Opposition Brief — Texas v. Meyers (No. 06-462)

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

\. 3 TUS.

«) (’ ) FILED

No.06-462 . | MAR 348 2007

In the Supreme Court of the Gu

STATE OF TEXAS, ET AL., PETITIONERS

vz.

MARJORIE MEYERS, ET AL.

ON PETITION FOR A WRIT OF CERTI ORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

WAN J. KIM

Assistant Attorney General

JESSICA DUNSAY SILVER

SARAH HARRINGTON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTION PRESENTED

Whether the court of appeals properly held that the

State’s removal of a case to federal court waives the

State’s immunity from suit in federal court, but not any

other aspect of its sovereign immunity, including its

substantive immunity from liability.

(I)

TABLE OF CONTENTS

Page

CIE ONO vo vines cic ckeykessewedacereeeaneceneenns 1

SR nc vs i000 495 Oo dkstcessa okie ee 1

IE ig visi nin tinnce H4G0s Vado ncneieei eee 2

RUE | oko kc ncduxccsavenicha beucesivieeulernea 9

PE Pee OE rE ee oe here ee Py Be, 23

TABLE OF AUTHORITIES

Cases:

Arkansas v. Farm Credit Servs., 520 U.S. 821

SUPER ica) ohcawsvddesbnuasetuewes aero 21, 22

Auer v. Robbins, 519 U.S. 452 (1997) ............200: 21

Blatchford v. Native Vill. of Noatak, 501 U.S. 775

tap eR RPE DE AREY wip ht pits = Ore erly poe hye mley rs! 12

Board of Trustees v. Garrett, 531 U.S. 356 (2001) ..... 6, 19

Brown v. North Carolina Div. of Motor Vehicles,

ee yo: | re rer ener e Ey et” 21

California Dep't of Motor Vehicles v. Dare, 531 U.S.

SIRO GES ok kha ececaeakcodeeines cameras 21

Chevron U.S.A. Inc. v. National Res. Def. Council,

Sets SOT Ute SEE cis sc ebbcaseesaseeericee 15

Embury v. King, 361 F.3d 562 (9th 2004) .............. 16

Estes v. Wyoming Dep't of Transp., 302 F.3d 1200

CUTE ho ks she vonews $n eaeb uekesaesi nee 16

Federal Mar. Comm’n v. South Carolina State Ports

Seah. GE UB. TER Ge sb bnnwae ss ctiswinieee 12

Federal Sign v. Texas S. Univ., 951 S.W.2d 401 (Tex.

OG) akc $55 Siw ng eee bee 13, 14

Goldstein v. Cox, 396 U.S. 471 (1970) ..............0-- 15

(If)

Cases—Continued: | Page

Hamilton-Brown Shoe Co. v. Wolf Bros., 240 U.S. 251

SE ean Gee ae veas PERN as sae bad ehen bikes 15

Hedgepeth v. Tennessee, 215 F.3d 608 (6th Cir. 2000) ... 22

Hexom v. Oregon Dep't of Transp., 177 F.3d 1134 (9th

Sa EE cu aw eins os heck eee rae er erantaiwns 22

Hoffman v. Blaski, 363 U.S. 335 (1960) ............... 14

Jefferson County v. Acker, 527 U.S. 423 (1999) ......... 22

Klinger v. Director, Mo. Dep’t of Revenue, 545 U.S.

BEE CEE 6. Cv Aihos hak ca We tale te Rake a hone ued 21

Lapides v. Board of Regents, 535 U.S. 613 (2002) .. passim

Lyng v. Northwest Indian Cemetery Protective Ass’n,

SA CUD hkn dex wasvei vince savisedeeseus 20

Marcus v. Kansas Dep't of Revenue, 170 F.3d 1305

Se Ra ROUEE iscse rnin niO8 ba cee eu nan cuencs exus 22

Massachusetts v. United States, 435 U.S. 444 (1978) .... 23

Meyers v. Texas, No. 97-09093 (Tex. Dist. Ct. Mar. 28,

em reacts dy eee ee ee ONE ye ergo po 5

Moe v. Confederated Salish & Kootenai Tribes, 425

SR UE 6 55 95a 5) weyers buasinseciereneea 21

Northern Ins. Co. v. Chatham County, 126 S. Ct. 1689

ES ad soe kU wa was doneey 6 enn das dra ceneenss 12

Neinast v. Texas, 217 F.3d 275 (5th Cir. 2000), cert.

denied, 531 U.S. 1190 (2001) ................-- 5, 6, 22

Omosegbon v. Wells, 335 F.3d 668 (7th Cir. 2003) ....... 17

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139 (1998) ..........2ecceccees 15

Rosewell v. LaSalle Nat Bank, 450 U.S. 503 (1981) .... 21

Spector Motor Serv., Inc. v. McLaughlin, 323 U.S.

WE AMEE wovg cowpea nsubuesewkeiskdiaestieienun 20

Cases—Continued: Page

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83

| RPI gates enn Ragan a Pye are ae OR pari he 23

Stewart v. North Carolina, 393 F.3d 484 (4th Cir.

NE 5 5 6x SOR ERNE LAS EPA NE Eee eR Rr eR tiene 18

Tennessee v. Lane, 541 U.S. 509 (2004)................ 18

Texas Dep't of Parks & Wildlife v. Miranda,

pi A BR egy | | en perme 13, 14

Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636 (Tex.

SE ee rk as bee Ee eres beers tae 13, 14

Thompson v. Colorado, 535 U.S. 1077 (2002) ........... 21

United States v. Georgia, 126 S. Ct. 877 (2006) ...... 18, 19

United States v. Virginia, 518 U.S. 515 (1996) ......... 15

Vermont Agency of Natural Res. v. United States ex

rel. Stevens, 529 U.S. 765 (2000) .... ccc cvcccccece 23

Virginia Military Inst. v. United States, 508 U.S. 946

2) | NESBA ep Pre a ener MMe tt RLS Ey ae eMC Sree 15

Watters v. Washington Metro. Area Transit Auth.,

295 F.3d 36 (D.C. Cir. 2002), cert. denied, 538 U.S.

EE pees Th VAdae Peace bane kas ies eeeeS 17

Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381

CR nd cae sah cha CoOL Nae oeasad en ws 14

Young, Ex parte, 209 U.S. 123 (1908) .........eceeceeee 6

Constitution, statutes, regulations and rule:

U.S. Const.:

PEG BE Piece ee Visi eenes caw passim

PE: Fe Ook rn keene hes ees 6, 14, 18

Statutes, regulations and rule—Continued: Page

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

ea a ea bie ered ad oeae a eeereneadeaween 2

re ee SEE 6 csv vss vesnaraceawadeewebeles 2

eID Sco aca. Owe Keke secure ay eae oh 2

pa NEED 0 i 545% Kau ceWlwabhicadsnendens 2

te MES. 6 Sok kb oes Ode Neb echeueere cena 2

pr ae ED Sk Wius cdene ed casacebeeocens 2

A ED. ohne b pe badvcevdetvkecses beeen 3

eee By Ge GIA BAER BOREENS occ cecvevsvissusteesen 3

Tithe Tl, 42 U.S.C. 1ZIB1-1Z1G6 .. wc cece passim

eas SIE east koa ce ns pu peanbawexeune 3

ey Ta EEE 85s chow dv-ceencdavcustenaues 3

SR SE sive conn suchas kireheetacsousbnt 3

SEE GE, SE eC ikcccevevciusiescotenceeensent 3

a SE ech ace cbecneweuniseesehcaeens 3

er Rs SNE Woes ah eveesesewiddegucnaeaae 4

Tee TEE, GU BAG. TZIBEH TAD ov ccccccccvccsecvess 3

Title V, 42 U.S.C. 12201-12213:

eR MEE ae Gite ceWcude oveau sdouvendumeaes 3

Tax Injunction Act, 28 U.S.C. 1841 ................. 5, 21

28 U.S.C. 1441 (2000 & Supp. IV 2004) ................. 5

PRE ME oc et claw esenecweak hy ek ea wanes 5

ST EE nis 0.6 va pda vune ks acsansdenensiexewes 6, 10

Texas Transp. Code Ann. (West):

ER Pe ero pera ery re 20

EEE vo tune cixeagh aw sicenxsecanekeneas 5

PE er MN, FIO scien evacivenaveructaaeawksaee 5

Vil

Statute, regulations and rule—Continued: Page

SE SU 5 ckis 60 bac rcnd eves cd ouvis beeveenss 5

28 C.F.R.:

PR Sie Sueie eds bed 5 oS OO aU AER eae 3

SE RINE cco obs ocewat ecco eaun aes 5, 20, 21

IN esi ccc oc'xdneseeueWegvehenwixeks ous 4

RE Re nem iT cet reo re Pye eT 4

Pt. 36 App. A:

DP Nob dha a dh ene Uoalennde ee eiaeeius ee 4

OA is ve bowie fhkwede dy CSN de GA aeaeeesaye is 4

SE C.F R..£t. 119%, App. C, OPO co ccccvcscviccdecss: 4

41 C.F.R.:

Pt. 101-19, Subpt. 101-19.6 App. A (2002) ............ 4

AEE 5b iecsucdeeesiess bhp eereeoens 14

Pt. 102-76:

I NN oi oruite ss a 6 oka ERR EPO a 4

Pe, Wes ER bk c oo ose sabe dwekessadaeawes 6

In the Supreme Court of the Qnited States

No. 06-462

STATE OF TEXAS, ET AL., PETITIONERS

Vv.

MARJORIE MEYERS, ET AL.

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-35)

is reported at 410 F.3d 236. The order of the court of

appeals denying the petition for rehearing (Pet. App. 49-

51) is reported at 454 F.3d 503. The orders of the dis-

trict court dismissing the case for lack of jurisdiction

(Pet. App. 36-41), and denying the motion to alter or

amend the judgment (Pet. App. 44-48), are unreported.

JURISDICTION

The court of appeals entered its judgment on May 19,

2005. A petition for rehearing was denied on June 29,

2006 (Pet. App. 49-51). The petition for a writ of certio-

rari was filed on September 27, 2006. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. The Americans with Disabilities Act of 1990

(ADA), 42 U.S.C. 12101 et seg., established a “compre-

hensive national mandate for the elimination of discrimi-

nation against individuals with disabilities.” 42 U.S.C.

12101(b)(1). Congress found that, “historically, society

has tended to isolate and segregate individuals with dis-

abilities,” and that “such forms of discrimination * * *

continue to be a serious and pervasive social problem.”

42 U.S.C. 12101(a)(2). Congress specifically found that

discrimination against persons with disabilities “persists

in such critical areas as employment, housing, public

accommodations, education, transportation, communica-

tion, recreation, institutionalization, health services,

voting, and access to public services.” 42 U.S.C.

12101(a)(3).

In addition, Congress found that persons with dis-

abilities

continually encounter various forms of discrimina-

tion, including outright intentional exclusion, the dis-

criminatory effects of architectural, transportation,

and communication barriers, overprotective rules

and policies, failure to make modifications to existing

facilities and practices, exclusionary qualification

standards and criteria, segregation, and relegation

to lesser services, programs, activities, benefits, jobs,

or other opportunities.

42 U.S.C. 12101(a)(5). Congress concluded that persons

with disabilities

have been faced with restrictions and limitations,

subjected to a history of purposeful unequal treat-

ment, and relegated to a position of political power-

lessness in our society, based on characteristics that

are beyond the control of such individuals and result-

ing from stereotypic assumptions not truly indicative

of the individual ability of such individuals to partici-

pate in, and contribute to, society.

42 U.S.C. 12101(a)(7). Based on those findings, Con-

gress “invoke[d]| the sweep of congressional authority,

including the power to enforce the fourteenth amend-

ment” to enact the ADA. 42 U.S.C. 12101(b)(4).

The ADA targets three particular areas of discrimi-

nation against persons with disabilities. Title I, 42

U.S.C. 12111-12117, addresses discrimination by em-

ployers affecting interstate commerce; Title II, 42

U.S.C. 12131-12165, addresses discrimination by govern-

mental entities in the operation of public services, pro-

grams, and activities, including transportation; and Title

III, 42 U.S.C. 12181-12189, addresses discrimination in

public accommodations operated by private entities.

This case arises under Title II of the ADA, which pro-

vides that “no qualified individual with a disability shall,

by reason of such disability, be excluded from participa-

tion in or be denied the benefits of the services, pro-

grams, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. 12132. A

“public entity” is defined to include “any State or local

government” and its components. 42 U.S.C. 12131(1)(A)

and (B). Title Il may be enforced through private suits

against public entities. 42 U.S.C. 12133. Congress ex-

pressly abrogated the States’ Eleventh Amendment im-

munity to private suits in federal court. 42 U.S.C. 12202.

b. Congress charged the Attorney General with issu-

ing regulations to implement the provisions of Title II.

See 42 U.S.C. 12134(a); see generally 28 C.F.R. Pt. 35.

Those regulations, Congress further directed, “shall

include standards applicable to facilities and vehicles

covered by this part” that are “consistent with the mini-

mum guidelines and requirements issued by the Archi-

tectural and Transportation Barriers Compliance

Board.” 42 U.S.C. 12134(c). To ensure that newly con-

structed facilities are accessible to people with disabili-

ties, the regulations require that, “[iJf parking spaces

are provided for self-parking by employees or visitors,

or both, then accessible spaces * * * shall be provided —

in each such parking area” in a number proportional to

the number of total parking spaces. 28 C.F.R. Pt. 36

App. A, § 4.1.2(5); see 28 C.F.R. 35.151(c) (incorporating

standards).' Each space must be “designated as re-

served by a sign showing the symbol of accessibility.” 28

C.F.R. Pt. 36, App. A, §4.6.4. Accessible parking must

also be provided in existing facilities when necessary to

assure that programs, services, and activities of an en-

tity are accessible to people with disabilities. See 28

C.F.R. 35.150.

At issue in this case is a general regulatory prohibi-

tion that forbids public entities from “plac[ing] a sur-

charge on a particular individual with a disability or any

group of individuals with disabilities to cover the costs

of measures, such as the provision of auxiliary aids or

program accessibility, that are required to provide that

individual or group with the nondiscriminatory treat-

' The regulations permit public entities subject to Title II to select

between those standards and the Uniform Federal Accessibility

Standards, 41 C.F.R. Pt. 101-19, Subpt. 101-19.6, App. A (2002). See 28

C.F.R. 35.151(c). With respect to parking requirements, the two sets

of standards are virtually identical. See 41 C.F.R. Pt. 101-19, Subpt.

101-19.6, App. A, § 4.1.1(5) (2002); 41 C.F.R. 102-76.65 (adopting 36

C.F.R. Pt. 1191, App. C, § 208.2).

ment required by the Act or this part.” 28 C.F.R.

35.130(f).

2. In order to provide access to handicap parking

spaces, Texas law provides qualifying drivers handicap

license plates at the same price that is charged for all

other license plates issued by the State. Individuals

with disabilities who do not drive or who otherwise de-

sire a portable means of access to handicap parking

spots can obtain a handicap parking placard. To obtain

such a placard, however, state law requires individuals

to pay a fee of $5 and to renew the placards every four

years. Funds collected from the fees are deposited in

the state highway fund to defray the cost of providing

the placards. Pet. App. 3; Tex. Transp. Code Ann.

§§ 681.002, 681.005 (West 1999); id. § 681.003 (Supp.

2006); see generally Neinast v. Texas, 217 F.3d 275, 277

(5th Cir. 2000), cert. denied, 531 U.S. 1190 (2001).

Marjorie Meyers and three other named plaintiffs

(collectively, “Meyers”) filed a class action lawsuit in

Texas state court challenging the placard fee as violat-

ing Title II of the ADA and the regulation prohibiting

the imposition of surcharges, 28 C.F.R. 35.130(f). Peti-

tioners removed the case to federal court, see 28 U.S.C.

1441 (2000 & Supp. IV 2004); 28 U.S.C. 1446, but the

district court remanded the case on the ground that the

Tax Injunction Act, 28 U.S.C. 1341, barred federal juris-

diction. The Texas state court then denied petitioners’

motion to dismiss on sovereign immunity grounds, hold-

ing that Title II validly abrogated “all state immunities.”

Pet. App. 3-4; Meyers v. Texas, No. 97-09093 (Tex. Dist.

Ct. Mar. 28, 2000), slip op. 7-8.

3. Petitioners appealed to the Texas court of appeals.

While that appeal was pending, petitioners again re-

moved the case to federal court based on the Fifth Cir-

cuit’s decision in Neinast, supra, which had held that

the Tax Injunction Act did not bar federal jurisdiction

over challenges to Texas’s parking placard fee. Pet.

App. 4; see Neinast, 217 F.3d at 277-279.

Petitioners then moved to dismiss the case under

Federal Rule of Civil Procedure 12(b)(1) on the sole

ground that the suit was barred by Eleventh Amend-

ment immunity. Pet. App. 4. Relying on this Court’s

decision in Board of Trustees v. Garrett, 531 U.S. 356

(2001), the district court granted the motion. Pet. App.

36-41, 42-43. The court held that Title II of the ADA

was not a proper exercise of Congress’s legislative

power under Section 5 of the Fourteenth Amendment

and thus did not validly abrogate Texas’s Eleventh

Amendment immunity. /d. at 39-40. In so ruling, the

court took “issue with the procedural tactics used by the

State to achieve this result,” id. at 40, but concluded that

dismissal was compelled “under current Eleventh

Amendment jurisprudence,” id. at 41.

Meyers moved for reconsideration on the ground,

inter alia, that the claims for declaratory and injunctive

relief against state officials in their official capacity

should be permitted to go forward under Ex parte

Young, 209 U.S. 123 (1908). See Pet. App. 34, 45. The

district court denied the motion, holding that Title II

was unconstitutional in its entirety. Jd. at 46-47.

4. Meyers appealed, and the United States inter-

vened, pursuant to 28 U.S.C. 2403, to defend the consti-

tutionality of Title II of the ADA’s abrogation of Elev-

enth Amendment immunity.

The court of appeals reversed. Pet. App. 1-35.

Based on this Court’s intervening decision in Lapides v.

Board of Regents, 535 U.S. 613 (2002), the court of ap-

peals held that petitioners’ removal of the case to fed-

eral court waived the State’s “immunity from suit” un-

der the Eleventh Amendment. Pet. App. 2. The court

rejected petitioners’ argument that Lapides “does not

apply to [a] suit based on federal-law claims.” /d. at 7.

The court acknowledged (id. at 8-9, 12) that the Court in

Lapides limited its decision “to the context of state-law

claims,” because the case “d[id] not present a valid fed-

eral claim against the State,” 535 U.S. at 617. The court

of appeals nevertheless concluded that the principle of

waiver recognized in Lapides “should apply equally to

state and federal claims,” Pet. App. 17, because “it

[would be] anomalous or inconsistent for a state to both

invoke federal jurisdiction and claim immunity from

federal suit in the same case,” id. at 10. The court then

concluded that “there is nothing special about the pres-

ent case or its removal that would justify our taking it

out from under the general legal principle requiring

waiver.” Jd. at 12.

Having concluded that Lapides’s “voluntary invoca-

tion principle” for waiving Eleventh Amendment immu-

nity applies to both state-law and federal-law claims,

Pet. App. 9-23, the court rejected petitioners’ argument

that there is “an Eleventh Amendment immunity sepa-

rate and apart from state sovereign immunity” that

would immunize it from suit in federal court, id. at 26.

The court reasoned that “the states have no other sover-

eign immunity from suit than that which they brought

intact into the union,” ibid., and thus found “no support -

for [petitioners’] theory that state sovereign immunity

is composed of two separate immunities from suit,” id.

at 28.

The court, however, agreed with petitioners that the

State enjoyed an additional and distinct immunity that

could be asserted in the suit on remand. In the court’s

view, “a sovereign enjoys two kinds of immunity that it

may choose to waive or retain separately—immunity

from suit and immunity from liability.” Pet. App. 28. In

so holding, the court rejected petitioners’ argument that

the Constitution itself “prescribes a specific rigid struc-

ture for each state’s sovereign immunity,” explaining

that such an approach would “conflict|] with the first

principles of our federation.” Jbid. Rather, because

each State “retain[s] the individual sovereignty it en-

joyed before the union, the structure of the Constitution

allows for variation between the nature and structure of

each state’s immunities from suit and liability,” and,

indeed, “the patterns of sovereign immunities main-

tained by the states vary considerably.” Jd. at 28-29.

The Fifth Circuit accordingly held that it “must look

to the law of the particular state in determining whether

it has established a separate immunity against liabi-

lity for purposes of waiver.” Pet. App. 29. The court

concluded that, while petitioners’ removal of the case

“waived its immunity from suit in federal court,”

“[w]hether Texas has retained a separate immunity from

liability is an issue that must be decided according to

that state’s law.” Jd. at 32; see id. at 35.

5. The court denied petitioners’ petition for rehear-

ing and rehearing en bane. Pet. App. 49-51. The court

explained that its decision reflected only a “narrow hold-

ing” that the voluntary invocation rule recognized in

Lapides applies to federal-law claims as much as to

state-law claims, and thus that removal waived petition-

ers’ “unqualified right to object peremptorily” to federal

court jurisdiction. /d. at 50. The court stressed, how-

ever, that such waiver

does not affect or limit the State’s ability to assert

whatever rights, immunities or defenses are pro-

vided [flor by its own sovereign immunity law to de-

feat the claims against the State finally and on their

merits in the federal courts.

Ibid. The court concluded that, under its decision,

Texas remains free to “assert its state sovereign immu-

nity as defined by its own law as a defense against the

plaintiffs’ claims in the federal courts.” /bid. The court

held only that petitioners “may not use [sovereign im-

munity] to defeat federal jurisdiction or as a return

ticket back to the state court system.” /bid.

ARGUMENT

The United States agrees with petitioners that a

State’s removal of a case to federal court waives that

State’s Eleventh Amendment immunity from suit in a

federal court, but does not waive defenses that would

have been available to the State in state court, including

the constitutional right not to be sued at all. See U.S.

Br. at 22, Lapides v. Board of Regents, 535 U.S. 613

(2002) (No. 01-298). However, this Court’s review of

that question in-this case at this time is not warranted

for four reasons. First, the Fifth Circuit’s decision is, by

its terms, “narrow” (Pet. App. 50), and does not appear

to be materially inconsistent with petitioner’s position

and, in fact, the proceedings on remand may accommo-

date petitioners’ immunity claim. Second and relatedly,

the basic immunity issue itself has not been definitively

resolved by the lower courts and thus is interlocutory as

it comes to this Court. Third, the asserted conflict in the

‘

circuits is neither concrete nor mature. Fourth, there

are a number of distinct jurisdictional and jurispruden-

tial barriers that make this case a poor vehicle in which

to review the important question that petitioners pres-

ent.

1. a. In Lapides v. Board of Regents, 535 U.S. 613

(2002), this Court held that “removal is a form of volun-

tary invocation of a federal court’s jurisdiction sufficient

to waive the State’s otherwise valid objection to litiga-

tion of a matter (here of state law) in a federal forum.”

Id. at 624. The Court limited its decision, however, to

“the context of state-law claims, in respect to which the

State has explicitly waived immunity from state-court

proceedings.” /d. at 617. The Court expressly reserved

the questions whether removal would waive immunity

for “a valid federal claim against the State” or for “a

situation where the State’s underlying sovereign immu-

nity from suit has not been waived or abrogated in state

court.” Jd. at 617-618.

Petitioners now seek this Court’s review of that lat-

ter question—whether the act of removal waives a

? Inaletter to this Court dated December 1, 2006, the United States

explained that it had intervened in the litigation, pursuant to 28 U.S.C.

2403, solely to defend the constitutionality of Title II’s abrogation of

Eleventh Amendment immunity, and thus had not previously taken a

position on the questions resolved by the court of appeals or presented

by the petition. The United States noted, however, that it did take the

position in its amicus brief in Lapides that a State’s removal of a case

to federal court effects only a waiver of its immunity from suit in a

federal forum, but that the act of removal does not waive defenses that

. would have been available to the State in state court, including the

constitutional right not to be sued at all. That remains the position of

the United States. The United States is filing this brief in response to

this Court’s letter of December 15, 2006, requesting that a response be

filed.

State’s immunity for federal-law claims where “sover-

eign immunity has not been waived by the State or abro-

gated by Congress.” Pet. i, 6. As the United States ex-

plained in its amicus brief (at 22) in Lapides, supra (No.

01-298), the United States agrees that a State’s removal

of a case to federal court effects a waiver only of the

State’s immunity from suit in a federal forum. The act

of removal does not waive any other immunity-based

defenses that would have been available to the State in

state court, including assertion of the constitutional

right not to be sued at all on the ground that immunity

for the claim has not been waived or abrogated in any

forum—state or federal. See zbid.

This Court’s review of that important question is not

warranted in this case, however, because it is not clear

that the court of appeals’ decision materially diverges

from petitioners’ position. The bulk of the court of ap-

peals’ decision is devoted to establishing that the rule of

waiver adopted in Lapides (i.e., waiver of forum immu-

nity) applies as much to claims based on federal law as

those based on state law. See Pet. App. 5-23. Indeed,

the court’s decision on rehearing underscored that its

“narrow holding” in the case was limited to resolution of

that question. /d. at 50. In addition, petitioners appear

to agree that the Lapides waiver rule does not turn upon

the source of law—state or federal—on which a plain-

tiffs claim rests. Instead, the critical distinction on

which petitioners rely, and for which they seek this

Court’s review, is whether the State’s immunity from

suit for the federal claim has been waived in state court.

See, e.g., Pet. i, 6-8, 14-15, 18-20.

b. The court of appeals went on to hold that the fed-

eral Constitution does not establish two distinct immuni-

ties from suit—one immunity, embodied in the Eleventh

Amendment, from suit in a federal court, and one gener-

alized immunity from suit in any court. Pet. App. 25-26.

Petitioners are correct that, at least standing alone, that

aspect of the court of appeals’ decision is in some tension

with the conception of state sovereign immunity implic-

itly assumed in Lapides.

But the immediately ensuing portion of the court of

appeals’ opinion (see Pet. App. 28-29) suggests that the

court held only that petitioners erred in arguing that the

federal Constitution itself presupposes and prescribes

those dual aspects of state sovereign immunity without

regard to state law. See, e.g., id. at 29 (“[C]ourts must

look to the law of the particular state in determining

whether it has established a separate immunity against

liability for purposes of waiver.”). In that respect, there

is force to the court of appeals’ decision. Other than the

Eleventh Amendment’s constraint on the power of fed-

eral courts, the Constitution does not dictate principles

of state sovereign immunity. The Constitution accepts

that the States entered the Union “with their sover-

eignty intact,” Federal Maritime Comm’n v. South

Carolina State Ports Auth., 535 U.S. 743, 751 (2002)

(quoting Blatchford v. Native Vill. of Noatak, 501 U.S.

775, 779 (1991)), but the Constitution does not dictate

the content of that preexisting sovereignty nor does it

insist that States homogenize their sovereign immunity

law. See Pet. App. 29 n.22 (noting the varying forms

of sovereign immunity adopted by different States); see

also Northern Ins. Co. v. Chatham County, 126 8S. Ct.

1689, 1693 (2006).

It thus appears that the court of appeals took excep-

tion not to petitioners’ argument that they retain some

form of sovereign immunity distinct from the waiver of

Eleventh Amendment immunity, but rather to petition-

ers’ contention that “the Constitution prescribes a spe-

cific rigid structure for each state’s sovereign immu-

nity,” Pet. App. 28, and thus that federal law itself re-

quires that the State have two distinct immunities from

suit. Consistent with that narrow understanding of its

decision, the court of appeals went on to hold that peti-

tioners remain free on remand to assert a sovereign im-

munity from liability under the ADA—contingent only

on a determination that state law invests Texas with

such additional forms of immunity. Jd. at 32. Texas law,

in fact, appears to track the very distinction between

immunity from suit and immunity from liability that the

court of appeals adopted in this ease.’ On rehearing, the

court stressed again that petitioners remain free to as-

sert on remand “whatever rights, immunities or de-

fenses are provided [flor by its own sovereign immu-

nity.” Jd. at 50.

The court’s decision, and in particular its decision on

rehearing, thus explicitly leaves it open to petitioners to

assert on remand “whatever rights [or] immunities”

they retain under state law, including the right not to be

sued at all. Pet. App. 50. The court of appeals held only

that petitioners may not assert sovereign immunity to

“defeat federal jurisdiction.” Jbid. In other words, the

court held that, by removing the case to federal court,

petitioners agreed to have their remaining immunity

* See, e.g., Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 224 (Tex. 2004) (“Sovereign immunity includes two distinct prin-

ciples, immunity from suit and immunity from liability.”); Texas Dep't

of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (“Immunity from

liability and immunity from suit are two distinct principles.”); Federal

Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex. 1997) (“Sovereign im-

munity embraces two principles: immunity from suit and immunity

from liability.”).

claims—including the claim that no suit may proceed

—resolved by that federal court. That is consistent with

Lapides. See Lapides, 535 U.S. at 620.

Petitioners argue (Pet. 20) that permitting the asser-

tion of a state-law “immunity from liability” on remand

is unhelpful because it is “a concept of dubious applica-

bility in this federal-question case in federal court.” But

petitioners do not explain why a state sovereign “immu-

nity from liability” is any more “dubious” than a state

sovereign “immunity from suit.” In either case, the ulti-

mate question on remand (for purposes of immunity) will

be whether Congress properly abrogated the State’s

immunity under Section 5 of the Fourteenth Amend-

ment. The answer to that question does not turn on

whether the State’s asserted immunity is labeled an im-

munity from suit or an immunity from liability.’

In sum, while petitioners disagree with the court of

appeals’ conceptualization and characterization of its

state sovereign immunity, it would be premature to con-

clude that the court of appeals has prevented petitioners

from asserting on remand the very constitutional right

not to be sued that they press before this Court. In fact,

the court of appeals has expressly invited petitioners to

raise on remand “whatever rights, immunities or de-

* That Texas law treats sovereign immunity from liability as an

“affirmative defense” is of no moment. See Miranda, 133 S.W.3d at

224; Jones, 8 S.W.3d at 638; Federal Sign, 951 S.W.2d at 405. Eleventh

Amendment immunity too is a “defense” that is waived unless affirma-

tively raised by the State. See Wisconsin Dep't of Corrs. v. Schacht,

524 U.S. 381, 389 (1998); see id. at 394-395 (Kennedy, J., concurring).

Indeed, Eleventh Amendment immunity has been described as akin to

personal jurisdiction, see ibid., which is also a defense that must be

affirmatively raised, see Hoffman v. Blaski, 363 U.S. 335, 344 (1960).

In addition, nothing in the court’s decision forecloses an interlocutory

appeal from a denial of immunity on remand.

fenses” it retains. Pet. App. 50. Because “this Court

reviews judgments, not opinions,” Chevron U.S.A. Inc.

v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842

(1984), and the judgment at issue explicitly permits fur-

ther examination of petitioners’ assertion of sovereign

immunity, this Court’s intervention at this juncture is

not warranted.

2. Relatedly, the decision is interlocutory. This

Court generally declines to exercise its certiorari juris-

diction to review interlocutory decisions. See Hamilton-

Brown Shoe Co. v. Wolf Bros., 240 U.S. 251, 258 (1916);

see also Goldstein v. Cox, 396 U.S. 471, 478 (1970); com-

pare Virginia Military Inst. v. United States, 508 U.S.

946 (1993) (opinion of Scalia, J., on denial of certiorari,

noting the interlocutory posture of the litigation), with

United States v. Virginia, 518 U.S. 515 (1996) (review

granted after final judgment).

While this Court permits interlocutory review of a

denial of Eleventh Amendment immunity, see Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 1389 (1993), that case involved review of a deci-

sion conclusively rejecting the State’s claim of immunity,

id. at 141-142. By contrast, as discussed, the State’s

assertion of sovereign immunity in this case has not

been conclusively resolved and may yet be resolved in

petitioners’ favor. Accordingly, review by this Court at

this juncture is unwarranted under traditional principles

counseling against review of interlocutory decisions.

Should petitioners’ assertion of a sovereign right not to

be sued be rejected on remand (and should the other

barriers to review outlined below be overcome), then

this Court could consider anew whether this Court’s

review is warranted. Moreover, the Court’s decision in

that regard may be assisted by further consideration

below of Texas law on the scope of the State’s sovereign

immunity and the Fifth Circuit’s potential application of

its decision here in other cases.

3. There is no conflict in the circuits (see Pet. 8-11)

that warrants review at this time. To begin with, no

court of appeals has addressed the dichotomized ap-

proach to state sovereign immunity that the court of

appeals adopted here, nor has any court of appeals ad-

dressed whether state or federal law controls definition

of the elements of state sovereign immunity outside of

the Eleventh Amendment context. There thus is no con-

flict with the court of appeals’ substantive approach to

the immunity question.

With respect to the question the Fifth Circuit did not

conclusively resolve—whether petitioners may be sued

for federal-law claims for which immunity has not been

waived in state court—the Tenth Circuit has held, as

petitioners explain (Pet. 10), that the rule of waiver rec-

ognized in Lapides applies to federal-law claims, even if

sovereign immunity has not been waived in state court.

See Estes v. Wyoming Dep't of Transp., 302 F.3d 1200

(2002).

While the Ninth Circuit’s decision in Embury v.

King, 361 F.3d 562 (2004) (see Pet. 10), indicated that a

waiver of immunity in state court was not a necessary

predicate to application of Lapides’ waiver rule, the

court expressly reserved the question presented here:

whether “a removing State defendant remains immu-

nized from federal claims” for which there has been no

valid abrogation of Eleventh Amendment immunity (as

petitioners contend in this case). 361 F.3d at 566 n.20.

In addition, that case involved such a significant delay

by the State in asserting its immunity that the district

court accused the State of “gamesmanship” for waiting

until the eve of an adverse ruling to invoke immunity.

Id. at 563-564. The court thus held that, “in the cireum-

stances of this case, allowing the reassertion of Eleventh

Amendment immunity, after the State had litigated ex-

tensively in federal court but began to anticipate an un-

favorable outcome, would waste the time and money of

the litigants and the resources of the courts.” /d. at 566.

The court’s discussion of Lapides thus was unnecessary

to its decision.

Petitioners argue (Pet. 9-10) that the court of ap-

peals’ decision conflicts with rulings of the Seventh, Dis-

trict of Columbia, and Fourth Circuits. But the Seventh

Circuit’s decision in Omosegbon v. Wells, 335 F.3d 668

(2003), reflects a straightforward application of Lapides,

because the case involved an assertion of immunity for

a state-law claim for which the State had waived immu-

nity in its own courts. /d. at 673. The Seventh Circuit

thus had no occasion to address the question presented

here, 7.e., whether the waiver rule of Lapides would ap-

ply to federal-law claims for which immunity had alleg-

edly not been waived or abrogated.

Petitioners’ reliance (Pet. 9-10) on a footnote in the

D.C. Circuit’s decision in Watters v. Washington Metro-

politan Area Transit Authority, 295 F.3d 36 (2002),

cert. denied, 538 U.S. 922 (2003), is also inapt. The court

held in that case that the plaintiff had failed to assert its

waiver argument in a timely manner, and further that,

as an interstate compact, the Transit Authority’s immu-

nity does not arise solely from the Eleventh Amend-

ment. /d. at 42 n.13. While the court noted the “narrow

holding of Lapides,” it declined “to consider, sua sponte,

an issue upon which neither this circuit nor the Supreme

Court has yet opined.” Jbid.

Petitioner is correct (Pet. 9) that the Fourth Circuit

held that removal does not waive a State’s immunity for

claims for which there has been no waiver of immunity

in state court. See Stewart v. North Carolina, 393 F.3d

484, 488-489 (2005). That case, however, involved state-

law rather than federal-law claims, id. at 487, and thus

the ruling does not squarely conflict with Estes, supra,

or the court of appeals’ “narrow holding” here, which

was pointedly limited to federal-law claims, Pet. App. 50.

In any event, it remains to be seen on remand whether

the court of appeals’ decision here reflects a material

difference in the law or simply a difference in approach

in analyzing immunity claims.

4. There are substantial additional barriers to this

Court’s review of the question presented in this case.

First, petitioners’ sovereign immunity argument rests

critically on the proposition that, in enacting Title II of

the ADA, Congress lacked the constitutional authority

under Section 5 of the Fourteenth Amendment to abro-

gate its immunity from suit. Indeed, petitioners’ repeat-

edly couch their Lapides argument in terms of the fed-

eral court’s jurisdiction over federal-law claims for

which immunity has not been waived “or abrogated by

Congress.” Pet. i; see Pet. 6. The court of appeals, how-

ever, did not address whether Title II is a valid abroga-

tion of state sovereign immunity in this context. If, as

the United States argued below and in briefs to this

Court in Tennessee v. Lane, 541 U.S. 509 (2004) (No. 02-

1667), and United States v. Georgia, 126 S. Ct. 877

(2006) (No. 04-1203), the abrogation of immunity is valid,

resolution of the constitutional question that petitioners

present would be unnecessary to the disposition of this

case.”

Second, this Court has twice held that, before ad-

dressing a State’s constitutional immunity to suit under

the ADA, courts should first decide whether the plain-

tiffs have stated a valid claim under the statute. Geor-

gia, 1268. Ct. at 882; Board of Trustees v. Garrett, 531

U.S. 356, 360 n.1 (2001). Indeed, just last Term, this

Court unanimously held that courts confronted with a

constitutional challenge to Congress’s abrogation of im-

munity must

determine in the first instance, on a claim-by-claim

basis, (1) which aspects of the State’s alleged conduct

violated Title II; (2) to what extent such misconduct

also violated the Fourteenth Amendment; and (3)

insofar as such misconduct violated Title II but did

not violate the Fourteenth Amendment, whether Con-

gress’s purported abrogation of sovereign immunity

as to that class of conduct is nevertheless valid.

Georgia, 126 S. Ct. at 882.

Resolution of the statutory question whether Meyers

has stated a claim under Title II is thus a necessary pre-

requisite not only to deciding the constitutionality of

Congress’s abrogation, but also to the question that peti-

tioners present here, which presupposes that the abro-

* Petitioners argue (Pet. 6 n.3) that “there are no further proceed-

ings to be had on the abrogation issue” because the district court al-

ready held that Title II is not a valid abrogation of immunity. But the

district court’s decision on that question five years ago, when Board of

Trustees v. Garrett, 531 U.S. 356 (2001), was the most analogous deci-

sion from this Court, has been overtaken by the intervening decisions

of this Court in Lane and Georgia, which heve upheld the constitution-

ality of Title II's abrogation in two contexts and have expressly pre-

scribed a new model for analysis of the constitutional question.

gation is not valid and which is moot if the abrogation is

valid.

As in Georgia and Garrett, resolution of that statu-

tory question would allow the Court to avoid deciding

important questions of constitutional law unnecessarily.

“If there is one doctrine more deeply rooted than any

other in the process of constitutional adjudication, it is

that [courts] ought not to pass on questions of constitu-

tionality * * * unless such adjudication is unavoid-

able.” Spector Moior Serv., Inc. v. McLaughlin, 323

U.S. 101, 105 (1944); see Lyng v. Northwest Indian

Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A

fundamental and longstanding principle of judicial re-

straint requires that courts avoid reaching constitutional

questions in advance of the necessity of deciding

them.”).

Adherence to established principles of constitutional

avoidance is particularly appropriate here. For five

years, the United States has taken the consistent posi-

tion in cases presenting the identical Title II challenge

to parking placard fees that the Justice Department

interprets its regulation as not proscribing the fee

charged by Texas here, and thus that Meyers has no

valid claim under Title II. That is because parking plac-

ards generally are not “required,” 28 C.F.R. 35.130(f),

to provide nondiscriminatory access to buildings or facil-

ities. Texas already provides such access for drivers

with disabilities by offering special license plates at no

additional charge, which allow drivers with disabilities,

their family members, and non-profit groups that trans-

port individuals with disabilities to utilize the parking

spots reserved for persons with disabilities. See Pet.

App. 3; Texas Transp. Code Ann. § 504.201 (West 2007).

The placard fee here thus can be understood as a fee for

21 ‘

an alternative means of providing access, but not as a

surcharge for the program accessibility that is “re-

quired” by the Disabilities Act. 28 C.F.R. 35.130(f). The

Justice Department’s interpretation of its own regula-

tion merits substantial deference, see Auer v. Robbins,

519 U.S. 452, 461 (1997), and casts such significant doubt

on the viability of Meyers’ claim on the merits as to elim-

inate any sound basis for prematurely resolving the im-

portant constitutional question presented.

Notably, this Court has repeatedly denied review in

other cases where States have asserted an immunity

defense to challenges to parking placard fees. See

Thompson v. Colorado, 535 U.S. 1077 (2002); Brown v.

North Carolina Div. of Motor Vehicles, 531 U.S. 1190

(2001); California Dep’t of Motor Vehicles v. Dare, 531

U.S. 1190 (2001); ef. Klinger v. Director, Mo. Dep't of

Revenue, 545 U.S. 1111 (2005) (vacating and remanding

decision that addressed the constitutionality of Title II

without resolving the statutory construction question).

Third, this case presents a potential statutory bar to

federal jurisdiction. The Tax Injunction Act, 28 U.S.C.

1341, denies federal courts jurisdiction over actions to

“enjoin, suspend or restrain the assessment, levy or col-

lection of any tax under State law where a plain, speedy

and efficient remedy may be had in the courts of such

State.” The Act is a “jurisdictional rule’ and a ‘broad

jurisdictional barrier’” to federal court review. Arkan-

sas v. Farm Credit Servs., 520 U.S. 821, 835 (1997)

(quoting Moe v. Confederated Salish & Kootenai Tribes,

425 U.S. 463, 470 (1976)). The statute was designed “to

limit drastically federal district court jurisdiction to in-

terfere with so important a local concern as the collec-

tion of taxes.” Rosewell v. LaSalle Nat'l Bank, 450 U.S.

503, 522 (1981).

When petitioners first removed this case to federal

court, the district court remanded the case to state court

on the ground that the placard fee was a tax and that the

Tax Injunction Act thus barred district court jurisdic-

tion. Pet. App. 37. The Fifth Circuit subsequently held

that Texas’s parking placard fee was not a tax within the

meaning of the Tax Injunction Act. See Neinast v.

Texas, 217 F.3d 275, 277-279 (5th Cir. 2000), cert. de-

nied, 531 U.S. 1190 (2001). In so holding, however, the

court of appeals acknowledged that the criteria for iden-

tifying a tax under the Act pointed in opposite directions

in this case. Jd. at 278. The court nevertheless con-

cluded that, on balance, the fee does not constitute a tax

because it is a user fee designed to recoup the costs of

the placard program. /bid.

The courts of appeals have issued conflicting deci-

sions on whether parking placard fees are taxes for pur-

poses of the Tax Injunction Act. Compare Neinast, su-

pra; Marcus v. Kansas Dep't of Revenue, 170 F.3d 1305,

1309-1312 (10th Cir. 1999), with Hedgepeth v. Tennessee,

215 F.3d 608, 611-616 (6th Cir. 2000) (Tax Injunction Act

bars challenge to parking placard fee under the ADA);

see id. at 616 (Moore, J., dissenting) (noting the differ-

ent analytical approaches courts have taken, with some

courts emphasizing where the funds go, while other em-

phasize “what the purpose or use of the assessment

truly is”) (quoting Hexom v. Oregon Dep't of Transp.,

177 F.3d 1134, 1138 (9th Cir. 1999)).

This Court has not yet addressed the definition of

“tax” under the Tax Injunction Act, but the Court has

held that its terms “should be interpreted to advance its

purpose of confin[ing] federal-court intervention in state

government.” Jefferson County v. Acker, 527 U:S. 423,

433 (1999) (quoting Farm Credit Servs., 520 U.S. at 826-

827). Furthermore, the Court has recognized that taxes

can take the form of user fees imposed to recoup the

costs of a governmental program. See Massachusetts v.

United States, 435 U.S. 444, 446 (1978); id. at 460-463

(opinion of Brennan, J.). Thus, the question of whether

the Tax Injunction Act bars this litigation is a substan-

tial one.

The United States takes no position on that question

here, other than to note that the Tax Injunction Act’s

potential statutory barrier to jurisdiction would have to

be resolved before the Court cou!d consider petitioners’

constitutional challenge to jurisdiction. See Vermont

Agency of Natural Res. v. United States ex rel. Stevens,

529 U.S. 765, 779-780 (2000) (statutory jurisdictional

question must be resolved before Eleventh Amendment

question); see also Steel Co. v. Citizens for a Better

Env't, 523 U.S. 83, 97 & n.2 (1998). The existence of that

non-constitutional jurisdictional question provides an

additional reason why this case is a poor vehicle to ad-

dress the important constitutional question that peti-

tioners ask the Court to resolve.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.