Opposition Brief — Florida, Petitioner v. United States

No. 21-1384

In the Supreme Court of the United States

STATE OF FLORIDA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KRISTEN CLARKE

Assistant Attorney General

BONNIE I. ROBIN-VERGEER

SYDNEY A.R. FOSTER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the Attorney General may sue to enforce

Title II of the Americans with Disabilities Act of 1990,

42 U.S.C. 12131 et seq.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Fla.):

C.V. v. Senior, No. 12-cv-60460 (June 9, 2017)

United States Court of Appeals (11th Cir.):

A.R. v. Dudek, No. 16-15518 (Dec. 20, 2016)

A.R. v. Secretary Fla. Agency for Health Care

Admin., No. 17-13572 (Apr. 17, 2019)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement:

A. Legal background ............................................................ 2

B. The present controversy ................................................. 6

Argument....................................................................................... 8

Conclusion ................................................................................... 24

TABLE OF AUTHORITIES

Cases:

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011).............................................................. 22

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) ...... 12

Alden v. Maine, 527 U.S. 706 (1999).................................... 18

Alexander v. Sandoval, 532 U.S. 275 (2001) ......................... 3

Barnes v. Gorman, 536 U.S. 181 (2002) ........................ 19, 20

Biden v. Missouri, 142 S. Ct. 647 (2022) ............................. 22

Biden v. Texas, 142 S. Ct. 2528 (2022)................................. 22

Bragdon v. Abbott, 524 U.S. 624 (1998) ............................... 12

Director, Off. of Workers’ Comp. Programs

v. Newport News Shipbuilding & Dry

Dock Co., 514 U.S. 122 (1995) ............................................ 18

General Tel. Co. of the Nw., Inc. v. EEOC,

446 U.S. 318 (1980).............................................................. 16

Gregory v. Ashcroft, 501 U.S. 452 (1991)............................. 18

Lorillard v. Pons, 434 U.S. 575 (1978) ................................ 12

National Black Police Ass’n v. Velde,

712 F.2d 569 (D.C. Cir. 1983), cert. denied,

466 U.S. 963 (1984).............................................................. 12

Olmstead v. L. C., 527 U.S. 581 (1999) ............................. 6, 21

(III)

IV

Cases—Continued:

Page

PennEast Pipeline Co. v. New Jersey,

141 S. Ct. 2244 (2021) ......................................................... 21

Smith v. City of Philadelphia,

345 F. Supp. 2d 482 (E.D. Pa. 2004).................................. 20

United States v. Arkansas,

794 F. Supp. 2d 935 (E.D. Ark. 2011) ......................... 16, 17

United States v. Baylor Univ. Med. Ctr.,

736 F.2d 1039 (5th Cir. 1984), cert. denied,

469 U.S. 1189 (1985)............................................................ 12

United States v. City & Cnty. of Denver,

927 F. Supp. 1396 (D. Colo. 1996)...................................... 20

United States v. Harris Cnty.,

No. 16-cv-2331, 2017 WL 7692396

(S.D. Tex. Apr. 26, 2017) .................................................... 20

United States v. Mississippi,

No. 16-cv-622, 2019 WL 2092569 (S.D. Miss. May

13, 2019), appeal on other grounds pending,

No. 21-60772 (5th Cir. filed Oct. 6, 2021) .......................... 20

United States v. Mississippi, 380 U.S. 128 (1965) ............. 18

United States v. Texas, 143 U.S. 621 (1892) ....................... 19

United States v. Texas, 142 S. Ct. 522 (2021) ..................... 22

United States v. Virginia,

No. 12-cv-59, 2012 WL 13034148

(E.D. Va. June 5, 2012) ....................................................... 20

United States v. Washington,

142 S. Ct. 1976 (2022) ......................................................... 22

West Virginia v. EPA, 142 S. Ct. 2587 (2022) .................... 22

Constitution, statutes, regulations, and rule:

U.S. Const. Art. I, § 8, Cl. 1 (Spending Clause) ................. 19

Americans with Disabilities Act of 1990,

42 U.S.C. 12101 et seq. .......................................................... 2

42 U.S.C. 12101(b)(2) ........................................................ 2

V

Statutes, regulations, and rule—Continued:

Page

42 U.S.C. 12101(b)(3) ................................................2, 16

Tit. I, 42 U.S.C. 12111 et seq..................................... 17, 19

42 U.S.C. 12111(2) ..................................................... 19

42 U.S.C. 12111(5) ..................................................... 19

42 U.S.C. 12112(a) ..................................................... 19

42 U.S.C. 12117(a) ..................................................... 19

Tit. II, 42 U.S.C. 12131 et seq. ............................... passim

42 U.S.C. 12131(1) ....................................................... 2

42 U.S.C. 12132 ............................................................ 2

42 U.S.C. 12133 ................................................. passim

42 U.S.C. 12134 .................................................... 12, 17

42 U.S.C. 12134(a) ................................................. 5, 13

42 U.S.C. 12134(b) ................................................. 5, 13

Tit. III, 42 U.S.C. 12181 et seq. ...................................... 17

Civil Rights Act of 1964:

Tit. VI, 42 U.S.C. 2000d et seq............................... passim

42 U.S.C. 2000d ........................................................ 3, 7

42 U.S.C. 2000d-1................................................... 3, 12

Tit. VII, 42 U.S.C. 2000e et seq. ............................... 16, 19

42 U.S.C. 2000e-5(b) .................................................. 16

42 U.S.C. 2000e-5(f ) .................................................. 16

42 U.S.C. 2000e-5(f )(1) .............................................. 19

42 U.S.C. 2000e-5(g) .................................................. 16

Civil Rights of Institutionalized Persons Act,

42 U.S.C. 1997a ................................................................... 17

Rehabilitation Act of 1973:

§ 504, 87 Stat. 394 ................................................ 2, 3, 5, 11

§ 505, 92 Stat. 2982-2983 ..........................3, 6, 7, 10, 14, 17

29 U.S.C. 794 .................................................................... 23

29 U.S.C. 794(a) ................................................................. 2

29 U.S.C. 794a .................................................................... 2

VI

Statutes, regulations, and rule—Continued:

Page

29 U.S.C. 794a(a)(2)......................................3, 7, 10, 11, 17

Religious Land Use and Institutionalized Persons

Act, 42 U.S.C. 2000cc-2(f ) .................................................. 19

28 U.S.C. 1292(b) ................................................................... 23

42 U.S.C. 1983 ........................................................................ 17

7 C.F.R.:

Section 15.6 ........................................................................ 4

Section 15.8(a) .................................................................... 4

24 C.F.R.:

Section 1.7 .......................................................................... 4

Section 1.8(a) ...................................................................... 4

28 C.F.R.:

Section 35.170 .................................................................... 5

Section 35.172(a) ................................................................ 5

Section 35.173(b)................................................................ 5

Section 35.174 .................................................................... 6

Section 35.175 .................................................................... 6

Section 35.178 .................................................................... 6

Section 41.5 .............................................................. 3, 5, 13

Section 42.107(b)-(d) ......................................................... 4

Section 42.108(a) ................................................................ 4

Section 42.411(a) ................................................................ 4

Section 42.412(b)................................................................ 5

Section 50.3(c)(I)(B)(1).......................................... 4, 10, 11

29 C.F.R.:

Section 31.8 ........................................................................ 4

Section 31.9(a) .................................................................... 4

43 C.F.R.:

Section 17.6 ........................................................................ 4

Section 17.7(a) .................................................................... 4

VII

Regulations—Continued:

Page

45 C.F.R.:

Section 80.7 ...................................................................... 10

Section 80.7(b).................................................................... 4

Section 80.7(b)-(d) ........................................................... 11

Section 80.7(c) .................................................................... 4

Section 80.8 .................................................................. 3, 10

Section 80.8(a)(1) (1966 Cum. Supp.)............................. 11

Section 80.8(a)(1) ............................................................... 4

Section 80.8(d)(1) ............................................................... 4

Section 85.5(a) (1979) ........................................................ 5

Section 611.7 ...................................................................... 4

Section 611.8(a) .................................................................. 4

Exec. Order No. 11,914, 3 C.F.R. 117 (1976 comp.) ............. 5

Exec. Order No. 12,250, 3 C.F.R. 298 (1980 comp.) ............. 5

Fed. R. Civ. P. 23 ................................................................... 21

Miscellaneous:

29 Fed. Reg. 16,241 (Dec. 4, 1964) ................................... 4, 11

31 Fed. Reg. 5277 (Apr. 2, 1966) ...................................... 4, 11

31 Fed. Reg. 10,235 (July 29, 1966) ........................................ 4

43 Fed. Reg. 2132 (Jan. 13, 1978) ........................................... 5

46 Fed. Reg. 40,686 (Aug. 11, 1981) ....................................... 5

H.R. Rep. No. 485, 101st Cong., 2d Sess.

Pt. 2 (1990) ........................................................................... 14

Press Release, Settlement Agreement

Between the United States of America

and the Champaign-Urbana Mass Transit

District: DJ No. 204-24-129 (Dec. 14, 2021),

https://perma.cc/P5ZN-C9QG ........................................... 22

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) .................... 14

In the Supreme Court of the United States

No. 21-1384

STATE OF FLORIDA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-67a)

is reported at 938 F.3d 1221. The order of the court of

appeals denying rehearing en banc (Pet. App. 102a-165a)

is reported at 21 F.4th 730. The order of the district

court (Pet. App. 68a-101a) is reported at 209 F. Supp. 3d

1279. A prior order of the district court is reported at

31 F. Supp. 3d 1363.

JURISDICTION

The judgment of the court of appeals was entered on

September 17, 2019. A petition for rehearing was denied on December 22, 2021 (Pet. App. 102a-103a). On

March 7, 2022, Justice Thomas extended the time within

which to file a petition for a writ of certiorari to and including April 21, 2022, and the petition was filed on that

(1)

2

date. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

A. Legal Background

1. The Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. 12101 et seq., prohibits certain public

and private entities from discriminating on the basis of

disability. Congress enacted the ADA “to provide clear,

strong, consistent, enforceable standards addressing

discrimination against individuals with disabilities” and

“to ensure that the Federal Government plays a central

role in enforcing [those] standards * * * on behalf of individuals with disabilities.” 42 U.S.C. 12101(b)(2) and (3).

Title II of the ADA, 42 U.S.C. 12131 et seq., establishes the anti-discrimination requirements governing

“public entit[ies],” including States and local governments. 42 U.S.C. 12131(1). Title II’s substantive prohibition largely tracks Section 504 of the Rehabilitation

Act of 1973 (Rehabilitation Act), 29 U.S.C. 794(a), by

specifying 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. But whereas Section 504 reaches only certain

federal programs and activities and entities that receive

“Federal financial assistance,” 29 U.S.C. 794(a), Title II

covers all “public entit[ies]” whether or not they receive

federal funding, 42 U.S.C. 12131(1), 12132.

2. Congress set forth the means for “[e]nforc[ing]”

Title II’s guarantees in Section 12133. 42 U.S.C. 12133

(emphasis omitted). Rather than spelling out particular

enforcement mechanisms, Section 12133 cross-references

Section 505 of the Rehabilitation Act, 29 U.S.C. 794a—

3

the enforcement provision for Section 504. Specifically,

Section 12133 provides that “[t]he remedies, procedures, and rights set forth in [Section 505] shall be the

remedies, procedures, and rights [the ADA] provides to

any person alleging discrimination” under Title II. 42

U.S.C. 12133.

Section 505, in turn, cross-references a third statute,

Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d

et seq., which bars recipients of federal financial assistance from discriminating based on race, color, or national origin. 29 U.S.C. 794a(a)(2). Specifically, Section

505 provides that “[t]he remedies, procedures, and

rights set forth in [T]itle VI * * * shall be available to

any person aggrieved” under Section 504. Ibid.

Title VI’s “remedies, procedures, and rights,” 29

U.S.C. 794a(a)(2), consist of an implied private right of

action under 42 U.S.C. 2000d, Alexander v. Sandoval,

532 U.S. 275, 279 (2001), and an administrative and judicial enforcement scheme established by 42 U.S.C.

2000d-1. Under Section 2000d-1, agencies extending financial assistance must “effectuate” Title VI’s antidiscrimination mandate by, among other things, issuing

regulations. Ibid. Section 2000d-1 also specifies that

“[c]ompliance” with Title VI may be “effected” by

(1) terminating financial assistance following an administrative proceeding; or (2) “any other means authorized by law.” Ibid.

3. Since long before the ADA’s enactment, regulations implementing Title VI and the Rehabilitation Act

have established enforcement procedures that include

an administrative complaint process that may culminate

in suits by the Department of Justice (DOJ). See, e.g.,

28 C.F.R. 41.5; 45 C.F.R. 80.8.

4

Under Title VI regulations promulgated by the relevant federal agencies shortly after the statute’s enactment, persons who believe that they have been discriminated against may file complaints with the agencies,

which then conduct investigations. See, e.g., 29 Fed.

Reg. 16,241, 16,301 (Dec. 4, 1964) (45 C.F.R. 80.7(b) and

(c)) (establishing administrative complaint procedures

for the Department of Health, Education, and Welfare,

which now apply to the Department of Health and Human Services). If an investigation reveals a violation,

the agency first attempts to resolve the matter through

“informal means.” E.g., 45 C.F.R. 80.7(d)(1). If those

efforts are unsuccessful, the agency may effect compliance by withdrawing funding or by “any other means

authorized by law,” including referring the matter to

DOJ to bring “appropriate proceedings” in court. E.g.,

45 C.F.R. 80.8(a)(1); see 45 C.F.R. 80.8(d)(1). 1

DOJ’s contemporaneous guidelines coordinating

agencies’ enforcement of Title VI likewise specify that

“[c]ompliance with the nondiscrimination mandate of

Title VI” may be obtained by “appropriate court action,” and they further emphasize that “[t]he possibility

of court enforcement should not be rejected without

consulting [DOJ].” 31 Fed. Reg. 5277, 5292 (Apr. 2,

1966) (28 C.F.R. 50.3(c)(I)(B)(1)); see 28 C.F.R.

See also, e.g., 29 Fed. Reg. at 16,277 (7 C.F.R. 15.6, 15.8(a)) (Department of Agriculture); 29 Fed. Reg. at 16,281-16,282 (24 C.F.R.

1.7, 1.8(a)) (Department of Housing and Urban Development); 29

Fed. Reg. at 16,285-16,286 (29 C.F.R. 31.8, 31.9(a)) (Department of

Labor); 29 Fed. Reg. at 16,295 (43 C.F.R. 17.6, 17.7(a)) (Department

of Interior); 29 Fed. Reg. at 16,307 (45 C.F.R. 611.7, 611.8(a)) (National Science Foundation); 31 Fed. Reg. 10,235, 10,267 (July 29,

1966) (28 C.F.R. 42.107(b)-(d), 42.108(a)) (DOJ).

1

5

42.411(a), 42.412(b) (DOJ regulations coordinating Title

VI enforcement).

After the Rehabilitation Act was enacted in 1973, the

Department of Health, Education, and Welfare, which

was charged with coordinating enforcement of the statute by all federal agencies, Exec. Order No. 11,914,

3 C.F.R. 117 (1976 comp.), promulgated regulations requiring each agency to “establish a system for the enforcement of section 504” that “include[s] * * * [t]he

enforcement and hearing procedures that the agency

has adopted for the enforcement of [T]itle VI.” 43 Fed.

Reg. 2132, 2137 (Jan. 13, 1978) (45 C.F.R. 85.5(a)

(1979)). Responsibility for coordinating Section 504 enforcement was later reassigned to DOJ, see Exec. Order No. 12,250, 3 C.F.R. 298 (1980 comp.), which repromulgated the relevant coordination regulations under its own authority, 46 Fed. Reg. 40,686, 40,686-40,687

(Aug. 11, 1981) (28 C.F.R. 41.5).

4. Title II of the ADA explicitly cross-references the

Rehabilitation Act’s coordination regulations, providing

that the “Attorney General shall promulgate regulations” that are “consistent with * * * the coordination

regulations” promulgated under the Rehabilitation Act.

42 U.S.C. 12134(a) and (b). Pursuant to that authority,

the Attorney General has issued regulations establishing enforcement procedures consistent with those established under Title VI and the Rehabilitation Act.

The Title II regulations provide that a person alleging

discrimination may file a complaint with the appropriate agency, 28 C.F.R. 35.170; that the agency will investigate and attempt to gain “voluntary compliance” when

appropriate, 28 C.F.R. 35.172(a), 35.173(b); and that—if

those efforts are unsuccessful—the “agency shall refer

the matter to the Attorney General with a recommenda-

6

tion for appropriate action,” which may include a lawsuit, 28 C.F.R. 35.174; see 28 C.F.R. 35.175, 35.178 (contemplating judicial enforcement).

B. The Present Controversy

1. Petitioner, the State of Florida, administers a system of services for children with complex medical needs.

Pet. App. 69a-70a. After receiving complaints of disability discrimination alleging that petitioner is unnecessarily institutionalizing certain children with disabilities and placing other children at risk of unnecessary

institutionalization, see D. Ct. Doc. 700, at 20 (June 15,

2022) (Amended Complaint), DOJ investigated the allegations and found that petitioner was violating Title II

of the ADA, ibid.; see Pet. App. 2a-3a; cf. Olmstead v.

L. C., 527 U.S. 581, 587 (1999) (holding that the unnecessary institutionalization of individuals with disabilities violates Title II in certain circumstances); id. at 607

(opinion of Ginsburg, J.).

When DOJ’s efforts to obtain petitioner’s voluntary

compliance were unsuccessful, the United States filed

suit under Title II, and the district court consolidated

that suit with a putative class action filed by a group of

children asserting similar claims. Pet. App. 3a. Petitioner moved for judgment on the pleadings in the

United States’ case, arguing that the ADA did not authorize the Attorney General to sue to enforce Title II.

Id. at 4a. The court denied the motion. Ibid.

2. More than two years later, and after the case had

been reassigned to a new judge, the district court sua

sponte reversed course and dismissed the United States

from the case. Pet. App. 68a-101a. The court acknowledged that Title II “provides” any “person alleging

discrimination” with the “remedies, procedures, and

rights set forth in [Section 505 of the Rehabilitation

7

Act],” 42 U.S.C. 12133, which in turn incorporates the

“remedies, procedures, and rights set forth in [T]itle

VI,” 29 U.S.C. 794a(a)(2). Pet. App. 78a-79a. But in the

court’s view, even if Title VI grants the Attorney General the right to sue, Title II does not because “Congress did not incorporate [into Title II] all ‘remedies,

procedures, and rights’ available under Title VI—it incorporated only those ‘remedies, procedures, and

rights’ that may be exercised by a ‘person alleging discrimination.’ ” Id. at 79a-80a & 98a n.7 (quoting 42

U.S.C. 12133). The court determined that only one of

Title VI’s “remedies, procedures, and rights” satisfies

that standard—the implied right of action under 42

U.S.C. 2000d. Pet. App. 81a, 99a n.10 (citation omitted). 2

3. The court of appeals reversed. Pet. App. 1a-67a.

The court began by recognizing that Title II “provides”

a “person alleging discrimination” the “remedies, procedures, and rights” of Section 505, which in turn incorporates the remedies, procedures, and rights of Title

VI. Id. at 6a, 8a-9a (quoting 42 U.S.C. 12133). The court

rejected petitioner’s contention that “because the Attorney General is not a ‘person alleging discrimination,’ ” it necessarily follows that he is not authorized to

sue under Title II. Id. at 9a. The court explained that

“[b]ecause Congress chose to cross-reference” Section

505, and therefore Title VI, it was necessary to “consider those statutory provisions” in assessing what remedies Title II provides to “persons alleging discrimination” and whether those remedies include an enforcement action by the Attorney General. Id. at 11a.

The court of appeals thus carefully analyzed the text,

context, and history of the enforcement mechanisms

In separate decisions, the district court dismissed the putative

class action brought by private plaintiffs. Pet. App. 5a.

2

8

provided by Title VI and the Rehabilitation Act, and it

determined that both statutes allow individuals to file

administrative complaints that may result in enforcement suits by the Attorney General. Pet. App. 12a-22a

(Title VI); id. at 22a-32a (Rehabilitation Act). The court

therefore held that “[t]he express statutory language”

of Title II’s enforcement provision “create[s] a system

of federal enforcement” that includes the “investigation

of complaints” submitted by persons alleging discrimination and, “ultimately,” enforcement through “ ‘any

other means authorized by law,’ ” including a suit by the

Attorney General. Id. at 59a; see id. at 46a-47a, 55a.

Judge Branch dissented. Pet. App. 60a-67a. She believed that the Attorney General cannot sue under Title

II because he is not a “person alleging discrimination.”

Id. at 60a. And she would have rejected the government’s argument that an administrative process potentially culiminating in a suit by the Attorney General is

one of the remedies, procedures, and rights that Title II

supplies to such persons by cross-referencing the Rehabilitation Act and Title VI. Id. at 65a-66a.

4. The court of appeals denied rehearing en banc.

Pet. App. 102a-103a. Judge Newsom, joined by Judge

Branch, dissented. Id. at 140a-165a. Judge Jill Pryor,

who had joined the panel opinion written by Sixth Circuit Judge Danny Boggs (sitting by designation), issued

an opinion responding to Judge Newsom’s dissent. Id.

at 104a-139a. Among other things, she emphasized that

the panel’s holding did not rest on a determination that

the Attorney General is a “person alleging discrimination” under Title II. Id. at 108a-109a.

ARGUMENT

Petitioner principally contends (Pet. 11-14) that the

court of appeals erroneously held that the Attorney

9

General is a “person alleging discrimination” under 42

U.S.C. 12133. That misreads the decision below. The

court of appeals did not hold that the Attorney General

is a “person” under Section 12133; instead, it held that

the Attorney General may bring suit under Title II of

the ADA because Section 12133 provides “any person

alleging discrimination” with the “remedies, procedures, and rights” set out in the Rehabilitation Act and

Title VI, and one of those “remedies, procedures, and

rights” is the ability to file an administrative complaint

that may result in a suit by the Attorney General.

That holding is correct, and it does not conflict with

any decision of this Court or another court of appeals.

Indeed, aside from the now-reversed district court decision in this case, no court has ever concluded that the Attorney General lacks authority to bring enforcement actions under Title II. During the 30 years since Title II’s

enactment, “the Attorney General has filed dozens of

lawsuits against public entities” under Title II and settled many more cases. Pet. App. 115a. The court of appeals’ decision thus merely reaffirms a long-established

understanding. And even if the question presented otherwise warranted this Court’s review, this case would

not be an appropriate vehicle in which to consider it.

This case concerns petitioner’s Medicaid program,

which relies on federal funds. Accordingly, even if the

United States could not proceed under Title II, the federal government could take action to pursue relief under the materially identical substantive provisions of

the Rehabilitation Act, which petitioner concedes can be

enforced through suits by the Attorney General.

1. The court of appeals correctly determined that

the Attorney General may bring suit to enforce Title II

of the ADA. Pet. App. 33a. Title II “provides any

10

person alleging discrimination” with the “remedies,

procedures, and rights” established under Title VI of

the Civil Rights Act. 42 U.S.C. 12133. And under Title

VI, a victim of discrimination may file an administrative

complaint that may culminate in an enforcement suit by

the Attorney General.

a. Title II incorporates the remedial measures established under Title VI of the Civil Rights Act through

a series of cross-references. It provides that the “remedies, procedures, and rights set forth in [Section 505 of

the Rehabilitation Act] shall be the remedies, procedures, and rights [the ADA] provides to any person alleging discrimination on the basis of disability in violation of [Title II].” 42 U.S.C. 12133. Section 505 in turn

provides 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” a

violation of the Rehabilitation Act. 29 U.S.C. 794a(a)(2).

Section 12133 therefore establishes that the “remedies,

procedures, and rights” that Title II “provides to any

person alleging discrimination,” 42 U.S.C. 12133, are

the “remedies, procedures, and rights set forth in” Title

VI, 29 U.S.C. 794a(a)(2).

One of the “remedies, procedures, and rights,” 42

U.S.C. 12133, available under Title VI is an administrative complaint process that may culminate in “appropriate court action” by the Attorney General. 28 C.F.R.

50.3(c)(I)(B)(1); see, e.g., 45 C.F.R. 80.7, 80.8; pp. 3-5,

supra. Indeed, “a reference to the Department of Justice” so that it may initiate “appropriate proceedings”

has long been a key means through which agencies vindicate the rights of victims of discrimination under Title

VI. E.g., 45 C.F.R. 80.8; see p. 4 n.1 (collecting analogous agency regulations). For example, in 1964, the

11

Department of Health, Education, and Welfare promulgated regulations establishing that a victim of discrimination could file an administrative complaint alleging a

violation of Title VI, and that—if the agency’s investigation validated the claim and “informal means” failed

to bring the discriminating entity into compliance—the

victim’s complaint could be resolved through “a reference to the Department of Justice with a recommendation that appropriate proceedings be brought * * * under any law of the United States * * * or any assurance

or other contractual undertaking.” 29 Fed. Reg. at

16,301 (45 C.F.R. 80.7(b)-(d), 80.8(a)(1) (1966 Cum.

Supp.)). And the DOJ’s “Guidelines for Enforcement of

Title VI,” first promulgated around the same time and

still in force today, provide that “[t]he possibility of

court enforcement should not be rejected without consulting” DOJ. 31 Fed. Reg. at 5292 (28 C.F.R.

50.3(c)(I)(B)(1)) (emphasis omitted). As contemplated

by those provisions, “the United States has consistently

used * * * litigation to enforce” Title VI. Pet. App. 19a20a; see id. at 20a-21a & n.10 (collecting cases).

In accordance with the Rehabilitation Act’s directive

that persons alleging discrimination under Section 504

be afforded the “remedies, procedures, and rights” set

forth in Title VI, 29 U.S.C. 794a(a)(2), regulations initially promulgated in the 1970s to implement the Rehabilitation Act have adopted the same enforcement

process—including the possibility of suits by the Attorney General. See p. 5, supra. And as under Title VI,

the United States has brought suits in court to enforce

the Rehabilitation Act. See Pet. App. 29a-32a (collecting cases).

Because administrative complaint procedures potentially culminating in an Attorney General action have

12

long been a part of the remedial scheme established by

Title VI and the Rehabilitation Act, they are among the

“remedies, procedures, and rights” that Section 12133

“provides to any person alleging discrimination” under

Title II of the ADA. 42 U.S.C. 12133. When “Congress

adopts a new law incorporating sections of a prior law,

[it] normally can be presumed to have had knowledge of

the interpretation given to the incorporated law.” Lorillard v. Pons, 434 U.S. 575, 581 (1978); see Bragdon v.

Abbott, 524 U.S. 624, 644-645 (1998). When the ADA

was enacted, not only was Title VI’s administrative enforcement scheme well-established, but courts had uniformly recognized that the United States may pursue

enforcement actions under both Title VI and the Rehabilitation Act. 3

b. Another provision of the ADA, 42 U.S.C. 12134,

further confirms that Title II incorporates Title VI’s

administrative complaint process, including the possibility of Attorney General enforcement suits. Section

12134 requires the Attorney General to “promulgate

regulations” under Title II that are “consistent with”

See, e.g., United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039,

1050 (5th Cir. 1984) (holding that under the Rehabilitation Act, “an

agency may resort to ‘any other means authorized by law’—including

the federal courts”), cert. denied, 469 U.S. 1189 (1985); National

Black Police Ass’n v. Velde, 712 F.2d 569, 575 (D.C. Cir. 1983) (holding that “referral of cases to the Attorney General, who may bring

an action against the recipient,” is one of the “ ‘other means authorized by law’ ” under Title VI, 42 U.S.C. 2000d-1), cert. denied, 466

U.S. 963 (1984); Adams v. Richardson, 480 F.2d 1159, 1161 n.1, 1163

(D.C. Cir. 1973) (en banc) (concluding that Title VI “sets forth two

alternative courses of action by which enforcement may be

effected”—fund termination or “other means authorized by law,” including a “reference to [DOJ]” to bring “appropriate proceedings”);

see also Pet. App. 19a-21a & n.10, 29a-32a (citing additional cases).

3

13

the Rehabilitation Act’s “coordination regulations,”

found in “part 41 of title 28, Code of Federal Regulations.” 42 U.S.C. 12134(a) and (b). One of the Rehabilitation Act’s “coordination regulations” provides that

federal agencies “shall establish a system for the enforcement” of the Act that “shall include * * * [t]he enforcement and hearing procedures that the agency has

adopted for the enforcement of [T]itle VI.” 28 C.F.R.

41.5. Title II’s express statutory text thus requires the

Attorney General to establish an administrative enforcement scheme “consistent” with that established

under Title VI—that is, a scheme that may culminate in

an enforcement suit by the Attorney General. 42 U.S.C.

12134(b).

c. If Title II did not permit suits by the Attorney

General, it would mean that by providing “any person

alleging discrimination” with the “remedies, procedures, and rights” set out in the Rehabilitation Act and

Title VI, Section 12133 provides such a person with only

one meaningful “remed[y], procedure[], or right[]”: an

implied private right of action. The other “remedies,

procedures, and rights” available to aggrieved persons

under Title VI and the Rehabilitation Act all involve filing administrative complaints, which can lead to either

withdrawals of funding or suits by the Attorney General. But the first option is not available in Title II cases

involving public entities that do not receive federal

funds. Accordingly, if suits by the Attorney General

were not available either, Title II’s administrative

process would include no means of enforcement against

entities that do not receive federal funds—which are, of

course, the very entities that Title II was enacted to

cover. See p. 2, supra.

14

It is not plausible to assert, as petitioner necessarily

must, that Congress intended to provide such an “utterly ineffectual” administrative enforcement scheme.

Pet. App. 126a. And Committee Reports from both the

House and Senate confirm that Congress did no such

thing: Those reports explain that “the major enforcement sanction for the Federal government” in Title II

matters is a referral to the DOJ so that the Attorney

General may “proceed to file suit[] in Federal district

court.” H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2,

at 98 (1990); accord S. Rep. No. 116, 101st Cong., 1st

Sess. 57-58 (1989).

2. Petitioner acknowledges (Pet. 19-20) that Title II

expressly incorporates the enforcement provisions of

the Rehabilitation Act and Title VI, and petitioner further acknowledges (Pet. 19 n.1) that the “United States

can bring suit under the Rehabilitation Act and under

Title VI.” Petitioner insists (Pet. 11-20), however, that

the United States may not bring suit under Title II.

Each of the arguments petitioner advances in support

of that contention fails.

a. Petitioner primarily asserts (Pet. 11-14) that the

Attorney General is not a “person alleging discrimination” under 42 U.S.C. 12133. But that is irrelevant. The

court of appeals did not hold that the Attorney General

is himself a “person alleging discrimination.” Rather,

the court held that such “persons”—for example, children unnecessarily institutionalized in violation of Title

II—are entitled to the same bundle of remedies, procedures, and rights available to persons alleging discrimination under Title VI and Section 505. See, e.g., Pet.

App. 9a-11a & n.5, 32a-33a, 46a-47a, 59a. And that bundle includes the right to file an administrative complaint

potentially culminating in a civil action by the Attorney

15

General that will “vindicate[]” the complaining “individual[’s] personal rights.” Id. at 33a.

Petitioner fails to cite anything in the court of appeals’ opinion to support its assertion (Pet. 11-14) that

the court held that the Attorney General is a “person”

under Section 12133. As Judge Pryor explained, the 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.”

Pet. App. 108a (respecting the denial of rehearing en

banc). Judge Pryor also reiterated that the panel held

that the Attorney General may bring suit under Title II

because a person alleging discrimination is afforded the

“panoply of remedies, procedures, and rights” established under Title VI and that bundle “includ[es] the

right to file an administrative complaint” that invokes

“a process that may culminate in suit by the Attorney

General.” Ibid. Judge Branch likewise recognized that

the United States had not argued—and that the panel

had not held—“that the Attorney General is a ‘person

alleging discrimination.’ ” Pet. App. 65a.

Petitioner emphasizes (Pet. 17-18) that the United

States has acknowledged that it is the “only plaintiff ” in

this suit and that it is not “litigating on behalf of any

individual claimant.” But the fact that the persons

whose administrative complaints instigated the process

that culminated in this litigation are not plaintiffs does

not mean that the suit will not “provide[]” a “remed[y]”

for them. 42 U.S.C. 12133. The United States’ operative complaint asks the court to enjoin petitioner to

“cease discriminating against” those victims, D. Ct.

Doc. 700, at 22. If the Attorney General obtains a court

order to that effect, the persons alleging discrimination

16

will have obtained a remedy for their harms without being forced to bear the burdens of litigation themselves—

a result consistent with Congress’s express contemplation that “the Federal Government” would play “a central role in enforcing” the ADA “on behalf of individuals

with disabilities.” 42 U.S.C. 12101(b)(3).

This Court has made precisely that point in the context of Title VII, which establishes a similar enforcement scheme by allowing individuals to file charges of

discrimination with the Equal Employment Opportunity Commission that may result in suits by the Commission or DOJ. 42 U.S.C. 2000e-5(b), (f ), and (g). The

Court explained that the Commission—like the Attorney General here—“bring[s] suit in its own name” and

not in a “representative capacity.” General Tel. Co. of

the Nw., Inc. v. EEOC, 446 U.S. 318, 324, 327 (1980).

But the Court also emphasized that the Commission’s

suits serve to “obtain[] appropriate relief for those persons injured by discriminatory practices.” Id. at 325;

see id. at 324 (“relief for a group of aggrieved individuals”). 4

Petitioner asserts (Pet. 18) that the Attorney General brings Title II suits even when the affected individuals are “opposed” to that

action. Even if that were true, it would be irrelevant. The question

posed by the statutory text is whether administrative procedures

potentially culminating in a suit by the Attorney General are among

the “remedies, rights, or procedures” available to persons alleging

discrimination under Title II. 42 U.S.C. 12133. The answer to that

question is yes even though—like the Commission suing under Title

VII—the Attorney General does not bring suit in a representative

capacity. And in any event, the decision on which petitioner relies

does not support its assertion that the Attorney General brings Title

II suits over the opposition of the affected individuals. In United

States v. Arkansas, 794 F. Supp. 2d 935 (E.D. Ark. 2011), the court

4

17

b. Petitioner’s alternative contentions also fail. Petitioner asserts (Pet. 13-14) that Title II does not provide for Attorney General suits because, while the enforcement provisions in Titles I and III of the ADA expressly mention the Attorney General, Title II’s enforcement provision does not. But referencing the Attorney General in Title II’s enforcement provision

would have been redundant because the text already

provides for enforcement actions by the Attorney General through its cross-references to Title VI and the Rehabilitation Act, which have long been understood to authorize suits by the Attorney General. See 42 U.S.C.

12133, 12134; see also pp. 3-5, supra.

In addition, there is an obvious explanation for Congress’s omission of an express reference to the Attorney

General in Title II despite including one in Titles I and

III: In Title II, Congress was simply tracking the language of the Rehabilitation Act’s enforcement provision. Compare 42 U.S.C. 12133, with 29 U.S.C. 794a(a)(2);

see Pet. App. 128a (Jill Pryor, J., respecting the denial

of rehearing en banc) (observing that the differences in

the enforcement provisions of Titles I, II, and III of the

ADA reflect the different “existing statutory framework[s]” that formed the backdrop for each title). Section 505 of the Rehabilitation Act also makes no mention

of the Attorney General, but—as petitioner concedes

noted that the parents and guardians of certain institutionalized

children “opposed” the United States’ claims “so far as the record

show[ed].” Id. at 937. But Arkansas was not a Title II suit in the

relevant sense because the United States was suing under the Civil

Rights of Institutionalized Persons Act, 42 U.S.C. 1997a, and it was

alleging violations of Title II as one of several reasons that it was

entitled to the equitable relief that 42 U.S.C. 1997a authorizes. Arkansas, 794 F. Supp. 2d at 980; Compl. at 1-3, 9, United States v.

Arkansas, No. 09-cv-33 (E.D. Ark. Jan. 16, 2009).

18

(Pet. 19 n.1)—the Attorney General may nevertheless

sue under that Act.

Petitioner similarly errs in asserting that the Attorney General has no right to sue because federal agencies do not “automatically have standing to sue for actions that frustrate the purposes of their statutes.” Pet.

15 (quoting Director, Off. of Workers’ Comp. Programs

v. Newport News Shipbuilding & Dry Dock Co., 514

U.S. 122, 132 (1995)). The Attorney General’s authority

to sue under Title II is not established by the “purposes” of the ADA, ibid.; it is established by the text.

Title II provides “any person alleging discrimination”

with the remedies set forth under Title VI, and one of

the remedies Title VI “provides to any person alleging

discrimination” is the ability to file an administrative

complaint that may result in an Attorney General suit

that secures relief for that person. To deny the Attorney General the ability to bring such suits would thus

be to deny persons alleging discrimination a remedy

guaranteed to them by the text of the relevant statutes.

Petitioner also errs in invoking (Pet. 15-17) this

Court’s statement that Congress must use “unmistakeably clear” language if it wants to “alter the usual constitutional balance” between the federal government

and the States. Gregory v. Ashcroft, 501 U.S. 452, 460,

463-464 (1991) (citation and internal quotation marks

omitted). Permitting the federal government to sue the

States does not “alter the usual constitutional balance.”

Id. at 460 (citation and internal quotation marks omitted). To the contrary, this Court has repeatedly recognized that “[i]n ratifying the Constitution, the States

consented to suits brought by * * * the Federal Government.” Alden v. Maine, 527 U.S. 706, 755 (1999);

see, e.g., United States v. Mississippi, 380 U.S. 128, 140

19

(1965) (no “provision of the Constitution prevents or has

ever been seriously supposed to prevent a State’s being

sued by the United States”); United States v. Texas, 143

U.S. 621, 645-646 (1892) (suit by the United States

against a State “does no violence to the inherent nature

of sovereignty”). Statutes authorizing the United States

to bring such suits are commonplace. In the anti-discrimination context alone, they include not just Title VI

and the Rehabilitation Act, but also Title VII, see 42

U.S.C. 2000e-5(f)(1); Title I of the ADA, 42 U.S.C.

12112(a), 12117(a); see 42 U.S.C. 12111(2) and (5); and the

Religious Land Use and Institutionalized Persons Act,

42 U.S.C. 2000cc-2(f ). This Court has never suggested

that such statutes are subject to a clear-statement rule.

Finally, in a footnote, petitioner briefly asserts (Pet.

19 n.1) that the Attorney General may bring suit under

Title VI and the Rehabilitation Act only because those

statutes “were enacted pursuant to Congress’s powers

under the Spending Clause” and thus can be enforced

through “contract-like claims.” From that premise, petitioner infers that the United States cannot bring suit

under Title II because it is not Spending Clause legislation. Ibid. But this Court has already rejected petitioner’s premise that “suits under Spending Clause legislation are suits in contract.” Barnes v. Gorman, 536

U.S. 181, 188 n.2 (2002). And even if that premise were

correct, it would not support petitioner’s conclusion:

Whatever the underlying legal basis for the remedies,

procedures, and rights available under Title VI and the

Rehabilitation Act, Congress expressly directed that

those same remedies shall be available under Title II.

In Barnes, therefore, this Court rejected an argument much like the one petitioner presses here. The

Court had held that Title VI’s status as “Spending

20

Clause legislation” meant that punitive damages are not

available in private suits under Title VI. 536 U.S. at 189.

In a separate opinion, Justice Stevens suggested that

this analysis “does not carry over to [Title II of ] the

ADA because [it] is not Spending Clause legislation.”

Id. at 189 n.3. Writing for the Court, Justice Scalia emphatically disagreed, explaining that Title II “could not

be clearer that the ‘remedies, procedures, and rights’ ”

it provides “are the same as the ‘remedies, procedures,

and rights’ ” set forth in Title VI and the Rehabilitation

Act. Ibid. (quoting 42 U.S.C. 12133). “These explicit

provisions,” the Court held, “make discussion of the

ADA’s status as a ‘non Spending Clause’ tort statute

quite irrelevant” in determining the scope of the remedies it provides. Ibid.; see id. at 185. So too here.

3. Petitioner does not allege that the decision below

conflicts with any decision by another court of appeals.

To the contrary, no other court of appeals has even addressed the issue. And, with the exception of the nowreversed district court decision in this case, the district

courts that have considered the question have all agreed

that the Attorney General is authorized to bring suit to

enforce Title II. See, e.g., United States v. Mississippi,

No. 16-cv-622, 2019 WL 2092569, at *2-*3 (S.D. Miss.

May 13, 2019), appeal on other grounds pending, No. 2160772 (5th Cir. filed Oct. 6, 2021); United States v. Harris Cnty., No. 16-cv-2331, 2017 WL 7692396, at *1 (S.D.

Tex. Apr. 26, 2017); United States v. Virginia, No. 12cv-59, 2012 WL 13034148, at *2-*3 (E.D. Va. June 5,

2012); Smith v. City of Philadelphia, 345 F. Supp. 2d

482, 489-490 (E.D. Pa. 2004); United States v. City &

Cnty. of Denver, 927 F. Supp. 1396, 1399-1400 (D. Colo.

1996); see also Pet. App. 52a-55a (citing cases). Despite

21

that consensus, petitioner asserts that this Court’s review is warranted for two reasons. Neither has merit.

a. Petitioner first asserts (Pet. 26) that this Court

has “reviewed questions concerning fundamental issues

about the division of power between the states and the

national government, even without a circuit split.” But

this case raises no such questions and scarcely resembles the examples on which petitioner relies, most of

which involved challenges to the constitutionality of a

federal statute. Petitioner does not and could not dispute that Congress can authorize the Attorney General

to sue the States; the only question is whether it has

done so in Title II. That is a routine question of statutory interpretation—and one on which the decades-long

consensus in the lower courts counsels strongly against

this Court’s review.

In arguing otherwise, petitioner seeks to portray

suits by the Attorney General enforcing Title II as a

particular intrusion on state sovereignty. But that is

difficult to square with the well-established proposition

that private individuals may bring individual or classaction suits under Title II. See Olmstead v. L. C., 527

U.S. 581, 587 (1999); id. at 607 (opinion of Ginsburg, J.);

see also Fed. R. Civ. P. 23. As this Court has recognized, private suits intrude on state sovereignty in ways

that suits by the federal government do not. See PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 22582259 (2021).

Petitioner’s assertion that the opposite is true under

Title II is based on the contention (Pet. 20-25) that the

United States may seek systemic relief. But petitioner

exaggerates the nature of the relief in cases it cites; the

United States does not, for example, exercise a “massive power to reshape state policy,” Pet. 20, when it

22

enters into a settlement agreement that requires a public transportation provider to bring its websites and mobile applications into compliance with certain accessibility standards, see Pet. 25 n.8 (citing Press Release, Settlement Agreement Between the United States of

America and the Champaign-Urbana Mass Transit District: DJ No. 204-24-129 at 1-3 (Dec. 14, 2021), https://

perma.cc/P5ZN-C9QG).

In any event, any concerns about the scope of relief

in the Attorney General’s Title II suits can be addressed

as appropriate in cases where the issue actually arises.

But no such questions are presented here: Because this

case is still in its preliminary stages, no court has determined whether petitioner is liable, much less considered

an appropriate remedy. Petitioner will have ample opportunity to litigate those remedial questions if and

when they arise on remand.

b. Petitioner also asserts that the lack of division in

the lower courts is the result of “in terrorem” settlements. Pet. 23 (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 350 (2011)); see Pet. 27-28. There

is no basis for that assertion. Petitioner does not contend that the Attorney General’s Title II suits threaten

the sort of crippling damages liability the Court contemplated in AT&T Mobility. Instead, petitioner primarily relies (Pet. 22-23, 27) on litigation costs. But experience has shown that States are fully capable of litigating with the federal government when they wish to

do so. See, e.g., Biden v. Texas, 142 S. Ct. 2528 (2022);

West Virginia v. EPA, 142 S. Ct. 2587 (2022); United

States v. Washington, 142 S. Ct. 1976 (2022); Biden v.

Missouri, 142 S. Ct. 647 (2022) (per curiam); United

States v. Texas, 142 S. Ct. 522 (2021) (per curiam).

23

Fears about litigation costs are a particularly implausible explanation for the dearth of precedent supporting petitioner’s position here. Any State or local

government that believes the Attorney General lacks

the authority to sue under Title II may move to dismiss

on that basis as soon as a complaint is filed. If the district court denies the motion, the State or local government may seek interlocutory review through 28 U.S.C.

1292(b). The absence of any other court of appeals decisions on this issue therefore suggests either that public entities have not viewed the proposition that the Attorney General may sue as sufficiently in doubt to justify a request for interlocutory review, or that courts receiving such requests have uniformly determined that

there is not a “ substantial ground for difference of opinion” on the issue. Ibid.

4. Finally, even if the question presented otherwise

warranted this Court’s review, this case would not be a

suitable vehicle in which to consider it. If petitioner

prevailed, the Attorney General would not be able to

bring this suit under Title II. But petitioner receives

federal Medicaid funding for the children’s health programs at issue here. Pet. App. 69a. Those programs

are thus subject to the substantially similar prohibition

on disability discrimination in the Rehabilitation Act.

See 29 U.S.C. 794. And petitioner concedes (Pet. 19 n.1)

that “[t]he United States can bring suit under the Rehabilitation Act.”

When this suit was filed, DOJ had no reason to proceed under the Rehabilitation Act because no court had

ever suggested that the Attorney General lacks the authority to sue under Title II. But if petitioner prevailed

here, the federal government could take action to pursue relief under the Rehabilitation Act. And there is no

24

reason for this Court to take up the question presented

in a case where it makes little or no practical difference

to a State’s exposure to suit by the United States.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KRISTEN CLARKE

Assistant Attorney General

BONNIE I. ROBIN-VERGEER

SYDNEY A.R. FOSTER

Attorneys

AUGUST 2022