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United States v. State

United States Court of Appeals, Eleventh Circuit

September 17, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellants,
v.
STATE OF FLORIDA, Defendant-Appellees.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:12-cv-60460-WJZ

          Before JILL PRYOR, BRANCH, and BOGGS, [*] Circuit Judges.

         Table of Contents ANALYSIS ................................................................................................................ 5

         I. An Overview of Title II of the ADA ...................................................................... 5

         II. The Remedial Structure of Title VI of the Civil Rights Act ............................... 12

         A. Title VI Enforcement Regulations Contemplate Department of Justice Enforcement Suits ................................................................................................ 14

         B. Enforcing Title VI: Any Other Means Authorized By Law ........................... 17

         III. Section 505 of the Rehabilitation Act ................................................................ 21

         A. Rehabilitation Act Enforcement Regulations Tracked Title VI Regulations .22

         B. Department of Justice Enforcement of the Rehabilitation Act ....................... 27

         IV. Enforcement of Title II of the ADA .................................................................. 32

         A. Title II Enforcement Regulations Follow Regulations Promulgated Under the Rehabilitation Act and Title VI ............................................................................ 33

         B. Title II of the ADA Permits Department of Justice Enforcement .................. 39

         C. The Legislative History of Title II Supports the Attorney General's Authority to File Suit ............................................................................................................ 46

         D. The Department of Justice Has Filed Suit to Enforce Title II ........................ 51

         E. Federalism Principles Do Not Alter Our Conclusion ...................................... 54

         CONCLUSION ........................................................................................................ 58

          BOGGS, CIRCUIT JUDGE

         In September 2012, after completing a six-month investigation, the Department of Justice issued a Letter of Findings notifying Florida that it was failing to meet its obligations under Title II of the Americans With Disabilities Act of 1990 ("ADA") and its implementing regulations, by "unnecessarily institutionalizing hundreds of children with disabilities in nursing facilities." The Department of Justice also asserted that Florida's Medicaid policies and practices placed other children who have "medically complex"[1] conditions, or who are "medically fragile, "[2] at risk of unnecessary institutionalization.

         The Department of Justice negotiated with Florida to attempt to resolve the violations identified in the Letter of Findings. After concluding that it could not obtain voluntary compliance, the Department of Justice filed suit in the Southern District of Florida in July 2013, seeking declaratory and injunctive relief under Title II of the ADA and 28 C.F.R. § 35.130(d).

         In December 2013, pursuant to Fed.R.Civ.P. 42(a), the district court consolidated the Department of Justice's suit with a previously-filed class-action complaint from a group of children who similarly alleged that Florida's policies caused, or put them at risk of, unnecessary institutionalization and unlawful segregation on the basis of disability. See A.R. v. Sec'y Fla. Agency for Health Care Admin., 769 Fed.Appx. 718 (11th Cir. 2019).

         Shortly before the consolidation, Florida filed a Motion for Judgment on the Pleadings, asserting that Title II of the ADA did not authorize the Attorney General to file suit. The district court denied Florida's motion, concluding that the Department of Justice had reasonably interpreted Title II and had the authority to file suit to enforce Title II. See A.R. v. Dudek, 31 F.Supp.3d 1363, 1367 (S.D. Fla. 2014).

         In 2016, the district court sua sponte revisited the issue[3] and dismissed the Department of Justice's case because it concluded that the Attorney General lacked standing to sue under Title II of the ADA. See C.V. v. Dudek, 209 F.Supp.3d 1279, 1282 (S.D. Fla. 2016). After further litigation, the district court dismissed the children's case. This appeal followed.

         ANALYSIS

         This case requires us to determine whether the Attorney General has a cause of action to enforce Title II of the ADA. This is a purely legal question, requiring statutory interpretation. Therefore, the proper standard of review is de novo. Stansell v. Revolutionary Armed Forces of Colombia, 704 F.3d 910, 914 (11th Cir. 2014).

         I. An Overview of Title II of the ADA

         The ADA was intended to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," and establish strong, enforceable standards to achieve that goal. 42 U.S.C. § 12101(b)(1)-(2). Congress envisioned that, through the ADA, the Federal Government would take "a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities," and invoked "the sweep of congressional authority, including the power to enforce the [F]ourteenth [A]mendment and to regulate commerce" to "address the major areas of discrimination faced day-to-day by people with disabilities." Id. (b)(3)-(4). See also United States v. Georgia, 546 U.S. 151, 154 (2006).

         Part A of Title II, 42 U.S.C. §§ 12131-12134, addresses public services provided by public entities. A "public entity" means "any State or local government," or "any department, agency, special purpose district, or other instrumentality of a State or States or local government . . . ." 42 U.S.C. § 12131(1)(A)-(B). Title II prohibits discrimination based on disability, specifically, "[s]ubject to the provisions of this subchapter, 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 subjected to discrimination by any such entity." 42 U.S.C. § 12132. The term "qualified individual with a disability" means:

an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

42 U.S.C. § 12131(2).

         Title II's enforcement provision states that "[t]he remedies, procedures, and rights set forth in section 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title." 42 U.S.C. § 12133. Congress directed the Attorney General to "promulgate regulations in an accessible format that implement [Title II]." 42 U.S.C. § 12134(a). Such regulations, with the exception of specifically-identified terms,

shall be consistent with this chapter and with the coordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance under section 794 of Title 29.

Id. (b).

         It is undisputed that Title II permits a private cause of action for injunctive relief or money damages. Fry v. Napoleon Cmty. Schs., 137 S.Ct. 743, 750 (2017). We must determine whether Title II's enforcement scheme, 42 U.S.C. § 12133, permits the Attorney General to bring an enforcement action.[4] The starting point is the language of the statute. United States Dep't of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 604 (1986). If the words of the statute are unambiguous, then we may conclude the inquiry there. Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992).

         Through a series of cross-references, the enforcement mechanism for Title II of the ADA is ultimately Title VI of the Civil Rights Act of 1964. See 42 U.S.C. § 12133; 29 U.S.C. § 794a; 42 U.S.C. § 2000d-1. Section 12133 of Title II states that the "remedies, procedures, and rights" available to a person alleging discrimination are those available in § 505 of the Rehabilitation Act of 1973, 29 U.S.C. § 794a. Section 505 contains a provision for enforcing § 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability by programs and activities receiving federal financial assistance. See 29 U.S.C. §§ 794(a); 794a. In relevant part, § 505 states that:

The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) (and in subsection (e)(3) of section 706 of such Act (42 U.S.C. 2000e-5), applied to claims of discrimination in compensation) shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.

29 U.S.C. § 794a(a)(2).

         Like § 504 of the Rehabilitation Act, § 601 of Title VI of the Civil Act of 1964 prohibits discrimination, exclusion, or denial of benefits-in that statutory scheme, on the basis of race, color, or national origin-by "any program or activity receiving federal financial assistance." 42 U.S.C. § 2000d.

         Section 602 of Title VI requires the various federal departments and agencies that provide federal financial assistance to "effectuate" § 601 by "issuing rules, regulations, or orders of general applicability . . . ." 42 U.S.C. § 2000d-1. Agencies may "effect" "[c]ompliance with any requirement adopted pursuant to this section . . . (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient . . . or (2) by any other means authorized by law . . . ." Ibid. Before any action may be taken, the department or agency must issue appropriate notice and determine that it cannot obtain voluntary compliance. Ibid.

         Florida insists that we need not consider the "remedies, procedures, and rights" available in § 505 of the Rehabilitation Act, or Title VI of the Civil Rights Act. It reasons that, because the Attorney General is not a "person alleging discrimination," he is "not within the class to whom Title II provides enforcement authority," and therefore is not authorized to bring suit to enforce Title II. To support this argument, Florida compares Titles I and III of the ADA, which expressly mention the Attorney General, with Title II, which does not.[5]

         The United States contends that this interpretation (followed by the district court) "misreads the plain text of Title II." It asserts that "Title II does not authorize the Attorney General to file enforcement suits by equating the Attorney General with a 'person alleging discrimination.'" Rather, it contends that the phrase "remedies, procedures, and rights" in § 12133 is the operative phrase for statutory analysis. By cross-referencing to other statutes, Congress made a "package" of remedies, rights, and procedures available that may include enforcement by the Attorney General.

         In enacting the ADA, Congress legislated in light of existing remedial statutes. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 590 & n.4 (1999); Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1176-77 (11th Cir. 2003). This decision carries significant weight. When Congress adopts a new law that incorporates sections of a prior law, "Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." Lorillard v. Pons, 434 U.S. 575, 581 (1978). Because in Title II Congress expressly incorporated § 505 of the Rehabilitation Act, which in turn incorporated Title VI of the Civil Rights Act, as the available "remedies, procedures, and rights," it is "especially justified" to conclude that Congress was aware of prior interpretations, as well as the operation of, both Acts. See Cannon v. Univ. of Chi., 441 U.S. 677, 696-98 (1979) (applying a similar presumption while using Title VI to interpret Title IX). Focusing solely on the word "person" and the difference in the language of enforcement provisions within the ADA ignores this presumption.

         Title II, the Rehabilitation Act, and Title VI are structured in a similar manner. Each has a statutory provision forbidding discrimination. Compare 42 U.S.C. § 2000d, with 29 U.S.C. § 794(a), and 42 U.S.C. § 12132. Indeed, § 202 of Title II (42 U.S.C. § 12132) and § 504 of the Rehabilitation Act overlap substantially in their prohibitions on discrimination on the basis of disability. See Barnes v. Gorman, 536 U.S. 181, 184-85 (2002). Title II and the Rehabilitation Act share the same enforcement provision, which incorporates the entirety of Title VI. See 42 U.S.C. § 12133; 29 U.S.C. § 794a(a)(2).

         It is true that, at first glance, Title II's enforcement provision is not as specific as those in Titles I and III. But that difference should not dictate a conclusion that, absent greater specificity, we should simply assume that a single word in § 12133 ends all inquiry. Because Congress chose to cross-reference other statutory provisions to identify how Title II may be enforced, we must consider those statutory provisions. Courts construing Title II and the Rehabilitation Act have taken the same approach. See Barnes, 536 U.S. at 185 (Title II); Olmstead, 527 U.S. at 590 n.4 (Title II); Alexander v. Choate, 469 U.S. 287, 293 n.7 (1985) (Rehabilitation Act); Community Television of S. Cal. v. Gottfried, 459 U.S. 498 (1983) (Rehabilitation Act); Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 348 (11th Cir. 2012) (Rehabilitation Act); Shotz, 344 F.3d at 1169-70 (Title II); United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1043-45 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985) (Rehabilitation Act).

         We begin in Part II by discussing the remedial provisions of Title VI of the Civil Rights Act, as it is the earliest-enacted statute and ultimate fount of the cascade of cross-references. We also examine the regulations promulgated with Title VI and litigation that considered whether the United States could file suit to enforce Title VI. Next, in Part III, we analyze § 505 of the Rehabilitation Act, its accompanying regulations, and cases in which the United States brought suit to enforce the Rehabilitation Act. In Part IV, we return to Title II of the ADA and examine the regulations the Attorney General promulgated pursuant to Congress's directive in 42 U.S.C. § 12134, and the district court's conclusions about the scope of Title II enforcement. We analyze Title II's legislative history, and other cases in which federal courts have concluded that the Attorney General may file suit to enforce Title II.

         II. The Remedial Structure of Title VI of the Civil Rights Act

         Title VI contains two enforcement mechanisms. See Alexander v. Sandoval, 532 U.S. 275, 280-81, 288-89 (2001); Arthur R. Block, Enforcement of Title VI Compliance Agreements by Third Party Beneficiaries, 18 Harv. C.R.-C.L. L. Rev. 1, 9-10 (1983). First, § 601 contains an implied private cause of action. See Sandoval, 532 U.S. at 279-80. The second enforcement mechanism is in § 602, which, as discussed above, directs federal agencies to "effectuate" § 601's prohibition on discrimination by programs that receive federal funding through regulation, fund termination, and "any other means authorized by law."[6] See id. at 289. Regulations promulgated pursuant to § 602 do not create a private right of action.[7] Id. at 289. Agencies enforce § 601's prohibition on discrimination "either by terminating funding to the 'particular program, or part therof,' that has violated the regulation or 'by any other means authorized by law[.]" Ibid. (quoting 42 U.S.C. § 2000d-1). This system, developed in the 1960s, was well-established at the time the ADA and the Rehabilitation Act were enacted. See Block, supra, 9-10.

         A. Title VI Enforcement Regulations Contemplate Department of Justice Enforcement Suits

         It is helpful to survey the Department of Justice's regulations addressing Title VI enforcement, particularly because Congress, in § 602, specifically directed the Department of Justice (and other agencies) to make those regulations. When the "empowering provision" of a statute directs the agency to regulate as necessary to carry out what Congress intends, "the validity of a regulation promulgated thereunder will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.'" Mourning v. Family Publ'ns Serv., Inc., 411 U.S. 356, 369 (1973) (quoting Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268, 280- 81 (1969)); see also Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984) (deferring to "contemporaneous regulations issued by the agency responsible for implementing a congressional enactment").

         Individuals who believe that they have been subjected to discrimination in violation of Title VI may file a written complaint. See 28 C.F.R. § 42.107(b). Upon receipt of a complaint, the Department is required to "make a prompt investigation," to determine whether a recipient of federal funding has failed to comply with the antidiscrimination requirements. Id. (c).[8] If that investigation demonstrates that the recipient is not in compliance, then the Department must notify the recipient and attempt to resolve the matter by "informal means" if possible. Id. (d)(1).

         If the Department and recipient are unable to resolve the matter, then further action may be taken to induce compliance. Ibid. Such actions may include suspending, terminating, refusing to grant or continue federal financial assistance, or "any other means authorized by law[.]" 28 C.F.R. § 42.108(a). The Department of Justice has characterized those other means as including, but not limited to "[a]ppropriate proceedings brought by the Department to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking," or "[a]ny applicable proceeding under State or local law." Id. (a)(1)-(2). The Department may not take such actions until it has determined that it cannot secure voluntary compliance, the Attorney General has approved the action, and the non-complying party has been notified of its failure to comply and the action to be taken. Id. (d).

         Terminating or refusing to provide federal funding is the "ultimate sanction[.]" 28 C.F.R. § 50.3. To avoid such a drastic step, the Department's guidelines urge agencies to take alternatives to achieve "prompt and full compliance so that needed Federal assistance may commence or continue." Ibid. Such alternatives include administrative action or court enforcement.

Compliance with the nondiscrimination mandate of title VI may often be obtained more promptly by appropriate court action than by hearings and termination of assistance. Possibilities of judicial enforcement include (1) a suit to obtain specific enforcement of assurances, covenants running with federally provided property, statements or compliance or desegregation plans filed pursuant to agency regulations, (2) a suit to enforce compliance with the other titles of the 1964 Act, other Civil Rights Acts, or constitutional or statutory provisions requiring nondiscrimination, and (3) initiation of, or intervention or other participation in, a suit for other relief designed to secure compliance.

Ibid.

         Florida argues that Title VI (and § 505 of the Rehabilitation Act, which we discuss infra in Part III, pp. 23-33) do not authorize federal enforcement actions, and never have. It maintains that the cases the United States relies upon are limited to "specific performance of contractual assurances of compliance obtained from recipients of federal funds."

         It is hardly surprising that many Title VI cases are actions to ensure compliance by recipients of federal funding. Title VI was intended to ensure that "funds of the United States are not used to support racial discrimination." 110 Cong. Rec. 6544 (1964) (statement of Sen. Humphrey). One of the easiest methods of achieving this goal was to require all recipients or seekers of federal financial assistance to execute assurances that they would not discriminate. Such assurances stated that the United States could enforce those agreements in court. See 28 C.F.R. § 42.105(a)(1).

         B. Enforcing Title VI: Any Other Means Authorized By Law

         Even though government Title VI enforcement actions may be brought to ensure a funding recipient's assurances of nondiscrimination, Title VI does not limit "other means authorized by law" solely to such enforcement. United States v. Marion Cty. Sch. Dist., 625 F.2d 607 (5th Cir. 1980), cert. denied, 451 U.S. 910 (1981), illustrates this principle. There, the Fifth Circuit determined that the United States had authority to sue to enforce a school district's contractual assurance to comply with Title VI's prohibition against discrimination. Id. at 617. The court observed that the government's complaint described the suit as one to compel specific performance and enforce Title VI and the Fourteenth Amendment. Id. at 609 n.3. The district court had dismissed the complaint because it concluded that, by establishing alternative means to achieve federal antidiscrimination objectives, Congress nullified the United States's existing right to sue to enforce contracts. Id. at 611-12.

         The court rejected this reasoning, concluding that the Civil Rights Act did not limit enforcement strategies to only those means set out explicitly in the Act. The government has a right to "sue to enforce its contracts . . . as a matter of federal common law without the necessity of a statute." Id. at 611. Congress may, by statute, remove that right, but only if it offers "extremely, even unmistakably clear" evidence of such intent. Ibid. (citing United States v. United Mine Workers, 330 U.S. 258, 272 (1947)).

         The language in § 602 supported this conclusion. It "clearly provide[d] that other means of action, even if not mentioned in the Act, are to be preserved." Id. at 612. The phrase "any other means authorized by law" showed that Congress intended to preserve other methods of enforcement-including filing suit. Id. at 612-13. The Civil Rights Act contained a provision that explicitly preserved the existing authority of the Attorney General, the United States, or ...


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