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No. 05-777

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES FINANCE AND SUPPORT, ET AL.

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

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT
Solicitor General
Counsel of Record

WAN J. KIM
Assistant Attorney General

GREGORY G. GARRE
Deputy Solicitor General

PATRICIA A. MILLETT
Assistant to the Solicitor
General

JESSICA DUNSAY SILVER
SARAH E. HARRINGTON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131 to 12165, is a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment, as applied to institutionalization.

PARTIES TO THE PROCEEDING

The petitioner in this Court is the United States of America, which intervened in the court of appeals, pursuant to 28 U.S.C. 2403, to defend the constitutionality of the abrogation of Eleventh Amendment immunity in Title II of the Americans with Disabilities Act of 1990.

The respondents are the Nebraska Department of Health and Human Services Finance and Support, the Nebraska Department of Health and Human Services, Stephen B. Curtiss, in his official capacity as the Director of Nebraska Department of Health and Human Services Finance and Support, and Ron Ross, in his official capacity as the Director of Nebraska Department of Health and Human Services, all of whom were the defendants below.

The private plaintiffs below are also respondents: Bill M., by and through his father and natural guardian, William M., and on behalf of themselves and all other persons similarly situated; John Doe, by and through his mother and natural guardian, Jane Doe, and on behalf of themselves and all other persons similarly situated; Heather V., by and through her mother and guardian, Marcia V., and on behalf of themselves and all other persons similarly situated; Jane S., by and through her mother and natural guardian, Patricia S., and on behalf of themselves and all other persons similarly situated; Kevin V., by and through his mother and legal guardian, Kathy V., and on behalf of all other persons similarly situated; Jennifer T., by and through her parents and legal guardians, Sharon T. and Greg T., and on behalf of themselves and all other persons similarly situated; William M., on behalf of his son, Bill M.; Jane Doe, on behalf of her son, John Doe; Marcia V., on behalf of her daughter, Heather V.; Patricia S., on behalf of her daughter, Jane S.; Kathy V., on behalf of her son, Kevin V.; Sharon T., on behalf of her daughter, Jennifer T.; and Greg T., on behalf of his daughter, Jennifer T.

In the Supreme Court of the United States

No. 05-777

UNITED STATES OF AMERICA, PETITIONER

v.

NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES FINANCE AND SUPPORT, ET AL.

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

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-8a) is reported at 408 F.3d 1096. The opinion of the district court (App., infra, 9a-10a) is unreported.

JURISDICTION

The court of appeals entered its judgment on May 27, 2005. The petitions for rehearing filed by the United States and by the private plaintiffs were both denied on August 18, 2005 (App., infra, 11a). By order of November 4, 2005, Justice Thomas extended the time within which to file a petition for a writ of certiorari to and including December 16, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY PROVISIONS INVOLVED

The relevant constitutional and statutory provisions are reproduced at App., infra, 12a-33a.

STATEMENT

1. The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq., established a "comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. 12101(b)(1). Congress found that, "historically, society has tended to isolate and segregate individuals with disabilities," and that "such forms of discrimination * * * continue to be a serious and pervasive social problem." 42 U.S.C. 12101(a)(2). Congress specifically found that discrimination against persons with disabilities "persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services." 42 U.S.C. 12101(a)(3). In addition, Congress found that persons with disabilities

continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.

42 U.S.C. 12101(a)(5). Congress concluded that persons with disabilities

have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.

42 U.S.C. 12101(a)(7). Based on those findings, Congress "invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment" to enact the ADA. 42 U.S.C. 12101(b)(4).

The ADA targets three particular areas of discrimination against persons with disabilities. Title I, 42 U.S.C. 12111-12117, addresses discrimination by employers affecting interstate commerce; Title II, 42 U.S.C. 12131-12165, addresses discrimination by governmental entities in the operation of public services, programs, and activities, including transportation; and Title III, 42 U.S.C. 12181-12189, addresses discrimination in public accommodations operated by private entities.

This case arises under Title II of the ADA, which provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. 12132. A "public entity" is defined to include "any State or local government" and its components. 42 U.S.C. 12131(1)(A) and (B). Title II may be enforced through private suits against public entities. 42 U.S.C. 12133. Congress expressly abrogated the States' Eleventh Amendment immunity to private suits in federal court. 42 U.S.C. 12202.

Title II prohibits governments from, among other things, denying a benefit to a qualified individual with a disability because of his disability, providing him with a lesser benefit than is given to others, or limiting his enjoyment of the rights and benefits provided to the public at large. See 28 C.F.R. 35.130(b)(1)(i), (iii) and (vii). In addition, a public entity must make reasonable modifications in its policies, practices, or procedures if necessary to avoid the exclusion of individuals with disabilities, unless the accommodation would impose an undue financial or administrative burden on the government, or would fundamentally alter the nature of the service. See 28 C.F.R. 35.130(b)(7).1

2. The plaintiffs, Bill M., et al., are individuals with mental retardation and other developmental disabilities and their guardians. They seek medical services from the State of Nebraska through programs that receive federal financial assistance under the Medicaid Act, 42 U.S.C. 1396 et seq. The plaintiffs allege, inter alia, that Nebraska is violating Title II of the ADA, as interpreted by this Court in Olmstead v. L.C., 527 U.S. 581 (1999), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (2000 & Supp. II 2002), by offering plaintiffs medical services exclusively in institutional settings, when services could be provided in less restrictive community placements without fundamentally altering the nature of the State's medical programs or imposing an undue financial or administrative burden. App., infra, 2a-3a; U.S. C.A. Br. 4.

Plaintiffs sued the state agencies and officials responsible for administering the State's Medicaid program, seeking only declaratory and prospective injunctive relief. Nebraska moved to dismiss the plaintiffs' Title II claims against the state agencies on the ground of Eleventh Amendment immunity. The district court denied the motion. App., infra, 9a-10a.

3. a. Nebraska filed an interlocutory appeal, see Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993), and the United States intervened on appeal, pursuant to 28 U.S.C. 2403(a), to defend the constitutionality of Congress's abrogation of Eleventh Amendment immunity.

The court of appeals reversed. App., infra, 1a-8a. Previously, the en banc Eighth Circuit had held that Title II, in its entirety, is not a valid exercise of Congress's legislative authority under Section 5 of the Fourteenth Amendment. Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc), cert. dismissed, 529 U.S. 1001 (2000). The court of appeals held that Alsbrook compelled dismissal of the plaintiffs' Title II claims on Eleventh Amendment grounds. App., infra, 6a. In so ruling, the court rejected the United States' argument that this Court's intervening decision in Tennessee v. Lane, 541 U.S. 509 (2004), superseded Alsbrook. The court of appeals reasoned that "Alsbrook has been modified by Lane" only for "a discrete application of Title II abrogation-related to claims of denial of access to the courts." App., infra, 6a. The court also rejected the United States' argument that, because the identical relief against the identical state defendants in the same federal court is already available under the plaintiffs' Rehabilitation Act claim, the court should avoid the constitutional question presented by Nebraska. See App., infra, 7a. The court held that "the existence of parallel claims is immaterial" when a State invokes its Eleventh Amendment immunity. Ibid.

Judge Colloton concurred. App., infra, 7a-8a. He recognized that Lane "undermined some of the reasoning of Alsbrook," but concluded that Alsbrook "still governs this case." Id. at 8a.

b. The court of appeals denied the United States' and the plaintiffs' petitions for rehearing and rehearing en banc. App., infra, 11a. Judges Murphy, Bye, and Melloy dissented from the denial of rehearing en banc. Ibid.

REASONS FOR GRANTING THE PETITION

1. The court of appeals has held an Act of Congress to be unconstitutional and, in so doing, has deviated from this Court's precedents.

a. In Tennessee v. Lane, 541 U.S. 509 (2004), this Court clarified the constitutional framework for analyzing exercises of Congress's Section 5 power and, employing that framework, held that Title II of the Americans with Disabilities Act (ADA) reflects a proper exercise of Congress's Section 5 authority as applied to the class of cases implicating access to the courts. The Eighth Circuit's holding that Lane overruled Alsbrook's result as applied only to a "discrete" category of access-to-the-court cases (App., infra, 6a) ignores the analytical framework prescribed by Lane and the predicate holdings that underlie Lane's judgment. Indeed, at the same time that the court of appeals refused to reassess its own circuit precedent to conform to Lane, the court acknowledged that "Lane may well presage the eventual rejection of Alsbrook's rationale." Id. at 6a n.3. That failure to reassess circuit precedent in light of the reasoning of an intervening Supreme Court precedent, where that reasoning was necessary to this Court's disposition, was clear error.

More particularly, in Alsbrook, the Eighth Circuit held that Congress lacked a sufficient record of discrimination to enact Title II. 184 F.3d at 1009. In Lane, however, this Court expressly held the opposite, ruling that Congress passed Title II in response to an "extensive record of disability discrimination," 541 U.S. at 529, and "of pervasive unequal treatment [of individuals with disabilities] in the administration of state services and programs, including systematic deprivations of fundamental rights," id. at 524. That aspect of Lane was not limited to the context of access to judicial services, but extended to the entirety of Title II. Indeed, the Court did not engage in any as-applied analysis (or cite its Section 5 as-applied precedent, United States v. Raines, 362 U.S. 17 (1960)), until the final section of the opinion addressing whether Title II is an appropriate response to the evidence of discrimination that the Court had already found to be sufficient. See 541 U.S. at 530-534.

Of particular relevance here, Lane found that the record of "unconstitutional treatment of disabled persons by state agencies" included "unjustified commitment," and other abuses in the "state mental health" system. 541 U.S. at 524-525. The Court further noted the specific congressional finding that unconstitutional treatment "persists" in such areas as "institutionalization." Id. at 529 (quoting 42 U.S.C. 12101(a)(3)). The Court accordingly held in Lane that it is "clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation" under Congress's Section 5 power. Id. at 529. Alsbrook's holding-reaffirmed by the court of appeals in this case, App., infra, 6a-that Congress lacked a basis for exercising its Section 5 power to enact Title II is irreconcilable with that key underpinning of Lane.

Lane also held that, in analyzing Congress's exercise of its Section 5 power, courts must take account of the fact that Title II enforces multiple constitutional rights, 541 U.S. at 522-523. By contrast, Alsbrook, which the court of appeals treated as controlling in this case, was decided on the basis that Title II enforces only one constitutional right-the Fourteenth Amendment's Equal Protection Clause. 184 F.3d at 1008-1009.

This Court's holdings concerning the foundation for congressional legislation and the proper mode of analyzing the constitutionality of Title II's abrogation are just as binding on the Eighth Circuit as the bottom-line judgment in Lane. "When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which [this Court]"-and, a fortiori, the courts of appeals-"are bound." Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996).

The court of appeals' decision that it need not hew to "those portions of the [Lane] opinion necessary to th[e] result" in that case, Seminole Tribe, 517 U.S. at 67, not only disregards a fundamental teaching of this Court, but also conflicts with the Fourth Circuit's decision in Constantine v. Rectors & Visitors of George Mason University, 411 F.3d 474 (2005). In Constantine, which involved Title II's application to public education, the Fourth Circuit held that Lane's analysis precluded adherence to prior circuit precedent holding Title II's abrogation unconstitutional in its entirety. Id. at 486 n.8 (Lane renders the reasoning that underlay prior circuit precedent "obsolete").

b. The court of appeals' decision also violated established principles of constitutional avoidance, which are at their apex when the Court addresses the constitutionality of an Act of Congress and thereby undertakes "the gravest and most delicate duty" that courts are "called upon to perform." Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (internal quotation marks omitted). Because the plaintiffs have challenged Nebraska's administration of a federal spending program (Medicaid), there is no dispute that Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, governs the State's conduct and subjects the State and state officials to suit in federal court. App., infra, 7a & n.4 (recognizing that Nebraska has made a "knowing waiver of its sovereign immunity [for] actions brought under Section 504"). The substantive standards that Section 504 imposes, moreover, mirror those imposed by Title II. See 42 U.S.C. 12134. Accordingly, the court of appeals' holding that Title II's abrogation of Eleventh Amendment immunity is unconstitutional can have no effect whatsoever on the susceptibility of the State and the same state officials and agency to suit in this case in the same federal court for the same substantive claims and the same relief sought under Title II.

Because the court of appeals' decision can have no effect on the State's liability to suit, the federal forum for the litigation, or the relief that could be imposed, the court's constitutional ruling was not "absolutely necessary to a decision of the case." Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (quoting Burton v. United States, 196 U.S. 283, 295 (1905), and Liverpool, N.Y. & Philadelphia S.S. Co. v. Emigration Comm'rs, 113 U.S. 33, 39 (1885)). The court of appeals thus improperly "anticipate[d] a question of constitutional law in advance of the necessity of deciding it." Id. at 346. Contrary to the court of appeals' supposition, App., infra, 7a, that principle of constitutional avoidance applies with full force to Eleventh Amendment immunity claims. See Lane, 541 U.S. at 530-531 & n.19; Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 n.1 (2001).

2. For the foregoing reasons, the Eighth Circuit erred in holding Title II's abrogation of Eleventh Amendment immunity to be unconstitutional outside the specific context of cases implicating access to the courts, and that decision ordinarily would merit this Court's review-either plenary review, or a decision to grant, vacate, and remand in light of Lane. However, on May 16, 2005, this Court granted review in United States v. Georgia, No. 04-1203, and Goodman v. Georgia, No. 04-1236, to decide whether Title II is a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment, as applied to the administration of prison systems. Oral argument in those consolidated cases was held on November 9, 2005.

The Court's decision in Georgia, supra, and Goodman, supra, will likely address the proper application of Lane's constitutional analysis to the other contexts in which Title II operates and clarify both the scope of the prior Lane holding and the proper methodology for courts to follow in analyzing Title II's constitutionality under Lane in future cases. That holding may have particularly close parallels to the case at hand, because this case, like Georgia and Goodman, involves Title II's application to claims arising in the context of institutionalization. Accordingly, plenary review is not warranted in this case at the present time. Instead, the petition should be held pending the Court's decision in Georgia and Goodman, and then disposed of as appropriate in light of that decision.

CONCLUSION

The petition for a writ of certiorari should be held pending this Court's decision in United States v. Georgia, No. 04-1203, and Goodman v. Georgia, No. 04-1236, and then disposed of in accordance with the Court's decision in those consolidated cases.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

WAN J. KIM
Assistant Attorney General

GREGORY G. GARRE
Deputy Solicitor General

PATRICIA A. MILLETT
Assistant to the Solicitor
General

JESSICA DUNSAY SILVER
SARAH E. HARRINGTON
Attorneys

DECEMBER 2005

1 Congress instructed the Attorney General to issue regulations to implement Title II, based on regulations previously promulgated under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (2000 and Supp. II 2002). See 42 U.S.C. 12134.

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 04-3263

BILL M., BY AND THROUGH HIS FATHER AND
NATURAL GUARDIAN, WILLIAM M., AND ON BEHALF

OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED; JOHN DOE, BY AND THROUGH HIS MOTHER AND NATURAL GUARDIAN, JANE DOE, AND ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED; HEATHER V., BY AND THROUGH HER MOTHER AND GUARDIAN, MARCIA V., AND ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED; JANE S., BY AND THROUGH HER MOTHER

AND NATURAL GUARDIAN, PATRICIA S., AND ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED; KEVIN V., BY AND THROUGH HIS MOTHER AND LEGAL GUARDIAN, KATHY V., AND ON BEHALF

OF ALL OTHER PERSONS SIMILARLY SITUATED; JENNIFER T., BY AND THROUGH HER PARENTS AND LEGAL GUARDIANS, SHARON AND GREG T., AND ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED; WILLIAM M., ON BEHALF OF HIS SON, BILL M.; JANE DOE, ON BEHALF OF HER SON, JOHN DOE; MARCIA V., ON BEHALF OF HER DAUGHTER, HEATHER V.; PATRICIA S., ON BEHALF OF HER DAUGHTER, JANE S.; KATHY V., ON BEHALF OF HER SON, KEVIN V.; SHARON T., ON BEHALF OF HER DAUGHTER, JENNIFER T.; GREG T., ON BEHALF OF HIS DAUGHTER, JENNIFER T., PLAINTIFFS/APPELLEES

UNITED STATES OF AMERICA, INTERVENOR ON APPEAL

v.

NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES FINANCE AND SUPPORT; NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES; STEPHEN B. CURTISS, IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES FINANCE AND SUPPORT; RON ROSS, IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANTS/APPELLANTS

Submitted: Mar. 16, 2005
Filed: May 27, 2005

OPINION

Before WOLLMAN, HANSEN, and COLLOTON, Circuit Judges.

WOLLMAN, Circuit Judge.

The Nebraska Department of Health and Human Services and the Nebraska Department of Health and Human Services Finance and Support (collectively, Nebraska) appeal from the district court's denial of their motion to dismiss based on Eleventh Amendment sovereign immunity. We reverse.

I.

Bill M. and six other developmentally disabled adults (Plaintiffs) sued Nebraska and various Nebraska officials in their official capacities, alleging violations of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and other federal and state law provisions. Plaintiffs asserted that they are each "eligible for, desire, have applied for

or have attempted to apply for and have been denied home and community-based Medicaid-funded services." Compl. at 2. They alleged that Nebraska's withholding of funding to these services has left them without adequate services to meet their needs and placed them "at imminent risk of unnecessary institutionalization." Id. Nebraska and the officials moved to dismiss on various grounds. The district court denied the motion.

This interlocutory appeal is limited to one aspect of the dismissal motion: Nebraska's contention that Eleventh Amendment immunity precludes the district court from having subject matter jurisdiction over the Title II claim. Plaintiffs contend that Title II and related statutory provisions ostensibly abrogate Eleventh Amendment immunity with respect to a Title II claim. Nebraska argues, in response, that the extension of Title II to the states is unconstitutional under our circuit's precedent. The United States has intervened to defend the statutory abrogation.

II.

Although we have jurisdiction over an interlocutory appeal of an order denying Eleventh Amendment immunity under the collateral order doctrine, Maitland v. University of Minnesota, 260 F.3d 959, 962 (8th Cir.2001), we must also consider the issue of standing.1 Article III standing requires a party to show actual injury, a causal relation between that injury and the challenged conduct, and the likelihood that a favorable decision by the court will redress the alleged injury. Minnesota Citizens Concerned for Life v. Federal Election Comm'n, 113 F.3d 129, 131 (8th Cir. 1997) (citing Lujan v. Defenders of the Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). Plaintiffs allege in their Title II claim (their first claim for relief) that Nebraska's failure to provide adequate funding "places [Plaintiffs] at risk of institutionalization." Compl. at 28 ¶ 117 (emphasis added). The mere risk that Plaintiffs may be institutionalized due to the lack of adequate funding does not constitute an actual or imminent harm sufficient to satisfy the first element of standing.2

Plaintiffs also allege, however, in portions of their complaint incorporated by reference into the first claim for relief, see id. at 27 ¶ 111, that they have suffered actual harm from Nebraska's refusal to fund home and community-based Medicaid-funded services. See id. at 15-16 ¶ 51 (lack of funding precludes necessary residential services in a community setting for Bill M.); id. at 17 ¶¶ 55-56 (same for John Doe); id. at 19-20 ¶ 69 (Heather V.'s required services are underfunded, which jeopardizes her health and safety); id. at 22 ¶ 83 (Jane S. is unable to move to a work setting more suited to her needs due to the denial of additional funding); id. at 23 ¶¶ 90-91 (Kevin V.'s services are not adequately funded to protect his health and safety); id. at 24 ¶¶ 97-98 (same for Jennifer T.); id. at 26 ¶¶ 107- 08, 110 (same for Marcus J.). We accept as true all of the complaint's material allegations and construe the complaint in favor of the complaining party for purposes of deciding the question of standing. See Shain v. Veneman, 376 F.3d 815, 817 (8th Cir. 2004). We conclude that Plaintiffs have alleged concrete and particularized harm sufficient to satisfy the first element of standing. Plaintiffs also meet the other standing requirements that the alleged harm be traceable to the defendant's challenged action and redressable by the court's favorable decision. See Minnesota Citizens, 113 F.3d at 131 ("When government action or inaction is challenged by a party who is a target or object of that action . . . 'there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.'") (quoting Lujan, 504 U.S. at 561-62, 112 S. Ct. 2130).

III.

We review de novo a decision to deny or grant a motion to dismiss for lack of subject matter jurisdiction. Metzger v. Village of Cedar Creek, Neb., 370 F.3d 822, 823 (8th Cir. 2004). We held in Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc), that "the extension of Title II of the ADA to the states was not a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment." Accordingly, Alsbrook is dispositive here unless it has been superseded.

Plaintiffs and the United States argue that Alsbrook has been superseded by Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004). The plaintiffs in Lane were paraplegics who used wheelchairs for mobility. They alleged that the lack of reasonable access to state and county courthouses constituted a Title II violation. Tennessee moved to dismiss based on Eleventh Amendment immunity, and the plaintiffs argued that Congress had abrogated Eleventh Amendment immunity under Title II. The Supreme Court held that "Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress' § 5 authority to enforce the guarantees of the Fourteenth Amendment." Id. at 1994 (emphasis added). The Court thus carefully limited its holding to a particularized class of cases. See id. at 1993 ("Because we find that Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further.") (emphasis added). Several of our sister circuits have interpreted Lane accordingly. See Cochran v. Pinchak, 401 F.3d 184 (3d Cir. 2005) (refusing to extend Lane to Title II claims by disabled prison inmates); Miller v. King, 384 F.3d 1248 (11th Cir. 2004) (same). See also Pace v. Bogalusa City School Bd., 403 F.3d 272, 303 (5th Cir. 2005) (en banc) (Jones, J., concurring in part and dissenting in part) (concluding, as to issue not reached by majority, that Fifth Circuit's prior precedent "remains valid in holding that ADA Title II, apart from the Lane scenario, does not validly abrogate States' Eleventh Amendment immunity"). We conclude that Alsbrook has been modified by Lane to the extent that a discrete application of Title II abrogation-related to claims of denial of access to the courts-has been deemed by the Court to constitute a proper exercise of Congress' power. Other applications of Title II abrogation, like the one at issue here, continue to be governed by Alsbrook.3

IV.

Plaintiffs and the United States argue that even if Nebraska were to prevail on its interlocutory appeal, Nebraska would still have to defend the "essentially identical" claim that Plaintiffs bring under Section 504 of the Rehabilitation Act,4 as well as the ADA claims brought against the Nebraska officials. Because the Eleventh Amendment provides Nebraska constitutional immunity from suit, the existence of parallel claims is immaterial.5

The denial of Nebraska's motion to dismiss based on sovereign immunity with respect to Plaintiffs' Title II claim is reversed, and the case is remanded to the district court with direction to dismiss the Title II claim against Nebraska.

COLLOTON, Circuit Judge, concurring in the judgment.

I agree that Bill M., John Doe, Jane S., and Marcus J. have Article III standing based on their allegations of injury resulting from the State's refusal to provide community-based funding under Medicaid to which they claim entitlement. I also agree that although Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004), undermined some of the reasoning of Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en banc), our court's en banc precedent still governs this case, which involves only a claim for additional funding of community-based services and implicates no fundamental constitutional right. Accordingly, I concur in the judgment.

1 Although we raised the question of standing sua sponte during oral argument, it is elementary that standing relates to the justiciability of a case and cannot be waived by the parties. See Sierra Club v. Robertson, 28 F.3d 753, 757 n.4 (8th Cir. 1994).

2 The complaint alleges that the denial of funding to one of the Plaintiffs, Marcus J., has forced him "to remain in a more restrictive institutional setting, i.e., a nursing home, in order to receive the services he needs." Compl. at 26 ¶ 109. Because Plaintiffs' counsel informed us at oral argument that Marcus J. is no longer in a nursing home, we need not address the issue of whether the limitation of services to the "more restrictive institutional setting" of a nursing home would constitute actionable harm sufficient to provide Marcus J. with standing.

3 Although Lane may well presage the eventual rejection of Alsbrook's rationale, the Supreme Court's carefully cabined holding counsels against a conclusion that Lane supersedes Alsbrook. Such a determination would have to come from the Supreme Court or from an en banc decision of our court.

4 We held in Doe v. Nebraska, 345 F.3d 593, 599 (8th Cir. 2003), that Nebraska's receipt of federal funds effected a knowing waiver of its sovereign immunity to actions brought under Section 504.

5 The United States' argument that we should direct the district court to hold in abeyance the Eleventh Amendment issue until after the Section 504 claim has been resolved fails for the same reason.

 

APPENDIX B

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

No. 4:03CV3189

BILL M., BY AND THROUGH HIS FATHER AND NATURAL GUARDIAN, WILLIAM M., ET AL., PLAINTFFS

vs.

NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES FINANCE AND SUPPORT; NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES; STEPHEN B. CURTISS, IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES FINANCE AND SUPPORT; AND RON ROSS, IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANTS

MEMORANDUM AND ORDER

This is a complex case involving mentally disabled people who receive financial support from Nebraska. Among other things, the plaintiffs allege that the funding (services) they receive from Nebraska is insufficient and thus "discriminatory." It is "discriminatory" because the lack of funds has caused or threatens to cause their institutionalization. See Olmstead v. L.C., 527 U.S. 581 (1999) ("discrimination" under the ADA results from "undue" institutionalization and may result from a lack of funding). The plaintiffs seek only injunctive and declaratory relief.

The defendants have moved to dismiss this case asserting, among other things, Eleventh Amendment immunity. Having carefully reviewed the arguments of the defendants, at this stage of the proceeding dismissal would be inappropriate.

Therefore,

IT IS ORDERED that the motion to dismiss (filing 30) is denied.

DATED this 6th day of August, 2004.

BY THE COURT:

/s/ Richard G. Kopf
United States District Judge

 

 

APPENDIX C

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 04-3263

BILL M., ETC., ET AL., APPELLEES

vs.

NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES FINANCE AND SUPPORT, ET AL., APPELLANTS

Aug. 18, 2005

ORDER DENYING PETITION FOR REHEARING
AND FOR REHEARING EN BANC

The petitions for rehearing en banc are denied. The petitions for rehearing by the panel are also denied.

Judge Murphy, Judge Bye and Judge Melloy would grant the petitions for rehearing en banc.

(5128-010199)

Order Entered at the Direction of the Court:

 

/s/ Michael E. Gans
Clerk, U.S. Court of Appeals,

Eighth Circuit

 

APPENDIX D

CONSTITUTION OF THE UNITED STATES

AMENDMENT XI

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.

AMENDMENT XIV

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

* * * * *

SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

 

SELECTED PROVISIONS OF THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. 12101 et seq.

§ 12101. Findings and purpose

(a) Findings

The Congress finds that-

(1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;

(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;

(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;

(7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;

(8) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and

(9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

(b) Purpose

It is the purpose of this chapter-

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.

Title II, Part A, of The Americans With Disabilities Act

§ 12131. Definitions

As used in this subchapter:

(1) Public entity

The term "public entity" means-

(A) any State or local government;

(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and

(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 2410(4) of title 49).

(2) Qualified individual with a disability

The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

§ 12132. Discrimination

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

§ 12133. Enforcement

The remedies, procedures, and rights set forth in section 794a of title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.

§ 12134. Regulations

(a) In general

Not later than 1 year after July 26, 1990, the Attorney General shall promulgate regulations in an accessible format that implement this part. Such regulations shall not include any matter within the scope of the authority of the Secretary of Transportation under section 12143, 12149, or 12164 of this title.

(b) Relationship to other regulations

Except for "program accessibility, existing facilities," and "communications," regulations under subsection (a) of this section shall be consistent with this chapter and with the coordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance under section 794 of title 29. With respect to "program accessibility, existing facilities", and "communications", such regulations shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations, applicable to federally conducted activities under such section 794 of title 29.

(c) Standards

Regulations under subsection (a) of this section shall include standards applicable to facilities and vehicles covered by this part, other than facilities, stations, rail passenger cars, and vehicles covered by part B of this subchapter. Such standards shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 12204(a) of this title.

* * * * *

Title IV of The Americans With Disabilities Act

§ 12201. Construction

(a) In general

Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title.

(b) Relationship to other laws

Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter. Nothing in this chapter shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking in places of employment covered by subchapter I of this chapter, in transportation covered by subchapter II or III of this chapter, or in places of public accommodation covered by subchapter III of this chapter.

(c) Insurance

Subchapters I through III of this chapter and title IV of this Act shall not be construed to prohibit or restrict-

(1) an insurer, hospital or medical service company, health maintenance organization, or any agent, or entity that administers benefit plans, or similar organizations from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or

(2) a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law; or

(3) a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance.

Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade the purposes of subchapter2 I and III of this chapter.

(d) Accommodations and services

Nothing in this chapter shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit which such individual chooses not to accept.

§ 12202. State immunity

A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in3 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.

§ 12203. Prohibition against retaliation and coercion

(a) Retaliation

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

(b) Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.

(c) Remedies and procedures

The remedies and procedures available under sections 12117, 12133, and 12188 of this title shall be available to aggrieved persons for violations of subsections (a) and (b) of this section, with respect to subchapter I, subchapter II and subchapter III of this chapter, respectively.

§ 12204. Regulations by Architectural and Transportation Barriers Compliance Board

(a) Issuance of guidelines

Not later than 9 months after July 26, 1990, the Architectural and Transportation Barriers Compliance Board shall issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter.

(b) Contents of guidelines

The supplemental guidelines issued under subsection (a) of this section shall establish additional requirements, consistent with this chapter, to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities.

(c) Qualified historic properties

(1) In general

The supplemental guidelines issued under subsection (a) of this section shall include procedures and requirements for alterations that will threaten or destroy the historic significance of qualified historic buildings and facilities as defined in 4.1.7(1)(a) of the Uniform Federal Accessibility Standards.

(2) Sites eligible for listing in National Register

With respect to alterations of buildings or facilities that are eligible for listing in the National Register of Historic Places under the National Historic Preservation Act (16 U.S.C. 470 et seq.), the guidelines described in paragraph (1) shall, at a minimum, maintain the procedures and requirements established in 4.1.7(1) and (2) of the Uniform Federal Accessibility Standards.

(3) Other sites

With respect to alterations of buildings or facilities designated as historic under State or local law, the guidelines described in paragraph (1) shall establish procedures equivalent to those established by 4.1.7(1)(b) and (c) of the Uniform Federal Accessibility Standards, and shall require, at a minimum, compliance with the requirements established in 4.1.7(2) of such standards.

§ 12205. Attorney's fees

In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.

§ 12206. Technical assistance

(c) Plan for assistance

(1) In general

Not later than 180 days after July 26, 1990, the Attorney General, in consultation with the Chair of the Equal Employment Opportunity Commission, the Secretary of Transportation, the Chair of the Architectural and Transportation Barriers Compliance Board, and the Chairman of the Federal Communications Commission, shall develop a plan to assist entities covered under this chapter, and other Federal agencies, in understanding the responsibility of such entities and agencies under this chapter.

(2) Publication of plan

The Attorney General shall publish the plan referred to in paragraph (1) for public comment in accordance with subchapter II of chapter 5 of title 5 (commonly known as the Administrative Procedure Act).

(b) Agency and public assistance

The Attorney General may obtain the assistance of other Federal agencies in carrying out subsection (a) of this section, including the National Council on Disability, the President's Committee on Employment of People with Disabilities, the Small Business Administration, and the Department of Commerce.

(c) Implementation

(1) Rendering assistance

Each Federal agency that has responsibility under paragraph (2) for implementing this chapter may render technical assistance to individuals and institutions that have rights or duties under the respective subchapter or subchapters of this chapter for which such agency has responsibility.

(2) Implementation of subchapters

(A) Subchapter I

The Equal Employment Opportunity Commission and the Attorney General shall implement the plan for assistance developed under subsection (a) of this section, for subchapter I of this chapter.

(B) Subchapter II

(i) Part A

The Attorney General shall implement such plan for assistance for part A of subchapter II of this chapter.

(ii) Part B

The Secretary of Transportation shall implement such plan for assistance for part B subchapter II of this chapter.

(C) Subchapter III

The Attorney General, in coordination with Secretary of Transportation and the Chair of the Architectural Transportation Barriers Compliance Board, shall implement such plan for assistance for subchapter III of this chapter, except for section 12184 of this title, the plan for assistance for which shall be implemented by the Secretary of Transportation.

(D) Title IV

The Chairman of the Federal Communications Commission, in coordination with the Attorney General, shall implement such plan for assistance for title IV.

(3) Technical assistance manuals

Each Federal agency that has responsibility under paragraph (2) for implementing this chapter shall, as part of its implementation responsibilities, ensure the availability and provision of appropriate technical assistance manuals to individuals or entities with rights or duties under this chapter no later than six months after applicable final regulations are published under subchapters I, II, and III of this chapter and title IV.

(d) Grants and contracts

(1) In general

Each Federal agency that has responsibility under subsection (c)(2) of this section for implementing this chapter may make grants or award contracts to effectuate the purposes of this section, subject to the availability of appropriations. Such grants and contracts may be awarded to individuals, institutions not organized for profit and no part of the net earnings of which inures to the benefit or any private shareholder or individual (including educational institutions), and associations representing individuals who have rights or duties under this chapter. Contracts may be awarded to entities organized for profit, but such entities may not be the recipients or1 grants described in this paragraph.

(2) Dissemination of information

Such grants and contracts, among other uses, may be designed to ensure wide dissemination of information about the rights and duties established by this chapter and to provide information and technical assistance about techniques for effective compliance with this chapter.

(e) Failure to receive assistance

An employer, public accommodation, or other entity covered under this chapter shall not be excused from compliance with the requirements of this chapter because of any failure to receive technical assistance under this section, including any failure in the development or dissemination of any technical assistance manual authorized by this section.

§ 12207. Federal wilderness areas

(a) Study

The National Council on Disability shall conduct a study and report on the effect that wilderness designations and wilderness land management practices have on the ability of individuals with disabilities to use and enjoy the National Wilderness Preservation System as established under the Wilderness Act (16 U.S.C. 1131 et seq.).

(b) Submission of report

Not later than 1 year after July 26, 1990, the National Council on Disability shall submit the report required under subsection (a) of this section to Congress.

(c) Specific wilderness access

(1) In general

Congress reaffirms that nothing in the Wilderness Act [16 U.S.C. 1131 et seq.] is to be construed as prohibiting the use of a wheelchair in a wilderness area by an individual whose disability requires use of a wheelchair, and consistent with the Wilderness Act no agency is required to provide any form of special treatment or accommodation, or to construct any facilities or modify any conditions of lands within a wilderness area in order to facilitate such use.

(2) "Wheelchair" defined

For purposes of paragraph (1), the term "wheelchair" means a device designed solely for use by a mobility-impaired person for locomotion, that is suitable for use in an indoor pedestrian area.

§ 12208. Transvestites

For the purposes of this chapter, the term "disabled" or "disability" shall not apply to an individual solely because that individual is a transvestite.

§ 12209. Instrumentalities of the Congress

The General Accounting Office, the Government Printing Office, and the Library of Congress shall be covered as follows:

(1) In general

The rights and protections under this chapter shall, subject to paragraph (2), apply with respect to the conduct of each instrumentality of the Congress.

(2) Establishment of remedies and procedures by instrumentalities

The chief official of each instrumentality of the Congress shall establish remedies and procedures to be utilized with respect to the rights and protections provided pursuant to paragraph (1).

(3) Report to Congress

The chief official of each instrumentality of the Congress shall, after establishing remedies and procedures for purposes of paragraph (2), submit to the Congress a report describing the remedies and procedures.

(4) Definition of instrumentality

For purposes of this section, the term "instrumentality of the Congress" means the following:,1 the General Accounting Office, the Government Printing Office, and the Library of Congress,.1

(5) Enforcement of employment rights

The remedies and procedures set forth in section 2000e-16 of this title shall be available to any employee of an instrumentality of the Congress who alleges a violation of the rights and protections under sections 12112 through 12114 of this title that are made applicable by this section, except that the authorities of the Equal Employment Opportunity Commission shall be exercised by the chief official of the instrumentality of the Congress.

(6) Enforcement of rights to public services and accommodations

The remedies and procedures set forth in section 2000e-16 of this title shall be available to any qualified person with a disability who is a visitor, guest, or patron of an instrumentality of Congress and who alleges a violation of the rights and protections under sections 12131 through 12150 or section 12182 or 12183 of this title that are made applicable by this section, except that the authorities of the Equal Employment Opportunity Commission shall be exercised by the chief official of the instrumentality of the Congress.

(7) Construction

Nothing in this section shall alter the enforcement procedures for individuals with disabilities provided in the General Accounting Office Personnel Act of 1980 and regulations promulgated pursuant to that Act.

§ 12210. Illegal use of drugs

(a) In general

For purposes of this chapter, the term "individual with a disability" does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

(b) Rules of construction

Nothing in subsection (a) of this section shall be construed to exclude as an individual with a disability an individual who-

(1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(3) is erroneously regarded as engaging in such use, but is not engaging in such use; except that it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (1) or (2) is no longer engaging in the illegal use of drugs; however, nothing in this section shall be construed to encourage, prohibit, restrict, or authorize the conducting of testing for the illegal use of drugs.

(c) Health and other services

Notwithstanding subsection (a) of this section and section 12211(b)(3) of this title, an individual shall not be denied health services, or services provided in connection with drug rehabilitation, on the basis of the current illegal use of drugs if the individual is otherwise entitled to such services.

(d) "Illegal use of drugs" defined

(1) In general

The term "illegal use of drugs" means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act [21 U.S.C. 801 et seq.]. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or other provisions of Federal law.

(2) Drugs

The term "drug" means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act [21 U.S.C. 812].

§ 12211. Definitions

(a) Homosexuality and bisexuality

For purposes of the definition of "disability" in section 12102(2) of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter.

(b) Certain conditions

Under this chapter, the term "disability" shall not include-

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(2) compulsive gambling, kleptomania, or pyromania; or

(3) psychoactive substance use disorders resulting from current illegal use of drugs.

§ 12212. Alternative means of dispute resolution

Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under this chapter.

§ 12213. Severability

Should any provision in this chapter be found to be unconstitutional by a court of law, such provision shall be severed from the remainder of this chapter and such action shall not affect the enforceability of the remaining provisions of this chapter.

 

 

2 So in original. Probably should be "subchapters".

3 So in original. Probably should be "in a".

1 So in original. Probably should be "of".

1 So in original. The comma probably should not appear.