Petition for Writ of Certiorari — Indiana Family & Social Services Administration v. Indiana Protection & Advocacy Services

me Court, U.S.

Supra 1LED

OFFICE OF THE CLERK

IG (1) 10-131 wd 21 200

. : . No _

IN THE

Supreme Court of the United States

INDIANA FAMILY AND SOCIAL SERVICES

ADMINISTRATION; ANNE W. MURPHY, in her official

capacity as Secretary of the Indiana Family and Social

Services Administration; GINA ECKART, in her official

capacity as Director of the Division of Mental Health and

Addiction; LARRY LISAK, in his official capacity as

Superintendent of Larue Carter Memorial Hospital,

Pettttoners,

INDIANA PROTECTION AND ADVOCACY SERVICES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Office of the Attorney General GREGORY F. ZOELLER

IGC South, Fifth Floor Attorney General

302 W. Washington Street THOMAS M. FISHER

Indianapolis, IN 46204 Solicitor General

(317) 232-6255 (Counsel of Record)

Tom.Fisher@atg.in.gov HFATHER L. HAGAN

ASHLEY FE. TATMAN

Deputy Attorneys General

Counsel for Petittoners

QUESTIONS PRESENTED

1. Whether the limited abrogation of state

sovereign immunity permitted by Ex parte Young

extends to intramural conflicts in which one state

agency sucs another state agency in federal court.

2. Whether the PAIMI Act, a federal grant

program enacted pursuant to Congress’s Spending

Clause power, implicitly provides protection and

advocacy systems with a right of action to enforce its

directives.

3. Whether the Department of Health and

Human Services has reasonably excluded peer

review reports and _ related documents made

confidential by state law from the definition of

“records” that must be disclosed to protection and

advocacy systems under the PAIMI Act.

TABLE OF CONTENTS

PETITION FOR A WRIT OF CERTIORART ....

OPINIONS BELOW

JURISDICTION ......

CONSTITUTIONAL AND STATUTORY

MEER BIN V OLLV IUD) .........00....cc0sccnccccsccccessesess

STATEMENT

Statutory Background...............

Domes EPMCKOTOUNG......................0...0000.

Proceedings Below

REASONS FOR GRANTING THE PETITION ...

I. As the Court is Already Reviewing the

Sovereign Immunity Issue, It Should

Hither Grant Plenary Review Here or

Hold the Case Pending Decision in

Reinhard

The Seventh Circuit Holding that PAIM]

Creates a Federal Cause of Action

Contravenes Gonzaga and Other Recent

Pronouncements of This Court .................. 13

IT] The Decision Below Regarding Peer

Review Documents Invalidates an HHS

Regulation and Conflicts with a State

Supreme Court Decision

CONCLUSION

TABLE OF AUTHORITIES

CASES

Alexander v. Sandoval,

532 U.S. 275 (2001) .....ceccceceseeee

Brunner v. Ohio Republican Party,

Be es 0 is sen nas cc suaesearssenssacas ... 14, 16,

Brunner v. Ohio Republican Party,

Re ee Fe 0 I pian toc rcuwccecahccssdeorvarnons

Ctr. for Legal Advocacy v. Hammons,

323 F.3d 1262 (10th Cir. 2008)...

Davis v. Passman,

A GF we. ee Oe Fh icikn cn vccdcsvakeccdcdwecebusadenecsi 14,

Disabilities Rights Ctr., Inc. v. Comm’r, New

Hampshire Dep't of Corrections,

732 A.2d 1021 (N.H. 1999)

Ex parte Young,

209 U.S. 123 (1908)..............

Gonzaga University v. Doe,

BOG U.S. STS CGO!) .ccssccecsscesesces sexes sesesss DQGSLM

Idaho v. Coeur d'Alene Tribe of Idaho,

521 U.S. 261 (1997)

Missouri Prot. & Advocacy Serus. v. Missouri

Dep't of Mental Health,

447 F.3d 1021 (8th Cir. 2006)

CASES [CONT'D]

Pennhurst State Sch. & Hosp. v. Halderman,

Be i iecieaicchscconsecvdscencacausmevescaves

Pennsylvania Prot. & Advocacy, Inc. v

Houstoun,

228 F.3d 423 (3d Cir. 2000)...............

Prot. & Advocacy Servs. for Persons with

Disabilities v. Mental Health & Addiction

Servs.,

448 F.3d 119 (2d Cir. 2006)............

Roach v. Springfield Clinic,

623 N.E.2d 246 (Ill. 1993)

Touche Ross & Co. v. Redington,

442 U.S. 560 (1979).......

Virginia v. Retnhard,

568 F.3d 110 (4th Cir. 2009)...................... passim

FEDERAL STATUTES

28 U.S.C. § 1254(1)

42 U.S.C. § 10801 et seq. .....

+ 10803

+ 10805

} 10805(a) oe. cece ceeeeee.

§ 10805(a)(1)(A)

FEDERAL STATUTES [CONT'D]

42 U.S.C. § 10805(a)(1)(B) .. 70; Bi« ee

42 U.S.C. § 10805(a)(1)(C) ...... 20

42 U.S.C. § 10805(a)(4)(A) 1, 7,19

42 U.S.C. § 10805(a)(10) . 21

42 U.S.C. § 10805(c)(1)(B)....

42 U.S.C. § 10806............ | 8

42 U.S.C. § 10806(b)(3)(A) ......... cece ee . 26

42 U.S.C. § 10807.......

42 U.S.C. § 15001 et seg.. 2

42 U.S.C. § 15001(b)(1)

42 U.S.C. § 15001(b)(2) ...

42 U.S.C. § 15001(b)(3) .... aes 3

42 U.S.C. § 15021 et seq 3

42 U.S.C. § 15022 .............00.000800 ae

49 13.5.C. & 1504S.......... en ee ee cea ee ae a

sf

42 U.S.C. § 15043(a).................. 2 . 3, 23

a

bo

-

NY

~~

4

co

§ 15044(a).....

+

42 U.S.C. § 15061 et seg........ eee er oe

STATE STATUTES

Conn. Gen. Stat. § 19a-17b 29

Ind. Code § 12-28-1-6 i

Ind. Code § 12-28-1-6(a)(1) i

Ind. Code § 12-28-1-6(a){2) }

Ind. Code § 12-28-1-6(c) .. 5

Ind. Code § 12-28-1-10

Ind. Code § 12-28-1-1]

Ind. Code § 12-28-1-12(2) )

Ind. Code § 12-28-1-12(7) 5

Ind. Code § 34-30-15-1(a) 26

Or. Rev. Stat. § 41.675........ 29

Tenn. Code Ann. § 63-6-219 29

REGULATIONS

42 C.F.R. § 51.10.. - 64, 20. 23

42 C.F.R. § 51.41(c)(4) 26, 28

45 C.F.R. § 1386.20........ RO SOT a seetcatea oe

73 Fed. Reg. 19,708 (Apr. 10, 2008) 28

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. X1....

OTHER AUTHORITIES

H.R. Rep. No. 102-319 (1991), reprinted in

tLe Ree or Dl yy ne 3

Kathryn Leaman, Let’s Give Them Something

to Talk About: How the PSQIA May

Provide Federal Privilege and

Confidentiality Protections to the Medical

Peer Review Process, Mich. St. U. J. Med. &

L. 177 (2007) MPa

Lisa M. Nym, Pitfalls of Peer Review: The

Limited Protections of State and Federal

Peer Review Law for Physicians, 24 J.

Legal Med. 541, 547 n. 44 (2003)

Pub.L. 102-173 § 10(2)

i 6 «

PETITION FOR A WRIT OF CERTIORARI

Defendants Anne W. Murphy, Gina Eckart, and

Larry Lisak, ali in their official capacities (hereinafter

“the state officials”), respectfully petition for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The en banc opinion of the Seventh Circuit is

reported as Indiana Protection and Advocacy

Services v. Indiana Family and Social Services

Administration, 603 F.3d 365 (7th Cir. 2010), and is

reprinted in the appendix at la. The Seventh

Circuit panel decision is reported as JIJndiana

Protection and Advocacy Services v. Indiana Family

and Social Services Administration, 573 F.3d 548

(7th Cir. 2010), and is reprinted in the appendix at

74a. The decision of the district court is unreported

and is reprinted in the appendix at 84a.

JURISDICTION

The United States Court of Appeals for the

Seventh Circuit entered final judgment on April 22,

2010. This Court has jurisdiction to review this case

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eleventh Amendment to the United States

Constitution provides: “The Judicial power of the

United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of

another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. amend. XI.

The relevant portions of the Developmental!

Disabilities Assistance and Bill of Rights Act, 42

U.S.C. § 15001 et seg., and the Protection and

Advocacy for Individuals with Mental Illness Act, 42

U.S.C. § 10801 et seq. are set forth in the appendix at

LO6a.

STATEMENT

This case 1s about preserving the integrity of a

state’s sovereign immunity by refusing to allow a

state to sue itself in federal court. The Court should

grant review for three reasons. First, in holding that

the kx parte Young exception to sovereign immunity

applied in this case, the Seventh Circuit radically

expanded that doctrine and created a clear conflict

with a recent Fourth Circuit case in which the Court

has already granted review, Virginia v. Reinhard,

568 F.3d 110 (4th Cir. 2009), cert. granted, 78

U.S.L.W. 3737 (U.S. June 22, 2010) (No. 09-529).

Second, the Seventh Circuit holding that the

Protection and Advocacy for Individuals with Mental

Iliness Act, 42 U.S.C. § 10801 et seq., creates a

federal cause of action contravenes Gonzaga

University v. Doe, 536 U.S. 273 (2002), and other

recent pronouncements of this court. ‘Third, the

decision below regarding peer review documents

conflicts with both a Health and Human Service

regulation and a state supreme court decision

Statutory Background

The Developmental! Disabilities Assistance and

sil! of Rights Act (“DDA Act”) was enacted to ensure

that individuals with disabilities have access to

needed services and supports. See 42 U.S.C. §

15001(b). To that end, the Act authorizes programs

including state councils on development disabilities,

42 U.S.C. § 15001(b)(1), protection and advocacy

systems, 42 U.S.C. § 15001(b)(2), and university

centers for excellence in developmental disabilities

education, research, and service, 42 U.S.C. §

15001(b)(3). Of particular relevance here, the DDA

Act conditions funding for state councils on

developmental disabilities on whether the state also

has a compliant “system to protect and advocate the

rights of individuals with developmental

disabilities.” 42 U.S.C. § 15043 (a)

The Protection and Advocacy for Individuals with

Mental Illnesses Act (“PAIMIT”),' 42 U.S.C. §§ 10801)

to 10851, provides funding for protection and

advocacy systems (“P&A systems’) established under

the DDA Act and expands the mission of the DDA

Act to encompass the provision of services to the

mentally ill. PAIMI provides that a compliant P&A

This statute was originally known as the “Protection and

Advocacy for Mentally Ill Individuals Act of 1986,” but a 199]

amendment substituted “individuals with mental illness” for

“mentally ill individuals” wherever appearing in text. 199]

Amendments Subsec. (a). Pub.L. 102-173, § 10(2). Thus, the

statute is now known as the “lrotection and Advocacy for

[Individuals with Mental Illness Act” or PAIMI Act

system “shall Investigate incidents of abuse and

neglect of individuals with mental illness.” App. at

lila; 42 U.S.C. § 10805(a)(1)(A). In order to carry

out these investigations, P&A systems “shall

have access to all records of any individual who

is a client of the system if such individual, or the

legal guardian, conservator, or other legal

representative of such individual, has authorized the

system to have such access].]" App. at 112a; 42

U.S.C. § 10805(a)(4)(A)

States may choose to create P&A systems either

as state agencies or as private, nonprofit entities

See 42 U.S.C. §§ 15044(a), 10805(c)(1)(B); 45 C._F.R. §

1386.20. Indiana chose to establish its system as a

state agency, creating Indiana Protection and

Advocacy Services (“IPAS”) in 1977 for the purposs

of “assur|ing| adequate legal and advocacy service:

for the|| promotion|,| protection|,| and advocacy]] of

the rights and interests of individuals with a

developmental disability, individuals with a mental

iliness, and individuals who are seeking or receiving

vocational! rehabilitation services throughout

Indiana.” Ind. Code §§ 12-28-1-6, -1]

The IPAS Commission consists of thirteen

members, four of whom are appointed by the

Governor and nine of whom are appointed by a

majority vote of the Commission members frid

Code § 12-28-1-6(a)(1)-(2) One member of the

Senate, appointed by the President Pro Tempore of

the Senate. and one member of the House of

Representatives, appointed by the Speaker of the

House of Representatives, serve in an advisory, non

voting capacity to the Commission. Ind. Code § 12-

28-1-6(c). The Commission bears ultimate

responsibility for IPAS’s provision of protection and

advocacy services, and it appoints—and may remove

at any time—the agency’s executive director. Ind

Code § 12-28-1-10.

The Commission is subject to the Indiana

Personnel Act, and may = appoint, fix

compensation for, and prescribe the duties of any

attorneys or other employees the Commission

considers necessary. Ind. Code § 12-28-1-12(2). The

Commission provides legal and advocacy service

throughout Indiana on matters related to th

protection of the legal and human rights of

individuals with developmental disabilities,

individuals with ntal illnesses, and individuals

who are seekins r receiving vocationa

rehabilitation ‘rvices, and may adopt rule

pursuant to

Procedures Act

Factual Background

In 2006, as_ part f an investigation, IPAS

requested from Larue Carter Memorial Hospital

(“Larue Carter’), a state-operated psychiatric

hospital in Indianapolis, records pertaining to two of

its patients, who have been anonymously labeled

throughout this litigation as Patient 1 and Patient 2

App. at 84a-9la. Records identified by Larue Carter

pertaining to Patient 2 have been disclosed to IPAS

and are no longer the subject of litigation. App. at

6a-7a. The records that remain in contention relate

to Patient 1. App. at 6a.

Patient 1 was admitted to Larue Carter on Juac

21, 2006. App. at 6a. Six days later, on June 27,

2006, Patient 1 ras. transferred to Wishard

Memorial Hospital, where she died on July 31, 2006.

Id. A Mortality Review Committee convened at

Larue Carter on August 11, 2006, and completed its

report on August 28, 2006. /d.

On August 30, 2006, Peggy Owens, an advocate

at IPAS, reviewed Patient 1’s chart onsite at Larue

Carter. App. at 89a. After reviewing the chart,

Owens requested by letter a copy of Patient 1's

complete chart. Jd. In response to this request,

Kathy Gregory, Deputy Chief Counsel of the Indiana

Family and Social Services Agency (“FSSA”), State

Division of Mental Health and Addiction (which

oversees Larue Carter), notified Owens in writing

that the hospital could not release the records to

IPAS because Patient 1 had parents who had been

active in the case, but who had not signed a release

of the medical record as next of kin. App. at 89a-

90a. On September 13, 2006, Owens requested by

letter a copy of the mortality review committee

report and the root cause analysis report—-the latter

also a product of the Mortality Review Committee

that were prepared after Patient 1’s death. App. at

90a. On behalf of Larue Carter and the defendant

state officials, Gregory refused to release any such

reports. Id.

Proceedings Below

IPAS filed this lawsuit on December 22, 2006,

naming as defendants the administrator of Larue

Carter and the Indiana Family and Social Services

Administration, along with the FSSA Secretary and

the Director of FSSA’s Division of Mental Health

and Addiction. Compl. at 1, $.D. Ind. Docket No. 1,

No. 1:06-cv-1816 (Dec. 26, 2006). [PAS sought

‘injunctive and declaratory relief pursuant to 42

U.S.C. § 10807 to prevent [the state officials] from

restricting full, complete, and meaningful access by

Indiana Protection and Advocacy Services to the

records of individuals with mental illness from

Larue Carter Memoria! Hospital.” Jd

In its complaint, IPAS claimed that the state

officials’ refusal to provide the requested records

violated Section 10805 of PAIMI, td. at 1-3, which

provides that a P&A system “shall have access to

all records of... any individual who 1s a client of the

system if such individual, or the legal guardian,

conservator, or other legal representative of such

individual, has authorized the system to have such

access.” App. at 112a; 42 U.S.C. § 10805(a)(4)(A)

On July 28, 2008, the district court entered an

order granting summary judgment in favor of IPAS.

App. 84a-105a. The court held that “IPAS is entitled

to all records in Defendants’ [the state officials’]

possession, including any peer review committee

reports or root cause analyses that were done

regarding [Patient] 1.” App. at 104a. The district

court, however, stayed its injunction pending appeal.

Order Granting Motion to Stay Pending Appeal at. 1,

S.D. Ind. Docket No. 71, No. 1:06-cv-1816 (Sept. 3,

2008).

At oral argument on appeal, a panel of the

Seventh Circuit expressed an interest in a number of

underlying issues related to federal jurisdiction,

none of which had been covered in the parties’ briefs,

including whether sovereign immunity barred thi:

action and whether IPAS had a cause of action to

enforce PAIMI in federal court. The panel invited

supplemental briefing on these issues. Order: The

Court Invites the Parties to File Supplemental Brief

Addressing the Questions Addressed in the Order at

1-2. 7th Cir. Docket No. 18. No. 08-3183 (Jan. 26

a

2009).

After reviewing the supplemental briefs, the

t

panel issued its opinion vacating the district court

decision and remanding the case with instructions to

dismiss for lack of jurisdiction. App. at 74a-83a

Specifically, the panel held that because IPAS is a

state agency, it 1s barred by the _ Elevent!

Amendment from suing FSSA, another state agency

App. at 80a-82a. Additionally, the panel found that

PAIMI did not create a cause of action. App. at 79a

([IPAS] contends that the claim arises directly

under federal law—8§§ 10805 and 10806. This dos

not help, because those sections lack a right

action.”).

IPAS petitioned for rehearing en banc and,

November 10, 2009, the Seventh Circuit granted

IPAS’s petition and vacated the panel's opinion and

— ¢

i

judgment. App. at 72a-73a. The Court ordered the

parties to brief the case anew. Id

]

Meanwhile, the state officials determined that it

would no longer resist IPAS’s request for documents

related to Patient 2 or IPAS's request for Patient 1's

complete medical file. App. at 6a-7a. The state

officials turned those documents over to IPAS on

January 28 2010.2 The resolution of the dispute over

those documents has left the disagreement over

whether peer revie documents are disclosable

under PAIMI as the only merits-related disput

the Case, although procedural issues related

ssued

App. at la-63a. ‘lhe court, however, modified the

judgment of the district court to provide that thi

declaratory and injunctive relief ran only against t}

named state officials 1n their official capacities, not

ate itself or anv state agency App. at

On May 9 OLY,

Stay the Mandate

,

tne reque 31

anding, IPAS ha ntended t

the state officials should have additional documents related to

Patient 2 that the state officials have not turned over Ih

state officials have turned over al! they have found and have

continued searching for additional documents responsive to

[PAS's request concerning Patient 2

71a. The mandate issued on May 27, 2010. Mandate

at 1, 7th Cir. Docket No. 73, No. 08-3183 (Jan. 26,

2009). The state officials filed an Application for

Immediate Recall and Stay of Mandate with Justice

Stevens in his capacity as Circuit Justice on May 27,

2010, but that was denied on June 1, 2010. App. at

64a. The state officials turned the peer review

documents over to IPAS on June 2. 2010. but

reserved the right to take them back if it should

prevail in this Court.

REASONS FOR GRANTING THE PETITION

The Court should grant plenary review on all

three issues presented, but at the very least it

should hold the case pending resolution of Virginia

v. Reinhard, 568 F.3d 110 (4th Cir. 2009), cert.

granted, 78 U.S.L.W. 3737 (U.S. June 22, 2010) (No

09-529) Reinhard presents the exact same

sovereign immunity issue as this case, so the result

there will be dispositive on that issue here

The second issue asks the Court to review

whether PAIMI creates a right of action enabling

[PAS (and other P&A systems) to enforce the Act

On this issue certiorarl 1s warranted because the

Seventh Circuit’s holding contravenes the tenets set

forth in Gonzaga University v. Doe, 536 U.S. 273,

283-84 (2002), by finding an implied right of action

in a federal grant program that instructs how grant

money is to be used but does not create enforceable

rights

Finally, the Court should grant review on issue

three because the decision below conflicts with the

Department of Health and Human _ Service’s

reasonable decision to exclude peer review reports

and related records made confidential by state law

from the definition of “records” under PAIMI. As the

New Hampshire Supreme Court observed, reading

PAIMI to preempt State laws protecting the

confidentiality of peer review records “would create a

result contrary to the basic congressional purpose

that underlies PAIMI....” Disabilities Rights Ctr..,

Inc. v. Comm'r, New Hampshire Dep't of Corrections,

732 A.2d 1021, 1024 (N.H. 1999) (holding that

PAIMI does not preempt state peer review

privileges) The Seventh Circuit’s decision

invalidates an HHS regulation, creates a conflict

with the Supreme Court of New Hampshire, and

stands in tension with the basic congressional

purpose that underlies PAIMI]

As the Court is Already Reviewing the

Sovereign Immunity Issue, It Should

Either Grant Plenary Review Here or Hold

the Case Pending Decision in Reinhard

On the sovereign immunity issue, the Seventh

Circuit’s decision creates a clear circuit conflict and

represents an unprecedented expansion of the Ex

parte Young doctrine, 209 U.S. 123 (1908), which has

historically stood for a carefully circumscribed

exception to the Eleventh Amendment's guarantee of

state sovereign immunity. Because the decision

below directly conflicts with the Fourth Cuircuit’s

decision in Virginia v. Reinhard, 568 F.3d 110 (4th

Cir. 2009), cert. granted, 78 U.S.L.W. 3737 (U.S.

June 22, 2010) (No. 09-529), the Court should either

grant plenary review here or hold this case pending

resolution of Reinhard.

l'o recap the issue, in this case Indiana’s state

agency P&A system sued three Indiana officials (and

their state agencies) claiming unlawful denial of

access to records in violation of the DDA and PAIMI

Acts. ‘The Seventh Circuit found that IPAS’s suit

was a “classic application of kx parte Young 4

App. at 18a. In Reinhard, Virginia’s state-agency

P&A system sued three Virginia officials claiming

unlawful denial of access to records in violation of

the DDA Act and PAIMI. The Fourth Circuit held

that the P&A system was barred by the Eleventh

Amendment and principles of sovereign immunity

from suing officials of the same state—and that it

could not invoke the doctrine of Ex parte Young, 209

U.S. 123 (1908), to circumvent this jurisdictional

bar. Reinhard. 568 F.3d;

The Fourth Circuit, recognizing that Ex parte

Young has always been a limited exception, stated

that “allowing a state’s officials to be called before a

federal court by one of the state’s own agencies

without notice or consent, cannot be reconciled with

the separate sovereignty of the states.” Reinhard,

568 F.3d at 124 Further, “expanding kx parte

Young to permit a suit in these circumstances cannot

be reconciled with the ‘real limitation|[s]’ of the

doctrine of sovereign immunity.” /d. at 125 (quoting

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261

270 (1997))

The Seventh Circuit came to the opposite

conclusion. While the Seventh Circuit recognized

that IPAS is a state agency, App. at 13a (“IPAS is

technically a state agency... .”), it deemed reliance

on that fact to be “frankly{] unfair.” App. at 16a.

Kven though Congress gave states the choice of

setting up their P&A systems as either independent

state agencies or private non-profit corporations, the

Seventh Circuit held that treating independent state

agencies differently from private non-profit

corporations would produce results that are “strange

indeed.” Jd. Where the Fourth Circuit deemed this

kind of state-agency-versus-state-agency conflict to

be nearly irreconcilable with the “real limitation” of

sovereign immunity, Reinhard, 568 F.3d at 125, the

Seventh Cuircuit’s “straightforward inquiry” found

that sovereign immunity posed no bat

App. at 12a

Review is therefore warranted in this case, just

as in Reinhard, to resolve whether “special

sovereignty interests” of states preclude the exercis:

of federal jurisdiction when a state agency su

another agency of the same state. At the very least,

the Court should hold this case pending resolution of

) / = ae

Reinhard

Il. The Seventh Circuit Holding that PAIMI

Creates a Federal Cause of Action

Contravenes Gonzaga and Other Recent

Pronouncements of This Court

Seventh Circuit held that PAIMI created a

) fact that PAIMI 1

spending powers statute and contains no explicit

language creating a cause of action. This holding

represents a misreading of Gonzaga University v.

Doe, 536 U.S. 273 (2002), particularly in hghc of this

Court’s summary decision in Brunner v. Ohio

Republican Party, 129 8.Ct. 5 (2008) (per curiam)

As a spending powers statute, PAIMI is merely

an offer of federal funds to states that wish to

complete certain tasks. It does not create federal]

rights enforceable by a cause of action against states

for failing to complete those tasks. PAIMI provides

funds to states that choose to create compliant P&A

systems and participate in the program, see App. at

110a-llla; 42 U.S.C. § 10803, and provides for the

termination of funding to noncompliant systems, see

12 C.F.R. § 51.10. PAIMI grants HHS, not P&A

svstems. a remedy for statutory violations

This Court has said that federal statutes do not

create causes of action by implication. See Gonzega

536 U.S. at 283-84. Whether Congress intended to

create a cause of action “1s defimitively answered in

the negative’ where ‘a statute by its terms grants no

private rights to any identifiable class.” Jd. (quoting

Touche Ross & Co. v. Redington, 442 U.S. 560, 576

(1979)). Even where a statute grants a private right

to an identifiable class, putative plaintiffs must also

demonstrate that “the statute Congress has passed .

displays an intent to create not just a private right

but also a private remedy,” Alexander v. Sandoval,

U.S. 275, 286 (2001), and that they “may

judicially enforce the statutory rights or obligations,”

Davis v. Passman, 442 U.S. 228, 239 (1979).

The Court’s recent precedents set forth standards

that make clear that PAIMI does not create

judicially enforceable federal rights for P&A

systems. Sandoval rejected an implied right of

action to enforce federal disparate-impact

regulations promulgated by the Department of

Justice under Title VI of the Civil Rights Act of 1964

on the grounds that they were phrased in terms of

instructions to federal funding agencies, not in term

of rights. Sandoval, 532 U.S. at 278-79. <A year

later, this Court in Gonzaga rejected an implied

right of action to enforce the Family Educational

Rights and Privacy Act of 1974 (FERPA),° which

prohibits federal funding for educational institution

that release student records to inauthorize:

persons. Gonzaga, 536 U.S. at 276. FERPA did not

create a private right of action, the Court held

because it was enacted under Congress’ spending

powers and the Court had “never before held, and

decline[d] to do so here, that spending legislati

drafted in terms resembling those of FERPA

confer enforceable night ’ 14. at 27!

The FERPA lawsuit wa

1983, but “the initial inquiry aetermining

confers any right at all—is no different [in a

the initial inquiry in an implied right of action

purpose of which is to determine whether o1

‘confer[s] rights on a particular class of person

role in discerning whether personal rights exist

context should therefore not differ from its rol

whether personal rights exist in the tmplied

context.” Gonzaga, 536 U.S 79 25 (inter

ymitted)

This Court specilically rejected the assertion that

federal statute confers a judicially

intended individual: to

a enforceable

right where Congress

“benefit” from the statute. Jd. at 282. The Court

required instead an “unambiguously conferred nght

- action, which FERPA did

if

to support

provid ld

|

if)

nN) ncurrence Justice

hould consider in dee iding whether

factor court

a right of action, including

‘)

federal statute create

[tlhe phrasing of the relevant prohibition”; 2)

total absence (in the relevant statutory provisior

any reference to individual ‘rights’ or the

“the related provisions that make

administrative enforcement pro

Spending Clause was not simply

federal jurisdiction and 1)

isistence upon centralized federal

national, not the regional!

U.S. 291-92 (Breyer, J

rr added that “[mJuch

language is broad and nonspecif)

ambiguity in key tatutory

underscored the difficulty a

an implhied right

hu onlv unambiguou Congvre

an create judicially enforceable right

federally funde

does not allow beneficiaries of

dissatishied with implementation—muc!

program

less state government agencies receiving program

r

yrants—to turn benefits into rig able

ult in federal court

ihe ¢ ourt ni) l understal dit

(,onzara in Brunner / Ohio Republic jl Party > ;

(20038) (per riam), ; it held that thi

nublcan Party w t “sufficiently likely t

prevall on thi stion oO ther Conger

suthorized thi

t{ the Help America Vot«

fa TRO”

Judge Vioore on

Gonzaga requires an unambiruous inte

Conyre ; to create a right brunner »4

27 (Moore, J., dissenting). Analyzing th

rice berever laid out 1T) ae

ud Moore explained that the relevan

HAVA ) rervulate

CONCUTTeNnCE

he conduct

night reating

langua

n tate official

PAIMI, like HAVA, creates third-party beneficiaries.

App. at 49a (Easterbrook, J., dissenting). HAVA did

not create rights for the Ohio Republican Party

because it is the United States Attorney General

who can sue to enforce the provisions of HAVA.

Similarly, PAIMI does not create rights for IPAS

because HHS can act to enforce the provisions of

PAIMI—in particular by cutting off grants to the

state.

PAIMI is written so as to make clear to the

grantee state what is required of it to maintain its

federal funding. PAIMI directs that a P&A system

that receives money under § 10803 “shall

investigate incidents of abuse and neglect of

individuals with mental illness.” App. at 110a-11la;

42 U.S.C. § 10805(a)(1)(A). In order to carry out

these investigations, P&A systems “shall... have

access to all records of any individual who is a client

of the system if such individual, or the legal

guardian, conservator, or other legal representative

of such individual, has authorized the system to

have such access].]” App. at 110a-lla; 42 U.S.C. §

10805(a)(4)(A).

Furthermore, the DDA Act and PAIMI expressly

condition DDA grants on having a comphant P&A

system, which leaves the grant-making agency,

HHS, as the only entity in a position to remedy (by

way of denying new grants) a state’s non-compliance.

The DDA Act explicitly describes the requirements a

P&A system must meet “[iJn order for a State to

receive an allotment under [42 U.S.C. § 15022].”

App. at 125a-32a; 42 U.S.C. § 15043. PAIML itself

further specifies that “[t]he Secretary [of HHS] shall

make allotments under this subchapter to cligible

systems to establish and administer systems. .

which meet the requirements of section 10805

[entitled ‘System Requirements’].” App. at 110a-11a;

42. U.S.C. § 10803.

This text is very similar to the provisions at issue

in Gonzaga and Brunner. Like those contested

rovisions, the provisions of PAIMI (1) direct the

conduct of state officials whose states receive grants,

App. at llla-17a; 42 U.S.C. § 10805; (2) do not

contain rights-creating language for the grantees but

instead impose obligations on them, App. at 11la-

17a; 42 U.S.C. § 10805; (8) provide for the

suspension or removal of funding for noncompliance,

42 C.F.R. § 51.10; and (4) allow federal authorities to

bring suit to enforce the provisions. See App. at

llla-17a; 42 U.S.C. § 10805.

4. The Seventh Circuit, however, found that

Congress intended to create a right of action for P&A

systems to enforce PAIMI, stating that “Congress

phrased the PAIMI Act in terms that grant rights to

the protection and advocacy system in each state. .

.” App. at 20a. To support this conclusion, the

Seventh Circuit cites 42 U.S.C. § 10805(a), which

states that “A system established in a State under

section 10803 of this title to protect and advocate the

rights of individuals with mental illness shall .. . (3)

have access to facilities in the State providing care or

treatment; (4) in accordance with section 10806 of

this title, have access to all records of several

categories of patients.” App. at 20a. Additionally,

the Seventh Circuit, citing 42 USC. §&§

10805(a)(1)(B) and (a)(1)(C), concluded that “[a] suit

for access to patient records falls squarely within the

statutory authority to pursue ‘legal and other

appropriate remedies to ensure the protection of

individuals with mental illness....” App. at 21a.

As Chief Judge Easterbrook points out in his

dissent, however, Section 10805 is entitled “System

Requirements” not “System Rights.” App. at 5la

(Easterbrook, J., dissenting). ‘Thus, Section 10805

instructs states how a P&A system must be set up to

receive funding; 1t does not create rights for P&A

systems once they are established.‘

On this score, telling grantee states that a

comphant P&A system “shall... have the authority

to pursue administrative, legal, and _ other

appropriate remedies,” App. at llla; 42 U.S.C. §

4 Furthermore, as Chief Judge Kasterbrook observed,

reading “shall” in the PAIMI Act (as in “shall... have the

authority to pursue adnunistrative, legal, and other

appropriate remedies,” 42 U.S.C. § 16805 (a)(1)(B)) to

mean “has a right to” produces strange linguistic results.

App. at 5la (Easterbrook, J., dissenting). The example

used by Chief Judge Easterbrook is Section 10805(a)(10),

which instructs that States “shall... not use allotments .

. In a manner inconsistent with section 14404 of this

title.” 42 U.S.C. § 10805(a)(10). Jd. Substituting “has a

right to” for “shall” in that command, as the majority

essentially did for other portions of PAIMI, would

awkwardly create a “mght” for P&A systems not to

misuse funds. /d.

10805(a)(1)(B), merely instructs states as to the

types of activities in which a compliant P&A system

will engage. That is, this text means that, if

administrative, legal, or other remedies otherwise

exist, a compliant P&A system must have authority

to use those means to advocate for its chents. This

text does not itself, however, “grant rights to the

protection and advocacy system in each state” as the

Seventh Circuit majority has held. App. at 20a.

In a similar vein, the Seventh Circuit pointed to

PAIMI text that requires P&A systems to exhaust

administrative remedies before filing lawsuits as

evidence of congressional intent to create a cause of

action, stating, “|t]he provision would have little

purpose if protection and advocacy systems like

IPAS were not empowered to sue to enforce the

PAIMI Act.” App. at 22a. This inference is

incorrect, particularly in light of Brunner, where not

even the actual provision of administrative

procedures (much less the mere mention of some

undefined such procedure) was enough to imply a

right of action. ‘This text in PAIMI creates no

administrative process and no cause of action. It

instead contemplates that P&A systems may have

legal remedies arising from other laws that require

exhaustion of administrative remedies, and merely

says that P&A systems may not ignore such

exhaustion requirements. Again, this text of PAIMI

provides the general instructions for P&A system

structures; it does not purport to grant rights or

enforcement mechanisms.

More fundamentally, by finding judicially

enforceable rights based on the mere mention of

administrative exhaustion in the PAIMI act, the

Seventh Circuit improperly collapsed the Gonzaga

two-part right-remedy inquiry. The court in effect

cited a statutory precondition for seeking judicial

relief as evidence that the statute itself creates

judicially enforceable rights. See App. at 22a n.11.

Gonzaga precludes this mode of analysis and

requires instead express congressional provision of

enforceable rights. See, e.g., Gonzaga, 536 U.S. at

280 (“We made clear that unless Congress ‘speak[s]

with a clear voice,’ and manifests an ‘unambiguous’

intent to confer individual rights, federal funding

provisions provide no basis for private enforcement

by § 1983.”). On multiple occasions the Court has

made it abundantly clear that finding whether a

right exists 1s an inquiry not only distinct from but

also precedent to any inquiry about available

remedies. See Sandoval, 532 U.S. at 286; Davis, 442

U.S. 230. So, even if the Seventh Circuit correctly

read PAIMI to establish an administrative

exhaustion requirement (and it did not), that was

not enough to infer enforceable rights under PAIMI.

The Seventh Circuit attempted to distinguish

PAIMI from the statutes at issue in Sandoval and

Brunner and the regulation in Gonzaga by noting

that “the PAIMI Act’s key language is not directed at

an administrator of federal funds or even at the

State of Indiana as a funding recipient.” App. at

27a. But the statute is phrased precisely in terms of

what a P&A system must be able to do in order for

the state to receive DDA Act grants—not simply

grants to fund the P&A system, but grants to fund

Part B of the DDA Act, which allots federal money to

states with Governor's Councils on Disabilities. See

42 U.S.C. § 15043(a). What is more, as the court

recognized, 42 C.F.R. § 51.10 “authorizes suspension

or termination of grant payments... based on a

protection and advocacy system’s failure to comply

with the [PAIMI] Act.” App. at 30a n.13. The court,

however, rejected that administrative remedy as not

“comparable to those that were important factors in

Sandoval, Gonzaga, and Brunner,’ App. at 28a,

because “[nJone of these administrative enforcement

mechanisms offer any relief at all for IPAS or any

other protection and advocacy system if

recalcitrant state violates its obligations... .” App.

30a n.13.

The question, however, is not whether a

congressional enactment affords relief for any

particular individual or agency aggrieved by lack of

state compliance with a federal grant program.

Rather, the existence of remedies “depend[s] on the

statutory text and structure, not on judges’ views

about how much enforcement, and by whom, is

optimal.” App. at 49a (Kasterbrook,.J., dissenting).

Indeed, generally with “legislation enacted pursuant

to the spending power, the typical remedy for state

noncompliance with federally imposed conditions is

not a private cause of action for noncompliance but

rather action by the Federal Government to

terminate funds to the State.” Gonzaga, 536 U.S. at

280 (quoting Pennhurst State Sch. & Hosp. v.

Halderman, 451 US. 1, 28 (1981)).

Here both the majority and concurring Seventh

Circuit opinions proceed from the belief that PAIMI

should not be enforced by the termination of the

DDA Act grants, discounting that remedy as

“perversely counterproductive.” App. at 30a; App. at

38a (Posner, J., concurring) (“Of course the threat to

defund might be enough to bring the state to heel.

But that is not certain. The state and the federal

government would be playing a game of chicken .

.”); see also App. at 60a (Easterbrook, J., dissenting).

Such a view, however, “reflects a fundamental

disagreement with the Supreme Court, which has

held the principal and often exclusive method of

enforcing conditions on federal grants is by funding

curtailments.” App. at 6la (Easterbrook, J.,

dissenting).

Certiorari is warranted to resolve _ this

“fundamental disagreement” between the Seventh

Circuit and this Court.

Ill. The Decision Below Regarding Peer

Review Documents Invalidates an HHS

Regulation and Conflicts with a State

Supreme Court Decision

The Seventh Cuircuit’s holding that the peer

review documents are “records” disclosable under

PAIMI puts it into direct conflict with the United

States Department of Health and Human Services

as well as a state supreme court. This redefinition of

“records” has far-reaching consequences for medica]

professionals who rely on the confidentiality of peer

review records to maintain the highest quality of

care for their patients.

1. Under PAIMI, “records” that must be disclosed

to P&A systems include “reports prepared by any

staff of a facility rendering care and treatment” as

well as “reports prepared by an agency charged with

investigating reports of incidents of abuse, neglect,

and injury occurring at such facility that describe

incidents of abuse, neglect and injury occurring at

such facility and the steps taken to investigate such

incidents ... .” App. at 119a; 42 U.S.C. §

10806(b)(3)(A). The question is whether this

definition of “records” encompasses reports of

hospital peer review committees.

The Department of Health and Human Services

has promulgated a rule interpreting the PAIMI

definition to exclude peer review records, the

confidentiality of which is otherwise protected by

state law. See 42 C.F.R. § 51.41(c)(4). In particular,

the regulation defining disclosable records provides

that “nothing in this section is intended to preempt

State law protecting records produced by medical

care evaluation or peer review committee.” 42

C.F.R. § 51.41(c)(4). Indiana law does, indeed,

protect the confidentiality of records produced by

peer review committees. Ind. Code § 34-30-15-1(a)

(“All proceedings of a peer review committee are

confidential.”). Therefore, if the HHS regulation is

valid, Indiana law providing for the confidentiality of

peer-review records prevails.

2. State and federal courts, and Congress itself,

have issued conflicting holdings and statements

concerning the validity of HHS’s view of how peer-

review records should be treated.

The House of Representative, when it re-

authorized PAIMI in 1991, stated that “[t]he purpose

of [peer review] committees 1s to review and evaluate

patient care in the facility in order to improve the

quality of care.” H.R. Rep. No. 102-319, at 6 (1991),

reprinted in 1991 U.S.C.C.A.N. 777, 782.

Recognizing that the establishment of a peer review

committee is required for accreditation by the Joint

Commission on Accreditation of Health Care

Organizations (JCAHO) and that forty-six states

made peer review records confidential, the report

states in no uncertain terms that “ijt is the

Committee’s intent that the [PAIMI] Act does not

preempt state law regarding disclosure of peer

review/medical review records relating to the

proceedings of such committees.” 7d.

Accordingly, the New Hampshire Supreme Court

has upheld and_ enforced HHS’s | regulation

concerning peer-review records. Disabilities Rights

Ctr., Ine. v. Comm'’r, New Hampshire Dep't of

Corrections, 732 A.2d 1021, 1024 (N.H. 1999). New

Hampshire’s private nonprofit P&A system sued the

Department of Corrections seeking access to records

of the New Hampshire State Prison’s Secure

Psychiatric Unit (SPU). Jd. at 1022. The P&A

system claimed that PAIMI preempted state law

making quality assurance records confidential. Id.

The New Hampshire Supreme Court rejected this

argument, holding that PAIMI does not preempt the

state's peer review privilege because the relevant

HHS regulation states that specifically. Jd. at 1023.

Additionally, as that court observed, reading

PAIMI to preempt State laws protecting the

confidentiality of peer review records “would create a

result contrary to the basic congressional purpose

that underlies PAIMI .. . [which is to] benefit

mentally ull individuals’ by = fostering ' the

improvement of services and conditions at medical

and psychiatric care facilities.” Jd. at 1024. In

coming to this conclusion, the New Hampshire

Supreme Court relied on the House Report issued

during the re-authorization of PAIMI. H.R. Rep. No.

102-319, at 6 (1991), reprinted in 1991 U.S.C.C.A.N.

777, 782.

Since then, however, five federal circuits

(including the decision below in this case) have held

that 42 C.F.R. § 51.41(c)(4) is invalid as an

unreasonable interpretation of PAIMI. See App. at

35a-37a; Prot. & Advocacy Servs. for Persons with

Disabilities v. Mental Health & Addiction Servs., 448

F.3d 119, 128 (2d Cir. 2006); Missouri Prot. &

Advocacy Servs. v. Missouri Dep’t of Mental Health,

447 F.3d 1021, 1023 (8th Cir. 2006); Ctr. for Legal

Advocacy v. Hammons, 323 F.3d 1262, 1270 (10th

Cir. 2003); Pennsylvania Prot. & Advocacy, Inc. v.

Houstoun, 228 F.3d 423, 428 (3d Cir. 2000). The

Seventh Circuit, in holding that the peer review

records are covered under PAIMI, said merely that

“felnough has been said already on the subject.”

App. at 36a-37a.

For its part, the United States has neither

withdrawn the regulation nor’ conceded its

invalidity. HHS, however, is in the process of

promulgating a new rule, 73 Fed. Reg. 19,708,

19,715, (Apr. 10, 2008), but that process has been

carrying on for two years, with no signs that HHS

intends to issue a final regulation any time soon

Accordingly, certiorarl 1s warranted to determine

whether the existing HHS regulation is valid.

3. Review is all the more warranted because of

the compelling policy justifications that have led

nearly all states to enact some sort of peer-review

privilege. States began providing protection for peer

review proceedings as early as the 1950s and 1960s

See, e.g., Conn. Gen. Stat. § 19a-17b (enacted 1958):

Or. Rev. Stat. § 41.675 (enacted 1963); Tenn. Code

Ann. § 63-6-219 (enacted 1967). Today, nearly every

state has enacted some sort of peer review

confidentiality and/or privilege protection. See Lisa

M. Nim, Pitfalls of Peer Review: The Limited

Protections of State and Federal Peer Review Law for

Physicians, 24 J. Legal Med. 541, 547 n.44 (2003)

(collecting state statutes). Generally speaking,

privilege protections forbid a peer review physician

from testifying in court regarding peer review

proceedings, while confidentiality protections

provide that peer review materials, documents,

audio recordings, etc., are undiscoverable and cannot

be introduced as evidence. Kathryn Leaman, Let’s

Give Them Something to Talk About: How the

PSQIA May Provide Federal Privilege and

Confidentiality Protections to the Medical Peer

Review Process, 11 Mich. St. U. J. Med. & I. 177,183

(2007). State laws incorporate various combinations

of privilege, confidentiality, and immunity

protections. /d

The reason these: protections are sO common is

that peer review privileges ensure that members of

the medical profession will engage in effective and

candid _ self-evaluation that will be useful in

improving the quality of health care they provide.

Without such privileges, “physicians would be

reluctant to sit on peer-review committees and

engage in frank evaluations of their colleagues.’

Roach v. Springfield Clinic, 623 N.E.2d 246, 251 (III.

1993). Indeed, Dr. Beth Pfau, medical director at

Larue Carter, has testified that if peer review

proceedings were to lose their confidentiality shield,

“there would be a negative impact on [her] ability to

be forthright, open, and candid in determining

responsibility for incidents reported to [her] and

would destroy the implicit trust in the deliberative

process. This, in turn, wfould] negatively impact the

hospital’s goal to achieve the best level of care.” Aff.

of Dr. Beth Pfau at 1-2, S.D. Ind. Docket No. 37-1,

No. 1:06-cev-1816 (Oct. 16, 2007)

The decision below and those of other circuits

negate the policy choices of many states concerning

disclosure of peer review reports to P&A systems,

invalidate HHS’s longstanding regulation on the

subject, are in tension with Congress’s intention that

PAIMI and the DDA Act improve care for the

disabled and mentally ill, and conflict with a state

supreme court decision on the same issue

)

\ccordingly. the (

review whether PAIMI

review docume ni th il

onfidential

CONCLUSION

Ottice of the Attorne

GC South, Fifth Floor: \ttorney G

{02 W. Washington Str lHOMAS M

[ndianapolis, IN 46204 olicitor General

(317) 232-6299 (Counsel of Recor

Kisher@atg.1 HEATHER L. HAGA)

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{

L\PPENDIA TO PETITION FOR WRIT

OF CERTIORARI

(Or CON TEN]

la

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3183

INDIANA PROTECTION AND ADVOCACY

SERVICES,

Plaintiff-Appellee,

Vs

INDIANA FAMILY AND SOCIAL SERVICES

ADMINISTRATION; ANNE W. MURPHY, in her

official capacity as Secretary of the Indiana Family

and Social Services Administration; GINA

ECKHART, in her official capacity as Director of the

Division of Mental Health and Addiction; and

LARRY LISAK, in his official capacity as

Superintendent of Larue Carter Memorial Hospital,

Defendants-Appellants.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:06-cev-1816-LJIM-TAB—Larry J. McKinney,

Judge.

ARGUED FEBRUARY 24, 2010 DECIDED APRIL

Before EASTERBROOK, Chief Judge, and

POSNER, FLAUM, KANNE, ROVNER, WOOD,

WILLIAMS, SYKES, and HAMILTON, Circuit

Judges.!

| Judge Tinder did not participate in the consideration of

HAMILTON, Circuit Judge. Pursuant to the

federal Protection and Advocacy for Individuals with

Mental Illness Act of 1986 (“the PAIMI Act”), 42

U.S.C. § 10801 et seg., the district court ordered

Indiana state officials and a state agency to give

plaintiff Indiana Protection and Advocacy Services

(“IPAS”) access to records of two mentally ill patients

in a state hospital. On appeal, a panel of this court

reversed, finding that the Eleventh Amendment and

the lack of a statutory cause of action barred the

action. Indiana Protection and Advocacy Services v.

Indiana Family and Social Services Admin., 573

F.3d 548, 550-52 (7th Cir. 2009). We _ granted

rehearing en banc and hold: (1) the Eleventh

Amendment does not bar plaintiff IPAS from seeking

injunctive and declaratory relief against named state

officials; (2) the PAIMI Act itself provides a cause of

action for injunctive and declaratory relief to enforce

the Act; and (3) plaintiff is entitled to access to peer

review records of treatment of covered mentally ill

patients. Accordingly, we affirm the judgment of the

district court as modified to direct that the relief

runs only against the named state officials in their

official capacities.

I. Legislative, Factual, and Procedural Background

A. The PAIMI Act and IPAS

Upon finding that “individuals with mental

illness are vulnerable to abuse and serious injury,”

Congress enacted the PAIMI Act in 1986 to “ensure

this appeal.

Y ©

Ja

that the rights of individuals with mental illness are

protected” and to “assist States to establish and

operate a protection and advocacy system for

individuals with mental illness which will... protect

and advocate the rights of such individuals through

activities to ensure the enforcement of the

Constitution and Federal and State statutes... .” 42

U.S.C. §§ 10801(a)(1), (b)(1), (b)(2)A). The Act

provides funding for a state on the condition that the

state designates a “protection and advocacy system”

to accomplish these goals. 42 U.S.C. § 10803(2)(A).

The Act gives each state a choice. The designated

protection and advocacy system may be either an

independent state agency or a private entity. 42

U.S.C. § 15044(a) (Developmental Disabilities and

Bill of Rights Act), incorporated by reference in 42

U.S.C. § 10802(2). IPAS, an independent state

agency, is Indiana’s designated protection and

advocacy system under the PAIMI Act. Like any

protection and advocacy system, it has the power to

contract with other agencies or individuals to help

provide its services. 42 U.S.C. § 10804.

The PAIMI Act gives a designated protection and

advocacy system lke IPAS the authority to

investigate incidents of abuse and neglect of

individuals with mental illness and to pursue

administrative, legal, and other remedies on behalf

of those individuals. 42 U.S.C. § 10805(a)(1). To

achieve those objectives, the Act requires that IPAS

have a right to access certain patient records.

Specifically, the Act requires that IPAS “shall...

have access to all records of any individual who is a

client of the system if such individual... has

authorized the system to have such access.” 42

Aa

U.S.C. § 10805(a)(4)(A). The Act also requires that

IPAS “shall... have access to all records of .. . any

individual (including an individual who has died or

whose whereabouts are unknown) (i) who .... is

unable to authorize the system to have such access;

(i) who does not have a legal guardian... ; and (ij)

with respect to whom... there is probable cause to

believe that such individual has been subject. to

abuse or neglect.” 42 U.S.C. § 10805(a)(4)(B).

Whether a state designates an independent state

agency or a private entity as its protection and

advocacy system, the system such as IPAS must

have, under federal law:

the authority to. . . pursue administrative, legal,

and other appropriate remedies to ensure the

protection of individuals with mental illness who

are receiving care or treatment in the State; and

pursue admunistrative, legal, and other

appropriate remedies on behalf of an individual

who ... was [an] individual with [a] mental

illness; and... is a resident of the State, but only

with respect to matters which occur within 90

days after the date of discharge of such individual

from a facility providing care or treatment.

42 U.S.C. §§ 10805(a)(1)(B), (C). The Act further

requires:

Prior to instituting any legal action in a Federal

or State court on behalf of a[n] individual with

mental illness, an eligible system, or a State

agency or nonprofit organization which entered

into a contract with an eligible system under

Sa

section 10804(a) of this title, shall exhaust in a

timely manner all administrative remedies where

appropriate. If, in pursuing admuiunistrative

remedies, the system, agency, or organization

determines that any matter with respect to such

individual will not be resolved within a reasonable

time, the system, agency, or organization may

pursue alternative remedies, including’ the

initiation of a legal action.

42 U.S.C. § 10807(a).

The PAIMI Act requires that the designated

system, whether it is a public or private entity,

“shall be independent of any agency which provides

treatment or services (other than advocacy services)

to individuals with mental illness.” 42 U.S.C. §

10805(a)(2). In states like Indiana, in which the

governing authority of the agency is a multi-member

governing board, the governor may appoint no more

than one-third of the board members. 42 U.S.C. §§

10802(2), 15044(a)(2). Consistent with that

requirement, IPAS is governed by a board of thirteen

persons. Four are appointed by the governor. The

other nine are appointed by majority vote of the

governing board itself. Ind. Code § 12-28-1-6(a). No

board member may be an official or employee of any

state agency that delivers services to the population

served by IPAS. Ind. Code § 12-28-1-6(b). Having

designated JPAS as the state’s protection and

advocacy system, Indiana is_ prohibited from

redesignating a different agency or entity without

“good cause.” 42 U.S.C. § 15043(a)(4)(A).

B. Patients 1 and 2 and the Record Requests

6a

Larue Carter Memorial Hospital is a psychiatric

hospital operated by the Division of Mental] Health

and Addiction of the Indiana Family and Social

Services Administration. A person identified in the

record as Patient 1 was admitted to Larue Carter on

June 21, 2006. Patient 1 was transferred to Wishard

Memorial Hospital six days later and died at

Wishard on July 31st. In response to Patient 1’s

death, a Mortality Review Committee convened at

Larue Carter on August llth. The Committee’s

report was completed on August 28th. In the

meantime, a Larue Carter staff member provided

information to IPAS that led it to open an abuse and

neglect investigation concerning Patient 1’s care

while at Larue Carter. An IPAS advocate reviewed

Patient 1’s chart at Larue Carter and then requested

Patient 1’s “complete chart” on August 30th. The

hospital denied IPAS’s request, explaining that

Patient 1’s parents had not signed a release. On

September 13th, IPAS also requested a copy of

reports prepared by the Mortality Review

Committee. The hospital also denied this request.?

Another person identified as Patient 2 was

admitted to Larue Carter in November 2003. On

August 26, 2006, Patient 2 left Larue Carter’s

grounds without approved leave. He was

apprehended by a state police officer with assistance

from hospital staff. Upon his return to the hospital,

Patient 2 filed a grievance with the hospital alleging

that three hospital employees and two police officers

~ The parties have advised the court that the defendants now

have released Patient 1’s medical records to LPAS but not the

peer review records.

we

fa

had battered, assaulted, and attempted to murder

him. Patient 2 also filed a complaint with IPAS and

signed a release authorizzng IPAS to have access to

his records. IPAS requested a copy of the hospital’s

investigation into Patient 2’s grievance. The hospital

provided a summary of its “investigation results” but

did not provide any of the underlying records. IPAS

also requested the “incident report” generated by

Larue Carter in response to the events of August

26th. The hospital also denied this request.$

The PAIMI Act defines “records” broadly to

include “reports prepared by any staff of a facility

rendering care and treatment or reports prepared by

an agency charged with investigating reports of

incidents of abuse, neglect, and injury occurring at

such facility that describe incidents of abuse,

neglect, and injury occurring at such facility and the

steps taken to investigate such incidents, and

discharge planning records.” 42 U.S.C. §

LO806(b)(3)(A). In 1997, the United States

Department of Health & Human Services issued a

set of regulations for the PAIMI Act. The regulations

define the word “records” broadly, 42 C.F.R. §§

51.41(c)(1)-(4), but note “that nothing in this section

is intended to preempt State law protecting records

produced by medical care evaluation or peer review

3 The defendants contend on appeal that no investigative

reports were actually created with respect to Patient 2 and that

they have provided IPAS with access to all incident reports.

IPAS is not yet convinced that it has all the documents about

Patient 2 that it seeks, and that is a disputed issue better

addressed to the district court.

8a

committees.” 42 C.F.R. § 51.41(c)(4).4 The PAIMI Act

aside, Indiana state law regulates the disclosure of

“communications, proceedings, records,

determinations, or deliberations” of a “peer review

committee.” Ind. Code § 34-30-15-1(f)(2).

Procedural History

IPAS sued the State of Indiana, the Family and

Social Services Administration, and three named

state officials in their official capacities. IPAS sought

injunctive and declaratory relief under the PAIMI

Act, requesting a declaration that the defendants

violated IPAS’s right to access the requested records

and a permanent injunction against restricting

IPAS’s reasonable access to “records” as defined by

the PAIMI Act. IPAS did not seek monetary

damages. Each side moved for summary judgment.

IPAS argued that the defendants were violating the

PAIMI Act by denying it access to the records it

requested. The defendants asserted that the PAIMI

Act did not require them to give IPAS access because

IPAS did not have the consent of Patient 1’s parents

and because the peer review and root cause

4 The Department of Health and Human Services has issued

new proposed regulations under the Developmental Disabilities

Act that would remove this exception for peer review records,

see 73 Fed. Reg. 19708, 19731-32 (April 10, 2008), but the

department. has not. taken final action

> A “peer review committee” under Indiana law is a committee

that is organized by a hospital or other medical facility having

the responsibility of evaluating the qualifications of a

professional health care provider, the patient care rendered by

a professional health care provider, or the merits of a complaint

brought against a professional health care provider. Ind. Code §

34-6-2-99(a).

9a

documents were not covered by the PAIMI Act. The

court granted IPAS’s motion and entered judgment

for IPAS.

On appeal, the defendants argued only that the

district court erred on the merits of the “records”

issue. A panel of this court reversed. Indiana

Protection and Advocacy Services v. Indiana Family

and Social Services Admin., 573 F.3d 548, 550-53

(7th Cir. 2009). The panel did not reach the merits

but ordered supplemental briefing and then found:

(a) the PAIMI Act did not give IPAS an express right

of action; (b) IPAS could not sue under 42 U.S.C. §

1983 because IPAS is a state agency and thus is not

a “person” for purposes of that section; and (c) the

Eleventh Amendment barred IPAS’s suit, and the Ex

parte Young doctrine would not provide an exception.

The panel viewed IPAS’s lawsuit as a suit by one

arm of the state suing another, and viewed the

remedy IPAS sought as a remedy for a concrete

injury rather than an injunction for prospective

relief. Jd. at 553. We granted IPAS’s petition for

rehearing en banc. The United States has appeared

as amicus curiae in support of IPAS.

Il. The Eleventh Amendment and Ex parte Young

The Eleventh Amendment to the Constitution

provides that “the Judicial power of the United

States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one

of the United States by Citizens of another State, or

by Citizens or Subjects of any Foreign State.”

Notwithstanding the phrase “Citizens of another

State,” the Supreme Court “has consistently held

10a

that an unconsenting State is immune from suits

brought in federal courts by her own citizens as well

as by citizens of another State.” Adeiman v. Jordan,

415 U.S. 651, 662-63 (1974) (internal citations

omitted). If properly raised, the amendment bars

actions in federal court against a _ state, state

agencies, or state officials acting in their official

capacities. Jd. at 663

The defendants engaged in two rounds of

litigation of this case—one before the district court,

and one before this court—without raising the

Eleventh Amendment as a defense to IPAS’s action.

After the panel raised the issue, defendants

embraced it. The Eleventh Amendment is unusual in

that it does not strictly involve subject matter

jurisdiction and is thus waivable, see Lapides uv.

Board of Regents of Univ. System of Georgia, 535

U.S. 613, 620 (2002), but a court may raise the issue

itself, Higgins v. Mississippi, 217 F.3d 951, 954 (7th

Cir. 2000) (affirming dismissal on district court’s

own initiative); see generally Reed Elsevier, Inc. v.

Muchnick, 130 8. Ct. 1237 (2010) (reminding lower

federal courts to preserve distinction between

genuine jurisdictional restrictions and other claim-

processing requirements or elements of claims). If

the panel had not chosen to raise the Eleventh

Amendment issue, this non-jurisdictional defense

would have been forfeited. See Wisconsin Dept of

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

Because the panel opened the door, however, we

address the defense.

There are three principal types of exceptions to

the Eleventh Amendment's’ bar. See MCI

lla

Telecommunications Corp. v. Illinois Bell Telephone

Co., 222 F.3d 323, 337 (7th Cir. 2000). First, a state

may waive immunity by consenting to suit in federal]

court. Second, Congress may abrogate the state’s

immunity through a valid exercise of its powers

under recognized constitutional authority, such as by

later constitutional amendments. Third, under Ex

parte Young, 209 U.S. 123, 159-60 (1908), a plaintiff

may file “suit[ ] against state officials seeking

prospective equitable relief for ongoing violations of

federal law... .” Marie O. v. Edgar, 131 F.3d 610,

615 (7th Cir. 1997). Ex parte Young began with a

suit against state officials to enjoin enforcement of a

state railroad commission’s order requiring rate

reductions. Plaintiffs contended that the _ rate

reductions would violate the United States

Constitution. See 209 U.S. at 129-30. The Supreme

Court held that the Eleventh Amendment did not

bar the plaintiffs suit, explaining that when a state

official violates the federal Constitution, that official

acts outside the scope of his or her authority and is

no longer entitled to the state’s immunity from suit

Id. at 155-56. Hx parte Young applies to suits to

enforce federal statutes as well as the federal

Constitution. See Ray v. Atlantic Richfield Co., 435

U.S. 151, 156 n.6 (1978) (holding that Ex parte

Young allowed suit in federal court against named

state official for violating federal statute); see also

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14

(1983) (kx parte Young authorized suit against state

officials challenging state statute as preempted by

federal statute); MCI Telecommunications, 222 F.3d

at 345 (applying £x parte Young to suit against state

officials under federal Telecommunications Act).

l2a

IPAS argues that Hx parte Young authorizes this

suit against state officials seeking prospective relief

We agrce.

A court applying the kx parte Young doctrine now

“need only conduct a ‘straightforward inquiry’ into

whether [the] complaint alleges an ongoing violation

of federal law and seeks relief properly characterized

as prospective.” Verizon Maryland Inc. v. Public

Service Comm'n of Maryland, 535 U.S. 635, 645

(2002), quoting Idaho v. Coeur d‘Alene Tribe of

Idaho, 521 U.S. 261, 296 (1997) (O'Connor, J..

concurring in part and concurring in judgment)

That inquiry is_ satisfied here. IPAS named

individual state officials as defendants in its lawsuit

It alleges that those officials have obstructed its

access to records under the PAIMI Act, an ongoing

violation of federal law. The rehef IPAS seeks

reasonable access to the records—is_ also

prospective.

6 The defendants suggest that Ex parte Young does not apply

because the Supreme Court has applicd the Eleventh

Amendment to plaintiffs’ efforts to obtain federal court orders

to state governments to turn over property to plaintiffs. See

generally Florida Dep't of Stale v. Treasure Salvors, Inc., 458

U.S. 670 (1982). Treasure Salvors and other historic shipwreck

cases such as California v. Deep Sea Research, Inc., 523 U.S

491 (1998), and Zych v. Wrecked Vessel Believed to be the Lady

Elgin, 960 F.2d 665 (7th Cur. 1992), populate a colorful corner

of Eleventh Amendment law, but they provide no relevant

guidance here. [PAS does not seek to seize possession of the

state records. IPAS secks only access to the records. Permitting

IPAS to inspect and copy the records would not infringe on the

defendants’ otherwise rightful ownership and possession of the

records. See Barnes v. Black, 544 F.3d 807, 812 (7th Cir. 2008)

We cannot fault the district court for

addressing a defense that the defendants chose

to raise. Once the Eleventh Amendment issue wa;

on the table, however, IPAS conceded that it may not

sue either the State of Indiana or any of its agencies

We modify the judgment to remove the State and the

amily and Social Services Administration as named

defendants, but the official capacity claims against

the named state officials survive under Ex part

Young

To avoid kx parte Young, defendants offer two

related arguments based on the nature of th

plaintiff. First, defendants argue that because IPAS

is technicully a state avency, its federal lawsuit

special sort of infringement of the tate:

sovereignty Relying on Coeur dAlene = Trib

defendants assert that “to permit Indiana to sue

Indiana in federal court would plainly upset th

State's core sovereignty interests.’ Second

defendants argue that this lawsuit is merely an

“intramural” suit between two state agencies. Def

Rehearing Br. 11-13

The threshold problem with these arguments |

that the Kx parte Young doctrine focuses on the

identity of the defendant and the nature of the rehef

ought, not on the nature or identity of the plaintif!

In any event, Coeur d‘Alene Tribe does not support

defendants here. In that case, a federally-recognized

Indian tmbe sought a declaratory judgment in

(stating that federal court order to state

produce documents ior mn pection ao not

overelgnty or violate Jeventh Amendment)

Supre

ndme nt

and revulator puthorits

Wate! lon deemed t

lSa

Regarding defendants’ second argument to avoid

Ex parte Young, we have written in a different

context that “federal courts should not get involved

unnecessarily in what may be intramural struggles

of state government even if invited to do so by one of

the contenders.” Mazanec v. North Judson-San

Pierre School Corp., 763 F.2d 845, 848 (7th Cir.

1985). And it is difficult to see how a case or

controversy exists within the meaning of Article III

of the Constitution if, for example, one state agency

sues another and the heads of both agencies serve at

the pleasure of the governor. It would be as if the

governor were suing himself.

But a closer look at the details of this case shows

that the defendants’ effort to portray this case as an

“intramural” dispute is not persuasive. While the

defendant Secretary of the Family and Social

Services Administration serves at the pleasure of the

rovernor, plaintiff IPAS is not a traditional state

agency. It is independent of the governor to a degree

that is unusual and perhaps unique among Indiana

agencies. In the PAIMI Act, Congress took care to

insulate protection and advocacy services, including

those that are state agencies, from state government

control. As noted, the governor may not appoint

more than one third of the IPAS governing board. 42

U.S.C. § 10802(2); Ind. Code § 12-28-1-6(a)(1). The

federal yovernment funds IPAS directly under the

PAIMI Act. IPAS is exempt from personnel

measures potentially affecting other state agencies,

such as hiring freezes, reductions in force,

prohibitions on travel, or any other policies that

might interfere with IPAS’s ability to carry out its

functions. 42 U.S.C. § 15043(a)(2)(K). As a matter of

16a

federal law, IPAS has authority, independent of the

state administration, to “pursue administrative,

legal, and other appropriate remedies to ensure the

protection of individuals with mental illness who are

receiving care or treatment in the State.” 42 U.S.C. §

10805(a)(1)(B). Congress thus has provided as a

matter of federal law that IPAS is insulated from the

type of state control over policy, budget, personnel,

and governance that could justify treating this as an

“intramural” dispute. In a sense, given its unusual

independence from state government, the special

federal responsibilities it carries out, and the direct

federal funding it receives, IPAS is closer to being a

specialized agent of the federal government for these

purposes than it is to being an ordinary state agency.

Indiana’s use of IPAS’s status as an independent

state agency to support the State’s late reliance on

the Eleventh Amendment to block this lawsuit also

seems, frankly, unfair. Congress gave each state the

choice to establish a protection and advocacy system

as either an independent state agency or a private

not-for-profit entity. Indiana made the choice to set

up IPAS as an independent state agency. If we gave

that choice any weight in the Eleventh Amendment

inquiry, we would be permitting Indiana to use its

own choice to set up an independent state agency as

a means to shield its state hospitals and institutions

from the very investigatory and oversight powers

that Congress funded to protect some of the state’s

most vulnerable citizens. That result would be

strange indeed. The combination, moreover, of the

state’s choice to set up an independent agency and

its failure to raise the Eleventh Amendment issue

itself also makes it difficult to see how this lawsuit

17a

poses a serious threat to any special sovereignty

interest of the state.7

The defendants suggest that IPAS is free to bring

its lawsuit against the state defendants in state

court. However, they point to no state law that

would provide an adequate remedy, and if the

Eleventh Amendment prohibited IPAS from suing

the defendants under the PAIMI Act in federal court,

it would also prohibit IPAS from suing the

defendants under the PAIMI Act in state court. See

Alden v. Maine, 527 U.S. 706, 754 (1999) (holding

that Congress cannot abrogate the states’ immunity

from private suit in their own courts).®

* Tt is abundantly clear that Congress was spurred to action

based on the conditions within state-operated facilities. The

PAIMI Act of 1986 resulted from a nine-month Congressional]

staff investigation that detailed appalling conditions in many

state-operated mental health institutions. See S. Rep. 99-109 at

1 (1985), and S. Hrg. 99-50, Pt. 2 (1985) (staff report).

8 After the en banc argument, defendants submitted a letter

stating that they would have no immunity from a mandamus

action in state court. Even if that were enough to avoid the

straightforward application of Ex parte Young here, and it is

not, the state court option would also be inadequate. The

applicable law would be federal law—the right of access to

records granted in 42 U.S.C. § 10806—so the Alden v. Maine

problem would remain. Indiana has not enacted legislation

granting such rights under state law. Moreover, Congress

clearly intended the protection and advocacy systems—all of

them—to be able to respond quickly to threats of imminent

harm to their constituents. See, e.g., 42 U.S.C. § 10805(a)(4)(C)

(permitting systems to access records of individuals with

mental illness who have legal guardians or representatives but

whose health or safety is in serious and immediate jeopardy if

the individual’s guardian or representative has refused to act):

42 U.S.C. § 10807(b) (providing exception to the system’s

lSa

In short, [PAS’s lawsuit is a classic application of

Ex parte Young. It asks a federal court to order state

officials to modify their conduct to comply with

federal law. Plaintiffs status as an unusually

independent state agency docs not change the Young

analysis. The Eleventh Amendment does not bar

IPAS’s request for declaratory and injunctive relief

against the named state officials.

Ill. Right of Action Under the PAIMI Act

The defendants next argue that the PAIMI Act

does not itself provide IPAS with a cause of action to

seek equitable relief. Defendants contend that

protection and advocacy systems can sue only under

42 U.S.C. § 1983. But, citing Will v. Michigan Dep't

of State Police, 491 U.S. 58, 65-66 (1989) (holding

that a state agency was not a “person” that could be

-sued as a defendant under § 1983), defendants’ catch

is that IPAS is a state agency and thus is not a

obligation to pursue administrative remedies prior to filing suit

where legal action is instituted to prevent or eliminate

imminent harm to an individual with mental illness). As

counsel for IPAS put it at oral argument, there is no such thing

as a “preliminary mandamus’ action.

° The Fourth Circuit reached a different conclusion in Virginia

v. Reinhard, 568 F.3d 110, 118-24 (4th Cir. 2009) (holding that

protection and advocacy state agency’s suit seeking records

under the PAIMI Act was barred by Eleventh Amendment; Fx

parte Young not applicable to suit where plaintiff was state

agency), petition for cert. filed, 78 U.S.L.W. 3416 (US. Jan. 19,

2010) (No. 09-529). For the reasons explained in the text, we

respectfully disagree. We also note that the Virginia defendants

had argued in an earlier case that the state protection and

advocacy system had obtained relief under Ex parte Young. See

Virginia Office for Protection and Advocacy v. Reinhard, 405

F.3d 185, 187-88 (4th Cir. 2005).

19a

“person” under section 1983. See Virginia Office for

Protection and Advocacy v. Reinhard, 405 F.3d 185,

189-90 (4th Cir. 2005) (state agency could not sue

under section 1983 to enforce rights under PAIMI

Act). If that’s true, then IPAS and other state-agency

protection and advocacy systems cannot obtain relief

in federal court by any avenue. According to

defendants, the only relief from Indiana’s violations

of the PAIMI Act would be for the _ federal

government to cut off funding for IPAS itself—a

sanction that would serve only to undermine the

PAIMI Act rather than enforce it.

We reject that improbable interpretation of the

Act. We hold that the PAIMI Act itself authorizes

IPAS to bring this suit for injunctive and declaratory

relief.!° To determine whether a cause of action

exists, “the judicial task is to interpret the statute

Congress has passed to determine whether it

displays an intent to create not just a private right

but also a private remedy.” Alexander v. Sandoval,

532 U.S. 275, 286 (2001). “For a statute to create

such private rights, its text must be ‘phrased in

terms of the _ persons’. benefitted.” Gonzaga

University v. Doe, 536 U.S. 273, 284 (2002), quoting

Cannon v. University of Chicago, 441 U.S. 677, 692,

n.13 (1979). Where a statute “by its terms grants no

private rights to any identifiable class,” the question

whether Congress intended to create a cause of

action “is definitively answered in the negative.”

Gonzaga, 536 U.S. at 283-84, quoting Touche Ross &

10 The parties agree that the PAIMI Act does not provide IPAS

(or other protection and advocacy systems) with a cause of

action for damages.

20a

Co. v. Redington, 442 U.S. 560, 576 (1979). Where

the text and structure of a statute do not provide an

indication that Congress intended to create new

individual rights, there is no basis for a private suit.

Gonzaga, 536 U.S. at 286.

Looking to the PAIMI Act, we find that Congress

expressed its intent to create a legally enforceable

right of access to patient records vested in an

identifiable class—protection and advocacy systems,

including IPAS, which act for the benefit and

protection of mentally ill individuals who may have

difficulty acting for themselves. If and when those

protection and advocacy systems are denied their

right of access, the PAIMI Act shows with sufficient

clarity that the remedy is a suit to enforce the right

of access in federal or state court.

Congress phrased the PAIMI Act in terms that

grant rights to the protection and advocacy system

in each state: “A system established in a State under

section 10803 of this title to protect and advocate the

rights of individuals with mental illness shall— ...

(3) have access to facilities in the State providing

care or treatment; (4) in accordance with section

10806 of this title, have access to all records of”

several categories of patients. See 42 U.S.C. §

10805(a). This is not only a condition for funding.

The Act further provides that the system shall have

the power to bring legal actions to ensure the

protection of its constituents and to ltigate on behalf

of its constituents. A system designated under the

Act “shall have the authority to pursue

administrative, legal, and other appropriate

remedies to ensure the protection of individuals with

2la

mental illness who are receivirg care or treatment in

the State” and to “pursue administrative, legal, and

other remedies” on behalf of individuals with mental

illness who are receiving or have received care or

treatment from a facility up to 90 days after their

discharge from care. 42 U.S.C. §§ 10805(a)(1)(B),

(a)(1)(C). A suit for access to patient records falls

squarely within the statutory authority to pursue

“legal and other appropriate remedies to ensure the

protection of individuals with mental illness. .. .”

As we read the statute, these powers are

conferred upon a protection and advocacy system

like IPAS as a matter of federal law by virtue of its

designation by a state. Contrary to the dissent’s

suggestion, nothing in the PAIMI Act requires the

state to adopt legislation or regulations granting

such powers as a matter of state law.

Another section of the PAIMI Act offers further

evidence that Congress intended that protection and

advocacy systems have the ability to sue under the

Act. The Act requires that “prior to instituting any

legal action tn a Federal or State court on behalf of

a{n] individual with mental illness, an eligible

system ... shall exhaust in a timely manner all

administrative remedies where appropriate. If .. .

the system ... determines that any matter with

respect to such individual will not be resolved within

a reasonable time, the system .. . may pursue

alternative remedies, including the initiation of a

legal action.” 42 U.S.C. § 10807(a) (emphasis added).

The provision would have little purpose if protection

oer

hw ee

and advocacy systems like IPAS were not

empowered to sue to enforce the PAIMI Act.}}

The defendants argue that the PAIMI Act is an

exercise of Congress’s spending power to condition

receipt of specified federal funds on compliance with

specified terms. The defendants contend that, like

the spending power statutes at issue in Sandoval

and Gonzaga, the PAIMI Act does not include an

express provision for a private right of action and

may be enforced only by a federal executive action to

terminate a non-compliant state’s funding. The

argument reads Sandoval and Gonzaga too broadly.

Both eschew sweeping rules and instead teach the

need for close attention to the specific language and

structure of the statute at issue. Both cases are

easily distinguishable based on the critical features

of the Supreme Court’s reasoning.

The plaintiff in Sandoval sued to enforce

disparate-impact regulations promulgated by the

11 The dissent criticizes our reliance on section 10807 as

turning a precondition to suit into an authorization to suc. Post

at 57. Our point is simply that when Congress established the

precondition to suit, it obviously assumed that the suit could be

brought in the first place. We also see nothing in the statutory

phrase “any legal action in a Federal or State court on behalf of

an individual with mental illness” that would exclude this or

similar suits for access to records of individuals with mental

illness. If the dissent is correct that 42 U.S.C. § 1983 offers a

cause of action—but only for private entities—section 10807

might be more useful. But there is no indication in the statute

or elsewhere that Congress intended that a state’s choice

between the two types of protection and advocacy systems

would have such dramatic consequences for their enforcement

powers.

23a

Department of Justice under Title VI of the Civil

Rights Act of 1964.!2 The particular regulation under

review forbade funding recipients from “utiliz[ing]

criteria or methods of administration which have the

effect of subjecting individuals to discrimination

because of their race, color, or national origin.”

Alabama amended its Constitution to declare

English “the official language of the state” and began

administering state driver’s license examinations

only in English. Sandoval sued for an injunction

against the director of the state agency. The

Supreme Court recognized that Title VI itself

included an implied private right of action for both

injunctive relief and damages for violations of the

statute itself, but the Court found that the same

authority did not extend to violations of the

disparate-impact regulation. Sandoval, 532 U.S. at

279-80, 293. The Court pointed out that the

regulation was phrased not in terms of creating

rights but in terms of instructions to federal funding

agencies. Id. at 288-89. The Court explained that

“statutes that focus on the person regulated rather

than the individuals protected create ‘no implication

of an intent to confer rights on a particular class of

persons.” Sandoval, 5382 U.S. at 289, quoting

California v. Sierra Club, 451 U.S. 287, 294 (1981).

The disparate-impact regulation’s focus was “twice

removed from the individuals who will ultimately

benefit from Title VI’s protection” because it was ‘

‘phrased as a directive to federal agencies engaged in

i2 Title VI provides that no person shall “on the ground of race,

color, or national origin, be excluded from participation ‘in, be

denied the benefits of, or be subjected to discrimination under

any program or activity” covered by Title VI. 42 U.S.C. § 2000d.

24a

the distribution of public funds.” 532 U.S. at 289,

quoting Universities Research Ass'n v. Coutu, 450

U.S. 754, 772 (1981) (analyzing tke Davis-Bacon

Act).

A year after Sandoval, the Court in Gonzaga

University v. Doe, 536 U.S. 273 (2002), held that the

Family Educational Rights and Privacy Act of 1974

did not provide a private right of action for damages

and created no rights enforceable under 42 U.S.C. §

1983. The Court therefore reversed a jury verdict for

damages in favor of an individual and against a

recipient of federal funds. FERPA, like section 602 of

Title VI, was enacted under Congress’s spending

power. It directs the Secretary of Education to

withhold federal funds from any _ educational

institution that fails to comply with certain

conditions. One condition is that the institution not

release a student’s educational records without

written consent. See 20 U.S.C. § 1232g(b)(1). A

university official discussed allegations of sexual

misconduct against Doe and thus prevented him

from being certified as a teacher. Doe sued, arguing

that section 1232g(b)(1) of FERPA granted him a

right enforceable under section 1983 to sue for

damages caused by the unauthorized release of

personal information. The Court disagreed, finding

that section 1983 provided a remedy for the

deprivation only of “rights,” not of vague benefits or

privileges, and that Congress had not granted any

private rights to any class of individuals in FERPA.

Gonzaga, 536 U.S. at 283-84. FERPA’s non-

disclosure provisions lacked “rights-creating”

language and spoke only to the Secretary of

Education, directing that “no funds shall be made

25a

available” to an institution with a prohibited policy

or practice. Jd. at 287, quoting 20 U.S.C. §

1232g(b)(1). The focus of the statute, again, was “two

steps removed from the interests of individual

students” and did not confer individual rights. Jd.

Our dissenting colleague contends that Brunner

v. Ohio Republican Party, U.S. .__, 129 8. Ct. 5

(2008), conflicts with our reasoning here. In

Brunner, the Court issued a_ one-paragraph

emergency opinion summarily vacating a temporary

restraining order that had directed the Ohio

Secretary of State to update Ohio’s voter database to

comply with section 303 of the Help America Vote

Act of 2002 a few weeks before the national election.

Citing Gonzaga and Sandoval, the Supreme Court

wrote that the plaintiffs were “not sufficiently likely

to prevail on the question whether Congress has

authorized ... the issuance of a TRO.” Brunner, 129

S. Ct. at 6.

Close examination of the statute at issue and the

opinions from the Sixth Circuit’s en banc review

illuminates the Supreme Court’s terse conclusion

and shows that our conclusion here is consistent

with the case. The statute in Brunner provided:

The chief State election official and the official

responsible for the State motor vehicle authority

of a State shall enter into an agreement to match

information in the database of the statewide voter

registration system with information in_ the

database of the motor vehicle authority to the

extent required to enable each such official to

26a

verify the accuracy of the information provided on

applications for voter registration.

42 U.S.C. § 15483(a)(5)(B)G). The state’s chief

election official had allegedly stopped sending data

about potential “mismatches” between motor vehicle

and voter registration lists some weeks before the

national election. A political party and a candidate

sued to require the state election official to resume

sending such data, which could have provided the

basis for widespread election-day challenges to voter

eligibility. Within the space of a mere two wecks, a

district court granted a temporary restraining order,

a panel of the Sixth Circuit vacated the T'RO, the

Sixth Circuit en banc reinstated the TRO, and the

Supreme Court finally vacated the TRO.

On the issue of the private right of action, the

Sixth Circuit majority considered Gonzaga and its

instructions that, in identifying statutory rights

enforceable under section 1983, “it is rights, not the

broader or vagucr ‘benefits’ or ‘interests,’ that may

be enforced” under § 1983, and that “such rights

must be ‘unambiguously conferred ... to support a

cause of action brought under § 1983.” Ohio

Republican Party v. Brunner, 544 F.8d 711, 719-20

(6th Cir. 2008) (en banc) (emphasis in original),

quoting Gonzaga, 536 U.S. at 283. The Sixth Circuit

majority concluded that whether the HAVA

provision requiring datasharing agreements between

election officials and motor vehicle officials created

enforceable rights was a difficult and close question

that did not undermine the district court’s ‘TRO. Jd.

at 720-21. Judge Mboore’s dissenting opinion

explained in detail why the data-sharing provision of

2/a

HAVA did not create rights enforceable by

individuals. 544 F.3d at 726-30. As in Gonzaga and

Sandoval, the statute did not contain rights-creating

language. Instead, it authorized the United States

government to sue to enforce the mandates directed

at state officials.

Sandoval, Gonzaga, and Brunner do not stand for

a broad rule that spending power statutes can never

be enforced by private actions. They show that

courts must examine each statutory scheme closely.

Close examination of the PAIMI Act shows that this

lawsuit to enforce IPAS’s right of access to records is

exactly what Congress intended to authorize. Unlike

the statutes in Sandoval and Brunner and the

regulation in Gonzaga, the PAIMI Act's’ key

language is not directed at an administrator of

federal funds or even at the State of Indiana as a

funding recipient. Instead, the Act directly grants

rights and powers to the designated protection and

advocacy system that is the plaintiff here. As the

designee, IPAS “shall .. . have access to all records,”

42 U.S.C. § 10805(a)(4), and “shall have the

authority to pursue administrative, legal, and other

appropriate remedies.” 42 U.S.C. § 10805(a)(1)(B).

These rights are not one or two steps removed from

IPAS—they are granted directly to IPAS itself. The

PAIMI Act’s key requirements are not directed at

the states as recipients of the funds. (The federal

allotments go directly to the protection and advocacy

systems, not to the states. See 42 U.S.C. § 10803.) Of

states, the Act requires only that they designate

their chosen protection and advocacy systems and

give them the required independence. The Act does

not require states to take additional steps to

28a

empower the designated protection and advocacy

systems, and Indiana has not done so. See generally

Ind. Code § 12-28-1-1 et seq. Under the language of

the federal statute, such efforts would be redundant

Congress expressed with sufficient clarity its

intent to grant immediate and legally enforceable

rights to the states’ designated protection and

advocacy systems. Once Indiana designated IPAS,

Congress vested IPAS with the right to access the

necessary records and the right to sue directly under

the PAIMI Act if that access is denied.

The PAIMI Act also lacks separate

administrative enforcement mechanisms comparable

to those that were important factors in Sandoval,

Gonzaga, and Brunner. Section 602 of Title VI,

scrutinized in Sandoval, empowered the Department

of Justice to enforce its regulations by terminating

funding to “the particular program, or part thereof,”

bul only after notifying the recipient department or

agency of its failure to comply and “filling|] with the

committees of the House and Senate having

legislative jurisdiction over the program or activity

involved a full written report of the circumstances

and the grounds for such action.” Sandoval, 532 U.S.

at 289-90, quoting 42 U.S.C. § 2000d-1. The Court

found that section 602 expressly provided “one

method of enforcing a substantive rule suggestling]

that Congress intended to preclude others.”

Sandoval, 532 U.S. at 290.

Similarly, FERPA, at issue in Gonzaga, directs

the Secretary of Education to establish an office and

review board for “investigating, processing,

29a

23

reviewing, and adjudicating violations of [FERPA]

20 U.S.C. § 1232g(g). Students and parents who

suspect a violation can file written complaints with

the board, which can initiate investigations. See 34

C.F.R. §§ 99.63-99.67. If the Secretary determines

that a recipient institution is failing to comply with

FERPA and that compliance cannot be secured

voluntarily, the statute allows the Secretary to

terminate funding to the institution. 20 U.S.C. §§

1234c(a), 1232g(f). The Gonzaga Court found that

Congress's decision to provide a mechanism to

enforce FERPA buttressed its conclusion that the

statute did not confer individual rights. Gonzaga,

536 U.S. at 289-90.

And as Judge Moore explained in her dissent in

Brunner, the Help America Vote Act, too, specified

that “the Attorney General may bring a civil action

against any State or jurisdiction in an appropriate

United States District Court for such declaratory

and injunctive relief ...as may be necessary to carry

out the . . . requirements under [sections 301, 302,

and 303].” 42 U.S.C. § 15511; see 544 F.3d at 729-30.

The statute also required states to establish detailed

“State-based administrative complaint procedures”

to resolve disputes under the statute. See 42 U.S.C. §

15512. That statutory provision for administrative

remedies further likens the statute in Brunner to the

statutes under review in Sandoval and Gonzaga and

distinguishes it further from the PAIMI Act, which

30a

has no comparable provisions for administrative or

executive enforcement against the states.!5

More fundamentally, under the PAIMI Act, the

remedy of a funding cut-off for violations of the Act

would be perversely counterproductive. As_ the

findings set forth in 42 U.S.C. § 10801 show,

Congress wanted to establish a protection and

advocacy system that would protect and advocate for

the rights of individuals with mental illness and

investigate incidents of abuse and neglect of those

individuals. See 42 U.S.C. § 10801(b). Responding to

a state’s violation of the Act by cutting off funding

for that very system would undermine the purpose of

13 Although the defendants did not make this point in their

briefs, the dissent observes that the PAIMI Act has an

administrative enforcement mechanism under 42 C.F.R. §

51.10. That regulation authorizes suspension or termination of

grant payments, among other actions, based on a protection

and advocacy system’s failure to comply with the Act. The

problem for the dissent is that the regulation provides for

remedies only against a protection and advocacy system, if for

example it fails to live up to its obligations to submit annual

reports or other documentation in response to review and

monitoring by the federal government. Such remedial actions

could lead to suspension or termination of funding to the

system. See id., incorporating 45 C.F.R. Part 74, 42 C.F.R. Part

50. (Another administrative mechanism establishes a detailed

procedure a state must follow to designate a new protection and

advocacy system. 45 C.F.R. § 1386.20.) None of these

administrative enforcement mechanisms offer any relief at all

for IPAS or any other protection and advocacy system if a

recalcitrant state violates its obligations, such as the obligation

to provide access to patient records. Unlike the situations in

Sandoval, Gonzaga, and Brunner, the only available remedy for

the violations alleged by IPAS is a lawsuit to enforce its rights

under the PAIMI Act.

3la

the entire Act. It is highly unlikely that Congress

intended for such a funding cut-off to be the response

to such violations by a state.

IPAS has argued that 42 U.S.C. § 1983 provides

an alternative basis for its suit and that its director

could become the plaintiff (attempting to avoid the

state agency problem discussed above). Section 1983

fits awkwardly with the PAIMI Act because a

protection and advocacy system has rights against

both public and private care providers. The latter

would not act under color of state law and could not

be reached under section 1983. We agree with the

position advocated by the United States as amicus

curiae. Because the PAIMI Act itself provides a

cause of action for equitable relief, we decline to

address IPAS’s ability to pursue relief under 42

U.S.C. § 1983.

The dissent also contends that our decision runs

afoul of the “clear-statement” principle expressed in

Arlington Central School District Bd. of Educ. v.

Murphy, 548 U.S. 291, 296 (2006), among other

cases. Congress cannot subject the state to suit by

the protection and advocacy system, goes the

argument, without spelling out more clearly in the

statute that such suits are authorized; otherwise it

would be as if one party to a contract tried to sneak

an onerous provision into the deal without the other

party’s knowledge. This argument of unfair surprise

would have more weight if it had been raised by the

state defendants before the district court, or before

the panel, or indeed in any other protection-and-

advocacy lawsuits against state defendants in more

than 20 years of experience under the PAIMI Act.

32a

Instead, it is the argument itself that is the late

surprise.

State hospitals and institutions were the primary

concern of the PAIMI Act, see note 6, above, and for

more than 20 years under the PAIMI Act, we and

other circuits and numerous district courts have

heard similar suits under the PAIMI Act. See, e.g.,

Disability Rights Wisconsin, Inc. v. State of

Wisconsin Dep’t of Public Instruction, 463 F.3d 719,

725 (7th Cir. 2006) (reversing denial of injunction

where private protection and advocacy system

sought records from state agency, without relying on

42 U.S.C. § 1983, and providing history of protection

and advocacy legislation); Protection & Advocacy for

Persons with Disabilities v. Mental Health &

Addiction & Advocacy Serus., 448 F.3d 119 (2d Cir.

2006) (affirming injunction in favor of state agency

to obtain access to patient records)!*4; Missouri

Protection & Advocacy Servs. v. Missourt Dep't of

Mental Health, 447 F.3d 1021 (8th Cir. 2006)

(affirming injunction requiring access to patient

records under 42 U.S.C. § 1983); Center for Legal

Advocacy v. Hammons, 323 F.3d 1262 (10th Cir.

14 The dissent describes the Second Curcuit’s decision in the

Connecticut Protection & Advocacy case as one under section

1983, but then-Judge Sotomayor’s opinion described the case as

one filed “pursuant to 42 U.S.C. § 1983 and PAIMI.” 448 F.3d

at 122. The Connecticut protection and advocacy system is a

state agency much like IPAS. See Conn. Gen. Stat. § 46a-7 et

seq. If the dissent is correct that state agencies cannot sue

under section 1983 or the PAIMI Act, then the Second Circuit’s

decision was erroneous. And if the dissent ts correct, then a

Wisconsin state agency overlooked a winning argument in

Disability Rights Wisconsin, 463 F.3d at 725 (granting relief

directly against state agency).

33a

2003) (reversing denial of injunction); Pennsylvania

Protection & Advocacy, Inc. v. Houstoun, 228 F.3d

423 (3d Cir. 2000) (affirming injunction requiring

access to patient records); see also, e.g., Connecticut

Office of Protection and Advocacy for Persons with

Disabilities v. Hartford Board of Educ., 464 F.3d 229

(2d Cir. 2006) (affirming injunction in favor of state

agency directly under PAIMI Act); Ohio Legal Rights

Service v. Buckeye Ranch, Inc., 365 F. Supp. 2d 877,

883-84 (S.D. Ohio 2005) (granting injunction under

PAIMI Act in favor of state agency protection and

advocacy system against private care-giver); Equip

for Equality, Inc. v. Ingalls Memorial Hosp., 292 F.

Supp. 2d 1086 (N.D. Ill. 2003) (granting injunction

against private care-giver directly under PAIMI Act

and state law); Kentucky Protection and Advocacy

Div. v. Hall, 2001 WL 34792531 (W.D. Ky. Sept. 24,

2001) (granting declaratory relief in favor of state

agency under PAIMI Act against private care-

givers); Wisconsin Coalition for Advocacy, Inc. v.

Czaplewski, 131 F. Supp. 2d 1039, 1047-50 (E.D.

Wis. 2001) (ordering both public and private care-

givers to provide access to records to private

protection and advocacy system under PAIMI Act);

Trautz v. Weisman, 846 F. Supp. 1160, 1162-63

(S.D.N.Y. 1994) (holding that state protection and

advocacy system could seek relief directly under

PAIMI Act against private care-giv>rs).

Although we have not persuaded our dissenting

colleague, we have tried to remain true to our role as

judges rather than legislators, interpreting the

PAIMI Act based on its language, structure, and

purpose rather than enacting a new-and-improved

brand as a matter of judicial preference. As we have

34a

explained, close attention to the language and

structure of the PAIMI Act shows that Congress

made sufficiently clear its intention to authorize

protection and advocacy systems to sue directly

under the PAIMJ Act to enforce their rights to access

to patient records against both public and private

care-givers for the mentally ill. As between our

interpretation and the dissent’s, our interpretation is

more consistent with the language, structure, and

purpose of the PAIMI Act as a whole.

The dissent’s approach, by contrast, interprets

the Act as creating a strange remedial patchwork

full of holes and self-defeating funding cut-offs. In

the dissent’s view, in the 42 states that chose to

designate private entities as their protection and

advocacy systems, the private entities can sue under

section 1983 to obtain records from public care-

givers (those who act under color of state law). But

those same private entities apparently cannot sue to

obtain records from private care-givers because

section 1983 would not apply.!® On the other hand,

in Indiana and the six other states that chose to

designate public agencies as their protection and

advocacy systems, the dissent would hold that the

public agencies cannot sue to obtain records from

state care-givers. Section 1983 does not apply, and

the PAIMI Act does not authorize such a lawsuit. (A

19 We are not entirely certain whether the dissent would

interpret the PAIMI Act as itself authorizing private entities to

sue private care-givers for access to records. The logic of the

dissent’s point that private care-givers are not protected by the

“clear-statement” rule (see post at 58) suggests that this more

limited right to sue private defendants can be inferred directly

from the PAIMI Act.

3Sa

state could choose to enact legislation authorizing

such a suit as a matter of state law, but the PAIMI

Act does not require it to do so.) Yet the dissent also

seems to suggest that IPAS and the other public

agencies might be able to sue private care-givers to

obtain records directly under the PAIMI Act

(because such private care-givers are not protected

by the “clear statement” rule, see post at 58).

Congress would have been free to enact such an

inconsistent and even arbitrary remedial patchwork,

of course (though it would be inconsistent with most

of the cases cited above and many others). Yet the

language of the statute does not give any signal that

Congress intended such an odd result. We will not

readily attribute to Congress the intent to do so

when the more straightforward alternative is

available: recognizing that protection and advocacy

systems have a right to sue directly under the

PAIMI Act for injunctive and declaratory relief to

enforce the right to obtain the records granted by the

Act itself.

IV. “Records” Under the PAIMI Act

Turning to the merits, the defendants argue that

the peer review records IPAS seeks are not “records”

under the PAIMI Act. Defendants rely on the PAIMI

Act’s subsequent legislative history and a

Department of Health and Human _ Services

regulation. In light of the language of the PAIMI Act

itself, however, we join all other circuits that have

addressed the issue and agree with IPAS that peer

review records are “records” under the PAIMI Act.

36a

The Second and Third Circuits reached this

conclusion in opinions authored, coincidentally, by

future Justices Sotomayor and Alito. See Protection

& Advocacy for Persons with Disabilities v. Mental

Health & Addiction & Advocacy Servs., 448 F.3d

119, 128 (2d Cir. 2006) (Sotomayor, J.) (“The plain

language of PAIMI that grants [the P&A system]

access to ‘all records of. . . any individual,’ including

‘reports prepared by any staff of a facility,’

encompasses peer review reports.”); Pennsylvania

Protection & Advocacy, Inc., v. Houstoun, 228 F.3d

423, 428 (3d Cir. 2000) (Alito, J.) (holding that the

Act required access to peer review records and

noting that the PAIMI Act requires that protection

and advocacy systems “be given access to a defined

category of records. . .. The statutory language

cannot reasonably be construed to encompass

identical peer review reports in some states but not

others. If Congress wished to achieve that result, it

needed to enact different statutory language.”). The

Eighth and Tenth Circuits have agreed, as well.

Missouri Protection & Advocacy Servs. v. Missouri

Dep't of Mental Health, 447 F.3d 1021, 1023 (8th Cir.

2006) (refusing to “resort to congressional committee

reports as interpretive devices” and _ rejecting

contrary agency interpretation because the PAIMI

Act’s record access requirement is unambiguous);

Center for Legal Advocacy v. Hammons, 323 F.3d

1262, 1270 (10th Cir. 2008) (after examining the

statutory language and according it a

straightforward interpretation, concluding that

“records” under the PAIMI Act include peer review

and quality assurance records). Enough has been

37a

said already on the subject. We agree with the

treatment of this issue in those cases.

The judgment of the district court is modified to

provide that the declaratory and injunctive relief

runs against only the named state officials in their

official capacities. As modified, the judgment is

affirmed.

POSNER, Circuit Judge. I join Judge Hamilton’s

opinion without reservation, but writ> separately to

emphasize some practical considerations that seem

to me to favor recognition of IPAS’s right to sue to

obtain patient records.

The federal Protection and Advocacy for

Individuals with Mental Illness Act of 1986, 42

U.S.C. §§ 10801 et seq., assigns to “protection and

advocacy agencies such as IPAS (“Indiana

Protection and Advocacy Services,” an Indiana state

agency that is independent of the governor and the

attorney general) a_ whistleblower, ombudsman,

watchdog, advocacy, and “private attorney general”

role. Rather than loading the Department of Health

and Human Services or the Justice Department with

additional enforcement responsibilivies, Congress

told the states in effect: “if you want, we will give

you federal money to help prevent the abuse of

mentally ill persons in your state, but you will have

to agree to designate an agency, either public or

private as you choose, to ‘protect and advocate for’

the rights of such persons, and the agency, which

we'll be paying for, must be given access to certain

patient records without which it cannot perform its

assigned role effectively.”

38a

But what if the hospital that has the records

refuses to grant IPAS access to them? Can IPAS sue

the hospital to get access? (I think we all agree that

if IPAS has a right of action under the federal

statute it makes no difference whether the hospital

is public or private; the disagreement is over the

‘Sf.”) If not—if IPAS is a helpless bystander to the

state’s thumbing its nose at the statute under which

it has received federal money—still the federal

government would not be completely without a

remedy; it could close the money spigot. 42 C.F.R. §

51.10; see also 42 U.S.C. § 10803; cf. 20 U.S.C. §§

1232g(f), 1234c(a), d(a); Gonzaga University v. Doe,

536 U.S. 273, 278- 79 (2002). But that (to change

metaphors) would be cutting off one’s nose to spite

one’s face. The unfortunates in Indiana who are the

intended beneficiaries of the federal program would

be worse off were the program in that state to be

defunded. See Guardians Ass'n v. Civil Service

Commission, 463 U.S. 582, 601-02 (1983) (plurality

opinion); Cannon v. University of Chicago, 441 U.S.

677, 704- 06 and nn. 38-39 (1979); Board of Public

Instruction v. Finch, 414 F.2d 1068, 1075-76 and n.

11 (5th Cir. 1969). Of course the threat to defund

might be enough to bring the state to heel. But that

is not certain. The state and the federal government

would be playing a game of chicken—with Indiana’s

mentally ill citizens the victims of any collision that

might result.

Now it is true and important that statutes are

compromises between competing values and also

between competing interests, and for either reason

or both reasons the remedies for violations of a

statute may be weakened as the bill runs the

39a

legislative gauntlet. Barnhart v. Sigmon Coal Co.,

534 U.S. 438, 445-46, 461 (2002); Rodriguez uv.

United States, 480 U.S. 522, 525-26 (1987) (per

curiam); First Bank v. DJL Properties, LLC, No. 10-

8008, 2010 WL 1050283, at *2 (7th Cir. Mar. 24,

2010); In re Establishment Inspection of Skil Corp.,

846 F.2d 1127, 1133- 34 (7th Cir. 1988). They may

even be weakened to the point of impotence. But the

state does not argue that a legislative compromise

deprived the bill of effective remedies.

Conceivably the federal government could sue the

state hospital, even without express. statutory

authorization, for an injunction requiring the

hospital to give IPAS access to the patient records in

question. The state accepted federal money in

exchange for promises that included giving the

watchdog agency access to patient records. The

state’s acceptance created a contract and the federal

government, u it sought specific performance of the

state’s obligation, would be enforcing a federal

common law contractual right, as recognized in such

cases as Cotton v. United States, 52 U.S. 229 (1850):

Woods v. United States, 724 F.2d 1444, 1449-50 (9th

Cir. 1984), and United States v. Marion County

School District, 625 F.2d 607, 609-11 (5th Cir. 1980).

See also the dissenting opinion in Guardians Ass’n v

Civil Service Commission, supra, 463 U.S. at 630-31,

and the concurring opinion in Bell v. New Jersey, 461

U.S. 773, 794 (1983)—the majority opinion treated

the question whether the federal government had a

common law right to recover funds spent in violation

ry

of the federal grant as open. Jd. at 782 n. 7.

40a

But this route to relief is indirect and even

redundant compared to a suit by IPAS. It would

involve three parties—IPAS, the state, and the

federal government, rather than just IPAS and the

state. It would also be a transparent effort to

circumvent a rule, if there is a rule, that forbids

recognition of IPAS’s right to sue the hospital

because the right is not explicitly stated in the

statute. For if a right of IPAS to sue for the records

can’t be inferred from the statute, neither can a right

of the federal government to do so. Indeed the

interpretive stretch would be greater. The statute

entitles a protection and advocacy agency to “pursue

administrative, legal, and other appropriate

remedies to ensure the protection of individuals with

mental illness who are receiving care or treatment in

the State.” 42 U.S.C. § 10805(a)(1)(B). It says

nothing about a suit by the federal government

There are two possible construals of the right

created by the statutory language that | just quoted

One is that IPAS merely has the legal capacity to

bring a suit, like a corporation. The conferral of that

right would say nothing about what suits it could

bring. Board of Education of City of Peoria v. Illinois

Board of Education, 810 F.2d 707, 709-10 (7th Cir

1987); 6A Charles Alan Wright, Arthur R. Miller &

Mary Kay Kane, Federu! Practice & Procedure §

1559, p. 441 (2d ed. 1990) (“capacity has been

defined as a party’s personal right to come into

court, and should not be confused with the question

of whether a party has an enforceable right or

interest”); see also Fed. R. Civ. P. 17(b). Maybe it

could just bring the kind of suit a corporation or

individual might bring, such as a suit for unpaid

4la

rent. But alternatively the statutory language could

mean that IPAS can bring suits that are essential to

its playing its “protect and advocate” role, including

suits to enforce its statutory right of access to

patient records. And not just suits in a

representative capacity, secking relief for particular

persons injured by the state’s flouting its statutory

duty. IPAS can act in such a capacity as well, but the

right to do so 1s conferred in a separate subsection of

the statute. 42 U.S.C. § 10805(a)(1)(C)

[It's not as uf IPAS could obtain an effective legal

remedy from the state courts of Indiana. It could not

And the fact that the right that the federal statute

confers on LPAS—the right of access to patient

records—expressly preempts any _ state law

prohibiting such access, see 42 U.S.C §

1O806(b)(2)(C); Center for Legal Advocacy v

Hammons, 323 F.3d 1262, 1272-73 (10th Cir. 20038);

ennsylvania FProtection & Advocacy, Inc. v

Houstoun, 228 F.3d 423, 427-28 (3d Cir. 2000),

makes it all the more likely that Congress expected

the right to be enforceable in a federal court. Cf. Lice

v. Office of Servicemembers’ Group Life Ins., 260 F.3d

1240, 1247 (10% Cir. 2001).

It is not an insuperable obstacle to this suit that

ever since Cort v. Ash, 422 U.S. 66 (1975), the

Supreme Court has been wary of inventing private

remedies for statutory violations and now requires

that the private right of action be inferable from the

statute itself. Alexander v. Sandoval, 532 U.S. 275.

286 (2001); Virginia Bankshares, Inc. v. Sandberg,

501 U.S. 1083, 1102 (1991); Zransamerica Mortgage

Advisors. Inc. v. Lewis, 444 U.S. 11, 15-22 (1979):

42a

Touche Ross & Co. v. Redington, 442 U.S. 560, 571

78 (1979). The requirement reflects a_ realistic

understanding of the role of compromise in the

legislative process. Private remedies, especially

private damages remedies, can greatly magnify the

force of a statute. If a remedy can be imposed only in

an action by a public agency-——say a cease and desist

proceeding by an administrative agency like the

l‘ederal Trade Commission—the potential targets of

such an action have the protection of prosecutorial

discretion, which places a screen between a private

complaint and an enforcement action, and are not

exposed to hability for damages awarded in private

suits in amounts that might (in a class action for

example) cause bankruptcy. lor a court to spring a

private remedy on the persons or firms subject to a

statute is thus to chanve the legislative § deal

dramatically.

There is nothing like that here. There is no

suggestion that IPAS can sue a_e hospital for

damages, which would have the potential to harm

hospitals far more than could an order to grant

access to records and would be likely to increase the

cost of hospital services. “Because the private nght

of action under Title [IX [of the Civil Rights Act of

1964] is judicially imphed, we have a measure of

latitude to shape a sensible remedial scheme that

best comports with the statute.” Gebser v. Lago Vista

Independent School District, 524 U.S. 274, 284

(1998). The sensible remedy in this case is an

injunction commanding access.

A private right of action with appropriate

remedies can be inferred from a statute that evinces

43a

a congressional intent to authorize such a right,

Transamerica Mortgage Advisors, Inc. v. Lewis,

supra, 444 U.S. at 15-16; Knapp v. Eagle Property

Management Corp., 54 F.3d 1272, 1276- 79 (7th Cir.

1995); Hallwood Realty Partners, L.P. v. Gotham

Partners, L.P., 286 F.3d 613, 618-22 (2d Cir. 2002):

CSX Transportation Inc. v. Marquar, 980 F.2d 359,

379-82 (6th Cir. 1992), as the present statute does.

The Supreme Court’s decision in Alexander ov.

Sandoval, supra, 532 U.S. at 286—a landmark in

the march begun in Cort v. Ash away from judicial

creation of private remedies—makes this clear: “the

judicial task is to interpret the statute Congress has

passed to determine whether it displays an intent to

create ...a private remedy.” Consistent with this

language, even after Cort the Supreme Court has

found private remedies implicit in statutes. See, e.g.,

Jackson v. Birmingham Board of Education, 544

U.S. 167 (2005) G@mphed remedy for retaliation

under Title IX); Morse v. Republican Party of

Virginia, 517 U.S. 186, 230-35, 240 (1996) (implied

remedy under the Voting Rights Act); Merrill Lynch,

Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353

(1982) (ampled remedies under the Commodity

Exchange Act).

The cases rejecting judicial creation of private

rights of action ex nthilo would defeat a suit against

the state hospital administration by the guardian of

a mentally ill person, seeking damages for

mistreatment in a state hospital; for there is no hint

in the statute of an intention to create such a right of

action. That is not this case.

44a

Nor is this a case in which the state may have

been fooled into accepting federal money on

conditions that, had it realized what they were,

would have caused it to reject the money. The

Supreme Court expressed concern with this

possibility in Davis v. Monroe County Board of

Education, 526 U.S. 629, 639-40 (1999), when it said,

quoting Pennhurst State School & Hospital v.

Halderman, 451 U.S. 1, 17-18 (1981), that “in

interpreting language in spending legislation, we

thus ‘insis[t] that Congress speak with a clear voice,’

recognizing that ‘[t]here can, of course, be no

knowing acceptance fof the terms of the putative

contract] if a State is unaware of the conditions

[imposed by the legislation] or is unable to ascertain

what is expected of it.’ ” See also Barnes v. Gorman,

536 U.S. 181, 185-88 (2002). But Indiana could not

have been surprised to find that IPAS could sue it

for violating a condition in the federal grant that it

accepted. The state knew that by accepting the

money it would be committing to provide IPAS with

access to patient records—knew too that IPAS had

been empowered to invoke legal remedies for

violations of the rights conferred on it by the federal

statute. The state could not reasonably have buiieved

that its commitment was empty, unenforceable—

that it could take the money and yet be subject to no

sanction for refusing to comply with the terms of the

grant except that of cancellation of the program,

figuratively a kind of nuclear option, as it would

blow up the mentally ill of Indiana along with the

federal program.

Consistent with this analysis, the Supreme Court

in Franklin v. Gwinnett County Public Schools, 503

45a

US. 60, 74-75 (1992), finding that monetary

damages were available to enforce an imphied

remedy in a spending-clause statute, rejected the

contention

that the normal presumption in favor of all

appropriate remedies should not apply because

Title IX was enacted pursuant to Congress’

Spending Clause power. In Pennhurst State

School and Hospital v. Halderman, the Court

observed that remedies were limited under such

Spending Clause statutes when the alleged

violation was unintentional. Respondents and the

United States maintain that this presumption

should apply equally to intentional violations. We

disagree. The point of not permitting monetary

damages for an unintentional violation is that the

receiving entity of federal funds lacks notice that

it will be hable for a monetary award. This notice

problem does not arise in a case such as this, in

which intentional discrimination is_ alleged.

Unquestionably, Title IX placed on the Gwinnett

County Public Schools the duty not to

discriminate on the basis of sex, and “when a

supervisor sexually harasses a _ subordinate

because of the subordinate’s sex, that supervisor

‘discriminate[s]’ on the basis of sex.” We believe

the same rule should apply when a teacher

sexually harasses and abuses a student. Congress

surely did not intend for federal moneys to be

expended to support the intentional actions it

sought by statute to proscribe. [Some citations

omitted. |

46a

The state argues that the federal courts have no

business refereeing a contest between two state

agencies, IPAS and_ tthe © state hospital

administration; and it is true in general that “federal

courts should not get involved unnecessarily in what

may be intramural struggles of state government

even if invited to do so by one of the contenders.”

Mazanec v. North Judson-San Pierre School Corp.,

763 F.2d 845, 848 (7th Cir. 1985); see also Cronson. v.

Clark, 810 F.2d 662 (7th Cir. 1987); Duran v. Elrod,

760 F.2d 756, 759 (7th Cir. 1985); Donelon v.

Louisiana Division of Administrative Law ex rel.

Wise, 522 F.3d 564, 568 (5th Cir. 2008). But this is

not a typical case. That it is a suit between state

agencies is an accident. If Indiana like most states

had appointed a private entity to be IPAS and if the

defendant were a private hospital, the suit would be

between two private entities.

Independent as it is of the governor and the

attorney general, IPAS is a state entity in name

only. especially in a suit against a state hospital—

there it’s an agent of the federal government, suing

to assure a state's compliance with the federal duties

of care for the mentally ill that the state agreed to

perform. It would be strange if a state could render

the federal statute unenforceable by creating (or

appointing) a public rather than a private protection

and advocacy agent, or if the statute were

unenforceable against state hospitals even though

there is (as I think we all agree) no issue of state

sovereign immunity.

One would like to know why Congress granted

states a choice between a public and a private

47a

watchdog agency, why the minority of states (eight

out of 50) that have chosen the public option have

done so, and what the consequences of the choice

are. Besides Indiana, the public option has been

chosen by Alabama, Connecticut, Indiana, Kentucky,

New York, North Dakota, Ohio, and Virginia (also

American Samoa and Puerto Rico). See U.S. Dep’t of

Health & Human Services, Substance Abuse &

Mental Health Services Administration, “Protection

and Advocacy for Individuals with Mental Illness

(PAIMI) Program” (Feb. 2003),

http://mentalhealth.samhsa.gov/cmhs/p&a/about.asp

(visited Mar. 26, 2010). I don’t know what these

eight states have in common and why they made the

choice they did. I do know that New York began with

a private enforcer but switched to a public one in

1980, having decided that the private enforcer

wasn't doing a good job. Patricia Puritz & Mary Ann

Scali, “Beyond the Walls: Improving Conditions of

Confinement for Youth in Custody” 30 (U.S. Dept. of

Justice, Office of Juvenile Justice and Delinquency

Prevention Report Jan. 1998),

www.ncjrs.gov/pdffiles/164727.pdf (visited Mar. 31,

2010). North Carolina switched the other way in

2007. North Carolina Dept. of Administration,

“Carolina Legal Assistance Designated as North

Carolina’s Protection and Advocacy System,” May

21, 2007,

www.doa.state.nc.us/pi0o/news/showrelease.asp?7id=0

001-21MAY07 (visited Mar. 31, 2010). These

examples do not suggest a pertinent difference

between public and private protection and advocacy

agencies. Rather they suggest that a state that

48a

hasn't had a good experience with a public agency is

likely to try a private one next, and vice versa.

The secondary literature suggests—ironically in

hight of the present case—that public protection and

advocacy agencies have an easier time gaining

access to information from the state than private

ones do. Melissa Bowman, Note, “Open Debate Over

Closed Doors: The Effect of the New Developmental

Disabilities Regulations on Protection and Advocacy

Programs,” 85 Ay. L.J. 955, 990 (1997). The main

argument against public agencies—and again it is

ironic in light of this case—is that they can't be

expected to be “truly independent and withstand

political pressure either to not initiate an

investigative action or to prematurely resolve an

investigation that should be litigated.” Jd. Another

argument against the public agency is that private

ones may receive charitable donations to augment

their resources but people rarely make a charitable

donation to a public agency. None of these

differences suggests that IPAS has a more limited

right to sue than a private agency.

EASTERBROOK, Chief Judge, dissenting. My

colleagues’ approach to this case is in the spirit of

the maxim: “Where there is a nght, there must be an

effective remedy.” Indiana has failed to implement

federal requirements that go with grants that the

state has accepted, and the state is resisting efforts

to enforce the federal statutes directly. The prospects

of a funding cutoff or a suit by the national

government are not effective enough, in my

colleagues’ assessment, so the court creates an

additional remedy.

49a

That approach was common in the era of J.J. Case

Co. v. Borak, 377 U.S. 426 (1964). But it was

disavowed in Cort uv. Ash, 422 U.S. 66 (1975). Today

remedies depend on the statutory text and structure,

not on judges’ views about how much enforcement,

and by whom, is optimal. Moreover, the maxim that

a right implies a remedy applies only when there Is a

“right.” The statutes in question do not confer rights

on the plaintiff.

Indiana would not violate anyone’s rights by

turning down the federal money and disbanding

Indiana Protection and Advocacy Services. The

federal statute imposes conditions on a grant. A

state that wants the money must fulfil the

conditions. Such a_ state-federal contract creates

third-party beneficiaries (such as Advocacy Services —

and the patients), but the Supreme Court has held

that these third-party beneficiaries are not entitled

to enforce the contract directly. See Brunner v. Ohio

Republican Party, 129 S. Ct. 5 (2008); Gonzaga

University v. Doe, 536 U.S. 273 (2002); Alexander v.

Sandoval, 532 U.S. 275 (2001). The contract is

enforced by the federal agency, which can end the

funding or sue if the state does not keep its part of

the bargain.

One reason why a state’s decision to accept a

erant does not imply a third-party right to litigate is

the Supreme Court’s clear-statement doctrine:

Congress has broad power to set the terms on

which it disburses federal money to the States,

see, e.g., South Dakota v. Dole, 483 U.S. 203, 206—

“207 +987), ~but when Congress’ attaches

S0a

conditions to a State’s acceptance of federal funds,

the conditions must be set out “unambiguously,”

see Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1, 17 (1981); [Board of

Education of Hendrick Hudson Central School

District v. Rowley, 458 U.S. 176 (1982)] at 204, n.

26. “[L]legislation enacted pursuant to the

spending power is much in the nature of a

contract,” and therefore, to be bound by “federally

imposed conditions,” recipients of federal funds

must accept them “voluntarily and knowingly.”

Pennhurst, 451 U.S., at 17. States cannot

knowingly accept conditions of which they are

“unaware’ or which they are “unable to ascertain.”

Ibid. Thus, in the present case, we must view the

\federal statute] from the perspective of a state

official who is engaged in the process of deciding

whether the State should accept [the] funds and

the obligations that go with those funds.

Arlington Central School District v. Murphy, 548

U.S. 291, 296 (2006). When Congress extends a lure

to state governments, the conditions must be

express; otherwise the state is buying a pig in a

poke.

Nothing in 42 U.S.C. §§ 10801-—51 alerts Indiana

that, by taking the money, it agrees to be sued in

federal court by its own agency, Indiana Protection

and Advocacy Services. Section 105, 42 U.S.C.

§10805, bears the caption “[s]ystem requirements’; it

does not mention patients’ rights or authorize the

“system” to file suit in federal court. Section 103, 42

U.S.C. §10803, says that the Secretary may contract

with states that “meet the requirements of section

Sla

105”, which reiterates the point that the statute sets

conditions on a grant rather than establishing

personal rights.

Even if we were to treat “system requirements”

the same as “system rights”, nothing in ecither §105

or §106 says that systems have a right to sue states

in federal court. (Reading “shall” in §105 as “has a

right to”, which my colleagues think appropriate,

does not overcome the statute’s lack of a right to sue

states. And treating “shall” as “has a right to”

produces some mighty: odd constructions. I invite the

reader to-run through §105 and §106, replacing each

“shall” with “has a right to”. For example,

§105(a)(10) says that a system “shall... not use

allotments ...in a manner inconsistent with section

14404 of this title.” Replacing “shall” with “has a

right to” turns this rule on its head. It is far better to

use “shall” to denote obligation rather than

entitlement.)

What’s more, nothing in the statute creates a

personal remedy of any kind. To the contrary, 42

U.S.C. §10851(a) says that the statute “shall not be

construed as establishing any new nights for

individuals with mental illness.” Without a remedy,

there cannot be an implied private right of action.

See Gonzaga University, 536 U.S. at 284.

What a state anticipates when it accepts a federal

erant is that enforcement rests in the hands of the

grantor, which can either turn off the spigot or sue

in its own name—for, as long as the contract lasts,

the federal government is entitled to compliance. See

Barnes v. Gorman, 536 U.S. 181, 187 (2002). But the

S2a

Department of Health and Human Services has

neither cut off the money nor sued to enforce the

contract. To subject the state to any other remedy is

to transgress the principle that only clearly

articulated conditions may be enforced against state

recipients of federal funds.

One explicit federal right of action sometimes can

be used to implement the conditions of federal

grants: 42 U.S.C. §1983 authorizes suits when the

defendant is a state actor and the conditions are

specific enough to be enforced as rules of law. See

Maine v. Thiboutot, 448 U.S. 1 (1980). I am content

to assume that the requirements of 42 U.S.C. §§

10805 and 10806 meet that standard. Four other

courts of appeals have held this. Protection &

Advocacy for Persons with Disabilities v. Mental

Health & Addiction Services, 448 F.3d 119 (2d Cir.

2006) (Sotomayor, J.); Pennsylvania Protection &

Advocacy, Inc. v. Houstoun, 228 F.3d 423, 428 (3d

Cir. 2000) (Alito, J.); Missouri Protection & Advocacy

Services v. Missouri Department of Mental Health,

447 F.3d 1021 (8th Cir. 2006); Center for Legal

Advocacy v. Hammons, 323 F.3d 1262, 1272 (10th

Cir. 2003). But Advocacy Services is part of Indiana

and so is not a “person” within the scope of §1983.

Will v. Michigan Department of State Police, 491

U.S. 58 (1989). Forty-two states created their

advocacy agencies as private entities, which could

take advantage of TJhiboutot. Indiana did not.

Because plaintiff is not a “person,” it can’t use §1983.

See also Jllinois v. Chicago, 137 F.3d 474, 477 (7th

Cir. 1998).

53a

Advocacy Services contends, with the support of

the United States as amicus curiae, that, because it

relies on federal funds, it isn’t “really” part of

Indiana and therefore can use §1983. The argument

that an entity is “not the state” if its funding is

federal was made and roundly rejected in Regents of

University of California v. Doe, 519 U.S. 425 (1997).

Indiana Protection and Advocacy Services is part of

the state, whose governor appoints a third of the

Board (see 42 U.S.C. §15044(a)(2); Ind. Code §12-28

1-6(a)). (No one else appoints any member; the

Governor’s appointees initially chose the rest of the

board, which since has picked its own members other

than the Governor's selections.) Advocacy Services

has the same powers as other state agencies to make

administrative rules, Ind. Code §12-28-1-12(7), and

its employees are civil servants, id. at §12-28-1

12(2). Its offices are in state buildings, and its web

site (http://www.in.gov/ipas/) is part of Indiana’s; the

site’s header is the name and picture of Indiana’s

governor. It is the organization chart rather than

sources of funds that distinguishes the states from

other kinds of entities. (And if this is wrong, and

federal funding means that Advocacy Services is “not

the state,” then Advocacy Services would be a federal

instrumentality, and again not a “person” under

§1983.)

Thus §1983 is unavailable. Is there an alternativ:

source of authority to sue?

One possibility is that a right of action may be

implied directly from the substantive federal statute,

without the need for aid from §1983. But the

Supreme Court's cases do not support that approach.

S4da

The closest is Cannon v. Untversity of Chicago, 441

U.S. 677 (1979). It is not enough, for three reasons.

First, the defendant in Cannon was a private

organization, so the clear-statement requirement did

not apply.

Second, the Court’s rationale was that, when

enacting ‘litle LX of the Education Amendments of

1972, Congress relied on decisions creating private

rights of action, using pre-Cort law, under a different

statute. 441 U.S. at 694-703. ‘Title [X is a pre-Cort

statute; the Justices were unwilling to frustrate

reliance interests that underlay it. Justices Stewart

and Rehnquist, whose votes were essential to the

majority in Cannon, wrote separately to make it

clear that the legislative reliance on pre-Cort law

was essential to the outcome. 441 U.S. at 717-18.

But no one contends that, when it enacted 42 U.S.C.

§§ 10801—51 more then a decade after Cort, Congress

relied on decisions allowing state agencies to sue

their own states; there are no such decisions

Third, Cannon observed that the plaintiff was a

member of a special class for whose benefit the

statute was enacted. 441 U.S. at 689-94. Advocacy

Services is not a member of any class supposed to

receive a benefit from the federal legislation; it is an

ombudsman designed to provide assistance to

patients. Advocacy Services wants information that

it may be able to use to make suggestions for

improving Indiana’s mental-health-care system

That is a long distance from the model of personal

rights that was vital to the disposition in Cannon

ya

The remit of an administrative agency such as

Advocacy Services does not affect anyone's

“personal” rights—and the Court has _ stated

repeatedly that a private right of action will be

implied only when necessary to vindicate the

plaintiff's personal rights. K.g., Thiboutot

(deprivation of the plaintiffs welfare benefits);

Jackson v. Birmingham Board of Education, 544

U.S. 167 (2005) (plaintiffs right to be free of

retaliatory discharge). By contrast, “|s|tatutes that

focus on the person regulated rather than the

individuals protected create no implication of an

intent to confer rights on a particular class of

persons.” Sandoval, 532 U.S. at 289 (internal

quotation omitted)

My colleagues (both the majority opinion and the

concurring opinion) believe that Advocacy Service

should be allowed to sue precisely because it is nol

trying to vindicate its own rights. It is an advocate

for the mentally disabled, and my colleagues think

that it should occupy a privileged position as a

protector of others. That policy argument might be a

sound one, yet the Supreme Court has held that a

private mght of action will be imphed from a funding

statute only when necessary so that the litigant may

vindicate his or her personal rights. Perhaps my

colleagues will persuade the Justices to change the

doctrine, but under existing doctrine a personal rivht

is essential

Indeed, under existing doctrine a personal right

often is not sufficient even when the federal statute

is unconditional (that is, not tied to a grant). E.¢g

Thompson v. Thompson, 484 U.S. 174 (1988) (no

Oa

imphed private right of action to enforce larental

Kidnapping Prevention Act of 1980); Transamerica

Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979)

(no imphed private right of action to enforce the

Investment Advisers Act of 1940). Since Cort the

Justices have never created a private right of action

on behalf of anyone other than a private person

trying to vindicate statutory rights enacted for his

personal benefit. Advocacy Services is not in that

category.

My colleagues say that the federal statute has

given “rights” directly to Advocacy Services. Yet any

rights in §105 or §106 are for the bencfit of patients,

not “systems.” Advocacy Services is not trying to

improve its own mental health! What’s more, these

statutes do not create rights; they create duties. As |

have already mentioned, the statute calls the

subsections in $105 “requirements.” ‘They are

obligations laid on a grant’s reciment—that is, on

Indiana, not on Advocacy Services. Indiana may

have a duty to confer rights on Advocacy Services,

but §105 does not confer any rights directly. Nothing

in the statute gives any entitlement to any “system”

established under the Act; instead the statute tells

the state what conditions it must meet to be eligible

for federal funds (and to drive the point home

S$10851l(a) says that the statute does not add to

patients’ rights)

The only thing looking remotely like a “nght’

held by an agency to which funds are routed—and

the provision on which the majority principally rely

(pages 21-22)—1s the exhaustion requirement in

$107(a), 42 U.S.C. §10807(a). Thi subsection

S7a

provides that, before filing suit, the “system” must

exhaust any other remedies. My colleagues say that

this “provision would have little purpose if protection

and advocacy systems... were not empowered to

sue” (page 22). Not at all. Section 107(a) speaks of

filing suit “on behalf of a [sic] individual with mental

illness”. A “system” may sue on behalf of mentally ill

persons, whose own entitlements supply the right of

action, see 42 U.S.C. §§ 10804(c), 10805(a)(1)(C), but

the current proceeding is by Advocacy Services on its

own behalf and so is outside of §107(a). And there is

a more general problem: the majority’s approach

turns a precondition to suit (that’s what an

exhaustion requirement is) on someone else’s behalf

into an authorization to sue on one’s own behalf.

The transmutation is unwise. The proposition

that §107(a) has “little purpose” if it doesn’t

authorize a system to sue on its own behalf is

hyperbole. Section 107(a) serves many functions.

First, §107(a) apphes to suits that systems file on

behalf of persons with disabilities. Second, if §107(a)

applies at all to suits by systems in their own names,

it covers litigation in state court. Third, it applies to

suits filed under §1983 by private “systems” (which,

recall, exist in 42 states). Fourth, it applies to suits

that public systems file against private defendants,

which are not protected by the Supreme Court's

clear-statement principle. We should treat §107(a) as

what it purports to be: a restriction on litigation

rather than a backhanded grant of authority to sue.

Section 107(a) assuredly is not the “clear statement”

required by Arlington Central and similar decisions.

S8a

A few words are in order about Ex parte Young,

209 U.S. 123 (1908). Now that we are sitting en

banc, and thus more willing than a panel to create a

conflict, I accept my colleagues’ view that Young

(read in connection with Verizon Maryland Inc. v.

Public Service Commission of Maryland, 535 U.S.

635 (2002)) overcomes any _ sovereign-immunity

defense. I therefore join my colleagues in disagreeing

with Virginia v. Reinhard, 568 F.3d 110 (4th Cir.

2009). But to say that a claim against a state officer

sidesteps sovereign immunity is. not’ enough;

plaintiffs still need a right of action. Most suits to

which Young apphes rest on §1983; in Verizon, 47

U.S.C. §252(c)(6) suppled an express right of action;

Advocacy Services lacks any equivalent.

Brunner illustrates my point. The Help America

Vote Act of 2002 requires state officials to take

specific steps to ensure that all persons entitled to

vote are properly registered, while other names are

purged from the rolls. The statute applies, however,

only to states that accept federal grants that defray

the cost of meeting the federal objectives. See 42

U.S.C. §15301. Ohio took the federal money but,

according to plaintiffs in a §1983 suit filed under Ex

parte Young against Ohio’s Secretary of State, failed

to perform its obligations. As a result, plaintiffs

contended, invalid votes would be counted.

The district court entered an order directing the

Secretary of State to comply with §303 of the Act, 42

U.S.C. §15483(a)(5)(B)(i) (2000 ed. Supp. V), which

requires the state’s election officials to “match

information in the database of the statewide voter

registration system with information in the database

59a

of the [state’s] motor vehicle authority to the extent

required to enable each such official to verify the

accuracy of the information provided on applications

for voter registration.” The court of appeals affirmed,

holding that §303 establishes rights that can be

enforced under §1983 and that judicial relief was

essential to ensure a reliable election. 544 F.3d 711

(6th Cir. 2008) (en banc).

Everything that my colleagues say about 42

U.S.C. §§ 10805 and 10806 was true about 42 U.S.C.

§15483(a)(5)(B)Q@). Each statute establishes specific

responsibilities for states that take the federal

money. Each state balked at carrying out its

obligations. Each plaintiff used Ex parte Young to

sidestep sovereign immunity. Each suit sought

prospective rehef rather than damages. Each

plaintiff wanted a systemic improvement rather

than the vindication of person-specific entitlements.

Other ways of enforcing each statute appeared to be

ineffectual; neither federal agency revoked the grant

or filed suit to enforce the conditions. And Brunner

was easier for the plaintiff, which was not part of the

state and so could invoke §1983 as the right of

action. Yet the Supreme Court reversed—

unanimously and summarily.

Observing that §303 is a condition on a federal

grant and not a free-standing entitlement, the

Supreme Court cited Gonzaga University and

Sandoval for the proposition that the plaintiff could

not obtain interlocutory relief even if the state was

clearly violating §303. In other words, the suit was

doomed, so the plaintiff lost even on the assumption

that irreparable injury was certain to occur. The

60a

opinion in Brunner was one paragraph long. The

Supreme Court’s point was simple. My point is

equally simple—and, to repeat, this case is weaker

for the plaintiff than was Brunner, because Advocacy

Services is a state agency that can’t use §1983.

Not so, my colleagues say, because this statute

lacks something present for the Help America Vote

Act (and the statutes at issue in Gonzaga University

and Sandoval): an administrative enforcement

process. Without one, there won't be enough

enforcement (pages 29-30), “unfair” or

“counterproductive” results will ensue (pages 16—17,

31), and the federal courts must step in. As I said at

the outset, that is the method of Borak, a method

that the Justices repudiated in 1975. Congress, not

the iudiciary, decides whether enforcement via

tigation is essential. But the majority’s premise

also is not correct. There is an administrative

enforcement process. The Secretary of Health and

Human Services has established one by regulation.

42 C.F.R. §51.10, incorporating the procedures of 45

C.F.R. Part 74 and 42 C.F.R. Part 50. The

administrative mechanism may or may not be

optimal—my colleagues think that it isn’t, because it

operates only against the “system” (page 30 n.12)

but that decision is for Congress, the President, and

the Secretary to make; a court ought not declare that

more is required and then establish an enforcement

mechanism of its own design.

Both the majority opinion and the concurring

opinion express a belief that statutes such as this

one should not be enforced by terminating grants.

“(C]utting off one’s nose to spite one’s face”, the

6la

concurrence puts it at page 389. This reflects a

fundamental disagreement with the Supreme Court,

which has held that the principal and often exclusive

method of enforcing conditions on federal grants is

by funding curtailments. Perhaps my colleagues

have a wise view as a matter of policy, but the

Supreme Court’s perspective is the one we must use

in a hierarchical judicial system. I don’t think that

the Justices’ perspective can be avoided by saying

that Gonzaga University was an offender, while

Advocacy Services is a vindicator of rights. That

won't distinguish Brunner. And the

vindicator/violator line misses the point that the

threat of funding cutoffs is what induces violators

such as Gonzaga University to conform. Deterrence

is not limited to the criminal law. There would be

even more reason for these institutions to comply if

federal courts could award damages or issue

injunctions, but Brunner, Gonzaga University, and

Sandoval curtail that option.

The concurring opinion expresses confidence that

an injunction is superior to the threat of

administrative funding cutoff because then “[t]he

state and the federal government would be playing a

game of chicken—with Indiana’s mentally ill citizens

the victims of any collision that might result” (page

39). Put to one side the fact that the Secretary of

Health and Human Services is not limited to

yanking the grant; she can sue to enforce the grant’s

conditions. Suppose that the Secretary’s only lever

were cash. Why should we think that it is only the

Secretary who plays chicken with the state? Indiana

tells us that it cares deeply about whether it is

subject to suit in federal court by Advocacy Services.

62a

Our affirmative answer may lead Indiana to reject

the grant and send Advocacy Services’ staff to the

unemployment line. It is not possible to say that the

Secretary's levers commence a game of chicken while

the judiciary’s levers don’t. At least the Secretary

can negotiate with Indiana to find a satisfactory

solution. All the judicial branch can do is issue

judgments. Once we have issued ours, everything is

in Indiana’s hands, and if we drive the state to end

this program there is nothing we can do to bring it

back again.

If the Secretary passes out federal money without

enforcing the conditions, that’s unfortunate, but it is

hard to see how it can be called “unfair” to anyone

other than the féderal taxpayers. The Secretary has

ample means to ensure that the federal dollars are

not wasted. And the majority’s view that litigation

must be authorized, because cutting off funds would

be “counterproductive,” 1s impossible to reconcile

with Brunner, Gonzaga University, or Sandoval; it

would mean that conditions attached to federal

grants always may be _ enforced by private

litigation—at least if the judges approve the goal of

the grant program. The Supreme Court has held

otherwise.

Both Indiana Protection and Advocacy Services

and Indiana Family and_ Social Services

Administration believe that they have patients’

interests at heart, though they disagree about how to

serve those interests. Fights between two state

agencies should be_ resolved within the _ state

(including the state’s judiciary, if state law so

provides), or through the auspices of the Department

63a

of Health and Human Services, which administers

the federal grant program. This statute establishes a

program of cooperative federalism. Cooperation

usually requires negotiation and compromise among

multiple public bodies. That is the way of the

administrative rather than the judicial process. We

should dismiss this suit and let the administrative

process take its course.

64a

Supreme Court of the United States

No. 09A1156

INDIANA FAMILY AND SOCIAL SERVICES

ADMINISTRATION, ET AL.,

Applicants,

V.

INDIANA PROTECTION AND ADVOCACY

SERVICES

ORDER

UPON CONSIDERATION of the application of

counsel for the applicants,

IT IS ORDERED that for the reasons stated in

Judge Hamilton’s order for the Court of Appeals

denying the motion to stay the mandate, the

application is denied.

/s/ John Paul Stevens

Associate Justice of the Supreme

Court of the United States

Dated this 1st

day of June, 2010

65a

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

May 26, 2010

Before

DAVID F. HAMILTON, Circuit Judge

No. 08-3183

INDIANA PROTECTION AND ADVOCACY

SERVICES,

Plaintiff-Appellee,

Vv.

INDIANA FAMILY AND SOCIAL SERVICES

ADMINISTRATION; ANNE W. MURPHY, in her

official capacity as Secretary of the Indiana Family

and Social Services Administration; GINA

ECKHART, in her official capacity as Director of the

Division of Mental Health and Addiction; and

LARRY LISAK, in his official capacity as

Superintendent of Larue Carter Memoriai Hospital,

Defendants-Appellants.

66a

Appeal from the United States District

Court for the Southern District

of Indiana, Indianapolis Division

No. 1:06-cv-1816-LJM-TAB

Larry J. McKinney,

Judge.

ORDER

On April 22, 2010, this court sitting en banc

affirmed the judgment of the district court as

modified. Indiana Protection and Advocacy Servs. v.

Indiana Family and Social Services Admin., — F.3d

—, 2010 WL 1610117 (7th Cir. Apr. 22, 2010) (“IPAS

( IT’). The effect of this court’s mandate will be to

affirm the district court’s order requiring the named

state officials to make available to the plaintiff

certain records regarding a mentally ill patient

(identified in the court records and the court’s

opinion as Patient 1) for inspection and copying.

The defendants intend to seek Supreme Court

review and have moved to stay the mandate pending

the conclusion of that Court’s review. The plaintiff

opposes the motion. All participating judges agree

that the motion should be denied.! The district court

has stayed its order pending resolution of this

appeal. As I explain below as author of the merits

opinion, this court sees no reason to delay the

mandate or to prevent the district court from lifting

its stay of its order pending possible Supreme Court

review.

1 Judge Tinder has not participated in consideration of this

appeal.

67a

A party seeking a stay of a mandate pending

resolution of a petition for a writ of certiorari must

show that the petition will present a substantial

question and that there is good cause for a stay. See

Fed. R. App. P. 41(d)(2)(A); Books v. City of Elkhart,

239 F.3d 826, 827 (7th Cir. 2001) (Ripple, J., in

chambers) (granting stay where mandate would

require permanent and expensive removal of stone

monument on lawn of municipal building). The grant

of a motion to stay the mandate “is far from a

foregone conclusion.” 16AA Charles Alan Wright,

Arthur R. Miller, Edward H. Cooper & Catherine T.

Struve, Federal Practice and Procedure § 3987 (4th

ed. 2008). Instead, the party seeking the stay must

demonstrate both a reasonable probability of success

on the merits and irreparable injury absent a stay.

See Bricklayers Local 21 v. Banner Restoration, Inc.,

384 F.3d 911, 912 (7th Cir. 2004) (Ripple, J., in

chambers); Williams v. Chrans, 50 F.3d 1358, 1360

(7th Cir. 1995) (per curiam); United States v.

Holland, 1 F.3d 454, 456 (7th Cir. 1993) (Ripple, J.,

in chambers).

To demonstrate a _ reasonable probability of

success on the merits of the proposed certiorari

petition, the applicant must show a reasonable

probability that four Justices will vote to grant

certiorari and a “fair prospect” that five Justices will

vote to reverse the judgment of this court. See

California v. American Stores Co., 492 U.S. 1301,

1306-07 (1989) (O’Connor, J., in chambers); see also

United States v. Warner, 507 F.3d 508, 511 (7th

Cir.2007) (Wood, J., in chambers); Williams, 50 F.3d

at 1360. In resolving the applicants’ motion to stay,

we consider the issues that the applicants plan to

68a

raise in the certiorari petition in the context of the

case history, the Supreme Court's treatment of other

cases presenting similar issues, and_ the

considerations that guide the Supreme Court in

determining whether to issue a writ of certiorari. See

Williams, 50 F.3d at 1361.

This court decided three questions that the

defendants intend to ask the Supreme Court to

review. First, all participating members of this court

agreed that the Eleventh Amendment does not bar

the plaintiff from seeking injunctive and declaratory

relief against the individual state officials in their

official capacities. Our decision disagreed on this

point with a decision by the Fourth Circuit, Virginia

v. Reinhard, 568 F.3d 110 (4th Cir. 2009), cert.

petition pending, No. 09-529. Such a direct circuit

split provides a reasonably promising possibility for

certiorari review.”

Second, a majority of this court held that the

plaintiff has a right to sue under the PAIMI Act for

injunctive and declaratory relief to obtain access to

the records in question. This case appears to be the

first one in which that specific question has been

decided, though many other cases in circuit and

district courts have assumed such a right under

PAIMI and similar protection and advocacy statutes.

See IPAS IT, — F.3d at —, 2010 WL 1610117, at *13

2 On May 25, 2010, defendants filed a letter under Circuit Rule

28(j) attaching the Solicitor General's invited response in

Virginia arguing that the Supreme Court should grant

certiorari relying on, among other points, the conflict with our

decision. The Rule 28(j) submission does not change the

analysis of the pending motion.

69a

(collecting cases). One member of this court

disagreed, indicating that there is room for

reasonable disagreement on the point, though there

is currently no direct circuit split.

Third, this court held that the peer review

records in dispute were subject to the record access

provisions of the PAIMI. We are the fifth circuit to

have decided the issue, and all circuits are in

agreement. See, e.g., Protection & Advocacy for

Persons with Disabilities v. Mental Health &

Addiction & Advocacy Serus., 448 F.3d 119, 128 (2d

Cir. 2006) (Sotomayor, J.); Missouri Protection &

Advocacy Servs. v. Missouri Dep't of Mental Health,

447 F.3d 1021, 1023 (8th Cir. 2006); Center for Legal

Advocacy v. Hammons, 323 F.3d 1262, 1270 (10th

Cir. 2003); Pennsylvania Protection & Advocacy, Inc.,

v. Houstoun, 228 F.3d 423, 428 (3d Cir. 2000) (Alito,

J.). However, a 1999 decision by the New Hampshire

Supreme Court stands in opposition. See Disabilities

Rights Center, Inc. v. New Hampshire Department of

Corrections, 732 A.2d 1021 (N.H. 1999). In spite of

this apparent outlier, with all circuits in agreement

this question does not appear to be promising for

certiorari review.

The defendants argue there is good cause for a

stay of the mandate because they will suffer

irreparable harm in the form of an “invasion of

privacy if they are required to allow the plaintiff to

inspect and copy the disputed peer review records

regarding Patient 1. However, the defendants fail to

specify their basis for any privacy right or interest in

the records under dispute. Does it he with Patient 1”

With the state care-giving institutions? With the

70a

doctors and other medical professionals who

rendered treatment? In any case, to alleviate that

concern, the plaintiff points out that if and when it is

granted access to the records, it still will be required

by law to maintain the confidentiality of those

records. There is therefore little to no risk that the

information the records contain would be publicly

disclosed or that the information would be used for

some purpose unrelated to the plaintiffs mandate,

severely undercutting the defendants’ argument.

Also, this negligible risk is outweighed by the

plaintiffs interest in carrying out its obligation to

protect and advocate on behalf of other mentally ill

patients. That interest has been necessarily kept in

suspense for the last several years of this litigation,

and further delay is unwarranted.

In sum, the balance weighs against granting a

stay of the mandate even if there is a reasonable

possibility that certiorari may be granted. The

disclosure of information would be to an independent

government agency with its own legal obligations to

maintain the confidentiality of the documents in

question. The plaintiff has had to wait nearly four

years after Patient 1’s death for access to the peer

review documents, stymying its ability to effectively

protect and advocate on behalf of other individuals

with mental illness. There will be no invasion of

Patient 1’s privacy, for Patient 1 is deceased.

Whatever interests the caregiving entities or the

doctors and other individual] care-givers might have

in the privacy of information about their treatment

of Patient 1 will be adequately protected by the

plaintiffs own legal obligations of confidentiality.

Under these circumstances, a court order allowing

7la

the plaintiff access to the records but reserving the

right to order the plaintiff to return all copies and

derivative notes in the event that this court's

decision is reversed would give _ substantial

protection to the defendants. Finally, as_ the

defendants point out, that ongoing prospect for

ordering return of documents would also prevent the

case from becoming moot pending possible Supreme

Court review. See Church of Scientology of

California v. United States, 506 U.S. 9, 13 (

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