United States v. Sec'y Fla. Agency for Health Care Admin.

21 F.4th 730 (Mem)

UNITED STATES of America, Interested Party-Appellant,

v.SECRETARY FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, in her official capacity, State Surgeon General, in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health, Kristina Wiggins, in her official capacity as Deputy Secretary of the Florida Department of Health and Director of Children's Medical Services, State Surgeon General John Armstrong, MD, Deputy Secretary Dr. Celeste Philip, et al., Defendants-Appellees.

No. 17-13595

United States Court of Appeals, Eleventh Circuit.

Filed: December 22, 2021

Bonnie I. Robin-Vergeer, Thomas E. Chandler, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Elizabeth Erin McDonald, Emily M. Smachetti, Lindsey Weinstock, U.S. Attorney General's Office, Washington, DC, Emily M. Smachetti, U.S. Attorney General's Office, Miami, FL, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Interested Party-Appellant.

Andrew Taylor Sheeran, Leslei Gayle Street, Florida Agency for Health Care Administration, Tallahassee, FL, Stuart F. Williams, Liberty Dental, Tallahassee, FL, for Defendant-Appellee Secretary Florida Agency for Health Care Administration.

Caryl Kilinski, Office of the Attorney General, Tallahassee, FL, Andrew Taylor Sheeran, Florida Agency for Health Care Administration, Tallahassee, FL, Jennifer Ann Tschetter, Florida Department of Health, Tallahassee, FL, for Defendants-Appellees Surgeon General, State of Florida, Kristina Wiggins.

Jay Patrick Reynolds, Florida Department of Health, Tallahassee, FL, for Defendant-Appellee John Armstrong.

William Eugene Gandy, Jr., Florida Department of Health, Tallahassee, FL, for Defendant-Appellee Celeste Philip.

Carter Glasgow Phillips, Sidley Austin, LLP, Washington, DC, Andre V. Bardos, GrayRobinson, PA, Tallahassee, FL, Stefan R. Grow, Florida Agency for Health Care Administration, Tallahassee, FL, Collin P. Wedel, Sidley Austin, LLP, Los Angeles, CA, for Defendant-Appellee State of Florida.

Ira A. Burnim, Bazelon Center for Mental Health Law, Washington, DC, Jean Mary Zachariasiewicz, Brown Goldstein & Levy, LLP, Baltimore, MD, for Amici Curiae Bazelon Center for Mental Health Law, National Disability Rights Network, Autistic Self Advocacy Network, Arc of the United States.

Ira A. Burnim, Bazelon Center for Mental Health Law, Washington, DC, Daniel Frank Goldstein, Jean Mary Zachariasiewicz, Brown Goldstein & Levy, LLP, Baltimore, MD, for Amicus Curiae National Federation of the Blind.

Thomas A. Crabb, Brittany Adams Long, Christopher Brian Lunny, Harry Osborne Thomas, Radey Law Firm, Tallahassee, FL, for Defendant eQHealth Solutions, Inc.

Jean Mary Zachariasiewicz, Brown Goldstein & Levy, LLP, Baltimore, MD, for Amici Curiae Disability Rights Education and Defense Fund, Inc., National Alliance on Mental Illness.

Neil V. McKittrick, Ogletree Deakins Nash Smoak & Stewart, PC, Boston, MA, Jon M. Greenbaum, Lawyers' Committee for Civil Rights Under Law, Voting Rights Project, Washington, DC, for Amicus Curiae Former Members of 1990 Congress Involved in Passage of ADA.

Scott A. Keller, Baker Botts, LLP, Washington, DC, Natalie Thompson, Office of the Attorney General of Texas, Austin, TX, for Amicus Curiae State of Texas.

Scott A. Keller, Baker Botts, LLP, Washington, DC, for Amici Curiae State of Georgia, State of Indiana, State of Kansas, State of Louisiana, State of Oklahoma, State of South Dakota.

Before William Pryor, Chief Judge, Wilson, Jordan, Jill Pryor, Newsom, Branch, Grant, Luck, Lagoa, and Brasher, Circuit Judges.^*

BY THE COURT:

A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting rehearing en banc, it is ORDERED that this case will not be reheard en banc.

Jill Pryor, Circuit Judge, respecting the denial of rehearing en banc:

I was a member of the panel majority. We held that the Attorney General of the United States may bring a lawsuit against the State of Florida to enforce Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131 –65. Judge Newsom dissents from the denial of rehearing en banc because, in his view, nothing in the ADA authorized the Attorney General to sue Florida in this case. Judge Branch dissented from the panel majority opinion on one of the two grounds Judge Newsom raises today. I write to respond to my dissenting colleagues' arguments that the panel erred in interpreting the statutory scheme.

* * *

The United States maintains that Florida administers its Medicaid program in a way that forces children with severe medical conditions into nursing homes to receive medical services necessary for their survival. As a result, these medically-fragile children often are placed in institutions hours away from their families, where they allegedly "spend most of their days languishing in bed or in their wheelchairs, with no one interacting with them and nothing to do." 12-cv-60460 Doc. 509 at 3.¹

The United States Attorney General filed this lawsuit against the State of Florida under Title II of the ADA to vindicate the medically-fragile children's rights. The Attorney General claimed that Florida discriminated based on the children's disabilities because, although it would be possible for the children to receive the services they need while living with their families or guardians, Florida administered and funded its Medicaid program in such a way that the children can receive the services only in institutionalized settings. See Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581, 587, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (holding that a state engages in disability discrimination if it institutionalizes individuals with disabilities when community-based placement could be reasonably accommodated, accounting for the resources available to the state and the needs of others with disabilities.).

The question in this appeal is whether Title II of the ADA authorized the Attorney General to bring this lawsuit against the State of Florida. Title II generally prohibits state governments and agencies from discriminating based on disability. See 42 U.S.C. §§ 12131(1), 12132. Its enforcement provision states that "the remedies, procedures, and rights ... provide[d] to any person alleging discrimination on the basis of disability" under § 12132 shall be the "remedies, procedures, and rights set forth in section 794a of Title 29." Id. § 12133.

Given the enforcement provision's incorporation by reference, we can answer the central question of statutory interpretation here—whether the remedies, procedures, and rights available to a person alleging discrimination include suit by the Attorney General to vindicate the disabled person's rights—only after identifying the remedies, procedures, and rights available under not one, but, as it turns out, two earlier civil rights statutes. In its opinion, the panel majority painstakingly followed this chain of statutory references. After careful review of Title II's text, the enforcement schemes incorporated by reference, and the entire statutory scheme in context, the panel majority concluded that suit by the Attorney General was indeed a remedy, procedure, or right available to a person alleging discrimination under Title II.

Title II's enforcement provision incorporates by reference the remedies, procedures, and rights available to a person alleging discrimination under section 794a of Title 29, which is the Rehabilitation Act—an earlier civil rights statute that prohibits disability discrimination in connection with "any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). But when we look for the remedies, procedures, and rights available to a person alleging discrimination under the Rehabilitation Act, we find a reference to another statute, this one incorporating the remedies, procedures, and rights available under Title VI of the Civil Rights Act of 1964. See id. § 794a(a)(2). Title VI of the Civil Rights Act, an even earlier civil rights statute, similarly prohibits discrimination by or in "any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Under Title VI, though, the targeted discrimination is that based on race, color, or national origin. Id.

As the panel majority explained, the remedies, procedures, and rights available to a person alleging discrimination under Title VI of the Civil Rights Act include pursuing federal administrative procedures that may culminate in a lawsuit by the Attorney General to vindicate the protected rights. The panel majority determined that the remedies, procedures, and rights available to a person alleging discrimination under Title II likewise include a robust administrative scheme that may culminate in suit by the Attorney General on the person's behalf. The panel majority thus held that the Attorney General could sue Florida, on behalf of the medically-fragile children, under Title II for disability discrimination. See United States v. Florida , 938 F.3d 1221, 1250 (11th Cir. 2019).

In his dissental,² Judge Newsom advances an interpretation of Title II that would disallow suits by the Attorney General against states or state agencies to enforce rights of people with disabilities, despite the fact that such suits have long been used to enforce the Rehabilitation Act, Title VI, and Title II itself. Judge Newsom argues that the panel majority's holding was wrong because (1) the Attorney General cannot sue because he is not a "person" for purposes of the ADA and thus is afforded no remedies, procedures, or rights under Title II's enforcement provision, and (2) the remedies, procedures, and rights available to the medically-fragile children under Title II do not include ...