Atascadero State Hospital v. Scanlon Brief Amicus Curiae in Support of Respondent on Behalf of Senators Alan Cranston, Claiborne Pell, Robert Stafford, Lowell Weicker, Representatives Mario Biaggi, Don Edwards, William Ford, James Jeffords, and George Miller

    No. 84-351
- .....

In th e

(tatr! n i  tlf?
O c t o b e r  T e e m ,  1984

A tascadero S tate H ospital, et al.,
P etit io n er s ,

D o u g l a s  J a m e s  S c a n l o n

ON W R IT  OE C EBTIO BA EI TO T H E  U N ITED  STA TES 

COURT OE A PPEALS FOR T H E  N IN T H  CIRC U IT

BRIEF AMICI CUMAE IN SUPPORT OF RESPONDENT 
ON BEHALF OF SENATOR ALAN CRANSTON, SENATOR 

CLAIBORNE PELL, SENATOR ROBERT STAFFORD, 
SENATOR LOWELL WEICKER, REPRESENTATIVE 
MARIO BIAGGI, REPRESENTATIVE DON EDWARDS, 

REPRESENTATIVE WILLIAM FORD, REPRESENTATIVE 
JAMES JEFFORDS, and REPRESENTATIVE 

GEORGE MILLER
= = = = = = = = =

B o n n i e  M i l s t b i n

Center for Law and 
Social Policy

1751 N Street, N.W.
Washington, D.C. 20036
(202) 872-0670

Counsel fo r  Amici



QUESTIONS PRESENTED
1. Should Quern v, Jordan, 440 U.S.

332 (1979), be applied retroactively to
statutes adopted prior to March 5, 1979?

2. Is Quern v. Jordan, insofar 
it holds that no statute can abrogate a 
state's sovereign immunity unless the 
statutory history or language "focuses 
directly on the question of state liabili­
ty", inconsistent with Article I of the 
Constitution?

as

l



TABLE OF CONTENTS Page
Questions Presented
Table of Authorities ii
Statement of Interest 
Summary of Argument 
Argument

I. Quern v. Jordan, 440 U.S. 
332 (1979), Should Not Be 
Applied Retroactively to 
Statutes Adopted Prior to 
March 5, 1979

II. Article I Does Not 
Authorize This Court 
Direct Congress, As A 
Precondition of Legisla­
tion Subjecting A State 
to Suit in Federal Court, 
to "Focus Directly on the 
Question of State 
Liability"

Conclusion 50



TABLE OF AUTHORITIES
Cases Page
Alexander v. Choate, ___ U.S.

(1985)
Bivens v. Six Unknown Federal Narcoti 

Agents, 403 U.S. 388 (1971)
Camacho v. Public Service Comm'n,

450 F. Supp. 231 (D.
Puerto Rico 1978)

Camenisch v. University of Texas,
451 U.S. 390 (1981)

Consolidated Rail Corp. v. Darrone,
79 L.Ed.2d 568 (1984)

Edelman v. Jordan, 415 U.S. 651
(1974) 14, 19, 20, 26,

Employees v. Missouri Public
Health Dept., 411 U.S. 279 
(1973) 13, 19, 20, 25-29, 32,

Fitzpatrick v. Bitzer, 427 U.S.
445 (1976) 14,

Ford Motor Co. v. EEOC, 4 5 8 U.S.
219 (1982)

Garcia v. San Antonio Metropolitan 
Transit Authority,
No. 82-1913 9,

20

cs
23

27

21

20

27

41

26

22
46

ii i



Green v. State of Utah, 539 F.2d 1266
(10th Cir. 1976) 27

Hans v. Louisiana, 134 U.S. 1 (1890) 34
Hutto v. Finney, 437 U.S.

678(1978)'6,8,10,15,26,27,32,33,41,44
Jenninas v. Illinois Office of Education, 

589 F.2d 935 (7th Cir. 1979) 27
Imbler v. Pachtman, 424 U.S. 409

(1976) 25
Immigration and Naturalization Service 

v. Chadha, 77 L.Ed.2d 317
(1983) 48

Mills Music, Inc. v. State of Arizona,
591 F.2d 1278 (9th Cir. 1979) 27

Parden v. Terminal Railway, 377 U.S.
184 (1964) 6,7,10-14,17-19,29, 
31,33,41,46

Pennhurst State School & Hospital v. 
Halderman, 79 L.Ed.2d 67
(1984) 32

Petty v. Tennessee-Missouri Bridge 
Commission, 359 U.S. 275
(1959) 10, 14, 19

Procunier v. Navarette, 434 U.S. 555(1978) 7, 18, 26
IV



passimQuern v. Jordan, 440 U.S. 332 
(1979)

Scheuer v. Rhodes, 416 U.S. 232
(1974) 18

Southeastern Community College v.
Davis, 442 U.S. 397 (1979) 20, 21

Tenney v. Brandhove, 341 U.S. 367
(1951) 25

Witter v. Pennsylvania National Guard, 
462 F. Supp. 279
(E.D. Pa. 1978) 27

Statutes
Civil Rights Act of 1964, Title II 39
Civil Rights Act of 1964, Title VII 39
Fair Labor Standards Act 13, 39
Vocational Rehabilitation Act of 1973,

§ 504 passim
16 U.S.C. § 1540(g) (1) 39
42 U.S.C. § 1983 24, 33, 34
42 U.S.C. § 2000a-3(a) 39
49 U.S.C. § 1686 39
49 U.S.C. § 2014 39

v



Other Authorities
118 Cong. Rec. (1972) 28
119 Cong. Rec. (1973) 29
S. Rep. 93-318 28
Field, "The Eleventh Amendment and Other 

Sovereign Immunity Doctrines: Con­
gressional Imposition of Suit Upon 
States", 126 U.Pa.L.Rev. 1203 
(1978) 27

Liberman, "State Sovereign Immunity in 
Suits to Enforce Federal Rights", 
1977 Wash. O.L.Q. 195 27

vi



No. 84-351

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term 1984

ATASCADERO STATE HOSPITAL, et al.,
Petitioners

v.
DOUGLAS JAMES SCANLON

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT
BRIEF AMICI CURIAE IN SUPPORT OF 
RESPONDENT ON BEHALF OF SENATOR 
ALAN CRANSTON, SENATOR CLAIBORNE 
PELL, SENATOR ROBERT STAFFORD, 

SENATOR.LOWELL WEICKER, REPRESENTA­
TIVE MARIO BIAGGI, REPRESENTATIVE 

DON EDWARDS, REPRESENTATIVE WILLIAM 
FORD, REPRESENTATIVE JAMES JEFFORDS, 

and REPRESENTATIVE GEORGE MILLER



2

STATEMENT OF INTEREST*
This amicus brief is submitted on 

behalf of nine members of Congress. Most 
of the amici were members of Congress when 
section 504 was originally enacted. 
Senators Cranston and Stafford are the 
only present members of the Senate who 
served in 1 972 on. the Subcommittee on the 
Handicapped of the Labor and Public 
Welfare Committee, which actually drafted 
section 504 in that year.

Amici believe that the construction 
of section 504 urged by petitioner in this 
case would as a practical matter largely

Letters from the parties as consen­
ting to the filing of this brief are being filed with the Clerk.



3

nullify that statute insofar as it applies 
to the states. Petitioner argues that
section 504 should be read to allow the 
federal courts to grant only prospective 
relief for violations of that law. Such a 
construction would effectively postpone 
the effective date of the law, which 
Congress provided would be September 26, 
1973, until whatever time in the future a 
federal judge issues an injunction
directing a particular state institution 
to obey the law. Absent such an injunc­
tion, and immune from any threat of 
financial conseouences for disobedience, 
the states would be free to discriminate 
on the basis of handicap in any or all of 
their federally assisted programs. We 
would hope that, were section 504 a 
eviscerated in this manner, California and 
the other states receiving federalother states



4

assistance would choose to refrain from 
such discrimination. Rut in enacting 
section 504 it was the intent of Congress 
to create a law to compel all federal aid 
recipients to desist at once from any form 
of discrimination against the disabled, 
not to merely make a casual suggestion 
which the states, absent a federal 
injunction, were at liberty to accept or 
disregard at will.

Petitioner's suggestion that Quern v. 
Jordan, 440 U.S. 332 (1979), be applied 
retroactively to statutes enacted prior to 
1979 would present Congress with a problem 
unique in both its magnitude and complexi­
ty. Quern, as petitioner interprets it, 
requires that Congress legislate in a 
special way when it wishes to subject the 
states to suit for violating a federal
1 aw. Whatever the merits of this stan-



5

dard, it was not the reigning constitu­
tional theory in 1972-73 when section 504 
was enacted, nor was it the clearly 
established rule of construction when most 
existing federal laws were adopted. If 
Quern is applied retroactively, Congress 
will be compelled to review large portions 
of the United States Code, much of it 
enacted even earlier than section 504, to 
restore the meaning of statutes that would 
otherwise be altered by the application of 
such a rule.

Amici believe that the decision in
Quern, unless limited by this Court, would
raise serious constitutional problems
under Article I. The doctrine that
petitioner proposes to read into Quern
does not purport to be a method of
divining the intent of the Congress, but 
seeks to require Congress to legislate in



-  6

a special manner whatever it subjects the 
states to suit in federal court. This 
doctrine is claimed to stem, not from any 
demonstrated congressional concern about 
such immunity, but from a frequently 
expressed "reluctance" on the part of the 
Court to apply such laws in a literal 
manner. The dissent in Hutto v. Finney, 
437 U.S. 678 (1978), candidly acknowledged 
that a similar rule it proposed was 
intended to "structur[e] the legislative 
process . . .  to protect the states' 
interests." 437 U.S. at 706 n. 4. Amici 
submit that it is Congress, not the 
federal judiciary, that should undertake 
to structure the legislative process and 
to decide what interests that structure
ought to protect.



- 7 -

SUMMARY OF ARGUMENT 
Under the rule of construction 

applied in Parden v. Terminal Railway, 377 
U.S. 184 (1964), section 504 would have
been interpreted to subject to suit in 
federal courts state recipients of federal 
financial assistance. Petitioner urges 
that Parden is no longer new law, and that 
a different rule of construction was 
established by later decisions, most 
notably Quern v. Jordan, 440 U.S. 332 
(1979). But Parden, regardless of whether 
it has now been disapproved, was the 
reigning constitutional theory of the day 
when section 504 was drafted. The 
standard of construction established by 
Quern should not be applied retroactively 
to statutes adopted years earlier. 
Members of Congress, like other public 
officials, "cannot be expected to predict



-  8 -

the future course of constitutional law," 
Procunier v. Navarette, 434 U .S. 555, 562 
( 1978) .

Petitioner suggests that the intent 
of Congress in 1972-73 is irrelevant, 
since Congress in drafting section 504 
failed to utilize the "foundational 
language" which they believe is reauired 
by Quern. Petitioner construes Quern as 
directing Congress to utilize certain 
special statutory language, and to 
expressly consider the consequences of 
subjecting states to suit in federal 
court, if Congress wishes to authorize 
such suits. This approach is supported to 
some degree by a dissent in Hutto v. 
Finney, 437 U.S. 678 (1978), which 
suggested that by adopting such a rule the 
Court could " structur[e] the legislative 
process" and thus "protect the states'



9

interests." 437 U.S. at 706 n. 4. Amici 
urge that under Article I it is Congress, 
not the judiciary, which is entrusted with 
the responsibility of structuring the 
legislative process. The interests of the 
states are adeguately protected by the 
political process, and reguire no such 
judicial intervention in the internal 
workings of Congress. Garcia v. San 
Antonio Metropolitan Transit Authority, 
No. 82-1913. Statutes authorizing suits 
against any recipient of federal funds 
should be literally construed to authorize 
suits against state recipients.

ARGUMENT

I. QUERN V. JORDAN, 440 U „ S . 332
(1979), SHOULD NOT BE APPLIED RETROACTIVE­
LY TO STATUTES ADOPTED PRIOR TO MARCH 5, 
1979.

This case requires the Court to



10

decide whether a major change in the rules 
of statutory construction should be 
applied to legislation enacted before that 
change occurred. The court of appeals 
below, in holding that section 504 
abrogated the sovereign immunity of the 
states, relied heavily on Parden v. 
Terminal Railway, 377 U.S. 184 (1964) and 
Petty v. Tennessee-Missouri Bridge 
Comm is s ion, 359 U.S. 275 (1959). (Pet. 
App. A —4) . Petitioner and the United 
States urge, not without reason, that 
Parden and Petty are no longer good lav/. 
Petitioner asserts that "their holdings, 
for the most part, have been eviscerated" 
by later decisions. (P. Br. 35 n. 11). 
Petitioner also suggests, in light of 
Quern, that Hutto v. Finney, 437 U.S. 678 
(1978) was wrongly decided. (P. Br. 46-47 
n. 16). The United States similarly



argues that "[i]t is certainly difficult 
to conclude" that the circumstances of 
Parden present "the type of clear and 
unequivocal abrogation of Eleventh Amend­
ment immunity required by" subsequent 
decisions. (U.S. Br. 12 n. 6).

It does indeed appear that over the 
last twenty years there has been a 
substantial alteration in the standard 
applied by this Court in ascertaining 
whether a statute abrogates a state's 
Eleventh Amendment immunity. The standard 
of construction now advanced by peti­
tioner, and arguably supported by recent 
caselaw, however, was expressly rejected 
by this Court in Parden v. Terminal 
Railway, 377 U.S. 184 (1964). In Parden 
four members of the Court proposed that a 
statute be construed to abrogate a state's 
immunity "[o]nly when Congress has clearly



12

considered the problem and expressly 
declared that any State which undertakes 
given regulable conduct" will be subject 
to suit. 377 U.S. at 198-99. (Dissenting 
opinion).The majority in Parden, however, 
rejected this proposed requirement, and 
held that states were subject to suit 
under the Federal Employer's Liability Act 
even though there was no legislative 
history suggesting that Congress had 
specifically considered that issue, and no 
special reference to states in the 
statutory provision authorizing private 
damage actions. 377 U.S. at 188-90. The 
Court held that a general statutory cause 
of action was to be construed as appli­
cable to state defendants "in the absence 
of express provision to the contrary." 377
U.S. at 190.



13

For fifteen years thereafter, despite
repeated opportunities to do so, the Court
declined to embrace the requirement of
express consideration and language
proposed by the dissent in Parden. In
Employees v. Missouri Public Health Dept.,
411 U.S. 279 (1973), the Court held that
the Fair Labor Standards Act had not
abrogated the sovereign immunity of the
states. But the majority in Employees
neither adopted nor referred to the rigid
standard rejected in Parden, and based its
conclusion instead on a number of factors
peculiar to the lanquage and legislative

1
history of the FLSA. Significantly,

The majority emphasized, for example, that 
section 16(b), which authorized private 
suits, had been enacted when state 
agencies were not subject to the FLSA, and 
had not been changed after the states were 
made subject to that law. 411 U.S. at 
285.



14

Justice Stewart, who had joined the 
dissent in Parden, concluded that the 
FLSA had "lifted the State's immunity from 
private suit", 411 U.S. at 2S9 (Marshall 
and Stewart, J., dissenting), even though 
the FLSA clearly did not meet the standard 
proposed by the Parden dissent. In 
Edelman v. Jordan, 415 U.S. 651 (1974), 
the issue of abrogation was the subject of 
only cursory discussion. A claim that the 
Social Security Act rendered states 
subject to suit was summarily rejected 
with a notation that that Act "by its 
terms did not authorize suit against 
anyone." 415 U.S. at 651. The majority 
emphasized that that result was mandated 
by "this Court's holding in Parden and 
Petty . . . 415 U.S. at 672.



15

In Fitzpatrick v. Bitzer, 427 U.S. 
445 (1976), the Court held that Title VII 
of the 1964 Civil Rights Act, as amended 
in 1972, did authorize private plaintiffs 
"to sue the State as employer", 427 U.S. 
at 452, but the Court gave no indication 
of what standard it had applied in 
arriving at that conclusion. In Hutto v. 
Finney, 437 U.S. 678 (1978) four members 
of the Court urged that, regardless of the 
legislative history of a statute, no law 
should be deemed to abrogate state 
sovereign immunity unless it made "express 
provision for monetary recovery against 
the states." 437 U.S. at 706. (Powell, 
J., dissenting). The majority, however,
declined to apply that standard to the



16

Civil Rights Attorneys' Fees Act at issue 
in Hutto, holding:

The Act itself . . . applies to 
"any" action brought to enforce 
certain civil rights laws. It 
contains no hint of an exception 
for States. 437 U.S. at 694.

In concluding that the Civil Rights 
Attorneys' Fees Act did apply to the 
states, the Court did not purport to apply 
a standard of construction different from 
that which would have been applicable to 
any other class of defendants.

If the Court has adopted such a 
special rule of construction, that did not 
clearly occur until Quern v . Jordan, 440 
U.S. 332 (1979). Petitioner suggests that 
Quern holds that a statute will not be 
deeded to render a state subjsct to suit 
unless it both contains a special refer­
ence to states as being among the entities



17

subject to suit, and is based on a 
legislative history in which Congress 
carefully considered that issue. (P. Br. 
33, 38) On petitioner's view a statute 
which merely authorizes suit against "all" 
recipients of federal funds would be so 
deficient that the legislative history of 
the law would be irrelevant. (P. Br. 
71-72) If Quern establishes such a 
standard, it has clearly departed from the 
rule applied by the majority in Parden. In 
1964 a statute authorizing suit against 
all persons who violated a particular lav; 
would have been construed as authorizing 
a suit against a state; today such a 
statute, at least in the absence of some 
special legislative history, would 
apparently be given the opposite construc­
tion.



18

We urge that such a fundamental 
chance in the rules of statutory construc­
tion should not be applied retroactively. 
Congress is ordinarily and reasonably 
assumed to legislate with a knowledge of 
the law. But the legal framework within 
which Congress enacts a statute to achieve 
a particular result is the law in exis­
tence at the time of that enactment. 
Members of Congress, like other offi­
cials , "cannot be expected to predict the 
future course of constitutional law." 
Procunier v. Navarette, 434 U.S. 555, 562 
(1978). This Court has repeatedly 
recognized the public officials could not 
govern effectively if they acted at their 
peril despite complying with clearly 
established constitutional requirements. 
Scheuer v. Rhodes, 416 U.S. 232 (1974).
Congress would be equally obstructed in



19

carrying out its constitutional responsi­
bilities if it were reouired to forsee 
changes in the rules of construction, or 
if such changes were applied retroactively 
to alter the meaning of previously enacted 
statutes.

A majority of this Court may nov; 
reject the standard and result in Parden 
v. Terminal Railway. But when section 504 
was enacted, Parden was "the reigning 
constitutional theory of [the] day." Quern 
v. Jordan, 440 U.S. at 342 n. 14. Neither 
Petty nor Parden had required that the 
language or legislative history of a 
federal statute refer to abrogating the 
immunity of a state in order for that law 
to achieve that result. Under Parden a 
general statute was construed to abrogate 
such immunity "in the absence of express 
provision to the contrary." 377 U.S. at



20

19 0. Sect ion 504 contained no such 
exception, and Congress was entitled to 
assume that it would be construed in the 
same manner as had the FELA.

To apply Quern retroactively to 
section 504 would render that statute 
literally meaningless in many circum­
stances which Congress clearly intended 
would be covered by the law. In Employees 
and Edelman the state programs at issue 
were ongoing activities,and the plaintiffs 
had a permanent relationship with the 
programs involved. Thus in both cases a 
prospective injunction under 42 U.S.C. 
§ 1983 could provide substantial relief, 
assuring the workers in Employees the 
minimum wage mandated by the FLSA, and 
guaranteeing to the disabled plaintiffs in 
Edelman the benefits established by the 
Social Security Act. But many of the



21

federally assisted activities covered by 
section 504 are not permanent entitlement 
programs like Social Security, but short 
term grants for projects to be completed 
in a few years or less. Litigation to 
enforce section 504 often takes consider­
ably longer to resolve; the five section
504 cases heard by this Court had been

2
pending an average of 5 years , and only
one had yet been resolved on the merits by

3
the lower courts. Thus as a practical 
matter a final decision granting "prospec­
tive" injunctive relief will often come 
only after the program at issue has been

Consolidated Rail Corp. v. Darrone 79 
L.Ed.2d 568 (1984)(6 years); Alexander v.
Choate, ___ U.S. ___ ( 1985) (5 years);
Scanlon v. Atascadero State Hospital, No. 
84-351 (7 years); Southeastern Community 
College v. Davis, 442 U.S. 397 (1979) (4 
years); Camenisch v. University of Texas, 
451 U.S. 390 (1981) (3 years).

3 Southeastern Community College.



22

terminated; in such a case prospective 
relief would quite literally be meaning­
less. A state agency operating such a 
short term project, once assured that 
there could be no retrospective redress 
for a violation of section 504, would 
simply have no incentive to obey the law.

Even where a state is operating a 
permanent program, the interests of 
certain types of beneficiaries are so 
inherently transitory that for them 
prospective relief would also be meaning­
less. A student in need of special 
assistance to benefit from a federally 
assisted college education cannot defer 
his or her education until a section 504 
claim has been resolved; by the time such 
a claim has been finally decided, and a 
court is ready to provide prospective 
relief, the student will often have



23

graduated. Job applicants, such as 
respondent Scanlon, only rarely have an 
interest in prospective judicial relief 
awarded years after the original act of 
discrimination. Both economic necessity, 
and the obligation to mitigate damages, 
compel a victim of section 504 hiring 
discrimination to seek other work. Ford 
Motor Co. v. EEOC, 458 U.S. 219, 232-233 
(1982). In the instant case the position 
for which respondent Scanlon applied in 
1978 was that of a "graduate student 
assistant" (J.A. 9). We are advised by 
counsel for respondent that Mr. Scanlon 
has long since completed his 
education and is no longer a graduate 
student. Today, some seven years after 
his claim arose, respondent, like most 
rejected job applicants, vrould obtain no 
apparent benefit from prospective relief



24

directing petitioner to refrain from 
discrimination in the hiring of graduate 
student assistants. "For people in 
[Scanlon's] shoes, it is damages or 
nothing." Bivens v. Six Unknown Federal 
Narcotics Agents, 403 U.S. 388, 410 (1971) 
(Harlan, J., concurring). Congress did not 
intend in enacting section 504 to forbid 
discrimination by state agencies on the 
basis of handicap and yet simultaneously 
withhold what would frequently, as here, 
be the only meaningful remedy.

To apply Quern retroactively would 
also wreak havoc throughout the United 
States Code. The great majority of all 
statutes now on the books were enacted 
prior to Quern. Congress could not have 
known when it adopted the hundreds of laws 
that would be affected that this Court 
would hold in 1979 that a particular form



25

of language or legislative history would be 
required to abrogate a state's immunity. 
Retroactive application of Quern would 
reauire Congress to reappraise and reenact 
large portions of the federal code merely 
to restore the original meaning of laws 
enacted years or decades prior to Quern.

The particular result in Quern did 
not necessarily turn on an application, 
retroactive or otherwise, of the standards 
there suggested. Section 1983, the 
statute at issue in Quern, has long been 
construed to incorporate the common law 
immunities which prevailed in the states 
in 1871. Imbler v. Pachtman, 424 U.S. 409 
(1976) (prosecutors); Tenney v. Brandhove, 
341 U.S. 367 (1951) (legislators). Since 
sovereign immunity was the prevalent if 
not universal rule among the states in 
that era, Quern may be justified as no



26

more than an application of the same 
principles that had governed in Imbler and 
Tenney. Quern itself emphasized that 
statutes were to be construed in light of 
the law prevailing when they were enacted, 
not on the basis of legal developments 
that lay in the future. 440 U.S. at 342 
n. 14.

Petitioner and the United States
suggest that the standard suggested by
Quern may to some degree have been
oresaqed by the holdings in Employees,

4
Edelman, Fitzpatrick and Hutto. Any hint 
that might have been gleaned from those 
cases as to what lay ahead fell far short 
"clearly established" rule this Court has

Petitioner appears to urge that the rule 
in Quern was preordained by Edelman v. 
Jordan (P. Br. 37-38). Edelman, like 
Quern, was decided after the enactment of 
section 504.



27

previously required. Procunier v.
Navarette, 434 U.S. 555, 563-65 (1978).
The seeds of almost any decision are to be 
found in earlier precedent, but that by 
itself surely is insufficient to put 
public officials on notice as the manner 
and direction in which the law will grow. 
In the years between Employees and Quern 
many lower courts did not understand there 
to be a requirement of express language or 
legislative history, and statutes invol­
ving neither continued to be construed as

5
abrogating state sovereign immunity.

See, e.g., Green v. State of Utah, 539 
F.2d 1266, 1273 ( 10th Cir. 1976) ( sale of 
stock under Securities Act of 1973); 
Jennings v. Illinois Office of Education, 
589 P.2d 935, 936 (7th Cir. 1979); Mills 
Music, Inc, v. State of Arizona, 591 F.2d 
1278, 1283-84 (9th Cir. 1979); Witter v, 
Pennsylvania National Guard, 462 F. Supp. 
279, 306 (E.D.Pa. 1978); Camacho v. Public 
Service Comm8n, 450 F. Supp. 231 , 234 (D. 
Puerto Rico 1978)



28 -

Commentators expressed considerable
uncertainty about the applicable rule of

6
construction. Quern itself described 
Hutto as involving a disagreement about 
the rule laid down in Edelman. 440 U.S. 
at 339 n. 8. Under these circumstances 
Congress "could not reasonably have been 
expected to be aware of a constitutional 
[rule] that had not yet been declared." 
Procunier v, Navarette, 434 U.S. at 565.

Even if this Court were to hold that 
the standard suggested by Quern was 
forseeably preordained by the decision in 
Employees, the application of that

Field, "The Eleventh Amendment and Other 
Sovereign Immunity Doctrines: Congres­
sional Imposition of Suit Upon States", 
126 U. Pa. L. Rev. 1203, 1247 ( 1978) 
(standard an "open" question); Liberman, 
"State Sovereign Immunity in Suits to 
Enforce Federal Rights", 1977 Wash. U.L.Q. 
195, 251 (Employees an aberration unlikely 
to be followed in the future).



29

standard here would still be inappro­
priate. Employees was decided on April 18, 
1973. Section 504 was drafted and reported 
out by the Senate Committee on Labor and 
Public Welfare on September 20, 1972. S. 
Rep. No. 93-318. The Vocational Rehabili­
tation Act containing section 504 was 
first passed by the Senate on September 
26, 1972, and agreed to by the House on 
October 14, 1972. (118 Cong. Rec. 32279, 
36409). Following a veto unrelated to 
section 504, the Act was again passed by 
the Senate and House on February 15 and 
28, 1973, only to be vetoed a second time. 
(119 Cong. Rec. 5901 , 7139); The dif­
ferences between the President and 
Congress were resolved during 1973, and 
the legislation was finally signed into 
law on September 26, 1973. At the time



30

when section 504 was written and twice 
approved by Congress it could only have 
been understood as subjecting the states 
to suit, since Parden was then this 
Court's most recent Eleventh Amendment 
decision. To conclude that section 504 as 
finally approved had a different meaning, 
one must assume that the entire Congress 
changed its mind as to whether states 
should be subject to suit, read and 
understood Employees to have altered the 
applicable rules of construction, and then 
concluded that Employees had brought about 
precisely the desired change, all without 
a word being spoken on the subject in 
either the House or Senate. This Court has 
not in the past resorted to such far 
fetched hypotheses to interpret statutes,
and it should not do so here



31

II. ARTICLE I DOES NOT AUTHORIZE THIS 
COURT TO DIRECT CONGRESS, AS A 
PRECONDITION OF LEGISLATION SUBJECTING A 
STATE TO SUIT IN FEDERAL COURT, TO "FOCUS 
DIRECTLY ON THE QUESTION OF STATE 
LIABILITY."

Eleventh Amendment jurisprudence over 

the last twenty years has been driven by 
two very different views regarding how 
this Court should decide whether a statute 
subjects a state to suit in federal court. 
One approach has been essentially inter­
pretive -- seeking merely to determine 
whether Congress intended that states 

could be sued. On that view the task 
before the Court is not different in kind 
than determining whether Congress intended 

to authorize suits against cities or 
judges or corporations. The second 
approach has been prescriptive —  purpor­
ting to delineate how Congress should be 
required to act if it wishes to authorize



32

suits against states. The implementation 
of this prescriptive approach reauires 
that the Court first establish the rules 
which it wants Congress to obey and then 
decide whether Congress has done as 
reauired.

It remains unclear whether a majority 
of the Court has embraced the notion that 
the judiciary can insist that Congress 
act in a certain way if it wishes to 
abrogate the immunity of the states. In 
Parden the dissent urged that "[a] decent 
respect for" the Eleventh Amendment 
required Congress to express itself "with 
unmistakable clarity" when Congress 
desired to override that immunity. 377 
U.S. at 199. The majority opinion in 
Employees although primarily interpretive 
in tone, admonished that Congress would



33

not be "acting responsibly" if it limited 
that immunity without express considera­
tion of the financial consequences to the 
states. 411 U.S. at 284-85. The pres­
criptive view of the Court's role was 
articulated most clearly by the dissent in 
Hutto v. Finney, which proposed that the 
Court reouire Congress to use "statutory 
language sufficiently clear to alert every 
voting Member of Congress of the constitu­
tional implications of particular legisla­
tion", 437 U.S. at 705, and explained that
this rule would help "to protect the
states' interests." 437 U.S. at 706 n. 4.
Both Employees, 411 U,.s. at 286, and
Pennhurst State School & Hospital V.

Halderman, 79 L.Ed.2d 67, 78 (1984),
candidly expressed a "reluctance" to
construe federal legislation to authorize



34

suits against states, a reluctance based, 
not on any viev? that a congressional 

intent to do so was unlikely, but appar­
ently on the view that the authorization 
of such litigation was simply undesirable.

The actual decision in Quern 
Jordan is avowedly interpretive, emphasi­

zing the probable meaning of the 1871 
Civil Rights Act and its legislative 
history in light of then prevailing 
constitutional and common law principles. 

440 U.S. at 341-43. Quern might also be 
read, as petitioner proposes, to prescribe 

rules for congressional action which are 
similar in tone to, although somewhat 
different in substance from, the reauire- 
ments proposed by the dissents in Parden 
an<g Hutto. Quern emphasized that section 

1 983 "does not explicitly and by clear



35

language indicate on its face an intent to 
sweep away the immunity of the States" and 
"does not have a history which focuses 
directly on the Question of state liabili­
ty and which shows that Congress con­
sidered and firmly decided to abrogate the 
Eleventh Amendment immunity of the 
states." 440 U.S. 345. As applied to 
section 1983 any such standard simply 
could not be a rational method of divining 
the intent of the forty-second Congress, 
since section 1983 was enacted in 1871, 19 
years before the Court in Hans v. 
Louisiana, 134 U.S. 1 (1890), first
indicated that the states enjoyed any 
Eleventh Amendment immunity from suits by 
their own citizens.

Both petitioner and the United States 
construe Quern as prescribing a standard
which Congress must meet if it wishes to



36

render states subject to suit in federal 
court. Neither argue that when Congress 
enacted section 504 in 1972-73 it decided 
that states, unlike all other recipients 
of federal aid, should not be subject to 
suit in federal court. They urge, rather, 
that Congress, whatever its intent, failed 
to take the steps required to meet this 
Court's present standards. Petitioner 
describes the critical issue in this case 
to be delineating the "necessary condi­
tions for abrogation . . .  of immunity," 
(P. Br. 30), and characterizes this 
Court's decisions as prescribing what 
Congress "must do" " [i] f . . . Congress 
intends to impose a forfeiture of immunity 
. . ." (P. Br. 83). The United States 
describes the issue as "how clear Congress 
must be when it abrogates states' Eleventh



37
?

Amendment immunity," (U.S. Br. 9), and 
declares that Congress' actual * intent is 
simply irrelevant if the statute which it 
enacted failed to meet the "most exigent 
standard of explicit[ness]" (U.S. Br. 3).

Although we disagree with peti­
tioner's and the United States' view 
regarding what the standard ought to be, 
we concur in their view that the type of 
standard which they propose can only be 
understood as a special judicially 
established requirement which Congress 
must meet if it wishes to subject the 
states to suit in federal court. Over the 
last two decades of Eleventh Amendment 
litigation, litigation which has spawned a 
plethora of concurring and dissenting 
opinions, no member of this Court has ever 
suggested that Congress itself attaches



38

overriding importance to protecting the 
states from suit in federal court, or 
regards such suits as an extreme remedial 
measure to be resorted to under only the 
most exigent of circumstances. Whatever 
views of state immunity may have preoccu­
pied Patrick Henry, George Mason, and 
other Anti-Federalists in 1787-88, the 
debates of Congress in our own century 
reflect no similar concerns. The states 
rights issues which have divided Congress 
in recent generations have involved 
disputes about what action Congress could 
properly require the states to take, not 
whether such requirements, once estab­
lished, should be enforced in federal 
court. Congress has been quite sensitive 
to the financial burdens that new federal 
legislation might impose on the states,



4

- 39 -

but that sensitivity has focussed on the 
costs that would be borne by states which 
in good faith obeyed those statutes; no 
similar Congressional solicitude has 
existed for states which, having violated 
those laws, might be ordered to redress 
the resulting injuries.

The peculiar remedial scheme that 
petitioner proposes, in which states may 
be subject to injunctions but not damage 
awards, while all other institutions 
violating the law are subject to both, 
cannot plausibly described as a remedial 
approach so long adhered to by Congress as 
to be presumed to be the desired scheme 
in all legislation. On the contrary, 
petitioner cannot point to a single 
statute which expressly makes any such 
distinctions as to the relief available 
against various types of defendants, and



40

so far as we are aware none exists. When
Congress wishes to limit judicial relief
to injunctions, it has done so expressly,
and has applied that limitation to suits

7
against all defendants. Typically such 
limitations have been utilized where the 
underlying violation, such as exclusion 
from a restaurant on the basis of race, 
was unlikely to cause substantial monetary 
damages. Similarly, when Congress has had 
reservations about subjecting the states 
to a particular statutory regulation, it 
has chosen, not to require the state to 
obey and then exempt it from enforcement, 
but to completely exempt the state from

See, e .g ., Title II of the 1964 Civil 
Rights Act, 42 U.S.C. § 200Qa-3(a); 16 
U.S.C. § 1540(g)(1); 49 U.S.C. §§ 1686, 
2014.



41 -

8
coverage by the law at issue. Significa­
ntly such exemptions have traditionally 
been extended to local governments as well 
as the states, a practice clearly unrela­
ted to any Eleventh Amendment principle.

Petitioner asserts that "Congress 
does know how to provide at least the 
foundational language for an attempt at 
abrogation of States' immunity." (P. Br. 
59-60). This is an artful suggestion that 
Congress understands that this Court 
requires it to legislate in a special way 
if it wishes to override state immunity. 
Petitioner's use of the term "attempt" 
aptly captures the nature of the proposed 
approach, reflecting the very real 
possibility that a statute intended to

8 This was true of both Title VII of the 
1964 and the Pair Labor Standards Act in 
the form in which they were first enacted.



42

achieve such abrogation might be inopera­
tive because the framers failed to
utilize certain judicially mandated

9
"foundational language." Thus petiti­
oner is not the least embarrassed that the 
the decision in Employees, the well spring 
of modern Eleventh Amendment jurispru­
dence, was immediately overruled by 
Congress. (P. Br. 58-59). To petitioner 
that result indicates not that the Court 
erred in "interpreting" the Fair Labor 
Standards Act but that the Congress which 
adopted the Act had erred in not using the 
requisite "foundational language".

This argument illustrates the serious 
constitutional problems inherent in the 
position proposed by petitioner and, by the

See also P. Br. 61 (requirements for "a 
successful expression of Congressional 
abrogation") (Emphasis added).

9



43

dissenters in Parden and Hutto. Under 

Article I legislation will become effec­

tive if three conditions are met: a
statute whose literal language encompasses 
the result intended by Congress must be 

approved by the House, approved by the 
Senate and, ordinarily, approved by the 

President. That is all that is necessary 
for a statute authorizing federal juris­
diction over suits against almost any 
defendant, and a statute authorizing suit 
against "any person" who took certain 
action, since literally all inclusive, 
would suffice to encompass all individuals 
and entities. But on petitioner's view 
Congress must take either or perhaps both 
of two additional steps if it wishes to 
enact a law extending federal jurisdiction 
to suits against states. First, states 

must be specially listed as a defendant



44

subject to suit; as a matter of constitu­
tional law "any person" is to mean "any 
person other than a state." Second, 
Congress must expressly discuss the 
consequences of rendering the states 
subject to suit and do so in a recorded 
debate or some other fashion demonstrable 
in court. Absent either of these require­
ments, apparently, a statute intended to 
render the states subject to suit would 
simply be of no effect.

We do not believe that this Court is 
authorized to mandate any such special 
legislative procedures. Article I 
provides the Congress, not this Court, 
with the federal legislative power, and 
leaves the framing of statutes and the 
procedure for enactment to Congressional 
discretion. Article I does not require



45

Congress to utilize "foundational lan­

guage" or any particular technical formula 

in drafting legislation, or to list 
specially certain types of potential 
defendants under proposed legislation. 

Similarly, Article I does not mandate that 
Congress record its debates or issue 
written committee reports, and the courts 

are not at liberty to partially nullify 
legislation because Congress has failed to 

debate a topic that may be of particular 
interest to the judiciary. Such rules 
might in some instances prevent the 
enactment of unwise legislation, as could 
a practice of requiring that three-quar­

ters of the House and Senate approve any 

bill, but these simply are not the 
procedures contained in Article I.



46

The dissenting opinion in Hutto 
offers the following justification for 
requiring the special legislative language 
rule there proposed:

By making a law unenforceable 
against the states unless a 
contrary intent were apparent, 
in the language of the statute, 
the clear statement rule . . . 
ensure [s] that attempts to limit 
state power [are] unmistakable, 
thereby structuring the legisla­
tive process to allow the 
centrifugal forces in Congress 
the greatest opportunity to 
protect the states' interests. 
437 U.S. at 706 n. 4. (Emphasis 
in original).

On this view requiring that legislation 
contain a special reference to lawsuits 
against states is deemed desirable 
because it maximizes the likelihood that 
the legislation will be defeated. The 
structuring of the legislative process, 
however, is an internal matter to be



47

regulated by the House and Senate, not by 
the courts, whether to require, permit, or 
curtail congressional discussion of a 
particular topic is a decision which 
Article I entrusts to the legislative 
branch. The judiciary is no more au­
thorized to override those decisions than 
it is to alter the number of votes 
required to end a filibuster, or to 
overturn the procedures established by the 
House Rules Committee for the consider­
ation of a bill.

Congress was fully responsive to the 
interests of the states in the days of 
Parden v. Terminal Railway, and remains so 
today. The Constitution assures that that 
responsiveness will exist, however, not by 
authorizing judicial control over the 
procedures of the national legislature, 
but by providing that the members of the



48

House and Senate are to be elected from 
the states that will be affected by any 
federal legislation. Garcia v. San Antonio 
Metropolitan Transit Authority, No. 
82-1913, slip opinion p. 28. The views 
of state officials carry considerable 
weight when Congress undertakes the often 
difficult task of striking the proper 
balance between state and federal 
interests and policies. Where, however, 
Congress has resolved, as in section 504, 
to forbid state recipients of federal 
assistance to discriminate against 
handicapped individuals, it is exceedingly 
inappropriate, and not in accordance with 
the Constitution, for this Court to adopt 
a rule of construction whose avowed 
purpose is to provide "the greatest



49

opportunity" to those who might oppose 
legislation authorizing full judicial 
relief for a state violation of that law.

We believe that this Court should 
limit itself to interpreting the law, its 
proper constitutional role, and should 
eschew maxims of construction framed for 
the purpose of increasing the likelihood 
that statutes will be construed to treat 
state agencies differently than other 
potential defendants. When Congress 
approves a bill whose broad language makes 
no distinctions among those who may be 
subject to suit in federal court, it has 
done all that Article I requires in order 
to enact legislation rendering the states 
liable to such suits. The judiciary has no 
more authority to establish additional 
requirements than Congress or the Presi­
dent have to dispense with requirements



50

that they may find inconvenient. Immigra­
tion and Naturalization Service v. Chadha, 
77 L.Ed.2d 317 (1983).

CONCLUSION
For the above reasons the decision of 

the court of appeals should be 
affirmed.

Respectfully submitted,

BONNIE MILSTEIN
Center for Law and 
Social Policy 
1751 N Street, N.W. 
Washington, D.C. 20036
(202) 872-0670

Counsel for Amici



Hamilton Graphics, Inc.—200 Hudson Street, New York, N.Y.-—(212} 966-4177