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

Filing 80

ORDER DENYING MOTION TO DISMISS ORGANIZATIONAL PLAINTIFF FOR LACK OF STANDING AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM re 61 ; 62 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/28/2014. (emt, )CERTIFICATE OF S ERVICEParticipants 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,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00450 SOM/RLP
ORDER DENYING MOTION TO
DISMISS ORGANIZATIONAL
PLAINTIFF FOR LACK OF
STANDING AND MOTION TO
DISMISS FOR FAILURE TO STATE
A CLAIM

ORDER DENYING MOTION TO DISMISS
ORGANIZATIONAL PLAINTIFF FOR LACK OF STANDING
AND MOTION TO DISMISS COMPLAINT FOR FAILURE TO STATE A CLAIM
I.

INTRODUCTION.
Plaintiffs Faith Action for Community Equity (“FACE”)

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

FACE

and Kovac allege 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 disparate treatment in federally funded
programs.
Before the court are two motions to dismiss filed by
Defendants: the first motion seeks dismissal of FACE on the
ground that it does not have Article III standing to bring this
action, and the second motion seeks dismissal of the First
Amended Complaint on the ground that Plaintiffs fail to state a
claim.

Defendants also argue that Plaintiffs’ claim for

injunctive relief is moot because HDOT now offers the written
portion of the driver’s exam in multiple languages.
The court denies both the motion to dismiss for lack of
standing and the motion based on a failure to state a claim.

The

court also concludes that Defendants’ voluntary cessation of the
English-only policy does not render moot Plaintiffs’ claim for
injunctive relief.
II.

BACKGROUND.
Between 2001 and 2009, HDOT allegedly provided

translations of the written portion of the state’s driver’s
license exam in eight languages: Japanese, Mandarin, Korean,
Samoan, Tagalog, Vietnamese, Laotian, and Tongan.
Complaint ¶ 39, ECF No. 60.

First Amended

Plaintiffs allege that, in 2009,

HDOT “pulled the plug” on translations when it added a single
question to the exam.

Id. ¶ 45.

HDOT also allegedly refuses to

allow interpretation for the road portion of the exam, even when

2

“applicants offer to supply their own interpreters so that it
would cost HDOT nothing.”

Id. ¶ 46.

Plaintiffs state that, since the introduction of the
English-only policy, many individuals with low English
proficiency (“LEP”), “the vast majority of whom are people of
nationalities other than the U.S., have been unable to pass the
test and obtain a driver’s license.”

Id. ¶ 47.

On March 17,

2014, after the filing of the First Amended Complaint, HDOT began
to once again offer translations for the written portion of the
exam, this time in 12 languages.

See Defendant’s Memo. Re

Standing in Light of Intervening Events, ECF No. 75.

Nothing in

the record suggests that HDOT now offers or allows translations
for the road test portion of the exam.
Plaintiffs allege that, before March 17, 2014,
Defendants “intentionally adopted and maintained a policy that
they kn[ew] ha[d] severe [and disproportionate] adverse effects
on persons of national origin other than the United States.”
¶ 70.

FAC

Plaintiffs claim that Defendants “kn[ew] or ha[d] been

provided with information clearly demonstrating that there [was]
a great need for translation and interpretation of the driver’s
license exam.”

Id. ¶ 70.

Plaintiffs believe that Defendants’ cost and safety
justifications for the English-only policy “are mere pretext for
their preference of U.S. citizens over non-citizens” and over

3

“people of national origins other than the United States.”

Id.

¶¶ 69-70. Plaintiffs claim that the cost of translation would be
“significantly less than $2000," which is “nominal” when compared
to HDOT’s annual budget “exceed[ing] $1 billion.”

Id.

¶ 45.

Plaintiffs say that HDOT’s alleged safety rationale is similarly
not worthy of credence because HDOT’s “policies allow illiterate
persons to take an oral driver’s license exam, and non-English
speaking people are allowed to drive using a foreign driver’s
license for a period of one year before they are required to
obtain a Hawaii license.”

Id. ¶ 68.

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. ¶ 12.

Plaintiffs describe FACE’s work as “conduct[ing]

social, economic and community activities, and provid[ing]
leadership development though meetings and workshops.”

Id.

One

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

Id.

Plaintiffs claim that one of the ways “FACE accomplishes

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

Id. ¶ 12.

Plaintiffs also

claim that these meetings and workshops are used to help “train[]
[new immigrants] to advocate for themselves.”

4

Id. ¶ 77.

Plaintiffs allege that “FACE and its members have
devoted substantial resources to addressing th[e] licensing issue
and advocating for the rights of LEP people.”

Id. ¶ 13.

They

allege that the provision of multilingual driver’s tests between
2001 and 2009 was in part the product of FACE’s “considerable
advocacy effort.”

Id. ¶ 39.

Plaintiffs claim that FACE renewed

its advocacy in 2013, when it learned of the English-only policy.
After allegedly being rebuffed several times, FACE was able to
meet with HDOT officials on May 15, 2013.

Plaintiffs say that,

during the meeting, “HDOT officials acted disinterested and even
hostile.”

Id. ¶ 60.

Plaintiffs claim that “[t]he HDOT official

who FACE was told was ultimately responsible for making the
determination regarding translations and interpretation never
answered a single question that the Chuukese and Marshallese
members of FACE’s delegation asked of him, though he did respond
to questions posed by others.”

Id. ¶ 62.

Plaintiffs further

allege that “HDOT’s acting director for civil rights expressed
surprise that there were Marshallese and Chuukese people living
on all the islands and asked why Marshallese and Chuukese people
had moved to Hawaii.”

Id. ¶ 63.

In response to the allegedly

“humiliat[ing]” way in which HDOT officials were treating FACE’s
delegation, a Micronesian member of FACE’s delegation “began
tearing up.”

Id. ¶ 64.

FACE allegedly “decided to end the

meeting early to avoid further humiliation.”

5

Id.

In addition to the resources spent advocating against
the English-only policy, FACE has allegedly spent “around $4,500
in staff time and resources during the past two years [on an
informal] taxi service for [LEP individuals] who could not
otherwise attend FACE activities.”

Id. ¶ 81.

Plaintiffs allege

that the attendance of these individuals at FACE’s meetings and
workshops is “necessary in order for FACE to accomplish its
work.”

Id.

FACE claims that it has spent $60,000 in direct

advocacy to persuade HDOT to alter the English-only policy, and
has suffered an additional “$30,000 [in damages] as a result of
lost efficacy from members not being able to attend FACE
activities,” notwithstanding FACE’s “taxi-service.”

Id. ¶ 82.

The other named Plaintiff in this case is Tochiro
Kochiro Kovac.

Kovac is Chuukese and resides on Maui.

Id. ¶ 84

“He spends approximately 5 hours each day on the bus to and from
work,” because bus service on Maui is “limited and irregular.”
Id. ¶ 84.

Even though Kovac is allegedly a “good driver,” he has

been unable to understand many of the questions on the written
exam and, as a result, does not have a driver’s license.”

Id.

¶ 85.
III.

LEGAL STANDARDS.
A.

Rule 12(b)(1).

“Rule 12(b)(1) jurisdictional attacks can be either
facial or factual.”

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

6

2000).

“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]

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

7

opposing the motion must furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject matter
jurisdiction.”
B.

Savage, 343 F.3d at 1039 n.2.
Rule 12(b)(6).

Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, review is generally limited to the contents of a
complaint.

Sprewell v. Golden State Warriors, 266 F.3d 979, 988

(9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th
Cir. 1996).

If matters outside the pleadings are considered, the

Rule 12(b)(6) motion is treated as one for summary judgment.

See

Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir.
1997); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).
However, courts may “consider certain materials--documents
attached to the complaint, documents incorporated by reference in
the complaint, or matters of judicial notice--without converting
the motion to dismiss into a motion for summary judgment.”
United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Documents whose contents are alleged in a complaint and whose
authenticity is not questioned by any party may also be
considered in ruling on a Rule 12(b)(6) motion to dismiss.

See

Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994).
On a Rule 12(b)(6) motion, all allegations of material
fact are taken as true and construed in the light most favorable
to the nonmoving party.

Fed’n of African Am. Contractors v. City

8

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

However,

conclusory allegations of law, unwarranted deductions of fact,
and unreasonable inferences are insufficient to defeat a motion
to dismiss.

Sprewell, 266 F.3d at 988; In re Syntex Corp. Sec.

Litig., 95 F.3d 922, 926 (9th Cir. 1996).

The court need not

accept as true allegations that contradict matters properly
subject to judicial notice or allegations contradicting the
exhibits attached to the complaint.

Sprewell, 266 F.3d at 988.

Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.

Balistreri v. Pacifica Police

Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“the pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss

9

does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555.

The complaint must “state a

claim to relief that is plausible on its face.”

Id. at 570.

“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.”

Iqbal,

556 U.S. at 677.
IV.

ANALYSIS.
A.

FACE’s Standing.

An organizational plaintiff may assert standing as a
representative of its members, or first-party standing in its own
right as an independently injured entity.

See Smith v. Pac.

Properties & Dev. Corp., 358 F.3d 1097, 1101 (9th Cir. 2004).
FACE explicitly disclaims any reliance on the doctrine of
representative standing, and instead claims standing only in its
own right.
“In determining whether [an organiztion] has standing
[in its own right] . . . [a court must] conduct the same inquiry
as in the case of an individual: Has the plaintiff alleged such a
personal stake in the outcome of the controversy as to warrant

10

his invocation of federal-court jurisdiction?”

Havens Realty

Corp. v. Coleman, 455 U.S. 363, 378-79 (1982).
In other words, FACE must meet the ordinary individual
requirements of Article III standing, which involve showing that
it has suffered:
“an injury in fact,” i.e., “an invasion of a
legally protected interest which is (a)
concrete and particularized, and (b) actual
or imminent, not conjectural or
hypothetical.” . . . Second, it must show
that the injury is “fairly traceable to the
challenged action of the defendant,” and is
not “the result of the independent action of
some third party not before the court.” . . .
Finally, “it must be likely, as opposed to
merely speculative, that the injury will be
redressed by a favorable decision.”
Ass'n of Pub. Agency Customers v. Bonneville Power Admin., 733
F.3d 939, 950 (9th Cir. 2013) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)
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 at 1105.

However, the “organizational mission” cannot simply be opposing a
law through litigation, and the “diversion of resources” cannot
be the consequent litigation costs.

See Fair Hous. Council of

San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219
(9th Cir. 2012) (“An organization cannot manufacture an injury by
11

incurring litigation costs or simply choosing to spend money
fixing a problem that otherwise would not affect the organization
at all.").
1.

Standing based on the resources FACE has
spent on advocating against the English-only
policy.

FACE appears to suggest that HDOT’s policy frustrates
its “organizational mission” of “engaging in actions that
challenge the systems that perpetuate poverty and injustice,”
and argues that it has had to devote significant resources to
advocating against the English-only policy outside of this
litigation.

Presumably, however, a plaintiff in any civil rights

suit is challenging what it perceives to be “a system of
injustice.”

An organization’s injury must be “concrete and

demonstrable . . . [not] simply a setback to the organization's
abstract social interests."

Havens Realty Corp., 455 U.S. at

379.
FACE has alleged a lengthy history of opposition to
HDOT’s policy, and claims to have been advocating for a
multilingual exam since at least 2001.

But a workable test for

Article III standing cannot hinge on the amount of prelitigation
advocacy against a particular policy that an organization engages
in.

To establish first-party standing, the organization cannot

merely disapprove of a law, it must be injured by it.

And the

injury in question cannot be the voluntarily incurred cost of

12

trying to have the law changed; the organization must be
independently harmed by the law’s operation.

See La Asociacion

de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d
1083, 1088 (9th Cir. 2010) (noting that the organization must
show it would "have suffered some other injury if it had not
diverted resources to counteracting the problem.").
Even the Ninth Circuit’s highly permissive requirements
for organizational standing plainly recognize that the challenged
law must “affect the organization” beyond mere ideological
opposition and nonlitigation attempts to get the law changed.
In Smith, for example, the question at issue concerned
the standing of a nonprofit corporation “organized with the
principal purpose of helping to eliminate discrimination against
individuals with disabilities by ensuring compliance with laws
intended to provide access . . . to services.”

358 F.3d at 1105.

The organization brought a claim under the Fair Housing Act
against a real-estate developer whose buildings allegedly
contained “discriminatory design and construction defects.”
at 1099.

Id.

The organization claimed an independent interest in

“ensuring an adequate stock of accessible housing for those who
are freed to leave the nursing homes.”

Id. at 1105.

The

defendants’ challenged action was allegedly injurious to this
independent interest.

Whether or not the corporation chose to

advocate or litigate against it, the corporation in Smith would

13

have been harmed by the defendant’s practice because it lessened
the availability of housing stock the corporation could place
members of the disabled community in.

Here, by contrast, the

only interest that FACE alleges is opposing the law itself.

The

law only affects FACE to the extent that FACE voluntarily chooses
to advocate against it.
In Roommate, the plaintiff fair housing councils
“started new education and outreach campaigns targeted at
discriminatory roommate advertising” in response to discovering
that the defendant website was “steering and matching its users”
based on characteristics such as “sex, sexual orientation and
familial status.”

666 F.3d at 1219.

“The resources spent on

these campaigns were not associated with litigation.”

Id.

Roommate takes Smith one step further by allowing an organization
to count expenditures that are responsive to the practice it
challenges in litigation to constitute the relevant Article III
injury.

However, the expenditures in Roommate were collateral to

the effort to change the challenged policy.

If the fair housing

councils’ expenditures had not been on “education and outreach
campaigns” targeted at third parties, but rather on letters sent
to the defendant itself demanding that the policy be changed, it
is unlikely the Ninth Circuit would have found that the councils
had met the requirements of Article III standing.

14

Moreover, fair housing councils seek to eliminate
discrimination in the allocation of housing.

This organizational

interest is broader than simply advocating against any particular
challenged conduct, but narrower than fighting “the structures
that perpetuate injustice.”

FACE’s problem is that its alleged

organizational mission is either too narrow or too broad to
coherently support Article III standing.

Granting FACE standing

either because its mission is to oppose a single policy or to
oppose injustice generally would strip all meaning from the
“organizational mission” prong of the Smith test.
In short, under Plaintiffs’ theory, any organization
could perform an end run around Article III by artfully defining
its organizational purpose and engaging in perfunctory advocacy
efforts before filing a complaint.

This would have the

consequence of routinely allowing organizations with no “personal
stake in the outcome of [a] controversy” to file complaints,
thereby depriving courts of “the concrete adverseness [that]
sharpens the presentation of issues.”

Warth v. Seldin, 422 U.S.

490, 525 (1975).
2.

Standing based on the resources FACE has
spent “taxiing” its members.

While this court is not persuaded that FACE’s advocacy
expenses provide organizational standing, that is not the only
ground on which FACE claims to have standing.

FACE also alleges

that it has spent considerable resources providing an “informal
15

taxi service” for individuals to attend FACE meetings and
workshops.
Assuming that offering workshops and organizing
meetings is an important part of FACE’s “organizational mission,”
and assuming many participants in such events are LEP individuals
unable to drive because of the English-only policy, the court
concludes that Plaintiffs have sufficiently alleged that FACE has
suffered an injury-in-fact.

If FACE had not diverted resources

to combating the English-only policy, it would allegedly have
suffered independent injury.
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.

Lujan, 504 U.S. at 561 (“At the pleading

stage, general factual allegations of injury resulting from the
defendant's conduct may suffice.”).
The allegations in the First Amended Complaint are also
sufficient to establish that FACE’s injury is “fairly traceable
to the [English-only policy] and that [it] is . . . likely to be
redressed by the requested relief.”

16

Lujan, 504 U.S. at 590.

FACE alleges that, but for the English-only policy, various LEP
individuals would “obtain a driver’s license, and drive
themselves to FACE meetings and events, saving themselves
considerable time and saving FACE considerable expense.”
¶ 81.

FAC

That allegation is sufficient to meet Lujan’s causation

and redressability prongs at the pleading stage.
Defendants challenge, as a factual matter, whether FACE
has diverted resources as a result of the English-only policy and
whether it is important to FACE’s organizational mission to
conduct such meetings and workshops.

Defendants note that,

because FACE is composed of organizations, not individuals, it
does not matter whether particular individuals can attend the
meetings, so long as FACE has a sampling of the views of each
“member organization.”

While the manner in which FACE functions

could be more clearly delineated, Defendants’ argument appears to
depend largely on matters outside the record.

Of course, in a

12(b)(1) factual challenge, matters outside a complaint may be
considered, but the sole document Defendants rely on is FACE's
2011 Form 990 filing.

This filing does not list any enumerated

amount for "taxi service."

Defendants therefore argue that the

amount FACE spends on its advocacy work is unaffected by the
English-only policy.
little.

But this document alone demonstrates

It is unsurprising that an “informal taxi service” does

not appear individually specified in a federal tax filing and it

17

is impossible to deduce from a single year’s data the effect on
FACE’s work that the English-only policy may have had.
FACE offers a declaration from Kim Harman, FACE's
Director of Policy & Development, who states that she and other
FACE staffers have personally taxied individuals to meetings and
workshops.

The Form 990 filing and the Harman declaration are

the only two items of evidence in the record relevant to the taxi
issue.

These two documents do not support the Rule 12(b)(1)

factual attack.
Finally, Defendants suggest that the absence of
individual members from FACE meetings constitutes, at most, a de
minimis injury.

See Skaff v. Meridien N. Am. Beverly Hills, LLC,

506 F.3d 832, 840 (9th Cir. 2007) (noting that some injuries are
“too trifling . . . to support constitutional standing”).
However, the First Amended Complaint sufficiently alleges the
significance of the injury FACE has suffered.

See, e.g., FAC

¶ 81 (noting that attendance of individuals who are unable to
drive themselves is “necessary for FACE to accomplish its work”
and that FACE has spent “around $4500 in staff time and resources
during the past two years” on taxiing individuals).

Defendants

provide no evidence contradicting the allegations in Plaintiffs’
pleadings regarding the severity of injury.

At this stage of the

litigation, the court is not persuaded by the Rule 12(b)(1)
factual challenge.

18

B.

Mootness.

Defendants contend that their recent implementation of
a decision to offer the written exam in 13 languages renders moot
Plaintiffs’ claims for injunctive relief.

Plaintiff Kovac

indisputably presents a live claim for damages, which precludes
dismissal of the damage portion of the case for mootness.
Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 872 (9th Cir.
2002).
Plaintiffs argue that even the claim for injunctive
relief is not moot because this case falls within the “voluntary
cessation” exception to the mootness doctrine, and because
Defendants are not offering the road test portion of the driver’s
exam with interpretation services.
“[A] suit becomes moot when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.”
1023 (2013).

Chafin v. Chafin, 133 S. Ct. 1017,

This occurs “only when it is impossible for a court

to grant [] effectual relief [] to the prevailing party.”

Id.

However, “[a] defendant's voluntary cessation of allegedly
unlawful conduct ordinarily does not suffice to moot a case.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 174 (2000).

In such a situation, “dismissal for

mootness would permit a resumption of the challenged conduct as

19

soon as the case is dismissed.”

Knox v. Serv. Emp. Int'l Union,

Local 1000, 132 S. Ct. 2277, 2287 (2012).
Therefore, “when a party abandons a challenged practice
freely, the case will be moot only if subsequent events ma[ke] it
absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.”

United States v. Brandau, 578

F.3d 1064, 1068 (9th Cir. 2009) (internal quotation omitted)
(emphasis in original).

“The heavy burden of persuading the

court that the challenged conduct cannot reasonably be expected
to start up again lies with the party asserting mootness.”
Laidlaw, 528 U.S. at 189.
Defendants point to an internal memorandum written by
HDOT’s Office of Civil Rights before this litigation began.

That

document recommends that the driver’s exam be provided in
multiple languages to bring Hawaii into compliance with section
602 of Title VI.

The document suggests that the State may have

acted in good faith in altering its policy.

But the presumption

of good faith already attaches to governmental policy changes.
Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180
(9th Cir. 2010).

Acting in good faith does not diminish

Defendants’ heavy burden of showing that the “challenged conduct
cannot reasonably be expected to start up again."

Rosebrock v.

Mathis, 2014 WL 982897, at *5 (9th Cir. Mar. 14, 2014).

“[E]ven

if the government is unlikely to reenact the provision, a case is

20

not easily mooted where the government is otherwise unconstrained
should it later desire to reenact the provision.”

Coral Const.

Co. v. King Cnty., 941 F.2d 910, 928 (9th Cir. 1991).
HDOT’s translation policy has changed multiple times in
recent years for reasons "not reflected in statutory changes or
even in changes in ordinances or regulations."
WL 982897, at *6.

Rosebrock, 2014

There appears to be nothing at all

constraining HDOT from reversing course once again in the future
and removing the translations.

Therefore, Defendants cannot be

said to have met their heavy burden of showing that the test will
continue to be offered in multiple languages.

An injunction by

this court would still constitute effectual relief for
Plaintiffs, by preventing Defendants from altering their policy
in the future.

Plaintiffs’ claim for injunctive relief is

therefore not moot even with respect to the written portion of
the exam.1
C.

Motion to Dismiss for Failure to State a Claim.

Plaintiffs bring claims under the Equal Protection
Clause and section 601 of Title VI.

“[V]iolations of equal

protection and Title VI require similar proofs—-plaintiffs must
show that actions of the defendants had a discriminatory impact,

1

Given the court’s decision that the voluntary cessation
doctrine applies, it is unnecessary for the court to address
Plaintiffs' further argument that the case remains “live” given
the road test portion of the exam.
21

and that defendants acted with an intent or purpose to
discriminate based upon plaintiffs' membership in a protected
class.”

The Comm. Concerning Cmty. Improvement v. City of

Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009) (emphasis added).
There is no cause of action for disparate impact under either the
Equal Protection Clause or Title VI.

See Washington v. Davis,

426 U.S. 229, 239 (1976)(holding that government action is not
“unconstitutional solely because it has a racially
disproportionate impact”); see also Alexander v. Sandoval, 532
U.S. 275, 280 (2001) (noting that “it is beyond dispute . . .
that § 601 [of Title VI] prohibits only intentional
discrimination”).
Intentional discrimination “implies more than intent as
volition or intent as awareness of consequences.

It implies that

the decisionmaker . . . selected or reaffirmed a particular
course of action at least in part because of, not merely in spite
of, its adverse effects upon an identifiable group."

Pers. Adm'r

of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (internal quotation
omitted).
Defendants’ focus is on their contention that, “[a]s
long as a public entity’s policy or practice distinguishes among
people for reasons other than race, ethnicity, national origin,
or gender and does not burden the enjoyment of a fundamental
right, it will be upheld against an equal protection challenge if

22

it is rationally related to a legitimate governmental interest.”
Def. MTD at 9-10, ECF 62-1.

To the extent this contention

assumes that only express classifications are subject to an equal
protection challenge, and that any facially neutral law is
subject only to rational basis review, that is not the law.
Intentional discrimination can occur in three separate
ways: (1) a law or policy may explicitly classify citizens on the
basis of a protected category, see, e.g., Hunter v. Erickson, 393
U.S. 385 (1969); (2) a facially neutral law or policy may be
applied differently on the basis of membership in a protected
category, see, e.g., Wayte v. United States, 470 U.S. 598 (1985);
or (3) a facially neutral law or policy may be applied
evenhandedly but motivated by discriminatory intent.

See, e.g.,

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 265 (1977).
Plaintiffs themselves repeatedly characterize the
English-only policy as “facially neutral.”

The court infers from

this that Plaintiffs are not arguing that LEP individuals are
themselves a protected class, or that this is a case of “proxy
discrimination.”

See Pac. Shores Prop., LLC v. City of Newport

Beach, 730 F.3d 1142, 1160 n.23 (9th Cir. 2013) (“Proxy
discrimination is a form of facial discrimination . . .
[involving] a law or policy that treats individuals differently
on the basis of seemingly neutral criteria that are so closely

23

associated with the disfavored group that discrimination on the
basis of such criteria is, constructively, facial discrimination
against the disfavored group.”).

But see Olagues v. Russoniello,

797 F.2d 1511, 1521 (9th Cir. 1986), vacated on other grounds,
484 U.S. 806 (1987) (noting that ordinarily “a
non-English-speaking classification is facially neutral with
respect to ethnic [or national origin] group classification”).
Nor do Plaintiffs allege that the English-only policy
has been applied differently on the basis of membership in a
protected class.2
Plaintiffs instead allege the third type of
discrimination: that the facially neutral English-only policy was
motivated in part by an animus against people from national
origins where English is not a primary language.3
Defendants argue at length that LEP status is not a
suspect class.

That analysis fails to address the gravamen of

2

This would be the case if, for example, individuals from
nations where English was a primary language but whose English
was nonetheless inadequate to pass the exam were given
preferential treatment by test examiners, as compared with
individuals from nations where English was not a primary
language.
3

The First Amended Complaint also at times makes reference
to discrimination on the basis of alienage. In their briefing,
however, Plaintiffs only discuss discrimination based on national
origin. The court’s order today does not, however, foreclose
Plaintiffs from later arguing that HDOT has a discriminatory
animus against noncitizens, if they are able to discover evidence
supporting such an argument. See Graham v. Richardson, 403 U.S.
365, 376 (1971) (applying Equal Protection Clause to
discrimination based on alienage).
24

Plaintiffs’ claims.

Plaintiffs are not arguing that any law that

classifies individuals based on LEP status must survive strict
scrutiny.

Instead, Plaintiffs appear to be arguing that the

English-only policy is motivated by a discriminatory animus
against individuals from nations where English is not a primary
language.4
Plaintiffs cannot prevail in this case by simply
showing that the English-only policy disproportionately harms LEP
individuals, or that Hawaii officials have an animus against LEP
individuals for reasons unrelated to membership in a protected
class.

For example, even if Plaintiffs could show that the

English-only policy was created in part because officials dislike
having people in Hawaii who do not speak English, that alone
would not suffice to prevail on the merits.

Of course “language

is close[ly related to] national origin [and] restrictions on the
use of languages may mask discrimination against specific
national origin groups or, more generally, conceal nativist
sentiment.”

Yniguez v. Arizonans for Official English, 69 F.3d

920, 947-48 (9th Cir. 1995), judgment vacated on other grounds by
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).
Still, Plaintiffs would ultimately have to demonstrate that

4

For this reason, Defendants’ reliance on Carmona v.
Sheffield, 475 F.2d 738, 739 (9th Cir. 1973), which does not
appear to involve an allegation of discriminatory animus, is
misplaced.
25

animus against LEP individuals, or any particular linguistic
group, reflects an underlying animus based on national origin.
To survive the present motion to dismiss, Plaintiffs
must have pled facts making their claim of intentional
discrimination plausible.

“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.”

Iqbal, 556 U.S. at 678.

The relevant

inquiry, therefore, is whether or not the English-only policy was
motivated by a discriminatory reason.

Id.

A bare allegation of

discriminatory animus is not a “fact” entitled to the presumption
of truth.

See Iqbal, 556 U.S. at 681 (stating that the

allegation “that [the Government] adopted a policy ‘because of,
not merely in spite of, its adverse effects upon an identifiable
group’ . . . [is] conclusory and not entitled to be assumed
true”) (internal citation omitted).

Plaintiffs must allege

sufficient specific facts from which a conclusion of
discriminatory animus can be plausibly drawn.

If this case

proceeds to the summary judgment stage, “[d]etermining whether
invidious discriminatory purpose was a motivating factor [will]
demand[] a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.”
U.S. at 266.

Arlington Heights, 429

While this sensitive inquiry can only occur based

on evidence presented after discovery, Plaintiffs at the motion

26

to dismiss stage must have alleged sufficient specific facts to
make their entitlement to relief at least plausible.

See Iqbal,

556 U.S. at 678.
The First Amended Complaint alleges three sets of facts
that, if true, could lead to the reasonable inference that
Defendants acted with discriminatory animus against individuals
originating from nations where English is not the primary
language.
First, Plaintiffs allege that the English-only policy
has a disparate impact on individuals originating from nations
where English is not the primary language.

Plaintiffs correctly

note that foreseeable knowledge of disparate impact can provide
some basis for inferring discriminatory intent.

See

Hispanic

Taco Vendors of Washington v. City of Pasco, 994 F.2d 676, 680
(9th Cir. 1993) (“The discriminatory impact of a governmental act
may be evidence of discriminatory intent.”); see also Reno v.
Bossier Parish Sch. Bd., 520 U.S. 471, 487 (1997) ("[T]he impact
of an official action is often probative of why the action was
taken in the first place since people usually intend the natural
consequences of their actions.").
Specifically, Plaintiffs allege, “Defendants know or
should know that their English-only policy disproportionately
adversely affects people of national origins other than the
United States.”

FAC ¶ 70.

This relatively intuitive allegation

27

need not be supported by statistical evidence at the pleading
stage to meet the plausibility standard.

See United States v.

Maricopa Cnty., Ariz., 915 F. Supp. 2d 1073, 1078 (D. Ariz. 2012)
(surveying cases).

The fact that the impact of the English-only

policy does not fall only on one national origin or a few
national origins does not prevent the impact of the policy from
being disparate.

Indeed, if an impact cannot be “disparate” when

it affects multiple national origins, then any policy would be
immune from challenge so long as it cast its discriminatory net
widely enough.

If a policy differently affects individuals from

nations where English is the primary language and nations where
it is not, then the policy has a disparate impact.

See Colwell

v. Dep't of Health & Human Servs., 558 F.3d 1112, 1116-17 (9th
Cir. 2009) (“Discrimination against LEP individuals [is]
discrimination based on national origin in violation of Title
VI.”).

See also Alexander v. Sandoval, 532 U.S. 275, 281 (2001)

(describing regulations to ensure language services for LEP
individuals as designed to “proscribe activities that have a
disparate impact”).
However, “it is the rare case where impact alone will
be sufficient to invalidate a challenged government action.”
Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d
690, 703 (9th Cir. 2009).

“[A]bsent evidence of very stark []

disparities, impact alone is not determinative, and the Court

28

must look to other evidence.”
of such stark disparity.

Id.

Here, there is no allegation

Indeed, it is highly likely that, in

Hawaii, a large number of individuals from nations where English
is not the primary language are nevertheless perfectly fluent in
English.

Conversely, it is also possible that individuals from

nations where English is the primary language do not communicate
in English proficiently.

Given the absence of any alleged facts

regarding the degree of disparate impact, intentional
discrimination cannot, in this case, be inferred from impact
alone.

Nevertheless, the presence of disparate impact is “an

important starting point,” Hispanic Taco Vendors, 994 F.2d, 680,
and can support the inference of discriminatory intent, when
combined with other evidence.

See Modesto, 583 F.3d at 703.

The second set of facts that Plaintiffs allege in
support of their intentional discrimination theory relates to
what they describe as Defendants’ “facially pretextual” decisionmaking.

ECF No. 66 at 17.

“Proof that the defendant's

explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional
discrimination.”

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 134 (2000).

Plaintiffs allege that Defendants’

puported reasons for adopting the English-only policy relate to
cost and safety.

In particular, Plaintiffs allege that

Defendants cited the expense of translations and safety concerns

29

relating to driving by non-English speakers who might be unable
to interpret road signs.
Plaintiffs allege that FACE has been willing to offer
competent translations at no cost to Defendants, and that this
offer has been repeatedly rejected.

Assuming the truth of

Plaintiffs’ allegations, any cost-based justification for the
English-only policy is undermined.

Similarly, the notion that

all drivers must speak English proficiently sits uneasily with
the allegation that foreign drivers are allowed on Hawaii’s roads
without demonstrating an ability to speak English.

Plaintiffs

allege that a high level of English proficiency is required to
pass the written driver’s exam, far greater than is needed to
interpret simple road signs, which are often pictures or symbols
rather than words.

Plaintiffs allege, therefore, that there is

no legitimate basis for arguing that LEP drivers pose a safety
risk.

Moreover, Plaintiffs allege that, before 2010, Defendants

had translated the exam into multiple languages and, as discussed
earlier, Defendants have recently reversed course and are, once
again, offering translations.

Defendants’ allegedly vacillating

attitude toward translation detracts from the credibility of the
cost and safety rationales.
It may be that, in future proceedings, Defendants may
advance other justifications for the English-only policy or may
even contend that cost and safety were never their concerns.

30

At

the pleading stage, however, the court, accepting the allegations
in the First Amended Complaint as true, concludes that Plaintiffs
have sufficiently alleged that Defendants’ justifications are
potentially pretextual.
This is not to say that Defendants’ alleged reasons are
so irrational that the English-only policy could be enjoined even
under rational basis review, if that level of scrutiny applies.
See, e.g., Jackson Water Works, Inc. v. Pub. Utilities Comm'n of
State of Cal., 793 F.2d 1090, 1094 (9th Cir. 1986) (“All that is
needed to uphold the state's classification scheme [under
rational basis review] is to find that there are
‘plausible,’‘arguable,’ or ‘conceivable’ reasons which may have
been the basis for the [policy]”).

However, even if an alleged

justification is not irrational, its unconvincing nature could
constitute evidence of pretext.

See Reeves, 530 U.S. at 134.

Finally, and importantly, Plaintiffs allege that they
have direct evidence of discriminatory animus.

Plaintiffs point

to a meeting on May 15, 2013, at which they allege HDOT officials
displayed hostility toward individuals from places where English
is not the primary language.

Plaintiffs further say that an HDOT

official “never answered a single question that the Chuukese and
Marshallese members of FACE’s delegation asked of him” and that
“HDOT’s acting director for civil rights expressed surprise that
there were Marshallese and Chuukese people living on all the

31

islands and asked why Marshallese and Chuukese people had moved
to Hawaii.”

FAC ¶ 63.

Whether these alleged circumstances are

evidence of discriminatory animus may turn on context, tone, and
demeanor, matters the court wishes had been more fully alleged.
Nevertheless, allegations of derogatory comments go directly to
establishing discriminatory intent.

See Cordova v. State Farm

Ins. Companies, 124 F.3d 1145, 1149 (9th Cir. 1997).

Whether

these comments, and the attitude allegedly displayed during the
meeting, are benign or reflect animus is a matter not amenable to
resolution on the pleadings alone.
Combining the three categories of factual allegations
discussed above, the court concludes that, while their
allegations are thin, Plaintiffs are “armed with [] more than
conclusions.”

Iqbal, 556 U.S. at 679.

Rule 8's “plausibility

standard is not akin to a probability requirement.”

Id. at 678.

It asks only “for more than a sheer possibility that [the]
defendant has acted unlawfully.”

Id.

The foreseeable disparate

impact of the English-only policy, the allegedly pretextual
justifications for the English-only policy, and the potentially
derogatory comments made and the attitude allegedly shown by HDOT
officials suffice to make Plaintiffs’ claims plausible.

This

case presents a close call but, despite the slimness of the
allegations regarding intent in the First Amended Complaint, they
suffice at this stage of the litigation.

32

V.

CONCLUSION
The motions to dismiss FACE for lack of standing and to

dismiss the First Amended Complaint for failure to state a claim
are denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 28, 2014.

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

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 v. State of Hawaii; Hawaii
Department of Transportation; Glenn Okimoto, in his official capacity; Civ.
No. 13-00450 SOM/RLP; ORDER DENYING MOTION TO DISMISS ORGANIZATIONAL PLAINTIFF
FOR LACK OF STANDING AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

33