US Supreme Court Briefs

No. 99-960


In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

CARMEN VELAZQUEZ, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE PETITIONER

SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217






In the Supreme Court of the United States

No. 99-960
UNITED STATES OF AMERICA, PETITIONER

v.

CARMEN VELAZQUEZ, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE PETITIONER






The court of appeals has held an Act of Congress unconstitutional, and itsruling is inconsistent with the decision of the Ninth Circuit in Legal AidSociety of Hawaii (LASH) v. Legal Services Corp., 145 F.3d 1017 (White,J.), cert. denied, 119 S. Ct. 539 (1998). The court of appeals' decisiontherefore warrants review by this Court. Respondents' various contentionsthat certiorari should nonetheless be denied are without merit.

1. The Legal Services Corporation Act (LSC Act), 42 U.S.C. 2996 et seq.,authorizes the Legal Services Corporation (LSC) to make grants to individualsand organizations for the purpose of providing legal assistance to personswho are financially unable to afford legal assistance. The LSC Act has,from the outset, limited LSC financial support in many ways, including,for example, prohibiting any LSC-funded representation in criminal proceedingsor the use of any LSC funds, personnel, or equipment in any political campaign.42 U.S.C. 2996b(a), 42 U.S.C. 2996e(d)(3) and (4). The provision at issuehere arises out of a general prohibition against participation by LSC fundrecipients in litigation, lobbying, or rulemaking involving an effort toreform a federal or state welfare system. Congress created an individual-benefitsexception to that prohibition, allowing recipients of LSC funds to representindividual eligible clients who are seeking specific relief from a welfareagency, but only "if such relief does not involve an effort to amendor otherwise challenge existing law in effect on the date of the initiationof the representation." Omnibus Consolidated Rescissions and AppropriationsAct of 1996, Pub. L. No. 104-134, § 504(a)(16), 110 Stat. 1321-55 to1321-56. LSC fund recipients remain free to engage in such activities byconducting them with non-LSC funds through an independent affiliate. SeeU.S. Pet. 8.
The court of appeals incorrectly held that the exception allowing representationin certain individual cases seeking relief from welfare agencies under existinglaw constitutes impermissible viewpoint discrimination. Respondents embracethat ruling, contending (Br. in Opp. 5-9) that the reasoning of Rust v.Sullivan, 500 U.S. 173 (1991), should not apply to this case and that thecase is most analogous to Rosenberger v. Rector & Visitors of the Universityof Virginia, 515 U.S. 819 (1995).
As we have previously explained,* however, respondents' attempted distinctionof Rust does not hold up. Contrary to respondents' claim (Br. in Opp. 7),the United States does not view the government as "the true 'speaker'in this case, using Legal Services lawyers as spokespersons to convey apre-selected government message, just as doctors were allegedly used inRust." The counseling by doctors and other persons employed by familyplanning organizations that received Title X funds in Rust was not governmentspeech. It was private, professional counseling rendered within the confinesof a federally assisted program. The same is true here. The legal representationby lawyers employed by LSC fund recipients is not government speech. Itis private, professional representation rendered within the confines ofa federally assisted program.
For that same reason, respondents err in contending (Br. in Opp. 8) thatthe purpose of the LSC Act is to subsidize "lawyers' speech,"and in claiming (id. at 7) that the United States has thereby "electedto subsidize the speech-related activities of numerous private persons inorder to enable poor litigants to oppose the government effectively in court."An LSC-funded lawyer makes legal arguments on behalf of his or her clientto advance the client's interest in the particular case in which the lawyeris representing that client, not to exercise some general speech right ofthe lawyer in expressing his or her own views about government policy orlaws.
As for respondents' reliance on Rosenberger, the program at issue therewas very different from the programs at issue in Rust and here. It was designedto encourage diverse private expression, and the Court held that the Universityhad, in effect, created a limited public forum for such private expression.515 U.S. at 829-830; see National Endowment for the Arts v. Finley, 524U.S. 569, 586 (1998); see also id. at 598-599 (Scalia, J., concurring inthe judgment) (noting that Rosenberger "found the viewpoint discriminationunconstitutional, not because funding of 'private' speech was involved,but because the government had established a limited public forum").
The LSC program, by contrast, does not create a public forum and is notdedicated to the promotion of diverse private expression in such a forum-itexists to subsidize certain discrete legal services and activities. As theNinth Circuit correctly held, "the LSC program is designed to provideprofessional services of limited scope to indigent persons, not [to] createa forum for the free expression of ideas." LASH, 145 F.3d at 1028.Any limitations on expression by LSC fund recipients are but an incidentalresult of the program's restrictions on certain types of activities thatthe recipient may undertake on behalf of clients. Such an incidental limitationon the use of federal funds is "not a case of the Government 'suppressinga dangerous idea,' but of a prohibition on a project grantee or its employeesfrom engaging in activities outside of the project's scope." Rust,500 U.S. at 194 (emphasis added).
Respondents also mischaracterize (Br. in Opp. 8-9) the limited, individual-welfare-benefitsexception at issue here as an effort "to manipulate the permissiblecontent of counsel's argument on the basis of viewpoint." The statutoryfunding restriction is couched in terms of authorizing an LSC fund recipientto represent an otherwise eligible client who is seeking specific relieffrom a welfare agency only if the relief sought does not involve an effortto amend or otherwise challenge existing law. 110 Stat. 1321-55 to 1321-56.As we explain in our certiorari petition (at 18), the limitation therebyprevents LSC fund recipients from engaging in representation at all if itinvolves a request for relief in the form of an amendment or alterationof the existing welfare laws. The exception does not preclude an LSC fundrecipient from presenting argument based on a certain viewpoint in a case;it excludes from the scope of the program the cases that seek such relief.The program thus funds efforts to obtain welfare benefits for those entitledto such benefits under current law, but not for those who do not qualifyunder existing law but want to take on the larger project of challengingthe law itself.

2. Respondents err in contending (Br. in Opp. 9-10) that the decision belowshould be affirmed on statutory grounds because the provisions in the LSCAct requiring LSC fund-recipient attorneys to adhere to applicable ethicalstandards mean that such attorneys remain able to challenge the legalityof welfare laws when they believe it is necessary to do so in order to representtheir clients' interests.
Respondents' contention disregards the fact, noted above, that the limitedscope of the individual-welfare-benefits exception merely has the effectof precluding an attorney employed by an LSC fund recipient from representingparticular clients who seek certain forms of relief; it is not aimed atdictating the nature of the legal arguments that may be made by such anattorney on behalf of a client whose representation is not barred by thestatutory funding restriction. An LSC fund-recipient attorney who is facedwith a potential client whose best interests would be served by a challengeto the existing welfare law must meet his or her ethical obligations bydisclosing to the client, before undertaking any representation, that heor she cannot represent the client in making that challenge. The attorneyis free under the statute not only to inform the client that the representationis beyond the scope of the LSC program, but also to refer the client tolegal counsel outside the program, including any lawyer at an affiliateorganization that the LSC fund recipient may have established under theLSC regulations.

3. Respondents assert (Br. in Opp. 11) that the instant case challengesthe restrictions placed by Congress on the use of federal funds by LSC recipientsand is, therefore, distinguishable from the decision in LASH, supra. Respondents'assertion is inconsistent with the record. The rulings of the courts belowwere addressed to respondents' motion for a preliminary injunction, whichsought to have the LSC and others enjoined from taking adverse action againstrespondents "for using non-federal funds * * * to challenge the legalityof welfare regulations or statutes." Notice of Motion for Class Certificationand Preliminary Injunction 2 (Jan. 27, 1997); see also Memorandum of Lawin Support of Motion for Preliminary Injunction 2, 19 (Jan. 27, 1997).
* * * * *
For the foregoing reasons and those set forth in the petition, the petitionfor a writ of certiorari should be granted.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General



MARCH 2000




* See U.S. Br. in Opp. at 20-21, Velazquez v. Legal Servs. Corp., No. 99-604.

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