injunctive relief in federal court’ for violations of the substantive rights protected by Section 504, but the Act does not create a private right of action for violations of the administrative rules at issue [t]here.” 149 F. Supp. 3d at 110.
Today, however, Defendants advocate for a different reading of Congress’s intent. They now contend that because section 505 is the only provision of the Rehabilitation Act that addresses what, if any, remedies are available to plaintiffs for violations of section 504, and because that subsection says nothing about suits against Executive agencies, Congress did not intend to create a private right of action therein. See Def. Opp. at 12. Turning back to section 504, Defendants note that, when Congress amended that subsection in 1978, it instructed the head of Executive agencies to “promulgate such regulations as may be necessary to carry out” the law’s addition of “any Executive agency.” Id.; see also 29 U.S.C. § 794; Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. No. 95– 602, § 504. The Government thus maintains that reading sections 504 and 505 together reveals that Congress intended for a regulatory scheme — and thus the APA — to remedy any violations. See Def. Opp. at 12.
To support this argument, Defendants point to a number of decisions that come out their way. Id. at 11 & n.2. Yet, as Plaintiffs correctly point out, see Reply at 10, these cases are
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distinguishable from the previously cited ones because they all dealt with Executive agencies’ acting as a regulator, as opposed to in a substantive capacity. See, e.g., Cousins v. Sec’y of the U.S. Dep’t of Transp., 880 F.2d 603 (1st Cir. 1989) (assessing deaf plaintiff’s challenge to DOT hearing-requirement regulation for commercial motor-vehicle drivers, and DOT’s decision not to waive that regulatory requirement, and finding that question of “how a person injured by the government [acting] as regulator” is addressed under APA); Clark v. Skinner, 937 F.2d 123, 125–27 (4th Cir. 1991) (considering plaintiff’s challenge to Federal Highway Administration’s regulation prohibiting limb-impaired persons from driving commercial vehicles, and finding no “§ 504 private cause of action against the United States government in its capacity as a regulator”) (emphasis added); Kinneary v. City of N.Y., 358 F. Supp. 2d 356, 359 (S.D.N.Y. 2005) (considering challenge to Coast Guard’s suspension of plaintiff’s license to operate municipal tanker in coastal waters for failure to comply with regulations requiring random drug testing, and declining to “read[] the Rehabilitation Act to create a cause of action against the federal government when acting in its role as a regulator”) (emphasis added).
Defendants also direct the Court to Sai, in which Judge Randolph Moss of this district considered whether a claim alleging that the Department of Homeland Security and the Transportation Security Administration violated a plaintiff’s rights by failing to respond to his administrative complaints fell under the Rehabilitation Act or the APA. See 149 F. Supp. 3d at 99; see also Def. Opp. at 12. Without benefit of adversarial briefing, Judge Moss found it “easy to imagine [that] Congress would not have created a private cause of action to enforce Section 504 against federal agencies . . . [because] it knew that review would be available under the APA.” Id. at 113. He found the logic of Cousins compelling, particularly its reliance on the “purpose[] of the APA to provide a ‘single uniform method for review of agency action.’” Id. at
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114 (quoting Cousins, 880 F.2d at 605); see also Cousins, 880 F.2d at 605 (warning that “[t]o allow actions for review of agency action once again to proliferate under a variety of names would threaten a return to pre-APA confusion”). Sai proceeded to reject the distinction between the government’s acting as regulator and as discriminator because governmental acts of discrimination that can be remedied by declaratory or injunctive relief “are likely to involve either demands for relief that have been formally rejected or established rules or procedures that fail to comply with the [Rehabilitation] Act.” Id. at 115.
While this Court recognizes the force of Sai’s reasoning as to why Congress could or perhaps even should have pointed plaintiffs to the APA, it ultimately cannot conclude that the purpose of that Act can overcome the “rights-creating” language of the text that Congress included in section 504 and that the Supreme Court has consistently found creates a private right of action. See Sandoval, 532 U.S. at 279; see also Cannon, 441 U.S. at 709. The Court also notes that following Sai, as Defendants explain, would leave Plaintiffs without a judicial remedy. See Def. Opp. at 14–19 (explaining that Defendants’ actions are not subject to judicial review under APA). Plaintiffs have, accordingly, met their burden to show that their claim arising under section 504 of the Rehabilitation Act provides a statutory basis on which to secure injunctive relief.
b. Merits of Claim Defendants briefly raise a second argument against Plaintiffs’ likelihood of success on the merits, which this Court can dispose of almost as quickly. The Government argues that because it provides other non-auditory means for Plaintiffs to access information conveyed in the coronavirus briefings, the Rehabilitation Act does not require it also to provide ASL interpretation. Id. at 10. The Court disagrees.
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The Rehabilitation Act requires that people who are disabled within the meaning of the Act have “meaningful access” to the federal government’s programs or activities. See Alexander v. Choate, 469 U.S. 287, 301 (1985); American Council of the Blind v. Mnuchin, 878 F.3d 360, 363 (D.C. Cir. 2017). The standard lacks “precise boundaries,” American Council of The Blind v. Snow, 311 F. Supp. 2d 86, 89 (D.D.C. 2004), but the relevant inquiry is “whether those with disabilities are as a practical matter able to access benefits to which they are legally entitled.” Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003); see also Paulson, 525 F.3d at 1267 (“Where the plaintiffs identify an obstacle that impedes their access to a government program or benefit, they likely have established that they lack meaningful access to the program or benefit.”). “[T]o assure meaningful access, reasonable accommodations . . . may have to be made.” Alexander, 469 U.S. at 301. As the Circuit has noted, “[D]eaf individuals lack meaningful access to government activities or programs without the provision of interpretive assistance.” Paulson, 525 F.3d at 1268 (citing Randolph v. Rogers, 170 F.3d 850, 858 (8th Cir. 1999), Rothschild v. Grottenthaler, 970 F.2d 286, 291 (2d Cir. 1990), and United States v. Bd. Of Trs. For the Univ. of Ala., 908 F.2d 740, 748 (11th Cir. 1990)).
Individual Plaintiffs contend that they lack meaningful access to the substance of the briefings because “captioning is often delayed and inaccurate,” Axelrod Decl., ¶ 4; Forsey Decl., ¶ 4, and they have difficulty “understand[ing] captioning on television when the content is complex, such as when there is information about a health pandemic.” Fleetwood Decl., ¶ 3; Rivera Decl., ¶ 3; Strail Decl., ¶ 3. Plaintiffs do not directly address Defendants’ provision of written English transcripts following briefings, but do declare that ASL — not English — is their primary and preferred language. See Axelrod Decl., ¶ 2; Forsey Decl., ¶ 2; Fleetwood Decl., ¶ 2; Rivera Decl., ¶ 2; Strail Decl., ¶ 2. As NAD maintains, “Written English is not an effective
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means of communication for many deaf individuals who have limited English capabilities, particularly for complex and important topics such as COVID-19 and related issues of public health.” Rosenblum Decl., ¶ 6. Even when written English is provided, then, deaf people who rely on ASL “cannot effectively receive the messages conveyed at the White House press briefings,” id., no matter whether the messages are conveyed in real time through closed captioning or after the fact via transcripts.
Closed captioning and transcripts may constitute a reasonable accommodation under some circumstances, but not here. As another court explained in rejecting a state government’s similar arguments, these “accommodations — however well-intentioned — simply do not provide ‘meaningful access in the circumstances [presented] here.’” Martinez v. Cuomo, No. 20-3338, 2020 WL 2393285 at *5 (S.D.N.Y. May 12, 2020) (alteration in original) (quoting Disabled in Action v. Bd. of Elections of New York, 752 F.3d 189, 201 (2d Cir. 2014)) (granting preliminary injunction to require governor to provide in-frame ASL interpretation during televised briefings about COVID-19); see also Paulson, 525 F.3d at 1259, 1269–70 (rejecting government’s argument that “availability of portable currency readers to identify denominations and credit cards as an alternative to cash” constitutes meaningful access to currency for blind persons).
This is enough for Plaintiffs to establish a likelihood of success on the merits of their Rehabilitation Act count.
B. Irreparable Harm As set forth above, in addition to showing such likelihood of success, a party seeking a preliminary injunction must demonstrate that its injury is “of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Chaplaincy of Full Gospel
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Churches, 454 F.3d at 297 (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)) (internal quotation marks omitted). The injury must also be “both certain and great; it must be actual and not theoretical.” Id. (quoting Wisconsin Gas, 758 F.2d at 674). Finally, the injury must be “beyond remediation.” Id.
There is little debate on this prong here. Plaintiffs seek access to information about their health and safety, as well as updates on the economy and the development of a vaccine. See Compl., ¶ 1; Pl. Mot. Memo at 17–18. They emphasize that, absent ASL interpretation, they will suffer irreparable harm because they will be “denied timely access to . . . critical information, leaving them less able to comply with current orders and advice, less able to prepare for the future, and more anxious about current conditions and the future.” Pl. Mot. Memo at 2–3 (quoting Martinez, 2020 WL 2393285, at *6). As an example, the importance of mask wearing was not generally explained in the early months of the pandemic, but as scientists learned more about the virus, the White House’s briefings included information on the importance of regular mask wearing by the general public. See Remarks by President Trump in Press Briefing (July 21, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-pressbriefing-072120/ (encouraging everyone to wear a mask). Defendants recycle the point that Plaintiffs will not suffer irreparable harm given the alternative formats in which the information is provided, including closed captioning. See Def. Opp. at 23. As the Court has already considered and rejected that position, and because Defendants raise no other arguments in briefing, see id., Plaintiffs have sufficiently prevailed on this factor as well.
C. Balance of the Equities and the Public Interest The last factors, which the Court considers together, examine “the balance of equities” and “the public interest.” Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20); see also
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League of Women Voters, 838 F.3d at 12. When the non-moving party is the Government, these two considerations merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). Plaintiffs have so readily satisfied this standard that little need be said.
Plaintiffs seek access to critical public-health information to benefit themselves and their loved ones. While Defendants may take issue with the scope of Plaintiffs’ requested remedy, which the Court addresses next, they have not counterbalanced Plaintiffs’ harms. Indeed, at no point have Defendants said that providing an ASL interpreter to guarantee that access would be too burdensome. See Def. Op. at 23. The Court also agrees with Plaintiffs that it is in the public interest for them to receive up-to-date information during the pandemic, see Pl. Mot. Memo at 3, particularly given the rapidly evolving science on the nature of the virus’s spread.
Having cleared the bar on this factor as well as the others, the Court concludes that Plaintiffs are entitled to some form of preliminary relief here.
D. Relief One seminal question remains: what form should that relief take and against whom? The Court addresses the two issues in reverse order. Plaintiffs have sued President Trump and Vice President Pence, among other Defendants, and want this Court to order both men to use in-frame ASL interpretation during all White House briefings about the coronavirus that they conduct and that are announced in advance. See Pl. Supp. at 3. Even if this Court can, in some circumstances, issue declaratory relief against the President, see Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 230, 233 (2d Cir. 2019), there are uncertainties about the extent of its power to enjoin him and the Vice President to act in a specific way. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 80001 (1992) (citing Nixon v. Fitzgerald, 457 U.S. 731, 748 n. 27 (1982)); Mississippi v. Johnson,
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71 U.S. (4 Wall). 475, 499 (1886); Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010); Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 575 (S.D.N.Y. 2018), aff'd, 928 F.3d at 230. The Court can fortunately sidestep this thicket, however, because, either as a matter of mootness or comity, enjoining other parties in the White House can provide Plaintiffs with the relief it believes warranted. Cf. Karem v. Trump, 960 F.3d 656, 668 (D.C. Cir. 2020) (upholding injunction against Press Secretary but not President when plaintiff did not rebut defendants’ contention that relief could not run against President); Knight First Amendment Inst., 302 F. Supp. 3d at 579 (“[A]s a matter of comity, courts should normally direct legal process to a lower Executive official even though the effect of the process is to restrain or compel the President.”) (quoting Nixon v. Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973) (en banc)). Indeed, beyond digging up arguments that they had conceded in briefing about who is an eligible defendant under section 504, Defendants here do not contest that this Court can issue injunctive relief against others named here — viz., the Executive Offices of the President and Vice-President, the White House Office, and Press Secretary McEnany. See ECF No. 13 (August 26, 2020, Hearing Transcript) at 28; see Karem, 960 F.3d at 668 (upholding injunction against Press Secretary).
This then leads to the question of the precise contours of the relief that this Court should order. As Plaintiffs have come to recognize, it cannot provide some of what they originally requested. For example, this Court cannot order Defendants to require television broadcast outlets to carry video of an ASL interpreter when showing the coronavirus briefings; indeed, what private broadcasters choose to air, when, and in what format is beyond the Court’s control.
In supplemental briefing, Plaintiffs narrowed the scope of their requested relief to the following:
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a. For purposes of the preliminary injunction, the term “White House coronavirus briefings” is defined as those briefings that (i) are conducted by any Defendant (including the White House Press Office), (ii) involve notice that is publicly disseminated in advance of commencing, and (iii) have as one of their purposes discussing the coronavirus pandemic, including but not limited to information related to the spread or containment of the virus; updates regarding vaccinations or treatments; government action taken in response to the pandemic; and any health, education, or economic issues and updates related to the pandemic. For the avoidance of doubt, White House coronavirus briefings are not limited to those that occur in the White House Press Briefing Room.
b. Defendants must provide in-frame ASL interpretation at all White House coronavirus briefings by (a) placing an ASL interpreter physically near the speaker at such briefings, and/or (b) creating a live feed of a PIP ASL interpreter and making that PIP feed available to all entities broadcasting the briefings (including WHCA and the pool feed of the television networks) in a manner that allows those entities to include the PIP feed on their live broadcasts.
c. Defendants must include an ASL interpreter in the WHCA feed for all White House coronavirus briefings, either by including in the frame the ASL interpreter located physically near the speaker, or by carrying the PIP feed of the ASL interpreter.
Pl. Supp. at 3.
The first point addresses the question of when — in other words, the circumstances in
which ASL interpretation is sought — and Defendants do not dispute that this definition is
appropriate. The harder logistical issues surround the second and third proposals, which detail
what Defendants must do. To reformulate Plaintiffs’ proposals somewhat, one reasonable option
is to require the White House to offer simultaneous in-frame ASL interpretation on its live feed
posted on YouTube and on its delayed feed, which is posted to other social-media platforms.
Defendants could do so either by having an ASL interpreter physically near the speaker or by
creating a simultaneous live feed of such interpreter elsewhere, given the constraints of the Press
Briefing Room. See Deere Decl., ¶ 9 (“Press Briefing Room is a small space”); Def. Opp. at 3
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(“[S]eating has been further limited to facilitate social distancing requirements in Press Briefing Room”). The Government has not maintained that complying with such a remedy would be too burdensome or impracticable. Indeed, it could arguably also provide the video of that same ASL interpreter to media outlets or enable those outlets to film the interpreter at the same time that the White House does, but the Court again imposes no mandate on the media.
To determine the optimal approach, the Court will conduct another hearing, at which the parties may discuss the specifics of the above proposal. In the interim, the Court encourages them to confer in the hopes of reaching some agreement on format. IV. Conclusion
The Court, consequently, will issue a contemporaneous Order granting Plaintiffs’ Motion for Preliminary Injunction in part, but staying such Order until the specifics can be resolved.

Date: September 9, 2020

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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 Case 1:20-cv-02107-JEB Document 22 Filed 09/23/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION OF THE DEAF, et al.,
Plaintiffs, v.
DONALD J. TRUMP, et al., Defendants.

Civil Action No. 20-2107 (JEB)

ORDER
On September 9, 2020, the Court issued a Memorandum Opinion and separate Order
granting in part and denying in part Plaintiffs’ Motion for Preliminary Injunction. See ECF Nos.
17–18. The Court stayed that Order to determine the precise remedy that should be awarded to
Plaintiffs. It then heard argument concerning the proper remedy on September 17, 2020, and at
that time directed the parties to meet and confer and file a Joint Proposed Injunction Order,
which they did on September 22, 2020. See ECF No. 21.
The parties have largely agreed on all terms of the injunction, and the Court now resolves
those areas of disagreement. It accordingly ORDERS that:
1. For purposes of this preliminary-injunction Order:
a. The term “White House coronavirus briefings” is defined as those briefings: (i) that are conducted by the President, Vice President, or White House Press Secretary; (ii) that involve notice that is publicly disseminated by the White House Press Office or the White House Office of the Press Secretary in advance of commencing; (iii) at which the coronavirus pandemic is reasonably expected to be addressed; (iv) that take place on the grounds of the White House or any federal agency; and (v) that are captured by the White House Communications Agency (WHCA). For the avoidance of doubt, information concerning the coronavirus pandemic includes but is not limited to information related to the
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spread or containment of the virus; updates regarding vaccinations or treatments; government action taken in response to the pandemic; and health updates related to the pandemic;
b. The term “qualified ASL interpreter” shall have the same meaning as a “qualified interpreter” under 28 C.F.R. § 35.104 (an interpreter who “is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary”);
2. Defendants shall include a qualified ASL interpreter in the WHCA feed for all White House coronavirus briefings, as defined in paragraph 1 above, either by including in the frame a qualified ASL interpreter located physically near the speaker, or by including in the frame a separate video feed of a qualified ASL interpreter being filmed in a remote location using a picture-in-picture (PIP) format;
3. If Defendants include a qualified ASL interpreter in the WHCA feed by using a PIP format as described in paragraph 2 above, then Defendants shall make the video feed of the qualified ASL interpreter available to the television networks or the networks’ pool feed in a manner that allows the networks to include the qualified ASL interpreter in their live broadcasts; and
4. The injunction shall take effect on October 1, 2020.

SO ORDERED.

Date: September 23, 2020

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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