No. 94-1915 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BETTY LIVINGSTON, Plaintiff-Appellant v. THE HONORABLE ZORO J. GUICE, JR., and the STATE OF NORTH CAROLINA, Defendants-Appellees APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE DEVAL L. PATRICK Assistant Attorney General DENNIS J. DIMSEY MIRIAM R. EISENSTEIN Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-4707 01-06810 TABLE OF CONTENTS PAGE JURISDICTIONAL STATEMENT . . . . . . . . . . . . . ... . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . 1 INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . . 2 STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT: THE DISTRICT COURT ERRED IN RULING THAT THE DOCTRINE OF JUDICIAL IMMUNITY BARS PLAINTIFF'S SUIT UNDER TITLE II OF THE AMERICANS WITH DISABILITIES ACT AGAINST A NORTH CAROLINA STATE COURT JUDGE AND THE STATE OF NORTH CAROLINA . . . . . . . . . . . . . . . 5 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 TABLE OF AUTHORITIES CASES: Allen v. State Bd. of Elections, 393 U.S. 544 (1969) . . . . . . . . . . . . . . . . . . . 3 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) . . . . . . . . . . . . . . . . . . . 5-6 Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) . . . . . . . . . . . . . . . . . . . 2 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) . . . . . . . . . . . 5 Forrester v. White, 484 U.S. 219 (1988) . . . . . . . . . . . . . 6 Franklin v. Gwinnett County Pub. Sch., 112 S. Ct. 1028 (1992) . . . . . . . . . . . . . . . . . .2 Huemmer v. Mayor & City Council of Ocean City, 632 F.2d 371 (4th Cir. 1980) . . . . . . . . . . . 7 Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978) . . . . . . . . . . . . . . . . . . . 8 01-06811 CASES (cont'd.): PAGE Newman v. Piggie Park Enters., Inc., 390 U.S. 400 (1968) . . . . . . . . . . . . . . . . . . . 3 Owen v. City of Independence, 445 U.S. 622 (1980) . . . . . . . . . . . . . . . . . . 7, 8 Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) . . . . . . . 9 Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) . . . . . . . . 5 Pulliam v. Allen, 466 U.S. 522 (1984) . . . . . . . . . . . . . . 6 Stumip v. Sparkman, 435 U.S. 349 (1978) . . . . . . . . . . . . . 4, 6 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . . 3 UNITED STATES CONSTITUTION: Fourteenth Amendment (Section 5) . . . . . . . . . . . . . . . 5 Eleventh Amendment . . . . . . . . . . . . . . . . . . . . passim STATUTES AND REGULATIONS: Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (Supp. IV 1992) . . . . . . . . . 2 42 U.S.C. 12202 . . . . . . . . . . . . . . . . . . . . . 6 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . . 1, 2 Rehabilitation Act of 1973 (Section 505), as amended, 29 U.S.C. 794a . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1345 . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 9 42 U.S.C. 2000d-6 . . . . . . . . . . . . . . . . . . . . . . . . 2 N.C. Gen. Stat. S 15A-1034 . . . . . . . . . . . . . . . . . . . 8 28 C.F.R. 35.130(a) . . . . . . . . . . . . . . . . . . . . . . . 2 28 C.F.R. 35.174 . . . . . . . . . . . . . . . . . . . . . . . . 2 28 C.F.R. 35.190(b)(6) . . . . . . . . . . . . . . . . . . . . . 2 - ii - 01-06812 PAGE LEGISLATIVE MATERIALS: S. Rep. No. 116, 101st Cong., 1st Sess. (1990) . . . . . . . . 2 - iii - 01-06813 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 94-1915 BETTY LIVINGSTON, Plaintiff-Appellant v. THE HONORABLE ZORO J. GUICE, JR., and the STATE OF NORTH CAROLINA, Defendants-Appellees APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE JURISDICTIONAL STATEMENT This suit was brought under 42 U.S.C. 1983 and Title II of the Americans with Disabilities Act, 42 U.S.C. 12133. The district court had jurisdiction under 28 U.S.C. 1331 and 1345. Final judgment granting the defendants' motion to dismiss was entered on June 13, 1994 (J.A. 33). A timely notice of appeal was filed on July 11, 1994 (J.A. 33). This Court has jurisdiction of the appeal under 28 U.S.C. 1291. STATEMENT OF THE ISSUE Whether this private suit under the Americans with Disabilities Act against a state court judge and the State of North Carolina is barred by judicial immunity. 01-06814 - 2 - INTEREST OF THE UNITED STATES The United States has a major role in the implementation of the Americans with Disabilities Act, 42 U.S.C. 12101 et seg. (Supp. IV 1992). The Assistant Attorney General for Civil Rights is required by regulation to coordinate investigation by the various federal agencies of complaints under Title II of the Act, which prohibits discrimination against persons with disabilities with respect to "services, programs, or activities of [any] public entity" (28 C.F.R. 35.130(a); 42 U.S.C. 12132). The Department of Justice is the federal agency charged with investigating complaints under Title II "relating to law enforcement * * * and the administration of justice, including courts and correctional institutions" (28 C.F.R. 35.190(b)(6)). The Act contemplates suit by the Attorney General as the prin- cipal method of enforcing Title II (28 C.F.R. 35.174; S. Rep. No. 116, 101st Cong., 1st Sess. 57 (1990)). Private actions are also permitted under Title II of the Act. See 42 U.S.C. 12133, incorporating the remedies of Section 505 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794a.1/ 1/ See, e.g., Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) (private right of action); Franklin v. Gwinnett County Pub. Sch., 112 S. Ct. 1028 (1992) (damages available); 42 U.S.C. 2000d-6 (abrogating Eleventh Amendment immunity). The allocation of investigatory responsibility under Title II to various federal agencies reflects the fact that most such agencies already had substantial responsibilities under Section 504 of the Rehabili- tation Act to prevent discrimination on the basis of disability in programs and activities receiving federal financial assist- ance. Where possible, Title II investigatory responsibility has been allocated to the federal agency most likely to be admini- stering funds to that particular state entity. Thus, for ex- (continued...) 01-06815 - 3 - The Department of Justice has received many complaints regarding inaccessibility of local courts to persons with disabilities, and discrimination by judges and other court officials. As in the case of other civil rights acts, adequate implementation of Title II depends heavily upon "private attor- neys general" to supplement the Department's enforcement efforts. Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 401-402 (1968); Allen v. State Bd. of Elections, 393 U.S. 544 (1969); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972). Accordingly, the United States has an interest in ensuring that courts do not bar such private actions by erroneous application of judicial or Eleventh Amendment immunity. Pursuant to that interest, the United States filed a memorandum as amicus curiae in the district court addressing the Eleventh Amendment issue. STATEMENT Ms. Livingston has multiple sclerosis. In May 1992, she was attending her nephew's trial for murder in the Caldwell County, North Carolina, courthouse. Because she uses a wheelchair, she was going in and out of the courtroom through the only doorway that was wheelchair-accessible -- or, at least, the only such entrance of which she had been told. To reach this doorway she had to enter an adjoining "new wing" of the courthouse, go up an 1/ (...continued) ample, the Department of Health and Human Services is responsible for ensuring nondiscrimination by state health and welfare departments. Of course, the requirements of the ADA extend to programs that do not receive federal financial assistance. That is why suit by the Attorney General, rather than fund cutoff, is the remedy contemplated by the ADA. 01-06816 - 4 - elevator, and enter through the same door used by the judge. The door opened to the judge's right, inside the bar (J.A. 26-27). Several times, Judge Guice objected to Ms. Livingston's use of the doorway, and he ultimately denied her further access to it. As a result, she stopped attending the trial (J.A. 27). On November 13, 1992, she brought suit in the United States District Court, under Title II of the ADA, against Judge Guice and the State of North Carolina (Docket No. 1). She asked for declaratory and injunctive relief only, with respect to the judge, and for damages only against the State (J.A. 21-22). She also alleged a violation of the state constitution, addressed to the district court's pendent jurisdiction (J.A. 22-23). The defendants moved to dismiss on grounds of judicial and Eleventh Amendment immunity (J.A. 8) and the district court granted the motion (J.A. 32). North Carolina law, the court noted, expressly provides that the "'presiding judge may impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of the courtroom proceedings or the safety of persons present.' N.C. Gen. Stat. S 15A-1034" (J.A. 28). Judges, the court held, are entirely immune from suit for acts done within their jurisdiction as judges, citing Stump v. Sparkman, 435 U.S. 349, 356 (1978) (J.A. 27). Therefore, the court concluded, all claims against Judge Guice had to be dismissed (J.A. 13). The district court also dismissed the suit against the State of North Carolina, concluding that the State could not be liable 01-06817 - 5 - if the judge was immune from suit (J.A 29-31). The court noted that the plaintiff "failed to allege even a single independent act or duty to act by the State of North Carolina" (J.A. 29). Since the judge's acts were immune from suit, the court reasoned, no entity could be held liable for them. STANDARD OF REVIEW The issue of judicial immunity is a purely legal question subject to de novo review. ARGUMENT THE DISTRICT COURT ERRED IN RULING THAT THE DOCTRINE OF JUDICIAL IMMUNITY BARS PLAINTIFF'S SUIT UNDER TITLE II OF THE AMERICANS WITH DISABILITIES ACT AGAINST A NORTH CAROLINA STATE COURT JUDGE AND THE STATE OF NORTH CAROLINA The district court erred in holding that judicial immunity required dismissal of plaintiff's complaint. As we demonstrate below, judicial immunity does not extend to injunctive suits and, absent the Eleventh Amendment bar, governmental entities can be liable for damages for the acts of their agents. 1. At the outset, it is important to note that the Eleventh Amendment does not bar suits against States or state officials under Title II of the ADA. Congress can override the States' Eleventh Amendment immunity by legislation pursuant to constitutionally delegated legislative powers. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 454-456 (1976) (Section 5 of the Fourteenth Amendment); Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) (Commerce Clause). To be sure, any such abrogation must be "unmistakably clear." Atascadero State Hosp. v. Scanlon, 01-06818 - 6 - 473 U.S. 234, 242 (1985). Congress could not have been clearer, however, in its statement in the ADA abrogating Eleventh Amendment immunity. See 42 U.S.C. 12202.2/ 2. Given the abrogation of state immunity by the ADA, state judges would be subject to personal or official action suits under the ADA but for the doctrine of judicial immunity. It is clear that this doctrine generally affords judges immunity from damage suits. See Stump v. Sparkman, 435 U.S. 349, 356 (1978).3/ In Pulliam v. Allen, 466 U.S. 522 (1984), however, the Supreme Court held that this immunity does not extend to injunctive suits. In the present case, plaintiff sought only injunctive and declaratory relief against Judge Guice. Inexplicably, the district court did not even cite, much less discuss, the Supreme Court's controlling decision in Pulliam. Accordingly, the district court's holding that judicial immunity 2/ Section 12202 provides: A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. In any action against a State for a violation of the requirements of this chapter, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State. 3/ Judicial immunity against damage actions, however, is not absolute. The Supreme Court has held that judges can be held liable for damages in suits challenging their administrative actions. See Forrester v. White, 484 U.S. 219, 224-225 (1988) (explaining that with regard to immunity questions other than those decided by "express constitutional or statutory enactment," the Court applies a "functional" approach to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions). 01-06819 - 7 - barred plaintiff's complaint against Judge Guice must be reversed. 3. The district court's dismissal of plaintiff's damage claim against the State must be reversed as well, because it was premised on the validity of the dismissal of the claim against Judge Guice. Even if the dismissal of the claims against Judge Guice had been proper under the judicial immunity doctrine, however, the dismissal of the damage claim against the State did not necessarily follow. Where, as here, there is no Eleventh Amendment bar to a suit against a State, the immunity of a state official from suit does not necessarily mean that the State cannot be held liable in damages for the acts of that agent. This principle was expressly recognized by the Supreme Court in Owen v. City of Independence, 445 U.S. 622 (1980). See also Huemmer v. Mayor & City Council of Ocean City, 632 F.2d 371, 372 (4th Cir. 1980). In Owen, supra, a city, city manager, and members of the city council were sued under 42 U.S.C. 1983 for wrongful discharge of the chief of police. The city (which is not protected by the Eleventh Amendment) argued that it should enjoy an immunity from damages coextensive with the public officials' common law qualified immunity. The Court rejected that claim. "Our previous decisions conferring qualified immunities on various government officials," the Court said, "are not to be read as derogating the significance of the societal interest in compensating the innocent victims of governmental misconduct" 01-06820 - 8 - (445 U.S. at 652-653). The purpose of immunity, the Court held, is to protect governmental officials from living in fear that anything they do, in the exercise of their discretion, might open them up to subsequent damage awards (id. at n.37). But totally different considerations come into play when damages are sought from the government itself (ibid.). The state itself has only Eleventh Amendment immunity, which can be abrogated, as it has been in the present case. It has no other common-law immunity, and cannot borrow it from its officials. 4. Contrary to the district court's suggestion, active participation in the violation by "the State" (as distinct from its agent, the judge) is not a necessary element of state liability under the ADA. After all, a state can act only through its agents. Judge Guice is an elected official, and is answerable to no other state agent or agency. Indeed, the district court pointed to state statutory authority (N.C. Gen. Stat. Section 15A-1034) that accords state judges final policymaking authority over the limitations on access to their courtrooms. Monell v. Department of Social Servs., 426 U.S. 568 (1978), is not to the contrary. In Monell, the Supreme Court held that, under 42 U.S.C. 1983, a governmental entity would only be held liable if some official ordinance or policy were attacked, but that cities would not be held liable on the basis of respondeat superior. This holding, however, was based on the Court's analysis of the legislative history of Section 1983, not upon any 01-06821 - 9 - universally applicable legal or constitutional doctrine. Accordingly, Monell has no application to the present case. If the instant case were governed by Monell principles, however, the State could still be held liable for Judge Guice's acts. Because Judge Guice was the final decisionmaker for the State with respect to access to his courtroom, no further parti- cipation by other state officials was necessary to subject the State to liability for damages under Title II of the ADA. Cf. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) (governmental entities not covered by Eleventh Amendment immunity are liable under Section 1983 for unconstitutional conduct of officials of the entity who have final policymaking authority over the subject matter in question). CONCLUSION The district court's judgment should be reversed. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General (SIGNATURE) DENNIS J. DIMSEY MIRIAM R. EISENSTEIN Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-4707 01-06822 CERTIFICATE OF SERVICE I hereby certify that on September 19, 1994, I served the parties to this appeal with the attached Brief for the United States as Amicus Curiae by mailing two (2) copies to each of counsel, postage prepaid, as follows: John West Gresham, Esq. FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, PA 700 East Stonewall Street Charlotte, NC 28202 William Golden Simpson, Jr., Esq. NORTH CAROLINA CIVIL LIBERTIES UNION P.O. Box 28004 Raleigh, NC 27611 Adam Stein, Esq. FERGUSON, STEIN, WALLAS & ADKINS, PA 312 West Franklin STreet Chapel Hill, NC 27516 Lars Franklin Nance, Esq. OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA P.O. Box 629 Raleigh, NC 27602 (SIGNATURE) MIRIAM R. EISENSTEIN Attorney 01-06823 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA Statesville Division Civil No. 5:92CV131-MU BETTY LIVINGSTON, ) ) Memorandum of the United Plaintiff, ) States, Appearing as ) Amicus Curiae, in v. ) Response to Defendants' ) Motion to Dismiss THE HONORABLE ZORO J. GUICE, JR., ) in his official capacity; STATE ) OF NORTH CAROLINA, ) Defendants ) This action is brought by Betty Livingston against the State of North Carolina and North Carolina Superior Court Judge Zoro Guice, Jr., and alleges, inter alia, a violation of title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. Section Section 12131 et seq. Defendants have moved to dismiss. The United States as amicus curiae urges the Court to deny the motion as to the ADA claim because, contrary to the grounds on which Defendants seek such dismissal: (1) Congress has specifically abrogated the States' eleventh amendment immunity for suits brought pursuant to the ADA; (2) title II of the ADA provides for a private right of action for damages; and (3) it would be inappropriate for this suit to be stayed pending review by the Department of Justice. 01-06824 We take no position on other issues raised by Defendants' motion. I. Interest of the United States The United States has significant responsibilities for implementing and enforcing the ADA, including the promulgation of implementing regulations.1 Accordingly, the United States has a strong interest in ensuring that the case law developed in this suit is consistent with the United States' interpretation of the statute and the Department of Justice's regulation implementing title II of the ADA, 28 C.F.R. pt. 35. Defendants' motion implicates the ability of both the Department of Justice and private plaintiffs to bring actions under title II, as well as the relief available to private plaintiffs in title II cases. Furthermore, because the Attorney General does not have unlimited resources for enforcing civil rights laws, suits brought by private citizens are critical to the successful implementation of those laws. See, e.q., Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974) (title VII of the 1964 Civil Rights Act (employment)); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972) (title VIII 1 As required by section 204 of the ADA, 42 U.S.C.  12134, the Attorney General promulgated a regulation implementing title II of the ADA. 28 C.F.R. pt. 35 (1992). This regulation became effective on January 26, 1992. Id. at Section 36.508. Pursuant to the statute and the regulation, several federal agencies have responsibility for investigating title II complaints. The Department of Justice coordinates the title II implementation efforts of these agencies and may file suit in federal district court when a complaint cannot be resolved by voluntary means. ee 42 U.S.C.  12133; 28 C.F.R. pt. 35 at subpt. F; S. Rep. No. 116, 101st Cong., 1st Sess. 57 (1989); H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 98 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 381. 2 01-06825 of the 1968 Civil Rights Act (fair housing)); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402 (1968) (title II of the 1964 Civil Rights Act (public accommodations)). II. Facts and Procedural History Plaintiff Betty Livingston alleges that she was effectively barred from the first degree murder trial of her nephew when North Carolina Superior Court Judge Zoro Guice, Jr., ordered her not to use a particular door to his courtroom. Ms. Livingston uses a wheelchair, and that particular door was the only accessible entrance to the courtroom of which she had notice. On August 12, 1992, Ms. Livingston filed an administrative complaint with the United States Department of Justice under title II of the ADA and, thereafter, on November 13, 1992, filed this action in the Federal District Court for the Western District of North Carolina. On February 25, 1993, without having made an administrative determination of whether a violation had occurred, the United States officially terminated its investigation of Ms. Livingston's administrative complaint, pursuant to its general policy of closing administrative complaints where private actions alleging the same facts have been filed in appropriate federal district courts. In lieu of an answer, on January 8, 1993, Defendants Guice and the State of North Carolina filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b), and a memorandum in support of their motion, raising several issues of first impression. 3 01-06826 On February 12, 1993, the United States moved the Court for leave to participate as amicus curiae, and for extension of time within which to file a response to Defendants' motion to dismiss. The Court granted each of our motions by Order of February 19, 1993. III. Relationship of Title II to Pre-Existing Civil Rights Statutes When signing the ADA into law, former President George Bush described the statute as an "historic new civil rights Act . . . the world's first comprehensive declaration of equality for people with disabilities."2 Others have described the Act as an "emancipation proclamation" for people with disabilities,3 and "the most comprehensive civil rights measure in the past two and a half decades."4 The ADA provides civil rights protections to individuals with disabilities in the areas of employment (title I), State and local government services (title II), places of public accommodation and commercial facilities (title III), and telecommunications (title IV). At issue here are title II and 2 Remarks by former President George Bush during ceremony for the signing of the Americans with Disabilities Act of 1990, 2 (July 26, 1990). 3 135 Cong. Rec. Section 10,789 (daily ed. Sept. 7, 1989) (statement of Sen. Kennedy). 4 Ralph G. Neas, Executive Director of the Leadership Conference on Civil Rights, quoted by Nathaniel C. Nash, Bush and Senate Leaders Support Sweeping Protection for Disabled, N.Y. Times, Aug. 3, 1989, at A1, col. 4. 4 01-06827 title V, which contains provisions generally applicable to all other titles of the ADA. Title II protects individuals with disabilities from discrimination in the services, programs, and activities of State and local governments. Prior to the passage of the ADA in 1990, similar protections had been provided by section 504 of the Rehabilitation Act of 1973, 29 U.S.C.  794, but only in programs or activities receiving federal financial assistance (including assisted programs of State and local governments).5 In language that is substantively almost identical to that of section 504, title II expanded this prohibition to all programs, services, and activities of State and local governments, not just to those aided by federal funds. See H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 357 (1989), reprinted in 1990 U.S.C.C.A.N. 303 (hereinafter, "Rep. of Comm. on Educ. and Labor"). Congress patterned title II's enforcement provisions as well as its substantive provisions after those of section 504, and intended that the enforcement of title II "should closely parallel the federal government's experience" in enforcing section 504. S. Rep. No. 116, 101st Cong., 1st Sess. 57 (1989); Rep. of Comm. on Educ. and Labor at 98. Title II itself, in section 203 of the ADA, 42 U.S.C.  12132, provides that enforcement is to be achieved through the "remedies, procedures, 5 As of 1978, section 504 of the Rehabilitation Act also applied to programs conducted by federal executive agencies. 29 U.S.C.  794 (as amended by Pub.L. 95-602, Title I,  119, 112(d)(2), Nov. 6, 1978, 92 Stat. 2982, 2987). 5 01-06828 and rights set forth in section 505 of the Rehabilitation Act," 29 U.S.C.  794a, which establishes the remedies by which section 504 is enforced. Section 505, in turn, adopts the rights and remedies available under title VI of the Civil Rights Act of 1964, 42 U.S.C.  2000d et seq. (applying to discrimination on the basis of race, color, or national origin in federally assisted programs). Therefore, title II of the ADA in effect adopts the remedies provided in title VI of the Civil Rights Act of 1964, as interpreted over the years by the judiciary. In addition, the enforcement provisions of title IX of the Education Amendments Act of 1972, 42 U.S.C.  1683 (applying to gender discrimination in federally assisted education programs), are also patterned after those of title VI of the Civil Rights Act. Thus, the case law on the enforcement scheme of title VI of the Civil Rights Act and title IX of the Education Amendments Act is directly relevant to title II of the ADA and provides guidance to a fuller understanding of title II of the ADA and section 505 of the Rehabilitation Act. In other words, because title II, section 505, and title IX are all patterned on the enforcement mechanisms of title VI, judicial interpretations of each of these statutes are relevant to consideration of the remedies provided in each of the others. Simply stated, the rights and remedies of title II that are at issue in this case are for relevant purposes identical to those of section 504 of the Rehabilitation Act, title VI, and title IX and should be construed accordingly. 6 01-06829 IV. Argument This case is before the Court on Defendants' Motion to Dismiss. In support of their motion, Defendants advance a number of arguments concerning eleventh amendment immunity, remedies for private parties, and agency review with respect to title II of the ADA. None of these have merit. A. Congress specifically abrogated States' eleventh amendment immunity when it enacted the ADA. The eleventh amendment,6 as interpreted by the Supreme Court, forbids a federal court from rendering judgment against an unconsenting State in favor of a citizen of the State. Hans v. Louisiana, 134 U.S. 1, 15 (1890). Congress can override this prohibition in civil rights legislation, as long as it does so expressly. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Defendants argue that the ADA does not contain a waiver of State immunity because title II's enforcement provision merely refers to section 505 of the Rehabilitation Act, which in turn refers to title VI, 42 U.S.C.  2000d et seg., -- which, according to Defendants, "does not show unequivocal congressional intent to override the State's immunity from damages." See part V of Defendants' Memorandum in Support of Motion to Dismiss, pages 7-8. According to Defendants, Plaintiff is therefore prohibited from suing the State of North Carolina under title II of the ADA. 6 The eleventh amendment provides, "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." 7 01-06830 To the contrary, the language of the ADA itself overrides States' eleventh amendment immunity. Title V of the ADA, which contains provisions generally applicable to all other titles of the ADA, includes an express abrogation of immunity: A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in federal or State court of competent jurisdiction for a violation of this Act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State. Section 502 of the ADA, 42 U.S.C.  12202 (parenthetical remark in the original). See also 28 C.F.R.  35.178; S. Rep. No. 116 at 184; and Rep. of Comm. on Educ. and Labor at 138, reprinted in 1990 U.S.C.C.A.N. at 421. Because the ADA is so clear in its abrogation of eleventh amendment immunity, it is unnecessary to examine congressional intent with respect to the Rehabilitation Act and title VI.7 7 In any event, Defendants are incorrect that the Rehabilitation Act does not abrogate States' eleventh amendment immunity. Before the ADA had been enacted, Congress passed the Civil Rights Remedies Equalization Act of 1986, which amended section 505 of the Rehabilitation Act to override States' eleventh amendment immunity. 42 U.S.C.  2000d-6. With this amendment, Congress repudiated the Supreme Court's holding in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) (finding that Congress did not abrogate the States' eleventh amendment immunity when it adopted the Rehabilitation Act of 1973). Thus, section 505 of the Rehabilitation Act of 1973, as amended in 1986, well before the enactment of the ADA, does show unequivocal congressional intent to override the State's immunity from damages. 8 01-06831 B. Private rights of action for damages are authorized by the ADA and play an integral role in the enforcement of the Act. Defendants also seek specifically a dismissal of Plaintiff's claims for damages against the State of North Carolina8 under title II of the ADA. See part VIII of Defendants' Memorandum in Support of Motion to Dismiss, pages 15-19. They contend that title II provides no private right of action for damages.9 Defendants' position ignores both the Supreme Court's recent decision in Franklin v. Gwinnett County Schools, 112 S. Ct. 1028 (1992), as well as the framework for title II enforcement. In its last term, the Supreme Court unanimously held that damages are available in a private suit under title IX of the Education Amendments Act. Franklin v. Gwinnett County Schools, 112 S. Ct. 1028 (1992). In Franklin, a female student alleged that a teacher had continually abused her and subjected her to sexual harassment. The Court's holding that legal remedies were available was substantially based on a longstanding and fundamental principle of law: absent clear congressional direction to the contrary, federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute. 112 S. Ct. at 1032-33. Indeed, 8 Defendants also seek dismissal of all plaintiff's claims for damages against Judge Guice. These arguments are specious because nowhere does the plaintiff seek monetary damages from him. 9 Defendants correctly refrain from arguing that there is no private right of action per se under title II; instead, they argue that equitable relief is the only form of remedy available to a private plaintiff. 9 01-06832 the Court concluded that courts should presume the availability of all forms of relief unless Congress has expressly indicated otherwise. Id. (citing Davis v. Passman, 442 U.S. 228, 229 (1979)). Already having held in Cannon v. Univ. of Chicago, 441 U.S. 677 (1979), that title IX was enforceable through an implied private right of action, the Court in Franklin found no indication, either in the statute itself or its legislative history, that Congress intended to limit the remedies available under title IX. In fact, the Franklin Court noted that after Cannon, Congress twice10 had the opportunity to limit the remedies available under title IX and made no effort to do so either time.11 The Court thus unanimously concluded that the full range of remedies could be applied in a title IX suit. Because the relevant enforcement provisions of title II of the ADA are not only similar but identical to those of title IX, the Franklin analysis and result apply with equal force to title 10 See the Civil Rights Remedies Equalization Amendment of 1986, 42 U.S.C.  2000d-7, and the Civil Rights Restoration Act of 1987, Pub. L. 100-259, 102 Stat. 28 (1988), both of which also apply to title VI and to section 504. 11 Furthermore, Justices Scalia, Rehnquist, and Thomas have noted that when Congress withdraws the States' eleventh amendment immunity and provides that "remedies (including remedies both at law and in equity) are available . . . to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State," private plaintiffs may recover monetary damages under that legislation. Franklin, 112 S. Ct. at 1039 (concurring opinion of J. Scalia, joined by C.J. Rehnquist and J. Thomas) (parenthetical remark in the original). For title II, as for the statute then before these justices, Congress explicitly withdrew the States' eleventh amendment immunity and provided remedies identical to those normally available against any public or private entity other than a State. 10 01-06833 II. As noted at pages 4-6, supra, title II adopts the rights available under title VI through reference to the enforcement provisions of section 505;12 title II, like section 504 and title IX, is enforceable through a private right of action. Title II's language adopting the rights and remedies available under section 505 includes no limitations on the types of remedies available. Every court that has considered Franklin's application to section 504 has held that it applies with equal force to section 504 as it does to title IX. See, e.g., Wood v. Spring Hill College, 978 F.2d 1214, 1219-20 (11th Cir. 1992); J.L. v. Social Sec. Admin., 971 F.2d 260, 264 (9th Cir. 1992); Kraft v. Memorial Medical Center, 807 F. Supp. 785, 790 (S.D. Ga. 1992); Ali v. City of Clearwater, 807 F. Supp. 701, 704 (M.D. Fla. 1992); Doe v. Dist. of Columbia, 796 F. Supp. 559, 571 (D.C.D.C. 1992); Tanberg v. Weld County Sheriff, 787 F. Supp. 970, 972 (D. Colo. 1992). As the Franklin Court noted with respect to title IX, Congress has twice amended the remedies provision for section 504 without limiting the types of remedies 12 See Consolidated Rail Corp. v. Darrone, 465 U.S. 582 (1983), finding back pay available under section 504, and discussion of Darrone in Franklin, 112 S. Ct. at 1035 (the title VI procedures apply to section 504 actions, and "a majority in Guardians [Assn v. Civil Service Comm'n of New York City, 463 U.S. 582 (1983)], had 'agreed that retroactive relief is available to private plaintiffs for all discrimination . . . that is actionable under Title VI."). 11 01-06834 available.13 Nor is there any hint of a limitation on remedies in the legislative history of title II.14 Thus, the Franklin analysis could not apply more directly and more clearly to title II. This definitive Supreme Court decision requires a finding that, because title II is enforceable through a private right of action, it makes available to private plaintiffs an unrestricted range of remedies. However, even if the Supreme Court had not articulated this analysis in Franklin, the language, legislative history, and statutory framework of title II would compel the same conclusion. As explained above, the title II enforcement procedures are the same as those for section 504, which in turn adopt those of title VI. Both section 504 and title VI authorize the award of damages. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) (back pay under section 504); Miener v. State of Missouri, 673 F.2d 969 (8th Cir. 1982) (legal money damages under section 504); and Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir. 1980) (legal money damages under section 504). See also 13 See note 10, above. It is also significant that title III of the ADA, which applies to private entities operating places of public accommodation and commercial facilities, does limit private plaintiffs to equitable relief by reference to the procedures for enforcing title II of the Civil Rights Act of 1964, 42 U.S.C.  2000a-3(a) See 42 U.S.C.  12188. See also the Department of Justice's regulation implementing title III, 28 C.F.R.  36.501(a) (1992), providing in pertinent part, "Any person who is being subjected to discrimination on the basis of disability in violation of the Act or this part . . . may institute a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order." 14 See discussion, infra, at 12. 12 01-06835 Guardians Assn. v. Civil Service Comm'n of New York City, 463 U.S. 582 (1983) (title VI). Apart from these precedents under parallel statutes, the legislative history of title II demonstrates that Congress fully intended all remedies to be available to an aggrieved private party: As with section 504, there is also a private right of action for persons with disabilities, which includes the full panoply of remedies. Rep. of Comm. on Educ. and Labor at 98, 1990 U.S.C.C.A.N. at 381; see also H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 475 (Report of the Judiciary Committee) (citing Miener v. State of Missouri, 673 F.2d 969 (8th Cir. 1982), cert. denied, 459 U.S. 909 (1982)); S. Rep. No. 116 at 57-58. Defendants rely largely on selected quotations from the Court of Appeals' decision in Guardians Assn. v. Civil Service Comm'n of New York City, 633 F.2d 232 (2d Cir. 1980), aff'd, 463 U.S. 582, cert. denied 463 U.S. 1228 (1983) to support their claim that damages are not available under title VI (and therefore section 504 and title II). Defendants claim that the Second Circuit's Guardians panel held that title VI did not provide for a private right of action for compensatory relief. However, Defendants have incorrectly stated the Second Circuit's holding in Guardians and, by inference, the Supreme Court's reasons for affirming that decision. Defendants have, accordingly, missed the significance of the Supreme Court's action in that case. In fact, a clear majority of the Supreme 13 01-06836 Court in Guardians expressed the view that damages were available under title VI in private actions under some circumstances.15 In Franklin, the Court reiterated this view and in fact pointed to its decision in Guardians as supporting the traditional presumption in favor of a federal court's power to award any appropriate legal relief. Franklin, 112 S. Ct. 1028, 1035 (1992). Defendants also overlook the Supreme Court's unanimous holding in Consolidated Rail Corp. v. Darrone, see supra at note 11, that section 504 authorized various forms of relief. See discussion of both Darrone and Guardians in Franklin at 1035. Defendants also point to Eastman v. Virginia Polytechnic Institute, 939 F.2d 204 (4th Cir. 1991), as standing for the proposition that section 504 (and, presumably, title II) "does not permit an award of compensatory damages for pain and suffering." The Eastman court, however, relied heavily on "the legislative-intent approach," id. at 208, to conclude that section 504 did not create the availability of monetary remedies. Obviously, in light of the clear legislative intent that monetary remedies were available under title II, that same approach in this case would yield the opposite result. But more significantly, the now-controlling Franklin analysis also yields the opposite result. 15 See 463 U.S. 582, 594-95 (opinion of J. White, joined by J. Rehnquist), 463 U.S. at 612 (concurring opinion of J. O'Connor), 463 U.S. at 615 (dissenting opinion of J. Marshall), and 463 U.S. at 635-36 (dissenting opinion of J. Stevens, joined by J. Brennan and J. Blackmun). 14 01-06837 Another fundamental principle articulated in the Franklin decision counsels in favor of the availability of monetary damages: courts should determine the adequacy of damages at law before resorting to equitable relief. 112 S. Ct. at 1038. "Under the ordinary convention, the proper inquiry would be whether monetary damages provided an adequate remedy, and if not, whether equitable relief would be appropriate." Id. (citing Whitehead v. Shattuck, 138 U.S. 146, 150 (1891)). Thus, the Court should first determine whether monetary damages could make Ms. Livingston whole, and then, if damages were insufficient, look to various forms of equitable relief. Here, where some forms of equitable relief, such as back pay, are unavailable because the relationship between Plaintiff and Defendants did not arise in an employment context, legal (monetary) damages take on a heightened significance and should be allowed. C. This suit should not be stayed pending review by the Department of Justice. Defendants argue that Plaintiff's title II claim should be decided in the first instance by the Department of Justice, because of the doctrine of primary jurisdiction. See part XI of Defendants' Memorandum in Support of Motion to Dismiss, pages 22-23. Stopping short of an assertion that, before the Court can entertain Plaintiff's complaint, agency review is required, Defendants merely state that consideration must be given to whether the agency "charged with primary responsibility" should act first. Defendants do not appear to argue that exhaustion of 15 01-06838 administrative remedies is required, nor could they so argue.16 Rather, they state that staying the proceedings for administrative action is within the discretion of the Court. For several reasons, no useful purpose would be served by adopting Defendants' suggestion. Private parties who have grievances redressable by title II may seek judicial or administrative relief, or both. Plaintiff has chosen this Court as a desired forum, as she has a right to do. Deferral to the Department of Justice at this stage would undermine the ability of private parties to seek appropriate redress in a forum sanctioned by Congress. Additionally, in this proceeding Ms. Livingston has also asserted rights under statutes that are not enforceable by the Department of Justice.17 This Court represents a forum in which 16 Indeed, there is nothing in the ADA or the title II regulation that requires or suggests that exhaustion of administrative remedies is required or even appropriate. Moreover, the legislative history of title II makes clear that exhaustion of administrative remedies is not required or recommended: Again, consistent with section 504, it is not the Committee's intent that persons with disabilities need to exhaust Federal administrative remedies before exercising their private right of action. Rep. of Comm. on Educ. and Labor at 98, reprinted in 1990 U.S.C.C.A.N. at 381. 17 In fact, her First Amended Complaint alleges violations f (1) 42 U.S.C.  1983, (2) North Carolina's Handicapped Persons' Act, N.C. Gen'l Stat.  168-2, and (3) the Open Courts Provision of the North Carolina Constitution, Art. I, S 18. (Plaintiff's Second Amended Complaint, if the court allows her to (continued. . .) 16 01-06839 all these claims can be heard. In terms of judicial economy, it would be counter-productive to withhold judgment on the non-ADA claims while awaiting agency review of the title II allegation. Furthermore, by allowing the United States to participate in this action as amicus curiae, the Court can receive the benefit of the Department of Justice's expertise without a delay in resolving this matter. Defendants cite Crawford v. University of North Carolina, 440 F. Supp. 1047 (M.D.N.C. 1977), in support of their recommendation. In Crawford, a student with a hearing impairment filed an action under the Civil Rights Act of 1871 and the Rehabilitation Act of 1973 seeking injunctive relief and damages for his graduate school's refusal to provide a sign language interpreter. The court held that where there were serious questions as to whether the statutes in question authorized private suits, and whether the appropriate federal agency's regulation had become effective, the proper remedy was to grant a preliminary injunction and direct the plaintiff to file an administrative complaint with the agency. 440 F. Supp. 1047. The circumstances of Crawford are easily distinguished from those in the instant case. Here, private suits are clearly authorized by the ADA, the title II regulation became effective January 26, 1992, and an administrative complaint filed with the 17(...continued) file it, does not include allegations concerning the North Carolina Handicapped Persons' Act.) 17 01-06840 agency already has been disposed of in deference to the instant action. V. CONCLUSION Defendants have failed to establish grounds for dismissal based on eleventh amendment immunity, damages for private rights of action, and agency review. Dated: Washington, D.C. March 3, 1993 Respectfully submitted, THOMAS J. ASHCRAFT JAMES P. TURNER United States Attorney, Acting Assistant Attorney Western District of General for Civil Rights North Carolina By:(SIGNATURE) John L. Wodatch, Chief L. Irene Bowen, Deputy Chief Mary Lou Mobley, Attorney U.S. Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-0816 18 01-06841 CERTIFICATE OF SERVICE I, the undersigned, attorney for the United States of America, do hereby certify that I have this date served upon the persons listed below, by United States mail, postage pre-paid, a true and correct copy of the foregoing Memorandum of the United States, Appearing as Amicus Curiae, in Response to Defendants' Motion to Dismiss: LARS F. NANCE, ESQUIRE Special Deputy Attorney General N.C. Department of Justice P.O. Box 629 Raleigh, N.C. 27602-0629 (Attorney for the Defendants) WILLIAM G. SIMPSON, JR., ESQUIRE North Carolina Civil Liberties Union Legal Foundation P.O. Box 28004 Raleigh, N.C. 27611 (Attorney for the Plaintiff) SO CERTIFIED this 3rd day of March, 1993. (SIGNATURE) Mary Lou Mobley Trial Attorney United States Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-0816 19 01-06842