morning your honor some may please the court john gore on behalf of the united states in title two of the a t f a congress expressly incorporated the remedies procedures and rights provided by the rehabilitation act which in turn expressly incorporated the remedies procedures and rights provided by title six of the civil rights act of one thousand nine hundred four at the time of the eight is an act meant the law was well established that both title six and the rehabilitation act authorized the attorney general to file enforcement actions in federal district court accordingly congress made clear in the a d a s legislative text purposes and history that the remedies procedures and rights incorporated in the title to include this authority of the attorney general to file lawsuits in federal district court here the district court erred when it became the first and only court in the nation to hold that the attorney general lacks a cause of action under title to the court should reverse that or are the iranians holding and remand the case in title two of the eighty a congress imported the tried and true language of the read ability to act to incorporate the full bundle of remedies procedures and rights available both under that act and under title six at the time of the a d a s an ac courts had recognized that title six in the rehabilitation act create two federal government enforcement mechanisms one is the term a nation of federal funding and the second was in force mint lawsuits filed by the attorney general and when it came to enforcement lawsuits filed by the attorney general the courts had offered a variety of rationales for those lawsuits at least two courts in the bought baylor medical center and tatum independent school district cases we cited in our briefs had held that the attorney general could enforce title six or the rehabilitation act through both common law contract actions tied to the federal funding and three statutory enforcement actions other courts had taken a different approach they deducted a contract ration our haven't specified their rationale at to the first distinction you just made you said other courts have held and i was kind of waiting for a because that is what was the rationale that they said that you could sue independent of a contract but those those two courts that i cited were baylor medical center and tatum and they simply said that there was a statutory enforcement action under title six or the rehabilitation act without much explanation but there was no court that had rejected the existence of a statutory enforcement mechanism some courts had adopted a contract rationale and some courts hadn't really specified what the rationale was but there was no court that said that the statute itself couldn't be directly enforced by the attorney general so congress was  acting against a patchwork backdrop when it inactive the a d f a and it adopted title two but congress was aware that terminations of federal funding would not be a viable remedy under title two because title two doesn't have a funding hook unlike the rehabilitation act in title six and congress recognized that in the legislative history and in its legislative purposes and so the only federal enforcement mechanism that it could have imported into title two was this mechanism of enforcement actions filed by the attorney general and that's exactly what congress did it wanted to grant the full harriet points in the briefs makes the point that the definition of person in title to doesn't include the government whereas in title one it does in these other statutes that you refer to what's the definition of person is there any traction from that or is it the same as idle to simply silent it's the same as title two in the rehabilitation act also uses the word person and it says that the remedies procedures and rights that are made available by title six are available to any person under the rehabilitation act it doesn't have the definition of person that is entitle one does not  but the courts have held that the attorney general could bring an enforcement action the reason i think title one has that special definition of person is that title one is simply an extension of title seven to two individuals with disabilities and so congress did a lot of work to preserve the title seven scheme and just import that into title one was very submissive of and does define persons it does yes and title title one defines at the same way and ultimately though your honor we think that's largely beside the point because it was clear that congress was acting across against this patchwork backdrop that had recognized at least by some courts a stretch to enforcement mechanism so this case is actually analogous to the supreme court's decision in canon versus university of chicago the supreme court in that case rejected a line of argument similar to what the state is advancing here the defendant and canon argue that title nine which likewise incorporates title six is an foresman scheme could not imply a private right of action unless title six did so as well and the supreme court rejected that out of hand the supreme court said that it didn't even need to address whether title six created a private right of action at least in one line of the court's reasoning it explained in that's it for forty one us at eleven that the relevant in corrie is not whether congress correctly perceive the vin state of the law but rather what congress is perception of the state of the law was so it was enough in canon for the supreme court that congress thought there might be an implied right of action under title six for the court than to find an implied right of action under tough well none of here if you were if we were to conclude that the attorney general is cannot be a person alleging discrimination under title to do you lose or is there another rationale no not at all in fact we've explained in our brief why we don't think that rationale is on point because it's clear as i was just explaining it in in an analogy to cam and the congress perceived that it could extend the attorney generals of foresman authority to title to simply by importing the full bundle of remedies procedures and rights from the rehabilitation act in title six that i'm going to said under title six in the rehabilitation act you're asking for us to import not the statutory language you're asking us to go a bridge further and say let's look at the entire regulatory scheme that appears in the federal register you're not pointing to statutory language right we're actually pointing to both because the administrative scheme under the rehabilitation act has kind of a unique history as we've laid out in our brief in the rehabilitation act was enacted in one thousand nine hundred seventy three it didn't have a enforcement mechanism at all and so in one thousand nine hundred seven the then department of health education and welfare of this regulatory scheme what exactly do you mean by that h e w was designated as having coordination authority for the enforcement of the rehabilitation act which authority now resides in the department of justice but congress had directed h e w to coordinate all of the federal government's actions in this realm and to and to regulate on this topic but even how is that different in then the federal government's regulatory approach to everything would you say that every time a cabinet agency is regulating they're doing it under the  approval of congress because of the congressional review act to i guess i'm just trying to get at why is this why are you make that's statement specifically here the two reasons first of all because there was a specific grant of authority for eighty dubey to fill in the gaps in performance coronation role but secondly and more importantly he said in one thousand nine hundred eighty eight congress codified those regulations in the rehabilitation act through the remedies procedures and rights language and that's what the supreme court held in iran the supreme court said these regulations are special because they were conduct under this congressional oversight and then congress codified them when it amended the rehabilitation act in one thousand nine hundred eighty eight whether or not we worry about the statutory basis seventy seven by seventy eight there was an explicit statutory basis by the that's absolutely correct judge box and as i said before congress clearly perceived that it could do this it had a high level understanding that title six in the rehabilitation act authorized attorney general enforcement suits and it's to import that scheme wholesale into title two and that was the only federal government mechanism enforcement mechanism it could bring in to title two because the terminations federal funding isn't available because there's no funding hook under title to the state takes a different reading of title two it focuses on the person language but we think that's largely beside the point also for the reasons that i've laid out we think that this debate about whether title six in the rehabilitation act or contract actions or statutory actions or both is beside the point as well congress could extend the attorney general's enforcement authority into title two without resolving the legal niceties of whether title six of the rehab act were contract actions or statutory actions were taken because the courts had resolved those the courts had said that they might be statutory actions or they might be contract actions and no court had rejected the statutory enforcement rashan now let's let your answer to the argument that title one in title three in eighty eight specifically refer to attorney general enforcement actions whereas title two does not those all three of those titles have a different history and there are reasons why those two titles mention the attorney general in title two dozen as i mentioned before title one is simply importing this the a force in scheme of title seven to the employment context and so congress was trying to preserve the division of authority between two federal actors the e e o c and the attorney general so it went ahead and it named those actors in title one title three was creating totally new enforcement mechanisms and remedies available to the attorney general so it was necessary to name the attorney general in order to do that that wasn't true in title two title two is just a hose wholesale extension of the rehabilitation act to all state and local government entities and programs regardless of whether they are receiving federal funding and that's all consistent with how titles one two and three were drafted as a general matter title two contains very little detail simply congress simply said we're expanding the rehabilitation act the on federal funding and we're directing the department of justice to fill in the gaps titles one and three are much more extensive in ridiculous ated in terms of the yet i discriminate mandates in the enforcement provisions so for all those reasons title two encompasses the full bengal of remedies procedures and ri available under the rehabilitation act in title six including foresman actions by the attorney general may please the court my name is andy part of behalf of the state of florida when congress authorizes the federal government to sue it does so and express terms newport news held this and marshall held this we must look for express the statutory authority for the attorney general's power to sue when we look at title two we don't see that when we look at titles one and title three of the a we do see that what we see in title three is that i'm sorry entitled to is that the incorporates rights remedies and procedures that were set forth in a prior statute so to your question judge branch the rights remedies and procedures must be set forth in the prior statute instead of arising from a regulatory scheme and then it provides those rights to any personal edge and discrimination which the attorney general doesn't claim to be the attorney general's theory is that the prospect of an enforcement action a federal enforcement action is a right provided to a person alleging discrimination but the the attorney general cites no precedent for that approach there is no precedent for congress thinking of and conceptualizing a federal cause of action a federal enforcement power as a right provided to an individual the and it's improper to think of it that way because of the newport news and it's holding that grant of power must be explicit it's also improper to think of it that way because an individual a private party has no control over that federal enforcement action they have no control first when they submit an administr complaint to the department of justice whether the department ever investigates it whether there be a department ever acts on it makes findings whether their department ever sues there's even confusion in the attorney general's briefs about what sort of action this is the attorney general suing on behalf of an individual to recover individualized remedies that's what they suggest in their initial brief or they suing on behalf of the united states seeking systemic relief which is what they suggested in the district court and what they say in their reply brief so a federal cause of action is not a right provided to an individual it has never been thought of that way and it wasn't done and it is not so here and titled want to see if i could break in do i understand correctly that in this case in this case they know they began discussions they had findings they had a sit down with with florida is that all basically correct yes your honor and so then the question is at that point if they don't have the right to sue what can they do so hold that question the rest of his argument as i understood it was that all the points that you've made would be equally applicable to parts of title six and the rehabilitation act so that those enforcement actions which the suits which the government has been bringing in without much quarrel would also fall if your argument is correct would you address those two in whatever orders good for you yes your honor on the last point first i think it's very important for this court to scrutinize the statements made in the departed department of justice brief about how broad this consensus was in favor of federal enforcement of title six and rehab act and how much judicial precedent there is to that effect i believe if the court looks at it carefully you'll find that there's very little precedent that effect and over decades of potential enforcement they say that they've been bringing these suits regularly i question that the department of justice cites the baylor case in the tatum case in which the court suggested that there might be a statutory enforcement action as well but most of the cases that the department of justice cites it's either dicta or  it's a contract action or the court simply not clear about whether it's a contract action or a statutory action so there is no case no circuit court case for sure holding that holding that the department of justice has statutory authority to enforce title six and the rehab act and we don't see many cases that suggest that at all the title six regulations i think this is an important point as well since there aren't there is nothing in title six of statutory language authorizing the federal government to sue it's important to keep in mind that the regulate the regulations i think also support our position because while they cite the language suggesting that the department of justice might bring appropriate action they don't cite the portion that explains what that is and what the regulations say is not that the department of justice can sue under title six they say what the regulations say is that the appropriate action means perhaps a contract action if the agency has obtained contractual assurances of compliance from an entity that receives federal funds perhaps it could be  enforcement under another title of the civil rights act because there are other titles where there is some overlap and those titles explicitly spell out not only the attorney general's authority to sue but also the jurisdiction of district courts to hear those  cases or it could be an action under state and local law so the title six regulations explicitly spell out all of the different options that are available to the government but they are not statutory enforcement actions that's not what the regulations say and i think that this suggestion that congress  looking back incorporated a contra potential contract action or some other action that might have been available to the department of justice and transformed that into a federal enforcement action i think doesn't give congress enough credit i think that that wasn't simply that department of justice might have had a contract action is not a minor detail so when congress was looking at what's available to the department of justice it would have looked at the statutory language that says other means authorized by law are available to the department of justice but it would not have then taken that and converted a contract action with with the various elements that must be proven the potential remedies that are available in those actions and said now you get a federal statutory enforcement action without somehow making that clear person the rehab act and saying well look they set up this whole thing you have findings you have meetings and at that point florida says buzz off go home right and is that directly your position well yes except that the department of justice is working in reverse there so they can't begin by establishing an administrative process and saying we're going to issue findings findings letters and then saying well now it's ineffective so now you need to recognize a federal cause of action it doesn't work that way and the agency can't do its own regulatory administrative efforts understand i'm just trying to make sure that i get the practical effect here which right does at least raise some question as to how congress might have meant it and how you might interpret it that they set up this process and then it stops unless you have federal funds issue unless there's a federal funds issue that indeed is your position but what what congress was incorporating into title two for sure it was a private right of action which did exist under the rehab act and did exist under title six and the reason it would incorporate that is there was a vast body of precedent at that point outlining the contours of the private right of action so you know which statute of limitations applies what is there a jury trial what remedies are available all of that was incorporated into title t now it doesn't mean that the federal government has no effect enforcement authority under title two of the a t f so for example act as a vehicle is especially in the institutionalization context for enforcing federal constitutional and statutory rights the federal government if it satisfy certain conditions the department of justice could bring an action under cripple that enforces title to itself i think the district court made that point and i think it's a good point because what the department of justice has done here is avoid the more stringent standards that congress established in cripple for enforcing federal statutory rights in the institutionalization context and so it has avoided that and essentially rendered cripple unnecessary so it still has crippled it can still investigate and if it believes that this more stringent standards of care by have been satisfied it can then act on its findings later it can certainly issue the findings later as could then serve as a basis for private enforcement and the department of justice could then intervene it could file statements rehabilitation act so there are mechanisms in place but what didn't exist under title six or under the rehab act and therefore doesn't exist in title two is a federal statutory enforcement action there's simply no language to that effect and i think that's all the more pronounced when we look at the other titles within those statutes if we look at the root medial and provisions of the a t a i and of the civil rights act they are very carefully considered they are very carefully laid out under title one the tourney general is mentioned alongside a person alleging discrimination and otherwise it's almost a mirror image provision to the one in title two i think the point that person is defined to include the government in title one makes the point even more forcefully for us because there would be that much less reason to separately identify the attorney general in title one because title one already would define person to include the government and yet congress still did that it still identified the attorney general separately in title one same thing in the civil rights act we look at the different titles of the civil rights act and congress was very direct very explicit about how federal enforcement authority is to be exercised if at all it identify the conditions under which it can be exercised it identified the jurisdiction of the district court there's nothing to the ad effect in title six or for that matter in the regulations because counsel let me just to be clear again a minute ago you sort of said the same thing that you were about to get there is no basis in the rehab actor title six but then that means all of these actions that have been brought are without a statutory basis as well under the rehab act and title six well first of all again i would question whether how many of such actions have been brought i  don't think it's many you would concede there's as many as one i would concede there's as many as one but i'm not sure that there's as many as one where there was no contract to enforce even in tatum for example tatum says well there's statutory authority and can and the department of justice recognizes that there's almost no analysis in that case about the statutory enforcement authority but there were also was a contract in that case so many of these cases to the extent that there were many but the cases that they've cited there likely was a contract in place with which the government has it has the ability to enforce there's no question about that if there is fit if there are federal funds and involved the government can enforce those so i don't know that the government has cited to you a single case where it was relying exclusively on statutory enforcement as the mechanism so the marion county case is a very good example of where the department of justice brought a contract action in a footnote the court explained that while the department of justice had asserted statutory authority as well it has explained that that's only subordinate to its contract claim so that was clearly a contract action in the department of justice recognise that in that case and what the fifth circuit in that case former fifth circuit explained is that the  language other means authorized by law entitled six all that does is preserve to the department of justice whatever authority it might have had under other sources of law so for example under title six if we have we have the fund terminations provision what congress wanted to make clear is that that fund terminations provision is not the exclusive unfortunate mechanism other other means that might exist in other statutes or under the common law if they want to bring an action for specific performance those will be preserved to the government we won't we won't read the fine terminations provision as being exclusive so i don't think that we have seen a federal case a rehab act or title six claim that was exclusively understand retore authority can i ask you a question we're talking about practical results if we were to allow the united states to proceed with this lawsuit it is brought in the name of the united states not on behalf of individual people correct correct how does florida defend against that if we're not talking about we don't we're not looking at individuals for specific harm what is the practical reality of how florida goes forward with that well that's a great question and that's what we struggled with for three years in this litigation because because this action that there's that in which they're seeking systemic relief as they described it in the district court is unprecedented we don't know what the elements of the cause of action are we don't know how to defend against it they said throughout the district court proceedings this is an action for systemic relief we don't bring this on behalf of individuals we are not asserting their claims we don't assert that their rights were violated so now they say in their opening brief that congress gave them the power to sue on behalf of individuals and that they are here to vindicate the rights of individuals who might have filed administrative complaints totally inconsistent and this is where i think the federalism interests really come into play in olmsted where the supreme court recognized the power of two private individuals who filed separate complaints to sue under title t for individual ised relief not systemically they simply wanted reasonable accommodations that would allow them to move out of it out of an institution and into the community even there the justice kennedy in his concurrence recognize that this imposes federalism cost here in this case when the department of justice i suppose their theory is that if someone files intimate an administrative complaint they are then untethered from that and now they can seek systemic relief now they can go in and seek an injunction that changes the state's health care policies and there's of course no precedent for that but that's more than injunctive relief they're seeking compensable for damages here to see compensatory damages the magistrate judge recommended the dismissal of those claims that reporting recommendation was not acted on before this case was  dismissed but yes they are seeking damages which they say they will distribute in their own discretion so again how what kind of action is this really is this are they seeking individualised relief are they seeking systemic relief what are the elements if they're seeking systemic relief nobody knows because the statutory enforcement action doesn't exist and theoretically if you had applied if you had individual plaintiffs who were seeking compensatory damages and the federal government seeking compensatory damages at least as theoretical for a double recovery potentially a double recovery  and and i think specially in this case your honor i think the court even if it agrees with everything the department of justice is arguing i think the court needs to hold them to their representation in the district court this was not brought to rep to vindicate individual claims and they don't have an action for systemic relief at the very least they don't even make an argument to that effect in their opening brief so if their argument is we are here to vindicate individual rights of individuals who file that ministry of complaints with us then this action needs to be dismissed because that's not the case they brought thank you unfortunately the state continues to mischaracterize in this state the facts and the law in several important respects both respect to the district court action and our position on appeal and i'll try to clarify all of those first the state's description of an administrative enforcement scheme is simply wrong as a matter of both fact and law individualized relief is common in administrative enforcement schemes we've cited cases on page eighteen in one thousand of our reply brief to that effect counsel also said there is no precedent for an administrative enforcement scheme  culminating in an individualized action brought by the attorney general i would cite the court to the fair housing act where that is extraordinarily common it's common in other civil rights statutes including title six and rehabilitation act and title two of the americans with disabilities act they some cases in their brief about a minute for a straight of enforcement a review schemes and enforcement schemes and whether they result in remedies the state has misrepresented those cases those cases deal with other propositions that there is no judicial review of the administrative enforcement scheme and that private parties don't have a right to demand terminations of federal funding so those cases are completely off point and don't have anything to do with whether the attorney general has enforcement action at the conclusion of administrative review process  state keeps mis characterizing the united states as theory of this case and keeps misstating with the cases about out cite you to paragraph four of our complaint where we say the united states brings this action against the state to enforce the rights of children to receive services in the most integrated setting appropriate to their needs we then go on for paragraph after paragraph after paragraph describing how the state's policies an unnecessary segregation of children with disabilities violates title two of the how the case had we tried and what we had to prove they cite a footnote of one of our briefs in the district court but don't quote the most important portion which is where we told the district court the violations of individual's rights have occurred and the united states an answering and bill you're seeking to vindicate the rights of these children collectively they presumably exist or you'll claim they exist but you're not giving them by name they all exist and they're all persons alleging discrimination and we identified over two hundred such children  our in iraq it's already responses and that's how we were going to try the case we were going to show through the typical and common experience of these children that the state has its collection of policies that violate title two of the eight yet the state wanted to force us to put every individual claimant on the stand and prove every individual claim individually there's no requirement that we do that we can show through the typical and common experience that there are across the board failures in states policies to comply with the a t f if there's any doubt about that theory now we john marion bill will get money or will get services or is it going to be that florida shall do certain things generally i think it's a combination of both we sought damages but we also were seeking changes to florida's policy that has one set of policies that applies that it applies over and over and over again to children in these settings and we think if you fix and holosuite action on the next case we're going to hear which does with individuals share although i think that case has a rationale mootness rationale it doesn't apply to the united states because we were challenging other policies and that rationale was with those policies were changed in that case and so that may have dealt with those individual claims we brought all kinds of enforcement actions under title two without a contract to correct something the state set all of our own said cases that we've brought in virginia in florida and in other states have been without a contract we bring cases we have one currently against harris county texas involving its polling places that was brought without a contract and not tied to federal funding we brought action after action in the decade since title two was enacted and we've been able to negotiate preceded settlements in a lot of those cases and those settlements recognize the attorney general's enforcement authorities were only possible because there was a threat of it what's your answer what's your your  colleague sort of as well all of these cases have other strings to the bow what's our best case we would look to first for a holding that completely separate from contract action we gave you to baylor medical center and tatum and then the other case district court cases we've cited that have rejected the state's argument in virginia and in harris county and recognized that the attorney general has a cause of action to enforce title to those did not have a funding hook  cripple doesn't provide a sufficient remedy here either because that only applies in institutions and would not give us the full remedies procedures and rights they come are said recognized in the rehabilitation act in title six let's be clear about who has a broad theory theory sweeps across the entire scope of title to the district court's holding stands the united states cannot bring in any enforcement action to enforce title two we explained to me about why cripple is not a sufficient remedy sure he said it only applies to institutions can you expand as the civil rights of institutionalized persons act right so it only applies in institutions and it only applies when there's a pattern or practice of violations of the constitution or of title to congress in title two wanted to give us the full bundle of remedies rights and procedures that have been given to the rehabilitation act and under and under title six so for example we couldn't bring a case under cripple to enforce the school's obligation to install a ramp or an elevator for a child in a wheelchair we can do that und title two although under the state's theory in the district court's holding it would knock out any title to enforcement action by the united states including the one against the school we couldn't bring an action to enforce the county's obligation to remove barriers and make its polling places accessible to voters with disabilities we couldn't bring an action against a court to require it to make its courthouse accessible to persons with disabilities even though the supreme court recognized that obligation in tennessee versus lane so they're the ones who have a breathtakingly broad theory because it would knock out all title to enforcement by the attorney general and cripples just a narrow remedy that applies in a limited set of circumstances and certainly doesn't convey the full bundle of remedies procedures and rights that congress had thought were in existence under title six in the rehabilitation act and tried to only to congressional enactments that impose federal law obligations on states not to enact mintz that created force with authority in the attorney general or any other party it would make no sense to do to extend the clear statement rule here because the cases we've  cited in our brief explain there is no federalism concern and no constitutional limit on actions by the united states brought against a state unlike the eleventh amendment which applies to private party actions so i'm happy to answer any other questions the court may have but we think the law is clear the court should give effect to congress the stated purposes and intent in the a and it's clear language and the only way to do that is to reverse the district cou