Nos. 98-829, 99-423 and 99-940
In the Supreme Court of the United States
FLORIDA DEPARTMENT OF CORRECTIONS, PETITIONER
v.
WELLINGTON N. DICKSON, AKA DUKE, ET AL.
CHRISTOPHER ALSBROOK, PETITIONER
v.
CITY OF MAUMELLE, ET AL.
DENISE DEBOSE AND JAMES MCCULLOUGH, PETITIONERS
v.
STATE OF NEBRASKA, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURTS OF APPEALS
FOR THE ELEVENTH AND EIGHTH CIRCUITS
CONSOLIDATED SUPPLEMENTAL BRIEF
FOR THE UNITED STATES
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
No. 98-829
FLORIDA DEPARTMENT OF CORRECTIONS, PETITIONER
v.
WELLINGTON N. DICKSON, AKA DUKE, ET AL.
No. 99-423
CHRISTOPHER ALSBROOK, PETITIONER
v.
CITY OF MAUMELLE, ET AL.
No. 99-940
DENISE DEBOSE AND JAMES MCCULLOUGH, PETITIONERS
v.
STATE OF NEBRASKA, ET AL.
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURTS OF APPEALS
FOR THE ELEVENTH AND EIGHTH CIRCUITS
CONSOLIDATED SUPPLEMENTAL BRIEF
FOR THE UNITED STATES
Pursuant to this Court's Rule 15.8, the Solicitor General respectfully files
this supplemental brief to advise the Court of the United States' position
regarding the appropriate disposition of the petitions for writs of certiorari,
in light of this Court's recent decision in Kimel v. Florida Board of Regents,
No. 98-791, and United States v. Florida Board of Regents, No. 98-796.
1. These cases present the question whether the Americans with Disabilities
Act of 1990 (Disabilities Act), 42 U.S.C. 12111 et seq., is a proper exercise
of Congress's power under Section 5 of the Fourteenth Amendment, thereby
constituting a valid exercise of congressional power to abrogate the States'
Eleventh Amendment immunity from suit by individuals. In a brief in opposition
filed in Florida Department of Corrections v. Dickson, No. 98-829, in December
1998, the United States opposed the petition for a writ of certiorari predominantly
on the ground that no circuit conflict existed. See Br. in Opp. 5, 13-14.
Since that time, four more courts of appeals have, like the Eleventh Circuit
here, upheld the Disabilities Act's abrogation of the States' Eleventh Amendment
immunity. See Garrett v. University of Ala., 193 F.3d 1214 (11th Cir. 1999);
Dare v. California, 191 F.3d 1167 (9th Cir. 1999); Martin v. Kansas, 190
F.3d 1120 (10th Cir. 1999); Muller v. Costello, 187 F.3d 298 (2d Cir. 1999).1
On July 23, 1999, however, the en banc Eighth Circuit became the first and
only court of appeals to invalidate the Disabilities Act's abrogation of
Eleventh Amendment immunity, in a case arising under Title II of that Act.
See Alsbrook v. City of Maumelle, 184 F.3d 999 (1999), petition for cert.
pending, No. 99-423. The Eighth Circuit subsequently extended its holding
to Title I of the Disabilities Act. See DeBose v. Nebraska, 186 F.3d 1087
(1999), petition for cert. pending, No. 99-940.
2. As we advised the Court in a supplemental brief filed in Dickson on October
4, 1999, the en banc Eighth Circuit's decisions in DeBose and Alsbrook have
created a square conflict in the circuits regarding the constitutionality
of the Disabilities Act's abrogation provision. The United States thus no
longer adheres to the view expressed in its brief in opposition that the
petition does not merit an exercise of this Court's certiorari jurisdiction.
We nevertheless suggested in our supplemental brief that the Court hold
the petition pending the Court's decision in United States v. Florida Board
of Regents, cert. granted, 119 S. Ct. 902 (1999) (No. 98-796), and Kimel
v. Florida Board of Regents, cert. granted, 119 S. Ct. 901 (1999) (No. 98-791).
Those cases presented the question of whether the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq., contains a clear expression
of Congress's intent to abrogate, and whether the ADEA reflects a proper
exercise of Congress's power under Section 5 of the Fourteenth Amendment.
We further advised that, within fourteen days of the decision in those ADEA
cases, the United States would submit a supplemental filing containing its
views, in light of that ruling, as to the appropriate disposition of the
Dickson petition. Likewise in Alsbrook and DeBose, in response to petitions
seeking review of decisions of the Eighth Circuit invalidating the Disabilities
Act's abrogation of Eleventh Amendment immunity under both Title I and Title
II of that Act, we filed briefs suggesting that the cases be held pending
Kimel and advising that we would make a supplemental filing after the decision
in Kimel.2
On January 11, 2000, this Court ruled that the abrogation of Eleventh Amendment
immunity in the ADEA is invalid because the ADEA does not represent a proper
exercise of Congress's power under Section 5 of the Fourteenth Amendment.
See Kimel v. Florida Bd. of Regents, No. 98-791 (Jan. 11, 2000), slip op.
13-26. The usual practice of the Court in such circumstances would be to
grant certiorari in these cases, and vacate and remand for reconsideration
in light of that decision, and that would be an appropriate course of action
here.
3. On the other hand, there are several reasons why the Court might wish
instead to grant certiorari now in one or more cases to address the constitutionality
of the Disabilities Act's abrogation provision. In that event, Florida Department
of Corrections v. Dickson, No. 98-829, provides the best vehicle for that
purpose, among the several cases in which petitions are now pending, and
we recommend that the Court grant the petition in Dickson and set it for
plenary hearing, and hold the other petitions pending the decision in Dickson.
a. The issue is arguably ripe for this Court's review now because there
is a firm and entrenched conflict in the circuits. The issue has been thoroughly
debated and fully aired by the courts of appeals over a number of years,
starting after this Court's decision in Seminole Tribe v. Florida, 517 U.S.
44 (1996). See Crawford v. Indiana Dep't of Corrections, 115 F.3d 481 (1997).
The issue also was addressed by a number of courts, including the court
of appeals here, following this Court's decision in City of Boerne v. Flores,
521 U.S. 507 (1997). See Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.),
cert. denied, 119 S. Ct. 58 (1998); Clark v. California, 123 F.3d 1267 (9th
Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998); see also Seaborn v. Florida,
143 F.3d 1405 (11th Cir. 1998), cert. denied, 119 S. Ct. 1038 (1999); cf.
Torres v. Puerto Rico Tourism Co., 175 F.3d 1, 6 n.7 (1st Cir. 1999) ("we
have considered the issue of Congress's authority sufficiently to conclude
that, were we to confront the question head-on, we almost certainly would
join the majority of courts upholding the provision"). And the courts
of appeals decided the issue yet again following this Court's decision in
Florida Prepaid Postsecondary Education Expense Board v. College Savings
Bank, 119 S. Ct. 2199 (1999). See Garrett v. University of Ala., 193 F.3d
1214 (11th Cir. 1999); Dare v. California, 191 F.3d 1167 (9th Cir. 1999);
Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999); Muller v. Costello, 187
F.3d 298 (2d Cir. 1999). The latter four courts of appeals, moreover, considered
or reconsidered the question following the Eighth Circuit's invalidation
of the Disabilities Act's abrogation provision in Alsbrook, supra, and have
uniformly rejected that court's reasoning and conclusion.3
Nothing in this Court's decision in Kimel suggests that requiring yet a
fourth round of consideration by the courts of appeals will either diminish
the conflict in the circuits or cast further relevant light on the question
presented here. This Court did not appear to establish any new legal standards
or broad pronouncements about the scope of the Section 5 power in Kimel.
Rather, the Court applied the congruence and proportionality test previously
established in Flores and clarified in Florida Prepaid (see Kimel, slip
op. 18), and concluded that the ADEA's specific structure, scope, and legislative
record failed both prongs (id. at 18-27). The Court's decision turned upon
(1) the state of equal protection jurisprudence regarding specifically the
use of age as a proxy for employment decisionmaking (id. at 19-21), (2)
the broad and sweeping scope of the prohibition on the use of age by employers
that the precise terms of the ADEA impose (id. at 22-24), and (3) the absence
in the ADEA's legislative record of evidence upon which Congress could have
found that "state and local governments were unconstitutionally discriminating
against their employees on the basis of age" and thus that Congress
could reasonably conclude that "broad prophylactic legislation was
necessary in this field" (id. at 27 (emphasis added)).
That analysis is unlikely to alter materially the courts of appeals' analysis
of the Disabilities Act. For one thing, the state of equal protection jurisprudence
with respect to discrimination on the basis of disabilities is quite different
from that of discrimination on the basis of age. While this Court reviewed
the ADEA against the backdrop of three decisions of the Court uniformly
sustaining governmental employers' use of age, with respect to discrimination
against persons with disabilities, this Court's decisions support the contrary
conclusion here. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
446 (1985) ("[D]oubtless, there have been and there will continue to
be instances of discrimination against the retarded that are in fact invidious,
and that are properly subject to judicial correction under constitutional
norms"); Alexander v. Choate, 469 U.S. 287, 295 n.12 (1985) ("well-cataloged
instances of invidious discrimination against the handicapped do exist");
cf. Olmstead v. L.C., 119 S. Ct. 2176, 2192 (1999) (Kennedy, J., concurring)
("[T]he line between animus and stereotype is often indistinct.").
The scope and structure of the Disabilities Act is also distinctly more
detailed and nuanced than the ADEA's, which largely transplanted to the
age context procedures and remedies developed to combat racial, gender,
and religious discrimination. See Kimel, slip op. 27 (noting the "indiscriminate
scope of the [ADEA's] substantive requirements"). Title I of the Disabilities
Act does not require governmental entities to articulate a "compelling
interest" or to advance their interests by the least restrictive means.
It only requires "reasonable accommodations" that do not impose
an "undue hardship" on the State. 42 U.S.C. 12112(b)(5)(A); see
also 42 U.S.C. 12111(10) (defining "undue hardship" to mean "an
action requiring significant difficulty or expense" in light of "the
overall financial resources" and "type of operation" of the
covered entity). The Disabilities Act's delineation of the persons protected
by the Act, in the definition of "qualified individual with a disability,"4
ensures that the scope of coverage is much narrower in the first instance
than the ADEA, which regulates state employers' treatment of almost all
persons over age 40. Furthermore, the exhaustively detailed anti-discrimination
prohibition and numerous carefully calibrated exceptions and defenses, 42
U.S.C. 12112, 12113, further evidence the distinct structure and operational
scope of the Disabilities Act.
Finally, the Disabilities Act's legislative record,5 which builds upon congressional
findings and evidence compiled during the passage of the Rehabilitation
Act of 1973, 29 U.S.C. 794, and the Individuals with Disabilities Education
Act, 20 U.S.C. 1400 et seq., provides a solid foundation for Congress's
conclusion that state and local governments, like private employers, engage
in unconstitutional discrimination against persons with disabilities and
that the problem is sufficiently entrenched and widespread to require a
national response.
In short, Kimel does not appear to have created new legal principles that
would likely alter the courts of appeals' divided rulings on the constitutionality
of the Disabilities Act's abrogation provision. It applied now-settled law
to the particular jurisprudential context, structure, and legislative record
of one statute. The courts of appeals have already-and repeatedly- applied
that same congruence and proportionality standard to the Disabilities Act;
little would be gained or likely changed by requiring them to apply it again.
Moreover, the Disabilities Act is vital civil rights legislation needed
to protect persons with disabilities against invidious and irrational stereotypes
and limitations on their ability to function in society, and to permit them
to enjoy "perfect equality of civil rights and the equal protection
of the laws against State denial or invasion" (Ex parte Virginia, 100
U.S. 339, 346 (1880)). As a consequence of the Eighth Circuit's decisions,
the operation of this important civil rights legislation has been significantly
impaired in seven States. Unlike litigants within the six circuits in which
the Disabilities Act's abrogation of Eleventh Amendment immunity has been
sustained, persons with disabilities in the Eighth Circuit cannot fully
enforce their federal rights under the Disabilities Act in federal court.
Remanding these cases for reconsideration in light of Kimel will perpetuate
that disparity in civil rights protection, while uncertainty about the Disabilities
Act's status obstructs and delays pending efforts to enforce the Act's provisions
nationwide.
b. In addition to the petition in No. 98-829, petitions for writs of certiorari
seeking review of the constitutionality of the Disabilities Act's abrogation
provision are pending in Alsbrook v. Maumelle, No. 99-423; DeBose v. Nebraska,
No. 99-940; and Zimmerman v. Oregon Department of Justice, No. 99-243.6
We believe that Dickson, which was the first of the pending petitions to
be filed, presents the most appropriate vehicle for resolving the question
presented. First, the case was decided on a motion to dismiss. That clean
record permits straightforward and comprehensive consideration of the constitutional
question presented, without simultaneously requiring consideration of the
occasionally difficult statutory construction questions posed by the Act.
The reasonable accommodation claim made by petitioner, moreover, is typical
of the claims most frequently made under the Disabilities Act and thus presents
a fair snapshot of both the Act's practical operation and the types of discrimination
persons with disabilities encounter in the government workplace.
Second, Dickson arises under Title I of the Disabilities Act, which governs
discrimination by both public and private employers.7 The cases that arise
under Title II-Alsbrook and Zimmerman-complicate the constitutional question
presented by requiring consideration of additional questions, including
whether the constitutional inquiry should focus on the Title as a whole
or should be undertaken through piecemeal review of the individual regulations
established by the Department of Justice pursuant to 42 U.S.C. 12134(a).
See Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698 (4th Cir.
1999), petition for cert. pending, No. 99-424.
Alsbrook is a less appropriate vehicle for two additional reasons. There
is a serious question whether the plaintiff even qualifies as a person with
a disability covered by the Disabilities Act, because his impairment is
that he has 20/30 vision, as opposed to 20/20 vision, in one eye, and that
impairment limited his ability to work as a police officer in Little Rock,
Arkansas. It would be awkward and unusual to apply the congruence and proportionality
analysis in the context of a case in which there is a substantial question
about the applicability of the Act. Furthermore, the plaintiff's claim is
not typical of Title II claims. It is essentially an employment claim that
would be covered by Title I were it not for the fact that employment was
predicated on the State licensing board's certification of a police officer,
and it was that certification that was denied because of the plaintiff's
20/30 vision in one eye.
Zimmerman is a similarly problematic vehicle. Like Alsbrook, Zimmerman presents
an employment claim that ordinarily would have been covered by and litigated
under Title I; here it was not because the plaintiff did not exhaust his
administrative remedies. Zimmerman Pet. 2. The case thus would require resolution
of the predicate question whether Title II applies to employment decisions
at all. In addition, the Eleventh Amendment immunity question is a late
arrival to this litigation. It was raised for the first time by the plaintiff-not
the State-in his petition to this Court. It thus was not addressed by either
the district court or the court of appeals. The State, moreover, adopted
the assertion of immunity only after this Court called for a response to
the petition. The abrogation question thus arises in an extraordinary posture
where it is raised in the litigation by a party who does not believe immunity
attaches and has questionable authority to assert the immunity on the State's
behalf. See Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 389
(1998) ("The Eleventh Amendment * * * does not automatically destroy
original jurisdiction. * * * Unless the State raises the matter, a court
can ignore it.") (citations omitted); see also id. at 393-394 (Kennedy,
J., concurring).
* * * * *
The Court may wish to grant, vacate, and remand all the pending Disabilities
Act cases. Alternatively, the Court may wish to address the constitutionality
of the Disabilities Act's abrogation provision at this time. If the Court
chooses the latter course, it should grant and set for plenary argument
the petition for a writ of certiorari in Florida Department of Corrections
v. Dickson, No. 98-829. The petitions filed in Alsbrook v. Maumelle, No.
99-423; DeBose v. Nebraska, No. 99-940; and Zimmerman v. Oregon Department
of Justice, No. 99-243, should be held pending the Court's decision in Dickson
and then disposed of in accordance with the decision of the Court.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JANUARY 2000
1 The Fourth Circuit also upheld the Disabilities Act in Amos v. Maryland
Dep't of Pub. Safety & Correctional Servs., 178 F.3d 212 (1999). On
December 28, 1999, the Fourth Circuit vacated that opinion pending rehearing
en banc. Oral argument is scheduled for February 29, 2000.
2 Zimmerman v. Oregon Department of Justice, No. 99-243, is also pending
and purports to raise the same question. Although the United States has
not formally intervened in Zimmerman, we comment on it in this brief and,
therefore, are serving a copy of this brief on counsel in that case. Similarly,
because we briefly discuss Brown v. North Carolina Division of Motor Vehicles,
No. 99-424, we are serving counsel in that case with a copy of this brief,
even though that case presents a distinctly narrower question that is, in
our judgment, undeserving of this Court's review. See note 6, infra.
3 In addition to the pending rehearing en banc in the Fourth Circuit in
Amos, supra (see note 1, supra), we are aware of cases pending in the courts
of appeals of the Second, Sixth and Seventh Circuits in which briefing has
been completed and oral argument heard regarding whether the Disabilities
Act is valid Section 5 legislation. See Kilcullen v. New York State Dep't
of Labor, No. 99-7208 (2d Cir.); Jackan v. New York State Dep't of Labor,
No. 98-9589 (2d Cir.); Pomeroy v. Western Michigan Univ., No. 97-1751 (6th
Cir.); Wright v. Lima Correctional Inst., No. 97-3587 (6th Cir.); Nihiser
v. Ohio Environmental Protection Agency, No. 97-3933 (6th Cir.); Satterfield
v. Tennessee, No. 98-5765 (6th Cir.); Parr v. Middle Tennessee State Univ.,
No. 98-6701 (6th Cir.); Lane v. Tennessee, No. 98-6730 (6th Cir.); Erickson
v. Board of Governors, No. 98-3614 (7th Cir.). Briefing has also been completed
in two other Seventh Circuit cases. See Zihala v. Illinois Dep't of Public
Health, No. 99-1669 (7th Cir.); Walker v. Washington, No. 98-3308 (7th Cir.)
4 See 42 U.S.C. 12111(8). This Court explicated the scope of that definition
last Term in Sutton v. United Airlines, Inc., 119 S. Ct. 2139 (1999); Murphy
v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999); and Albertsons,
Inc. v. Kirkinburg, 119 S. Ct. 2162 (1999).
5 Fourteen congressional hearings and 63 field hearings by a special congressional
task force were held in the three years prior to passage of the Disabilities
Act. See S. Rep. No. 116, 101st Cong., 1st Sess. 4-5, 8 (1989); H.R. Rep.
No. 485, 101st Cong., 2d Sess. Pt. 2, at 24-28, 31 (1990); id. Pt. 3, at
24-25; id. Pt. 4, at 28-29; see also Timothy M. Cook, The Americans with
Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 393 &
nn.1-3 (1991) (listing the individual hearings). Congress also drew upon
reports submitted to Congress by the Executive Branch. See S. Rep. No. 116,
supra, at 6 (citing United States Civil Rights Commission, Accommodating
the Spectrum of Individual Abilities (1983); National Council on Disability,
Toward Independence (1986); and National Council on Disability, On the Threshold
of Independence (1988)); H.R. Rep. No. 485, supra, Pt. 2, at 28 (same).
6 A petition was also filed in Brown v. North Carolina Division of Motor
Vehicles, No. 99-424. As we explained in our brief in opposition in Brown
(at 9-16), that case raises the quite narrow question of whether a particular
Justice Department regulation as applied to an infrequently recurring factual
scenario and premised on an unsettled construction of the regulation can
be sustained under the Section 5 power.
7 DeBose, which is the last of the pending petitions to be filed, is also
a Title I case. Because that case arises from a lengthy jury trial for which
the content, character, and strength of the evidence presented has never
been summarized or reviewed by any of the lower court opinions, the preferable
course might be to hold DeBose for a decision in Dickson. Otherwise unknown
factual contours or procedural wrinkles in the case could impair or detract
from consideration of the constitutional question, which is directly and
straightforwardly presented in Dickson.