View PDF Version

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

REPLY BRIEF FOR THE PETITIONER

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

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

REPLY BRIEF FOR THE PETITIONER

1. The court of appeals held that Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131 to 12165, is not a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment, as ap plied in the context of institutionalization. Pet. App. 5a- 6a. As explained in the government's petition for a writ of certiorari, Pet. 6-10, that ruling reflected a fundamen tal disregard of this Court's prior decision in Ten nessee v. Lane, 541 U.S. 509 (2004), with respect to both the constitutional decisions rendered in that case and the principle of constitutional avoidance that it applied. Pet. 6-10. Given the gravity of the court of appeals' holding that an Act of Congress is unconstitutional and the court's failure to adhere to precedent and long-es tablished principles of constitutional avoidance, the petition explained that the case warrants this Court's re view-whether plenary or, at a minimum, a decision to grant, vacate, and remand in light of Lane. Pet. 10. However, in light of the pendency at that time of United States v. Georgia, No. 04-1203, and Goodman v. Geor gia, No. 04-1236, which presented the question of Con gress's power to apply Title II to the administration of prison systems, the United States suggested that the present petition be held pending this Court's decision in those cases. Pet. 10-11.

On January 10, 2006, this Court issued its decision in United States v. Georgia and Goodman v. Georgia. See United States v. Georgia, 126 S. Ct. 877. In Georgia, the Court unanimously reaffirmed its context-specific ap proach to the analysis of Title II's constitutionality, up holding the law as a proper exercise of Congress's Sec tion 5 power to the extent that it "creat[es] private rem edies against the States for actual violations" of the rights protected by Section 1 of the Fourteenth Amend ment. Id. at 881; see id. at 882 ("[I]nsofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity."). The Court further held that, to the extent that Title II is used directly to enforce rights protected by Section 1 of the Fourteenth Amendment, "the lower courts will be best situated to determine in the first in stance, on a claim-by-claim basis," which rights are at issue in a given case. Id. at 882.

2. The Court's recent decision in Georgia magnifies the constitutional errors in the court of appeals' decision that were identified in the government's petition for a writ of certiorari and, in particular, the court of appeals' disregard for the constitutional framework established by Lane-and reconfirmed by Georgia-and the predi cate holdings that underlie Lane's judgment.

The court of appeals held that its prior decision in Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc), cert. dismissed, 529 U.S. 1001 (2000), compelled the conclusion that Title II is unconstitutional in all of its applications save the class of cases implicat ing access to the courts addressed in Lane, and that no more particularized inquiry needed to be undertaken into the constitutionality of Title II. Pet. App. 6a. But Alsbrook was decided on the basis that Title II only en forces the Fourteenth Amendment's Equal Protection Clause. 184 F.3d at 1008-1009. Both Georgia and Lane 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. See Georgia, 126 S. Ct. at 880-881 (Title II enforces the Eighth Amendment); Lane, 541 U.S. at 522-523 (listing the nu merous constitutional rights enforced by Title II).

In addition, the court of appeals here held that- after Lane-its sweeping invalidation of Title II in Alsbrook "ha[d] been modified" only with respect to Ti tle II's "discrete application * * * to claims of denial of access to the courts." Pet. App. 6a. Georgia makes clear, however, that Alsbrook was also wrong, at a mini mum, with respect to some claims arising in the context of institutionalization-those claims that seek to remedy actual constitutional violations. 126 S. Ct. at 881-882. While respondent insists that this case does not impli cate any fundamental constitutional rights, the private respondents supporting the petition expressly disagree. Private Resp. Supp. Br. 3. As this Court recognized in Georgia, 126 S. Ct. at 882, resolution of that question is best addressed by the lower court in the first instance, within the framework of this Court's decisions in Geor gia and Lane.

Furthermore, the Court in Georgia unanimously di rected that, with respect to Title II's prophylactic en forcement of constitutional rights, courts must address Title II's constitutionality based on the particular "class of conduct" at issue, whether the question arises in the institutionalization context or elsewhere. 126 S. Ct. at 882. The court of appeals' wholesale invalidation of all of Title II except for access-to-the-courts cases cannot be reconciled with Georgia's directive, or with Lane.

The Eighth Circuit's departure from precedent does not stop there. In the Alsbrook decision on which the court relied here, 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 ex pressly held 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 in dividuals with disabilities] in the administration of state services and programs, including systematic depriva tions of fundamental rights," id. at 524. Of particular relevance here, Lane found that the record of "unconsti tutional treatment of disabled persons by state agen cies" included "unjustified commitment," and other abuses in the "state mental health" system. Id. at 524- 525. This 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 inade quate 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 ap peals in this case, Pet. App. 6a-that Congress lacked a basis for exercising its Section 5 power to enact Title II is irreconcilable with that key underpinning of Lane.

Finally, respondent Nebraska Department of Health and Human Services Finance and Support makes no effort to defend the court of appeals' violation of estab lished principles of constitutional avoidance, which are at their apex when the Court addresses the constitution ality of an Act of Congress. See Pet. 9-10; cf. Ayotte v. Planned Parenthood, 126 S. Ct. 961, 967-968 (2006) (courts should address and remedy statutory violations of the Constitution on the narrowest ground possible). Georgia's carefully measured and narrow approach to the constitutionality of Title II reconfirms what Lane already made plain: the Eleventh Amendment is no ex ception to that rule. See Georgia, 126 S. Ct. at 881-882; Lane, 541 U.S. at 530-531 & n.19; see also Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 n.1 (2001).

3. Accordingly, the court of appeals' decision con flicts with this Court's decisions in Georgia and Lane on multiple grounds. The necessity for this Court's review is underscored, moreover, by a recent decision of the Eighth Circuit. In Klingler v. Director, Missouri De partment of Revenue, 366 F.3d 614 (2004), the Eighth Circuit dismissed on Eleventh Amendment grounds a Title II claim that implicated the right to travel and equal access to governmental services and programs. There, as here, the court of appeals held that Title II as a whole was invalid based on Alsbrook. See id. at 616- 617. This Court subsequently vacated that judgment and remanded for reconsideration of the decision in light of Lane. See Klingler v. Director, Mo. Dep't of Revenue, 125 S. Ct. 2899 (2005). However, just days after this Court's decision in Georgia, the Eighth Circuit declined to reconsider its decision in Klingler, notwithstanding this Court's remand for precisely that purpose, because of the court of appeals' decision in this case. See Klingler v. Director, Mo. Dep't of Revenue, 433 F.3d 1078, 1082 (Jan. 17, 2006). Vacatur of the court's deci sion in this case thus is necessary to allow the Eighth Circuit the opportunity to bring its caselaw into line with this Court's decisions in both Georgia and Lane.

Because the court of appeals' decision in this case is wrong for reasons that have already been resolved in Lane and that were just recently reaffirmed in Georgia, the appropriate course at this juncture is to grant the petition for a writ of certiorari, vacate the judgment be low, and remand for reconsideration of the court of ap peals' sweeping invalidation of Title II in a manner that is consistent with and adheres to the framework for con stitutional analysis established by this Court's decision in Lane and reaffirmed in Georgia.

CONCLUSION

For the foregoing reasons and those stated in the petition, the petition for a writ of certiorari should be granted, the court of appeals' judgment vacated, and the case remanded for further consideration consistent with this Court's decisions in United States v. Georgia, 126 S. Ct. 877 (2006), and Tennessee v. Lane, 541 U.S. 509 (2004).

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

March 2006