Supplemental Brief — DeBose v. Nebraska

1

’ Supreme Court, U.S,

a | Pt LL eB

Ct) ) a JAN 13 2000

Nos. 98-829, 99-423 and o¢- 940

ae

Jn the Supreme Court of the Gnited States

FLORIDA DEPARTMENT OF CORRECTIONS, PETITIONER

Vv.

WELLINGTON N. DICKSON, AKA DUKE, ET AL.

CHRISTOPHER ALSBROOK, PETITIONER

Vv.

CITY OF MAUMELLE, ET AL.

DENISE DEBOSE AND JAMES MCCULLOUGH,

PETITIONERS

Vv.

STATE OF NEBRASKA, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE ELEVENTH AND EIGHTH CIRCUITS

CONSOLIDATED SUPPLEMENTAL BRIEF

FOR THE UNITED STATES

SETH P. WAXMAN

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF AUTHORITIES

Cases: Page

Albertsons, Inc. v. Kirkinburg, 119 S. Ct. 2162

(1999) is ~

Alexander v. Choate, 469 U.S. 287 (1985) 7

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

1999), petition for cert. pending, No. 99-423 ............ce0s0 2,5

Amos v. Maryland Dep’t of Pub. Safety & Correc-

tional Servs., 178 F.3d 212 (4th Cir. 1999), vacated

(Dec. 28, 1999) 2,5

Brown v. North Carolina Div. of Motor Vehicles,

166 F.3d 698 (4th Cir. 1999), petition for cert.

pending, No. 99-424 11

City of Boerne v. Flores, 521 U.S. 507 (1997) ......ccccssseoeee 5

City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432 (1985) 7

Clark v. California, 123 F.3d 1267 (9th Cir. 1997),

cert. denied, 118 S. Ct. 2340 (1998) 5

Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.),

cert. denied, 119 S. Ct. 58 (1998) 5

Crawford v. Indiana Dep't of Corrections, 115

F.3d 481 (7th Cir. 1997) 5

Dare v. California, 191 F.3d 1167 (9th Cir. 1999) ............ 2,5

DeBose v. Nebraska, 186 F.3d 1087 (8th Cir. 1999),

petition for cert. pending, No. 99-940 8

Florida Prepaid Postsecondary Educ. Expense

Bd. v. College Sav. Bank, 119 S. Ct. 2199

(1999) 5

Garrett v. University of Ala., 193 F.3d 1214

(11th Cir. 1999) 2,5

Kimel v. Florida Bd. of Regents, cert. granted, 119

S. Ct. 901 (1999) 3, 4, 6, 7

Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999) ........... 2,5

Muller v. Costello, 187 F.3d 298 (2d Cir. 1999) .........0000 2,5

(IID)

IV

Cases—Continued:

Murphy v. United Parcel Service, Inc., 1195S. Ct.

2133 (1999)

Olmstead v. L.C., 119 S. Ct. 2176 (1999)

Seaborn v. Florida, 143 F.3d 1405 (11th Cir.

1998), cert. denied, 119 S. Ct. 1088 (1999)

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ..........c000

Sutton v. United Airlines, Inc., 119 S. Ct. 2139

(1999)

Torres v. Puerto Rico Tourism Co., 175 F.3d 1

(1st Cir. 1999)

United States v. Florida Bd. of Regents, cert. granted,

119 S. Ct. 902 (1999) (No. 98-796)

Virginia, Ex parte, 100 U.S. 339 (1880)

Wisconsin Dep't of Corrections v. Schacht, 524 U.S.

381 (1998)

Constitution, statutes and rule:

U.S. Const.:

Amend. XI

Amend. XIV, § 5

Age Discrimination in Employment Act of 1967,

29 U.S.C. 621 et seq.

Americans with Disabilities Act of 1990, 42 U.S.C.

12111 et seq.

Tit. I, 42 U.S.C. 12111-12117

42 U.S.C. 12111(8)

42 U.S.C. 12111(10)

42 U.S.C. 12112

42 U.S.C. 12112(b5)(A)

42 U.S.C. 12113

Tit. II, 42 U.S.C. 12131-12165

42 U.S.C. 12134(a)

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

1400 et seq.

Rehabilitation Act of 1973, 29 U.S.C. 794

Sup. Ct. R. 15.8

Page

~1 ©

on

Miscellaneous: Page

Timothy M. Cook, The Americans with Disabilities

Act: The Move to Integration, 64 Temp. L. Rev.

Se PITTI ciesiisuchassvcadsinseesiiipsecsihcdapaseboibanhenutbudpbnbusinhninciadehinentuoiin 8

H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990):

Pt. 2 8

Pt. 3 8

Pt. 4 8

National Council on Disability:

On the Threshold of Independence (1988) ........sssssssssssees 8

Toward Independence (1986) 8

8

United States Civil Rights Commission, Accommodat-

ing the Spectrum of Individual Abilities (1983) ............. 8

Jn the Supreme Court of the United States

No. 98-829

FLORIDA DEPARTMENT OF CORRECTIONS, PETITIONER

Vv.

WELLINGTON N. DICKSON, AKA DUKE, ET AL.

No. 99-423

CHRISTOPHER ALSBROOK, PETITIONER

Vv.

CITY OF MAUMELLE, ET AL.

No. 99-940

DENISE DEBOSE AND JAMES MCCULLOUGH,

PETITIONERS

Vv.

STATE OF NEBRASKA, ET AL.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE ELEVENTH AND EIGHTH CIRCUITS

CONSOLIDATED SUPPLEMENTAL BRIEF

FOR THE UNITED STATES

Pursuant to this Court’s Rule 15.8, the Solicitor

General respectfully files this supplemental brief to

advise the Court of the United States’ position regard-

(1)

2

ing the appropriate disposition of the petitions for writs

of certiorari, in light of this Court’s recent decision in

Kimel v. Florida Board of Regents, No. 98-791, and

United States v. Florida Board of Regents, No. 98-796.

1. These cases present the question whether the

Americans with Disabilities Act of 1990 (Disabilities

Act), 42 U.S.C. 12111 et seq., is a proper exercise of

Congress’s power under Section 5 of the Fourteenth

Amendment, thereby constituting a valid exercise of

congressional power to abrogate the States’ Eleventh

Amendment immunity from suit by individuals. In a

brief in opposition filed in Florida Department of

Corrections v. Dickson, No. 98-829, in December 1998,

the United States opposed the petition for a writ of

certiorari predominantly on the ground that no circuit

conflict existed. See Br. in Opp. 5, 13-14.

Since that time, four more courts of appeals have, like

the Eleventh Circuit here, upheld the Disabilities Act’s

abrogation of the States’ Eleventh Amendment immun-

ity. See Garrett v. University of Ala., 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. Costello, 187 F.3d 298 (2d Cir. 1999).’

On July 23, 1999, however, the en banc Eighth Circuit

became the first and only court of appeals to invalidate

the Disabilities Act’s abrogation of Eleventh Amend-

ment immunity, in a case arising under Title II of

that Act. See Alsbrook v. City of Maumelle, 184 F.3d

999 (1999), petition for cert. pending, No. 99-423. The

1 The Fourth Circuit also upheld the Disabilities Act in Amos

v. Maryland Dep’t of Pub. S: ‘ety & Correctional Servs., 178 F.3d

212 (1999). On December 28, 1999, the Fourth Circuit vacated that

opinion pending rehearing en banc. Oral argument is scheduled for

February 29, 2000.

3

Eighth Circuit subsequently extended its holding

to Title I of the Disabilities Act. See DeBose v. Ne-

braska, 186 F.3d 1087 (1999), petition for cert. pending,

No. 99-940.

2. As we advised the Court in a supplemental brief

filed in Dickson on October 4, 1999, the en banc Eighth

Circuit’s decisions in DeBose and Alsbrook have

created a square conflict in the circuits regarding the

constitutionality of the Disabilities Act’s abrogation

provision. The United States thus no longer adheres to

the view expressed in its brief in opposition that the

petition does not merit an exercise of this Court’s

certiorari jurisdiction. We nevertheless suggested in

our supplemental brief that the Court hold the petition

pending the Court’s decision in United States v. Florida

Board of Regents, cert. granted, 119 S. Ct. 902 (1999)

(No. 98-796), and Kimel v. Florida Board of Regents,

cert. granted, 119 S. Ct. 901 (1999) (No. 98-791). Those

cases presented the question of whether the Age

Discrimination in Employment Act of 1967 (ADEA), 29

U.S.C. 621 et seq., contains a clear expression of Con-

gress’s intent to abrogate, and whether the ADEA

reflects a proper exercise of Congress’s power under

Section 5 of the Fourteenth Amendment. We further

advised that, within fourteen days of the decision in

those ADEA cases, the United States would submit a

supplemental filing containing its views, in light of that

ruling, as to the appropriate disposition of the Dickson

petition. Likewise in Alsbrook and DeBose, in response

to petitions seeking review of decisions of the Eighth

Circuit invalidating the Disabilities Act’s abrogation of

Eleventh Amendment immunity under both Title I and

Title II of that Act, we filed briefs suggesting that the

cases be held pending Kimel and advising that we

4

would make a supplemental filing after the decision in

Kimel?

On January 11, 2000, this Court ruled that the abro-

gation of Eleventh Amendment immunity in the ADEA

is invalid because the ADEA does not represent a

proper exercise of Congress’s power under Section 5 of

the Fourteenth Amendment. See Kimel v. Florida Bd.

of Regents, No. 98-791 (Jan. 11, 2000), slip op. 18-26.

The usual practice of the Court in such circumstances

would be to grant certiorari in these cases, and vacate

and remand for reconsideration in light of that decision,

and that would be an appropriate course of action here.

3. On the other hand, there are several reasons why

the Court might wish instead to grant certiorari now in

one or more cases to address the constitutionality of the

Disabilities Act’s abrogation provision. In that event,

Florida Department of Corrections v. Dickson, No. 98-

829, provides the best vehicle for that purpose, among

the several cases in which petitions are now pending,

and we recommend that the Court grant the petition in

Dickson and set it for plenary hearing, and hold the

other petitions pending the decision in Dickson.

a. The issue is arguably ripe for this Court’s review

now because there is a firm and entrenched conflict in

the circuits. The issue has been thoroughly debated

2 Zimmerman v. Oregon Department of Justice, No. 99-248, is

also pending and purports to raise the same question. Although

the United States has not formally intervened in Zimmerman, we

comment on it in this brief and, therefore, are serving a copy of

this brief on counsel in that case. Similarly, because we briefly

discuss Brown v. North Carolina Division of Motor Vehicles,

No. 99-424, we are serving counsel in that case with a copy of this

brief, even though that case presents a distinctly narrower ques-

tion that is, in our judgment, undeserving of this Court’s review.

See note 6, infra.

5

and fully aired by the courts of appeals over a number

of years, starting after this Court’s decision in Seminole

Tribe v. Florida, 517 U.S. 44 (1996). See Crawford v.

Indiana Dep’t of Corrections, 115 F.3d 481 (1997). The

issue also was addressed by a number of courts, in-

cluding the court of appeals here, following this Court’s

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

See Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir.),

cert. denied, 119 S. Ct. 58 (1998); Clark v. California,

123 F.3d 1267 (9th Cir. 1997), cert. denied, 118 S. Ct.

2340 (1998); see also Seaborn v. Florida, 143 F.3d 1405

(11th Cir. 1998), cert. denied, 119 S. Ct. 1038 (1999); ef.

Torres v. Puerto Rico Tourism Co., 175 F.3d 1, 6 n.7

(Ist Cir. 1999) (“we have considered the issue of

Congress’s authority sufficiently to conclude that, were

we to confront the question head-on, we almost cer-

tainly would join the majority of courts upholding the

provision”). And the courts of appeals decided the issue

yet again following this Court’s decision in Florida

Prepaid Postsecondary Education Expense Board v.

College Savings Bank, 119 S. Ct. 2199 (1999). See

Garrett v. University of Ala., 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. Costello, 187 F.3d 298 (2d Cir. 1999). The

latter four courts of appeals, moreover, considered or

reconsidered the question following the Eighth Cir-

cuit’s invalidation of the Disabilities Act’s abrogation

provision in Alsbrook, supra, and have uniformly re-

jected that court’s reasoning and conclusion.®

8 In addition to the pending rehearing en banc in the Fourth

Circuit in Amos, supra (see note 1, supra), we are aware of cases

pending in the courts of appeals of the Second, Sixth and Seventh

Circuits in which briefing has beon completed and oral argument

6

Nothing in this Court’s decision in Kimel suggests

that requiring yet a fourth round of consideration by

the courts of appeals will either diminish the conflict

in the circuits or cast further relevant light on the

question presented here. This Court did not appear to

establish any new legal standards or broad pronounce-

ments about the scope of the Section 5 power in Kimel.

Rather, the Court applied the congruence and pro-

portionality test previously established in Flores and

clarified in Florida Prepaid (see Kimel, slip op. 18), and

concluded that the ADEA’s specific structure, scope,

and legislative record failed both prongs (id. at 18-27).

The Court’s decision turned upon (1) the state of equal

protection jurisprudence regarding specifically the use

of age as a proxy for employment decisionmaking (id. at

19-21), (2) the broad and sweeping scope of the pro-

hibition on the use of age by employers that the precise

terms of the ADEA impose (id. at 22-24), and (8) the

absence in the ADEA’s legislative record of evidence

upon which Congress could have found that “state and

local governments were unconstitutionally discrimi-

nating against their employees on the basis of age” and

thus that Congress could reasonably conclude that

heard regarding whether the Disabilities Act is valid Section 5

legislation. See Kilcullen v. New York State Dep’t of Labor, No.

99-7208 (2d Cir.); Jackan v. New York State Dep’t of Labor, No.

98-9589 (2d Cir.); Pomeroy v. Western Michigan Univ., No.

97-1751 (6th Cir.); Wright v. Lima Correctional Inst., No. 97-3587

(6th Cir.); Nihiser v. Ohio Environmental Protection Agency, No.

97-3933 (6th Cir.); Satterfield v. Tennessee, No. 98-5765 (6th Cir.);

Parr v. Middle Tennessee State Univ., No. 98-6701 (6th Cir.); Lane

v. Tennessee, No. 98-6730 (6th Cir.); Erickson v. Board of Gover-

nors, No. 98-3614 (7th Cir.). Briefing has also been completed in

two other Seventh Circuit cases. See Zihala v. Illinois Dep’t of

Public Health, No. 99-1669 (7th Cir.); Walker v. Washington, No.

98-3308 (7th Cir.)

7

“broad prophylactic legislation was necessary in this

field” (id. at 27 (emphasis added)).

That analysis is unlikely to alter materially the courts

of appeals’ analysis of the Disabilities Act. For one

thing, the state of equal protection jurisprudence with

respect to discrimination on the basis of disabilities is

quite different from that of discrimination on the basis

of age. While this Court reviewed the ADEA against

_ the backdrop of three decisions of the Court uniformly

sustaining governmental employers’ use of age, with re-

spect to discrimination against persons with disabilities,

this Court’s decisions support the contrary conclusion

here. City of Cleburne v. Cleburne Living Ctr., 473

U.S. 482, 446 (1985) (“[DJoubtless, there have been and

there will continue to be instances of discrimination

against the retarded that are in fact invidious, and that

are properly subject to judicial correction under consti-

tutional norms”); Alexander v. Choate, 469 U.S. 287,

295 n.12 (1985) (“well-cataloged instances of invidious

discrimination against the handicapped do exist”); ef.

Olmstead v. L.C., 119 S. Ct. 2176, 2192 (1999) (Kennedy,

J., concurring) (“[TJhe line between animus and stereo-

type is often indistinct.”).

The scope and structure of the Disabilities Act is

also distinctly more detailed and nuanced than the

ADEA’s, which largely transplanted to the age context

procedures and remedies developed to combat racial,

gender, and religious discrimination. See Kimel,

slip op. 27 (noting the “indiscriminate scope of the

[ADEA’s] substantive requirements”). Title I of the

Disabilities Act does not require governmental entities

to articulate a “compelling interest” or to advance their

interests by the least restrictive means. It only re-

quires “reasonable accommodations” that do not impose

an “undue hardship” on the State. 42 U.S.C.

8

12112(b)(5)(A); see also 42 U.S.C. 12111(10) (defining

“undue hardship” to mean “an action requiring signifi-

cant difficulty or expense” in light of “the overall

financial resources” and “type of operation” of the

covered entity). The Disabilities Act’s delineation of

the persons protected by the Act, in the definition of

“qualified individual with a disability,“ ensures that the

scope of coverage is much narrower in the first instance

than the ADEA, which regulates state employers’

treatment of almost all persons over age 40. Further-

more, the exhaustively detailed anti-discrimination

prohibition and numerous carefully calibrated excep-

tions and defenses, 42 U.S.C. 12112, 12113, further

evidence the distinct structure and operational scope of

the Disabilities Act.

Finally, the Disabilities Act’s legislative record,’

which builds upon congressional findings and evidence

4 See 42 U.S.C. 12111(8). This Court explicated the scope of

that definition last Term in Sutton v. United Airlines, Inc., 119

S. Ct. 2139 (1999); Murphy v. United Parcel Service, Inc., 119 S.

Ct. 2133 (1999); and Albertsons, Inc. v. Kirkinburg, 119 S. Ct. 2162

(1999). :

5 Fourteen congressional hearings and 68 field hearings by a

special congressional task force were held in the three years prior

to passage of the Disabilities Act. See S. Rep. No. 116, 101st

Cong., Ist Sess. 4-5, 8 (1989); H.R. Rep. No. 485, 101st Cong., 2d

Sess. Pt. 2, at 24-28, 31 (1990); id. Pt. 3, at 24-25; id. Pt. 4, at 28-29;

see also Timothy M. Cook, The Americans with Disabilities Act:

The Move to Integration, 64 Temp. L. Rev. 393, 393 & nn.1-3 (1991)

(listing the individual hearings). Congress also drew upon reports

submitted to Congress by the Executive Branch. See S. Rep. No.

116, supra, at 6 (citing United States Civil Rights Commission,

Accommodating the Spectrum of Individual Abilities (1983);

National Council on Disability, Toward Independence (1986); and

National Council on Disability, On the Threshold of Indenendence

(1988)); H.R. Rep. No. 485, supra, Pt. 2, at 28 (same).

Al NE A A te tne cee an ag

a

9

compiled during the passage of the Rehabilitation Act

of 1973, 29 U.S.C. 794, and the Individuals with Dis-

abilities Education Act, 20 U.S.C. 1400 et seq., provides

a solid foundation for Congress’s conclusion that state

and local governments, like private employers, engage

in unconstitutional discrimination against persons with

disabilities and that the problem is sufficiently en-

trenched and widespread to require a national re-

sponse.

In short, Kimel does not appear to have created new

legal principles that would likely alter the courts of

appeals’ divided rulings on the constitutionality of the

Disabilities Act’s abrogation provision. It applied now-

settled law to the particular jurisprudential context,

structure, and legislative record of one statute. The

courts of appeals have already—and repeatedly—

applied that same congruence and proportionality

standard to the Disabilities Act; little would be gained

or likely changed by requiring them to apply it again.

Moreover, the Disabilities Act is vital civil rights

legislation needed to protect persons with disabilities

against invidious and irrational stereotypes and

limitations on their ability to function in society, and to

permit them to enjoy “perfect equality of civil rights

and the equal protection of the laws against State

denial or invasion” (Ex parte Virginia, 100 U.S. 339, 346

(1880)). As a coasequence of the Eighth Circuit’s

decisions, the operation of this important civil rights

legislation has been significantly impaired in seven

States. Unlike litigants within the six circuits in which

the Disabilities Act’s abrogation of Eleventh Amend-

ment immunity has been sustained, persons with

disabilities in the Eighth Circuit cannot fully enforce

their federal rights under the Disabilities Act in federal

court. Remanding these cases for reconsideration in

10

light of AKimel will perpetuate that disparity in civil

rights protection, while uncertainty about the Dis-

abilities Act’s status obstructs and delays pending

efforts to enforce the Act’s provisions nationwide.

b. In addition to the petition in No. 98-829, petitions

for writs of certiorari seeking review of the consti-

tutionality of the Disabilities Act’s abrogation provision

are pending in Alsbrook v. Maumelle, No. 99-423;

DeBose v. Nebraska, No. 99-940; and Zimmerman v.

Oregon Department of Justice, No. 99-243.° We believe

that Dickson, which was the first of the pending peti-

tions to be filed, presents the most appropriate vehicle

for resolving the question presented. First, the case

was decided on a motion to dismiss. That clean record

permits straightforward and comprehensive considera-

tion of the constitutional question presented, without

simultaneously requiring consideration of the occasion-

ally difficult statutory construction questions posed by

the Act. The reasonable accommodation claim made

by petitioner, moreover, is typical of the claims most

frequently made under the Disabilities Act and thus

presents a fair snapshot of both the Act’s practical

operation and the types of discrimination persons with

disabilities encounter in the government workplace.

Second, Dickson arises under Title I of the Dis-

abilities Act, which governs discrimination by both

6 A petition was also filed in Brown v. North Carolina

Division of Motor Vehicles, No. 99-424. As we explained in our

brief in opposition in Brown (at 9-16), that case raises the quite

narrow question of whether a particular Justice Department

regulation as applied to an infrequently recurring factual scenario

and premised on an unsettled construction of the regulation can be

sustained under the Section 5 power.

2 eter een om

11

public and private employers.’ The cases that arise

under Title II—Alsbrook and Zimmerman—complicate

the constitutional question presented by requiring

consideration of additional questions, including whether

the constitutional inquiry should focus on the Title as a

whole or should be undertaken through piecemeal

review of the individual reguiations established by the

Department of Justice pursuant to 42 U.S.C. 12134(a).

See Brown v. North Carolina Div. of Motor Vehicles,

166 F.3d 698 (4th Cir. 1999), petition for cert. pending,

No. 99-424.

Alsbrook is a less appropriate vehicle for two addi-

tional reasons. There is a serious question whether the

plaintiff even qualifies as a person with a disability

covered by the Disabilities Act, because his impairment

is that he has 20/30 vision, as opposed to 20/20 vision, in

one eye, and that impairment limited his ability to work

as a police officer in Little Rock, Arkansas. It would be

awkward and unusual to apply the congruence and pro-

portionality analysis in the context of a case in which

there is a substantial question about the applicability of

the Act. Furthermore, the plaintiff's claim is not

typical of Title II claims. It is essentially an em-

ployment claim that would be covered by Title I were it

not for the fact that employment was predicated on the

State licensing board’s certification of a police officer,

’ DeBose, which is the last of the pending petitions to be filed,

is also a Title I case. Because that case arises from a lengthy jury

trial for which the content, character, and strength of the evidence

presented has never been summarized or reviewed by any of

the lower court opinions, the preferable course might be to hold

DeBose for a decision in Dickson. Otherwise unknown factual

contours or procedural wrinkles in the case could impair or detract

from consideration of the constitutional question, which is directly

and straightforwardly presented in Dickson.

12

and it was that certification that was denied because of

the plaintiffs 20/30 vision in one eye.

Zimmerman is a similarly problematic vehicle. Like

Alsbrook, Zimmerman presents an employment claim

that ordinarily would have been covered by and liti-

gated under Title I; here it was not because the plaintiff

did not exhaust his administrative remedies. Zimmer-

man Pet. 2. The case thus would require resolution of

the predicate question whether Title II applies to

employment decisions at all. In addition, the Eleventh

Amendment immunity question is a late arrival to this

litigation. It was raised for the first time by the

plaintiff—not the State—in his petition to this Court.

It thus was not addressed by either the district court or

the court of appeals. The State, moreover, adopted the

assertion of immunity only after this Court called for a

response to the petition. The abrogation question thus

arises in an extraordinary posture where it is raised in

the litigation by a party who does not believe immunity

attaches and has questionable authority to assert the

immunity on the State’s behalf. See Wisconsin Dep’t of

Corrections v. Schacht, 524 U.S. 381, 389 (1998) (“The

Eleventh Amendment * * * does not automatically

destroy original jurisdiction. * * * Unless the State

raises the matter, a court can ignore it.”) (citations

omitted); see also id. at 393-394 (Kennedy, J., concurr-

ing).

* * * * *

The Court may wish to grant, vacate, and remand all

the pending Disabilities Act cases. Alternatively, the

Court may wish to address the constitutionality of the

Disabilities Act’s abrogation provision at this time. If

the Court chooses the latter course, it should grant and

set for plenary argument the petition for a writ of

eee

13

certiorari in Florida Department of Corrections v.

Dickson, No. 98-829. The petitions filed in Alsbrook v.

Maumelle, No. 99-423; DeBose v. Nebraska, No. 99-940;

and Zimmerman v. Oregon Department of Justice, No.

99-243, should be held pending the Court’s decision in

Dickson and then disposed of in accordance with the

decision of the Court.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JANUARY 2000