# Reply Brief — Indiana Family & Social Services Administration v. Indiana Protection & Advocacy Services > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2316%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2011 - **Citation:** 563 U.S. 969 ## Text Sn 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2316%3A3. Public record. Not legal advice.