Faith Action For Community Equity et al v. State of Hawaii et al

Filing 151

ORDER DENYING SECOND MOTION TO DISMISS re 123 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 2/20/2015. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FAITH ACTION FOR COMMUNITY
EQUITY; TOCHIRO KOCHIRO
KOVAC, individually and on
behalf of a class of persons
in the State of Hawaii who,
because of their national
origins, have limited English
proficiency

)
)
)
)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAII; HAWAII
)
DEPARTMENT OF TRANSPORTATION; )
GLENN OKIMOTO, in his
)
official capacity as the
)
Director of the Hawaii
)
Department of Transport,
)
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Defendants.
)
_____________________________ )

CIVIL NO. 13-00450 SOM/RLP
ORDER DENYING SECOND MOTION
TO DISMISS

ORDER DENYING SECOND MOTION TO DISMISS
I.

INTRODUCTION.
Plaintiffs Faith Action for Community Equity and

Tochiro Kochiro Kovac (collectively, “FACE”) bring this putative
class action against the State of Hawaii, the Hawaii Department
of Transportation (“HDOT”), and its Director.

FACE alleges that

HDOT’s policy of offering the state driver’s examination in
English only is the product of intentional discrimination, and
therefore violates the Fourteenth Amendment’s guarantee of equal
protection and Title VI’s prohibition against national origin
discrimination in federally funded programs.

On April 28, 2014, the court denied a motion to dismiss
challenging FACE’s organizational standing to bring this lawsuit.
See ECF No. 80.

The court ruled that the allegations of the

First Amended Complaint sufficiently alleged that FACE had
suffered an injury-in-fact by diverting its resources to combat
the English-only policy.

In relevant part, FACE had alleged that

it had provided taxi services to take individuals with limited
English to and from meetings and workshops at which FACE’s goals
and plans were discussed and the individuals’ input was received.
See ECF No. 80, PageID # 1420.

In so ruling, the court left open

the possibility of another motion challenging FACE’s
organizational standing after further discovery:
Defendants might, following discovery,
be able to present evidence demonstrating
that these workshops do not require the
participation of individuals affected by the
English-only policy, that the workshops are
not part of FACE’s primary work, or that no
resources have been diverted from other areas
to provide the “taxi-service.” However, at
this stage, the allegations in the Complaint
suffice to preclude dismissal on standing
grounds.
Id.
Presently before this court is a Second Motion to
Dismiss, which raises a factual challenge to FACE’s
organizational standing.

This motion argues that completed

discovery establishes that FACE did not divert any resources to

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provide the taxi service.

The court denies the Second Motion to

Dismiss.
II.

BACKGROUND.
The First Amended Complaint alleges that, between 2001

and 2009, HDOT offered the written portion of the state’s
driver’s license exam in eight languages besides English:
Japanese, Mandarin, Korean, Samoan, Tagalog, Vietnamese, Laotian,
and Tongan.
# 915.

First Amended Complaint ¶ 39, ECF No. 60, PageID

However, in 2009, when a single new question was added to

the exam, HDOT stopped providing translated exams.

Id. ¶ 42,

PageID # 916.
FACE is a “faith-based grassroots non-profit
organization” whose mission is “to engage[] in actions that
challenge[] the systems that perpetuate poverty and injustice.”
Id. ¶¶ 11-12, PageID # 907.

The First Amended Complaint

describes FACE’s work as “conduct[ing] social, economic and
community activities, and provid[ing] leadership development
though meetings and workshops.”

Id. ¶ 12, PageID # 907.

One of

FACE’s “primary areas of advocacy involves addressing and
remedying problems faced by recent immigrants to Hawaii.”
¶ 13, PageID # 908.

Id.

FACE claims that one of the ways “FACE

accomplishes [this] work is through meetings and workshops with
the individual members of its member institutions.”
PageID # 908.

Id. ¶ 12,

FACE also claims that these meetings and workshops

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are used to help “train[] [new immigrants] to advocate for
themselves.”

Id. ¶ 77. PageID # 925.

The First Amended Complaint alleges that FACE spent
“around $4,500 in staff time and resources during the past two
years for what essentially amounts to taxi service for members
[with limited English proficiency] . . . who could not otherwise
attend FACE activities.”

Id. ¶ 81, PageID # 926.

The First

Amended Complaint further alleges that “FACE spends its resources
to get these people to its activities because their absence would
frustrate FACE’s mission and interfere with FACE’s ability to
accomplish its goals.”

Id.

On April 28, 2014, the court issued an order denying a
motion to dismiss that challenged FACE’s organizational standing.
The court ruled that the allegations concerning the taxi service
were sufficient to allege an injury-in-fact for standing
purposes.

See ECF No. 80, PageID # 1420.

Since then, the

parties have conducted discovery, including the deposition of
Kimberly Harman, FACE’s representative for a deposition under
Rule 30(b)(6) of the Federal Rules of Civil Procedure.

See ECF

No. 123-4.
Harman is FACE’s Director of Policy & Development. See
Decl. of Kim Harman ¶ 2, ECF No. 67-1, PageID # 1150.

Harman

testified that FACE deals with many immigrants who have
difficulty speaking and understanding English.

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At FACE meetings,

FACE provides leadership development and training to these people
and teaches them how to advocate for themselves, while the
immigrants help FACE identify issues of importance to them.
¶¶ 4, 7, 8 PageID #s 1151-52.

Id.

Harman says that many of these

people are unable to legally drive because they cannot pass the
English-language driver’s license exam.

Id. ¶ 12, PageID # 1152.

This makes it difficult for these people to get to and
participate in FACE meetings.

Id. ¶ 13, PageID # 1153.

Harman testified that she drove Anna Jakeo, Santiana
Benjamin, and others to multiple meetings.
74, PageID # 1756.

See ECF No. 123-4 at

Other individuals who used the taxi-like

service included women whose first names are Mai and Cashmery.
See id. at 71, ECF No. 133-3, PageID # 2089.

Apparently, Harman

used her own car to drive these individuals to the meetings and
did not seek reimbursement from FACE for gas, upkeep, or
insurance.

See id., ECF No. 123-4 at 83-84, PageID #s 1758-59.

Harman testified that she is a salaried employee who received no
extra compensation for the taxi service she provided.
85, PageID # 1759-60.

Id. at 84-

Harman testified that Veronica Teico also

provided taxi service and was paid her hourly wage while
providing that service.

Id.

Harman did not keep accounting records for the taxi
service.

Id. at 95, PageID # 1765.

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Harman testified that FACE’s 2013 budget did not set
aside money for “the drivers license campaign.”
PageID # 1784.

Id. at 138,

FACE claims to have diverted resources because,

while it had not planned to spend anything in connection with the
driver’s license issue, it ended up paying its salaried and
hourly workers to provide taxi services to individuals with
limited English proficiency who could not drive themselves to
FACE meetings because they could not pass the untranslated
driver’s license test.
III.

See id. at 143, PageID # 1787.

LEGAL STANDARDS.
“Rule 12(b)(1) jurisdictional attacks can be either

facial or factual.”
2000).

White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

“In a facial attack, the challenger asserts that the

allegations contained in a complaint are insufficient on their
face to invoke federal jurisdiction.

By contrast, in a factual

attack, the challenger disputes the truth of the allegations
that, by themselves, would otherwise invoke federal
jurisdiction.”

Safe Air for Everyone v. Meyer, 373 F.3d 1035,

1039 (9th Cir. 2004).
When the challenge is facial, all allegations of
material fact are taken as true and construed in the light most
favorable to the nonmoving party.

Fed'n of African Amer.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

In a facial attack on jurisdiction, the court “confin[es]

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the inquiry to allegations in the complaint.”

Savage v. Glendale

Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036,
1040 n.2 (9th Cir. 2003).
In a factual attack on jurisdiction, however, a court
“may review evidence beyond the complaint without converting the
motion to dismiss into a motion for summary judgment.”

Wood v.

City of San Diego, 678 F.3d 1075, 1083 n.8 (9th Cir. 2012)
(internal quotation omitted).

In such a challenge, “[t]he court

need not presume the truthfulness of the plaintiff's
allegations.”

Id.

“Once the moving party has converted the

motion to dismiss into a factual motion by presenting affidavits
or other evidence properly brought before the court, the party
opposing the motion must furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject matter
jurisdiction.”

Savage, 343 F.3d at 1039 n.2.

The present motion is a factual attack on FACE’s
organizational standing.
IV.

ANALYSIS.
In the Ninth Circuit, “an organization may satisfy the

Article III requirement of injury in fact if it can demonstrate:
(1) frustration of its organizational mission; and (2) diversion
of its resources to combat the particular [] discrimination in
question.”

Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097,

1105 (9th Cir. 2004).

In the court’s previous order, ECF No. 80,

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the court determined that the First Amended Complaint
sufficiently alleged facts demonstrating FACE’s organizational
standing based on FACE’s provision of an “informal taxi service”
to ferry individuals to FACE meetings and workshops.

The court,

however, noted that Defendants might file another motion if
discovery demonstrated “that these workshops do not require the
participation of individuals affected by the English-only policy,
that the workshops are not part of FACE’s primary work, or that
no resources have been diverted from other areas to provide the
‘taxi-service.’”

ECF No. 80, PageID # 1420.

HDOT now seeks dismissal, arguing that FACE never
actually expended funds for the informal taxi service.

HDOT says

FACE did not budget anything for the taxi service, and did not
pay overtime or otherwise reimburse its salaried and hourly
employees who drove their personal cars to transport individuals
to and from FACE meetings and workshops.
The court is not convinced that FACE must expend
earmarked dollars to be said to have diverted resources.

Nor is

the court convinced by HDOT’s assertion that, to have diverted
resources for standing purposes, FACE had to have had its
governing board decide that staff should spend time providing the
informal taxi service, rather than have had an employee act on
her own to institute the informal taxi service to effectuate the
board’s plans.

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The very nature of a diversion of resources
contemplates a change in the organization’s planned use of
resources.

FACE has sufficiently demonstrated that its employees

spent “staff time” providing the informal taxi service, even
assuming FACE’s board did not expressly direct the creation of
the informal taxi service.

This “staff time” is a sufficient

resource for purposes of the organizational standing test,
because the time spent providing the taxi service was time the
employees could have spent working on other FACE projects.
In a different context, the Supreme Court has
recognized that staff time can be considered a resource.
Washington v. Harper, 494 U.S. 210 (1990), involved a challenge
to a policy that allowed a prison to treat a mentally ill
prisoner with antipsychotic drugs against his will and without a
judicial hearing.

The Supreme Court upheld the policy, noting,

“Nor can we ignore the fact that requiring judicial hearings will
divert scarce prison resources, both money and the staff’s time,
from the care and treatment of mentally ill inmates.”

Id. at

232.
In Crawford v. Marion County Election Board, 472 F.3d
949, 951 (7th Cir. 2007), the Seventh Circuit determined that the
Democratic Party had standing to challenge an Indiana law
requiring a voter to have a government-issued photo
identification to vote.

The court reasoned that the Democratic

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Party had to devote resources to getting Democrats to the polls
who would otherwise be discouraged by the new law from voting.
The court noted, “The fact that the added cost has not been
estimated and may be slight does not affect standing, which
requires only a minimal showing of injury.”
Other cases have recognized that the diversion of staff
time can support standing.

In Miami Valley Fair Housing Center,

Inc. v. Connor Group, 725 F.3d 571, 576 (6th Cir. 2013), for
example, the Sixth Circuit determined that a diversion of
resources in the form of “staff time and energy” was sufficient
to support an injury for standing purposes.

Similarly, Southern

California Housing Rights Center v. Los Feliz Towers Homeowners
Association, 426 F. Supp. 2d 1061, 1069 (C.D. Cal. 2005),
determined that an organization had standing “based on loss of
financial resources in investigating this claim and diversion of
staff time from other cases to investigate the allegations here.”
At the hearing on the present motion, HDOT conceded
that “staff time” can be a resource for standing purposes.
However, HDOT disputed whether FACE had actually used “staff
time” on a taxi service.

For example, HDOT contended that,

because FACE’s board had not approved the use of staff time for
the taxi service, FACE could not be said to have diverted
resources as an organization.
argument.

The court is unpersuaded by this

Even if Harman decided on her own to provide the

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“informal taxi service,” that decision implemented the board’s
undisputed interest in addressing the problems faced by
immigrants.

In providing the taxi service, FACE can be said to

have diverted its resources to combat the alleged
discrimination–-the failure to provide translated driver’s
license exams that allegedly amounted to national origin
discrimination, something it was FACE’s organizational mission to
address.

See Smith, 358 F.3d at 1105.
The court is not persuaded by HDOT’s argument that the

three-year gap between when HDOT stopped providing translated
driver’s license exams and when FACE started its “informal taxi
service” establishes the absence of a connection between the two
events.

That is an argument concerning causation that is for the

trier of fact to resolve.
HDOT argues that FACE cannot prove that it diverted its
resources because it has no formal record of how much time FACE
employees actually spent driving their personal cars to provide
the informal taxi service.

However, HDOT cites no authority

requiring a formal record or accounting.

This court knows of

nothing preventing FACE from establishing that it diverted
resources through testimony that its employees spent “staff time”
as a result of HDOT’s policy that could have been used elsewhere.
No formal budget, accounting, or written record is necessary to
establish a “concrete and particularized” injury for standing

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purposes.

Even if FACE employees can only estimate the time

spent, that does not mean that no injury was suffered, only that
they may not be able to establish the exact extent of the injury
suffered.
Nor is HDOT persuasive in arguing that the informal
taxi service was unnecessary because FACE meetings could have
been held electronically.

Even if FACE could have had meetings

via conference calls or video, that does not mean FACE was
limited to doing so.

In fact, because the individuals who were

transported had limited English proficiency, it is not at all
clear that they could have effectively participated
electronically.

Those individuals might have needed the help of

translators or the nonverbal cues provided by face-to-face
interaction.
HDOT is similarly unpersuasive in arguing that FACE
should have chosen different locations for its meetings–locations better suited to conference calls than a McDonald’s
restaurant.

HDOT is second-guessing the need for the informal

taxi service, which has nothing to do with whether resources were
in fact diverted.
Finally, HDOT complains that FACE cannot substantiate
what FACE says was $65,000 spent in advocacy efforts in this
litigation.

This court’s earlier order determined that FACE’s

advocacy efforts in this litigation were not an injury-in-fact

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for standing purposes.
19.

See ECF No. 80 at 12-15, PageID # 1416-

This court is basing FACE’s organizational standing on the

informal taxi service, which requires no proof of $65,000 in
advocacy expenses.

Nor does the court need to address FACE’s

claim that it has sustained $30,000 in damages based on lost
efficacy.

Standing in this case is not dependent on damages of

any particular dollar amount.
V.

CONCLUSION
The Second Motion to Dismiss for lack of standing is

denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 20, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Faith Action For Community Equity, et al. v. State of Hawaii; Hawaii
Department of Transportation; Glenn Okimoto, in his official capacity; Civ.
No. 13-00450 SOM/RLP; Order Denying Second Motion to Dismiss

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