concluding that Olmstead only applies to “actual institutionalization” rather than the “risk of institutionalization”
How later courts described this case
- concluding that Olmstead only applies to “actual institutionalization” rather than the “risk of institutionalization”
- holding that Olmstead only applies to “actual institutionalization,” not “risk of institutionalization”
- holding that the risk of institution- alization was not an Olmstead violation
- “[W]e may not enhance the scope of a [rule] because we think it good policy or an implementation of [the agency’s] unstated will.”
Written by the judges who cited it.
The opinion
Case: 21-60772 Document: 00516902521 Page: 1 Date Filed: 09/20/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 20, 2023
No. 21-60772
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
The State of Mississippi,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CV-622
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Edith H. Jones, Circuit Judge:
Title II of the Americans with Disability Act (“ADA”) prohibits
“discrimination” against “qualified individual[s] with a disability.”
42 U.S.C. § 12132. The Act authorizes “any person alleging discrimination”
to sue. 42 U.S.C. § 12133 (emphasis added). The United States filed suit
against the state of Mississippi, alleging that its entire mental health care
system violated the “integration mandate” prescribed by 28 C.F.R.
§ 35.130(d) and reified in the Supreme Court’s decision, Olmstead v. L.C. ex
rel. Zimring, 527 U.S. 581, 119 S. Ct. 2176 (1999). The district court
conducted a trial, upheld the federal government’s novel theory of liability,
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and ordered not only sweeping modifications to the state’s system but also
the indefinite appointment of a monitor who, along with the federal
government and the court itself, would all oversee the system. This novel
plan of reconstruction fails on many levels. We REVERSE.
I.
In February 2011, the United States commenced an investigation of
Mississippi’s mental health system.1 This investigation was not prompted
any individual instance of discrimination against a person with serious mental
illness.2
During its investigation, the United States researched several facets
of the Mississippi mental health care system. The investigation included
interviews with state leaders, employees of community mental health
centers, and disabled persons. Various reports were prepared comparing
Mississippi’s use of community-based services relative to other states’
programs.
In December 2011, the United States Department of Justice notified
Mississippi that its investigation revealed the state was “unnecessarily
institutionalizing persons with mental illness” in violation of the ADA. The
letter of findings outlined the steps necessary for Mississippi to meet criteria
set out by the Department of Justice. In August 2014, Mississippi replied to
the United States in writing and outlined the steps it had taken to comply
_____________________
1
See http://www.msh.state.ms.us/DOJ_update.pdf (Aug. 15, 2011).
2
It is unclear why the federal government’s investigation was initiated. Nothing
in the record supports the United States’ statement in its complaint that it launched the
investigation because of a report of discrimination. In any event, the federal government
investigated the entire Mississippi mental health system, not the institutionalization or
treatment of any individual.
2
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No. 21-60772
with the recommendations. Nonetheless, the United States determined that
voluntary means were insufficient to secure compliance. In August 2016,
Mississippi was notified that a lawsuit would be filed against the state under
the ADA and CRIPA.3
As with its investigation of Mississippi, the United States’ suit was
not based on individual instances of discrimination. Rather, the federal
government charged that due to systemic deficiencies in the state’s operation
of mental health programs, every person in Mississippi suffering from a
serious mental illness was at risk of improper institutionalization in violation
of Title II.
To prove its claims, the United States chartered a study with a group
of six outside experts comprising two psychiatrists, a clinical social worker, a
psychologist, a nurse, and an occupational therapist. A statistician helped,
too. The experts interviewed 154 individuals from a pool of 3,951
Mississippians who had been admitted to state hospitals at least once during
a two-year period from 2015–17. 4 Based on the interviews and a review of
each interviewee’s hospital and outpatient records, the experts answered
four questions for each interviewee:
1. Would this patient have avoided or spent less time in the
hospital if reasonable community-based mental health services
had been available?
2. Is this patient at serious risk of further or future hospitalization
in a state hospital?
_____________________
3
Neither the DOJ nor district court relied on CRIPA as a basis for liability, and we
do not discuss that statute further.
4
Twenty-eight individuals were in state hospitals when the experts interviewed
them in 2018.
3
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3. Would this patient be opposed to receiving reasonable
community-based services?
4. What community-based services are appropriate for and would
benefit this patient?
These experts concluded that each interviewee would have avoided,
or spent less time in, a state hospital if he or she had been provided reasonable
community-based services. The experts further found that of the 122 persons
not living in an institution during their interviews in 2018, 103 (85%) were at
“serious risk” of being sent back to an institution. Of the 150 persons still
living, 149 were not opposed to receiving community-based care. Moreover,
based on solicited descriptions of community-based mental health services,
the experts found that the people in the sample inadequately utilized
community-based mental health services from Mississippi. The experts
additionally observed what they called a pattern of “cycling admissions,”
whereby about half of the 5,070 state hospital admissions from 3,951 patients
were repeat.
On September 3, 2019, following a four-week bench trial, the district
court held that Mississippi’s entire mental health system violated Title II of
the ADA because it placed every person with a severe mental illness at risk
of unjustified institutionalization. United States v. Mississippi, 400 F. Supp.
3d 546, 579 (S.D. Miss. 2019).5 The district court found that “Mississippi
has relatively more hospital beds and a higher hospital bed utilization rate
than most states.” Id. at 564. And the study, which the court considered
against the test established by a plurality of the Supreme Court in Olmstead,
_____________________
5
The court was unconcerned that this case was filed by the United States rather
than any affected individual plaintiff, as it held the federal government had “standing” to
sue.
4
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527 U.S. 581, 119 S. Ct. 2176, showed that “Mississippi’s system of care for
adults with [serious mental illness] violates the integration mandate of the
ADA.” Id. at 576. The district court considered and rejected Mississippi’s
defense that requiring the state to expand access to its existing community-
based services would “fundamentally alter” its mental health system. Id. at
576–77.
The court did not immediately enter a remedial order. Instead, it
appointed a special master to assist the court and the parties in attempting to
reach a settlement. For two years, the parties negotiated, while Mississippi
increased the availability of its community-based programs.
Eventually, when pressed by a court order, the parties and the special
master each submitted a proposed remedial plan. On July 14, 2021, after a
hearing, the district court adopted the special master’s proposed remedial
plan. In September 2021, the district court issued a remedial injunctive
order, appointed a monitor, and entered a final judgment.
The seven-page remedial order begins with this broad mandate: “the
State of Mississippi must develop and implement effective measures to
prevent unnecessary institutionalization in State Hospitals.” The order
mainly tasks Community Mental Health Centers with implementing this
mandate by identifying those with serious mental illness, screening them,
coordinating their care, and diverting them from unnecessary hospitalization.
The district court’s order, inter alia, dictates the quantity of
community-based mental health services, how the mental health agencies
should implement them, and outlines several policy priorities the agencies
should follow. The order requires the state to fund certain programs,
mandates staff increases and budget add-ons, and even seeks influence over
state chancery courts.
5
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No. 21-60772
Ostensibly to track Mississippi’s compliance, the order requires
monthly and annual reports and quarterly hearings. Mississippi must post
various data on a publicly available website and submit them to the DOJ and
the court-appointed monitor. On top of all these specific measures,
Mississippi must create an “implementation plan” with input from the
Department of Justice and the monitor.
The remedial order terminates only when Mississippi “has attained
substantial compliance” with each paragraph of the seven-page order and
“maintain[ed] that compliance for one year as determined by this Court.”
Mississippi contends it has substantially complied with the court’s original
liability order. The United States withdrew its response to the state’s
showings.
Mississippi moved for partial stay of the order pending appeal without
opposition. The district court granted the motion. This appeal followed.
II.
This court reviews the district court’s findings of fact for clear error
and legal determinations de novo. See Deloach Marine Servs., L.L.C. v.
Marquette Transp. Co., 974 F.3d 601, 606 (5th Cir. 2020). “When, as here, a
court’s factual finding ‘rest[s] on an erroneous view of the law’, its factual
finding does not bind the appellate court.” Aransas Project v. Shaw, 775 F.3d
641, 658 (5th Cir. 2014) (quoting Pullman–Standard v. Swint, 456 U.S. 273,
287, 102 S. Ct. 1781, 1789 (1982)).
III.
Mississippi contends that (1) the federal government has not proved a
cause of action for discrimination in violation of the ADA; (2) the court erred
in rejecting its defense that remediation pursuant to the federal government’s
claim would require an impermissible “fundamental alteration” of its
6
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existing programs, 28 C.F.R. § 35.130(b)(7)(i); and (3) the court’s remedial
order vastly exceeds the scope of claimed liability. Finding merit in the first
and third contentions, we need not address the second.6
Title II of the ADA provides that “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.” 42 U.S.C.
§ 12132. Pursuant to this provision, a seminal “integration mandate”
appears in the regulation that requires a “public entity [to] administer
services, programs, and activities in the most integrated setting appropriate
to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
In a case brought by two people then institutionalized for mental illness who
sought to be discharged to community care facilities, the Supreme Court
explored the contours of these rules. For present purposes, it suffices to state
that according to Olmstead, “discrimination” occurs when an individual is
“unjustifi[ably]” institutionalized and thereby denied the benefit of the most
“integrated setting” available in the community for which the state’s
treating professionals deem him suited. Olmstead, 527 U.S. at 599–600,
119 S. Ct. at 2187.
Nothing in the text of Title II, its implementing regulations, or
Olmstead suggests that a risk of institutionalization, without actual
institutionalization, constitutes actionable discrimination. Yet the district
_____________________
6
The Eleventh Circuit recently debated at length, on denial of rehearing en banc,
whether the federal government has any authority under Title II to sue a state, where the
statute confers a cause of action only on any person alleging disability discrimination.
42 U.S.C. Sec. 12133. See United States v. Sec’y., Florida Agency for Health Care Admin.,
21 F.4th 730 (11th Cir. 2021). The court approved the panel decision holding in the
affirmative. United States v. Florida, 938 F.3d 1221 (11th Cir. 2019). That difficult issue is
not presented to us on appeal.
7
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court, following the lead of the federal government, premised the state’s
liability under Title II on a study conducted by an outside team of experts
that suggested all citizens suffering from serious mental illness were “at risk”
of being institutionalized unjustifiably. Mississippi, 400 F. Supp. 3d at 549.
And the supporting survey covered only 154 people out of a population of
about 4,000 institutionalized in a two-year period.
The federal government defends the district court’s bold ruling legally
by reference to its interpretation of the statute and regulations, Olmstead, and
the decisions of other courts. We will discuss its arguments in turn.
Preliminarily, however, the federal government contends as appellee
that its case is not based on the “risk” of institutionalization but on the state
system’s repeated “cycling” of mentally ill patients in and out of state
hospitals. Such “cycling,” it contends, constitutes discrimination because it
causes periodic, unjustified segregation of the affected individuals from their
communities in the absence of adequate local treatment programs. But the
district court embedded “cycling” in its discussion of the “risk of
institutionalization,” and that description of the claim is more accurate. If a
mentally disabled person is not currently institutionalized (as was the case
with over 80% of the individuals surveyed), he is not separated from the
community, even though he may have previously been in a state hospital.
There is at best a “risk” that he will be re-committed. This “risk” is the
bedrock of the government’s claim at trial and the district court’s ruling.
As noted, the ADA does not define discrimination in terms of a
prospective risk to qualified disabled individuals. In stating that no individual
shall be “excluded,” “denied,” or “subjected to discrimination,” the
statute refers to the actual, not hypothetical administration of public
programs. 42 U.S.C. § 12132. Similarly, the integration mandate does not
speak to “risks” of maladministration. Nevertheless, the first court of
8
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appeals that enabled an “at risk” theory of disability discrimination found the
language of the statute no barrier. Fisher v. Oklahoma Health Care Auth.,
335 F.3d 1175, 1181 (10th Cir. 2003). It concluded that neither the statute nor
the regulation “prohibited” a claim that a state’s reduction of plaintiffs’ drug
benefits would place them “at risk” of being institutionalized as the only
remaining means to obtain medications. Id. at 1181–82.7 This reasoning gets
statutory interpretation exactly backwards. See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 93–100 (2012)
(describing the omitted-case canon). Courts must follow the language
Congress has enacted; we may not enhance the scope of a statute because we
think it good policy or an implementation of Congress’s unstated will. Id.
Thus, “at risk” claims of ADA discrimination are not within the statutory or
regulatory language.
Further, a theory framed on the “risk of unjustified
institutionalization” is particularly inapt in the face of Mississippi’s legal
regime for commitment to hospitals for the mentally disabled. The only way
to be admitted to a state mental health hospital in Mississippi is through a
judicial commitment proceeding. The chancery court renders its decision
after a hearing and evaluation by a court-appointed physician, a medical
doctor, and a psychologist.8 See generally C.W. v. Lamar Cnty., 250 So. 3d
_____________________
7
Other courts have latched onto this reasoning. See Davis v. Shah, 821 F.3d 231
(2d Cir. 2016); Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013); Waskul v. Washtenaw Cnty.
Cmty. Mental Health, 979 F.3d 426 (6th Cir. 2020); Radaszewski ex rel. Radaszewski v.
Maram, 383 F.3d 599 (7th Cir. 2004); Steimel v. Wernert, 823 F.3d 902 (7th Cir. 2016);
M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir. 2011), opinion amended and superseded on denial of
reh’g, 697 F.3d 706 (9th Cir. 2012).
8
The chancery court must decide whether clear and convincing evidence exists
that the individual is a person with a mental illness or intellectual disability. Miss. Code
Ann. § 41-21-73(4), § 41-21-61(f) and § 41-21-61(g). The court must also determine if
institutionalization is the least restrictive means to meet the patient’s needs, § 41-21-73(4),
9
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1248, 1251 (Miss. 2018). After commitment, the director of the commitment
facility can discharge the individual upon certifying to the court that the
patient no longer poses a substantial threat to himself or others, that the
patient may be treated in a less restrictive environment, or that adequate
facilities or treatment are unavailable. Miss. Code. Ann. § 41-21-87. The
individual himself can move for discharge through a petition for writ of
habeas corpus. § 41-21-89. The “least restrictive environment” for and
individual’s treatment is a significant component of these statutes. This
carefully crafted structure—ignored by the district court and the federal
government—makes it hubristic for a federal court to predict the “risk” that
an “unjustified” civil commitment process will commence against any
individual, much less that the decisions either to institutionalize or discharge
would ultimately be discriminatory under the ADA.9
The federal government and the district court also purport to rely on
a guidance document originally adopted by the DOJ in the wake of Olmstead,
which asserted that the “serious risk of institutionalization” is sufficient to
establish an ADA claim. U.S. Dep’t of Justice, Statement of the Department
of Justice on the Integration Mandate of Title II of the ADA and Olmstead v.
L.C., https://www.ada.gov/olmstead/q&a_olmstead.htm. This argument
fails entirely. In its own terms, the guidance was “not intended to be a final
agency action, has no legally binding effect, and may be rescinded or modified
. . . .” Id. See also Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 228 (D.C.
_____________________
list each alternative disposition and explain why they are unsuitable, § 41-21-73(6), and
state its facts and conclusions of law, § 41-21-73(6).
9
The district court agreed that this was a “valid point,” but failed to address its
ramifications, noting only that the state could nonetheless “advocate for a change in the
commitment process and secure state hospital clinicians a right to appeal.” Mississippi,
400 F. Supp. 3d at 572 n.34.
10
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Cir. 2007) (Non-binding disclaimers are “relevant to the conclusion that a
guidance document is non-binding.”). The guidance never underwent notice
and comment under the APA to become a binding regulation. As
Judge Readler persuasively explained, it is too late in the day for courts to
hold that any agency guidance document is owed Auer deference. Waskul v.
Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 470 (6th Cir. 2020)
(Readler, J. concurring in part and dissenting in part). On the contrary, the
Supreme Court recently made plain that “the possibility of deference [to an
agency’s interpretation of its own regulation] can arise only if a regulation is
genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019). As a
result, several court decisions that upheld such claim largely based on the
guidance document have been superseded by Kisor.10
For a number of reasons, the Olmstead decision supplies no basis for
an at-risk claim like that litigated en masse in this case.11 Considering the text
of Title II and the integration mandate, the Supreme Court held that
“unjustified isolation” of an individual in an institution could constitute
discrimination under the ADA and the integration mandate. 527 U.S. at 587,
119 S. Ct. at 2181.12 But the case is significantly different on its facts. The
Olmstead plaintiffs had been voluntarily institutionalized in Georgia for
mental disabilities, but although each of their treating physicians had
recommended their release to community care facilities, the state failed to
_____________________
10
See Steimel, 823 F.3d at 911; Davis, 821 F.3d at 263; Pashby, 709 F.3d at 322;
Dreyfus, 663 F.3d at 1117–18.
11
Justice Kennedy’s concurrence in the judgment on narrower grounds supplied
the judgment’s fifth and controlling vote. See Marks v. United States, 430 U.S. 188, 193,
97 S. Ct. 990, 993 (1977).
12
The petitioner did not challenge, and the Court did not address, the validity of
the Attorney General’s regulations. Olmstead, 527 U.S. at 592, 119 S. Ct. at 2183.
11
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release them. Here, not one individual’s treating physician testified about
the “justifiability” of that person’s past institutionalization,13 much less a
“risk” that the person would be “unjustifiably institutionalized” in the
future. The Olmstead case turns on actual “unjustifiable
institutionalization,” not on hypothetical future events. On that score alone,
Olmstead does not support the federal government’s theory of the case.
Olmstead also bears scrutiny because Justice Kennedy’s special
concurrence supplied the decisive fifth vote for the judgment.
Justice Kennedy did not disapprove the plurality’s three-part test for
discrimination on the basis of “unjustifiable isolation.” The three-part test
asks whether (1) “the State’s treatment professionals have determined that
community placement is appropriate” for the individual;14 (2) the “affected
individual” agrees with the treating professional’s recommendation for
community care; and (3) the reasonableness of mandating an
accommodation, “taking into account the resources available to the State and
the needs of others with mental disabilities.” Olmstead, 527 U.S. at 587,
119 S. Ct. at 2181. A claim of system-wide risk of institutionalizing some
_____________________
13
As to the individuals covered by the federal government’s expert survey who
were institutionalized at the time of suit, there was also no opinion from a state or treating
physician about them.
14
See also Olmstead, 527 U.S. at 602, 97 S. Ct. at 2188 (“[T]he State generally may
rely on the reasonable assessments of its own professionals in determining whether an
individual ‘meets the essential eligibility requirements’ for habilitation in a community-
based program.”); Id. at 610, 2192 (Kennedy, J. concurring); cf. Harrison v. Young, 48 F.4th
331, 342 (5th Cir. 2022) (finding no clear error at the preliminary injunction stage for the
district court to consider the opinion of plaintiff’s doctors when evaluating the state
professional’s credibility).
12
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unspecified group of patients is incompatible with these factors, the first two
of which are necessarily patient-specific.15
But Justice Kennedy’s views on the first prong of the test emphasize
the plurality’s quotation that “the State generally may rely on the reasonable
assessments of its own professionals in determining whether an individual
‘meets the essential eligibility requirements’ for habilitation in a community-
based program.” Id. at 581, 2191 (internal citation omitted). Justice Kennedy
rightly observes that “for a person with severe mental illness who has no
treatment the most dreaded of confinements can be the imprisonment
inflicted by his own mind . . . .” Id. at 610, 2191. He goes on:
It would be unreasonable, it would be a tragic event, then, were
the Americans with Disabilities Act of 1990 (ADA) to be
interpreted so that States had some incentive, for fear of
litigation, to drive those in need of medical care and treatment
out of appropriate care and into settings with too little
assistance and supervision. The opinion of a responsible
treating physician in determining the appropriate conditions
for treatment ought to be given the greatest of deference. . . .
Justice GINSBURG’s opinion takes account of this
background. . .
It is of central importance, then, that courts apply today’s
decision with great deference to the medical decisions of the
responsible, treating physicians and, as the Court makes clear,
with appropriate deference to the program funding decisions of
state policymakers.
Id. at 610, 2191–92.
_____________________
15
Indeed, the experts’ conclusion that the surveyed individuals who were not then
institutionalized “agreed” they would prefer community-based services proves very little.
13
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No. 21-60772
On the third Olmstead factor, as the plurality noted, the ADA does not
“require[] States to provide a certain level of benefits to individuals with
disabilities” or impose on “States a ‘standard of care’ for whatever medical
services they render.” Id. at 603 n.14, 2188 n.14 (internal quotation marks
and citations omitted); Id. at 597, 2185 (reiterating that it “recognize[s] . . .
the States’ need to maintain a range of facilities for the care and treatment of
persons with diverse mental disabilities, and the States’ obligation to
administer services with an even hand”). Justice Kennedy added that,
“[g]rave constitutional concerns are raised when a federal court is given the
authority to review the State’s choices in basic matters such as establishing
or declining to establish new programs.” Id. at 612-13, 2193 (Kennedy, J.,
concurring).
Together, Justice Kennedy’s concurrence and the plurality opinion
acknowledge how hard it is to assess and provide “appropriate” treatment
with an “even hand” toward all beneficiaries of mental health care in systems
with finite resources. Because Olmstead’s facts produced a facially easy,
individualized case for discrimination under the Court’s test, it is difficult to
extrapolate to the institution-wide challenges levied by the federal
government against Mississippi’s system. Without further parsing these
complex opinions, however, a couple of relevant conclusions present
themselves. Justice Kennedy emphasizes the importance of obtaining
treating or state physicians’ opinions for each individual, and the federalism
costs inherent in federal courts’ second-guessing or overseeing states’
allocation of resources. The plurality emphasizes that the regulation
promoting “reasonable modifications” of services means “reasonable.”
Federal courts must tread lightly when evaluating a claim of “unjustified
isolation” of the mentally disabled.
The state is thus correct in contending that Olmstead cannot support
a mandate for court-superintended institution-wide changes based on the
14
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No. 21-60772
“risk of institutionalization” from a survey “generalizing” from about 150
mentally ill individuals to a group of nearly 4,000.16 Although
“generalizations” drawn from a patient survey may be relevant to a state in
assessing its own programs, they do not suffice to prove that individuals
suffered “unjustified isolation” en masse. But the district court and the
federal government extended Olmstead in reliance on decisions from a
number of circuits. Are all those cases wrong? We need not say, because
they are all distinguishable or unreliable legally.
All of the previous “at risk” cases consider plaintiffs’ individual or
class claims for personal care services or medically necessary items pursuant
to Medicaid. Various plaintiffs alleged that changes to state programs might
cause recipients to be deprived of subsidized personal care providers,17 or
drug prescriptions,18 or items required for mobility,19 and they might find
themselves “at risk” of institutionalization. Not one of these cases was
brought by the federal government with the intent of completely reworking
state benefit programs. And tragic as some of these fact patterns may be,
none involved the difficult questions about “appropriate” individualized
mental health treatment that were discussed in Olmstead and that are present
here. Likening those cases factually to the present case involves a category
error: what a physically disabled person needs to maintain life and health is
_____________________
16
In fact, while the United States’ study included twenty-eight individuals in state
hospitals, this suit was not commenced based on any instances of discriminatory treatment
in contravention of Title II, nor was individualized proof of “unjustified isolation” offered.
17
Pashby, 709 F.3d at 313; Waskul, 979 F.3d at 435; Radaszewski, 383 F.3d at 600;
Steimel, 823 F.3d at 906; Dreyfus, 663 F.3d at 1102.
18
Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1177–78 (10th Cir. 2003).
19
Davis, 821 F.3d at 242.
15
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No. 21-60772
not subject to the unpredictable and varied symptoms and needs of a patient
who manifests serious mental illness. The consequences of providing
personal care services for eight hours a day versus twenty-four hours, or
providing or withholding compression stockings, as in some of the former
cases, are susceptible of quantification and indeed, generalization.
“Appropriate” treatment of those with serious mental illness, as Olmstead
clearly understood, must be individualized. Thus, even if there is a bona fide
claim for Title II disability discrimination based on a “risk of isolation”
despite the absence of explicit statutory or regulatory support, these other
cases are significantly factually distinguishable.
Legally, nearly all of the cases rely heavily, but mistakenly, on the DOJ
guidance promoting “at risk” Title II discrimination claims.20 See Steimel v.
Wernert, 823 F.3d 902, 911 (7th Cir. 2016) (applying the pre-Kisor standard
to defer to the DOJ’s guidance document); Davis v. Shah, 821 F.3d 231, 263
(2d Cir. 2016) (same) (DOJ’s guidance interpreting the integration mandate
“is controlling unless plainly erroneous or inconsistent with the regulation”
(internal quotation marks omitted))21; Pashby v. Delia, 709 F.3d 307, 322 (4th
Cir. 2013) (“[W]e are especially swayed by the DOJ’s determination that
‘the ADA and the Olmstead decision extend to persons at serious risk of
institutionalization or segregation and are not limited to individuals currently
in institutional or other segregated settings.’” (quoting the guidance
_____________________
20
The one case the district court cited that does not rely on the nonbinding
guidance holds, with little elaboration, that “there is nothing in the plain language of the
regulations that limits protection to persons who are currently institutionalized.” Fisher,
335 F.3d at 1181. As explained previously, this reasoning is at odds with sound statutory
interpretation. Title II unambiguously covers only those “subjected to discrimination by
any such entity,” not those who might be at risk of that discrimination.
21
Pursuant to Kisor, 139 S. Ct. at 2414, there is no question that the guidance
extends, rather than enforces the otherwise unambiguous statute and regulations.
16
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No. 21-60772
document)); M.R. v. Dreyfus, 663 F.3d 1100, 1117–18 (9th Cir. 2011), opinion
amended and superseded on denial of reh’g, 697 F.3d 706 (9th Cir. 2012)
(“DOJ’s interpretation is not only reasonable; it also better effectuates the
purpose of the ADA to provide clear, strong, consistent, enforceable
standards addressing discrimination against individuals with disabilities.”
(internal quotation marks omitted)).
More recently, the Sixth Circuit joined the others explaining that it,
too, was persuaded by the DOJ guidance that the “risk of”
institutionalization could be discriminatory. Waskul, 979 F.3d at 461. The
court found “a contrary interpretation is unreasonable because the
integration mandate’s ‘protections would be meaningless if plaintiffs were
required to segregate themselves by entering an institution before they could
challenge an allegedly discriminatory law or policy that threatens to force
them into segregated isolation.’” Id. (quoting Fisher, 335 F.3d at 1181). Yet,
as Judge Readler points out, “the more customary practice is that a definitive
harm, not just the ‘risk’ of one, is needed before legal action is ripe. See
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–49 (2016). At the very least, the
risk of harm must be ‘certainly impending.’” Id. at 471 (Readler, J.
concurring in part and dissenting in part) (quoting Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 409, 133 S. Ct. 1138, 1147 (2013)). Not only that, but the
court majority’s characterization essentially concedes that those plaintiffs
were not currently “forced into isolation” and therefore were not subjected
to discrimination at the time they filed suit.
Citing all of the above authorities for all the wrong propositions, the
district court held that the United States satisfied each of the Olmstead
factors. It found that the outside experts (1) “determined that the
individuals they interviewed would be appropriate for community-based
services;” (2) “found that everyone they interviewed, except for one
individual, was not opposed to treatment in the community;” and
17
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No. 21-60772
(3) “showed that providing community-based services can be reasonably
accommodated within Mississippi’s existing mental health system.”
Mississippi, 400 F. Supp. 3d at 575–76.
The court also acknowledged that the state has continuously made
progress toward improving its community-based treatment programs. But
critically, it found that Mississippi violated Title II by moving too slowly to
adjust its mental health system toward community care. Moreover, when
determining to appoint a special master to oversee timely compliance with
the changes the court foresaw, the court stated, “[t]he discrimination will
end only when every Mississippian with SMI has access to a minimum bundle
of community-based services that can stop the cycle of hospitalization.”
Both of these rationales—that the state was moving too slowly, and that only
an added bundle of community services will stop the cycle—are inapposite.
In the first instance, the court cited only one case to chastise the
state’s timing of reforms. But there, the state of Pennsylvania had not disputed
that the patients satisfied an Olmstead claim because they were residing in a
state hospital (many class members for over ten years). Frederick L. v. Dep’t.
Pub. Welfare, Pa., 364 F.3d 487, 493 (3d Cir. 2004). “Timing” only became
an issue because years after conceding the requirement to move patients to
community placements, the state had made little progress. In this case, of
course, the state did not concede liability, so “timing” could not even begin
to be an issue unless the district court’s liability judgment were to become
final.
Further, the court’s pushing deinstitutionalization as the solution for
all afflicted Mississippians is contrary to Olmstead. The Supreme Court
explicitly held that remedying Title II discrimination does not require
deinstitutionalizing mentally disabled people except where, in the opinion of
treating or state physicians, that is “appropriate.” Olmstead, 527 U.S. at 587,
18
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No. 21-60772
119 S. Ct. at 2181. No evidence in this record establishes any individual was
“inappropriately” committed or held in a hospital beyond the opinion of the
state’s or treating physicians.
Finally, because the federal government’s suit seeks to rework the
entire Mississippi mental health system rather than protect individuals from
“unjustified isolation” based on the opinion of state or treating physicians,
the government’s “at risk” theory effectively demands a certain standard of
care with a certain level of benefits. See id. at 612–13, 2193 (Kennedy, J.,
concurring) (warning against courts making “political judgments” on “how
much to allocate to treatment of [certain] diseases and disabilities” because
“[g]rave constitutional concerns are raised when a federal court is given the
authority to review the State’s choices in basic matters such as establishing
or declining to establish new programs”). As the next section of this opinion
demonstrates, the “remedy” ordered by the district court, were liability to
be upheld, radically modifies the state’s facilities, resources, and procedures,
but says nothing about afflicted individuals. Divorced from the
individualized determination of discrimination that Olmstead approved, this
“at risk” theory “at bottom, is simply a request for more . . . funding,
something the ADA does not permit.” Waskul, 979 F.3d at 471 (Readler, J.
concurring in part and dissenting in part) (citing Radaszewski ex rel.
Radaszewski v. Maram, 383 F.3d 599, 608 (7th Cir. 2004) (internal citation to
Olmstead, 527 U.S. at 603 n. 14, 119 S. Ct. 2188 n. 14)).
The possibility that some un-named individual with serious mental
illness or all such people in Mississippi could be unjustifiably
institutionalized in the future does not give rise to a cognizable claim under
Title II. Nor does such a vague and standardless theory license courts under
the ADA to rework an entire state’s mental health system. The government
did not prove that the state of Mississippi violated Title II pursuant to the
19
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No. 21-60772
statute, regulations, or Olmstead as properly construed. The district court
was wrong to hold otherwise.
IV.
Even if the United States proved a discrimination claim under Title II,
the district court’s institutional reform injunction was overly broad.
“Injunctions must be narrowly tailored within the context of the
substantive law at issue to address the specific relief sought.” E.T. v. Paxton,
19 F.4th 760, 769 (5th Cir. 2021) (citing Scott v. Schedler, 826 F.3d 207, 211
(5th Cir. 2016) (holding that the district court’s injunction preventing
enforcement of executive order prohibiting local governmental entities from
imposing mask mandates was overly broad to remedy harms inflicted on
seven plaintiffs); see also Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 713,
715 (1974) (“[T]he specificity provisions of Rule 65(d) are no mere technical
requirements. The Rule was designed to prevent uncertainty and confusion
on the part of those faced with injunctive orders, and to avoid the possible
founding of a contempt citation on a decree too vague to be understood”).22
“This means that an injunction cannot ‘encompass more conduct than was
requested or exceed the legal basis of the lawsuit.’” Paxton, 19 F.4th at
769 (quoting Schedler, 826 F.3d at 214); Milliken v. Bradley, 433 U.S. 267,
282, 97 S. Ct. 2749, 2758 (1977) (“[F]ederal court decrees exceed
_____________________
22
Federal Rule of Civil Procedure Rule 65(d) requires: “Every order granting an
injunction and every restraining order . . . (A) state the reasons why it issued; (B) state its
terms specifically; and (C) describe in reasonable detail—and not by referring to the
complaint or other document—the act or acts restrained or required.”
20
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No. 21-60772
appropriate limits if they are aimed at eliminating a condition that does not
violate the [law] or does not flow from such a violation.”).23
Title II imposes a single obligation on Mississippi: It may not
discriminate against individuals with mental disabilities. This means
Mississippi cannot unjustifiably isolate those with mental disabilities.
Olmstead, 527 U.S. at 587, 119 S. Ct. at 2181. As we have established, there
is no evidence that Mississippi discriminated against anyone. But had it done
so, the district court’s institutional reform injunction far exceeded what
could conceivably be necessary to comply with the statute.
Program by program, the seven-page single-spaced decree dictates in
paragraphs two through eleven the quantity of community-based services to
be provided by each of nine separate types of mental health agencies and how
they should be implemented. For example, as to fourteen separate service
regions in Mississippi, the order requires “one Mobile Crisis Team in each
Region,” but one Region “will sustain two Mobile Crisis Teams.”
In many instances, the order requires the state to fund certain
programs and sets minimum staffing levels. For example, in paragraph five
it orders the state to “fund Crisis Residential Services” in one of the regions,
which must “have the capacity to serve at least 12 persons at any given time.”
Similarly, in paragraph eleven it states that “Mississippi [must] fund an
additional 250 . . . housing vouchers in FY 22 and an additional 250 . . .
housing vouchers in FY 23 and sustain funding for these services.” In
_____________________
23
See also ODonnell v Harris Cnty., 892 F.3d 147, 163 (5th Cir. 2018) (ODonnell I)
(overruling in part an overbroad district court institutional injunction); ODonnell v.
Goodhart, 900 F.3d 220, 224–26 (5th Cir. 2018) (ODonnell II) (overruling further the
overbroad institutional injunction); Daves v. Dallas Cnty., 22 F.4th 522, 540 (5th Cir.
2022) (en banc) (overruling ODonnell I in part); and Daves v. Dallas Cnty., 64 F.4th 616,
631 (5th Cir. 2023) (en banc) (overruling ODonnell I).
21
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No. 21-60772
paragraph twelve, it requires Mississippi to allocate $200,000 annually for a
medication-assistance fund. In paragraph eight, the order mandates staffing
increases: “Mississippi will fund and sustain 35 full time [Intensive
Community Support Specialists].”
In paragraph thirteen, the order demands that Mississippi attempt to
divert civilly committed individuals from state hospitals. In paragraph
fourteen, the order turns Olmstead on its head. It essentially requires
Mississippi defer to the federal government’s outside professionals instead
of the patients’ treating physicians: It requires Mississippi to contact each of
the 150 individuals in the experts’ survey, screen each for eligibility for
community-based services, and offer each appropriate services for which
they are eligible.
In paragraphs fifteen and seventeen, the order requires Mississippi to
implement several new measures when discharging patients from state
hospitals. Paragraph sixteen requires that Mississippi take additional steps
for patients readmitted to state hospitals even though admission to a state
hospital requires state chancery courts to enter civil commitment orders.
And paragraph nineteen requires Mississippi to “provide technical
assistance to providers including competency-based training, consultation,
and coaching.”
The order even seeks influence over state chancery courts, whose
adjudications constitute the exclusive means of civil commitment to state
hospitals. In paragraph eighteen, the order requires the state to “provide the
chancery courts in each county with an annual overview of mental health
services provided in their area, including alternatives to civil commitment to
State Hospitals.”
To track Mississippi’s compliance, the order, in paragraphs twenty
through twenty-two, requires monthly and annual reports, quarterly
22
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No. 21-60772
hearings, and an analysis of compliance status. Paragraph twenty-four
requires Mississippi to post various data on a publicly available website and
submit them to the DOJ and the court-appointed monitor. Paragraph twenty-
three requires Mississippi to “design, with the participation of the DOJ and
the Monitor, a Clinical Review Process to assess the adequacy of services
received by a small sample (e.g., 100-200) of individuals receiving Core
Services and/or State Hospital care.”
On top of all these specific measures, paragraphs twenty-five and
twenty-six require Mississippi to create an “implementation plan” with
input from the Department of Justice and the monitor.
Sweeping institution-wide directives like those at issue here are never
“narrowly tailored” to remedy individual instances of discrimination. M. D.
by Stukenberg v. Abbott, 907 F.3d 237, 271 (5th Cir. 2018) (“[I]nstitutional
reform injunctions are disfavored, as they ‘often raise sensitive federalism
concerns’ and they ‘commonly involve[ ] areas of core state
responsibility.’”) (quoting Horne v. Flores, 557 U.S. 433, 450, 129 S. Ct. 2579,
2593 (2009)) (holding injunction mandating sweeping changes to Texas’s
foster care system overly broad); cf. Valentine v. Collier, 956 F.3d 797, 806
(5th Cir. 2020) (“[M]icromanagement, enforced upon threat of contempt,
does not reflect the principles of comity commanded by the PLRA”).
Indeed, individual instances of discrimination were not proven here.
Furthermore, the order has a broad mission with an elusive target.
The remedial order commences by requiring that “the State of Mississippi
. . . develop and implement effective measures to prevent unnecessary
institutionalization in State Hospitals.”24 According to paragraph twenty-
_____________________
24
The order designates the Community Mental Health Centers as the entity
responsible for preventing discrimination in each region.
23
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No. 21-60772
seven, the order terminates only when Mississippi “has attained substantial
compliance” with each paragraph of the order and “maintain[ed] that
compliance for one year as determined by this Court.” This utterly vague
language could “commit [the district] Court to the near-perpetual oversight
of an already-complex” state-run mental health system. M. D. by Stukenberg,
907 F.3d at 271 (quoting Connor B. ex rel. Vigurs v. Patrick, 985 F. Supp. 2d
129, 157 (D. Mass. 2013), aff’d, 774 F.3d 45 (1st Cir. 2014)). It is important
to note this injunction was entered despite Mississippi’s having spent over
ten million dollars to comply with the United States’ demands, and it remains
in effect despite Mississippi’s significant expansion of community-based
services throughout all of the state’s service regions. The district court’s
injunction here goes well beyond what is necessary to comply with the statute
and is far from narrowly tailored.
The remedial order also requires the district court, with its monitor,
to play a role essentially indistinguishable from the role ordinarily played by
executive officials. That scenario naturally “raise[s] sensitive federalism
concerns.” Flores, 557 U.S. at 448, 129 S. Ct. at 2593. Indeed, the Framers
worried “that the equity power would” so empower federal courts that it
“would result in . . . the ‘entire subversion of the legislative, executive and
judicial powers of the individual states.’” Missouri v. Jenkins, 515 U.S. 70,
128–29, 115 S. Ct. 2038, 2069 (1995) (Thomas, J., concurring) (quoting
Brutus XI). That is why “Hamilton sought to narrow the expansive Anti-
Federalist reading of inherent judicial equity power” and “described
Article III ‘equity’ as a jurisdiction over certain types of cases rather than as
a broad remedial power.” Id. at 130, 115 S. Ct. at 2069 (describing The
Federalist No. 83). And it is one reason why “institutional reform
injunctions are disfavored.” Stukenberg, 907 F.3d at 271. The district court’s
structural injunction typifies these concerns.
24
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No. 21-60772
The district court’s sweeping injunction is “intrusive and
unworkable,” and requires far more than what might have been required to
comply with Title II, had the district court limited itself to requiring the state
to assure the best interests of institutionalized individuals with serious mental
illness pursuant to Olmstead. Cf. O’Shea v. Littleton, 414 U.S. 488, 500,
94 S. Ct. 669, 678 (1974). Because the district court’s injunction was not
based on what is necessary to comply with the law, the district court abused
its discretion.
V.
For the foregoing reasons, the judgment of the district court is
REVERSED.
25
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No. 21-60772
James C. Ho, Circuit Judge, concurring:
Involuntary hospitalization may be necessary when a person poses a
substantial threat of physical harm to himself or others due to mental illness.
But it’s a severe deprivation of liberty. So in Mississippi, as elsewhere, there
must be a proceeding in a chancery court before a person can be committed.
There’s no guarantee, however, that courts will always get it right.
Judges are human. We make mistakes. We can seek guidance from experts.
But they can’t say for certain who does and doesn’t pose a future threat,
either. We should be humble about the ability of judges and experts to predict
human behavior. Because it’s one thing to impose legal consequences based
on record evidence of a person’s past conduct—it’s quite another thing to
deny fundamental liberties based on our ability to see the future.1
So I get where the Justice Department is coming from. I get the
concern that Mississippi is institutionalizing too many people without basis.
But as our court today explains, the Americans with Disabilities Act is
premised on actual violations, not statistical risks. In the Title VII context,
the Supreme Court has unanimously “disapprove[d]” the “novel project”
_____________________
1
This problem is not unique to involuntary commitment. Judges can order forced
medication of criminal defendants based on predictions about future competence to stand
trial. See, e.g., United States v. James, 938 F.3d 719 (5th Cir. 2019). See also, e.g., 18 U.S.C.
§ 922(g)(8) (relying on civil courts to determine who is a future threat to physical safety);
United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023).
A number of scholars have expressed sincere concerns about relying on predictions
of future behavior to protect public safety. See, e.g., Camille Carey & Robert A. Solomon,
Impossible Choices: Balancing Safety and Security in Domestic Violence Representation, 21
Clinical L. Rev. 201, 244 (2014) (“The history of predicting criminal behavior is, at
best, a cautionary tale.”). Cf. Minority Report (20th Century Fox 2002) (“[F]or
Precrime to function, there can’t be any suggestion of fallibility. . . . [But] those accused of
a Precrime might, just might, have an alternate future.”); Mark C. Niles, Preempting Justice:
“Precrime” in Fiction and in Fact, 9 Seattle J. Soc. Just. 275, 278 (2010).
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No. 21-60772
of “Trial by Formula,” which relies on statistical analysis, rather than
individualized evidence. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 367
(2011). This case presents similar difficulties. I concur.
27