Lane v. Peña

PETITIONER:Lane
RESPONDENT:Peña
LOCATION:10th Judicial Circuit Court – Jefferson

DOCKET NO.: 95-365
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 518 US 187 (1996)
ARGUED: Apr 15, 1996
DECIDED: Jun 20, 1996

ADVOCATES:
Beth S. Brinkmann – Argued the cause for the respondent
Walter A. Smith, Jr. – Argued the cause for the petitioner

Facts of the case

The Department of Transportation expelled Lane, a student, from the U.S. Merchant Marine Academy because he was diagnosed with diabetes. Lane sued the Department of Transportation alleging that his termination violated section 504 of the 1973 Rehabilitation Act, which barred “any program or activity under any executive agency” from discriminating on the basis of disability. The district court reinstated Lane, but refused to award damages because the federal government’s sovereign immunity had not been waived by Congress. The appeals court affirmed the district court decision.

Question

Did Congress waive the federal government’s sovereign immunity against monetary damages with respect to section 504(a) of the 1973 Rehabilitation Act?

William H. Rehnquist:

We’ll hear argument next in Number 95-365… the spectators are admonished to remain silent until you get outside the courtroom.

the Court remains in session.

We’ll hear argument next in Number 95-365, James Griffin Lane v. Federico Pena.

Mr. Smith, you may proceed whenever you’re ready.

Walter A. Smith, Jr.:

Thank you.

Mr. Chief Justice, may it please the Court:

The question in this case is whether Congress intended that Federal agencies who discriminate against disabled people in violation of section 504 of the Rehabilitation Act are to be subject to damages for those violations.

It’s undisputed in this case that in fact the Government did violate section 504.

It’s also undisputed that Petitioner Griff Lane was caused significant damages by that violation.

In fact, the paper before the Court contained the parties’ stipulation that his damages were some $75,000–

William H. Rehnquist:

I see the petitioner’s name, Mr. Smith, is James Griffin Lane.

When you say Griff Lane, is that how you refer to him?

Walter A. Smith, Jr.:

–Yes, Your Honor.

That’s the name I’ve always called him.

Sorry.

The $75,000 to Mr. Lane include his out of pocket expenses and his lost earnings for the 2 years he was improperly excluded from the Merchant Marine Academy.

Now, we understand that in deciding whether or not Mr. Lane is going to be entitled to these damages, we will have to meet the strict burden that this Court’s sovereign immunity cases have placed on us.

We must show that in fact it was clear in the statute that Congress intended these damages to be made available.

We believe it is clear in the statute.

Sandra Day O’Connor:

Mr. Smith, may I refer you to the statute, section 505(a)(2), dealing explicitly with remedies?

There is a section, is there not, of the statute that deals with remedies?

Walter A. Smith, Jr.:

Yes, Your Honor.

Sandra Day O’Connor:

And it says the remedies set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved under the statute, and the civil title VI in includes compensatory damages, I believe, is that right?

Walter A. Smith, Jr.:

Yes, Your Honor, that is correct.

Sandra Day O’Connor:

And then it goes on and it says, any person aggrieved by any act or failure to act by any recipient of Federal assistance, or Federal provider of such assistance.

Now, who is a Federal provider?

Is the Department of Transportation a Federal provider of assistance?

Walter A. Smith, Jr.:

Yes, Your Honor, it is, and we believe–

Sandra Day O’Connor:

Well, if it is, then does the statute cover it and you don’t have to go through all this implication?

Walter A. Smith, Jr.:

–Well, as we argued in our reply brief, we believe even if you read 505(a)(2) alone, in isolation, because the Department of Transportation is a Federal provider–

Sandra Day O’Connor:

How do we know who’s a Federal provider?

It’s… under the operative section that was amended to include any program or activity conducted by any executive agency, it didn’t refer to it as a Federal provider, did it?

Walter A. Smith, Jr.:

–It did not, Your Honor, and as we’ve argued in our brief, we believe that Congress when it amended 504 and also provided in 505(a)(2) for this–

Antonin Scalia:

Can you give me a hand here and use the U.S.C. sections?

I mean, maybe you work with the enacted bill all the time, but I don’t.

Are you talking about section 794a?

Is that what we’re talking about?

Walter A. Smith, Jr.:

–Yes–

Sandra Day O’Connor:

794a(a)(2) would be the remedy section, right?

Walter A. Smith, Jr.:

–That’s correct.

Sandra Day O’Connor:

And the general liability section would be 794(a), right?

Walter A. Smith, Jr.:

That’s correct also, Your Honor.

I’m looking, Justice Scalia, at pages 2 and 3 of our brief, where all of these provisions are set out, and I will use the U.S.C. cite for clarity.

We believe, Justice O’Connor, that because the Department of Transportation is a Federal provider in the sense that the Government is using it in its brief, that is–

Sandra Day O’Connor:

Is there a definition anywhere?

Walter A. Smith, Jr.:

–There is not a definition that I’m aware of, Your Honor, of Federal provider anywhere in the statute.

If you were to treat Federal provider there as simply an agency that extends funds to a non Federal recipient, then the Department of Transportation is clearly a Federal provider, as the regulations we’ve cited in our brief show.

It provides funds, in that sense, for highways, railroads, airports.

Indeed, every departmental agency in the Federal Government is a Federal provider in that sense.

William H. Rehnquist:

Would you call the Department of Transportation a Federal provider with respect to the Merchant Marine Academy?

Walter A. Smith, Jr.:

No, Your Honor, we would not, because of this Court’s decision in Paralyzed Veterans, which indicates that funds that are actually provided to an entity that the Federal Government manages itself, which is what DOT does here, effectively, for the Merchant Marine Academy, then the Merchant Marine Academy is not a recipient of Federal financial assistance, but DOT would remain a Federal provider for purposes of the question Justice O’Connor was asking, but our view is that you shouldn’t read Federal provider in that narrow sense here.

We believe that what Congress intended at the time it adopted 794a(a)(2) was to provide a remedy for the new duty it had just imposed on the Federal Government in what is now 504(a) of the Rehabilitation Act.

In 504(a) in 1978, Congress extended the application of 504 to Federal agencies, or in this case executive agencies, and at the same time it amended 505(a)(2), as Justice O’Connor said, to provide remedies.

We think the explanation of the difference in wording that the Ninth Circuit provided in Doe is correct.

The amendment to 504 came from the House.

The amendment to 505(a)(2) came from the Senate, and the conference report didn’t make the two exactly coterminous.

But to read this as intending a difference in treatment between the two would mean that Congress imposed a new duty on the Federal Government but then in the remedy section provided no remedy, and at the same time, that Federal provider means somethiNg different–

Ruth Bader Ginsburg:

Mr. Smith, why is that so extraordinary?

under the Administrative Procedure Act, under 702 with its broad waiver of sovereign immunity, nonmonetary relief, the idea of sovereign immunity being waived as to relief other than monetary is hardly novel.

Walter A. Smith, Jr.:

–Well, certainly, Your Honor, but I would suggest to you there’s no suggestion anywhere in the statute, or in the legislative history, that Congress was assuming that the APA was going to apply to the situation precisely for the reason that we’re here now.

Ruth Bader Ginsburg:

I’m not talking about the APA applying, but is it… am I not right that 702, in its broad waiver of sovereign immunity, is hardly limited to cases arising under the APA.

I thought that… at least, there are several decisions that are held that that’s an all purpose waiver.

Walter A. Smith, Jr.:

I believe that is right, Your Honor, that wouldn’t change the contention that I’m trying to make here.

Antonin Scalia:

Why wouldn’t it–

–It would–

Walter A. Smith, Jr.:

Sorry.

Antonin Scalia:

–It would mean that there’s always a suit under the APA to get the Government to comply with obligations imposed upon the Government by law.

If the Government is acting, you have a suit to review the lawfulness of that Government action.

Walter A. Smith, Jr.:

I believe that is right, Your Honor.

Antonin Scalia:

Okay, so then the only question is, is there in addition provided by this statute a suit for money damages, which the APA does not provide?

Walter A. Smith, Jr.:

Does it not provide, and our contention is what Congress is trying to do here was to equalize the remedies available for all entities covered by section 504, including the Federal Government, and that is what it was doing in 505(a)(2), or 29 U.S.C. 794a(a)(2).

William H. Rehnquist:

Well, it’s truly remarkable, then, with the sections coming right in sequence, that different language is used in 505(a)(2), 794a(a)(2), than the section right before it.

You say, really, they mean the same thing.

Walter A. Smith, Jr.:

Our contention is that they mean the same thing, but our contention also is that if they don’t mean the same thing, that Federal provider is something narrower, that we are still entitled to damages in this case.

I mean, it’s quite clear, and we understand the Government’s position to agree with us here, that whatever Federal provider may mean, there is a damage remedy available against it, which means that something more than what the APA provides is provided for in 505(a)(2).

William H. Rehnquist:

Well, who’s the Federal provider in your case?

Walter A. Smith, Jr.:

The Federal provider in our case is… within the meaning we’ve now been discussing it, Your Honor, is the Department of Transportation.

William H. Rehnquist:

But I thought a moment ago you said that would not be the Federal provider with respect to the Merchant Marine Academy.

Walter A. Smith, Jr.:

That is right, Your Honor.

Our view is that because 505(a)(2) subjects… let me just… the language is, the remedies in title VI shall be available to any person aggrieved by any act or failure to act by a Federal provider in violation of section 5… in violation of 794.

DOT is a Federal provider.

It has committed an act in violation of section 504, 794–

William H. Rehnquist:

What is that act?

Walter A. Smith, Jr.:

–504 of the Rehabilitation Act, Your Honor.

William H. Rehnquist:

No, I mean, you say it’s committed an act.

Do you–

Walter A. Smith, Jr.:

Oh, sorry.

It discriminated in violation of section 504 against–

Sandra Day O’Connor:

–I thought the academy discriminated.

I thought the academy did that.

Walter A. Smith, Jr.:

–Well, Your Honor, we, of course, brought our action against all three levels here, and because the Department of Transportation effectively manages the Merchant Marine Academy through MARAD, which is another intervening entity, DOT is ultimately responsible in our view, which is why we brought the action against the Secretary, for the conduct here.

Anthony M. Kennedy:

Could the Secretary have ordered the admission, or the continued student status of your client?

Walter A. Smith, Jr.:

Oh, absolutely, Your Honor.

Anthony M. Kennedy:

The Secretary could have reversed the decision of the Maritime Academy?

Walter A. Smith, Jr.:

Presumably so, Your Honor.

We actually submitted our papers, when we appealed the decision of the academy, both to MARAD and to the Office of the Secretary, and the resulting decision came from MARAD upholding his exclusion.

Ruth Bader Ginsburg:

Mr. Smith, the distinction that you’re making, the… you say that 502(a)(2), provider, covers the Department of Transportation because it provides, but in this particular case it’s in its capacity as executive agency, not as provider.

Under that reading, it would mean that a Government agency that doesn’t provide funds, that just has its own operation, would not be responsible for money damages, and that’s an illogical way, I think, for Congress to act.

Either they want the Government agency as Government agency with respect to people under its programs to be covered or it doesn’t, but a line between an agency that gives money and an agency that doesn’t, doesn’t make a whole lot of sense.

Walter A. Smith, Jr.:

I agree with that, Your Honor.

That’s why our first argument is that, in fact, Congress intended a damage remedy to be available against the discriminator itself.

When it’s a Federal agency, a damage remedy is available.

When it’s a recipient–

Ruth Bader Ginsburg:

If you don’t get that from the word, Federal provider, in 505(a)(2), where do you get that explicit waiver of damages, or clear waiver?

Walter A. Smith, Jr.:

–Well, we get it in part from 505(a)(2), Your Honor.

We also get it from the Equalization Act of 1986, where Congress did two things.

It abrogated the sovereign immunity of the States, and more important for our purposes, Congress made clear that it wanted the remedies available for section 504 to be the same for all defendants under section 504.

That is, the remedies available against States were to be the same as the remedies available against all other entities, or to use the language of section 2 of 42 U.S.C. 2000d-7, the remedies shall be the same for a violation in the suit, which is referring to a suit under section 504, against any public or private entity other than a State.

Antonin Scalia:

Mr. Smith, can I suggest a different reading of 794a(a)(2), and you tell me why it would not make sense.

It seems to me the phrase, recipient of Federal assistance, bears a fairly common meaning.

There are Federal assistance programs in which Federal money is given to organizations which in turn act to help those in need, and if such a person providing help to those in need discriminates in violation of the act, you would have a suit under a(a)(2).

And then it goes on to say, or Federal provider of such assistance.

That would mean that if the Federal agency which provides money to the private agency which makes the direct assistance discriminates in its provision of funds by denying funds for handicapped facilities, for example, you would have a claim against… for damages against that Federal agency.

If you interpreted it that way, it would provide a cause of action for money damages only with respect to the money that the assistance program would have provided.

That’s what the money damages would be.

It would make perfect sense.

Walter A. Smith, Jr.:

It–

Antonin Scalia:

Why isn’t that the way to read it?

Walter A. Smith, Jr.:

–It isn’t clear in that case, Your Honor, what the duty then is in 504(a), 794a, that the Federal provider as you’re now defining it was violating.

Antonin Scalia:

The Federal provider cannot deny funds to an otherwise eligible private provider of assistance to the public on the ground that those funds are going to be spent on handicapped facilities.

Walter A. Smith, Jr.:

If that–

Antonin Scalia:

If it’s denied that, you know, this is an extravagant expenditure, building this ramp for wheelchairs or what not is an extravagant expenditure, and we will not provide funds for that, you would have a cause of action against the Federal provider to get those funds.

Walter A. Smith, Jr.:

–In that event, Your Honor, Congress has imposed a duty on executive agencies not to discriminate.

Antonin Scalia:

Yes.

Walter A. Smith, Jr.:

But it’s not provided the same damage remedy for that kind of discrimination–

Antonin Scalia:

Right.

Walter A. Smith, Jr.:

–as the kind you just now described.

Antonin Scalia:

Right, because it knew that, you know, damages can get out of hand, especially against a deep pocket like the Government, and the only kind of damage actions we’re going to allow are damage actions for the amount of money that would have been provided under the assistance program.

Walter A. Smith, Jr.:

Even if that reading is a plausible one, Your Honor, and I think it is not because of the anomaly of there being two kinds of obvious discrimination and for one you’re suggesting a remedy, a damage remedy is provided and for the other not, I would still contend to you that any doubt about Congress’ intention on the point you’ve just raised is resolved again by the Equalization of Remedies Act.

William H. Rehnquist:

But that Equalization of Remedies Act seems to me to be devoted primarily to making the States liable in response to our Atascadero decision.

Walter A. Smith, Jr.:

I agree with that, Your Honor, that that was the impetus for the 1986 act, but section 2 of that act as we read it, and we don’t understand the Government to deny this, section 2 of that act, by its own terms, equalizes the remedies between the States, which we know includes damages, with all other defendants who are subject to a suit for a violation under all of the statutes named in section 1.

William H. Rehnquist:

Well, but what it’s saying, section 2 is saying is that you’re going to have the remedies available against a State that are available against other entities, and you draw from that kind of a negative inference that since damages are available against the State, therefore they must be available against these other public entities, too?

Walter A. Smith, Jr.:

Well, not a negative inference, Your Honor.

I would say it’s a positive one, because the language of section 2 speaks of a suit against a State for a violation of a statute referred to in section 1, which includes section 504 that we’ve been talking about, and it equalizes the remedy between a State on the one hand and all other entities covered by section 504 on the other.

William H. Rehnquist:

But it doesn’t–

–You’re reading the converse of it.

You’re saying that all the… remedies against all public entities is the same as that available against the States, but that’s not what it says.

It says the converse.

Walter A. Smith, Jr.:

Well, Your Honor, if… I would say that any public entity here includes the Federal Government.

Anthony M. Kennedy:

But your reading makes public and private superfluous.

It didn’t say, any other entity whatsoever.

It says, any public or private entity, thereby indicating to me that there may be a distinction between the remedies available against a private entity on the one hand, and a public entity on the other.

Walter A. Smith, Jr.:

If that–

Anthony M. Kennedy:

So the State equalization clause wants to pick both of them up, and that’s why it has public and private in it, knowing that there may be a difference.

Walter A. Smith, Jr.:

–Well–

Antonin Scalia:

Maybe public doesn’t refer to the United States.

How do you know it refers to the United States?

It could refer to municipalities.

Walter A. Smith, Jr.:

–Well, Your Honor, the reason I think it has to refer to the United States is because the United States is certainly an entity that is covered by section 504, which is listed in paragraph (1).

David H. Souter:

But even if it does, I don’t know why it follows from your… anything further follows from your argument than if the Federal Government does not have to provide a general damages remedy, then by virtue of this particular provision the State wouldn’t have to provide one.

David H. Souter:

I mean, it… if… you seem to say, because a State has to provide one based on some independent ground, that the Feds do, too, but it seems to me that on your reading of (2), you can’t go any further than saying, if this were the basis for subjecting the States to damages, then the States would not be subjected to a general damage remedy because the National Government is not.

Walter A. Smith, Jr.:

Let me try to respond, Your Honor.

The States are unquestionably subject to a damage remedy under the language of this provision under this Court’s decision in Franklin.

David H. Souter:

Mm hmm.

Walter A. Smith, Jr.:

And I would urge that, since the States are subject to a damage remedy, and since the purpose of this provision was to equalize that remedy with the remedies available against any public or private entity other than a State that is subject to suit under section 504, necessarily public entity in that phrase has to include the Federal Government.

David H. Souter:

I’m assuming that it does, but the… what you refer to as being equalization, as I understand the statute means that the States cannot provide less than the other entities to whom they are compared.

It does not follow from that that if the State, by virtue of one comparison, has to provide a damage remedy, that another public entity, i.e., the United States, must do the same thing.

It just doesn’t follow.

Walter A. Smith, Jr.:

Well, if I follow you, Your Honor, that would mean that we would have differing remedies, as Justice Kennedy was suggesting, that the public and private entity may be subject to, but if that were the case, it’s difficult for me to see how we are to choose between them with regard to what remedies the State is going to be subject to.

Ruth Bader Ginsburg:

Why isn’t it just saying, you’re entitled to the best remedy there is, it’s private entity just as though public wasn’t there.

It’s public or, so if there would be this remedy against a private entity, it would be against the State.

But your interpretation seems to me strange for this reason, Mr. Smith.

Here is a clear, explicit waiver by the Federal Government of the State’s Eleventh Amendment immunity.

If it had waiver of Federal sovereign immunity in mind, the most logical thing to do would not be to put it in this reverse way that you suggest, but to say, and there shall be no Federal immunity.

Walter A. Smith, Jr.:

Well, the answer to that, Your Honor, is, as the Chief Justice pointed out, the purpose of this provision was to respond to Atascadero.

Atascadero was premised in part on the fact that nowhere in section 504 were States named at all as being subject to the act.

In the 1978 amendment–

Ruth Bader Ginsburg:

Wouldn’t it be logical, though, even if the trigger is a case that’s dealing with State immunities, for a Congress filled with lawyers to think, well, we know the Feds are also immune, while we’re dealing with governmental immunity we should take care of both?

Walter A. Smith, Jr.:

–Well, they might have, Your Honor, and of course, I wish they had, or I wouldn’t be here now.

But from our position Congress didn’t do that in the ’86 equalization remedies because it thought it didn’t need to.

It had already subjected Federal agencies to suit in the 1978 amendments, and the language of 504 that did that, it has been well established by Cannon and other cases, did in fact create a private cause of action against every entity that’s named in the language of the statute, so sovereign immunity had already been waived for the Federal Government at the time of the 1986 Equalization Act.

Antonin Scalia:

Your argument is that this language reflects the understanding by Congress that all public and private entities were liable for money damages.

I think that’s what your argument is.

Not that it created liability for money damages, but that that language there, suit against any… in a suit against any public or private entity other than a State, it displays an acknowledgement by the Congress that passed that that all public and private entities were similarly suable.

It’s not a trick question.

This is–

Walter A. Smith, Jr.:

No, no, I’m thinking.

I’m thinking.

I’m thinking before I answer, Your Honor.

I think the answer is yes, because Congress wanted to treat all of them equally, and any public or private entity, as that phrase is used there, refers to all of the covered entities under section 504, which includes the Federal Government.

Walter A. Smith, Jr.:

I’ll reserve the remainder of my time.

Anthony M. Kennedy:

–If I could ask you one more thing–

Walter A. Smith, Jr.:

Certainly.

Anthony M. Kennedy:

–Is your case helped at all by the fact that it’s recognized… I think it’s recognized that back pay is permissible in a suit against the Government?

Does that help your case, or do we think of back pay as being an equitable remedy?

Walter A. Smith, Jr.:

Well, we think it’s helped, Your Honor, because of the overall implausibility of the proposition that Congress would have provided everything that it did here, which is to say it provided that the Federal Government would be subject to the action, that attorney’s fees would be available, that injunctive relief would be available–

Antonin Scalia:

Well, I guess what I’m saying is–

Walter A. Smith, Jr.:

–that back pay would be available, but not damages.

Anthony M. Kennedy:

–is the Government right in saying, or at least in implying that back pay is simply an equitable remedy?

Walter A. Smith, Jr.:

Well, I think not, Your Honor, because the Court dealt with that in the Franklin case, that very distinction that was being drawn, and said the effect of the ruling there was to make the States liable to pay money damages, even when it was called equitable relief in the form of back pay.

William H. Rehnquist:

Very well, Mr. Smith.

Ms. Brinkmann, we’ll hear from you.

Beth S. Brinkmann:

Mr. Chief Justice, and may it please the Court:

The Rehabilitation Act does not contain the waiver the petitioner seeks.

The act is silent regarding the remedies available against the Federal Government for violation of section 504.

That–

Sandra Day O’Connor:

Well, what about the section that appears to make a Federal provider liable?

Beth S. Brinkmann:

–Your Honor, for the several reasons I think that members of the Court were suggesting, we interpret that not to extend to Federal executive agencies, programs or activities conducted by Federal executive agencies under section 794.

First of all, the word such–

Sandra Day O’Connor:

Well, do you agree that Congress did waive sovereign immunity for purposes of money damages insofar as the money is… the assistance is provided by a Federal provider?

Beth S. Brinkmann:

–We… no, we do not agree that damages are necessarily available against a Federal funder.

Damages would be available, but whether… no court has held that you can get damages against a Federal agency that’s providing funds.

As we explain in our brief, in fact, the courts are not even in agreement on whether or not there’s implied cause of action for a Federal funding agency.

The courts have… and this Court did not resolve that issue in Cannon.

However, we do believe that there would be a remedy against a Federal fund provider in that situation either for injunctive relief… certainly the APA would provide that background.

Sandra Day O’Connor:

Well, it does say the remedies set forth in title VI are available against a Federal provider, doesn’t it?

Beth S. Brinkmann:

Yes, and title VI remedies against Federal providers, Your Honor, include things such as remedies for the fund recipient, when the fund recipient is challenging the cutoff of funds or action by the Federal fund provider.

There are lots of remedies under title VI, but we don’t concede that there… even in that situation, which I think the Court realizes is very different than the situation before it now, but in that situation–

Sandra Day O’Connor:

Well, why would Congress want to waive sovereign immunity if the Federal Government is a Federal provider of assistance but not if it does it directly, as an executive agency?

That is kind of odd, isn’t it?

Beth S. Brinkmann:

–We think what Congress is trying to do in subsection (a)(2), Your Honor, was make section 504 like title VI and title IX.

There’s this mechanism for providing funds to agencies and States, and what remedies are available under that are under title VI 2000d-1, where it sets up… for example, a recipient of Federal funds has a right to a hearing and some due process before those funds could be cut off.

We think that the structure of the language clearly reinforces our interpretation.

We would focus first on the word such in that subsection (2).

I think as Justice Scalia was pointing out, Federal provider of such a system we believe refers back to the earlier clause talking about the Federal assistance.

We would also point out, as the Chief Justice pointed out, the contrast between the language with subsection (a)(1), where title VII remedies were incorporated for employment discrimination against the Federal Government.

In that section, (a)(1) is written broadly, that those remedies are available for any complaint under section 791, and certainly, if Congress’ intent had been as petitioner states, that would have been the language they used in (2) for any complaint under section 794.

Antonin Scalia:

Ms. Brinkmann, I still don’t understand why you exclude damage remedies against the Federal provider.

It’s because you say no damages are obtainable against a Federal provider under title VI of the Civil Rights Act, is that–

Beth S. Brinkmann:

I think the question would be, Your Honor, the way to analyze it is to see what remedies are available under title VI, and I think calling it damages, what makes me hesitate, I think it would be a question, for example, under Bowen v. Massachusetts whether or not there could be some monetary relief, perhaps as an injunctive, requiring the agency either to provide funds or not provide funds, but it’s not a damages remedy–

Antonin Scalia:

–So it’s not saying… 794a(a)(2) in your view does not say that money damages are available.

It says that money damages are available here where they are available under title VI, which is not always–

Beth S. Brinkmann:

–That’s right, Your Honor.

Antonin Scalia:

–in your view.

But even if we took–

–Perhaps they wouldn’t include pain and suffering, or something like that.

Beth S. Brinkmann:

Perhaps.

I think a really significant feature of the act, Your Honor, that you raise in my mind when you point that out is the expressed waiver of compensatory damages that Congress enacted in 1991 for section 501.

In the Civil Rights Act of 1991, Congress made very clear that it was waiving damages, sovereign immunity for compensatory damages for claims under section 501, and it puts significant limitations on that waiver.

First of all, it’s limited to intentional discrimination, or in the case of a 501, a Rehabilitation Act claim, also the failure to reasonably accommodate.

The text of this is on pages 5a through 7a of our brief.

That’s the 1991 Civil Rights Act.

In addition to the–

Sandra Day O’Connor:

Well, is the Department of Transportation a Federal provider of assistance?

Beth S. Brinkmann:

–We don’t believe so under the broad definition of that subsection (a)(2).

It certainly provides assistance to various programs and activities, but under (a)(2), we submit that that only refers to Federal providers of the assistance to the recipient, and again, we will contrast that to the language in (a)(1).

And I’d also remind the Court, I think as Justice Ginsburg was pointing out, there is the ADA waiver as a background to this, and I think it’s–

Ruth Bader Ginsburg:

Is that the source of your concession?

I think you are not disputing that there is relief, and it’s injunctive, back pay, and attorney’s fees.

Beth S. Brinkmann:

–Yes.

Ruth Bader Ginsburg:

Where does the waiver of the sovereign’s immunity as to those come from?

Beth S. Brinkmann:

Your Honor, I don’t think it’s necessarily something the Court needs to resolve in this case.

In Cannon, Darrone, Alexander v. Choate, the Court has just assumed that there were causes of action implied.

We would certainly say that there’s no doubt that there’s one under the Administrative Procedure Act, and the amendment to the Administrative Procedure Act that made clear that waiver for nonmonetary damages was enacted in 1976, just shortly before this 1978 amendment for–

Antonin Scalia:

Does that cover back pay?

The APA wouldn’t cover back pay, would it?

Beth S. Brinkmann:

–The A… no.

Ruth Bader Ginsburg:

It says nonmonetary.

Beth S. Brinkmann:

It is.

Actually, Your Honor, in Darrone, the way the Court interpreted the availability of back pay was as an equitable remedy, because that’s the way it had been interpreted under title VII.

Ruth Bader Ginsburg:

But that’s not the waiver that’s contained in 702.

It says… the word is nonmonetary.

Nonmonetary.

Beth S. Brinkmann:

Yes.

Antonin Scalia:

It does not include back pay, so you still have to explain where you get a cause of action against the Government for back pay, and it’s… it doesn’t satisfy me to say we don’t have to worry about that in this case, because I for one think that where there has been a general grant of suit against the United States, I don’t think we have to further insist that there be a specific grant of suit for money damages.

I think if there’s a general grant of suit against the United States, I would normally think it’s suit for all purposes that suit lies.

Beth S. Brinkmann:

Well, Your Honor, there are several opinions of this Court that I think hold to the contrary.

For example, Library of Congress v. Shaw.

Ruth Bader Ginsburg:

That was a discrete item.

That was interest–

Beth S. Brinkmann:

Yes.

Ruth Bader Ginsburg:

–which traditionally had been treated as separate, requiring a separate immunity waiver.

But while you’re dealing with back pay, attorney’s fees also is monetary relief against the Government, so the source of those two, which you concede–

Beth S. Brinkmann:

We would point to the attorney’s fees as the most easily resolved, Your Honor.

On page… under 794a(b) it’s an express waiver of attorney’s fees by a prevailing party.

We would also point out under the APA–

Antonin Scalia:

–Excuse me, 794a–

Beth S. Brinkmann:

–(b).

Antonin Scalia:

–(b)… yes.

Beth S. Brinkmann:

Yes.

Beth S. Brinkmann:

There’s also, of course, a waiver under the Administrative Procedures Act under the Equal Access to Justice Act.

Going to the point about the waiver for money damages I would also point out, Your Honor, in addition to the Library of Congress v. Shaw there’s the Court’s opinion in Lehman v. Nakshian about the jury trial right under the ADA, and again, that was a situation in which the statute talked about the Federal Government in the same terms as private, that they would be liable for legal and equitable remedies, but as in Shaw, where it was the same language, the United States would be responsible as all other parties.

The Court has repeatedly emphasized, however, that the aspects of the sovereign immunity waiver has to be express, and although the Court had implied the right to a jury trial for private defendants in a earlier case, Lorillard, the Court did not imply that against the Federal Government in Lehman, and also, we think that Shaw is a, you know, statutory issue concerning interest, but we think that the thrust of that Court also supports us here.

John Paul Stevens:

Ms. Brinkmann, may I call your attention, or ask you a question about the 1986 statute?

Beth S. Brinkmann:

Mm hmm.

John Paul Stevens:

In your view, is the Secretary of Transportation and/or the Merchant Marine Academy a public entity other than a State within the meaning of that statute?

Beth S. Brinkmann:

My first answer, it doesn’t matter, but I’ll answer directly then explain why.

John Paul Stevens:

Well, I think it matters, so let’s have an answer.

Beth S. Brinkmann:

Looking at the history of that provision, Your Honor, we believe that the intent would not include Federal–

John Paul Stevens:

So you’re answer’s no.

Beth S. Brinkmann:

–executive agencies of the Federal Government.

Yes.

Because the statutes that are referred to in (a)(1) of that are all Federal funding provisions, and the other–

John Paul Stevens:

Your answer is not consistent with the plain meaning of any public entity.

Beth S. Brinkmann:

–Your Honor–

John Paul Stevens:

But you say you have to look at legislative history and you figure they didn’t mean to include–

Beth S. Brinkmann:

–Right.

John Paul Stevens:

–Federal agencies.

Beth S. Brinkmann:

We acknowledge that, Your Honor, and if the plain language has to be interpreted to include the Federal Government, we don’t believe that that makes any difference, as members of the Court were pointing out.

That simply means that in an action against a State, the plaintiff gets the same remedies that are available in actions against a private entity or a public entity–

John Paul Stevens:

Correct.

Beth S. Brinkmann:

–and their injunctive–

John Paul Stevens:

But is it not quite clear that Congress intended there to be a damage remedy against States and, therefore, must it not have made the assumption Justice Scalia described a little earlier?

They must therefore have assumed, if public entity includes the Merchant Marine Academy, that such a remedy was available against the Merchant Marine Academy.

Beth S. Brinkmann:

–Now, we would say that there were damage remedies available against private entities that were receiving Federal financial assistance.

Antonin Scalia:

Well but, here’s the problem, Ms. Brinkmann.

If we adopt the petitioner’s view, we will have solved the problem that we took this case for and would not have created another problem.

If we take your view, we’re going to have to have another lawsuit as to the meaning of 2000d-7(2), because as he interprets the law, all public and private entities can get money damages.

All public and private… suits against all public and private entities will give money damages–

Beth S. Brinkmann:

I just don’t think it–

Antonin Scalia:

–and it’s easy to apply (a)(2).

Now, if we take your view, there’s at least some public entity that you can’t get money damages against, and what do you do then under 2000d-7(a)(2)?

Beth S. Brinkmann:

–I look at the word, or, Your Honor, private or… public or private entity.

It doesn’t mean that you only get the overlap, everything that you can get in both of those against public or private, it’s that against a State you can get any remedy that you can get against any private entity, or against any public entity, and you can get damages against private entities, or, as was pointed out earlier, municipalities–

Antonin Scalia:

Well, it says to the same extent as such remedies are available for such a violation in the suit against any public or private–

Beth S. Brinkmann:

–Right.

Antonin Scalia:

–entity, but–

Beth S. Brinkmann:

I think the problem you’re suggesting would arise if it said public and private, but it says public or private.

It’s simply making–

Antonin Scalia:

–Well, which one of the two do you pick?

Do you pick the one that gives you the lesser damages, or the one that gives you more?

It is disjunctive, but you still have to decide which one of the two disjunctive ones you select.

Do you select the lesser or the greater?

Beth S. Brinkmann:

–I think the greater, Your Honor, to the extent that that–

Antonin Scalia:

Well, we’ll have a lawsuit about that, I suppose.

Beth S. Brinkmann:

–Your Honor, I don’t think that that is the–

William H. Rehnquist:

Well–

Beth S. Brinkmann:

–necessary interpretation for purposes here, and under the Court’s authority for the explicit nature of a waiver we would again contrast to this the explicit waiver for compensatory damages for employment discrimination.

William H. Rehnquist:

–Ms. Brinkmann, supposing Congress just originally, without having any… passed a statute saying that all public entities shall be liable for damages if they violate the handicapped act.

Now, would you think that would include the United States?

Beth S. Brinkmann:

Yes, I think it probably would, Your Honor.

William H. Rehnquist:

So you think a generic term like all public entities would be a sufficient waiver for… to include the United States?

I–

Beth S. Brinkmann:

It may well be.

The problem is, Your Honor, in (a)(2) it doesn’t say anything about damages.

William H. Rehnquist:

–Well, I would… ordinarily I would think that our cases would not support what you say in your answer.

Beth S. Brinkmann:

I–

William H. Rehnquist:

They’re simply referring to where you could be talking about local governments, State governments, that to make the United States liable it requires something more specific than public entities.

Beth S. Brinkmann:

–I agree with Your Honor.

I do hesitate to say something that generic.

Beth S. Brinkmann:

The problem is, the Court has said that it’s not… there isn’t some specific formula for stating the waiver of sovereign immunity against the Federal Government, and if all the circumstances were that that’s what Congress intended, but I would think there would have to be some indicia of intent, that they meant that to apply to the Federal Government.

Antonin Scalia:

What if it said, all entities?

All entities.

Would that suffice?

Beth S. Brinkmann:

No, Your Honor.

I think there would have to be something clearer than that.

Antonin Scalia:

Because there are so many entities in the world.

Beth S. Brinkmann:

I think it’s because of the Court’s–

Antonin Scalia:

If it says all public entities, it does suffice.

There are a whole lot of public entities in the world, too.

Beth S. Brinkmann:

–But I think the Court has made clear that for the Federal Government, normal presumptions that you might… might arise from words like use of legal remedies, in Lehman, or to be responsible to the same extent for reasonable attorney’s fees as private parties in Shaw, those don’t mean the same thing against the Federal Government unless Congress expressly makes that clear.

Ruth Bader Ginsburg:

Isn’t the–

–Ms. Brinkmann, if you can go back to the back pay, because I don’t think I got it fully.

Why is the Government responsible for back pay?

Beth S. Brinkmann:

The Court in Darrone addressed the issue, Your Honor, of whether under 504 an employment discrimination suit could be brought against recipients of Federal funds.

For employment discrimination cases against the Federal Government as employer, that comes under section 501.

501 incorporates all of title VII’s remedies, so the entitlement to back pay arises out of the entitlement to back pay under title VII.

And I should also point out that when Congress amended title VII and 501 to provide for compensatory damages with the restrictions I keep trying to get back to, the Court… I mean, Congress also specified… and this is on page 7a.

This is under the 1991 Civil Rights Act.

There’s a provision where it explains that although they’re waiving sovereign immunity for compensatory damages for title VII and 501 and ADA, compensatory damages awarded under this section shall not include back pay, interest on back pay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of ’64.

That’s where we believe the entitlement–

Ruth Bader Ginsburg:

Do I understand that there was a back pay element in this $75,000?

Beth S. Brinkmann:

–No, Your Honor.

This isn’t an employment situation.

No.

John Paul Stevens:

May I ask you another question about the 1986 statute?

Forgetting the plain language for a minute, just looking at broadly the provision, it’s your view that Congress deliberately wanted to overcome a constitutional objection to suits against States and impose the States to damage liability, but yet retain its own sovereign immunity.

That’s what you think Congress was realistically trying to do.

Beth S. Brinkmann:

Yes.

John Paul Stevens:

Do you think that’s probable?

Beth S. Brinkmann:

I do, Your Honor.

I think that the matters of the Federal fisc are something that Congress addresses, and Congress apparently felt very–

John Paul Stevens:

It’s not concerned about State fiscs?

Beth S. Brinkmann:

–Apparently not, Your Honor.

I think one–

Ruth Bader Ginsburg:

Ms. Brinkmann, when did the States become liable under title VII?

Beth S. Brinkmann:

–Under title VII.

Ruth Bader Ginsburg:

1972.

Was it before or–

Beth S. Brinkmann:

1972, according to the Chief Justice.

Ruth Bader Ginsburg:

–And when did the Federal Government agencies become–

Beth S. Brinkmann:

I think it was a couple of years after that, Your Honor.

Ruth Bader Ginsburg:

–So it s not so unusual to impose an obligation on the States and still keep the Feds free.

Beth S. Brinkmann:

Right.

I would also point out that I think Congress repeatedly has now felt comfortable to waive immunity against money damages for employment contexts.

Those are situations in which it’s familiar with what damages are available.

Those are known.

Whereas discrimination problems that arise in activities, or programs conducted by Federal agencies, could raise a whole host of questions that Congress may not have wanted to bite that much off at that time.

Stephen G. Breyer:

I want to just pursue Justice Stevens’ point.

Have you been able to think of any reason that Congress would have wanted to say, we will pay all private people pay money damages.

States, I guess, by and large, do.

We’ll pay money damages, too, for any one of the 490… $1 trillion worth of Government programs, but we won’t pay money damages in whatever’s left over in the Federal Government, which probably isn’t much.

I mean, what was the theory of such a thing?

Is there a word that suggests either there’s a theory to that, or is there a word that suggests that anybody in Congress even thought about it for more than a second or two?

Beth S. Brinkmann:

I don’t–

Stephen G. Breyer:

Or at all?

Beth S. Brinkmann:

–I don’t think they necessarily thought about it.

One point, though, that I’d like to emphasize, Your Honor, is, by including Federal executive agencies activities and programs under section 504, Congress went further than it did in title–

Stephen G. Breyer:

I’m not saying whether what they did was good or bad.

I’m simply saving, if you have a distinction in terms of sovereign immunity that seems totally irrational, that we can’t even think of a reason for–

Beth S. Brinkmann:

–Your Honor–

Stephen G. Breyer:

–and you also have language that permits the award, why isn’t that good enough?

Beth S. Brinkmann:

–I guess what… I’m trying to address that, Your Honor, by pointing out that one thing Congress did under section 504 was for the first time, to my knowledge, bring programs and activities conducted by Federal agencies under this type of prohibition.

They’re not covered by title VI and title IX.

That may appear irrational also.

On the other hand, Congress may have wanted to be more protective of the discrimination against the people with disabilities because of a lower constitutional standard that would be applied to them, so Congress decided to take that step and be more protective for that class but did not take the additional one of opening up a whole class of unknown damages in all Federal programs.

Antonin Scalia:

Ms. Brinkmann, I hate to bring you back to back pay, but I didn’t understand your explanation.

As I recall, when you got done, it boiled down to section 706 of the Civil Rights Act of ’64, that that’s where–

Beth S. Brinkmann:

That’s right.

Antonin Scalia:

–But 794a(a)(1), what you’re referring to as 504, and I wish you’d refer to the code sections–

Beth S. Brinkmann:

I’m sorry.

Antonin Scalia:

–because I… does not incorporate section 706.

It incorporates section 717, including the applications of 7… is it 706–

Beth S. Brinkmann:

Yes.

Antonin Scalia:

–(f) through (k)?

Beth S. Brinkmann:

Yes.

706(g) is where it comes from.

Antonin Scalia:

706–

Beth S. Brinkmann:

(g), and that’s on page… if you look at 7a, on page 7a of our brief, Your Honor, it’s the last… the very bottom of the page.

That is section 1981a(b)(2).

It’s from the 1991 Civil Rights Act, and that explains why the new waiver in 1991 in employment cases for compensatory damages doesn’t, in fact, include back pay, because back pay is already there.

Antonin Scalia:

–Gotcha.

Okay.

That would explain it.

Beth S. Brinkmann:

Okay.

I just wanted to go back for one more point to emphasize the restrictions that Congress placed on the waiver for employment discrimination cases.

In the 1991 amendments, Congress made clear that it was only for intentional cases in employment, or for failure to reasonably accommodate.

There, Federal sovereign immunity is not waived for punitive damages, and there are also actual statutory caps set on the amount that can be recovered under that waiver, depending on the number of employees that an employer–

William H. Rehnquist:

Is the reason for the exclusion of back pay in the ’91 act the fact that it’s already included?

Beth S. Brinkmann:

–Yes.

Beth S. Brinkmann:

Yes.

David H. Souter:

Ms. Brinkmann, may I go back to what is probably a simple point about the ’86 act?

Justice Scalia asked you the question, referring to subsection (2), which refers to remedies against any public or private entity, and he said, how do we know that Congress didn’t mean to restrict the remedy to the entity that gets… that is least liable, as opposed to expanding the remedy by reference to the entity that is most liable?

Is it your answer, we know it preferred the expansive interpretation because it was a post Atascadero case, and the whole point of, the object of the legislation was simply to expand liability?

It was… your answer, in effect, is a congressional intent answer, is that it?

Beth S. Brinkmann:

We think that’s right, Your Honor.

David H. Souter:

Without the congressional intent, there wouldn’t be an answer in the text?

Beth S. Brinkmann:

I think the plain interpretation of that sentence would be that in… are available such a violation in a suit against such a public or private entity.

I think you are… in your action against the State you say, what remedies do I get, and you get to go look at any suit against any public or private entity, and whatever they get in that case, you get, so I think it would still be the more expansive definition even without any congressional intent.

David H. Souter:

Logically you could say, well, I’m not subject to that remedy because somebody else is not.

I mean, logically you could do either one.

You’ve got to go on intent, I suppose, or maybe you’ve got to go perhaps on a generalized practice that you don’t enact statutes like this in order to limit liability, just as a general rule.

That just isn’t the structure that you would employ for that purpose.

Beth S. Brinkmann:

I think that would be further support for our interpretation.

I’d also point out, regardless of that, Your Honor, this is clearly not the… not, kind of, the language that waives the Federal Government sovereign immunity against damages.

David H. Souter:

Well, but–

Beth S. Brinkmann:

It would have been a provision–

David H. Souter:

–But that in effect, that, just going back to Justice Breyer’s point on that, I suppose your ultimate answer on that is, it may be as illogical as the devil, but the fact is, if you’re going to be starchy about requiring waivers of Federal sovereign immunity, illogicality is not enough to do it.

I mean, is that… does the Government fall back on that position, if–

Beth S. Brinkmann:

–Frankly, Your Honor, I don’t think we need to.

I mean, we would if we had to.

David H. Souter:

–But if we think you do, is that the Government’s position?

Beth S. Brinkmann:

I’d think so.

Another thing I think that the Court should focus on about the development of law that was the backdrop behind these statutes, the remedies for damages was not clear until the Franklin Court, the Franklin opinion from this Court in 1992, so even at the time that this 1986 amendment was passed, it was not at all clear that there were damages necessarily available against all defendants.

There were lower courts that had held that, but those cases did not involve Federal executive agencies, because they’re not covered by title VI and title IX, so those cases did not address the issue that’s before the Court here of Federal sovereign immunity, and that’s really a critical distinction between the statutes that often is not addressed in opinions by courts because it just wasn’t at issue.

In fact, I think that that’s a significant factor.

When you look through the history of the different times that when these other provisions were enacted you can see the development of the law did not extend at that time to damages against entities other… in some lower courts have been involved in, but it did not extend to the waiver of sovereign immunity.

In fact, one of the lower court’s opinions, Miener, that the petitioners cite… recognize this was pre Atascadero… that although there would be implied cause of action for damages against private entities, it could not operate against the State because there hadn’t been a waiver of sovereign immunity.

Antonin Scalia:

Ms. Brinkmann, would you explain once more what the Government is willing to concede 794a(a)(2) does allow by way of monetary damages?

Beth S. Brinkmann:

It allows acts… remedies that are available under title VI, and this Court has never directly addressed whether a Federal provider is subject to a direct suit under that provision.

Beth S. Brinkmann:

It’s certainly subject to suit under the APA, and it’s also subject to all the remedies and procedures set forth in title VI.

Antonin Scalia:

What do you mean by a Federal provider?

Do you mean a grant making agency?

Beth S. Brinkmann:

Yes.

Yes, Your Honor, and the recipient, if it’s told that the Federal provider believes that the recipient is discriminating and funds are going to be cut off, there’s all this procedural due process, and that recipient would be a person aggrieved by an act of the Federal provider and could invoke that provision.

And Congress was really trying to say, we’re going to treat section 504 for the Federal fund recipients the same way we do title VI and title IX, but it did not, although they tried to adapt that provision to Federal executive agency programs which were never covered under title VI, or title IX, for that matter.

If there’s nothing further, Your Honor–

William H. Rehnquist:

Thank you, Ms. Brinkmann.

Mr. Smith, you have 4 minutes remaining.

Walter A. Smith, Jr.:

Thank you, Your Honor.

First of all, Your Honor, I think it’s important for the Court to construe all of these provisions together and decide whether or not the reading the Government is offering is a plausible one, and whether the structure as a whole that the Government is asking you to adopt is a logical one, because if it is not, the Court should not attribute an illogical, nonplausible intent to the Congress.

And the reading that the Government is offering you here is that Congress intended that all recipients of Federal financial assistance be subject to damages, that States be subject to damages… Congress expressly abrogated the States’ sovereign immunity for that purpose… that the Federal Government be liable for damages when it comes to employment discrimination on the basis of disability, that the Federal Government be liable in some way when it’s a Federal provider, although the Government wants to narrowly contain that, and it has no explanation for why damages wouldn’t be available under the plain meaning of a(a)(2) in that circumstance.

But yet, it urges the Court to conclude that in this one area, direct discrimination by executive agencies, that Congress set out to withhold one kind of relief only, money damages.

It provided for injunctive relief, it provided for back pay, it provided for attorney’s fees, but the Congress set out to withhold one kind of relief, money damages.

I submit to you that’s an implausible reading of this statute.

David H. Souter:

Well, it… except that it seems to me that it simply poses two opposing canons of interpretation.

One is to find the most systematic way of construing the whole statute.

Another is to preserve the Government’s immunity absent the satisfaction of a very high standard of waiver, and I think what your argument does say, says to us is, all right, which are you going to prefer, systematic logic, or the importance of sovereign immunity?

Walter A. Smith, Jr.:

Well, I’m not asking you to choose, Your Honor, because I think we serve both.

I think this Court’s cases make clear that, while the waiver of sovereign immunity has to be clear, the Court will not deny damage relief in a case like this, where the reading is an implausible one.

Ruth Bader Ginsburg:

What about Ms. Brinkmann’s argument that when Congress did waive immunity in 501, it pregated it.

It was not just that we waive immunity, but they–

Walter A. Smith, Jr.:

I think that… I think the 501 provision actually supports us, Your Honor.

That was an entirely different section that was not construed to provide a private cause of action until 1978, unlike 504, and in 1978 Congress set out two different kinds of remedies, title VII for the 501 section, and title VI for the 504 section.

Damages are available under title VI.

They are not available under title VII, and as a consequence, Congress has to amend the statute in 1991, to make damages available for the first time and thereby equalize the remedies against the Federal Government when it discriminates on the basis of disability, so I think the 501 circumstance helps our view that Congress surely did not intend to carve out this one area and withhold relief.

Let me speak to the public entity point for just a moment.

I understand the Government’s argument to be that the Federal Government is not a public entity within the meaning of 2000d-7(2) because the only statutes being–

William H. Rehnquist:

Thank you, Mr. Smith.

Walter A. Smith, Jr.:

–Thank you.

William H. Rehnquist:

The case is submitted.