United States of America v. State of Florida - Final Order of Dismissal

II.

A.

Cognizant that Title II grants no explicit authority to commence civil litigation, the Department contends that Title II contains an embedded grant of enforcement authority. According to the Department, three aspects of Title II reveal this implied right of action.

The Department first contends that §12134(b) of Title II ''expressly adopted the Rehabilitation Act's detailed enforcement procedures and remedies, including the authority for the Department of Justice to seek remedies through litigation.'' DE 226, at 15. Section 12134(b) does nothing of the sort. That section directs the Attorney General to promulgate regulations that implement Title II, with an instruction that they be ''consistent with'' the Department of Health, Education, and Welfare 's regulations that implement the Rehabilitation Act . 42 U.S.C. §12134(b). This consistency mandate ''does not incorporate the Rehabilitation Act's regulations into the ADA or direct the Attorney General to promulgate identical regulations for Title II.'' Elwell v. Okla. ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1313 (10th Cir. 2012). "It simply says that the Attorney General's regulations must be 'consistent'--that is, compatible or not contradictory--with those under the Rehabilitation Act .'' Id.; see also Zimmerman v. Or. Dep't of Justice, 170 F.2d 1169, 1179 (9th Cir. 1999) ("42 U.S.C. §12134(b) does not suggest that Congress intended to incorporate any provisions from the Rehabilitation Act into Title II.'') Section 12134(a) authorizes the Attorney General to define the substantive standards for discrimination under Title II. Because Title II extends the Rehabilitation Act's prohibition against disability-discrimination beyond federal funding recipients to all public entities, the consistency mandate merely ensures that Title Il's substantive standards are analogous to those under the Rehabilitation Act.⁹ Section 12134(b) has nothing to say about the Rehabilitation Act's procedures or remedies, and it certainly does not go so far as to adopt them.

Next, the Department argues that the ADA's attorney's fee provision, which allows a court to award attorney's fees to a prevailing party ''other than the United States,'' indicates that it may bring suit under Title II. 42 U.S.C. §12205. The Department's argument overlooks a critical aspect of that provision, which appears in the "Miscellaneous Provisions'' subchapter applicable to Titles I, II, and III of the ADA. Specifically, §12205 allows prevailing-party attorney's fees ''[i]n any action or administrative proceeding commenced pursuant to this chapter..." Id. As this Order has explained exhaustively, Titles I and III of the ADA contain explicit authority for the Attorney General to bring suit. Hence, the fact that the United States is not allowed attorney's fees if it prevails in an action under Title I or III of the ADA lends no credence to the Department's argument that it may sue to enforce Title II.

Lastly, the Department asserts that absurd results will follow if this implied right of action to enforce Title II is not recognized. When this argument is unpacked, however, it becomes apparent that the Department's premonitions are entirely misplaced. The Department first complains that ''without recourse to judicial remedies, the federal government would have no effective ability to bring about compliance..." DE 226 at 16. That statement is question-begging at its purest; it simply assumes the answer to the issue presented: whether the federal government is the proper party to effect compliance with Title II. The Department continues that if it is not able to sue to enforce Title II, the public entities subject to it will have free reign to disregard its commands. Not so. Like many other civil rights statutes, Title II employs the concept of a ''private attorney general''--private parties, empowered by a fee-shifting provision, are entitled to effect compliance through litigation.¹⁰ See, Fox v. Vice, 563 U.S. 826, 833 (2011) ("When a plaintiff succeeds in remedying a civil rights violation, we have stated, he serves 'as a private attorney general, vindicating a policy that Congress considered of the highest priority'' and ''[h]e therefore 'should ordinarily recover an attorney's fee' from the defendant"). The decision whether to utilize private enforcement or public enforcement lies with Congress alone, for it is the proper body to weigh the benefits and burdens associated with each regime. As the State keenly observes, ''there is nothing absurd in the supposition that Congress might elect to withhold from a federal agency a boundless discretion to sue state and local governments.'' DE 230 at 15.

As it turns out, the Department's concern that it will not be able to commence litigation is at most a half-truth. The Civil Rights of Institutionalized Persons Act, 42 U.S.C. §1997, et seq., ("CRIPA'') authorizes the Attorney General to bring suit whenever she has reasonable cause to believe that persons residing in an institution have been deprived of ''any of the rights, privileges, or immunities secured and protected by the Constitution or laws of the United States..." 42 U.S.C. §1997a(a). CRIPA handcuffs that authority, however, by requiring that the conditions resulting in such deprivation be "egregious or flagrant,'' that such deprivation be part of a ''pattern or practice,'' and that the institutionalized persons have "suffered grievous harm.'' Id. The Attorney General herself must ''personally sign any complaint filed pursuant to'' CRIPA. 42 U.S.C. §1997a(c). One of the ADA's core concerns is the treatment of disabled persons confined in institutions. See 42 U.S.C. §§12101(a)(2),(3),& (5); Olmstead, 527 U.S. at 589 n.1. Not surprisingly, then, the Department has used CRIPA as a vehicle to assert Title II violations in the past. E.g., United States v. Arkansas, Case No. 09-00033-CIV-HOLMES (E.D. Ark. 2009). Recognizing the authority the Department seeks in this case would, in effect, allow an end-run around CRIPA's stringent requirements. 

The final absurd result the Department expounds is an inability to fulfill the ADA's statement of purpose. One purpose of the ADA is ''to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities.'' 42 U.S.C. §12101(b)(3). Without access to a litigation remedy, the Department contends that this general statement of purpose will ring hollow. Of course, a statute's purpose may not be used to ''add features that will achieve the statutory 'purpose' more effectively.'' Newport News, 514 U.S. at 136. Moreover, "[e]very statute proposes, not only to achieve certain ends, but also to achieve them by particular means..." Id. In Titles I and III of the ADA, those means include litigation by the Attorney General. Title II does not elect that option. Instead, the Attorney General was empowered to set the substantive standards that define disability-discrimination under Title II. See 42 U.S.C. §12134(a). Few roles could be more central to a statute's enforcement. Apparently malcontent with that duty, the Department demands not only to draw up the plays, but to carry the ball as well. Newport News aptly resolves the matter: ''The withholding of agency authority is as significant as the granting of it, and we have no right to play favorites between the two.'' Newport News, 514 U.S. at 136; cf. Alexander, 532 U.S. at 287 ("Raising up causes of action where a statute has not created them may be a proper function for commonlaw courts, but not for federal tribunals."); Cannon, 441 U.S. at 730 (Powell, J., dissenting) (noting that requests for implied causes of action are an "invitation to federal courts to legislate causes of action not authorized by Congress,'' which ''cannot be squared with the doctrine of separation of powers.").