Opposition Brief — Indiana Family & Social Services Administration v. Indiana Protection & Advocacy Services

Supreme Coun, 0 §

FILED

JAN 3 - 2011

OFFICE OF Ti CLERK

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Iu The

Supreme Court of the Anited States

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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, PETITIONERS,

Vv.

INDIANA PROTECTION AND ADVOCACY SERVICES.

-o——- — —_—_—_-

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

+

BRIEF IN OPPOSITION

—- -—¢ —E

KAREN T.. DAVIS DEANNE E. MAYNARD

INDIANA PROTECTION AWD SETH M. GALANTER

ADVOCACY SERVICES Counsel of Record

4701 North Keystone Ave., BRIAN R. MATSUI

Suite 222 MORRISON & FOERSTER LLP

Indianapolis, IN 46205 2000 Pennsylvania Ave.,

N.W.

Washington, D.C. 20006

sgalanter@mofo.com

(202) 887-6947

Counsel for Respondent

JANUARY 3, 2011

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342 2831

QUESTIONS PRESENTED

l. Whether the Eleventh Amendment is a bar to

this suit by an independent state agency against

state officials for prospective injunctive relief to rem-

edy a violation of federal law when petitioners did not

raise the Eleventh Amendment issue until briefing

before the court of appeals en banc.

2. Whether the Seventh Circuit correctly decid-

ed, as a matter of first impression, that the Protection

and Advocacy for Individuals with Mental Illness Act,

which authorizes Protection and Advocacy Systems to

access “all records” and bring lawsuits in federal

court, creates a federal cause of action for Protection

and Advocacy Systems to enforce their right to access

records.

3. Whether the Seventh Circuit correctly de

cided, consistent with four other courts of appeals,

that the Protection and Advocacy for Individuals with

Mental Illness Act’s authorization to Protection and

Advocacy Systems to access “all records” does not

implicitly exempt “peer review” records.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................... i

TABLE OF AUTHORITIES ........................0.0..00 iV

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xt yy | *. y gare | an a

A. Statutory Framework.................. itedouhiaes l

l. Federal law............. scuiidareaueii laabedenwas l

se oder dass cincncdhivagaceussecsaunst 4

B. Factual BACKRrounaG .........c.cccccccssccccccsseveces 6

is ds on ssn nounnseubansbakennes 4

REASONS THE PETITION SHOULD BE

SUID cchicsidieLanaubasusacaudedsnucnsabawietiseunisiniasstaes “Oo

I. CERTIORARI SHOULD BE DENIED ON

THE FIRST QUESTION BECAUSE PE-

TITIONERS WAIVED ANY ELEVENTH

AMENDMENT IMMUNITY THEY POS.

| EY RA Ee Ene

ll. CERTIORARI SHOULD BE DENTED

ON THE SECOND QUESTION PRE-

SENTED BECAUSE THERE IS NO

DIVISION IN THE COURTS AND THE

COURT'S DECISION WAS CORRECT... 18

ll

TABLE OF CONTENTS—Continued

Page

Ill. CERTIORARI SHOULD BE DENIED ON

THE THIRD QUESTION PRESENTED

BECAUSE THE DECISION BELOW

REGARDING THE APPLICATION OF

PAIMI TO PEER REVIEW RECORDS IS

CORRECT AND CONSISTENT WITH

PRIOR DECISIONS IN THE LOWER

RENEE Soc pesnnrackickscass FEN ADE AR ths aE NOOO e RIT EINE 23

I oc oc nractauscaahcianvearenevesunci esse vente 27

lv

TABLE OF AUTHORITIES

Page

CASES:

Adkins v. Christie, 488 F.3d 1324 (11th Cir.

2007), cert. denied, 552 U.S. 1131 (2008)............... 26

Alabama Disabilities Advocacy Program v. J.S.

Tarwater Developmental Ctr., 97 F.3d 492

ER A soe sccaatescagpen nin secadeeincevsceersnase 19

Alexander v. Sandoval, 532 U.S. 275 (2001) ............. 20

Blessing v. Freestone, 520 U.S. 329 (1997) ......00..0..... 16

Brunner v. Ohio Republican Party, 555 U.S. 5

) | RRR RR OR Peep Sinan DEE NE oP ea 21

Center for Legal Advocacy v. Hammons, 323

Be Be CAO I, BE os vsvicnvvcisccnsisccenvasescuesacse 19, 23

Clark v. Barnard, 108 U.S. 436 (1883) .....00.00 16

Connecticut Office of Prot. & Advocacy for

Persons with Disabilities v. Hartford Board

of Educ., 464 F.3d 229 (2d Cir. 2006) ..................... 19

Disabilities Rights Ctr., Inc. v. Commussicner,

Gabe Peace MERE GIN Be. BI venice sscccsrepenesnaspes onions 24

Disability Rights Wisconsin, Inc. v. State of

Wisconsin Dep't of Pub. Instruction, 463 F.3d

Fe ee NE wicics inaceen ie aan 19

Doe v. Chao, 540 U.S. 614 (2004)... cece eeees 26

Equip for Equality, Inc. v. Ingalls Memorial

Hosp., 292 F. Supp. 2d 1086 (N.D. Ill. 2003).......... 20

Ex parte Young, 209 U.S. 123 (1908) ....10, 12, 15, 16, 23

TABLE OF AUTHORITIES—Continued

Page

Gonzaga v. Doe, 536 U.S. 273 (2002) ...............c00e 12, 20

Hawai Disability Rights Center v. Cheung, 513

F. Supp. 2d 1185 (D. Haw. 2007) ......................04. ou

Kendall v. United States ex re!. Stokes, 37 U.S.

CIS Pet.) TOG CTI acai snsscccchcecsuee eee 16

Kentucky Prot. & Advocacy Div. v. Hall, No.

3:01CV-538, 2001 WL 34792531 (W.D. Ky.

Sew, Bh BO) nsivsssc sv csseccsnsucccsnespasescneeeeeeee 20

Lapides v. Board of Regents, 535 U.S. 613

(IE) a vssva sas acsnsvxcnunnnscitvasenecsucuecigusnenes ei aeenaiaaanaa 16

Lassen v. Arizona ex rel. Arizona Highway

Dep’t., 385 U.S. 468 QG6T)...écc.-ec ee 18

Memorial Hosp. v. Shadur, 664 F.2d 1058 (7th

CORR RID asses sssicnnins cecivnxcncsnenvsecsucuesues ee ee 26

Mississippi Prot. & Advocacy Sys., Inc. v.

Cotten, 929 F.2d 1054 (5th Cir. 1991)........00000000000.. 19

Missouri Prot. & Advocacy Servs. v. Missouri

Deptt of Menta! Health, 447 F.3d 1021 (8th

Cir. 2006)....... vidas bavisiedsancaapaneiesealee eee 19, 23

Office of the Governor v. Department of Health

& Human Servs., 997 F.2d 1290 (9th Cir.

BE asin souk cnesnnescosennsendontossasenanensacnaneoeueeserantneaane’ 3

Ohio Legal Rights Serv. v. Buckeye Ranch, Inc.,

365 F. Supp. 2d 877 (S.D. Ohio 2005).......0.......000... 19

Pennsylvania Protection & Advocacy, Inc. v.

Houstoun, 228 F.3d 423 (3d Cir. 2000).......19, 24, 26

vl

TABLE OF AUTHORITIES—Continued

Page

Protection & Advocacy for Persons with Dis-

abilities v. Mental Health & Addiction Servs.,

443 F.3d 119 (2d Cir. 2006) ...............c0000 0008 19, 23, 24

Public Citizen v. Department of Justice, 491

IE SUID ssi sscsxncnsedennessneclchadanecusl va areerenemne 18

Trauiz v. Weisman, 846 F. Supp. 1160 (S.D.N-Y.

oid sinrsirsnignaasisewedndiunksansdinientecsnarerce aetna 20

ee @ Pet, S67 U.S. 428 (1967) vvccccccconsceccacdeccesees 18

University of Pennsylvania v. EEOC, 493 U.S

a viletats Ose gabeeeensesaet ane 26

Virmani v. Novant Health Inc., 259 F.3d 284

I MEY oss gaial cua cys eeeenaiceuee ane eee 26

Wisconsin Coalition for Advocacy, Inc. v.

Czaplewski, 131 F. Supp. 2d 1039 (E.D. Wis.

en a. cc csincs ncaa Paeentheaunauedenceeeen ne aan 20

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

I nc 951 ck cancaies busaine eeevatament ote ae 16, 17

U.S. CONSTITUTION AND STATUTES:

IC. GUMS BED 5 5cssseininsecvscvacocesansnsscanansnaveonentersy 18

U.S. Const. amend. X1..................... sini ccukecirn ieee passim

oi onan sapauesunpeaasasanl 10, 23

Protection and Advocacy for Individuals with

Mental Illness Act, 42 U.S.C

§ 10801 et seq..................... Fee ee AA ee ee |

dis ors cdc cae cana cal paves omeckoeramiaenneene 2

Vii

TABLE OF AUTHORITIES—Continued

Page

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© Se Pains cic essiscanieeaess sues sts 3, 21, 25

DT iiss uis stasis cvnatupasiesensaatacemaseurn teen ae 25

Developmental Disabilities Assistance and Bill

of Rights Act, 42 U.S.C.

ee i oc cos pssvuccaeanceicinesnacens create oe 1

RI senor eae ei pctee erat eons eae ee 5

BR BE cekicnss nrcceiacencen is eects ae ice 3

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BE, yj nae eee INCRE RAE SRR en Bea leaaa fs Z

Developmental Disabilities Assistance and Bill

of Rights Act, Pub. L. No. 94-103, 89 Stat.

GPE irs cei it

Vill

TABLE OF AUTHORITIES— Continued

Page

PAIMI Amendments Act of 1988, Pub. L. No.

100-509, 102 Stat. 2543 (1988).................c-seccerssoees 25

Protection and Advocacy for Individuals with

Mental Illness Act, Pub. L. No. 99-319, 100

Be, HT ae CN aii vig ascaneysieeacs iosvseudencveaoeeorinnes 1, 25

STATE CONSTITUTION, STATUTES AND CODES:

Se ee a cue ce ud nabnaeescaeudeuevesansneann 4

Conn. Gen: Stat. § 46a-7 et Seq. .............c.sccscosssesescaees 2

Ind. Code

Spee ee WI eB oc cckcesicdcensscntpaskaytiveckecenctspicessaund 4

: Me EH cae or act eves cat a aseaeatarsaneeucteasinen trae eakuareiesaaeans 4

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Oe Be Baad, py snansaseuss erence ecereold cceenicdeeaureeween 4

en NE Fc cadvcnuter “upacvcecesticenvasuascossacwisyeussecasecsans 4

ae fin cs. cas seco acavsceenecauscunsnecuigsewexees haatekes 4

Be Be Roca cas se. ever cde ueccasev seus cansivciscanuamessces. 5

ee A ars ws ceavias covpeminncnaecuamesconeewinaees 5

I occ ccendecvcisaustasidncendioveebers veo saapeon cases 6

I I ain sss her cL ccncdesnessneemsaennsesasserevwareeiind 6

I Pc. con suaccwscuuneSetnpensun bes Fcacakeouens 0

Se os aut ansaaiavivcedenediokaceumennciiainsateerel 6

ee hicccsevon es ucevassncespixasiacntoesascaxtainbanibeoneen 6

1X

TABLE OF AUTHORITIES—Continued

Page

Ky. Rev. Stat. Ann. § 31.010 et seq.............. eee 2

N.D. Cent. Code § 25-01.03-01 et seq. .....................200 2

N.Y. Mental Hyg. Law § 45.01 et seq.................... eee 2

CPetO FOV. COGS S G1Z5.G0 OF BOG... cccccsvisccceserccvacvecsensonss 2

We. CO F GL.B-SO ZA Ob BOG. esinc esc ccscsecscesccsesscesoveesoscenes 2

MISCELLANEOUS AUTHORITIES:

Fee NE, BONE, BO FO CAD vi cescccccecicecssscesasessceetsssncssoss 24

Ind. Prot. & Advocacy Servs., Report to the

Community: Priorities and Objectives for

POs WOOF DETT CHO DOIG) oe ccnsvciscesucccevssnccevasecaces 5

Official Op. No. 40, 1954 Ind. Op. Att’y Gen.

oy craexuiaec secs overeansudcncnceventasvasandiiiaia oe 4

S. Rep. No. 93-1297 (1974), reprinted in 1974

Br UN GHEE F Cis onsuancesutioveacscsonccastsiary aschuuaniedcones 1

BRIEF IN OPPOSITION

Indiana Protection and Advocacy Services re-

spectfully submits this brief in opposition to the

petition for a writ of certiorari.

STATEMENT

A. Statutory Framework

1. Federal law

In response to public reports of deplorable condi-

tions at a New York state institution for persons with

intellectual disabilities in the 1970s, Congress enact-

ed legislation creating a federal grant program that

paid States to designate entities as Protection and

Advocacy Systems dedicated to protecting individuals

with disabilities from abuse and neglect. See Devel-

opmental Disabilities Assistance and Bill of Rights

Act, Pub. L. No. 94-103, § 203, 89 Stat. 486, 504

(1975) (codified as amended at 42 U.S.C. § 15001 et

seq.); S. Rep. No. 93-1297 (1974), reprinted in 1974

U.S.C.C.A.N. 6373, 6408-6409.

In 1986, Congress enacted a similar statute to

fund Protection and Advocacy Systems focused on

protecting individuals with mental illness. See

Protection and Advocacy for Individuals with Mental

Illness Act (PAIMI Act), Pub. L. No. 99-319, 100 Stat.

478 (1986) (codified as amended at 42 U.S.C. § 10801

et seq.). In express statutory findings, Congress

determined that “individuals with mental illness

are vulnerable to abuse and serious injury” and that

existing “State systems for monitoring compliance

2

with respect to the rights of individuals with mental

illness vary widely and are frequently inadequate.”

42 U.S.C. § 10801(a)(1), (a4). Congress made clear

that it intended the federal funds to assist States in

establishing Protection and Advocacy Systems that

could engage in “activities to ensure the enforcement

of the Constitution and Federal and State statutes.”

Id. § 10801(b)(2)(A).

Congress intended that a Protection and Advoca-

cy System be independent of the State, but Congress

gave States flexibility as to how to achieve that goal.

Under both federal statutes, to ensure that Protection

and Advocacy Systems are effective in investigating

abuse or neglect in state-run (as well as private)

treatment facilities, Congress provided that the Sys-

tems “shall * * * be independent of” any state agen-

cies that provide treatment. Jd. §§ 15043(a)(2)(G),

10805(a)\(2). While a State is free to establish a

Protection and Advocacy System either as a “private

non-profit entity” or as a state entity, id. §§ 15044(a),

10805(c)(1)(B), in either situation, the Governor may

appoint no more than one-third of any governing

board of a Protection and Advocacy System. /d.

§ 15044(a)\(2). Indiana and seven other States have

established independent state agencies,’ while the

' See Conn Gen. Stat § 46a-7 et seq.; Ky. Rev. Stat Ann.

§ 31.010 et seq.; N.Y. Mental Hyg Law § 4501 et seq.; N D.

Cent Code § 25-01.03-01 et seq.; Ohio Rev. Code § 5123 60 et

seq , Va. Code § 51.5-39.2A et seq. Alabama’s system 1s estab-

lished by unpublished Governor’s directive.

3

remaining forty-two States have opted for not-for-

profit corporations.

Once a State designates a private non-profit or

state entity as its Protection and Advocacy System,

it cannot change the nature of the System from

private to public (or vice versa) absent “good cause,”

id. § 15043(a)(4)(A), and any such change can be

reviewed initially by the federal government at the

request of the System, id. § 15043(a)(4)(D), and then

a federal court, see Office of the Governor v. Depart-

ment of Health & Human Servs., 997 F.2d 1290, 1292

(9th Cir. 1993).

In addition to authorizing advocacy on behalf of

individuals, both statutes anticipate a separate

protection role for the system by expressly providing

that a Protection and Advocacy System “shall * * *

have access” to treatment facilities and “all records.”

42 U.S.C. §§ 15043(ax(2)(D, (c), 10805(a)(3), (a)(4). To

enforce this right, the statutes confer authority on

each system to pursue “legal, administrative, and

other appropriate remedies” to ensure the protection

of individuals with disabilities or mental illness

who are receiving care or treatment in the State.

Id. §§ 15043(a)(2)(A)G), 10805(a\(1\B). The federal

statutory right to access records is not contingent on

state law. To the contrary, since 1988, Protection and

Advocacy Systems have been entitled to records even

if “the laws of a State prohibit an eligible system from

obtaining access to the records.” Jd. § 10806(b)(2)(C).

2. Indiana Law

a. Indiana established respondent and desig-

nated it as its Protection and Advocacy System in

1977. Respondent was established to “secure to the

state *** and Indiana citizens maximum benefits

under the Developmentally Disabled Assistance and

Bill of Rights Act (P.L. 94-103), and to this end this

chapter should be liberally construed.” Ind. Code

§ 12-28-1-1(b).

Respondent is an independent state agency. Re-

spondent’s governing commission consists of thirteen

voting members, but only four of those members are

appointed by the Governor. Ind. Code § 12-28-1-6(a).

The remaining nine voting members are appointed by

a majority of the commission members, ibid., making

the body self-sustaining. ‘Two non-voting members

are appointed by the state legislature from among its

elected members. /d. § 12-28-1-6(c). Members of the

commission serve fixed terms of three years. Ind.

Code § 12-28-1-7(a). Under Indiana law, state officers

appointed to fixed terms may only be removed “for

cause and then only after a hearing on proper notice.”

Official Op. No. 40, 1954 Ind. Op. Att’y Gen. 146, 147

(1954). Thus, the members of respondent’s governing

commission may be removed from their positions by

impeachment and trial by the state legislature for

“crime, incapacity, or negligence,” Ind. Const. art. VI,

§ 7; see Ind. Code §§ 5-8-1-1 to 5-8-1-18; or by convic-

tion for a felony, see Ind. Code § 5-8-1-38.

5

Respondent may prosecute legal actions without

involvement of the Indiana Attorney General. Re-

spondent possesses the power to “sue and be sued” in

its own name, hire outside counsel, and direct the

exercise of its litigating authority. Ind. Code § 12-28-

1-12(2), (4).

Further, respondent's finances are independent.

The federal payments go “directly” to respondent.

42 U.S.C. § 15042(b). Respondent does not receive

any appropriations from Indiana. See Ind. Prot. &

Advocacy Servs., Report to the Community: Priorities

and Objectives for Fiscal Year 2011, at 3-4 (Fall 2010),

available at http://www.in.gov/ipas/files/0482-281_

IMPACT-Fall10-WEB.pdf.

b. Separate from the Protection and Advocacy

System, Indiana regulates the disclosure of “com-

munications, proceedings, records, determinations, or

deliberations” of a “peer review committee.” Ind.

Code § 34-30-15-1(f)(2). A “peer review committee” is

defined as a committee that (1) is organized by a

hospital or other medical facility; (2) at least half of

whose members are individual professional health

care providers or the governing board of a hospital;

and (3) has the responsibility of evaluation of patient

care rendered by professional health care providers,

or evaluation of the merits of a complaint against a

professional health care provider that includes a

determination or recommendation concerning the

complaint, and the complaint is based on the compe-

tence or professional conduct of an individual health

care provider. See id. § 34-6-2-99(a).

6

While the records of a peer review committee are

generally confidential under state law, there are num-

erous exceptions. Anything generated by the peer

review committee may, upon approval by the health

care facility’s governing body, be reported to an inde-

pendent patient safety agency. Jd. § 34-30-15-1(e).

And any “information” obtained by a peer review com-

mittee may be used by the hospital for “[l]egitimate

internal business uses.” /d. § 34-30-15-21(b). The

“records” and “determinations” of a peer review com-

mittee may be disclosed to the disciplinary authority

of the professional organization of which the profes-

sional health care provider is a member or the appro-

priate state board of registration and licensure that

the peer review committee considers necessary for

recommended disciplinary action. /d. § 34-30-15-8(a).

A “determination” of a peer review committee of the

hospital regarding an adverse event concerning

patient care may be disclosed to the state department

of health or another state agency “as part of the hos-

pital’s quality assessment and improvement pro-

gram.” Jd. § 34-30-15-1(f). And any confidentiality

provision may be waived in writing by the profession-

al health care provider. Jd. § 34-30-15-8(a).

B. Factual Background

This case originated in respondent’s demand

under PAIMI for various records of two persons with

mental illness who died or were injured while in state

custody. The first individual (described by the parties

as Patient 1) died in another facility about 40 days

after being admitted to Larue Memorial Hospital, a

psychiatric hospital operated by the Division of Men-

tal Health and Addiction of the Indiana Family and

Social Services Administration. Pet. App. 6a. Re-

spondent was provided information by a staff person

at Larue that led it to open an abuse and neglect

investigation. Pet. App. 6a.

The second individual (Patient 2), who also re

sided at Larue, complained to respondent that hospi

tal employees and police assaulted, battered, and

attempted to murder him. Pet. App. 6a-7a. Patient 2

signed a release of information authorizing respond-

ent to have access to his records. Pet. App. 7a.

In furtherance of its investigations, respondent

requested the opportunity to inspect and copy four

types of records, and was refused access to all four

types. First, respondent requested access to Mortal.

ity Review Committee and Root Cause Analysis

reports that resulted from Larue’s internal investi

gation into the death of Patient 1. Pet. App. 6a.

Petitioners refused to provide access to these reports

because they were “peer review” records

Respondent also requested a copy of Patient L’s

“complete [medical] chart,” Pet. App. 6a. Petitioners

permitted respondent to inspect Patient 1’s chart at

Larue, Pet. App. 89a, but would not let respondent

copy the chart, Pet. App. 6a. Petitioners stated that

they would not release copies of the medical record

without the consent of Patient 1’s parents. Pet. App.

6a. ‘They also refused to ask Patient 1’s parents

for consent. Petitioners explained that requesting

8

consent of the parents would “suggest to them that a

state agency has found a smoking gun” in Patient 1’s

medical record, and would undo the “many hours”

spent by the hospital social worker in “steering [the

family] away from litigation.” C.A. App. 40.

With regard to Patient 2, respondent sought a

copy of the “investigation” Larue conducted in re-

sponse to Patient 2’s grievance. Pet. App. 7a. Peti-

tioners provided a summary of the “investigation

results,” but did not provide copies of any underlying

records. Pet. App. 7a. Respondent also requested the

“incident report” created by Larue in response to the

events surrounding Patient 2. Petitioners notified

respondent that it would not provide a copy of the

incident report “per organization policy.” Pet. App.

91a; see also Pet. App. 91a. (stating that it was “not

appropriate at any time [for respondent] to ask for a

copy of the Incident Reports”).

C. Proceedings Below

1. Respondent brought an action in district

court seeking injunctive and declaratory relief to

prevent petitioners from denying respondent access to

the records at issue in violation of the PAIMI Act.

Petitioners filed an answer in which they raised no

affirmative defenses.

Following a stipulation of facts, the parties filed

cross-motions for summary judgment. These motions

joined issue on whether “peer review” records were

exempt from the PAIMI Act’s access requirement and

whether respondent was required to get consent from

9

the parents of Patient 1 before accessing Patient 1’s

medical records. Petitioners did not argue that re-

spondent’s action was barred by the Eleventh

Amendment, or question whether respondent pos-

sessed a federal cause of action to enforce the PAIMI

Act.

The district court granted respondent’s motion

for summary judgment and denied petitioners’ motion

for summary judgment. Pet. App. 84a-105a. It held

that PAIMI gave respondent a right to access “peer

review” records, Pet. App. 93a-104a, and noted that

petitioners had conceded in their brief that respon-

dent had the right to access Patient 2’s incident

report, making summary judgment appropriate with

respect to that report as well, Pet. App. 104a. The

district court ordered petitioners to provide respon-

dent access to those records but stayed its injunction

pending disposition of the appeal. Pet. 7-8.

2. On appeal, petitioners renewed their statu-

tory arguments that “peer review” records were

exempt from the PAIMI Act’s access requirement.

Petitioners again conceded that Patient 2’s incident

report “fit[] the statutory definition of a ‘record,’”

Pet. C.A. Panel Br. 18, but claimed that the addi-

tional documents pertaining to Patient 2, described

in their brief as “an incident panel review” and “the

investigator’s notes,” id. at 3, 18, were not “records,”

id. at 18-20. Petitioners did not argue that respon-

dent’s action was barred by the Eleventh Amend-

ment, or question whether respondent possessed a

federai cause of action to enforce the PAIMI Act.

10

Following oral argument, the court of appeals

ordered supplemental briefing on, inter alia, whether

respondent had standing to assert a claim and

whether PAIMI created rights enforceable in federal

court by respondent. See C.A. Panel Order of Jan. 26,

2009. In response, petitioners argued that respon-

dent lacked standing, either in its own right or on be-

half of its clients, see C.A. Supp. Br. for Appellants at

1-3, and that PAIMI, as a funding statute, did not

confer a private right of action on respondent to en-

force respondent’s right to access records. Id. at 3-4.

The court of appeals issued an opinion reversing

the district court’s grant of summary judgment. Pet.

App. 74a-83a. It held that PAIMI did not create a

private right of action to enforce directly the require-

ment that respondent receive access to “all records,”

and that respondent, as a state agency, could not

enforce that requirement by bringing suit under 42

U.S.C. § 1983. Pet. App. 77a-80a. The court further

held, without any briefing, that the Eleventh Amend-

ment barred the suit as to the state agency defen-

dant. As for the state official defendants, the court

held that the Ex parte Young exception did not apply,

because respondent’s suit was not for solely prospec-

tive relief and also merely involved an intramural

dispute within Indiana state government that did not

belong in federal court. Pet. App. 80a-83a.

The en banc court granted rehearing, vacated

that opinion, and ordered full briefing.

1]

3. In their en banc brief, petitioners expressly

abandoned their argument that respondent lacked

standing. Petitioners also acknowledged that they

were obliged to turn over the incident report for

Patient 2. Six weeks later, on the day they served

their en banc reply brief, petitioners gave respondent

access to some documents regarding Patient 2, Pet. 9,

but the particular incident report requested was

never turned because petitioners could not locate it.

And although they previously had argued that they

did not have to turn over underlying investigative

documents, petitioners claimed for the first time

that no other “investigative reports were created

with respect to Patient 2.” Pet. App. 7a n.3; see also

Pet. 9 n.2.

Instead, petitioners pressed only three arguments:

that respondent’s suit was barred by the Eleventh

Amendment; that respondent lacked a federal cause

of action to enforce the PAIMI Act; and that “peer

review records” were exempt from the PAIMI Act’s

access requirement.

The en banc court affirmed the judgment of the

district court against the state official petitioners and

ordered the judgment vacated as to the state agency

petitioner. Pet. App. la-37a.

The court noted that petitioners would normally

have forfeited their Eleventh Amendment defense by

failing to raise it prior to en banc rehearing. Pet.

App. 10a. The court nonetheless elected to address

the defense “[blecause the panel opened the door” by

12

sua sponte raising the immunity in its opinion. Pet.

App. 10a. The court, however, rejected petitioners’

claim of sovereign immunity as to the named state

official defendants, holding that the suit fell squarely

within the scope of Ex parte Young. Pet. App. 10a-18a.

The court then held that Congress, by providing

that respondent “shall have access to all records” and

“shall have the authority to pursue * * * legal and

other appropriate remedies” had clearly conferred on

respondent both a right to access records and a right

of action to enforce that access directly through

PAIMI. PAIMI was thus unlike the statutes at issue

in cases such as Gonzaga v. Doe, 536 U.S. 273 (2002),

which only imposed restrictions on federal funding

recipients. Pet. App. 20a-28a. Additionally, in the

absence of any administrative enforcement mecha-

nism, the only other possible remedy for non-

compliance by Indiana with PAIMI’s requirements

would be a funding cut-off for respondent, which the

Court noted would be “perversely counterproductive.”

Pet. App. 28a-31a; see also Pet. App. 37a-48a (Posner,

J., concurring) (writing separately “to emphasize

practical considerations * * * favor[ing] recognition of

IPAS’s right to sue to obtain patient records”).

On the merits of the proper interpretation of “all

records,” the court affirmed the judgment of the

district court on the ground that it concurred with

the four other courts of appeals to resolve the issue.

Pet. App. 35a-37a.

13

Chief Judge Easterbrook dissented in part. He

agreed with the majority that the Eleventh Amend-

ment did not bar the action, reversing his earlier

view. Pet. App. 58a. But he would have held that

there was no federal right of action for respondent to

access records. Pet. App. 48a-63a.

4. Petitioners sought a stay of the mandate

pending the filing of a petition for writ of certiorari in

this Court. That motion was denied by the court of

appeals in a unanimous decision. Pet. App. 65a-71a.

The court noted that its Eleventh Amendment

holding conflicted with the views of the Fourth Cir-

cuit and that “such a direct circuit split provides

a reasonably promising possibility for certiorari

review.” Pet. App. 68a.’

But on the question of a private right of action

“there is currently no direct circuit split.” Jd. at 69a.

Indeed, the court held that its decision “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.” Id. at 68a.

* A month after the court’s order, this Court granted

certiorari to review the Fourth Circuit’s decision See Virginia

Office for Protection and Advocacy v. Stewart, No. 09-529

(granted June 21, 2010).

14

Likewise, on the question of whether “peer re-

view” records fall within the scope of PAIMI, the court

noted that “all circuits are in agreement.” Pet. App.

69a. With “all circuits in agreement this question

does not appear to be promising for certiorari review”

despite an “apparent outlier” decision by the New

Hampshire Supreme Court. bid.

5. Petitioners applied to this Court for a stay of

the mandate, which was denied by Justice Stevens in

his capacity as Circuit Justice “for the reasons stated

in [the Seventh Circuit’s] order.” Pet. App. S4a.

REASONS THE

PETITION SHOULD BE DENIED

Petitioners seek review of an order compelling

them to provide respondent access to certain docu-

ments. But petitioners provided copies of those

documents to respondent on June 2, 2010, in compli-

ance with the district court’s order. Petitioners them-

selves stated in their unsuccessful application for a

stay of that order that they now possess no remedy

“as a practical matter” because “no court would be

able to force anyone who has seen the [documents] to

erase from their memories the information they have

gleaned from the documents.” Appl. for Stay of

Mandate at 3, 9, No. 09-A1156 (May 27, 2010). Thus,

even if this case is not technically moot (a question

petitioners themselves stated was not free from

doubt, see id. at 9), it is of little practical continuing

significance.

15

In any event, the petition raises no issue war-

ranting review. Although petitioners press an Elev-

enth Amendment question similar to that presented

in Virginia Office for Protection and Advocacy v.

Stewart, No. 09-529 (argued Dec. 1, 2010), there is no

reason to hold this case pending disposition of that

case. That is because petitioners waived their Elev-

enth Amendment claim by failing to timely raise it

below and electing instead to htigate this action on

the merits.

The other questions presented likewise do not

warrant this Court’s review. The Seventh Circuit, in

a holding of first impression that is consistent with

the results reached by all other courts, held that

respondent has a private right of action under the

Protection and Advocacy for Individuals with Mental

Illness Act of 1986 to enforce its statutory right to

access records. Further, consistent with each of the

four courts of appeals that have addressed the issue,

the Seventh Circuit properly interpreted the statuto-

ry phrase “all records” tc contain no implicit exclusion

for so-called “peer review” records, despite some

subsequent legislative history to that effect.

I. CERTIORARI SHOULD BE DENIED ON THE

FIRST QUESTION BECAUSE PETITIONERS

WAIVED ANY ELEVENTH AMENDMENT IM-

MUNITY THEY POSSESSED

The Seventh Circuit en banc unanimously and

correctly held that respondent, an independent state

agency, can rely on the Ex parte Young doctrine to sue

16

state officials for prospective relief to enforce federal

law without violating the Eleventh Amendment. This

Court is addressing that very issue in Virginia Office

for Protection and Advocacy v. Stewart, No. 09-529

(argued Dec. 1, 2010).

But there is no reason to hold this case pending

disposition of that case. The Seventh Circuit need

not have relied on Ex parte Young in this case because

petitioners waived any immunity they possessed by

failing to raise that immunity defense until their en

banc brief and, instead, litigating the case on the

merits.

Eleventh Amendment immunity is not an issue of

subject-matter jurisdiction and thus need not be

raised by a court sua sponte. Wisconsin Dep't of Corr.

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

sovereign immunity is a “personal privilege.” Clark v.

Barnard, 108 U.S. 436, 447 (1883). It may be waived

by litigation conduct, see Lapides v. Board of Regents,

535 U.S. 613, 619-620 (2002), including the failure to

raise it in the district court, see Blessing v. Freestone,

520 U.S. 329, 340 n.3 (1997); cf. Kendall v. United

States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 623 (1838)

(“(Personal jurisdiction} is a personal privilege which

may be waived by appearance; and if advantage is to

be taken of it, it must be by plea or some other mode

at an early stage in the cause.”). In so holding, this

Court has been mindful of the inequity that results

when a state official litigates on the merits in the

district court, then argues on appeal that the district

court never actually had jurisdiction. Lapides, 535

17

U.S. at 620-621; cf. Schacht, 524 U.S. at 394 (Ken-

nedy, J., concurring).

This case is an excellent example of the waste of

litigant and court resources flowing from adjudicating

a belatedly-raised defense of immunity. The parties

here spent considerable time compiling a factual

record and briefing the merits in the district court,

and the district court expended its resources to re-

solve the action on the merits at summary judgment.

Petitioners’ appeal used up further time, energy,

and resources in the briefing and consideration of

their merits-oriented statutory interpretation claims.

Indeed, petitioners failed to brief the Eleventh

Amendment issue until the case was heard en banc

by the full Seventh Circuit, more than three years into

the litigation.

Notwithstanding petitioners’ failure to advance

an Eleventh Amendment defense either before the

district court or on appeal, the court of appeals panel

chose to address the question. It should not have

done so. For its part, the en banc Seventh Circuit,

rather than holding the immunity defense forfeited,

chose to address the defense in its own opinion solely

because “the panel opened the door” by “rais[ing|

the Eleventh Amendment issue.” Pet. App. 10a. The

Seventh Circuit ought not have condoned the waste

18

and unfairness resulting from petitioners’ belated

assertion of immunity. Nor should this Court.”

II. CERTIORARI SHOULD BE DENIED ON

THE SECOND QUESTION PRESENTED

BECAUSE THERE IS NO DIVISION IN

THE COURTS AND THE COURT'S DECI-

SION WAS CORRECT

1. Petitioners argue (Pet. 13-25) that this Court

should grant review of the Seventh Circuit’s holding

* There 1s no dispute that the lower courts otherwise

possessed Article II] jurisdiction over this action Nonetheless,

because petitioners at some points challenged respondent's

Article III standing (while later conceding it), respondent notes

the following. First, the failure to obtain records to which

federal law arguably entitles respondent “constitutes a suffi-

ciently distinct jury to provide standing to sue,” petitioners’

refusal to provide the records is the cause of that injury, and

ordering petitioners to provide the records will redress that

injury. Public Citizen v. Department of Justice, 491 U.S. 440,

449 (1989)

Second, the nature of respondent as an independent state

agency suing other state officials does not alter that standing

analysis because a sovereign can create agencies that are suffi

ciently independent that they possess the requisite adversity

with other agencies even if, ultimately, the sovereign could moot

the dispute by eliminating one of the agencies See Lassen vu

Arizona ex rel Arizona Highway Dep't , 385 US. 458, 460 n.1

(1967) (“This action 1s in form and substance a controversy be-

tween two agencies of the State of Arizona * * * We have none-

theless concluded that this 1s a case with which we may properly

deal. The Land Commissioner is apparently a substantially

independent state officer, appointed for a term of years and

removable only for cause.”); Udall v. FPC, 387 US. 428 (1967)

(adjudicating challenge by Secretary of the Interior to Federal

Power Commission decision licensing a hydroelectric dam)

19

that the PAIMI Act creates a federal cause of action

for respondent to enforce its federal right to access

records solely because, in petitioners’ view, the Sev-

enth Circuit got it wrong. Petitioners are, in fact, the

ones who have it wrong. But that reason, standing

alone, is no basis for granting certiorari.

The cause of action question is one of first im-

pression in the courts of appeals, as the Seventh

Circuit noted. Pet. App. 68a. That is not because the

Protection and Advocacy Systems have not sued

defendants in the past to enforce their right to access

records under PAIMI and its predecessor, the Devel-

opmenta] Disabilities Act. To the contrary, Protection

and Advocacy Systems have been doing so for several

decades. See, e.g., Connecticut Office of Prot. & Advo-

cacy for Persons with Disabilities v. Hartford Board of

Educ., 464 F.3d 229 (2d Cir. 2006) (Sotomayor, J.);

Disability Rights Wisconsin, Inc. v. State of Wisconsin

Dep’t of Pub. Instruction, 463 F.3d 719 (7th Cir. 2006);

Protection & Advocacy for Persons with Disabilities v.

Mental Health & Addiction Servs., 448 F.3d 119 (2d

Cir. 2006) (Sotomayor, J.); Missouri Prot. & Advocacy

Servs. v. Missourt Dep't of Mental Health, 447 F.3d

1021 (8th Cir. 2006); Center for Legal Advocacy v.

Hammons, 323 F.3d 1262 (10th Cir. 2003); Pennsyl-

vania Protection & Advocacy, Inc. v. Houstoun, 228

F.3d 423 (3d Cir. 2000) (Alito, J.); Alabama Disabili-

ties Advocacy Program v. J.S. Tarwater Developmen-

tal Ctr., 97 F.3d 492 (11th Cir. 1996); Mississippi Prot.

& Advocacy Sys., Inc. v. Cotten, 929 F.2d 1054 (5th

Cir. 1991); Ohio Legal Rights Serv. v. Buckeye Ranch,

20

Inc., 365 F. Supp. 2d 877 (S.D. Ohio 2005); Equip for

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

2d 1086 (N.D. Ill. 2003); Kentucky Prot. & Advocacy

Div. v. Hall, No. 3:01CV-538, 2001 WL 34792531

(W.D. Ky. Sept. 24, 2001); Wisconsin Coalition for

Advocacy, Inc. v. Czaplewski, 131 F. Supp. 2d 1039

(E.D. Wis. 2001); Trautz v. Weisman, 846 F. Supp.

1160 (S.D.N.Y. 1994).

What is unusual about this case is that (at the

prodding of the appellate panel) this is one of the first

cases in which a defendant has challenged the exis-

tence of a federal cause of action for a Protection and

Advocacy System. Pet. App. 3la-32a. The only other

case, from a district court in Hawaii, reached the

same result as the Seventh Circuit. See Hawaii

Disability Rights Center v. Cheung, 513 F. Supp. 2d

1185 (D. Haw. 2007). Further percolation is appro-

priate to see how other courts react to this novel

argument.

Further, petitioners conceded below that respon-

dent can enforce its right to access records against

state officials under a state cause of action. Pet. App.

17a-18a n.8. Thus, it is unclear why petitioners think

this issue warrants further review, as they will not

be avoiding any lawsuits by respondent even if

they prevail on the merits of their cause-of-action

argument.

2. In any event, the Seventh Circuit was cor-

rect. It examined (Pet. App. 19a-20a, 22a-27a) the

cases cited by petitioners in the petition—Alexander

v. Sandoval, 532 U.S. 275 (2001), Gonzaga University

21

v. Doe, 536 U.S. 273 (2002), and Brunner v. Ohio

Republican Party, 555 U.S. 5 (2008) (per curiam)

and applied their holdings to this unique federal stat-

ute. “[CJjlose attention to the language and structure

of the PAIMI Act shows that Congress made suffi-

ciently clear its intention to authorize protection and

advocacy systems to sue directly under the PAIMI Act

to enforce their rights to access to patient records

against both public and private care-givers for the

mentally ill.” Pet. App. 34a.

As the court of appeals explained, the PAIMI Act

does not (like a normal Spending Clause statute)

require the State that receives federal funds under

the Developmental Disabilities Act to do anything

other than “designate[ ]” an entity to be its Protection

and Advocacy System. Pet. App. 28a. Once the State

does that, it is federal law that gives the Protection

and Advocacy System its right to sue and the right to

access records---no state implementation legislation is

required. Pet. App. 2la, 28a. This reading is con-

firmed by Section 106(b) of PAIMI, which provides

that “liJf the laws of a State prohibit an eligible

system from obtaining access to the records,” then the

effective date of the federal law is delayed until “the

date such system is no longer subject to such prohibi

tion” or May 23, 1986, “whichever occurs first.” 42

U.S.C. § 10806(b)\(2)(C). That provision “expressly

preempts any state law prohibiting such access.” Pet.

App. 41a (Posner, J., concurring).

The court of appeals then inquired whether these

federal rights were enforceable by a Protection and

22

Advocacy System. They found express authorization

for suit in Section 105(a) of PAIMI. That provision

provides that a System “shall have the authority to

pursue administrative, legal, and other appropriate

remedies to ensure the protection of individuals with

mental illness.” 42 U.S.C. § 10805(a)(1)(B). “A suit

for access to patient records,” the court of appeals

found, “falls squarely within [that] statutory authori-

ty.” Pet. App. 21a; see also Pet. App. 41a (Posner, J.,

concurring).

Further, the court of appeals held that federal

fund termination, which is often an important reme-

dy for assuring compliance with the goals of federal

spending programs, had no utility under this statute.

Pet. App. 29a-30a & n.13. That is because, normally,

under a Spending Clause statute the funds that are

terminated are those of the entity in non-compliance,

such as a school district that discriminates or a state

agency that does not permit someone to register to

vote. But in this case, the entity that would lose the

PAIMI money, the Protection and Advocacy System, is

not at fault. It is trying to comply with federal law by

accessing the records. It is state officials of state

agencies responsible to the Governor that are violat-

ing federal law by not providing access to those

records. Pet. App. 38a (Posner, J., concurring) (respon-

dent “is a helpless bystander to the state’s thumbing

its nose at the statute under which [respondent] has

received federal money”). Yet those agencies are not

recipients of PAIMI money and thus a threat of fund

termination would not encourage their compliance

23

with respondent’s requests. Pet. App. 44a (Posner, J.,

concurring). “It is highly unlikely that Congress

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

to such violations by a state.” Pet. App. 3la.*

lil, CERTIORARI SHOULD BE DENIED ON

THE THIRD QUESTION PRESENTED

BECAUSE THE DECISION BELOW RE-

GARDING THE APPLICATION OF PAIMI

TO PEER REVIEW RECORDS IS COR-

RECT AND CONSISTENT WITH PRIOR

DECISIONS IN THE LOWER COURTS

1. The question of whether the mght of Protec-

tion and Advocacy Systems under the PAIMI Act to

“have access to all records” extends to peer review

records has generated no conflict in the federal

courts.

The court below joined the four other federal

courts of appeals to hold that Protection and Advocacy

Systems’ right to access records encompasses peer

review records. See Protection & Advocacy for Per

sons with Disabilities v. Mental Health & Addiction

Serus., 448 F.3d 119 (2d Cir. 2006) (Sotomayor, J.);

Missouri Prot. & Advocacy Servs. v. Missouri Dep't of

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

* In addition, respondent argued that this suit could pro-

ceed under 42 U.'SC § 1983 if brought by an official of respon-

dent in his official capacity, and that 1t could be brought to en-

force the Supremacy Clause under £x parte Young Pet App. 3la.

Those would remain alternative grounds for affirmance even if

there was no cause of action directly under the PAIMI Act.

24

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

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

Houstoun, 228 F.3d 423 (3d Cir. 2000) (Alito, J.).

Petitioners argue (Pet. 27-28) that all these deci-

sions conflict with an earlier decision of the New

Hampshire Supreme Court. See Disabilities Rights

Ctr., Inc. v. Commissioner, 732 A.2d 1021 (N.H. 1999).

As the Second Circuit pointed out, see Protection

& Advocacy, 448 F.3d at 126, the New Hampshire

court did not address the relevant statutory lan-

guage. Instead, it focused on a federal HHS regula-

tion stating that the access right was not intended to

preempt state laws preventing access to peer review

records. Unlike the federal courts of appeals, the

state court did not consider whether that regulation

could be reconciled with the language of the PAIMI

Act itself, apparently because that argument was not

raised. See Disabilities Rights Ctr., 732 A.2d at 1023-

1024.

The federal courts of appeals deciding this ques-

tion have all subsequently concluded that the regula-

tion was inconsistent with the statute. And HHS is

currently considering regulatory revisions that would

eliminate the provision relied on by the state court.

See 73 Fed. Reg. 19,708, 19,708-19,709, 19,716,

19,731-19,732 (2008). This event further suggests

that any disagreement with the state court is of no

continuing significance.

2. The federal courts of appeals have correctly in-

terpreted the statute. Section 105 of PAIMI mandates

that respondent shall “have access to all records of

* * * any individual.” 42 U.S.C. § 10805(a)(4) (em-

phasis added). Section 106 of PAIMI defines the term

“records” 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 * * *

describ{ing] incidents of abuse, neglect, and injury

*** and the steps taken to investigate such inci-

dents.” Jd. § 10806(b)(3).

Section 106 of PAIMI also emphasizes that this

access right applies notwithstanding “the laws of a

State” that would “prohibit an eligible system from

obtaining access to the records of individuals with

mental illness in accordance with section 10805(a)(4)

of this title and this section.” Jd. § 10806(b)(2)\(C).

Thus, the plain language of PAIMI gives Protection

and Advocacy Systems such as respondent the right

to “all” reports created by hospital committees evalu-

ating the treatment of their patients.

3. Petitioners seek to evade the plain language

(Pet. 27) by recourse to legislative history from a 1991

committee report. But the provisions governing

records were enacted in 1986 and 1988. See PAIMI

Act, Pub. L. No. 99-319, §§ 105, 106, 100 Stat. 478,

480 (1986) (initial enactment of statute); PAIMI

Amendments Act of 1988, Pub. L. No. 100-509, § 6(b),

102 Stat. 2543, 2544 (1988) (adding definition of

“records”). None of the language was amended in

1991. A committee report describing what an earlier

Congress did is entitled to virtually no weight. See

26

Doe v. Chao, 540 U.S. 614, 626-627 (2004). As the

Third Circuit said in Pennsylvania Protection &

Advocacy, if Congress wanted to exclude state peer

review records, “it needed to enact different statutory

language. It could not achieve that result, in the face

of the statutory language it enacted, simply by insert-

ing a passage in a committee report” after the fact.

228 F.3d at 428.

Petitioners fare no better with their claim (Pet.

30) that the statute should be read to implicitly

exclude peer review records on public policy grounds.

Privileges that protect relevant evidence from dis-

covery are disfavored. See University of Pennsylvania

v. EEOC, 493 U.S. 182, 188-195 (1990) (refusing to

recognize academic peer review privilege). . Federal

courts have refused to recognize a federal medical

peer review evidentiary privilege, even when such

records would be privileged in state courts under

state law. See, e.g., Adkins v. Christie, 488 F.3d 1324

(llth Cir. 2007), cert. denied, 552 U.S. 1131 (2008):

Virmani v. Novant Health Inc., 259 F.3d 284 (4th Cir.

2001); Memorial Hosp. v. Shadur, 664 F.2d 1058 (7th

Cir. 1981) (per curiam). The decision below, which

permits Protection and Advocacy Systems access to

peer review documents in order to protect persons in

state-run institutions from abuse and neglect, is

consistent with public policy as reflected in this

unbroken line of decisions.

27

CONCLUSION

For the reasons set forth above, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

KAREN T. Davis DEANNE E. MAYNARD

INDIANA PROTECTION AND SETH M. GALANTER

ADVOCACY SERVICES Counsel of Record

4701 North Keystone Ave., BRIAN R. MATSUI

Suite 222 MORRISON & FOERSTER LLP

Indianapolis, IN 46205 2000 Pennsylvania Ave.,

N.W.

Washington, D.C. 20006

sgalanter@mofo.com

(202) 887-6947

Counsel for Respondent

JANUARY 3, 2011