from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:12-cv-60460-WJZ
JILL PRYOR, BRANCH, and BOGGS, [*] Circuit Judges.
of Contents ANALYSIS
Overview of Title II of the ADA
Remedial Structure of Title VI of the Civil Rights Act
Title VI Enforcement Regulations Contemplate Department of
Justice Enforcement Suits
Enforcing Title VI: Any Other Means Authorized By Law
Section 505 of the Rehabilitation Act
Rehabilitation Act Enforcement Regulations Tracked Title VI
Department of Justice Enforcement of the Rehabilitation Act
Enforcement of Title II of the ADA
Title II Enforcement Regulations Follow Regulations
Promulgated Under the Rehabilitation Act and Title VI
Title II of the ADA Permits Department of Justice Enforcement
Legislative History of Title II Supports the Attorney
General's Authority to File Suit
Department of Justice Has Filed Suit to Enforce Title II
Federalism Principles Do Not Alter Our Conclusion
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" conditions, or who are "medically
fragile, " at risk of unnecessary
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).
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).
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).
2016, the district court sua sponte revisited the
issue 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.
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).
An Overview of Title II of 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).
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
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).
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
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.
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. 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).
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).
§ 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.
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.
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
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
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
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).
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).
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.
The Remedial Structure of Title VI of the Civil Rights
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." See id. at 289.
Regulations promulgated pursuant to § 602 do not create
a private right of action. 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,
Title VI Enforcement Regulations Contemplate Department of
Justice Enforcement Suits
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
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.
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).
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).
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.
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."
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. §
Enforcing Title VI: Any Other Means Authorized By
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.
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)).
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 ...