Petition for Writ of Certiorari — Hurst v. Texas Department of Assistive and Rehabilitative Services (No. 06-1720)

Supreme Court, U'S.

FILED

Vv 061720 JUN 25 2007

No. 06-

QFFIGE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

LOUISE ELIZABETH HURST,

Petitioner

V.

TEXAS DEPARTMENT OF ASSISTIVE

AND REHABILITATIVE SERVICES, ET AL

Respondents

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

JENNIFER HARBURY SUSAN F. ZINN

Counsel of Record TEXAS RIOGRANDE

DAVID G. HALL LEGAL AID, INC.

TEXAS RIOGRANDE 1111 N. Main St.

LEGAL AID, INC. San Antonio, Texas 78212

300 S. Texas Blvd. (210) 212-3772

Weslaco, Texas 78596

(956) 447-4800

Additional Counsel Listed on Inside Cover

Attorneys for Petitioner

MICHAEL E. URENA ALPHA HERNANDEZ

TEXAS RIOGRANDE TEXAS RIOGRANDE

LEGAL AID, INC. LEGAL AID, INC.

P.O. Box 2001 902 E. 11" Street

Eagle Pass, Texas 78853 Del Rio, Texas 78840

(830) 773-6151 (830) 774-8300

Attorneys for Petitioner

i

QUESTION PRESENTED

Whether the State of Texas waived its Eleventh

Amendment immunity to suit in federal court by accepting

federal funding to support its vocational Rehabilitation

Program under Title I of the Rehabilitation Act, 29 U.S.C. §

701 - §796 which conditions States’ receipt of federal funding

on compliance with all conditions set out in the Program and

specifically provides for judicial review of final decisions of

“designated State units.”

ii

LIST OF PARTIES TO THE

PROCEEDING BELOW

Petitioner:

Louise Elizabeth Hurst

Respondents:

Texas Department of Assistive and Rehabilitative Services

(“DARS”) (formerly known as the Texas Rehabilitation

Commission);

Terry Murphy, Commissioner of the Texas Department of

Assistive and Rehabilitative Services

iil

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY

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REASONS FOR GRANTING THE PETITION ...... ..... 4

I. ELEVENTH AMENDMENT [IMMUNITY IS

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Il. WAIVER OF ELEVENTH AMENDMENT

IMMUNITY BY ACCEPTING FEDERAL

Ill. THE REHABILITATION ACT’S STRUCTURE

ITSELF ESTABLISHES UNAMBIGUOUS

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TABLE OF CITED AUTHORITIES

CASES

Atascadero State Hosp. v. Scanlon,

Be rE A OE Pcie divs sentinsesconsesicininsrsbavsccoances passim

AT&T Comm. v. Bellsouth Telecom.,

PE Se ois iscsi caecescesnsectaccccncareccacne 5

Carrigan v. New York State Educ. Dept.,

2007 U.S. Dist. LEXIS 42481

I ed NN iad dniisacnnicinicstsanknvsshnansecassiienel 6

College Saving Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd.,

re I icp isi pschctinasicseaccssscieccincsaveonendonn 7

Dellmuth v. Muth, 491 U.S. 223 (1989)....c..ccssssssesssesseesee 8, 11

Diamond v, Michigan, 431 F.3d 262 (6" Cir. 2005).............- 6

Hurst v. DARS, 482 F.3d 809 (5" Cir. 2007).....1, 2, 3, 5, 7, 8

Hurst v. DARS, 392 F. Supp.2d 794 (W.D. Tex. 2005)......... l

MCI Telecom. Corp. v. Illinois Bell Tel. Co.,

CT Ce, FO io iciccsccscsiesctesaceck 5

Reaves v. Missouri Dept. of Elem. and

Second. Educ., 422 F.3d 675 (8 Cir. 2005)......c.eceseese00-- 6

South Dakota v. Dole, 483 U.S. 203 (1987) ........--++. 2, 5, 7,8

CONSTITUTIONAL PROVISIONS

Spending Clause,

Art. I, §8, cl. 1 of the U.S. Constitution.................. passim

vi

Eleventh Amendment,

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STATUTES

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RI Fa ci etna Uacscintissh cnn oateccah cles eaeacas passim

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Section 504 of the Rehabilitation Act wo... ceeceeeeeees 10

RULES

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STATE REGULATIONS

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Vili

TABLE OF APPENDICES

NOTE: The Appendices are bound and filed separately with

this Court.

|

OPINIONS BELOW

The court of appeals’ decision is reported at 482 F.3d

809 (5" Cir. 2007) and reprinted in Appendix A (hereinafter

“App.”). The district court’s decision is reported at 392 F.

Supp.2d 794 (W.D. Tex. 2005) and reprinted in App. B. The

Report and Recommendation of the United States Magistrate

Judge (filed May 20, 2005) is reprinted in App. C.

STATEMENT OF JURISDICTION

The court of appeals entered its judgment on March 26,

2007. This Court’s jurisdiction is invoked pursuant to 28

U.S.C. §1254(1). 28 U.S.C. 2403(a) may apply. The courts

below did not certify to the Attorney General that fact that the

constitutionality of an Act of Congress was drawn into

question, pursuant to 28 U.S.C. 2403(a). Jurisdiction in the

district court was asserted based on 28 U.S.C. §1331 (federal

question), as well as the Rehabilitation Act, as amended, 29

U.S.C. §722. In addition, Petitioner relied upon 28 U.S.C.

§2201, authorizing the court to grant declaratory relief.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eleventh Amendment to the United States

Constitution, the Spending Clause, Art. 1, £8, cl. 1 of the

United States Constitution, and Title I of the Rehabilitation

Act, 29 U.S.C. § 701 - §796 are reprinted in App. D.

STATEMENT OF THE CASE

This Petition addresses the Fifth Circuit’s ruling that the

judicial review provision contained in the Vocational

Rehabilitation Program set out in Title I of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. §701 - §796, violates the

2

Eleventh Amendment of the U.S. Constitution. Other courts of

appeals have reached the merits of these judicial review cases,

thus de facto finding a waiver of immunity. The Fifth Circuit

in this case recognized that the judicial review clause

specifically applies to state units. Nevertheless, the appellate

court incorrectly concluded that Section 102 of the

Rehabilitation Act [29 U.S.C. §722] “does not contain. the

necessary ‘clear statement’ required under the Dole test for

finding a waiver of Eleventh Amendment immunity under

federal Spending Clause legislation.” Hurst v. DARS, 482 F.3d

809, 814 (5™ Cir. 2007); South Dakota v. Dole, 483 U.S. 203

(1987).

‘This raises an important question of federal law that has

not been, but should be, settled by this Court. The federal

Vocational Rehabilitation Program set out in Title I of the

Rehabilitation Act (1) conditions receipt of federal funding on

compliance with all conditions set out in the Program, 29

U.S.C. §721(b); (2) requires an opportunity for judicial review

of adverse determinations in federal court, 29 U.S.C. §722

(c)(5)(J); and (3) specifically provides that only a “designated

State unit” is a potential defendant in a suit for judicial review

brought by an individual, 29 U.S.C. §722(c). If such statutory

language does not satisfy the unambiguous intent requirement

of Dole, then, it would appear that only statutes containing rote

references to state sovereign immunity or the Eleventh

Amendment would manifest the requisite unambiguity.

Although this statute does not contain that rote language, its

terms and structure nonetheless would leave no doubt in the

mind of a responsible State official that to receive this federal

funding “designated State units” are required to submit to

federal court jurisdiction to review their final decisions.

A. District Court Ruling. Petitioner, Louise Elizabeth

Hurst, filed this civil action in the Western District of Texas on

November 21, 2003, to review the denial of vocational

3

rehabilitation services by the Texas Rehabilitation Commission

(now the Texas Department of Assistive and Rehabilitative

Services). The Defendants in the district court filed a motion

to dismiss based on Eleventh Amendment immunity. Ms.

Hurst responded that the State had specifically waived

immunity to suit for judicial review under 29 U.S.C. §722

(c)(S)(J)(i) when it accepted federal funds provided through

Title I of the Rehabilitation Act of 1973. The Magistrate Judge

found that Ms. Hurst’s claim under §722(c)(5)(J)(i) could go

forward and recommended that DARS motion to dismiss be

denied. DARS filed objections to the Magistrate’s

recommendation.

In a de novo review, the district court rejected the report

and recommendation of the Magistrate in relevant part and

granted DARS’ motion to dismiss by an order entered on

September 22, 2005. App. B.

Ms. Hurst appealed.

B. Court of Appeals Decision. On March 26, 2007,

the Fifth Circuit affirmed the district court’s dismissal of Ms.

Hurst’s suit for judicial review. Hurst v. DARS, 482 F.3d 809,

814 (5" Cir. 2007) (App. A). The court held that 29 U.S.C.

§722 did not contain the necessary ‘clear statement’ that the

State of Texas waived immunity if it accepted federal funds

through the Vocational Rehabilitation Program and that Texas

had not otherwise waived its immunity from suit. /d. The

court of appeals recognized that, unlike the statute at issue in

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985), which

provided a federal court remedy for ‘any recipient of federal

assistance or federal provider of such assistance”, the

Rehabilitation Act “specifically makes acts by a ‘designated

State unit’ subject to judicial review.” Jd. at 812-13. The court

~ of appeals, nonetheless, held that the judicial review language

at issue in this case is “indistinguishable” from the language

4

before the Court in Atascadero. Id. The court of appeals also

distinguished this case from Fifth Circuit and Seventh Circuit

cases that held that the structure of a statute could satisfy the

“clear statement” requirement and provide “non-verbal” waiver

of Eleventh Amendment immunity, reasoning that the statute in

those cases involved federal preemption issues and that Title I

of the Rehabilitation Act does not. Jd. at 813-14.

REASONS FOR GRANTING THE PETITION

The judicial review provision at issue here provides:

Any party aggrieved by a final decision... may

bring a civil action for review of such decision.

The action may be brought in any state court of

competent jurisdiction or in a district court of

the United States of competent jurisdiction

without regard to the amount in controversy.

(emphasis added.)

29 U.S.C. §722 (c)(5)(J)(i). Unlike similar judicial review

provisions previously reviewed by this Court, this statute

explicitly states that only decisions of a “designated State unit”

are subject to this review. See 29 U.S.C. §722.

The Fifth Circuit’s decision eviscerates the clear

Congressional intent underlying the federal judicial review

provisions of the Vocational Rehabilitation Program, set out in

Title | of the Rehabilitation Act of 1973, as amended. The

decision also is inconsistent with decisions of other United

States courts of appeals that have reached the merits of judicial

review cases. Moreover, it creates confusion concerning the

Vocational Rehabilitation Program and the standard for

determining waiver of Eleventh Amendment immunity through

Spending Clause legislation. Supreme Court Rule 10(a).

This case also presents important questions about

federal courts’ jurisdiction to enforce provisions of federal law

and state agencies’ compliance with the statutory requirements

of a federal Spending Clause program. These questions have

not been resolved by this Court and should be. Supreme Court

Rule 10(c).

The Fifth Circuit’s decision in this case may further

complicate, and, thus, cause confusion in, Eleventh

Amendment jurisprudence. The Fifth Circuit, like the Seventh

Circuit, found waiver of Eleventh Amendment immunity in the

Federal Telecommunications Act of 1996, though it lacked

explicit references to waiver and Eleventh Amendment

immunity. See AT&T Comm. v. Bellsouth Telecom., 238 F.3d

636, 646 - 647 (5™ Cir. 2001), and MCI Telecom. Corp. v.

Illinois Bell Tel. Co., 222 F.3d 323, 341 - 344 (7" Cir. 2000).

In both the AT&T case and the MCI case the courts reasoned

“Congress may still obtain a non-verbal voluntary waiver of a

state’s Eleventh Amendment immunity.” AT&T, 238 F.3d at

645, MCI, 222 F.3d at 339. In both cases the appellate courts

analyzed the structure of the statute at issue and held that it

unambiguously conditioned receipt of funds on waiver. of

Eleventh Amendment immunity. AT&T, 238 F.3d at 646-47,

MCI, 222 F.3d at 341.

In the case at bar, the Fifth Circuit distinguished its

AT&T decision because the Telecommunications Act of 1996

involved federal preemption and Title I of the Rehabilitation

Act does not. Hurst v. DARS, 482 F.3d at 813-14. Yet

establishing one analysis for Spending Clause legislation that

involves federal preemption and another for Spending Clause

legislation that does not involve preemption further

complicates an already complicated jurisprudence. '

' Further confusing immunity jurisprudence is the fact that other circuit

This Court has not previously addressed this question

because a statute that contains similar judicial review language

to that found in Title I of the Rehabilitation Act has not

previously reached this Court. The Court should resolve this

important question of federal law and sustain Congress’ intent

that federal courts review States’ compliance with the

requirements of the federal Vocational Rehabilitation Program.

I. ELEVENTH AMENDMENT

IMMUNITY IS NOT ABSOLUTE

The Eleventh Amendment to the U. S. Constitution,

unless waived, bars suits against a state or one of its agencies

or a state official in his official capacity when the real party in

interest is the State:

The Judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one

of the United States by Citizens of another

State, or Citizens or Subjects of any Foreign

State.

U.S. Const. Amend. XI.

courts of appeals are reaching the ments of judicial review cases pursuant

to 29 U.S.C. §722, thus implicitly finding a waiver of immunity. See

Diamond v. Michigan, 431 F.3d 262 (6™ Cir. 2005), Reaves v. Missouri

Dept. of Elem. and Second. Educ., 422 F.3d 675 (8" Cir. 2005) (both

deciding the merits of suits for judicial review pursuant to 29 U.S.C.

§722); see also Carrigan v. New York State Educ. Dept., 2007 U.S. Dist.

LEXIS 42481 (N.D.N.Y. June 12, 2007). These differing approaches

among the lower courts could create inconsistency among the circuits.

7

However, Eleventh Amendment immunity is not

absolute. This Court has recognized that a state may waive its

immunity by consenting to suit. College Saving Bank v. Fla.

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670

(1999). One way a state may waive its Eleventh Amendment

immunity is by accepting federal funds, provided through a

statute Congress has enacted through the Spending Clause of

the U.S. Constitution” that unambignously requires waiver of

the Eleventh Amendment immunity. See Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985) (stating “A

state may effectuate a waiver of its constitutional immunity by .

. . Waiving its immunity to suit in the context of a particular

federal program. . .”). That is precisely what the Vocational

Rehabilitation Program does.

Il. WAIVER OF ELEVENTH

AMENDMENT IMMUNITY BY

ACCEPTING FEDERAL FUNDS

In South Dakota v. Dole, 483 U.S. 203 (1987), this

Court described the circumstances in which waiver of Eleventh

Amendment immunity by acceptance of federal funds will be

found. First, the federal expenditures must benefit the general

welfare; second, the conditions imposed on the recipients must

be unambiguous; third, the conditions must be reasonably

related to the purpose of the expenditures; and fourth, no .

condition may violate any independent constitutional

prohibition. /d. at 207-08. The Dole case also included a fifth

requirement, that the condition may not be coercive. Jd. Only

the second requirement, the unambiguous conditions

requirement, is in dispute in this case. Hurst v. DARS, 482

? The Spending Clause provides that “Congress shall have Power to lay

and collect Taxes, Duties, Imposts and Excises, to pay the Debts and

provide for the common Defense and general Welfare of the United

States.” Art. I, §8, cl. 1 of the U.S. Constitution.

F.3d 809, 811 (5" Cir. 2007).

This Court has held that a state waives its immunity by

voluntarily participating in a federal spending program when a

statute manifests a clear intent to condition participation in the

program on a State’s consent to waive Eleventh Amendment

immunity. Dole, 483 U.S 203; Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 247 (1985). See also Dellmuth v.

Muth, 491 U.S. 223, 233 (1989) (the opinion “does not

preclude congressional elimination of sovereign immunity in

statutory text that clearly subjects States to suit for monetary

damages, though without explicit reference to state sovereign

immunity or the Eleventh Amendment.”) (Scalia, J.

concurring).

Applying these principles to the federal Vocational

Rehabilitation Program reveals that the judicial review

provision in Title I of the Rehabilitation Act, are unambiguous

and that to operate its rehabilitation program with federal funds

Texas must have waived any claims to immunity. The terms

and structure of the Rehabilitation Act leave no doubt that

Congress intended states that received funds under the Act to

waive Eleventh Amendment immunity to judicial review of

final administrative decisions in vocational rehabilitation

programs. In fact, the Respondents/Defendants obviously

recognized this clarity because after the Act was amended in

1998 to add the judicial review provision at issue here, the

agency amended its own regulations to provide for judicial

review in federal court. See 24 TEX. REG. 1606 (Mar. 5, 1999)

and 24 TEX. REG. 3111 (April 16, 1999). Significantly, the

amendments to the state regulations were made “to conform the

rules to the 1998 amendments to the Rehabilitation Act of

1973”. Id.

Thus, the State of Texas received substantial funds in

exchange for compliance with certain unambiguous federal

9

requirements, including federal court review of the actions of

state entities. The conditions placed on receipt of the funds

were clear and unambiguous to any reasonable person. There is

no other rational interpretation. The rigid linguistic standards

set by the Fifth Circuit in this case impose an unacceptable

burden on the expression of legislative intent.

Hil, THE REHABILITATION ACT’S

STRUCTURE ITSELF

ESTABLISHES UNAMBIGUOUS

INTENT TO WAIVE STATE’S

IMMUNITY FROM SUIT

Title | of the Rehabilitation Act describes in detail the

requirements of state vocational rehabilitation plans. 29 U.S.C.

§721(a). It provides that any state plans that do not fulfill the

specified conditions must be disapproved. 29 U.S.C. §721(b).

And it details the procedures of mediation and administrative

review that state vocational rehabilitation must have. 29

U.S.C. §722 (c). It provides that “[a]ny party aggrieved by a

final decision [of a hearing officer or state reviewing official,

as the case may be] described in subparagraph (I), may bring a

civil action for review of such decision . . . in a district court of

the United States of competent jurisdiction.” 29 U.S.C.

§722(c)(5)\(J). Most significantly, the only entities within the

class of potential defendants in a federal suit for judicial review

under Title I are “designated State unit[s].” 29 U.S.C. §722(c).

Importantly, 29 U.S.C. §703 authorized advanced

funding so states could establish and fund vocational

rehabilitation programs. See 29 U.S.C. §703. See also 29

U.S.C. §720 (declaration of policy and authorization of

appropriations), 29 U.S.C. §721 (detailed requirements for

state plans to receive funding), and 29 U.S.C. §§730, 731

10

(allotments and payments to states). Title I of the

Rehabilitation Act also established the Rehabilitation Services

Administration to carry out the purposes of Title I, see 29

U.S.C. §702, including provision of consultative services,

technical assistance, and training to programs authorized under

Title I, see 29 U.S.C. §709, and an annual evaluation of

vocational programs’ effectiveness, see 29 U.S.C. §711. Thus,

Title I of the Rehabilitation Act clearly conditions federal

funding of state vocational rehabilitation programs on

compliance with the requirements of 29 U.S.C. §722, including

the requirement of judicial review of final decisions of

“designated State unit[s]” as required by 29 U.S.C. §722(c).

Thus, Section 722 read in the context of the structure of

Title I as a whole makes it unambiguously clear that state

entities that accept federal funds under Title I are required to

waive their Eleventh Amendment immunity anc allow federal

court jurisdiction for judicial review of their final decisions.

Thus, the case at bar does not present the situation that

this Court faced in Atascadero. In Atascadero, this Court

considered whether Title II of the Rehabilitation Act as it

existed at that time satisfied the “clear statement” rule. The

Court noted that the court of appeals decision it was reviewing

(and would reverse) based its view on the fact that the Act

provided remedies, procedures, and rights against “any

recipient of Federal assistance” while the implementing

regulations expressly defined the class of recipients to include

the States.” Atascadero, 473 U.S. 235, 237 (1985). Thus, at

that time a federal agency, not Congress, had decided that

states should be included within the class of defendants who

could be sued under Section 504 of the Rehabilitation Act and

state defendants were among myriad other potential

defendants. In contrast, in the case at bar, the Act itself

provides that the state entities receiving funds under the Act are

the only defendants in a suit for judicial review. Thus, Title I

1]

of the Rehabilitation Act provides a specific authorization of

federal jurisdiction for a judicial review lawsuit against a State

entity, not the general authorization for suit in federal court

rejected in Atascadero. See id. at 246

This characteristic is also the crucial difference between

Title I of the Rehabilitation Act, as amended, and the

Education of the Handicapped Act (EHA) reviewed by this

Court in Dellmuth v. Muth, 491 U.S. 223 (1989). In Dellmuth,

this Court ruled that the structure of the EHA merely “lends

force to the inference that the States were intended to be

subject to damages actions for violations of the EHA. But such

a permissible inference, whatever its logical force, would

remain just that: a permissible inference.” Jd. at 232. In stark

contrast here, Congress expressly provided for judicial review

of the actions of state entities as a condition for receiving

federal funding. Thus, although the judicial review provision of

the EHA at issue in Dellmuth was strikingly similar to-29

U.S.C. §722(c)(5)(J)(i), the differences in the structure of the

two Acts lead to opposite conclusions: While the EHA only

“len[t] force to [an] inference” that States were intended

defendants, Title I of the Rehabilitation Act makes State

entities the only intended defendants in a suit for judicial

review.

This crucial difference is why the EHA judicial review

provision was constitutionally ambiguous while the judicial

review provision of Title I of the Rehabilitation Act is

unambiguous. Although the issue in De//muth was whether the

EHA abrogated Eleventh Amendment immunity and the case at

bar concerns Spending Clause legislation, which require

distinct analyses, both analyses require a statute to be

unambiguous. In that respect they are similar. See Atascadero,

483 U.S. 203, 247 (after holding that statute lacks sufficient

clarity to abrogate Eleventh Amendment immunity, Court

holds it “likewise” fails to manifest clear intent to require

12

waiver under the Spending Clause).

In short, this case raises important questions of federal

law that should be resolved by this Court.

CONCLUSION

Petitioner respectfully asks this Court to grant the

petition for a writ of certiorari to resolve the important

questions of federal law presented by this petition.

Respectfully submitted,

JENNIFER HARBURY

Counsel of Record

DAVID G. HALL SUSAN F. ZINN

TEXAS RIOGRANDE LEGAL TEXAS RIOGRANDE LEGAL

AID, INC. AID, INC.

300 S. Texas Blvd. 1111 N. Main St.

Weslaco, Texas 78596 San Antonio, Texas 78212

(956) 447-4800 (210) 212-3772

MICHAEL E. URENA ALPHA HERNANDEZ

TEXAS RIOGRANDE LEGAL TEXAS RIOGRANDE LEGAL

AID, INC. AID, INC.

P.O. Box 2001 902 E. i lth Street

Eagle Pass, Texas Del Rio, Texas 78840

(830) 773-6151 (830) 774-8300

ATTORNEYS FOR PETITIONER