# Supplemental Brief — DeBose v. Nebraska

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1190

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0497%3A3. Public record. Not legal advice.