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 

TABLE OF AUTHORITIES 

Cases: Page 

Legal Aid Soc’y of Hawaii v. Legal Servs. Corp., 
145 F.3d 1017 (9th Cir.), cert. denied, 119 S. Ct. 
539 (1998) ............................................................................. 
1, 4, 6 

National Endowment for the Arts v. Finley, 
524 U.S. 569 (1998) ................................................................ 
3-4 

Rosenberger v. Rector & Visitors of the Univ. 
of Va., 515 U.S. 819 (1995) ............................................... 
2, 3, 4 

Rust v. Sullivan, 500 U.S. 173 (1991) ............................. 
2, 3, 4 

Statutes: 

Legal Services Corporation Act, 42 U.S.C. 2996 
et seq.: 
42 U.S.C. 2996b(a) ............................................................. 

2 
42 U.S.C. 2996e(d)(3) ........................................................ 
2 

42 U.S.C. 2996e(d)(4) ........................................................ 
2 

Omnibus Consolidated Rescissions and Appropriations 

Act of 1996, Pub. L. No. 104-134, § 504(a)(16), 
110 Stat. 1321-55 .................................................................... 2, 4 

(I) 

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 its ruling is inconsistent with the 
decision of the Ninth Circuit in Legal Aid Society of 
Hawaii (LASH) v. Legal Services Corp., 145 F.3d 1017 
(White, J.), cert. denied, 119 S. Ct. 539 (1998). The 
court of appeals’ decision therefore warrants review by 
this Court. Respondents’ various contentions that cer- 
tiorari 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 individuals and 
organizations for the purpose of providing legal 
assistance to persons who 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 

(1) 

2 

representation in criminal proceedings or 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 issue here arises out of a general 
prohibition against participation by LSC fund recipi- 
ents in litigation, lobbying, or rulemaking involving an 
effort to reform a federal or state welfare system. 
Congress created an individual-benefits exception to 
that prohibition, allowing recipients of LSC funds to 
represent individual eligible clients who are seeking 
specific relief from a welfare agency, but only “if such 
relief does not involve an effort to amend or otherwise 
challenge existing law in effect on the date of the 
initiation of the representation.” Omnibus Consolidated 
Rescissions and Appropriations Act of 1996, Pub. L. No. 
104-134, § 504(a)(16), 110 Stat. 1321-55 to 1321-56. LSC 
fund recipients remain free to engage in such activities 
by conducting them with non-LSC funds through an 
independent affiliate. See U.S. Pet. 8. 

The court of appeals incorrectly held that the excep- 
tion allowing representation in certain individual cases 
seeking relief from welfare agencies under existing law 
constitutes impermissible viewpoint discrimination. 
Respondents embrace that 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 
the case is most analogous to Rosenberger v. Rector & 
Visitors of the University of Virginia, 515 U.S. 819 
(1995). 

As we have previously explained,* however, respon- 
dents’ attempted distinction of Rust does not hold up. 
Contrary to respondents’ claim (Br. in Opp. 7), the 

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

3 

United States does not view the government as “the 
true ‘speaker’ in this case, using Legal Services lawyers 
as spokespersons to convey a pre-selected government 
message, just as doctors were allegedly used in Rust.” 
The counseling by doctors and other persons employed 
by family planning organizations that received Title X 
funds in Rust was not government speech. It was 
private, professional counseling rendered within the 
confines of a federally assisted program. The same is 
true here. The legal representation by lawyers em- 
ployed by LSC fund recipients is not government 
speech. It is private, professional representation ren- 
dered within the confines of a federally assisted pro- 
gram. 

For that same reason, respondents err in contending 
(Br. in Opp. 8) that the purpose of the LSC Act is to 
subsidize “lawyers’ speech,” and in claiming (id. at 7) 
that the United States has thereby “elected to subsidize 
the speech-related activities of numerous private 
persons in order to enable poor litigants to oppose the 
government effectively in court.” An LSC-funded 
lawyer makes legal arguments on behalf of his or her 
client to advance the client’s interest in the particular 
case in which the lawyer is representing that client, not 
to exercise some general speech right of the lawyer in 
expressing his or her own views about government 
policy or laws. 

As for respondents’ reliance on Rosenberger, the 
program at issue there was very different from the 
programs at issue in Rust and here. It was designed to 
encourage diverse private expression, and the Court 
held that the University had, 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, 524 U.S. 569, 586 (1998); see also id. at 598-599 

4 

(Scalia, J., concurring in the judgment) (noting that 
Rosenberger “found the viewpoint discrimination 
unconstitutional, 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 not dedicated to the promotion of 
diverse private expression in such a forum—it exists to 
subsidize certain discrete legal services and activities. 
As the Ninth Circuit correctly held, “the LSC program 
is designed to provide professional services of limited 
scope to indigent persons, not [to] create a forum for 
the free expression of ideas.” LASH, 145 F.3d at 1028. 
Any limitations on expression by LSC fund recipients 
are but an incidental result of the program’s restric- 
tions on certain types of activities that the recipient 
may undertake on behalf of clients. Such an incidental 
limitation on the use of federal funds is “not a case of 
the Government ‘suppressing a dangerous idea,’ but of 
a prohibition on a project grantee or its employees from 
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-benefits exception at 
issue here as an effort “to manipulate the permissible 
content of counsel’s argument on the basis of view- 
point.” The statutory funding restriction is couched in 
terms of authorizing an LSC fund recipient to represent 
an otherwise eligible client who is seeking specific relief 
from a welfare agency only if the relief sought does not 
involve an effort to amend or otherwise challenge 
existing law. 110 Stat. 1321-55 to 1321-56. As we 
explain in our certiorari petition (at 18), the limitation 
thereby prevents LSC fund recipients from engaging in 
representation at all if it involves a request for relief in 

5 

the form of an amendment or alteration of the existing 
welfare laws. The exception does not preclude an LSC 
fund recipient 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 entitled to such benefits under current law, 
but not for those who do not qualify under existing law 
but want to take on the larger project of challenging 
the law itself. 

2. Respondents err in contending (Br. in Opp. 9-10) 
that the decision below should be affirmed on statutory 
grounds because the provisions in the LSC Act requir- 
ing LSC fund-recipient attorneys to adhere to appli- 
cable ethical standards mean that such attorneys 
remain able to challenge the legality of welfare laws 
when they believe it is necessary to do so in order to 
represent their clients’ interests. 

Respondents’ contention disregards the fact, noted 
above, that the limited scope of the individual-welfare- 
benefits exception merely has the effect of precluding 
an attorney employed by an LSC fund recipient from 
representing particular clients who seek certain forms 
of relief; it is not aimed at dictating the nature of the 
legal arguments that may be made by such an attorney 
on behalf of a client whose representation is not barred 
by the statutory funding restriction. An LSC fund- 
recipient attorney who is faced with a potential client 
whose best interests would be served by a challenge to 
the existing welfare law must meet his or her ethical 
obligations by disclosing to the client, before under- 
taking any representation, that he or she cannot repre- 
sent the client in making that challenge. The attorney 
is free under the statute not only to inform the client 
that the representation is beyond the scope of the LSC 

6 

program, but also to refer the client to legal counsel 
outside the program, including any lawyer at an 
affiliate organization that the LSC fund recipient may 
have established under the LSC regulations. 

3. Respondents assert (Br. in Opp. 11) that the in- 
stant case challenges the restrictions placed by 
Congress on the use of federal funds by LSC recipients 
and is, therefore, distinguishable from the decision in 
LASH, supra. Respondents’ assertion is inconsistent 
with the record. The rulings of the courts below were 
addressed to respondents’ motion for a preliminary 
injunction, which sought to have the LSC and others 
enjoined from taking adverse action against respon- 
dents “for using non-federal funds * * * to challenge 
the legality of welfare regulations or statutes.” Notice 
of Motion for Class Certification and Preliminary 
Injunction 2 (Jan. 27, 1997); see also Memorandum of 
Law in Support of Motion for Preliminary Injunction 2, 
19 (Jan. 27, 1997). 

* * * * * 

For the foregoing reasons and those set forth in the 
petition, the petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

MARCH 2000