C. v. New York State and Local Retir

Filing 59

AMICUS BRIEF, in support of Plaintiff-Appellant Mary Jo C., on behalf of Amicus Curiae United States Department of Justice, FILED. Service date 08/29/2011 by CM/ECF. [377490] [11-2215]

11-2215
IN THE 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 THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT AND AS INTERVENOR
___________________________
THOMAS E. PEREZ
Assistant Attorney General
JESSICA DUNSAY SILVER
SASHA SAMBERG-CHAMPION
Attorneys
Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, DC 20044-4403
[phone]

TABLE OF CONTENTS
PAGE
STATEMENT OF JURISDICTION.......................................................................... 1
QUESTIONS PRESENTED ...................................................................................... 1
INTEREST OF THE UNITED STATES .................................................................. 2
STATEMENT OF THE CASE .................................................................................. 3
SUMMARY OF ARGUMENT ................................................................................. 6
ARGUMENT
I

TITLE II REQUIRES THE RETIREMENT SYSTEM TO
MAKE REASONABLE MODIFICATIONS TO PROCEDURAL
REQUIREMENTS THAT PREVENT INDIVIDUALS WITH
DISABILITIES FROM APPLYING FOR RETIREMENT
BENEFITS ............................................................................................ 8

II

THIS COURT SHOULD VACATE THE DISTRICT COURT’S
UNNECESSARY HOLDING THAT TITLE II DOES NOT
ABROGATE SOVEREIGN IMMUNITY UNDER THE
CIRCUMSTANCES OF THIS CASE ................................................ 19

CONCLUSION ........................................................................................................ 23
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES
CASES:

PAGE

Astralis Condo. Ass’n v. Secretary, United States Dep’t of Hous.
& Urban Dev., 620 F.3d 62 (1st Cir. 2010) .................................................. 15
Barber v. Colorado Dep’t of Revenue, 562 F.3d 1222 (10th Cir. 2009)........... 14-16
Bolmer v. Oliveira, 594 F.3d 134 (2d Cir. 2009) .................................................... 21
Brockman v. Texas Dep’t of Criminal Justice,
397 F. App’x 18 (5th Cir. 2010) .................................................................... 21
Buchanan v. Maine, 469 F.3d 158 (1st Cir. 2006) .................................................. 20
Callace v. New York State Emps.’ Ret. Sys.,
140 A.D.2d 756 (N.Y. App. Div. 1988) ........................................................ 17
Canales v. Sullivan, 936 F.2d 755 (2d Cir. 1991) ................................................... 18
Constantine v. Rectors & Visitors of George Mason Univ.,
411 F.3d 474 (4th Cir. 2005) ......................................................................... 10
Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) .......................... 13
Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) .............................................. 14
Deposit Ins. Agency v. Superintendent of Banks,
482 F.3d 612 (2d Cir. 2007) .................................................................... 20-21
Estate of Martin v. California Dep’t of Veterans Affairs,
560 F.3d 1042 (9th Cir.), cert. denied, 30 S. Ct. 299 (2009) .......................... 9
Fulton v. Goord, 591 F.3d 37 (2d Cir. 2009) .......................................................... 16
Haas v. Quest Recovery Servs., 549 U.S. 1163 (2007) ........................................... 19
Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003) .................................................. 16
- ii -

CASES (continued):

PAGE

Harris v. Mills, 572 F.3d 66 (2d Cir. 2009)............................................................. 22
Helen L. v. DiDario, 46 F.3d 325 (3d Cir.),
cert. denied, 516 U.S. 813 (1995) .................................................................. 15
Herschaft v. New York Bd. of Elections, No. 00-cv-2748,
2001 WL 940923 (E.D.N.Y. Aug. 13, 2001),
aff’d on other grounds, 37 F. App’x 17 (2d Cir. 2002) ................................. 15
Hudak v. New York Policemen’s & Firemen’s Ret. Sys.,
106 Misc. 2d 540 (N.Y. Sup. Ct. 1980) ......................................................... 17
Leibowitz v. Cornell Univ., 445 F.3d 586 (2d Cir. 2006) .......................................... 5
Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) .......... 20
McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004) ................................... 10
Missouri v. Jenkins, 495 U.S. 33 (1990) ................................................................. 13
Natarelli v. VESID Office, 420 F. App’x 53 (2d Cir. 2011) .................................... 19
North Carolina State Board of Education v. Swann, 402 U.S. 43 (1971) .............. 13
Quinones v. City of Evanston, 58 F.3d 275 (7th Cir. 1995) .................................... 12
Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) .............................................. 9
United States v. Georgia, 546 U.S. 151 (2006) ....................................................... 19
Zibbell v. Michigan Dep’t of Human Servs., 313 F. App’x 843 (6th Cir.),
cert. denied, 129 S. Ct. 2869 (2009) .............................................................. 21
STATUTES:
Title I of the Americans with Disabilities Act, 42 U.S.C. 12111 et seq.,
42 U.S.C. 12111(9)(B) ............................................................................ 10-11
- iii -

STATUTES (continued):

PAGE

Title II of the Americans with Disabilities Act, 42 U.S.C. 12131 et seq. ................. 2
42 U.S.C. 12131(2) ...................................................................................... 5, 8
42 U.S.C. 12132........................................................................................... 2, 8
42 U.S.C. 12133............................................................................................... 2
42 U.S.C. 12134............................................................................................... 2
5 U.S.C. 8337(b) ...................................................................................................... 11
5 U.S.C. 8453 ........................................................................................................... 18
28 U.S.C. 1291 ........................................................................................................... 1
28 U.S.C. 1331 ........................................................................................................... 1
28 U.S.C. 2403(a) ...................................................................................................... 2
29 U.S.C. 794a ........................................................................................................... 2
Alaska Stat. § 14.25.130(f) ...................................................................................... 18
Md. Code, State Pers. & Pens. § 29-104(c) ............................................................. 18
Mich. Comp. Laws § 38.24 ...................................................................................... 18
N.J. Stat. § 43:15A-43.............................................................................................. 18
N.Y. C.P.L.R. 208 .................................................................................................... 17
N.Y. Retirement and Social Security Law
§ 605 ................................................................................................................ 9
§ 605(a)(2) ....................................................................................................... 4
§ 605(b)(1) ....................................................................................................... 3
§ 605(b)(2) .................................................................................................4, 11
§ 605(b)(3)(c)................................................................................................... 3
§ 605(d)(2) ....................................................................................................... 3

- iv -

REGULATIONS:

PAGE

28 C.F.R. 35.104 ........................................................................................................ 8
28 C.F.R. 35.130(b)(3)(ii) ........................................................................................ 10
28 C.F.R. 35.130(b)(7) ............................................................................................... 9
28 C.F.R. 35.130(b)(8) ............................................................................................. 12
28 C.F.R. Pt. 35 .......................................................................................................... 2
45 C.F.R. 84.44(a) .................................................................................................... 10
RULE:
Federal Rule of Appellate Procedure 29(a) ............................................................... 2

-v-

IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
__________________________
No. 11-2215
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 THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT AND AS INTERVENOR
___________________________
STATEMENT OF JURISDICTION
The district court had jurisdiction over plaintiff’s claims pursuant to 28
U.S.C. 1331. This court has jurisdiction pursuant to 28 U.S.C. 1291.
QUESTIONS PRESENTED
The United States will address the following questions:
1. Did the district court err in holding that New York State’s three-month
deadline for applying for disability retirement benefits is not subject to the

-2reasonable modification requirements of Title II of the Americans with Disabilities
Act?
2. Did the district court err in holding that Title II does not validly abrogate
sovereign immunity under the circumstances of this case?
INTEREST OF THE UNITED STATES
The United States files this brief as an amicus curiae pursuant to Federal
Rule of Appellate Procedure 29(a) and as intervenor in defense of the
constitutionality of a federal statute pursuant to 28 U.S.C. 2403(a).
This case raises important questions as to the relationship between Title II of
the Americans with Disabilities Act (ADA), 42 U.S.C. 12131 et seq., and state
laws that purport to preclude public entities from making reasonable modifications
to policies that discriminate against individuals with disabilities. The United States
has an interest in ensuring correct construction and effective enforcement of Title
II, which bars public entities from various forms of disability discrimination, 42
U.S.C. 12132, authorizes the Attorney General to bring civil enforcement actions,
see 42 U.S.C. 12133; 29 U.S.C. 794a, and gives individuals the right to bring
private enforcement actions, 42 U.S.C. 12133. Title II also requires the Attorney
General to promulgate regulations construing its broad nondiscrimination mandate,
42 U.S.C. 12134, and the Attorney General has done so. 28 C.F.R. Pt. 35.

-3STATEMENT OF THE CASE
1. Plaintiff is a former librarian who was 57 years old in December 2009
(A. 38). She worked for various libraries in New York between 1986 and 2006,
including defendant Central Islip Public Library (the “Library”), and is a member
of defendant New York State and Local Retirement System (the “Retirement
System”) (A. 38). She has suffered from mental illness since adolescence (A. 38).
In November 2006, the Library fired plaintiff because of behavior caused by
her mental illness (A. 38). Other libraries in the area will not hire her because of
this episode (A. 42). Plaintiff alleges, and it is undisputed on this motion to
dismiss, that she is sufficiently “incapacitated” to qualify for disability retirement
benefits under New York law (A. 39).
New York law provides for disability retirement benefits for members of the
Retirement System with at least ten years of service credit who are “physically or
mentally incapacitated for performance of gainful employment.” See N.Y.
Retirement and Social Security Law § 605(b)(1) and (b)(3)(c). The member is
entitled to a “retirement allowance” based on the member’s age, final average
salary, and years of service. Id. § 605(d)(2). In most cases, an application for such
disability retirement benefits must be filed “within three months from the last date

-4the member was being paid on the payroll.” Id. § 605(b)(2).1 The application can
be filed by the member or by the “head of the department in which such member is
employed.” Id. § 605(a)(2).
Due to her mental illness, plaintiff was unable to apply for disability
retirement benefits during the three-month period when New York law permitted
her to do so (A. 39). Her brother contacted the Retirement System, which advised
him that the Library could apply on her behalf or convert her termination into a
medical leave of absence, thereby extending her deadline for filing (A. 39-40).2
However, the Library declined to take either action (A. 40). In November 2007,
about a year after her termination, plaintiff’s clinical condition improved and she
applied for retirement benefits (A. 40). The Retirement System denied her
application for failure to meet the three-month deadline (A. 40). Plaintiff asked the
Retirement System to modify the deadline in light of her disability (A. 41). The
Retirement System never formally responded to this request (A. 41). Plaintiff filed
an administrative appeal, which was rejected on the ground that state law does not
permit an extension of the filing deadline (A. 41).

1

A member with “a qualifying World Trade Center condition” faces no
deadline. See N.Y. Retirement and Social Security Law § 605(b)(2).
2

A filing can be made a year after termination of active employment, so
long as the employee is on unpaid medical leave in the interim. See N.Y.
Retirement and Social Security Law § 605(b)(2).

-52. Plaintiff sued both the Retirement System and the Library. She alleges
that the Retirement System violated Title II of the ADA by not waiving its threemonth filing requirement (A. 42), while the Library violated Title II and state law
by failing to file on her behalf or reclassify her termination as a leave of absence
(A. 43-44). Plaintiff seeks a declaration of wrongdoing, an injunction requiring the
Retirement System to waive the three-month deadline in her case, attorney’s fees,
and damages from the Library (A. 44-45).
3. The district court granted the defendants’ motion to dismiss all claims. It
found that plaintiff failed to state a Title II claim against the Retirement System,
for three reasons. First, the district court determined, plaintiff failed to
demonstrate that she had a disability, because she did not allege facts “plausibly
suggesting that such mental illness substantially limited one or more of her major
life activities” (A. 22).3
Second, the district court found, plaintiff was not a “qualified individual
with a disability,” because her failure to meet the three-month deadline meant she
did not meet the program’s “essential eligibility requirements” (A. 23) (quoting 42
U.S.C. 12131(2)). Finally, because state officials have no discretion under state

3

We take no position on this ruling, which in any event plaintiff can cure by
pleading additional facts regarding plaintiff’s mental illness. See, e.g., Leibowitz v.
Cornell Univ., 445 F.3d 586, 593 (2d Cir. 2006) (plaintiff entitled to plead
additional facts when complaint was dismissed for failure to state a claim).

-6law to waive the deadline, the district court reasoned, Title II cannot require them
to do so: “Requiring the State defendant to violate state law is not a reasonable
accommodation as a matter of law” (A. 26).
Having found that plaintiff failed to state a Title II claim, the district court
dismissed plaintiff’s claim against the Retirement System on sovereign immunity
grounds, reasoning that abrogation of sovereign immunity requires a viable Title II
claim (A. 27). But the district court observed that the failure to state a claim would
likewise doom a claim against a state official pursuant to Ex Parte Young, and so it
denied plaintiff’s motion to amend her complaint to bring such a claim (A. 27
n.6).4
SUMMARY OF ARGUMENT
This Court should reverse the district court’s finding that plaintiff failed to
state a Title II claim. The district court erred in finding, first, that a state-law
application deadline is an “essential eligibility requirement” not subject to the
reasonable-modification requirement, and second, that Title II never can require an

4

With respect to the Library, the district court found that plaintiff’s claim
properly was brought under Title I (employment discrimination) rather than Title II
(public services) (A. 29-33). Plaintiff did not bring a Title I claim against the
Library – nor could she, since she failed to exhaust administrative remedies – and
so the district court dismissed plaintiff’s ADA claim against the Library (A. 33 &
n.11). We take no position regarding plaintiff’s claim against the Library.

-7agency to act contrary to state law. This Court also should vacate the district
court’s unnecessary sovereign immunity ruling.
Contrary to the district court’s holding, a person whose disability prevents
her from meeting a program’s procedural application requirements may
nonetheless be “qualified,” so long as she satisfies the program’s substantive
eligibility requirements. The three-month application deadline at issue here is
precisely such a procedural requirement, notwithstanding that mid-level New York
courts have construed state law not to permit the Retirement System to waive it
under appropriate circumstances.5
Moreover, a public entity is required to make reasonable modifications to its
procedural requirements – including timing requirements – to assist a qualified
person in accessing the program. Relaxing an otherwise rigid state-law application
deadline is sometimes a reasonable and necessary modification with respect to
programs such as this one. Indeed, the federal government and many States
provide just such an accommodation to those whose disabilities or other
extraordinary circumstances prevent them from timely applying for disability
retirement benefits.

5

The New York Court of Appeals has not ruled on this question. Nor does
it appear that the lower courts to consider it took into account the requirements of
Title II. We take no position on this question of New York law.

-8ARGUMENT
I
TITLE II REQUIRES THE RETIREMENT SYSTEM TO MAKE
REASONABLE MODIFICATIONS TO PROCEDURAL REQUIREMENTS
THAT PREVENT INDIVIDUALS WITH DISABILITIES FROM
APPLYING FOR RETIREMENT BENEFITS
1. Title II 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 any such entity.” 42 U.S.C. 12132. It defines “qualified
individual with a disability” as:
an individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in
programs or activities provided by a public entity.
42 U.S.C. 12131(2) (emphasis added); accord 28 C.F.R. 35.104.
Title II thus strikes a careful balance with respect to state laws governing
public programs. It distinguishes between “essential eligibility requirements,”
which need not be compromised, and mere “rules, policies, or practices,” which –
like architectural, communication, and transportation barriers – are subject to a
reasonable-modification requirement to the extent that they needlessly preclude
individuals with disabilities from accessing public programs and services. The

-9public entity must “make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on the
basis of disability,” unless such modifications would “fundamentally alter the
nature of the service, program, or activity.” 28 C.F.R. 35.130(b)(7).
Here, the “essential eligibility requirements” for receiving disability
retirement benefits are: (1) being a member of the Retirement System; (2) having
at least ten years’ service; and (3) being “physically or mentally incapacitated for
performance of gainful employment.” N.Y. Retirement and Social Security Law
§ 605. Assuming that plaintiff meets each of those three substantive requirements,
she is “eligible” for benefits.
The three-month deadline for applying for benefits, by contrast, is among the
“rules, policies, or practices” for program administration that are subject to a
reasonable-modification requirement. Rather than being an element of eligibility,
it is a “regulatory requirement[]” that “an otherwise eligible applicant” must meet
in order to receive benefits. See Estate of Martin v. California Dep’t of Veterans
Affairs, 560 F.3d 1042, 1047 (9th Cir.), cert. denied, 30 S. Ct. 299 (2009). And
plaintiff’s failure to meet such a regulatory requirement does not preclude her from
being a “qualified individual” for Title II purposes. See, e.g., Radaszewski v.
Maram, 383 F.3d 599, 612 (7th Cir. 2004) (plaintiff was “qualified” for receipt of
home health care services because he met all the substantive requirements,

- 10 notwithstanding that the cost of providing him services would exceed the state
agency’s limits). Rather, a “method[] of administration” must give way where it
has the “effect of defeating or substantially impairing accomplishment of the
objectives of the public entity’s program with respect to individuals with
disabilities.” 28 C.F.R. 35.130(b)(3)(ii).
That the three-month deadline goes to administrative procedure rather than
substantive eligibility is clear. Timing requirements such as this one typically are
administrative rather than substantive, and so they regularly are subjected to a
reasonable-modification requirement. For example, taking an exam on a specified
date is not an essential eligibility criterion for passing a law school course, and so a
school must offer a reasonable modification where an individual’s disability makes
it impossible to take the exam on that date. See Constantine v. Rectors & Visitors
of George Mason Univ., 411 F.3d 474, 498-499 (4th Cir. 2005); see also 45 C.F.R.
84.44(a) (academic institutions may be required to modify “length of time
permitted for the completion of degree requirements”). Similarly, a municipality
was required to offer an individual with a disability additional time to clean his
yard before citing him as a nuisance. See McGary v. City of Portland, 386 F.3d
1259, 1268 (9th Cir. 2004). And employers may be required to provide flexible
work schedules as a reasonable accommodation unless they can demonstrate that
something about the job makes adherence to a rigid schedule necessary. See 42

- 11 U.S.C. 12111(9)(B) (listing “modified work schedules” as example of reasonable
accommodation). The bottom line is that failure to meet a timing requirement does
not preclude an individual from being qualified, unless that timing requirement is
truly essential to the program.
Nothing about the nature of a disability retirement program suggests that
waiving the three-month deadline in exceptional cases such as this one would
meaningfully alter the program at all, let alone fundamentally alter it. To the
contrary, as explained further below, the federal government’s disability retirement
program provides for just such a waiver of its application deadline where the
applicant’s mental incompetence prevents compliance. See 5 U.S.C. 8337(b).
And the New York statute itself makes clear that the three-month deadline is not an
essential eligibility requirement, in that it does not require all filings for benefits to
be made on that timetable. Rather, it provides that a filing can be made a year after
termination of employment, so long as the employee is considered to be on unpaid
medical leave in the interim. See N.Y. Retirement and Social Security Law
§ 605(b)(2). And no filing deadline at all applies where the disability is caused by
“a qualifying World Trade Center condition.” Ibid. There is no reason why a
similar exception could not be made for those whose disabilities prevent them from
meeting the statutory deadline.
Accordingly, even assuming the three-month deadline can be categorized as

- 12 an “eligibility requirement” at all, it certainly is not an essential one. And a public
entity may not “impose or apply eligibility criteria that screen out or tend to screen
out an individual with a disability or any class of individuals with disabilities from
fully and equally enjoying any service, program, or activity, unless such criteria
can be shown to be necessary for the provision of the service, program, or activity
being offered.” 28 C.F.R. 35.130(b)(8).
Neither the district court nor the Retirement System in its filing below
explained why the three-month deadline should be considered a substantive
eligibility standard rather than an administrative requirement. They simply
asserted, incorrectly, that the three-month deadline was an essential component of
eligibility merely because state law requires the Retirement System to enforce it
(A. 25-26). But even if state law purports to require the Retirement System to
rigidly enforce the deadline, such a requirement cannot alter the deadline’s basic
character as a regulatory requirement rather than an essential eligibility condition.
It only makes the deadline more prone to discriminate against individuals with
disabilities. “A discriminatory state law is not a defense to liability under federal
law; it is a source of liability under federal law.” Quinones v. City of Evanston, 58
F.3d 275, 277 (7th Cir. 1995) (Easterbrook, J.).
2. The district court also erred in reasoning that Title II can never require a
state agency to accommodate an individual with a disability if the proposed

- 13 modification is contrary to state law (A. 26). Rather, to the extent that the threemonth deadline unreasonably precludes otherwise qualified individuals with
disabilities from obtaining public benefits, it is preempted by Title II and is
unenforceable.
Under the Supremacy Clause, state law must give way to the extent it
“conflicts with federal law.” Crosby v. National Foreign Trade Council, 530 U.S.
363, 378-379 (2000). Such conflicts exist not only where “it is impossible * * * to
comply with both state and federal law,” but also “where under the circumstances
of a particular case, the challenged state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.”
Id. at 372-373 (internal citation, brackets, and quotation marks omitted).
Accordingly, state and local governments are required to bring themselves into
compliance with federal law even if state law would otherwise prohibit such
action. For example, in North Carolina State Board of Education v. Swann, 402
U.S. 43, 45 (1971), the Supreme Court recognized that “if a state-imposed
limitation on a school authority’s discretion operates to inhibit or obstruct” federallaw requirements, “it must fall.” See also Missouri v. Jenkins, 495 U.S. 33, 56-57
(1990) (federal court could order a local government to support a federally
mandated school desegregation plan, even if doing so exceeded the locality’s
authority under state law).

- 14 In particular, the courts of appeals have repeatedly held that compliance with
Title II and other federal laws protecting the rights of individuals with disabilities
is required even where the modification sought is the relaxing of an unnecessarily
rigid state law. For example, Hawaii’s law requiring the quarantine of all animals
coming to the State was subject to the reasonable-modification requirement where
it deprived individuals with disabilities of use of their service animals for an
extended period of time. See Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996).
Crowder rejected the argument that the court should not second-guess the state
legislature’s decision not to permit any exceptions in the statute, observing:
The court’s obligation under the ADA and accompanying regulations
is to ensure that the decision reached by the state authority is
appropriate under the law and in light of proposed alternatives.
Otherwise, any state could adopt requirements imposing unreasonable
obstacles to the disabled, and when haled into court could evade the
antidiscrimination mandate of the ADA merely by explaining that the
state authority considered possible modifications and rejected them.
Id. at 1485.
Similarly, a Colorado law requiring a fifteen-year-old driver to be
supervised by a parent with a driver’s license was subject to the reasonablemodification requirement when applied to a child whose only custodial parent was
blind. See Barber v. Colorado Dep’t of Revenue, 562 F.3d 1222, 1232-1233 (10th
Cir. 2009). While Barber ultimately held that the state defendant had offered a
reasonable modification, it took pains to reject the argument that the defendant was

- 15 required to follow the state law rather than Title II: “Reliance on state statutes to
excuse non-compliance with federal laws is simply unacceptable under the
Supremacy Clause.” Id. at 1233. And reliance on a Puerto Rican condominium
law did not excuse failure to comply with the reasonable-modification
requirements of the Fair Housing Act, because the defendant was “duty bound not
to enforce a statutory provision if doing so would either cause or perpetrate
unlawful discrimination.” See Astralis Condo. Ass’n v. Secretary, United States
Dep’t of Hous. & Urban Dev., 620 F.3d 62, 69-70 (1st Cir. 2010); accord Helen L.
v. DiDario, 46 F.3d 325, 338 (3d Cir.) (rejecting argument that State could not
make reasonable modification because doing so would require shifting funds
within the budget in violation of state procedural law), cert. denied, 516 U.S. 813
(1995).
There was, therefore, no basis for the district court’s blanket statement that
“[r]equiring the State defendant to violate state law is not a reasonable
accommodation as a matter of law” (A. 26) (citing Herschaft v. New York Bd. of
Elections, No. 00-cv-2748, 2001 WL 940923 (E.D.N.Y. Aug. 13, 2001), aff’d on
other grounds, 37 F. App’x 17 (2d Cir. 2002)). The primary authority cited by the
district court for this proposition was Herschaft’s statement that “an
accommodation that would require a defendant to violate an otherwise
constitutional state law is inherently unreasonable.” See 2001 WL 940923, at *6.

- 16 This statement – itself unsupported by precedent or reasoning, and unnecessary to
a decision that this Court ultimately affirmed on other grounds – is simply wrong.
To the extent that a reasonable modification can be reached consistent with
state law, Title II does not require a public entity to consider an alternative
modification that would violate state law. See Barber, 562 F.3d at 1232-1233.
But where state law leaves no room for any reasonable modification, and thus
purports to require the denial of public services or benefits to individuals with
disabilities, state law must give way. See Hargrave v. Vermont, 340 F.3d 27, 3839 (2d Cir. 2003) (finding that Title II preempted inconsistent state law).
3. The district court did not assess the reasonableness of plaintiff’s
proposed modification, because it found that conflict with state law alone made the
modification unreasonable. The reasonableness of a proposed modification is a
fact-specific question that requires case-by-case inquiry with respect to each
qualified individual. See Fulton v. Goord, 591 F.3d 37, 44 (2d Cir. 2009). It is not
possible on this record to ascertain whether granting this particular plaintiff the
specific amount of additional time she requested would have been reasonable.
However, plaintiff’s allegation that accommodating her would be reasonable is
sufficient to survive this motion to dismiss. As a general matter, it is reasonable
for some individuals with disabilities to receive a relaxation of the three-month
requirement. Indeed, public entities grant similar accommodations regularly.

- 17 Individuals with mental disabilities, in particular, can struggle to meet
certain deadlines or other procedural requirements and, as a result, are at risk of
having important rights compromised or lost. While nonetheless applying state
law, New York courts have recognized the “obvious injustice” of this inflexible
statutory scheme where the very mental disability that creates eligibility for
disability retirement benefits also prevents a member from applying for them.
Callace v. New York State Emps.’ Ret. Sys., 140 A.D.2d 756, 757-758 (N.Y. App.
Div. 1988); accord Hudak v. New York Policemen’s & Firemen’s Ret. Sys., 106
Misc. 2d 540, 541 (N.Y. Sup. Ct. 1980) (“reluctantly” upholding denial of benefits
to member who was “hospitalized as a mental health patient” during time to
apply).
In order to prevent such injustice, many laws permit late filings by those
whose disabilities prevent them from meeting statutory deadlines. For example,
New York law extends the statute of limitations for bringing a lawsuit to
accommodate those who are “under a disability because of infancy or insanity at
the time the cause of action accrues.” N.Y. C.P.L.R. 208. And this Court has held
that the deadline to challenge a denial of social security benefits can be tolled for
mental illness, using reasoning that applies readily here:
[A] due process claim seems peculiarly apropos in the context of
Social Security disability benefit proceedings in which * * * the very
disability that forms all or part of the basis for which the claimant
seeks benefits may deprive her of the ability to understand or act upon

- 18 notice of available administrative procedures.
Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir. 1991) (internal quotation marks
and citation omitted).
In its administration of a similar disability retirement program, the federal
government permits late filings under circumstances such as those presented here,
indicating that such flexibility is quite workable. Federal employees must apply
for disability retirement benefits within one year of leaving federal service. 5
U.S.C. 8453. However, this requirement can be waived for a retirement system
member “who, at the date of separation from service or within 1 year thereafter, is
mentally incompetent if the application is filed with the Office within 1 year from
the date of restoration of the employee or Member to competency or the
appointment of a fiduciary, whichever is earlier.” Ibid.
Other state retirement systems similarly permit late-filed disability
retirement applications under appropriate circumstances. See, e.g., Alaska Stat.
§ 14.25.130(f) (authorizing waiver of filing deadline “if there are extraordinary
circumstances that resulted in the inability to meet the filing deadline”); Md. Code,
State Pers. & Pens. § 29-104(c) (permitting late filing due to “physical or mental
incapacity during the filing period”); Mich. Comp. Laws § 38.24 (permitting late
filing “for good cause”); N.J. Stat. § 43:15A-43 (permitting late filing due to
“circumstances beyond the control of the member”). There is no obvious reason,

- 19 and the Retirement System has not suggested any, why New York could not do the
same in appropriate cases.
II
THIS COURT SHOULD VACATE THE DISTRICT COURT’S
UNNECESSARY HOLDING THAT TITLE II DOES NOT ABROGATE
SOVEREIGN IMMUNITY UNDER THE CIRCUMSTANCES OF THIS
CASE
This Court also should vacate the district court’s unnecessary and erroneous
holding that Title II does not abrogate sovereign immunity under the circumstances
of this case. Furthermore, it should remand with instructions that the district court
permit the plaintiff to amend her complaint to add an individual state official as a
defendant, a step that would ensure that the validity of this important federal law
will not be further questioned in this case.
1. The district court incorrectly reasoned that, in the absence of a valid Title
II claim, Title II fails to abrogate state sovereign immunity (A. 22, 27). In fact, in
the absence of a valid Title II claim, a court need not and should not reach the
validity of Title II’s abrogation at all. See United States v. Georgia, 546 U.S. 151,
159 (2006); Haas v. Quest Recovery Servs., 549 U.S. 1163, 1163 (2007)
(Ginsburg, J., concurring); Natarelli v. VESID Office, 420 F. App’x 53, 55 (2d Cir.
2011). Only after a court determines that a plaintiff has pleaded a Title II claim
that does not also constitute a constitutional violation should it decide whether
Title II validly abrogates sovereign immunity. Georgia, 546 U.S. at 159;

- 20 Buchanan v. Maine, 469 F.3d 158, 172-173 (1st Cir. 2006). Georgia’s instruction
to adjudicate issues in this order is consistent with the “fundamental and
longstanding principle of judicial restraint” that “courts avoid reaching
constitutional questions in advance of the necessity of deciding them.” Lyng v.
Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988). Even
while citing Georgia, the district court turned this principle of constitutional
avoidance on its head by deciding a statutory interpretation dispute on
constitutional grounds.
Improperly dismissing a Title II claim on sovereign immunity grounds rather
than for failure to state a claim is not merely an error of semantics. For one thing,
it unnecessarily creates uncertainty about the constitutional validity of a federal
statute. For another, it has procedural ramifications. As plaintiff correctly
observes, sovereign immunity is a jurisdictional question that permits courts to
consider matters beyond the pleadings. See Brief for Plaintiff-Appellant 19-20.
Accordingly, a sovereign immunity defense that amounts to no more than a
contention that defendant will prevail on the Title II claim must be handled as, in
effect, a motion for summary judgment, with both sides entitled to submit
evidence. Moreover, making an argument about the scope of Title II into an
Eleventh Amendment question invites a State to take an interlocutory appeal
should the plaintiff prevail. See Deposit Ins. Agency v. Superintendent of Banks,

- 21 482 F.3d 612, 615 (2d Cir. 2007) (state entities may immediately appeal denial of
motion to dismiss based on Eleventh Amendment immunity); see, e.g., Bolmer v.
Oliveira, 594 F.3d 134, 148-149 (2d Cir. 2009) (ruling on whether plaintiff stated
Title II claim in order to resolve interlocutory appeal on Eleventh Amendment
question). The bottom line is that the district court erred in conflating these very
different inquiries.
This Court, accordingly, should clarify that Georgia, far from requiring the
unnecessary constitutional adjudication at issue here, actually forbids it.
Additionally, “when lower courts have unnecessarily reached issues concerning the
constitutionality of the ADA’s abrogation of sovereign immunity, the offending
portions of their decisions have been vacated on appeal.” Brockman v. Texas
Dep’t of Criminal Justice, 397 F. App’x 18, 24 (5th Cir. 2010); accord Zibbell v.
Michigan Dep’t of Human Servs., 313 F. App’x 843, 847-848 (6th Cir.), cert.
denied, 129 S. Ct. 2869 (2009). This Court should do the same.
2. Additionally, this Court should instruct the district court to grant the
plaintiff’s motion to add an individual state officer as a defendant in order to avoid
any further unnecessary constitutional adjudication. The district court denied the
plaintiff’s motion as futile because, it concluded, plaintiff could not state a Title II
claim (A. 27 n.6). That premise was erroneous, and neither the district court nor
the defendants have offered any other reason to deny plaintiff leave to amend.

- 22 Plaintiff seeks no monetary relief from the Retirement System, and it is wellestablished that she can receive the declaratory and injunctive relief she seeks from
the state defendant pursuant to the Ex Parte Young doctrine without violating the
Eleventh Amendment. See Harris v. Mills, 572 F.3d 66, 72-73 (2d Cir. 2009).
Accordingly, permitting plaintiff to amend her complaint will ensure that Title II’s
constitutionality will not be called into question further.6

6

Because we perceive no reason for this Court to reach the question of
whether Title II validly abrogates sovereign immunity with respect to the provision
of public benefits, in the interest of brevity, we do not address that question here.
If this Court nonetheless finds it appropriate to reach the question, we respectfully
request the opportunity to submit a supplemental brief.

- 23 -

CONCLUSION
This Court should reverse the district court’s finding that plaintiff failed to
state a Title II claim against the Retirement System and vacate the district court’s
order dismissing plaintiff’s claim against the Retirement System on sovereign
immunity grounds.

Respectfully submitted,
THOMAS E. PEREZ
Assistant Attorney General

s/ Sasha Samberg-Champion
JESSICA DUNSAY SILVER
SASHA SAMBERG-CHAMPION
Attorneys
Department of Justice
Civil Rights Division
Appellate Section
Ben Franklin Station
P.O. Box 14403
Washington, DC 20044-4403
[phone]

CERTIFICATE OF COMPLIANCE
This brief complies with the type volume limitation imposed by Federal
Rule of Appellate Procedure 32(a)(7)(B). This brief was prepared with Microsoft
Word 2007 and contains 4937 words of proportionately spaced text. The typeface
is Times New Roman, 14-point font.

s/ Sasha Samberg-Champion
SASHA SAMBERG-CHAMPION
Attorney

Dated: August 29, 2011

CERTIFICATE OF SERVICE
I hereby certify that on August 29, 2011, I electronically filed the foregoing
BRIEF FOR UNITED STATES AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFF-APPELLANT AND AS INTERVENOR with the Clerk of the Court
for the United States Court of Appeals for the Second Circuit by using the
appellate CM/ECF system. I also certify that six hard copies of the same were sent
by certified mail.
I further certify that all participants in this case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.

s/ Sasha Samberg-Champion
SASHA SAMBERG-CHAMPION
Attorney