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No. 04-1203

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

STATE OF GEORGIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

PAUL D. CLEMENT
Acting 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. 04-1203

UNITED STATES OF AMERICA, PETITIONER

v.

STATE OF GEORGIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

1. This Court's review is warranted because, in re spondents' own words (Br. in Opp. 14), the Eleventh Cir cuit's holding and analysis of whether Title II of the Americans with Disabilities Act validly abrogates Elev enth Amendment immunity in the administration of prison systems "contrasts sharply with the Ninth Cir cuit's decision in Phiffer v. Columbia River Correctional Institute, [384 F.3d 791 (2004), petition for cert. pend ing, No. 04-947 (filed Jan. 11, 2005)]." Indeed, the con flict could hardly be more stark. In the prison context, Title II is a constitutional exercise of Congress's power in the Ninth Circuit; it is unconstitutional in the Third and Eleventh Circuits.

In the short time since the United States' and the plaintiff Tony Goodman's petitions were filed (see Good man v. Georgia, No. 04-1236 (filed Mar. 9, 2005)), the Third Circuit contributed to the split in its divided deci sion in Cochran v. Pinchak, 401 F.3d 184 (Mar. 15, 2005). In holding Title II's abrogation of state immunity unconstitutional in the prison context, the Third Circuit tracked the mode of analyzing Congress's power adopted by the Eleventh Circuit but eschewed by the Ninth Circuit. Cochran, 401 F.3d at 190-193 (citing Miller v. King, 384 F.3d 1248 (11th Cir. 2004)). The Third Circuit, like the Eleventh Circuit, restricted its analysis of Title II's appropriateness as Section 5 legis lation to the particular constitutional violation made out by the facts of the plaintiff's individual case. The start ing point for the court of appeals' analysis of Title II's congruence and proportionality was that "Cochran has alleged only the right to be free from invidious discrimi nation protected by the Equal Protection Clause." Cochran, 401 F.3d at 190. That was also the court's end ing point. It held that Title II is not appropriate legisla tion as applied to prison administration because it "af fects far more state prison conduct and prison services, programs, and activities than the Equal Protection Clause protects." Id. at 192-193. The Ninth Circuit, by contrast, addressed Title II's constitutionality as applied to the entire category of cases implicating prison admin istration, without reference to the particular claim of access to rehabilitative services asserted by the plaintiff there. See Phiffer, 384 F.3d at 792-793.

Respondents do not deny the conflict; they repeat edly acknowledge it (Br. in Opp. 6-8, 14-15). Respon dents insist (id. at 7-8), instead, that the conflict is not sufficiently "ripe" to warrant review, in part because the Ninth Circuit's analysis is not as detailed as that under taken by the Third and Eleventh Circuits. But that is precisely the point. The nature of the Ninth Circuit's analysis is a direct product of the legal standard it has adopted and used to implement this Court's decision in Tennessee v. Lane, 541 U.S. 509 (2004). Respondents, like the Third and Eleventh Circuit, no doubt disagree with that mode of analysis. It is that disagreement that this Court should resolve.

Moreover, although respondents suggest (Br. in Opp. 6-7) that the Court often denies certiorari in cases impli cating a shallow or nascent circuit split, that is rarely the case when the circuit split concerns the constitution ality of an Act of Congress. To the contrary, the Court frequently grants certiorari in cases in which a court has invalidated an Act of Congress even in the absence of a circuit conflict. See, e.g., Ashcroft v. ACLU, 124 S. Ct. 2783 (2004); United States v. Morrison, 529 U.S. 598 (2000); see also FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993) ("Because the Court of Appeals held an Act of Congress unconstitutional, we granted certiorari.").

2. The present case and Miller v. King, supra, were argued the same day before the same panel of the court of appeals. The court then issued its decision holding that Title II, as applied to prisons, exceeds Congress's legislative authority in Miller and, two days later, relied upon Miller to sustain respondents' Eleventh Amend ment immunity in this case. Pet. App. 19a. Respondents now insist (Br. in Opp. 5, 8-11) that the order of decision should immunize this case from certiorari review, rea soning (id. at 8-9) that a decision dictated by recently announced precedent lacks sufficient analysis to consti tute a proper vehicle for resolution of the circuit conflict. See ibid. (arguing that the case "is a poor vehicle" be cause "[t]he Eleventh Circuit took eight pages in Miller to analyze the legal issues involved * * * [and] took one sentence" in this case).

But surely the court of appeals meant what it said when it relied upon its holding in Miller to issue the identical holding in this case. Nothing in law or logic required the court of appeals to retype the text of the Miller decision into the Goodman opinion. Nor would this case be an appreciably better certiorari candidate if the Eleventh Circuit had taken that extraordinary (and extraordinarily redundant) step. The court's explicit and wholesale incorporation of Miller makes that deci sion as much a part of this case as it is in Miller itself. In any event, for manifold reasons relating both to the factors that animate this Court's certiorari practice and the vicissitudes of litigation, it is not uncommon for this Court to grant review in cases that involve the un elaborated application of circuit precedent in unpub lished opinions rather than in the case where the rule of law originated.1

Respondents further argue (Br. in Opp. 9) that Miller is "still in the pipeline" because the government's petition for rehearing in that case remains pending. That is true, but it does not provide a basis for denying review in this case. First, whatever the status of Miller, the holding in this case partially invalidating an Act of Congress is not "in the pipeline" and is not open to fur ther reconsideration by the Eleventh Circuit. The same panel that decided Miller and applied Miller wholesale to this case has denied rehearing in this case and the full Eleventh Circuit has denied rehearing en banc. Pet. App. 29a-30a. That denial by the full court makes the possibility that the court will reconsider the constitu tional holding in Miller too remote to counsel against certiorari. If the full Eleventh Circuit intended to re visit that constitutional holding, it presumably would have held the Goodman rehearing petition as well. There is no reasonable basis for holding that Title II is appropriate legislation in one case but not the other. Miller and the case at hand present the identical abro gation question, and were argued to the same panel the same day for just that reason. See 7/9/04 C.A. Order (court of appeals order aligning oral argument in the two cases because the cases concern the "similar, if not identical" legal question).2 Thus, the circuit conflict con cerning the constitutionality of an Act of Congress is fully joined.

Second, in light of the Third Circuit's Cochran deci sion, even in the unlikely event that the court of appeals altered its constitutional ruling in Miller, that would neither eliminate the circuit conflict nor change its depth. Only the alignment of the courts of appeals in the two-to-one circuit split would change. The necessity for this Court's review to resolve the circuit conflict would remain, as would Goodman's and the United States' in terest in having the judgment in this case overturned.

3. This Court's review is warranted because the court of appeals' decision is contrary to this Court's pre cedent. In sustaining Title II as applied in the context of access to the courts in Lane, this Court explicitly de fined the relevant as-applied context comprehensively, analyzing the full range of constitutional rights and Title II remedies potentially at issue in cases involving access to judicial services. Lane, 541 U.S. at 522-523; see U.S. Pet. 11-16. Although the claims of the particular plain tiffs before the Court in Lane involved only an equal protection claim and a defendant's right to be present in criminal proceedings, id. at 513-514, the Court did not ask-as the Third and Eleventh Circuits have-whether Title II was a congruent and proportional means of en forcing Lane's and Jones's individually asserted consti tutional rights. Rather, the Court framed the as-applied analysis in terms of the broad "class of cases implicating the accessibility of judicial services." Id. at 531 (empha sis added); see also id. at 525 (noting that Title II re sponds to a history of unequal treatment in, inter alia, the "administration of * * * the penal system"); Ne vada Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003) (broadly upholding the family leave provisions of the Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq., as a proper exercise of Congress's Section 5 power to combat historic employment discrimination against women, in a case that involved a male employee's appli cation for family leave and no constitutional claim other than an asserted violation of substantive and procedural due process arising from the denial of a hearing).

Respondents cannot reconcile the holding below with this Court's precedent. Instead, after citing the control ling language concerning Title II's application to the entire "class of cases" implicated by the relevant con text, in their very next breath (Br. in Opp. 12-13) re spondents simply transmute that language into the "Ti tle II claim in question." The two standards are not fun gible, as the circuit conflict evidences.

4. This is the appropriate case and time to resolve the circuit conflict. Respondents' argument (Br. in Opp. 10) that petitioner Goodman has obtained the relief he sought in the court of appeals is without merit. First, Goodman's interests are not the only ones at stake in this case. The United States was a party in the court of appeals too, see 28 U.S.C. 2403, and the federal govern ment's interest-to sustain the constitutionality and thus continued operation of federal law-is directly and distinctly impaired by the court's ruling.

Second, the remand to adjudicate constitutional claims for damages under 42 U.S.C. 1983 based on an asserted Eighth Amendment violation does not ade quately protect Goodman's interests. The availability of monetary relief for constitutional violations under Sec tion 1983-even assuming the qualified immunity hurdle can be overcome-is not coextensive with the standards or scope of relief available under Title II.3

Third, Goodman's claim for injunctive relief under Title II has now been imperilled because, if Title II is not proper Section 5 legislation, then he can only obtain injunctive relief if the application of Title II reflects a proper exercise of the Commerce Clause power. Re spondents already have argued that it is not. Miller, 384 F.3d at 1268 n.23.

Fourth, an Act of Congress has been held unconstitu tional in two circuits. The gravity of those rulings alone would warrant an exercise of this Court's certiorari ju risdiction. See United States v. Gainey, 380 U.S. 63, 65 (1965) ("We granted certiorari * * * to review the exer cise of the grave power of annulling an Act of Con gress."). Furthermore, the multi-circuit conflict encom passes jurisdictions housing one-third of the Nation's state prisoners. Bureau of Justice Statistics, U.S. Dep't of Justice, Prisoners in 2003, at 3 (2004). And the abil ity of nearly one-third of the States to invoke their sov ereign immunity as a defense to direct federal regula tion of an important governmental operation is now sub ject to competing and inconsistent rules. While Georgia is content to delay review because its immunity has been preserved, the state defendants denied immunity in Phiffer (and presumably others throughout the Ninth Circuit) are not. See generally Florida Prepaid Post secondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1999) (certiorari granted to review constitu tionality of Section 5 legislation notwithstanding the absence of a circuit conflict and interlocutory status of the proceedings); City of Boerne v. Flores, 521 U.S. 507 (1997) (same).4

Finally, in the span of just six months, three diver gent court of appeals' decisions have issued addressing Title II's application to prison administration, and a fourth court of appeals considered but then avoided de ciding the question, see Spencer v. Easter, 109 Fed. Appx. 571 (4th Cir. 2004), cert. denied, 125 S. Ct. 1611 (2005). That demonstrates that this is the type of impor tant and recurring question that warrants this Court's prompt resolution.

* * * * *

For the foregoing reasons and those stated in the petition, the petition for a writ of certiorari should be granted.

Respectfully submitted.

PAUL D. CLEMENT
Acting Solicitor General

APRIL 2005

1 See, e.g., Clark v. Martinez, 125 S. Ct. 716 (2005); National Archives & Records Admin. v. Favish, 541 U.S. 157 (2004); Buck hannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598 (2001); Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999); Old Chief v. United States, 519 U.S. 172 (1997); Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995); MCI Telecommunications Corp. v. American Tel. & Tel. Co., 512 U.S. 218 (1994); Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994); Shalala v. Schaefer, 509 U.S. 292 (1993); Wooddell v. International Bhd. of Elec. Workers, Local 71, 502 U.S. 93 (1991); Portland Golf Club v. Commissioner, 497 U.S. 154 (1990); Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990); Hardin v. Straub, 490 U.S. 536 (1989); Rose v. Clark, 478 U.S. 570 (1986).

2 In addition, the Eleventh Circuit recently applied Miller in upholding Title II's abrogation of Eleventh Amendment immunity in the educational context. See Association for Disabled Americans, Inc. v. Florida Int'l Univ., No. 02-10360, 2005 WL 768129 (11th Cir. Apr. 6, 2005). And the Third Circuit also relied upon Miller in expanding the circuit conflict on Title II's application in the prison context. See Cochran, 401 F.3d at 190-193.

3 Compare, e.g., Hudson v. McMillian, 503 U.S. 1, 8-9 (1992) (plaintiffs alleging deliberate indifference under the Eighth Amend ment must prove both objective component as to conditions of con finement or medical treatment and subjective component as to state of mind of prison officials), with Tennessee v. Lane, supra (Title II requires public entities to make reasonable accommodations to avoid discriminating on the basis of disability in the provision of programs and services).

4 Cf. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993) (States may immediately appeal denials of Eleventh Amendment immunity under the collateral order doctrine, in part because it is a "fundamental constitutional protection" the value of which "is for the most part lost as litigation proceeds").