Amicus Curiae Brief — Frew v. Hawkins

(y | FILED JS.

j

4

No. 02-628 |

MAY 8 2003

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

LINDA FREW, on behalf of her daughter,

Carla Frew, et al.,

Petitioners,

Vv.

DON GILBERT, Commissioner of the Texas Health

and Human Services Commission, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF AARP, THE AMERICAN

ASSOCIATION OF PEOPLE WITH DISABILITIES,

THE AMERICAN CIVIL LIBERTIES UNION,

THE ANTI-DEFAMATION LEAGUE, THE JUDGE DAVID

L. BAZELON CENTER FOR MENTAL HEALTH LAW,

CHILDREN’S RIGHTS, THE NATIONAL ASSOCIATION

OF PROTECTION AND ADVOCACY SYSTEMS, THE

NATIONAL HEALTH LAW PROGRAM, AND NOW

LEGAL DEFENSE AND EDUCATION FUND

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

DAVID T. GOLDBERG

Counsel of Record

99 Hudson Street, 8" FI.

New York, NY 10013

(212) 33’ 8813

3

17

secne ae

A. State Officials May Undertake — And

:

Federal Courts, Enforce — Obligations That

Go Beyond Compliance With Federal Law

The Fifth Circuit Rule Is Anomalous

A. The Eleventh Amendment Does Not

Divest A Federal Court Of

“Inherent Jurisdiction” To Enforce

Of Federal Court Orders That Are “Valid” —

Court’s Decree Waives Eleventh Amendment

Objection To Its Enforcement................... 11

I. State Officials’ Consent To A Federal

II. The Eleventh Amendment Provides

No Basis For Recognizing A Category

Il. The Appeal’s Court’s Limitations On Enforceable

Pei

17

es

B. The Fifth Circuit’s Restriction,

To Obligations To Which Plaintiffs Have

A § 1983 Right, Is Wholly Unwarranted .......

IV. The Fifth Circuit’s Rules Would Seriously

And Unnecessarily Undermine

Important Public Interests ...............0000005

A. The Decision Makes Settlements With

State Officials A Practical Impossibility .......

B. The Fifth Circuit’s Rules Are Not

Necessary To Protect Any Legitimate

Eo es ea dueyies cured nedes

SE oe ede the beeeeeadeeuneboneee

LE LA A ee

Table of Authorities

Federal Cases

Air Courier Conference v. American

Postal Workers Union, 498 U.S. 517 (1991) ....... 25

Anderson v. Dunn, 18 U.S. 204 (1821) ............ 13, 20

Antrican v. Odom, 290 F.3d 178, 191(4th Cir. 2002) ... 25

Badgley v. Santacroce, 800 F.2d 33 (2d Cir. 1986)... 13,16

Beckett v. Air Line Pilots Ass'n,

pe y flee 3.) ree 24

Bell v. Wolfish, 441 U.S. 520 (1979) .... 2... 6. eee ene. 23

Blessing v. Freestone, 520 U.S. 329 (1997) ............ 7

Clark v. Bernard, 108 U.S. 436 (1883) ............ 12, 26

Cooper v. Aaron, 358 U.S. 1 (1958) .............. 16, 18

Crosby v. National Foreign Trade Council,

i ccerceckeushessecconcess 9, 24

Davis v. Passman, 442 U.S. 228 (1979) ...... 6.66.45. 25

Dennis v. Higgins, 498 U.S. 439 (1991) .............. 23

Dugas v. American Surety Co., 300 U.S. 414 (1937) .... 14

Edelman v. Jordan, 415 U.S. 651 (1974) .......... 19, 26

iil

Evans v Jeff D., 475 U.S. 717 (1986) .............. 28, 30

In re Factor VIII or IX Concentrate Blood Prods. Litig.,

159 F.3d 1016 (7th Cir. 1998) ................4.. 19

Fairmont Creamery Co. v. Minnesota,

PPD CED nacecuseceeucaéasceusteeses 27

Farrar v. Hob y, 506 U.S. 103 (1992) ............... 14

Firefighters v. City of Cleveland,

Se ee Se ED ceccccecasesctccsecccs passim

FTC v. National Lead Co., 352 U.S. 419 (1957) ....... 21

Golden State Transit Corp. v. Los Angeles,

Ge es SPD cocceucceseesousess 7, 9, 23, 25

Green v. Mansour, 474 U.S. 64 (1985) ............. 9,24

Griffin v. Prince Edward County Sch. Bd.,

Bee Se BD ecceccecccessesccussceeees 29

Guaranty Nat'l Ins. Co. v. Gates,

916 F.2d 508 (9th Cir. 1990) .............00065. 25

Gunter v. Atlantic Coast Line R. Co.,

SE SED ncvudocesueouedsnsaees passim

Hewitt v. Helms, 482 U.S. 755 (1987) ..............--- 17

Hook v Arizona Dep't of Corrections,

972 F.2d 1012 (9th Cir. 1992) .............--5-. 18

iv

Hormel v. Helvering, 312 U.S. 552 (1941) ............ 19

Hudson v. Chicago Teachers Union,

922 F.2d 1306 (7th Cir.1991) ................ 12, 30

Hutto v. Finney, 437 U.S. 678 (1979) ....... 15, 16, 27, 30

Idaho v. Couer d'Alene Tribe, 521 U.S. 261 (1997) ..... 15

Kokkonen v. Guardian Life Ins. Co.,

8” REE 14, 16, 20

Komyatti v Bayh, 96 F.3d 955 (7th Cir. 1996) . 16, 17, 23, 29

Kozlowski v. Coughlin,

871 F.2d 241 (2d Cir. 1989) ............... 8, 14, 19

Ku v. Tennessee, 332 F.3d 431 (6th Cir. 2003) ......... 26

Labette County Comm'rs v. United States

ex rel. Moulton, 112 U.S. 217 (1884) ............. 14

Lapides v. Board of Regents, University System -

of Georgia, 535 U.S. 613 (2002) ............ passim

Lawyer v. United States Dep't of Justice,

DPCP canecnenesssocesseosseuese 22

Lelsz v. Kavanagh,

807 F.2d 1243 (Sth Cir. 1987) .......... 6, 14, 22, 23

Local Loan Co. v. Hunt, 292 U.S. 234 (1934) ....... 13, 24

Maher v. Gagne, 448 U.S. 122 (1980) ................ 22

Vv

Maness v. Meyers, 419 U.S. 449 (1975) ...........55. 18

Marek v Chesny, 473 U.S. 1 (1985) ...........--255-- 28

Milliken v. Bradley, 418 U.S. 717 (1974) ............. 21

Montgomery v. Maryland,

266 F.3d 334 (4th Cir. 2001) ............-00005. 28

Morales v. Trans World Airlines, Inc.,

Re SED Sacceueescosscessceocconces 24

National Society of Professional Engineers

v. United States, 435 U.S. 679 (1978) ............ 21

New York State Ass'n for Retarded Children, Inc.

v. Carey, 596 F.2d 27 (2d Cir. 1979) ...........-.-. 11

Northwest Airlines, Inc. v. County of Kent, -

SP SPEED obccccdcceseseccecococesces 25

Pasadena City Bd. of Educ. v. Spangler,

Ge ee SESE cccncccsecccecccteseeveecs 26

Peacock v. Thomas, 516 U.S. 349 (1996) ............- 16

Pennhurst State School v. Halderman,

Se ED eC ccceccccccces eiateceedoedd 23

Prout v. Starr, 188 U.S. 537 (1903) ............-.+--- 15

Puerto Rico Aqueduct & Sewer Auth. :

v. Metcalf & Eddy, 506 U.S. 139 (1993) .......... 12

vi

MP one

Railway Employees v. Wright, 364 U.S. 642 (1961) ..... 30

Riggs v. Johnson County, 73 U.S. 166 (1867) .......... 14

Root v. Woolworth, 150 U.S. 401, 412 (1893) ........ 8, 15

Rufo v. Inmates of Suffolk Co. Jail,

Fe Ge SE SUD EUNEED cccccccccccccesces passim

Saahir v. Estelle, 47 F.3d 758 (Sth Cir.1995) ........... 6

Shaw v. Delta Air Lines, 463 U.S. 85 (1983) ........... 25

Siegert v. Gilley, 500 U.S. 226 (1991) ................ 23

Spallone v. United States, 493 U.S. 265 (1989) ...... 16, 30

St. Louis Min. & Mill. Co. v. Montana Mining Co.,

FSS GEE SSuscccccenccccesésccscces 28

Steel Co. v. Citizens for Better Env’t,

EP CDEP UEEED coccccccceccccecescees 9, 25

Suter v. Artist M., 503 U.S. 347 (1992) ....... 9, 21, 23, 27

Swift Co. v. United States, 276 U.S. 311 (1928) ... 9, 19-21

Syngenta Crop Protection, Inc. v. Henson,

SP ah GREENE ccccccesccccccesceseceses 16

United States v. $92,422.57,

307 F.3d 137 (3rd Cir. 2002) ...........-.00005- 30

United States v. Armour, 402 U.S. 673 (1971) ...... 27, 28

vii

United States v. Cook County,

gk pf, o- 8) ee 15,17

United States v. ITT Continental Baking,

SP EEE oc oncsdeanuedsedectaneds 27

United States v. Krilich, 303 F.3d 784 (7th Cir. 2002) ... 13

United States v. Swift & Co., 286 U.S. 106 (1932) ...... 13

Vecchione, v Wohlgemuth,558 F.2d 150 (3d Cir. 1977) .. 17

Verizon Maryland Inc. v. Public Serv. Comm'n,

SPEED seccancccasssncocsnesecess 25

Walker v. Birmingham, 388 U.S. 307 (1967)........... 18

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass'n., 443 U.S. 658 (1979) . 16

Watson v. Texas, 261 F.3d 436 (Sth Cir. 2001) .......... 6

Westside Mothers v. Haveman, 133 F. Supp. 2d 549 (E.D.

Mich. 2001), rev'd in part, 289 F.3d 852 (6th Cir. 2002) . . 7

Williams v. First Nat'l Bank, 216 U.S. 582 (1910) ...... 28

Wisconsin Dep't of Corrections v. Schacht,

PPP EEE Sacccccccesvesseecss 10, 26, 29

Wisconsin Hosp. Ass'n v Reivitz,

820 F.2d 863 (7th Cir. 1987) ............. 12, 15, 16

Vili

Ex Parte Young, 209 U.S. 123 (1908) ............ passim

Statutes and Rules

BP ERD 6 occ cccccccesccoseescescesoes 18

Ge as POP UREN 0b ce cccccccccccccescecseccess 23

42 U.S.C. § 1396a(a)(43) . 0... cece ees 2, 21

ie SESS ccc ccccccccccccccescoscvesesces 2

Gee BED ce cccccccccccsccccesscescecs passim

Pe Ge oc cocccccnecceccenccecccoccsesess 24

Pe i Ge Oe EP cov ccccccccccscccevceconesees 28, 29

DCCL ccscocececddvtesesoucesosovess 3

Fae Be Ge Fo GEEED cccccccccccccccecocces 8, 11,21

5 RSS PPPPTITITITI TIT tee 29

Other Authorities

BLACK’S LAW DICTIONARY (6th ed.1990) ............. 12

COMMITTEE ON ECONOMIC DEVELOPMENT,

CHILDREN IN NEED (1989) .... 2.20. e cece eee ee eeee 3

A. KRONMAN & R. POSNER, THE ECONOMICS

OF CONTRACT LAW (1979) ....... 000 c ccc ec eee eceees 3

ix

Maimon Schwarzschild, Public Law by Private

Bargain: Title VII Consent Decrees and the

Fairness of Negotiated Institutional Reform,

PLD 66 66060 sde6ecdeedesessesnceces

Statement of Interest”

Amici curiae are national membership organizations and

civil rights advocates, who share an interest in assuring that

obligations imposed under the Constitution and federal health,

welfare, and civil rights statutes - many of which have been

enacted for the benefit and protection of the most vulnerable

Americans — are fulfilled.

Amici and their local affiliates have participated, as both

counsel and party, in scores of suits that, like this one, sought

government officials’ compliance with federal law and were

resolved consensually, with a federal court’s entry of a consent

decree. These cases involve matters as varied as prevention of

- sexual abuse of patients in State institutions for the mentally ill,

Caroline C. v. Johnson (D. Neb. 1998); appropriate foster care

for abandoned and neglected children, Juan F. v. Rowland (D.

Conn. 1991); medical services for children with severe physical

and developmental disabilities, Chisholm v. Hood (E.D. La.

1998); and desegregation of public housing, Thompson v.

H.U.D. (D. Md. 1996). Many of these decrees are still in force

— though, consistently with governing equitable principles, a

substantial number hiave been modified, and others, vacated.

This long and diverse experience with consent decrees —

and even more extensive experience in litigation where

consensual resolution proved unattainable — confirms what this

Court’s cases have consistently taught: that important public

interests are served when parties are able to reach — and courts

empowered to enforce — negotiated settlements. Our experience

convinces us that, in addition to the substantial judicial and

litigation resources conserved, when adversarial proceedings

are avoided official defendants are more likely to achieve good-

"This brief was not authored in any part by counsel for a party, and no

one other than Amici made a monetary contribution to its preparation or

submission. Both parties have consented to its submission.

faith compliance with federal law, more quickly.

As we explain below, the appeals court decision in this

case is untenable as a matter of legal principle. The rules

imposed by the Fifth Circuit concerning the legal effect of

consent decrees and federal courts’ power to compel

compliance with them are irreconcilable with numerous

decisions of this Court.

But this is also a case where settled law draws strong

reenforcement from fundamental policy concerns, and in

submitting this Brief, we seek to alert the Court to the important

practical reasons for repudiating the decision below. Not only

does the Fifth Circuit rule place federal courts in the

constitutionally intolerable position of entering decrees that

they may not enforce if disobeyed, but, if sustained, it would

operate highly unfairly in cases (including Amici’s) where

consent decrees are now in place, permitting defendants to

violate bargained-for, ostensibly binding obligations, without

any showing that their operation has become inequitable.

At least equally troubling, we believe, would be the

systemic consequences of endorsing the approach taken below.

By effectively denying consent decrees with State officials any

independent, binding force, the Fifth Circuit’s rules would

make negotiated settlement a practical impossibility in a broad

array of cases — a prospect that would be no more welcome by

these officials than it is by Amici and others who sue them in

federal court.

Statement of The Case

This suit was filed in 1993 to compel defendants, Texas

officials, to fulfil their obligation to provide indigent children

with Early and Periodic Screening, Diagnosis and Treatment

(EPSDT) services, as required by the Medicaid Act. See 42

U.S.C. §§ 1396a(a)(43)(A); (B); (C); 1396d(r). The complaint

described a _ large-scale failure to provide children with

medical, dental, vision and hearing screens; with necessary

corrective treatment; and with information about the EPSDT

Program.’

In 1994, after extensive discovery and after the district

court had certified the case as a class action, the parties

undertook settlement negotiations. In late 1995, they reached

an agreement settling most of the claims raised in the complaint

and submitted it to the district court, jointly requesting that it be

adopted as the court’s decree. See Frew v. Gilbert, 109 F.

Supp. 2d 579, 588 (E.D. Tex. 2000).? After conducting an

evidentiary hearing, the district court adjudged the negotiated

resolution “fair, reasonable, and adequate,” see Fed. R. Civ. P.

‘As its title suggests, the central thrust of the statutory program is

promotion of children’s health through prevention, early detection and

treatment. It is widely accepted that such an approach is a highly effective

use of resources, see COMMITTEE ON ECONOMIC DEVELOPMENT, CHILDREN

IN NEED (1989), and, as President Johnson emphasized in introducing the

program, for children, the difference between early and late diagnosis can be

the difference between full recovery and serious, lifelong health problems.

113 CONG. REC. 2883 (Feb. 8, 1967).

Congress also recognized that, despite the common sense of this

preventative approach, (1) it represents a real break from the traditional

mode of delivering health care to poorer children, which has relied heavily

on ad hoc emergency care; (2) that effective prevention depends critically

on information and outreach efforts that go beyond what health care

providers have customarily undertaken; (3) and that these sort of services do

not always fare well in competition with other medical services for State

officials’ resources and attention. Because Congress wanted to make clear

that, these difficulties aside, promotion of children’s health is a top federal

priority (and to ensure that States, in accepting federal funds, would

effectively honor that policy choice), the statutory provisions are written in

unusually detailed and stringent terms.

"Earlier that year, the parties had presented the district court with an

initial agreement — indicating at that time that Respondents’ “final approval”

would await their having“inform[ed] appropriate legislative and executive

offices of the State of the content and potential financial implications of this _

agreement.”

23(e), and — indicating that it was likely that plaintiffs “could

have succeeded at trial” Order Entering Decree (Jan. 25, 1996)

at 25 — entered the settlement as its order. The defendant

officials did not appeal.

The decree is “a lengthy document,” 300 F.3d at 353, one

in which the officials, without conceding liability,{301,

committed to a “highly detailed and specific [set of] procedures

relating to the EPSDT program,” 300 F.3d at 535, and

undertook to file quarterly reports informing the district court

of the’“status of each activity’” required under the decree,

{1306-7.

The decree is phrased in terms that are unmistakably

mandatory — and that expressly contemplate court enforcement.

Thus, paragraph 6 states that “the parties agree [to] and the

Court orders * * *”” implementation of the measures provided

for in the decree, id. (emphasis added), and another provision

confirms that “‘will’” — a term used throughout the decree —

“creates a mandatory, enforceable obligation,” {302 (emphasis

added).

The officials — both in their presentation to the district

court and within the decree’s four comers — expressly

acknowledged that the parties’ agreement was “reached within

the framework of federal law related to the EPSDT and

Medicaid programs.” 4308.

In November 1998, Petitioners filed a motion alleging that

the officials were in default on many of the obligations imposed

under the consent decree. The district court conducted a five-

day evidentiary hearing in March 2000, and in August 2000,

issued an opinion finding that decree violations had been

established in most of the areas about which Petitioners had

oa

—— — -—

complained.’ After rejecting defendants’ arguments that

enforcement of the decree was barred by the Eleventh

Amendment, the district court entered an order requiring the

officials to submit within 60 days a plan for coming into

compliance with their consent decree obligations.

On Respondents’ interlocutory appeal, the Fifth Circuit

vacated the enforcement order, ruling that the district court had

misconceived its power to compel compliance with its decree.

The district court’s cardinal error, the Fifth Circuit explained,

had been in “focusing on the consent decree requirements”

rather than “determin[ing] whether an alleged violation of the

consent decree would constitute, in the absence of the decree,

a Statutory violation of the Medicaid Act remediable under §

1983.” 300 F.3d at 537 (emphasis added).

Without questioning the district court’s conclusions that

each of the decree provisions defendants were found to be

violating met the requirements established in Firefighters v.

City of Cleveland, 478 U.S. 501, 525 (1986), i.e., that each (1)

“served to resolve a dispute within the court's subject matter

jurisdiction,” (2) “came within the general scope of the case

made by the pleadings,” and (3) “further[ed] the objectives of

the law upon which the complaint was based,” the Fifth Circuit

*For example, the district court found that, although eligible children

and their families are entitled to information about EPSDT — and the consent

decree required officials to inform them effectively — “large numbers of class

members” continued to be unaware of their entitlement to State-provided

EPSDT services. 109 F. Supp. 2d at 590. The court found numerous

violations respecting defendants’ obligations to children in managed care:

many were not receiving required immunizations and lead-poisoning screens,

see 109 id. at 623-64, and some had been unable to obtain even emergency

treatment for severe asthma attacks and dehydration, id. at 629. In addition,

large numbers of plaintiff class members were receiving no dental care at all,

id. at 602. See id. (noting result that emergency rooms were crowded with

children, “suffering from acute forms of dental disease that, while easily

preventable, often lead to [serious] health complications”).

5

explained that the Firefighters standards govern “the entry” of

consent decrees — and do not establish a court’s jurisdiction “‘to

issue its own, different order enforcing * * * the decree.’” 300

F.3d at 541 (quoting Lelsz v. Kavanagh, 807 F.2d 1243, 1252

(Sth Cir.), reh’g en banc denied, 815 F.2d 1034, cert. dismissed,

483 U.S. 1057 (1987)).

The court further noted that Firefighters had involved a

decree with a municipal government defendant, rather than

State officials entitled to Eleventh Amendment immunity, 300

F.3d at 543 & n.67. The Eleventh Amendment, the decision -

continued, is “a limitation on the federal courts judicial power,”

— one that can apply “[rjegardless of what the parties agree[] to

in the consent decree,” id. at 542. After ruling that defendants’

litigation conduct did not amount to a waiver of Eleventh

Amendment immunity, id. at 548-51‘ — and that federal courts’

“inherent jurisdiction,” id. at 542, is insufficient to overcome an

assertion of immunity — the Fifth Circuit reaffirmed that only

those provisions that embody actual requirements of the federal

Constitution or a federal statute could be subject of an

enforcement order. See id. (citing Lelsz and Saahir v. Estelle,

47 F.3d 758 (Sth Cir.1995)).

The court then construed Circuit precedent to impose a

further limitation. In view of the rule limiting decree

enforcement to provisions that “vindicate federal rights” — and

* The appeals court gave three reasons for declining to infer waiver: (1)

that the decree “expressly stated * * * that ‘Defendants do not concede

liability,"” 300 F.3d at 549 (quoting 9301); (2) that Respondents had

“repeatedly raised in the district court an Eleventh Amendment defense to

the enforcement of the decree,” id., and (3) that, unlike in Watson v. Texas,

261 F.3d 436 (Sth Cir. 2001), and Lapides v. Board of Regents of the

University System of Georgia, 535 U.S. 613 (2002), the officials here were

“sued as defendants” and had not “voluntarily chosen to submit * * * to the

jurisdiction of the federal court,” 300 F.3d at 550. Seeing these as sufficient

reason to find no waiver, the court declined to decide the Attorney General’s

State law authority to consent to the decree. Id. at 549.

6

of case law holding that not every violation of federal law is a

deprivation of a “right,” actionable under 42 U.S.C. § 1983, see,

e.g., Blessing v. Freestone, 520 U.S. 329 (1997); Golden State

Transit Corp. v. Los Angeles, 493 U.S. 103 (1989), the Fifth

Circuit announced that:

Before [a] district court can remedy a violation of a

provision of [a] consent decree, plaintiffs must demonstrate

that any such consent decree violation is also a violation of

a federal right,” i.e., “by showing (1) a statutory violation

of a specific provision of [a federal statute] (2) which was

intended to benefit plaintiffs, (3) which is not so vague and

amorphous that its enforcement would strain judicial

competence, and (4) which imposes a binding obligation

on the states.

300 F.3d at 543. Accordingly, the district court’s order, which

did not reflect this sort of “particularized * * * analysis as to

each alleged violation of the consent decree,” id. at 542, could

not stand.°

Summary of Argument

This Court’s precedents stand emphatically against the

proposition that the Eleventh Amendment creates a class of

judicial decrees (or decree provisions) that are valid as entered,

but unenforceable. Whether understood as resting primarily on

(1) the rule that “affirmative litigation conduct,” Lapides, 535

U.S. at 617, will waive an Eleventh Amendment defense or (2)

*The appeals court did not reach defendants’ arguments that the district

court had misinterpreted the consent decree, see 300 F.3d at 537. The Fifth

Circuit did, however, reject Respondents’ argument, grounded on the later-

reversed district court decision in Westside Mothers v. Haveman, 133 F.

Supp. 2d 549 (E.D. Mich. 2001), rev'd in relevant part, 289 F.3d 852 (6th

Cir.), cert. denied, 123 S. Ct. 618 (2002), that there is a “*Spending Clause

exception’ to the Ex Parte Young” doctrine, 300 F.3d at 550. See id. (“For

purposes of the Supremacy Clause and Ex Parte Young, the mandates set out

in Medicaid statute are more than contractual; they are federal law’).

7

the “principle that * * * [w]here the court possesses jurisdiction

to make a decree, it possesses the power to enforce its

execution,” Root v. Woolworth, 150 U.S. 401, 412 (1893); see

Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284 (1906),

the rule must be that “[i]f a federal court can validly enter a

consent decree, it can surely enforce that decree.” Kozlowski v.

Coughlin, 871 F.2d 241, 244 (2d Cir. 1989).

In addition to its inconsistency with precedent, the Fifth

Circuit’s contrary rule is an affront to basic rule-of-law norms.

Not only does it relegate federal courts to “hoping” that parties

ostensibly bound by judgments will comply with them, but

officials who are dissatisfied with decrees will have scant

reason to use lawful, but more burdensome, procedures for

obtaining relief from judgment. See Fed. R. Civ. P. 60(b)(5).

Indeed, the Fifth Circuit’s rule, which holds attacks on final

judgment by parties who have disobeyed them to less stringent

standards than objections to the entry of the same decree, is at

odds with fundamental norms of judicial procedure.

To the extent the decision below is understood to have

treated the decree as “invalid,” i.e., construing the Eleventh

Amendment to impose stringent limitations — beyond the

requirements of Firefighters — on provisions that may lawfully

be entered as part of a federal consent decree, it is equally

irreconcilable with this Court’s teaching. First, there is no

question that the dispute resolved was within the court’s subject

matter jurisdiction, and this Court has settled that when officials

consent, federal courts have the power to enter decrees that

include obligations that “spring from” or “relate to” federal law

— and not just those which merely restate federal law

requirements. See Rufo v. Inmates of Suffolk Co. Jail, 502 U.S.

367, 378 (1992).

The proposition that § 1983 imposes a further,

“jurisdictional” limitation on federal courts’ power to enter

decrees is even more plainly mistaken. If decrees that go

|

|

further than the federal law minimum are permissible, Rufo, it

follows that whether or not a provision falls within the subset

of federal laws that are “federal rights” under § 1983 does not

bear on a court’s power. See also Steel Co. v. Citizens for

Better Env't, 523 U.S. 83, 89 (1998).

A tule that prevents federal courts from compelling

compliance with consent decree requirements that are also

obligations of federal law — on the ground that plaintiff would

not have a § 1983 right in the absence of a decree — surely

draws no support from Ex Parte Young. That doctrine aims to

assure the supremacy of federal law, Green v. Mansour, 474

U.S. 64 (1985), and the Court has consistently sustained

prospective relief against State officials in cases where

violations of federal law are ongoing — but where plaintiff

would likely not have a § 1983 “right.” E.g., Crosby v. National

Foreign Trade Council, 530 U.S. 363, 371 (2000); see also

Suter v. Artist M., 503 U.S. 347, 354 n.6 (1992); Golden State

Transit, 493 U.S. at 119 (Kennedy, J., dissenting).

Indeed, settled principles establish that the § 1983 cause-

of-action question is not a relevant one when enforcement of a

court decree is sought. Defendants surely may waive an

objection that a statute does not entitle plaintiffs to particular

relief, see Swift Co. v. United States, 276 U.S. 311 (1928)

(“Swift I”). That is what defendants typically do by entering

consent decrees, see id.; Suter, 503 U.S. at 354 n.6. And

plaintiffs who seek to compel compliance with an equity court’s

decree do not need a distinct, congressionally conferred cause

of action to do so.

Unfairness to litigants in Petitioners’ position and

interference with orderly judicial administration are not the only

ways in which the rules announced below fail to “make[]

sense.” See Lapides, 535 U.S. at 620. By limiting federal

courts, confronting violations of consent decree provisions, to

enjoining actions that would be unlawful “in the absence of a

decree,” 300 F.3d at 537, the decision imposes an essentially

prohibitive “disincentive to settle institutional reform

litigation,” Rufo, 502 U.S. at 389. A legal regime under which

obligations that defendants stipulate to be “enforceable” may

not be enforced — and plaintiffs who make significant

concessions in negotiations are no better off than if no decree

had been entered — is one that assures, as a practical matter, that

cases against State officials will always be litigated to final

judgment.

While the decision below may have afforded these

Respondents a welcome “litigation advantage[],” Lapides, 535

U.S. at 620, its premises, if endorsed, would surely constrict the

range of options available to State officials facing future federal

lawsuits. To the extent that its limitations apply — as the

decision said they do — “[rJegardless of what the parties agreed

to in the consent decree,” 300 F.3d at 542, they deny officials

freedom to determine that State interests would be served by

agreeing to undertake judicially enforceable obligations — or by

not pressing a § 1983 defense. But even if that extreme

formulation could be discounted, the practical reality will

remain: plaintiffs who otherwise could and would negotiate

consent decrees on terms the State would find preferable to

what litigation would offer will refrain from doing so.

The legal rules imposed in the decision below are surely

not necessary to advance any legitimate interests of State

government. Officials are “under no compulsion,” see

Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 395

(1998) (Kennedy, J., concurring), to agree to settlements; to

make them judicially enforceable; or to enter into them before

disputed legal or factual issues are determined. In every sense,

the consent decree enforcement proceeding was ““‘the result of

[Respondents’] voluntary act.” Lapides, 535 U.S. at 620

(quoting Gunter, 200 U.S. at 284).

Finally, existing rules provide a means for defendants to

10

—

obtain relief even from voluntarily assumed decree obligations,

when intervening events render continued compliance

unexpectedly burdensome or otherwise inequitable, see Fed. R.

Civ. P. 60(b)(5), and under this Court’s precedents, such claims

from official defendants are considered with special care, see

Rufo. These substantial protections already in place make the

appeals court’s rules — and the unfairness and anomaly that they

would entail — wholly unwarranted.

ARGUMENT

I. State Officials’ Consent To A Federal Court’s Decree

Waives Eleventh Amendment Objection To Its

Enforcement

As Petitioners’ Brief explains — and numerous courts have

decided, see, e.g., New York State Ass'n for Retarded Children,

Inc. v. Carey, 596 F.2d 27, 39 (2d Cir. 1979) — defendants’

consent to a court order embodying the provisions at issue is

precisely the sort of “affirmative litigation conduct,” Lapides,

535 U.S. at 617, that should preclude an Eleventh Amendment

defense in a proceeding that seeks only prospective compliance

with those obligations.

In a consent decree case, the relevant “litigation act,” 535

U.S. at 620, is extraordinarily clear. Both parties represent to

a federal court that they “desire and expect” that their

“agreement * * * will be reflected in, and be enforceable as, a

judicial decree that is subject to the rules generally applicable

to other judgments and decrees,” Rufo, 502 U.S. at 378.

Although the Fifth Circuit stressed that the officials had not

“voluntarily invok[ed] the federal court's jurisdiction, but * * *

were sued as defendants,” Respondents’ claim of Eleventh

Amendment immunity does not relate to the initial suit — which

clearly fell within the Ex Parte Young jurisdiction — but rather

to the court’s power to enforce decree provisions, which

defendants had labeled “mandatory [and] enforceable” ({302)

11

and had asked the court to “order” ({6) (emphasis added). See

Wisconsin Hosp. Ass'n v Reivitz, 820 F.2d 863, 868 (7th Cir.

1987) (Posner, J.) (when decree “settle[s] a genuine,

noncollusive case that was within the exception to the Eleventh

Amendment that Ex parte Young created” enforcement

proceeding does not “engage the Eleventh Amendment”).°

Even more than in other cases where State officials elect to

participate in federal litigation, Clark v. Bernard, 108 U.S. 436,

447 (1883), the federal court’s enforcement order was the direct

“result of [Respondents’] own voluntary act.” Lapides, 535

U.S. at 620 (quoting Gunter, 200 U.S. at 284).’

® although the language of the decree in this case — and the conduct of

Respondents — surely reinforce the soundness of finding waiver here, it is the

nature of aconsent judgment, i.e. , the parties’ “desire and expect(ation]” that

it will be enforced by the federal court, Rufo, 502 U.S. at 378, that warrants

treating it as a waiver of immunity from enforcement. See Lapides, 535 U.S.

at 623-24 (rules for inferring waiver from conduct should be “clear * * *

[and] easily applied by both federal courts and the States themselves”).

7The Fifth Circuit’s other bases for finding no waiver fare no better.

It can be of no moment that defendants had made Eleventh Amendment

objections before or after decree entry — because the act of seeking entry of

the decree was patently “inconsistent” with maintaining that agreed-to

provisions are beyond a federal court’s power to order. See Lapides, 535

U.S. at 619. Nor is the inference that defendants reserved an Eleventh

Amendment defense by declining to admit liability a plausible one. Leaving

aside differences between immunity and liability, Puerto Rico Aqueduct &

Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 146 (1993), such a provision

is unexceptional. Indeed, a dictionary definition of “consent decree” is “[a]

judgment entered by consent of the parties whereby the defendant agrees to

stop alleged illegal activity without admitting guilt or wrongdoing.” BLACK’S

LAW DICTIONARY 410 (6th ed.1990). The legal significance of provisions

such as 4301 is the opposite of what the decision below implied: they do not

preserve a basis for challenging a decree, but rather indicate defendants’

assent to a court’s award of relief, as if they were liable. Compare Hudson

v. Chicago Teachers Union, 922 F.2d 1306 (7th Cir.1991). Finally, the Fifth

Circuit’s (inconclusive) inquiry into the Attorney General’s State law

authority is precisely what Lapides indicated need not be pursued. See 535

U.S. at 622-23.

12

II. The Eleventh Amendment Provides No Basis For

Recognizing A Category Of Federal Court Orders That

Are “Valid” — But Not Enforceable

A. The Eleventh Amendment Does Not Divest A

Federal Court Of “Inherent Jurisdiction” To

Enforce Its Orders

But even if the Circuit Court’s erroneous resolution of the

waiver issue did not compel reversal, this Court’s case law

refutes the central premise of the decision below: that the

Eleventh Amendment limits a federal court’s jurisdiction over

a proceeding seeking compliance with its decree. See Gunter.

“Courts by their creation [are] vested with power to impose

silence, respect, and decorum in their presence, and submission

to their lawful mandates,” Anderson v. Dunn, 18 U.S. 204, 227

(1821); see also Local Loan Co. v. Hunt, 292 U.S. 234, 239

(1934) (“That a federal court of equity has jurisdiction of a bill

ancillary to an original case or proceeding in the same court

whether at law or in equity, to secure or preserve the fruits and

advantages of a judgment or decree rendered therein, is well

settled”).

Consent decrees are “judicial acts” and must be obeyed as

such, Rufo, 502 U.S. at 378; United States v. Swift & Co., 286

U.S. 106, 116-17 (1932) (“Swift IT’) (consent decree, whether

“right or wrong, became the judgment of the court”); accord

United States v. Krilich, 303 F.3d 784 (7th Cir. 2002) (consent

decree, is “a judicial decree that is subject to the rules generally

‘ applicable to other judgments and decrees”), cert denied, 538

U.S. __ (Apr. 21, 2003); Badgley v. Santacroce, 800 F.2d 33,

38 (2d Cir. 1986) (“The respect due the federal judgment is not

lessened because the judgment was entered by consent”).

Indeed, judicial enforceability is what distinguishes consent

decrees from other forms of consensual resolution. See Rufo,

502 U.S. at 378 (a decree is “an agreement that the parties * *

13

* expect will be * * * * enforceable as [] a judicial decree”’);

Kozlowski, 871 F.2d at 245 (“The judicial aspect of a consent

decree derives from the imprimatur of the court, which invests

the decree with the integrity of the judiciary and signifies the

court's willingness to implement the solution of the parties”);

see generally Kokkonen v. Guardian Life Ins. Co., 511 U.S.

375, 381 (1994) (if a court’s order “incorporates the terms of

the settlement agreement,” a breach of the agreement would be

a violation of the order, and ancillary jurisdiction to enforce the

agreement would therefore exist”); cf. Farrar v. Hobby, 506

U.S. 103, 113 (1992) (plaintiff who obtains consent decree

“prevails,” for attorney’s fee statute purposes, because of

“entitle[ment] to enforce [it] * * * against the defendant”).

The Fifth Circuit’s error was in treating the enforcement

stage as a “‘different’” proceeding, 300 F.3d at 541 (quoting

Lelsz) in which the jurisdiction of a federal court, upon finding

its decree violated, extended no further than its power to

compel official action “in the absence of a decree,” id. at 542

(emphasis added).

But when an action seeks to enforce a “legal duty * * *

which is required of [a defendant] * * * by virtue of the

judgment [the plaintiff] has already obtained,” Labette County

Comm'rs v. United States ex rel. Moulton, 112 U.S. 217, 221

(1884), the proceeding is not “a new suit, in the jurisdictional

sense,” Riggs v. Johnson County, 73 U.S. 166, 198 (1867), but

rather “a proceeding ancillary to the judgment which g[ave] the

jurisdiction,” id.; accord Kokkonen, 511 U.S. at 378

(contrasting a proceeding that “is more than just a continuation

or renewal of the earlier proceeding,” which would “require[]

its own basis for jurisdiction”); Dugas v. American Surety Co.,

300 U.S. 414, 428 (1937) (a federal court’s “jurisdiction to

entertain” a bill “to effectuste its prior decree * * * follows that

of the original suit”).

These jurisdictional principles apply fully where State

14

|

|

officials are the parties bound by the decree. Thus, in Gunter,

the Court expressly held that the Eleventh Amendment does not

prevent “a court of the United States [from] administering relief

* * * in a matter ancillary to a decree rendered in a cause over

which it had jurisdiction,” 200 U.S. at 292. Sustaining « federal

court order prohibiting South Carolina officials from

undertaking to collect a tax previously enjoined as

unconstitutional, Gunter explained that “the right of the court

to administer relief — to make its decree effective” is not “to be

measured by constitutional or statutory provisions relating to

original proceedings where jurisdiction over the controversy did

not obtain.” 200 U.S. at 292; see also Prout v. Starr, 188 U.S.

537 (1903); Woolworth, 150 U.S. at 412 (“the bill, being

ancillary to the original proceeding * * * can be maintained

without reference to the citizenship or residence of the

parties”).

This principle was reaffirmed in Hutto v. Finney, 437 U.S.

678 (1979), which sustained against Eleventh Amendment

challenge an order requiring officials to pay State funds to the

prisoner-plaintiffs, as a financial penalty for defendants’ bad-

faith failure to comply with a district court order. “Under Ex

parte Young and Edelman v. Jordan,” Hutto explained, “federal

courts are not reduced to issuing injunctions against state

officers and hoping for compliance. Once issued, an injunction

may be enforced.” 437 U.S. at 691. See Reivitz, 820 F.2d at 868

* Absence of diverse citizenship, as in Woolworth, is a defect of federal

subject matter jurisdiction — which, ordinarily, cannot be waived. Compare

Idaho v. Couer d’Alene Tribe, 521 U.S. 261, 267 (1997) (“The [Eleventh]

Amendment * * * enacts a sovereign immunity from suit, rather than a

nonwaivable limit on the Federal Judiciary's subject-matter jurisdiction”);

United States v. Cook County, 167 F.3d 381, 388-89 (7th Cir. 1999) (“For

most purposes it overstates the strength of sovereign immunity to analogize

it to a lack of jurisdiction. Any difference between the two should make it

easier to raise a jurisdictional objection belatedly than to raise a sovereign-

immunity objection belatedly”).

15 .

(“Against a state that violates a valid federal court decree the

court has the power to issue any order necessary to enforce the

decree, including an order to pay”).

While the outer limits of federal court enforcement

jurisdiction may be “[im]precise,” Kokkonen, 511 U.S. at 379,

the order here, one “merely requir[ing] compliance with the

existing judgment by the persons with authority to comply,”

Peacock v. Thomas, 516 U.S. 349, 358 (1996), arises from its

undisputed core.? Indeed, the order, which only ‘directs

defendants to propose a plan of prospective compliance with

existing decree provisions, raises far less substantial Eleventh

Amendment concerns than did the decrees in Hutto or Reivitz.

There is no conceivable danger here of a “large or * * *

unexpected” monetary penalty, Hutto, 437 U.S. at 692 n.18, and

there can be no contention that the relief ordered goes further

than “necessary to enforce the court’s prior orders,” id.; cf.

Spallone v. United States, 493 U.S. 265 (1989)."°

*Recent decisions rejecting novel theories of “ancillary jurisdiction”

cast no doubt on Gunter or other precedents. On the contrary, those cases:

concerned actions of federal courts which were conceded to have no other

basis for subject matter jurisdiction, see Syngenta Crop Protection, Inc. v.

Henson, 123 S. Ct. 366 (2002); Kokkonen; involved assertions of different

remedies, see Peacock, against different parties, see id., whose relation to the

underlying judgment was tangential; and were not necessary to preserving

the federal court’s authority, see 516 U.S. at 360.

‘Indeed, while the Fifth Circuit treated federal courts’ “inherent

power” to enforce lawful decrees as entirely different from (and lesser than)

the power recognized in Ex Parte Young, that understanding is itself

problematic. Under the Constitution, valid federal court decrees are

themselves Supreme law. See Cooper v. Aaron, 358 U.S. 1, 18-19 (1958);

Washington v. Washington State Commercial Passenger Fishing Vessel

Ass’n., 443 U.S. 658, 696 (1979); see Badgley, 800 F.2d at 38 (“When the

defendants chose to consent to a judgment, * * * the result was a fully

enforceable federal judgment that overrides any conflicting state law or state

court order”); see also Komyatti v. Bayh, 96 F.3d 955, 960 (7th Cir. 1996)

(“{A] provision in a validly-entered consent decree is an obligation on State

officials to conform their conduct to federal law’).

16

--—<— o—- -

---- -

B. The Fifth Circuit Rule Is Anomalous And Unfair

The proposition that a federal decree may be validly

entered, but not be enforced, cuts against the grain of basic rule-

of-law norms. See Komyatti, 96 F.3d at 962-3 (allowing

officials to violate decrees is not “compatible with the traditions

of our people and their commitment to a rule of law”). A

doctrine that permitted (or required) district courts to enter

agreements as ostensibly binding orders, but denied them power

to compel compliance undermines the integrity of the judicial

process. Vecchione, v Wohlgemuth, 558 F.2d 150, 158-9 (3d

Cir.), cert. denied, 434 U.S. 943 (1977) (if sovereign immunity

could be raised after entry of judgment, the judgment would be

a “mere advisory opinion”); Cook County, 167 F.3d at 386 (rule

precluding federal government from raising sovereign immunity

as a basis for a collateral attack “is essential if judgments are to

_Tesolve the parties’ disputes, rather than just set the stage for the

next act”); Hewitt v. Helms, 482 U.S. 755, 761 (1987) (“The

real value of the judicial pronouncement — what makes it a

proper judicial resolution of a ‘case or controversy’ rather than

an advisory opinion — is in the settling of some dispute which

affects the behavior of the defendant towards the plaintiff”).

Indeed, the Court has often stressed that even when a

judicial decree is “subject to substantial constitutional

question,” disobedience is not an option. Washington Fishing

Vessel Assn., 443 U.S. at 696 (even where court orders are

“erroneous in some respects, all parties have an unequivocal

obligation to obey them while they remain in effect”); see also

"As Judge Easterbrook explained in Cook County, allowing the United

States to raise sovereign immunity in an attack on a judgment “would reduce

to advisory status all decisions adverse to the financial interest’, of the United

States,” 167 F.3d at 386. See id. (describing such a regime as “unpalatable

[and] likely * * * unconstitutional”). The conduct here goes considerably

beyond litigating a case to final judgment, see Cook County: Respondent

officials expressly requested that the court to “order” them to perform the

obligations they now resist on immunity grounds.

17

Cooper v. Aaron, 358 U.S. 1, 18-19 (1958); Maness v. Meyers,

419 U.S. 449, 458 (1975) (“The orderly and expeditious

administration of justice by the courts requires that an order

issued by a court with jurisdiction over the subject matter and

person must be obeyed by the parties until it is reversed by

orderly and proper proceedings”); Walker v. Birmingham, 388

U.S. 307, 317 (1967).

As a practical matter, according officials who do not

comply with decrees broad rights to object to the decrees in

enforcement proceedings leaves them scant incentive to pursue

lawful, but more cumbersome, means for obtaining relief from

judgment. See Rufo, 502 U.S. at 383, 391 (imposing on party

seeking Rule 60(b)(5) modification burden of (a) showing “a

significant change in circumstances” and (b) proposing

appropriately tailored modification); Hook v Arizona Dep't of

Corrections, 972 F.2d 1012, 1017 (9th Cir. 1992) (rule

forbidding State officials from raising Eleventh Amendment

defense in enforcement proceeding “is supported by policies

favoring the finality and binding effect of judgments and

requiring the party seeking relief from a final judgment to bear

the burden of modifying it”).'”

A rule that imposes stricter standards for a decree’s

enforcement than its entry suffers from two further defects.

First, it operates with maximal unfairness to litigants, such as

Petitioners, who, in exchange for defendants’ undertaking

limited, but judicially enforceable, obligations, forego other

potentially meritorious claims. Even worse than a ruling

declining to enter a decree at the inception — which leaves

plaintiffs essentially in the position they occupied before

pursuing settlement — a rule that makes decree provisions

'2 a ithough, in discussing its appellate jurisdiction, the decision below

treated the district court’s order as one “‘refusing to dissolve or modify’ an

injunction,” 300 F.3d at 537 (quoting 28 U.S.C.§1292(a)(1)), Respondents

did not move to vacate or modify this decree.

18

unenforceable “allow[s] the [defendant official] to avoid * * *

bargained-for obligations — while retaining the benefits of

concessions he obtained on other issues. during the

negotiations.” Kozlowski, 871 F.2d at 245.

Finally, the Fifth Circuit rule reverses what is an almost

universal rule of judicial administration: that claims of error, if

entertained at all, must meet increasingly stringent standards at

successively later stages of the judicial process. Although not

all objections are deemed forfeited by a party’s failure to raise

them at the earliest possible opportunity, Edelman v. Jordan,

415 U.S. 651, 678 (1974); Hormel v. Helvering, 312 U.S. 552

(1941), the distinction between an assertion of error on appeal

and one that comes after final judgment is fundamental. See Jn

re Factor VIII or IX Concentrate Blood Prods. Litig., 159 F.3d

1016, 1019 (7th Cir. 1998) (“only an egregious want of

jurisdiction will allow the judgment to be undone by someone

who, having participated in the case, cannot complain that his

rights were infringed without his knowledge”)."*

These principles apply with special force to consent

decrees. Thus, Swift I, after contrasting English practice, under

which “a consent decree could not be set aside by appeal * * *

except in case of clerical error’ with the more “liberal”

American rule, where “lack of actual consent * * * fraud in its

procurement,” or lack of federal jurisdiction — but not “the

merits of the cause” — “would also be considered,” 276 U.S. at

323-24, indicated that where “the attack is not by appeal * * *

but by a motion to vacate, filed more than four years after the

entry of the decree, the scope of the inquiry may be even

'> although rules limiting collateral attacks do not apply as rigidly to

equitable decrees with prospective force, such decrees are nonetheless

entitled to respect as “final judgment{s],” Rufo, 502 U.S. at 391, and, far

from permitting issues to be raised more readily on collateral challenge,

Rufo makes clear that they “may be reopened only to the extent that equity

requires,” id. (emphasis added).

19

narrower,” id. Here, Respondents did not move to vacate; they

raised objections — to provisions they agreed to — as a defense

to enforcement. Cf. id. at 327 (although alleged error

concerning need for an injunction would “ordinarily [be]

remediable on appeal. Such an error is waived by the consent to

the decree”).

III. The Appeals Court’s Limitations On Enforceable

Decrees Are Unwarranted

Nor can the Fifth Circuit’s decision be sustained on the

ground that the underlying decree was not “lawful,” Anderson,

18 U.S. at 227, in the sense that its provisions exceeded a

federal court’s power to impose. As noted above, the appeals

court’s decision did not question that the decree provisions in

this case (1) “served to resolve a-dispute within the court's

subject matter jurisdiction,” (2) “came within the general scope

of the case made by the pleadings,” and (3) “furthered the

objectives of the law upon which the complaint was based.”

See Firefighters, 478 U.S. at 525.

Rather, the court indicated that where State officials are

defendants, a consent decree provision may be enforced only if_

two additional requirements are satisfied: (1) the obligation

violated would be a requirement of federal law (absent the

decree), and (2) the violation would be actionable under § 1983

as a deprivation of “federal right.”

Although the Fifth Circuit linked these two requirements

to the “jurisdictional” nature of the Eleventh Amendment (and

the Ex Parte Young exception), limits it said apply “[r]egardless

of what the parties agreed to in the consent decree,” neither

accurately describes a limitation on a court’s power to enter a

decree, let alone a valid basis for disallowing enforcement of

provision against a party who urged its adoption.

A. State Officials May Undertake - And Federal

Courts, Enforce — Obligations That Go Beyond

Compliance With Federal Law

20

As an example of the first restriction, the decision below

held that a decree provision requiring that defendants

‘effectively’ inform the class about EPSDT services,” 300 F.3d

at 546 (emphasis added), was unenforceable because the federal

statute, 42 U.S.C. § 1396a(a)(43)(A), mandates ““informing all

[eligible persons] of the availability of [EPSDT] services,” —

but “does not expressly require ‘effective’ conveyance of

information.” 300 F.3d at 546 (emphasis added).

This ruling reflects a misunderstanding of federal courts’

equitable power. Even when State officials do not consent,

courts may enjoin conduct that is not in itself unlawful. In such

cases, a court order must “be related to,” Milliken v. Bradley,

418 U.S. 717, 738 (1974), the federal law it enforces — as this

decree provision undeniably is — but it need not be limited to “a

directive to obey the [statute],” Rufo, 502 U.S. at 389. See also

FTC v. National Lead Co., 352 U.S. 419, 430 (1957); National

Society of Professional Engineers v. United States, 435 U.S.

679, 698 (1978); Swift, 276 U.S. at 330.

And this Court’s decision in Rufo — a case involving a

consent decree to which a State official was a party, see 502

U.S. at 372 — establishes that federal court may enter a consent

decree obliging an official to “not only do more than the

Constitution itself requires * * * [but also] more than what a

court would have ordered absent the settlement.” Id. at 389

(emphasis added). See also Suter, 503 U.S. at 354 n.6 (citing

Rufo’s recognition that parties “may agree to provisions in a

consent decree which exceed the requirements of federal law’’).

Informed by this understanding, Rufo announced principles

to guide courts’ response to post-decree developments that

establish the lawfulness of conduct that a decree prohibits. See

Fed. R. Civ. P. 60(b)(5). While a significant change may

warrant modification of the decree, Rufo stressed, “[a] proposed

modification should not strive to rewrite a consent decree so

21

that it conforms to the constitutional floor,” 502 U.S. at 391

(emphasis added).'*

Under the Fifth Circuit rule, the “constitutional [and

statutory] floor” defines the outer limit of a court's power —

even when State officials have not sought a modification, let

alone carried their burden of showing that equity requires one.

B. The Fifth Circuit’s Further Restriction, To

Obligations To Which Plaintiffs Have a § 1983

Right, Is Wholly Unwarranted

The error of further limiting federal court decrees to those

obligations to which a plaintiff is independently entitled as a

matter of “federal right” i.e, that “would be remediable” under

§ 1983 “ in the absence of the decree” is even more plain.

The only authority cited for that proposition, the Circuit’s

prior decision in Lelsz, does not support it. Although that

decision used the phrase “federal right” as a limitation on the

reach of a consent decree, it did so to emphasize the distinction

between claims (and decree provisions) that had their source in

State, rather than federal law — in the course of holding that

only the latter were enforceable. Lelsz gave no indication that

it was further incorporating the principle — significant in this

Court’s § 1983 jurisprudence — that violations of “federal law”

are not necessarily deprivations of the personal “rights” for

'4In rejecting the government defendants’ arguments for a less

pen Pe ee rate tl

necessarily i that the only le enforceable obligation assumed

See LL cman dues en anata einen

constitutional * * * standards,”” 502 U.S. at 390 (quoting Plyler v. Evatt,

924 F.2d 1321, 1327 (4th Cir. 1991) (emphasis in original)) — a proposition

the decision treated as self-evidently erroneous.

Although Rufo involved a decree agreed to after a judicial finding of

liability, Lawyer v. United States Dep't of Justice, 521 U.S. 567 (1997),

makes plain that a consent decree’s validity does not depend on a finding or

admission of liability. See also Maher v. Gagne, 448 U.S. 122 (1980).

22

which § 1983 provides a cause of action.'® See, e.g., Golden

State Transit; Dennis v. Higgins, 498 U.S. 439 (1991).

This asserted, second limitation, like the first, cannot be

squared with Rufo. To the extent that intervening judicial

decisions had resolved that double-bunking was permissible

under federal law, see Bell v. Wolfish, 441 U.S. 520 (1979), the

detainee-plaintiffs in that case could not claim a § 1983 right to

single-selling. See 42 U.S.C. § 1983 (providing cause of action

for “deprivation of any rights, privileges or immunities secured

by the Constitution and laws”) (emphasis added); cf. Siegert v.

Gilley, 500 U.S. 226, 232 (1991) (claimed violation of “clearly

established” constitutional right is foreclosed when there is no

“constitutional right at all’’).

And Suter v. Artist M. specifically explained that there was

nothing inconsistent about a State official’s entering into a

consent decree (in a parallel proceeding) that obliged her to

make “reasonable efforts” to maintain and reunify families, and

her arguing — successfully — in this Court, that a statutory

requirement to that effect, see 42 U.S.C. § 671(a)(15), was

insufficiently definite to give rise to a § 1983 claim. Rather

than requiring “‘reasonable efforts,’ with no further definition,”

Suter explained, the decree had included provisions “defin[ing]

the standard against which those efforts are to be measured.”

503 U.S. at 354 n.6.

‘The order sought to be enforced in Lelsz required State officials to

comply with State law — and had been entered before this Court decided

Pennhurst State School v. Halderman, 465 U.S. 89 (1984). Lelsz noted that

the situation would unlikely recur, because (1) officials would be aware that

State-law based injunctions would be unavailable in litigated cases, 807 F.2d

at 1254 and (2) courts, before entering future decrees, would assure

themselves, as did the district court here, of their subject matter jurisdiction,

id. at 1253 n.13. Cf Komyatti, 96 F.3d at 961 (holding that no issue arises

when State officials settle federal claims by promising to comply with State

standards).

23

But even if these cases were not controlling, there is no

principled basis for allowing an official whose conduct is

violating federal law and a consent decree provision to defeat

enforcement of that provision, on the ground that plaintiff could

not establish a § 1983 “right” absent the decree."

First, although the Fifth Circuit cited Ex Parte Young as

supporting this further limitation, the “theory of Young” is that

“remedies designed to end a continuing violation of federal law

are necessary to vindicate the federal interest in assuring the

supremacy of that law,” Green 474 U.S. at 426 (emphasis

added). Indeed, the opinion below elsewhere recognized that

“(flor purposes of the Supremacy Clause and Ex Parte Young,

the mandates set out in Medicaid statute are * ** federal law,”

300 F.3d at 550.

Consistently with these principles, this Court has

repeatedly sustained judgments in cases compelling State

officials’ prospective compliance with federal law — without

inquiring whether plaintiffs had a statutory cause of action (and

under circumstances where precedent indicates that a § 1983

claim would not lie). See, e.g., Crosby v. National Foreign

Trade Council, 530 U.S. 363, 371 (2000) (claim that state

statute “unconstitutionally infringed the federal foreign affairs

power, violated the Foreign Commerce Clause, and was

preempted by [a] federal Act”); Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 380-81 (1992) (claim that state

'©To the extent that the appeals court’s decision is understood to mean

that a motion to enforce a court order requires a statutory cause of action, it

suffers from the defect discussed supra: treating a proceeding seeking

compliance with a judgment (in a case where the court has expressly retained

jurisdiction) as if it were a new suit. As the precedents cited above make

plain, a motion to enforce is, in substance, indistinguishable from an

“{equitable) bill ancillary to an original case or proceeding,” Local Loan

Co., 292 U.S. at 239. See Fed. R. Civ. P. 2; see also Beckett v. Air Line

Pilots Ass'n, 995 F.2d 280 (D.C. Cir. 1993) (explaining that decree

enforcement proceedings are governed by contract law principles).

24

regulation was preempted by federal statute); Shaw v. Delta Air

Lines, 463 U.S. 85, 96 n.14 (1983); see generally Verizon

Maryland Inc. v. Public Serv. Comm'n, 535 U.S. 635, 645-

46 (2002) (noting Court’s long record of entertaining

“injunction suits against state regulatory commissioners’’).

Whether these cases establish that “the Supremacy Clause

creates an implied right of action for injunctive relief against

state officers who are threatening to violate the federal

Constitution or laws,” Guaranty Nat’! Ins. Co. v. Gates, 916

F.2d 508, 512 (9th Cir. 1990) (citation omitted), or that

plaintiffs may “seek[] declaratory and equitable relief in the

federal district courts through their powers under federal

jurisdictional statutes,” Golden State Transit, 493 U.S. at 119

(Kennedy, J., dissenting), they at least confirm that the

existence vel non of a § 1983 cause of action does not go to a

court’s power. See Northwest Airlines, Inc. v. County of Kent,

510 U.S. 355, 365 (1994); Steel Co. v. Citizens for Better Env’t,

523 U.S. 83, 89 (1998); Air Courier Conference v. American

Postal Workers Union, 498 U.S. 517, 523 n.3 (1991); Davis v.

Passman, 442 U.S. 228, 239 n.18 (1979). See generally Golden

State Transit, 493 U.S. at 119 (Kennedy, J., dissenting),

(explaining that prospective relief is available without regard to

whether plaintiff “can show the deprivation of a right,

privilege, or immunity secured by federal law”) (emphasis

added).

To the extent that the Fifth Circuit held that a district court

is required to determine, before enforcing a decree, whether

plaintiffs would have been able to establish a statutory

entitlement to relief had the case been litigated to completion,

"Cf. Antrican v. Odom, 290 F.3d 178, 191(4th Cir. 2002) (declining

to consider § 1983 issues raised on interlocutory appeal because they were

“not ‘inextricably intertwined’ with North Carolina’s Eleventh Amendment

immunity claim, nor [was their consideration}‘necessary to ensure

meaningful review of the * * * immunity question.’”) (citations omitted).

25

rather than settled, that is precisely the sort of question that

precedent teaches should not be asked. See Rufo, 502 U.S. at

391-92 (a “court should not ‘turn aside to inquire whether some

of [the provisions of the decree] * * * could have been opposed

with success if the defendants had offered opposition’”)

(quoting Swift, 286 U.S. at 116-17).

Indeed, while consent decrees, like other prospective

equitable judgments, may be reopened “to the extent that equity

requires,” 502 U.S. at 391, they are otherwise “subject to the

rules generally applicable to other * * * decrees,” meaning that

objections that do not go to a court’s power to render judgment

may not be raised as an excuse for noncompliance with an

(unmodified) final judgment. Pasadena City Bd. of Educ. v.

Spangler, 427 U.S. 424, 439 (1976) (“outstanding injunctive

orders of courts [must] be obeyed until modified or reversed by

a court having the authority to do so”). The Fifth Circuit rule,

which treats the cause of action question as one that must be

adjudicated in plaintiff's favor before a party bound by the

judgment may be compelled to comply, respects none of these

principles."

'81t bears emphasis that the Fifth Circuit treated its rules as governing

“(rjegardless of what the parties agreed to in the consent decree,” 300 F.3d

at 542. Thus, State officials are without power to waive the objection that

a plaintiff does not have a § 1983 cause of action ~ even in a case where

prosnective compliance with federal law is all that is sought. That rule is

facially incompatible with Suter, see supra, which recognized that an official

could waive a valid § 1983 defense, and imposes a more stringent rule than

Clark v. Bernard, which establishes that “sovereign immunity is ‘a personal

privilege which [a State] may waive at pleasure,’” 108 U.S. at 447.

Indeed. while the Court has treated Sovereign immunity defenses

somewhat differently than other objections — allowing them to be raised for

the first time on appeal, see Edelman, 415 U.S. at 678 — the costs of even

that limited exception have been acknowledged, see Schacht, 524 U.S. at

395 (Kennedy, J., concurring); Ku v. Tennessee, 332 F.3d 431 (6th Cir.

2003), and there is no precedent for allowing an objection (such as a § 1983

defense) that does not sound in sovereign immunity, let alone subject matter

26

a ae —

IV. The Fifth Circuit’s Rules Would Seriously And

Unnecessarily Undermine Important Public Interests

A. The Decision Makes Settlements With State

Officials A Practical Impossibility

Palpable unfairness to parties to existing consent decrees

and incompatibility with orderly judicial process, see supra, are

not the only demerits of the rules announced below. It is hard

to imagine a more potent “disincentive to settle institutional

reform litigation,” Rufo, 503 U.S. at 389, than the legal regime

established in the Fifth Circuit’s decision.

It is axiomatic that parties’ willingness to enter agreements

will be affected by courts’ readiness to enforce them, see A.

KRONMAN & R. POSNER, THE ECONOMICS OF CONTRACT LAW

4 (1979); United States v. ITT Continental Baking, 420 U.S.

223, 235-37 (1975) (consent decrees have “attributes of both

contracts and of judicial decrees”), and this Court has

recognized that the reasons why “consent decrees have become

widely used as devices to facilitate settlement,” Firefighters,

478 U.S. at 523 n.13, relate primarily to enforcement

advantages, see id. (cataloguing advantages of decrees, relative

to contractual settlements).

But the rule announced by the Fifth Circuit is especially

drastic. If federal courts, confronting violations of consent

decree provisions, were limited to enjoining actions that would

be unlawful “in the absence of a decree,”300 F.3d at 537,

plaintiffs who negotiate decrees will essentially be “giv(ing] up

something they might have won had they proceeded with the

litigation,” United States v. Armour, 402 U.S., 673, 681-82

(1971) (emphasis added) — in exchange for nothing.

jurisdiction, see Cook County, to be raised as a defense to non-compliance.

Cf. Hutto, 437 U.S. at 696 (“A federal court's interest in orderly, expeditious

proceedings ‘justifies [it] in treating the state just as any other litigant’”)

(quoting Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 77 (1927)).

27

The disadvantages of this regime would not be borne

exclusively by federal court plaintiffs. As Armour and Rufo

acknowledge, settlements of cases like this one can equally

“serve the interests of defendants,” Evans v Jeff D., 475 U.S.

717, 733 (1986) (quoting Marek v Chesny, 473 U.S. 1, 10

(1985).

As noted above, the Fifth Circuit decision can be read to

impose limitations that apply “regardless of what the parties

agree to” — meaning that defendants have little power to waive

defenses or enter decrees. Cf. Montgomery v. Maryland, 266

F.3d 334, 337 (4th Cir. 2001) (respect for State sovereignty “is

undermined when a federal court imposes on a state a legal

argument that the state * * * affirmatively withdrew”), cert.

granted and judgment vacated on other grounds, 535 U.S. 1075

(2002). But even if that implication could safely be ignored,

there can be no doubt that, as a practical matter, a rule that

offers plaintiffs no incentive to settle will operate to constrict

the options available to State officials.

_ A regime that effectively requires adversary adjudication

in every case limits defendants’ ability to determine that

particular cases are not worth the “time, expense, and inevitable

risk of litigat[ing],” Armour, 402 U.S. at 681, and there are

strong reason to expect that a “compromise” that is “carefully

negotiated” by the parties, id., will be more reflective of and

sensitive to State policy priorities than would be an injunction

imposed at the end of litigation.

Finally, the benefits of consensual resolution of disputes

like this one extend beyond the parties before the court.

Longstanding policies favor “[s]Jettlements of matters in

litigation, or in dispute, without recourse to litigation,” St. Louis

Min. & Mill. Co. v. Montana Mining Co., 171 U.S. 650, 656

(1898); Marek, 473 U.S. at 5; Williams v. First Nat’l Bank, 216

U.S. 582, 595 (1910) (“Compromises of disputed claims are

favored by the courts”); see also Fed. R. Civ. P. 16(a)(5); Fed.

28

R. Civ. P. 16(c)(7); Fed. R. Civ. P. 68. Not only are judicial

and litigation resources channeled toward disputes for which

there is no mutually acceptable resolution, but State residents

can expect that solutions arrived at cooperatively will

“promise[] to work” more effectively and more quickly, see

Griffin v. Prince Edward County Sch. Bd., 377 U.S. 218, 234

(1964), than those reached after protracted or rancorous

adversarial proceedings.'®

B. The Fifth Circuit’s Rules Are Not Necessary To

Protect Any Legitimate State Interest

Although the decision below undeniably enabled

Respondents to avoid unwanted obligations, it should be clear

that no novel rules are needed to protect legitimate State

interests. Cf. Lapides, 535 U.S. at 620 (noting that “State’s

actual preference * * * might * * * favor selective use of

‘immunity’ to achieve litigation advantages”). Rather, settled

principles governing consent decree entry ana enforcement

afford officials ample protection against uninvited court

intrusion and inequitable decrees.

Officials are “under no compulsion,” Schacht, 524 U.S. at

395 (Kennedy, J., concurring), to agree to settlements; to make

them enforceable in federal court, see Firefighters, 478 U.S. at

523 (“the choice of an enforcement scheme — whether to rely

on contractual remedies or to hav’ an agreement entered as a

consent decree — is itself made voluntarily by the parties”);

Kokkonen, or to enter into them before disputed legal or factual

''See Maimon Schwarzschild, Public Law by Private Bargain: Title

VII Consent Decrees and the Fairness of Negotiated Institutional Reform,

1984 DUKE L.J. 887, 899 (“A remedy designed to reform the workings of a

large organization is most effective when the organization cooperates in

Carrying out the remedy, and the human beings who make up an institution

are more apt to cooperate in carrying out a negotiated scheme than in

complying with an order imposed from above by a court”); see also

Komyatti, 96 F.3d at 961.

29

issues are determined. Cf. Jeff D., 475 U.S. at 727 (“The

options available to the District Court were essentially the same

as those available to respondents: it could have accepted the

proposed settlement; it could have rejected the proposal and

postponed the trial to see if a different settlement could be

achieved; or it could have decided to try the case”). Moreover,

defendants may enter decrees that preserve the right to appeal,

Hudson v. Chicago Teachers Union, 922 F.2d 1306 (7th

Cir.1991); United States v. $92,422.57, 307 F.3d 137 (3™ Cir.

2002); of. Fed. R. Crim P. 11(a)(2).

Finally, even after officials give their consent to a

judgment, there is “no dispute but that a sound judicial

discretion may call for the modification of the terms of an

injunctive decree if the circumstances, whether of law or fact,

obtaining at the time of its issuance have changed, or new ones

have since arisen,” Railway Employees v. Wright, 364 U.S. 642

(1961). And in considering modifications, see Rufo, 502 U.S.

at 392 — and even in enforcing decrees against recalcitrant

defendants, Spallone; Hutto — federal courts are obliged to show

special respect for State prerogatives. _

In view of the legal rules already in place, the effects of the

Fifth Circuit rule are uniformly undesirable: relieving

defendants of freely undertaken obligations that they could not

show to be inequitable (and permitting them this relief, despite

their having disobeyed a decree), depriving plaintiffs of

bargained-for remedies, relegating courts to “hoping” for

compliance with their decrees, and disabling parties — plaintiffs

and officials alike - who might otherwise be able to resolve

disputes consensually from being able to do so.

Conclusion

For the foregoing reasons, the judgment of the Court of

Appeals should be reversed.

30

Respectfully submitted,

DAVID T. GOLDBERG

Counsel of Record

99 Hudson Street, 8" FI.

New York, NY 10013

(212) 334-8813

Attorney for Amici Curiae

Descriptions of Amici Curiae

AARP is anonpartisan, nonprofit membership organization

for people 50 and over, with 35 million members, of which

45% are working. We provide information and resources and |

advocate on legislation, consumer and legal issues for our

members and other citizens, including low-income Medicaid

beneficiaries such as those represented by appellants. Some

AARP members are themselves beneficiaries of Medicaid, and

their interests are directly jeopardized by the Fifth Circuit's

decision. Over the years AARP has supported legislative

amendments to Medicaid and other government programs,

based upon the belief that its members and other citizens have

both enforceable rights and access to the courts to present their

claims for redress of violations of those rights. AARP has also

participated in numerous court cases supporting Medicaid

beneficiaries whose claims are based on legal principles

disregarded by the Fifth Circuit.

The American Association of People with Disabilities

(AAPD) is a national non-profit membership organization of

children and adults with disabilities, their family members, and

their supporters. AAPD’s mission is to promote political and

economic empowerment of the more than 56 million Americans

with disabilities. AAPD was founded on the fifth anniversary

of the signing of the Americans with Disabilities Act, and

works to ensure effective enforcement and implementation of

civil rights laws and other laws affecting individuals with

disabilities.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with affiliates

or chapters in every state, and approximately 400,000 members

dedicated to preserving the principles of liberty and equality

A-1

embodied in the Constitution and this Nation's civil rights laws.

Since its founding in 1920, the ACLU has maintained an active

docket of federal court litigation as one means of achieving its

civil liberties goals. Today, the ACLU and its affiliates are

participants in literally scores of consent decrees around the

country involving such disparate issues as education, foster

care, police misconduct, voting rights, and prison conditions.

The ability to enforce current and future consent decrees against

state defendants is therefore a matter of substantial importance

to the ACLU and its clients.

The Anti-Defamation League (“ADL”) was founded in

1913 to advance good will and mutual understanding among

Americans of all creeds and races, and to secure justice and fair

treatment to all citizens alike. It has long been ADL's critical

mission to combat all types of prejudice, discriminatory

treatment, and hate. ADL has supported the enactment by

Congress and the vigorous enforcement by the Executive

Branch of our country's principal federal civil rights laws, and

has consistently made its voice heard in the courts as an

advocate fighting to guarantee equal treatment of all persons.

ADL has filed amicus briefs in this Court in numerous cases

urging the unconstitutionality or illegality of discriminatory

practices or laws, or defending government enactments

designed to prevent or punish discrimination and hate. These

include many of the Court's landmark cases in the area of civil

rights and equal protection. In particular, ADL has supported

Congress's broad authority under the Fourteenth Amendment

enforcement power to remedy constitutional deprivations

caused by States, and Congress's authority to abrogate state

sovereign immunity in cases of clear civil rights violations.

The Judge David L. Bazelon Center for Mental Health Law

is a national public interest organization founded in 1972 to

A-2

oO te es ee oe

advocate for the rights of individuals with mental disabilities.

The Center has engaged in litigation, administrative advocacy,

and public education to promote equal opportunities for

individuals with mental disabilities. The Center has

successfully resolved much of its litigation through the use of

consent decrees with state officials, and enforcement of these

decrees has been pivotal to achieving compliance with legal

mandates and improving the lives of individuals with mental

disabilities. See, e.g. Wyatt v. Sawyer (M.D. Ala) (class action

raising constitutional and statutory challenges to conditions,

policies and practices in Alabama's mental health and mental

retardation facilities); R.C. v. Nachman, (M.D. Ala.) (class

action raising constitutional and statutory challenges to

deficiencies in child welfare system in Alabama); New York

State Assn for Retarded Children, Inc. v. Carey (E.D.N.Y.)

(class action challenging conditions at Willowbrook

Developmental Center).

Children’s Rights is a national nonprofit organization

whose mission is to achieve reform in this nation’s child welfare

systems on behalf of abused and neglected children. For over

thirty years, starting as the Children’s Rights Project of the

American Civil Liberties Union, and since 1995 as an

independent organization, Children's Rights has championed

the legal rights of children involved with child welfare systems

through research, education and class-action litigation to

improve government performance and accountability, and

ensure better outcomes for those children. Children's Rights

most often achieves the reforms it seeks by entering into

negotiated federal consent decrees with government officials

and then seeking enforcement of those decrees as necessary.

Children’s Rights is currently monitoring compliance with five

federal consent decrees requiring State reforms - Jeanine B. v.

McCallum (E.D. Wis. 2002); Brian A. v. Sundquist (D. Tenn.

A-3

2001); G.L. v. Stangler (W.D. Mo. 2001); Joseph A. v. Ingram

(D.N.M. 1998); Juan F. v. Roland (D. Conn. 1991) - and has

three other federal suits in active litigation, one of which is in

settlement negotiations with state officials in New Jersey,

Charlie and Nadine H. v. McGreevey (D.N.J.).

The National Association of Protection and Advocacy

Systems (NAPAS) is the membership organization for the

nationwide system of protection and advocacy (P&A) agencies.

Located in all 50 states, the District of Columbia, Puerto Rico,

and the federal territories, P&As are mandated under various

federal statutes to provide legal representation and related

advocacy services on behalf of all persons with disabilities in a

variety of settings. The P&A system comprises the nation’s

largest provider of legally based advocacy services for persons

with disabilities. NAPAS facilitates coordination of P&A

activities and provides training and technical assistance to the

P&A network. This case is of particular interest to NAPAS

because many P&As are involved in the ongoing enforcement

of consent decrees, which significantly impact the lives of

hundreds of their clients.

The National Health Law Program (NHeLP) is a non-profit

law firm that represents people who cannot afford the high cost

of health care. This includes representing working poor people,

people with disabilities, and children in actions to obtain access

to needed health care services. As such, NHeLP works

extensively with the Medicaid program.. In just the last five

years, NHeLP has represented Medicaid beneficiaries in a

number of federal court cases, including in Maine (Risinger v.

Concannon), Louisiana (Chisholm v. Hood), and West Virginia

(Benjamin H.v. Ohl). In each of these actions, the plaintiffs’

complaint asked the court to order injunctive relief requiring the

state Medicaid officials to comply prospectively with specific

A-4

provisions of the Medicaid Act. Rather than engage in lengthy

and costly litigation of the issues, the parties mutually agreed to

enter into consent orders that set forth specific actions the state

officials would take to bring the Medicaid program into

compliance with the federal law. NHeLP has a significant

interest in the case before the Court. The ruling in this case will

affect the clients in these cases, and it will influence our future

representation of individuals who are being harmed by ongoing

State violations of federal laws.

NOW Legal Defense and Education Fund (“NOW Legal

Defense”) is a leading national non-profit civil rights

organization that, for over thirty years, has used the power of

law to define and defend women’s rights. As part of its efforts

to achieve gender equality, NOW Legal Defense has

participated in a number of lawsuits against government

officials alleging violations of federal law that were resolved

through consent decrees. NOW Legal Defense has an interest

in ensuring the enforceability of those decrees and in preserving

its ability to resolve ongoing and future lawsuits against

government officials consensually. In addition, a major goal of

NOW Legal Defense is to ensure full compliance with federal

civil rights laws, including by state government entities. In

support of that goal, NOW Legal Defense has frequently

appeared as counsel and as amicus before this Court. The Fifth

Circuit’s decision in this case, if allowed to stand, would

seriously undermine that goal.