Opposition Brief — Pennsylvania Dept. of Corrections v. Yeskey

No. 97-634 Ee cated

In the Supreme Court

OF THE

United States

OcToBER TERM, 1997

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS, et al..

Petitioners,

Vv.

RONALD R. YESKEY,

Respondent.

On Petition For A Writ Of Certiorari To The

United States Court of Appeals For The Third Circuit

..$3?7.0--—=——oOO

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

-—

—— --———

Eve H. CERVANTEZ DONALD SPECTER

(No. 164709) (No. 83925)

HOWARD, RICE, NEMEROVSKI, Counsel of Record

CANADY, FALK & RABKIN PRISON LAW OFFICE

A Professional Corporation General Delivery

Three Embarcadero Center, San Quentin, CA 94964

7th Floor Telephone: 415/457-9144

San Francisco, CA 94111 Facsimile: 415/457-915]

Telephone: 415/434-1600

Facsimile: 415/399-3041

Attorneys for Respondent Ronald R. Yeskey

BOWNE OF SAN FRANCISCO INC + 343 SANSOME ST + SF CA 94104- (415) 362-2300

Of Counsel:

WARREN E. GEORGE MICHAEL W. BIEN

(No. 53588) (No. 96891)

JOHN V. WADSWORTH ROSEN, BIEN & ASARO

(No. 166838) 155 Montgomery Street

McCUTCHEN, DoyLe, BROWN & San Francisco, CA 94104

ENERSEN, LLP Telephone: 415/433-6830

Three Embarcadero Center

San Francisco, CA 94111-4066

Telephone: 415/393-2000

ELAINE B. FEINGOLD

(No. 99226)

1542 Scenic Avenue

Berkeley, CA 94708

Telephone: 510/848-8125

QUESTION PRESENTED

1. Whether Congress intended the Americans

with Disabilities Act, which prohibits any and all state

agencies from discriminating against disabled individuals,

to apply to state prisons?

TABLE OF CONTENTS

QUESTION PRESENTED

CONSTITUTIONAL AND STATUTORY

PROVISIONS

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

I.

THIS COURT'S GUIDANCE IS NOT

NECESSARY TO INTERPRET THE PLAIN

LANGUAGE OF THE ADA, WHICH

CLEARLY APPLIES TO ALL STATE

AGENCIES INCLUDING STATE

PRISONS.

A. The Clear Weight Of Circuit And

District Court Authority Apply The

ADA To State Prisons.

B. This Court Need Not Grant Certiorari

To Interpret The Plain Language Of

The Acts.

C. This Court Should Not Grant Review

To Determine The Method By Which

The ADA Should Be Applied To

Prisons, As That Issue Is Not Ripe For

Review.

10

THERE IS NO SPLIT IN THE CIRCUITS

OR OTHER REASON FOR THIS COURT

TO CONSIDER WHETHER CONGRESS

HAS THE POWER TO APPLY

GENERALLY APPLICABLE NON-

DISCRIMINATION LAWS TO STATE

PRISONS.

CONCLUSION

18

21

TABLE OF AUTHORITIES

Albright v. Oliver, 510 U.S. 266, 127 L. Ed. 2d

114 (1994) 4

Amos v. Maryland Dep't of Pub. Safety &

Correctional Servs., 126 F.3d 589 (4th Cir.),

petition for cert. filed (U.S. Dec. 19, 1997)

(No. 97-1113) passim

Andrus v. Glover Constr. Co., 446 U.S. 608 (1980) 14

Armstrong v. Wilson, 124 F.3d 1019 (9th Cir.),

petition for cert. filed, 66 U.S.L.W. 3308

(U.S. Oct. 20, 1997) (No. 97-686) passim

Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) 8, 12

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984) 15

City of Boerne v. Flores, 521 U.S.—, 138 L. Ed. 2d

624 (1997) 19, 20

City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432 (1985) 19, 20, 21

Clark v. California, 123 F.3d 1267 (9th Cir.),

petition for cert. filed, 66 U.S.L.W. 3308

(Oct. 20, 1997) (No. 97-686) 16, 17, 18,

20, 21

Clarkson v. Coughlin, 898 F. Supp. 1019

(S.D.N.Y. 1995) 9

v

v. Indiana Dep’t of Corrections, 115 F.3d

481 (7th Cir. 1997)

Don E. Williams Co. v. Commissioner, 429 U.S.

569 (1977)

Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996)

Ex parte Virginia, 100 U.S. 339 (1880)

Fennell v. Simmons, 951 F. Supp. 706 (N.D.

Ohio 1997)

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

Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991)

Herndon v. Johnson, 970 F. Supp. 703 (E.D. Ark.

1997)

Hilton v. South Carolina Pub. Rys. Comm’n, 502

U.S. 197 (1991)

v. Carter, 952 F. Supp. 520 (W.D.

Mich. 1996)

Lee v. Washington, 390 U.S. 333 (1968)

Lue v. Moore, 43 F.3d 1203 (8th Cir. 1994)

Niece v. Fitzner, 941 F. Supp. 1497 (E.D. Mich.

1996)

Onishea v. Hopper, 126 F.3d 1323 (11th Cir.

1997)

Oregon v. Mitchell, 400 U.S. 112 (1970)

Peeler v. Heckler, 781 F.2d 649 (8th Cir. 1986)

Page

8, 10, 16,

17, 20

15

8

20

vi

Printz v. United States, 521 U.S.-, 138 L. Ed.

2d 914 (1997)

Procunier v. Martinez, 416 U.S. 396 (1974)

Randolph v. Rodgers, 980 F. Supp. 1051

(E.D. Mo. 1997)

Salinas v. United States, -U.S.—, 66 U.S.L.W.

4011 (Dec. 2, 1997) (No. 96-738)

Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995),

cert. denied, 133 L. Ed. 2d 724 (1996)

Turner v. Safley, 482 U.S. 78 (1987)

United States v. Board of Comm'rs, 435 U.S. 110

(1978)

White v. Colorado, 82 F.3d 364 (10th Cir. 1996)

Yeskey v. Pennsylvania Dep’t of Corrections, 118

3d 168 (3d Cir.), petition for cert. filed, 66

F.

U.S.L.W. 3298 (U.S. Oct. 8, 1997) (No. 97-634)

Statutes and Regulations

29 U.S.C.

§794(a)

§794(b)

42 U.S.C.

§12101(a)(8)

§12101(a)(9)

§12101(b)(4)

§12131

§§12131-12165

§12131(1)(A)

§12132

§12133

passim

§12134

§12134(b)

§12181(7)

§12201(a)

§12208

§12210(a)

28 C.F.R.

§35.130(b)(7) (1991)

§35.150(a)(3) (1993)

§35.164 (1991)

§42.540(h) (1980)

§42.540(j) (1980)

Exec. Order No. 11,914, 45 Fed. Reg. 37,620

(1980)

Fed. R. Civ. P. 12(b)(6)

Pa. Cons. Stat. Ann.

§1122

§1123

§1125(b)

Legislative History

H.R. Rep. No. 485, Part Il, reprinted in 1990

U.S.C.C.A.N. 267

S. Rep. No. 116, 101st Cong., 1st Sess. 44 (1989)

Other Authorities

Webster's Third New International Dictionary (1986)

11, 12

15

15

11

1

No. 97-634

In the Supreme Court

of the

United States

OCTOBER TERM, 1997

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

Respondent Ronald R. Yeskey respectfully requests

this Court to deny the petition for a writ of certiorari

seeking review of the Third Circuit’s opinion in Yeskey v.

Pennsylvania Department of Corrections, reported at 118 F.3d

168 (3d Cir. 1997), and reprinted at Appendix 1a-13a.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Petitioners fail to set forth the full text of Title I of

the Americans with Disabilities Act, 42 U.S.C.

§§12131-12165, in either their Petition for Writ of Certiorari

or their Appendix, although the full text is relevant to this

statutory interpretation question. The following portions

are relevant to this Petition:

2

§12131. Definitions

As used in this subchapter:

(1) Public entity

The term “public entity” means—

(A) any State or local

government;

(B) any department, agency,

special purpose district, or other

instrumentality of a State or States or

local government; and

(C) the National Railroad

Passenger Corporation, and any com-

muter authority (as defined in section

502(8) of Title 45).

(2) Qualified individual with a disability

The term “qualified individual with a

disability” means an individual with a

disability who, with or without reasonable

modifications to rules, policies, or prac-

tices, the removal of architectural, commu-

nication, or transportation barriers, or the

provision of auxiliary aids and services,

meets the essential eligibility requirements

for the receipt of services or the participa-

tion in programs or activities provided by

a public entity.

§12132. Discrimination

Subject to the provisions of this sub-

chapter, no qualified individual with a

disability shall, by reason of such disabi-

lity, be excluded from participation in or

be denied the benefits of the services,

programs, or activities of a public entity,

3

or be subjected to discrimination by any

such entity.

§12133. Enforcement

The remedies, procedures, and rights

set forth in section 794a of Title 29 shall be

the remedies, procedures, and rights this

subchapter provides to any person alleg-

ing discrimination on the basis of disabi-

lity in violation of section 12132 of this

title.

§12134. Regulations

(a) In general

Not later than 1 year after July 26,

1990, the Attorney General shall promul-

gate regulations in an accessible format

that implement this part. Such regula-

tions shall not include any matter within

the scope of the authority of the

of Transportation under sections 12143,

12149, or 12164 of this title.

(b) Relationship to other regulations

Except for “program accessibility,

existing facilities,” and “communications,”

regulations under subsection (a) of this

section shall be consistent with this chap-

ter and with the coordination regulations

under part 41 of title 28, Code of Federal

Regulations (as promulgated by the

Department of Health, Education, and

Welfare on January 13, 1978), applicable to

recipients of Federal financial assistance

under section 794 of Title 29. With respect

to “program accessibility, existing facili-

ties,” and “communications,” such

tions shall be consistent with regulations

and analysis as in part 39 of title 28 of the

4

Code of Federal Regulations, applicable to

federally conducted activities under such

section 794 of Title 29.

(c) Standards

Regulations under subsection (a) of

this section shall include standards appli-

cable to facilities and vehicles covered by

this part, other than facilities, stations, rail

passenger cars, and vehicles covered by

part B of this subchapter. Such standards

shall be consistent with the minimum

guidelines and requirements issued by the

Architectural and Transportation Barriers

Compliance Board in accordance with

section 12204(a) of this title.

STATEMENT OF THE CASE

Respondent Ronald R. Yeskey was originally

sentenced to serve eighteen (18) to thirty-six (36) months in

state prison, but the sentencing court recommended that

Yeskey instead be placed in the Motivational Boot Camp

Program (“Boot Camp”). Complaint 449-10.’ Participants

in the Boot Camp, which is designed for youthful, non-

violent offenders, are released on parole after just six

months. Id. 410; 61 Pa. Cons. Stat. Ann. §1123. In addi-

tion to early release, participants receive the benefits of

substance abuse treatment, continuing education, vocational

training and prerelease counseling. 61 Pa. Cons. Stat. Ann.

§1123.

Despite the sentencing court’s recommendation,

Petitioner Department of Corrections determined that

Respondent was not eligible to participate in the Boot

‘Because Yeskey’s case was dismissed pursuant to Federal Rule of

Civil Procedure 12(b)(6), all well-pleaded allegations of the complaint

must be taken as true for purposes of this appeal. See Albright v. Oliver,

510 U.S. 266, 268, 127 L. Ed. 2d 114, 120 (1994).

5

Camp. Specifically, Respondent “was medically disap-

proved for participation in the program due to a medical

history of hypertension (on medication).” Complaint 11.

Despite Respondent’s repeated requests, the Department

failed to reconsider the decision deeming Respondent

ineligible for participation in the Boot Camp, and also failed

to establish any alternative program offering to disabled

persons the same benefits provided by the Boot Camp. Id.

712.

Respondent brought this suit under Title II of the

Americans with Disabilities Act (“ADA”) against

Petitioners—the Commonwealth of Pennsylvania

Department of Corrections and three Department officials

(in both their individual and official capacities). Complaint

114-7. He sought both money damages and an injunction

“to immediately enjoin Defendants from administering the

Motivational Boot Camp Program without complying with

Title II of the ADA and the federal regulations promulgated

thereunder.” Id., Prayer {c.

Petitioners filed a Motion to Dismiss, arguing

(1) that Respondent had no protected right to a particular

custody status, and (2) that Respondent was not an “other-

wise qualified individual” because he could not meet the

Boot Camp’s requirement of “rigorous physical activity.”°

A Magistrate Judge recommended dismissal of the

Complaint because state prisoners do “not have a protected

liberty interest in matters of classification or particular

‘Respondent also alleged violations of the United States and

Pennsylvania Constitutions, but those allegations are not at issue here.

Petitioners attached a copy of the Boot Camp’s Physical Fitness

Manual, and made the unsupported statement that “[c}learly, Yeskey,

suffering from a physical condition that prevents his ability to engage in

vigorous physical activity, is not an ‘otherwise qualified’ individual who

can meet the boot camp’s requirement of ‘rigorous physical activity.”

Brief in Support of the Commonwealth Defendants’ Motion to Dismiss

at 14-15. The district court correctly ignored these unsupported factual

allegations, as this was a motion to dismiss, and not one for summary

judgment.

6

custody status” and because “an inquiry by this Court into

matters of prison administration ... would necessarily

interfere with the administration’s right to police its penal

system.” Appendix 16a. In responding to Respondent's

Objections to the Magistrate Judge’s Report and

Recommendation, Petitioners for the first time argued that

the ADA does not apply to state prison inmates. The

District Court adopted this reasoning and, relying on

Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied,

133 L. Ed. 2d 724 (1996), held that the ADA does not apply

to state prison inmates. Appendix 17a-19a.

The Third Circuit reversed. Based on the “plain

words of [the] statute,” as well as the “weight of judicial

authority” and the Department of Justice i

implementing the statute, the Third Circuit held that the

ADA applies to state prison inmates. Yeskey v. Pennsylvania

Dep't of Corrections, 118 F.3d 168, 170-74 (3d Cir.), petition for

cert. filed, 66 U.S.L.W. 3298 (U.S. Oct. 8, 1997) (No. 97-634).

REASONS FOR DENYING THE WRIT

First, there is no important split in the circuits

warranting review by this Court. Petitioners’ contention

that “the courts of appeals cannot agree on whether

Congress ever intended the ADA to apply to management

of disabled state prisoners” (Pet. 4), is incorrect. The Third,

Seventh, Eighth, Ninth and Eleventh Circuits, as well as

district courts in the Second and Sixth Circuits, have all

found, based on the plain language of the statutes, that the

ADA and/or Section 504 of the Rehabilitation Act of 1973

(“Rehabilitation Act” or “Section 504”) do apply to state

prisoners. Only two judges in the Fourth Circuit have

squarely held that the ADA is inapplicable to state prison-

ers; a vigorous dissent agrees with the other circuits that

these two judges misapplied and misinterpreted a standard

canon of statutory construction, the “clear statement rule.”

Furthermore, other matters raised in connection

with this argument are not ripe for review. The ADA is

one of a long line of anti-discrimination laws generally

7

applicable to business establishments and state and local

governments. Petitioners attempt to characterize Congress’s

inquiry or decision on the merits regarding Respondent's

particular claims. The Third Circuit specifically noted that

Respondent's claim turns on “whether he should (or would)

have been admitted to the boot camp. Even with the ADA

applicable, Yeskey might not have been admitted for a

number of reasons, which will have to be explored on

remand.” Yeskey, 118 F.3d at 174. There is thus no factual

record by which this Court could determine whether

application of the ADA interfered in state prisor.

management.

Second, there is absolutely no support for

Petitioners’ contention that there is a split in the circuits

regarding congressional power to apply the ADA to state

prisons. See Pet. 4, 10-12. Indeed, Petitioners failed to raise

the issue of the constitutionality of the ADA to the Third

Circuit, and all circuit courts to consider the issue have

determined that the ADA falls squarely within congressio-

nal power to enforce the Fourteenth Amendment. Even if

this Court grants certiorari to determine whether Congress

intended to apply the ADA to prisons, it should decline to _

consider this novel constitutional question.

The plain language of the ADA, and the clear

weight of circuit and district court authority, support the

Third Circuit’s decision in this case that the ADA applies to

state prisons. Only two judges of the Fourth Circuit have

directly held to the contrary—and then only over a vigorous

dissent. See Amos v. Maryland Dep't of Pub. Safety &

Correctional Servs., 126 F.3d 589 (4th Cir.), petition for cert.

filed (U.S. Dec. 19, 1997) (No. 97-1113). Moreover,

Petitioners’ purported fear that application of the ADA to

state prisons will cause “chaos” (Pet. 9) raises

difficulties about the application of the ADA in

circumstances that are not yet ripe for review. There is thus

no need for this Court to grant review to interpret the plain

meaning of an unambiguous statute.

A. The Clear Weight Of Circuit And District Court

Authority Apply The ADA To State Prisons.

Two years prior to passage of the ADA, the Ninth

Circuit held that the Rehabilitation Act applies to state

prisoners.* Bonner v. Lewis, 857 F.2d 559, 562 (9th Cir.

1988). The Eleventh and Eighth Circuits followed suit.

Harris v. Thigpen, 941 F.2d 1495, 1522 n.41 (11th Cir. 1991);

Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir. 1994) (dicta); see

also Peeler v. Heckler, 781 F.2d 649, 652-53 (8th Cir. 1986).

Recentiy, the Third, Seventh, and Ninth Circuits have all

determined, based on the plain language of the Act, that

the ADA applies to state prisoners. Yeskey, 118 F.3d at 172;

452 (9th Cir. 1996); Armstrong v. Wilson, 124 F.3d 1019, 1023

(9th Cir.), petition for cert. filed, 66 U.S.L.W. 3308 (U.S.

Oct. 20, 1997) (No. 97-686). Moreover, in those circuits in

which the issue has not yet been decided, district courts

9

have consistently applied the ADA to state prison inmates.

See Randolph v. Rodgers, 980 F. Supp. 1051, 1059-60 (E.D.

Mo. 1997); Herndon v. Johnson, 970 F. Supp. 703, 708 (E.D.

Ark. 1997); Kaufman v. Carter, 952 F. Supp. 520, 529 (W.D.

Mich. 1996); Niece v. Fitzner, 941 F. Supp. 1497, 1505 (E.D.

Mich. 1996); Clarkson v. Coughlin, 898 F. Supp. 1019, 1036-38

(S.D.N.Y. 1995).

Contrary to Petitioners’ contention, the Tenth

Circuit has not squarely held that the ADA does not

prisons, but has instead held only that it does not

apply to prisoner employment. See White v. Colorado, 82 ~

F.3d 364, 367 (10th Cir. 1996). As the Ninth Circuit noted

in distinguishing White, the plaintiffs in the Armstrong case

rights that prisoners do not park at the prison gates.”

Armstrong, 124 F.3d at 1025 (quoting Crawford, 115 F.3d at

486 (citing Turner v. Safley, 482 U.S. 78, 84 (1987))).

*See also Torcasw v. Murray, 57 F.3d at 1342 (defendant prison officials

granted qualified immunity because it was not clearly established that the

ADA applied to state prisoners, or that obesity was a covered disability)

District courts within the Fourth Circuit have also declined to apply the

10

B. This Court Need Not Grant Certiorari To Interpret

The Plain Language Of The Acts.

Other courts have had no trouble discerning that

the plain language of the ADA applies to state prisons.

There is thus no need for this Court to grant certiorari to

interpret the ADA’s unambiguous language. The language

of the ADA could not be clearer. It applies to “any State or

local government” and “any department, agency, . . - or

other instrumentality of a State or States or local govern-

ment.” 42 U.S.C. §12131(1)/A) (emphasis added). The

court below correctly found that this definition “clearly

encompasses a state or local correctional facility or autho-

rity.” Yeskey, 118 F.3d at 170. Other courts concur. See

Armstrong, 124 F.3d at 1024 (“Congress could hardly have

spoken ‘much more clearly than it did when it made the

the term “public entity” to include every possible agency of

state or local government’”) (quoting Crawford, 115 F.3d at

485).° See also Amos, 126 F.3d at 612-13. (Murnaghan, J.

dissenting). Indeed, even the majority in Amos found that

Congress intended the ADA to to the states

Government is plain from the language of the Act.

The ADA prohibits state and local governments

from discriminating against qualified individuals with

disabilities in the provision of “services, programs, or

activities of a public entity.” 42 U.S.C. §12132. Again, this

language is clear, and it clearly does not exclude state

prisons. “Program or activity” is specifically defined in the

Rehabilitation Act to include “all of the operations of—(1)(A)

prisons); Fennell v. Simmons, 951 F. Supp. 706, 708 (N.D. Ohio 1997)

(same); Kaufman, 952 F. Supp. at 527-28, 529 (same); Niece, 941 F. Supp

at 1506 (same).

11

a department, agency, ... or other instrumentality of a

any part of which is extended Federal financial

P o

be interpreted in a manner consistent with

Section 504. 42 U.S.C. §§12134(b), 12201(a). As the Court

below correctly noted,

|

|

Nor is there any support for Petitioners’ contention

that the ADA’s introductory language suggests the exclu-

assure of , full pation, in -

dont ving, and eounentie eulbeuiidency” op tat penis

with disabilities can “ those for which

our free society is justifiably famous.” Pet. 6 n.2 (quoting

42 U.S.C. §12101(a)(8), (9)). Indeed, these goals mirror the

goals of the Motivational Boot Camp Program, from which

Respondent was excluded on the basis of his perceived

disability. The Boot Camp Program was created because of

the Commonwealth’s desire “to salvage the contributions

and dedicated work which its displaced citizens may

offer.” Pa. Cons. Stat. Ann. §1122. The statutory

objectives of the Motivational Boot Camp are to prepare

prisoners to be productive members of free society:

(1) To protect the health and safety of the

Commonwealth by providing a program

“not fall naturally within the ambit” of the statutory terms “program” and

“activity.” Amos

(“Activity’ means, inter alia, ‘natural or normal function or operation,

and includes the ‘duties or function’ of ‘an organizational unit for

12

which will reduce recidivism and promote

characteristics of good citizenship among

eligible inmates.

(3) To provide discipline and structure to

the lives of eligible inmates and to pro-

mote these qualities in the

behavior of eligible inmates. (Id. §1125(b))

See also Bonner, 857 F.2d at 562 (The Rehabilitation Act’s

“goals of independent living and vocational rehabilitation

should in fact mirror the goals of prison officials as they

attempt to rehabilitate prisoners and prepare them to lead

productive lives . . .”).

Because the ADA is unambiguous, the two Fourth

Circuit judges erred in applying the clear statement rule. It

is unlikely that this mistake will be repeated by other

courts. The clear statement rule is a canon of statutory

construction that is only to be applied to

statutes. Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S.

197, 205-06 (1991); Gregory v. Ashcroft, 501 U.S. 452, 461

(1991). “It is not a warrant to disregard clearly expressed

congressional intent.” Yeskey, 118 F.3d at 173. As this

Court recently stated in declining to apply the clear state-

ment rule to an unambiguous statute:

Statutes should be construed to avoid

constitutional questions, but this interpre-

tative canon is not a license for the judi-

ciary to rewrite language enacted by the

legislature. Any other conclusion, while

g to be an exercise in judicial

restraint, would trench upon the legisla-

tive powers vested in Congress by Art., I

§1, of the Constitution. (Salinas v. United

States, -U.S.-, 66 U.S.L.W. 4011, 4013

(Dec. 2, 1997) (No. 96-738) (citations

omitted))

13

Moreover, it is highly improbable that other courts

will repeat the Amos majority’s misinterpretation of the clear

statement rule, which is flatly contradicted by this Court’s

decision in Gregory, 501 U.S. 452. There is no support for

the Amos maijority’s finding that “a clear statement is

required not simply in determining whether a statute

applies to the States, but also in determining whether the

statute applies in the particular manner claimed.” Amos,

126 F.3d at 604 (citation omitted). If the two Amos judges

are correct, then “Congress cannot make the Rehabilitation

Act and the ADA [or any other statute] applicable to state

prisons or to other areas traditionally reserved to the states

unless it separately lists each state agency that the statutes

apply to in the statutory text.” Id. at 614 (Murnaghan, J.,

dissenting). The court below recognized that this

approach has already been rejected by this Court in Gregory,

which stated “[t]his does not mean that the Act must

mention judges explicitly” in order to include them. Yeskey,

118 F.3d at 173 (quoting Gregory, 501 U.S. at 467).’

In Gregory, this Court was called upon to determine

if a statutory exception to the Age Discrimination in

Employment Act (ADEA) for certain high-ranking officials

encompassed state judges. The Court recognized that the

ADEA covers all state employees except those specifically —

exempted, and stated that “[ijn the context of a statute that

plainly excludes most important state public officials, [the

exception for] ‘appointee on the policy-making level’ is

sufficiently broad that we cannot conclude that the statute

plainly covers appointed state judges.” 501 U.S. at 467.

deliberately chose not to list specific state ies in

mast ta oun sats Go ha epytants yeas a a

agencies. See 42 U.S.C. §12131. Congress understood the difference

between specifying “any” or “all” rather than listing only certain covered

agencies. Compare 42 U.S.C. §12181(7) (listing twelve types of public

accommodation covered by Title II] of the ADA).

*Contrary to Petitioner's suggestion that the court below ignored this

Court’s decision in Gregory (Pet. 8), the Third Circuit carefully analyzed

and correctly applied Gregory.

14

The Court thus held that the breadth of the exception (not

the breadth of the statute) rendered the statute ambiguous,

such that the plain statement rule had to be applied. “In

contrast to the ADEA, which expressly excludes most

i g officials from its reach, ... the ADA and

[Rehabilitation Act] apply to ‘any’ and ‘all’ state entities and

operations without exclusions.” Armstrong, 124 F.3d at

1024." “In light of the clear and all-encompassing

of both statutes, there is no basis for requiring

Congress to have detailed which of the many important

components of state and local ts were to be

included in the terms ‘any’ and ‘all.’” Yeskey, 118 F.3d at

173.

Although Petitioners are correct that the manage-

ment of state prisons is regarded as a core state

function, it does not follow that the plain statement rule

applies to any federal law of general ion that affects

prisons. Cf. Pet. 7-8. Cases cited by Petitioners for the

proposition that federal courts should defer to the judgment

of state prison administrators also demonstrate that federal

courts have a duty to intervene to protect state prisoners’

federal rights when . See, e.g., Procunier v.

Martinez, 416 U.S. 396, 405-06, 415-18 (1974) (striking down

censorship of inmate mail); Turner v. Safley, 482 U.S. 78, 85

(1987) (striking down prohibition on inmate marriages).

Because the plain language of the ADA applies to

state prisons, there is no need to examine Petitioners’ other

arguments regarding legislative and regulatory history.”

“The ADA exempts certain classes of individuals but prison inmates

are not excluded. See, ¢.g., 42 U.S.C. §12210(a) (no protection for current

users of illegal drugs); id. §12208 (no protection for transvestites). When

a statute lists specific exemptions, other exemptions are not to be

judicially implied. Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17

(1980).

"Contrary to Petitioners’ contention, there is no conflict between the

Third and Fourth Circuits concerning the meaning of the legislative

history of the ADA (Pet. 9), since neither Court rested its holding on this

(continued...)

——

15

Pet. 9-10. However, the Third Circuit’s reliance on

Department of Justice regulations is amply supported. Ten

years prior to passage of the ADA, the Department of

Justice promulgated regulations under Section 504 which

apply to prisons. See, e.g., 28 C.F.R. §42.540(h)

(1980); 28 C.F.R. §42.540(j) (1980); Exec. Order No. 11,914,

45 Fed. Reg. 37,620, at 37,630 (1980). Congress mandated

that the ADA regulations be consistent with the Section 504

.egulations. 42 U.S.C. §12134(b); see also S. Rep. No. 116,

101st Cong., ist Sess. 44 (1989) (purpose of Title II is to

apply Section 504 to state and local govern-

ments); H.R. Rep. No. 485, Part Il, reprinted in 1990

U.S.C.C.A.N. 267, 366, 473 (same). When Congress voices

its approval of a pre-existing administrative interpretation of

a statute, that interpretation the force of law. See

United States v. Board of Comm’rs, 435 U.S. 110, 134 (1978);

Don E. Williams Co. v. Commissioner, 429 U.S. 569, 574-77

(1977). The Fourth Circuit held only that Chevron defer-

ence” was unavailable, but did not discuss these congres-

sional directives that indicate of the existing

— eg applying Section 504 to prisons. Amos, 126 F.3d

a

C. This Court Should Not Grant Review To

Determine The Method By Which The ADA

Should Be Applied To Prisons, As That Issue Is

Not Ripe For Review.

It is evident that Petitioners’ argument for review,

and the majority opinion in Amos, are based upon an

unproven and untried presumption that application of the

ADA to state prisons would cause “chaos.” Pet. 8-9 (citing

Amos, 126 F.3d at 600). This also appears to be the chief

"(.. continued)

history, but stated only that the legislative history did not weigh against

its holding. Yeskey, 118 F.3d at 174 n.7; Amos, 126 F.3d at 602.

“Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 844-45 (1984).

16

concern of other states that have requested that the petition

be granted. See Brief of Amici Curiae at 2, Pennsylvania

Dep’t of Corrections v. Yeskey (No. 97-634) and Wilson v.

Armstrong and California v. Clark (No. 97-686) (Nov. 1997)

(filed by State of Nevada on behalf of itself and other

states). That is, Petitioners ask this Court to ignore the

plain language of the ADA because its application might

interfere with prison management. As Judge Posner

recognized in determining that the ADA and Rehabilitation

Act apply to state prisons, “[rjealistically, the state is asking

us to amend the two statutes. Realistically, judges do this,

or something like it at times.” Crawford, 115 F.3d at 484.

Judge Posner acknowledged that judges use the clear

statement rule “when they have great confidence that the

legislature could not have meant what it seemed to say,”

(id. at 485), and sometimes formulate exceptions to statutes

“to save the statute from generating absurd consequences.

Id. Although Judge Posner stated that “it might seem

absurd to apply the Americans with Disabilities Act to

prisoners,” (id. at 486), he also pointed out

there is another side to the issue. The

Americans with Disabilities Act was cast

in terms not of subsidizing an interest

group but of eliminating a form of dis-

unfair and even odious. The Act assimi-

lates the disabled to groups that by reason

discrimination. Rights against discrimina-

tion are among the few rights that prison-

ers do not park at the prison gates.

Although the special conditions of the

prison setting license a degree of discrimi-

nation that would not be tolerated in a

free environment, there is no general right

of prison officials to discriminate against

prisoners on grounds of race, sex,

religion, and so forth. If a prison may not

17

exclude blacks from the prison dining hall

and force them to eat in their cells, and if

Congress thinks that i

against a blind person is like discriminat-

ing against a black person, it is not obvi-

ous that the prison may exclude the blind

person from the dining hall, unless allow-

ing him to use the dining hall would place

an undue burden on prison management.

(Id. at 486 (citations omitted); accord,

Yeskey, 118 F.3d at 174)

To the extent that the tw6-judge decision in Amos,

and Petitioners’ arguments for review here, are based on

the imagined difficulties in applying the ADA to state

prisons, such alleged difficulties are not yet ripe for

review.” The two Fourth Circuit judges unjustifiably

criticize the Third and Seventh Circuits for “transform[ing]

themselves into contortionists attempting to avoid the

necessary consequences of their holdings by declining to

outline the meaning of ‘reasonable accommodation’ and

‘undue burden’ in the prison context.” Amos, 126 F.3d at

600. However, that question was not before either court,

because both cases arose from dismissals under Federal Rule

of Civil Procedure 12(b)(6) on grounds that the ADA does

not apply to state prisons. Yeskey, 118 F.3d at 169; Crawford,

115 F.3d at 483. Thus, there had not been any factual

determination on which to decide these issues. Nor has

there been such a factual determination in any of the cases

presently pending before this Court on petition for writ of

certiorari.” Thus, the fear of undue interference with state

™Nor should the Court grant review because of the amici States’

claims that their litigation workloads have increased slightly because of

prisoner suits brought under the ADA. The fact that a new law brings

additional lawsuits is no reason for eviscerating the law.

“In Armstrong the Ninth Circuit held that the ADA applies to state

prisons, but did not consider any particular order or injunction.

Armstrong, 124 F.3d at 1022-25. In Amos, the Fourth Circuit affirmed the

(continued...)

18

prison administration expressed by the Amos judges is both

premature and unwarranted,” and presents no issue

warranting review by this Court at this time.

I.

THERE IS NO SPLIT IN THE CIRCUITS OR

OTHER REASON FOR THIS COURT TO CONSIDER

WHETHER CONGRESS HAS THE POWER TO APPLY

GENERALLY APPLICABLE NON-DISCRIMINATION

LAWS TO STATE PRISONS.

As a preliminary matter, Petitioners’ second

argument for review—that Congress lacks power under the

Fourteenth Amendment to apply the ADA to state

prisoners—was not raised by Petitioners in their Brief to the

Third Circuit, nor considered or decided by that court.

Moreover, there is no support for Petitioners’ contention

that the question of whether Congress can use its enforce-

ment power under the Fourteenth Amendment to apply the

ADA to state prisoners “is very much open to question.”

See Pet. 11. No circuit court has even considered this

question. See also Amos, 126 F.3d at 603 (noting that

appellees there did not argue that Congress lacked the

power to apply the ADA to state prisons). Petitioners’ last

ditch attempt to challenge congressional power to apply the

*(...continued)

district court’s grant of summary judgment. Amos, 126 F.3d at 612. In

Clark, the Ninth Circuit affirmed the district court’s decision not to

dismiss the State of California based on the Eleventh Amendment. Clark

v. California, 123 F.3d 1267, 1269, 1271 (9th Cir.), petition for cert. filed, 66

U.S.L.W. 3308 (Oct. 20, 1997) (No. 97-686).

“The ADA does not require state officials to take any action that

would “fundamentally alter” the nature of the service, program, or

activity or that would create an undue financial or administrative burden.

28 C.F.R. §35.130(b)(7) (1991); 28 C.F.R. §35.150(a)(3) (1993); 28 C.F.R.

§35.164 (1991). See also Onishea v. Hopper, 126 F.3d 1323, 1336 (11th Cir.

1997) (Rehabilitation Act “mandates judicial consideration of interests

particular to the prison system”).

19

ADA to state prisons is wholly unsupported, and should

not be considered by this Court.

CONCLUSION

In light of the fact that the Court has already

granted certiorari in this case, we urge the Court to make

clear that the question presented is restricted to the question

- fee’ — oy ae ine of the ADA: Did

A to state prisons? As ed

above, the question of the constitutionality of applying the

ADA to state prisons is not properly before this Court.

DATED: January 26, 1998.

Respectfully,

Counsel of Record

PRISON LAW OFFICE

EVE H. CERVANTEZ

HOWARD, RICE, NEMEROVSKI, CANADY,

FALK & RABKIN

A Professional Corporation

WARREN E. GEORGE

JOHN V. WADSWORTH

MCCUTCHEN, DOYLE, BROWN &

ENERSEN, LLP

ELAINE B. FEINGOLD

MICHAEL W. BIEN

ROSEN, BIEN & ASARO