C. v. New York State and Local Retir

Filing 145

SUPPLEMENTAL BRIEF, on behalf of Appellee New York State and Local Retirement System, FILED. Service date 02/15/2012 by CM/ECF.[526875] [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

SUPPLEMENTAL 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: February 15, 2012

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.......................................................................ii
PRELIMINARY STATEMENT.................................................................. 1
POINT I

- TITLE II DOES NOT VALIDLY ABROGATE
STATE SOVEREIGN IMMUNITY WITH RESPECT
TO THE PROVISION OF DISABILITY BENEFIT
PROGRAMS......................................................................... 3
A. Title II Does Not Unmistakably Abrogate State
Immunity for Suits Challenging Eligibility
Requirements for State Disability Benefits................... 3
B. Title II as Applied to State Disability Benefit
Programs Is Not a Valid Exercise of Congress’s
§ 5 Enforcement Power. .................................................. 5
1. Regulating state eligibility standards would
not remedy any violation of constitutional
rights........................................................................... 5
2. Regulating state eligibility standards is not a
permissible exercise of Congress’s prophylactic
authority under § 5..................................................... 8

POINT II - THERE IS NO LEGAL OR PRUDENTIAL REASON
FOR THIS COURT TO AVOID THE IMMUNITY
QUESTION........................................................................ 16
CONCLUSION ......................................................................................... 21

i

TABLE OF AUTHORITIES
Cases

Page(s)

Alden v. Maine,
527 U.S. 706 (1999) ................................................................................ 3
Board of Tr. of the Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) .............................................................................. 13
Bolmer v. Oliveira,
594 F.3d 134 (2d Cir. 2010) ..........................................................8-9, 13
Bowers v. N.C.A.A.,
475 F.3d 524 (3d Cir. 2007) ................................................................. 11
City of Boerne v. Flores,
521 U.S. 507 (1997) .............................................................................. 14
College Savings Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd.,
527 U.S. 666 (1999) .............................................................................. 12
Constantine v. Rectors & Visitors of George Mason Univ.,
411 F.3d 474 (4th Cir. 2005)................................................................ 16
Disabled Am. Veterans v. U.S. Dep’t of Veterans Affairs,
962 F.2d 136 (2d Cir. 1992) ................................................................... 5
Dotson v. Griesa,
398 F.3d 156 (2d Cir. 2005) ................................................................. 18
Ex Parte Young,
209 U.S. 123 (1908) .............................................................................. 17
Florida Prepaid Postsecondary Educ. Expense Bd.
v. College Sav. Bank,
527 U.S. 627 (1999) ........................................................................ 11, 12
Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,
280 F.3d 98 (2d Cir. 2001) ..........................................................9, 13-14
ii

Geduldig v. Aiello,
417 U.S. 484 (1974) ................................................................................ 6
Goldberg v. Kelly,
397 U.S. 254 (1970) ................................................................................ 8
Hale v. Mann,
219 F.3d 61 (2d Cir. 2000) ................................................................... 16
Kimel v. Florida Bd. of Regents,
528 U.S. 62 (2000) .................................................................................. 4
Nevada Dep’t of Human Res. v. Hibbs,
538 U.S. 721 (2003) ................................................................................ 3
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
506 U.S. 139 (1993) .............................................................................. 19
Seminole Tribe of Fla. v. Florida,
517 U.S. 44 (1996) .................................................................................. 3
Tennessee v. Lane,
541 U.S. 509 (2004) ..................................................................6-7, 11-12
Thomas v. Nakatani,
309 F.3d 1203 (9th Cir. 2002)........................................................ 18, 20
United States v. Georgia,
546 U.S. 151 (2006) ............................................................................ 5, 7
Vermont Agency of Natural Res. v. United States,
529 U.S. 765 (2000) ........................................................................ 16, 19
Virginia Office of Protection & Advocacy v. Stewart,
131 S. Ct. 1632 (2011).................................................................... 17, 19
Weinberger v. Salfi,
422 U.S. 749 (1975) .....................................................................6, 14-15
Statutes
42 U.S.C. § 12201(e) ........................................................................... 2, 4, 7
iii

PRELIMINARY STATEMENT
Plaintiff Mary Jo C. seeks disability retirement benefits from
defendant New York State and Local Retirement System (NYSLRS).
New York requires by statute that benefit claims be filed within three
months of the retired employee’s last day of employment.

Plaintiff

applied for benefits a year after her employment ended. She later sued
NYSLRS and her former employer, a public library, claiming that that
she was entitled to complete waiver of the statutory filing deadline as a
“reasonable modification” under Title II of the ADA.
The district court dismissed plaintiff’s ADA claim against
NYSLRS for failure to plead an actionable claim under Title II, and
because sovereign immunity barred plaintiff’s suit.

In its appellee’s

brief, NYSLRS argued that the district court’s judgment could be
affirmed on either alternate ground. This Court subsequently granted
the United States, as intervenor, and NYSLRS permission to file
supplemental briefs addressing the sovereign immunity issue in greater
detail.
In this supplemental brief, NYSLRS further explains that the
district court correctly dismissed on immunity grounds.

Congress

expressly specified that the ADA does not “alter[] the standards for
determining eligibility” under state “disability benefit programs.” 42
U.S.C. § 12201(e).

Because the ADA expressly declined to address

eligibility for benefits, it cannot be read to express any unmistakable
intent to abrogate state immunity to eligibility challenges. Nor is there
any pattern of unconstitutional conduct with respect to the provision of
state disability benefits that would permit Congress to abrogate state
immunity through a valid exercise of the its enforcement powers under
§ 5 of the Fourteenth Amendment.
Moreover, while this Court may affirm the district court’s
judgment without reaching the immunity question, by affirming the
dismissal of plaintiff’s claim on the merits, if this Court were to
conclude that plaintiff has stated a viable Title II claim, there would be
no legal or prudential ground for avoiding the issue of immunity. The
immunity question implicates the threshold jurisdiction of the Court
and implements structural constitutional protections, recognized by the
Eleventh Amendment, that would be lost if an immunity ruling were
deferred.

2

POINT I
TITLE II DOES NOT VALIDLY ABROGATE STATE
SOVEREIGN IMMUNITY WITH RESPECT TO THE
PROVISION OF DISABILITY BENEFIT PROGRAMS
State sovereign immunity, as recognized by the Eleventh
Amendment, is a fundamental feature of our constitutional system.
See, e.g., Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 54 (1996). Congress may abrogate that
immunity only if two strict requirements are met. Congress must make
its intent “to abrogate unmistakably clear in the language of the
statute,” and must act “pursuant to a valid exercise of its power under
§ 5 of the Fourteenth Amendment” to enforce the substantive rights
protected by that Amendment. Nevada Dep’t of Human Res. v. Hibbs,
538 U.S. 721, 726 (2003). Neither of these foundational requirements is
met in this case.
A.

Title II Does Not Unmistakably Abrogate State
Immunity for Suits Challenging Eligibility
Requirements for State Disability Benefits.

First, as NSYLERS noted in its appellee’s brief (State Br. at 18),
however broadly Congress intended the ADA to sweep with respect to
other state programs and services, it included an express statutory
3

carve out for state “disability benefit programs.” 42 U.S.C. § 12201(e).
In specifying the scope of the ADA, Congress declared in unambiguous
terms that:
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.
Id. (emphasis added).

Although the United States argues in favor of

abrogation, it does not dispute that the ADA does not regulate state
eligibility requirements for disability benefits (like the disability
retirement benefits at issue in this case) and does not authorize suits to
prevent state entities from enforcing state eligibility requirements.
Rather than indicating an “unmistakably clear” intent to abrogate
“the States’ constitutionally secured immunity,” Kimel v. Florida Bd. of
Regents, 528 U.S. 62, 73 (2000) (quotation marks omitted), Congress
drafted the ADA explicitly to shield States from suits, like plaintiff’s,
which seek to alter or waive eligibility requirements for receiving state
disability benefits.

No principle of logic or statutory interpretation

would permit reading the ADA’s express carve out for state “disability
benefit programs” as somehow abrogating state immunity when
Congress took care to specify that the ADA does not alter standards for
4

receipt of state disability benefits or authorize suits to accomplish that
result.
B.

Title II as Applied to State Disability
Benefit Programs Is Not a Valid Exercise
of Congress’s § 5 Enforcement Power.
1.

Regulating state eligibility standards
would not remedy any violation of
constitutional rights.

The ADA’s exemption for state disability benefit programs makes
sense in light of the antidiscrimination purpose of the statute.

The

ADA was enacted pursuant to § 5 of the Fourteenth Amendment, which
grants Congress authority to abrogate state immunity for conduct that
actually violates Fourteenth Amendment guarantees. United States v.
Georgia, 546 U.S. 151, 158 (2006).

Regulating eligibility for state

disability benefits, however, does not protect against constitutional
violations.

There is no constitutional right to receive government

disability benefits in the first place. See, e.g., Disabled Am. Veterans v.
U.S. Dep’t of Veterans Affairs, 962 F.2d 136, 141-42 (2d Cir. 1992).
Accordingly, when States voluntarily provide benefits to disabled
individuals, as in this case, without excluding any persons based on a
suspect classification such as race or gender, they may permissibly
5

impose rational substantive and procedural eligibility requirements
that restrict the class of eligible beneficiaries. See, e.g., Geduldig v.
Aiello, 417 U.S. 484, 496 (1974) (“There is nothing in the Constitution”
that requires a State “to create a more comprehensive social insurance
program [for disabled persons] than it already has.”); Weinberger v.
Salfi, 422 U.S. 749, 772-76 (1975) (Fourteenth Amendment does not bar
the government from imposing durational and timing requirements for
receipt of government benefits, including requirements that benefits
claims be filed within a certain time period).
Title II of the ADA “seeks to enforce [the constitutional]
prohibition on irrational disability discrimination.” Tennessee v. Lane,
541 U.S. 509, 522 (2004) (emphasis added).

That goal is not furthered

by allowing private parties to sue States to waive undisputedly rational,
nondiscriminatory eligibility requirements for receipt of state disability
benefits. See State Br. at 12-13. Because the retirement benefits in
this case are provided only to disabled employees, there is no “exclusion
of persons with disabilities from the enjoyment of public services,”
which are available to comparable non-disabled employees.

Lane, 541

U.S. at 529. Nor is this a case, as the United States suggests, about
6

discriminatory administration of state programs “that largely serve
individuals with disabilities” (U.S. Supp. Br. at 14 n.2) (emphasis
added).

Disabled employees are the sole recipients—and sole

beneficiaries—of the retirement benefits at issue here.
As Congress recognized in exempting state eligibility standards
from ADA coverage, 42 U.S.C. § 12201(e), requiring States to “alter”
eligibility standards for benefits provided on a voluntary basis only to
the disabled does not target invidious discrimination nor enforce any
other constitutional right. New York’s provision of voluntary disability
retirement benefits since 1920, for example, many decades before
enactment of the ADA (State Br. at 24), is the type of conduct Congress
meant to immunize, not sweep within the ADA’s scope.
To be sure, Title II of the ADA does “enforce a variety of . . . basic
constitutional guarantees,” and not just the Equal Protection’s
prohibition against invidious discrimination. Lane, 541 U.S. at 522.
But this is not a case implicating any other independent constitutional
right—such as the Eighth Amendment’s prohibition on cruel and
unusual treatment, Georgia, 546 U.S. at 157; the right of access to
courts, Lane, 541 U.S. at 522-24; or a substantive due process right to
7

avoid involuntary commitment, Bolmer v. Oliveira, 594 F.3d 134, 14749 (2d Cir. 2010). The United States argues that Title II may protect
procedural due process rights as well (U.S. Supp. Br. at 25), but waiving
statutorily imposed eligibility requirements is not a request for a
procedural remedy.
Here, as plaintiff acknowledges, she received the full panoply of
due process protections, including the right to appeal the denial of her
benefits application and a hearing before an administrative law judge
(A. 41). More procedure would not have cured the fundamental problem
in this case: plaintiff’s undisputed failure to meet the statutory deadline
for applying for benefits, and her resulting failure to establish a
“statutory entitlement” to the benefits she seeks. Goldberg v. Kelly, 397
U.S. 254, 262 (1970). A request that statutory eligibility criteria be
altered is not and could never be a cognizable procedural due process
claim.
2.

Regulating state eligibility standards is
not a permissible exercise of Congress’s
prophylactic authority under § 5.

While § 5 of the Fourteenth Amendment also grants Congress
authority to abrogate state immunity as to “’a somewhat broader swath
8

of conduct’” than actual constitutional violations “in order to remedy or
deter actual violations” of constitutional rights. Bolmer, 594 F.3d at
146 (quoting Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d
98, 108 (2d Cir. 2001)), that prophylactic authority is subject to two key
limitations: (1) there must be a history and pattern of constitutional
violations by the States to support Congress’s judgment that
prophylactic legislation is necessary; and (2) the statutory scheme
subjecting States to suit must be a congruent and proportional response
to the specific history and pattern of violations Congress identified. See
State Br. at 23.
There is no history and pattern of state constitutional violations in
the provision of disability benefits (see State Br. at 24), and plaintiff
and United States claim none.

Nor would pervasive historical

discrimination make sense, since the very provision of disability
benefits that are not legally mandated indicates the States’ willingness
to assist persons with disabilities and ameliorate the challenges and
difficulties they face, the opposite of unconstitutional discrimination or
animus on the basis of disability.

9

The United States faults NYSLRS for “myopically” focusing on the
provision of disability benefits rather than the “broader category of
social services” in analyzing abrogation. U.S. Supp. Br. at 15-16. But
the United States acknowledges that abrogation must be analyzed—at
a minimum—based on the statutory classifications that Congress itself
used “in enacting” the ADA. Id. at 17. Here, the ADA explicitly and
unambiguously reflects Congress’s judgment that state “disability
benefit programs” are conceptually distinct—and statutorily exempt—
although the ADA might otherwise regulate standards for other types of
social service programs. See supra at Point I(A).

If the United States

believes that statutory distinction is “myopic,” its dispute is with
Congress, not NYSLRS’s abrogation analysis, which properly respects
the classification that Congress itself drew.
Even ignoring the text of the ADA, the United States’s proposal to
analyze abrogation by looking at the broad category of state social
services, which the United States acknowledges covers almost every
activity a State could engage in, is flawed.

Contrary to the United

States’s argument, both the Supreme Court and other courts have
repeatedly refused to analyze ADA abrogation by looking at Title II “as
10

an undifferentiated whole.” Lane, 541 U.S. at 530. The very cases the
United States relies upon prove that point. Thus, the Supreme Court in
Lane analyzed Title II abrogation—not with respect to “social services”
generally—which would cover an immense range of disparate state
programs—but solely with respect to access to state judicial services.
See U.S. Supp Br. at 16. And likewise, the Third Circuit in Bowers,
which the United States also relies upon (id. at 16), analyzed Title II
abrogation “in the context of public education,” not other types of social
services. Bowers v. N.C.A.A., 475 F.3d 524, 554 n.33 (3d Cir. 2007).
The United States identifies no decision, and the State is aware of
none, that analyzes Title II abrogation “as applied to the entire ‘class of
cases’ involving state provision of social services” as the United States
insists must be done here.

U.S. Supp. Br. at 17.

Such a broad

undifferentiated abrogation analysis, precisely what the Supreme Court
has indicated is not appropriate or necessary, Lane, 541 U.S. at 530-31,
would make no sense in light of the “targeted” congruence and
proportionality test required to authorize prophylactic legislation under
§ 5. Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav.
Bank, 527 U.S. 627, 646 (1999) (“identifying the targeted constitutional
11

wrong or evil is still a critical part of our § 5 calculus because ‘[s]trong
measures appropriate to address one harm may be an unwarranted
response to another, lesser one’”).
By the United States’s own account, Title II covers “a wide array”
of state conduct and “enforce[s] an equally wide array of constitutional
guarantees,” Lane, 541 U.S. at 530, making any targeted or coherent
congruence-and-proportionality analysis impossible if the particular
type of state activity—and corresponding constitutional right—is not
defined with some underlying specificity. If anything, examining Title
II at the level of generality urged by the United States—sweeping in
many state programs for which no historical pattern or cognizable
incidence of constitutional violations is shown or even claimed, as in
this case—would call the validity of Title II as whole into question. See
College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense
Bd., 527 U.S. 666, 672 (1999) (if “the term ‘enforce’ [in § 5] is to be taken
seriously . . . the object of valid § 5 legislation must be the carefully
delimited remediation or prevention of constitutional violations”
(emphasis added)); see also Lane, 541 U.S. at 530.

12

And the absence of tailoring is even more problematic, because in
this case, plaintiff seeks special accommodation under Title II. This
Court has already determined in Garcia that Title II’s reasonable
modification requirement—to the extent it requires special accommodation and waiver of otherwise constitutional state standards and
requirements—is not congruent and proportional under § 5 of the
Fourteenth Amendment. Garcia, 280 F.3d at 109-10.
The United States points out that this Court did not apply Garcia
in Bolmer (U.S. Supp. Br. at 15), but Bolmer was not a reasonable
modification claim under the ADA. Instead, plaintiff challenged his
improper commitment to a state mental hospital, a claim that asserted
a violation of his substantive due process rights. Bolmer, 594 F.3d at
148.

The United States identifies no reason why Garcia’s analysis of

the Title II reasonable modification requirement does not remain
controlling when special accommodation is sought under Title II.
“States are not required by the Fourteenth Amendment to make
special accommodations for the disabled, so long as their actions
towards such individuals are rational.” Bd. of Tr. of the Univ. of Ala. v.
Garrett, 531 U.S. 356, 367-68 (2001).
13

A comprehensive statutory

obligation, like Title II’s reasonable modification requirement, that
broadly mandates what the Constitution does not, and does so without
specifically targeting unconstitutional state conduct cannot be upheld
as a valid exercise of Congress’s § 5 powers. See Garcia, 280 F.3d at
109-10; see also City of Boerne v. Flores, 521 U.S. 507, 532-35 (1997).
The lack of congruence and proportionality is highlighted by an
examination of what would happen if Title II were applied to regulate
eligibility for state disability benefit programs as the United States and
plaintiff suggest. The challenged eligibility requirement in this case is
a statutory filing deadline, requiring individuals to file for disability
benefits within three months of their last date of employment. Such
mandatory, non-waivable filing deadlines are routinely imposed,
including by the federal government itself, as condition of obtaining
government benefits. State Br. at 17. See also Weinberger, 422 U.S. at
772-73 (“flat cutoff provision” for applying for benefits does not violate
Fourteenth Amendment).
It would not be congruent and proportional to subject States to a
different rule and to essentially bar state entities from imposing any
mandatory filing deadlines or timing requirements at all when
14

providing optional disability benefits. Here, for example, plaintiff filed
for benefits a year after her employment was terminated, yet argues
that NYSLRS must still accept her application.

Strict eligibility

requirements have the advantage of providing qualifying rules, which
are “objective and easily administered,” Weinberger, 422 U.S. at 785,
and which “obviate the necessity for large numbers of individualized
determinations,” id. at 782. Although filing deadlines and other nonwaivable requirements may limit the class of persons who qualify for
disability benefits, they reduce the administrative cost and burden of
providing benefits to those who are eligible—leaving more resources,
and ensuring more timely approvals and less delay, for disabled persons
who do meet eligibility criteria—a legitimate, nondiscriminatory goal
that would be impaired if States were continually subject to ADA suits
in federal court every time they denied a disability benefits application
as untimely.
For all of these reasons, but most critically because the ADA itself
does not unmistakably permit plaintiff’s suit, the district court properly
dismissed plaintiff’s Title II claim as barred by the Eleventh Amendment, and its judgment may be affirmed on that alternate ground.
15

POINT II
THERE IS NO LEGAL OR PRUDENTIAL
REASON FOR THIS COURT TO AVOID THE
IMMUNITY QUESTION
The United States also asserts that this Court should avoid
deciding if NYSLRS is immune from suit.

U.S. Supp. Br. at 4-10.

NYSLRS does not dispute that this Court may review whether plaintiff
has stated a viable Title II claim and may affirm the district court’s
judgment on the ground that she has not. While claims of sovereign
immunity implicate this Court’s jurisdiction, see, e.g, Hale v. Mann, 219
F.3d 61, 67 (2d Cir. 2000), and in an ordinary case “should be given
priority” over merits questions, where the immunity question overlaps
with and requires an assessment of whether a statute authorizes a
claim against the State, this Court has discretion to consider the merits
of a plaintiff’s claim before reaching immunity. See Vermont Agency of
Natural Res. v. United States, 529 U.S. 765, 778-79 (2000); see also
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,
482-83 (4th Cir. 2005).
But that exception does not authorize courts to ignore immunity
entirely. Thus, if this Court reaches the merits first and decides that
16

plaintiff has stated a Title II claim, there would be no remaining legal
or prudential ground for deferring assessment of immunity, as the
United States appears to argue. First, contrary to the United States’s
assertion (Br. at 2), NYSLRS moved to dismiss on Eleventh Amendment
grounds; plaintiff was not surprised and fully briefed the abrogation
issue; and the district court ruled on immunity in NYSLER’s favor
(A.19-27, 47, 95-97). Thus, the immunity issue is not raised “for the
first time on appeal” as the United States contends. U.S. Supp. Br. at 1.
Likewise, the potential availability of Ex Parte Young relief does
not moot or dispose of NYSLRS’s entitlement to immunity.

If this

Court upholds plaintiff’s claim under Title II, plaintiff could potentially
seek injunctive relief from the State Comptroller under Ex Parte Young,
209 U.S. 123 (1908). But that would not resolve the question whether
NYSLRS is entitled to be dismissed from this action. The Ex Parte
Young exception rests on the premise that an injunction against a state
officer in his or her individual capacity is not a suit against the State
itself or other immune state entity.

Virginia Office of Protection &

Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011)

17

Thus, the presence or absence of an Ex Parte Young claim does not
alter the Court’s obligation to rule on immunity if a state entity has
been named as a defendant. While plaintiff’s suit may still affect New
York “indirectly” through a potential Ex Parte Young claim, that
provides “no reason to deny [NYSLRS] the immunity to which it is
entitled under the Eleventh Amendment.” Thomas v. Nakatani, 309
F.3d 1203, 1208 (9th Cir. 2002). If NYSLRS “were to prevail on appeal,
it would no longer be a party” to this action. Id.

And if NYSLRS is

constitutionally immune, this Court has no jurisdictional basis for
engaging in the procedural remand plaintiff and the United States urge.
There would no be legal ground for reversing the district court’s
dismissal of plaintiff’s ADA claim against NYSLRS, and no predicate for
the continued exercise of jurisdiction over NYSLRS for purposes of a
remand or otherwise. See Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir.
2005) (a valid claim of sovereign immunity “deprive[s] this court of
subject matter jurisdiction”).
Moreover, while the United States invokes the prudential doctrine
of constitutional avoidance, it gets the doctrine backwards. A finding of
sovereign immunity might invalidate Title II on constitutional grounds
18

if this Court interpreted Title II to authorize plaintiff’s claim. But it
would do so because NYSLRS is entitled to the protection of the
Eleventh

Amendment,

constitutional system.

a

structural

protection

central

to

our

See supra at 3; see also Virginia Office of

Protection & Advocacy, 131 S.Ct. at 1637-38.

Thus, “the doctrine that

statutes should be construed so as to avoid difficult constitutional
questions,” Vermont Agency, 529 U.S. at 787, counsels in favor of
interpreting Title II narrowly to avoid subjecting NYSLRS to suit, not
to avoid a ruling on the existence of immunity itself, which would
deprive the Eleventh Amendment of intended effect and leave the
constitutional right of immunity unenforced.
If all that were necessary to defeat consideration of a sovereign
immunity claim on appeal—based on “constitutional avoidance”—is a
plaintiff’s willingness to assert an Ex Parte Young claim on remand,
state entities would deprived of the very benefit of sovereign immunity:
protection from suit in federal court. Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).

States would

“have no [definitive] answer” from circuit courts “on the question of
whether [they] are immune from suit under Title II of the ADA” and
19

would therefore be compelled to continually defend suits in federal
court—losing the intended protection of immunity even if they are
constitutionally

immune.

Thomas, 309 F.3d at 1208.

“This surely

would be inconsistent with the respect [federal courts] owe to the
States” as coequal sovereigns in our constitutional system. Id. (citing
Metcalf & Eddy, 506 U.S. at 146)).
Finally, the United States urges this Court to avoid sovereign
immunity because the issue is “complex” and instead to remand the
immunity question to the district court for further analysis. U.S. Supp.
Br. at 9. But the United States intervened on appeal and proceeded to
thoroughly brief the immunity issue, which is undisputedly a pure issue
of law. The United States has not identified any argument not fully
developed and comprehensively raised to this Court nor any reason why
the district court is better positioned to rule on immunity. And while
the parties disagree about whether NYSLRS is immune, all agree that
the issue is controlled by the plain language of the ADA and governing
Supreme Court precedent—hardly presenting an issue this Court is not
fully competent and able to determine. See U.S. Supp. Br. at 10-33

20

(arguing that Supreme Court caselaw clearly forecloses NYSLRS’s
immunity claim).

CONCLUSION
For the reasons set forth above and in NYSLRS’s appellee’s brief,
the judgment of the district court should be affirmed, and this Court
may do so by finding plaintiff’s claim against NYSLRS barred by
sovereign immunity.
Dated: New York, NY
February 15, 2012
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
BARBARA D. UNDERWOOD
Solicitor General
CECELIA C. CHANG
Deputy Solicitor General
LAURA R. JOHNSON
Assistant Solicitor General
of Counsel

120 Broadway, 25th Floor
New York, NY 10271
[phone]

21