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

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Suprem> Court, US

FILED

JANN 25

\\ OF CE OF THE CLERK

No. 10-131

IN THE

Supreme Court of the Gnited States

[INDIANA FAMILY AND SOCIAL SERVICES

ADMINISTRATION; MICHAEL A. GARGANOQO, in his

official capacity as Secretary of the Indiana Family and

Social Services Administration; GINA ECKART, in her

official capacity as Director of the Division of Menta!

Health and Addiction; LARRY LISAK, in his official

capacity as Superintendent of Larue Carter Memorial

Host ita

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

REPLY IN SUPPORT OF THE PETITION

Office of the Attorney Genera GREGORY I ZOELLEI

IGC South, Fifth Floor Attorney General

302 W. Washington Street l'HOMAS M. FISHE!

Indianapolis, IN 46204 Solicitor Genera!

) 232-6255 (Counsel of Record

HEATHER HAGAN MCVE

\SHLEY TATMAN HARW!

leputy Attorneys Gene

Counsel for Petitioners

TABLE OF CONTENTS

TABLE OF AUTHORITIES

REPLY IN SUPPORT OF THE PETITION

The Seventh Cuircuit Chose to Address

Indiana's Sovereign Immunity Claim and

it is Therefore a Live Issue

|] The Seventh Cuircuits Ruling on the

Cause of Action Issue is in Tension with

Supreme Court Precedent

Ih] In Conflict with the Decision Below. Both

HHS and a State Supreme Court have

Concluded that Confidential Peer Review

Documents Are Not Covered by PAIMI

CONCLUSION

TABLE OF AUTHORITIES

CASES

Alexander v. Sandoval

ma

532 U.S. 275 (2001)

Brunner v. Ohio Republic

S55 US r) (2OQ8)

Caideron v. Ashmus,

523 U.S. 740 (1998)

for Legal Ad Oocac’

323 F.3d 1262 (10th

Disabilities Righ ts Ctr., In v. Con

Hampshire Dep’t of Correctior

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

tt) &

’ | ;

Edelman v. Jordar

415 U.S. 651 (1974)

Florida Dept O} State t

Inc..,

158 U.S. 670 (1982

Ford Motor Co. ' LJep t of [re

293 U _ 459 (1 14 >)

CASES (CONT'D)

Gonzaga Univ. v. Doe,

536 U.S. 273 (2002)....

Lapides v. Bd. of Regents of the Univ. Sys

Georgia,

535 U.S. 613 (2002)....

Missouri Prot. & Advocacy Servs

Dep't of Mental Health,

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

Pennhurst State Sch. & Hosp. v. Haldermar

165 U.S. 89 (1984)

Pennsylvania Prot. & Advocacy)

Houstoun.

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

Prot. & Adi ocacy jor Persons with Disabil

». Mental Health & Addiction Seri

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

Sosna { lowa.

119 U.S. 393 (1975)

Touche Ross & Co. v. Redington

142 U.S. 560 (1979)

Virginia v. Reinhard,

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

Wisconsin Dept of Corr. v. Schacht

524 U.S. 381 (1998)

REPLY IN SUPPORT OF THE PETITION

Re VOT)

itinulng

»( lo ed tne

Bi

{ }

Lad uc i the ame

ome of Reinhard i control the re

ult of

m immun resented he

(Lourt hor

de

The Seventh Circuit Chose to Address

Indiana’s Sovereign Immunity Claim and

itis Therefore a Live Issue

other grounds! by Lapides v. Bd. of Regents of the

Univ. Sys. of Georgia, 535 U.S. 613, 623 (2002); see

also Sosna v. lowa, 419 U.S. 393, 396 n.2 (1975)

(“the failure of the State to raise the defense of

sovereign immunity in the District Court would not

have barred Iowa from raising that issue in this

Court’).

More specifically, “[t]he Court has said the

Eleventh Amendment bar may be asserted for the

first time on appeal, so a State which is sued in

federal court does not waive the Eleventh

Amendment simply by appearing and defending on

the merits.” Wisconsin Dep’t of Corr. v. Schacht, 524

U.S. 381, 393-94 (1998) (Kennedy, J. concurring)

(citing Florida Dep’t of State v. Treasure Salvors,

Inc., 458 U.S. 670, 683, n.18 (1982) (plurality

opinion); Calderon v. Ashmus, 523 U.S. 740, 745, n.2

(1998); Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 99, n.8 (1984); Edelman v. Jordan, 415

U.S. 651 (1974)).

Regardless, the Seventh Circuit panel raised the

sovereign immunity issue, as it was entitled to do,

and the en banc court correctly found that “because

the panel opened the door, [it needed to] address the

defense.” App. 10a. This effectively negates any

suggestion of waiver. The Seventh Circuit decided

the issue, the result impairs the state’s immunity

1 In Lapides, the Court’s finding of waiver was “limit[ed] . . . to

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

has explicitly waived immunity from state-court proceedings.”

535 U.S. at 617. This concern does not apply where, as here,

there has been no removal of state law claims to federal court.

going forward, and, therefore, the issue is alive and

appealable.

IPAS nonetheless claims that the Seventh Circuit

should not have addressed the Eleventh Amendment

defense in its en banc opinion even though the panel

based its decision on that issue. Brief in Opposition

at 17. If the en banc court had ignored the issue,

however, there would have been no circuit conflict

p»ompting the Court to grant certiorari in Reinhard.

IPAS’s argument, taken to its logical conclusion,

implies that the Court should (1) grant, vacate and

remand this case with instructions that the Seventh

Circuit remove the Eleventh Amendment holding

from its en banc opinion; and (2) dismiss the VOPA

case as improvidently granted in light of a lack of

circuit conflict.

It seems unhkely that IPAS would actually desire

this result, so its walver argument cannot be given

credence. Accordingly the Court should at the very

least hold this case pending resolution of Reinhard.

Il. The Seventh Circuit’s Ruling on the Cause

of Action Issue is in Tension with Supreme

Court Precedent

IPAS stresses that whether PAIMI creates a

cause of action is “an issue of first impression.” Brief

in Opposition at 19. Yet four other circuits have

granted relief to P&A systems as if a PAIMI cause of

action exists. See, e.g., Prot. & Advocacy for Persons

with Disabilities v. Mental Health & Addiction

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

Prot. & Advocacy, Inc. v. Houstoun, 228 F.3d 423,

428 (3d Cir. 2000); Missouri Prot. & Advocacy Servs.

v. Missouri Dep't of Mental Health, 447 F.3d 1021

(8th Cir. 2006); Ctr. for Legal Advocacy v. Hammons,

323 F.3d 1262, 1272 (10th Cir. 2003). None of these

cases even cites Gonzaga or otherwise explains

where they found a PAIMI cause of action, yet they

permitted one sub silentio. The Court should not

wait on the unlikely event that these courts will

reverse course before taking up this issue.

The decision below and the tacit approval of a

PAIMI cause of action elsewhere is_ especially

troubling because this Court has so emphatically

provided clear guidance on when and how Spending

Clause statutes create causes of action. See, e.g.,

Gonzaga Univ. v. Doe, 5386 U.S. 273, 283-84 (2002):

Alexander v. Sandoval, 532 U.S. 275, 286 (2001);

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

Whether Congress intended to create a cause of

action “is definitively answered in the negative’

where ‘a statute by its terms grants no private rights

to any identifiable class.” Gonzaga, 536 U.S. at 283-

84 (quoting Touche Ross & Cc. v. Redington, 442

U.S. 560, 576 (1979)). Meve recently, this Court

reemphasized that causes of action must be clearly

set forth by Congress, rejecting as it did the Sixth

Circuit's understanding that state-level

administrative processes can imply rights of action

to enforce federal programs. See Brunner v. Ohio

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

Here, “[t]he statutes in question do not confer

rights on the plaintiff.” App. 49a (Easterbrook, C.J.,

dissenting); see also Petition at 13-25. The en banc

court’s creation of a cause of action shows that the

Court’s repeated doctrinal instructions are not being

carried out. See App. 49a (Easterbrook, C.J.,

dissenting). Given the nature of the doctrine at

stake, which requires clarity on the part of Congress

before the Court finds a right of action, and given

that so many appeals courts have already assumed

this issue away, this is not a case where the Court is

likely to gain any benefit from further percolation

and insight from lower courts. Either Congress

unambiguously provided a cause of action under

PAIMI or it did not.

Furthermore, IPAS suggests that it would

somehow be unfair for PAIMI to be treated as a

typical Spending Clause statute because cancellation

of the federal grant would harm IPAS and its

particular mission rather than other state officials

and their particular mission. Brief in Opposition at

22. But it 1s the need to hold accountable the grant-

receiving state, not a particular agency or official of

that state, that makes grant revocation an

appropriate remedy. If Indiana loses the grant that

funds IPAS, Jndiana is held accountable, and IPAS’s

funding is part of that.

Ultimately, like its (and VOPA’s) arguments with

regard to the sovereign immunity issue, 1PAS’s

position on this “fairness” issue ignores the fact that

IPAS is the state. Even if a state-agency protection

and advocacy system has a sufficiently justiciable

stake to satisfy Article III (and some members of the

Court raised doubts about this at the oral argument

in Reinhard), it is wrong to conceptualize IPAS as

having some broader equitable interest in federal

funding beyond its role as an appendage of the state.

Regardless, it is irrelevant to the cause of action

issue whether judges may think it unfair to defund

IPAS in response to the failings of another state

agency's officials. 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 (Easterbrook,

C.J., dissenting).

PAIMI provides no cause of action for this

lawsuit. The Court should grant this case to

emphasize the restrictions imposed on lower courts

by its right-of-action precedents.?

2 IPAS suggests that it could also proceed under 42 U.S.C. §

1983. Brief in Opposition at 23 n.4. In the en banc

proceedings, however, IPAS conceded that, as a state agency, it

could not bring suit under Section 1983. It even asked for a

remand so as to amend its complaint to add its Executive

Director in his official capacity as a plaintiff. See IPAS En

Banc Br. at 50. IPAS thus recognized that because of its

pleading choices, Section 1983 was not the “alternative grounds

for affirmance” that it now claims. Brief in Opposition at 23

n.4. Regardless, the IPAS Executive Director is no more a

“person” under Section 1983 than is IPAS, as the rationale for

allowing Section 1983 suits for injunctive relief to proceed

against state officials does not apply to such suits by state

officials—the law of Section 1983 cannot bear any more fictions

than it already has. See State En Banc Reply Br. at 18.

Finally, Section 1983 “merely provides a mechanism for

enforcing individual rights ‘secured’ elsewhere,” and if PAIMI

does not secure rights justifying a cause of action, see supra

Part II, any properly raised Section 1983 claim would also fail.

III. In Conflict with the Decision Below, Both

HHS and a State Supreme Court have

Concluded that Confidential Peer Review

Documents Are Not Covered by PAIMI

The Department of Health and Human Services

has promulgated a rule interpreting PAIMI to

exclude peer review records, the confidentiality of

which is otherwise protected by state law. See 42

C.F.R. § 51.41(c)(4). Five courts of appeals,

including the Seventh Circuit, have now found that

the HHS rule is inconsistent with PAIMI. See Brief

in Opposition at 23-24. The New Hampshire

Supreme Court, however, has upheld and enforced

HHS’s regulation concerning peer review records.

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

Hampshire Dep't of Corrections, 732 A.2d 1021, 1024

(N.H. 1999).

HHS is in the process of promulgating a new rule,

73 Fed. Reg. 19,708, 19,715, (Apr. 10, 2008), but that

process began more than two years ago, and there is

no reason to believe that a final revision will be

issued soon. The conflict among courts regarding the

extant regulation continues to cause confusion for

doctors, administrators and agency officials who

must try to apply the law. The Court needs to

resolve the peer-review documents issue for the sake

of consistency and finality.

Gonzaga, 536 U.S. at 285; see also State En Banc Reply Br. at

17-19.

CONCLUSION

The petition should be granted or at the very

least held pending the Court’s decision in Reinhard.

Office of the Attorney General

IGC South, Fifth Floor

302 W. Washington Street

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

Dated: January 11, 2011

Respectfully Submitted,

GREGORY F. ZOELLER

Attorney General

THOMAS M. FISHER

Solicitor General

(Counsel of Record)

HEATHER HAGAN MCVEIGH

ASHLEY TATMAN HARWEL

Deputy Attorneys General

Counsel for Petitioner