**IN THE UNITED STATES DISTRICT COURT**

> **FOR THE WESTERN DISTRICT OF TENNESSEE,**
>
> **EASTERN DIVISION**

**FAYE NORED and ) Civil Action No.: 1-98-1357**

**CYNDI SHAFER, )**

**) Judge Todd**

**Plaintiffs, )**

**) UNITED STATES' REPLY**

**v. ) MEMORANDUM**

**)**

**WEAKLEY COUNTY EMERGENCY )**

**COMMUNICATIONS DISTRICT, )**

**)**

**Defendant. )**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**BACKGROUND**

On November 4, 1999, the United States filed a Motion to Intervene as a
plaintiff in the above-captioned case, naming Weakley County and the
State of Tennessee as additional defendants and challenging the
enactment and implementation of an unlawfully discriminatory standard in
five state statutes relating to qualifications for law-enforcement
employment. The plaintiffs, Faye Nored and Cyndi Shafer, agreed with the
United States' Motion to Intervene; the defendant, Weakley County
Emergency Communications District (ECD), did not file any opposition.

On November 19, 1999, the State of Tennessee (State) filed a Motion for
Permission to Make a Limited Appearance, not to oppose the right of the
United States to intervene as a plaintiff in this case, but to challenge
the "scope and manner" of its proposed intervention. Essentially, the
State seeks to limit the United States' claims while avoiding becoming a
defendant in the case, and asks the Court to issue one of two
alternative orders in an effort to accomplish this purpose. Weakley
County, the other party named as a defendant in the United States'
proposed Complaint in Intervention, has not indicated any opposition to
the United States' Motion to Intervene.

The United States has moved to intervene in this case rather than
institute a separate action against the same defendant based upon the
same facts, in order to conserve judicial resources and ensure the
consistent application of federal law. For the reasons set forth below,
the United States opposes the State's Motion and requests the Court to
grant its Motion to Intervene as proposed.

**ARGUMENT**

**A. The Department Is Entitled To Intervene As Of Right**

The State does not oppose the right of the United States to intervene as
a plaintiff in this case. It does not argue that the Department has
failed to satisfy any of the four requirements for intervention as of
right under Fed. R. Civ. P. 24(a), nor does it dispute the United
States' assertion that because it meets those requirements, it is
entitled to intervene and to become a plaintiff in this case.

Since it cannot challenge the United States' right to become a plaintiff
in this action, the State instead seeks to avoid becoming a defendant.
Rather than waiting until the United States' Complaint in Intervention
has been filed to raise its defenses, the State has sought to
preemptively limit the United States' claims and even to prevent the
United States from naming it as a party defendant. This kind of
back-door maneuver is improper and should not be permitted. The State is
effectively moving to dismiss a complaint before it has even been filed,
thereby requiring the Court to decide substantive legal issues that are
not properly before it, and without the benefit of briefing and legal
analysis common on a motion to dismiss or a motion for summary judgment.

The only issue before the Court at this time is a procedural one:
whether the United States has met the criteria for intervention as of
right under Fed. R. Civ. P. 24(a).[^1] As cited in the United States'
Motion to Intervene, those criteria are as follows: (1) the motion to
intervene is timely; (2) the United States has a substantial legal
interest in the case; (3) without intervention, its ability to protect
its interests will be impaired; and (4) its interests cannot be
adequately represented by the existing plaintiffs. The United States has
argued that it has met each of these requirements, and neither the State
nor any of the parties to this case have disputed this assertion. Any
substantive arguments which the State may wish to make regarding its
susceptibility to suit by the United States, to liability under the
Americans with Disabilities Act (ADA) or to assessment of damages, are
properly raised, not in this type of anticipatory motion, but in its
answer to the United States' Complaint in Intervention.

> 1\. **The State of Tennessee is a Proper and Necessary Party in This
> Case and Can Be Held Liable For Damages**

The State repeatedly asserts that the United States should not be
permitted to name it as a party defendant in this case for any purpose.
State's Motion, p. 2; State's Memorandum, p. 2, 3, 4 and 6. In order to
accomplish this goal, the State asks this Court to issue one of two
alternative orders, ruling either that: (1) The United States may not
challenge any statutes other than the one which has been challenged by
the existing plaintiffs; or (2) The United States may challenge the
"four allegedly invalid state statutes that are unrelated to this case,"
but it cannot name the State as a party "on this basis." State's
Proposed Orders, p. 2.[^2]

The State has erred in its analysis of the issue. It repeatedly asserts
that "the professed basis upon which the State is to be named as a party
is the existence of four additional Tennessee statutes that are similar
or identical to the statute at issue in this case, and which run afoul
of the ADA in the same ways." State's Memorandum, p. 3 (footnote
omitted.)[^3] But this is not the United States' argument. The basis
upon which the

United States intends to name the State as a party defendant in this
action --- just as it would name the State as a defendant in any action
it instituted separately --- is the State's enactment of
[all]{.underline} [five]{.underline} state statutes. As part of its
responsibility for implementing and enforcing the ADA, the Department is
empowered to institute legal action against states and local government
entities for their violations of the statute. 42 U.S.C. § 12117(a); 42
U.S.C. § 12132. Thus, even if the State had enacted only one statute in
violation of the ADA (such as the one challenged by the plaintiffs in
this case), the United States would still intend to name the State as a
defendant pursuant to its statutory authority to do so.

An implicit assertion of the State's Motion is that the United States
cannot directly sue a state merely because the state has enacted
statutes which violate federal law. This argument mischaracterizes the
United States' position. The United States is not simply attacking the
validity of generic state statutes which conflict with, and are
therefore preempted by, federal law. Instead, the United States is
alleging that by enacting, implementing, applying and failing to revoke
these five statutes, the State has affirmatively committed a pattern or
practice of unlawful discrimination on the basis of disability, in
direct violation of the ADA. 42 U.S.C. § 12117(a); 42 U.S.C. § 12133.

There is a good reason why the ADA prohibits this kind of state action.
When a state enacts laws that require persons and entities within its
jurisdiction to choose between violating a federal civil rights law or
risking a state enforcement action, it is responsible for unlawful
discrimination and violation of federal law. Even if the threat of a
state enforcement action might never materialize, it poses a real
deterrent to ADA compliance by persons and entities within the state. In
such circumstances, the state entity will often conclude that its
chances of avoiding legal action are better if it complies with state
law, even if that means committing unlawful discrimination under federal
law.

In addition, the fact that state statutes of this kind were used to
discriminate against specific individuals is sufficient to make a state
liable for monetary damages and other remedial relief. Unable to cite
any authority to the contrary, the State instead cites two cases which
purportedly support its claim that only declaratory and injunctive
relief are available in actions against states. However, these cases are
inapposite. In [Lewis v. Continental Bank Corporation]{.underline}, 494
U.S. 472 (1990), the plaintiff bank holding company was awarded
declaratory and injunctive relief in its constitutional challenge to two
state banking statutes, but lost its entitlement to that relief after
its claims became moot. In [Davoll v. Webb]{.underline}, 955 F. Supp.
110 (D.Colo. 1997), after prevailing in an ADA case against the City and
County of Denver, the United States was denied injunctive relief until
such time as the class of disabled individuals could be defined with
more precision. That case is still pending, mediation is being actively
pursued, and the court will not decide what relief to award until after
trial for damages, which is set for March 2000. Moreover, a state was
not a named defendant in either case, and neither of these cases says
anything about the availability of monetary damages when a state is
charged with violating a federal civil rights law in a complaint filed
by the United States.

In its brief, the State apparently misunderstands the United States to
be arguing that "the State is a proper defendant in this case because of
the defenses that Weakley County has pled." State's Memorandum, p. 8. In
its original brief, the United States did not argue that the
[reason]{.underline} the State of Tennessee could be sued under the ADA
was that defendant Weakley County ECD has asserted that it was acting in
compliance with state law. As discussed above, a state can be sued for
violating the ADA regardless of any actions taken or defenses raised by
a third party. Rather, the United States argues that the fact that
Weakley County ECD was complying with the mandate of state law when it
unlawfully discriminated against the plaintiffs underscores the
propriety of joining the State as a party in this case. Even though
Weakley County ECD is still separately liable for its own violations of
the federal statute, the State is responsible for its illegal conduct in
enacting discriminatory laws.

Not only is the State a proper defendant in this case, it also qualifies
as a necessary party under the compulsory joinder rule. Under Rule 19(a)
of the Federal Rules of Civil Procedure, a party must be joined if "in
the person's absence complete relief cannot be accorded among those
already parties."[^4] The United States' Complaint in Intervention seeks
injunctive, declaratory and monetary relief from the State with respect
to its claim that the State has violated the ADA. The United States will
not be able to obtain complete relief with respect to all of its claims
on behalf of the public interest unless the State is joined as a party
in this case. The State does not oppose the motion of the United States
to become a plaintiff in this case; it cannot simultaneously argue that
the United States as plaintiff-intervenor, unlike other plaintiffs,
should be prohibited from pursuing all of its claims and seeking all
available relief.

> **2. The State's Decision Not to Voluntarily Intervene Does Not
> Insulate It From Suit**

In its brief and proposed Orders, the State appears to assert that the
only way it could become a proper party to this suit would be if it
voluntarily intervened, which it has declined to do. With respect to its
first proposed Order, which would limit the United States to challenging
only the statute used to discriminate against these plaintiffs, the
State declared prior to the United States' Motion to Intervene that it
did not intend to defend that statute. It now suggests that such
determination should preclude its further involvement in the case. With
respect to its alternative proposed Order, which would allow the United
States to challenge the other four statutes, the State argues that the
United States is constrained to merely complying with the Rule 24
notification requirement, at which point the State can intervene, or
not, at its option.

However, whether or not the State elects to defend the validity of its
statutes does not alter the fact of its liability for having enacted
them. It is the nature of an enforcement action such as this that
states, like other defendants, do not have a legal right to choose
whether or not they will be sued by the Attorney General under Title II
of the ADA. 42 U.S.C. § 12133. The source of the State's confusion on
this point appears to be a fundamental misreading of the notification
requirement of Rule 24 of the Federal Rules of Civil Procedure. Rule 24
addresses the issue of intervention in civil litigation, and is in fact
the basis for the United States' Motion to Intervene in this case. In
addition to providing general criteria to determine which parties under
what circumstances may intervene in a given case, either as of right or
by permission, the rule also provides for mandatory notification of the
state (or the United States) whenever the constitutionality of a state
(or federal) statute is challenged.[^5] The purpose of this notification
requirement is to allow the governmental entity responsible for enacting
a statute an opportunity to intervene, pursuant to this rule and the
federal statute, in order to have some input on the question of the
statute's constitutionality. By its terms, the requirement only applies
when that entity is not already a party to the litigation, because as a
party it would obviously have notice of any claims or defenses which
were raised and an opportunity to make its views known.

Inexplicably, the State interprets this provision of Rule 24 to mean
that being properly notified of a challenge to a statute's validity[^6]
is the [only]{.underline} way that a State can be made a party to a
lawsuit which includes such a challenge, and furthermore, that a State
can only be made a party in this manner if it "chooses to intervene."
State's Memorandum, p. 4. Under the State's interpretation, whenever the
validity of a state statute is in question, the State is immune from
suit with respect to any violations of federal law that may have
attended its enactment of the invalid statute.

This is a complete misreading of this rule. Rule 24 describes the
procedures and criteria for a party's voluntary intervention in a case;
it has nothing whatsoever to do with the capacity of a state to be sued.
Much as it may wish otherwise, the State's decision not to defend the
validity of its statutes does not insulate it from suit for violating
the ADA. By declining to defend Tenn. Code Ann. § 7-86-201 in this case,
the State has not in any way diminished the right of the United States
to sue the State with respect to its violation of the ADA and to obtain
appropriate relief, nor can the State prospectively insulate itself from
suit with respect to the other four statutes by declining to defend them
as well.

> 3\. **The Department's Proposed Intervention Is Appropriate in Scope**

Finally, the State argues that by seeking to intervene as it has
proposed, naming the State and Weakley County as additional defendants
and challenging four other statutes which contain the identical
discriminatory standard[^7], the United States will "greatly expand" the
scope of the existing case. It cites only one case in support of this
conclusory assertion, [United States v. State of Oregon]{.underline},
913 F.2d 576 (9^th^ Cir. 1990), and that case bears little resemblance
to this one. In that case, a small Indian tribe sought to intervene in a
twenty-year-old legal battle between multiple state and federal
government entities and private parties over the allocation of the
Columbia River fish harvest, in order to expand the geographical scope
of the case to include its downstream ocean fishery. Because the complex
litigation had been ongoing for more than two decades, the district
court concluded (and the 9^th^ Circuit affirmed) that it was "too late
in the proceeding to change the nature of the suit so dramatically."
[Id.]{.underline} at 588. The State's reliance upon that case here is
misplaced.

Because the State's liability under the ADA is premised on the simple
and uncontested fact that it enacted the identical discriminatory
standard in five statutes, any potential fact dispute would relate, not
to its liability, but to the assessment of damages. The purely legal
analysis that the Court will employ in order to strike down the one
statute challenged by the plaintiffs is the same analysis it will use to
strike them all down. If the United States does not name the State as a
defendant in this case, or if it does not challenge the State's
enactment of all five statutes in this case, it will be forced to
institute a separate suit against the State for that purpose. It makes
no sense to require this Court, the State of Tennessee and the
Department of Justice to go through the same legal analysis in two
separate legal actions.

While the United States does not know precisely how many individuals,
other than the plaintiffs, have been adversely affected by these five
statutes, it is aware of at least one other individual who has been
discriminated against pursuant to Tenn. Code Ann. § 7-86-201 (relating
to public dispatchers) and two individuals who have been discriminated
against pursuant to Tenn. Code Ann. § 38-8-106 (relating to police
officers). The State argues that allowing the United States to challenge
all five statutes in one forum will result in an "enormous expansion of
the existing lawsuit in order to accommodate this group of prospective
plaintiffs." State's Memorandum, p. 7. If there is indeed such a large
number of adversely affected individuals, that is all the more reason
for the Court to alleviate the prospective burden on the court system
and attempt to resolve as many of those claims as possible now, and in
one forum. This fulfills the primary rationale for the rule on
intervention, which is to further judicial economy by ensuring that all
claims growing out of the same facts are resolved, if at all feasible,
in one action. It also underscores the necessity of striking down all
five statutes at once, instead of in a piecemeal fashion over time by
different plaintiffs in front of different courts.

**CONCLUSION**

In sum, the United States has shown, and neither the State nor any party
has disputed, that it meets all four requirements for intervention as of
right: its motion to intervene is timely and will not prejudice the
existing parties; it has a substantial legal interest in the action;
without intervention, its interests may be impaired; and its interest
along with the public interest are not and cannot be adequately
protected by any of the private parties to this action. The State's
preemptive motion to prevent it from being named as a defendant in the
case and to limit the United States' claims is improper and should be
denied. The United States should be granted leave to intervene as of
right

pursuant to Fed. R. Civ. P. 24(a)(2), or alternatively, by permission
pursuant to Fed. R. Civ. P. 24(b).

> Respectfully Submitted,
>
> BILL LANN LEE
>
> Acting Assistant Attorney General
>
> Civil Rights Division
>
> By: [                         ]{.underline}
>
> JOHN L. WODATCH
>
> RENEE M. WOHLENHAUS
>
> JEANINE WORDEN
>
> M. CHRISTINE FOTOPULOS
>
> Attorneys
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 307-6556
>
> \(202\) 305-7475
>
> Dated: December \_\_\_\_\_, 1999
>
> Washington, D.C.

[^1]: 1 The United States has also argued, in the alternative, that it
    should be granted leave to intervene by permission under Fed. R.
    Civ. P. 24(b).

[^2]: 2 It is worth noting that while the State clearly intends these
    alternative orders to protect it from being named as a defendant at
    all, the orders are not drafted in a manner that would accomplish
    this goal: by its terms, neither order would preclude the United
    States from naming the State as a defendant with respect to the one
    statute challenged by the individual plaintiffs in this case.

[^3]: 3 In other places, the State argues that it cannot be named as a
    party defendant "based upon the existence of four allegedly invalid
    state statutes that are unrelated to this case." State's Motion, p.
    2; State's Memorandum, p. 9; and State's proposed Order, p. 2.

[^4]: 4 Because the State's liability in this case is based in part on
    the discrimination suffered by these plaintiffs, the State also
    qualifies as a permissive party under Fed. R. Civ. P. 20(a), which
    states that a party may be joined with other defendants if "there is
    asserted against \[the defendants\] jointly, severally, or in the
    alternative, any right to relief in respect of or arising out of the
    same transaction, occurrence, or series of transactions or
    occurrences and if any question of law or fact common to all
    defendants will arise in the action."

[^5]: 5 Fed. R. Civ. P. 24(c) states: "When the constitutionality of an
    act of Congress affecting the public interest is drawn in question
    in any action in which the United States or an officer, agency, or
    employee thereof is not a party, the court shall notify the Attorney
    General of the United States as provided in Title 28, U.S.C. § 2403.
    When the constitutionality of any statute of a State affecting the
    public interest is drawn in question in any action in which that
    State or any agency, officer, or employee thereof is not a party,
    the court shall notify the attorney general of the State as provided
    in Title 28, U.S.C. § 2403."

[^6]: 6 The State claims that the United States' proposal to "join the
    State as a defendant\...contraven\[es\] Rules 24 of both the Federal
    and the Tennessee Rules of Civil Procedure\... ." State's
    Memorandum, p. 8. It thus urges the Court to apply (and to similarly
    misinterpret) the state counterpart of Rule 24 in this case, which
    goes further than the federal rule to require notification to the
    state attorney general even when a statute's general validity is
    challenged. Tenn. R. Civ. P. Rule 24.04. While the United States is
    not challenging the constitutionality of any of the five statutes,
    implicit in its claim that the State has violated the ADA is the
    assertion that the statutes are invalid.

[^7]: 7 All five statutes broadly exclude from various types of public
    law-enforcement employment all persons who are not free of "apparent
    mental disorders."