Reading Housing Authority v. United States Department of Housing And Urban Development

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.February 27, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA READING HOUSING AUTHORITY, Plaintiff, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. 5:16-cv-06441-JFL DEFENDANT’S MOTION TO DISMISS Defendant United States Department of Housing and Urban Development, by and through undersigned counsel, respectfully moves to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. As explained in the accompanying memorandum of law, Defendant’s letters determining that Plaintiff had failed to comply with Title VI of the Civil Rights Act of 1964 did not treat a 2007 HUD Guidance document as though it were a legislative rule, and even if the letters had done so, the error would have been harmless because the 2007 Guidance document was promulgated pursuant to notice and comment procedures. A proposed order is attached. Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 1 of 18 ii Dated: February 27, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General LOUIS D. LAPPEN Acting United States Attorney LESLEY R. FARBY Assistant Branch Director /s/ Steven A. Myers STEVEN A. MYERS (N.Y. Bar No. 4823043) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, Room 7334 Washington, DC 20001 Tel: (202) 305-8648 Fax: (202) 616-8460 E-mail: steven.a.myers@usdoj.gov Attorneys for Defendant Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 2 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA READING HOUSING AUTHORITY, Plaintiff, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. 5:16-cv-06441-JFL DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 3 of 18 i TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................................... ii INTRODUCTION......................................................................................................................... 1 STATEMENT OF THE FACTS ................................................................................................. 1 I. STATUTORY AND REGULATORY BACKGROUND .............................................. 1 II. PROCEDURAL BACKGROUND .................................................................................. 2 STANDARD OF REVIEW .......................................................................................................... 3 STATEMENT OF THE QUESTIONS INVOLVED................................................................. 3 SUMMARY OF THE ARGUMENT .......................................................................................... 4 ARGUMENT ................................................................................................................................. 5 I. This Case Should Be Dismissed Because HUD’s Two Letters of Finding of Noncompliance Do Not Treat The 2007 Guidance As a Legislative Rule. .................. 5 II. This Case Should Be Dismissed Because Even If HUD Treated The 2007 Guidance As a Legislative Rule, the Error Would Have Been Harmless As the Guidance Was Promulgated Pursuant to Notice and Comment. ................................. 8 III. The Court Should Strike Plaintiff’s Jury Demand. ....................................................... 9 CONCLUSION ........................................................................................................................... 10 Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 4 of 18 ii TABLE OF AUTHORITIES Cases Am. Farm Bureau Fed’n v. U.S. E.P.A., 984 F. Supp. 2d 289 (M.D. Pa. 2013) ......................................................................................... 9 Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993) .................................................................................................. 6 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................... 3 Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980) .................................................................................................... 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................... 3 Chao v. Rothermel, 327 F.3d 223 (3d Cir. 2003)........................................................................................................ 7 Ctr. For Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798 (D.C. Cir. 2006) .................................................................................................... 7 Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) ...................................................................................................... 7 Kaempe v. Myers, 367 F.3d 958 (D.C. Cir. 2004) .................................................................................................... 7 Lau v. Nichols, 414 U.S. 563 (1974) .................................................................................................................... 1 Lehman v. Nakshian, 453 U.S. 156 (1981) .................................................................................................................. 10 Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015) ............................................................................................................ 4, 8 SBC Inc. v. FCC, 414 F.3d 486 (3d Cir. 2005)........................................................................................................ 4 Shalala v. Guernsey Memorial Hospital, 514 U.S. 87 (1995) ...................................................................................................................... 4 Shinseki v. Sanders, 556 U.S. 396 (2009) .................................................................................................................... 8 Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 5 of 18 iii United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013)........................................................................................................ 8 Statutes 5 U.S.C. § 553 ............................................................................................................................. 4, 8 5 U.S.C. § 706 ....................................................................................................................... 4, 8, 10 42 U.S.C. § 2000d ........................................................................................................................... 1 42 U.S.C. § 2000d-1 ....................................................................................................................... 1 U.S. Const. amend. VII ................................................................................................................. 10 Rules Fed. R. Civ. P. 12(b)(6)................................................................................................................... 3 Regulations 65 Fed. Reg. 50,121 (Aug. 11, 2000).............................................................................................. 2 65 Fed. Reg. 50,123 (Aug. 16, 2000).............................................................................................. 2 68 Fed. Reg. 70,968 (Dec. 19, 2003) ...................................................................................... 2, 5, 9 72 Fed. Reg. 2732 (Jan. 22, 2007) .......................................................................................... 2, 5, 9 Other Authorities Wright & Miller, Federal Practice & Procedure § 1327 (3d ed. 2016) ................................................................... 7 Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 6 of 18 1 INTRODUCTION Plaintiff Reading Housing Authority has sued the United States Department of Housing and Urban Development (“HUD”), challenging two letters stating that Plaintiff had failed to provide meaningful language access services to persons with limited English proficiency (“LEP”), in violation of Title VI of the Civil Rights Act of 1964. Plaintiff does not challenge any of the factual or legal conclusions reached by the letters. Instead, Plaintiff advances the single, narrow claim that when HUD issued these two letters, it wrongly treated a 2007 HUD Guidance document as a legislative rule, instead of the interpretive rule that it was intended to be. That claim fails for at least two independent reasons, such that this case should be dismissed for failure to state a claim: HUD did not treat the 2007 Guidance document as a legislative rule, and even if had done so the error would have been harmless because the 2007 Guidance document was issued following notice and comment procedures.1 STATEMENT OF THE FACTS I. STATUTORY AND REGULATORY BACKGROUND Title VI of the Civil Rights Act of 1964 prohibits discrimination based on “race, color, or national origin” in any “program or activity receiving Federal financial assistance.” See 42 U.S.C. § 2000d. The Supreme Court has held that failure to provide meaningful access to persons with limited English proficiency constitutes national origin discrimination in violation of Title VI. See Lau v. Nichols, 414 U.S. 563 (1974). Title VI directs each federal grant agency to implement these principles of non-discrimination by issuing rules, regulations or orders, 42 U.S.C. § 2000d-1, and HUD’s regulations under Title VI appear at 24 C.F.R. part 1. 1 Should the Court nevertheless permit any part of this case to go forward, it should strike Plaintiff’s jury demand, as neither the Seventh Amendment nor the APA creates a right to trial by jury in these circumstances. See infra Argument Part III. Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 7 of 18 2 On August 11, 2000, the President issued Executive Order 13,166. That order directs federal agencies to develop, after consultation with appropriate program and activity stakeholders, guidance ensuring that persons with limited English proficiency (“LEP”) receive meaningful access to federally-funded services. See Exec. Order No. 13,166, 65 Fed. Reg. 50,121 (Aug. 11, 2000).2 To fulfill its obligations under the Executive Order, HUD first issued a proposed guidance document on December 19, 2003. See 68 Fed. Reg. 70,968 (Dec. 19, 2003). HUD solicited public comments concerning its proposal; the public comment period closed on January 20, 2004, but on that date the comment period was extended to February 5, 2004. The final Guidance was published on January 22, 2007. See 72 Fed. Reg. 2732 (Jan. 22, 2007). The introduction to the HUD Guidance provides that it “clarifies existing legal requirements for LEP persons by describing the factors recipients should consider in fulfilling their responsibilities to LEP persons. The policy guidance is not a regulation, but rather a guide.” 72 Fed. Reg. at 2738. II. PROCEDURAL BACKGROUND This case arises from two complaints filed with HUD alleging that Plaintiff failed to provide adequate services to LEP persons: one filed by Celia Matos, on October 17, 2013; and one filed by Rebeca Segura, on February 24, 2014. See Compl. ¶ 8. HUD’s Region III investigated both complaints. Id. ¶ 9. The regional office resolved both investigations with letters dated July 8, 2015. See Compl. ¶ 9; id. Ex. A (“Matos Letter”); id. Ex. B (“Segura Letter”). Those letters each indicated 2 To assist federal agencies in developing LEP guidance, the Executive Order incorporated by reference contemporaneously-issued Department of Justice General Policy Guidance and instructed each agency to issue LEP guidance consistent with that policy directive. See id. at 50,121. The Department of Justice General Policy Guidance stated that it was intended to clarify pre-existing Title VI responsibilities, not to create new obligations beyond those already established by the statute or prior implementing regulations. Policy Guidance, 65 Fed. Reg. 50,123 (Aug. 16, 2000). Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 8 of 18 3 that Plaintiff “is in noncompliance with Title VI and key provisions of its implementing regulations, including 24 C.F.R. §§ l.4(a), 1.4(b)(l)(ii), l.4(b)(l)(iv), 1.4(b)(l)(vi), l.4(b)(2)(i), and l.4(b)(6)(ii).” Matos Letter at 11; Segura Letter at 11-12. HUD also initiated negotiations with respect to the underlying Title VI violations in an attempt to resolve the matter. On December 14, 2016, Plaintiff filed this action under the Administrative Procedure Act. Plaintiff seeks a judicial declaration providing, in relevant part, that “Defendant HUD violated the APA when it enforced the HUD Guidance on Plaintiff RHA as a substantive rule although the HUD Guidance did not follow the rulemaking process.” Compl. ¶¶ 39, 43, 46. STANDARD OF REVIEW Under Rule 12(b)(6), a plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” is insufficient to state a claim. Id. (quoting Twombly, 550 U.S. at 555). STATEMENT OF THE QUESTIONS INVOLVED Defendant’s motion to dismiss raises three questions: (1) whether the case should be dismissed on the grounds that HUD’s two letters of finding of noncompliance do not treat the 2007 Guidance as a legislative rule; (2) whether, if HUD’s two letters of finding of noncompliance did treat the 2007 Guidance as a legislative rule, the error was harmless; and (3) in the alternative, whether the Court should strike Plaintiff’s jury demand. Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 9 of 18 4 SUMMARY OF THE ARGUMENT There are two independent reasons why this case should be dismissed in its entirety. First, Plaintiff’s theory of this case — that HUD treated the 2007 HUD Guidance as though it were a legislative rule — is squarely contradicted by the text of the challenged letters. “Legislative rules are subject to the notice and comment requirements of the APA [Administrative Procedure Act] because they work substantive changes in prior regulations, or create new law, rights, or duties. Interpretive rules, on the other hand, seek only to interpret language already in properly issued regulations.” SBC Inc. v. FCC, 414 F.3d 486, 497-98 (3d Cir. 2005) (citations and internal quotations marks omitted)). The critical feature of interpretive rules is that they are “issued by an agency to advise the public of the agency’s construction of the statute and rules which it administers.” Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015) (quoting Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995)). The letters at issue in this case state that Plaintiff “is in noncompliance with Title VI and key provisions of its implementing regulations, including 24 C.F.R. §§ l.4(a), 1.4(b)(l)(ii), l.4(b)(l)(iv), 1.4(b)(l)(vi), l.4(b)(2)(i), and l.4(b)(6)(ii).” The 2007 Guidance document, in turn, is referenced only to explain the agency’s view of why Plaintiff had failed to comply with those separate substantive requirements. The letters do not state that the 2007 HUD Guidance created any new obligations, nor do they state that Plaintiff is in violation of them; thus, the letters do not treat the 2007 Guidance as a legislative rule. Second, even if the letters had treated the 2007 HUD Guidance as a legislative rule, the error would be harmless. See 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of prejudicial error.”). The APA requires that before an agency promulgates a legislative rule, it must publish notice of the proposed rule in the Federal Register and give the public an opportunity to comment. See generally 5 U.S.C. § 553. Plaintiff contends that HUD “circumvented the APA’s notice and comment rulemaking requirements and enforced HUD Guidance as legally binding,” Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 10 of 18 5 ECF No. 1 (“Compl.”) ¶ 36, but that allegation is utterly baffling in light of the fact that HUD employed the notice and comment procedures laid out in 5 U.S.C. § 553 when issuing the 2007 Guidance: it published proposed guidance in the Federal Register on December 19, 2003, see 68 Fed. Reg. 70,968; it received thousands of public comments; and it eventually issued a final guidance on January 22, 2007, see 72 Fed. Reg. 2732 (Jan. 22, 2007). Where HUD followed all of the procedures that would have been required to issue a legislative rule, Plaintiff cannot contend that it would have been prejudicial error to treat the Guidance as a legislative rule. ARGUMENT I. This Case Should Be Dismissed Because HUD’s Two Letters of Finding of Noncompliance Do Not Treat The 2007 Guidance As a Legislative Rule. Plaintiff’s fundamental claim is that all of HUD’s “findings of noncompliance and violations of Title VI stated in the HUD letters are based on noncompliance with suggestions and recommendations of the HUD Guidance and not on noncompliance with Title VI itself.” Compl. ¶ 18; accord id. ¶ 19 (“By citing primarily to its own HUD-promulgated Guidance and not to laws or regulations, it appears to be HUD’s position that suggestions made in the HUD guidance are mandatory . . . .). Plaintiff claims that because the 2007 HUD Guidance was intended to be an interpretative rule, rather than a legislative rule, this was error. See id. ¶ 29 (contending that it is error to treat “guidance” as mandatory). Plaintiff’s claims are irreconcilable with the text of the letters at issue. Each letter indicates that Plaintiff “failed to take reasonable steps to ensure meaningful access to its public housing programs and activities by LEP persons, in violation of Title VI and HUD’s implementing regulations at 24 C.F.R. § 1.4.” Matos Letter at 1; Segura Letter at 1. In describing the governing legal framework, each letter relies entirely on the statute, regulations, and Supreme Court case law: Title VI mandates that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 11 of 18 6 benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d; 24 C.F.R. § 1.4(a). Discrimination on the ground of national origin includes the following activities, whether performed directly or through contractual or other arrangements: (a) denying a person benefits under the program or activity, 24 C.F.R. § 1.4(b)(l)(i); (b) restricting a person in any way in access to benefits, 24 C.F.R. § 1.4(b)(l)(iv); and (c) denying a person an opportunity afforded to others, 24 C.F.R. § 1.4(b)(l)(vi). Discrimination also includes utilizing criteria or methods of administration which have the effect of subjecting persons to discrimination because of their national origin or substantially impairing accomplishment of the objectives of the program or activity with respect to persons of a particular national origin, 24 C.F.R. § l.4(b)(2)(i), and failing to take affirmative action to overcome the effects of conditions which result in limiting participation by persons of a particular national origin, 24 C.F.R. § l.4(b)(6)(ii). It has long been recognized that failure to ensure that LEP persons have the opportunity to effectively participate in programs or receive their benefits may violat[e] Title VI’s prohibition against national origin discrimination. See, e.g., Lau v. Nichols, 414 U.S. 563 (1974). Matos Letter 2; Segura Letter at 2. In contrast, the letters describe the HUD Guidance as “provid[ing] a description of factors recipients should consider in fulfilling their responsibilities and explain[ing] to recipients that these same criteria will be used for evaluating whether recipients are in compliance with their obligations to take reasonable steps to ensure meaningful access by LEP persons.” Matos Letter at 2; Segura Letter 2. Each letter’s findings of violations similarly focus on the statute and regulations. See Matos Letter at 11 (Plaintiff “is in noncompliance with Title VI and key provisions of its implementing regulations, including 24 C.F.R. §§ l.4(a), 1.4(b)(l)(ii), l.4(b)(l)(iv), 1.4(b)(l)(vi), l.4(b)(2)(i), and l.4(b)(6)(ii)”); see also Matos Letter at 14, 15, 16, 18, 20; Segura Letter at 12, 15, 16, 18, 20. Far from stating legal requirements, the letters describe the HUD Guidance as merely describing what an “effective LAP would generally” include. Matos Letter at 12; Segura Letter at 12. As Plaintiff’s own complaint makes clear, “[a]n interpretive rule describes the agency’s view of the meaning of an existing statute or regulation.” Compl. ¶ 28 (quoting Batterton v. Marshall, 648 F.2d 694, 702 n.34 (D.C. Cir. 1980)). In other words, an interpretive rule “cannot Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 12 of 18 7 be independently legally enforced [because] there must be some external legal basis supporting its implementation.” Iowa League of Cities v. EPA, 711 F.3d 844, 874 (8th Cir. 2013). Here, the two challenged letters refer to the 2007 HUD Guidance solely for the purpose of explaining HUD’s view of the law, but HUD makes clear that the underlying obligations are created by Title VI itself, as well as by HUD’s substantive regulations. Although the 2007 Guidance “supplies crisper and more detailed lines” than the statutory provision and regulations being interpreted, it does not alter the legal obligations of the regulated entities. Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993). It does not have “force of law” independent of Title VI and its implementing regulations, but instead represents “nothing more than a privileged viewpoint in the legal debate.” Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 808 (D.C. Cir. 2006). Because it “does not [itself] shift the rights or interests of the parties,” it is not a legislative rule, even though it may “change the way in which parties present themselves to the agency.” Chao v. Rothermel, 327 F.3d 223, 227 (3d Cir. 2003). Notwithstanding the Complaint’s allegations that HUD treated the 2007 Guidance as a legislative rule, Plaintiff cannot defeat a motion to dismiss by contradicting the very documents that it has placed before the Court. See, e.g., Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004) (court need not “accept as true the complaint’s factual allegations insofar as they contradict exhibits to the complaint”); Wright & Miller, Federal Practice & Procedure § 1327 (3d ed. 2016) (“It appears to be well settled that when a disparity exists between the written instrument annexed to the pleadings and the allegations in the pleadings, the terms of the written instrument will control, particularly when it is the instrument being relied upon by the party who made it an exhibit.”). HUD did not treat the 2007 Guidance as a legislative rule and there is thus no basis for granting relief under the APA. Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 13 of 18 8 II. This Case Should Be Dismissed Because Even If HUD Treated The 2007 Guidance As a Legislative Rule, the Error Would Have Been Harmless As the Guidance Was Promulgated Pursuant to Notice and Comment. Even if the Court were to conclude that HUD’s letters erred in treating the 2007 Guidance as a legislative rule, Plaintiff would still not be entitled to any relief because the error would be harmless. The APA provides that “due account shall be taken of the rule of prejudicial error,” 5 U.S.C. § 706, which means that the Court “must determine whether the agency’s error is harmless.” United States v. Reynolds, 710 F.3d 498, 514 (3d Cir. 2013). The APA thus requires courts ‘to apply the same kind of harmless error rule that courts ordinarily apply in civil cases.’” Id. at 515 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). And because this is a civil matter, “the ‘party seeking reversal normally must explain why the erroneous ruling caused harm.” Id. at 515 (quoting Sanders, 556 U.S. at 410). The APA provides that when promulgating a legislative rule, an agency must publish the proposed rule in the Federal Register and solicit public comments. See 5 U.S.C. § 553. In contrast, “an agency is not required to use notice-and-comment procedures to issue an . . . interpretive rule.” Perez, 135 S. Ct. at 1206; see also 5 U.S.C. 553(b)(3)(A). The heart of Plaintiffs’ claim is that Defendant could not fail to comply with notice and comment when promulgating the 2007 Guidance but then treat the Guidance as though it were a legislative rule that had been promulgated pursuant to notice and comment. See Compl. ¶ 36 (HUD “circumvented the APA’s notice and comment rulemaking requirements and enforced HUD Guidance as legally binding”); id. ¶ 24 (notice and comment requirement is intended “‘(1) to ensure that agency regulations are tested via exposure to diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule.’” (quoting United States v. Reynolds, 710 F.3d 498, 517 (3d Cir. 2013)). Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 14 of 18 9 Plaintiff’s argument fails for the simple reason that even though HUD was not legally obligated to issue the 2007 Guidance pursuant to notice and comment (because it was issuing an interpretive rule), it did so anyway. Specifically, on December 19, 2003, HUD published in the Federal Register proposed guidance summarizing the guidance it intended to issue and stating the legal basis for its guidance, just as 5 U.S.C. § 553 directs. See 68 Fed. Reg. 70,968 (Dec. 19, 2003). HUD solicited public comments concerning its proposal, and the final Policy Guidance, which was published on January 22, 2007, reveals that “HUD received 21 comments . . . from public housing agencies, state housing agencies, private sector housing providers, organizations serving LEP populations, organizations advocating that English be the official U.S. language, and trade associations representing public housing agencies,” as well as “more than 7,000 postcards from concerned citizens who opposed the Guidance.” See 72 Fed. Reg. 2732 (Jan. 22, 2007). The Final Guidance further made clear that it “takes into consideration the public comments received on the December 19, 2003, proposed Guidance.” Id. “[A]dministrative procedures are often lengthy and complex and to vacate an administrative action due to any procedural error would be extreme.” Am. Farm Bureau Fed'n v. U.S. E.P.A., 984 F. Supp. 2d 289, 334–35 (M.D. Pa. 2013), aff’d, 792 F.3d 281 (3d Cir. 2015). Here, HUD followed the precise process that the APA prescribes for the promulgation of legislative rules. Thus, even assuming that HUD treated the Guidance as a legislative rule even though it was intended as an interpretive rule, the error was plainly harmless because HUD complied with the process required for the promulgation of legislative rules when issuing the 2007 guidance. III. The Court Should Strike Plaintiff’s Jury Demand. Finally, at a minimum, the Court should strike Plaintiff’s jury demand. “It has long been settled that the Seventh Amendment right to trial by jury does not apply in actions against the Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 15 of 18 10 Federal Government.” Lehman v. Nakshian, 453 U.S. 156, 160 (1981). The Seventh Amendment preserves the right to jury trial “in suits at common law,” U.S. Const. amend. VII, but there existed no right at common law to assert a claim against a sovereign. Lehman, 453 U.S. at 175. Accordingly, Plaintiff has no constitutional right to a jury trial. The APA similarly does not provide for a right to trial by jury, instead providing that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706 (emphasis added). This language makes clear that the relevant standard of review must be applied by the Court, not by a jury. This condition upon the government’s consent to be sued must be strictly observed. Lehman, 453 U.S. at 161. Accordingly, the Court should strike Plaintiff’s jury demand. CONCLUSION Defendant respectfully requests that the Court grant its motion and dismiss this case with prejudice. Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 16 of 18 11 Dated: February 27, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General LOUIS D. LAPPEN Acting United States Attorney LESLEY R. FARBY Assistant Branch Director /s/ Steven A. Myers STEVEN A. MYERS (N.Y. Bar No. 4823043) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, Room 7334 Washington, DC 20001 Tel: (202) 305-8648 Fax: (202) 616-8460 E-mail: steven.a.myers@usdoj.gov Attorneys for Defendant Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 17 of 18 12 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of February, 2017, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance through the Court’s electronic filing system. /s/ Steven A. Myers Steven A. Myers Case 5:16-cv-06441-JFL Document 2 Filed 02/27/17 Page 18 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA READING HOUSING AUTHORITY, Plaintiff, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. 5:16-cv-06441-JFL ORDER Upon consideration of Defendant’s Motion to Dismiss, IT IS HEREBY ORDERED that the motion is GRANTED, and this case is dismissed with prejudice. DATE: _______________________ _______________________________ HON. JOSEPH F. LEESON, JR. UNITED STATES DISTRICT JUDGE Case 5:16-cv-06441-JFL Document 2-1 Filed 02/27/17 Page 1 of 1