explaining that “[a]s applied to the case before us, the ‘participation’ requirement of Title II serves to protect [the plaintiffs] due process right to a meaningful hearing ... ‘enforcing’ the due process right rather than ‘expanding’ it”
How later courts described this case
- explaining that “[a]s applied to the case before us, the ‘participation’ requirement of Title II serves to protect [the plaintiffs] due process right to a meaningful hearing ... ‘enforcing’ the due process right rather than ‘expanding’ it”
- holding that Congress did not properly abrogate Eleventh Amendment immunity in equal protection claims brought under Title II of the ADA, but did properly do so in due process claims brought under that provision
- holding that Title II does not abrogate immunity as enforcement of the Equal Protection Clause, but does abrogate immunity on specific facts as enforcement of the Due Process Clause
- holding that “Garrett ... does not foreclose a trial and verdict based on ... unreasonable exclusion from judicial proceedings based on disability in a due process-type claim”
Written by the judges who cited it.
The opinion
GILMAN, Circuit Judge,
concurring in the judgment, but dissenting from the composition of the en banc court.
Although I fully concur in the judgment of the court that upholds the constitutionality of Title II of the Americans with Disabilities Act, I find myself in the unusual and uncomfortable position of having to write separately because I believe that there is a procedural flaw in the composition of the en banc court. Specifically, I am of the opinion that 28 U.S.C. § 46 (c) (delineating which judges are eligible to sit on an en banc court) precludes Judge Merritt from participating in this case, despite language to the contrary in the version of this court’s Internal Operating Procedure (I.O.P.) 35(a) that existed on the date of oral argument.
The problem arises from the fact that, although Judge Merritt was an “active” judge when the request was made in December of 2000 to rehear this case en banc, he took “senior status” on January 17, 2001. 28 U.S.C. § 371 (b)(1) (defining a senior circuit judge as one who is “retired from regular, active service”). Judge Merritt was thus not an active judge at the time this case was orally argued on June 6, 2001, nor was he a member of the original three-judge panel assigned to this matter.
The applicable statute, 28 U.S.C. § 46 (c), as amended in 1996, provides in pertinent part as follows:
A court in banc shall consist of all circuit judges in regular active service ... except that any senior circuit judge of the circuit shall be eligible (1) to participate ... as a member of an in banc court *830 reviewing a decision of a panel of which such judge was a member, or (2) to continue to participate in the decision of a case or controversy that was heard or reheard by the court in banc at a time when such judge was in regular active service.
This court’s former I.O.P. 35(a), in contrast, read as follows:
The en banc Court is composed of all judges in regular active service at the time of a rehearing, any senior judge of the Court who sat on the original panel, and any judge who was in regular active service at the time a poll was requested on the petition for rehearing en banc. ...
(Emphasis added.)
In comparing § 46(c) with this court’s then-existing I.O.P. 35(a), one can immediately spot the discrepancy: the I.O.P. allowed a senior status judge to sit on an en banc case if the judge was active when the request for an en banc poll was made, but the statute requires a judge to still be active at the time the case is heard or reheard en banc. Although not controlling in the present case, this discrepancy has been resolved for future cases by this court adopting a new I.O.P. 35(a) on October 31, 2001. The new I.O.P. 35(a) reads as follows:
The en banc court is composed of (1) all judges in regular active service at the time of oral argument en banc or, if no oral argument en banc is held, on the date that the en banc court agrees to decide the case without oral argument, and (2) any senior judge of the Court who sat on the original panel. Only Sixth Circuit judges in regular active service may cast votes on a poll on the en banc petition itself. See 28 U.S.C. § 46 (c).
For the remainder of this opinion, I will be referring to I.O.P. 35(a) as it existed when this case was orally argued on June 6, 2001. Because I.O.P. 35(a) did not conform with § 46(c) until the revised version of the I.O.P. was passed on October 31, 2001, we are left to determine the proper status of one in the position of Judge Merritt who was active when the en banc poll was requested, but who took senior status before the case was orally argued.
The issue as I see it is not whether our I.O.P. controls over § 46(c). I do not believe that anyone seriously contests the principle that an act of Congress prevails over an inconsistent internal rule of court. Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 464 (6th Cir.1999) (“When a rule of court conflicts with a legislative act, the general rule is that the act controls.”). Rather, the only question is whether one can possibly reconcile this court’s I.O.P. with the statute by arguing that an en banc case is “heard or reheard” when the poll is requested rather than when the case is orally argued.
For the purpose of this decision, there is no relevant distinction between a case being heard en banc as opposed to being reheard en banc. A case is heard en banc in the rare situation when the whole court decides to take up an appeal directly, without the matter first being decided by a three-judge panel. In contrast, a case is reheard en banc in situations where the court grants a party’s petition for rehearing by the entire court after a three-judge panel has ruled adversely to that party. This case involves the more typical rehearing after a decision by a three-judge panel. For the sake of simplicity and clarity, however, I will confine further discussion to the issue of determining when a case is heard en banc. The same conclusion necessarily follows for a case reheard en banc.
Turning now to this key issue, I find no support for the proposition that a case is heard en banc when a poll is requested to determine whether the case should be con *831 sidered by the court as a whole. Polling is a procedural matter, not a decision on the merits of the case. Nor does such a proposition comport with the common understanding of what being “heard” means. Black’s Law Dictionary 725 (7th ed.1999) (defining a “hearing” as “[a] judicial session, usu[ally] open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying”).
In 1996, § 46(c) was amended to allow a senior judge “to continue to participate in the decision of a case or controversy that was heard or reheard by the court in banc at a time when such judge was in regular active service.” 28 U.S.C. § 46 (c); Pub.L. No. 104-175, § 1 . The legislative history reflects that the 1996 amendment to 28 U.S.C. § 46 (c) was proposed in order to resolve the ambiguity of whether a judge on active status when an en banc case is orally argued can continue to participate if he or she takes senior status before the opinion is issued. Senator Simon of Illinois stated the issue as follows: “The bill I introduce today would simply clarify that circuit judges who hear an en banc case as active judges may participate in the ultimate decision of the case even if they take senior status between the time the case is argued and the time it is decided.” 141 Cong. Rec. S2133 (daily ed. Feb. 3, 1995). Similarly, Representative Moorehead of California made the following observation:
[Section 46(c) ] has been interpreted to require a circuit judge in regular active service who has heard argument in an en banc case to case [sic, clearly a mistype of “cease”] participating in that case upon taking senior status. This problem leads to uncertainty in deciding who will be eligible to vote on the final disposition of an appeal and may create the perception that a judge is delaying release of an en banc opinion until a member of the en banc court takes senior status.
142 Cong. Rec. H8608 (daily ed. July 29, 1996).
Turning now to the matter at hand, I believe it quite clear that this case was “heard” on June 6, 2001. This was the date of oral argument, the date when the judges of the en banc court retired to discuss the merits following oral argument, and the date when we tentatively voted on the outcome of the case. In contrast, the request for a poll of the active judges in December of 2000 to vacate the ruling of the three-judge panel and consider the case en banc was not outcome-determinative. That action simply set the stage for the hearing on the merits that took place six months later.
Judge Merritt was no longer an active judge when the case was heard en banc (i.e., orally argued, discussed in conference, and tentatively decided) on June 6, 2001. He was therefore ineligible to sit as a member of the en banc court pursuant to the express terms of 28 U.S.C. § 46 (c), despite language to the contrary in this court’s then-existing I.O.P. 35(a). Expressed another way, our former I.O.P. 35(a) was void because it directly conflicted with the controlling statutory language of § 46(c). Memphis Planned Parenthood, Inc., 175 F.3d at 464 . In contrast, both Judge Norris (who took senior status on July 1, 2001) and Judge Suhrheinrich (who took senior status on August 15, 2001) are authorized by the language of § 46(c) to continue participating in this case, because they were both active judges when the matter was heard on June 6, 2001.
I reach this conclusion with great reluctance, both because I recognize that the validity of our former I.O.P. 35(a) has not been previously questioned in this case, and because I agree with the result reached in Judge Merritt’s opinion. Nor do I wish to impugn in any way Judge Merritt’s integrity or his good faith belief *832 that he is entitled to sit as a member of the en banc court. Based upon my analysis of § 46(c), however, I feel that I have no choice but to voice my disagreement with the composition of the en banc court in this case.