A couple of housekeeping matters before getting started on the blog of the week. First, I hope everybody had a happy Thanksgiving weekend. We kept ours small with lots of food. Second, I expect one more substantive blog entry for this calendar year, next week. Also, I expect to do my top Understanding ADA blog entries for 2024 that week as well. After December 13 until the shortly after the new year, my schedule is going to be all over the place. So, I am not sure, though I don’t rule it out depending on how things go, if you will see blog entries for the weeks of December 15, 22, and 29. I definitely will have a blog entry for the week of January 6, 2025.
The blog entry of the week is Mathis v. United States Parole Commission decided by the United States District Court for the District of Columbia on September 5, 2024, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the parolees are entitled to a preliminary injunction; court’s reasoning that no private right of action exists under the Rehabilitation Act but that does not exclude equitable relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
I
Facts
Two men on lifetime parole alleged that the federal government forces parolees to navigate lifetime supervision without accommodation for their disabilities. One of the men had congestive heart failure that substantially limits his ability to walk. The other man has trouble walking because of third degree burns and also suffers from mental health conditions of anxiety, depression, and PTSD. Failure to navigate the parole process can lead to technical violations, which can trigger discipline, including jail time. As a result of the lack of accommodations, both men received technical violations and further discipline, including jail time. Further, the Government does not accommodate offenders with disabilities.
For example, CSOSA (the agency responsible for providing actual supervision through qualified supervision officers, for offenders on probation, parole, and supervised release pursuant to the District of Columbia Code. The officers for this agency handle the day-to-day supervision. They ensure offenders comply with their conditions of release, set the location and frequency of check ins, and initially assess supervision violations. Noncompliance responded with graduated sanctions. Sanctions start with supervision requirements but can escalate to recommendations that an arrest warrant be issued and revocation proceeding begun), processes new supervision participants using automatic tools like the “Triage Screener” and the “Dynamic Risk Assessment for Offender Reentry.” These automated assessments generate a baseline supervision plan for each participant, but the assessments do not account for disabilities or propose reasonable accommodations. In fact, CSOSA conducted an “exhaustive search” of its policies stretching back nine years and “yielded no guidance/instruction/etc.” concerning the need to evaluate or reasonably accommodate offenders with disabilities. Relatedly, the Government also lacks any “guidance/instruction/etc. regarding the provision of notice to supervisees” concerning their right to request reasonable accommodations for their disabilities.
According to the Government’s own data, the Parolees experiences are not unique. The Government’s own data reveals that 17% of people in supervision between June 22 and May 2023 had a mental disability, but 30% of people who had discipline sought against them for failing to comply with the supervision processes had mental disabilities. Further, while 10% of all individuals and supervision committed technical violations, the number is actually 18% among the mentally disabled population. The Government conceded that it does not track intellectual, developmental, or physical disabilities.
The two men sued seeking a preliminary injunction enjoining the Government from continuing the alleged discrimination, which the Government opposed and filed a motion to dismiss.
II
Court’s Reasoning That the Parolees are Entitled to a Preliminary Injunction
- To obtain a preliminary injunction, the Parolees must show that they are: 1) likely to succeed on the merits; 2) likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tip in their favor; and 4) that an injunction is in the public interest.
- 504 of the Rehabilitation Act, 29 U.S.C. §794(a), states that no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by an executive agency.
- To prove disability discrimination, Parolees must show that: 1) they have a disability under the Rehabilitation Act; 2) they are otherwise qualified; 3) they were excluded from, denied the benefit of, or subject to discrimination under any program or activity solely by reason of their disability; and 4) the program or activity is carried out by a federal executive agency or with federal funds.
- Parolees are persons with disabilities under the Rehabilitation Act. §504 defines individual with a disability in the same way as the ADA. Both Parolees have physical and mental impairments that substantially limit the major life activities of walking, thinking, concentrating, and interacting with others.
- Parolees are otherwise qualified for supervision. An individual with a disability is qualified for a program, 28 C.F.R. §39.103, if they meet the essential eligibility requirement for participation in, or receipt of benefit from, that program or activity. Since the Parolees have been placed on supervision and are subject to its terms, they meet the essential eligibility requirements established by the Government to participate in supervision.
- Parole and supervised release counts as a program or activity carried out by executive agency within the meaning of §504. The phrase “program or activity,” carries an expansive meaning, which encompasses everything the Federal agency does.
- Parolees have shown that they face obstacles solely because of their disability that impedes their access to a government benefit or program. These obstacles to equal access exists solely by reason of their disabilities.
- The Rehabilitation Act puts the focus on the discrimination itself and not on the consequences it causes. Accordingly, Parolees claims under the Rehabilitation Act ripen the moment their disabilities made it harder for them-compared to their nondisabled counterparts-to participate in the Government’s supervision programs without reasonable accommodation.
III
Court’s Reasoning That No Private Right of Action Exists under the Rehabilitation Act but That Does Not Exclude Equitable Relief
- The Rehabilitation Act bans disability discrimination by three types of actors: 1) by federal agencies in their capacities as employers (federal employer provision); 2) by entities receiving Federal financial assistance to run a program or activity (funding recipient provision); or 3) by any Executive agency that conducts any program or activity (program-conductor provision).
- The Rehabilitation Act lacks a private right of action to enforce the program-conductor provision.
- 505 of the Rehabilitation Act makes no mention at all of programs or activity conducted by any Executive agency. Accordingly, the parties to the litigation agree that the Rehabilitation Act contains no express private right of action to enforce the program-conductor provisions of §504(a).
- The Rehabilitation Act’s structure simply does not allow for a private right of action. Congress only created private rights of action for the employer provision and the recipient funding provision sections of the Rehabilitation Act but not for the program-conductor provisions.
- The amendments to the Rehabilitation Act in 1978 said a lot about private judicial remedies by adding a new section on private judicial remedies but not for the kind of claim brought by the Parolees.
- The weight of circuit authority cuts against an implied private remedy for the program-conductor provision.
- Congress expressly provided two alternative mechanisms to enforce the Rehabilitation Act’s program-conductor provision. Agencies must promulgate regulations per 29 U.S.C. §794(a), as may be necessary to carry out §504(a)’s antidiscrimination mandate. Another approach is that persons aggrieved under the program-conductor provision may bring a claim under the Administrative Procedure Act. Federal courts also have inherent equitable power to enjoin violations of the Rehabilitation Act.
- Courts have inherent equitable power to enjoin the Government from violating the Rehabilitation Act.
- The Supreme Court has long held that federal courts may in some circumstances grant injunctive relief against state officers who were violating, or planning to violate, federal law. That power also extends to violations of federal law by federal officials and operates even in the absence of a statutory cause of action.
- The Rehabilitation Act does not explicitly displace the Court’s equity jurisdiction. Statutes implicitly displace equity jurisdiction in only two circumstances (neither of which applies to this case): 1) where Congress has provided a detailed and exclusive remedial scheme; or 2) where statute contains an alternative remedy and the right at issue is judicially not administrable.
- The Rehabilitation Act boasts no detailed and exclusive remedial scheme. Beyond in-house rulemaking, the Rehabilitation Act provides no remedy at all for the Parolees or other individuals mounting a challenge under the program-conductor provision. As a result, the Rehabilitation Act places no restriction on the relief a court can award.
- No alternative remedy exists but the remedy is judicially administrable, so the second circumstance does not apply either because both must be true for the second circumstance to apply. After all, Federal courts routinely administer antidiscrimination laws, including the Rehabilitation Act.
- Since neither scenario for implicitly displacing the court’s equity jurisdiction exists, the full scope of the Court’s jurisdiction in equity can provide the Parolees a remedy.
- The Government does not raise the issue of sovereign immunity nor could it. The District of Columbia Circuit has repeatedly held that the Administrative Procedure Act waves sovereign immunity for claims against a Federal agency for any suit whether under the Administrative Procedure Act or not. It is also well established that sovereign immunity does not bar suits for specific relief, such as declaratory and injunctive relief against government officials where the alleged challenged actions of the officials are alleged to be beyond statutory authority.
- Parolees will likely suffer irreparable harm absent a preliminary injunction because the Government forces them to comply with supervision conditions on a day-to-day basis without the accommodation they need to have an equal opportunity to succeed.
- The injury here is not the imminent risk of arrest, incarceration, or prolonged supervision of the Parolees, but rather the unequal treatment in the administration of supervision because of their disabilities.
- The denial of equal treatment by itself counts as an injury even if the Parolees ultimately share the same degree of success at their nondisabled counterparts. The Rehabilitation Act does not require any further downstream harms than that. For example, the visually impaired are injured by the inaccessibility of paper currency even in the absence of evidence of their being frequently defrauded. Another example, a blind law school graduate is harmed by the bar exam, even if it is possible that she will pass without reasonable accommodations. So, Parolees imminently faced with the prospect of complying with supervision requirements that do not reasonably accommodate their disabilities, are subject to an irreparable harm.
- The balance of equities favors the Parolees for several reasons: 1) Parolees will be forced to participate in the Government’s supervision programs on an unequal footing just because of their disabilities; 2) the public and the Government have a strong interest in the effective enforcement of the Rehabilitation Act; and 3) Congress designed the Rehabilitation Act to target disability discrimination that was most often the product not of intentional discrimination, but rather of thoughtlessness and indifference-of benign neglect.
- With respect to the remedy, preliminary injunction is granted as to the Parolees, but class certification issues remain to be addressed.
IV
Thoughts/Takeaways
- Being qualified for a program is usually a very straightforward question.
- Program or activity means anything a Federal agency does. We have seen in our blog similar statements made with respect to nonfederal governmental entities, which are subject to Title II of the ADA.
- The focus for the Rehabilitation Act is on the discrimination itself and not on its consequences.
- Outside of the employment situation, any action under the Rehabilitation Act for disability discrimination against the federal government means only equitable remedies (for example, declaratory or injunctive relief), are in play. Attorney fees are still available.
- Sovereign immunity is not in play when it comes to Rehabilitation Act claims against the federal government.
- Unequal treatment of a person with a disability in the administration of the program is an injury.
- This case comes awfully close to saying that the failure to accommodate by itself is an adverse action. Such a conclusion also makes sense in light of Muldrow v. City of St. Louis, which we discussed here.
- It is easy to get it confused, but 29 U.S.C. §794 is a different statutory provision than 29 U.S.C. §794a. The former is §504 of the Rehabilitation Act, while the latter is the remedies provisions for the Rehabilitation Act.
- A review of the docket reveals that the class certification debate for affected people other than the two individuals involved in this decision is currently ongoing.