FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEGAL AID SERVICES OF OREGON; 

ARRON GUEVARA; JANICE MORGAN;

SHARON LEE SCHWARTZ; DONNA

SATHER,

Plaintiffs-Appellants,

and

OREGON LAW CENTER; DAVID

HENRETTY; DIANE SCHWARTZ SYKES;

No. 08-35467 LOREY FREEMAN; COMMUNITY

ALLIANCE OF  DC No. TENANTS;

CAMPAIGN FOR EQUAL JUSTICE, CV 05-1444 PK

Plaintiffs,

v.

LEGAL SERVICES CORPORATION,

Defendant-Appellee,

UNITED STATES OF AMERICA,

Defendant-Intervenor-Appellee. 

15487
LEGAL AID SERVICES OF OREGON; 

ARRON GUEVARA; JANICE MORGAN;

SHARON LEE SCHWARTZ; DONNA

SATHER; OREGON LAW CENTER;

DAVID HENRETTY; DIANE SCHWARTZ

SYKES; LOREY FREEMAN;

COMMUNITY ALLIANCE OF TENANTS,

Plaintiffs,

No. 08-35483

and  DC No.

CAMPAIGN FOR EQUAL JUSTICE, CV 05-1444 PK

Plaintiff-Appellant,

v.

LEGAL SERVICES CORPORATION,

Defendant-Appellee,

UNITED STATES OF AMERICA,

Defendant-Intervenor-Appellee. 

15488 LEGAL AID v. LEGAL SERVICES CORP.
LEGAL AID SERVICES OF OREGON; 

ARRON GUEVARA; JANICE MORGAN;

SHARON LEE SCHWARTZ; DONNA

SATHER,

Plaintiffs,

CAMPAIGN FOR EQUAL JUSTICE,

Plaintiff,

No. 08-35492 and

O DC Nos. REGON LAW CENTER; DAVID

HENRETTY; DIANE SCHWARTZ SYKES;  CV 05-1444 PK

LOREY FREEMAN; COMMUNITY CV 05-1443 PK

ALLIANCE OF TENANTS, OPINION

Plaintiffs-Appellants,

v.

LEGAL SERVICES CORPORATION,

Defendant-Appellee,

UNITED STATES OF AMERICA,

Defendant-Intervenor-Appellee. 

Appeals from the United States District Court

for the District of Oregon

Paul J. Papak, Magistrate Judge, Presiding

Argued and Submitted

July 7, 2009—Portland, Oregon

Filed November 23, 2009

LEGAL AID v. LEGAL SERVICES CORP. 15489
Before: Harry Pregerson, Pamela Ann Rymer, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge Tashima;

Dissent by Judge Pregerson

15490 LEGAL AID v. LEGAL SERVICES CORP.
COUNSEL

Stephen S. Walters (argued), Allen Matkins Leck Gamble

Mallory & Natsis, San Francisco, California, and Beverly C.

15492 LEGAL AID v. LEGAL SERVICES CORP.
Pearman, Stoel Rives, Portland, Oregon, for plaintiffsappellants Legal Aid Services of Oregon and LASO plaintiffs.

Don H. Marmaduke, Tonkon Torp, Portland Oregon, for

plaintiffs-appellants Oregon Law Center and OLC plaintiffs.

Kent B. Thurber, Davis Wright Tremaine, Portland, Oregon,

for plaintiff-appellant Campaign for Equal Justice.

William S. Freeman, Palo Alto, California, for defendantappellee.

Matthew M. Collette, Civil Division, U.S. Department of Justice, Washington, DC, for defendant-intervenor-appellant.

OPINION

TASHIMA, Circuit Judge:

We must determine whether restrictions on lobbying, soliciting clients, participating in class actions, and seeking attorneys’ fees (collectively, the “Restrictions”) that Congress has

imposed on legal aid organizations that receive federal grants

through the Legal Services Corporation (“LSC”), comport

with the requirements of the First Amendment. In Legal Aid

Soc’y of Haw. v. Legal Serv. Corp., 145 F.3d 1017 (9th Cir.

1998) (“LASH III”), we upheld the Restrictions as facially

constitutional. We concluded that LSC’s program integrity

rule (“PIR”) permits grantees to channel restricted speech,

paid for with non-federal dollars, through unrestricted affiliates, and thus, the Restrictions do not unconstitutionally condition the receipt of federal funds on the relinquishment of

First Amendment rights. Id. at 1025. 

Legal Aid Services of Oregon (“LASO”), Oregon Law

Center (“OLC”), individual LASO and OLC attorneys and

LEGAL AID v. LEGAL SERVICES CORP. 15493
board members, and organizations representing LASO clients

and private donors (collectively “Plaintiffs”), present a twopronged attack on the Restrictions and PIR. First, they contend that the Supreme Court’s decision in Legal Serv. Corp.

v. Velazquez, 531 U.S. 533 (2001) (“Velazquez III”) superseded LASH III, and that under Velazquez III, the Restrictions

must be struck down as facially violative of the First Amendment. Next, they contend that, even if LASH III remains good

law, LSC has applied the PIR to them in a manner that cuts

off alternative avenues for engaging in protected speech. 

The district court dismissed Plaintiffs’ facial challenge to

the Restrictions, granted summary judgment in favor of LSC

on their as-applied challenge to the PIR, and denied their

motion for a new trial. 

We have jurisdiction to review the final judgment of the

district court under 28 U.S.C. § 1291, and affirm.

BACKGROUND AND PROCEEDINGS

I. LSC and the Restrictions

In 1974 Congress enacted the Legal Services Corporation

Act (the “1974 Act”), Pub. L. No. 93-355, 88 Stat. 378 (codified as amended at 42 U.S.C. §§ 2996-2996l), establishing

LSC as an independent nonprofit corporation. LSC’s mission

is to distribute congressionally appropriated funds to qualifying organizations “for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters

to persons financially unable to afford legal assistance.” 42

U.S.C. § 2996b(a). 

Congress has restricted the activities of LSC grantees since

the grant program’s inception, and the scope of those restrictions has expanded over time. The 1974 Act, for example,

provided that LSC funds could not be used to provide legal

assistance in school desegregation cases, cases in which a cli15494 LEGAL AID v. LEGAL SERVICES CORP.
ent seeks to procure an abortion or compel an institution to

provide an abortion, military desertion cases, any “feegenerating case,” and collateral attacks on criminal convictions. Id. § 2996f(b). Further, every year between 1983 and

1996, Congress included an appropriations rider in its annual

spending bill “purport[ing] to eliminate legislative lobbying

and administrative advocacy” among LSC grantees. S. Rep.

104-392 at 3 (Sept. 30, 1996).

In 1996, responding to concerns that LSC had strayed from

its core mission of “fund[ing] basic legal services for poor

individuals,” id. at 1, Congress imposed new restrictions on

the activities of LSC grantees. See Omnibus Consolidated

Rescissions and Appropriations Act of 1996, Pub. L. No. 104-

134, § 504, 110 Stat. 1321, 1321-53-57 (1996) (the “1996

Act”), reenacted in the Omnibus Consolidated Appropriations

Act of 1997, Pub. L. 104-208, § 502, 110 Stat. 3009, 3009-59-

60 (1997). The 1996 Act enacted, and subsequent LSC regulations implemented, restrictions on: (1) attempts to influence

legislation and/or administrative rulemaking processes, 45

C.F.R. § 1612 et seq.; (2) initiation of, and participation in,

class action lawsuits, id. § 1617 et seq.; (3) claiming, collecting or retaining attorneys’ fees available under any federal or

state law, id. § 1642 et seq.; and (4) soliciting clients, id.

§ 1638 et seq.

1

 The Restrictions apply to all of the activities

of an LSC grantee, including those paid for by non-LSC

funds. 45 C.F.R. § 1610.4. 

1The 1996 Act also prohibited LSC grantees from providing legal assistance to certain classes of aliens, seeking to reform welfare, litigating on

behalf of prisoners, engaging in activity involving political redistricting,

supporting certain advocacy training programs, and litigating cases related

to abortion. See Velazquez v. Legal Serv. Corp., 164 F.3d 757, 760 & n.2

(2d Cir. 1999) (“Velazquez II”). Those restrictions are not at issue in this

appeal. 

LEGAL AID v. LEGAL SERVICES CORP. 15495
II. PIR and the LASH Litigation 

In 1997, in response to a federal district court’s injunction

declaring several of the 1996 Act’s restrictions facially unconstitutional insofar as they applied to LSC grantees’ nonfederally funded activities, see Legal Aid Soc’y of Haw. v.

Legal Serv. Corp. , 961 F. Supp. 1402, 1422 (D. Haw. 1997)

(“LASH I”), LSC promulgated the PIR to clarify the circumstances under which a grantee could affiliate with an organization that engages in restricted activities.2

See 45 C.F.R.

§ 1610.8. The PIR provides that:

(a) A[n] [LSC grant] recipient must have objective

integrity and independence from any organization

that engages in restricted activities. 

A recipient will be found to have objective integrity and independence from such an organization if:

(1) The other organization is a legally separate

entity;

(2) The other organization receives no transfer of

LSC funds, and LSC funds do not subsidize

restricted activities; and

(3) The recipient is physically and financially separate from the other organization. Mere bookkeeping

separation of LSC funds from other funds is not sufficient. Whether sufficient physical and financial

separation exists will be determined on a case-bycase basis and will be based on the totality of the

facts. The presence or absence of any one or more

2The LASH plaintiffs consisted of several LSC grantee organizations,

lawyers that worked for those organizations, an organization representing

legal aid clients, and two organizations that provided funding to legal aid

organizations. LASH I, 961 F. Supp. at 1406-07. 

15496 LEGAL AID v. LEGAL SERVICES CORP.
factors will not be determinative. Factors relevant to

this determination shall include but will not be limited to:

(i) The existence of separate personnel;

(ii) The existence of separate accounting

and timekeeping records;

(iii) The degree of separation from facilities

in which restricted activities occur, and the

extent of such restricted activities; and

(iv) The extent to which signs and other

forms of identification which distinguish

the recipient from the organization are present.

(b) Each recipient’s governing body must certify to

[LSC] within 180 days of the effective date of this

part that the recipient is in compliance with the

requirements of this section. Thereafter, the recipient’s governing body must certify such compliance

to [LSC] on an annual basis.

Id.

LSC drafted the PIR to mirror the program integrity regulations associated with federal grants provided under Title X of

the Public Health Service Act; regulations that withstood First

Amendment scrutiny in Rust v. Sullivan, 500 U.S. 173 (1991).

See Velazquez II, 164 F.3d at 761-62 (citing 62 Fed. Reg.

12101, 12101-04 (1997)). The restrictions at issue in Rust

prohibited Title X grantees from providing counseling concerning the use of abortion as a method of family planning,

or engaging in any lobbying effort or legal action aimed at

encouraging abortion. See Rust, 500 U.S. at 179-80. A grantee’s affiliate could engage in restricted activities, but only if

LEGAL AID v. LEGAL SERVICES CORP. 15497
the grantee and affiliate ensured legal, physical, and financial

separation. See id. at 180-81. 

The Rust court rejected the Title X grantees’ (and doctors

who worked for those grantees) claim that the restrictions

amounted to an unconstitutional condition. To prevail on such

a claim, the Court explained, a recipient of a federal subsidy

must show that it has been “effectively prohibit[ed] . . . from

engaging in [ ] protected conduct outside the scope of the federally funded program.” Id. at 197. Because grantees were

free to engage in restricted activities through a legally separate affiliate, the Court determined that they had failed to

establish an unconstitutional condition. The Court also concluded that the challenged restrictions did not amount to

impermissible viewpoint discrimination, because Congress

had “not discriminated on the basis of viewpoint; it [ ] merely

chose[ ] to fund one activity to the exclusion of the other.” Id.

at 193.

After the issuance of the PIR, the LASH I district court dissolved its injunction and entered summary judgment in favor

of LSC. Legal Aid Soc’y of Haw. v. Legal Serv. Corp., 981 F.

Supp. 1288, 1294, 1301 (D. Haw. 1997). 

We affirmed the judgment of the district court, concluding

that the Restrictions and PIR satisfy the standards set forth in

Rust. See LASH III, 145 F.3d at 1024. Because the PIR did not

force LSC grantees to “give up prohibited activities,” but

rather allowed them to engage in those activities so long as

they were carried out through “separate and independent”

entities, we concluded that, under Rust, the Restrictions were

constitutional on their face. See id. at 1025. We rejected the

LASH III plaintiffs’ contention that the practical burdens associated with channeling restricted activities through separate

affiliates amounted to an impermissible burden on the exercise of their free speech rights, but left open the possibility

that they could challenge LSC’s application of the PIR in a

subsequent action. Id. at 1027. 

15498 LEGAL AID v. LEGAL SERVICES CORP.
III. Velazquez Litigation3

In 1997, legal aid organizations in New York, together with

individual legal aid attorneys, clients, and donors, brought an

action challenging several of the 1996 Act’s funding restrictions.4

See Velazquez v. Legal Serv. Corp., 985 F. Supp. 323

(E.D.N.Y. 1997) (“Velazquez I”). The Velazquez plaintiffs

sought a preliminary injunction declaring, in relevant part,

that the challenged restrictions were facially violative of the

First Amendment. Id. at 326. The district court denied the preliminary injunction motion, reasoning that the PIR was in all

relevant respects identical to the program integrity regulations

upheld in Rust; thus, that the plaintiffs were unlikely to succeed on the merits of their claim. Id. at 326-27. 

The Second Circuit affirmed in part, and reversed in part.

It agreed with the district court that, as a facial matter, the PIR

provided LSC grantees with adequate alternative channels for

engaging in protected expression, and thus there was no

unconstitutional conditions violation. See Velazquez II, 164

F.3d at 767. The court concluded, however, that one of the

challenged restrictions — the so-called “suits-for-benefits

exception” — ran afoul of the First Amendment. See id. at

769-72. The suits-for-benefits exception provided that an LSC

grantee could represent an eligible client seeking specific

relief from a welfare agency, but only if the grantee refrained

from challenging the validity of the underlying statutes and

regulations. Id. at 769. Because it permitted funding for legal

actions that accepted the validity of existing welfare laws, but

denied it with respect to those that challenged the status quo,

the Velazquez II court concluded that the suits-for-benefits

3Because the Velazquez litigation sequence addressed the legal questions at issue in this case, we summarize it at length here. 

4

In addition to several restrictions not at issue in this appeal, the Velazquez I plaintiffs challenged the 1996 Act’s bar on seeking attorneys’ fees,

participating in class actions, engaging in lobbying, and soliciting clients.

Velazquez I, 985 F. Supp. at 328. 

LEGAL AID v. LEGAL SERVICES CORP. 15499
exception was viewpoint discrimination subject to strict First

Amendment scrutiny. Id. at 769-70. 

The Supreme Court granted the LSC’s certiorari petition,

but declined to review the Second Circuit’s judgment insofar

as it upheld the other substantive restrictions. 532 U.S. 903

(Mem.) (2001) (denying the Velazquez plaintiffs’ petition for

certiorari). The Supreme Court — in a 5-4 decision that we

discuss at length infra — agreed with the Second Circuit that

the suits-for-benefits exception was unconstitutional. Velazquez III, 531 U.S. at 549. 

The litigation then returned to the district court where the

Velazquez plaintiffs pursued both an as-applied challenge to

the PIR, and a facial challenge to the class action, attorneys’

fees, and solicitation restrictions. Velazquez v. Legal Serv.

Corp., 349 F. Supp. 2d 566 (E.D.N.Y. 2004) (“Velazquez

IV.”). The district court dismissed the plaintiffs’ facial challenge, but granted their application for a preliminary injunction on the as-applied challenge to the PIR, concluding that

LSC’s enforcement of the PIR “unduly burden[ed]” the plaintiffs’ ability to use non-federal funds to engage in restricted

activities. Id. at 611.

The Second Circuit affirmed in part, reversed in part, and

vacated the district court’s injunction. Brooklyn Legal Serv.

Corp. v. Legal Serv. Corp., 462 F.3d 219, 236 (2d Cir. 2006)

(“Velazquez V”). The court agreed that the Velazquez plaintiffs’ facial challenge to the substantive restrictions failed to

state a claim, id. (summarily adopting the reasoning and conclusions of the district court with respect to plaintiffs’ facial

challenge), but concluded that the district court erred in applying an undue burden standard to the as-applied challenge to

the PIR, see id. at 231. The proper standard, the court concluded, was whether grantees had “demonstrated as a factual

matter that the [PIR] ha[d] not left them adequate alternative

channels for protected expression.” Id.

15500 LEGAL AID v. LEGAL SERVICES CORP.
IV. LASO and OLC

LASO is a nonprofit legal aid organization and LSC

grantee. It derives roughly 45 percent of its $6.5 million

annual operating budget from LSC grants, and the remainder

of its funding comes from other federal, state, and private

sources. OLC is an independent legal aid organization that

does not receive funding from LSC; thus, it is not subject to

the Restrictions. The organizations share a common board of

directors. 

Since 1995, when LASO spun-off OLC, the two organizations have coordinated their respective delivery of legal services, with OLC providing many of the services that LASO

cannot offer pursuant to the Restrictions. In addition to their

common board, the two organizations coordinate their efforts

by: (1) maintaining separate but adjoining office space; (2)

co-counseling certain cases; (3) holding regular joint planning

meetings; (4) maintaining a single litigation support unit to

aid both OLC and LASO attorneys; (5) dividing the use of

physical resources like libraries, computer services, and

phone systems; and (6) coordinating training, priority setting,

and information sharing regarding administration, finance,

personnel, and other policies. 

In May 2005, LASO submitted a new configuration proposal (the “Proposal”) to LSC. Under the Proposal, LASO

and OLC would merge into a single, nonprofit corporation

with two financially separate divisions. The new organization

would operate under the leadership of a single executive

director, and the two divisions would share personnel in a

variety of job categories. 

LSC’s Office of Legal Affairs issued a written opinion

rejecting the Proposal. The opinion explained that “[i]n order

to maintain program integrity from OLC, LASO must be a

legally separate entity and must have greater physical and

financial separation than set forth in the proposal.” According

LEGAL AID v. LEGAL SERVICES CORP. 15501
to the declaration of Mark Freedman, LSC’s Assistant General Counsel, LASO did not contact LSC to discuss the Proposal prior to submitting it, nor did it explore alternatives with

LSC after receiving notice that the Proposal had been

rejected. Freedman also stated that “the PIR would permit a

limited number of individual LASO attorneys to work parttime for OLC, provided the organizations otherwise complied

with the PIR in terms of legal, physical and financial separation overall.” 

V. Proceedings in this Case

In September 2005, Plaintiffs filed this action raising, in

relevant part, facial and as-applied First Amendment claims,

and seeking declaratory and injunctive relief.5 The United

States intervened to defend the constitutionality of the

Restrictions and PIR. 

LSC and the United States both filed motions to dismiss all

of Plaintiffs’ claims. The Magistrate Judge, in his Findings

and Recommendations, recommended granting the motions as

to all claims, except for Plaintiffs’ as-applied First Amendment challenge to the PIR. The district adopted the recommendations in their entirety. Ultimately, in its Amended

Order, the district court granted the motions to dismiss as to

all of Plaintiffs’ claims, except for the as-applied challenge to

the PIR.6

The parties then engaged in a lengthy and contentious discovery process, with several disputed motions to compel. The

5The State of Oregon brought a separate action against LSC challenging

the Restrictions and PIR on Tenth Amendment grounds. The district court

dismissed the State’s action and that dismissal was affirmed on appeal. See

Oregon v. Legal Serv. Corp., 552 F.3d 965 (9th Cir. 2009) (holding that

Oregon lacked Article III standing to challenge the Restrictions). 

6After the district judge filed the Amended Order, the parties consented

to the Magistrate Judge’s full jurisdiction over the case under 28 U.S.C.

§ 636(c). 

15502 LEGAL AID v. LEGAL SERVICES CORP.
district court denied Plaintiffs’ requests for production of documents relating to LSC’s interpretation and enforcement of

the substantive Restrictions, but permitted a great deal of discovery regarding LSC’s enforcement of the PIR. 

In December 2007, LSC and the United States filed

motions for summary judgment on Plaintiffs’ remaining asapplied challenge, and the individual LASO attorneys filed a

cross-motion for partial summary judgment. The court

granted Defendant and Intervenor’s motions and denied the

LASO attorneys’ motion. See Legal Aid Serv. of Or. v. Legal

Serv. Corp., 561 F. Supp. 2d 1187 (D. Or. 2008).

Plaintiffs then filed a motion for new trial or, in the alternative, to amend/correct the opinion and judgment. In their

motion, Plaintiffs stated that they read the order as granting

summary judgment in favor of LSC on both their as-applied

challenge to the PIR, and their as-applied challenge to the

Restrictions themselves — which they believed were legally

distinct claims. The problem with the judgment, in Plaintiffs’

view, was that district court’s prior Amended Order had dismissed all of Plaintiffs’ claims except for the as-applied challenge to the PIR. Had they known that the as-applied

challenge to the Restrictions was still at issue, Plaintiffs contended, they would have presented additional arguments and

evidence. 

After holding two hearings on the matter, the Magistrate

Judge denied Plaintiffs’ motion. He explained that Plaintiffs’

inability to present additional arguments and evidence related

to their as-applied challenge to the Restrictions “couldn’t have

impacted the ultimate decision,” because the only issue before

the court after the dismissal of Plaintiffs’ facial challenge to

the Restrictions was whether the PIR permitted Plaintiffs to

access alternative channels for expressing protected speech. 

Plaintiffs timely appealed, seeking review of the district

court’s dismissal of their facial challenge to the Restrictions,

LEGAL AID v. LEGAL SERVICES CORP. 15503
entry of summary judgment on their as-applied challenge,

denial of their motion for a new trial, and denial of several

motions to compel relating to LSC’s enforcement of the

Restrictions.

STANDARDS OF REVIEW

Review of the district court’s dismissal for failure to state

a claim is de novo, “accept[ing] all factual allegations in the

complaint as true and constru[ing] the pleadings in the light

most favorable to the nonmoving party.” Knievel v. ESPN,

393 F.3d 1068, 1072 (9th Cir. 2005).

Review of the district court’s entry of summary judgement

is also de novo. Henderson v. City of Simi Valley, 305 F.3d

1052, 1055 (9th Cir. 2002). Summary judgment is to be

granted only if the pleadings and supporting documents,

viewed in the light most favorable to the non-moving party,

show that there is no genuine issue as to a material fact, and

the moving party is entitled to judgment as a matter of law.

See FED. R. CIV. P. 56(c).

Review of the district court’s ruling on a motion for a new

trial is for abuse of discretion. Doe ex rel. Rudy-Glanzer v.

Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000). Review of its

rulings limiting the scope of discovery are for “a clear abuse

of discretion.” Blackburn v. United States, 100 F.3d 1426,

1436 (9th Cir. 1996).

DISCUSSION

I. Plaintiffs’ Facial Challenge to the Restrictions 

Plaintiffs contend that LASH III is irreconcilable with the

Supreme Court’s subsequent decision in Velazquez III; thus,

that we must reconsider the facial constitutionality of the

Restrictions under the rubric set forth in Velazquez III. See

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

15504 LEGAL AID v. LEGAL SERVICES CORP.
banc) (explaining that a three-judge panel of this court is not

bound by circuit precedent where the subsequent decision of

a higher court “undercut[s] the theory or reasoning underlying

the prior circuit precedent in such a way that the cases are

clearly irreconcilable”). Upon careful review of Justice Kennedy’s opinion for the majority in Velazquez III, we agree

with the district court that LASH III continues to control. 

In striking down the suits-for-benefits exception, the Velazquez III court distinguished Rust, explaining that “viewpointbased funding decisions can be sustained in instances . . . in

which the government ‘use[s] private speakers to transmit

specific information pertaining to its own program.’ ” 531

U.S. at 541 (quoting Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819, 833 (1995)). Where it endeavors

to fund certain modes of private expression, however, “Congress’ antecedent funding decision cannot be aimed at the

suppression of ideas thought inimical to the Government’s

own interest.” Id. at 548-49. Because LSC’s grant program

subsidized private expression through the medium of free

legal services, the Court concluded that Rust was not controlling. Justice Kennedy also observed that the suits-for-benefits

exception “distorts the legal system by altering the traditional

role of the attorneys,” id. at 544, thereby “prohibit[ing] speech

and expression upon which courts must depend for the proper

exercise of the judicial power,” id. at 545. 

According to Plaintiffs, Velazquez III announced a new

First Amendment doctrine applicable in unconstitutional conditions cases — in essence a “distortion test” — eroding the

foundation on which LASH III rested. They contend that in

Velazquez III, as in this case, Congress chose to subsidize private expression through a particular medium, and then distorted the functioning of that medium by restricting the

procedural tools and legal strategies that grantee attorneys

were permitted to utilize in the course of their advocacy.

Plaintiffs argue, for example, that LASO attorneys’ inability

to seek statutory attorneys’ fees deprives them (and their cliLEGAL AID v. LEGAL SERVICES CORP. 15505
ents) of a potent tool for inducing settlement, thereby altering

the normal functioning of the legal system. Under Velazquez

III, Plaintiffs contend, this sort of distortion violates the First

Amendment. 

Defendant and Intervenor, for their part, contend that Plaintiffs read Velazquez III far too broadly. See, e.g., Intervenor’s

Reply Br. at 23 (contending that “Velazquez III merely stands

for the unremarkable proposition that the government may not

impose viewpoint-based restrictions where it seeks to fund

private speech”). Because the Restrictions do not discriminate

against a particular viewpoint, they argue, Velazquez III is

inapposite, and Justice Kennedy’s discussion of the suits-forbenefits exception’s distortionary effects does not disturb the

holding in LASH III. 

[1] We agree with the district court that Plaintiffs’ distortion theory relies on a mistaken reading of Velazquez III. The

Velazquez III Court analyzed the grantee plaintiffs’ unconstitutional conditions claim through the lens of the Court’s limited public forum cases.7

See 531 U.S. at 544 (“As this suit

involves a subsidy, [the Court’s] limited forum cases . . . may

not be controlling in a strict sense, yet they do provide some

instruction.”); see also Mezibov v. Allen, 411 F.3d 712, 720

(6th Cir. 2005) (stating that “Velazquez [III] involved . . . a

government funding program that the Court deemed a limited

7A “limited public forum” is “a nonpublic forum that the government

intentionally has opened to certain groups or for the discussion of certain

topics.” Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d

891, 908 (9th Cir.), cert. denied, 128 S. Ct. 143 (2007). As the Supreme

Court has noted, limited public fora can exist “more in a metaphysical

than in a spatial or geographic sense.” Rosenberger, 515 U.S. at 830.

Examples of such fora include a school mail system, see Perry Educ.

Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46-47 (1983), a charitable contribution program, see Cornelius v. NAACP Legal Defense &

Educ. Fund, Inc., 473 U.S. 788, 801 (1985), and a university program for

subsidizing and distributing student publications, see Rosenberger, 515

U.S. at 830. 

15506 LEGAL AID v. LEGAL SERVICES CORP.
public forum for First Amendment purposes”); Marijuana

Policy Project v. United States, 304 F.3d 82, 87 (D.C. Cir.

2002) (stating that Velazquez III “rests on limited public

forum doctrine”). In a limited public forum, the Court has

held, the government may not “regulat[e] speech when the

specific motivating ideology or the opinion or perspective of

the speaker is the rationale for the restriction.” Rosenberger,

515 U.S. at 829. Content discrimination, however, is permissible in a limited public forum so long as it is “ ‘reasonable

in light of the [forum’s] purpose.’ ” See id. at 829-30 (quoting

Cornelius, 473 U.S. at 806). 

[2] Because LSC’s grant program operates much like a limited public forum, the Velazquez III court explained, it is subject to the First Amendment principles that govern such

forums. See 531 U.S. at 544. Accordingly, the Court held that

restrictions on the activities of LSC grantees may not target

a particular viewpoint or motivating ideology, and they “cannot be aimed at the suppression of ideas thought inimical to

the Government’s own interest.” Id. at 549. 

[3] Justice Kennedy’s discussion of how the suits-forbenefits exception “distorts the legal system” is thus ancillary

to the Court’s holding. The reference to distortion is best

understood as underscoring the analytical connection linking

LSC’s grant program to the government properties and programs that the Court has recognized as limited public fora for

the purposes of the First Amendment — not as elaborating a

novel First Amendment doctrine. See id. at 544 (explaining

that “[r]estricting LSC attorneys in advising their clients and

in presenting arguments and analyses to the courts distorts the

legal system by altering the traditional role of the attorneys in

much the same way broadcast systems or student publication

networks were changed” in the Court’s limited public forum

cases (emphasis added)). 

[4] With this understanding of Velazquez III in mind, we

return to the Restrictions. In prohibiting grantees from solicitLEGAL AID v. LEGAL SERVICES CORP. 15507
ing clients, lobbying, seeking attorneys’ fees, and participating in class actions, Congress did not discriminate against any

particular viewpoint or motivating ideology, much less did it

aim to suppress “ideas . . . inimical to the Government’s own

interest.” Id. at 549. The Restrictions simply limit specific

procedural tools and strategies that grantee attorneys may utilize in the course of carrying out their legal advocacy. As

such, they are permissible under Velazquez III.8

[5] In sum, we conclude that Velazquez III did not establish

a new First Amendment test that hinges on whether restrictions on a given government subsidy distort an existing

medium of expression. Rather, the Court applied familiar

principles, drawn from the limited public forum doctrine, to

strike down a viewpoint-based restriction on private expression. Because the Restrictions do not discriminate against a

particular viewpoint, they are constitutional under Velazquez

III. LASH III thus remains controlling precedent, and the district court did not err in dismissing Plaintiffs’ facial challenge

to the Restrictions.9

8Plaintiffs do not contend that the Restrictions are “unreasonable” as the

term is used in the Court’s limited public forum cases. Nor do they contend that either the class action, solicitation, or lobbying restrictions discriminate on the basis of viewpoint. They do argue, however, that the

attorneys’ fees restriction is viewpoint-based. Because the restriction does

not forbid legal services lawyers from arguing that an adverse party is not

entitled to fees, they contend, it targets a particular point of view. The

argument is unpersuasive. The attorneys’ fees restriction bars grantee

attorneys from claiming, collecting, or retaining statutory attorneys’ fees.

See 45 C.F.R. § 1642.3. It does not restrict the expression of any particular

idea or point of view. 

9We note that the Second Circuit — the only other circuit to consider

the constitutionality of the Restrictions post-Velazquez III — reached the

same conclusion. See Velazquez V, 462 F.3d at 236 (adopting the district

court’s conclusion in Velazquez IV that the in-person solicitation, class

action, and attorneys’ fees restrictions are reasonable and viewpoint neutral, and therefore permissible under Velazquez III). 

15508 LEGAL AID v. LEGAL SERVICES CORP.
II. As-Applied Challenge

Plaintiffs contend that the PIR, as LSC has interpreted and

applied it, effectively prevents them from expressing protected speech through alternative channels. Because they have

not “demonstrated as a factual matter that the [PIR] has not

left them adequate alternative channels for protected expression,” Velazquez V, 462 F.3d at 231, the district court properly

entered summary judgment in favor of LSC. We first address

LASO and its clients’ as-applied claims, and then turn to the

individual LASO attorneys’ claims.10

A. LASO and its Clients

[6] In LASH III we held that, as a facial matter, the PIR

provides LSC grantees (and their employees and clients) with

adequate alternative channels for engaging in restricted

speech. We acknowledged, however, that a grantee could

challenge subsequent applications of the PIR in a separate

action. See LASH III, 145 F.3d at 1024 (noting that “even if

[the LASH plaintiffs] presented a factual situation that suggested the restrictions were unconstitutional in only limited

circumstances . . . [the court] would not strike down the

restrictions as unconstitutional” in the context of a facial challenge). 

[7] An as-applied First Amendment challenge contends that

a given statute or regulation is unconstitutional as it has been

applied to a litigant’s particular speech activity. See Members

of City Council of City of L.A. v. Taxpayers for Vincent, 466

U.S. 789, 802-03 (1984). The underlying constitutional standard, however, is no different then in a facial challenge. See

10Plaintiffs do not explain how LSC’s application of the PIR violated

the free speech rights of LASO’s private donors, nor do they address how

OLC, an unrestricted LASO affiliate not subject to the PIR, could suffer

an as-applied First Amendment violation. Accordingly, we do not address

those claims. 

LEGAL AID v. LEGAL SERVICES CORP. 15509
Velazquez V, 462 F.3d at 228 (“Facial and as-applied challenges differ in the extent to which the invalidity of a statute

need be demonstrated . . . [i]nvariant, however, is the substantive rule of law to be used.”). Accordingly, we apply the constitutional standard set forth in LASH III, namely, whether

LSC’s enforcement of the PIR has effectively cut off alternative channels through which Plaintiffs can express restricted

speech. See LASH III, 145 F.3d at 1025. 

[8] Between 1996 and 2005, LASO and OLC coordinated

their efforts to deliver legal services to indigent clients, but

maintained legal, physical, and financial separation from each

other. During that period, LSC did not assert or imply that

LASO’s affiliation with OLC violated the PIR. LSC’s rejection of the Proposal in 2005 — the only concrete application

of the PIR in the record before us — is thus the focal point

of our analysis. 

LSC determines whether a grantee is sufficiently independent from a non-restricted affiliate on a case-by-case basis,

taking into consideration the totality of the circumstances. 45

C.F.R. § 1610.8(a)(3). “Mere bookkeeping separation of LSC

funds from other funds is not sufficient.” Id. Other factors,

such as having separate personnel, separate accounting and

timekeeping records, separate facilities, and distinguishing

forms of identification are relevant but not dispositive. Id. All

grantees must annually certify to LSC that their program complies with the PIR, 45 C.F.R. § 1610.8(b), and a grantee

uncertain about whether its relationship with a restricted affiliate satisfies the PIR may “submit [to LSC] all the relevant

‘program integrity’ information and request a review by

[LSC] of any existing or contemplated relationship with an

organization that engages in restricted activities,” 62 Fed.

Reg. 27,695, 27,698.

[9] Plaintiffs do not dispute that by eschewing formal legal

separation, the Proposal violated the PIR on its face. Although

LSC generally applies a case-by-case, totality-of-the15510 LEGAL AID v. LEGAL SERVICES CORP.
circumstances approach to PIR enforcement, it informs grantees that they “may transfer non-LSC funds to another organization which engages in restricted activity if, and only if, the

other organization is a legally separate entity.” LSC Instructions for Certification of Program Integrity at 1. We upheld

the validity of the PIR’s legal separation requirement in LASH

III, and thus, LSC’s rejection of the Proposal on that basis

cannot itself establish an as-applied First Amendment violation. 145 F.3d at 1027 (“[W]e do not find it significant that

the LSC regulations require that [an] unrestricted [affiliate]

organization be a ‘legally separate entity.’ ” (quoting 45

C.F.R. § 1610.8(a)(1))). 

Plaintiffs contend that they cannot risk testing the PIR’s

limits, because doing so could lead to immediate termination

of federal funding they depend on for basic operations. Plaintiffs’ professed fear is not sufficient to establish an as-applied

violation of their First Amendment rights. First, we note that

Congress has provided that LSC grant funding “shall not be

suspended unless the grantee, contractor, or person or entity

receiving financial assistance . . . has been given reasonable

notice and opportunity to show cause why such action should

not be taken,” 42 U.S.C. § 2996j(1), and that grantees are

entitled to a pre-deprivation hearing before “an independent

hearing examiner,” id. § 2996j(2). Thus, Plaintiffs’ concerns

about immediate termination of funding without prior notice

appear to be unwarranted. 

Further, Plaintiffs have not explained why the prospect of

funding termination prevents them from submitting an

amended configuration proposal (one that, at the very least,

conforms to the PIR’s legal and physical separation requirements) to LSC. LSC officials testified that they engage in an

iterative process with grantees to ensure PIR compliance, and

Plaintiffs have offered no evidence suggesting that this characterization of LSC’s general approach is inaccurate. While

submitting an amended proposal (or proposals) may impose

some level of practical burden on LASO and its staff, LASH

LEGAL AID v. LEGAL SERVICES CORP. 15511
III makes clear that a grantee must show more than a burden

on the exercise of protected speech to establish an as-applied

First Amendment violation — the grantee must show that

workable alternative channels do not exist. 

Plaintiffs point to enforcement actions that LSC has taken

against other grantees to bolster their as-applied challenge.

They contend that a “prudent” grantee will pay close attention

to PIR compliance audits and investigative reports that LSC

periodically conducts and makes available to the public, and

entered several audits and reports of this kind into the record.

The district court disregarded the evidence of LSC’s application of the PIR to grantees other than LASO, concluding that

it was not relevant in the context of an as-applied First

Amendment challenge. 

We have held that “[a]n as-applied [First Amendment]

challenge does not implicate the enforcement of the [challenged] law against third parties.” Foti v. City of Menlo Park,

146 F.3d 629, 635 (9th Cir. 1998). That general principle

clearly applies here. That a grantee may glean insight into

LSC’s enforcement policies by examining publically available

audits and LSC Inspector General reports is not controversial.

Plaintiffs, however, go a step further. They contend that LSC

audits of other, unrelated grantees are tantamount to actual

enforcement actions against LASO, its staff attorneys, and its

clients. Accepting this premise would require the court to

assume that LSC would treat LASO in the same manner that

it has treated other grantees — despite the myriad practical

differences among grantees and LSC’s “totality-of-thecircumstances” approach to determining PIR compliance —

and then speculate about whether that treatment would violate

the First Amendment. Such an approach is inconsistent with

the limited scope of an as-applied constitutional challenge. 

[10] In sum, the record reflects that LSC employs a flexible, fact-intensive process for determining whether a grantee

maintains objective integrity and independence. LASO has

15512 LEGAL AID v. LEGAL SERVICES CORP.
not been subjected to an LSC audit, nor, according to the

record, has it been threatened with an audit, despite its close

affiliation with OLC. LSC’s rejection of the Proposal, standing alone, is not sufficient to establish an as-applied First

Amendment violation, and Plaintiffs have not identified any

other concrete application of the PIR that has had the effect

of prohibiting LASO, or the clients the organization serves,

from expressing restricted speech through alternative channels.

B. LASO Attorneys

The individual LASO attorneys’ separately contend that

they are entitled to summary judgment on their as-applied

challenge to the PIR. 

Their argument runs as follows: LSC, in an official guidance document and in audits of other grantees, has stated that

if more than ten percent of a larger grantee’s attorneys work

part-time for a particular unrestricted affiliate, the grantee is

likely not in compliance with the PIR. Therefore, at least

some LASO attorneys that wish to do so (they offer affidavits

from individual LASO attorneys suggesting that more than

ten percent of LASO’s attorneys do in fact wish to work for

OLC part-time), are effectively barred from exercising protected speech rights. The district court denied the attorneys’

motion for partial summary judgment, concluding that they

had failed to show any specific instance where LSC had

denied an individual LASO attorney’s request to work parttime (or on his or her own time) for an unrestricted organization.11

[11] We agree that the individual LASO attorneys have

failed to show that LSC’s enforcement of the PIR effectively

cuts off alternative channels for engaging in protected speech.

11An attorney working full-time for an LSC grantee may only engage

in the outside practice of law under limited circumstances. See 45 C.F.R.

§ 1604.4. 

LEGAL AID v. LEGAL SERVICES CORP. 15513
A 1997 LSC Guidance Memorandum states the following:

There is no per se bar against a recipient employing

part-time staff who are also employed part-time by

an organization which engages in restricted activity.

Generally speaking, however, the more staff

“shared,” or the greater the responsibilities of the

staff who are employed by both organizations, the

more danger that program integrity will be compromised. Sharing an executive director, for example,

inappropriately tends to blur the organizational lines

between the entities. Likewise, sharing a substantial

number or proportion of recipient staff calls the

recipient’s separateness into question. 

In a footnote, the memo explains that “[f]or larger organizations, 10% of the recipients’s attorney/paralegal staff should

serve as a guide. However, for recipients with smaller staffs,

the program director should use his or her best judgment to

determine whether part-time staff constitute a substantial proportion of the recipient’s legal workforce.”

The above statements outline LSC’s general methodology

for determining whether a grantee and an unrestricted affiliate

are sufficiently separate. The rough “10 percent rule” that the

LASO attorneys rely on does not suggest that only 10 percent

of LASO’s staff may engage in restricted activity part-time,

or on their own time, but rather that, under normal circumstances, no more than 10 percent of LASO’s legal staff may

work part-time at the same unrestricted organization. That

the PIR prevents at least some LASO attorneys from working

part-time for OLC does not establish that it effectively cuts

off alternative channels for engaging in protected speech. As

we recognized in LASH III, LASO attorneys are free to pursue

a variety of alternative avenues for expressing restricted

speech, including working full-time for an unrestricted organization, or alternatively, continuing to work for an LSC

15514 LEGAL AID v. LEGAL SERVICES CORP.
grantee organization and engaging in restricted activities on

their own time. See LASH III, 145 F.3d at 1029. 

[12] The district court thus did not err in denying the individual LASO attorneys’ motion for partial summary judgment. 

III. Motion for New Trial and Related Discovery Issues

[13] Plaintiffs contend that the district court abused its discretion in denying their motion for a new trial and their

motions to compel the production of documents relating to

LSC’s enforcement of the Restrictions. We disagree. 

The basic premise underlying both Plaintiffs’ motion for a

new trial and their motions to compel discovery — that the

Restrictions and the PIR can be challenged in separate asapplied claims — is flawed. As we have explained, under

LASH III, the Restrictions are constitutional so long as LSC’s

enforcement of the PIR provides grantees with alternative

channels through which they can direct restricted speech.

Velazquez III did not disturb the holding in LASH III; thus, the

district court properly focused the litigation below on the

manner in which LSC has interpreted and applied the PIR.

CONCLUSION

For the reasons set forth above, the judgment of the district

court is

AFFIRMED.

PREGERSON, Circuit Judge, partial dissent:

In 1974, Congress established the not-for-profit Legal Services Corporation (“LSC”) for the purpose of distributing

LEGAL AID v. LEGAL SERVICES CORP. 15515
grants to enable qualifying legal service organizations to provide free legal assistance to the poor in non-criminal proceedings. 42 U.S.C. §§ 2996-2996l. In the years since, Congress

has attached a number of restrictions to the ways in which

recipients of LSC grants can provide legal services. See, e.g.,

§ 2996f(b). In 1996, Congress attached another set of restrictions to the LSC grants. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134,

§ 504, 110 Stat. 1321, 1321-53-56 (1996) (the “1996 Act”),

reenacted in the Omnibus Consolidated Rescissions and

Appropriations Act of 1997, Pub. L. 104-208, § 502, 110 Stat.

3009 (1997). 

In this case, Plaintiffs mounted a facial challenge to four of

the 1996 LSC Restrictions. Specifically, Plaintiffs challenged

the LSC Restrictions on: (1) “attempt[s] to influence” legislation and/or administrative rule-making processes; (2) initiation of, and participation in, class action lawsuits; (3)

claiming, collecting or retaining attorneys’ fees available

under any federal or state law; and (4) soliciting clients. Plaintiffs argued that these four Restrictions violate their First

Amendment rights to free speech and association because the

Restrictions distort Plaintiffs’ ability to provide legal services

to their clients. 

The district court rejected Plaintiffs’ distortion argument. In

so doing, the district court erred. First, determining whether

the four Restrictions distort legal services attorneys’ ability to

effectively represent their clients is key to determining

whether the Restrictions are unreasonable in light of the purpose of the LSC grants, and, thus, violate the First Amendment. Second, the four Restrictions do distort the legal system

by imposing serious and fundamental limits on legal services

providers’ ability to effectively represent their clients such

that the Restrictions are unreasonable in light of the purpose

of the LSC grants. 

15516 LEGAL AID v. LEGAL SERVICES CORP.
I. Distortion Renders the Restrictions Unreasonable

A. Velazquez III

In Velazaquez III, the Supreme Court held that the LSC

“suits-for-benefits” restriction, which prohibited legal services

attorneys from challenging existing welfare laws, was unconstitutional. Legal Servs. Corp. v. Velazquez (Velazquez III),

531 U.S. 533, 536 (2001). As the majority in this case

observes, in Velazquez III, the Supreme Court “did not establish a new First Amendment test,” but rather analyzed the

suits-for-benefits restriction “through the lens of the Court’s

limited public forum cases.” See Majority Opinion at

15505-07. Under the limited public forum analysis, a restriction on speech must be “reasonable in light of the purpose

served by the forum” and cannot “discriminate against speech

on the basis of its viewpoint.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) (internal

quotation marks omitted). Thus, whether a LSC restriction

violates the First Amendment depends on whether the restriction is (1) reasonable in light of the purpose of the LSC grants

(to provide free legal services to the poor), and (2) viewpoint

neutral. 

Applying the limited public forum analysis, the Velazquez

III Court held that the suits-for-benefits restriction was unconstitutional. Id. at 548. The reasons identified by the Court for

reaching this conclusion included the Court’s determinations

that (1) the suits-for-benefits restriction “distorts the legal system by altering the traditional role of the attorneys . . . . ,” and

that (2) Congress may not subsidize legal services in a way

that seriously and fundamentally restricting the advocacy of

attorneys. Id. at 544.

The majority contends that Velazquez III was decided on

viewpoint discrimination grounds. See Majority Opinion at

15507-08. This reading of Velazquez III is mistaken. Instead,

Velazquez III struck down the suits-for-benefits restriction on

LEGAL AID v. LEGAL SERVICES CORP. 15517
reasonableness grounds. That Velazquez III was decided on

reasonableness grounds is illustrated by two aspects of the

opinion. First, the Velazquez III majority repeatedly discussed

the suits-for-benefits restriction in the context of the purpose

of the LSC grants.1 This is significant because analysis of the

LSC grants’ purpose goes to whether a restriction is reasonable, not to whether it discriminates on the basis of viewpoint.

Second, the Velazquez III majority never stated that it was

deciding the case on viewpoint discrimination grounds and

did not dispute the dissent’s contention that the majority did

not challenge whether the suits-for-benefits restriction was

viewpoint neutral. See Velazquez III, 531 U.S. at 549 (Scalia,

J. dissenting) (noting that the majority did not claim the suitsfor-benefits restriction “discriminates on the basis of viewpoint.”). This is significant because if the Velazquez III majority intended to overturn the suits-for-benefits restriction on

viewpoint grounds, one would expect the majority to respond

to the dissent’s assertion to the contrary. 

Thus, the Velazquez III majority’s discussion of how the

suits-for-benefits restriction “distorts the legal system” can

properly be understood to refer to the “reasonableness” of the

restriction in light of the purpose of the LSC grants rather

than whether the restriction was viewpoint neutral. Because

the suits-for-benefits restriction “distort[ed] the legal system

by altering the traditional role of . . . attorneys,” it was unreasonable in light of the purpose of the LSC grants. And,

because the suits-for-benefits restriction was unreasonable in

1

See, e.g., 531 U.S. at 536 (noting the purpose of LSC grants is to fund

legal representation for the indigent in noncriminal matters); Id. at 537

(explaining that the restriction permitted the attorney-grantees to represent

“indigent clients seeking welfare benefits” but, prohibited the attorneygrantees from challenging “existing welfare law”); Id. at 543 (noting that

review of the restriction is informed by whether the restriction is necessary

to the program’s purpose); Id. at 544 (noting that the government seeks to

facilitate suits-for-benefits but distorts the judiciary’s ability to resolve the

claims). 

15518 LEGAL AID v. LEGAL SERVICES CORP.
light of the purpose of the LSC grants, it violated the First

Amendment under the limited public forum analysis.

B. Plaintiffs’ Distortion Arguments Were Not Properly

Considered 

Before the district court, Plaintiffs argued that the four

Restrictions violate the First Amendment because they distort

legal services attorneys’ ability to effectively represent their

clients. Plaintiffs, however, did not frame their distortion

arguments as reasonableness arguments within the limited

public forum analysis. Nonetheless, whether the four Restrictions distort legal services attorneys’ ability to effectively represent their clients is key to determining whether the

Restrictions are unreasonable within the limited public forum

analysis. For this reason, the district court should have considered Plaintiffs’ distortion arguments as part of the reasonableness inquiry. 

The district court, however, did not address the question

whether the four Restrictions distort the process of legal representation such that the Restrictions are unreasonable in light

of the purpose of the LSC grants. Because of this failure, the

district court incorrectly analyzed whether the four Restrictions violate the First Amendment. 

II. The Restrictions Distort Legal Service Attorneys’

Ability to Effectively Represent their Clients

The district court’s failure to properly consider whether the

four Restrictions distort legal services attorneys’ ability to

effectively represent their clients was a critical error because

the Restrictions do distort legal services attorneys’ ability to

effectively represent their clients such that the Restrictions are

unreasonable in light of the purpose of the LSC grants. 

To effectively represent their clients, attorneys may need to

use any number of legal tools. Some of the tools an attorney

LEGAL AID v. LEGAL SERVICES CORP. 15519
may use include: making a phone call, writing a letter, trying

to negotiate a settlement, seeking alternative dispute resolution, filing a lawsuit seeking an injunction, filing a lawsuit

seeking damages, filing a lawsuit challenging the validity of

the underlying law, or seeking to change the underlying law

through lobbying. For example, where a client’s claim has a

particularly small monetary value, an attorney might seek to

combine that client’s claim with similar claims of others

through joinder or through a class action. Similarly, where a

client has a claim under a law that provides attorneys’ fees,

the attorney might give-up all or part of those fees to bring

about an amicable settlement.

Landlord-tenant disputes illustrate how attorneys might

need to use a variety of legal tools to effectively represent a

poor client. Landlord-tenant disputes often involve very small

sums of money, but carry huge quality of life implications. A

poor tenant, for example, who fails to get her landlord to

eliminate a lead paint hazard in an apartment might face the

untenable choice of risking harm to the health of her children

by staying or upending her family’s lives and incurring substantial costs by moving out. Where such a tenant seeks legal

help, she could have a winning legal claim that is nonetheless

not a viable solution to her lead paint problem because the

potential damage award is too small to motivate the landlord

to fix the problem. By combining that tenant’s claim with

other tenants’ similar claims or with an attorneys’ fees claim,

however, an attorney could increase the potential cost of losing to an amount large enough to motivate the recalcitrant

landlord to remove the lead paint hazard. But under the Solicitation Restriction and Attorneys’ Fees Restrictions at issue in

this case, legal services attorneys are prohibited from seeking

other clients with the same problem or seeking attorneys’

fees. Consequently, in this hypothetical, were a legal services

attorney to take on the original tenant’s case, that attorney

would not be in a position to effectively represent his client.

Similarly, a client may have a wage and hour claim of such

a small monetary value that even if she were to prevail, a

15520 LEGAL AID v. LEGAL SERVICES CORP.
large and obstinate employer would not be persuaded to

change the underlying practice—thus subjecting the client to

a high probability of future harm. In such a case, a class

action might be the only way to root out the underlying practice. Alternatively, a client might be suffering an injury that

falls just outside existing wage and hour law. In such a case,

lobbying to change the underlying wage and hour law might

be the client’s only hope of redress. Under the Restrictions,

however, a legal services attorney cannot pursue a class action

or assist a client in lobbying to change an existing law. Consequently, in both these wage and hour hypotheticals, a legal

services attorney would not be able to employ the legal tools

necessary to most effectively represent his client.

This same analysis applies to many of the real life problems

facing the poor. By depriving legal services attorneys of their

ability to pursue class actions, solicit other clients with similar

problems, seek attorneys’ fees, or lobby to change a law, the

four Restrictions at issue often prevent legal services attorneys from employing the legal tools that would most effectively redress a client’s problems. The Restrictions thus

distort the legal system because they seriously and fundamentally limit legal services attorneys’ ability to effectively represent their clients by curtailing the legal tools that legal

services attorneys can employ to advocate on their clients’

behalf. 

III. Conclusion

It is tough for the poor to find good lawyers. The purpose

of LSC grants is to help ameliorate that social problem by

providing funds for legal assistance to people who cannot otherwise pay for a lawyer. Even so, there is still a scarcity of

lawyers serving the poor. Upholding these four Restrictions

severely constrains those dedicated lawyers who choose to

serve the poor by seriously and fundamentally limiting their

ability to effectively represent their clients. The four Restrictions thus distort a legal system designed to “do equal right

LEGAL AID v. LEGAL SERVICES CORP. 15521
to the poor and to the rich” (28 U.S.C. § 453, Oaths of justices

and judges) so that all Americans will be the beneficiaries of

a system of government based on equal justice under the law.

Under the limited public forum analysis, because these four

Restrictions distort legal services attorneys ability to effectively represent their clients, they are thus unreasonable in

light of the purpose of the LSC grants and therefore violate

the First Amendment. For this reason, I would reverse the district court as to Plaintiffs’ facial challenge to the four Restrictions. 

15522 LEGAL AID v. LEGAL SERVICES CORP.