LIfe AFter Garrett: Enforcing the ADA and SEction 504 Against States, and State Officials
Keywords
In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1997), the Court declared that Congress' power to abrogate 11th Amendment immunity of States to suits in federal courts is limited to cases arising under the enabling clause of the Fourteenth Amendment. Congress had no such power under the Commerce Clause.
The U.S. Supreme Court has now ruled by a 5-4 vote that Congress exceeded its legislative powers under clause 5 of the Fourteenth Amendment in providing for damages against state governments for violation of the employment provisions of Title I of the ADA. Board of Trustees of the Univ. of Alabama v. Garrett, 121 S. Ct. 955 (2001). As a result, the Eleventh Amendment to the Constitution bars recovery of money damages by private parties against the state for violation of the employment discrimination provisions of Title I.
The immediate effect of the decision is limited. It bars a Title I suit against a state or state agency named as defendant, and bars retroactive monetary relief under title I against state officials sued in their official capacity. Edelman v. Jordan, 415 U.S. 651 (1974). Whether these limitations will apply to suits under Title II remains to be seen.
This memo is based on a worst case scenario, namely that the limitations imposed on Title I will also apply to Title II. What this memo demonstrates is that although the ADA is wounded by Garrett in terms of enforcement against states, it is not dead. There is a major role still available to private federal court suits (and state court suits as well) to enforce federal prohibitions on discrimination based on disability against states.
B. Abrogation under the Federal Spending Power: Section 504 of the Rehabilitation Act of 1974.
In most respects, the substantive requirements of Section 504, 29 U.S.C. § 794, are the same as that of the ADA Title II applicable to discrimination by the states. Compare 45 C.F.R. Part 84 (USDHHS 504 regulations) with 28 C.F.R. Part 35 (ADA). Section 504 applies only to programs that are recipients of federal funds. However, almost all state agencies receiving federal funds should be covered by Section 504. Under proposed regulations (which state they merely reflect existing law), 65 F. Reg. 64194 (Oct. 26, 2000), “program” is given a fairly broad definition, so all activities of a state agency receiving any federal funds would be covered by Section 504. The preamble to the proposed regulations offers by way of example that a if state health agency receives any federal funding, all of its operations are subject to the anti-discrimination requirements. Id. at 64195. These proposed regulations could be changed by the new Administration.
Section 504, is enacted pursuant to the Spending Clause. Congress has expressly abrogated state immunity for Section 504 claims. 42 U.S.C. § 2000d-7. College Savings Bank v. Florida Postsecondary Education Expense Board, 527 U.S. 666 (1999) reaffirmed that Congress, in exercise of its spending powers, may condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds may entail an agreement to the actions. But the mere receipt of federal funds cannot establish that a state has consented to suit in federal court. Seminole, 116 S. Ct. at 1125. There must be a clear warning to the states of the consequences of accepting the money. Even in such a case, if the financial inducement offered by Congress is so coercive as to pass the point at which pressure turns into compulsion, the abrogation of immunity exceeds Congressional power. College Savings, 527 U.S. at 686-87.
At least five Circuit Courts of Appeal have held that Section 504 of the Rehabilitation Act constitutionally abrogates state 11th Amendment immunity. See Stanley v. Litscher, 213 F. 3d 340 (7th Cir. 2000), and cases cited therein. The Eighth Circuit initially had held that Section 504 abrogation exceeds Congressional authority. Bradley v. Atkins School District, 189 F. 3d 745, opinion vacated and rehearing en banc granted sub nom Jim C. v. Arkansas Dept. of Education, 197 F. 3d 958 (8th Cir. 1999). On rehearing, the Eighth Circuit en banc held (7-4) that the waiver of sovereign immunity applicable to Section 504, 42 U.S.C. § 2000d-7, is a constitutional exercise of the federal Spending Power. Jim C. v. United States, 235 F. 3d 1079 (8th Cir. 2000). The potential loss of federal funds came to $250 million, 12 percent of the State’s annual education budget. The court described replacing these funds as “politically painful, but we cannot say that it compels Arkansas’s choice.” This decision is very significant, because it is likely that with the exception of the Medicaid program, few, if any, federal grant programs exceed the amount of aid to education.
On the issue of at what level withholding of federal funds is coercive, see State of North Carolina v. Califano, 445 F. Supp. 532 (D. N. Car. 1978), aff'd without opinion, 435 U.S. 962, upholding a federal law requiring states to adopt a federally mandated health planning program as a condition of receiving federal public health funds. The state argued the program was coercive because the state Supreme Court had held the state's health planning statute unconstitutional under the state constitution and the state constitution would have to be amended to meet the federal requirement. The state stood to lose funding for some 45 public health programs, amounting to 50 million in 1977 dollars. The court compared the potential loss to the entire state budget of 3 billion dollars rather than to the state's health budget in finding the federal requirement was not coercive.
Other cases upholding waivers under the Spending Clause include:
- Litman v. George Mason University, 186 F. 3d 544 (4th Cir. 1999), cert. den. 120 S.Ct. 1220 (2000), upholding waiver of immunity in Title IX of the Education Amendments of 1972, banning discrimination based on sex in education.
- Sandoval v. Hagan, 197 F. 3d 484 (11th Cir. 1999), reh. den. 211 F. 3d 1331 (11th Cir. 2000), cert. granted sub nom Alexander v. Sandoval, 121 S. Ct. 28 (2000), upholding under the Spending Clause waiver of immunity in Title VI of the Civil Rights Act, banning discrimination based on race.
- Bradley v. Atkins School District, supra, holding that the waiver of immunity provision in the Individual with Disabilities Education Act is valid under the spending powers of Congress.
If sovereign immunity is waived in 504 cases, a private plaintiff could sue the state as a defendant and could recover damages to the extent they are allowed in 504 cases and obtain injunctive and other relief. It might not be advisable to bring damage claims for employment discrimination cases under 504, even though the regulations apply to employment discrimination. 45 C.F.R. § 84.11 et seq. Courts may be reluctant to impose damage remedies against states for the very same conduct for which the Supreme Court rejected damage claims in Garrett. To reach a conclusion barring damages in employment cases, courts could use language which will impact on damage recoveries for other violations of 504.
C. Prospective Relief under Ex Parte Young
Since Ex parte Young, 28 S. Ct. 441 (1908), prospective relief in federal courts has been available to enforce federal rights by suing a state official, usually the official in charge of the agency responsible for the violation. Even if a federal statute was not authorized by the 14th Amendment, its substantive provisions may be valid under other Congressional authority, such as the Commerce Clause, Maryland v. Wirtz, 392 U.S. 183 (1968), and enforceable prospectively against the States under Young. Such should be the case with the ADA and Section 504.
The Supreme Court reaffirmed Ex parte Young in Seminole, supra, and in its subsequent state immunity decisions. Indeed, the availability of the Young remedy is the majority’s answer to the argument that states will be free to disregard federal law. In Seminole, the majority states that "[t]his argument wholly disregards other methods of ensuring the States’ compliance with federal law; ...an individual can bring suit against a state officer in order to ensure that the officer’s conduct is in compliance with federal law, see, e.g., Ex parte Young...”.
More importantly in regards to the ADA, the majority in Garrett expressly approves use of Young in enforcing Title I for injunctive relief against employment discrimination:
"Our holding here that Congress did not validly abrogate the State’s sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young . . .”
Garrett. n.9.
Cases under the Young procedure may be brought in two basic formats. First, suits for prospective relief may be brought directly under a federal statute which creates a private cause of action. The Cone Corporation v. Florida Dept. Transportation, 921 F. 2d 1190,1201 (11th Cir.), cert. den. 500 U.S. 942(1991). Second, suits for prospective relief are brought under 42 U.S.C. § 1983, which creates a federal cause of action for violation of “rights” secured by the federal laws and Constitution. Rosado v. Wyman, 397 U.S. 397 (1970); see R. Capistrano, Enforcing Federal Rights: The Law of Section 1983, 33 Clearinghouse Rev. 217 (1999).
Because Title II of the ADA refers only to “public entities,” the courts were split prior to Garrett on whether suits may be brought to enforce Title II against individual state officials, even in their official capacity. See conflicting decisions under the ADA, e.g., Walker v. Snyder, 213 F. 3d 344, (7th Cir. 2000), cert. den. sub nom United States v. Snyder, 2001 WL 178198 (Feb. 26, 2001); Nelson v. Miller, 170 F. 3d 641 (6th Cir. 1999); Yeskey v. Commonwealth of Pennsylvania, 76 F. Supp. 2d 572, 575 (M.D. Pa. 1999), Niece v. Fitzner, 922 F. Supp. 1208, 1218-19 (E.D. Mich. 1996) and Porter v. Ellis, 117 F. Supp. 2d 651 (W.D. Mich. 2000). These cases require close analysis, as some are damage actions to which Young is inapplicable, but the decision does not necessarily make the distinction. In Lewis v. New Mexico Department of Health, 94 F. Supp. 2d 1217 (D. N.M. 2000), the court ruled that a private right of action could not be brought under Title II against state officials, but that a claim against them could be brought to enforce Title II through 42 U.S.C. § 1983. Id. at 1230.
Footnote 9 of the Garrett decision should put on these issues, so that injunctions against ADA violations can be obtained against state officials through the Young process. The footnote makes clear that injunctive relief is available to enforce Title I, and there is no reason that the same should not apply to Title II suits against a state official to enjoin discrimination based on disability in a service, program or activity of a state or state agency, even if Garrett were applied to Title II. States argue that Title II imposes obligations and liability only on the governmental entity, so that no suit can be brought against a state official under Title II. But a similar situation prevails in Title I, where the majority of courts hold that a suit can only be brought against the employing entity, and not against executive or supervisory employees. See, e.g., EEOC v. AIC Security Investigations, Ltd., 55 F. 3d 1276 (7th Cir. 1995) (sole stockholder and CEO of corporate employer not liable under Title I.). Yet, the majority opinion in Garrett has no problem with applying the fiction of Young, that the suit against a state official in her/his official capacity is not against the state for Eleventh Amendment purposes, while accepting the reality that the suit is not against the official.
The Garrett footnote may also be helpful with another possible barrier to enforcement of Title II. In Seminole Tribe, 517 U.S. at 1132-33, the Court held that where Congress has created a comprehensive scheme with a limited remedy for the enforcement of a particular federal right, the courts may refuse to "supplement" that scheme with judicial enforcement under Ex parte Young . In Seminole, the Court found that the system of mandated conferences and mediation, culminating in a suit against the state with very limited remedies authorized, was a sufficient alternative scheme to indicate that Congress did not intend suits under the Ex parte Young theory. The remedy under the statute before the Court in Seminole effectively limited a remedy in a suit against a state under the statute to transfer of decision-making power from the state to the federal government. It did not permit any injunctive relief or damages.
Under Garrett footnote 9, the remedial scheme in Title I does not bar a suit to enforce that Title. The same should hold true for Title II. The statutory enforcement process in Title I requires exhaustion of administrative remedies before suit may be brought. 42 U.S.C. § 12117(a), which adopts the procedures of Title VII of the Civil Rights Act of1964. No exhaustion is required before bringing suit under Title II. Smith v. Barton, supra; Noland v. Wheatley, 835 F. Supp. 476 (N.D. Ind. 1993).
(A memorandum on the effect of alternative statutory remedies on Young suits will be posted on this web site in March 2001)
D. Waiver of Immunity by Litigation
In certain circumstances, if a state defendant appears and litigates without raising a sovereign immunity defense, it may be held to have waived the defense. Where the state agency litigated the case, including discovery, and did not raise the issue of sovereign immunity until the day of trial, the Ninth Circuit held that the state agency waived any claim to immunity. Hill v. Blind Industries and Services of Maryland, 179 F. 3d 754 (9th Cir. 1999). Other courts have held that a sovereign immunity claim can be raised at almost any stage of the case. Cisneros v. Wilson, 226 F. 3d 1113 (10th Cir. 2000). In a case which was decided on other grounds, the Supreme Court stated in a footnote that “the Eleventh Amendment is jurisdictional in the sense that it is a limitation of the federal court’s judicial power, and therefore can be raised at any state of the proceedings. . .” Calderon v. Ashmus, 523 U.S. 740, 745, n. 2. Commenting on this statement, the 5th Circuit recognized that a state may waive immunity other than by an express renunciation, noting that[c]ourts have found waiver in two general varieties of cases: where the state asserted claims of its own or evidenced an intent to defend the suit against it on the merits. The common thread among these cases is that the state cannot simultaneously proceed past the motion and answer stage to the merits and hold back an immunity defense.
Neinast v. State of Texas, 217 F. 3d 275, 279, reh. den. 228 F. 3d. 275 (5th Cir. 2000), cert. denied, 121 S.Ct. 1188 (2001).
E. Interlocutory Appeals
One major factor to consider in naming defendants in federal litigation who may assert a claim to sovereign immunity is that in federal court there is a right by a state or state official claiming immunity to an interlocutory appeal if the District Court rejects the immunity defense. Mitchell v. Forsyth, 472 U.S. 511 (1985). The general rule is that the filing of the appeal ousts the District Court of jurisdiction as to those defendants that are appealing on immunity grounds, at least as to claims covered by the immunity defense. Chuman v. Wright, 960 F. 2d 104 (9th Cir. 1992). If this occurs, proceedings against the appealing defendants come to a halt and the District Court has discretion to stay or limit proceedings against other defendants. See e.g., Root v. Liberty Emergency Physicians, Inc., 68 F. Supp 1d 1086 (W.D. Mo. 1999) (staying all proceedings against all parties pending the immunity appeal of one party).There is one exception recognized in many Circuits. See Chuman v. Wright, supra. If the District Court certifies in writing that immunity appeal is frivolous, proceedings in the district court may continue. The Supreme Court has approved this procedure. Behrens v. Pelletier, 516 U.S. 299, 310-11 (1996). The interlocutory appeal nonetheless proceeds to decision in the Court of Appeals.
As a result of Garrett n.9 discussed above, it may be possible to argue that an appeal by a state in a Ex parte Young case for prospective relief only against state officials is frivolous.
F. Suits in State Courts.
In Alden v. Maine, 119 S. Ct. 2240 (1999), the Court held that under the structure of the federal Constitution and historic principles of sovereign immunity, Congress could not authorize suits against states in state courts on federal claims without the consent of the state to be sued, except when Congress acts pursuant to its Fourteenth Amendment powers (and possibly its spending powers). Since the decision rests on Eleventh Amendment jurisprudence, it would seem that the corollary applies and that Congress could abrogate state immunity in state courts against federal claims under the Fourteenth Amendment and the Spending Clause. The decision does so indicate as to the 14th Amendment. Id at 2267. As to the Spending Clause, the Court makes no reference to it in the opinion, although it does frame the holding in terms of the power of Congress under Article I of the Constitution to abrogate immunity in state courts. Id at 2246. The Spending Clause is included in Article I. Thus, the application of the Spending Clause to abrogation in state courts remains to be determined definitively.Another route to state court enforcement of the ADA and 504 against a state may be that indicated by the Seventh Circuit, which stated that if a state opens its courts to suits against the state on state law claims comparable to federal claims against the state, it may not exclude claims based on the federal law. Erickson v. Board of Governors of State Colleges and Universities for Northeastern Illinois University, 207 F. 3d 945 (7th Cir. 2000), cert. den. sub nom United States v. Board of Governors, 2001 WL 178191 (Feb. 26, 2001). Almost all states have laws against discrimination based on disability and many allow such laws to be enforced in suits against the state or state agencies.
Revised March 12, 2001