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

B.

Without explaining why it applies here, the Department asks the Court to apply the Chevron framework to its understanding of Title II. Under Chevron, "[w]hen a court reviews an agency's construction of the statute which it administers, it is confronted with two questions.'' Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). The Court must first determine "whether Congress has directly spoken to the precise question at issue. If the intent is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.'' Id. at 842-43. But ''if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.'' Id. at 843.

Title II grants the Attorney General rulemaking authority to implement the statute's commands. See 42 U.S.C. §12134(a). Pursuant to that authority, the Attorney General has issued substantive regulations, e.g., 28 C.F.R. §35.130(d), as well as one that allows designated agencies to refer complaints of noncompliance to the Attorney General ''with a recommendation for appropriate action.'' 28 C.F.R. §35.174. The Department seeks deference to its belief that "appropriate action'' includes resort to Department-initiated litigation. The fatal defect in the Department's plea for Chevron deference is its failure to distinguish between two distinct concepts: the scope of an agency's authority and the scope of a court's jurisdiction. 

Courts must defer ''to an agency 's interpretation of a statutory ambiguity that concerns the scope of the agency's statutory authority.'' City of Arlington v  FCC, 569 U.S. ___, 133 S. Ct. 1863, 1868 (2013). For example, if the Federal Communications Commission decided that its authority to regulate the rents that utility-pole owners charge for cable-television pole-attachments extended to attachments that provide both television and internet, that decision would respect the agency's own authority. See id. at 1870 (citing National Cable & Telecomm. Ass'n, Inc. v. Gulf Power Co., 534 U.S. 327 (2002)). Chevron undoubtedly applies in that area. Id. However, courts owe no deference to the agency's understanding of the court's jurisdiction. Cases concerning standing, like Newport News, and the normal rules of construction govern here. Whether Title II confers standing on the Department is plainly an inquiry that falls within this latter category.

It bears mentioning at this juncture that "[l]anguage in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.'' Alexander, 523 U.S. at 291 (''it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself."). Put differently, administrative agencies may not confer standing on private plaintiffs by regulation. Nor may they confer standing on themselves. An administrative agency's entitlement to seek judicial relief must come from the statute itself. Newport News, 514 U.S. at 136; Marshall, 584 F.2d at 676 ("the district courts [have] jurisdiction over cases brought by agencies only when 'expressly authorized to sue by Act of Congress.'"). The judicial task is to determine whether the statute confers standing on the plaintiff (and therefore jurisdiction on the court), not to defer to an agency's position on the matter. Indeed, the Department's request for Chevron deference, if credited, would achieve precisely what Alexander prohibits: using silence or ambiguity to create what Congress has not. Chevron does not apply.¹¹

The Court notes that even if Chevron deference were appropriate in this case, it would do little to assist the Department. As section I of this Order shows, the ADA is neither silent nor ambiguous as to the Department's litigation authority. Title I and III provide for it in clear terms, while Title II provides otherwise, choosing instead to give remedial authority to individuals alleging discrimination. In place of that straightforward reading, the Department puts forth an exotic construction to arrive at the following conclusion: ''The question of who is authorized to take action to ensure that the statutes' remedies, procedures, and rights are available in practice to victims of discrimination is a question that is not answered by the language of the statutes.'' DE 226 at 24. As to the suggestion that "person[s] alleging discrimination'' are the ones entitled to take action, the Department responds that the meaning of the word "person'' is simply not important to a proper understanding of Title II. See DE 226 at 23. Even if it were, the Department posits, it does not mean that Title Il's remedies are provided only to those persons. See DE 226 at 24. That is not a form of reasoning with which the Court is familiar (indeed it appears to be the opposite of the expressio unius cannon). On Title Il's failure to mention the Attorney General in the ''Enforcement'' section, the Department argues that its authority under Title II is ''coextensive with the general public, such that no distinction is necessary.'' DE 226 at 21. Titles I and III on the other hand do mention the Attorney General because she has different rights and responsibilities than private parties under those titles. See DE 226 at 22. There is no reason to assume that Congress would be so deliberate in Titles I and III (setting forth not only the ''what,'' but also ''to whom"), yet so reckless in Title II (delineating only the "what"). Chevron requires courts to defer to permissible statutory constructions, not ingenious academic exercises in the conceivable. What the Department has suggested is of the latter ilk.