Amicus Curiae Brief — Goodman v. Georgia

3

Nevada and Wyoming) for which no violations have been

established. Here again, if Congress’ response is deemed

“proportional” to the violations at issue here, that

requirement provides no real limit on Congress’ power.

That is not to say that any State is, or should be, allowed to

discriminate against the disabled with impunity. For

example, sovereign immunity does not block suits for money

damages or other relief brought by the United States. Bu. the

abrogation of sovereign immunity at issue here is neither

within Congress’ authority under the Fourteenth

Amendment nor necessary as a matter of policy.

STATEMENT OF THE CASE

Although amici agree with the Statement of the Case by

Respondent, State of Georgia, we highlight here a few of the

salient facts. Petitioner Tony Goodman, who alleges that he

is a paraplegic, raised both Eighth Amendment and ADA

claims in the district court. Goodman Pet. App. at la-2a. The

Eleventh Circuit held that he had stated a claim under the

Eighth Amendment for allegations related to excessive

restraint, exposure to human waste, and inadequate medical

care, and that he therefore can pursue a claim under 28

U.S.C. § 1983 for those alleged violations. Id. at 18a-19a.

As to his ADA claims, Petitioner added a variety of other

complaints such as being denied access to bathing or

showers, adequate heating and ventilation, laundry and

cleaning services, college programs, vocational training,

recreation, entertainment, television, phone calls, freedom of

movement, and religious services. Id. at 6a. The Eleventh

Circuit held that those claims must be dismissed, relying on

its holding in Miller v. King, 384 F.3d 1284 (11th Cir. 2004),

that “Title II prohibits far more conduct and in many more

areas of prison administration than conceivably necessary to

enforce the Eighth Amendment ban on cruel and unusual

punishment.” Id. at 1274. Asa result, “Title II of the ADA, as

applied in this prison case, does not validly abrogate the

4

States’ sovereign immunity and cannot be enforced against

the State of Georgia ... in a suit for money damages.” Id. at

1275-76.

SUMMARY OF ARGUMENT

Although the Court in Tennessee v. Lane, 541 U.S. 509

(2004), held that Congress could validly abrogate State

sovereign immunity in applying Title II in the limited context

of access to the courts, extending that holding to the

countless functions required to run a State prison is entirely

different. Critical to the Court's decision in Lane was the fact

that access to the courts implicated a variety of “fundamental

rights” requiring heightened scrutiny which, in turn, allowed

for a more expansive view of the congressional evidence, and

a more expansive remedy, than would otherwise be

permitted under a lesser standard. No doubt for that reason,

the Court was careful to limit its holding to that specific

context.

What Petitioners propose here is far more sweeping.

Rather than apply Title II in a single limited context,

Petitioners propose to apply it to every service, program and

activity provided by state prisons. In doing so, Petitioners

are attempting to pound a very large, square peg into the

much smaller round hole left by Lane. It does not fit.

Preliminarily, it is important to remember that none of the

rights asserted here triggers the heightened scrutiny that was

pivotal in Lane. Unlike Lane, this case involves constitutional

rights asserted in prison. Under settled precedent, such

claims are generally judged under a deferential “reasonably

related” test. See, e.g., Turner v. Safley, 482 U.S. 78, 89 (1987).

Similarly, Eighth Amendment claims require a showing of

“deliberate indifference” to inmates’ suffering, not just a

failure to accommodate the needs of various classes of

prisoners. See, e.g., Farmer v. Brennan, 511 U.S. 825, 835

(1994). This Court has never applied strict scrutiny, or even

heightened scrutiny, to such claims by disabled prisoners.

5

As we show below in Section I, the level of scrutiny

influences the record of constitutional wrongs that must be

shown to justify an abrogation of sovereign immunity. If

heightened scrutiny is triggered, then it is “easier for

Congress. to show a pattern,” Nevada Dep’t. of Human Res. v.

Hibbs, 538 U.S. 721, 736 (2003), and if not, showing a pattern

is all the more demanding. Petitioners have assembled a

mass of material to argue that Congress was responding to a

“widespread pattern” of States violating the rights of

disabled inmates. Yet, as detailed in Georgia's brief, closer

inspection shows this material to be comprised largely of

examples that either do not involve States, or that arose after

the ADA, or that simply are not constitutional violations in

the first place. Even for States where there is evidence of

scattered violations over decades of prison operations, this

evidence scarcely establishes any “widespread” pattern.

And remarkably, for many States, there is no evidence--or

even an allegation--of any constitutional violations before the

passage of the ADA. See Appendix A. Thus, there simply is

no factual predicate for abrogating the States' sovereign

immunity.

But even if the record were deemed sufficient to establish

some limited pattern of constitutional violations, Title II's

blanket abrogation of sovereign immunity is not by any

stretch a “congruent and proportional” response, as required

by City of Boerne. Particularly when the rights asserted do

not give rise to any heightened scrutiny, it simply cannot be

congruent and proportional—if the phrase is to retain any

meaning — for States to lose their sovereign immunity when

there is no evidence they violated any rights before the ADA

was enacted. Nor is it congruent and proportional to deprive

a State of that immunity in response to at most a handful of

violations over a period of several decades, in comparison to

the thousands or even tens of thousands of disabled inmates

that a State would typically have housed during that period.

For all these reasons, abrogating the States' sovereign

immunity for Title II claims asserted by inmates hardly

6

constitutes “enforcement” of Fourteenth Amendment rights.

It is, rather, an attempt to redefine the constitutional rights of

disabled prisoners. And, if sustained, it will inevitably mark

the end of deference to State prison operations.

ARGUMENT

As this Court has repeatedly held, the States joined the

Union “with their sovereignty intact,” Blatchford v. Native

Vill. of Noatak and Circle Vill., 501 U.S. 775, 779 (1991), a

“central” feature of which was “immunity from private

suits,” Alden v. Maine, 527 U.S. 706, 715 (1999). Only under §

5 of the Fourteenth Amendment may Congress abrogate the

States’ immunity, and only when it acts “to enforce,” by

“appropriate legislation” the rights guaranteed by that

amendment. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.

356, 364-65 (2001) (quoting § 5 of the Fourteenth

Amendment).

To be sure, Congress has wide latitude under § 5 in

choosing how to enforce the Fourteenth Amendment, and

“its conclusions are entitled to much deference.” City of

Boerne v. Flores, 521 U.S. 507, 536 (1997). Congress, moreover,

is “not confined to legislation that merely parrots the precise

wording of the Fourteenth Amendment.” Kimel, 528 U.S. at

81. However, as broad as Congress’ power under § 5 may be,

“it is not unlimited.” Boerne, 521 U.S. at 519 (quoting Oregon

v. Mitchell, 400 U.S. 112, 128 (1970)). Congress is only

authorized to enact remedial legislation “to eniorce”

constitutional guarantees. It cannot “decree the substance of

the Fourteenth Amendment's restrictions on the States.” Id.

And the history of the Fourteenth Amendment re-enforces

that its framers sought to avoid the “dangerous

centralization of power” that would result if it became a

license to legislate generally. Id. at 522 (citation omitted).

While the line between remedial and_ substantive

legislation is not always clear, “the distinction exists and

must be observed.” Id. at 520. Indeed, observing the line is

“necessary to prevent the Fourteenth Amendment from

7

obliterating the Framers’ carefully crafted balance of power

between states and the National Government.” United States

v. Morrison, 529 U.S. 598, 620 (2000).

To draw the line between remedial and substantive

legislation, this Court has developed a three-part test. The

first step is to “identify with some precision the scope of the

constitution right at issue,” that is, the “metes and bounds”

of the right in question. Garrett, 531 U.S. at 365, 368. Second,

the Court asks “whether Congress identified a history and

pattern of unconstitutional” action to be remedied. Id. at 368.

Finally, assuming some such “pattern” has been

demonstrated, the remedy must be a “congruent and

proportional” response to that pattern. Id. at 374.

Amici agree with respordent Georgia’s analysis of the

“metes and bounds” of the constitutional rights at issue here.

However, even if the Court were to adopt Petitioners’ broad

approach to that issue, Congress did not validly abrogate the

States’ sovereign immunity from suits under Title II because

(1) the record does not demonstrate the requisite “history

and pattern” of constitutional violations, and (2) in all events,

the means Congress chose to address the arguably proven

constitutional violations are not a “congruent and

proportional” response. It follows that Title II's abrogation of

sovereign immunity is not proper “enforcement” of

Fourteenth Amendment rights, either under the Boerne

approach, or under the more restrictive approach outlined in

Justice Scalia’s dissent in Tennessee v. Lane, 541 US. at 563-65

(2004).

I. The Record Does Not Support The Requisite Finding

Of a “History and Pattern” Of Siates Violating The

Constitutional Rights Of Disabled Prison Inmates.

The “history and pattern” portion of the Boerne test helps

distinguish between “corrective legislation,” which is

targeted at remedying specific constitutional violations, and

general substantive legislation. As shown below, in contrast

to the situation in Lane, here the requisite “pattern” cannot

reasonably be inferred from allegations (or even limited

evidence) of disparate treatment, given that Fourteenth

Amendment rights are noi subject to strict scrutiny in the

prison environment. Moreover, close examination of

Petitioners’ analysis reveals that, at the end of the day, the

evidence of real violations of disabled inmates’ Fourteenth

Amendment rights by the States is exceedingly thin.

A. Unlike The Situation In Lane, Constitutional

Violations Cannot Be Inferred From Mere

Allegations Or Even Evidence Of Disparate

Treatment Because Fourteenth Amendment

Claims Are Not Subject *» Strict Scrutiny In The

Prison Setting.

The Court has made clear that the level of constitutional

review influences the second part of the Boerne test because,

if heightened scrutiny is triggered, then it is “easier for -

Congress to show a pattern of state constitutional violations.”

Hibbs, 538 U.S. at 736. Conversely, where as here the rights

asserted do not trigger strict scrutiny, establishing a

widespread pattern requires more exacting evidence than in

cases such as Hibbs or Lane.

-1. As to the rights at issue, Petitioners here assert not

only the Eighth Amendment claims actually raised in this

case, but also what the government calls a “cluster” or

“constellation” of hypothetical claims that might arise in the

many contexts involved with running a prison.' Pet’r Br. at

' While Petitioners allude to a denial of access to the prison law

library or religious services, there are no specific factual allegations

as to either. While Lane considered a variety of fundamental rights,

they were all related to a single limited context-access to actual

courthouses. Here, on the other hand, petitioners seek to invoke

rights that touch on numerous different features of prison life. For

example, the law library is an entirely different context from the

prison chapel or medical services. And as such, the rights that

petitioners assert here far exceed the “metes and bounds” of the

single context in Lane.

9

16-17; Gov't Br. at 14-15. Petitioners then argue for

heightened scrutiny for all of these rights because prisons

“exert a degree of control unparalleled in society.” Pet'r Br.

at 14 (quoting Cutter v. Wilkinson, 125 S. Ct. 2113, 121-22 ~

(2005)); Gov't. Br. at 38. Petitioners are wrong. To be sure,

prisons do exert “unparalleled control” over inmates because

“[t]he very object of imprisonment is confinement.” Overton

v. Bazzetta, 539 U.S. 126, 131 (2003). However, it is precisely

because of that “control,” and the responsibilities that go

with it, that this Court has long recognized that operating a

prison is a difficult and complex task that is entitled to

substantial deference. As the Court explained in Turner v.

Safley, 482 U.S. 78 (1987):

Running a prison is an inordinately difficult

undertaking that requires expertise, planning and

the commitment of resources, all of which are

peculiarly within the province of the legislative and

executive branches of government. ... Where a state

penal system is involved, federal courts have . . .

additional reason to accord deference to the

appropriate prison authorities.

482 U.S. at 84-85. As a result, “[S]ubjecting the day-to-day

judgment of prison officials to an inflexible strict scrutiny

analysis would seriously hamper their ability to anticipate

security problems and to adopt innovative solutions to the

intractable problems of prison administration.” Id. at 89.

Instead of strict scrutiny, the Court has looked to whether the

regulation was “reasonably related to legitimate penological

interests.” Id. at 89.

This deference to prison administration has been affirmed

repeatedly by the Court. In Overton, the Court considered

whether prison regulations on family visits violated the First

Amendment. In holding that the visitation rules did not

violate the prisoners’ rights, the Court stated: “Many of the

liberties and privileges enjoyed by other citizens must be

surrendered by the prisoner. An inmate does not retain

10

rights inconsistent with proper incarceration.” 539 U.S. at

131. Citing Turner, the Court found that the regulation bore a

“rational relation to legitimate penological interests” and

thus it “must accord substantial deference to the professional

judgment of prison administrators.” /d. at 132. Further,

“[t}he burden, moreover, is not on the State to prove the

validity of the prison regulation but on the prisoner to

disprove it.” Id. at 132 (emphasis added). Accord O’Lone v.

Estate of Shabazz, 482 U.S. 342, 349 (1987)~-{prison rules for

religious practices should be accorded deference and “judged

under a ‘reasonableness’ test less restrictive than that

ordinarily applied to alleged infringements of fundamental

constitutional rights”).

To be sure, the rule of deference to prison administration

includes a limited exception for cases of racial discrimination

which require a higher level of scrutiny. See Lee v.

Washington, 390 U.S. 333 (1968). However, this exception —

most recently reaffirmed in Johnson v. California, 125 S. Ct.

~ 1141 (2005)—does not alter the general rule of deference to

prison operations. In fact, in Johnson, the Court noted that

Turner rejected strict scrutiny for prison administration

generally, but simply reaffirmed the rule in Lee that applies

strict scrutiny to racial classifications. 125 S. Ct. at 1149. The

Court has never held or suggested, however, that the

Fourteenth Amendment requires similar treatment of alleged

discrimination based upon disability. To the contrary, the

? Another recent example is Wilkinson v. Austin, 125 S. Ct. 2384

(2005), in which the Court conducted a due process analysis of the

procedures for transferring an inmate to a “Supermax” facility.

After recognizing the security concerns in running a prison, the

Court stated that “[t'he problem of scarce resources is another

component of the State's interest” and cited the annual cost of

keeping an inmate in prison. Id. at 2397. As a result, “[ijt follows

that courts must give substantial deference to prison management

decisions before mandating additional expenditures for elaborate

procedural safeguards when correctional officials conclude that a

prisoner has engaged in disruptive behavior.” Id.

11

Court has rejected that proposition in City of Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 432, 442-43 (1985).

Accordingly, the argument Petitioners advance here — that

prisons are generally subject to heightened scrutiny because

they have “unparalleled control” —ignores established

authority to the contrary. This Court has recognized that the

“relationship of state prisoners and the State officers who

supervise their confinement is far more intimate than that of

a state and a private citizen.” Preiser v. Rodriguez, 411 US.

475, 492 (1973). Yet except in the case of racial

subjected to strict scrutiny and Petitioners cite no authority to

that effect. Petitioners have not asked this Court to overrule

either Turner or the holding of City of Cleburne that disability

itself does not require heightened scrutiny. It follows that

disabled inmates are not a suspect class because of any

“control” exercised over them.

2. Petitioners also cite dicta in Johnson to argue that the

deferential test of Turner does not apply to Eighth

Amendment claims: “We judge violations of that

Amendment under the ‘deliberate indifference’ standard,

rather than Turner's ‘reasonably related’ standard.” 125 S. Ct.

at 1149-50. Pet’r Br. at 17; Gov't Br. at 37. Yet Petitioners fail

to mention that, even if Turner does not apply, the deliberate

indifference test is still unquestionably a high standard and

does not require anything remotely approaching the kind of

strict scrutiny that applies to claims of race discrimination.

See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (mere

negligence is not enough; there is no liability unless the

prison official “knows of and disregards an excessive risk to

inmate health or safety”). Indeed, to our knowledge, this

Court has never intimated that Eighth Amendment claims

are subject to strict scrutiny. To the contrary, this Court's

Eighth Amendment decisions have been mindful of the same

difficulties of prison administration that call for judicial

restraint and deference.

12

For instance, in Farmer, this Court recognized that a prison

official's duty under the Eighth Amendment includes

ensuring “reasonable safety,” which “incorporates due

regard for prison officials’ ‘unenviable task of keeping

dangerous men in safe custody under humane conditions’.”

Id. at 844-45 (quoting Spain v. Procunier, 600 F.2d 189, 193 (9th

Cir. 1979) (Kennedy, J.)). Similarly, in Rhodes v. Chapman, 452

U.S. 337 (1981), the Court held that housing two inmates in a

cell did not violate the Eighth Amendment. The Court

further found that such “considerations properly are

weighed by the legislature and prison administration rather

than by a court” and that “a prison’s internal security is

peculiarly a matter normally left to the discretion of prison

administrators.” Id. at 338,349.14. Thus, even if the Turner

test itself does not apply, the. standard for Eighth

Amendment claims remains high, and those claims have

never been subject to heightened scrutiny.

3. As to “rights besides the Eighth Amendment,

Petitioners’ argument that these should receive the same

heightened scrutiny as in Lane overlooks the fundamental

difference that the rights in Lane were not asserted in prison.

Moreover, settled precedent directly forecloses heightened

scrutiny for any of the hypothetical claims Petitioners assert.

First, Petitioners attempt to implicate the access to the

cou.ts that was the focus in Lane by reference to prison law

libraries. But this argument is completely at odds with Lewis

v. Casey, 518 U.S. 343 (1996). In Lewis, the Court considered

an injunctive order that purported to ensure “access to the

courts” by mandating detailed procedures for operating a

prison law library. Id. at 346-47. The Court reviewed the

order in light of the deferential Turner standard and found it

to be “inordinately — indeed, wildly —intrusive.” Id. at 361-

62. Nowhere in Lewis did the Court suggest that access to the

library should be determined under a standard of heightened

scrutiny.

13

Petitioners also argue for a more searching review based

on Petitioner's unknown religious practices. But that

contention is foreclosed by O’Lone. There, the Court

considered the regulation of actual religious practices and

held that it was error to subject the prison officials to a higher

level of scrutiny, especially one that reversed the burden of

proof: “By placing the burden on prison officials to disprove the

availability of alternatives, the approach articulated by the

Court of Appeals fails to reflect the respect and deference

that the United States Constitution allows for the judgment

of prison administrators.” 482 U.S. at 350 (emphasis added).

Finally, Petitioners contend that due process concerns are

also at issue. Pet'r Br. at 43, 49. But that argument cannot

survive decisions such as Wilkinson. There, the Court

declined to employ heightened scrutiny when considering

the procedures for transferring inmates to a “Supermax”

facility and again recognized the deference owed to the

decisions of prison administrators. 125 S. Ct. at 2397.

In sum, Petitioners’ attempt to invoke heightened scrutiny

for any of the constitutional rights they assert in the prison

setting—real or hypothetical—runs directly contrary to

settled precedent of this Court.

4. That failure-which is the key difference between this

case on the one hand, and Lane and Hibbs on the other-

fundamentally changes the way in which the record of

alleged violations must be read. In Lane and Hibbs, where the

rights at issue were subject to heightened scrutiny, it was

arguably reasonable for the Court to assume a pattern of

actual constitutional violations based upon a pattern of alleged

violations. After all, if the burden is on the State to justify a

disparity that has been alleged by counsel or a party subject

to the good-faith requirements of Fed. R. Civ. P. 11 (or

similar state rules), it is reasonable to infer that those alleged

disparities will actually represent constitutional violations in

a reasonable percentage of cases.

14

On the other hand, where by the nature of the claim the

State is entitled to a “presumption of correctness,” and the

burden is upon the claimant to prove that an alleged disparity

not only exists but is not justified under the law (i.e., is not

reasonably related to legitimate penological goals or is the

result of deliberate indifference), such inferences are not

reasonable. Indeed, a State may well have been subject to

numerous allegations of that sort and yet have never violated

the Constitution in its treatment of a disabled inmate. Thus,

at least in the prison context, a congressional finding of a

“history and practice” of constitutional violations cannot be

based upon mere allegations. It must be based upon proven

violations. Moreover, it must be based not merely on the

“existence” of some state conduct, but upon “a widespread

pattern.” Hibbs, 538 U.S. at 735 (citing Kimel v. Florida Bd. of

Regents, 528 U.S. 62, 90 (2000)).

B. The Record Of Arguably Proven Constitutional

Violations Over Several Decades Available To

Congress In 1990 Does Not Establish A Pattern Of

Violations, Especially In Relation To The Overall

State Prison Population.

Petitioners here have utterly failed to establish such a

pattern. Petitioners have assembled what at first glance

appears to be an impressive array of judicial decisions—

some 150— between the two of them. Pet’r Br. at 26-36; Gov't

Br. at 30-32 & Addendum A. Yet when judged by proper

standards of what “counts” as a violation, and therefore

what is properly included in a record of what Congress

“responded to,” the mass of even arguably relevant examples

shrinks dramatically. And when those examples are

considered on a state-by-state basis, and in relation to the

State prison population in 1990 when Congress acted, it

becomes apparent that no “widespread history and pattern”

of unconstitutional treatment was ever established as a

predicate for the abrogation of State sovereign immunity

from inmates’ suits under Title II.

15

1. Petitioners have relied upon entire categories of

anecdotal evidence that have no bearing on the issue, in

addition to cases in which a violation was only alleged and

never even arguably established. The first category consists

of violations allegedly occurring after the ADA was passed.

Logically, Congress can only act “in response to” a

widespread pattern based on a record existing at the time it

acted. See, e.g., Garrett, 531_US. at 368; Hibbs, 538 U.S. at 730

(“According to evidence that was before Congress when it

‘ enacted the [Family Medical Leave Act]. . . .”) (emphasis

added).

Petitioners also rely heavily upon actions allegedly

occurring in county jails. Yet abrogating the sovereign

immunity of the States requires evidence of violations by the

States themselves. In Garrett, the Court made explicit what

had been implicit in earlier cases—that Congress must

identify a pattern of constitutional violations by States

themselves rather than “units of local governments.” 531

US. at 368-69.

To be sure, in Lane, the Court expanded the record to

include local governments. But it did so only because that

case "concern[ed] the provisions of judicial services, an area

in which local governments are typically treated as ‘arm|[s] of

the State’ for Eleventh Amendment purposes.” 541 U.S. at

527 n.16 (alteration in original). This case, however, does not

involve courthouses, and Petitioners’ sweeping statement

that county jails are “arms of the state” for Eleventh

Amendment purposes is not accurate. Pet'r Br. at 22-23 n.7;

Gov't Br. at 18 n.19. In fact, county jails often do not have

Eleventh Amendment immunity and the test turns on an

examination of state law and the function being performed.3

* See, e.g., S.J. v. Hamilton County, 374 F.3d 416, 424 (6th Cir. 2004)

(concluding that a “juvenile training facility” was not an arm of the

state and not entitled to Eleventh Amendment immunity); Alkire v.

Irving, 330 F.3d 802, 811 (6th Cir. 2003) (“It is clear that Holmes

County [Ohio] (and Sheriff Zimmerly as an officer of Holmes

County) is not an arm of the state that is entitled to Eleventh

16

Therefore, Petitioners’ broad-brush reliance on county jail

cases is improper.

2. When judged by the standards of what is properly

included in a record of what Congress “responded to,” —

namely, actual violations by the States before the ADA — the

Petitioners’ mass of citations ceases to be anything

resembling a widespread pattern. In fact, as the appendix to

this brief shows, for 25 of the States there simply is no record

of any arguably established violations from the Petitioners’

case citations. Georgia is one of those 25. Even if violations

by local and county governments are added (and they should

not be), there are at most only 40 arguable violations of the

rights of disabled prisoners, and even then 21 States have no

record of any established violations.

Assuming Congress had reviewed these 40 cases before

passing the ADA—and there is no indication that Congress

Amendment immunity.”); Richman v. Sheahan, 270 F. 3d 430, 440

(7th Cir. 2001) (noting that “Under Illinois law, sheriffs are

classified as county, not state, officials, and when the sheriff

‘performs his duties as the principal executive officer or chief law

enforcement officer of the county, he acts as a county official’ and

the Eleventh Amendment does not apply” and holding that the

sheriff is not entitled to immunity for “failure adequately to train

and supervise the deputies in deliberate indifference to the

plaintiff's rights”); Streit v. County of Los Angeles, 236 F.3d 552, 555

(9th Cir. 2001) (holding that the Los Angeles County Sheriff's

Department “acts for the County in its capacity as the

administrator of the Los Angeles County jails” and was not entitled

to immunity as an arm of the state); see also Abusaid v. Hillsborough

County Bd. of Coounty Comm'rs, 405 F.3d 1298, 1304 (11th Cir. 2005)

(noting that its precedent prior to 2003 (when the ADA was

enacted) had “established defisitively” that Florida Sheriffs were

not entitled to Eleventh Amendment immunity for their actions).

Petitioners also include two District of Columbia cases; however,

the District of Columbia is not entitled to Eleventh Amendment

immunity. See CSX Transp., Inc. v. Williams, 406 F.3d 667, 674 n.7

(D.C. Cir. 2005) (per curiam).

17

did — abrogating the sovereign immunity of all 50 states and

Puerto Rico cannot in any sense of the word be consider’ »

congruent or proportional “response.” In that regard, it is

telling that Petitioners offer only two states that have more

than a single court finding of a violation prior to the ADA.

And even these cases involved preliminary injunctions and

touch only tangentially upon disabled inmates when

addressing prison conditions generally.

The citations are especially revealing, moreover,

considering the population of disabled inmates, coupled with

the fact that prisoners are prolific litigators.4 In 1990 alone,

there were more than 700,000 prisoners in state facilities.

United States Dep’t of Justice, Bureau of Justice Statistics,

Bulletin: Prisoners in 1996 (June 1997), http://www.ojp.

usdoj.gov/ bjs/pub/pdf/p96.pdf. Of these, approximately

one-third likely could claim some disability. See United

States Dep’t of Justice, Bureau of Justice Statistics, Special

Report, Medical Problems of Inmates, 1997 (Jan.2001),

http:/ / www.ojp.usdoj.gov/bjs/ pub/ pdf/ mpi97.pdf (noting

that “nearly a third of State inmates .. . reported having

some physical impairment or mental condition”).

Accordingly, the violations per inmate are, even with

arguable violations, a small fraction of one percent even for

States that have reported violations.5 See Garrett, 531 U.S. at

370 (noting that Congress assembled minimal evidence in

light of the fact that 43 million Americans are disabled and

* Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004) (“Prisoners often

have an abundance of time, while facing a restricted number of

enjoyable activities with which to pass the time other than filing

federal suits.”); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998)

(“Congress deemed prisoners to be pestiferous litigants because

they have so much free time on their hands and there are few costs

to filing suit.”).

5 Even these percentages are almost certainly overstated because

they assume that all of the arguably established violatio.is involved

inmates who were imprisoned when the ADA was enacted.

18

that States employed 4.5 million people). If the requirement

of a “widespread pattern” is to retain its meaning, it is not

satisfied by some 40 cases among 50 States and Puerto Rico

over decades of prison operations.

3. Further, Petitioners’ citations of Congressional

testimony from earlier legislation hardly indicates it was part

of the record Congress was responding to in passing the

ADA. Petitioners cite an array of earlier legislation and

related testimony going back to the late 1960s and 1970s.

Pet’r Br. at 21-25; Gov't Br. at 19-27. But the few scattered

statements alluding to constitutional violations during

hearings decades earlier were not provided or even

referenced in the legislative history of the ADA.

Even the few citations of the ADA legislative history that

Petitioners offer, see Pet’'r Br. at 26, only reinforce that the

ADA was not enacted to remedy Fourteenth Amendment

concerns. The citations demonstrate instead that the ADA

seeks to “break down barriers,” “integrate” the disabled and

end “discriminatory” treatment of the disabled with little, if

any, reference to constitutional violations or irrational

discrimination. See Garrett, 531 U.S. at 368 (requiring the

legislative record to “identify a pattern of irrational state

discrimination in employment against the disabled”). “[H]ad

Congress truly understood this information as reflecting a

pattern of unconstitutional behavior by the States, one would

expect some mention of that conclusion in the Act's

legislative findings. There is none.” Garrett, 531 U.S. at 371.

Similarly, most of the statutes cited by Petitioners do not

give any indication they are targeted at preventing

unconstitutional treatment of the disabled, let alone

unconstitutional treatment in state prisons. See Kimel, 528

U.S. at 90 (the “study does not indicate that the State had

engaged in any unconstitutional age discrimination”)

(emphasis in text). On the contrary, taken as a whole, the

statutes are concerned with discrimination against the

disabled generally. See, e.g., Section 504 of the Rehabilitation

19

Act 1973, Pub. L. No. 93-112, 87 Stat. 394 (expanding, inter

alia, vocational rehabilitative services, employment

opportunities, rehabilitative services and _ rehabilitative

training); Act of June 10, 1948, ch. 434, 62 Stat. 351

(prohibiting employment discrimination by the United States

Civil Service).6 But as intractable as that problem may be,

® See also Architectural Barriers Act of 1968, 42 U.S.C. § 4151 et seq.,

Pub. L. 90-480 (requiring buildings financed with government

funds be handicapped accessible); Education of the Handicapped

Act, Pub. L. No. 91-230, tit. VI, 84 Stat. 175 (reenacted in 1990 as the

Individuals With Disabilities Education Act, 20 U.S.C. § 1400 et seq.)

(noting that its purpose is to “provide for the education of all

children with disabilities” among other goals); Developmental

Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et

seq., repealed by Pub. L. 106-402, Title IV, § 401(a), which enacted 42

U.S.C. § 1501 et seq. (“The purpose of this subchapter is to assure

that individuals with developmental disabilities and their families

participate in the design of and have access to needed community

services, individualized supports, and other forms of assistance

that promote self-determination, independence, productivity, and

integration and inclusion in all facets of community life, through

culturally competent programs authorized under _ this

subchapter....”); Voting Accessibility for the Elderly and

Handicapped Act, 42 U.S.C. § 1973ee et seq. (“[T]o promote the

fundamental right to vote by improving access for handicapped

and elderly individuals to registration facilities and polling places

for Federal elections.”); Air Carrier Access Act of 1986, 49 U.S.C. §

41705 (prohibiting air carriers from discriminating based on

disability); 42 U.S.C. § 1437f (“For the purpose of aiding low-

income families in obtaining a decent place to live and of

promoting economically mixed housing, assistance payments may

be made with respect to existing housing in accordance with the

provisions of this section.”); Education of the Handicapped Act

Amendments of 1983, Pub. L. No. 98-199, § 10, 97 Stat. 1367; Fair

Housing Amendments Act of 1988, 42 U.S.C. § 3604 (discrimination

in the sale of rental housing); cf. Protection and Advocacy for

Mentally Ill Individuals Act of 1986, 42 U.S.C. § 10801 (“[T]o ensure

that the rights of individuals with mental illness are protected”);

Civil Rights of Institutionalized Persons Act (CRIPA), Pub. L. No.

96-247, 94 Stat. 349 (1980) (“An Act to authorize actions for redress

20

“discrimination” generally has never been synonymous with

unconstitutional conduct, especially outside the race context.

See Garrett, 531 U.S. at 370. In contrast to the heightened

scrutiny in Hibbs and Lane, the rights at issue do not

implicate such scrutiny, and a pattern cannot be established

with bare assertions of discrimination.

II. Even Assuming Some Pattern Of Violations Had Been

Established, The Imposition of A Blanket Abrogation

Of Sovereign Immunity, And its Extension To All

States Regardless Of Their History, Is Not a Congruent

and Proportional Response.

Even if the record before Congress were sufficient to

establish some “history and pattern” of unconstitutional

action-which it is not-Petitioners must still establish that

Congress’ response was “congruent and proportional” to any

pattern established by the record. Here, Congress’ decision

to impose a blanket abrogation of sovereign immunity was

not congruent or proportional even as to the States in which

constitutional violations-limited in number as they are-were

arguably established in the legislative record. And that

decision was even more indefensible as applied to the many

States in which no violation was established.

A. Congress’ Use of the ADA to Abrogate A State's

Sovereign Immunity In Response To At Most A

Handful Of Arguably Established Violations Over

Several Decades Is Not a Congruent and

Proportional Remedy.

“Regardless of the state of the legislative record,” Congress

may overstep its remedial authority if the legislation is “so

out of proportion to a supposed remedial or preventive

in cases involving deprivations of rights of institutionalized

persons secured or protected by the Constitution or laws of the

United States.”).

21

object that it cannot be understood as responsive to, or

designed to prevent, unconstitutional behavior” or if it

“appears, instead, to attempt a substantive change in

constitutional protections.” Boerne, 521 U.S. at 532. In

deciding whether § 5 legislation attempts a change in the

constitutional protections, the Court looks to whether it

“erects protections beyond the Constitution’s requirements”

or “redefine[s] the States’ legal obligations.” Kimel, 528 U.S.

at 86, 88.

1. Onn its face, Title II is designed to do far more than

remedy or deter constitutional violations. Section 12132 of

Title Il states that “no qualified individual” shall be

“excluded from participation in or be denied the benefits of

the services, programs or activities of a public entity, or be

subjected to discrimination by any such entity.” The

regulations to carry out this mandate are equally wide-

ranging. See, e.g., 28 C.F.R. § 35.130(b) (listing prohibitions

against discrimination in an “opportunity to participate” (id.

(b)(1)(i)), those that are “not equal,” (id. (ii)), those that are

“not as effective’ or fail to “reach the same level of

achievement” (id. (iii), those that “perpetuate

discrimination” (id. (v)), that “limit” the “enjoyment” of any

right (id. (vii)). As the regulations make clear, “Title II

addresses all prison services, programs and activities — and

goes well beyond the basic, humane necessities guaranteed

by the Eighth Amendment -—to disabled prisoners.” Miller v.

King, 384 F.3d 1248, 1274 (11th Cir. 2004). Thus, the all-

encompassing nature of Title II “imposes substantially higher

burdens” on the state prisons than would be required under

either the Eighth Amendment or the Turner standard. Kimel,

528 U.S. at 87.

The same is true for any of the other rights invoked by

Petitioners; Title Il creates demands that are far more

numerous and higher than are required by the Constitution.

Indeed, while the goals of the ADA are worthy, Title II is a

poorly tailored and awkward tool to accomplish the

enforcement of constitutional rights. For example, though

22

most of the cases the Petitioners cite in an effort to establish a

“pattern and history” concern prison conditions generally;

the ADA says nothing of the basic conditions of a prison. It

does not mandate sanitary facilities, adequate nourishment,

clothing, space, staffing, freedom from unduly harsh

punishment, the existence or access to a law library or

exercise of religious practices. Instead, Title II would impose

money damages on States for a failure to provide

innumerable services, programs or activities-all of which go

far beyond constitutional rights. See Cochran v. Pinchak, 401

F.3d 184, 192-93 (3d Cir.) (holding that Title II did not

abrogate sovereign immunity for lawsuit seeking money

damages for failure to provide blind inmate with, among

other things, a tape player and “talking watch”: “[Title II]

affects far more state prison conduct and prison services,

programs and activities than the Equal Protection Clause

protects.”), vacated en banc, pending resolution of this case,

412 F.3d 500 (3rd Cir. 2005).

Thus, Title II is not tailored to enforce constitutional

guarantees of disabled inmates; it is far more sweeping —

nothing less than a “comprehensive national mandate for the

elimination of discrimination against individuals with

disabilities.” 42 U.S.C. § 12101(b)(1). And therefore, because

Title II applies indiscriminately to all services, programs and

activities in state prisons, it cannot in sense be considered

“targeted” to enforcing constitutional rights. Cf Hibbs, 538

U.S. at 970 (“Unlike statutes in City of Boerne, Kimel and

Garrett, which applies broadly to every aspect of state

employer's operations, the FMLA is narrowly targeted....”).

It follows that the imposition of financial liability for a State's

failure to comply with those standards also is not sufficiently

“targeted.”

Further, the standards for liability under the Eighth

Amendment versus Title [I are vastly different. The

deliberate indifference test is a high standard requiring

actual knowledge of a substantial risk. Farmer, 511 U.S. at

835-36; see also, Hernandez v. Texas Dept. of Pro. & Reg. Serv.,

23

380 F.3d 872, 882 (5th Cir. 2004) (deliberate indifference

imposes a “high burden” involving proof of an “intentional

choice”). On the other hand, Title II claims do not

contemplate anything approaching the high burden required

under the Eighth Amendment and may be based on

unintentional conduct. See Ability Ctr. of Greater Toledo v. City

of Sandusky, 385 F.3d 901, 909 (6th Cir. 2004) (noting that a

claim for “reasonable accommodations” under 28 C.F.R. §

35.151 is not limited to “intentional discrimination”). Thus,

applying Title II to State prisons—with the attendant

abrogation of sovereign immunity--as a way of redressing

Eighth Amendment violations would be a classic case of

legislation redefining substantive constitutional law.

2. To be sure, Petitioners argue that Title II does not

require a public entity to take steps that would

“fundamentally alter” a facility or service or cause an “undue

financial” burden. Pet’r Br. at 40; Gov't. Br. at 10, 48. Yet

they fail to mention that the Title II regulations themselves

place the burden on the States to prove that they qualify for

such exemptions. See 28 C.F.R. § 35.130(b)(7) (reasonable

modification required “unless public entity can demonstrate”

that modifications would fundamentally alter a service,

program or activity); id § 35.150(a)(3); id 35.164 (“public

entity has the burden of proving” that compliance “would

result in such alteration or burden”). And if they do not do

so, they lose their sovereign immunity as to claims

challenging the configuration of their facilities!

Accordingly, when considering whether the line has been

crossed between enforcing constitutional rights to rewriting

them, the fact that Title II places the burden of proof on the

State highlights again that it supplants well-settled

constitutional law with its own far-reaching mandate for

regulating prison conditions. That contrasts sharply with the

rule that prisoners alleging Eighth Amendment violations

have the high burden of proving “deliberate indifference’;

the State has no burden to disprove that allegation. Chandler

v. Crosby, 379 F.3d 1278, 1289-90 (11th Cir. 2004) (holding

24

that a prisoner must prove all elements of his Eighth

Amendment claim).

The same is true of the other hypothetical claims asserted

by Petitioners, which are governed by the even more

deferential “reasonably related” test of Turner. As this Court

reaffirmed im Overton, the burden is~on the inmate to

establish the invalidity of prison conditions. 539 U.S. at 132;

see also O’ Lone, 482 U.S. at 350 (error to place burden on State

for rules regulating religious practices). Yet, again, to the

extent Title I] is designed to “enforce” constitutional rights, it

creates what amounts to a presumption that a State prison

violates the constitutional rights of disabled inmates

whenever the prison fails to comply with all of Title II's

detailed standards.

In this regard, Title II is similar to Title |, which was at

issue in Garrett. There, the Court focused on the fact that

Title I placed the burden on the States to show the

reasonableness of accommodations in employment “instead

of requiring (as the Constitution does) that the complaining

party negate reasonable bases for the employer's decision.”

531 U.S. at 373. Asa result, placing the burden on the States

“would allow Congress to rewrite the Fourteenth

Amendment law laid down by this Court in Cleburne.” 531

US. at 373-74. Similarly in Kimel, the Court held that the Age

Discrimination in Employment Act (“ ADEA”) fundamentally

altered equal protection jurisprudence so that it “effectively

elevated the standard for analyzing age discrimination to

heightened scrutiny.” 528 U.S. at 88. By the same reasoning,

to impose Title I] on every corner of prison life would be to

replace the Turner and Farmer standards for weighing the

constitutionality of prison conditions with a new regime

embodied in Title I] and its regulations.

3. Abrogating sovereign immunity so that States can be

sued for money damages is also unnecessary and out of

proportion to enforcing any of the constitutional rights at

issue. First, inmates have long filed civil rights suits under

25

28 U.S.C. § 1983 to enforce the same constitutional rights that

Petitioners argue should now be enforced by a money

damages remedy under the ADA. There is no finding in the

ADA-~—and Petitioners offer no convincing evidence to the

contrary—that civil rights suits have been inadequate to

redress the constitutional rights of disabled inmates. In fact,

as the court of appeals below held, Petitioner may seek relief

under § 1983 for the Eighth Amendment claims he has

preserved.

Further, including a money damages remedy for prison

litigation is a reason for special concern. It is well recognized

that prisons provide a unique environment for spawning

litigation. See Roller v. Gunn, 107 F.3d 227, 234 (4th Cir. 1997)

(“[T]here has been a far greater opportunity for abuse of the

federal judicial system in the prison setting.”). In fact, “in

1995, prisoners brought over 25% of the civil cases filed in

federal district courts.” Id. at 230 (citing Administrative

Offic: of the United States Courts statistics).

Petitioners contend that the Prison Litigation Reform Act

(“PLRA”), Pub. L. No. 104-134, tit. VIII, provides

“protection” to States in this regard. Pet'r Br. at 42.

However, this facile assurance about the efficacy of the PLRA

overlooks that even assuming it has slowed the growth of

such suits, the same conditions that have driven prison

litigation in the past and have made prisoners more litigious

than the rest of society still exist today. See, e.g., Nagy v. FMC

Butner, 376 F.3d 252, 255-56 (4th Cir. 2004) (PLRA’s deferred

payment scheme not a “ panacea y

” It is not necessary to look any further than the Petitioner in this

case for a compelling example of the ongoing potential for

vexatious prison litigation. According to the record, Petitioner has

filed some 60 lawsuits against the State of Georgia and had five

appeals dismissed by the Eleventh Circuit as frivolous. Resp’t Br.

in Opp’n to Pet. for Cert. at 1-2 n.1. And, although Petitioner raises

access to the courts as a reason for abrogating States’ sovereign

immunity, Pet’r Br. at 16-17, after 60 lawsuits and five appeals, he

fails to explain how he was denied access to the courts.

26

Thus, while the necessity for adding a money damages

remedy under the ADA is dubious, the practical effect of this

remedy is very' real. It will spur more prison litigation at

significant expense to the States. This only reinforces the

point that a money damages remedy for any deviation from

Title II is greatly disproportionate to enforcing the

constitutional rights at issue.

B. Abrogating The Sovereign Immunity Of States

With No Arguably Demonstrated Violations Is

Certainly Not A Congruent And Proportional

Response To A Handful Of Arguably Proven

Violations In Other States.

In all events, the fact remains that there is simply no record

of any constitutional violations for many states. As shown

above and in the attached table, even if local and county

governments are included, 16 of the States had no alleged

constitutional violations prior to the ADA.* And if cases

involving county or city jails are excluded, as well as cases

involving allegations that were never arguably established,

half the States—25 of them—had not been shown to have

engaged in any violations of the rights of disabled prisoners

prior to the ADA's passage. It drains the test of any meaning

to find that it is “congruent and proportional” to take away

® An additional indication that the ADA’s uniform and sweeping

requirements are neither congruent nor proportional is the

Government's acknowledgement that “[bjetween 1980 and the

enactment of Title II of the Americans with Disabilities Act in 1990,

Department of Justice investigations under the Civil Rights of

Institutionalized Persons Act, 42 US.C. § 1997 et seq., found

unconstitutional treatment of individuals with disabilities in

correctional facilities in thirteen different States.” Gov't Br.;

Addendum B. Even when the Government includes findings after

the passage of the ADA it still can only assert that 33 States have

been subject to negative findings. Id. It is again clear that Congress

made no effort to limit the ADA’s intrusions to the alleged harm at

issue.

27

sovereign immunity from a group of States for which there is

no evidence of violations.

In Kimel, the Court made essentially the same point: “Even

if the California report had uncovered a pattern of

unconstitutional age discrimination in the States’ public

agencies at the time, it nevertheless would have been

insufficient to support Congress’ extension of the ADEA to

every State in the Union.” 528 U.S. at 90 (emphasis added).

Congress, moreover, has proven that targeting even the

most intractable constitutional violations can be

accomplished without indiscriminately applying a remedy to

all States. In fact, in Garrett, the Court found that “[Title I's]

constitutional shortcomings are apparent when the [ADA] is

compared to Congress’ efforts in the Voting Rights Act of

1965." 531 U.S. at 373. With the Voting Rights Act, even

with a record showing almost a century of denying African-

Americans equal voting rights, Congress still enacted a

proportional response targeted only at offending states. See

South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966) (noting

that the Voting Rights Act was “aimed at areas where voting

discrimination has been most flagrant” and that the Act

“included a formula defining the States and political

subdivisions to which these new remedies appllied]”); see

also Boerne, 521 US. at 525 (noting that the provisions at issue

in Katzenbach were confined to those regions of the country

“where voting discrimination ha[d] been most flagrant” and

that the remedy affected a discrete set of laws); accord City of

Rome v. United States, 446 U.S. 156, 177 (1980) (approving

legislation limited to “jurisdictions with a demonstrable

history of intentional racial discrimination in voting”); Civil

Rights Cases, 109 U.S. 3, 14 (1883). On the other hand, when

* In the Civil Rights Cases, the Court found a portion of the Civil

Rights Act to be invalid by noting that

[i]t does not profess to be corrective of any constitutional

wrong comunitted by the States; it does not make its operation

to depend upon any such wrong committed. It applies

28

Congress has failed to tailor its remedy to the offending

States, this Court has found that Congress exceeded its

authority. See United States v. Morrison, 529 U.S. 598, 626-27

(2000) (holding that the statute at issue there was “different

from these previously upheld remedies in that it applies

uniformly throughout the Nation” even though “Congress’

findings indicate that the problem of discrimination against

the victims of gender-motivated crimes does not exist in all

States, or even most States.” ).

Rather than imposing a remedy targeted at offending

States, as Congress has done in the past, Title I] imposes

broad, pervasive requirements on every State in the Union-

regardless of that State’s own record with respect to disabled

prisoners. The contrast in proportionality between the

remedies in the Voting Rights Act and those in Title II is, as

the Court said in Garrett, “stark.” 531 US. at 374.

Accordingly, Title II cannot in any sense be considered a

“congruent and proportional” response to violations of the

rights of disabled inmates in all state prisons.

Requiring legislation to be proportional ensures both that §

5 legislation is actually remedial while at the same time

protecting the sovereign interests of each State. Claiming

that a State has a pattern and history of constitutional

equally to cases arising in States which have the justest laws

respecting the personal rights of citizens, and whose

authorities are ever ready to enforce such laws, as to those

which arise in States that may have violated the prohibition of

the amendment. In other words, it steps into the domain of

local jurisprudence, and lays down rules for the conduct of

individuals in society towards each other, and imposes

sanctions for the enforcement of those rules, without referring

in any manner to any supposed action of the state or its

authorities.

Civil Rights Cases, 109 U.S. 3, 14 (1883).

29

violations is “a most serious charge”, Garrett, 531 U.S. at 375,

(Kennedy, J. concurring), and imputing the violations of one

State to another undermines our system of dual sovereigns.

Under our system, each State has its own unique sovereign

identity, and abrogating a right of sovereignty that is

guaranteed by an amendment to the Constitution should be

based on more than “guilt by association.” Hibbs, 538 U.S. at

741-42 (Scalia, J., dissenting). Congress’ use of its remedial §

5 authority cannot be considered either congruent or

Proportional as to those States with no history or pattern of

constitutional harm. Nor can it be so considered even as to

States with a limited “history” of arguable violations, where

as here that history falls far short of a ” widespread pattern.”

CONCLUSION

The decision of the Court of Appeals for the Eleventh

Circuit should be affirmed.

Respectfully submitted,

PAUL G. SUMMERS GENE C. SCHAERR*

ATTORNEY GENERAL WINSTON & STRAWN LLP

MICHAEL E. MOORE 1700 K Street, N.W.

SOLICITOR GENERAL Washington, D.C. 20006

Office of the Attorney (202) 282-5000

General

State of Tennessee LINDA T. COBERLY

P.O. Box 20207 E. KING POOR

Nashville, Tenn. 37202-0207 JUSTIN E. ENDRES

(615) 741-3491 WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, IL 60601

(312) 558-5600 ©

Counsel for Amici Curiae

September 2005 * Counsel of Record

State Alleged | Arguable | Arguable | Arguable | State State Maximum Maximum

State& | State & State Prison | Disabled Alleged Arguable

Local Local | Violations | Violations | Pop. | Prison Pop. Violations As | Violations As

Violations | Violations 1990 1990 (est.) Percent Of Percent Of

. | Disabled Pop.

AL 3 2 2 0 15,665 | $222 037

AK 0 0 0 0 874 0

| Az 3 i 0 14,261 4,754 063

AR i i 0 7,322 2,441 04!

CA i 0 0 0 97 32,436 003

| co I i l 0 7,671 2.557 039

CT I j i 0 10 3,500 029

BC 2 2 2 N/A 3,471 1,157 173

DE 0 0 0 0 9.947 3,316 0

FL 2 2 0 2 | 44,387 14,796 O14

GA i 0 0 0 41) 7,470 M3

HI 0 0 0 0 2,533 844 0

ID i i i 0 1,961 654 153

iL i i 0 27,516 9,172 O11

2 i i 0 12,736 4,245 047

f i i i 0 3967 | 1322 076

| KS i i i 0 5,775 925 052

Ky 2 2 i i 9 3 066

LA i i i 0 18,599 016

0 0 0 0 1,523 3 0

MD i i i 0 i7 5.949 017

MA 0 0 0 0 8,345 2,782 t)

| MI i I i 0 34,267 11,422 009 009

| MN 0 0 0 0 3,176 1,059 0 0

| MO- i 0 0 0 14,943 4,98 020 e

| MS 0 0 0 0 8375 2,792 0 0

MT 0 0 0 0 425 475 0 0

NE i I i 0 2,403 801 125 125

NV 0 0 0 0 $,322 1,774 0 0

NH i | i 0 1 447 224 224

NJ i 0 0 0 21,128 7 014 0

NM i | i 0 3,187 — a 094 094

NY 6 4 4 0 $4,895 18,298 033 022

‘NC 0 0 0 0 18,411 6,137 0 0

ND 0 0 0 0 483 161 0 0

i “0 0 0 31,822 10,607 009 0

i i ) 0 12,285 4 024 024

OR i i 0 i 6,492 164 046 046

PA 2 2 i i 430 027 027

PR 2 2 2 0 A N/A N/A N/A

| i i i 0 2 797 125 125

4 i i i 0 17,319 5,773 017 017

0 0 0 0 TMi 447 0 o

TN l l 0 l 10,388 | 3.463 029 029

TX i i i 0 50 16,681 006 006

UT 2 i 0 i 2.496 832 240 120

_ Tt 0 ) 0 0 1,049 350 0 0

__VA 0 0 0 0 17,593 5 0 0

Wa | 0 0 0 0 7.995 0 0

wv i i an 0 1,565 $22 192 192

i i i 0 7,465 040 040

wy 0 0 0 0 L110 370 0 0

Totals $2 40 33 7 710 236,794 oa 016

“This chart is derived from Petitioners case citations and relates to the addendum to Respondent's brief analviing

the pre-ADA cases. This chart does not include any federal facilities.

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