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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1135%3A1. Public record. Not legal advice.