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San Francisco can’t sue DOJ over rescission of disability, national origin discrimination guidance

By Brandi O. Brown, J.D.

A federal district court in California dismissed a lawsuit brought by the City and County of San Francisco alleging that the U.S. Department of Justice violated the Administrative Procedure Act by failing to provide appropriate explanations for its decisions to rescind several guidance documents. The plaintiff lacked standing to challenge any of the rescissions in dispute, which included the “Olmstead Guidance” relating to Title II of the ADA and a set of guidance documents related to employment discrimination on the basis of national origin. However, the court granted the city’s leave to amend (City and County of San Francisco v. Whitaker, December 10, 2018, Tigar, J.).

Trump EO. In early 2017, President Trump issued Executive Order 13777, which instructed executive agencies to identify regulatory actions that were candidates for repeal, modification, or replacement. Later that year, the attorney general issued a memorandum specifically aimed at DOJ guidance documents that “effectively bind parties without undergoing the rulemaking process,” and instructed the agency to identify existing guidance documents that should be modified, repealed, or replaced. In December 2017, DOJ announced that it was rescinding 25 guidance documents.

Anti-discrimination guidance rescinded. Included among the rescinded documents were the “Olmstead Guidance,” which provided guidance to local and state governments on implementing the mandate of Title II of the ADA to provide integrated workplace settings to employees with disabilities. Another set of rescinded guidance documents were related to provisions of the Immigration and Nationality Act that prohibited employment discrimination on the basis of national origin and, in certain circumstances, citizenship status. Other documents were related to immigration and employment, including the agency’s interpretation of “protected individuals,” employer documentation audits, and refugees and asylees’ right to work. Some of the other identified documents related to the Fair Housing Act and the criminal justice system.

Standing? The city sued and the defendants moved to dismiss for lack of jurisdiction, arguing that on the face of the complaint the city lacked standing. Article III standing requires that the plaintiff must have suffered an injury in fact that is fairly traceable to the defendant’s challenged conduct and that is likely to be redressed by a favorable judicial decision, the court noted. To show an injury in fact, the city would have to show that it suffered from either a “concrete and particularized” or “actual or imminent, not conjectural or hypothetical” invasion of its legally protected interest. Standing, moreover, must be established for each claim and for each form of relief.

The court assumed, without actually deciding, that the city’s claims would be “subject to the less rigorous standing inquiry that applies when a plaintiff alleges a procedural violation,” and jumped straight into the analysis. There were at least two cases indirectly supporting the city’s position that the DOJ’s rescission of the guidance documents violated the APA, and the DOJ’s arguments to the contrary were unpersuasive. The court also rejected the city’s assertion that it was entitled to special solicitude as a municipality for purposes of the standing inquiry. And it concluded that an independent analysis of organizational standing would be duplicative. Finally, the court rejected as unavailing the city’s contention that regulatory uncertainty was a basis for standing.

“Hypothetical misstep” insufficient. Even under the more lenient procedural standing approach, the court held the city lacked standing. With regards to the Olmstead Guidance, the city failed to identify any of its own laws or regulations that were at risk of conflicting with the ADA in the wake of its rescission. Although the city argued that rescission would undercut its ability to comply and ensure compliance with the ADA, its efforts to comply with that law were simply a “fulfillment of its obligations as a regulated entity” and “not an exercise of its proprietary interest in regulating its citizens.” Moreover, to establish potential harm, the city had to show a “genuine” risk of prosecution, based on a plan to violate the law, a specific warning or threat by the DOJ, and a history of prior prosecution under the law, but instead it showed something “quite the opposite.” It alleged that it “fully intends to comply with the law, and it counts such compliance among its core missions.” The “hypothetical future misstep” that it contended would violate the law “without the benefit of ‘safe harbors’ provided by the guidance documents” could not provide the foundation for a pre-enforcement challenge.

INA guidance documents. As for the INA documents (two letters and a refugee employment flyer), the city argued their rescission would make it more difficult and expensive to process I-9 forms. This, too, was insufficient to confer standing. With regards to two specific documents—the “Baudry Letter” and the “Refugee Employment Flyer,” the DOJ had issued other documents containing the same information. Moreover, the city’s amended complaint failed to allege that rescission of any of the three documents would make I-9 forms more expensive, or explain how it would do so. The impact of the rescissions on such costs was not obvious on the face of the pleadings. The city also failed to adequately allege a reasonable probability of harm to concrete interests based on the possibility of an enforcement action.

Other challenged rescissions. Nor could the city establish concrete harm with regards to the DOJ’s rescission of a 1999 Joint Statement on FHA requirements because a later, substantively identical Joint Statement was still in effect. Finding further that the city lacked Article III standing on the remaining claims, the court dismissed the complaint, but granted leave to amend after concluding that amendment would not necessarily be futile.