“If properly raised, the amendment bars actions in federal court against a state, state agencies, or state officials acting in their official capacities.”
How later courts described this case
- “If properly raised, the amendment bars actions in federal court against a state, state agencies, or state officials acting in their official capacities.”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3183
INDIANA P ROTECTION AND A DVOCACY S ERVICES,
Plaintiff-Appellee,
v.
INDIANA F AMILY AND S OCIAL S ERVICES
A DMINISTRATION; A NNE W. M URPHY,
in her official capacity as Secretary of
the Indiana Family and Social Services
Administration; G INA E CKHART, in her official
capacity as Director of the Division of
Mental Health and Addiction; and L ARRY L ISAK,
in his official capacity as Superintendent
of Larue Carter Memorial Hospital,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:06-cv-1816-LJM-TAB—Larry J. McKinney, Judge.
A RGUED F EBRUARY 24, 2010—D ECIDED A PRIL 22, 2010
2 No. 08-3183
Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM,
K ANNE, R OVNER, W OOD , W ILLIAMS, S YKES, and H AMILTON,
Circuit Judges.
H AMILTON, Circuit Judge. Pursuant to the federal Pro-
tection and Advocacy for Individuals with Mental
Illness Act of 1986 (“the PAIMI Act”), 42 U.S.C. § 10801
et seq., the district court ordered Indiana state officials
and a state agency to give plaintiff Indiana Protection
and Advocacy Services (“IPAS”) access to records of
two mentally ill patients in a state hospital. On appeal,
a panel of this court reversed, finding that the Eleventh
Amendment and the lack of a statutory cause of action
barred the action. Indiana Protection and Advocacy Services
v. Indiana Family and Social Services Admin., 573 F.3d 548,
550-52 (7th Cir. 2009). We granted rehearing en banc and
hold: (1) the Eleventh Amendment does not bar plain-
tiff IPAS from seeking injunctive and declaratory relief
against named state officials; (2) the PAIMI Act itself
provides a cause of action for injunctive and declaratory
relief to enforce the Act; and (3) plaintiff is entitled to
access to peer review records of treatment of covered
mentally ill patients. Accordingly, we affirm the judg-
ment of the district court as modified to direct that the
relief runs only against the named state officials in their
official capacities.
Judge Tinder did not participate in the consideration of
this appeal.
No. 08-3183 3
I. Legislative, Factual, and Procedural Background
A. The PAIMI Act and IPAS
Upon finding that “individuals with mental illness are
vulnerable to abuse and serious injury,” Congress enacted
the PAIMI Act in 1986 to “ensure that the rights of individ-
uals with mental illness are protected” and to “assist
States to establish and operate a protection and advocacy
system for individuals with mental illness which will . . .
protect and advocate the rights of such individ-
uals through activities to ensure the enforcement of
the Constitution and Federal and State statutes . . . .” 42
U.S.C. §§ 10801(a)(1), (b)(1), (b)(2)(A). The Act provides
funding for a state on the condition that the state desig-
nates a “protection and advocacy system” to accomplish
these goals. 42 U.S.C. § 10803(2)(A). The Act gives each
state a choice. The designated protection and advocacy
system may be either an independent state agency or a
private entity. 42 U.S.C. § 15044(a) (Developmental Dis-
abilities and Bill of Rights Act), incorporated by reference
in 42 U.S.C. § 10802(2). IPAS, an independent state agency,
is Indiana’s designated protection and advocacy system
under the PAIMI Act. Like any protection and advocacy
system, it has the power to contract with other agencies
or individuals to help provide its services. 42 U.S.C.
§ 10804.
The PAIMI Act gives a designated protection and
advocacy system like IPAS the authority to investigate
incidents of abuse and neglect of individuals with
mental illness and to pursue administrative, legal, and
other remedies on behalf of those individuals. 42 U.S.C.
4 No. 08-3183
§ 10805(a)(1). To achieve those objectives, the Act requires
that IPAS have a right to access certain patient records.
Specifically, the Act requires that IPAS “shall . . . have
access to all records of any individual who is a client of
the system if such individual . . . has authorized the
system to have such access.” 42 U.S.C. § 10805(a)(4)(A). The
Act also requires that IPAS “shall . . . have access to all
records of . . . any individual (including an individual
who has died or whose whereabouts are unknown)
(i) who . . . is unable to authorize the system to have
such access; (ii) who does not have a legal guardian . . . ;
and (iii) with respect to whom . . . there is probable cause
to believe that such individual has been subject to abuse
or neglect.” 42 U.S.C. § 10805(a)(4)(B).
Whether a state designates an independent state
agency or a private entity as its protection and advocacy
system, the system such as IPAS must have, under
federal law:
the authority to . . . pursue administrative, legal, and
other appropriate remedies to ensure the protection
of individuals with mental illness who are receiving
care or treatment in the State; and pursue administra-
tive, legal, and other appropriate remedies on behalf
of an individual who . . . was [an] individual with [a]
mental illness; and . . . is a resident of the State, but
only with respect to matters which occur within 90
days after the date of discharge of such individual
from a facility providing care or treatment.
42 U.S.C. §§ 10805(a)(1)(B), (C). The Act further requires:
Prior to instituting any legal action in a Federal or
State court on behalf of a[n] individual with mental
No. 08-3183 5
illness, an eligible system, or a State agency or non-
profit organization which entered into a contract
with an eligible system under section 10804(a) of this
title, shall exhaust in a timely manner all administra-
tive remedies where appropriate. If, in pursuing ad-
ministrative remedies, the system, agency, or organi-
zation determines that any matter with respect to
such individual will not be resolved within a reason-
able time, the system, agency, or organization may
pursue alternative remedies, including the initiation
of a legal action.
42 U.S.C. § 10807(a).
The PAIMI Act requires that the designated system,
whether it is a public or private entity, “shall be independ-
ent of any agency which provides treatment or services
(other than advocacy services) to individuals with
mental illness.” 42 U.S.C. § 10805(a)(2). In states like
Indiana, in which the governing authority of the agency
is a multi-member governing board, the governor may
appoint no more than one-third of the board members.
42 U.S.C. §§ 10802(2), 15044(a)(2). Consistent with that
requirement, IPAS is governed by a board of thirteen
persons. Four are appointed by the governor. The other
nine are appointed by majority vote of the governing
board itself. Ind. Code § 12-28-1-6(a). No board member
may be an official or employee of any state agency that
delivers services to the population served by IPAS. Ind.
Code § 12-28-1-6(b). Having designated IPAS as the
state’s protection and advocacy system, Indiana is pro-
hibited from redesignating a different agency or entity
without “good cause.” 42 U.S.C. § 15043(a)(4)(A).
6 No. 08-3183
B. Patients 1 and 2 and the Record Requests
Larue Carter Memorial Hospital is a psychiatric hospital
operated by the Division of Mental Health and Addic-
tion of the Indiana Family and Social Services Administra-
tion. A person identified in the record as Patient 1 was
admitted to Larue Carter on June 21, 2006. Patient 1 was
transferred to Wishard Memorial Hospital six days later
and died at Wishard on July 31st. In response to Patient 1’s
death, a Mortality Review Committee convened at Larue
Carter on August 11th. The Committee’s report was
completed on August 28th. In the meantime, a Larue
Carter staff member provided information to IPAS that
led it to open an abuse and neglect investigation con-
cerning Patient 1’s care while at Larue Carter. An IPAS
advocate reviewed Patient 1’s chart at Larue Carter and
then requested Patient 1’s “complete chart” on August
30th. The hospital denied IPAS’s request, explaining
that Patient 1’s parents had not signed a release. On
September 13th, IPAS also requested a copy of reports
prepared by the Mortality Review Committee. The
hospital also denied this request.1
Another person identified as Patient 2 was admitted
to Larue Carter in November 2003. On August 26, 2006,
Patient 2 left Larue Carter’s grounds without approved
leave. He was apprehended by a state police officer
with assistance from hospital staff. Upon his return to
1
The parties have advised the court that the defendants
now have released Patient 1’s medical records to IPAS but
not the peer review records.
No. 08-3183 7
the hospital, Patient 2 filed a grievance with the hospital
alleging that three hospital employees and two
police officers had battered, assaulted, and attempted to
murder him. Patient 2 also filed a complaint with IPAS
and signed a release authorizing IPAS to have access to
his records. IPAS requested a copy of the hospital’s
investigation into Patient 2’s grievance. The hospital
provided a summary of its “investigation results” but did
not provide any of the underlying records. IPAS also
requested the “incident report” generated by Larue
Carter in response to the events of August 26th. The
hospital also denied this request.2
The PAIMI Act defines “records” broadly to include
“reports prepared by any staff of a facility rendering care
and treatment or reports prepared by an agency charged
with investigating reports of incidents of abuse, neglect,
and injury occurring at such facility that describe
incidents of abuse, neglect, and injury occurring at
such facility and the steps taken to investigate such
incidents, and discharge planning records.” 42 U.S.C.
§ 10806(b)(3)(A). In 1997, the United States Department
of Health & Human Services issued a set of regulations
for the PAIMI Act. The regulations define the word
“records” broadly, 42 C.F.R. §§ 51.41(c)(1)-(4), but note
2
The defendants contend on appeal that no investigative
reports were actually created with respect to Patient 2 and that
they have provided IPAS with access to all incident reports.
IPAS is not yet convinced that it has all the documents about
Patient 2 that it seeks, and that is a disputed issue better
addressed to the district court.
8 No. 08-3183
“that nothing in this section is intended to preempt
State law protecting records produced by medical care
evaluation or peer review committees.” 42 C.F.R.
§ 51.41(c)(4).3 The PAIMI Act aside, Indiana state law
regulates the disclosure of “communications, pro-
ceedings, records, determinations, or deliberations” of a
“peer review committee.” Ind. Code § 34-30-15-1(f)(2).4
C. Procedural History
IPAS sued the State of Indiana, the Family and Social
Services Administration, and three named state officials
in their official capacities. IPAS sought injunctive and
declaratory relief under the PAIMI Act, requesting a
declaration that the defendants violated IPAS’s right to
access the requested records and a permanent injunction
against restricting IPAS’s reasonable access to “records”
as defined by the PAIMI Act. IPAS did not seek monetary
3
The Department of Health and Human Services has issued
new proposed regulations under the Developmental Disabil-
ities Act that would remove this exception for peer review
records, see 73 Fed. Reg. 19708, 19731-32 (April 10, 2008),
but the department has not taken final action.
4
A “peer review committee” under Indiana law is a committee
that is organized by a hospital or other medical facility having
the responsibility of evaluating the qualifications of a profes-
sional health care provider, the patient care rendered by a
professional health care provider, or the merits of a complaint
brought against a professional health care provider. Ind.
Code § 34-6-2-99(a).
No. 08-3183 9
damages. Each side moved for summary judgment. IPAS
argued that the defendants were violating the PAIMI
Act by denying it access to the records it requested. The
defendants asserted that the PAIMI Act did not require
them to give IPAS access because IPAS did not have the
consent of Patient 1’s parents and because the peer
review and root cause documents were not covered by
the PAIMI Act. The court granted IPAS’s motion and
entered judgment for IPAS.
On appeal, the defendants argued only that the
district court erred on the merits of the “records” issue.
A panel of this court reversed. Indiana Protection and
Advocacy Services v. Indiana Family and Social Services
Admin., 573 F.3d 548, 550-53 (7th Cir. 2009). The panel
did not reach the merits but ordered supplemental
briefing and then found: (a) the PAIMI Act did not give
IPAS an express right of action; (b) IPAS could not sue
under 42 U.S.C. § 1983 because IPAS is a state agency
and thus is not a “person” for purposes of that section;
and (c) the Eleventh Amendment barred IPAS’s suit, and
the Ex parte Young doctrine would not provide an ex-
ception. The panel viewed IPAS’s lawsuit as a suit by one
arm of the state suing another, and viewed the remedy
IPAS sought as a remedy for a concrete injury rather
than an injunction for prospective relief. Id. at 553. We
granted IPAS’s petition for rehearing en banc. The United
States has appeared as amicus curiae in support of IPAS.
10 No. 08-3183
II. The Eleventh Amendment and Ex parte Young
The Eleventh Amendment to the Constitution provides
that “the Judicial power of the United States shall not be
construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” Notwithstanding the phrase “Citi-
zens of another State,” the Supreme Court “has consis-
tently held that an unconsenting State is immune from
suits brought in federal courts by her own citizens as
well as by citizens of another State.” Edelman v. Jordan, 415
U.S. 651, 662-63 (1974) (internal citations omitted). If
properly raised, the amendment bars actions in federal
court against a state, state agencies, or state officials
acting in their official capacities. Id. at 663.
The defendants engaged in two rounds of litigation of
this case—one before the district court, and one before
this court—without raising the Eleventh Amendment as
a defense to IPAS’s action. After the panel raised the
issue, defendants embraced it. The Eleventh Amendment
is unusual in that it does not strictly involve subject
matter jurisdiction and is thus waivable, see Lapides v.
Board of Regents of Univ. System of Georgia, 535 U.S. 613,
620 (2002), but a court may raise the issue itself, Higgins
v. Mississippi, 217 F.3d 951, 954 (7th Cir. 2000) (affirming
dismissal on district court’s own initiative); see gen-
erally Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237
(2010) (reminding lower federal courts to preserve dis-
tinction between genuine jurisdictional restrictions
and other claim-processing requirements or elements of
No. 08-3183 11
claims). If the panel had not chosen to raise the Eleventh
Amendment issue, this non-jurisdictional defense would
have been forfeited. See Wisconsin Dep’t of Corrections
v. Schacht, 524 U.S. 381, 389 (1998). Because the panel
opened the door, however, we address the defense.
There are three principal types of exceptions to the
Eleventh Amendment’s bar. See MCI Telecommunications
Corp. v. Illinois Bell Telephone Co., 222 F.3d 323, 337 (7th
Cir. 2000). First, a state may waive immunity by con-
senting to suit in federal court. Second, Congress may
abrogate the state’s immunity through a valid exercise
of its powers under recognized constitutional authority,
such as by later constitutional amendments. Third, under
Ex parte Young, 209 U.S. 123, 159-60 (1908), a plaintiff
may file “suit[ ] against state officials seeking prospec-
tive equitable relief for ongoing violations of federal
law. . . .” Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997).
Ex parte Young began with a suit against state officials
to enjoin enforcement of a state railroad commission’s
order requiring rate reductions. Plaintiffs contended
that the rate reductions would violate the United States
Constitution. See 209 U.S. at 129-30. The Supreme Court
held that the Eleventh Amendment did not bar the plain-
tiff’s suit, explaining that when a state official violates
the federal Constitution, that official acts outside the
scope of his or her authority and is no longer entitled to
the state’s immunity from suit. Id. at 155-56. Ex parte
Young applies to suits to enforce federal statutes as well
as the federal Constitution. See Ray v. Atlantic Richfield
Co., 435 U.S. 151, 156 n.6 (1978) (holding that Ex parte
Young allowed suit in federal court against named state
12 No. 08-3183
official for violating federal statute); see also Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983) (Ex parte Young
authorized suit against state officials challenging state
statute as preempted by federal statute); MCI Telecom-
munications, 222 F.3d at 345 (applying Ex parte Young to
suit against state officials under federal Telecommuni-
cations Act). IPAS argues that Ex parte Young authorizes
this suit against state officials seeking prospective relief.
We agree.
A court applying the Ex parte Young doctrine now “need
only conduct a ‘straightforward inquiry’ into whether
[the] complaint alleges an ongoing violation of federal
law and seeks relief properly characterized as prospec-
tive.” Verizon Maryland Inc. v. Public Service Comm’n of
Maryland, 535 U.S. 635, 645 (2002), quoting Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J.,
concurring in part and concurring in judgment). That
inquiry is satisfied here. IPAS named individual state
officials as defendants in its lawsuit. It alleges that those
officials have obstructed its access to records under the
PAIMI Act, an ongoing violation of federal law. The
relief IPAS seeks—reasonable access to the records—is
also prospective.5
5
The defendants suggest that Ex parte Young does not apply
because the Supreme Court has applied the Eleventh Amend-
ment to plaintiffs’ efforts to obtain federal court orders to
state governments to turn over property to plaintiffs. See
generally Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S.
670 (1982). Treasure Salvors and other historic shipwreck cases
(continued...)
No. 08-3183 13
We cannot fault the district court for not addressing a
defense that the defendants chose not to raise. Once the
Eleventh Amendment issue was on the table, however,
IPAS conceded that it may not sue either the State of
Indiana or any of its agencies. We modify the judgment
to remove the State and the Family and Social Services
Administration as named defendants, but the official
capacity claims against the named state officials survive
under Ex parte Young.
To avoid Ex parte Young, defendants offer two related
arguments based on the nature of the plaintiff. First,
defendants argue that because IPAS is technically a
state agency, its federal lawsuit is a special sort of in-
fringement of the state’s sovereignty. Relying on Coeur
d’Alene Tribe, defendants assert that “to permit Indiana
to sue Indiana in federal court would plainly upset the
State’s core sovereignty interests.” Second, defendants
5
(...continued)
such as California v. Deep Sea Research, Inc., 523 U.S. 491 (1998),
and Zych v. Wrecked Vessel Believed to be the Lady Elgin, 960
F.2d 665 (7th Cir. 1992), populate a colorful corner of Eleventh
Amendment law, but they provide no relevant guidance here.
IPAS does not seek to seize possession of the state records. IPAS
seeks only access to the records. Permitting IPAS to inspect and
copy the records would not infringe on the defendants’ other-
wise rightful ownership and possession of the records. See
Barnes v. Black, 544 F.3d 807, 812 (7th Cir. 2008) (stating that
federal court orders to state governments to produce
documents for inspection do not compromise state sovereignty
or violate Eleventh Amendment).
14 No. 08-3183
argue that this lawsuit is merely an “intramural” suit
between two state agencies. Def. Rehearing Br. 11-13.
The threshold problem with these arguments is that the
Ex parte Young doctrine focuses on the identity of the
defendant and the nature of the relief sought, not on the
nature or identity of the plaintiff. In any event, Coeur
d’Alene Tribe does not support defendants here. In
that case, a federally-recognized Indian tribe sought a
declaratory judgment in federal court against the state
of Idaho, various state agencies, and several state
officials in an effort to establish the tribe’s entitlement to
the exclusive use and occupancy and the right to quiet
enjoyment of the submerged lands and bed of Lake Coeur
d’Alene. The Supreme Court held that the Eleventh
Amendment barred the tribe’s suit and that the Ex parte
Young exception did not apply. The Court recognized
that “an allegation of an ongoing violation of federal law
where the requested relief is prospective is ordinarily
sufficient to invoke the Young fiction.” 521 U.S. at 281.
Nevertheless, the Court treated Coeur d’Alene Tribe as an
unusual case that was an exception to the Young doctrine
because it would decide the state’s ownership and
legal and regulatory authority over “a vast reach of
lands and waters long deemed by the State to be an
integral part of its territory.” 521 U.S. at 282.
Although Coeur d’Alene Tribe seemed to introduce a
new balancing approach (and new uncertainty) to the
application of Ex parte Young, see id. at 278, the Supreme
Court then turned away from that balancing approach
in Verizon Maryland and returned to the “straightforward”
No. 08-3183 15
inquiry into “whether [the] complaint alleges an ongoing
violation of federal law and seeks relief properly charac-
terized as prospective.” 535 U.S. at 645; see Ameritech
Corp. v. McCann, 297 F.3d 582, 588 (7th Cir. 2002) (“While
the Supreme Court [in Coeur d’Alene Tribe] seemed to
advocate this balancing approach, a majority of the Court
in Verizon rejected it.”); see also Tarrant Reg’l Water Dist. v.
Sevenoaks, 545 F.3d 906, 912 (10th Cir. 2008) (noting that
Verizon limited the “reach” of Coeur d’Alene Tribe).
Regarding defendants’ second argument to avoid Ex
parte Young, we have written in a different context that
“federal courts should not get involved unnecessarily
in what may be intramural struggles of state government
even if invited to do so by one of the contenders.” Mazanec
v. North Judson-San Pierre School Corp., 763 F.2d 845, 848
(7th Cir. 1985). And it is difficult to see how a case or
controversy exists within the meaning of Article III of
the Constitution if, for example, one state agency sues
another and the heads of both agencies serve at the plea-
sure of the governor. It would be as if the governor
were suing himself.
But a closer look at the details of this case shows that
the defendants’ effort to portray this case as an “intra-
mural” dispute is not persuasive. While the defendant
Secretary of the Family and Social Services Administra-
tion serves at the pleasure of the governor, plaintiff IPAS
is not a traditional state agency. It is independent of the
governor to a degree that is unusual and perhaps unique
among Indiana agencies. In the PAIMI Act, Congress
took care to insulate protection and advocacy services,
including those that are state agencies, from state gov-
16 No. 08-3183
ernment control. As noted, the governor may not
appoint more than one third of the IPAS governing
board. 42 U.S.C. § 10802(2); Ind. Code § 12-28-1-6(a)(1). The
federal government funds IPAS directly under the
PAIMI Act. IPAS is exempt from personnel measures
potentially affecting other state agencies, such as hiring
freezes, reductions in force, prohibitions on travel, or any
other policies that might interfere with IPAS’s ability to
carry out its functions. 42 U.S.C. § 15043(a)(2)(K). As a
matter of federal law, IPAS has authority, independent
of the state administration, to “pursue administrative,
legal, and other appropriate remedies to ensure the pro-
tection of individuals with mental illness who are re-
ceiving care or treatment in the State.” 42 U.S.C.
§ 10805(a)(1)(B). Congress thus has provided as a matter of
federal law that IPAS is insulated from the type of state
control over policy, budget, personnel, and governance
that could justify treating this as an “intramural” dispute.
In a sense, given its unusual independence from state
government, the special federal responsibilities it carries
out, and the direct federal funding it receives, IPAS is
closer to being a specialized agent of the federal govern-
ment for these purposes than it is to being an ordinary
state agency.
Indiana’s use of IPAS’s status as an independent state
agency to support the State’s late reliance on the Eleventh
Amendment to block this lawsuit also seems, frankly,
unfair. Congress gave each state the choice to establish a
protection and advocacy system as either an independent
state agency or a private not-for-profit entity. Indiana
made the choice to set up IPAS as an independent state
agency. If we gave that choice any weight in the Eleventh
No. 08-3183 17
Amendment inquiry, we would be permitting Indiana
to use its own choice to set up an independent state
agency as a means to shield its state hospitals and institu-
tions from the very investigatory and oversight powers
that Congress funded to protect some of the state’s
most vulnerable citizens. That result would be strange
indeed. The combination, moreover, of the state’s choice
to set up an independent agency and its failure to raise
the Eleventh Amendment issue itself also makes it
difficult to see how this lawsuit poses a serious threat
to any special sovereignty interest of the state.6
The defendants suggest that IPAS is free to bring its
lawsuit against the state defendants in state court. How-
ever, they point to no state law that would provide
an adequate remedy, and if the Eleventh Amendment
prohibited IPAS from suing the defendants under the
PAIMI Act in federal court, it would also prohibit IPAS
from suing the defendants under the PAIMI Act in state
court. See Alden v. Maine, 527 U.S. 706, 754 (1999) (holding
that Congress cannot abrogate the states’ immunity
from private suit in their own courts).7
6
It is abundantly clear that Congress was spurred to action
based on the conditions within state-operated facilities. The
PAIMI Act of 1986 resulted from a nine-month Congressional
staff investigation that detailed appalling conditions in many
state-operated mental health institutions. See S. Rep. 99-109 at 1
(1985), and S. Hrg. 99-50, Pt. 2 (1985) (staff report).
7
After the en banc argument, defendants submitted a letter
stating that they would have no immunity from a mandamus
action in state court. Even if that were enough to avoid the
(continued...)
18 No. 08-3183
In short, IPAS’s lawsuit is a classic application of
Ex parte Young. It asks a federal court to order state
officials to modify their conduct to comply with federal
law. Plaintiff’s status as an unusually independent state
agency does not change the Young analysis. The Eleventh
Amendment does not bar IPAS’s request for declaratory
and injunctive relief against the named state officials.8
7
(...continued)
straightforward application of Ex parte Young here, and it is
not, the state court option would also be inadequate. The
applicable law would be federal law—the right of access to
records granted in 42 U.S.C. § 10806—so the Alden v. Maine
problem would remain. Indiana has not enacted legislation
granting such rights under state law. Moreover, Congress
clearly intended the protection and advocacy systems—all of
them—to be able to respond quickly to threats of imminent
harm to their constituents. See, e.g., 42 U.S.C. § 10805(a)(4)(C)
(permitting systems to access records of individuals with
mental illness who have legal guardians or representatives
but whose health or safety is in serious and immediate
jeopardy if the individual’s guardian or representative has
refused to act); 42 U.S.C. § 10807(b) (providing exception to the
system’s obligation to pursue administrative remedies prior
to filing suit where legal action is instituted to prevent or
eliminate imminent harm to an individual with mental ill-
ness). As counsel for IPAS put it at oral argument, there is no
such thing as a “preliminary mandamus” action.
8
The Fourth Circuit reached a different conclusion in Virginia
v. Reinhard, 568 F.3d 110, 118-24 (4th Cir. 2009) (holding that
protection and advocacy state agency’s suit seeking records
(continued...)
No. 08-3183 19
III. Right of Action Under the PAIMI Act
The defendants next argue that the PAIMI Act does not
itself provide IPAS with a cause of action to seek equitable
relief. Defendants contend that protection and advocacy
systems can sue only under 42 U.S.C. § 1983. But, citing
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65-66
(1989) (holding that a state agency was not a “person” that
could be sued as a defendant under § 1983), defendants’
catch is that IPAS is a state agency and thus is not a
“person” under section 1983. See Virginia Office for Pro-
tection and Advocacy v. Reinhard, 405 F.3d 185, 189-90
(4th Cir. 2005) (state agency could not sue under section
1983 to enforce rights under PAIMI Act). If that’s true,
then IPAS and other state-agency protection and
advocacy systems cannot obtain relief in federal court by
any avenue. According to defendants, the only relief from
Indiana’s violations of the PAIMI Act would be for the
federal government to cut off funding for IPAS itself—
a sanction that would serve only to undermine the
PAIMI Act rather than enforce it.
8
(...continued)
under the PAIMI Act was barred by Eleventh Amendment;
Ex parte Young not applicable to suit where plaintiff was state
agency), petition for cert. filed, 78 U.S.L.W. 3416 (U.S. Jan. 19,
2010) (No. 09-529). For the reasons explained in the text, we
respectfully disagree. We also note that the Virginia defendants
had argued in an earlier case that the state protection and
advocacy system had obtained relief under Ex parte Young. See
Virginia Office for Protection and Advocacy v. Reinhard, 405 F.3d
185, 187-88 (4th Cir. 2005).
20 No. 08-3183
We reject that improbable interpretation of the Act. We
hold that the PAIMI Act itself authorizes IPAS to bring
this suit for injunctive and declaratory relief.9 To deter-
mine whether a cause of action exists, “the judicial task
is to interpret the statute Congress has passed to deter-
mine whether it displays an intent to create not just a
private right but also a private remedy.” Alexander v.
Sandoval, 532 U.S. 275, 286 (2001). “For a statute to create
such private rights, its text must be ‘phrased in terms of
the persons benefitted.’ ” Gonzaga University v. Doe, 536
U.S. 273, 284 (2002), quoting Cannon v. University of
Chicago, 441 U.S. 677, 692, n.13 (1979). Where a statute
“by its terms grants no private rights to any identifiable
class,” the question whether Congress intended to create
a cause of action “is definitively answered in the nega-
tive.” Gonzaga, 536 U.S. at 283-84, quoting Touche Ross &
Co. v. Redington, 442 U.S. 560, 576 (1979). Where the text
and structure of a statute do not provide an indication
that Congress intended to create new individual rights,
there is no basis for a private suit. Gonzaga, 536 U.S. at 286.
Looking to the PAIMI Act, we find that Congress ex-
pressed its intent to create a legally enforceable right of
access to patient records vested in an identifiable
class—protection and advocacy systems, including IPAS,
which act for the benefit and protection of mentally ill
individuals who may have difficulty acting for themselves.
9
The parties agree that the PAIMI Act does not provide IPAS
(or other protection and advocacy systems) with a cause of
action for damages.
No. 08-3183 21
If and when those protection and advocacy systems are
denied their right of access, the PAIMI Act shows with
sufficient clarity that the remedy is a suit to enforce the
right of access in federal or state court.
Congress phrased the PAIMI Act in terms that grant
rights to the protection and advocacy system in each state:
“A system established in a State under section 10803
of this title to protect and advocate the rights of indi-
viduals with mental illness shall— . . . (3) have access to
facilities in the State providing care or treatment; (4) in
accordance with section 10806 of this title, have access to
all records of” several categories of patients. See 42 U.S.C.
§ 10805(a). This is not only a condition for funding. The
Act further provides that the system shall have the power
to bring legal actions to ensure the protection of its con-
stituents and to litigate on behalf of its constituents. A
system designated under the Act “shall have the authority
to pursue administrative, legal, and other appropriate
remedies to ensure the protection of individuals with
mental illness who are receiving care or treatment in the
State” and to “pursue administrative, legal, and other
remedies” on behalf of individuals with mental illness
who are receiving or have received care or treatment
from a facility up to 90 days after their discharge from
care. 42 U.S.C. §§ 10805(a)(1)(B), (a)(1)(C). A suit for access
to patient records falls squarely within the statutory
authority to pursue “legal and other appropriate
remedies to ensure the protection of individuals with
mental illness. . . .”
As we read the statute, these powers are conferred upon
a protection and advocacy system like IPAS as a matter
22 No. 08-3183
of federal law by virtue of its designation by a state.
Contrary to the dissent’s suggestion, nothing in the
PAIMI Act requires the state to adopt legislation or reg-
ulations granting such powers as a matter of state law.
Another section of the PAIMI Act offers further evidence
that Congress intended that protection and advocacy
systems have the ability to sue under the Act. The Act
requires that “prior to instituting any legal action in a
Federal or State court on behalf of a[n] individual with
mental illness, an eligible system . . . shall exhaust in a
timely manner all administrative remedies where appro-
priate. If . . . the system . . . determines that any matter
with respect to such individual will not be resolved within
a reasonable time, the system . . . may pursue alternative
remedies, including the initiation of a legal action.” 42
U.S.C. § 10807(a) (emphasis added). The provision
would have little purpose if protection and advocacy
systems like IPAS were not empowered to sue to
enforce the PAIMI Act.1 0
10
The dissent criticizes our reliance on section 10807 as turning
a precondition to suit into an authorization to sue. Post at 57.
Our point is simply that when Congress established the precon-
dition to suit, it obviously assumed that the suit could be
brought in the first place. We also see nothing in the
statutory phrase “any legal action in a Federal or State court
on behalf of an individual with mental illness” that would
exclude this or similar suits for access to records of indi-
viduals with mental illness. If the dissent is correct that
42 U.S.C. § 1983 offers a cause of action—but only for private
(continued...)
No. 08-3183 23
The defendants argue that the PAIMI Act is an exercise
of Congress’s spending power to condition receipt of
specified federal funds on compliance with specified
terms. The defendants contend that, like the spending
power statutes at issue in Sandoval and Gonzaga, the PAIMI
Act does not include an express provision for a private
right of action and may be enforced only by a federal
executive action to terminate a non-compliant state’s
funding. The argument reads Sandoval and Gonzaga too
broadly. Both eschew sweeping rules and instead teach the
need for close attention to the specific language and
structure of the statute at issue. Both cases are easily
distinguishable based on the critical features of the Su-
preme Court’s reasoning.
The plaintiff in Sandoval sued to enforce disparate-
impact regulations promulgated by the Department of
Justice under Title VI of the Civil Rights Act of 1964.1 1 The
particular regulation under review forbade funding
recipients from “utiliz[ing] criteria or methods of ad-
10
(...continued)
entities—section 10807 might be more useful. But there is no
indication in the statute or elsewhere that Congress intended
that a state’s choice between the two types of protection and
advocacy systems would have such dramatic consequences
for their enforcement powers.
11
Title VI provides that no person shall “on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination
under any program or activity” covered by Title VI. 42
U.S.C. § 2000d.
24 No. 08-3183
ministration which have the effect of subjecting indi-
viduals to discrimination because of their race, color, or
national origin.” Alabama amended its Constitution to
declare English “the official language of the state” and
began administering state driver’s license examinations
only in English. Sandoval sued for an injunction against
the director of the state agency. The Supreme Court
recognized that Title VI itself included an implied
private right of action for both injunctive relief and dam-
ages for violations of the statute itself, but the Court
found that the same authority did not extend to violations
of the disparate-impact regulation. Sandoval, 532 U.S. at
279-80, 293. The Court pointed out that the regulation
was phrased not in terms of creating rights but in terms
of instructions to federal funding agencies. Id. at 288-89.
The Court explained that “statutes that focus on the
person regulated rather than the individuals protected
create ‘no implication of an intent to confer rights on a
particular class of persons.’ ” Sandoval, 532 U.S. at 289,
quoting California v. Sierra Club, 451 U.S. 287, 294 (1981).
The disparate-impact regulation’s focus was “twice
removed from the individuals who will ultimately benefit
from Title VI’s protection” because it was “ ‘phrased as a
directive to federal agencies engaged in the distribution
of public funds.’ ” 532 U.S. at 289, quoting Universities
Research Ass’n v. Coutu, 450 U.S. 754, 772 (1981) (analyzing
the Davis-Bacon Act).
A year after Sandoval, the Court in Gonzaga University
v. Doe, 536 U.S. 273 (2002), held that the Family Educa-
tional Rights and Privacy Act of 1974 did not provide a
private right of action for damages and created no rights
No. 08-3183 25
enforceable under 42 U.S.C. § 1983. The Court therefore
reversed a jury verdict for damages in favor of an individ-
ual and against a recipient of federal funds. FERPA, like
section 602 of Title VI, was enacted under Congress’s
spending power. It directs the Secretary of Education
to withhold federal funds from any educational institu-
tion that fails to comply with certain conditions. One
condition is that the institution not release a student’s
educational records without written consent. See 20 U.S.C.
§ 1232g(b)(1). A university official discussed allegations
of sexual misconduct against Doe and thus prevented
him from being certified as a teacher. Doe sued, arguing
that section 1232g(b)(1) of FERPA granted him a right
enforceable under section 1983 to sue for damages caused
by the unauthorized release of personal information. The
Court disagreed, finding that section 1983 provided a
remedy for the deprivation only of “rights,” not of vague
benefits or privileges, and that Congress had not granted
any private rights to any class of individuals in FERPA.
Gonzaga, 536 U.S. at 283-84. FERPA’s non-disclosure
provisions lacked “rights-creating” language and spoke
only to the Secretary of Education, directing that “no
funds shall be made available” to an institution with a
prohibited policy or practice. Id. at 287, quoting 20 U.S.C.
§ 1232g(b)(1). The focus of the statute, again, was “two
steps removed from the interests of individual students”
and did not confer individual rights. Id.
Our dissenting colleague contends that Brunner v. Ohio
Republican Party, ___ U.S. ___, 129 S. Ct. 5 (2008), conflicts
with our reasoning here. In Brunner, the Court issued a
one-paragraph emergency opinion summarily vacating a
26 No. 08-3183
temporary restraining order that had directed the Ohio
Secretary of State to update Ohio’s voter database to
comply with section 303 of the Help America Vote Act of
2002 a few weeks before the national election. Citing
Gonzaga and Sandoval, the Supreme Court wrote that the
plaintiffs were “not sufficiently likely to prevail on the
question whether Congress has authorized . . . the issuance
of a TRO.” Brunner, 129 S. Ct. at 6.
Close examination of the statute at issue and the opin-
ions from the Sixth Circuit’s en banc review illuminates the
Supreme Court’s terse conclusion and shows that our
conclusion here is consistent with the case. The statute
in Brunner provided:
The chief State election official and the official
responsible for the State motor vehicle authority of a
State shall enter into an agreement to match infor-
mation in the database of the statewide voter registra-
tion system with information in the database of the
motor vehicle authority to the extent required to
enable each such official to verify the accuracy of the
information provided on applications for voter regis-
tration.
42 U.S.C. § 15483(a)(5)(B)(i). The state’s chief election
official had allegedly stopped sending data about
potential “mismatches” between motor vehicle and voter
registration lists some weeks before the national election.
A political party and a candidate sued to require the
state election official to resume sending such data,
which could have provided the basis for widespread
election-day challenges to voter eligibility. Within the
No. 08-3183 27
space of a mere two weeks, a district court granted a
temporary restraining order, a panel of the Sixth Circuit
vacated the TRO, the Sixth Circuit en banc reinstated
the TRO, and the Supreme Court finally vacated the TRO.
On the issue of the private right of action, the Sixth
Circuit majority considered Gonzaga and its instructions
that, in identifying statutory rights enforceable under
section 1983, “it is rights, not the broader or vaguer ‘bene-
fits’ or ‘interests,’ that may be enforced” under § 1983, and
that “such rights must be ‘unambiguously conferred . . . to
support a cause of action brought under § 1983.’ ” Ohio
Republican Party v. Brunner, 544 F.3d 711, 719-20 (6th
Cir. 2008) (en banc) (emphasis in original), quoting
Gonzaga, 536 U.S. at 283. The Sixth Circuit majority con-
cluded that whether the HAVA provision requiring data-
sharing agreements between election officials and motor
vehicle officials created enforceable rights was a difficult
and close question that did not undermine the district
court’s TRO. Id. at 720-21. Judge Moore’s dissenting
opinion explained in detail why the data-sharing pro-
vision of HAVA did not create rights enforceable by
individuals. 544 F.3d at 726-30. As in Gonzaga and Sandoval,
the statute did not contain rights-creating language.
Instead, it authorized the United States government to
sue to enforce the mandates directed at state officials.
Sandoval, Gonzaga, and Brunner do not stand for a broad
rule that spending power statutes can never be enforced
by private actions. They show that courts must examine
each statutory scheme closely. Close examination of
the PAIMI Act shows that this lawsuit to enforce IPAS’s
28 No. 08-3183
right of access to records is exactly what Congress
intended to authorize. Unlike the statutes in Sandoval
and Brunner and the regulation in Gonzaga, the PAIMI
Act’s key language is not directed at an administrator of
federal funds or even at the State of Indiana as a funding
recipient. Instead, the Act directly grants rights and
powers to the designated protection and advocacy system
that is the plaintiff here. As the designee, IPAS “shall . . .
have access to all records,” 42 U.S.C. § 10805(a)(4),
and “shall have the authority to pursue administra-
tive, legal, and other appropriate remedies.” 42 U.S.C.
§ 10805(a)(1)(B). These rights are not one or two steps
removed from IPAS—they are granted directly to IPAS
itself. The PAIMI Act’s key requirements are not
directed at the states as recipients of the funds. (The fed-
eral allotments go directly to the protection and advocacy
systems, not to the states. See 42 U.S.C. § 10803.) Of
states, the Act requires only that they designate their
chosen protection and advocacy systems and give them
the required independence. The Act does not require
states to take additional steps to empower the designated
protection and advocacy systems, and Indiana has not
done so. See generally Ind. Code § 12-28-1-1 et seq. Under
the language of the federal statute, such efforts would
be redundant.
Congress expressed with sufficient clarity its intent to
grant immediate and legally enforceable rights to the
states’ designated protection and advocacy systems. Once
Indiana designated IPAS, Congress vested IPAS with
the right to access the necessary records and the right to
sue directly under the PAIMI Act if that access is denied.
No. 08-3183 29
The PAIMI Act also lacks separate administrative
enforcement mechanisms comparable to those that were
important factors in Sandoval, Gonzaga, and Brunner.
Section 602 of Title VI, scrutinized in Sandoval, empowered
the Department of Justice to enforce its regulations by
terminating funding to “the particular program, or part
thereof,” but only after notifying the recipient department
or agency of its failure to comply and “fil[ing] with the
committees of the House and Senate having legislative
jurisdiction over the program or activity involved a full
written report of the circumstances and the grounds for
such action.” Sandoval, 532 U.S. at 289-90, quoting 42 U.S.C.
§ 2000d-1. The Court found that section 602 expressly
provided “one method of enforcing a substantive rule
suggest[ing] that Congress intended to preclude others.”
Sandoval, 532 U.S. at 290.
Similarly, FERPA, at issue in Gonzaga, directs the Secre-
tary of Education to establish an office and review board
for “investigating, processing, reviewing, and adjudicating
violations of [FERPA].” 20 U.S.C. § 1232g(g). Students
and parents who suspect a violation can file written
complaints with the board, which can initiate investiga-
tions. See 34 C.F.R. §§ 99.63-99.67. If the Secretary deter-
mines that a recipient institution is failing to comply
with FERPA and that compliance cannot be secured
voluntarily, the statute allows the Secretary to terminate
funding to the institution. 20 U.S.C. §§ 1234c(a), 1232g(f).
The Gonzaga Court found that Congress’s decision to
provide a mechanism to enforce FERPA buttressed its
conclusion that the statute did not confer individual
rights. Gonzaga, 536 U.S. at 289-90.
30 No. 08-3183
And as Judge Moore explained in her dissent in
Brunner, the Help America Vote Act, too, specified that
“the Attorney General may bring a civil action against
any State or jurisdiction in an appropriate United States
District Court for such declaratory and injunctive relief . . .
as may be necessary to carry out the . . . requirements
under [sections 301, 302, and 303].” 42 U.S.C. § 15511; see
544 F.3d at 729-30. The statute also required states to
establish detailed “State-based administrative com-
plaint procedures” to resolve disputes under the statute.
See 42 U.S.C. § 15512. That statutory provision for ad-
ministrative remedies further likens the statute in
Brunner to the statutes under review in Sandoval and
Gonzaga and distinguishes it further from the PAIMI
Act, which has no comparable provisions for administra-
tive or executive enforcement against the states.1 2
12
Although the defendants did not make this point in their
briefs, the dissent observes that the PAIMI Act has an adminis-
trative enforcement mechanism under 42 C.F.R. § 51.10. That
regulation authorizes suspension or termination of grant
payments, among other actions, based on a protection and
advocacy system’s failure to comply with the Act. The problem
for the dissent is that the regulation provides for remedies only
against a protection and advocacy system, if for example it fails to
live up to its obligations to submit annual reports or other
documentation in response to review and monitoring by the
federal government. Such remedial actions could lead to
suspension or termination of funding to the system. See id.,
incorporating 45 C.F.R. Part 74, 42 C.F.R. Part 50. (Another
administrative mechanism establishes a detailed procedure a
(continued...)
No. 08-3183 31
More fundamentally, under the PAIMI Act, the remedy
of a funding cut-off for violations of the Act would be
perversely counterproductive. As the findings set forth
in 42 U.S.C. § 10801 show, Congress wanted to establish
a protection and advocacy system that would protect
and advocate for the rights of individuals with mental
illness and investigate incidents of abuse and neglect of
those individuals. See 42 U.S.C. § 10801(b). Responding
to a state’s violation of the Act by cutting off funding
for that very system would undermine the purpose of the
entire Act. It is highly unlikely that Congress intended
for such a funding cut-off to be the response to such
violations by a state.
IPAS has argued that 42 U.S.C. § 1983 provides an
alternative basis for its suit and that its director could
become the plaintiff (attempting to avoid the state
agency problem discussed above). Section 1983 fits awk-
wardly with the PAIMI Act because a protection and
advocacy system has rights against both public and
private care providers. The latter would not act under
color of state law and could not be reached under section
12
(...continued)
state must follow to designate a new protection and advocacy
system. 45 C.F.R. § 1386.20.) None of these administrative
enforcement mechanisms offer any relief at all for IPAS or any
other protection and advocacy system if a recalcitrant state
violates its obligations, such as the obligation to provide access
to patient records. Unlike the situations in Sandoval, Gonzaga,
and Brunner, the only available remedy for the violations alleged
by IPAS is a lawsuit to enforce its rights under the PAIMI Act.
32 No. 08-3183
1983. We agree with the position advocated by the
United States as amicus curiae. Because the PAIMI Act
itself provides a cause of action for equitable relief, we
decline to address IPAS’s ability to pursue relief under
42 U.S.C. § 1983.
The dissent also contends that our decision runs afoul
of the “clear-statement” principle expressed in Arlington
Central School District Bd. of Educ. v. Murphy, 548 U.S. 291,
296 (2006), among other cases. Congress cannot subject
the state to suit by the protection and advocacy system,
goes the argument, without spelling out more clearly in
the statute that such suits are authorized; otherwise it
would be as if one party to a contract tried to sneak
an onerous provision into the deal without the other
party’s knowledge. This argument of unfair surprise
would have more weight if it had been raised by the
state defendants before the district court, or before the
panel, or indeed in any other protection-and-advocacy
lawsuits against state defendants in more than 20 years
of experience under the PAIMI Act. Instead, it is the
argument itself that is the late surprise.
State hospitals and institutions were the primary
concern of the PAIMI Act, see note 6, above, and for
more than 20 years under the PAIMI Act, we and other
circuits and numerous district courts have heard similar
suits under the PAIMI Act. See, e.g., Disability Rights
Wisconsin, Inc. v. State of Wisconsin Dep’t of Public Instruc-
tion, 463 F.3d 719, 725 (7th Cir. 2006) (reversing denial of
injunction where private protection and advocacy
system sought records from state agency, without
No. 08-3183 33
relying on 42 U.S.C. § 1983, and providing history of
protection and advocacy legislation); Protection & Advocacy
for Persons with Disabilities v. Mental Health & Addiction &
Advocacy Servs., 448 F.3d 119 (2d Cir. 2006) (affirming
injunction in favor of state agency to obtain access to
patient records) 13 ; Missouri Protection & Advocacy Servs. v.
Missouri Dep’t of Mental Health, 447 F.3d 1021 (8th Cir. 2006)
(affirming injunction requiring access to patient records
under 42 U.S.C. § 1983); Center for Legal Advocacy v.
Hammons, 323 F.3d 1262 (10th Cir. 2003) (reversing denial
of injunction); Pennsylvania Protection & Advocacy, Inc. v.
Houstoun, 228 F.3d 423 (3d Cir. 2000) (affirming injunction
requiring access to patient records); see also, e.g., Con-
necticut Office of Protection and Advocacy for Persons with
Disabilities v. Hartford Board of Educ., 464 F.3d 229 (2d Cir.
2006) (affirming injunction in favor of state agency
directly under PAIMI Act); Ohio Legal Rights Service v.
Buckeye Ranch, Inc., 365 F. Supp. 2d 877, 883-84 (S.D. Ohio
13
The dissent describes the Second Circuit’s decision in the
Connecticut Protection & Advocacy case as one under section
1983, but then-Judge Sotomayor’s opinion described the case
as one filed “pursuant to 42 U.S.C. § 1983 and PAIMI.” 448 F.3d
at 122. The Connecticut protection and advocacy system is
a state agency much like IPAS. See Conn. Gen. Stat. § 46a-7
et seq. If the dissent is correct that state agencies cannot sue
under section 1983 or the PAIMI Act, then the Second Circuit’s
decision was erroneous. And if the dissent is correct, then a
Wisconsin state agency overlooked a winning argument in
Disability Rights Wisconsin, 463 F.3d at 725 (granting relief
directly against state agency).
34 No. 08-3183
2005) (granting injunction under PAIMI Act in favor of
state agency protection and advocacy system against
private care-giver); Equip for Equality, Inc. v. Ingalls Memo-
rial Hosp., 292 F. Supp. 2d 1086 (N.D. Ill. 2003) (granting
injunction against private care-giver directly under
PAIMI Act and state law); Kentucky Protection and
Advocacy Div. v. Hall, 2001 WL 34792531 (W.D. Ky. Sept. 24,
2001) (granting declaratory relief in favor of state agency
under PAIMI Act against private care-givers); Wisconsin
Coalition for Advocacy, Inc. v. Czaplewski, 131 F. Supp. 2d
1039, 1047-50 (E.D. Wis. 2001) (ordering both public
and private care-givers to provide access to records to
private protection and advocacy system under PAIMI
Act); Trautz v. Weisman, 846 F. Supp. 1160, 1162-63
(S.D.N.Y. 1994) (holding that state protection and ad-
vocacy system could seek relief directly under PAIMI
Act against private care-givers).
Although we have not persuaded our dissenting col-
league, we have tried to remain true to our role as
judges rather than legislators, interpreting the PAIMI Act
based on its language, structure, and purpose rather
than enacting a new-and-improved brand as a matter of
judicial preference. As we have explained, close atten-
tion to the language and structure of the PAIMI Act
shows that Congress made sufficiently clear its intention
to authorize protection and advocacy systems to sue
directly under the PAIMI Act to enforce their rights to
access to patient records against both public and
private care-givers for the mentally ill. As between our
interpretation and the dissent’s, our interpretation is
more consistent with the language, structure, and pur-
pose of the PAIMI Act as a whole.
No. 08-3183 35
The dissent’s approach, by contrast, interprets the Act
as creating a strange remedial patchwork full of holes
and self-defeating funding cut-offs. In the dissent’s view,
in the 42 states that chose to designate private entities
as their protection and advocacy systems, the private
entities can sue under section 1983 to obtain records
from public care-givers (those who act under color of
state law). But those same private entities apparently
cannot sue to obtain records from private care-givers be-
cause section 1983 would not apply.1 4 On the other hand,
in Indiana and the six other states that chose to designate
public agencies as their protection and advocacy systems,
the dissent would hold that the public agencies cannot
sue to obtain records from state care-givers. Section 1983
does not apply, and the PAIMI Act does not authorize
such a lawsuit. (A state could choose to enact legislation
authorizing such a suit as a matter of state law, but the
PAIMI Act does not require it to do so.) Yet the dissent
also seems to suggest that IPAS and the other public
agencies might be able to sue private care-givers to
obtain records directly under the PAIMI Act (because
such private care-givers are not protected by the “clear-
statement” rule, see post at 58).
14
We are not entirely certain whether the dissent would
interpret the PAIMI Act as itself authorizing private entities to
sue private care-givers for access to records. The logic of the
dissent’s point that private care-givers are not protected by
the “clear-statement” rule (see post at 58) suggests that this
more limited right to sue private defendants can be inferred
directly from the PAIMI Act.
36 No. 08-3183
Congress would have been free to enact such an incon-
sistent and even arbitrary remedial patchwork, of course
(though it would be inconsistent with most of the cases
cited above and many others). Yet the language of the
statute does not give any signal that Congress intended
such an odd result. We will not readily attribute to Con-
gress the intent to do so when the more straightforward
alternative is available: recognizing that protection and
advocacy systems have a right to sue directly under
the PAIMI Act for injunctive and declaratory relief to
enforce the right to obtain the records granted by the
Act itself.
IV. “Records” Under the PAIMI Act
Turning to the merits, the defendants argue that the
peer review records IPAS seeks are not “records” under
the PAIMI Act. Defendants rely on the PAIMI Act’s
subsequent legislative history and a Department of
Health and Human Services regulation. In light of the
language of the PAIMI Act itself, however, we join all
other circuits that have addressed the issue and agree
with IPAS that peer review records are “records” under
the PAIMI Act.
The Second and Third Circuits reached this conclusion
in opinions authored, coincidentally, by future Justices
Sotomayor and Alito. See Protection & Advocacy for
Persons with Disabilities v. Mental Health & Addiction
& Advocacy Servs., 448 F.3d 119, 128 (2d Cir. 2006)
(Sotomayor, J.) (“The plain language of PAIMI that grants
[the P&A system] access to ‘all records of . . . any individ-
No. 08-3183 37
ual,’ including ‘reports prepared by any staff of a facil-
ity,’ encompasses peer review reports.”); Pennsylvania
Protection & Advocacy, Inc., v. Houstoun, 228 F.3d 423, 428
(3d Cir. 2000) (Alito, J.) (holding that the Act required
access to peer review records and noting that the PAIMI
Act requires that protection and advocacy systems “be
given access to a defined category of records. . . . The
statutory language cannot reasonably be construed to
encompass identical peer review reports in some states
but not others. If Congress wished to achieve that result,
it needed to enact different statutory language.”). The
Eighth and Tenth Circuits have agreed, as well. Missouri
Protection & Advocacy Servs. v. Missouri Dep’t of Mental
Health, 447 F.3d 1021, 1023 (8th Cir. 2006) (refusing to
“resort to congressional committee reports as interpre-
tive devices” and rejecting contrary agency interpreta-
tion because the PAIMI Act’s record access requirement
is unambiguous); Center for Legal Advocacy v. Hammons,
323 F.3d 1262, 1270 (10th Cir. 2003) (after examining the
statutory language and according it a straightforward
interpretation, concluding that “records” under the
PAIMI Act include peer review and quality assurance
records). Enough has been said already on the subject.
We agree with the treatment of this issue in those cases.
The judgment of the district court is modified to
provide that the declaratory and injunctive relief runs
against only the named state officials in their official
capacities. As modified, the judgment is affirmed.
38 No. 08-3183
P OSNER, Circuit Judge. I join Judge Hamilton’s opinion
without reservation, but write separately to emphasize
some practical considerations that seem to me to favor
recognition of IPAS’s right to sue to obtain patient records.
The federal Protection and Advocacy for Individuals
with Mental Illness Act of 1986, 42 U.S.C. §§ 10801 et seq.,
assigns to “protection and advocacy” agencies such as
IPAS (“Indiana Protection and Advocacy Services,” an
Indiana state agency that is independent of the governor
and the attorney general) a whistleblower, ombudsman,
watchdog, advocacy, and “private attorney general”
role. Rather than loading the Department of Health and
Human Services or the Justice Department with addi-
tional enforcement responsibilities, Congress told the
states in effect: “if you want, we will give you federal
money to help prevent the abuse of mentally ill persons
in your state, but you will have to agree to designate an
agency, either public or private as you choose, to ‘protect
and advocate for’ the rights of such persons, and the
agency, which we’ll be paying for, must be given access
to certain patient records without which it cannot
perform its assigned role effectively.”
But what if the hospital that has the records refuses to
grant IPAS access to them? Can IPAS sue the hospital to
get access? (I think we all agree that if IPAS has a right
of action under the federal statute it makes no dif-
ference whether the hospital is public or private; the
disagreement is over the “if.”) If not—if IPAS is a
helpless bystander to the state’s thumbing its nose at the
statute under which it has received federal money—still
No. 08-3183 39
the federal government would not be completely without
a remedy; it could close the money spigot. 42 C.F.R.
§ 51.10; see also 42 U.S.C. § 10803; cf. 20 U.S.C. §§ 1232g(f),
1234c(a), d(a); Gonzaga University v. Doe, 536 U.S. 273, 278-
79 (2002). But that (to change metaphors) would
be cutting off one’s nose to spite one’s face. The unfortu-
nates in Indiana who are the intended beneficiaries of the
federal program would be worse off were the program
in that state to be defunded. See Guardians Ass’n v. Civil
Service Commission, 463 U.S. 582, 601-02 (1983) (plurality
opinion); Cannon v. University of Chicago, 441 U.S. 677, 704-
06 and nn. 38-39 (1979); Board of Public Instruction v.
Finch, 414 F.2d 1068, 1075-76 and n. 11 (5th Cir. 1969).
Of course the threat to defund might be enough to bring
the state to heel. But that is not certain. The state and
the federal government would be playing a game of
chicken—with Indiana’s mentally ill citizens the victims
of any collision that might result.
Now it is true and important that statutes are com-
promises between competing values and also between
competing interests, and for either reason or both
reasons the remedies for violations of a statute may be
weakened as the bill runs the legislative gauntlet.
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 445-46, 461 (2002);
Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (per
curiam); First Bank v. DJL Properties, LLC, No. 10-8008,
2010 WL 1050283, at *2 (7th Cir. Mar. 24, 2010); In re
Establishment Inspection of Skil Corp., 846 F.2d 1127, 1133-
34 (7th Cir. 1988). They may even be weakened to the
point of impotence. But the state does not argue that a
40 No. 08-3183
legislative compromise deprived the bill of effective
remedies.
Conceivably the federal government could sue the
state hospital, even without express statutory authoriza-
tion, for an injunction requiring the hospital to give IPAS
access to the patient records in question. The state
accepted federal money in exchange for promises that
included giving the watchdog agency access to patient
records. The state’s acceptance created a contract and
the federal government, if it sought specific performance
of the state’s obligation, would be enforcing a federal
common law contractual right, as recognized in such
cases as Cotton v. United States, 52 U.S. 229 (1850); Woods
v. United States, 724 F.2d 1444, 1449-50 (9th Cir. 1984),
and United States v. Marion County School District, 625
F.2d 607, 609-11 (5th Cir. 1980). See also the dissenting
opinion in Guardians Ass’n v. Civil Service Commission,
supra, 463 U.S. at 630-31, and the concurring opinion in
Bell v. New Jersey, 461 U.S. 773, 794 (1983)—the majority
opinion treated the question whether the federal gov-
ernment had a common law right to recover funds spent
in violation of the federal grant as open. Id. at 782 n. 7.
But this route to relief is indirect and even redundant
compared to a suit by IPAS. It would involve three
parties—IPAS, the state, and the federal government,
rather than just IPAS and the state. It would also be a
transparent effort to circumvent a rule, if there is a rule,
that forbids recognition of IPAS’s right to sue the
hospital because the right is not explicitly stated in the
statute. For if a right of IPAS to sue for the records can’t
No. 08-3183 41
be inferred from the statute, neither can a right of the
federal government to do so. Indeed the interpretive
stretch would be greater. The statute entitles a protec-
tion and advocacy agency to “pursue administrative,
legal, and other appropriate remedies to ensure the
protection of individuals with mental illness who are
receiving care or treatment in the State.” 42 U.S.C.
§ 10805(a)(1)(B). It says nothing about a suit by the
federal government.
There are two possible construals of the right created by
the statutory language that I just quoted. One is that
IPAS merely has the legal capacity to bring a suit, like
a corporation. The conferral of that right would say
nothing about what suits it could bring. Board of Educa-
tion of City of Peoria v. Illinois Board of Education, 810 F.2d
707, 709-10 (7th Cir. 1987); 6A Charles Alan Wright, Arthur
R. Miller & Mary Kay Kane, Federal Practice & Procedure
§ 1559, p. 441 (2d ed. 1990) (“capacity has been defined
as a party’s personal right to come into court, and should
not be confused with the question of whether a party
has an enforceable right or interest”); see also Fed. R.
Civ. P. 17(b). Maybe it could just bring the kind of suit a
corporation or individual might bring, such as a suit for
unpaid rent. But alternatively the statutory language
could mean that IPAS can bring suits that are essential
to its playing its “protect and advocate” role, including
suits to enforce its statutory right of access to patient
records. And not just suits in a representative capacity,
seeking relief for particular persons injured by the
state’s flouting its statutory duty. IPAS can act in such a
capacity as well, but the right to do so is conferred
42 No. 08-3183
in a separate subsection of the statute. 42 U.S.C.
§ 10805(a)(1)(C).
It’s not as if IPAS could obtain an effective legal
remedy from the state courts of Indiana. It could not.
And the fact that the right that the federal statute
confers on IPAS—the right of access to patient rec-
ords—expressly preempts any state law prohibiting
such access, see 42 U.S.C. § 10806(b)(2)(C); Center for Legal
Advocacy v. Hammons, 323 F.3d 1262, 1272-73 (10th Cir.
2003); Pennsylvania Protection & Advocacy, Inc. v. Houstoun,
228 F.3d 423, 427-28 (3d Cir. 2000), makes it all the
more likely that Congress expected the right to be en-
forceable in a federal court. Cf. Rice v. Office of
Servicemembers’ Group Life Ins., 260 F.3d 1240, 1247 (10th
Cir. 2001).
It is not an insuperable obstacle to this suit that ever
since Cort v. Ash, 422 U.S. 66 (1975), the Supreme Court
has been wary of inventing private remedies for
statutory violations and now requires that the private
right of action be inferable from the statute itself.
Alexander v. Sandoval, 532 U.S. 275, 286 (2001); Virginia
Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1102 (1991);
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-
22 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 571-
78 (1979). The requirement reflects a realistic under-
standing of the role of compromise in the legislative
process. Private remedies, especially private damages
remedies, can greatly magnify the force of a statute. If
a remedy can be imposed only in an action by a public
agency—say a cease and desist proceeding by an ad-
No. 08-3183 43
ministrative agency like the Federal Trade Commis-
sion—the potential targets of such an action have the
protection of prosecutorial discretion, which places a
screen between a private complaint and an enforcement
action, and are not exposed to liability for damages
awarded in private suits in amounts that might (in a
class action for example) cause bankruptcy. For a court
to spring a private remedy on the persons or firms
subject to a statute is thus to change the legislative
deal dramatically.
There is nothing like that here. There is no suggestion
that IPAS can sue a hospital for damages, which
would have the potential to harm hospitals far more
than could an order to grant access to records and
would be likely to increase the cost of hospital services.
“Because the private right of action under Title IX [of the
Civil Rights Act of 1964] is judicially implied, we have
a measure of latitude to shape a sensible remedial
scheme that best comports with the statute.” Gebser v. Lago
Vista Independent School District, 524 U.S. 274, 284 (1998).
The sensible remedy in this case is an injunction com-
manding access.
A private right of action with appropriate remedies can
be inferred from a statute that evinces a congressional
intent to authorize such a right, Transamerica Mortgage
Advisors, Inc. v. Lewis, supra, 444 U.S. at 15-16; Knapp v.
Eagle Property Management Corp., 54 F.3d 1272, 1276-
79 (7th Cir. 1995); Hallwood Realty Partners, L.P. v. Gotham
Partners, L.P., 286 F.3d 613, 618-22 (2d Cir. 2002); CSX
Transportation Inc. v. Marquar, 980 F.2d 359, 379-82 (6th
44 No. 08-3183
Cir. 1992), as the present statute does. The Supreme
Court’s decision in Alexander v. Sandoval, supra, 532 U.S. at
286—a landmark in the march begun in Cort v. Ash away
from judicial creation of private remedies—makes this
clear: “the judicial task is to interpret the statute
Congress has passed to determine whether it displays
an intent to create . . . a private remedy.” Consistent with
this language, even after Cort the Supreme Court has
found private remedies implicit in statutes. See, e.g.,
Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005)
(implied remedy for retaliation under Title IX); Morse v.
Republican Party of Virginia, 517 U.S. 186, 230-35, 240 (1996)
(implied remedy under the Voting Rights Act); Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S.
353 (1982) (implied remedies under the Commodity
Exchange Act).
The cases rejecting judicial creation of private rights
of action ex nihilo would defeat a suit against the state
hospital administration by the guardian of a mentally
ill person, seeking damages for mistreatment in a state
hospital; for there is no hint in the statute of an intention
to create such a right of action. That is not this case.
Nor is this a case in which the state may have been
fooled into accepting federal money on conditions that,
had it realized what they were, would have caused it
to reject the money. The Supreme Court expressed concern
with this possibility in Davis v. Monroe County Board
of Education, 526 U.S. 629, 639-40 (1999), when it said,
quoting Pennhurst State School & Hospital v. Halderman,
451 U.S. 1, 17-18 (1981), that “in interpreting language
No. 08-3183 45
in spending legislation, we thus ‘insis[t] that Congress
speak with a clear voice,’ recognizing that ‘[t]here
can, of course, be no knowing acceptance [of the terms
of the putative contract] if a State is unaware of
the conditions [imposed by the legislation] or is unable
to ascertain what is expected of it.’ ” See also Barnes v.
Gorman, 536 U.S. 181, 185-88 (2002). But Indiana could
not have been surprised to find that IPAS could sue it
for violating a condition in the federal grant that it ac-
cepted. The state knew that by accepting the money it
would be committing to provide IPAS with access to
patient records—knew too that IPAS had been em-
powered to invoke legal remedies for violations of the
rights conferred on it by the federal statute. The state
could not reasonably have believed that its commitment
was empty, unenforceable—that it could take the money
and yet be subject to no sanction for refusing to
comply with the terms of the grant except that of can-
cellation of the program, figuratively a kind of nuclear
option, as it would blow up the mentally ill of Indiana
along with the federal program.
Consistent with this analysis, the Supreme Court in
Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 74-
75 (1992), finding that monetary damages were available
to enforce an implied remedy in a spending-clause
statute, rejected the contention
that the normal presumption in favor of all appro-
priate remedies should not apply because Title IX was
enacted pursuant to Congress’ Spending Clause power.
In Pennhurst State School and Hospital v. Halderman,
46 No. 08-3183
the Court observed that remedies were limited under
such Spending Clause statutes when the alleged
violation was unintentional. Respondents and the
United States maintain that this presumption should
apply equally to intentional violations. We disagree.
The point of not permitting monetary damages for
an unintentional violation is that the receiving entity
of federal funds lacks notice that it will be liable for
a monetary award. This notice problem does not
arise in a case such as this, in which intentional dis-
crimination is alleged. Unquestionably, Title IX
placed on the Gwinnett County Public Schools the
duty not to discriminate on the basis of sex, and
“when a supervisor sexually harasses a subordinate
because of the subordinate’s sex, that supervisor
‘discriminate[s]’ on the basis of sex.” We believe the
same rule should apply when a teacher sexually
harasses and abuses a student. Congress surely did not
intend for federal moneys to be expended to sup-
port the intentional actions it sought by statute to
proscribe. [Some citations omitted.]
The state argues that the federal courts have no
business refereeing a contest between two state agencies,
IPAS and the state hospital administration; and it is true
in general that “federal courts should not get involved
unnecessarily in what may be intramural struggles of
state government even if invited to do so by one of the
contenders.” Mazanec v. North Judson-San Pierre School
Corp., 763 F.2d 845, 848 (7th Cir. 1985); see also Cronson v.
Clark, 810 F.2d 662 (7th Cir. 1987); Duran v. Elrod, 760 F.2d
756, 759 (7th Cir. 1985); Donelon v. Louisiana Division of
No. 08-3183 47
Administrative Law ex rel. Wise, 522 F.3d 564, 568 (5th Cir.
2008). But this is not a typical case. That it is a suit
between state agencies is an accident. If Indiana like
most states had appointed a private entity to be IPAS
and if the defendant were a private hospital, the suit
would be between two private entities.
Independent as it is of the governor and the attorney
general, IPAS is a state entity in name only, especially in
a suit against a state hospital—there it’s an agent of the
federal government, suing to assure a state’s compliance
with the federal duties of care for the mentally ill that the
state agreed to perform. It would be strange if a state
could render the federal statute unenforceable by
creating (or appointing) a public rather than a private
protection and advocacy agent, or if the statute were
unenforceable against state hospitals even though there
is (as I think we all agree) no issue of state sovereign
immunity.
One would like to know why Congress granted states
a choice between a public and a private watchdog
agency, why the minority of states (eight out of 50)
that have chosen the public option have done so, and what
the consequences of the choice are. Besides Indiana, the
public option has been chosen by Alabama, Connecticut,
Indiana, Kentucky, New York, North Dakota, Ohio, and
Virginia (also American Samoa and Puerto Rico). See U.S.
Dep’t of Health & Human Services, Substance Abuse &
Mental Health Services Administration, “Protection and
Advocacy for Individuals with Mental Illness (PAIMI)
Program” (Feb. 2003), http://mentalhealth.samhsa.gov/
48 No. 08-3183
cmhs/p&a/about.asp (visited Mar. 26, 2010). I don’t know
what these eight states have in common and why they
made the choice they did. I do know that New York began
with a private enforcer but switched to a public one in
1980, having decided that the private enforcer wasn’t
doing a good job. Patricia Puritz & Mary Ann Scali,
“Beyond the Walls: Improving Conditions of Confine-
ment for Youth in Custody” 30 (U.S. Dept. of Justice,
Office of Juvenile Justice and Delinquency Prevention
Report Jan. 1998), www.ncjrs.gov/pdffiles/164727.pdf
(visited Mar. 31, 2010). North Carolina switched the
other way in 2007. North Carolina Dept. of Administra-
tion, “Carolina Legal Assistance Designated as North
Carolina’s Protection and Advocacy System,” May 21, 2007,
www.doa.state.nc.us/pio/news/showrelease.asp?id=0001-
21MAY07 (visited Mar. 31, 2010). These examples do not
suggest a pertinent difference between public and
private protection and advocacy agencies. Rather they
suggest that a state that hasn’t had a good experience
with a public agency is likely to try a private one next,
and vice versa.
The secondary literature suggests—ironically in light of
the present case—that public protection and advocacy
agencies have an easier time gaining access to informa-
tion from the state than private ones do. Melissa
Bowman, Note, “Open Debate Over Closed Doors: The
Effect of the New Developmental Disabilities Regulations
on Protection and Advocacy Programs,” 85 Ky. L.J. 955, 990
(1997). The main argument against public agencies—and
again it is ironic in light of this case—is that they can’t
be expected to be “truly independent and withstand
No. 08-3183 49
political pressure either to not initiate an investigative
action or to prematurely resolve an investigation that
should be litigated.” Id. Another argument against the
public agency is that private ones may receive charitable
donations to augment their resources but people rarely
make a charitable donation to a public agency. None of
these differences suggests that IPAS has a more limited
right to sue than a private agency.
E ASTERBROOK, Chief Judge, dissenting. My colleagues’
approach to this case is in the spirit of the maxim: “Where
there is a right, there must be an effective remedy.” Indiana
has failed to implement federal requirements that go
with grants that the state has accepted, and the state
is resisting efforts to enforce the federal statutes di-
rectly. The prospects of a funding cutoff or a suit by
the national government are not effective enough, in my
colleagues’ assessment, so the court creates an addi-
tional remedy.
That approach was common in the era of J.I. Case Co. v.
Borak, 377 U.S. 426 (1964). But it was disavowed in Cort v.
Ash, 422 U.S. 66 (1975). Today remedies depend on the
statutory text and structure, not on judges’ views about
how much enforcement, and by whom, is optimal. More-
50 No. 08-3183
over, the maxim that a right implies a remedy applies
only when there is a “right.” The statutes in question
do not confer rights on the plaintiff.
Indiana would not violate anyone’s rights by turning
down the federal money and disbanding Indiana Pro-
tection and Advocacy Services. The federal statute
imposes conditions on a grant. A state that wants the
money must fulfil the conditions. Such a state-federal
contract creates third-party beneficiaries (such as Advo-
cacy Services and the patients), but the Supreme Court
has held that these third-party beneficiaries are not
entitled to enforce the contract directly. See Brunner v.
Ohio Republican Party, 129 S. Ct. 5 (2008); Gonzaga
University v. Doe, 536 U.S. 273 (2002); Alexander v. Sandoval,
532 U.S. 275 (2001). The contract is enforced by the
federal agency, which can end the funding or sue if the
state does not keep its part of the bargain.
One reason why a state’s decision to accept a grant does
not imply a third-party right to litigate is the Supreme
Court’s clear-statement doctrine:
Congress has broad power to set the terms on which
it disburses federal money to the States, see, e.g., South
Dakota v. Dole, 483 U.S. 203, 206–207 (1987), but
when Congress attaches conditions to a State’s accep-
tance of federal funds, the conditions must be set out
“unambiguously,” see Pennhurst State School and
Hospital v. Halderman, 451 U.S. 1, 17 (1981); [Board of
Education of Hendrick Hudson Central School District v.
Rowley, 458 U.S. 176 (1982)] at 204, n. 26. “[L]egislation
enacted pursuant to the spending power is much in
No. 08-3183 51
the nature of a contract,” and therefore, to be bound
by “federally imposed conditions,” recipients of
federal funds must accept them “voluntarily and
knowingly.” Pennhurst, 451 U.S., at 17. States
cannot knowingly accept conditions of which they
are “unaware” or which they are “unable to ascertain.”
Ibid. Thus, in the present case, we must view the
[federal statute] from the perspective of a state
official who is engaged in the process of deciding
whether the State should accept [the] funds and the
obligations that go with those funds.
Arlington Central School District v. Murphy, 548 U.S. 291,
296 (2006). When Congress extends a lure to state gov-
ernments, the conditions must be express; otherwise
the state is buying a pig in a poke.
Nothing in 42 U.S.C. §§ 10801–51 alerts Indiana that, by
taking the money, it agrees to be sued in federal court
by its own agency, Indiana Protection and Advocacy
Services. Section 105, 42 U.S.C. §10805, bears the caption
“[s]ystem requirements”; it does not mention patients’
rights or authorize the “system” to file suit in federal court.
Section 103, 42 U.S.C. §10803, says that the Secretary
may contract with states that “meet the requirements
of section 105”, which reiterates the point that the
statute sets conditions on a grant rather than estab-
lishing personal rights.
Even if we were to treat “system requirements” the
same as “system rights”, nothing in either §105 or
§106 says that systems have a right to sue states in
federal court. (Reading “shall” in §105 as “has a right to”,
52 No. 08-3183
which my colleagues think appropriate, does not over-
come the statute’s lack of a right to sue states. And
treating “shall” as “has a right to” produces some mighty
odd constructions. I invite the reader to run through
§105 and §106, replacing each “shall” with “has a right to”.
For example, §105(a)(10) says that a system “shall . . . not
use allotments . . . in a manner inconsistent with section
14404 of this title.” Replacing “shall” with “has a right
to” turns this rule on its head. It is far better to use
“shall” to denote obligation rather than entitlement.)
What’s more, nothing in the statute creates a personal
remedy of any kind. To the contrary, 42 U.S.C. §10851(a)
says that the statute “shall not be construed as estab-
lishing any new rights for individuals with mental ill-
ness.” Without a remedy, there cannot be an implied
private right of action. See Gonzaga University, 536 U.S.
at 284.
What a state anticipates when it accepts a federal
grant is that enforcement rests in the hands of the
grantor, which can either turn off the spigot or sue in its
own name—for, as long as the contract lasts, the federal
government is entitled to compliance. See Barnes v.
Gorman, 536 U.S. 181, 187 (2002). But the Department of
Health and Human Services has neither cut off the
money nor sued to enforce the contract. To subject the
state to any other remedy is to transgress the principle
that only clearly articulated conditions may be enforced
against state recipients of federal funds.
One explicit federal right of action sometimes can be
used to implement the conditions of federal grants:
No. 08-3183 53
42 U.S.C. §1983 authorizes suits when the defendant is a
state actor and the conditions are specific enough to be
enforced as rules of law. See Maine v. Thiboutot, 448 U.S. 1
(1980). I am content to assume that the requirements of
42 U.S.C. §§ 10805 and 10806 meet that standard. Four
other courts of appeals have held this. Protection & Advo-
cacy for Persons with Disabilities v. Mental Health & Addic-
tion Services, 448 F.3d 119 (2d Cir. 2006) (Sotomayor, J.);
Pennsylvania Protection & Advocacy, Inc. v. Houstoun, 228
F.3d 423, 428 (3d Cir. 2000) (Alito, J.); Missouri Protection &
Advocacy Services v. Missouri Department of Mental Health,
447 F.3d 1021 (8th Cir. 2006); Center for Legal Advocacy v.
Hammons, 323 F.3d 1262, 1272 (10th Cir. 2003). But Advo-
cacy Services is part of Indiana and so is not a “person”
within the scope of §1983. Will v. Michigan Department of
State Police, 491 U.S. 58 (1989). Forty-two states created
their advocacy agencies as private entities, which could
take advantage of Thiboutot. Indiana did not. Because
plaintiff is not a “person,” it can’t use §1983. See also
Illinois v. Chicago, 137 F.3d 474, 477 (7th Cir. 1998).
Advocacy Services contends, with the support of the
United States as amicus curiae, that, because it relies on
federal funds, it isn’t “really” part of Indiana and there-
fore can use §1983. The argument that an entity is “not
the state” if its funding is federal was made and roundly
rejected in Regents of University of California v. Doe, 519
U.S. 425 (1997). Indiana Protection and Advocacy
Services is part of the state, whose governor appoints a
third of the Board (see 42 U.S.C. §15044(a)(2); Ind. Code
§12-28-1-6(a)). (No one else appoints any member; the
Governor’s appointees initially chose the rest of the
54 No. 08-3183
board, which since has picked its own members other
than the Governor’s selections.) Advocacy Services
has the same powers as other state agencies to make ad-
ministrative rules, Ind. Code §12-28-1-12(7), and its em-
ployees are civil servants, id. at §12-28-1-12(2). Its
offices are in state buildings, and its web site
(http://www.in.gov/ipas/) is part of Indiana’s; the site’s
header is the name and picture of Indiana’s governor. It
is the organization chart rather than sources of funds
that distinguishes the states from other kinds of entities.
(And if this is wrong, and federal funding means that
Advocacy Services is “not the state,” then Advocacy
Services would be a federal instrumentality, and again
not a “person” under §1983.)
Thus §1983 is unavailable. Is there an alternative
source of authority to sue?
One possibility is that a right of action may be
implied directly from the substantive federal statute,
without the need for aid from §1983. But the Supreme
Court’s cases do not support that approach. The closest
is Cannon v. University of Chicago, 441 U.S. 677 (1979). It
is not enough, for three reasons.
First, the defendant in Cannon was a private organiza-
tion, so the clear-statement requirement did not apply.
Second, the Court’s rationale was that, when enacting
Title IX of the Education Amendments of 1972, Congress
relied on decisions creating private rights of action,
using pre-Cort law, under a different statute. 441 U.S. at
694–703. Title IX is a pre-Cort statute; the Justices were
unwilling to frustrate reliance interests that underlay
No. 08-3183 55
it. Justices Stewart and Rehnquist, whose votes were
essential to the majority in Cannon, wrote separately to
make it clear that the legislative reliance on pre-Cort law
was essential to the outcome. 441 U.S. at 717–18. But
no one contends that, when it enacted 42 U.S.C.
§§ 10801–51 more then a decade after Cort, Congress
relied on decisions allowing state agencies to sue their
own states; there are no such decisions.
Third, Cannon observed that the plaintiff was a
member of a special class for whose benefit the statute
was enacted. 441 U.S. at 689–94. Advocacy Services is
not a member of any class supposed to receive a benefit
from the federal legislation; it is an ombudsman designed
to provide assistance to patients. Advocacy Services
wants information that it may be able to use to make
suggestions for improving Indiana’s mental-health-care
system. That is a long distance from the model of per-
sonal rights that was vital to the disposition in Cannon.
The remit of an administrative agency such as Advocacy
Services does not affect anyone’s “personal” rights—and
the Court has stated repeatedly that a private right of
action will be implied only when necessary to vindicate
the plaintiff ’s personal rights. E.g., Thiboutot (deprivation
of the plaintiff’s welfare benefits); Jackson v. Birmingham
Board of Education, 544 U.S. 167 (2005) (plaintiff’s
right to be free of retaliatory discharge). By contrast,
“[s]tatutes that focus on the person regulated rather
than the individuals protected create no implica-
tion of an intent to confer rights on a particular class of
persons.” Sandoval, 532 U.S. at 289 (internal quotation
omitted).
56 No. 08-3183
My colleagues (both the majority opinion and the
concurring opinion) believe that Advocacy Services
should be allowed to sue precisely because it is not trying
to vindicate its own rights. It is an advocate for the men-
tally disabled, and my colleagues think that it should
occupy a privileged position as a protector of others.
That policy argument might be a sound one, yet the
Supreme Court has held that a private right of action
will be implied from a funding statute only when neces-
sary so that the litigant may vindicate his or her personal
rights. Perhaps my colleagues will persuade the Justices
to change their doctrine, but under existing doctrine
a personal right is essential.
Indeed, under existing doctrine a personal right often
is not sufficient even when the federal statute is uncondi-
tional (that is, not tied to a grant). E.g., Thompson v. Thomp-
son, 484 U.S. 174 (1988) (no implied private right of
action to enforce Parental Kidnapping Prevention Act
of 1980); Transamerica Mortgage Advisors, Inc. v. Lewis, 444
U.S. 11 (1979) (no implied private right of action to
enforce the Investment Advisers Act of 1940). Since Cort
the Justices have never created a private right of action
on behalf of anyone other than a private person trying
to vindicate statutory rights enacted for his personal
benefit. Advocacy Services is not in that category.
My colleagues say that the federal statute has given
“rights” directly to Advocacy Services. Yet any rights in
§105 or §106 are for the benefit of patients, not “systems.”
Advocacy Services is not trying to improve its own
mental health! What’s more, these statutes do not create
No. 08-3183 57
rights; they create duties. As I have already mentioned,
the statute calls the subsections in §105 “requirements.”
They are obligations laid on a grant’s recipient—that is,
on Indiana, not on Advocacy Services. Indiana may
have a duty to confer rights on Advocacy Services, but
§105 does not confer any rights directly. Nothing in the
statute gives any entitlement to any “system” established
under the Act; instead the statute tells the state
what conditions it must meet to be eligible for federal
funds (and to drive the point home §10851(a) says that
the statute does not add to patients’ rights).
The only thing looking remotely like a “right” held by an
agency to which funds are routed—and the provision on
which the majority principally relies (pages 21–22)—is the
exhaustion requirement in §107(a), 42 U.S.C. §10807(a).
This subsection provides that, before filing suit, the
“system” must exhaust any other remedies. My colleagues
say that this “provision would have little purpose if
protection and advocacy systems . . . were not
empowered to sue” (page 22). Not at all. Section 107(a)
speaks of filing suit “on behalf of a [sic] individual
with mental illness”. A “system” may sue on behalf of
mentally ill persons, whose own entitlements supply
the right of action, see 42 U.S.C. §§ 10804(c), 10805(a)(1)(C),
but the current proceeding is by Advocacy Services on
its own behalf and so is outside of §107(a). And there is
a more general problem: the majority’s approach turns
a precondition to suit (that’s what an exhaustion require-
ment is) on someone else’s behalf into an authorization
to sue on one’s own behalf.
58 No. 08-3183
The transmutation is unwise. The proposition that
§107(a) has “little purpose” if it doesn’t authorize a
system to sue on its own behalf is hyperbole. Section 107(a)
serves many functions. First, §107(a) applies to suits
that systems file on behalf of persons with disabilities.
Second, if §107(a) applies at all to suits by systems in
their own names, it covers litigation in state court.
Third, it applies to suits filed under §1983 by private
“systems” (which, recall, exist in 42 states). Fourth, it
applies to suits that public systems file against private
defendants, which are not protected by the Supreme
Court’s clear-statement principle. We should treat
§107(a) as what it purports to be: a restriction on litiga-
tion rather than a backhanded grant of authority to sue.
Section 107(a) assuredly is not the “clear statement”
required by Arlington Central and similar decisions.
A few words are in order about Ex parte Young, 209 U.S.
123 (1908). Now that we are sitting en banc, and thus more
willing than a panel to create a conflict, I accept my col-
leagues’ view that Young (read in connection with Verizon
Maryland Inc. v. Public Service Commission of Maryland,
535 U.S. 635 (2002)) overcomes any sovereign-immunity
defense. I therefore join my colleagues in disagreeing
with Virginia v. Reinhard, 568 F.3d 110 (4th Cir. 2009). But
to say that a claim against a state officer sidesteps sover-
eign immunity is not enough; plaintiffs still need a right
of action. Most suits to which Young applies rest
on §1983; in Verizon, 47 U.S.C. §252(e)(6) supplied an
express right of action; Advocacy Services lacks any
equivalent.
No. 08-3183 59
Brunner illustrates my point. The Help America Vote Act
of 2002 requires state officials to take specific steps to
ensure that all persons entitled to vote are properly
registered, while other names are purged from the rolls.
The statute applies, however, only to states that accept
federal grants that defray the cost of meeting the federal
objectives. See 42 U.S.C. §15301. Ohio took the federal
money but, according to plaintiffs in a §1983 suit filed
under Ex parte Young against Ohio’s Secretary of State,
failed to perform its obligations. As a result, plaintiffs
contended, invalid votes would be counted.
The district court entered an order directing the
Secretary of State to comply with §303 of the Act, 42
U.S.C. §15483(a)(5)(B)(i) (2000 ed. Supp. V), which
requires the state’s election officials to “match informa-
tion in the database of the statewide voter registration
system with information in the database of the [state’s]
motor vehicle authority to the extent required to
enable each such official to verify the accuracy of the
information provided on applications for voter registra-
tion.” The court of appeals affirmed, holding that §303
establishes rights that can be enforced under §1983 and
that judicial relief was essential to ensure a reliable elec-
tion. 544 F.3d 711 (6th Cir. 2008) (en banc).
Everything that my colleagues say about 42 U.S.C.
§§ 10805 and 10806 was true about 42 U.S.C.
§15483(a)(5)(B)(i). Each statute establishes specific re-
sponsibilities for states that take the federal money.
Each state balked at carrying out its obligations. Each
plaintiff used Ex parte Young to sidestep sovereign im-
60 No. 08-3183
munity. Each suit sought prospective relief rather than
damages. Each plaintiff wanted a systemic improve-
ment rather than the vindication of person-specific
entitlements. Other ways of enforcing each statute ap-
peared to be ineffectual; neither federal agency revoked
the grant or filed suit to enforce the conditions. And
Brunner was easier for the plaintiff, which was not part
of the state and so could invoke §1983 as the right of
action. Yet the Supreme Court reversed—unanimously
and summarily.
Observing that §303 is a condition on a federal grant and
not a free-standing entitlement, the Supreme Court cited
Gonzaga University and Sandoval for the proposition that
the plaintiff could not obtain interlocutory relief even if
the state was clearly violating §303. In other words, the
suit was doomed, so the plaintiff lost even on the assump-
tion that irreparable injury was certain to occur. The
opinion in Brunner was one paragraph long. The
Supreme Court’s point was simple. My point is equally
simple—and, to repeat, this case is weaker for the plaintiff
than was Brunner, because Advocacy Services is a state
agency that can’t use §1983.
Not so, my colleagues say, because this statute lacks
something present for the Help America Vote Act (and
the statutes at issue in Gonzaga University and Sandoval):
an administrative enforcement process. Without one,
there won’t be enough enforcement (pages 29–30), “unfair”
or “counterproductive” results will ensue (pages 16–17,
31), and the federal courts must step in. As I said at the
outset, that is the method of Borak, a method that the
No. 08-3183 61
Justices repudiated in 1975. Congress, not the judiciary,
decides whether enforcement via litigation is essential.
But the majority’s premise also is not correct. There is
an administrative enforcement process. The Secretary of
Health and Human Services has established one by reg-
ulation. 42 C.F.R. §51.10, incorporating the procedures
of 45 C.F.R. Part 74 and 42 C.F.R. Part 50. The administra-
tive mechanism may or may not be optimal—my col-
leagues think that it isn’t, because it operates only against
the “system” (page 30 n.12)—but that decision is
for Congress, the President, and the Secretary to make; a
court ought not declare that more is required and then
establish an enforcement mechanism of its own design.
Both the majority opinion and the concurring opinion
express a belief that statutes such as this one should not
be enforced by terminating grants. “[C]utting off one’s
nose to spite one’s face”, the concurrence puts it at
page 39. This reflects a fundamental disagreement with
the Supreme Court, which has held that the principal
and often exclusive method of enforcing conditions on
federal grants is by funding curtailments. Perhaps my
colleagues have a wise view as a matter of policy, but the
Supreme Court’s perspective is the one we must use
in a hierarchical judicial system. I don’t think that the
Justices’ perspective can be avoided by saying that
Gonzaga University was an offender, while Advocacy
Services is a vindicator of rights. That won’t distinguish
Brunner. And the vindicator/violator line misses the
point that the threat of funding cutoffs is what induces
violators such as Gonzaga University to conform. Deter-
rence is not limited to the criminal law. There would be
62 No. 08-3183
even more reason for these institutions to comply if
federal courts could award damages or issue injunctions,
but Brunner, Gonzaga University, and Sandoval curtail
that option.
The concurring opinion expresses confidence that an
injunction is superior to the threat of administrative
funding cutoff because then “[t]he state and the federal
government would be playing a game of chicken—with
Indiana’s mentally ill citizens the victims of any collision
that might result” (page 39). Put to one side the fact
that the Secretary of Health and Human Services is not
limited to yanking the grant; she can sue to enforce the
grant’s conditions. Suppose that the Secretary’s only
lever were cash. Why should we think that it is only the
Secretary who plays chicken with the state? Indiana tells
us that it cares deeply about whether it is subject to suit
in federal court by Advocacy Services. Our affirmative
answer may lead Indiana to reject the grant and send
Advocacy Services’ staff to the unemployment line. It
is not possible to say that the Secretary’s levers com-
mence a game of chicken while the judiciary’s levers
don’t. At least the Secretary can negotiate with Indiana
to find a satisfactory solution. All the judicial branch can
do is issue judgments. Once we have issued ours, every-
thing is in Indiana’s hands, and if we drive the state to
end this program there is nothing we can do to bring it
back again.
If the Secretary passes out federal money without
enforcing the conditions, that’s unfortunate, but it is
hard to see how it can be called “unfair” to anyone other
than the federal taxpayers. The Secretary has ample
No. 08-3183 63
means to ensure that the federal dollars are not wasted.
And the majority’s view that litigation must be
authorized, because cutting off funds would be “counter-
productive,” is impossible to reconcile with Brunner,
Gonzaga University, or Sandoval; it would mean that condi-
tions attached to federal grants always may be enforced
by private litigation—at least if the judges approve the
goal of the grant program. The Supreme Court has held
otherwise.
Both Indiana Protection and Advocacy Services and
Indiana Family and Social Services Administration
believe that they have patients’ interests at heart, though
they disagree about how to serve those interests. Fights
between two state agencies should be resolved within the
state (including the state’s judiciary, if state law so pro-
vides), or through the auspices of the Department of
Health and Human Services, which administers the
federal grant program. This statute establishes a program
of cooperative federalism. Cooperation usually requires
negotiation and compromise among multiple public
bodies. That is the way of the administrative rather
than the judicial process. We should dismiss this suit
and let the administrative process take its course.
4-22-10