# Amicus Curiae Brief — Frew v. Hawkins

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0613%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 431

## Text

(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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0613%3A08. Public record. Not legal advice.