Number range CHAPTER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DONALD GALLOWAY,

Plaintiff,

v\.

SUPERIOR COURT OF THE DISTRICT

OF COLUMBIA

and

THE DISTRICT OF COLUMBIA,

Defendants.

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Civil Action No. 91-0644 (JHG)

**MEMORANDUM OF THE UNITED STATES AS [AMICUS CURIAE]{.underline}**

# I. Introduction

Plaintiff Donald Galloway is blind. When responding to a summons for
jury duty, he was informed by personnel of the Superior Court of the
District of Columbia that the Court\'s policy was to exclude all blind
persons from jury service. Galloway was therefore barred from serving as
a juror. On March 16, 1993, this Court granted plaintiff\'s motion for
summary judgment for declaratory and injunctive relief, holding that the
Superior Court\'s policy of categorically excluding blind persons from
jury service violates title II of the Americans with Disabilities Act
(\"ADA\"), 42 U.S.C. §§ 12131 [et seq.]{.underline}, and section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794. The March 16 order
directed the parties to address several remaining issues regarding
relief.[^1]

In this brief, the United States as [amicus curiae]{.underline} urges
the Court to hold that the plaintiff is entitled to seek compensatory
damages under both title II of the ADA and section 504 of the
Rehabilitation Act and, further, that the eleventh amendment is not a
bar to obtaining such relief. We take no position on other issues raised
by the parties.

# Interest of the United States

The United States has significant responsibilities for implementing and
enforcing the ADA, including, pursuant to statutory directive, the
promulgation of implementing regulations.[^2] Accordingly, the United
States has a strong interest in ensuring that the case law developed in
this suit is consistent with the United States\' interpretation of the
statute and the Department of Justice\'s regulation implementing title
II of the ADA, 28 C.F.R. pt. 35.

Similarly, the United States has substantial responsibility for
enforcing section 504 of the Rehabilitation Act of 1973,

29 U.S.C. § 794, in connection with federally assisted programs and
activities.[^3] The United States has often participated as [amicus
curiae]{.underline} in cases involving section 504, both before the
Supreme Court and other federal courts.[^4]

The issues raised in this case implicate the ability of both the
Department of Justice and private plaintiffs to obtain relief under
title II and section 504. Furthermore, because the Attorney General does
not have unlimited resources to enforce civil rights laws, suits brought
by private citizens as \"private attorneys general\" are critical to the
successful implementation of those laws. [See]{.underline},
[e.g.]{.underline}, [Alexander v. Gardner-Denver Co.]{.underline}, 415
U.S. 36, 45 (1974) (title VII of the 1964 Civil Rights Act
(employment)); [Trafficante v. Metropolitan Life Ins. Co.]{.underline},
409 U.S. 205, 211 (1972) (title VIII of the 1968 Civil Rights Act (fair
housing)); [Newman v. Piggie Park Enterprises, Inc.]{.underline}, 390
U.S. 400, 401-402 (1968) (title II of the 1964 Civil Rights Act (public
accommodations)).

## Argument

The Americans with Disabilities Act is the nation\'s first comprehensive
civil rights statute protecting the rights of persons with disabilities.
The statute itself sets forth among its purposes:

> \(1\) to provide a clear and comprehensive national mandate for the
> elimination of discrimination against individuals with disabilities;
>
> \(2\) to provide clear, strong, consistent, enforceable standards
> addressing discrimination against individuals with disabilities;

. . . and

> \(4\) to invoke the sweep of congressional authority, including the
> power to enforce the fourteenth amendment and to regulate commerce, in
> order to address the major areas of discrimination faced day-to-day by
> people with disabilities.

42 U.S.C. § 12101(b). As we demonstrate below, this comprehensive
statute includes the right to be compensated for injuries resulting from
the unlawful discriminatory conduct of state and local government
officials.

Title II of the ADA was patterned after section 504 of the
Rehabilitation Act of 1973, the first federal statute to provide broad
prohibitions against discrimination on the basis of disability. Section
504 prohibits discrimination in programs and activities receiving
federal financial assistance (including assisted programs of state and
local governments).[^5] As we discuss in detail below, a recent Supreme
Court decision construing a similar statute confirms the conclusion
reached by most lower courts that compensatory damages are available in
private suits brought under section 504.

Even if the District of Columbia is considered a state for eleventh
amendment purposes, it is not a bar to recovery of damages under either
title II of the ADA or section 504. Congress explicitly abrogated
eleventh amendment immunity when it enacted the ADA. In the Civil Rights
Remedies Equalization Act of 1986, Congress did the same for suits
brought under section 504.

**A. Compensatory damages are available forms of relief under title II
of the ADA and section 504 of the Rehabilitation Act**

Congress explicitly patterned title II\'s substantive and enforcement
provisions after section 504. Section 203 of the ADA, 42 U.S.C. § 12132,
provides that enforcement is to be achieved through the \"remedies,
procedures, and rights set forth in section 505 of the Rehabilitation
Act,\" 29 U.S.C. § 794a, which establishes the remedies by which section
504 is enforced.[^6] As a result, the remedies afforded under title II
and section 504 are the same.

Section 505 of the Rehabilitation Act does not itself specify what
remedies are available for violations of section 504. Rather, it adopts
the rights and remedies available under title VI of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000d [et seq.]{.underline}, which prohibits
discrimination on the basis of race, color, or national origin in
federally assisted programs. Most of the lower courts have held that
compensatory damages are authorized under both section 504[^7] and title
VI.[^8]

In a decision interpreting title IX of the Education Amendments Act of
1972, 20 U.S.C. § 1681, yet another statute patterned after title VI,
the Supreme Court last term ruled that a private plaintiff is entitled
to recover compensatory damages. Title IX prohibits gender
discrimination in federally assisted education programs. Like section
504, the enforcement scheme of title IX adopts the rights and remedies
provided under title VI without specifying what particular remedies are
available.[^9] The Court\'s decision, [Franklin v. Gwinnett County
Public Schools]{.underline},

112 S. Ct. 1028 (1992), disposes of any argument that compensatory
damages are not available to private plaintiffs seeking to enforce their
rights under title VI-like statutes.

In [Franklin]{.underline}, a female student alleged that a high school
teacher had continually abused her and subjected her to sexual
harassment. The student had since graduated and sought damages. The
school district claimed that only injunctive relief could be awarded in
a private suit under title IX. The Court disagreed, holding that
compensatory damages are available. 112 S. Ct. at 1032-33. It based its
decision on the longstanding and fundamental principle of law that,
absent clear congressional direction to the contrary, federal courts
have the power to award any appropriate relief in a cognizable cause of
action brought pursuant to a federal statute. [Id]{.underline}. at 1033.
Indeed, the Court concluded that courts should presume the availability
of all forms of relief unless Congress has expressly indicated
otherwise. [Id.]{.underline} (citing [Davis v. Passman]{.underline}, 442
U.S. 228, 246-47 (1979)).

Having already held in [Cannon v. University of Chicago]{.underline},
441 U.S. 677 (1979), that title IX is enforceable through an implied
private right of action, the [Franklin]{.underline} Court found no
indication, either in the statute itself or its legislative history,
that Congress intended to limit the remedies available under title IX.
In fact, the [Franklin]{.underline} Court noted that after
[Cannon]{.underline}, Congress twice[^10] had the opportunity to limit
the remedies available under title IX and made no effort to do so either
time.[^11] The Court thus concluded that the full range of remedies
could be applied in a title IX suit.

Because section 504 and title IX share a common enforcement mechanism,
the reasoning in [Franklin]{.underline} is equally applicable to section
504. Another judge of this court has already adopted the
[Franklin]{.underline} analysis and concluded that compensatory damages
are available under section 504.[^12] [Doe v. District of
Columbia]{.underline}, 796 F. Supp 559, 572 (D.D.C. 1992). Every other
court to address this issue since [Franklin]{.underline} has reached the
same conclusion. [See]{.underline}, [e.g.]{.underline}, [Wood v. Spring
Hill College]{.underline}, 978 F.2d 1214, 1219-20\
(11th Cir. 1992); [J.L. and K.P. v. Social Sec. Admin.]{.underline}, 971
F.2d 260, 264 (9th Cir. 1992); [Kraft v. Memorial Medical
Center]{.underline}, 807 F. Supp. 785, 790 (S.D. Ga. 1992); [Ali v. City
of Clearwater]{.underline}, 807 F. Supp. 701, 704-05 (M.D. Fla. 1992);
[Tanberg v. Weld County Sheriff]{.underline}, 787 F. Supp. 970, 972 (D.
Colo. 1992) ([Franklin]{.underline} \"provides dispositive analysis\"
that compensatory damages are available under section 504).

Like title IX, section 504 was designed to protect the civil rights of
victims of discrimination. And as with title IX, Congress has had ample
opportunity to amend section 504 to preclude the availability of
compensatory damages.[^13] By failing to amend the remedies provisions
of section 504, even after many courts have held that damages are
available under the statute,[^14] Congress has implicitly confirmed that
damages are, in fact, available.

Because title II of the ADA has adopted the rights and remedies
available under section 504, the [Franklin]{.underline} analysis also
compels the conclusion that compensatory damages are available under
title II.[^15] As with section 504 and titles VI and IX, there is no
indication whatsoever, in either the statutory language or the
legislative history of title II, that Congress intended to limit the
remedies available to a private plaintiff.[^16] To the contrary, the
legislative history of title II suggests that Congress intended the full
range of remedies, including compensatory damages, to be available under
title II:

> As with section 504, there is also a private right of action for
> persons with disabilities, which includes the full panoply of
> remedies.[^17]

B. Congress has expressly abrogated the states\' eleventh amendment
immunity from private suits brought under the ADA and Section 504

The eleventh amendment,[^18] as interpreted by the Supreme Court,
embodies a general constitutional principle of state sovereign immunity
in federal court actions. The amendment, therefore, precludes a federal
court from rendering judgment against an unconsenting state in favor of
a citizen of the state. [Hans v. Louisiana]{.underline}, 134 U.S. 1, 15
(1890). But the District of Columbia is not considered a state for
eleventh amendment purposes. [See]{.underline} [Best v. District of
Columbia]{.underline}, 743 F. Supp. 44, 46 (D.D.C. 1990) (\"\[t\]he
eleventh amendment \... does not apply to the District of Columbia\");
[Committee of Blind Vendors v. District of Columbia]{.underline}, 695 F.
Supp. 1234, 1241 n.6 (D.D.C. 1988) (same).

Moreover, even if it applied to the District of Columbia, the eleventh
amendment would not bar a suit for damages under either title II of the
ADA or section 504. The Supreme Court has held that Congress may
abrogate the eleventh amendment without the states\' consent when acting
pursuant to its plenary powers, so long as it does so explicitly.
[See]{.underline}, [e.g.]{.underline}, [Fitzpatrick v.
Bitzer]{.underline}, 427 U.S. 445, 456 (1976) (Congress has the
authority to override states\' immunity when legislating pursuant to
section 5 of the fourteenth amendment); [Atascadero State Hosp. v.
Scanlon]{.underline}, 473 U.S. 234, 242 (1985) (Congress must make \"its
intention unmistakably clear in the language of the statute\").

In the ADA, Congress expressly abrogated the States\' eleventh amendment
immunity. Title V, which contains provisions generally applicable to all
other titles of the ADA, provides:

> A State shall not be immune under the eleventh amendment to the
> Constitution of the United States from an action in Federal or State
> court of competent jurisdiction for a violation of this Act. In any
> action against a State for a violation of the requirements of this
> Act, remedies (including remedies both at law and in equity) are
> available for such a violation to the same extent as such remedies are
> available for such a violation in an action against any public or
> private entity other than a State.

Section 502 of the ADA, 42 U.S.C. § 12202 (parenthetical remark in the
original). [See also]{.underline} 28 C.F.R. § 35.178; S. Rep. No. 116,
101st Cong., 1st Sess., at 184 (1989); and House Comm. on Educ. and
Labor, 101st Cong., 2d Sess., Americans with Disabilities Act of 1990,
at 138 (1990), [reprinted in]{.underline} 1990 U.S.C.C.A.N. at 421.

Similarly, in the Civil Rights Remedies Equalization Amendment of 1986,
42 U.S.C. § 2000d-7, Congress specifically abrogated the states\'
immunity under the eleventh amendment for cases arising under section
504.[^19]

# IV. Conclusion

The Court should conclude that Mr. Galloway is entitled to seek
compensatory damages under both title II of the ADA and section 504 of
the Rehabilitation Act and, further, that the eleventh amendment is not
a bar to obtaining such relief.

Dated: Washington, D.C.

April \_\_ , 1993

Respectfully submitted,

J. RAMSEY JOHNSON JAMES P. TURNER

United States Attorney Acting Assistant Attorney

for the District of Columbia General for Civil Rights

D.C. BAR #243253

By:

JOHN L. WODATCH

D.C. Bar #344523

JOAN A. MAGAGNA

D.C. BAR #910885

SHARON PERLEY\*

Attorneys

U.S. Department of Justice

Civil Rights Division

Public Access Section

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-0663

\* admission to the bar pending

[^1]: ^?^ The Court delayed the briefing schedule to afford the parties
    an opportunity to settle. We have been advised that no settlement
    has been reached.

[^2]: ^?^ As required by Section 204 of the ADA, 42 U.S.C. § 12134, the
    Attorney General promulgated a regulation implementing title II of
    the ADA. 28 C.F.R. pt. 35 (1992). This regulation became effective
    on January 26, 1992. Pursuant to the statute and the regulation,
    several federal agencies have responsibility for investigating title
    II complaints. The Department of Justice coordinates the title II
    implementation efforts of these agencies and may file suit in
    federal district court when a complaint cannot be resolved by
    voluntary means. [See]{.underline} 42 U.S.C. § 12133; 28 C.F.R. pt.
    35 at subpt. F; S. Rep. No. 116, 101st Cong., 1st Sess. 57 (1989);
    H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 98 (1990),
    [reprinted in]{.underline} 1990 U.S.C.C.A.N. 303, 381.

[^3]: ^?^ In 1976 the President directed the Secretary of Health,
    Education, and Welfare to \"establish standards for determining who
    are handicapped individuals and guidelines for determining what are
    discriminatory practices, within the meaning of section 504.\" Exec.
    Order No. 11914, 41 Fed. Reg. 17871 (1976). The Secretary issued
    detailed regulations. See 45 C.F.R. pt. 86 (1978). In 1980, the
    Secretary\'s responsibility was transferred to the Attorney General,
    Exec. Order No. 12250 (45 Fed. Reg. 72995 (1980)), and the
    regulations were \"deemed to have been issued by the Attorney
    General\" ([id]{.underline}. at 72997; see 28 C.F.R. pt. 41). The
    regulations require each federal agency to issue its own regulations
    concerning discrimination on the basis of disability in the programs
    and activities financially assisted by that agency.

[^4]: ^?^ [See]{.underline} [e.g.]{.underline}, [Consolidated Rail Corp.
    v. Darrone]{.underline}, 465 U.S. 624 (1984); [University of Texas
    v. Camenisch]{.underline}, 451 U.S. 390 (1981); [Southeastern
    Community College v. Davis]{.underline}, 442 U.S. 397 (1979);
    [Trageser v. Libbie Rehabilitation Center, Inc.]{.underline}, 590
    F.2d 87 (4th Cir. 1978), [cert. denied]{.underline}, 442 U.S. 947
    (1979).

[^5]: ^?^ In 1978, section 504 of the Rehabilitation Act was amended to
    apply also to programs conducted by federal executive agencies. 29
    U.S.C. § 794 (as amended by Pub. L. 95-602, Title I, §§ 119,
    112(d)(2), Nov. 6, 1978, 92 Stat. 2982, 2987).

[^6]: ^?^ [See]{.underline} S. Rep. No. 116, 101st Cong., 1st Sess. 57
    (1989); Rep. of Comm. on Educ. and Labor at 98. Indeed, Congress
    intended that the enforcement of title II \"should closely parallel
    the federal government\'s experience\" in enforcing section 504.
    [Id]{.underline}.

[^7]: ^?^ [See]{.underline}, [e.g.]{.underline}, [Bonner v.
    Lewis]{.underline}, 857 F.2d 559, 566 (9th Cir. 1988); [Moore v.
    Warwick Public School District N. 29]{.underline}, 794 F.2d 322, 325
    (8th Cir. 1986); [Ciampa v. Massachusetts Rehabilitation
    Comm\'n]{.underline}, 718 F.2d 1, 5 (1st Cir. 1983); [Miener v.
    Missouri]{.underline}, 673 F.2d 969, 977-79 (8th Cir. 1982), [cert.
    denied]{.underline}, 459 U.S. 909, 916 (1982); [Nelson v.
    Thornburgh]{.underline}, 567 F.Supp. 369 (E.D.Pa. 1983), [aff\'d
    without opinion]{.underline}, 732 F.2d 147 (3d Cir. 1984), [cert.
    denied]{.underline}, 469 U.S. 1188 (1985). [See also]{.underline}
    [Smith v. Robinson]{.underline}, 468 U.S. 992, 1020 n.24 (1984)
    (\"courts generally agree that damages are available under § 504\").
    [But see]{.underline} [Marshburn v. Postmaster Gen.]{.underline},
    678 F.Supp. 1182 (D.Md. 1988), [aff\'d without opinion]{.underline},
    861 F.2d 265 (4th Cir. 1988); [Byers v. Rockford Mass Transit
    Dist.]{.underline}, 635 F.Supp. 1387, 1391 (N.D.Ill. 1986);
    [Shuttleworth v. Broward County]{.underline}, 649 F.Supp. 35, 38
    (S.D.Fla. 1986).

[^8]: ^?^ The Supreme Court has noted that compensatory damages may be
    available under title VI, but has not actually ruled on the issue.
    [Guardians Assoc. v. Civil Service Comm\'n of the City of New
    York]{.underline}, 463 U.S. 582, 597 (1983) (\"\[i\]n cases where
    intentional discrimination has been shown \... it may be that the
    victim of the intentional discrimination should be entitled to a
    compensatory award\"). [See also]{.underline} [Gilliam v. City of
    Omaha]{.underline}, 388 F.Supp. 842 (D.Neb. 1975),
    [aff\'d]{.underline}, 524 F.2d 1013 (8th Cir. 1975) (without mention
    of remedies); [Flanagan v. President and Directors of Georgetown
    College]{.underline}, 417 F.Supp. 377 (D.D.C. 1976). [But
    see]{.underline} [Concerned Tenants Assoc. v. Indian Trails
    Apartments]{.underline}, 496 F.Supp. 522, 527 (N.D.Ill. 1980).

[^9]: ^?^ [Cannon v. University of Chicago]{.underline}, 441 U.S. 677,
    694-96 (1979) (title IX patterned after title VI); [N.A.A.C.P. v.
    Medical Center, Inc.]{.underline}, 599 F.2d 1247 (3d Cir. 1979)
    (title IX was expressly intended by Congress to track the previously
    enacted title VI).

[^10]: ^?^ [See]{.underline} the Civil Rights Remedies Equalization
    Amendment of 1986, 42 U.S.C. § 2000d-7, and the Civil Rights
    Restoration Act of 1987, Pub.L. 100-259, 102 Stat. 28 (1988), both
    of which also apply to title VI and to section 504.

[^11]: ^?^ [Franklin]{.underline}, 112 S. Ct. at 1036-37. [See
    also]{.underline} [id]{.underline}. at 1039 (Scalia, J., concurring)
    (concluding that the Civil Rights Remedies Equalization Amendment of
    1986 was not only a validation of [Cannon]{.underline}, but \"an
    implicit acknowledgment that damages are available \[under title
    IX\]\").

[^12]: ^?^ Judge Thomas Hogan noted that two earlier cases decided in
    this court had held that compensatory damages are unavailable under
    section 504. [See]{.underline} [Doe v. Southeastern
    University]{.underline}, 732 F.Supp. 7 (D.D.C. 1990); [Duvall v.
    Postmaster General]{.underline}, 585 F.Supp. 1374 (D.D.C. 1984),
    [aff\'d without opinion]{.underline}, 774 F.2d 510 (D.C.Cir. 1985).
    Judge Hogan noted, however, that these cases were decided prior to
    [Franklin]{.underline}, and that the reasoning applied in these
    cases \"was misplaced.\" [Doe]{.underline}, 796 F. Supp. at 572, n.
    13 & 14.

[^13]: ^?^ See note 10, supra.

[^14]: ^?^ See note 7, supra.

[^15]: ^?^ There have as yet been no decisions addressing whether
    compensatory damages are available under title II of the ADA.

[^16]: ^?^ This can be contrasted with the enforcement procedures of
    title III of the ADA, which applies to private entities operating
    places of public accommodation and commercial facilities. Title III
    [does]{.underline} limit private plaintiffs to equitable relief by
    reference to the procedures for enforcing title II of the Civil
    Rights Act of 1964, 42 U.S.C. § 2000a-3(a). [See]{.underline} 42
    U.S.C. § 12188. [See also]{.underline} the Department of Justice\'s
    regulation implementing title III, 28 C.F.R § 36.501(a) (1992),
    providing in pertinent part, \"Any person who is being subjected to
    discrimination on the basis of disability in violation of the Act or
    this part . . . may institute a civil action for preventive relief,
    including an application for a permanent or temporary injunction,
    restraining order, or other order.\"

[^17]: ^?^ House Comm. on Educ. and Labor, 101st Cong., 2d Sess.,
    Americans with Disabilities Act of 1990, at 98, [reprinted
    in]{.underline} 1990 U.S.C.C.A.N. at 381; [see also]{.underline}
    H.R. Rep. No. 485, 101st Cong., 2d Sess. pt. 3, at 52 (1990),
    [reprinted in]{.underline} 1990 U.S.C.C.A.N. 445, 475 (Report of the
    Judiciary Committee) (citing [Miener v. Missouri]{.underline}, 673
    F.2d 969 (8th Cir. 1982), [cert. denied]{.underline}, 459 U.S. 909
    (1982) (compensatory damages available under section 504); S. Rep.
    No. 116, 101st Cong., 1st Sess., at 57-58 (1989).

[^18]: ^?^ The eleventh amendment provides, \"The Judicial power of the
    United States shall not be construed to extend to any suit in law or
    equity, commenced or prosecuted against one of the United States by
    Citizens of another State, or by Citizens or Subjects of any Foreign
    State.\"

[^19]: Congress also abrogated the states\' immunity under title IX,
    title VI, and the Age Discrimination Act of 1975.