Before we get started on the blog entry of the day, a couple of housekeeping matters are in order. First, you may be wondering why my website/blog site and my professional email went down last week. The company that was hosting my website was bought out by another company, and there were some mechanical things that had to happen in order to make the switch. It was my understanding that I had some more time to do those things, but things moved faster than I thought. At any rate, the website and professional e mail are back up. My site was never suspended, rather that was the result of the site being linked to the old company when it is actually being hosted by a new company. Second, next week is the Jewish holiday of Rosh Hashanah, and I am going to have family in for that week as well. So, I want to wish all of my Jewish brethren reading this blog a healthy and happy new year. Also, want to let you know that you shouldn’t be surprised if you don’t see a blog next week.

This week’s blog entry explores the issue of whether the Department of Justice has standing to sue to enforce title II of the ADA either on its own behalf or in intervention. It is actually two separate cases. As is usual, my blog entry is divided into categories: does the DOJ have standing to sue on its own behalf to enforce title II of the ADA?; if DOJ intervenes rather than sues on its own behalf, does that make a difference?; and takeaways. The reader is free to focus on any or all of the categories.

I

Does the DOJ Have Standing to Sue on Its Own Behalf to Enforce Title II of the ADA?

In C.V. v. Dudek, the Southern District of Florida in an opinion by Judge Zloch was faced with the question whether DOJ had standing to sue on its own behalf with respect to a claim of violation of title II when it came to the State of Florida’s administration of its Medicaid program with respect to how it treated medically complex and fragile children. Judge Zloch on his own motion raised the question of whether DOJ had standing to sue on its own behalf to enforce title II of the ADA. His conclusion was that no such standing existed. He reasoned as follows:

1. The Supreme Court of the United States has made it clear that when an agency acting in its governmental capacity is meant to have standing, Congress says so.
2. Title II’s enforcement section refers to certain remedies, procedures and rights to any person alleging discrimination on the basis of disability in violation of §12132 of the ADA. When looked at side to side with the enforcement provisions of title I and III of the ADA, title II does not confer standing on the Attorney General and the department is not a “person alleging discrimination.”
3. Unlike title II of the ADA, where the enforcement provision refers to “persons alleging discrimination,” title I and III of the ADA quite explicitly confer standing upon the Attorney General to initiate litigation.
4. With respect to title I, it provides that the powers, remedies and procedures set forth in title VII of the Civil Rights Act of 1964 are the powers, remedies, and procedures provided to the EEOC or to any person alleging discrimination on the basis of disability in violation of any provision of the ADA concerning employment. Further, title VII of the Civil Rights Act of 1964 authorizes the Attorney General to seek various forms of judicial relief.
5. With respect to title III of the ADA, the ADA specifically grants the Attorney General authority to commence a civil action in any appropriate United States District Court if the Attorney General has reasonable cause to believe that: any person or group of persons is engaged in a pattern or practice of discrimination; any person or group of persons had been discriminated against and such discrimination raises an issue of general public importance.
6. When Congress confers standing on a particular actor in one section of a statutory scheme, but not in another, which is the case with the ADA, that silence has to be read to preclude standing.
7. In a legislative scheme of the sort like the ADA, when Congress wants the Attorney General to have standing, it says so.
8. The Department of Justice is not a “person alleging discrimination,” as there is a long-standing interpretive presumption that “person,” does not include the sovereign. This particular principle is not just limited to the regulatory sweep of the statute, but also extends to those provisions defining who may be plaintiffs under the statute and those who have standing. Therefore, absent 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.
9. Title I of the ADA extends remedial authority, including authority to commence civil suit, to the EEOC, the Attorney General, or to any person alleging discrimination on the basis of disability. On the other hand, title II grants remedial authority only to “persons alleging discrimination.” Therefore, if the Attorney General is not a “person,” under title I of the ADA, then the Attorney General is not a “person,” under title II of the ADA either.
10. The court disagreed with the Department of Justice’s view that whether the Attorney General was a person under the statute is besides the point, rather the court believed that who is a person under the statute is precisely the point. That is, qualified individuals with a disability are the intended beneficiaries of title II of the ADA, and private parties alleging discrimination is the mechanism by which those guarantees are enforced. The court is simply not free to ignore the statutory text to come up with a contrary conclusion.
11. The normal rule of statutory interpretation is that identical words in different parts of the same act are intended to have the same meaning.
12. The cardinal rule of statutory interpretation is that no provision should be construed to be entirely redundant. If the Attorney General were a “person alleging discrimination,” under title II of the ADA, then any reference to her in title I would be redundant. If not redundant, the term “person,” would have different meanings in title I and II, which to the court’s view, is absolute nonsense. That is, in both title I and title II of the ADA, the Attorney General it is not a, “person alleging discrimination.”
13. Another Canon of statutory construction, expressio unius, also supports the view that a “person,” under title II of the ADA does not include the Attorney General. This particular Canon of statutory construction says that the provision of one method of enforcement suggests that Congress intended to preclude others. By authorizing suits by individuals, Congress intended to bar administrative agencies, such as the Department of Justice, from enforcement by litigation.
14. Title II’s remedial scheme contains no authority for the Department of Justice to commence civil litigation. That remedial scheme incorporates remedies under §504 of the Rehabilitation Act of 1973 and makes them available to any person alleging discrimination under title II of the ADA.
15. Remedies for title II of the ADA are tied into the Rehabilitation Act, which is tied into title VI of the Civil Rights Act of 1964. Under title VI, there is no statutory cause of action for Attorney General enforcement and therefore, none exist under title II of the ADA. Title VI does not authorize suits by the Attorney General, but instead allows enforcement of conditions attached to federal funding by any other means authorized by law, which are typically actions brought by the DOJ for breach of contract.
16. Congress did not incorporate all remedies, procedures, and rights available under title VI of the Civil Rights Act, rather it incorporated only those remedies, procedures, and rights that may be exercised by a “person alleging discrimination.”
17. Title VI of the Civil Rights Act, the Rehabilitation Act, and title II of the ADA each authorize suits by private individuals, including those for injunctive relief and damages.
18. The ADA’s structure as a whole supports the conclusion that title II of the ADA incorporates only enforcement rights exercised by private parties. In particular, title I of the ADA bestows specific rights on the EEOC, the Attorney General, as well as any person alleging discrimination. Similarly, in title III of the ADA, specific provisions exist for the Attorney General to intervene in litigation at the court’s discretion. As is the case in title I, title III of the ADA quite explicitly sets forth the who and how of its remedial scheme.
19. Considering how precisely who may be involved in suits are crafted under title I and title III of the ADA, title II’s failure to name the Attorney General or her rights under title VI is hardly an afterthought.
20. The decision to limit enforcement of title II to suit by private parties makes a lot of sense and is not a surprise. Title II reaches into many areas traditionally the province of the states. Therefore, that imposes significant federalism costs by subjecting state run public services to federal judicial review. Title II by specifically limiting itself to private enforcement, avoids compounding those federalism costs by requiring judicial review be at the behest of recipients of those public services and not the federal government.
21. While it is true that 12134(b) of the ADA directs the Attorney General to promulgate regulations implementing titles II with an instruction that such regulations are consistent with the Department of Health, Education, and Welfare’s regulations implementing the Rehabilitation Act. That 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 of the ADA. That means the consistency mandate is to ensure that title II’s standards are analogous to those under the Rehabilitation Act. That is quite a different thing than saying that the regulations are directed to include the Rehabilitation Act’s remedies or go so far as to adopt them.
22. The attorney fees provision of title I or title III of the ADA does not help the Department of Justice as those provisions are limited to those titles.
23. The DOJ argument that without recourse to judicial remedies, the federal government has no effective ability to bring about compliance ignores that the proper question is whether the federal government is the proper party to affect compliance with title II of the ADA at all. Title II of the ADA, like other civil rights statutes, is using the concept of a private Attorney General (private parties empowered by a fee shifting provision), to affect compliance through litigation.
24. In a footnote, the court said that Title VI of the Civil Rights Act’s remedies are not superfluous because title II of the ADA only incorporates from title VI of the Civil Rights Act those rights may be exercised by a private party.
25. The decision whether to utilize private enforcement or public enforcement lies with Congress alone since it is the proper body to weigh the benefits and burdens associated with each kind of enforcement regime.
26. There is nothing absurd in the view that Congress might elect to withhold from the federal agency a boundless discretion to sue state and local governments.
27. The Department of Justice does have the ability under a variety of other laws to commence litigation, though admittedly those laws may set high standards for such involvement, such as seen in the civil rights of institutionalized persons act for example). Recognizing the DOJ authority to bring suit under title II of the ADA would allow for an end run around the civil rights of institutionalized persons act more stringent requirements.
28. A statute’s purpose may not be used to add features that achieve the statutory purpose more effectively, rather that is for Congress to do.
29. While the Attorney General does not have the ability to bring suit under title II of the ADA, it was empowered by the ADA to set the regulatory standards defining disability discrimination under title II. No role could be more central to a statute’s enforcement. In this case, the court borrowed from a football analogy by saying that the Department of Justice is demanding not only to draw up the plays, but to carry the ball as well. That is, the withholding of agency authority is as significant as the granting of and the court had no right to play favorites between the two.
30. The DOJ view that appropriate action includes resort to department initiated litigation failed to distinguish between the concept of the scope of an agency’s authority and the scope of a court’s jurisdiction.
31. Court’s owe no deference to an agency’s understanding of a court’s jurisdiction.
32. Language in regulations may invoke a private right of action that Congress statutory text created, but it cannot create a right Congress has not created. That is, administrative agencies may not confer standing on private plaintiffs by regulation nor may they confer standing upon themselves. An administrative agency’s ability to seek judicial relief has to come from the statute itself. So, it is inappropriate for a court to defer to an agency’s position on whether the agency has standing to bring suit.
33. The ADA is neither silent nor ambiguous with respect to the litigation authority of the Department of Justice. Title I and III of the ADA allow for DOJ involvement in explicit terms, while title II of the ADA provides otherwise.
34. Contrary to the DOJ view, it is extremely significant that title II of the ADA fails to mention the Attorney General in its enforcement section. Title I and title III mention the Attorney General because the Attorney General has different rights and responsibilities than private parties under those titles. There is no reason to assume that Congress would be so deliberate in title I and title III, which sets forth both the what and whom, and yet so reckless in title II, which only sets forth the what. A court must focus on permissible statutory constructions and not ingenious academic exercises of what is possible.
35. A cause of action brought by the Department of Justice must come from title II itself.
36. An executive order allowing the Attorney General to fully enforce title II of the ADA is of no help for two reasons. First, it isn’t for the executive branch to say that it has the authority to enforce title II through litigation. Second, the executive order refers to cooperative efforts with states in alternative dispute resolution, not litigation.
37. In another footnote, the court refuses to look at legislative intent because the concept as a practical matter doesn’t exist, and certainly not in the places that court’s often look to.
38. In another footnote, the court notes that while it is absolutely true that the Department of Justice has entered into several settlement agreements and consent decrees addressing title II violations, that has nothing to do with whether the statute authorizes the department to sue.
39. Constitutional principles of federalism erect limits on the federal government’s ability to direct state officers or interfere with the functions of state governments. In areas where Congress grants the power to alter federal-state relations, the Supreme Court requires that such intention has to be unmistakably clear. Similarly, when conditions are attached to federal funding or sovereign immunity is forcibly waived, such intention must be unequivocal.
40. When Congress has authorized litigation by federal agencies against state and local government, that authorization has come in clear terms and often with strict conditions.

II

So, No Standing for DOJ to Sue on Their Own Behalf, but What about Intervention?

In Steward v. Abbott, the Department of Justice did not bring suit on its own behalf, but rather intervened in the litigation. Does intervention v. bringing suit on their own behalf make a difference? Judge Garcia of the United States District Court of the Western District of Texas says it does for the following reasons:

1. An intervenor seeking no relief beyond that sought by the plaintiff in the underlying case does not need to possess independent standing. In that situation, the intervention is into a subsisting and continuing article III case or controversy and the ultimate relief sought by intervening party is also being sought by at least one subsisting party having standing to do so.
2. The complaint of the Department of Justice in this case is seeking injunctive relief and declaratory relief that is substantially the same ultimate relief sought by the original plaintiffs in the case.
3. Where intervening plaintiffs seek the same ultimate relief as the original plaintiffs but advance a different legal theory, the intervening plaintiff’s create no jurisdictional obstacles for the court.
4. Providing a case or controversy exists, it is immaterial to the court’s jurisdiction whether an intervening party, proceeding alone, can satisfy the requirements of article III.
5. A governmental agency’s capacity to intervene and raise claims within the scope of the original plaintiff’s complaint is not limited to the agency’s capacity to institute an independent action on its own behalf.
6. The whole idea of adding Federal Rules of Civil Procedure 24 (b)(2) was to go in the direction of allowing intervention liberally so that governmental agencies and officers seeking to speak for the public interest could do so.
7. The interests of the United States in the enforcement of title II of the ADA and the Rehabilitation Act provide a sufficient basis for the United States to raise claims that do not exceed the scope of the original complaint, as is the case here. Accordingly, it isn’t necessary to consider whether the United States could go further than that.
8. In a footnote, the court said that Texas acknowledged that title II of the ADA and the Rehabilitation Act authorized the Attorney General to sue because: United States has an interest in title II of the ADA; both title II in the Rehabilitation Act allow for enforcement determination or refusal to grant federal funding or by any other means provided by law; and courts interpret “any other means provided by law,” to authorize DOJ enforcement by federal court action.

III

Takeaways:

1. I would expect that every time the Department of Justice either brings a suit on its own behalf or intervenes to enforce title II of the ADA, V. v. Dudek will be trotted out by the public entity being sued by the Department of Justice. Ultimately, one wonders whether a Circuit Court split will not occur at some point in time and this will not go before the United States Supreme Court, though admittedly, this could be years down the road. Alternatively, Congress could amend title II of the ADA to specifically allow for Attorney General enforcement, but considering how polarized politics is in America at the moment and the likely control of Congress being split after November, such an amendment would be extraordinarily unlikely.
2. If indeed private attorney general is the only way to go under title II of the ADA, things just got a lot more complicated for persons with disabilities. You see many private attorneys working in title I of the ADA and you see more private attorneys of late working in title III of the ADA. With respect to the latter, it used to be mainly disability rights groups doing title III litigation, but now you are seeing more private attorneys get involved. It is far less typical to see many private attorneys involved in title II of the ADA cases. Even in those situations, having DOJ on board can even up the odds for a plaintiff. On an economics of law practice level, that makes sense for two reasons: Damages for title II of the ADA must satisfy a deliberate indifferent standard; and often times it isn’t damages that a title II plaintiff is after. Accordingly, that makes contingency fee litigation very difficult to assess accurately. All that said, if it is strictly a matter of private attorney general enforcement for title II matters, one wonders whether attorneys affiliated with the National Employment Lawyers Association may want to think about branching out their practice. After all, they are used to taking on governmental entities. Admittedly, the rules are different as are the standard for damages, but with proper training maybe it could work.
3. The footnote in Steward saying that Texas admitted that the Department of Justice had the ability to sue on its own behalf is interesting considering such an omission may not have been necessary in light of C.V. (see §I 18 for example above). Also, the reasoning of this footnote was specifically rejected by the C.V. court (see §I 15 above).
4. With respect to DOJ intervening in a suit, the two cases discussed here are in conflict. Compare §I 18 above with §II.
5. As it currently stands, the person does not have to exhaust administrative remedies before proceeding with a title II or title III suit. Of course, if this case becomes the law of the land, there would be absolutely no reason to file with the DOJ at all with respect to a title II matter. Also, if this decision becomes the law of the land, how DOJ decides to spend its resources and set up its bureaucracy will radically change. For example, it will no longer be able to bring suits on its own behalf to enforce title II. It may also be not able to bring suits intervening on title II matters. Finally, there would be no reason whatsoever for a person to file a claim with the Department of Justice with respect to discrimination by public entities even if they had the desire to do so.