Supplemental Brief — Zimmerman v. Oregon Department of Justice

Supreme Court, U.S.

>it t.E D

VAN 12 2000

(5) :

No. 99.243 a CLERK

IN THE

Supreme Court of the United States

Scot L. Zimmerman,

Petitioner,

Vv.

State of Oregon Department of Justice,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

SECOND SUPPLEMENTAL BRIEF

OF THE PETITIONER

Larry J. Blake, Jr. Thomas C. Goldstein

Blake & Duckler, LLP (Counsel of Record)

148 B Ave. Suite 200 Thomas C. Goldstein, P.C.

Lake Oswego, OR 97034 4607 Asbury Place, NW

(503) 635-9626 Washington, DC 20016

(202) 237-7543

TABLE OF CONTENTS

Second Supplemental Brief of the Petitioner.......................... 1

TABLE OF AUTHORITIES

Cases

Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir.

1999) (en banc), pet. for cert. pending, No. 99-423 ....... 8,9

Amos v. Maryland Dep't of Public Safety & Correc.

og ME EA eed Ls 7,8

City of Boerne v. Flores, 521 U.S. 507 (1997)............0000+0 6,8

Coolbaugh v. State of La., 136 F.3d 430 (Sth Cir. 1998)... 6, 8

Dare v. California, 191 F.3d 1167 (9th Cir. 1999) ................ 8

Florida Prepaid Postsecondary Educational Expense

Board v. College Savings Bank, 527U.S.__ (1999)... 6, 8

Garrett v. University of Ala. at Birmingham, 193 F.3d

C209 Ca Reale CITE iowinistnininnignmeninninieminmnne 8

Gregory v. Ashcroft, 501 U.S. 451 (1991)..........cccccsseseeseseeees 4

Kimel v. State of Fla. Bd. of Regents, 139 F.3d 1426

CER COR FOGG hac cistditasciceicsinithicanivvsninecaitiabiatanadtintaniianiatinii 7

Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999) ................ 8

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307

(IOP Ge CI wii ctineeitstiniicniiltiaiticliiicniittiabllanicnaied 4

Muller v. Costello, 187 F.3d 298 (2d Cir. 1999)................ 7,8

No. 98-1117, Illinois State Univ. Vv. Varner .........::00000ccseecceeees 3

No. 98-1448, California St. Bd. of Equalization v.

Atchison, Topeka & Santa Fe Ry. CO. .....ssccssssssesssserseevees 3

No. 98-1845, SUNY, College at New Paltz v. Anderson........ 3

No. 98-584, California St. Bd. of Equalization v.

Souticeres Pac, TVG. CO. ccccseceiccsssirsccssnesesionsssressiocnssshiotion 3

ii

No. 98-791, Kimel v. Florida Board of Regents (Jan. 11,

|_|, OR nownrencew RTT RTS passim

No. 98-829, Florida Dep’t of Corrections v. Dickson

(relisted for January 14, 2000 Conference) .....................64 3

No. 99-423, Alsbrook v. Maumelle (“Alsbrook’’) ..............0+0++ 3

INO. SP-4264, Browie WV. NG. TRIE Fo cestcscckevisvisensacsssceeadiaion 3

No. 99-940, DeBose V. Nebraska ..........cccccccsccseccceeccesssceeeensees 3

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 6, 8

Vance Vv. Bradley, 440 U.S. 93 (1979) .......ssccssssssssssssrrssssseess 4

Statutes

BP UB, § GEOG) nccsitntnsvecintisnccanstintinniianibievets tilidindabiteea 4

BP UBL. & GIEIIE D ccsvaiicscsnesinspeiennstaesipsunanssaniieabanabaassnmaianh 5

42 UGA © TRIG hnvnvcsnvenssnticnsesstsinbaitsectenisiaaimisasmainaten 7

Other Authorities

H.R. Rep. No. 101-485(III), at 25 (1990), reprinted in

1990 U.S.C.C ALN, GET sccvncerntctesinteeesstidiiessctaemabanaien 7

SECOND SUPPLEMENTAL BRIEF

OF THE PETITIONER

Petitioner Scot L. Zimmerman respectfully submits this

Second Supplemental Brief in light of this Court’s decision in

No. 98-791, Kimel v. Florida Board of Regents (Jan. 11,

2000), holding that the Age Discrimination in Employment

Act (“ADEA”) does not validly abrogate States’ sovereign

immunity from suit.

In addition to this Petition, the Court now has before it

three other Petitions for Certiorari presenting the question

whether the Americans With Disabilities Act (“ADA”) val-

idly abrogates States’ sovereign immunity from suit, as well

as a Petition raising a similar challenge to a regulation issued

pursuant to the ADA.' The Court should grant certiorari now

to resolve the circuit split these Petitions present and the im-

portant constitutional question they raise, rather than re-

manding these cases for further consideration in light of

Kimel. In particular, the considerations normally militating in

favor of a GVR Order in this circumstance are overborne be-

cause (a) Kimel announces no new principle of law or appli-

cation of law to fact that would benefit from percolation in

the lower courts, particularly in light of the fact that the con-

' No. 98-829, Florida Dep’t of Corrections v. Dickson (relisted for Janu-

ary 14, 2000 Conference); No. 99-423, Alsbrook v. Maumelle (“Als-

brook”) (curve-lined for January 14, 2000 Conference with this Petition);

No. 99-940, DeBose v. Nebraska (set for January 21, 2000 Conference);

see also No. 99-424, Brown v. N.C. D.M.V. (addressing regulation issued

pursuant to the ADA as valid abrogation of state sovereign immunity; set

for January 14, 2000 Conference). Pending also are petitions asserting

state sovereign immunity under the Equal Pay Act (No. 98-1117, J/linois

State Univ. v. Varner; No. 98-1845, SUNY, College at New Paltz v. An-

derson) and the Railroad Revitalization and Regulatory Reform Act (No.

98-584, California St. Bd. of Equalization v. Southern Pac. Transp. Co.;

No. 98-1448, California St. Bd. of Equalization v. Atchison, Topeka &

Santa Fe Ry. Co.), which have been relisted for the January 14, 2000 Con-

ference.

2

stitutionality of the ADA’s abrogation provision has already

been the subject of extensive recent analysis by seven circuits,

and (b) the Court has a unique opportunity to resolve the issue

during this Term, thereby avoiding substantial uncertainty and

delay regarding the scope of an important federal civil rights

statute.

a. The Court’s analysis in Kimel proceeds in two parts.

First, the Court held that “the substantive requirements the

ADEA imposes on state and local governments are dispro-

portionate to any unconstitutional conduct that conceivably

could be targeted by the Act.” Kimel, slip op. at 18. After

reviewing its precedents holding that discrimination against

the aged is not subject to heightened judicial scrutiny,’ the

Court reiterated that the Constitution imposes no obstacle to

States “rely[ing] on age as a proxy for other qualities, abili-

ties, or characteristics that are relevant to the State’s legiti-

mate interests.” Jd. at 20. Unlike the Fourteenth Amend-

ment, the ADEA “makes unlawful, in the employment con-

text, all ‘discriminat[ion] against any individual . . . because

of such individual’s age.’*” Jd. at 22 (quoting 29 U.S.C. §

623(a)(1) (alterations in Kimel)) (emphasis added). The stat-

ute thus imposes a “broad restriction on the use of age as a

discriminating factor” and accordingly “prohibits substan-

tially more state employment decisions and practices than

would likely be unconstitutional.” Jd Although employers

may invoke a defense for certain “bona fide occupational

qualifications,” the statute nonetheless “imposes substantially

higher burdens on state employers” than the Constitution be-

cause this “extremely narrow exception” does not overcome a

? In addition, as Petitioner expiained in a previously filed Supplemental

Brief, by granting certiorari in this case, the Court necessarily would re-

solve a further important circuit conflict regarding whether Title II of the

ADA applies to employment discrimination claims.

> See Gregory v. Ashcroft, 501 U.S. 451 (1991); Vance v. Bradley, 440

U.S. 93 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307

(1976) (per curiam).

3

“presumption” in favor of liability. Jd. at 23 (quotation marks

and citation omitted).*

Second, the Court confirmed that “[d]ifficult and intracta-

ble problems often require powerful remedies, and we have

never held that §5 precludes Congress from enacting reasona-

bly prophylactic legislation.” Kimel, slip op. at 24. The strict

liability provisions of the ADEA, however, were not “such an

appropriate remedy,” but “instead, merely an attempt to sub-

stantively redefine the States’ legal obligations with respect to

age discrimination.” Jd In particular, “Congress’ 1974 ex-

tension of the Act to the States was an unwarranted response

to a perhaps inconsequential problem,” given that “Congress

never identified any pattern of age discrimination by the

States, much less any discrimination whatsoever that rose to

the level of constitutional violation.” Jd. at 25.

b. This Court should grant plenary review rather than re-

manding this and other Petitions addressing whether the ADA

validly abrogates States’ sovereign immunity for further con-

sideration in light of Kimel. The Court’s decision in Kimel

announces no new principle of law, and in particular an-

nounces no new standard for evaluating whether a federal

statute ostensibly enacted pursuant to Congress’ powers under

Section 5 of the Fourteenth Amendment validly abrogates

States’ sovereign immunity.’ Instead, the opinion follows

* A further provision of the Act “simply makes clear that” under the

ADEA, unlike the Constitution, “the employer cannot rely on age as a

proxy for an employee’s remaining characteristics.” Kimel, slip op. at 24

(citing 29 U.S.C. § 623(f1)) (quotation marks, citation, and alteration

omitted).

* The only possible exception is the Court’s analysis of whether the

ADEA contains a sufficient plain statement of an intent to abrogate States’

sovereign immunity. Compare Kimel, slip op. at 8-13 with id. (Thomas,

J., dissenting). But the ADA contains an absolutely unambiguous abroga-

tion provision that is entirely unaffected by the Kimel analysis. E.z.,

Coolbaugh v. State of La., 136 F.3d 430, 433 (Sth Cir. 1998) (“The first

prong—Congress’ intent to abrogate state immunity—is patently clear in the

ADA.”) (citing 42 U.S.C. § 12202 (“A State shall not be immune under

4

directly from the Court’s earlier decisions in Seminole Tribe

of Florida v. Florida, 517 U.S. 44 (1996) (holding that Con-

gress may not abrogate States’ sovereign immunity under Ar-

ticle I, but may do so pursuant to § 5 of the Fourteenth

Amendment), City of Boerne v. Flores, 521 U.S. 507 (1997)

(holding that the Religious Freedom Restoration Act is not

valid application of Congress’ § 5 powers), and Florida Pre-

paid Postsecondary Educational Expense Board v. College

Savings Bank, 527 U.S. ___ (1999) (holding that Plant Vari-

ety Protection Remedy Clarification Act is not a valid appli-

cation of Congress’ § 5 powers). Thus, the Court in Kimel

reiterated the “congruence and proportionality test” developed

in City of Boerne and applied once again in Florida Prepaid,

see slip op. at 17-18, then held that the ADEA was similarly

invalid “applying the same ‘congruence and proportionality’

test in these cases.” /d. at 18 (emphasis added). In fact, the

Kimel dissent did not contend that the majority had varied at

all from its earlier explication of the “congruence and propor-

tionality test.” Jd. (Stevens, J., dissenting).

Moreover, the Court’s application of the “congruence and

proportionality test” to the ADEA is largely inapposite to a

similar challenge to the ADA in four critical respects.

1. Kimel explained that the aged “have not been subjected

to a history of purposeful unequal treatment.” Kimel, slip

op. at 19. By contrast, “Before enacting the ADA, Con-

gress considered a wide range of evidence and made find-

ings. Both the House and the Senate cited seven substan-

tive studies or reports to support its conclusion that dis-

crimination against the disabled is a serious and pervasive

problem.” Coolbaugh v. State of La., 136 F.3d 430, 436

(Sth Cir. 1998).

the eleventh amendment to the Constitution of the United States from an

action in Federal or State court of competent jurisdiction for a violation of

this chapter.”’)).

5

2. Kimel emphasized that “[o]ld age also does not define a

discrete and insular minority because all persons, if they

live out their normal life spans, will experience it.” Ximel,

slip op. at 19 (quotations and citations omitted). Disability

is, once again, distinct: “Congress made several findings

of both past and present discrimination against the disabled

in the country’s general population that it determined vio-

lated the Equal Protection Clause,” Amos v. Maryland

Dep't of Public Safety & Correc. Servs., 178 F.3d 212 (4th

Cir. 1999), and “specifically found that ‘individuals with

disabilities are a discrete and insular minority who have

been faced with restrictions and limitations, subjected to a

history of purposeful unequal treatment,’” Kimel v. State of

Fla. Bd. of Regents, 139 F.3d 1426, 1433 (11th Cir. 1998)

(quoting 42 U.S.C. § 12107(a)(7)).

3. Kimel’s rationale that States properly may use age as a

proxy for other characteristics does not apply to the dis-

abled: “Congress considered and rejected the assumption

that the ‘inferior economic and social status of disabled

people . . . [was] an inevitable consequence of the physical

and mental limitations imposed by disability,’ instead at-

tributing the inferior status to ‘discriminatory policies

based on unfounded, outmoded stereotypes and percep-

tions, and deeply imbedded prejudices toward people with

disabilities."” Muller v. Costello, 187 F.3d 298, 309 (2d

Cir. 1999) (quoting H.R. Rep. No. 101-48S5(IID, at 25

(1990), reprinted in 1990 U.S.C.C.A.N. 447-48) (altera-

tions in Muller).

4. There is a critical difference between the ADEA’s ab-

solute prohibition on discrimination and the ADA’s reme-

dial provision. “[T]he remedial purposes of the ADA are

tailored to remedying and preventing the discriminatory

conduct, and are thus congruent and proportional to the

injury to be prevented or remedied. The Act only prohibits

discrimination against ‘qualified individuals,’ and it re-

quires only ‘reasonable accommodations’ that do not im-

6

pose an ‘undue burden’ on the employer.” Martin v. Kan-

sas, 190 F.3d 1120, 1128 (10th Cir. 1999).

c. It nonetheless likely would be appropriate to remand

for further consideration in light of Kimel if there were some

realistic prospect that percolation in the lower courts would

aid in the determination of the ADA’s constitutionality. But

that is not the case. This issue already has been the subject of

extensive recent analysis in the circuits, far beyond what

would be expected in the normal course of constitutional liti-

gation. Seven circuits already have addressed the question:

all of those decisions apply the “congruence and proportion-

ality test” in light of this Court’s decisions in Seminole Tribe

and City of Boerne; four analyze the question in light of

Florida Prepaid, all sustaining the ADA.° As noted supra,

nothing in this Court’s decision in Kimel suggests a further

avenue of inquiry by the courts of appeals.

It also would be appropriate to remand for further consid-

eration in light of Kimel if there were some realistic prospect

- that the circuit conflict over the ADA’s constitutionality

would thereby be resolved in favor of sustaining the statute.

But that is exceedingly unlikely, and Kimel is instead most

likely to leave the constitutionality of the ADA in a state of

intolerable uncertainty. Although there are substantial dis-

tinctions between the ADA and the ADEA, see supra,’ this

Court’s decision in Kimel can only realistically be read to call

the ADA’s abrogation provision into question. In other

° See Garrett v. University of Ala. at Birmingham, 193 F.3d 1214 (11th

Cir. 1999); Dare v. California, 191 F.3d 1167 (9th Cir. 1999); Martin v.

Kansas, 190 F.3d 1120 (10th Cir. 1999); Muller v. Costell, 187 F.3d 298

(2d Cir. 1999); Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir.

1999) (en banc), pet. for cert. pending, No. 99-423; Amos v. Maryland

Dep't of Pub. Safety & Correc. Servs., 178 F.3d 212 (4th Cir. 1999);

Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.), cert. denied, 119 S. Ct.

58 (1998).

” See also Kimel v. State of Fla. Bd. of Regents, 139 F.3d 1426 (11th Cir.

1998) (sustaining challenge to ADEA but rejecting challenge to ADA).

7

words, although the rationale of Kimel does not dictate hold-

ing States immune from suit under the ADA, neither does it

affirmatively insulate the ADA from challenge. In particular,

Kimel does not call into question the en banc Eighth Circuit’s

reasoning in Alsbrook v. Maumelle, 184 F.3d 999 (8th Cir.

1999), pet. for cert. pending, No. 99-423, in sustaining an

Eleventh Amendment challenge to the ADA, and that circuit

accordingly would be essentially certain to reinstate its hold-

ing on remand.* Nor is the Eleventh Amendment protection

afforded under Kimel so strong that there is a realistic possi-

bility that (a) the six circuits that have rejected such a chal-

lenge under the ADA would reverse course, and also (b) this

Court would depart from its consistent practice of reviewing

decisions holding important federal statutes unconstitutional

and refrain from considering the issue altogether.

d. The import of these points is heightened by the fact

that these cases come before the Court in time for them to be

resolved during this Term. An order remanding for further

consideration, by contrast, would delay definitive resolution

of the constitutionality of the ADA for at least a year, if not

more. On remand, both private parties and the States would

be subject to the costs of repetitive and unnecessary litigation

only to await a definitive ruling by this Court. Congress itself

will be left in a state of uncertainty regarding whether it is

necessary, or indeed possible, to make further findings with

respect to the disabled in order to determine whether States

should be subject to suit under the ADA. Considerations of

* Compare, e.g., Alsbrook, 184 F.3d at 1009 & n.17 (“We do not think

that the legislative record of the ADA supports the proposition that most

state programs and services discriminate arbitrarily against the disabled.”;

“In fact, the legislative record of the ADA suffers from exactly the same

infirmity that the Supreme Court noted with respect to the legislative rec-

ord of the PRA-an absence of a showing of widespread discrimination on

the part of the states.”) with Kimel, slip op. at 25 (“Congress never identi-

fied any pattern of age discrimination by the States, much less any dis-

crimination whatsoever that rose to the level of constitutional violation.”).

8

judicial economy and comity with other branches of govern-

ment therefore counsel in favor of granting certiorari at this

time.

Respectfully submitted,

Larry J. Blake, Jr. Thomas C. Goldstein

Blake & Duckier LLP (Counsel of Record)

148 B Ave. Suite 200 Thomas C. Goldstein, P.C.

Lake Oswego, OR 97034 4607 Asbury Place, N.W.

Washington, DC 20016

(202) 237-7543

Dated: January 12, 2000.