C. v. New York State and Local Retir

Filing 109

BRIEF, on behalf of Appellee New York State and Local Retirement System, FILED. Service date 11/21/2011 by CM/ECF. [453620] [11-2215]

11-2215
United States Court of Appeals
for the Second Circuit
MARY JO C.,
Plaintiff - Appellant,
v.
NEW YORK STATE AND LOCAL RETIREMENT SYSTEM,
CENTRAL ISLIP PUBLIC LIBRARY,
Defendants - Appellees.
On Appeal from the United States District Court
for the Eastern District of New York

BRIEF FOR STATE APPELLEE

BARBARA D. UNDERWOOD
Solicitor General
CECELIA C. CHANG
Deputy Solicitor General
LAURA R. JOHNSON
Assistant Solicitor General
of Counsel

ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for State Appellee
120 Broadway
New York, New York 10271
[phone]
Dated: November 21, 2011

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.......................................................................ii
PRELIMINARY STATEMENT.................................................................. 1
ISSUE PRESENTED FOR REVIEW ........................................................ 3
SUMMARY OF ARGUMENT .................................................................... 3
STATEMENT OF THE CASE ................................................................... 4
A.

The Disability Retirement Statute.......................................... 4

B.

Factual Background................................................................. 7

C.

Proceedings Below.................................................................... 9

ARGUMENT ............................................................................................ 11
POINT I

- PLAINTIFF FAILS TO STATE A CLAIM AGAINST
NYSLRS UNDER TITLE II OF THE ADA ...................... 12
A. RSSL § 605’s Three-Month Filing Deadline Is an
Essential Eligibility Requirement that Cannot Be
Waived. .......................................................................... 13
B. Title II’s Reasonable Modification Provision Does
Not Preempt Nondiscriminatory State Statutes......... 19

POINT II - TITLE II DOES NOT VALIDLY ABROGATE THE
STATE’S SOVEREIGN IMMUNITY WITH
RESPECT TO THE PROVISION OF DISABILITY
BENEFIT PROGRAMS..................................................... 22
CONCLUSION ......................................................................................... 27

i

TABLE OF AUTHORITIES
Cases

Page(s)

Acierno v. Barnhart,
475 F.3d 77 (2d Cir. 2007) ............................................................. 17, 18
Astralis Condo Ass’n v. Sec’y, U.S. Dep’t of Hous. & Urban Dev.,
620 F.3d 62 (1st Cir. 2010) .................................................................. 21
Aughe v. Shalala,
885 F. Supp. 1428 (W.D. Wash. 1995) ................................................ 22
Barber ex rel. Barber v. Colo. Dep’t of Revenue,
562 F.3d 1222 (10th Cir. 2009)............................................................ 21
Board of Trustees of the University of Alabama v. Garrett,
531 U.S. 356 (2001) .............................................................................. 22
Connecticut ex rel. Blumenthal v. Crotty,
346 F.3d 84 (2d Cir. 2003) ................................................................... 20
Crowder v. Kitagawa,
81 F.3d 1480 (9th Cir. 1996)................................................................ 21
Disabled Am. Veterans v. U.S. Dep’t of Veterans Affairs,
962 F.2d 136 (2d Cir. 1992) ............................................................12-13
Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,
280 F.3d 98 (2d Cir. 2001) ................................................................... 25
Hargrave v. Vermont,
340 F.3d 27 (2d Cir. 2003) ................................................................... 20
Helen L. v. DiDario,
46 F.3d 325 (3d Cir. 1995) ................................................................... 21
Henrietta D. v. Bloomberg,
331 F.3d 261 (2d Cir. 2003) ................................................................. 14

ii

TABLE OF AUTHORITIES (Cont'd)
Cases

Page(s)

Herschaft v. N.Y. Bd. of Elections,
No. 00cv2748, 2001 WL 940923 (E.D.N.Y. Aug. 13, 2001) ................ 22
Iacono v. Office of Pers. Mgmt.,
974 F.2d 1326 (Fed. Cir. 1992) ............................................................ 17
Iselin v. Ret. Bd. of the Employees’ Ret. Sys. of R.I.,
943 A.2d 1045 (R.I. 2008) .................................................................... 17
Matter of Banks v. N.Y. State & Local Employees’ Ret. Sys.,
294 A.D.2d 164 (1st Dep’t 2002)............................................................ 6
Matter of Callace v. N.Y. State Employees’ Ret. Sys.,
140 A.D.2d 756 (3d Dep’t 1988)............................................................. 7
Matter of Callace v. N.Y. State Employees’ Ret. Sys.,
72 N.Y.2d 806 (1988)............................................................................ 16
Matter of Grossman v. McCall,
94 N.Y.2d 765 (2000)............................................................................ 16
N.Y. State Dep’t of Soc. Servs. v. Dublino,
413 U.S. 405 (1973) .............................................................................. 19
Olegario v. United States,
629 F.2d 204 (2d Cir. 1980) ................................................................. 20
P. R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139 (1993) .............................................................................. 26
Pahula v. Massey-Ferguson, Inc.,
170 F.3d 125 (2d Cir. 1999) ................................................................. 16
Pottgen v. Mo. High Sch. Activities Ass’n,
40 F.3d 926 (8th Cir. 1994).................................................................. 14
iii

TABLE OF AUTHORITIES (Cont'd)
Cases

Page(s)

Tennessee v. Lane,
541 U.S. 509 (2004) .............................................................................. 23
United States v. Brockamp,
519 U.S. 347 (1997) .............................................................................. 17
United States v. Georgia,
546 U.S. 151 (2006) .............................................................................. 24
Federal Statutes
28 U.S.C. § 2403(a) ................................................................................... 11
42 U.S.C.
§ 12131.............................................................................................. 2, 13
§ 12132.................................................................................................. 13
§ 12201.............................................................................................. 2, 18
State Statutes
Retirement and Social Security Law
§ 62.......................................................................................................... 7
§ 605.............................................................................................. passim
Miscellaneous Authorities
Life Changes: Applying for Disability Retirement, available at
http://www.osc.state.ny.us/retire/publications/vo1802.htm............. 5, 6

iv

PRELIMINARY STATEMENT
Plaintiff Mary Jo C., a member of the New York State and Local
Retirement System (NYSLRS), applied for disability retirement benefits
one year after her employment was terminated by Central Islip Public
Library. NYSLRS denied her application because plaintiff failed to file
for benefits within three months of her last day of employment as
required by the New York State Retirement and Social Security Law
(RSSL). After a hearing officer denied her administrative appeal,
plaintiff filed this action in federal court—asserting disability
discrimination claims against both NYSLRS and the Library.
Plaintiff alleged that NYSLRS violated Title II of the Americans
with Disabilities Act by not granting her accommodation in the form of
a complete waiver of the statutory filing deadline. The United States
District Court for the Eastern District of New York (Feuerstein, J.)
dismissed plaintiff’s ADA claim against NYSLRS. The court’s judgment
should be affirmed.1

The district court also dismissed all of plaintiff’s claims against
the Library. NYSLRS takes no position as to those separate claims.
1

Looking to the text of the RSSL and state court decisions
interpreting the statute, the district court properly concluded that the
statutory filing deadline in this case was “an essential eligibility
requirement for receipt of disability benefits” (A. 26). Plaintiff’s request
to waive the mandatory statutory deadline was therefore not a
“reasonable modification” under ADA. While plaintiff and the United
States, as intervenor, challenge that holding, the text of the ADA itself
validates the district court’s conclusion.
The ADA requires reasonable modification of “rules, policies, or
practices”; it does not preempt facially neutral, nondiscriminatory state
laws. 42 U.S.C. § 12131(2). Moreover, the ADA expressly clarifies that
“[n]othing in this chapter alters the standards for determining eligibility
for benefits” under “State . . . disability benefit programs.” 42 U.S.C.
§ 12201(e) (emphasis added). Here, plaintiff seeks not merely to alter,
but to waive, an eligibility standard the New York legislature imposed,
and which New York courts have confirmed is mandatory for the
disability benefits at issue. The ADA does not override—and expressly
disclaims any intent to override—state law in this context.

2

ISSUE PRESENTED FOR REVIEW
Is waiver of a statutory filing deadline, which state courts have
confirmed is a mandatory prerequisite for qualifying for disability
retirement benefits, a “reasonable modification” under Title II of the
ADA?

SUMMARY OF ARGUMENT
This Court should affirm the dismissal of plaintiff’s Title II claim
against NYSLRS. Plaintiff's assertion that she was entitled to a waiver
of the filing deadline for disability retirement benefits does not state a
claim under Title II.

The filing deadline is imposed by a facially

neutral, nondiscriminatory state statute, RSSL § 605. The text of RSSL
§ 605, and state decisions interpreting the statute confirm that
compliance
requirement

with
for

the

statutory

qualifying

filing

for

deadline

disability

is

an

essential

retirement

benefits.

Moreover, because Title II’s reasonable modification provision does not
preempt nondiscriminatory state laws, waiver of a nondiscriminatory
state statute is not a reasonable modification under Title II.

3

Finally, even if plaintiff had stated a viable Title II claim,
dismissal would be required on sovereign immunity grounds. Congress
did not identify any pattern of pervasive constitutional violations by
States with respect to the provision of disability benefit programs
sufficient to invoke its remedial powers under the Fourteenth
Amendment.

Moreover, Title II does not provide for congruent and

proportional remedies in this case. Plaintiff concedes that defendants
did

not

violate

the

discriminatory animus.

Fourteenth

Amendment

and

alleges

no

Requiring alteration of state eligibility

requirements here is not a reasonable and proportional remedy aimed
at preventing Fourteenth Amendment violations.

STATEMENT OF THE CASE
A.

The Disability Retirement Statute

New York provides disability retirement benefits to many classes
of state and local employees. NYSLRS members like Mary Jo C. are
eligible for disability retirement benefits under article 15 of the RSSL.
To qualify for benefits under article 15, a member must satisfy three
threshold eligibility requirements. The member:
4

• must “[h]ave at least ten years of total service
credit”;
• file an application “within three months from the
last date the member was being paid on the
payroll”; and
• be “physically or mentally incapacitated for the
performance of gainful employment.”
RSSL § 605(b)(1)-(2) & (3)(c).2
Applications for article 15 disability retirement are available from
an employer or from the NYSLRS website at http://www.osc.state.ny.us
/retire/forms/rs6340.pdf. The entire application is three pages long, and
can be submitted by the member, or in most cases, by the member’s
employer. RSSL § 605(a)(1)-(2). NYSLRS makes extensive information
about disability retirement benefits available to members, including
through an informational brochure, Life Changes: Applying for
Disability Retirement.3

The brochure explains that in the event a

Article 15 applies different eligibility and benefit standards to
members of the state teachers’ retirement system; members who were
placed on a leave of absence without pay before termination of
employment; and members disabled by a qualifying World Trade Center
condition. RSSL § 605(b)(2) & (h).
2

Available at http://www.osc.state.ny.us/retire/publications
/vo1802.htm. The table of contents divides the page “chapter.”
3

5

member is unable to file an application for benefits, someone with
power of attorney can do so, as can the member’s employer on the
member’s behalf. Id., ch.1. Individuals with questions about applying
for benefits are encouraged to write, call a toll free number, or visit one
of NYSLRS sixteen offices for in-person assistance. Id., ch. 5.
NYSLRS warns members that “[f]ailure to file within . . . time
limits will make you ineligible for a benefit.”

Id., ch. 1.

NYSLRS

explanation of eligibility criteria is based on the text of RSSL and state
precedent. State courts have held—without exception—that the timing
deadlines imposed by the RSSL are mandatory, non-waivable statutory
requirements, necessary to establish eligibility for disability retirement
benefits. See, e.g., Matter of Banks v. N.Y. State & Local Employees’
Ret. Sys., 294 A.D.2d 164, 165 (1st Dep’t 2002) (statutory filing deadline
is a “condition precedent” to entitlement to disability retirement
benefits) (quoting Matter of Grossman v. McCall, 262 A.D.2d 923, 924

6

(3d Dep’t 1999)); see also Matter of Callace v. N.Y. State Employees’ Ret.
Sys., 140 A.D.2d 756, 757 (3d Dep’t 1988) (same).4
B.

Factual Background

The following facts are taken from plaintiff’s complaint. Plaintiff
alleges that she has suffered from a unspecified mental illness since
adolescence. Between 1986 and 2006, plaintiff “worked intermittently
as a librarian for various libraries on Long Island” (A. 38), and as a
result, has been a member of NYSLRS since 1988. Plaintiff last worked
as a librarian for defendant Central Islip Public Library. She alleges
that the Library fired her in November 2006 because of certain
behaviors she exhibited “that were symptomatic of her mental illness.”
(A. 38.)
Plaintiff contends that “because of her mental illness, [she] failed
to recognize that state law required her to file [a disability] retirement
benefits application within three months of her last day of employment”

Although these decisions interpret RSSL § 62, which applies to
state employees, § 62 contains a ninety-day eligibility requirement that
is largely identical to the three-month requirement in § 605, and it is
undisputed that the analysis of the New York courts applies equally to
§ 605.
4

7

(A. 39). During the three-month application period, plaintiff’s brother
spoke to a NYSLRS Disability Retirement Director, who informed him
than the Library could apply for retirement benefits on plaintiff’s behalf
(A. 39).
In February 2007, plaintiff’s brother asked the Library to file a
benefits application for plaintiff and to reclassify her termination as a
“leave of absence.” The reclassification allegedly would have enabled
plaintiff “to file for retirement disability benefits once her clinical
condition improved” even if she missed the three-month deadline (A.
40.) The complaint does not explain why plaintiff’s brother did not take
independent steps to file for benefits on plaintiff’s behalf or to inform
plaintiff of the need to file a timely application.
The Library denied plaintiff’s brother’s requests.

In November

2007, one year after her termination, plaintiff’s “clinical condition
improved,” and she submitted an application for disability retirement
benefits.

(A. 40.)

NYSLRS denied the application because plaintiff

“failed to comply with the [statutory] requirement” of filing “within
three months of her last day of employment.” (A. 40.) After the denial,
plaintiff requested accommodation in the form of a complete “waiver” of
8

the statutory filing deadline. Plaintiff also pursued an administrative
appeal, challenging NYSLRS’s denial of her late application. At the
administrative hearing, NYSLRS explained “that state law prohibited
[it] from waiving filing requirements.” The hearing officer affirmed. (A.
41.)
C.

Proceedings Below

Plaintiff declined to seek further review in state court. Instead,
she filed this federal action in December 2009, naming both the Library
and NYSLRS as defendants. Plaintiff alleged that the Library violated
Title II of the ADA by failing to file a retirement benefits application on
her behalf “when it was clear that she lacked the ability” to do so “on
her own” and by failing to “reclassify” her termination as “leave of
absence,” which would have allegedly allowed her to take advantage of
a longer statutory deadline for submitting a benefits application (A. 4243). Plaintiff also asserted a reasonable accommodation claim against
NYSLRS—alleging that NYSLRS violated Title II of the ADA by not
waiving the statutory deadline for filing for disability retirement
benefits (A. 42).

Plaintiff’s complaint seeks declaratory and injunctive

relief against NYSLRS and damages from the Library (A. 45.)
9

NYSLRS and the Library filed separate motions to dismiss (A. 47,
66). NYSLRS sought dismissal under Federal Rule of Civil Procedure
12(b)(1) and (6), arguing that the Eleventh Amendment barred
plaintiff’s suit, and that plaintiff failed state a claim for violation of
Title II ADA.

In an opinion and order issued on May 5, 2011, the

district court granted defendants’ motions and dismissed plaintiff’s
complaint in its entirety (A. 9-34).
As to the ADA claim against NYSLRS, the court found that
plaintiff’s claim failed for several overlapping and interrelated reasons.
First, plaintiff did not allege sufficient facts to show that she was
disabled (A. 22). But even if that could be cured, the district court
surveyed relevant state court decisions, and concluded based on those
decisions and the text of RSSL § 605 itself, that compliance with § 605’s
three-month filing deadline is an “essential eligibility requirement” for
receiving

disability

retirement

benefits

under

New

York

law.

Accordingly, waiver of the filing deadline—as plaintiff requested—is not
a “reasonable modification” compelled by the ADA (A. 25-26).
In addition, because plaintiff failed to state a valid Title II claim,
the district court concluded that NYSLRS was entitled to dismissal on
10

sovereign immunity grounds (A. 27). The court further denied plaintiff
leave to name individual state officers as additional defendants (which
plaintiff requested to avoid an Eleventh Amendment bar), concluding
that amendment would be futile since plaintiff could not state an ADA
claim based on waiver of the statutory filing deadline (A. 27 n.6).
Plaintiff appealed. (A. 7.) On August 29, 2011, the United States
filed a brief as amicus curiae and intervenor pursuant to 28 U.S.C.
§ 2403(a).

ARGUMENT
Plaintiff's claim that she was entitled to waiver of the statutory
filing deadline for retirement benefits was properly dismissed, both
because it fails to state a cause of action under Title II of the ADA, and
because plaintiff’s claim is barred by Eleventh Amendment sovereign
immunity. While the district court may have overlooked that these are
two distinct points (see A. 27), the court properly ruled against plaintiff
on both grounds, and either one alone is sufficient to support the
dismissal. This brief first addresses plaintiff’s failure to state a cause of

11

action under Title II of the ADA, and then turns to the Eleventh
Amendment bar.

POINT I
PLAINTIFF FAILS TO STATE A CLAIM AGAINST
NYSLRS UNDER TITLE II OF THE ADA
Plaintiff seeks complete, unqualified waiver of a facially neutral
and nondiscriminatory state statute imposing eligibility requirements
for state disability benefits. Plaintiff and the United States both argue
that the ADA “supersedes” or “preempts” state law. Pl. Br. at 21-23;
U.S. Br. at 13-16. But the decisions they cite are about a fundamentally
different type of ADA claim, involving direct discrimination and
unequal treatment of persons with disabilities, or disparate impact in
relation to disabled individuals’ exercise of a fundamental right, facts
not raised in this case.
Plaintiff’s suit is not about unequal treatment. Plaintiff does not
allege that RSSL § 605’s three-month filing deadline is facially
discriminatory, has disparate impact on persons with disabilities, or
burdens a fundamental right. Nor could she. There is no fundamental
right to government disability benefits. See Disabled Am. Veterans v.
12

U.S. Dep’t of Veterans Affairs, 962 F.2d 136, 141-42 (2d Cir. 1992). And
plaintiff acknowledges that state law makes the three-month filing
deadline mandatory for all applicants as a condition of eligibility. The
requirement is not applied differently to non-disabled applicants, or to
plaintiff because of her mental illness. All applicants are subject to
same filing deadline.
A.

RSSL § 605’s Three-Month Filing Deadline
Is an Essential Eligibility Requirement
that Cannot Be Waived.

Plaintiff’s claim, as the district court correctly recognized, is a
claim for “reasonable modification” under Title II of the ADA. Title II
provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or denied the
benefits of the services, programs, or activities of a public entity.” 42
U.S.C. § 12132. In conjunction with this requirement, the ADA defines
a “qualified individual,” as someone who with “reasonable modifications
to rules, policies, or practices . . . meets the essential eligibility
requirements for the receipt of services or the participation in programs
or activities provided by a public entity.”
added).

Id. § 12131(2) (emphasis

Title II does not require waiver of the essential eligibility
13

requirements for state programs or receipt of state benefits. See, e.g.,
Henrietta D. v. Bloomberg, 331 F.3d 261, 277 (2d Cir. 2003) (to state a
reasonable modification claim under the ADA, the plaintiff must the
meet the “formal legal eligibility requirements” for benefits or services);
Pottgen v. Mo. High Sch. Activities Ass’n, 40 F.3d 926, 930 (8th Cir.
1994) (since there was no way for learning-disabled plaintiff to satisfy
statutory age limit for program, “no reasonable accommodation exists”).
The district court properly concluded that plaintiff failed to state a
Title II claim because the three-month filing deadline imposed by RSSL
§ 605 is an essential eligibility requirement for receiving disability
retirement benefits. On its face, RSSL § 605 sets out the three-month
application deadline as an essential requirement for qualifying for
benefits. In enacting the statute, the Legislature did not distinguish
between “substantive” and “administrative” requirements as the
plaintiff and the United States claim. Pl Br. at 26; US Br. at 10. The
three-month filing period is not a ministerial or regulatory procedure
adopted by NYSLRS as a rule of administrative convenience.
imposed by the Legislature itself as a core component of eligibility.

14

It is

Moreover, nothing in the statute indicates that the filing deadline
is somehow immaterial or non-substantive.

To the contrary, the

Legislature placed the three-month filing requirement in the same
statutory provision as the requirement that a member have ten years’ of
prior service. RSSL § 605(b). The United States acknowledges that the
years-of-service requirement is an essential eligibility requirement.
U.S. Br. at 9.

Yet it offers no principled reason for treating one

mandatory statutory requirement differently from the other—when the
Legislature gave both equal weight and prominence in the statute as
necessary predicates for eligibility.
And if the statute’s clear language were not enough, New York
caselaw confirms that compliance with statutory filing deadlines is a
nonwaivable eligibility requirement for receipt of disability retirement
benefits.
decisions).

See supra at 6; A. 24 (comprehensively surveying state
Both plaintiff and the United States criticize the district

court’s reliance on state precedent. The United States suggests that the
mandatory

filing

period

should

be

deemed

purely

procedural

“notwithstanding [how] mid-level New York courts” have construed
state law, because there is no decision from the New York Court of
15

Appeals on this precise issue. U.S. Br. at 7 & n.5. But the New York
Court of Appeals denied further appeal in very same cases the United
States attempts to sweep away as noncontrolling5—leaving in place as
governing law the Appellate Division decisions the district court
appropriately relied upon. See Pahula v. Massey-Ferguson, Inc., 170
F.3d 125, 134 (2d Cir. 1999) (“We are bound . . . to apply the law as
interpreted by New York's intermediate appellate courts unless we find
persuasive evidence that the New York Court of Appeals . . . would
reach a different conclusion”).
And critically, if the plain eligibility provisions of a state statute
are not dispositive, and federal courts must also disregard uniform,
controlling state decisions interpreting the statute, it is unclear what
body of law or what legal standards should be used to determine the
“essential eligibility requirements” for state programs.

The United

States suggests a filing deadline cannot be “essential” because some
federal and state statutes authorize late filing or tolling of deadlines for

See, e.g., Matter of Grossman v. McCall, 94 N.Y.2d 765
(2000)(denying leave to appeal); Matter of Callace v. N.Y. State
Employees’ Ret. Sys., 72 N.Y.2d 806 (1988) (same).
5

16

persons with mental disability. U.S. Br. at 17-19. But in those cases,
the statute itself confirms that the legislature deemed a filing deadline
nonessential and waivable.

RSSL § 605, in sharp contrast to the

statutes cited by the United States, does not authorize waiver of the
three-month filing deadline.
Nor is there anything unusual about strict eligibility periods or
application deadlines in the field of disability benefits that renders such
requirements nonessential as a matter of law.

Rhode Island, for

example, interprets its filing deadline for disability benefits, similarly to
New York, as non-waivable. See Iselin v. Ret. Bd. of the Employees’ Ret.
Sys. of R.I., 943 A.2d 1045, 1049-51 (R.I. 2008). And under federal law,
the statutory period for applying for income tax refunds cannot be
equitably tolled, even for a taxpayer’s mental disability, United States
v. Brockamp, 519 U.S. 347 (1997), and same is true for the deadline for
applying for federal surviving spouse annuity benefits, Iacono v. Office
of Pers. Mgmt., 974 F.2d 1326 (Fed. Cir. 1992). Likewise, in Acierno v.
Barnhart, 475 F.3d 77 (2d Cir. 2007), this Court concluded that the
statutory time limit for filing federal tax returns could not be excused—
although adherence to the time limit meant that that the mentally ill
17

plaintiff, who would otherwise qualify for disability benefits, received
none. While that result was “harsh,” this Court explained it was for
Congress to amend the statute to allow for tolling, not the courts to
decide whether statutory time limits are essential or not. Id. at 83.
Finally, overriding RSSL § 605 is especially inappropriate here in
light of the ADA’s express deference to state eligibility standards for
disability benefit programs.

Whatever the consequence of statutory

deadlines and eligibility periods for other types of state programs, the
ADA confirms that it does not impinge on the States’ traditional right to
establish their own standards for payment of state disability benefits.
The ADA expressly states:
Nothing in this chapter alters the standards for
determining eligibility for benefits under State
worker’s compensation laws or under State and
Federal disability benefit programs.
42 U.S.C. § 12201(e). Plaintiff’s suit seeks to accomplish precisely what
the ADA confirms is not required: alteration of the standards for
determining eligibility for disability retirement benefits under New
York Law. The ADA does not compel that result.

18

B.

Title II’s Reasonable Modification Provision Does
Not Preempt Nondiscriminatory State Statutes.

In addition, even if RSSL § 605’s mandatory filing deadline could
be deemed nonessential, the district court also properly found that
waiver of a state statute is not a “reasonable modification” under Title
II.

Plaintiff and the United States contend that waiver of a

nondiscriminatory state statute can be a required modification under
the ADA, but that ignores the plain language of Title II, which requires
reasonable modification only of “rules, policies, or practices”—not state
statutes. As the United States acknowledges, a contrary rule would
result in preemption of state law across a broad range of subject matter,
including in areas of traditional state concern, relating to any public
service, program, or benefit. U.S. Br. at 13.

Intent to impose federal

preemption of such sweeping scope must be clearly expressed and
certainly cannot be inferred from statutory language that expressly
omits any reference to preempting state statutes and state law. See,
e.g., N.Y. State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 413-14
(1973) (quotation marks omitted) (noting “[i]t will not be presumed that
a federal statute was intended to supersede the exercise of the power of

19

the state unless there is a clear manifestation of intention to do so . . . in
direct and unambiguous language”).
Precisely because “Title II . . . strikes a careful balance with
respect to state laws governing public programs,” (U.S. Br. at 8), the
distinction between discretionary rules, policies and practices, and
mandatory state statutes makes sense. Rules, policies and practices
can be modified, revised, or even waived by the administrative or
executive officials who imposed them in the first place. State statutes,
by contrast, reflect the independent judgments and standards imposed
by state legislators. State officials cannot modify a statute: that power
rests exclusively with the legislative branch.

See, e.g., Olegario v.

United States, 629 F.2d 204, 224 (2d Cir. 1980); Connecticut ex rel.
Blumenthal v. Crotty, 346 F.3d 84, 103 (2d Cir. 2003) (state officials are
charged with enforcing state laws, not questioning their wisdom).
This Court’s decision in Hargrave v. Vermont, 340 F.3d 27 (2d Cir.
2003) does not support preemption under Title II’s reasonable
modification requirement, as plaintiff and the United States assert. In
Hargrave, the challenged Vermont statute, “facially discriminate[d]
against the mentally disabled.” Id. at 30 (emphasis added). Hargrave
20

did not analyze Title II’s reasonable modification standard and did not
hold that Title II preempted facially nondiscriminatory state laws or
mandated waiver of such laws.
While suggesting that the district court misinterpreted Title II,
neither plaintiff, nor the United States, identifies a single decision that
interprets Title II’s reasonable modification requirement to supersede,
rather than incorporate, nondiscriminatory and facially neutral state
laws.6

Instead, as the district court and other courts have recognized,

there is no conflict between state law and Title II’s reasonable
modification requirement: the determination of whether a requested
modification

is

“reasonable”

necessarily

and

logically

includes

Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996), involved
modification of agency regulations, not waiver of a state statute. The
other decisions the United States relies upon (US Br. at 14-15) all
involve situations where the defendant could have voluntarily complied
with state law and granted the requested modification, unlike in this
case. See Astralis Condo Ass’n v. Sec’y, U.S. Dep’t of Hous. & Urban
Dev., 620 F.3d 62, 69 (1st Cir. 2010) (defendant condominium
association could have complied with federal fair housing requirements
without violating Puerto Rico property transfer statute); Helen L. v.
DiDario, 46 F.3d 325, 338 & n.24 (3d Cir. 1995) (defendant agency could
fund relief through other means; only one particular method was barred
by state law); Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d
1222, 1232 (10th Cir. 2009) (finding “no conflict” between state statute
and federal law).
6

21

consideration of applicable background state statutes.

See, e.g.,

Herschaft v. N.Y. Bd. of Elections, No. 00cv2748, 2001 WL 940923, *6
(E.D.N.Y. Aug. 13, 2001) (“an accommodation that would require a
defendant to violate an otherwise constitutional state law is inherently
unreasonable”) (emphasis added); see also Aughe v. Shalala, 885 F.
Supp. 1428, 1432 (W.D. Wash. 1995) (waiver of a neutral statutory age
limit that would “essentially rewrite the statute” cannot be a reasonable
modification).

POINT II
TITLE II DOES NOT VALIDLY ABROGATE THE
STATE’S SOVEREIGN IMMUNITY WITH RESPECT
TO THE PROVISION OF DISABILITY BENEFIT
PROGRAMS
Whether or not plaintiff has stated a valid Title II claim, dismissal
is independently required because Title II fails to validly abrogate the
State’s sovereign immunity for the reasonable modification claim made
here—relating to the State’s provision of disability benefits. In Board of
Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001),
the Supreme Court held that Title I of the ADA did not validly abrogate
the States’ sovereign immunity because Congress failed to establish a
22

pattern of widespread, unconstitutional employment discrimination by
the States—a necessary predicate for the exercise of Congress’s
remedial power under § 5 of the Fourteenth Amendment to permissibly
subject non-consenting States to suit.
In Tennessee v. Lane, 541 U.S. 509, 522-31 (2004), the Supreme
Court applied Garrett to Title II of the ADA. Lane held that for Title II
to validly apply against state defendants there must be both a history of
constitutional violations to support Congress’s determination that
prophylactic legislation was necessary, and Title II’s remedial scheme
must also be a congruent and proportional response to the specific
history and pattern of violations Congress identified.

Given the wide

range of state programs and activities covered by Title II—in areas such
as health care, zoning, jury service, the penal system, public education,
and voting—Lane further made clear that abrogation analysis should
not be conducted as to Title II “as an undifferentiated whole,”

but

instead must focus on the particular class or type of public service or
program for which the plaintiff is alleging discrimination or seeking
reasonable accommodation. Id. at 529-30.

23

Here, the test for abrogation is not satisfied. Neither plaintiff nor
the United States contend that Congress identified a pervasive and
widespread pattern of constitutional violations with respect to the
States’ provision of disability benefit programs.

The very fact that

States voluntarily provide such benefits (New York has offered a
disability retirement benefit since 1920) is evidence of the absence of
discriminatory intent towards disabled employees.

“[T]he scope of

“Congress’s ‘prophylactic’ enforcement powers under § 5 of the
Fourteenth Amendment,” United States v. Georgia, 546 U.S. 151, 158,
(2006), is not at issue in this case because there is no pattern of
constitutional violations to justify the exercise of that power at all.
Moreover,

application

of

Title

II

to

require

waiver

of

nondiscriminatory state statues, as plaintiff seeks, is also not a
congruent and proportional remedy given the complete absence of any
pattern of constitutional violations in the States’ provision of disability
benefits.

Plaintiff concedes (A. 21, 96), as she must, that there is no

constitutional

violation

in

this

case;

she

makes

no

claim

of

discriminatory animus; and she acknowledges that waiver of the
statutory filing deadline is not required under the Fourteenth
24

Amendment. But see Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,
280 F.3d 98, 109-10 (2d Cir. 2001) (discussing ways in which Title II’s
reasonable

modification

requirements

exceed

constitutional

requirements and proportionality principles when these requirements
are not satisfied).
Plaintiff argues that Title II’s remedial scheme is nonetheless
congruent and proportional because “provid[ing] a preference to people
with disabilities” will cure their unique disadvantages, such as being
“poorer than other Americans.” Pl. Br. at 28-29. But this Court has
already rejected that argument—holding that it is not within the
legitimate scope of Congress’s § 5 power to require state governments to
make modifications to “eradicat[e] . . . unequal effects” for persons with
disabilities. Garcia, 280 F.3d at 110.

As a result, Title II does not

validly abrogate the State’s immunity for plaintiff’s claim, and her
claim must be independently dismissed on that ground. 7

This appeal does not require the Court to decide broader issues
about whether the merits of Title II claims must be decided first before
district courts reach the issue of sovereign immunity.
7

The United States relies on two unpublished circuit decisions,
interpreting Georgia, to establish its preferred rule that merits be
(continues on next page)

25

decided before immunity. U.S. Br. at 21. Georgia does not mention,
however, let alone displace—longstanding Supreme Court precedent
recognizing the questions of immunity deserve priority and that “the
value to the States of their Eleventh Amendment immunity . . . is for
the most part lost” if States are subject to prolonged proceedings in
federal court. P. R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139, 145 (1993).
Here, the United States has not even briefed the abrogation
question, yet it would send the State back for further proceedings in
district court, denying the State the very immunity from suit the
Eleventh Amendment guarantees.
26

CONCLUSION
For the reasons set forth above, the district court’s judgment
should be affirmed.
Dated: New York, NY
November 21, 2011
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for State Appellee
By: ___/s/ Laura R. Johnson_____
LAURA R. JOHNSON
Assistant Solicitor General
120 Broadway
New York, NY 10271
Telephone [phone]

BARBARA D. UNDERWOOD
Solicitor General
CECELIA C. CHANG
Deputy Solicitor General
LAURA R. JOHNSON
Assistant Solicitor General
of Counsel

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