The Supreme Court has made clear that ''when an agency in its governmental capacity is meant to have standing, Congress says so.'' Director, Office Of Workers' Comp. Programs, Dep't Of Lab. v. Newport News Shipbuilding And Dry Dock Co., 514 U.S. 122, 129 (1995) ("Newport News") (emphasis in original). Title Il's enforcement section provides certain ''remedies, procedures, and rights...to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.'' 42 U.S.C. §12133 (emphasis added). Laid beside the enforcement provisions of Titles I and III of the Americans With Disabilities Act, it is clear that Title II does not confer standing on the Attorney General and that the Department is not a ''person alleging discrimination.''4
The Americans With Disabilities Act ("ADA") sets forth various prohibitions against disability-discrimination. As a whole, Congress's stated intent was ''to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.'' 42 U.S.C. §12101(b)(1). However, to achieve this end, Congress subdivided the ADA into three titles, each with distinct rights and remedial measures. Title I prohibits disability-discrimination in employment. See 42 U.S.C. §§12111-12117. Title II governs the administration of public services provided by governmental entities. See 42 U.S.C. §§12131-12165. And Title III proscribes disability-discrimination in public accommodations provided by private entities. See 42 U.S.C. §§12181-12189.
Unlike Title II, whose enforcement provision speaks only of "person[s] alleging discrimination,'' Titles I and III of the ADA expressly confer standing upon the Attorney General to initiate litigation. Title I provides that ''[t]he powers, remedies and procedures set forth in [Title VII of the Civil Rights Act of 1964] shall be the powers, remedies, and procedures this subchapter provides to the [Equal Employment Opportunity] Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter...concerning employment.'' 42 U.S.C. §12117(a). In turn, Title VII of the Civil Rights Act of 1964 authorizes the Attorney General to seek various forms of judicial relief. See 42 U.S.C. §2000e-5(f) ("the Attorney General  may bring a civil action against such respondent in the appropriate United States district court"); 42 U.S.C. §2000e-6(a) ("the Attorney General may bring a civil action in the appropriate district court of the United States"); 42 U.S.C. §2000e-8(c) ("lf any person required to comply with the provisions of this subsection fails or refuses to do so, the [appropriate] United States district court...shall, upon application of...the Attorney General...have jurisdiction to issue to such person an order requiring him to comply"). Title III of the ADA grants "the Attorney General [authority to] commence a civil action in any appropriate United States district court,'' if she has reasonable cause to believe that "(i) any person or group of persons is engaged in a pattern or practice of discrimination under this subchapter; or (ii) any person or group of persons has been discriminated against and such discrimination raises an issue of general public importance.'' 42 U.S.C. §12188(b)(1)(B).
Where Congress has conferred standing on a particular actor in one section of a statutory scheme, but not in another, its silence must be read to preclude standing. E.g., Marshall v. Gibson's Prod., Inc. Of Plano, 584 F.2d 668, 672-676 (5th Cir. 1978)5; see In re Griffith, 206 F.3d 1389, 1394 (11th Cir. 2000) (en banc) ("where Congress knows how to say something but chooses not to, its silence is controlling"). Newport News controls. There, the Supreme Court held that the Director of the Office of Workers' Compensation ("the Director'') lacked standing to pursue an appeal of the decision of an administrative review board in federal court. Newport News, 514 U.S. at 136. Central to the Court's reasoning was the absence of a provision conferring standing upon the agency head to prosecute appeals, when such a provision was found in two similar statutes. While the Longshore and Harbor Workers Compensation Act (''LHWCA'') solely authorized "any person adversely affected or aggrieved by a final order of the Board'' to seek review in the appropriate court of appeals, 33 U.S.C. §921(c), the Occupational Safety and Health Act of 1970 contained a ''virtually identical'' appeal provision, plus a provision granting the Secretary of Labor authority to appeal. Id. at 130. Likewise, the Black Lung Benefits Act of 1973 contained a provision notably absent from the LHWCA: one making the Secretary of Labor "a party in any proceeding relative to a claim for benefits.'' Id. at 135 (quoting 30 U.S.C. §932(k)). Faced with these measures, and noting that ''[t]he withholding of agency authority is as significant as the granting of it,'' the Supreme Court concluded that the Director had no standing to proceed in federal court. Id. at 136.
Congress's grant of litigation authority to the Attorney General in Titles I and III of the ADA--juxtaposed against its omission in Title Il--compels the same result. As in Newport News, ''the normal conclusion one would derive from putting these statutes side by side is this: When, in a legislative scheme of this sort, Congress wants the [Attorney General] to have standing, it says so." Id. at 135. And as in Newport News, the absence of Congress's "say so" precludes the Department from suing under Title II.
The Department deigns Newport News to be little more than a quirk of administrative law. Any fair reading of the case refutes this contention--for Newport News dealt not with the intricacies of administrative procedure, but the critical bridge between administrative proceedings and the judiciary: standing. Were there any doubt, the Supreme Court cited two provisions of Title VII of the Civil Rights Act of 1964 expressly authorizing civil litigation by agencies to explain why the Director lacked standing. Id. at 130. Notably, the very provisions cited by the Newport News Court are the civil enforcement remedies incorporated into Title I of the ADA. See id. (citing 42 U.S.C. §§2000e-5(f) & 2000e-4(g)). Newport News does not govern administrative appeals as such, but rather an agency's standing to proceed in federal court.
It is also apparent that the Department is not a "person alleging discrimination.'' 42 U.S.C. §12133. There is a ''longstanding interpretive presumption that 'person' does not include the sovereign.'' Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780 (2000). This principle is not limited merely to the regulatory sweep of a statute, but extends also to those provisions defining the actors who may be plaintiffs under the statute, those who have standing. Compare id. at 787-88 (finding that a state is not a ''person'' subject to liability under the False Claims Act) with United States v. Cooper Corp., 312 U.S. 600, 606 (1941) (holding that the United States is not a "person'' authorized to bring an action under the Sherman Act). Thus, except upon an affirmative showing of statutory intent to the contrary, "'person' does not include the sovereign, and statutes employing the word are ordinarily construed to exclude it.'' Int'l Primate Prot. League v. Admin. of Tulane Educ. Fund, 500 U.S. 72, 82-83 (1991). No such showing can be made under the ADA. Title I of the ADA extends remedial authority, including authority to commence civil suit, to ''the [Equal Employment Opportunity] Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability.'' 42 U.S.C. §12117(a). Title II grants remedial authority only to ''person[s] alleging discrimination.'' 42 U.S.C. §12133. The implication is clear: if the Attorney General is not a ''person'' under Title I, she is not a ''person'' under Title II either.
The Department posits that ''whether the Attorney General is a person under the statute is simply beside the point,'' and that the Congressional judgment that Title Il's remedies shall be ''provide[d] to any person alleging discrimination'' does not mean that those remedies are provided only to those persons. DE 226 at 23-24. To the contrary: the language Congress chose means precisely that, and who is a person under the statute is precisely the point. Persons alleging discrimination are not, as the Department suggests, merely intended beneficiaries of the statute. Qualified individuals with a disability are the intended beneficiaries; private parties alleging discrimination are the mechanism by which Title Il's substantive guarantees are enforced. The Court is not free to ignore the statutory text in the manner the Department suggests.
Three well-established support the Court's reading principles of interpretation further of the ADA. First is the "normal rule of statutory interpretation that identical words used in different parts of the same act are intended to have the same meaning.'' Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995) (quoting Department of Revenue of Ore. v. ACF Indus., Inc., 510 U.S. 332, 342 (1994)); see also Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980) ("we cannot accept respondent's position without unreasonably giving the word 'filed' two different meanings in the same section of the statute"). Next is the surplusage canon, the ''cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant.'' Kungys v. United States, 485 U.S. 759, 778 (1988); see also Aspley v. Murphy, 52 F. 570, 574 (5th Cir. 1892) (stating that courts must "lean in favor of a construction which will render every word operative rather than one which may make some idle and nugatory"). If the Attorney General were a "person alleging discrimination'' under Title II, then reference to her in Title I would be redundant. Or the term ''person'' would have different meanings in Titles I and II. Nonsense. In both Title I and Title II of the ADA, the Attorney General is not a ''person alleging discrimination.''
Lastly, the negative implication canon, or expressio unius, supports this construction. That is, ''[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.'' Alexander v. Sandoval, 523 U.S. 275, 290 (2001). By authorizing suits by individuals, Congress intended to bar administrative agencies, like the Department, from enforcement by litigation.
4 For ease of exposition, the Court uses the terms Attorney General and the Department interchangeably. Cf. 28 U.S.C. §506 ("The Attorney General is the head of the Department of Justice''); 28 U.S.C. §516 ("the conduct of litigation in which the United States, an agency, or officer thereof is a party . . . is reserved to officers of the Department of Justice, under the direction of the Attorney General'').
5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1980.
The structure of Title Il's remedial scheme similarly reveals no authority for the Department to commence civil litigation. That remedial scheme incorporates remedies available under §505 of the Rehabilitation Act of 1973 ("§505"), 29 U.S.C. §794a, and makes them available to ''any person alleging discrimination'' under Title II. 42 U.S.C. §12133; see Olmstead, 527 U.S. at 590. Section 504 of the Rehabilitation Act, which §505 enforces, prohibits disability-discrimination by federally funded programs or activities. See 29 U.S.C. §794(a) (2014). Section 505 provides that ''[t]he remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964...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..." 29 U.S.C. §794a(a)(2). Ultimately, Title VI of the Civil Rights Act of 1964 ("Title VI''), which prohibits race-discrimination by federally funded programs or activities, provides:
|Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance... Compliance with any requirement adopted pursuant to this section may be affected (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..."|
42 U.S.C. §2000d-1.
The State argues that no statutory cause of action for Attorney General enforcement exists under Title VI, and therefore none exists under Title II. The State observes that, similar to the ADA's structure, Titles II, III, IV, and VII of the Civil Rights Act of 1964 expressly authorize suit by the Attorney General, but Title VI does not.6 Title VI instead allows enforcement of conditions attached to federal funding by "any other means authorized by law''--a phrase that naturally points to extrinsic sources of enforcement authority. Hence, according to the State, suits by the Attorney General for Title VI violations are typically actions for breach of contract. See Guardians Ass'n v. Civil Serv. Comm'n of N.Y.C., 463 U.S. 582, 630 n. 24 (1983) ("the Federal Government can always sue any recipient who fails to comply with the terms of the grant agreement"); Cannon v. Univ. of Chi., 441 U.S. 677, 772 (1979) (White, J., dissenting) (''The 'other means' provisions of [Title VI] include agency suits to enforce contractual antidiscrimination provisions"); United States v. Marion Cnty. Sch. Dist., 625 F.2d 607, 609-11 & 617 (5th Cir. 1980) ("we conclude that the United States is entitled to sue to enforce contractual assurances of compliance with Title Vl's prohibition against discrimination in the operation of federally funded schools''); see also Arthur R. Block, Enforcement Of Title VI Compliance Agreement By Third Party Beneficiaries, 18 Harv. C.R.-C.L. L. Rev. 9 n.24 (1983) (noting that the Department has enforced Title VI ''under two legal authorizations'': suits under Title IV of the Civil Rights Act of 1964 and actions for "specific performance of contractual assurances of non-discrimination made by fund recipients").7 Because Title II is not tied to federal funding, any cause of action for breach of a contract or covenant running with that funding was not carried over to Title II.
Although the State's logic is availing, there is a simpler explanation: Congress did not incorporate all "remedies, procedures, and rights'' available under Title Vl--it incorporated only those ''remedies, procedures, and rights'' that may be exercised by a ''person alleging discrimination.'' 42 U.S.C. §12133. The Department rightly concedes that Title II, by its nature, incorporates less than the full panoply of Title VI procedures and remedies.8 For example, the power to terminate federal funding under Title VI has no foothold in Title II . See 42 U.S.C. §2000d-1. It is also beyond dispute that Title VI, the Rehabilitation Act, and Title II each authorize suit by private individuals. The Supreme Court has consistently held that Title VI allows private individuals to sue for both injunctive relief and damages. See Cannon, 441 U.S. 677 (embracing the existence of a private right of action under Title VI); Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60 (1992) (finding that §2000d-7 of Title VI, which abrogates states' sovereign immunity, validates Cannon's holding); Alexander, 532 U.S. at 280. Title II borrows that private right of action from §505, which in turn incorporates it from Title VI. See Barnes v. Gorman, 536 U.S. 181, 186 (2002) ("Rehabilitation Act [remedies] are coextensive with the remedies available in a private cause of action brought under Title VI''); Olmstead, 527 U.S. at 591 n.5 (''a person alleging discrimination on the basis of disability in violation of Title II may seek to enforce its provisions by commencing a private lawsuit''). Among the remedies, procedures, and rights available under Title VI and §505, this private right of action is the only such procedure that could be "provide[d] to'' a ''person alleging discrimination.'' 42 U.S.C . §12133.
Moreover, the ADA's structure as a whole supports the conclusion that Title II incorporates only enforcement rights that may be exercised by private parties. Again, Title I of the ADA incorporates ''powers, remedies, and procedures'' available under Title VII of the Civil Rights Act of 1964. Cognizant that Title VII of the Civil Rights Act of 1964 bestows specific rights on private parties, the Equal Employment Opportunity Commission, and the Attorney General, Congress was careful to ensure that Title I of the ADA conferred those rights on ''the Commission, the Attorney General, [and] any person alleging discrimination'' by name. 42 U.S.C. §12117(a). In Title III of the ADA, Congress incorporated certain "remedies and procedures'' from Title II of the Civil Rights Act of 1964 and provided them to "any person who is being subjected to discrimination on the basis of disability...'' 42 U.S.C. 12188(a). 42 U.S.C. §2000a-3(a), which Title III incorporates, only allows the Attorney General to intervene in litigation at the court's discretion. 42 U.S.C. §2000a-3(a). Title III of the ADA expands on that limited authority in a section titled "Enforcement by Attorney General,'' which details an investigatory obligation and an authorization to commence civil suit. 42 U.S.C. §12188(b). As does Title I, Title III deliberately sets forth the who and how of its remedial scheme.
In light of the judicious manner in which Title I and III are crafted, Title Il's failure to name the Attorney General or her rights under Title VI can hardly be seen as an after-thought. And the decision to limit enforcement of Title II to suits by private parties can hardly be seen as surprising. Title II reaches into many areas traditionally regulated by states. It thereby imposes significant federalism costs, subjecting state-run public services to federal judicial review. See Olmstead, 527 U.S. at 610 (Kennedy, J., concurring) ("This danger is in addition to the federalism costs inherent in referring state decisions regarding the administration and treatment programs and the allocation of resources to the reviewing authority of the federal courts."); id. at 624 (Thomas, J., dissenting) ("the Majority's approach imposes significant federalism costs, directing States how to make decisions about the delivery of public services."). The language employed in Title II avoids compounding those federalism costs by requiring that such judicial review be at the behest of the recipients of those public services, not the federal government.
6 Compare 42 U.S.C. §§2000a-5 (Title II), 2000b (Title III), 2000c-6 (Title IV), 2000e-5(f) & 2000e-6 (Title VII) with 42 U.S.C. §2000d-1 (Title VI).
7 The Department disagrees and suggests that, in the absence of a contractual assurance, its enforcement authority derives directly from Title VI. Cf. Barnes v. Gorman, 536 U.S. 181, 189 n.3 (2002) ("We do not imply, for example, that suits under Spending Clause legislation are suits in contract"). Whether the "other means'' provision authorizes suit directly under Title VI, or merely authorizes suit for breach of contract or violations of other titles of the Civil Rights Act of 1964 appears to be a question of first impression. Indeed, the former Fifth Circuit expressly avoided the issue in Marion County, 625 F.2d at 617. Resolution of this issue was perhaps unnecessary in the context of Title VI because the guarantees of Title VI would be coextensive with the terms and conditions of a Title VI funding grant. However, as Justice Stevens presciently observed in his concurrence in Barnes, there is a marked disconnect between Title II, which was enacted pursuant to §5 of the Fourteenth Amendment, and §505 and Title VI, which were enacted pursuant to the Spending Clause. See Barnes, 536 U.S. at 192 (stating that Spending Clause cases ''say  nothing about the remedy that might be appropriate for  a breach'' of Title II). The Court need not resolve that issue in this case, however, because any enforcement rights the Department may have under Title VI, whether in contract or by statute, were not incorporated into Title II. Title II only ''provides" remedial authority "to" private parties who allege discrimination. 42 U.S.C. §12133.
8 The Supreme Court has, in passing, mentioned that Title Il's remedies are "the same as'' those in §505. Barnes, 536 U.S. at 189 n.3 . However, Barnes holds only that, having incorporated a private right of action from Title VI, Title Il's private right of action would provide the same remedies as Title Vl's (i.e., no punitive damages). Id. at 185. Whether Title II has in fact incorporated "a 'cause of action' is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive.'' Davis v. Passman, 442 U.S. 228, 239 (1979). The Barnes Court did not venture to say that the administrative procedures and causes of action arising under Title VI are coextensive with those available under Title II. Nor could it have.