United States v. Secretary Florida Agency for Health Care Administration

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In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 17-13595

____________________

UNITED STATES OF AMERICA,

Interested Party-Appellant,

versus

SECRETARY FLORIDA AGENCY FOR HEALTH CARE

ADMINISTRATION,

in her official capacity,

STATE SURGEON GENERAL,

in his official capacity as the State Surgeon General and Secretary

of the Florida Department of Health,

KRISTINA WIGGINS,

in her official capacity as Deputy Secretary of the Florida Depart-

ment of Health and Director of Children's Medical Services,

STATE SURGEON GENERAL JOHN ARMSTRONG, MD,

DEPUTY SECRETARY DR. CELESTE PHILIP, et al.,

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2 17-13595

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:12-cv-60460-WJZ

____________________

Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN, JILL PRYOR,

NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit

Judges. ∗

BY THE COURT:

A petition for rehearing having been filed and a member of

this Court in active service having requested a poll on whether this

case should be reheard by the Court sitting en banc, and a majority

of the judges in active service on this Court having voted against

granting rehearing en banc, it is ORDERED that this case will not

be reheard en banc.

∗Judge Robin Rosenbaum recused herself and did not participate in the en

banc poll.

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 3

JILL PRYOR, Circuit Judge, respecting the denial of rehearing en

banc:

I was a member of the panel majority. We held that the At-

torney General of the United States may bring a lawsuit against the

State of Florida to enforce Title II of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. §§ 12131–65. Judge Newsom dissents from

the denial of rehearing en banc because, in his view, nothing in the

ADA authorized the Attorney General to sue Florida in this case.

Judge Branch dissented from the panel majority opinion on one of

the two grounds Judge Newsom raises today. I write to respond to

my dissenting colleagues’ arguments that the panel erred in inter-

preting the statutory scheme.

***

The United States maintains that Florida administers its

Medicaid program in a way that forces children with severe medi-

cal conditions into nursing homes to receive medical services nec-

essary for their survival. As a result, these medically-fragile children

often are placed in institutions hours away from their families,

where they allegedly “spend most of their days languishing in bed

or in their wheelchairs, with no one interacting with them and

nothing to do.” 12-cv-60460 Doc. 509 at 3. 1

1When the Attorney General initially filed this action, it was assigned case

number 0:13-cv-61576. The case later was consolidated with a separate civil

action filed by several medically-fragile children, A.R. v. Dudek, and assigned

case number 0:12-cv-60460. I use “13-cv-61576 Doc.” to refer to the district

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4 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

The United States Attorney General filed this lawsuit against

the State of Florida under Title II of the ADA to vindicate the med-

ically-fragile children’s rights. The Attorney General claimed that

Florida discriminated based on the children’s disabilities because,

although it would be possible for the children to receive the ser-

vices they need while living with their families or guardians, Flor-

ida administered and funded its Medicaid program in such a way

that the children can receive the services only in institutionalized

settings. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587

(1999) (holding that a state engages in disability discrimination if it

institutionalizes individuals with disabilities when community-

based placement could be reasonably accommodated, accounting

for the resources available to the state and the needs of others with

disabilities.).

The question in this appeal is whether Title II of the ADA

authorized the Attorney General to bring this lawsuit against the

State of Florida. Title II generally prohibits state governments and

agencies from discriminating based on disability. See 42 U.S.C.

§§ 12131(1), 12132. Its enforcement provision states that “the rem-

edies, procedures, and rights . . . provide[d] to any person alleging

discrimination on the basis of disability” under § 12132 shall be the

“remedies, procedures, and rights set forth in section 794a of Title

29.” Id. § 12133.

court’s docket entries in the original case and “12-cv-60460 Doc.” to refer to

the district court’s docket entries in the consolidated case.

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 5

Given the enforcement provision’s incorporation by refer-

ence, we can answer the central question of statutory interpreta-

tion here—whether the remedies, procedures, and rights available

to a person alleging discrimination include suit by the Attorney

General to vindicate the disabled person’s rights—only after iden-

tifying the remedies, procedures, and rights available under not

one, but, as it turns out, two earlier civil rights statutes. In its opin-

ion, the panel majority painstakingly followed this chain of statu-

tory references. After careful review of Title II’s text, the enforce-

ment schemes incorporated by reference, and the entire statutory

scheme in context, the panel majority concluded that suit by the

Attorney General was indeed a remedy, procedure, or right availa-

ble to a person alleging discrimination under Title II.

Title II’s enforcement provision incorporates by reference

the remedies, procedures, and rights available to a person alleging

discrimination under section 794a of Title 29, which is the Rehabil-

itation Act—an earlier civil rights statute that prohibits disability

discrimination in connection with “any program or activity receiv-

ing Federal financial assistance.” 29 U.S.C. § 794(a). But when we

look for the remedies, procedures, and rights available to a person

alleging discrimination under the Rehabilitation Act, we find a ref-

erence to another statute, this one incorporating the remedies, pro-

cedures, and rights available under Title VI of the Civil Rights Act

of 1964. See id. § 794a(a)(2). Title VI of the Civil Rights Act, an even

earlier civil rights statute, similarly prohibits discrimination by or

in “any program or activity receiving Federal financial assistance.”

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6 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

42 U.S.C. § 2000d. Under Title VI, though, the targeted discrimina-

tion is that based on race, color, or national origin. Id.

As the panel majority explained, the remedies, procedures,

and rights available to a person alleging discrimination under Title

VI of the Civil Rights Act include pursuing federal administrative

procedures that may culminate in a lawsuit by the Attorney Gen-

eral to vindicate the protected rights. The panel majority deter-

mined that the remedies, procedures, and rights available to a per-

son alleging discrimination under Title II likewise include a robust

administrative scheme that may culminate in suit by the Attorney

General on the person’s behalf. The panel majority thus held that

the Attorney General could sue Florida, on behalf of the medically-

fragile children, under Title II for disability discrimination. See

United States v. Florida, 938 F.3d 1221, 1250 (11th Cir. 2019).

In his dissental,2 Judge Newsom advances an interpretation

of Title II that would disallow suits by the Attorney General against

states or state agencies to enforce rights of people with disabilities,

despite the fact that such suits have long been used to enforce the

Rehabilitation Act, Title VI, and Title II itself. Judge Newsom ar-

gues that the panel majority’s holding was wrong because (1) the

Attorney General cannot sue because he is not a “person” for pur-

poses of the ADA and thus is afforded no remedies, procedures, or

2 I use

the term “dissental” to refer to Judge Newsom’s dissent from the denial

of rehearing en banc to distinguish it from Judge Branch’s dissent from the

panel majority’s opinion.

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 7

rights under Title II’s enforcement provision, and (2) the remedies,

procedures, and rights available to the medically-fragile children

under Title II do not include the Attorney General’s suing Florida

on their behalf because the Attorney General may sue a state or

state agency to enforce Title II only when the state or state agency

receives federal funding and agrees as a condition of the funding to

refrain from engaging in disability discrimination. By permitting

the Attorney General to sue states when Congress has not author-

ized such suits, he says, the panel opinion offends principles of fed-

eralism. As I explain below, none of these arguments is persuasive.

The dissental’s first argument—that the Attorney General

does not qualify as a “person” for purposes of the ADA—either

takes aim at a strawman or rests on a misunderstanding of the panel

opinion and the Attorney General’s role in this lawsuit. The panel

never suggested, much less held, that the Attorney General was the

“person” referred to in § 12133. Rather, the panel concluded that

the person referred to in § 12133 is the individual who claims to

have suffered discrimination. Under Title II and its supporting reg-

ulations, this individual is afforded a panoply of remedies, proce-

dures, and rights, including the right to file an administrative com-

plaint against any public entity that engages in discrimination—a

process that may culminate in suit by the Attorney General against

the public entity on the individual’s behalf. Because the Attorney

General brings this lawsuit on behalf of a person alleging discrimi-

nation, the dissental’s (and the dissent’s) arguments about why the

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8 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

Attorney General does not qualify as a “person” under § 12133 miss

the mark entirely.

The dissental’s second argument—that the remedies, proce-

dures, and rights available to a disabled person do not include en-

forcement via suit on her behalf by the Attorney General against a

public entity that receives no federal funding—warrants closer at-

tention. But this argument, too, is unavailing. The statutory text,

when read in context, permits the Attorney General to sue to en-

force Title II’s prohibition on disability discrimination by public en-

tities, regardless of whether the public entity receives federal fund-

ing and agrees as a condition of that funding not to engage in disa-

bility discrimination. Indeed, unlike its predecessor statutes, which

contained an express federal-funding limitation, Title II contains no

reference to federal funding, and, as Judge Newsom concedes, its

implied private right of action is not limited to federally-funded de-

fendants.

The dissental argues lastly that the panel opinion offends

principles of federalism. This argument rests entirely on the dis-

sental’s assumption that Congress did not authorize the Attorney

General to sue states or state agencies for discrimination when the

discrimination occurred in connection with a program or activity

that did not receive federal funding. Because Congress did in fact

authorize the Attorney General to sue any public entity for discrim-

ination in violation of Title II, there is no federalism problem here.

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 9

Before addressing the dissental’s arguments, I begin by

providing an overview of the ADA and Title II. I then respond to

the dissental’s arguments in turn.

I. Overview of Title II of the ADA

Congress enacted the ADA “after decades of deliberation

and investigation into the need for comprehensive legislation to

address discrimination against persons with disabilities.” Tennes-

see v. Lane, 541 U.S. 509, 516 (2004). Congress etched into the

ADA’s text the findings from its thorough investigation. See

42 U.S.C. § 12101(a).

The statutory text observes that “historically, society tended

to isolate and segregate individuals with disabilities.” Id.

§ 12101(a)(2). Despite the passage of legislation like the Rehabilita-

tion Act, which effected “some improvements” in the treatment of

individuals with disabilities, Congress found that disability discrim-

ination “continue[d] to be a serious and pervasive social problem.”

Id. Discrimination against individuals with disabilities “persist[ed]”

in “critical areas” including “housing . . . education, transportation,

communication, recreation, institutionalization, health services,

voting, and access to public services.” Id. § 12101(a)(3). Individuals

with disabilities were subjected not only to “outright intentional

exclusion” but also to “segregation” and “relegation to lesser ser-

vices, programs, activities, [and] benefits.” Id. § 12101(a)(5). Indi-

viduals with disabilities “often had no legal recourse to redress such

discrimination.” Id. § 12101(a)(4).

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10 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

After setting out these findings about the scope of the disa-

bility-discrimination problem, Congress expressed its intent in en-

acting the ADA: to combat the problem by establishing “a clear and

comprehensive national mandate for the elimination of discrimina-

tion against individuals with disabilities.” Id. § 12101(b)(1). The

ADA would prevent such discrimination by creating “clear, strong,

consistent, [and] enforceable standards” to “address the major ar-

eas of discrimination faced day-to-day by people with disabilities.”

Id. § 12101(b)(2), (4). Lest any doubt remain, the text spelled out

the ADA’s central purpose: “to ensure that the Federal Govern-

ment plays a central role in enforcing the standards established”

under the ADA “on behalf of individuals with disabilities.” Id.

§ 12101(b)(3) (emphasis added).

Consistent with its broad remedial purpose, the ADA’s three

titles bar different types of entities from engaging in disability dis-

crimination: Title I applies to employers, Title II applies to public

entities, and Title III applies to places of public accommodation. As

I explain below in section III-A below, although Congress author-

ized the Attorney General to bring a suit to enforce each title, it

structured each title’s enforcement provision—the provision that

authorizes the Attorney General to sue—in a different way. See id.

§§ 12117(a), 12133, 12188(b).

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I turn now to Title II, 3 as this case concerns alleged discrim-

ination by a public entity. Under Title II, “no qualified individual

with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by

any such entity.” Id. § 12132. A “public entity” includes “any State

or local government” as well as “any department [or] agency . . . of

a State . . . or local government.” Id. § 12131(1)(A), (B).

Importantly, its passage of Title II was not the first time Con-

gress acted to prohibit public entities from engaging in disability

discrimination. The Rehabilitation Act already barred disability dis-

crimination by programs or activities operated by state or local

governments. See 29 U.S.C. § 794(a). But, by its express terms, the

Rehabilitation Act applies only to programs or activities that “re-

ceiv[e] [f]ederal financial assistance.” Id. By contrast, Title II of the

ADA extended the scope of protection afforded to individuals with

disabilities by prohibiting any program run by a public entity from

engaging in disability discrimination—it contains no reference to

federal financial assistance or funding. See 42 U.S.C. §§ 12131(a);

12132; see Shotz v. City of Plantation, 344 F.3d 1161, 1174 (11th

3 Title II is divided into two subchapters: subchapter A sets forth the general

provisions that prohibit discrimination by public entities, and subchapter B

pertains to discrimination in public transportation specifically. See ADA, Pub.

L. No. 101-336 § 1, 104 Stat. 327, 327–28 (1990). Because subchapter B is not at

issue in this case, I use “Title II” to refer to subchapter A.

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Cir. 2003) (“The ADA makes any public entity liable for prohibited

acts of discrimination, regardless of funding source.”).

Section 12133 lays out how Title II’s broad prohibition bar-

ring any public entity from engaging in disability discrimination is

enforced. As I explained above, § 12133 provides that the “reme-

dies, procedures, and rights” available to a person alleging disability

discrimination under Title II are the “remedies, procedures, and

rights” of the Rehabilitation Act, which in turn incorporates the

“remedies, procedures, and rights” set out in Title VI of the Civil

Rights Act of 1964. 42 U.S.C. § 12133; see 29 U.S.C. § 794a(a)(2).

Under the Rehabilitation Act and Title VI, when a state or local

public entity receiving federal funding engages in disability discrim-

ination or race discrimination, respectively, the federal govern-

ment may enforce compliance with the statute by terminating fed-

eral funding to the program or activity or taking “any other means

authorized by law.” 42 U.S.C. § 2000d-1; see 29 U.S.C. § 794a(a)(2).

There is no dispute that, under these statutes, the “other means

authorized by law” include the Attorney General’s filing of an en-

forcement lawsuit against the public entity.

In another noteworthy provision of Title II, Congress ad-

dressed the creation of a regulatory scheme to enforce the statute’s

mandate. Section 12134 directs the Attorney General to promul-

gate regulations to implement § 12132’s prohibition on discrimina-

tion by public entities. Id. § 12134(a). Congress instructed the At-

torney General to adopt regulations “consistent . . . with the coor-

dination regulations” under the Rehabilitation Act. Id. § 12134(b).

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With this provision, Congress directed the Attorney General

to create an administrative scheme through which individuals

could file with federal agencies complaints alleging that a state or

local public entity had engaged in discrimination, and the adminis-

trative proceedings could culminate in a lawsuit brought by the At-

torney General against the public entity. We know this by once

again following a series of references to enforcement schemes for

earlier civil rights statutes. Section 12134 expressly refers to the Re-

habilitation Act’s coordination regulations, which already existed

when Congress enacted the ADA. These regulations direct each

federal agency to establish “a system for the enforcement of [the

Rehabilitation Act’s prohibition on disability discrimination] . . .

with respect to the programs and activities to which it provides as-

sistance.” 28 C.F.R. § 41.5(a). According to the coordination regu-

lations, each agency’s enforcement system must incorporate the

administrative scheme used to enforce Title VI of the Civil Rights

Act, including “[t]he enforcement and hearing procedures.” Id.

§ 41.5(a)(1). Under Title VI’s administrative scheme, an individual

alleging discrimination by a recipient of federal financial assistance

files a complaint with a federal agency, which then investigates the

complaint. See id. § 42.107(b)–(c). If the investigation reveals that

discrimination occurred, the federal agency attempts to negotiate

a resolution with the recipient of the federal financial assistance. Id.

§ 42.107(d)(1). If the agency is unable to negotiate a resolution, the

Attorney General then may sue to enforce the prohibition on dis-

crimination. See id. § 42.108(a).

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Since Congress enacted the ADA more than 30 years ago,

the federal government has routinely enforced Title II’s prohibi-

tion on disability discrimination by state and local public entities.

Federal agencies have frequently investigated and attempted to re-

solve through informal means complaints that state and local gov-

ernments violated Title II. And the Attorney General has filed doz-

ens of lawsuits against public entities in federal court to vindicate

the rights of individuals with disabilities. 4

II. The Dissental’s Argument that the Attorney General Is

Not a “Person” Is Irrelevant to the Question Whether

the Attorney General Was Authorized to Sue Florida.

With this background about the relevant statutory scheme

in mind, we turn to Judge Newsom’s first argument. Echoing Judge

Branch’s panel dissent, Judge Newsom argues that the panel erred

in holding that the Attorney General could sue under § 12133 be-

cause the Attorney General does not qualify as a “person alleging

discrimination” under the ADA. 42 U.S.C. § 12133.

4 See, e.g., U.S. Dep’t of Justice, ADA Enforcement, Cases 2006-Present, Title

II, https://www.ada.gov/enforce_current.htm#TitleII (last visited Dec. 16,

2021); U.S. Dep’t of Justice, ADA Enforcement, Cases 1992-2005, Title II,

https://www.ada.gov/enforce_archive.htm#TitleII (last visited Dec. 16,

2021); U.S. Dep’t of Justice, Olmstead Enforcement,

https://www.ada.gov/olmstead/olmstead_enforcement.htm (last visited

Dec. 16, 2021). Together these websites list the instances when the Attorney

General has secured settlements from public entities or, when unable to nego-

tiate resolutions, brought enforcement actions against them.

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Judge Newsom’s position rests on the assumption that in

this case the Attorney General sued as a “person alleging discrimi-

nation” who is afforded remedies, procedures, and rights under Ti-

tle II of the ADA. But this assumption is mistaken. When the At-

torney General sues under Title II, the “person alleging discrimina-

tion” is the individual with a disability. One of the remedies, pro-

cedures, and rights afforded to this individual is that the Attorney

General may sue to vindicate the individual’s rights and to enforce

federal law.

The record in this case confirms that the persons alleging

discrimination were the medically-fragile children who allegedly

were unnecessarily forced into institutions to receive necessary

medical services. According to the complaint, the Attorney Gen-

eral brought the lawsuit “to enforce the rights of children” whom

Florida had “discriminate[d] against” by subjecting them to “pro-

longed and unnecessary institutionalization.” 13-cv-61576 Doc. 1 at

2. The remedies the Attorney General sought were to benefit the

children. To that end, the Attorney General requested injunctive

relief to end Florida’s alleged practice of unnecessarily institution-

alizing the children and monetary damages to compensate the chil-

dren for injuries they allegedly suffered because of Florida’s dis-

criminatory conduct.

Throughout this litigation, the Attorney General has con-

sistently maintained the position that the persons alleging discrim-

ination are the children, not himself. As far I can tell, he has never

taken the position in this case that he is the person alleging

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16 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

discrimination under § 12133. In fact, he has expressly disavowed

making such a claim. See Appellant’s Br. at 25 (explaining that

when the Attorney General files suit he is not the person alleging

discrimination); Response to Petition for Reh’g En Banc at 2 (stat-

ing that the Attorney General “explicitly disclaimed the position

that the Attorney General is a person alleging discrimination under

Title II’s enforcement provision” (emphasis in original) (internal

quotation marks omitted)). 5 The record is unambiguous: the Attor-

ney General sued under § 12133 on behalf of the medically-fragile

5The dissental asserts the Attorney General has in fact taken the position that

he is the person referred to in the statute. As support, the dissental cites to the

Attorney General’s reply brief stating that when the Attorney General “files a

Title II lawsuit, he proceeds on behalf of the United States—not as the attorney

for any individual complainant.” Reply Br. at 5. The dissental takes this state-

ment out of context.

In its appellee’s brief, the State of Florida argued that the Attorney General’s

filing of a lawsuit under the ADA is not a remedy, procedure, or right available

to a person alleging discrimination. Florida contended that an individual with

a disability had no “private right” to require the Attorney General to bring an

enforcement action on his behalf because a federal agency “cannot be com-

pelled to act on a complaint” filed by an individual. Appellee’s Br. at 23–24. In

reply, the Attorney General agreed that a victim of discrimination had “no

‘right’ to compel the Attorney General to file a lawsuit” on the victim’s behalf

because the Attorney General did not proceed “as the attorney for [the] indi-

vidual complainant.” Reply Br. at 4–5. Instead, the remedies, procedures, and

rights available to a person alleging discrimination “include[d] a longstanding

federal administrative enforcement scheme” that, at the discretion of the At-

torney General, may culminate in the filing of a lawsuit by the United States

government against a public entity to vindicate the individual complainant’s

rights. Id. at 5.

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 17

children who were the victims of disability discrimination—the

persons alleging discrimination who may enforce Title II through

the relevant remedies, procedures, and rights. So, the question of

whether the Attorney General may qualify as a “person” under Ti-

tle II is simply not raised by this case.

Setting this fact aside, the dissental argues at length that the

Supreme Court’s decision in Return Mail, Inc. v. U.S. Postal Ser-

vice, 139 S. Ct. 1853 (2019), forecloses the idea that the Attorney

General can himself qualify as a “person” alleging discrimination.

Return Mail addressed whether the United States Postal Service

(“USPS”) may sue on its own behalf, to protect its own rights. No-

where did the case address when a government official, such as the

Attorney General, may sue on behalf of another person to enforce

a federal statute protecting that person’s rights.

In Return Mail, the Supreme Court confronted the question

whether USPS could challenge an issued patent before the U.S. Pa-

tent and Trademark Office. Id. at 1858–59. After Return Mail sued

USPS for infringing Return Mail’s patented mail-sorting system,

USPS filed a petition with the United States Patent and Trademark

Office for review and cancellation of Return Mail’s patent. Id. at

1861. In filing the application, USPS sought relief only for itself and

not for any other person or party.

The Supreme Court considered whether the relevant federal

statute, which permits a “person” to petition for review and can-

cellation of a patent, authorized USPS to bring a petition for review

and cancellation. See id. (quoting 35 U.S.C. § 311(a)). As an agency

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18 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

of the federal government, the Supreme Court held, USPS was not

a “person” under the statute and could not bring a petition for re-

view. Id. at 1867. The Court based its opinion on a long line of cases

establishing a presumption that the sovereign is not a person. See

id. at 1862–63.

Our panel majority opinion correctly concluded that Return

Mail was distinguishable. The opinion reasoned that Title II’s

“complex” enforcement provision “differ[ed] significantly” from

the simpler statutory scheme that the Court was addressing in Re-

turn Mail. See Florida, 938 F.3d at 1227 n.5. Unlike the statute in

Return Mail, which permitted only “a person” to petition for re-

view and cancellation of a patent, Title II’s enforcement provision

“provides” to “person[s] alleging discrimination” the “remedies,

procedures, and rights” of the Rehabilitation Act and Title VI.

42 U.S.C. § 12133. Under these incorporated predecessor statutes,

at least, it is clear that the Attorney General can sue on behalf of

the aggrieved person, rather than as the person. See Florida, 938

F.3d at 1226–38.

In this case, the persons alleging discrimination under Title

II and who are afforded “remedies, procedures, and rights” are the

children who have been subjected to prolonged and unnecessary

institutionalization. Because the Attorney General did not bring

this lawsuit on his own behalf as the “person” described in § 12133,

the panel majority opinion did not treat the Attorney General or

federal government as a “person,” and this case does not implicate

the presumption addressed in Return Mail.

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III. The Dissental’s Argument that the Attorney General

May Sue to Enforce Title II Only When a Public Entity

Receives Federal Funding Cannot Be Reconciled with

the Statutory Text and Conflicts with Supreme Court

Precedent.

The panel majority correctly concluded that under Title II

the Attorney General is authorized to sue any public entity, regard-

less of whether it receives federal funding. There is no dispute in

this case that Title II’s enforcement provision incorporates by ref-

erence the remedies, procedures, and rights available to a person

alleging discrimination under the Rehabilitation Act and Title VI of

the Civil Rights Act. There is also no dispute that the remedies,

procedures, and rights available under those earlier statutes include

that the victim of discrimination may file an administrative com-

plaint that may culminate in the filing of an enforcement action by

the Attorney General on the victim’s behalf. See, e.g., United States

v. Bd. of Trs. for Univ. of Ala., 908 F.2d 740, 742 (11th Cir. 1990)

(suit brought by United States against state university to enforce

Rehabilitation Act on behalf of individuals alleging discrimination

by the university); United States v. Marion Cnty. Sch. Dist., 625

F.2d 607, 608–09 (5th Cir. 1980) (suit brought by United States

against school district to enforce Title VI on behalf of individuals

alleging discrimination by the school district). Because the Attor-

ney General had the authority to enforce the Rehabilitation Act

and Title VI of the Civil Rights Act by bringing civil enforcement

actions, the panel majority correctly concluded that Title II’s

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20 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

enforcement provision similarly authorized the Attorney General

to bring civil suits to vindicate the rights that Title II protects—

freedom from disability discrimination by state or local public en-

tities. See Florida, 938 F.3d at 1250.

Judge Newsom argues that the Attorney General’s authority

to sue a public entity to enforce the Rehabilitation Act or Title VI

of the Civil Rights Act arises from the fact that the public entity

agreed as a condition of receiving federal funding not to engage in

discrimination. So, he says, the Attorney General’s authority to sue

to enforce Title II must be similarly limited. In Judge Newsom’s

view, the Attorney General can sue a public entity only when it

receives federal funding and expressly agrees as a condition of the

funding not to engage in disability discrimination.

This argument has some appeal. Ultimately, though, it too

is flawed. The dissental adopts an interpretation that reads Title II’s

enforcement provision in isolation instead of reading the statutory

text in context. Moreover, the dissental’s interpretation would lead

unavoidably to a result the Supreme Court has rejected: that an

individual would have an implied private right of action under Title

II to sue a public entity that receives no federal funding, yet the

federal government would have no corresponding enforcement

authority.

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 21

A. The Dissental’s Interpretation Cannot Be Reconciled with

the Statutory Text When Read in Context.

Judge Newsom says his conclusion that the Attorney Gen-

eral may sue to enforce Title II only when a public entity agrees as

a condition of federal funding not to engage in disability discrimi-

nation is consistent with the relevant statutory text. But his inter-

pretation runs afoul of basic principles of statutory construction be-

cause it ignores statutory context.

The question of whether the Attorney General may sue to

enforce Title II is a question of statutory interpretation. When we

interpret a statute, we must begin “with the words of the statutory

provision.” Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en

banc). But “[s]tatutory language has meaning only in context.” Gra-

ham Cnty. Soil & Water Conservation Dist. v. United States ex rel.

Wilson, 545 U.S. 409, 415 (2005); see Wachovia Bank, N.A. v.

United States, 455 F.3d 1261, 1267 (11th Cir. 2006) (“[C]ontext is

king.”). In interpreting a statute, “we must not be guided by a single

sentence or member of a sentence, but look to the provisions of the

whole law.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

1, 18 (1981) (internal quotation marks omitted); see Robinson v.

Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness or ambiguity

of statutory language is determined by reference to the language

itself, the specific context in which that language is used, and the

broader context of the statute as a whole.”).

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22 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

Here, the statutory text, when read in context, reflects that

Congress intended to authorize the Attorney General to bring a

lawsuit to enforce Title II against any public entity, regardless of

whether it obtained federal funding. In Title II, by expressly im-

porting the remedies, procedures, and rights available under the

Rehabilitation Act and Title VI of the Civil Rights Act, Congress

ratified and incorporated into Title II administrative procedures

that may culminate in an enforcement action by the Attorney Gen-

eral. Unlike the earlier statutes, which are expressly limited to ad-

dressing discrimination by public entities that receive federal fund-

ing, however, Title II regulates against all public entities, with no

mention of federal funding. Thus, none of Title II’s remedies, pro-

cedures and rights—of which suit by the United States government

is one—are so limited.

“Congress enacted Title II against a backdrop of pervasive

unequal treatment in the administration of state services and pro-

grams.” Lane, 541 U.S. at 524. This pattern of disability discrimina-

tion persisted despite Congress’s efforts to address it. See id. at 525–

26. The earlier legislative efforts included the Rehabilitation Act,

which prohibited disability discrimination by state and local gov-

ernments. But because Congress enacted the Rehabilitation Act

pursuant to its Spending Clause power, the Rehabilitation Act’s

prohibition was limited to state and local governments that oper-

ated a program or activity receiving federal financial assistance. See

29 U.S.C. § 794(a). The limited reach of the Rehabilitation Act’s

prohibition on discrimination by state and local government

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 23

rendered it “inadequate to address the pervasive problems of dis-

crimination that people with disabilities [were] facing.” Lane, 541

U.S. at 526 (internal quotation marks omitted).

Congress adopted Title II to remedy this inadequacy by ex-

tending the prohibition on disability discrimination to reach any

program or activity of a state or local government, not merely

those that receive federal funding. This is no novel insight by the

panel majority. Our court recognized nearly two decades ago that

“an integral purpose of [Title] II” was to make the Rehabilitation

Act’s prohibition on discrimination applicable to “all programs, ac-

tivities, and services provided or made available by state and local

governments . . . , regardless of whether or not such entities receive

Federal financial assistance.” Shotz, 344 F.3d at 1174 (emphasis

added) (internal quotation marks omitted).

The text of Title II supports this understanding. It states that

“no qualified individual with a disability shall, by reason of such

disability, . . . be subjected to discrimination by any [public] entity.”

42 U.S.C. § 12132 (emphasis added). Title II broadly defines a public

entity to include “any State or local government,” with no require-

ment that the entity receive federal funding. Id. § 12131(1)(A) (em-

phasis added). Because of this broad language, Judge Newsom

must concede that Title II permits an individual to sue any public

entity for disability discrimination, regardless of whether it receives

federal financial assistance, yet his interpretation imposes an atex-

tual limitation on the other avenue of relief under the statute.

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24 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

Both textual and contextual clues reveal that Title II was

Congress’s response to the shortcomings of the Rehabilitation Act,

which prohibited public entities from engaging in disability dis-

crimination only to the extent they received federal funding. Title

II was meant to fill the gap by expanding the prohibition on disa-

bility discrimination to all state governmental entities, regardless

of whether the state program or activity said to be discriminatory

receives federal funding. The dissental’s interpretation of § 12133

fails because it carries forward into Title II the very limitations of

the Rehabilitation Act that Congress intended Title II to remedy.

The dissental magnifies its error by ignoring § 12134. Section

12134 of Title II instructs the Attorney General to promulgate reg-

ulations to create an administrative enforcement framework, di-

recting that the regulations must be “consistent” with the regula-

tions promulgated under the Rehabilitation Act (and, by incorpo-

ration, Title VI of the Civil Rights Act). Id. § 12134(b). As I ex-

plained above, the regulations promulgated under the Rehabilita-

tion Act and Title VI of the Civil Rights Act create a robust admin-

istrative process in which federal agencies investigate and attempt

to resolve, through informal means, claims alleging disability dis-

crimination by public entities and, if the investigating agency is un-

able to resolve the claim, the Attorney General may sue the public

entity. See 28 C.F.R. §§ 41.5(a)(1); 42.107(b)–(d); 42.108.

I cannot square the dissental’s interpretation, which leaves

the Attorney General without any authority to enforce Title II

against public entities that receive no federal funding, with

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 25

Congress’s direction in § 12134 that Title II’s prohibition on dis-

crimination should be enforced through a robust administrative

scheme. Under the dissental’s interpretation, upon receiving a

complaint that a non-federally-funded public entity has discrimi-

nated against a person with a disability, a federal agency pours re-

sources into investigating the complaint and attempting to reach

an informal settlement. But if that process ultimately proves unsuc-

cessful, the federal government must give up—because it may not

sue the public entity to enforce the law. Without any enforcement

teeth, such a regulatory process would be utterly ineffectual.

Lastly, the dissental’s narrow interpretation of the Attorney

General’s enforcement authority conflicts with Congress’s express

legislative findings about the ADA’s purpose. By leaving the federal

government with no enforcement power when unlawful disability

discrimination is perpetrated by a public entity that receives no fed-

eral funding, the dissental’s interpretation undermines Congress’s

intention for the ADA to serve as “comprehensive” legislation to

address the continuing problem of disability discrimination, which

persisted across all dimensions of a disabled person’s life, including

“access to public services.” 42 U.S.C. § 12101(a)(3), (b)(1). This in-

terpretation also undermines Congress’s expressed intent for the

ADA to set forth “consistent” standards prohibiting the disability

discrimination and to give the federal government “a central role”

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26 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

in enforcing the prohibition on disability discrimination. Id.

§ 12101(b)(2)–(3). 6

The dissental’s interpretation effectively treats the ADA, like

the earlier Rehabilitation Act, as a Spending Clause statute in which

Congress regulated state and local governments only where they

receive federal funding. As we previously explained in Shotz, this

interpretation makes little sense. The types of conduct that consti-

tute discrimination under the Rehabilitation Act and Title II are so

similar that if Congress had intended for Title II’s provisions to ap-

ply only to federal funds recipients, “it would have been far easier

to amend the Rehabilitation Act to account for the minor differ-

ences between it and [Title] II of the ADA than to insert an other-

wise unnecessary [title] in the ADA itself.” Shotz, 344 F.3d at 1174.

Rather, in enacting the ADA, Congress expressly “invoke[d] the

6 I pause to address my reliance on § 12101. Our court has warned against

adopting an interpretation of a statute that relies solely on a statement of leg-

islative purpose, saying “it is hornbook abuse of the whole-text canon to argue

that since the overall purpose of the statute is to achieve x, any interpretation

of the text that limits the achieving of x must be disfavored.” Regions Bank v.

Legal Outsource PA, 936 F.3d 1184, 1194–95 (11th Cir. 2019) (internal quota-

tion marks omitted). But my argument here is different. The text of Title II

itself tells us that Congress intended to extend the prohibition against disability

discrimination to all public entities by eliminating the distinction among pub-

lic entities based on their receipt of federal funding. I look to the statements of

purpose in § 12101 only for additional support. The Supreme Court has en-

dorsed this approach in the context of this very statutory scheme. See

Olmstead, 527 U.S. at 599–600 (looking to substantive provisions in Title II as

well as the findings in § 12101 when construing the term “discrimination” in §

12132).

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 27

sweep of [its] authority, including the power to enforce the four-

teenth amendment and to regulate commerce” so that it could “ad-

dress the major areas of discrimination faced day-to-day by people

with disabilities.” 42 U.S.C. § 12101(b)(4).

The dissental fails to grapple with these problems in its in-

terpretation. Instead, it attacks the panel majority’s reasoning by

pointing to differences between the enforcement provision in Title

II of the ADA and the enforcement provisions in Titles I and III. It

says that because Titles I and III expressly authorize the Attorney

General to sue, the absence of a similar provision in Title II must

mean that Congress did not intend for the Attorney General to be

able to sue under Title II. But the dissental overlooks an important

piece of the puzzle: with each title of the ADA, Congress was leg-

islating upon a different existing statutory framework. Thus, the

different language Congress used in the enforcement provisions of

each title merely reflects the different approaches that Congress

took to incorporate existing law; it does not reflect different reme-

dies. Judge Newsom never confronts this nuance.

I begin with Title I, which concerns employment claims. See

42 U.S.C. § 12112(a). Title I’s enforcement provision states, “[t]he

powers, remedies, and procedures set forth in sections 2000e-4,

2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the pow-

ers, remedies, and procedures this subchapter provides to the

[Equal Employment Opportunity] Commission, to the Attorney

General, or to any person alleging discrimination on the basis of

disability.” Id. § 12117(a). Although this provision bears some

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28 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

resemblance to Title II’s enforcement provision, there are two im-

portant differences. First, Title II’s enforcement provision speaks to

the “remedies, procedures, and rights” available, id. § 12133,

whereas Title I addresses “powers, remedies, and procedures,” id.

§ 12117(a). Second, the relevant actors are treated differently in the

two statutes. Title II’s enforcement provision incorporates the

parts of the Rehabilitation Act and Title VI that set forth the reme-

dies, procedures, and rights of a “person alleging discrimination,”

id. § 12133, whereas Title I’s enforcement provision incorporates

portions of Title VII of the Civil Rights Act of 1964 that set forth

the powers, remedies, and procedures provided to the EEOC, the

Attorney General, or a person alleging discrimination, id. §

12117(a).

These two differences indicate that sections 12133 and 12117

serve overlapping, but not identical, purposes. Although both pro-

visions incorporate other statutes setting out the remedies availa-

ble to a person alleging discrimination, § 12117 also incorporates

provisions from Title VII addressing how power to enforce Title

VII is shared between the EEOC and the Attorney General. As the

Attorney General explains, “[b]ecause the point of [§] 12117(a) was

to make clear that the same division of authority among the vari-

ous actors under the five different sections of Title VII [of the Civil

Rights Act] applies to Title I of the ADA, it was only natural that

Congress would avoid confusion by specifying the actors among

whom the authority is divided.” Appellant’s Br. at 28-29. No similar

reference to the Attorney General (or the EEOC) was needed in

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 29

Title II because the pre-existing statutes that Congress was incor-

porating there had simpler enforcement schemes that did not in-

volve the sharing of “powers,” 42 U.S.C. § 12117(a), between the

Attorney General and the EEOC.

Judge Newsom argues that the differences between Title I

and Title II support his position because Title I’s enforcement pro-

vision shows that Congress knew how to expressly reference the

Attorney General when necessary. He is correct, of course, that

“[w]here ‘Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is gener-

ally presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.’” Dissental at 46 (quoting Russello

v. United States, 464 U.S. 16, 23 (1983)). But the general presump-

tion is overcome here. The differences between the enforcement

provisions in Title I and Title II and, importantly, the earlier stat-

utes they each incorporate suffice to explain why Congress would

mention the Attorney General in Title I but not in Title II. “The

Russello presumption—that the presence of a phrase in one provi-

sion and its absence in another reveals Congress’[s] design—grows

weaker with each difference in the formulation of the provisions

under inspection.” Clay v. United States, 537 U.S. 522, 532 (2003)

(internal quotation marks omitted).

I now turn to Judge Newsom’s similar argument about Title

III. Title III prohibits discrimination against a person “on the basis

of disability in the full and equal enjoyment of . . . any place of pub-

lic accommodation.” 42 U.S.C. § 12182(a). Title III’s enforcement

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30 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

provision is structured differently than the enforcement provisions

in either Title I or Title II.

Title III’s enforcement provision is § 12188. Subsection (a) of

§ 12188 gives an individual who was subjected to discrimination a

private right of action to sue the operator of a place of public ac-

commodation. In § 12188(a), Congress established this private right

of action through an incorporation by reference: “The remedies

and procedures set forth in section 2000a-3(a) [Title II of the Civil

Rights Act of 1964] are the remedies and procedures this subchap-

ter provides to any person who is being subjected to discrimination

on the basis of disability.” Id. § 12188(a). In an action under §

12188(a), the aggrieved person may seek only “preventive relief,”

such as a permanent or temporary injunction or restraining order.

See id. § 2000a-3(a). 7 The aggrieved person may not recover dam-

ages.

In subsection (b) of § 12188, however—without incorporat-

ing remedies from any other statute—Congress expressly author-

ized “the Attorney General [to] commence a civil action.” Id.

§ 12188(b)(1)(B). In contrast to the private right of action under

subsection (a), in an action brought by the Attorney General under

subsection (b), the court may award, in addition to equitable relief

such as temporary, preliminary, or permanent injunctive relief,

prevailing party may recover its reasonable attorney’s fees. See

7 In addition, a

42 U.S.C. § 2000a-3(b)

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 31

damages to any “persons aggrieved” or may assess a civil penalty.

Id. § 12188(b)(2).

Section 12188(b) is unique among the ADA’s three titles be-

cause it is the only enforcement provision in which Congress ex-

pressly authorized the Attorney General to commence an action

instead of incorporating by reference an enforcement provision

from another statute. Why? Because in Title III Congress was cre-

ating a brand-new remedy, one which did not exist in earlier stat-

utes, available to the Attorney General to combat discrimination

by operators of places of public accommodation. Although Title II

of the Civil Rights Act of 1964 allowed the Attorney General to sue

an operator of a place of public accommodation who engaged in

discrimination, the Attorney General could seek only injunctive re-

lief, not damages or a penalty. See, e.g., id. § 2000a-5(a) (permitting

Attorney General to bring civil actions seeking injunctive relief, not

damages). Because Title III of the ADA created a new, expanded

role for the Attorney General, it necessarily had to describe that

role rather than incorporating an earlier provision by reference. 8

8 Judge Newsom lists several other federal statutes where Congress expressly

authorized the Attorney General to commence an action to enforce the stat-

ute. But it is not the case, of course, (and Judge Newsom stops short of saying)

that Congress must include such express language to authorize the Attorney

General to sue. If Congress had to include such express language, then the

Attorney General would have no authority to enforce the Rehabilitation Act

(because its enforcement provision incorporates by reference the remedies,

procedures, and rights of Title VI of the Civil Rights Act) even against public

entities that receive federal funding. See 29 U.S.C. § 794a(a)(2).

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32 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

When viewed in context, the enforcement provisions in the

ADA demonstrate that Congress took two different approaches in

setting out the remedies available for a violation of the ADA, and

there were good reasons for taking those different approaches. As

one approach, Congress incorporated by reference the enforce-

ment provision of an existing civil rights statute to incorporate the

remedies available under the earlier statute, as it did in Titles I and

II. 9 For another approach, Congress included rights-creating lan-

guage to expressly authorize the Attorney General to sue, as it did

in Title III. Therefore, I cannot agree with the dissental that the

rights-creating language in § 12188(b), which expressly authorizes

the Attorney General to sue to enforce Title III, indicates that Con-

gress did not intend to authorize the Attorney General to sue under

Title II to enforce the rights of victims of discrimination. The dis-

sental’s interpretation flies in the face of Congress’s incorporation

by reference of the existing enforcement provisions in the Rehabil-

itation Act and Title VI of the Civil Rights Act, both of which give

the Attorney General the right to sue on behalf of victims of dis-

crimination. The panel majority correctly interpreted the statutory

9 Although Titles I and II are similar in that Congress incorporated by refer-

ence the enforcement provisions of existing statutes, I explained above that

other differences in the relevant statutory schemes explain why Congress ex-

pressly mentioned the Attorney General in Title I but not in Title II. Unlike in

Title II, where Congress was simply extending the reach of existing remedies

to public entities regardless of whether they receive federal funding, in Title I

Congress was dealing with a complex statutory scheme with multiple actors

sharing enforcement roles.

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 33

text as permitting the Attorney General to sue any public entity for

disability discrimination.

B. The Dissental’s Interpretation Conflicts with Supreme

Court Precedent.

Another glaring problem with the dissental’s interpretation

warrants mention: it creates a situation where an individual alleg-

ing disability discrimination has an implied private right of action

against a public entity that receives no federal funding under Title

II, but the federal government has no corresponding enforcement

authority. I have difficulty squaring this result with the Supreme

Court’s decision in NCAA v. Smith, where the Court explained that

when a civil rights statute, such as Title II of the ADA, creates an

implied right of action to sue, the implied private right of action is

no broader than the federal government’s authority to enforce that

statute. 525 U.S. 459, 467 n.5 (1999).

To put this explanation in context, we need to review what

happened in Smith. An athlete alleged that the NCAA discrimi-

nated against her on the basis of sex when it denied her permission

to play intercollegiate volleyball. Id. at 462. She sued the organiza-

tion under Title IX, which prohibits discrimination on the basis of

sex in “any education program or activity receiving Federal finan-

cial assistance.” Id. (quoting 20 U.S.C. § 1681(a)). The question be-

fore the Supreme Court was whether the NCAA received federal

funding. Although the NCAA itself received no direct federal fund-

ing, the athlete argued that she could sue the organization under

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34 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

Title IX because it received dues payments from its member uni-

versities, which did receive federal financial assistance. Id. at 464.

The Supreme Court rejected the athlete’s argument.

In concluding that the NCAA could not be sued under Title

IX, the Supreme Court relied on its earlier decision in U.S. Depart-

ment of Transportation v. Paralyzed Veterans of America. See id.

at 467 (citing 477 U.S 597, 603–12 (1986)). In Paralyzed Veterans,

the Court considered whether the Rehabilitation Act permitted a

federal agency to prohibit commercial airlines from discriminating

based on disability. See 477 U.S. at 604. The commercial airlines

received no funding directly from the federal government, but the

plaintiffs argued that the Act authorized the federal government to

regulate the airlines because they indirectly benefited from the fed-

eral funding airports received. Id. at 606. The Supreme Court disa-

greed, holding that the Rehabilitation Act permitted the federal

government to regulate only actual recipients of federal funds. Id.

at 606–07.

The athlete in Smith had tried to distinguish Paralyzed Vet-

erans on the ground that it “involved a Government enforcement

action,” whereas she had brought a “private suit.” Smith, 525 U.S.

at 467 n.5. The athlete’s argument hinged on the premise “that the

private right of action available under” Title IX was “potentially

broader than the Government’s enforcement authority” under Ti-

tle IX. Id.

The Court said no. It explained that there was “no express

authorization for private lawsuits in Title IX” and that Congress

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17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 35

had instead authorized an implied private right of action. Id. “[I]t

would be anomalous,” the Court said, “to assume that Congress

intended the implied right of action to proscribe conduct that Gov-

ernment enforcement may not check.” Id. Smith teaches that when

Congress creates an implied private right of action to sue for civil

rights violations, the private right of action and the federal govern-

ment’s enforcement authority are coextensive.

Judge Newsom’s position mirrors the argument the athlete

made, and the Court rejected, in Smith. He acknowledges that an

individual may file suit for discrimination prohibited by Title II

against any public entity but maintains that the government may

enforce Title II’s prohibition against only those public entities that

receive federal funding. Thus, under his interpretation of Title II,

an individual’s implied private right of action is broader than the

government’s enforcement authority. 10

But in Smith the Court rejected the idea that the private

right of action could be broader than this enforcement authority

when it said such a result would be “anomalous.” Id. Although the-

oretically it might be possible for Congress to enact a civil rights

statute giving individuals an implied private right of action to sue

10Although Smith involved a different civil rights statute, Title IX’s enforce-

ment provision—like Title II’s—was patterned on Title VI’s enforcement pro-

vision. Compare 20 U.S.C. § 1682, with 42 U.S.C. § 2000d-1. We have declared

Title IX case law to be “informative” in interpreting the Rehabilitation Act be-

cause both statutes were “modeled after Title VI.” Liese v. Indian River Cnty.

Hosp. Dist., 701 F.3d 334, 346 (11th Cir. 2012).

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36 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

but leaving the Attorney General without corresponding authority

to enforce against the prohibited conduct, Judge Newsom has iden-

tified no statute that has been interpreted this way. 11

11 Judge Newsom tries to ameliorate the impact of his reading of Title II by

suggesting that even if the Attorney General lacks the authority to sue Florida

under Title II, the United States could vindicate the children’s rights nonethe-

less by suing Florida under the Civil Rights of Institutionalized Persons Act

(“CRIPA”), a separate federal statute that authorizes the Attorney General to

sue a state when it “subject[s] persons residing in or confined to an institution

. . . to egregious or flagrant conditions” and “caus[es] such persons to suffer

grievous harm.” 42 U.S.C. § 1997a(a).

But as the panel majority carefully explained, the Attorney General could not

have sued Florida under CRIPA because the facilities where the children are

placed do not appear to meet CRIPA’s definition of “institution.” See Florida,

938 F.3d at 1246 n.23. Under CRIPA, a “skilled nursing, intermediate or long-

term care, or custodial or residential care” facility generally qualifies as an in-

stitution if it is “owned, operated, or managed by, or provides services on be-

half of any State or political subdivision of a State.” 42 U.S.C. § 1997(1), (B)(v).

A privately owned and operated facility does not qualify as an institution when

its “nexus” with the state is limited to state licensing of the facility and the

facility’s receipt of payments under Medicaid, Medicare, or Social Security. Id.

§ 1997(2). As the panel majority noted, a review of the record in this case indi-

cates that the facilities housing the medically-fragile children were privately

owned and operated and thus did not qualify as institutions under CRIPA.

Florida, 938 F.3d at 1246 n.23.

In any event, even if the Attorney General also could sue Florida under

CRIPA, “[t]here is nothing to suggest that CRIPA was intended to be the only

means of enforcing the rights of institutionalized persons.” Id. (emphasis omit-

ted). Congress enacted the ADA ten years after CRIPA. Despite CRIPA’s ex-

istence, Congress found that discrimination against individuals with disabili-

ties “persist[ed]” in “critical areas” including via their “institutionalization.”

See 42 U.S.C. § 12101(a)(3); Olmstead, 527 U.S. at 599–600.

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IV. Contrary to the Dissental’s Claim, the Panel Opinion

Does Not Conflict with Federalism Principles.

Before concluding, I must address one last criticism the dis-

sental levels against the panel majority’s opinion. The dissental says

that the opinion’s holding “comes at [a] real cost to core principles

of federalism.” Dissental at 61. This critique flows from the dis-

sental’s assumption that the ADA does not authorize the Attorney

General to sue a public entity when it receives no federal funding

and thus that the panel majority opinion “creates a nonexistent

cause of action.” Id. at 41, 64.

But if the panel majority was correct that Congress intended

to authorize the Attorney General to sue to enforce Title II’s pro-

hibition on discrimination against all public entities, regardless of

whether they receive federal funding, then the majority opinion

“creates” no cause of action and presents no federalism concerns.

If so, the dissental’s critique amounts to a policy argument about

why Congress should not have decided to authorize the Attorney

General to sue a state government to enforce federal law. Because

Congress acted and authorized the Attorney General to sue, how-

ever, adopting the dissental’s interpretation would violate princi-

ples of separation of powers by taking away from the Attorney

General power the considerable authority that Congress gave

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38 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

him.12 Norelus v. Denny’s, Inc., 628 F.3d 1270, 1300–01 (11th Cir.

2010) (“Courts may not rewrite the language of a statute in the

guise of interpreting it in order to further what they deem to be a

better policy than the one Congress wrote into the statute.”).

V. Conclusion

The panel majority got the law right. In Title II of the ADA,

Congress authorized the Attorney General to sue any public entity,

regardless of whether it receives federal funding, to enforce the

statute. Reading the broad statutory language in its proper context,

the panel correctly held that the Attorney General was authorized

in this case to sue the State of Florida, on behalf of the medically-

fragile children, for disability discrimination.

12Judge Newsom does not dispute that Congress has the authority under the

Constitution to authorize the Attorney General to enforce Title II against state

governments even when they receive no federal funding.

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17-13595 NEWSOM, J., Dissenting 39

NEWSOM, Circuit Judge, dissenting from the denial of rehearing en

banc, in which BRANCH, Circuit Judge, joins:

I

This case involves the Americans with Disabilities Act. Con-

gress enacted the ADA “to provide a clear and comprehensive na-

tional mandate for the elimination of discrimination against indi-

viduals with disabilities.” Tennessee v. Lane, 541 U.S. 509, 516

(2004) (quoting 42 U.S.C. § 12101(b)(1)). The Act contains three

titles: Title I covers employment; Title II covers public services,

programs, and activities; and Title III covers public accommoda-

tions. See id. at 516–17. Our focus here is Title II—and, specifically,

the question whether the Attorney General of the United States can

sue to enforce it. As background—much more on this later—Title

II’s enforcement provision states in full:

The remedies, procedures, and rights set forth in sec-

tion 794a of Title 29 [i.e., § 505 of the Rehabilitation

Act of 1973] shall be the remedies, procedures, and

rights this subchapter [i.e., Title II] provides to any

person alleging discrimination on the basis of disabil-

ity in violation of section 12132 of this title.

42 U.S.C. § 12133.

* * *

Briefly, the specifics of this case: The allegations here—that

the State of Florida has mistreated children with severe medical

conditions and disabilities—are extremely serious. In particular, in

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40 NEWSOM, J., Dissenting 17-13595

a Letter of Findings, the DOJ informed Florida that it was violating

Title II by “unnecessarily institutionalizing hundreds of children

with disabilities in nursing facilities.” United States v. Florida, 938

F.3d 1221, 1224 (11th Cir. 2019). The DOJ further alleged that Flor-

ida’s Medicaid policies put some children—those who are “medi-

cally fragile” or who have “medically complex” conditions—“at

risk of unnecessary institutionalization.” Id. at 1225. After failed

negotiations, the DOJ sued Florida, seeking declaratory and injunc-

tive relief under Title II. See id. The district court consolidated the

government’s case with a class action brought on behalf of children

alleging similar claims against the state. See id. Ultimately, that

court dismissed the government’s case, holding that the Attorney

General lacked standing to sue under Title II. C.V. v. Dudek, 209

F. Supp. 3d 1279, 1282 (S.D. Fla. 2016), rev’d and remanded sub

nom., United States v. Florida, 938 F.3d 1221.

In a split decision, a panel of this Court reversed. The panel

majority zeroed in on the “remedies, procedures, and rights” lan-

guage in Title II’s enforcement provision. Because Title II refer-

ences § 505 of the Rehabilitation Act of 1973, which in turn refer-

ences Title VI of the Civil Rights Act of 1964, the panel concluded

that Title VI is the “ultimate fount of the cascade of cross-refer-

ences”—and thus effectively “the enforcement mechanism for Ti-

tle II.” United States v. Florida, 938 F.3d at 1227, 1229. Section 602

of Title VI allows the government to “effect” compliance with that

statute by (1) terminating or refusing to grant funds; or (2) “by any

other means authorized by law.” Id. at 1227 (quoting 42 U.S.C.

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17-13595 NEWSOM, J., Dissenting 41

§ 2000d-1). The phrase “any other means authorized by law,” the

panel held, encompassed lawsuits by the Attorney General. Id. at

1233. Because Title II’s “remedies, procedures, and rights” lan-

guage “adopt[ed] federal statutes” that contemplate enforcement

and suit by the Attorney General, the majority reasoned—having

spent dozens of pages untangling the cross-reference “cascade”—

that the Attorney General can likewise sue under Title II. Id. at

1229, 1250. For reasons I’ll explain, I disagree.

The panel’s opinion can plausibly be understood in either of

two ways—neither of which, I hope to show, withstands scrutiny.

First, one might read the opinion to hold that the Attorney General

is himself a “person alleging discrimination” within the meaning of

42 U.S.C. § 12133 and, accordingly, has standing to sue under Title

II. If that’s what the panel’s opinion means, then for many of the

reasons that Judge Branch identified in her dissent—and that I’ll

aim to underscore here—it seems to me flat wrong. See United

States v. Florida, 938 F.3d at 1251–54 (Branch, J., dissenting). Sec-

ond, and perhaps more charitably, the majority’s opinion might be

read to hold that the Attorney General has standing to sue on be-

half of other “person[s] alleging discrimination” under Title II.

While that reading avoids many of the more obvious pitfalls iden-

tified by Judge Branch, I contend that it fails just the same.

Because the panel’s decision creates a nonexistent cause of

action, vests the federal government with sweeping enforcement

authority that it’s not clear Congress intended to give, and, in the

doing, upends the delicate federal-state balance, this Court should

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42 NEWSOM, J., Dissenting 17-13595

have reheard it en banc. I respectfully dissent from its refusal to do

so.

II

I begin with the first possible reading of the panel opinion—

that the Attorney General has standing to sue to enforce Title II of

the ADA because he is, within the meaning of that statute’s reme-

dial provision, a “person alleging discrimination.” 42 U.S.C.

§ 12133. As Judge Branch explained in her dissent, the Supreme

Court’s recent decision in Return Mail, Inc. v. U.S. Postal Service,

139 S. Ct. 1853 (2019), all but forecloses that theory.

The question in Return Mail was “whether a federal agency

is a ‘person’ able to seek” administrative review and to challenge

the validity of a patent (post-issuance) under the Leahy-Smith

America Invents Act. 139 S. Ct. at 1858–59. In a 6–3 decision au-

thored by Justice Sotomayor, the Supreme Court held that the

agency was not a “person.” Id. at 1859. In arriving at that conclu-

sion, the Court began with the “longstanding interpretive pre-

sumption that ‘person’ does not include the sovereign.” Id. at

1861–62 (citing cases dating back nearly 150 years). The presump-

tion doesn’t just reflect “common usage,” the Court explained, but

“is also an express directive from Congress” because the Dictionary

Act, 1 U.S.C. § 1, supplies the definition of “person” that courts

should use in “determining the meaning of any Act of Congress,

unless the context indicates otherwise.” Id. at 1862 (quoting 1

U.S.C. § 1). “Notably absent from the list of ‘person[s]’” in the Dic-

tionary Act, the Court emphasized, “is the Federal Government.”

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17-13595 NEWSOM, J., Dissenting 43

Id. (alteration in original) (citation omitted). The Court further

confirmed that the presumption applies even when it operates, in

effect, to “exclude the Federal Government or one of its agencies

from accessing a benefit or favorable procedural device.” Id. (citing

United States v. Cooper Corp., 312 U.S. 600, 604–05 (1941), which

held that the United States is not a “person” who can sue under the

Sherman Antitrust Act for treble damages).

The Return Mail Court explained that while the presump-

tion isn’t a “hard and fast rule of exclusion,” it can be “disregarded”

only if there is “some indication in the text or context of the statute

that affirmatively shows Congress intended to include the govern-

ment.” Id. at 1862–63 (citations and quotations omitted). So back

to our case, are there any presumption-defeating indicators in the

text or context of Title II’s enforcement provision—or the ADA

more generally—that affirmatively show that Congress intended to

include the Attorney General (in his capacity as representative of

the United States) within the meaning of the phrase “any person

alleging discrimination”? There are not. Quite the opposite, in

fact. Title II’s enforcement provision—particularly when under-

stood in the ADA’s larger context—confirms that the Attorney

General is not covered.

Notably, Congress explicitly gave the Attorney General

standing to sue under Titles I and III of the ADA. In full, Title I’s

enforcement provision, which addresses discrimination in employ-

ment, expressly authorizes the Attorney General to sue, and does

so separately from “any person alleging discrimination”:

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44 NEWSOM, J., Dissenting 17-13595

The powers, remedies, and procedures set forth

in . . . this title shall be the powers, remedies, and pro-

cedures this subchapter [i.e., Title I] provides to the

Commission, to the Attorney General, or to any per-

son alleging discrimination on the basis of disability in

violation of any provision of this chapter, or regula-

tions promulgated under section 12116 of this title,

concerning employment.

42 U.S.C. § 12117(a) (emphasis added).

Title III’s enforcement provision, which addresses discrimi-

nation in public accommodations, is structured a bit differently, but

it too clearly vests the Attorney General with authority to sue. It

initially provides “remedies and procedures . . . to any person who

is being subject to discrimination on the basis of disability in viola-

tion of [Title III].” Id. § 12188(a)(1) (emphasis added). It goes on,

though, to provide explicitly—and separately—for enforcement by

the Attorney General. In particular, it gives the Attorney General

a duty to “investigate alleged violations” of Title III and to “under-

take periodic reviews of compliance” with Title III, id.

§ 12188(b)(1)(A)(i), as well as permission to “certify that a State law

or local building code or similar ordinance that establishes accessi-

bility requirements meets or exceeds the minimum requirements

of” the ADA, id. § 12188(b)(1)(A)(ii). Most importantly here, it

gives the Attorney General an express right to sue to enforce Title

III:

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17-13595 NEWSOM, J., Dissenting 45

If the Attorney General has reasonable cause to be-

lieve that—(i) any person or group of persons is en-

gaged in a pattern or practice of discrimination under

this subchapter [i.e., Title III]; or (ii) any person or

group of persons has been discriminated against un-

der this subchapter [i.e., Title III] and such discrimi-

nation raises an issue of general public importance,

the Attorney General may commence a civil action in

any appropriate United States district court.

Id. § 12188(b)(1)(B) (emphasis added).

The fact that Titles I and III reference the Attorney General

by name and, more to the point, expressly authorize him to sue,

tells us (at least) two things about the way Congress drafted the

ADA. First, the Attorney General is not included within the term

“person” under Titles I and III—otherwise why mention the “At-

torney General” in addition to and alongside the word “person”?

See, e.g., Republic of Sudan v. Harrison, 139 S. Ct. 1048, 1058

(2019) (explaining that courts should be “hesitant to adopt an inter-

pretation of a congressional enactment which renders superfluous

another portion of that same law” (quotation omitted)). And be-

cause courts have a “duty to construe statutes, not isolated provi-

sions,” and, therefore, should ordinarily follow the “normal rule of

statutory construction that identical words used in different parts

of the same act are intended to have the same meaning,” Gustafson

v. Alloyd Co., 513 U.S. 561, 568, 570 (1995), if the term “person”

doesn’t include the Attorney General in Titles I or III, then it

doesn’t include the Attorney General in Title II, either.

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46 NEWSOM, J., Dissenting 17-13595

Second, Titles I and III show that when Congress intended

the Attorney General to have enforcement power under the ADA,

it said so. This is consistent with the Supreme Court’s observation

that “the United States Code displays throughout that when an

agency in its governmental capacity is meant to have standing,

Congress says so.” Dir., Off. of Workers’ Comp. Programs, Dep’t

of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S.

122, 129 (1995). In Newport News, the Supreme Court considered

whether the Director of the Office of Workers’ Compensation Pro-

grams in the U.S. Department of Labor had standing to appeal de-

cisions of the Benefits Review Board under the Longshore and Har-

bor Workers’ Compensation Act, which allowed a “person ad-

versely affected or aggrieved” to appeal. Id. at 123, 126 (quoting 33

U.S.C. § 921(c)). The Court emphasized that the Act’s “silence re-

garding the Secretary’s ability to take an appeal is significant when

laid beside other provisions of law”—such as the Black Lung Bene-

fits Act, Title VII of the Civil Rights Act of 1964, and the Employee

Retirement Income Security Act of 1974—that mentioned the

agency or agency head by name. Id. at 129–30. The inference that

follows from comparing the enforcement provision in Title II of

the ADA to those in Titles I and III is even stronger, as all three

provisions are located within the same statute. Where “Congress

includes particular language in one section of a statute but omits it

in another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate inclusion

or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983)

(quotation omitted).

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17-13595 NEWSOM, J., Dissenting 47

Lastly, there are “good reasons” here—of the sort the Su-

preme Court deemed significant in Return Mail—why Congress

might have wanted the Attorney General to be able to sue under

Titles I and III, but not Title II. See 139 S. Ct. at 1866. Whereas

Titles I and III apply predominantly to private defendants—em-

ployers and providers of public accommodations, respectively—Ti-

tle II regulates every service, program, and activity administered

by every state in the country. Accordingly, as I’ll explain in greater

detail shortly, Title II enforcement could bring the federal and state

governments into broad-scale conflict in a way that suits under Ti-

tle I and III would not. And to be clear, a holding that the Attorney

General can’t sue under Title II wouldn’t mean that its provisions

would go unenforced or that its purposes would go unaccom-

plished. Congress clearly gave private parties the ability to sue un-

der Title II, and the Attorney General has long had explicit author-

ity to enforce the Civil Rights of Institutionalized Persons Act

against the states in this space. See 42 U.S.C. § 1997a(a).

The panel largely sidestepped both Return Mail and the pre-

sumption against treating the government as a statutory “person.”

Its lengthy opinion mentioned Return Mail only once—in a brief

footnote. There, the panel concluded that Return Mail wasn’t ap-

plicable because the statute at issue in that case “differ[ed] signifi-

cantly from the complex ‘remedies, procedures, and rights’ struc-

ture of the ADA.” United States v. Florida, 938 F.3d at 1227 n.5.

For my part, I don’t think Return Mail—or the more than 100 years

of Supreme Court precedent on which it rests—is so easily

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48 NEWSOM, J., Dissenting 17-13595

shrugged off. No matter how “complex” the “remedies, proce-

dures, and rights” provided for in Title II may be, they apply only

to a “person alleging discrimination.” It seems absolutely clear to

me that the Attorney General doesn’t fit that description, and to

the extent that the panel opinion is meant to hold otherwise, it is

plainly erroneous.

III

Which leads me to a second, and perhaps more charitable,

reading of the panel’s opinion—namely, that it means to hold not

that the Attorney General is himself a “person alleging discrimina-

tion” within the meaning of Title II’s enforcement provision but,

rather, that the Attorney General has standing to sue on behalf of

other “person[s] alleging discrimination.” It’s worth noting at the

outset that this interpretation is in pretty stark tension with the

government’s own briefing in the case, which emphasized that

“[w]hen the Attorney General files a Title II lawsuit, he proceeds

on behalf of the United States—not as the attorney for any individ-

ual complainant.” Reply Br. of United States at 5. But I’ll leave that

aside for present purposes. Even on its own terms, the contention

that Title II authorizes the Attorney General to sue to vindicate

others’ statutory rights comes up short.

Explaining why that’s so will require a bit of unpacking, but

here’s the short story: Title II’s remedial provision, to which I’ve

already alluded and whose terms I’ll revisit shortly, does not itself

create a cause of action authorizing the Attorney General, or the

federal government more generally, to sue. Rather, by virtue of its

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17-13595 NEWSOM, J., Dissenting 49

incorporation of the remedies provided by the Rehabilitation Act

of 1973, which in turn incorporates the remedies provided by the

Civil Rights Act of 1964—more on the cross-references below—Ti-

tle II directs courts to look elsewhere for a cause of action that is

“authorized by law.” And yet no one—neither the government in

its briefs nor the panel in its opinion—has pointed to a valid source

of law that gives the federal government a cause of action to sue

for violations of Title II. Instead, so far as I can tell, the Rehabilita-

tion Act and Title VI precedents cited by the government and the

panel—which I’ll explore in detail—support only the much more

limited proposition that the federal government can sue federal-

funding recipients for breach of contract. While those precedents

seem to me correct as far as they go, they don’t go nearly far

enough. In particular, they don’t move the needle where, as here,

the government’s suit isn’t predicated on the violation of any con-

tractual funding condition embedded in a Spending Clause statute.

At the end of the day, there simply is no cause of action au-

thorizing the government’s non-contract suit here. And we aren’t

at liberty to conjure one, no matter how sympathetic the plaintiffs’

case. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001)

(explaining that without clear evidence of congressional intent, “a

cause of action does not exist and courts may not create one, no

matter how desirable that might be as a policy matter, or how com-

patible with the statute”).

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50 NEWSOM, J., Dissenting 17-13595

A

I start, as promised, with the text of the pertinent provisions.

Title II of the ADA gives to any “person alleging discrimination”—

which for present purposes I’ll assume is an individual on whose

behalf the Attorney General is suing—the remedies provided by

the Rehabilitation Act. In particular, Title II’s remedial provision

states that

[t]he remedies, procedures, and rights set forth in [the

Rehabilitation Act’s remedial provision] shall be the

remedies, procedures, and rights this subchapter pro-

vides to any person alleging discrimination on the ba-

sis of disability in violation of [Title II].

42 U.S.C. § 12133. The Rehabilitation Act, in turn, confers the rem-

edies provided by Title VI of the Civil Rights Act. In particular, the

Rehabilitation Act’s remedial provision states that

[t]he remedies, procedures, and rights set forth in title

VI of the Civil Rights Act of 1964 . . . shall be available

to any person aggrieved by any act or failure to act by

any recipient of Federal assistance or Federal provid-

ers of such assistance under . . . this title.

29 U.S.C. § 794a(a)(2). And finally, Title VI’s remedial provision

states that

[c]ompliance with any requirement adopted pursuant

to this section may be effected (1) by the termination

of or refusal to grant or to continue assistance under

such program or activity to any recipient as to whom

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17-13595 NEWSOM, J., Dissenting 51

there has been an express finding on the record, after

opportunity for hearing, of a failure to comply with

such requirement . . . or (2) by any other means au-

thorized by law.

42 U.S.C. § 2000d–1. Accordingly, by dint of Title II’s incorpora-

tion of the Rehabilitation Act’s incorporation of Title VI’s reme-

dies, there are two methods by which a plaintiff can seek to “ef-

fect[]” compliance with Title II: (1) “termination” (or refusal) of

federal funding; and (2) “any other means authorized by law.”

All here agree that this case has nothing to do with the ter-

mination of federal funding. The controlling question, therefore,

is whether the Attorney General’s suit here to enforce Title II con-

stitutes an “other means authorized by law.” Title VI’s reference

to funding termination, though, hints at the mismatch that plagues,

and ultimately defeats, the panel’s opinion—or, more particularly,

the alternative reading of it that I’m presently assessing. Title VI,

in which the funding-termination and “any other means authorized

by law” remedies originate, was enacted pursuant to Congress’s

Spending Clause power. See Barnes v. Gorman, 536 U.S. 181, 185

(2002). So was the Rehabilitation Act. See id. at 189 n.3. Problem-

atically for the panel opinion—for reasons I will explain in detail—

Title II of the ADA was not.

The statutory phrase “other means authorized by law”—in-

cluded in Title VI and incorporated by reference into Title II—

requires us to ask whether, in the absence of the statute, something

else would sanction the proposed “means.” This case, accordingly,

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52 NEWSOM, J., Dissenting 17-13595

turns on whether a government-brought action to remedy an al-

leged Title II violation is elsewhere “authorized by law.” It is not.

In our legal system, a lawsuit is “authorized by law”—green-

lighted, in essence—via a cause of action. Sometimes, a cause of

action arises from the common law—an action for tort, breach of

contract, etc. Just as often, a cause of action is created by a statute.

When Congress wants to “authorize[]” the Attorney General to

sue violators of a statute outside of the common law, it creates an

express cause of action empowering him to do so. And perhaps not

surprisingly, it does so pretty routinely. See, e.g., 18 U.S.C. § 216(b)

(“The Attorney General may bring a civil action in the appropriate

United States district court against any person who engages in con-

duct constituting an offense under . . . this title and . . . such per-

son shall be subject to a civil penalty of [damages].”); 18 U.S.C.

§ 1345(a)(1)(C) (authorizing “the Attorney General” to “commence

a civil action in any Federal court to enjoin [a] violation”); 20 U.S.C.

§ 1706 (“The Attorney General of the United States . . . for or in the

name of the United States, may . . . institute . . . a civil action on be-

half of [an] individual [denied an equal educational opportunity].”).

Here, though, no such cause of action exists. No one has

directed our attention to a common-law or statutory cause of ac-

tion “authoriz[ing]” the federal government to sue for a violation

of Title II. Congress did not create a cause of action, for instance—

à la any of the statutes just cited—empowering the Attorney Gen-

eral to “institute a civil action on behalf of an individual who claims

to have been the victim of discrimination.”

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17-13595 NEWSOM, J., Dissenting 53

B

Where, then, did the panel find the requisite “au-

thoriz[ation]”? Seemingly, in analogies to cases in which courts

have affirmed the federal government’s common-law cause of ac-

tion to sue under Title VI and the Rehabilitation Act—Title II’s

(step) sister statutes—for breach of contract. But therein lies the

problem, because the analogy doesn’t hold up.

It is well-settled that the common law authorizes the federal

government to sue funding recipients for violating conditions at-

tached to their receipt of federal funds. See, e.g., McGee v. Mathis,

71 U.S. (4 Wall.) 143, 155 (1866). The grant of funds from the

“United States to the State upon conditions, and the acceptance of

the grant by the State, constitute[s] a contract,” as it includes “com-

petent parties, proper subject-matter, sufficient consideration, and

consent of minds.” Id. Statutes that impose conditions on federal

funds—i.e., Spending Clause statutes—thereby create contractual

obligations, which means that the federal government can sue

when those obligations aren’t met. “When a federal-funds recipi-

ent violates conditions of Spending Clause legislation,” the Su-

preme Court has explained, “the wrong done is the failure to pro-

vide what the contractual obligation requires; and that wrong is

‘made good’ when the recipient compensates the Federal Govern-

ment . . . for the loss caused by that failure.” Barnes, 536 U.S. at

189. But because this widely recognized cause of action comes

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54 NEWSOM, J., Dissenting 17-13595

from the common law of contracts, it authorizes suit only for—and

upon—a breach of contract. See McGee, 71 U.S. at 155. 1

As already noted—but the point bears repeating—while Ti-

tle VI and the Rehabilitation Act are Spending Clause statutes, the

ADA is not. And, therefore, not surprisingly, the federal govern-

ment here does not allege that any sort of funding relationship ex-

isted between it and the State of Florida, nor does it allege that Flor-

ida violated any conditions attached to any federal funds. Instead,

the government alleges a bare violation of Title II—without any

contentions regarding a meeting of the minds, consideration, or

any other aspect of contract formation or performance.

1 The Supreme Court has acknowledged that the cause of action against fund-

ing recipients may not be governed by contract law in all respects—sometimes

saying, for instance, that contract law provides the governing “analogy.” See,

e.g., Sossamon v. Texas, 563 U.S. 277, 290 (2011) (“We have acknowledged

the contract-law analogy, but we have been clear not [to] imply . . . that suits

under Spending Clause legislation are suits in contract, or that contract-law

principles apply to all issues that they raise.”) (alterations in original) (quota-

tion marks omitted)). But the Court has made this point only to suggest that

the cause of action against funding recipients may be in some respects even

more limited in scope than contract law would indicate. See id. at 290 (noting

that past cases had invoked a contract analogy for the Spending Clause “only

as a potential limitation on liability”); Barnes, 536 U.S. at 186–87 (although not

“all contract-law rules apply to Spending Clause legislation,” contract law op-

erates to limit “the scope of conduct” giving rise to liability and the “scope of

damages remedies” available (emphasis omitted)). And as particularly rele-

vant here, the Court has clarified that “[w]e have not relied on the Spending

Clause contract analogy to expand liability beyond what would exist under

nonspending statutes.” Sossamon, 563 U.S. at 290 (emphasis added).

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17-13595 NEWSOM, J., Dissenting 55

Accordingly, it seems clear beyond peradventure that the govern-

ment has no cause of action in this case based in contract-law prin-

ciples.

So far as I can tell, all of the binding precedent concerning

the trio of statutes that (either directly or by adoption) use the term

“other means authorized by law” demonstrates that the federal

government’s right to sue violators of those statutes is rooted in—

and limited by—contract principles. To begin, this Circuit has long

recognized that the government can sue federal-funding recipients

under the Rehabilitation Act—again, a Spending Clause statute—

given the “contractual relationship” that attaches to “conditions of

accepting federal monies disbursed under the spending power.”

United States v. Bd. of Trustees for Univ. of Ala., 908 F.2d 740, 750

(11th Cir. 1990). We have similarly held that the government’s

right to sue under Title VI—based on that statute’s status as a “con-

tractual spending power provision”—does not extend to programs

and activities not receiving federal funding. United States v. Ala-

bama, 828 F.2d 1532, 1547–51 (11th Cir. 1987) (quotation marks

omitted). In the same vein, our predecessor court held that the

federal government can sue funding recipients under Title VI be-

cause of its “right to sue to enforce its contracts.” United States v.

Marion Cnty. Sch. Dist., 625 F.2d 607, 611 (5th Cir. 1980). Notably,

the court in that case emphasized that the federal government’s

claims, which it allowed to proceed, “were not intended to be as-

serted as independent causes of action, only as subsidiary to the

contract claim,” id. at 609 n.3, and it made clear that it was not

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56 NEWSOM, J., Dissenting 17-13595

“pass[ing] on the question” of whether the United States had an

“implied right of action under Title VI,” id. at 616–17. 2 In just the

same way, decisions from other circuits seem to recognize only

causes of action that arise out of contractual relationships. 3

2Camenisch v. Univ. of Texas, 616 F.2d 127 (5th Cir. 1980), and Shotz v. City

of Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003), both of which the panel

cited, are inapposite, as both concerned lawsuits initiated by private parties.

United States v. Fordice also concerned a lawsuit initiated by a private party,

and the federal government’s intervention into the case was justified by a con-

cern about federal funding. See 505 U.S. 717, 722 n.1, 723–24 (1992).

3 The Fifth Circuit decisions cited in the panel opinion held that the federal

government can sue federal-funding recipients under the Rehabilitation Act

for termination of funding, based on the funding recipient’s “contractual as-

surance that it would comply with Section 504.” United States v. Baylor Univ.

Med. Ctr., 736 F.2d 1039, 1041 (5th Cir. 1984); accord United States v. Harris

Methodist Fort Worth, 970 F.2d 94, 104 (5th Cir. 1992) (referring to enforce-

ment of Title VI against funding recipients). The Eighth Circuit decision cited

there concerned a suit brought by the federal government against a funding

recipient. See United States v. Lovett, 416 F.2d 386, 387 (8th Cir. 1969). So

too, the Second Circuit decision cited in the opinion concerned a suit brought

by the federal government against a funding recipient seeking the disclosure

of medical records. See United States v. Univ. Hosp., State Univ. of N.Y. at

Stony Brook, 729 F.2d 144, 148 (2d Cir. 1984). And the Sixth Circuit decision

cited there—a case under the Family Education Rights and Privacy Act’s anal-

ogous provision allowing “any other action authorized by law”—held that the

United States’ right to sue “in the absence of statutory authority” applies to

“Spending [C]lause legislation, when knowingly accepted by a fund recipient,”

and where the suit seeks to “enforce conditions imposed on the recipients of

federal grants.” United States v. Miami Univ., 294 F.3d 797, 808 (6th Cir. 2002).

The other six circuit-level decisions cited in the panel opinion—National Black

Police Ass’n, Inc. v. Velde, 712 F.2d 569 (D.C. Cir. 1983); Brown v. Califano,

627 F.2d 1221 (D.C. Cir. 1980); Miener v. Missouri, 673 F.2d 969 (8th Cir. 1982);

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17-13595 NEWSOM, J., Dissenting 57

Accordingly, the relevant caselaw identifies and concerns a

cause of action that has no application under the circumstances of

this case. The cases instead follow the logic of the particular statu-

tory schemes that underlie them and support the conclusion that

the government’s cause of action is limited to suits authorized by

principles of contract. Because the ADA isn’t a Spending Clause

statute, their logic just doesn’t translate.

C

Briefly, a few words in response to Judge Jill Pryor’s thought-

ful opinion concurring in the denial of rehearing en banc.

First, Judge Pryor asserts that my reading of Title II contra-

dicts clues that we can discern from “the entire statutory scheme

Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372 (10th Cir. 1981); Kling v.

County of Los Angeles, 633 F.2d 876 (9th Cir. 1980); and NAACP v. Med. Ctr.,

Inc., 599 F.2d 1247 (3d Cir. 1979)—all concerned suits brought by private plain-

tiffs.

So far as I can tell, only four courts ever—all district courts—have said

that either Title II, the Rehabilitation Act, or Title VI creates a freestanding

cause of action for the federal government without regard to whether a con-

tractual relationship existed. One did so in dicta, see United States v. Frazer,

297 F. Supp. 319, 322–23 (M.D. Ala. 1968), two said that such a suit could pro-

ceed only upon referral from a “funding agency,” see United States v. City &

Cty. of Denver, 927 F. Supp. 1396, 1400 (D. Colo. 1996); United States v. Vir-

ginia, No. 12-cv-00059, 2012 WL 13034148 at *2–3 (E.D. Va. June 5, 2012), and

the fourth thought the federal government’s freestanding cause of action fol-

lowed from “the plain language of [Title II] itself,” without any external “au-

thoriz[ation] by law,” see United States. v. Harris Cty., No. 16-cv-02331, 2017

WL 7692396 at *1 (S.D. Tex. Apr. 26, 2017). I’m not persuaded.

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58 NEWSOM, J., Dissenting 17-13595

in context.” Pryor Conc. Op. at 5, 8, 21–33. In particular, she says,

Title II was meant to “fill the gap” left by the Rehabilitation Act—

a Spending Clause statute—“by expanding the prohibition on disa-

bility discrimination to all state governmental entities, regardless

of whether the state program or activity said to be discriminatory

receives federal funding.” Id. at 24. In short, because Congress en-

acted Title II to “remedy th[e] inadequacy” of the Rehabilitation

Act’s limited application to funding recipients, it must have in-

tended Title II to have a broader reach. Id. at 23. And so, she con-

cludes—and this is where the rubber really meets the road—Title

II must be understood to authorize the Attorney General to bring

a lawsuit against any public entity, regardless of whether it receives

federal funding. Id. at 22. With respect, I just don’t think that Judge

Pryor’s conclusion follows from her premises.

I quite agree that Congress intended the ADA to have a

broader scope than the Rehabilitation Act. To that end, as Judge

Pryor repeatedly says, Congress “extended the scope of protection

afforded to individuals with disabilities by prohibiting any program

run by a public entity from engaging in disability discrimination,”

regardless of whether it receives federal funding. Id. at 11 (empha-

sis omitted); see also, e.g., id. at 22, 23, 24, 26 n.6. To be precise,

the ADA newly imposed substantive liability on “any State or local

government,” without regard to funding status. 42 U.S.C. § 12131.

It then carried over the “remedies” and “rights” available under Ti-

tle VI of the Civil Rights Act, which we all agree include a private

cause of action against non-funding-recipients. Id. § 12133; see also

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17-13595 NEWSOM, J., Dissenting 59

Barnes, 536 U.S. at 185. It then went even further and newly im-

posed liability on employers and places of public accommodation.

See 42 U.S.C. § 12111–12117; id. § 12181–12189. So if Congress

intended to “extend[] the scope of protection” against disability dis-

crimination through the ADA, mission accomplished. But it

doesn’t follow from that “exten[sion]” that Congress gave the fed-

eral government the authority to sue. We might wish that Con-

gress had taken that last step, but it undoubtedly has the preroga-

tive to proceed moderately. “[N]o legislation pursues its purposes

at all costs.” Rodriguez v. United States, 480 U.S. 522, 525–26

(1987) (per curiam).

In any event, a statute’s perceived “context” can’t override

its plain text. By its express terms, Title II gives the federal govern-

ment no more enforcement authority than it has under Title VI—

namely, a contract-based cause of action applicable only to funding

recipients. It may be that Congress “just stubbed its toe” in the

drafting process and failed to confer on the federal government a

more general right to sue, but even if that’s the case, “it’s not our

place or prerogative to bandage the resulting wound.” CRI-Leslie,

LLC v. Comm'r of Internal Revenue, 882 F.3d 1026, 1033 (11th Cir.

2018).

Second, and separately, Judge Pryor contends that my read-

ing of Title II “conflicts with Supreme Court precedent.” Pryor

Conc. Op. at 33. In particular, she says, my interpretation can’t be

squared with NCAA v. Smith, 525 U.S. 459 (1999). In that case, a

private plaintiff sued the NCAA under Title IX, which prohibits

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60 NEWSOM, J., Dissenting 17-13595

discrimination by educational programs “receiving Federal finan-

cial assistance.” 20 U.S.C. § 1681(a). The Supreme Court consid-

ered “whether a private organization that does not receive federal

financial assistance”—i.e., the NCAA itself—“is subject to Title IX

because it receives payments from entities that do”—i.e., its con-

stituent schools. Id. at 465. The Court held that because the NCAA

didn’t receive federal financial assistance, it wasn’t subject to Title

IX. Id. at 468. In a footnote, it addressed the plaintiff’s alternative

argument that, because she was a private citizen, the words “re-

ceiving Federal financial assistance” in Title IX might be inter-

preted more loosely. Id. at 467 n.5. The Court quickly dispatched

that contention: “[I]t would be anomalous to assume that Con-

gress intended the implied private right of action to proscribe con-

duct that Government enforcement may not check.” Id.

I take the Court to have meant only that a private cause of

action can’t of its own force expand the scope of liability beyond

the plain terms of the statute, not—as Judge Pryor suggests—that

the existence of a private right of action necessitates a correspond-

ing government cause of action, regardless of whether the statute

authorizes it. See Pryor Conc. Op. at 35. Congress, of course, can

decide whether any given statutory right will be enforced by pri-

vate plaintiffs, the federal government, or both. See, e.g., Dir., Off.

of Workers' Comp., 514 U.S. at 129. And more fundamentally, our

law is now clear that “[r]aising up causes of action where a statute

has not created them may be a proper function for common-law

courts, but not for federal tribunals.” Alexander, 532 U.S. at 287.

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17-13595 NEWSOM, J., Dissenting 61

IV

So it seems to me that on either reading of its opinion, the

panel’s decision is wrong. It also, I fear, comes at real cost to core

principles of federalism. The Supreme Court has recognized that

“our Constitution establishes a system of dual sovereignty between

the States and the Federal Government.” Gregory v. Ashcroft, 501

U.S. 452, 457 (1991); see also The Federalist No. 39, at 242 (James

Madison) (Clinton Rossiter ed., 1961) (stating that states retain “a

residuary and inviolable sovereignty”). The incidents and benefits

of the federal system are well-rehearsed, and there’s no point in re-

rehearsing them here. Suffice it to say that while “[t]he actual

scope of the Federal Government’s authority with respect to the

States has changed over the years, . . . the constitutional structure

underlying and limiting that authority has not,” New York v.

United States, 505 U.S. 144, 159 (1992), and that the “separation of

the two spheres is one of the Constitution’s structural protections

of liberty.” Printz v. United States, 521 U.S. 898, 921 (1997); see

also Gregory, 501 U.S. at 458 (“[A] healthy balance of power be-

tween the States and the Federal Government will reduce the risk

of tyranny and abuse from either front.”).

The upshot of the panel’s holding is that the Attorney Gen-

eral can enforce Title II of the ADA by suing state governments.

That’s a big deal. To see why, one need look no further than Geor-

gia’s settlement agreement with the Department of Justice in a sim-

ilar case. See Joint Motion to Enter the Parties’ Settlement Agree-

ment (Ex. A), United States v. Georgia, No. 1:10-cv-00249-CAP

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62 NEWSOM, J., Dissenting 17-13595

(N.D. Ga. filed October 19, 2010) [hereinafter Georgia Settlement

Agreement]. Without admitting to any of the alleged wrongdoing,

Georgia agreed to numerous substantive policy changes governing

how it would serve those with developmental disabilities and men-

tal illness. See Georgia Settlement Agreement at 5–25. Georgia

also agreed to allow an independent reviewer to determine—at

state expense—its compliance with the settlement. See id. at 27,

30–31 (providing that the state must maintain a fund containing at

least $100,000 from which payments for the reviewer would be

withdrawn). Additionally, the agreement gave the United States

“full access” to any persons, records, or materials “necessary to as-

sess the State’s compliance.” Id. at 27.

Georgia’s settlement agreement demonstrates the result of

allowing the Attorney General to enforce Title II—namely, tilting

the federal balance decisively in favor of the federal government.

The panel’s opinion, by sanctioning the Attorney General’s en-

forcement of Title II, could force other public entities (like Georgia

and Florida) to make a choice either (1) to enter into settlement

agreements, which not only impose monetary and resource costs

but also lead to federal oversight of local policy decisions, or (2) to

risk thousands (possibly millions) of dollars in litigation costs by

disputing liability or terms of compliance.

None of this is to say, of course, that the DOJ’s goals in en-

forcing Title II aren’t laudable, or that Congress can’t regulate

states in seemingly local matters (or even provide for federal en-

forcement, through lawsuits or otherwise). See, e.g., Garcia v. San

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17-13595 NEWSOM, J., Dissenting 63

Antonio Metro. Transit Auth., 469 U.S. 528, 555–56 (1985) (holding

that Congress could, through the Commerce Clause, prescribe

minimum wage and overtime rates under the Fair Labor Standards

Act for a local transit system). In the ever-delicate federal-state bal-

ance, the Supremacy Clause gives the federal government “a de-

cided advantage.” Gregory, 501 U.S. at 460 (citing U.S. Const., art.

VI, cl. 2). The point is simply that although the federal government

holds the upper hand, the wielding of its federal power against the

states cannot be taken lightly or casually inferred. See id. (stating

that the ability of Congress to “legislate in areas traditionally regu-

lated by the States . . . is an extraordinary power in a federalist sys-

tem . . . that we must assume Congress does not exercise lightly”);

id. at 464 (“[T]o give the state-displacing weight of federal law to

mere congressional ambiguity would evade the very procedure for

lawmaking on which Garcia relied to protect states’ interests.”

(quoting Laurence H. Tribe, American Constitutional Law § 6–25,

at 480 (2d ed. 1988))).

It’s up to the judicial branch to uphold our constitutional

structure by policing the limits of federal power. By reading Title

II’s enforcement provision to allow the Attorney General to subject

Florida to suit and thereby regulate its provision of services to its

residents, the panel’s decision sanctions DOJ encroachment on

Florida’s sovereign prerogatives—in the absence of any solid evi-

dence that Congress intended such a result. I don’t quibble with

the fact that Congress could regulate states in this regard if it

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64 NEWSOM, J., Dissenting 17-13595

wanted to. But we must presume that Congress wouldn’t do so

lightly—and certainly not impliedly.

* * *

The question here is not whether Title II of the ADA should

authorize the Attorney General to sue to enforce its terms but, ra-

ther, whether it does. And as I read the statute, it just doesn’t. In

concluding otherwise, the panel’s opinion either flouts Supreme

Court precedent, creates a nonexistent cause of action, or both—

and, in the doing, skews the federal-state balance. I remain of the

view that it is a mistake to allow the panel’s decision to stand with-

out reconsidering the important issues that it presents. Accord-

ingly, I respectfully dissent from the Court’s order denying en banc

rehearing.