No. 96-7091 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT GRANVILLE AMOS, et al. Plaintiffs-Appellants, THE MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, et al. Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BRIEF FOR THE UNITED STATES AS AMICUS CURIAE DEVAL L. PATRICK Assistant Attorney General DAVID K. FLYNN LISA WILSON EDWARDS LINDA F. THOME Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-4706 01-05816 TABLE OF CONTENTS PAGE INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT: SECTION 504 AND TITLE II OF THE ADA APPLY TO STATE OPERATED PRISONS . . . . . . . . . . . . . . . . . 5 A. The Plain Language Of Both Statutes Applies To State Or Local Entities That Operate Prisons 5 B. Administrative Interpretations Of Section 504 And Title II Of The ADA Confirm Their Application To State And Local Prisons . . . . . 8 C. This Court's Decision In Torcasio Does Not Require Dismissal Of Plaintiffs' Section 504 And ADA Claims In This Case . . . . . . . . 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .. 22 TABLE OF AUTHORITIES CASES: ABF Freight Sys., Inc. v. NLRB, 114 S. Ct. 835 (1994) . . . 8 Armstrong v. Wilson, No. 94-2307 (N.D. Cal. (Sept. 20, 1996) . . . . . . . . . . . . . . . . . . 5 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) . . . . . . . . . . . . . . . . . . . . . 16, 17 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407 (1995) . . . . . .. 8, 21 Bailey v. United States, 116 S. Ct. 501 (1995) . . . . . . 5, 6 Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) . . . . . . . . 5 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). . . . . . . . . . . . . . . . . . . . . . 8 - i - 01-05845 Cases (continued): PAGE Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996) . . . . . . . 19 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). . . . . . . . . . 8 Crawford v. Indiana Dep't of Correction, 1996 WL 467172 (N.D. Indiana August 15, 1996) . . . . . . 19 Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996). . . . . . 21 Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35 (D.D.C. 1994). . . . . . . . . . . . . . . . . . . 9 Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) . . . . . . . 5 Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . 16-17 Gustafson v. Alloyd Co., 115 S. Ct. 1061 (1995) . . . . . . 21 Harker v. State Use Indus., 990 F.2d 131 (4th Cir. 1993). . . . . . . . . . . . . . . . . 17, 18 Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) . . . . . . 5 Inmates of the Allegheny County Jail v. Wecht, 93 F.3d 1124, vacated, 1996 WL 546473 (3d Cir. Sept. 20, 1996) . . . . . . . . . . . . . . . . . . . 5 Innovative Health Sys. v. City of White Plains, 931 F. Supp. 222 (S.D.N.Y. 1996). . . . . . . . . . . 9 Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994). . . . . . . . . . 5 Oak Ridge Care Ctr. Inc. v. Racine County, Wis., 896 F. Supp. 867 (E.D. Wis. 1995). . . . . . . . . . . . 21 Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89 (1984) . . . . . . . . . . . . . . . . . . . 16 Southeastern Community College v. Davis, 442 U.S. 397 (1979). . . . . . . . . . . . . . . . . . . 20 Stinson v. United States, 508 U.S. 36 (1993). . . . . . . . . 8 Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381 (1994). . . . . . . . . . . . . . . . . . . . . . . . 8 Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . passim - ii - 01-05846 CASES (continued): PAGE United States v. Larionoff, 431 U.S. 864 (1977) . . . . . . 8-9 White v. State of Colorado, 82 F.3d 364 (10th Cir. 1996) . . 19 Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989). . . . . . . . . . . . . . . . . . . . . . 15 Williams v. Meese, 926 F.2d 994 (10th Cir. 1991) . . . . 18, 19 STATUTES AND REGULATIONS: Americans with Disabilities Act, Title II . . . . . . . passim 42 U.S.C. 12101(a)(3) . . . . . . . . . . . . . . . . 8 42 U.S.C. 12101(b)(4) . . . . . . . . . . . . . . . . 7 42 U.S.C. 12131 . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12131(1)(B) . . . . . . . . . . . . . . . . 7 42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . 19 42 U.S.C. 12132 . . . . . . . . . . . . . . 2, 4, 6, 21 42 U.S.C. 12133 .. . . . . . . . . . . . . . . . . 1, 2 42 U.S.C. 12134. . . . . . . . . . . . . . . . . . 1, 2 42 U.S.C. 12134(a) . . . . . . . . . . . . . . . . 1, 8 42 U.S.C. 12134(b). . . . . . . . . . . . . . . . . . 7 42 U.S.C. 12201(a). . . . . . . . . . . . . . . . . . 7 42 U.S.C. 12202. . . . . . . . . . . . . . . . . . . 16 42 U.S.C. 12206 . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. 12206(c)(3) . . . . . . . . . . . . . . . . 1 42 U.S.C. 2000d-7(a)(1). . . . . . . . . . . . . . . 16 Fair Labor Standards Act, 29 U.S.C. 201 et seq.. . . . . . . . . . . . . . . . 17 Rehabilitation Act of 1973, Section 504, 29 U.S.C. 794 . . . . . . . . . . . . . . . . . passim 29 U.S.C. 794(a). . . . . . . . . . . . . . 1, 4, 6, 8 29 U.S.C. 794(b). . . . . . . . . . . . . . . . . . . 6 28 C.F.R. 35.102 . . . . . . . . . . . . . . . . . . . . . . 10 28 C.F.R. 35.190(b) (6). . . . . . . . . . . . . . . . . 11, 14 28 C.F.R. 39.170(d) (1) (ii) . . . . . . . . . . . . . . . . 10 28 C.F.R. 42.502 . . . . . . . . . . . . . . . . . . . . . . 14 28 C.F.R. 42.522(b). . . . . . . . . . . . . . . . . . . . . 11 28 C.F.R. 42.540(h) . . . . . . . . . . . . . . . . . . . 9, 14 28 C.F.R. 42.540(j) . . . . . . . . . . . . . . . . . . . 9, 14 28 C.F.R. 151(c) . . . . . . . . . . . . . . . . . . . . . . 12 28 C.F.R. Pt. 35 . . . . . . . . . . . . . . . . . . . . . . 1 28 C.F.R. Pt. 35, App. A . . . . . . . . . . . . . . . . 11, 14 28 C.F.R. Pt. 35, App. A, Subpart A . . . . . . . . . . . . .10 28 C.F.R. Pt. 36, App. A . . . . . . . . . . . . . . . . . . 12 - iii - 01-05847 REGULATIONS (continued): PAGE 28 C.F.R. Pt. 39, Editorial Note 667 . . . . . . . . . . . . 10 28 C.F.R. Pt. 42, Subpart G . . . . . . . . . . . . . . . . . 1 41 C.F.R. Subpart 101-19.6, App. A . . . . . . . . . . . 11, 15 LEGISLATIVE HISTORY: H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 4 (1990), reprinted in 1990 U.S.C.C.A.N. 512 . . . . . 20 FEDERAL REGISTER: 45 Fed. Reg. 37620 (1980) . . . . . . . . . . . . . . 9, 10, 14 59 Fed. Reg. 31676 (1994) . . . . . . . . . . . . .. . . . . 12 MISCELLANEOUS: Americans with Disabilities Act Title II Technical Assistance Manual (1993) . . . . . . . . . . . 1, 9, 11 Webster's Third New International Dictionary (1986) . . . 7, 20 - iv - 01-05848 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 96-7091 GRANVILLE AMOS, et al. Plaintiffs-Appellants, v. THE MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, et al. Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES The Department of Justice has significant responsibilities for the enforcement and implementation of Title II of the ADA and Section 504 of the Rehabilitation Act. See 42 U.S.C. 12133, 12134. Pursuant to 29 U.S.C. 794(a), the Department has issued regulations interpreting Section 504. See 28 C.F.R. Pt. 42, Subpart G (1995). Pursuant to 42 U.S.C. 12134(a) and 42 U.S.C. 12206(c)(3), the Department has issued regulations and a Technical Assistance Manual implementing and interpreting Title II. See 28 C.F.R. Pt. 35 (1995); Americans with Disabilities Act Title II Technical Assistance Manual (1993). The outcome of this appeal may affect the United States' ability to enforce Section 504 and Title II in the context of state-operated prison facilities. 01-05849 - 2 - STATEMENT OF THE ISSUE The United States will address the following issue: Whether the requirements of Title II of the Americans with Disabilities Act, 42 U.S.C. 12131-12134, and Section 504 of the Rehabilitation Act, 29 U.S.C. 794, apply to state-operated prison facilities. STATEMENT OF THE CASE This suit was brought in February 1991, by disabled inmates of the Roxbury Correctional Institution (RCI), against the Maryland Department of Public Safety and Correctional Services, RCI, the Commissioner of the Maryland Division of Correction, and the Warden of RCI. Plaintiffs claim, inter alia, that the defendants have violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, and Title II of the Americans with Disabilities Act (ADA). Their amended complaint alleged that they have been denied the opportunity to participate in work release and pre-release programs because of their disabilities, resulting in a denial of benefits, training, and rehabilitation, and possibly in longer sentences; that they have been denied equal access to bathroom and athletic facilities, to the "honor tier," and to food services at RCI because of their disabilities; that they have been denied adequate medical attention and hygienic facilities; that defendants have failed to make reasonable accommodations to ensure the safety of disabled inmates; and that they have been assigned to RCI because of their disabilities, and thus were deprived of the opportunity to serve 01-05850 - 3 - their sentences at available facilities closer to their homes. The amended complaint also alleged that one disabled inmate had been subjected to harassment by RCI staff. Plaintiffs sought injunctive relief and damages.1/ On January 29, 1996, the district court granted defendants' motion for summary judgment and dismissed plaintiffs' Section 504 and ADA claims, on the ground that neither statute applies to state prisons. Jan. 26, 1996 Memo to Counsel. In so ruling, the district court relied upon this Court's decision in Torcasio v. Murray, 57 F.3d 1340 (1995), which held that the applicability of Section 504 and Title II of the ADA to prisons was not clearly established at the time the plaintiff in that case was incarcerated and that the individual defendants in that case were therefore entitled to dismissal of the claims against them on qualified immunity grounds. On June 11, 1996, the district court issued an amended order granting defendants' motion for summary judgment as to the plaintiffs' Section 504 and ADA claims and dismissing the plaintiffs' remaining claims. June 11, 1996 Order. This appeal followed. 1/ The district court initially denied defendants' motion to dismiss, ruling that the Maryland Department of Corrections was a recipient of federal funds, and that RCI was a program or activity administered by the state government, and thus that both entities were subject to the requirements of Section 504 of the Rehabilitation Act. June 27, 1991 Memorandum Decision; June 27, 1991 Order. 01-05851 - 4 - SUMMARY OF ARGUMENT The plain language of Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a), and of Title II of the Americans with Disabilities Act, 42 U.S.C. 12132, prohibit discrimination on the basis of disability in all the programs or activities of covered public entities, including state prisons. Both the statutory definitions and the usual meanings of such terms as program, activity, and public entity make it clear that the coverage of both statutes was intended to encompass all functions of state and local governmental entities. The applicability of both statutes to prisons is confirmed by the interpretation of the statutes by the Department of Justice, the federal agency with principal responsibility for enforcing Section 504 and Title II. Regulations and other administrative materials published by the Department expressly apply both statutes to state and local correctional facilities. The district court's ruling to the contrary was not required by this Court's decision in Torcasio v. Murray, 57 F.3d 1340 (1995). Torcasio's suggestion that neither Act was intended to apply to prisons was nonbinding dicta. In any event, there is no basis for such a ruling. Both Section 504 and Title II include express abrogations of the States' immunity under the Eleventh Amendment. In light of the broad language of both statutes, Congress's intention to apply them to prisons as well as to all other operations of state and local governments is clear. 01-05852 - 5 - ARGUMENT SECTION 504 AND TITLE II OF THE ADA APPLY TO STATE OPERATED PRISONS A. The Plain Language Of Both Statutes Applies To State Or Local Entities That Operate Prisons. Section 504 of the Rehabilitation Act, the first federal statute to provide broad prohibitions against discrimination on the basis of disability, applies to discrimination in programs and activities receiving federal financial assistance. Title II of the ADA, enacted in 1990, extends these protections and prohibitions to all state and local government programs and activities, regardless of whether they receive federal financial assistance. The starting point in statutory construction is the language of the statute. Bailey v. United States, 116 S. Ct. 501, 506 (1995). An examination of the plain language of Title II and Section 504 establishes that both statutes apply to state prison facilities. See Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir. 1988); Gates v. Rowland, 39 F.3d 139, 1446-1447 (9th Cir. 1994); see also Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir. 1994) (applying Section 504 to prisoners); Harris v. Thigpen, 941 F.2d 1495, 1522 (11th Cir. 1991) (same); Armstrong v. Wilson, No. 94- 2307 (N.D. Cal. Sept. 20, 1996) (copy attached).2/ 2/ A panel of the Third Circuit also ruled that Section 504 and Title II of the ADA apply to state and local correctional facilities, but that ruling has been vacated and rehearing en banc granted. Inmates of the Allegheny County Jail v. Wecht, 93 F.3d 1124, vacated, reh'g granted, 1996 WL 546473 (3d Cir. Sept. 20, 1996. 01-05853 - 6 - The substantive provisions of the statutes are similar. Section 504 provides in pertinent part: No otherwise qualified individual with a disability in the United States * * * shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency(.) 29 U.S.C. 794(a). Title II of the ADA provides in pertinent part: [n]o 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. The statutory definition of "[p]rogram or activity" in Section 504 indicates that this term was intended to be all- encompassing. It includes "all of the operations of -- (1) (A) a department, agency, special purpose district, or other instrumentality of a State or of a local government * * * any part of which is extended Federal financial assistance." 29 U.S.C. 794(b) (emphasis added). The ordinary meaning of the terms "program" and "activity" in the context of state or local governmental entities includes correctional facilities operated by such entities. See Bailey, 116 S. Ct. at 506 (a word in a statute "must be given its 'ordinary or natural' meaning"). "Activity" means, inter alia, "natural or normal function or operation," and includes the 01-05854 - 7 - "duties or function" of "an organizational unit for performing a specific function." Webster's Third New International Dictionary (1986) at 22. "Program" is defined as "a plan or procedure: a schedule or system under which action may be taken toward a desired goal." Id. at 1812. Certainly, operating a prison facility falls within the "duties or functions" of a state department of corrections, and rehabilitative programs, including work release, vocational, and reward systems for good behavior are a part of such a department's execution of a "plan or procedure." Reflective of the similar language in the two statutes, Congress directed that Title II of the ADA be interpreted in a manner consistent with Section 504. 42 U.S.C. 12134(b), 12201(a). Thus, the terms "programs" and "activities" in Title II have the same meaning as in Section 504. In addition, Title II's definition of a "public entity" clearly encompasses a state department of corrections: "any department, agency, * * * or other instrumentality of a State or States or local government{.}" 42 U.S.C. 12131(1) (B) (emphasis added). In enacting the ADA, Congress "invoke[d] the sweep of [its] 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." 42 U.S.C. 12101(b) (4). The "critical areas" in which "discrimination against individuals with disabilities 01-05855 - 8 - persists" were set forth in the statute, and include "institutionalization." 42 U.S.C. 12101(a)(3). By their terms, the two statutes cover all aspects of state and local governance. Thus, if the plain words of a statute are to guide the courts in interpreting it, then both the ADA and the Rehabilitation Act must be held to apply to state and local correctional facilities. B. Administrative Interpretations Of Section 504 And Title II Of The ADA Confirm Their Application To State And Local Prisons. Congress expressly authorized the Justice Department to issue regulations implementing both Section 504 and Title II of the ADA, and to provide technical assistance to entities covered by the ADA. 29 U.S.C. 794(a); 42 U.S.C. 12134(a), 12206. In view of Congress's delegation, the Department's regulations should be accorded "controlling weight unless 'arbitrary, capricious, or manifestly contrary to the statute.'" ABF Freight Sys., Inc. v. NLRB, 114 S. Ct. 835, 839 (1994), quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 46 U.S. 837, 844 (1984); see also Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2418 (1995); Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994). The same is true of the preamble or commentary accompanying the regulations since both are part of a department's official interpretation of legislation. Stinson v. United States, 508 U.S. 36, 45 (1993), quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); see also United States v. Larionoff, 01-05856 - 9 - 431 U.S. 864, 872-873 (1977). The Department of Justice's Technical Assistance Manual is also entitled to deference. See Innovative Health Sys. v. City of White Plains, 931 F. Supp. 222, 233 n.4 (S.D.N.Y. 1996); Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35, 36-37 n.4 (D.D.C. 1994). As set forth in the regulations, and the other administrative materials cited below, the Department of Justice interprets both Section 504 and Title II of the ADA to apply to correctional facilities. The regulations promulgated by the Department of Justice to enforce Section 504 define the kinds of programs and benefits that should be afforded to individuals with disabilities on a nondiscriminatory basis. These definitions encompass prison administration. The regulations define "program" to mean "the operations of the agency or organizational unit of government receiving or substantially benefiting from the Federal assistance awarded, e.g., a police department or department of corrections." 28 C.F.R. 42.540(h) (1995) (emphasis added). The term "[b]enefit" includes "provisions of services, financial aid or disposition (i.e., treatment, handling, decision, sentencing, confinement, or other prescription of conduct)." 28 C.F.R. 42.540(j) (emphasis added). The appendix to the regulations, attached to the Final Rule (45 Fed. Reg. 37620, 37630 (1980)), makes clear that services and programs provided by detention and correctional agencies and facilities are covered by Section 504. This coverage is broad, and includes "jails, prisons, reformatories and training schools, work camps, reception and 01-05857 - 10 - diagnostic centers, pre-release and work release facilities, and community based facilities." Ibid. The appendix states that those facilities designated for use by persons with disabilities are "required to make structural modifications to accommodate detainees or prisoners in wheelchairs." Ibid. Department of Justice regulations applicable to federally conducted programs also make it clear that institutions administered by the Federal Bureau of Prisons are subject to Section 504. See 28 C.F.R. 39.170(d)(1)(ii) (Section 504 complaint procedure for inmates of federal penal institutions); id. at 28 C.F.R. Pt. 39, Editorial Note, at 667 (Section 504 regulations requiring nondiscrimination in programs or activities of the Department of Justice apply to the Federal Bureau of Prisons); id. at 669 (federally conducted program is "anything a Federal agency does"). The regulations promulgated under Title II of the ADA afford similar protections to persons with disabilities who are incarcerated in prisons, or otherwise institutionalized by the state, regardless of the public institution's receipt of federal financial assistance. The regulations state that the statute's coverage extends to "all services, programs, and activities provided or made available by public entities." 28 C.F.R. 35.102. This broad language is intended to "appl[y] to anything a public entity does." 28 C.F.R. Pt. 35, App. A, Subpart A at 449. As part of its regulatory obligations under Title II, the Department of Justice is designated as the agency responsible for coordinating the compliance activities of public entities that 01-05858 - 11 - administer "[a]ll programs, services, and regulatory activities related to law enforcement, public safety, and the administration of justice, including courts and correctional institutions[.]" 28 C.F.R. 35.190(b) (6). The Preamble to the Department's ADA regulations also makes express reference to the statute's application to prisons, stating that an entity is required to provide "assistance in toileting, eating, or dressing to individuals with disabilities * * * where the individual is an inmate of a custodial or correctional institution." 28 C.F.R. Pt. 35, App. A at 461. The Department of Justice Title II Technical Assistance Manual specifically lists "jails and prisons" as types of facilities that, if constructed or altered after the effective date of the ADA (January 26, 1992), must be designed and constructed so that they are readily accessible to and usable by individuals with disabilities. Title II Technical Assistance Manual at II-6.0000, II-6.3300(6). The design standards applicable to facilities covered by Section 504 and Title II also include specific provisions relating to correctional facilities. The Department of Justice Section 504 regulations adopt the Uniform Federal Accessibility Standards (UFAS), which apply to federal agencies and entities receiving federal financial assistance. 28 C.F.R. 42.522(b). UFAS lists "jails, prisons, reformatories" and "[o]ther detention or correctional facilities" as institutions to which the accessibility standards apply. 41 C.F.R. Subpart 101-19.6, App. A at 149. Under Title II, covered 01-05859 - 12 - entities building new or altering existing facilities may follow either UFAS or the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG). 28 C.F.R. 151(c); see 28 C.F.R. Part 36, App. A. Amendments to the ADAAG, adopted as an Interim Final Rule, effective December 20, 1994, by the Architectural & Transportation Barriers Compliance Board, include specific accessibility guidelines for "detention and correctional facilities." 59 Fed. Reg. 31676, 31770-31772 (1994). The Department of Justice has proposed adoption of the interim final rule. Id. at 31808. The specific provisions in the Justice Department's Section 504 and Title II regulations listing correctional facilities or departments as covered entities, as well as the more detailed discussions of prisons in the interpretive analyses and accessibility guidelines under both statutes, confirm that the Rehabilitation Act and the ADA apply to state-operated correctional facilities. C. This Court's Decision In Torcasio Does Not Require Dismissal of Plaintiffs' Section 504 And ADA Claims In This Case. The district court erred in relying on dicta in this Court's decision in Torcasio v. Murray, in ruling that Section 504 and Title II of the ADA are inapplicable to state prisons. The plaintiff in Torcasio, who alleged that he was morbidly obese, brought an action against state prison officials for injunctive relief and damages, asserting claims under Section 504 and Title II of the ADA. 57 F.3d at 1342. Individual defendants 01-05860 - 13 - sued in their personal capacities moved for summary judgment on qualified immunity and other grounds. The district court held that both statutes applied to state prisoners, and denied the qualified immunity motion as to some claims and granted it as to others. Id. at 1343. Defendants appealed, and one issue on appeal was whether it was "clearly established" at the time of the plaintiff's incarceration that the statutes provided any protections to state prisoners. Id. at 1342. The court of appeals held that the individual defendants were entitled to qualified immunity on three grounds. First, it held that it was not clearly established "at the time" that either statute applied to state prisons. Id. at 1343; see id. at 1344-1352. Second, it held that it was not clearly established that either statute provided protections to a morbidly obese prisoner. Id. at 1353- 1355. Third, it held that the individual defendants could reasonably have believed that their actions were lawful. Id. at 1355-1356. The Torcasio court did not decide whether either statute applies to state prisons. Of course, whether a statute applies to an entity is a question quite separate and distinct from whether its application is or was "clearly established." Because the plaintiffs in this case have not sued any of the defendants in their individual capacities, the defense of qualified immunity is not at issue and the "clearly established" standard is not applicable. To be sure, the Torcasio court expressed doubt that either statute applies to prisons. But its discussion of that question was 01-05861 - 14 - dicta, and is not binding in this case. In any event, whatever the merits of Torcasio's qualified immunity ruling, its discussion of the applicability of the statutes to prisons was flawed. First, Torcasio failed to consider most of the Department of Justice's Section 504 and Title II regulations that clearly apply both statutes to the operation of state and local correctional facilities. See pp. 8-12, supra. The court concluded that a single Section 504 regulation cited by the plaintiff failed clearly to establish that statute's applicability because it merely repeated the broad language of the statute, and did not expressly mention prisons. 57 F.3d at 1350-1351, citing 28 C.F.R. 42.502. But the court failed to take account of other provisions of both the Section 504 and the Title II regulations that do expressly apply the statutes to correctional facilities and/or functions. See, e.g., 28 C.F.R. 42.540(h) (Section 504 regulation, defining "program" to include department of corrections); 28 C.F.R. 42.540(j) (Section 504 regulation, defining "benefit" to include the provision of services in connection with confinement); 45 Fed. Reg. 37620, 37630 (preamble to Section 504 regulations, stating that Section 504 is applicable to a range of correctional facilities); 28 C.F.R. 35.190(b) (6) (Title II regulation, designating Department of Justice as coordinating agency for compliance by correctional facilities); 28 C.F.R. Pt. 35, App. A at 461 (preamble to Title II regulations, requiring assistance for disabled inmates of 01-05862 - 15 - correctional institutions); see also, 41 C.F.R. Subpart 101-19.6, App. A at 149 (UFAS, includes correctional facilities among institutions subject to accessibility standards). The court acknowledged that the ADA Accessibility Guidelines expressly apply to state prisons, but concluded that, because they did not become effective until after the plaintiff in Torcasio had been paroled, they did not "show that the applicability of the ADA to state prisons was clearly established at the time [the plaintiff] was in prison in Virginia." 57 F.3d at 1351. The court also noted that the ADAAG had not yet been finally adopted by the Department of Justice. Significantly, however, the court acknowledged that the ADAAG "may provide some evidence that it is now established that the ADA applies to state prisons[.]" Ibid. Second, the Torcasio court recognized that the broad language prohibiting discrimination on the basis of disability in both statutes "appears all-encompassing." 57 F.3d at 1344. But it erroneously expressed its reluctance to find either applicable to prisons, "absent a far clearer expression of congressional intent." Ibid. The court relied (ibid.) upon a rule of statutory construction set out in Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989): if Congress intends to alter the "usual constitutional balance between the States and the Federal Government," it must make its intention to do so "unmistakably clear in the language of the statute." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99 (1984). 01-05863 - 16 - Because it found the operation of prisons to be a "core state function," 57 F.3d at 1345, and becasue neither Section 504 nor Title II includes an express statement of their application to correctional facilities, the Torcasio court expressed its doubt that Congress had "clearly" intended either statute to apply to state prisons. Id. at 1346. This extension of the clear statement rule was unwarranted. Will, Atascadero, and Pennhurst all involved instances in which there had been no express waiver or abrogation of the States' traditional immunity from suit, either by the State itself (Pennhurst), or by Congress (Will, Atascadero). Here, in contrast, both Section 504 and Title II of the ADA contain an "unequivocal expression of Congressional intent to overturn the constitutionally guaranteed immunity of the several states." Pennhurst, 465 U.S. at 99. See 42 U.S.C. 2000d-7(a) (1) ("A State shall not be immune under the Eleventh Amendment * * * from suit in Federal court for a violation of section 504 of the Rehabilitation Act"). 42 U.S.C. 12202 ("A State shall not be immune under the eleventh amendment * * * from an action in Federal or State court of competent jurisdiction for a violation of [the ADA]"). It is true that, when Congress seeks to regulate States "[i]n traditionally sensitive areas, such as legislation affecting the federal balance," Congress must make its intention to do so "'unmistakably clear in the language of the statute.'" Gregory v. Ashcroft, 501 U.S. 452, 460, 461 (1991) (quoting 01-05864 - 17 - Atascadero, 473 U.S. at 242). This requirement, however, is only a "rule of statutory construction to be applied where statutory intent is ambiguous." Gregory, 501 U.S. at 470. It is not a license to disregard clearly expressed congressional intent. Torcasio's suggestion that Congress must specifically identify state prisons in the statutory text, if it wishes to regulate them, was expressly disavowed by the Supreme Court in Gregory. See 501 U.S. at 467 ("This does not mean that the Act must mention judges explicitly."). Congress need only make the scope of the Acts "plain." Ibid. And Congress has done that here. Both Section 504 and Title II speak unambiguously of their application to state governments and to "any" or "all" of their operations. In light of the clear and all-encompassing language of both statutes, there is simply no basis for requiring Congress to have detailed which of the many important components of state and local governments were to be included in the terms "any" and "all." This Court's decision in Harker v. State Use Indus., 990 F.2d 131 (4th Cir. 1993) (cited in Torcasio, 57 F.3d at 1345), is not to the contrary. Harker held the Fair Labor Standards Act, 29 U.S.C. 201 et seg. (FLSA), inapplicable to the participation of state prison inmates in a prison employment and training program. The decision in Harker did not rest upon a rule that state prisoners may claim protection under a federal statute only when they are expressly included within the statute's coverage. Rather, it examined the relationship between the inmates and the 01-05865 - 18 - prison and concluded that no employer-employee relationship existed. Thus, by its terms, the FLSA was not applicable. 990 F.2d at 133. That conclusion was reinforced by the fact that coverage of such prison workers was not necessary to accomplish the express statutory purposes of the FLSA. Id. at 134-135. Here, as explained above (pp. 5-12, supra), both Section 504 and Title II of the ADA, by their terms and as interpreted by the agency with primary enforcement authority, clearly apply to prisons. Thus, there is no basis for requiring any more explicit reference to prisons in the language of the statutes themselves. Third, in an effort to find a textual basis for its narrow reading of Section 504 and Title II, Torcasio opined that, despite their broad language, certain provisions of those statutes cast doubt on their applicability to prisons. 57 F.3d at 1346-1347. The court stated its belief that prisons "generally do not provide 'services,' 'programs,' or 'activities' as those terms are ordinarily understood" and that "the definition of 'qualified individual with a disability' is not naturally read as encompassing inmates in state prisons." 57 F.3d at 1347; see also Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (stating, in dicta, that in context of employment discrimination claim, Bureau of Prisons "does not fit the definition of 'programs or activities' governed by" Section 504);3/ White v. State of Colorado, 82 F.3d 364, 367 (10th Cir. 3/ The holding in Williams is inconsistent with Department of Justice regulations implementing Section 504 with respect to (continued...) 01-05866 - 19 - 1996) (ADA does not apply to employment discrimination claim brought by state prison inmate); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (theorizing, without deciding, that exclusion of prisoners from ADA coverage "may have textual foundation in the term 'qualified individual'"); Crawford v. Indiana Dep't of Correction, 1996 WL 467172 (N.D. Indiana Aug. 15, 1996) (copy attached). As explained above, however (pp. 6-7, supra), the operations of state or local correctional facilities fall quite naturally within the terms "programs" and "activities." Similarly, the fact that inmates are in prison involuntarily does not negate the fact that prison officials provide them with benefits and services in the form of food, shelter, medical care, recreation, education, and rehabilitation. Nor are prisoners excluded from coverage because Section 504 and Title II protect only qualified individuals with a disability. That term is defined in Title II to mean: an individual with a disability who, with or without reasonable modifications * * * meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. 12131 (2). This definition, drawn from the Rehabilitation Act regulations, is not intended to circumscribe the entities covered by the Act. Rather, it sets forth the common sense proposition that entities that are covered by the 3/ (...continued) federally conducted programs, which make it clear that Section 504 does apply to federal prisons. See p. 10, supra. 01-05867 - 20 - Act need not jettison the essential eligibility requirements of their programs or activities in order to avoid liability. See Southeastern Community College v. Davis, 442 U.S. 397 (1979); H.R. Rep. No. 485, Pt.4, 101st Cong., 2d Sess. 39 (1990), reprinted in 1990 U.S.C.C.A.N. 512, 528. In the context of this case it would mean, for example, that an inmate who is not otherwise qualified for a work release program cannot prevail on a claim that he was excluded from such a program because of his disability, in violation of Section 504 or the ADA. Moreover, the terms "eligible" and "participate" do not, as Torcasio stated (57 F.3d at 1347), "imply voluntariness" or mandate that an individual seek out or request a service to be covered. To the contrary, the term "eligible" simply describes those who are "fitted or qualified to be chosen," without regard to their own wishes. See Webster's Third New International Dictionary, 736 (1986). Further, Torcasio's narrow reading would exempt other entities that are clearly covered under both statutes such as mental institutions, in which individuals are "held against their will," and would allow an entity to escape liability for discrimination under the statutes by making participation in a function mandatory. In fact, in the context of coercive activities, the statutes' protections from discriminatory treatment are even more important to individuals with disabilities. Finally, the prohibitions of Title II are not limited to the discriminatory exclusion of or denial of benefits to individuals 01-05868 - 21 - from services, programs, or activities. Title II also prohibits public entities from subjecting individuals with disabilities to discrimination by providing that "no qualified individual * * * shall * * * be subjected to discrimination by any such entity." 42 U.S.C. 12132. This phrase must be construed to protect prison inmates from discriminatory conduct regardless of whether prison operations are considered to involve services, programs, or activities, in order to avoid making it mere "surplusage" and "altogether redundant." Babbitt, 115 S. Ct. at 2413; Gustafson v. Alloyd Co., 115 S. Ct. 1061, 1069 (1995). See Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) (by this provision, Congress intended to prohibit outright discrimination as well as denial of services); Oak Ridge Care Ctr., Inc. v. Racine County, Wis., 896 F. Supp. 867, 872-873 (E.D. Wis. 1995) (even if zoning is not a service, program, or activity, "the statute's catch-all phrase protects [plaintiffs] from being 'subjected to discrimination'"). 01-05869 - 22 - CONCLUSION The district court judgment should be vacated and the case remanded for further proceedings. Respectfully submitted, DEVAL L. Assistant Attorney General DAVID K. FLYNN LISA WILSON EDWARDS LINDA F. THOME Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-4706 01-05870