C.V. v. Dudek

• Decision Date: 20 September 2016
• Docket Number: CASE NO. 12-60460-CIV-ZLOCH
• Citation: 209 F.Supp.3d 1279
• Parties: C.V. by and through his next friends, Michael and Johnette Wahlquist, et al., Plaintiffs, v. Elizabeth DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al., Defendants. United States of America, Plaintiff, v. State of Florida, Defendant.
• Court: U.S. District Court — Southern District of Florida

209 F.Supp.3d 1279

C.V. by and through his next friends, Michael and Johnette Wahlquist, et al., Plaintiffs,

v.Elizabeth DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al., Defendants.

United States of America, Plaintiff,

v.State of Florida, Defendant.

CASE NO. 12-60460-CIV-ZLOCH

United States District Court, S.D. Florida.

Signed September 20, 2016

Travis W. England, Elizabeth McDonald, H. Justin Park, Victoria Thomas, Lindsey Weinstock, Beth A. Esposito, Washington, D.C., Veronica Harrell-James, Assistant United States Attorney, Miami, Florida, for Plaintiff, the United States.

Matthew Wilson Dietz, Law Offices of Matthew W. Dietz, Miami, Florida, Edward J. Grunewald, Tallahassee, Florida, Paolo G. Annino, Tallahassee, Florida, for Plaintiffs, A.G., C.M., C.V., M.D., T.H.

George N. Meros, Jr., Andy Bardos, Allison G. Mawhinney, James Timothy Moore, Jr., Ashley Hoffman Lukis, GrayRobinson, P.A., Tallahassee, Florida, for All Defendants (State of Florida, Secretary Dudek, Surgeon General Philip, and Director Pasley).

Stuart F. Williams, Leslei G. Street, Andrew T. Sheeran, Tallahassee, Florida, for Defendant, Secretary Dudek.

J. Patrick Reynolds, Tallahassee, Florida, for Defendants, Surgeon General Philip and Director Pasley.

FINAL ORDER OF DISMISSAL AS TO THE UNITED STATES OF AMERICA

WILLIAM J. ZLOCH, United States District Judge

THIS MATTER is before the Court sua sponte. The Court has carefully reviewed the entire court file and is otherwise fully advised in the premises.

Through its Medicaid program, the State of Florida administers and funds various services for children who are considered medically complex or fragile. Under Title II of the Americans With Disabilities Act of 1990 ("Title II"), 42 U.S.C. § 12131, et seq. , each of those children is a "qualified individual with a disability." 42 U.S.C. § 12131(2) (2014). The State of Florida is a "public entity," subject to Title II's non-discrimination provision. 42 U.S.C. § 12131(1). That provision provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. Congress instructed the Attorney General to promulgate regulations that implement Title II, including this nondiscrimination provision. 42 U.S.C. § 12134(a). The Attorney General thus issued what is commonly referred to as the "integration regulation," which requires: "A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d) (2015). The Supreme Court has interpreted this regulation, in conjunction with two others,¹ to require that states "provide community based treatment for persons with mental disabilities

when such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodate d, taking into account the resources available to the State and the needs of others with mental disabilities." Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581, 607, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999).

The United States Department of Justice ("the Department") brought this suit against the State of Florida ("the State"), alleging that the State administers its Medicaid program in a way that discriminates against the medically complex or fragile children who are eligible for services under the program. In particular, the Department's Complaint (DE 1, Case No. 13–61576–CIV–ZLOCH)² claims that by limiting the availability of community-based services, the State has caused some medically complex or fragile children to be unnecessarily segregated in nursing facilities and placed others at risk of being unnecessarily segregated in such facilities. The Department's Complaint (DE 1, Case No. 13–61576–CIV–ZLOCH) asserts only one claim: violation of Title II of the Americans With Disabilities Act. In this posture, the Court is confronted with a single, dispositive question of law: whether Title II confers standing on the Attorney General (and hence the Department) to sue.³ Consistent with the plain language of the Americans With Disabilities Act, the Court finds that the Department does not have standing to sue under Title II.

I.

A.

The Supreme Court has made clear that "when an agency in its governmental capacity is meant to have standing, Congress says so." Director, Office o f Workers' Comp. Programs. Dep't o f Lab. v. Newport News Shipbuilding a nd Dry Dock Co. , 514 U.S. 122, 129, 115 S.Ct. 1278, 131 L.Ed.2d 160 (1995) ("Newport News ")(emphasis in original). Title II's enforcement section provides certain "remedies, procedures, and rights ... to any person alleging discrimination on the basis of disability in violation of section 12132 of this title." 42 U.S.C. § 12133 (emphasis added). Laid beside the enforcement provisions of Titles I and III of the Americans With Disabilities Act, it is clear that Title II does not confer standing on the Attorney General and that the Department is not a "person alleging discrimination."⁴

The Americans With Disabilities Act ("ADA") sets forth various prohibitions against disability-discrimination. As a whole, Congress's stated intent was "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). However, to achieve this end, Congress subdivided the ADA into three titles, each with distinct rights and remedial measures. Title I prohibits disability-discrimination in employment. See 42 U.S.C. §§ 12111 -12117. Title II governs the administration of public services provided by governmental entities. See 42 U.S.C. §§ 12131 -12165. And Title III proscribes disability-discrimination in public accommodations provided by private entities. See 42 U.S.C. §§ 12181 -12189.

Unlike Title II, whose enforcement provision speaks only of "person[s] alleging discrimination," Titles I and III of the ADA expressly confer standing upon the Attorney General to initiate litigation. Title I provides that "[t]he powers, remedies and procedures set forth in [Title VII of the Civil Rights Act of 1964] shall be the powers, remedies, and procedures this subchapter provides to the [Equal Employment Opportunity] Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter ... concerning employment." 42 U.S.C. § 12117(a). In turn, Title VII of the Civil Rights Act of 1964 authorizes the Attorney General to seek various forms of judicial relief. See 42 U.S.C. § 2000e–5(f) ("the Attorney General [ ] may bring a civil action against such respondent in the appropriate United States district court"); 42 U.S.C. § 2000e–6(a) ("the Attorney General may bring a civil action in the appropriate district court of the United States"); 42 U.S.C. § 2000e–8(c) ("If any person required to comply with the provisions of this subsection fails or refuses to do so, the [appropriate] United States district court ... shall, upon application of ... the Attorney General ... have jurisdiction to issue to such person an order requiring him to comply"). Title III of the ADA grants "the Attorney General [authority to] commence a civil action in any appropriate United States district court," if she has reasonable cause to believe that "(i) any person or group of persons is engaged in a pattern or practice of discrimination under this subchapter; or (ii) any person or group of persons has been discriminated against and such discrimination raises an issue of general public importance." 42 U.S.C. § 12188(b)(1)(B).

Where Congress has conferred standing on a particular actor in one section of a statutory scheme, but not in another, its silence must be read to preclude standing. E.g. , Marshall v. Gibson's Prod., Inc. o f Plano , 584 F.2d 668, 672–676 (5th Cir.1978)⁵ ; see In re Griffith , 206 F.3d 1389, 1394 (11th Cir.2000) (en banc)("where Congress knows how to say something but chooses not to, its silence is controlling"). Newport News controls. There, the Supreme Court held that the Director of the Office of Workers' Compensation ("the Director") lacked standing to pursue an appeal of the decision of an administrative review board in federal court. Newport News , 514 U.S. at 136, 115 S.Ct. 1278. Central to the Court's reasoning was the absence of a provision conferring standing upon the agency head to prosecute appeals, when such a provision was found in two similar statutes. While the Longshore and Harbor Workers Compensation Act ("LHWCA") solely authorized "any person adversely affected or aggrieved by a final order of the Board" to seek review in the appropriate court of appeals, 33 U.S.C. § 921(c), the Occupational Safety and Health Act of 1970 contained a "virtually identical" appeal provision, plus a provision granting the Secretary of Labor authority to appeal. Id. at 130, 115 S.Ct. 1278. Likewise, the Black Lung

Benefits Act of 1973 contained a provision notably absent from the LHWCA: one making the Secretary of Labor "a party in any proceeding relative to a claim for benefits." Id. at 135, 115 S.Ct. 1278 (quoting 30 U.S.C. § 932(k) ). Faced with these measures, and noting that "[t]he withholding of agency authority is as significant as the granting of it," the Supreme Court concluded that the Director had no standing to proceed in federal court. Id. at 136, 115 S.Ct. 1278.

Congress's grant of litigation authority to the Attorney-General in Titles I and III of the ADA—juxtaposed against its omission in Title II—compels the same result. As in Newport News , "the normal conclusion one would derive from putting these statutes side by side is this: When, in a legislative scheme of this sort, Congress wants the [Attorney...