Yelapi v. DeSantis

525 F.Supp.3d 1371

Michael YELAPI, et al., Plaintiffs,

v.Ronald DESANTIS, in his official capacity as Governor of Florida, et al., Defendants.

Case No. 4:20-cv-351-AW-MAF

United States District Court, N.D. Florida, Tallahassee Division.

Signed March 12, 2021

Ian S. Hoffman, John Bradley Swanson, Jr., Arnold & Porter LLP, Washington, DC, Zachary A. Sweebe, Arnold & Porter LLP, New York, NY, Gina Fabiano, Fabiano Legal Group, Lighthouse Point, FL, Leah Wiederhorn, The National Association of the Deaf US Litigation Department, Silver Springs, MD, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiffs Michael Yelapi, Patricia Sanchez, Jaime Mariona, Julia Michalka.

Ann Marie Cintron-Siegel, Disability Rights Florida, Hollywood, FL, Ian S. Hoffman, John Bradley Swanson, Jr., Arnold & Porter LLP, Washington, DC, Leah Wiederhorn, The National Association of the Deaf US Litigation Department, Silver Springs, MD, Zachary A. Sweebe, Arnold & Porter LLP, New York, NY, Gina Fabiano, Fabiano Legal Group, Lighthouse Point, FL, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiff Disability Rights Florida.

Ian S. Hoffman, John Bradley Swanson, Jr., Arnold & Porter LLP, Washington, DC, Zachary A. Sweebe, Arnold & Porter LLP, New York, NY, Gina Fabiano, Fabiano Legal Group, Lighthouse Point, FL, Lauren Brittany Eversole, Disability Rights Florida, Tallahassee, FL, for Plaintiff Carlos Aponte.

Blaine H. Winship, Office of the Attorney General, Nicholas Allen Primrose, Executive Office of the Governor, Tallahassee, FL, Colleen M. Ernst, Office of General Counsel Executive Office of the Governor, for Defendant Ronald Desantis.

Blaine H. Winship, Office of the Attorney General, Nicholas Allen Primrose, Executive Office of the Governor, Tallahassee, FL, for Defendant Executive Office of the Governor.

Miriam Rebekkah Coles, Henry Buchanan Hudson etc., Tallahassee, FL, for Defendants Florida State University Board of Trustees, John Thrasher.

ORDER ON MOTIONS TO DISMISS AND STRIKE

Allen Winsor, United States District Judge Disability Rights Florida (DRF) and several of its deaf¹ constituents sued Governor Ron DeSantis and the Executive Office of the Governor, seeking an injunction requiring an American Sign Language (ASL) interpreter at critical press briefings. ECF No. 1. After they unsuccessfully sought preliminary injunctive relief, they filed their First Amended Complaint. ECF No. 35 (FAC).

The new complaint added a plaintiff (Carlos Aponte) and two defendants (the Florida State University Board of Trustees and FSU President John Thrasher).² It presents claims under Title II of the ADA and § 504 of the Rehabilitation Act (RA), and it seeks declaratory and injunctive relief. More specifically, it seeks an order requiring Defendants to provide and broadcast an in-frame ASL interpreter at the Governor's press briefings related to COVID and hurricanes. Id. at 38-39. This would include a directive that The Florida Channel, which FSU operates, add an ASL interpreter remotely if none is provided locally. Id. at 39-40.

The Governor and FSU moved to dismiss, arguing that the court lacks jurisdiction, that they are immune from suit, and that Plaintiffs have not stated claims under the ADA or RA. ECF Nos. 44, 49. This order denies the motions to dismiss. It also denies Plaintiffs’ motion to strike two declarations attached to the Governor's motion.

I. MOTION TO STRIKE

I will first address Plaintiffs’ motion to strike the Governor's declarations. ECF No. 47. To begin, all seem to agree that the declarations cannot be considered as to the Rule 12(b)(6) challenge, so I will not consider them as to that. And I will also not consider them as to Defendants’ standing arguments.

At this stage, Plaintiffs only must allege facts that would support standing. See Tsao v. Captiva MVP Rest. Partners, LLC , 986 F.3d 1332, 1337 (11th Cir. 2021) ("At the pleading stage, general factual allegations of injury are enough." (marks and citation omitted)); see also Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (noting that a plaintiff's burden to demonstrate standing changes "with the manner and degree of evidence required at the successive stages of the litigation"). As I conclude below, Plaintiffs have sufficiently alleged facts to support standing. Now is not the time to determine if those facts are true.

That leaves the issue of immunity. As discussed below, § 504 of the RA applies only to a "program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a) ; see also McMullen v. Wakulla Cnty. Bd. of Cnty. Comm'rs , 650 F. App'x 703, 705 (11th Cir. 2016) (per curiam). Defendants contend they do not receive federal funds that would make § 504 applicable. ECF No. 44 at 17-20; ECF No. 49 at 5. As support, the Governor attaches a declaration from the EOG's Policy Director, Chris Spencer, which says the Division of Emergency Management (DEM) receives federal funding, but it does not flow through the EOG. ECF No. 44 at 40-41, ¶¶ 3-6.

The Governor relies on the Spencer declaration to disprove Plaintiffs’ allegations that the EOG receives federal funds. Compare id. at 18 with FAC ¶¶ 60, 67, 243. I therefore cannot agree with Plaintiffs’ contention that the Governor presents only a facial challenge. ECF No. 47 at 2-3; cf. Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990) (noting that jurisdictional challenges can be facial or factual and that factual arguments can be resolved with evidence outside the pleadings); see also Carmichael v. Kellogg, Brown & Root Serv. , 572 F.3d 1271, 1279 (11th Cir. 2009). This means the Spencer declaration is properly considered, so Plaintiffs’ motion to strike is denied as to it. As explained below, though, Plaintiffs should have an opportunity for jurisdictional discovery before the federal-funding issue is decided.

The other declaration—submitted at the preliminary injunction stage and resubmitted now—goes only to the Rule 12(b)(6) issues, so it will not be considered. But I decline to strike it.

II. FACTS

The facts come from the complaint. For purposes of the Rule 12(b)(6) challenge and any facial jurisdictional challenge, these facts are accepted as true. Lawrence , 919 F.2d at 1529.

DRF is an advocate for disabled Floridians, including deaf Floridians who rely on ASL. FAC ¶¶ 19, 44-49, 212-14. The Governor routinely holds press conferences about emergencies like hurricanes and COVID-19. Id. ¶¶ 2, 7-8, 10, 24, 74-77, 81-82.

These press conferences sometimes include an ASL interpreter; they sometimes do not. Id. ¶¶ 26, 84, 86, 97-99, 101. Some television networks add closed captioning when they broadcast the press conferences; others do not. Id. ¶ 86.

FSU operates—and the State funds—The Florida Channel, which broadcasts the Governor's briefings. Id. ¶¶ 9, 11, 25-26, 71-72, 78-79, 101-02. Its broadcasts do not always include an ASL interpreter. See id.

Defendants do not control how (or whether) private news networks broadcast and display the Governor's press conferences. See id. ¶¶ 80, 86. This includes whether networks add closed captioning or display an interpreter when one is provided. See id. ¶ 86.

DRF's constituents complain that they cannot understand the Governor's briefings without an ASL interpreter. Id. ¶¶ 89, 103, 215-19. These constituents, including individual Plaintiffs, fear being uninformed about critical information, like COVID-related curfews, business closures, and testing locations. See id. ¶¶ 122-27, 142, 146, 167-68, 170-71, 173, 185-86, 191-94, 211, 219-20.

Closed captioning is not always an effective means of communicating with those who are deaf. See, e.g., id. ¶¶ 109-10, 113, 138, 163-64, 186, 206. This is because fluency in ASL does not necessarily translate into the ability to read and understand English. See id. ¶¶ 13-16, 88. The grammar and vocabulary for ASL are distinct from English, and ASL involves expressive movements not found in written communications. Id. ¶ 13. For example, Aponte, a deaf Tampa resident, "does not read English" and "therefore cannot read closed captioning." Id. ¶¶ 42, 206. His primary language is ASL, and he only communicates with ASL. Id. ¶¶ 18, 43, 207.

Like Aponte, other individual Plaintiffs use ASL as their primary language, and the same is true for many of DRF's deaf constituents. Id. ¶¶ 18-19, 214-15. Without televised ASL interpretation, they cannot understand the Governor's briefings. Id. ¶¶ 11, 29, 217-19. They say an injunction requiring ASL interpretation will fix that. Id. at 38-39.

III. ANALYSIS

Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, § 504 of the RA provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).³

Public entities must "make reasonable modifications" to their practices and procedures when "necessary to avoid discrimination on the basis of disability." 28 C.F.R. § 35.130(b)(7)(i). This includes "tak[ing] appropriate steps to ensure that communications with ... members of the public ... with disabilities are as effective as communications with others. " Id. § 35.160(a)(1) (emphasis added). The "appropriate steps" include "furnish[ing] appropriate auxiliary aids and services where necessary to afford individuals with disabilities ... an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity." Id. § 35.160(b)(1). An ASL interpreter is an appropriate auxiliary aid, but...