Opposition Brief — Hurst v. Texas Department of Assistive and Rehabilitative Services (No. 06-1720)

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No. 06-1720

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

LOUISE ELIZABETH HURST,

Petiti

Vv.

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

BRIEF IN OPPOSITION

GREG ASBOTT JOE H. THRASH

Attorney General of Texas Counsel of Record

Assistant Attorney General

KENT C. SULLIVAN Administrative Law Div.

First Assistant Attorney P.O. Box 12548

General Austin, Texas 78711-2548

512 475-4300

DAVID S. MORALES

Deputy Attorney General

for Civil Litigation

BARBARA B. DEANE

Chief, Administrative Law Div.

ATTORNEYS FOR RESPONDENTS

i

QUESTION PRESENTED

This case involves the appeal of an individual under the

federal Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., of

the denial of services she requested from the Department of

Assistive and Rehabilitative Services, the state agency

delegated the authority to administer this federal program for

the State of Texas. The federal district court held that the State’

of Texas had not waived its immunity under the Eleventh

Amendment of the United States Constitution with respect to

Title I of the Rehabilitation Act. Hurst v. Texas Dep't of

Assistive & Rehab. Serv., 392 F.Supp.2d 794 (W.D. Tex.

2005). This decision was affirmed by the U.S. Court of

Appeals for the Fifth Circuit. Hurst v. Texas Dep't of

Assistive & Rehab. Serv., 482 F.3d 809 (Sth Cir. 2007).

This case presents the following question:

Does Title I of the Rehabilitation Act contain a clear

statement of the intent of Congress to require a state to waive

its immunity under the Eleventh Amendment to the United

States Constitution in order to reccive federal funding for

programs authorized by the Act?

il

TABLE OF CONTENTS

I OI 86 bo ook Ce are eee ae ae i

SUE CE Ss ok 5 oh ce wee ew eee ee ee li

pe Serre re rey err ce eis eS or iv

og a ar eer pre 1

ere Pere rrr ary a 2

Reasons for Denying the Petition.................... 4

I. THERE IS NO DIRECT CONFLICT

AMONG THE CIRCUITS ON THE

inSUE IN THES CASE. 32... 2-20. eee 4

II. THE STANDARD FOR WAIVER

OF ELEVENTH AMENDMENT

ok eee eae Peers cere 6

Il. SECTION 102 OF THE REHABILITATION

ACT DOES NOT PROVIDE A CLEAR

STATEMENT OF INTENT TO REQUIRE A

WAIVER OF ELEVENTH AMENDMENT

IMMUNITY IN ORDER TO RECEIVE

FAM Mhs PRIME: 650 ins av ewenestans 7

[V. THe “STRUCTURE. OF THE

REHABILITATION ACT DOES NOT

PROVIDE A CLEAR STATEMENT OF

INTENT TO WAIVE ELEVENTH

AMENDMENT IMMUNITY.......... 12

lil

A. The Fact That the State Is the Only

Possible Defendant Does Not Make

This a Clear Statement of

Congressional Intent. .......... 13

B. This Court Has Not Adopted the .

Notion of a “Non-verbal Voluntary

Waiver” of Eleventh Amendment

Immunity, Nor Should It. ....... 5

ad Ms. Hurst’s Position Would

Reintroduce A Subjective Standard for

Interpretation of Eleventh Amendment

NS aE peer 16

V. CARINE ck sic ch ana snk cons 5 ae ees 17

iV

TABLE OF AUTHORITIES

CASES

Arlington Cent. School Dist. Bd. of Ed. v. Murphy,

548 U.S. _, 126 S.Ct. 2455 (2006) ...... 9,10, 15

AT&T Comm. v. Bellsouth Telecom.,

238 F.3d 636 (Sth Cir. 2001) ........... ae

Atascadero State Hosp. v. Scanlon,

Jie kik 7 i 2k.) See eee ame 1, 4, 6, 10,11

Boag v. MacDougall, 454 U.S. 364 (1982) ............ 5

Bunting v. Mellen, 541 U.S. 1019 (2004) ............. 5

College Savings Bank v. Florida Prepaid Post Secondary

Ed. Ex. Bd., 577 U.S. 680 (1999) ......... 16

Dellmuth v. Muth,

i OE AES ore arent 1, 10-12, 14

Diamond v. Michigan,

ie ef 4a. oe a. s | anne 4

Ex parte Young, 209 U.S. 123 (1908) ...........62.. 15

Hurst v. Texas Dep't of Assistive & Rehab. Serv.,

392 F.Supp.2d 794 (W.D. Tex. 2005). ......... i, 3

Hurst v. Texas Dep't of Assistive & Rehab. Serv.,

S62 F.36 GOP Ce. 2007) ow oo wn ew eves 2

v

Johnson-Lloyd v. Vocational Rehabilitation Office,

Bid FD. DAO EE PEE LIOR) occ cveccce 8

Jones v. Illinois Dep't of Rehabilitation Servs.,

504 F.Supp. 1244 (N.D.III. 1981), aff'd, 689 F.2d 724

i, Sy ERRAND Fas rarer aro 8

Kimel v. Florida Bd. of Regents,

Et Eo oi Sic cs cae aces pacewe es 6, 12

Lapides v. Board of Regents of University System of Georgia,

Ne Dy. Sr. nae Saree 5

McGuire v. Switzer,

734 F.Supp. 99 (S.D.N.Y. 1990) .............. 8

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

pee Bee el Ty eee.” : |) re tz. ¥5

Pace v. Bogalusa City School Bd.,

CR MOE Gea 3 ee. | rae 2

Pennhurst State School and Hosp. v. Halderman,

SE A EES gb ka dese eden anes eRs 4,9

Reaves v. Missouri Dept. Of Elem and Second. Educ.,

Ghd We O72 GN. DOUG) ov cbc cen seavnn 4

Rice v. Santa Fe Elevator Corp.,

ee ee ike cv kek Sass eoa dave eae 4

Ryan Stevedor. Co. v. Pan-Atlantic Steam. Corp.,

AON ook nn Cane dasaw seb ides 5

vi

Ryans v. New Jersey Comm'n for the Blind and Visually

Impaired,

242 F.Supp. 841.(D.N.J. 1962) .... 1... cece 8

Seminole Tribe of Florida v. Florida,

FOF re ORE OOR bi vo skin ceva scam ees i,

South Dakota vy. Dole,

RR Ne a. ck usa ache a eee 7

United States v. Bass,

EEE or, 65 bod ck take 4b 40 od KS 4

Verizon Maryland, Inc. v. Public Service Com'n of Maryland,

Pe eI skck as os ea on ia 4 a hee 15

CONSTITUTIONAL PROVISIONS

Spending Clause,

Ob ee Se. ne aera passim

Eleventh Amendment,

CE i CUE. Fn en heen cew dour passim

STATUTES

ep aes i os 8 5 hs oo eens 11

Pe ay Se PRETEND ees sk does kee 10

ee ee eS bo od ket ae ae 13

UGC ETTUOIIEAMD .... 8 ss, 13,14

Vil

SUSE CRIME oo ee 14

25 U.S.C. § 2710(d)(7)(B)(iiM) 0... eee eee eee 14

25 USC. 6 2TVINTMBNMD ©... oe cine 14

SUSE. ETIMRIINS «ose 14

USL. SITIO)... «5 5 ew 14

25 US.C $ 2710GICRIWD . . oc 14

USC. 6 71MIN) «os 14

oii) oh gs + GO: Renee anomie Rr b ese 3 8,9

29 U.S.C. § 722(c)S)I)G) 0... ee = 1, 8,9, 12, 14

PURE 2 osc ocs esis eee

CUS A Soke ee 12

Act of Sept. 26, 1973, Pub.L. 93-112, Title I, § 102,

Bf A PE Gs bswcnds dae een eee eee ee 8

Act of Nov. 29, 1975, Pub. L. 94-142, § 1,

ee PPR. > a ds ee Ane eee ha ee 11

Act of Oct. 21, 1986, Pub. L. 99-506, Title II, § 203,

SE PE? ova oe haces be wee 8

TEX: GOW TS Bree oo ck koa cee wei ener 2

Title I, § 102, Rehabilitation Act of 1973 ........ Se ee

1

BRIEF IN OPPOSITION

The District Court dismissed this case because it found

that the State of Texas had not waived its immunity under the

Eleventh Amendment to the U.S. Constitution. The Eleventh

Amendment prohibits suits by a citizen of a state or another

state or foreign country against a state in federal court. There

are exceptions to this limitation, but in order for Congress to

create an exception, it must provide a “clear statement” of its

intent to create an exception. Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 242 (1985). Congress has the power

to directly abrogate this immunity under the Fourteenth

Amendment, but for a program under the Spending Clause of

Article I of the U.S. Constitution, a state must agree

voluntarily to waive its immunity from suit. A part of that

voluntary waiver is the requirement of a clear statement of

intent to waive immunity in the law. 7

This lawsuit is brought under Title I, § 102 of the

Rehabilitation Act of 1973, as amended. 29 U.S.C.

§ 722(c)(5)(J)(i). This provision does not provide the clear

statement required to have an effective waiver of Eleventh

Amendment immunity. In fact, contrary to Petitioner’s

assertion, this Court considered language that is nearly

identical to this provision and determined that it did not meet

this requirement. Dellmuth v. Muth, 491 U.S. 223, 228 (1989).

Ms. Hurst substantially relies on the decision of the

Court of Appeals for the Fifth Circuit in AT&T

Communications v. BellSouth Telecommunications, Inc., 238

F.3d 636 (Sth Cir. 2001), but that case is distinguishable from

the current one. The federal Telecommunications Act

preempted state regulation of telecommunications, allowing

only a limited role for states as arbiters of disputes in a free

2

market industry. The Telecommunications Act prohibits

appeals to state courts, leaving the federal courts as the only

avenue of appeal. The Texas Department of Assistance and

Rehabilitative Services (DARS), on the other hand, is the state

agency that fully administers this rehabilitation program and is

responsible for all services to be delivered to consumers such

as Ms. Hurst. The appropriate precedent in the Fifth Circuit is

Pace v. Bogalusa City School Bd., 403 F.3d 272 (Sth Cir.

2005), and that case supports the decision in this case.

The Court of Appeals also found that the State of Texas

has not waived its Eleventh Amendment immunity through the

adoption of administrative rules or state statutes. DARS does

not have the authority to waive this immunity, because the

Texas Legislature has specifically reserved this power to itself.

TEX. GOv’T CODE § 311.034. Further, no act of the Texas

Legislature provides the unequivocal statement necessary to

waive Eleventh Amendment immunity.

STATEMENT OF THE CASE

Ms. Hurst became a client of the Texas Rehabilitation

Commission, the predecessor agency to Respondent DARS, in

the spring of 2002. She sought medical assistance for an

anomaly in her cervical spine. Ms. Hurst was examined by

two neurosurgeons and her final diagnosis called for what the

agency considered exploratory surgery. The agency

determined that this treatment was outside the scope of

services authorized in this program. Ms. Hurst requested an

administrative hearing to review this decision. A hearing was

held in September 2003 and the hearing officer upheld the

decision of the staff that the requested services could not be

3

provided under the policy of the agency. That decision became

final on October 24, 2003.

Following the adverse decision in the administrative

hearing at the agency, Ms. Hurst brought this suit in the U.S.

District Court. DARS filed a Motion to Dismiss based on

Eleventh Amendment immunity that was granted by the

District Court. Hurst v. Texas Dep't of Assistive & Rehab.

Serv., 392 F.Supp.2d 794 (W.D. Tex. 2005). The Court of

Appeals affirmed the decision, holding as follows:

Section 102 of the Rehabilitation Act

does not contain the necessary “clear-

statement” requiring a waiver of Eleventh

Amendment immunity if the State of Texas

accepts federal funds for this program. Neither

has Texas voluntarily waived its. Eleventh

Amendment immunity for this program. We,

therefore, affirm the judgment of the district

court dismissing this suit.

Hurst v. Texas Dep't of Assistive & Rehab. Serv., 482 F.3d

809, 814 (Sth Cir. 2007).

4

REASONS FOR DENYING THE PETITION

Ms. Hurst’s petition attempts to take the settled law of

this Court and turn it on its head. The “clear statement” test

has been consistently applied in Eleventh Amendment cases,

whether based on the Fourteenth Amendment or the Spending

Clause, for at least twenty years, since Atascadero State Hosp.

v. Scanlon, 473 U.S. 234 (1985). The test has been applied in

other cases involving the balance of powers between the states

and the federal government for many years before that.

Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1

(1981); United States v. Bass, 404 U.S. 336 (1971); Rice v.

Santa Fe Elevator Corp., 331 U.S. 218 (1947). Contrary to the

Petition of Ms. Hurst, the decision of the Court of Appeals is

consistent with the decisions of this Court on the Eleventh

Amendment. It is the reversal of the decision of the Court

below that would introduce uncertainty into this area of

jurisprudence.

I. THERE [IS NO DIRECT CONFLICT

AMONG THE CIRCUITS ON THE ISSUE

IN THIS CASE.

Ms. Hurst has alleged that the petition should be

granted because “differing approaches among the lower courts

could create inconsistency among the circuits.” Petition at 6.

DARS wants to clarify that whatever potential there may be for

conflict, there are no current conflicts existing among the

Circuits that would justify granting the petition.

Ms. Hurst cites Diamond v. Michigan, 431 F.3d 262

(6th Cir. 2005) and Reaves v. Missouri Dept. Of Elem and

Second. Educ. , 422 F.3d 675 (8th Cir. 2005) in support of this

proposition. A review of these decisions shows that neither

5

Court of Appeals addressed the issue of Eleventh Amendment

immunity, nor did the district courts prior to those appeals. It

is difficult to find a conflict between these decisions and the

lower Court here when the issue was not addressed at all. If

the states of Michigan and Missouri did not raise the issue of

Eleventh Amendment immunity, it was waived. “[A] State's

voluntary appearance in federal court amounts to a waiver of

its Eleventh Amendment immunity, [citations omitted].”

Lapides v. Board of Regents of University System of Georgia,

535 U.S. 613 (2002).

Where there is a conflict in decisions among the

Circuits, it is appropriate for this Court to grant certiorari.

Ryan Stevedor. Co. v. Pan-Atlantic Steam. Corp., 350 U.S. 124

(1956). There are few published decisions that address the

opposite situation, where the Court determined affirmatively

that there was not a conflict and denied the grant of certiorari.

One such case was Bunting v. Mellen, 541 U.S. 1019 (2004).

In that case, the majority examined three Court of Appeals

decisions on sponsorship of nondenominational prayer at state

colleges and rejected grant of the writ due to “the absence of

a direct conflict among the Circuits.” /d. at 1021.

There is no conflict among the Circuits and therefore

no basis for the Court to consider granting certioran. The

possibility of a future conflict is not a basis for certioran. As

former Chief Justice Rehnquist stated, “[WJe must never

forget that this Court is not a forum for the correction of

errors.” Boag v. MacDougall, 454 U.S. 364, 367-368 (1982)

(dissenting opinion).

6

Il. THE STANDARD FOR WAIVER OF

ELEVENTH AMENDMENT IMMUNITY.

The Eleventh Amendment to the United States

Constitution states:

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 by Citizens or Subjects of any Foreign

State.

U.S. CONST. AMEND. XI. Generally, the Eleventh Amendment

prevents individual citizens from suing a non-consenting state

in federal court. Congress has limited power to abrogate the

Eleventh Amendment immunity, and the Court must answer

two questions to determine whether a particular law allows

such a suit. First, Congress must unequivocally express its

intent to abrogate that immunity; and second, if it did,

Congress must act pursuant to a valid grantof constitutional

authority. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73

(2000). “Congress may abrogate the States’ constitutionally

secured immunity from suit in federal court only by making its

intention unmistakably clear in the language of the statute.”

Atascadero, 473 U.S. at 242. Congress does not have the

power to abrogate the Eleventh Amendment under Article I of

the U.S. Constitution, but does have that power under § 5 of

the 14th Amendment. /d.

In order to waive immunity under the Spending Clause,

U.S. Const. Art. I, § 8, cl. 1, a state must voluntarily waive this

immunity. Under this theory, a State must have a real choice

and voluntanily agree to federally imposed conditions in order

7

to receive federal fumds, including waiver of Eleventh

Amendment immunity. Not all such conditioned waivers are

valid, however, and this: Court has established a test for these

waivers:

(1) Federal expenditures must benefit the general

welfare;

(2) The conditions imposed on the recipients musi be

unambiguous;

(3) The conditions must be reasonably related to the

purpose of the expenditure;

(4) No condition may violate any independent

constitutional prohibition; and

(5) The condition may not be coercive.

South Dakota v. Dole, 483 U.S. 203, 207-211 (1987).

DARS does not dispute that all but the second

requirement of the Dole test are satisfied. DARS is in

agreement with the lower courts that the statute here lacks a

clear statement of intent to condition funding on a voluntary

waiver of Eleventh Amendment immunity.

lil SECTION 102 OF THE

REHABILITATION ACT DOES NOT

PROVIDE A CLEAR STATEMENT OF

INTENT TO REQUIRE A WAIVER OF

ELEVENTH AMENDMENT IMMUNITY

IN ORDER TO RECEIVE FEDERAL

FUNDS.

Ms. Hurst complains of the Court of Appeals’ decision

that Section 102 of the Rehabilitation Act does not provide a

basis for jurisdiction im federal court. This case turns largely

8

on the question of whether 29 U.S.C. § 722(c)(5)(J)(i) provides

a Clear statement of intent to waive the Eleventh Amendment

immunity of the states. The statute provides as follows:

§ 722. Eligibility and individualized plan for

employment. ***

(c) Procedures ***

(5) Hearings. ***

(J) Civil action.

(i) In general.

Any party aggrieved by a final decision

described in subparagraph (1), 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.

Section 722 was originally adopted as § 102 of the

Rehabilitation Act of 1973. Act of Sept. 26, 1973, Pub.L. 93-

112, Title I, § 102, 87 Stat. 368. Following the 1986

amendments to the Act (Act of Oct. 21, 1986, Pub.L. 99-506,

Title II, § 203, 100 Stat. 1815.), several courts found that there

was no private right of action to appeal the administrative

determination of the benefits due under the Act. See Johnson-

Lloyd v. Vocational Rehabilitation Office, 813 F.Supp. 1120,

1123-24 (E.D. Pa. 1993); McGuire v. Switzer, 734 F.Supp. 99,

111 &n. 11 (S.D.N.Y. 1990); Ryans v. New Jersey Comm'n

for the Blind and Visually Impaired, 542 F.Supp. 841, 845-46

(D.N.J. 1982); Jones v. Illinois Dep't of Rehabilitation Servs.,

504 F.Supp. 1244, 1249-51 (N.D. Ill. 1981), aff'd, 689 F.2d

724 (7th Cir. 1982).

In 1998, Congress again amended the Act and provided

9

for a private right of action in either state or federal court. This

amendment included the language at issue here, 29 U.S.C. §

722 (c)(S5)S)().

The title of 29 U.S.C. § 722 is “Eligibility and

individualized plan for employment.” This section of the Act

is a part of a program to provide benefits to individuals with

disabilities through federal grants to enable the individuals to

become gainfully employed. It is a welfare program,

authorized by the Spending Clause, U.S. Const. Art. I, § 8, cl.

¥

The Congress shall have Power To lay and

collect Taxes, Duties, Imposts and Excises, to

pay the Debts and provide for the common

Defence and general Welfare of the United

States; but all Duties; Imposts and Excises

shall be uniform throughout the United States.

As noted above, § 722 was amended in 1998 in

reaction to holdings of courts that there was no private nght of

action to appeal an administrative determination on eligibility

for services. There is no evidence of intent to link acceptance

of federal funds with a waiver of Eleventh Amendment

immunity under this provision, and, accordingly, there has

been no waiver of Eleventh Amendment immunity for 29

U.S.C. § 722 by acceptance of federal funds. There is no

mention of Eleventh Amendment immunity in this provision.

As this Court points out, “States cannot knowingly

accept conditions of which they are ‘unaware’ or which they

are ‘unable to ascertain’.” Arlington Cent. School Dist. Bd. of

Ed. v. Murphy, 548 U.S. __, 126 S.Ct. 2455, 2459 (2006),

citing Pennhurst, 451 U.S. at 17. In Murphy, the Court held

that a provision that a court may “award reasonable attorneys’

10

fees as part of the costs” to a prevailing parent in an

Individuals with Disabilities Education Act, 20 U.S.C. §

1415(i)(3)(B) case was not clear enough to allow the court to

also award cost of expert witness fees. id. Waivers of

immunity must be stated, not implied.

While cases dealing with abrogation of Eleventh

Amendment Immunity under the Fourteenth Amendment are

usually distinct from Spending Clause cases, this Court has

recognized that the “clear statement” test applied to

Congressional enactments is the same for both purposes.

Atascadero, 483 U.S. at 247. The following case involves

abrogation under the Fourteenth Amendment, but the clear

statement test is identical for waiver under the Spending

Clause.

In Dellmuth v. Muth, 491 U.S. 223, 228 (1989), this

Court reviewed the following language to determine if it

provided a clear statement of Congress’ intent to waive

Eleventh Amendment immunity:

(2) Any party aggrieved by the findings and

decision made under subsection (b) who does

not have the right to an appeal under subsection

(c), and any party aggrieved by the findings

and decision under subsection (c), shall have

the nght to bring a civil action with respect to

the complaini presented pursuant to this

section, which action may be brought in any

State court of competent jurisdiction or in a

district court of the United States without

regard to the amount in controversy. In any

action brought under this paragraph the court

shall receive the records of the administrative

11

proceedings, shall hear additional evidence at

the request of a party, and, basing its decision

on the preponderance of the evidence, shall

grant such relief as the court determines is

appropriate. [Emphasis supplied. ]

Act of Nov. 29, 1975, Pub. L. 94-142, § 1, 89 Stat. 773 [42

U.S.C. § 1415 (d)(2), repealed].

The Dellmuth Court held that the above language was

insufficient to waive Eleventh Amendment immunity. After

first rejecting the lower court’s holding that intent to waive

Eleventh Amendment immunity could be found in the

legislative history of an act of Congress, the Court stated:

Finally, 20 U.S.C. § 1415(e)(2), the centerpiece

of the Court of Appeals’ textual analysis,

provides judicial review for aggrieved parties,

but in no way intimates that the States’

sovereign immunity is abrogated. As we made

plain in Atascadero: "A general authorization

for suit in federal court is not the kind of

unequivocal statutory language sufficient to

abrogate the Eleventh Amendment.”

Dellmuth, 491 U.S. at 231.

This language, the highlighted portions of which are

word-for-word identical to the language at issue in this case,

was specifically rejected by this Court on the grounds that it is

not the clear statement necessary to waive a state’s Eleventh

Amendment immunity. Section 102 of the Rehabilitation Act

is precisely the kind of “general authorization for suit in

federal court” that this Court rejected as being insufficient to

12

waive Eleventh Amendment immunity. /d. There is no

indication that this Court has changed its opinion on this point,

since Dellmuth is still cited by the Court as one of the principle

sources of the clear statement test. Kimel, 528 U.S. at 73.

This law does not provide a clear statement of intent to waive

Eleventh Amendment immunity, and the District Court

properly dismissed this suit.

IV. THE “STRUCTURE” OF THE

REHABILITATION ACT DOES NOT

PROVIDE A CLEAR STATEMENT OF

INTENT TO WAIVE ELEVENTH

AMENDMENT IMMUNITY.

Ms. Hurst attempts to find a clear statement of the

intent of Congress to require the States to waive Eleventh

Amendment immunity in the overall “structure” of the

Rehabilitation Act. This approach is belied by the way in

which the appeals provision was added to the Act in the first

place. Prior to the 1998 amendment of the Act, there was no

appeal provision at all, and, as noted above, several courts had

so held. When the provision granting appeal was added, it

took the form ofa single subsection allowing “a civil action for

review of such decision * * * in any State court of competent

jurisdiction or in a district court of the United States.” 29

U.S.C. § 722(c)(5(J)().

This section of the Rehabilitation Act clearly does not

constitute a comprehensive structure for handling appeals such

as that contained in the Telecommunications Act of 1996, 47

U.S.C. § 151, et seq. The cases she cites, AT&T Comm. v.

Bellsouth Telecom., 238 F.3d 636 (Sth Cir. 2001) and MC/

Telecom. Corp. v. Illinois Bell Tel. Co., 222 F.3d 323 (7th Cir.

13

2000), dealt with the Telecommunications Act of 1996 and a

waiver of Eleventh Amendment immunity under the

Commerce Clause rather than the Spending Clause. Both are

found in Article I of the U.S. Constitution, and the

requirements for waiver of immunity by the States are similar.

There must be a clear statement of intent by the Congress of

intent to waive the immunity of the States and there must be a

voluntary waiver by the State. Thus, the analysis is similar.

A. The Fact That the State Is the Only Possible

Defendant Does Not Make This a Clear Statement of

Congressional Intent.

Ms. Hurst asserts that the fact that the State of Texas is

the only possible defendant in suits under the Rehabilitation

Act creates “unambiguous intent to waive state’s immunity

from suit. Petition at 9. Yet the Petitioner ignores the only

case in this Court that addresses a similar statute, Seminole

Tribe of Florida v. Florida, 517 U.S. 44 (1996). In that case,

this Court considered whether the Indian Gaming Regulatory

Act, 25 U.S.C. § 2701, et seg., contained “an unmistakably

clear statement of its intent to abrogate.” /d. at 56. That Act

provides authority for States to negotiate agreements with

Indian tribes for the conduct of gambling operations on Indian

lands. The only parties to the agreements are the States and

the tribes. The only defendants for the tribes to sue are the

States. The decision described the detailed statutory scheme

that provided for appeal to the federal courts:

Section 2710(d)(7)(A)(i) vests jurisdiction in

“(t]he United States district courts ... over any

cause of action ... arising from the failure of a

State to enter into negotiations ... or to conduct

such negotiations in good faith.” Any

14

conceivable doubt as to the identity of the

defendant in an action under § 2710(d)(7)(A)(i)

is dispelled when one looks to the various

provisions of § 2710(d)(7)(B), which describe

the remedial scheme available to a tribe that

files suit under § 2710(d)(7)(A)(i). Section

2710(d)(7)(B)(ii)(I1) provides that if a suing

tribe meets its burden of proof, then the

“burden of proof shall be upon the State ...”; §

2710(d)(7)(B){iii) states that if the court “finds

that the State has failed to negotiate in good

faith ..., the court shall order the State ...”; §

2710(d)(7)(B)\{iv) provides that “the State shall

... submit to a mediator appointed by the court”

and subsection (B)(v) of § 2710(d)(7) states

that the mediator “shall submit to the State.”

Sections 2710(d)(7)(B)(vi) and (vii) also refer

to the “State” in a context that makes it clear

that the State is the defendant to the suit

brought by an Indian tnbe -under §

2710(d)(7)(A)(1). In sum, we think that the

numerous references to the “State” in the text

of § 2710(d)(7)(B) make it indubitable that

Congress intended through the Act to abrogate

the States’ sovereign immunity from suit.

Id. at 56-57. By contrast, the single mention of an appeal to

federal district court in 29 U.S.C. § 722(c)(5)(J)(i) does not

provide the type of clear statement that this Court has

consistently required for a knowing waiver of a State’s

immunity. The provision also purports to allow appeal to state

courts. It does not deal with burden of proof. It does not

discuss mediation. In sum, there is only the kind of general

authorization for suit in federal court rejected in Dellmuth.

15

Somewhere between Seminole Tribe and Murphy, there

is a point below which a statement is no longer clear enough

to support a waiver of Eleventh Amendment immunity. In this

case, it is evident that Title I of the Rehabilitation Act is well

on the side where the statement is not clear enough to provide

notice to the States that they will waive their Eleventh

Amendment immunity by accepting federal funds.

B. This Court Has Not Adopted the Notion of a “Non-

verbal Voluntary Waiver” of Eleventh Amendment

Immunity, Nor Should It.

Petitioner relies on the analysis of the Circuit Courts in

the AT&T and MCI cases for the idea that something less than

a clear statement of the intent of Congress to condition the

receipt of federal funds on a waiver of Eleventh Amendment

immunity is required. Yet, this proposition has not been

adopted by this Court. The Court specifically declined to

decide the issue in another Telecommunications Act case:

“Whether the Commission waived its

immunity is another question we need not

decide, because-as the same parties also argue-

even absent waiver, Verizon may proceed

against the individual commissioners in their

official capacities, pursuant to the doctrine of

Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52

L.Ed. 714 (1908).”

Verizon Maryland, Inc. v. Public Service Com'n of Maryland,

535 U.S. 635, 645 (2002).

Ms. Hurst asks the Court to decide a constitutional

issue that the Court has specifically declined to decide in a

16

case of far greater implications for the public than the narrow

issue involved in this case. She has not provided a compelling

reason for granting the review of this case.

C.. Ms. Hurst’s Position Would Reintroduce A

Subjective Standard for Interpretation of Eleventh

Amendment Immunity.

While claiming that the language of the Rehabilitation

Act provides a clear statement of Congress’ intent to waive

Eleventh Amendment immunity, Ms. Hurst cannot resist resort

to the subjective standard that her position would impose on

the states:

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.

Petition at 8. Ms. Hurst does not make to this Court the

argument rejected by the Court of Appeals that DARS waived

its immunity through its actions, rather choosing to bring it

forth as proof of the clarity of the language of the Act.

Unfortunately, the effect is the opposite of what is intended.

It merely illustrates that the effect of adoption of Ms. Hurst’s

position would lead this Court back in the direction of a

subjective standard for waiver of immunity thoroughly rejected

in College Savings Bank v. Florida Prepaid Post Secondary

Ed. Ex. Bd., 577 U.S. 680 (1999).

17

V. CONCLUSION

The Court should deny the petition for wnt of

certiorari.

September 27, 2007

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

KENT C. SULLIVAN

First Assistant Attorney General

DAVID S. MORALES

Deputy Attorney General for Civil

Litigation

BARBARA B. DEANE

Chief, Administrative Law

Division

JOE H. THRASH

Counsel of Record

Assistant Attoney General

Administrative Law Division

P.O. Box 12548

Austin, Texas 78711-2548

512 475-4300

ATTORNEYS FOR

RESPONDENTS